Canada: Sports And Recreation: Risk Mitigation And Occupiers' Liability

A softball player trips over a divot on the ground. A child's hand gets caught in a rope during a tug-of-war game. A dumbbell rolls across a gym floor and hits someone's foot.

Sports and recreation facilities have obligations to their users. The facility owner, operator and team renting the premises must all take reasonable care to ensure that the individuals who enter are safe while on the premises. This duty extends across the premises (the rink to the changing rooms) and over the activities (fitness classes to football games). The duty is not limited to active participants (e.g. players) and can extend as far as trespassers.

Who is an "occupier"?

In Ontario, the occupiers' duties towards people who access their premises is governed by the Occupiers' Liability Act ("OLA"). The OLA defines an "occupier" as:

a. A person who is in physical possession of premises, or

b. A person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.

There can be multiple occupiers at any given time and each can be liable to individuals who access the facility.

To whom do occupier's owe a duty?

Section 3(1) of the OLA states that an occupier of premises owes a duty to individuals entering the premises. Occupiers should be aware that everyone who enters their facility could seek to impose liability, including those who were not invited. In the sports and recreation industry, there are two main categories:

  • Players: This category includes those who are directly involved in a sport or recreational activity, such as soccer player or a gym member.
  • Spectators: This category includes those watching the activity, as well as less-obvious spectators, such as a passerby or even a trespasser.

Exceptions to the general duty

The general duty under the OLA has a few exceptions:

  • Known or obvious risks: The general duty does not extend to obvious risks, which a reasonable person should know to avoid. The law is clear that the OLA does not impose strict liability on the occupier, and accidents can occur without anyone being negligent. Section 3(1) of the OLA provides that an occupier of a premises only owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
  • Exclusion of liability clauses: The general duty can be limited by the occupier. Section 3(3) of the OLA permits an occupier to "restrict, modify or exclude" the general duty set out in section 3(1). The effectiveness of such exclusionary clauses is case-dependent. The language must be clear enough to capture the injury claimed - a general release purporting to protect an occupier against claims for damages is insufficient. Under section 5(3) of the OLA, an occupier is also required to "take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed." What is considered "reasonable steps" depends on the facts of each case.
  • Risks willingly assumed: The general duty does not extend to risks willingly assumed by people who enter the occupier's premises. Section 4(1) of the OLA provides for a lower standard than the general duty. To "assume a risk" means to know of the risk and consent to it. However, the occupier has the duty not to create a danger or act with reckless disregard of the presence of the person or his or her property.

The court's recent take on occupiers' liability in fitness facilities

The Ontario Superior of Justice recently considered the duties of an occupier pursuant to sections 3, 4 and 5(3) of the OLA. In Hosseinkhani v QK Fitness Inc ("Hosseinkhani"), the plaintiff was a 59 year-old woman who tripped on a dumbbell while attending a fitness class at the defendant's facilities. This class required the use of two dumbbells and a low step. The plaintiff used a pair of circular dumbbells. When she no longer needed the dumbbells, she placed them on the floor, to her right. The plaintiff believed that one of the dumbbells rolled from its original position and she stepped on it and fell. The plaintiff sought $5 million in damages.

The defendant brought a motion for summary judgment on the basis that the plaintiff's membership agreement contained an exclusion of liability clause and that the plaintiff was the author of her own misfortune for failing to place the round dumbbell she was using in an upright position. The Court granted the defendant's motion for summary judgment and dismissed the plaintiff's action.

The exclusion of liability clause

The Court acknowledged that the Ontario Court of Appeal had confirmed the ability of occupiers of premises to obtain waivers of liability pursuant to section 3 and 4 of the OLA. The Court cautioned that occupiers were required to take reasonable steps to bring this permitted exclusion of liability to the attention of the person signing the agreement under section 5(3) of the OLA. The Court indicated that reasonable steps included headings indicating to "Please read carefully" or "Warning" set out in bold font or red font or surrounded by a frame.

In the present case, the Court observed that nothing drew the attention of the person signing the agreement to the exclusion of liability clause. Furthermore, the Court noted that the defendant failed to adduce any evidence that reasonable efforts were made to draw the plaintiff's attention to the exclusion clause at the time she signed the agreement. As a result, the Court held that the motion could not succeed on this basis.

Known or obvious risks

The Court indicated that the defendant was not required to instruct the plaintiff on how to use dumbbells since they are not a complicated exercise machine that require instruction on proper use and safety. The Court held that the risk that a round dumbbell might roll is obvious and that an occupier has no duty to warn an adult about obvious risks. As such, the Court granted the motion on this basis.

How to mitigate your risks

Risk mitigation involves three steps: identifying the risks, evaluating their potential impact and determining what measures to implement in order to address the risks.

  1. Identify: there are various techniques that can be used to assist in identifying risks. While this seems like a simple process, it is often considered the most important. If you fail to identify a potential risk, you cannot evaluate or plan for it. Gathering input from all levels of your organization, from fitness instructors to maintenance staff to the CEO is important. Then consider all types of risks you may be faced with - from strategic, to financial, to operational, to hazard risks. Once identified, then consider how each risk can compound - for example, a tornado hitting your facility (hazard risk) could result in reduced cash flow and increased expenditures (financial risk) and an inability to offer services (operational risk).
  2. Evaluate: Once your risks are identified, each must be evaluated to determine the likelihood of the risk materializing and the impact it could have.
  3. Plan: Will you purchase additional Occupiers' Liability Insurance, will you implement new policies and procedures, will you retain legal counsel to draft new waivers? Once you understand your risks, you can plan for them.

The best way to reduce liability and exposure from occupants is to understand your obligations as an occupier and plan for prevention and management.

Read the original article on

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
McCague Borlack LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McCague Borlack LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions