McLeish Orlando shares why a recent ruling on a rec-league injury provides the playbook for success in sports-related injury cases
A January ruling from the Ontario Superior Court has set a firm line for likely success in personal injury suits emerging from rec sports leagues.
In the case of Casterton v MacIsaac, Justice Sally Gomery ruled that Drew Casterton was entitled to $700,000 from Gordon MacIsaac after MacIsaac body-checked Casterton in a 2012 non-contact beer league game in Ottawa. She cited, as well, the case of Levita v Crew where the justice ruled a player was not liable for an injury caused. Joseph Cescon, partner at McLeish Orlando LLP, told Canadian Lawyer that these two cases now set a clear delineation as to what rises to the standard of unacceptable conduct.
“If you’re a personal injury lawyer and you're approached about a case involving one of these adult hockey leagues…you should spend some time and carefully consider the factual matrix to see whether or not this potential client may have a right of action and that's consistent with both this decision and Levita and Crew,” Cescon says.
He thinks the ruling was clear in establishing that an implied consent exists in hockey, even in rec leagues, but that hits like the one MacIsaac put on Casterton are outside the bounds of reasonable and competitive play. Rather than limiting participation in these leagues by introducing liability, Cescon thinks the ruling will introduce greater safety and recourse into the game without destroying the competitive spirit.
The judge found that MacIsaac skated at Casterton at high speed with the intent to hit him. She found that the hit amounted to “blindsiding” which is outside of what might be expected in a non-contact league. Casterton suffered a serious concussion and long-term injuries from the hit.
"He has never returned to the life he enjoyed prior to the March 15, 2012, game," Justice Gomery wrote in her ruling.
With Casterton and Levita now setting the lines, Cescon sees two major issues with these cases in future, including the sports injury cases McLeish Orlando consults on and pursues: waivers and competition.
“These leagues are going to require you to sign a waiver,” Cescon explains. “A correctly crafted waiver can be quite a significant hurdle in terms of pursuing any kind of claim, even if there is injury.”
He also acknowledges that almost any sports league comes with the risk of unintentional contact, and even intentional contact, as part of a competitive match. The risks inherent in such a competition can pose enough of a challenge to personal injury lawyers that they still might not want to pursue these cases.
Following the Casterton ruling, though, Cescon thinks there’s a clear standard for when the duty of care has been violated. It’s a “clear codification” of the behaviour that will help a lawyer pursue these claims.
That behaviour, Cescon agreed, amounts to naked aggression with reckless harm beyond any reasonable competitive motivation.
The particulars of the case, as well, have lessons for personal injury lawyers. Cescon noted that the claim benefitted from a criminal investigation after the hit, which resulted in a charge against MacIsaac. He says that in pursuing these cases, it’s crucial for a lawyer to collect as much evidence as possible from both teams, the referee, and any other witnesses as soon as possible.
“As with any sporting event, the angles change and people’s views change,” he says. “You’re going to need to establish that this was not part of regular gameplay. You want to be really diligent in your investigation of the facts at the outset.”