February 02, 2017
Those who have watched or participated in a hockey game will know that rough play is an inherent risk of the sport. What constitutes an inherent risk in hockey if not an illegal check from behind? Are all illegal manoeuvres that violate the rules of the league tortious? What mental element must be present for liability to attach? How do these factors determine the availability of insurance coverage? Each of these questions will be addressed.
With the government's stated intention to legalize marijuana, and the current challenge with policing these new businesses, dispensaries and vapour lounges can now be found in many urban and suburban areas. While many of these cater to individuals with needs for medicinal marijuana and require prescriptions before dispensing, some dispensaries and vapour lounges are less scrupulous when selling marijuana or marijuana-based products to their customers.
Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.
In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.
The law recognizes that large groups of people who are drinking, even in moderate quantities, can become rowdy and pose a danger to patrons of establishments that serve alcohol (though the definition of “moderate” drinking differs from person to person, especially in a country like Canada where we often swell up with national pride at the sight of beer commercials). As a result, taverns are obliged, under the Occupier's Liability Act1 to take reasonable steps to monitor the premises and to take positive steps to intervene to prevent fights if such incidents are reasonably foreseeable.
June 01, 2016
In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario's history.
April 25, 2016
In Jensen v. Fit City Health Centre Inc., the plaintiff, who was a member of the defendant’s gym, was injured while using a shoulder press machine caused by the defendant allegedly allowing the machine to exist in a defective condition. At trial, the jury found that the defendant was not negligent and, therefore, not liable for the plaintiff’s loss. Following the completion of the trial, the Court was tasked with making a determination on the validity of a waiver entered into between the plaintiff and the defendant that was contained within the gym’s membership agreement and associated membership renewal documentation.
Occupiers have a duty to ensure that the facility where the sporting event is held is reasonably safe. It is important to note that the standard of care is based on foreseeable risk, which is to be distinguished from an absolute guarantee of maintaining a completely risk-free environment. In determining whether an occupier has in fact discharged its duty, a court will take into consideration the nature of the sporting event, any inherent risks, and whether the spectator can foresee those risks. The trier of fact may also rely on expert testimony to provide information regarding the industry standard for safety precautions in a given sport.
November 25, 2015
This paper will set out the common law defences available to a resort, its owners, and its insurers, when a patron is injured on their premises. Secondly, it will explore and discuss aspects of tavern liability and its application to resorts. Finally, this paper will provide several recommendations that resorts can enact to assist in limiting their exposure to liability.
November 25, 2015
With the increased frequency of travel outside province and country, comes a corresponding increase in activity-related injuries. These can result in lawsuits for injuries sustained abroad. Managing where lawsuits may be commenced becomes a source of concern for those involved in the travel industry, such as resort and tour operators and their insurers. Ontario hotel and resort operators may therefore unknowingly find themselves being named as defendants in actions commenced outside of Ontario. This will cover, how it happens, how to challenge it, and managing location in the future.
October 27, 2015
The Superior Court of Justice of Ontario recently released a decision that provided additional comments on the efficacy of waivers and the development of waiver defences in Ontario.
In Trimmeliti v. Blue Mountain Resorts Limited,1 decided by the Honourable Mr. Justice Dunphy, the plaintiff, a season pass holder, was night skiing with friends on the defendant’s premises when he collided with a fluorescent orange mesh ribbon that was used to close a run. As a result of this collision, the plaintiff suffered a fractured clavicle...
The Ontario Superior Court of Justice recently examined the effectiveness of a signed waiver as a full defence in the context of injuries sustained during recreational sports play in Levita v. Alan Crew et al.
In this case, the plaintiff, Robbie Levita, was a player on a recreational hockey team in a league operated by the defendant, True North Hockey Canada (“True North”). Of note, this was a “no-contact” recreation league, which means body checking was prohibited. During the course of a game, the plaintiff suffered a fractured tibia and fibula as a result of being checked from behind into the boards by the defendant.
Sport and recreational activities invite a certain type of participant. Typically, these participants are committed to the activity they are taking part in and, in most cases, have a drive to be the best at that activity. However, what if during the course of taking part in an activity, the participant suffers an injury?
This paper will present strategies that can be employed by defendants in shifting the cause of the plaintiff’s injuries back onto the plaintiff themselves.
Today the Ontario Court of Appeal released its long-awaited decision inMoore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.
May 30, 2014
Sports have long been a part of everyday life for many people, both as spectators and participants. With modern advances in science the true inherent dangers of many of these sports are finally being examined, specifically with regard to concussions. Recent studies have revealed an alarming prevalence of concussions and other head injuries suffered by athletes in contact sports that are played all over the world, such as football, hockey, rugby and soccer. The results of these studies have brought much attention to the laws, rules, and regulations governing the conduct of athletes, coaches, trainers and other key personnel when a potential concussion has been experienced. Due to the possibility of serious and permanent injuries occurring on the field, diamond, rink or other, the potential for high value litigation is ever present.
