Canada: Getting "Ahead" Of The Changes: Rowan's Law And The Potential Impact On Insureds – Further Updates

Note: This paper has been updated from a prior version published in May 2018 to reflect recent developments in the legislation and potential regulations

Introduction

On May 12, 2013, 17-year-old Rowan Stringer died after sustaining two concussions within a week while playing rugby.¹ The cause of her death was secondary impact syndrome,² a “catastrophic swelling of the brain caused by a second injury that occurs before a previous injury has healed.”³

Rowan's death led to a Coroner's Inquest in the spring of 2015, following which the coroner's jury made 49 recommendations about how provincial ministries, school boards, and sport organizations can improve concussion management in amateur sport.⁴

As part of their recommendations, the jurors urged the Government of Ontario to adopt “Rowan's Law”, an act that would establish basic standards of practice for concussion management.⁵ In response, the Government of Ontario enacted legislation to create the Rowan's Law Advisory Committee (“the Committee”).⁶ The Committee consisted of various stakeholders including doctors, school board personnel, coaches, professional athletes, and Rowan's own father, Gordon Stringer.⁷

• review the jury recommendations;
• review legislation, policies and best practices from other jurisdictions respecting head injuries;
• make recommendations on how to implement the jury recommendations, how to prevent and mitigate head injuries in sports and how to create awareness about head injuries in sports; and
• make any other recommendations that the Committee deems advisable with respect to head injury prevention or treatment.⁸

In fulfilment of this mandate, the Committee released a report in September of 2017. The report contained 21 proposed actions for addressing the coroner's jury recommendations. The Committee also specifically recommended that the provincial government enact “Rowan's Law.”⁹ This recommendation would cover all five themes of the Committee's recommended actions, namely: surveillance, prevention, detection, management, and awareness of concussions.¹⁰

Legislative Background

The provincial government previously attempted to pass concussion safety legislation in 2012 with Bill 39, the Education Amendment Act (Concussions), 2012.¹¹ Unfortunately, the bill “died on the order paper” when then-Premier McGuinty prorogued the Legislature.¹²

Rowan's Law represents a renewed initiative to pass concussion safety legislation in Ontario. Bill 193: Rowan's Law (Concussion Safety), 2017 (“the Bill”)¹³ received its first reading on December 14, 2017 and its second reading on February 21, 2018. The Bill was then referred to the Standing Committee on Social Policy, who made one change to the original form of the Bill.¹⁴ The third and final reading of the Bill took place on March 6, 2018.

On March 7, 2018, Rowan's Law (Concussion Safety), 2018 (“Rowan's Law”)¹⁵ received Royal Assent and became law in Ontario. The only section currently in force is section 5, which declares the last Wednesday in September as “Rowan's Law Day”.¹⁶ The other sections will “come into force on a day to be named by proclamation of the Lieutenant Governor.”¹⁷

Overall, Rowan's Law is intended to serve as “broad framework legislation” for concussion management and prevention in amateur competitive sport. The legislation will apply to any “sport organization”, defined as “a person or entity that carries out, for profit or otherwise, a prescribed activity in connection with an amateur competitive sport.”¹⁸ A “sport organization”, which may be further defined by regulation, will be required to:

• Ensure individual athletes have reviewed “concussion awareness resources” in the twelve months prior to registering with the “sport organization,”¹⁹ “Concussion awareness resources” will be those resources approved by the Minister of Tourism, Culture, and Sport.²⁰ If the individual athlete is under a prescribed age, then they must also give confirmation that they have personally reviewed these resources.²¹
• Create and implement a concussion code of conduct, the requirements of which will be further prescribed by regulation.²² A "sport organization" must confirm that individual athletes have reviewed their concussion code of conduct in the twelve months prior to registration with that organization.²³ Furthermore, individual athletes under a prescribed age must give confirmation that they have personally reviewed the code of conduct.²⁴
• Establish a removal-from-sport protocol that includes a specific process for "immediate removal of an athlete who is suspected of having sustained a concussion"²⁵ and designate "persons" responsible for implementing the protocol.²⁶ Further responsibilities of other "persons" and further requirements for this protocol may be prescribed in the future.²⁷
• Establish a return-to-sport protocol that includes a specific process for "return of an athlete to training, practice or competition after the athlete has sustained a concussion or is suspected of having sustained a concussion."²⁸ There must be designated "persons" responsible for returning athletes to the sport.²⁹ Further responsibilities of other "persons" and further requirements for this protocol may also be prescribed in the future.³⁰

Coaches of a "sport organization" will be required to review "concussion awareness resources" and the concussion code of conduct for their organization on an annual basis.³¹ Parents and guardians of athletes under 18 (or another age that may be prescribed) will also have to confirm that they have reviewed the "concussion awareness resources" and the concussion code of conduct for each "sport organization" in which the athletes under their care are registered.³² Since each organization may have different "concussion awareness resources" and codes of conduct, parents and guardians could have a possible obligation to review multiple sets of materials.

Potential Impact of the Legislation

There are potential concerns about civil liability that could arise from the provisions of Rowan's Law. Most of these concerns relate to: (1) how the persons or entities captured by the legislation are defined, and (2) the obligations imposed on those persons or entities by the legislation.

Definition of Sport Organization

There could be a concern that the definition of “sport organization” will create confusion for persons or entities engaged in carrying out amateur sports. There is a question as to what persons or entities will be captured by the legislation under the definition of that term in Rowan's Law. For example, what specific activities or criteria must persons or entities satisfy to be considered a “sport organization”?

Overall, a “sport organization” may not appreciate that Rowan's Law applies to them. Without this appreciation, a “sport organization” may not be aware of the requirements to implement concussion codes of conduct and removal-from-sport/return-to-sport protocols.

Furthermore, Rowan's Law might capture “administrative-type” persons or entities who are not directly involved in making decisions about concussed athletes and who are not involved in creating or enforcing rules. An example would be someone (such as a volunteer) who simply participates in fundraising or registration. As such, responsibilities may be imposed on “administrative-type” persons or entities where none previously existed.

Review of Concussion Awareness Resources

As outlined above, Rowan's Law requires athletes, parents/guardians, coaches, and sport organizations to review “concussion awareness resources” approved by the Minister of Tourism, Culture, and Sport. However, there is an open question as to whether these persons and entities must review all approved materials, or only materials specific to the sport activity or organization in which the persons and entities are involved.

Development of Concussion Codes of Conduct, Removal-from-Sport Protocols, and Return-to-Sport Protocols

The potential issues with the concussion code of conduct and removal-from-sport/return-to-sport protocol requirements under Rowan's Law are two-fold.

First, there may be a concern that while these codes of conduct and protocols are mandatory, the specific requirements are not defined in the legislation. Without specific requirements, “sport organizations” may lack direction regarding what their concussion codes of conduct and removal-from-sport/return-to-sport protocols should include.

For comparison, school boards can reference the Ontario Physical Health Education and Association (“OPHEA”) Physical Education Safety Guidelines³³ and Policy/Program Memorandum (PPM) 158 for guidance.³⁴ A “sport organization” may similarly have overarching bodies that dictate concussion policies for athletes. However, other organizations – and particularly those in rural or remote parts of Ontario – may have difficulties accessing appropriate policies to develop concussion codes of conduct and removal-from-sport/return-to sport protocols.

Furthermore, any one sport activity could have multiple policies with different levels of detail and different requirements. There is no specific indication in Rowan's Law as to what constitutes a template or minimum standard for concussion codes of conduct and removal-from-sport/return-to-sport protocols.

Second, there may be a concern that although designated “persons” will be responsible for making decisions about whether an athlete will be removed from or returned to sport, there is no indication of who will be qualified to make these kinds of decisions under Rowan's Law. Decisions about removal from sport and return to sport will likely (and appropriately) be made by persons with different training and education at different times. For example, a coach might decide to remove an athlete from a game, while a general practitioner or specialist might decide to return an athlete to the sport. There is a potential concern that without further direction from the Legislature, decisions may be made by persons without the appropriate competence to do so.

Potential for Civil Liability

Overall, there could be questions about whether the provisions of Rowan's Law, by themselves, act as a potential basis for civil liability. In other words, could there be an argument that a specific “sport organization” should have complied with Rowan's Law because they knew about its coming into force and that the provisions might ultimately apply to them? Should the “sport organization” have taken anticipatory steps by drafting concussion management protocols?

An athlete could allege, for example, that they sustained a further concussion because their “sport organization” did not remove them from play after an initial concussion. The athlete could further argue that the “sport organization” should have anticipated that Rowan's Law would apply to them and, even in the absence of regulations, developed a removal-from-sport protocol (in this example).

Nonetheless, the problem is that “sport organizations” in some parts of the province may not know that Rowan's Law could apply to them. Furthermore, these organizations may not know how to comply with the legislation until the regulations are in place. Finally, these “sport organizations” might not have the resources to develop concussion management protocols in the meantime.

These questions and concerns will be of particular interest to insurers and brokers involved with coaches, parents/guardians, and sport organizations. Rowan's Law and its regulations may impact on the risks that insurers are asked to underwrite. Insurers and brokers may have further questions of what steps can be taken to prepare for the coming into force of the remaining section of Rowan's Law and its regulations.

Ultimately, coaches, parents/guardians, and sport organizations will have a better idea of the obligations imposed on them by Rowan's Law and consequently, the potential for civil liability, once regulations are enacted. In the meantime, there are anticipatory steps that these persons and entities can take to protect themselves. These steps are likely to act as a yard stick for best practices in concussion management until the above-mentioned regulations are enacted. Nonetheless, there could be some parts of the province that may not have the resources to develop concussion management protocols in the interim. This lack of resources should be considered when protocols are being developed and is something that the Lieutenant Governor in Council will have to address when drafting the regulations.

Developments in the Legislation and Potential Regulations

Current Status of the Legislation and Regulations

On September 26, 2018, Ontario commemorated its first “Rowan's Law Day”. The Ministry of Tourism, Culture and Sport (“the Ministry”) encouraged Ontarians to celebrate by promoting concussion safety through Twitter, Facebook, and Instagram.³⁵ Public figures such as Eric Lindros and Lisa McLeod (MPP), both of whom contributed to the Rowan's Law Report, participated in the occasion by tweeting with #RowansLaw.³⁶

Overall, these Rowan's Law initiatives are focused on increasing awareness about Rowan's story and the concussion safety legislation in her name. This thrust reflects the fact that most sections of Rowan's Law have not come into force, pending further stakeholder consultation. In particular, the provincial government is still in the process of seeking public input on the regulations to Rowan's Law.

The previous provincial government requested public input on the regulations in March 2018. Individuals and organizations in the Ontario sport, education, health, and municipal sectors were invited to provide suggestions on the content of the regulations until May 7, 2018 (“the Consultation Proposal”).³⁷ According to the Consultation Proposal, the government will review these comments and use them to determine how to implement Rowan's Law and the responsibilities of “sport organizations” under the regulations. The government will then post draft regulations on the Regulatory Registry and seek additional feedback from public members and stakeholders.³⁸

To date, no draft regulations have been published to the Regulatory Registry. In September 2018, the Ministry reported receiving “hundreds of submissions” that were under review and would “inform the development of the [Rowan's Law] regulations.”³⁹ The Ministry did not indicate when drafting of the regulations would begin, or when these regulations would ultimately take effect.⁴⁰ However, the provincial government has indicated that “sport organizations” will have sufficient time to assess and implement new requirements before Rowan's Law and the final version of the regulations come into force.⁴¹

Concussion Safety Initiatives – Provincial Level

Although there are no regulations in place, there have been several initiatives at the provincial level that pre-empt the requirements outlined by Rowan's Law. These initiatives represent a “tuning up” of current protocols in advance of what may become the formal requirements underthis legislation.

On their “Concussion in Sport” web page, the Ministry has a link to their Sport Recognition Policy (“The Policy”). Published in 2016, the Policy requires all recognized provincial and multi-sport organizations to have protocols on concussion management and return-to-play.⁴² The requirements apply to organizations formally recognized by the Ministry as the governing body of a sport in Ontario (e.g., Skate Ontario or Rugby Ontario). The specific requirements include an emergency medical plan removal from physical activity, notification of all affected parties (e.g., parents, coaches, and officials), medical examination, and a medically supervised and individualized return to play plan.⁴³ Overall, the Policy is likely to be a useful benchmark for the relevant organizations to develop their concussion protocols, at least until the Rowan's Law regulations come into effect.

Another useful benchmark pending the enactment of the regulations will be the Canadian Guideline on Concussion in Sport (“the Guideline”). The Guideline has been developed by Parachute Canada and its Concussion Expert Advisory Committee to ensure that athletes with suspected concussions receive timely and appropriate care, as well as proper concussion management to facilitate their return to sport.⁴⁴ The content of the guideline is based on current scientific evidence and expert consensus on the evaluation and management of sports-based concussions, as per the Berlin Consensus Statement on Concussion in Sport. The seven key areas of focus are:

• Pre-season education
• Head injury recognition
• Onsite medical assessment
• Medical assessment
• Concussion management
• Multidisciplinary concussion care
• Return to sport⁴⁵

In the education field, OPHEA developed a Rowan's Law Day Toolkit to help teach students about the legislation and the importance of concussion awareness. OPHEA also updated its Concussion Protocol and Implementation Tools in September 2018 ("the Protocol").⁴⁶ The Protocol is a minimum standard developed with Parachute Canada and also aligns with the Berlin Consensus Statement on Concussion in Sport, which includes the most current evidence on the prevention, recognition, assessment, and management of sports-related concussions.⁴⁷ The 2018 changes include revised and expanded versions of the following:

• Concussion Protocol: Prevention, Identification, and Management Procedures
• Sample Tool to Identify a Suspected Concussion
• Sample Documentation of a Medical Assessment
• Sample Documentation for Concussion Management – Home Preparation for Return to School (RTS) and Return to Physical Activity (RTPA) Plan⁴⁸

The revised OPHEA protocols and tools will likely act as a benchmark for school-based concussion protocols until the Rowan's Law regulations come into effect.

Concussion Safety Initiatives – Federal Level

On October 5, 2018, the House of Commons Standing Committee on Health established the Subcommittee on Sports-Related Concussions in Canada (“the Subcommittee”). The Subcommittee will develop recommendations on how to better protect athletes from concussions and to make sports safer for youth in Canada.⁴⁹ The Subcommittee is now in the process of hearing oral submissions from various stakeholders, including professional and amateur athletes, parents of athletes, sports organizations, and medical professionals.⁵⁰

The submissions so far have focused on topics including the following:

• Changing the culture around concussions, player accountability, better training for coaches, and the role of sports organizations in implementing change;
• Enforcement of concussion protocols and examples of current protocols and training;
• Challenges experienced by rural athletes;
• Timelines and resources for seeking medical treatment (including sport specific care), the role of diagnostic imaging in concussion identification, support systems and information sharing in the medical community (including bridging gaps in understandings of concussions); and
• Education on concussions and general concussion awareness.⁵¹

A report on the Subcommittee's findings is expected in June 2019.⁵² We anticipate that the report may inform the Rowan's Law regulations (in addition to the submissions already received on those regulations). In the alternative, the report may inform federal legislation for concussion safety, including potentially the requirement that each province has its own concussion safety legislation. So far, Ontario is the only province to have such legislation with Rowan's Law. Manitoba attempted to pass similar legislation with the Concussion in Youth Sport Act in 2017, but the bill did not pass its first reading.⁵³

Conclusion

Sport organizations (generally speaking) should be aware of the enactment of Rowan's Law and monitor the coming into force of its sections and any associated regulations. Steps should be taken to develop a concussion code of conduct, as well as protocols for removal-from-sport and return-to-sport. Sport organizations who already have concussion codes of conduct and protocols should review the same to ensure compliance with Rowan's Law, as well as minimum standards such as the Canadian Concussion Guidelines and the Ministry's Sport Recognition Policy (if applicable).

Coaches and parents/guardians should know also know about Rowan's Law and the potential responsibilities imposed by the legislation, namely to review “concussion awareness resources” and concussion codes of conduct.

In addition, insurers of sport organizations and individuals (such as coaches, parents, and guardians) should be aware of the insurance-related issues that Rowan's Law may potentially create. The legislation, along with any associated regulations, will impact on the risks that insurers are asked to underwrite, the breadth of those risks, and the claims that may arise from injuries in amateur sport.

Footnotes

1 Vicki Hall, “Rowan's Law”, The National Post

2 Stringer (Re), 2015 CanLII 65870 (ON OCCO).

3 Rowan's Law Advisory Committee, Creating Rowan's Law: Report of the Rowan's Law Advisory Committee (Toronto: Minister of Tourism, Culture and Sport, 2017), online: Minister of Tourism, Culture, and Sport at 3 [“the Rowan's Law Report”].

4 Supra note 2.

5 Ibid.

6 Rowan's Law Advisory Committee Act, SO 2016, c 11.

7 Supra note 3 at 53-64.

8 Supra note 6, s 2(5).

9 Supra note 3 at 4.

10 Ibid.

11 Bill 39, The Education Amendment Act (Concussions), 2012, 1st Sess, 40th Leg, Ontario, 2012.

12 Ibid.

13 Bill 193, Rowan's Law (Concussion Safety), 2017, 2nd Sess, 41st Leg, Ontario, 2017.

14 The change related to how often the Minister must publish a report regarding the implementation of Rowan's Law, a topic that will not be discussed in this paper.

15 Rowan's Law (Concussion Safety), 2018, SO 2018, c 1. Note that "2018" replaced "2017" in the title of the legislation to reflect the year in which this legislation passed.

16 Ibid, s 5.

17 Ibid, s 9(2).

18 Ibid, s 1. Note that the word "prescribed" means prescribed by the regulations.

19 Ibid, s 2(1).

20 Ibid, s 1.

21 Ibid, s 2(2).

22 Ibid, s 3(1).

23 Ibid, s 3(2).

24 Ibid, s 3(3).

25 Ibid, s 4(1)(a).

26 Ibid, s 4(1)(b).

27 Ibid, s 4(1)(c) and (d).

28 Ibid, s 4(2)(b).

29 Ibid, s 4(2)(c).

30 Ibid, s 4(2)(d) and (e).

31 Ibid, s 2(4) and 3(5).

32 Ibid, s 2(3) and 3(4).

33 Ontario Physical Health and Education Association, Ontario Physical Education Safety Guidelines (Toronto: Ontario Physical Health and Education Association, 2017)

34 Ontario, Ministry of Education, Policy/Program Memorandum No. 158 (Toronto: Ministry of Education, 2014).

35 Ontario, Ministry of Tourism, Culture, and Sport, Rowan's Law Day (Toronto: Minister of Tourism, Culture and Sport, 2018), online: Minister of Tourism, Culture, and Sport.

36 Megan Gillis, “Concussion awareness events mark first Rowan's Law Day”, The Ottawa Citizen.

37 Ontario's Regulatory Registry, Consultation â€" Potential Regulations for Rowan's Law (Concussion Safety, 2018) (Toronto, Queen's Printer for Ontario, 2018).

38 Ibid.

39 Emmett Shane, “Why Rowan's Law has a long way to go to tackle to teen concussion ‘epidemic'”, CBC News.

40 Ibid.

41 Supra note 37.

42 Ontario, Ministry of Tourism, Culture, and Sport, Concussion in Sport (Toronto: Minister of Tourism, Culture and Sport, 2018), online: Minister of Tourism, Culture, and Sport.

43 Ontario, Ministry of Tourism, Culture, and Sport, Sport Recognition Policy for Provincial Sport Organizations (PSOs) and Multi-Sport Organizations (MSOs) (Toronto: Minister of Tourism, Culture and Sport, 2016), online: Minister of Tourism, Culture, and Sport.

44 Parachute Canada, “Canadian Guidelines on Concussion in Sport”, Parachute Canada.

45 Ibid.

46 Ontario Physical Health and Education Association, Rowan's Law Day Toolkit Now Available! (Toronto: Ontario Physical Health and Education Association, 2017).

47 Ontario Physical Health and Education Association, Summary of Changes in the Ontario Physical Education Safety Guidelines Concussion Protocol (OPESGCP) & Implementation Tools (Toronto: Ontario Physical Health and Education Association, 2017).

48 Ibid.

49 Canada, Parliament, Standing Committee on Health, House of Commons Standing Committee on Health Establishes a Subcommittee to Examine How to Better Protect Athletes and Youth from Sport-Related Concussion (Ottawa: Standing Committee on Health, 2018), online: House of Commons.

50 Ibid.

51 Canada, Parliament, House of Commons, Subcommittee on Sports-Related Concussions in Canada, Minutes of Proceedings and Evidence, 42nd Parl, 1st Sess, (21 November 2018); Canada, Parliament, House of Commons, Subcommittee on Sports-Related Concussions in Canada, Minutes of Proceedings and Evidence, 42nd Parl, 1st Sess, (28 November 2018).

52 Supra note 49.

53 Bill 37, The Concussion in Youth Sport Act, 2nd Sess, 41st Leg, Manitoba, 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.