On March 15, 2012, two recreational hockey teams in Ottawa squared off for one of the last games of the season. The game was intense and in the closing minutes, the Pirates were leading the Tiger Cats 5 to 3. With less than one minute to play, a Tiger Cats player entered the Pirates’ zone with the puck with pressure from a Pirates’ player. The two players fell allowing Drew Casterton, a Pirates defenseman, to take possession of the puck in his own zone. Casterton skated around the back of his own net, likely with the intention to carry the puck out of his team’s zone. Gordon MacIsaac, a player on the Tiger Cats, charged at Casterton a landed a hit.

The hit occurred with 47 seconds left in the game. Casterton lost consciousness and collapsed to the ice. MacIsaac was sent off and given a 10-minute penalty for gross misconduct and a few minutes later, given another 7-minute penalty for intent to injure. Casterton was transported to a hospital via ambulance and MacIsaac was charged with assault.

The entire play likely took less than ten seconds to develop but what resulted was two criminal trials (a conviction that was later overturned on appeal), eight years of civil litigation and a 54-page Superior Court decision with a judgment of over $700,000.00 awarded to Casterton.

A Look at Hockey Litigation

Hockey is synonymous with life in Canada, making it no surprise that it has been the subject of litigation in the past. Some might think that hockey is inherently dangerous and therefore players agree to take on the risks when they step onto the ice. After all, the sport is premised upon strapping sharp metal blades to one’s feet while shooting unforgiving rubber pucks through time and space at rapid speeds (what could go wrong?). Despite the dangers, there has to be an upper limit of risk one assumes in any activity or chaos that would ensue. The central question is how much risk are you agreeing to take on?

Firstly, we should make a distinction between professional hockey and so-called “beer leagues”. Professional hockey is a full contact sport. Within certain parameters, players are allowed to land body checks, which would otherwise be considered assault in everyday life. But it is not assault on the ice because those players have willingly consented to the contact and assumed the associated risks. This is no doubt incentivized by hefty paycheques. If private citizens were paid as well as NHL players, you might see a lot more hip checks in the local grocery store.  

This is compared to local recreational leagues where players of all skill levels come together for exercise and social time. Recreational leagues typically have rules that prohibit physical contact like body checking. However, since hockey is an inherently physical sport, one can still expect incidental contact and players therefore still assume some risk of injury.

Canadian courts have previously assessed how much risk a player assumes in recreational sports. Earlier decisions held that hockey players assume risk of physical harm as soon as they step on the ice. Therefore, in order to recover damages a plaintiff had to establish that the other player deliberately set out to injure him/her (a difficult burden). See, for instance, the Manitoba case Agar v. Canning (1965).

In 1994, a BC court imported the idea of negligence into the mix – see Unruh (Guardian ad litem of) v. Webber. The court found that the appropriate analysis was to determine what a reasonable competitor would do in the circumstances of the particular game in question. The court found that there does not need to be an intent to injure or a reckless disregard. Rather, it must be established that the conduct of a party fell outside of what a reasonable competitor would do. However, who is this “reasonable competitor” and where do we go to meet him?

In a 2015 Ontario case, Kempf v. Nguyen, the court commented that in hockey, a player has to assume some risk of injury from bodily contact, even if it’s intentionally inflicted. This stands to reason considering that body checking is a part of the game and a player can receive a penalty for it. However, conduct becomes unacceptable only when it is malicious, out of the ordinary, or beyond the bounds of fair play. In the same year, another Ontario court finally concluded that negligence is the applicable standard to hockey – see Levita v Crew (2015). The court observed that players implicitly consent to the risk of injury inherent to a fast-paced and sometimes physically violent sport, including serious injury from bodily contact with another player. However, the consent is not unlimited – we do not accept risk of injury from conduct that is malicious, out of the ordinary, or beyond the bounds of fair play.

If conduct is intentionally malicious, the liability analysis ends and the at-fault party is held liable for any injuries. However, if the conduct is simply out of the ordinary or beyond the bounds of fair play, the court must assess other factors like the type of league, the level of play, the applicable rules, and the nature of the game at hand.

Casterton v. MacIsaac

In the present case of Casterton v. MacIsaac, the court set out to determine if MacIsaac was liable for Casterton’s injuries and, if so, the level of Casterton’s damages. By way of background, this game took place as part of the Ontario Senior Men’s Hockey League. It was considered a “beer league” although many of the players were former Carleton University players in their late twenties. Most of the participants played hockey since their childhood in either house league or competitive leagues. Generally, the players were talented and had some experience. The league was recreational in nature, the rules prohibited blindside hits, and body checking was considered a major penalty.

The court assessed the subject play in detail with testimony from nearly ten individuals, which included members of both teams and the referee. The court identified many inconsistencies in the evidence presented and credibility issues with some witnesses. However, after a lengthy analysis, the court concluded that in the moments leading to the hit, Casterton was in possession of the puck skating at a moderate speed behind his own net. MacIsaac was skating very fast towards Casterton on a slight diagonal trajectory in his blind spot. This was not a head-on collision where Casterton could anticipate the hit; however, MacIsaac anticipated the hit, braced himself, and positioned himself in a way calculated to injure Casterton. The court found that MacIsaac deliberately tried to hurt Casterton by approaching him from an angle he could not see.

The court noted that if it was wrong in identifying MacIsaac’s actions as deliberate or reckless, MacIsaac also failed to meet the standard of care applicable to a hockey player in the circumstances of this case. In other words, he did not act as a reasonable hockey player would in the circumstances. MacIsaac was held liable for $702,551.00 in damages: general damages in the amount of $63,000.00 (originally $100,000.00), $199,512.00 in past lost income, and $440,039.00 in future income loss.

Takeaway

Some sports are inherently dangerous and participants have to assume some risk of injury, even when there are rules in places to prevent intentional acts that may cause injury. Skiing, for instance, is an inherently dangerous sport that exposes the owner/occupier of the property (i.e. Blue Mountain) to a lawsuit. However, these owners can shift the liability to the skier by getting them sign a waiver (see: Waiver On: The Court of Appeal confirms the validity of Waivers). In sports where another person’s conduct can cause significant injury, that liability cannot be shifted. Where a person’s conduct has malicious intent or goes beyond the bounds of fair play, the hurt individual can seek monetary compensation. However, what is considered acceptable will depend heavily on the circumstances surrounding the incident. If the situation described above occurred in the NHL, it is quite unlikely that litigation would result (see: Video: Tkachuk v Kassian).

From deliberate acts to injure to a standard of negligence, the law in Ontario surrounding hockey has been developing for decades. Currently, the moral of the story is if you are looking to be the enforcer on your team at the next game of shinny, act like a reasonable hockey player or be sure to have at least $700,000.00 in the bank account.

See: Casterton v. MacIsaac, 2020 ONSC 190 (CanLII)

Stas Bodrov

Once the target of an unsuccessful phishing scam, Stas is a key part of SBA’s cyber liability and privacy group providing services ranging from assessments and prevention to crisis response.

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