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 GowlingWLG.com

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