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February 2017

Inherent Risks in Hockey: Recent Developments in the Law

James Tomlinson
James Tomlinson,


By Jim Tomlinson
First presented at a Sports Liability Seminar


Those who have watched or participated in a hockey game will know that rough play is an inherent risk of the sport. Most amateur leagues permit checking, which means that players are often subject to blows and collisions in the course of play.2 However, players are taught from a young age how to minimize injury when checking and to never check from behind. Checks from behind, which can cause concussions and spinal cord injuries, are banned by the Canadian Amateur Hockey Association ("CAHA").3

Despite the ban, illegal checks still happen and cause injury to players. What is the liability picture in cases where a player receives an illegal check from behind and is rendered quadriplegic? Is this type of blow an inherent risk of the game, or a tortious act on which the courts must adjudicate? As one commentator writes, "hockey is a simple game — put the puck in the net"4 Quips notwithstanding, the question of whether on-ice hits can lead to civil liability for players and leagues is far from simple.

On February 1, 2016, the Superior Court of Quebec released its decision in Zaccardo v. Chartis Insurance Company of Canada.5 The court awarded Andrew Zaccardo $8,000,000 in damages for life-changing injuries he suffered as a result of an illegal check from behind by the defendant, Ludovic Gavreau-Beaupré. The judge concluded that Zaccardo's injuries were caused by a high speed rear check and such a check did not fall within the inherent risks of the game.6

The decision in Zaccardo stands in contrast to the Ontario Superior Court's 2015 decision in Levita v. Crew and True North Hockey,7 which also involved a serious injury caused by an illegal hit, but, in that case, the judge found no liability on either the player or the league because such a hit was part of the fundamental risks of the game.

These two cases can be distinguished from each other because of two factors: (1) the circumstances of the league, and (2) the quality of the evidence with respect to the hit.

These two decisions invite a number of questions about sports liability in Canada. 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 below.

Participant Liability: The Different Types of Tortious Acts

Different types of blows and collisions will arise in the course of any hockey game. Incidents can range from minor scuffles to serious hits that cause concussions and spinal cord injuries. However, most incidents are not litigated unless an intentional or negligent act is thought to be involved. There is a basic principle in tort law that liability will only attach to a tortfeasor whose actions are negligent, reckless, or intended to cause loss. In hockey injury cases, this principle translates into two separate causes of action: the intentional tort of battery with or without assault and negligence.

Players often get into fights which, in any other context, would constitute a criminal offence.

Battery and Assault

The intentional tort of battery with or without assault is the more obvious cause of action in hockey injury cases. Players often get into fights which, in any other context, would constitute a criminal offence. However, there are nuances to battery and assault in the civil context that merit discussion.

Battery is defined as direct or indirect physical contact with another person, whereas assault is defined as the threat of contact or apprehension of battery.8 Despite their different manifestations, both involve an intention by the assailant to cause injury. In addition, the victim of the battery must not consent to the application of force. In hockey injury cases, there is an understanding that players impliedly consent to the application of some force. These incidents fall within the inherent risk of the game. Players therefore assume the risk that they may suffer injuries while playing hockey.9

The seminal case on battery and assault in sports is Agar v Canning.10 This case involved an on-ice fight that rendered the plaintiff unconscious. In finding the defendant liable for battery, the court noted that injuries inflicted with a "definite resolve" to cause serious harm "should not fall within the scope of implied consent".11 Implied consent can thus be defined by distinguishing the ordinary blows and collisions incidental to play from deliberate and unnecessarily harmful acts.12Overall, the decision affirms that an intentional blow or collision will not, on its own, attract liability. A defendant will only be found liable if his or her intentional act is coupled with an intention to injure another player.


In hockey injury cases, participant negligence can also attract liability. In general, negligence is defined as the allegation that the defendant failed to exercise due care towards the plaintiff, who is someone that the defendant could reasonably foresee as being affected by his or her conduct.13

The torts of battery and assault are dependent on the assailant intending to injure the victim. In the context of a hockey game, however, negligence can exist if the assailant intends to hit the victim, but does not intend to injure him or her.

In the recent case of Kempf v. Nguyen, Justice Laskin of the Ontario Court of Appeal held that the standard of care in negligence is that of the reasonable person in similar circumstances. These circumstances change based on the nature of the sport and, as we will see, the nature of the league.14 Briefly, Kempf v. Nguyen involved a non-competitive charity bicycle race on the Don Valley Parkway. Nguyen was at the back of the first peloton of riders and Kempf was at the front of the second. Kempf wanted to join the first group and edged up close to Nguyen's rear wheel. Suddenly, Nguyen swerved to the left and struck Kempf's front wheel with his rear. Kempf fell and sued Nguyen for his injuries.

The standard of care in Kempf v. Nguyen is consistent with the standard developed by the British Columbia Supreme Court in the case of Unruh v. Webber.15 The applicable standard of care is what a reasonable competitor would do in the same circumstances. The court held that "the circumstances" include speed, body contact, and the risk that players might reasonably be expected to assume.16The British Columbia Court of Appeal affirmed this analysis on the appeal of the Unruh decision and in the subsequent case of Zapf v Muckalt.17 In Unruh, the Court of Appeal also noted that injuries caused by illegal manoeuvre will be probative but not determinative of negligence.18

In response to a claim of negligence, a participant defendant can argue that the injury was part of the inherent risk associated with hockey. This defence operates on the idea that there are necessary and inevitable risks that arise from normal and reasonable practices inherent to the game. By participating in the sport, the plaintiff provides her or his implied consent to the application of force and must bear the costs associated with that risk.19

Overall, the question of liability in negligence turns on whether a particular injury falls within the inherent risk of hockey. Acts that fall outside the normal and reasonable practices of the game cannot constitute inherent risks and will attract participant liability. The two cases that will be examined straddle the line of the inherent risk defence. They have similar facts, but only one found liability.

Zaccardo and the Limits of the "Inherent Risk" Defence

As mentioned above, the Zaccardo case involved an

The defendant...argued that the check from behind...was an inherent risk of hockey and...should attract no liability.

illegal check from behind that rendered the teenaged plaintiff a quadriplegic.20

Although torts in Quebec are governed by the Civil Code,21 the trial judge referred to the common law standard in Unruh and Zapf to find the participant defendant liable in negligence. In particular, the trial judge noted that the standard of care is what a prudent and diligent player would do in the same circumstances. The trial judge also noted that a violation of the rules of the league is relevant to the consideration of negligence, but is not dispositive of liability.22

The defendant, Gauveau-Beaupré argued that the check from behind, though illegal, was an inherent risk of hockey and, therefore, should attract no liability. Gauveau-Beaupré argued that it was common for hockey players to break the rules and, as a result, Zaccardo must have expected that he could have been injured as a result of a check from behind.

The trial judge rejected this argument. He held that the fact that some players commit checks from behind in spite of the efforts of leagues and officials to eliminate such behaviour does not make such hits an "inherent risk" of hockey. The trial judge concluded that checks from behind cannot be an "inherent" part of hockey when the sport's governing bodies want to eliminate such manoeuvres. It would not make sense for officials to try to eliminate an inherent part of the game.23

The trial judge accepted that hockey is an inherently rough game, but noted that participants are entitled to assume that other players will take reasonable steps to avoid taking actions that may cause injury.24 The trial judge noted that Gauveau-Beaupré failed to take steps to reduce the potential harm that resulted from his actions. Specifically, he was skating far too quickly to make a safe hit, his arm was outstretched, and that he accentuated his speed by jumping before he delivered his hit. The trial judge concluded that Gauveau-Beaupré's hit was intentional, though not premeditated. He noted that Gauveau-Beaupré was a talented skater who had sufficient time and space to stop, change direction, or lessen the blow.25

It is interesting to compare the ruling in Zaccardo to the recent decision of Justice Firestone of the Ontario Superior Court of Justice in Levita v. Crew and True North Hockey.26 The plaintiff, Robbie Levita, was a 32 year old lawyer who took up recreational hockey in his spare time by joining the True North non-contact hockey league. He suffered serious injuries to his right leg after being checked, by the defendant Alan Crew. Levita claimed Crew intentionally or recklessly checked him into the boards from behind, in contravention of the rules of the league. Levita also claimed that True North knew or ought to have known that Crew was a dangerous player and that it failed to take adequate steps to protect the safety of its players.

There were discrepancies in the stories told by the witnesses about the incident. From the conflicting stories, Justice Firestone found that Crew made contact with Levita either from behind or the side seconds after Levita had cleared the puck.

Levita raises an interesting issue: to what extent is contact an inherent part of hockey in a "non-contact" league? To answer this, Justice Firestone cited extensively from case law. He cited Kempf v. Nguyen for the following proposition:

In hockey or basketball, for example, players have to assume some risk of injury from bodily contact, even contact intentionally inflicted or in breach of the rules of the game. A body check – even one that calls for a penalty–or contact fighting for a rebound in which the opposing player is called for a foul is part of the ordinary risk of each game. Conduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play.27

In Levita, Justice Firestone published a list (which I assume is non-exhaustive) of the inherent risks associated with hockey:

A hockey player assumes the risk that he may suffer injuries from acts by other players that occur in the course of play, i.e. for the advancement of the game, but are not intended to inflict injury.
A hockey player assumes the risk that he may suffer injuries from acts by other players that are in contravention of the rules of the game but are not intended to cause injury.

In some circumstances, a hockey player assumes the risk that he may suffer injuries at the hand of other players from acts that occur outside the course of play, i.e. not for any advancement of the game, if such injuries are not the result of recklessness (i.e. actions taken in an uncontrolled or undisciplined manner) or an intention to cause injury. In a fast-paced game like hockey, it is highly possible that an action may "begin" when the game is on, and that action may have been undertaken to advance the game. However, by the time the action is fully executed, the game may have stopped or the moment may have passed.

A hockey player never assumes the risk that he may suffer intentional or reckless battery by another player in a non-contact league. The degree of risk a hockey player assumes can also be assessed in light of the type of league itself and the level or style of play that normally takes place in that league. In St. Laurent, the court found that the defendant's actions justified the roughing call made by the linesman but did not fall below the standard of a reasonable competitor in his place, and wrote "in reaching that conclusion I have taken into account the nature of the match itself and the level of aggressiveness within the league" (at para. 40).

Justice Firestone applied the jurisprudence and held that hockey has the inherent risk of bodily contact, even in a non-contact league. He concluded that players assume the risk that they may be injured on the ice, even if the injuries are caused by hits that contravene the rules of the game. 

Given the quick series of events that occurred that day, Justice Firestone found that Crew intended only to get the puck from Levita, not to harm him. Instead, Crew performed the body check in order to advance the game. Crew's actions could have been reasonably expected by Levita, who had played in the league for ten years and knew how the games were played.

After finding Crew was not negligent, Justice Firestone found that True North Hockey League was also not negligent. He then added that, even if Crew had been negligent, True North had not. The league set out clear rules for play and penalties for the players who broke the rules. That was sufficient to meet the standard of care. True North was further protected by a waiver signed by Levita every year he played in the league, which explicitly laid out the risks of participation. Levita had been aware of the risks from that waiver, or if not, should have taken the time to understand them.

The opposite results in Zaccardo and Levita show just how difficult it is to predict the outcome of this nuanced area of the law. It is clear that all hockey players consent to some form of bodily contact, even if that contact causes injuries, and in most cases, if the contact occurred in contravention of the rules of the game.

One of the two fundamental differences between Zaccardo and Levita is the emphasis placed by the judge on the attitude and actions of the league with respect to the specific type of hit at issue. The trial judge in Zaccardo cited a number of publications from Hockey Canada and Hockey Quebec that expressed the desire of those organizations to eliminate rear checks from the game. The rules of the league indicated that a referee had the discretion to eject a player from the game if that player executed a rear check. Referees were instructed to not tolerate rear checks and to apply harsh penalties.

As we saw in Zaccardo, manoeuvres that can be punished...may not form an inherent part of the game of hockey.

In contrast, Justice Firestone noted that the True North "non-contact" league accepted some contact. Non-serious body checking, tripping, hooking, and slashing were all punishable with a two minute penalty.28 Justice Firestone noted that True North had a variety of procedures in place to monitor and punish players and teams that committed too many penalties, but it was clear from the evidence that True North accepted bodily contact as part of the game.29Justice Firestone noted that Crew was known as an aggressive player, but also found that Levita was also an aggressive player who had more penalty minutes than Crew. Levita's team also consistently had more penalty minutes than Crew's.30Justice Firestone essentially held that Levita must have consented to Crew's application of force because Levita was one of the biggest goons in the league.

The conclusion that we can draw from Zaccardo and Levita is that hockey is an inherently rough game and that players consent to bodily contact, even bodily contact that can lead to a penalty. Penalties are part of the game of hockey and players should not fear that they will be exposed to civil liability if they injure someone while playing the game in good faith. That said, there are limits to the inherent risks of the game. As we saw in Zaccardo, manoeuvres that can be punished with ejections, suspensions, or expulsion from the league, such as rear hits, may not form an inherent part of the game of hockey.

Use of Video Tape Evidence at Trial

One of the other distinguishing factors between Zaccardo and Levita was the quality of the evidence with respect to the hit itself and the sequence of events. In Levita, Justice Firestone heard from a number of witnesses about the nature of the body check and held that he could not determine with certainty whether the check was from the side or from behind. It is important to note that the True North hockey league penalized a check from behind more seriously than a check from the side.31

In contrast, the trial judge in Zaccardo had two versions of a video, one of which was altered by a professional videographer in order to add a halo around the defendant, zoom in on the action, slow the sequence down at points, and identify other details. The defendant objected to the admission of the altered video as evidence. The trial judge rejected this objection and placed great weight on the video evidence, spending 30 paragraphs dissecting the video.

The existence of this video was the crucial part of the ruling in Zaccardo. Without this video, it is possible the trial judge could have followed Levita and found that he could not be sure that the defendant had committed an illegal hit from behind. Likewise, Levita may have been differently decided if Justice Firestone saw a video of the hit.

The use of video evidence at trial is not without controversy. Like all evidence, a video can only be introduced as evidence if it is relevant and its probative value outweighs any prejudicial impact. Given the following risks, the risk of prejudice looms large over video evidence.

In an age of digital video enhancements and compressed files, it is very easy for video to be manipulated.32 Even where the video has not been manipulated to deceive the viewer, enhancements can unintentionally alter that viewer's perceptions. Where a video is too blurry or zoomed out to be useful without enhancements, it becomes necessary to alter the video. The more the video is enhanced, the less the video resembles its original source and, arguably, the less reliable it is as evidence.

Once a video is allowed into evidence, the video remains controversial because it may be given too much weight. Juries tend to remember the evidence they see, such as video, more so than they remember testimony.33 By effectively making the jury a witness to the events, a video can have a significant impact on a jury's decision-making. This is likely to result in the video being given more weight than other evidence. But should it?

Viewers of surveillance video have substantial limitations. They are watching a 2D image from the camera's point of view, not what actually happened. What appears to happen in a video may not be representative of the whole truth. The viewer can be deceived or emotionally manipulated by factors including the lens type, the lighting, the camera position, the aperture, and the exposure.34Consider a fight scene in a movie, where the angle of the camera makes it appear the actors are striking each other while they actually make no contact. Given the enormous amount of weight placed on the altered video by the trial judge in Zaccardo, these concerns are very real.

Coverage: An Overview

..."insurance usually makes economic sense only where the losses covered are unforeseen or accidental".

The fact that hockey-related injuries stem from intentional hits raises an issue about whether such acts are covered by the applicable provisions of the material insurance policy. It is a basic rule of insurance that intentional damage, as in an intentional body check that was intended to injure another party, will not be covered. This is because liability insurance complies with the fortuity principle. The fortuity principle is the idea that "insurance usually makes economic sense only where the losses covered are unforeseen or accidental".35 Insurance policies are interpreted to exclude intentional harm, because such harm is not fortuitous.

In hockey cases, plaintiff lawyers typically frame pleadings in terms of negligence in order to ensure that the player is covered by the hockey club's insurance policy. Even in cases like Zaccardo, where the evidence showed a clear intent to perform a dangerous hit at high speeds, plaintiff's counsel framed his pleadings in negligence to ensure that the target defendant's insurance would respond to the claim. At the very least, doing this will ensure that the hockey league's insurance policy will defend the defendant player. If plaintiff counsel had framed his pleadings in terms of the intentional tort of battery, he might have succeeded against Gavreau-Beaupré, but it would have been an empty victory if Gavreau-Beaupré had no assets. He would then have also had to prove that the club and the league were negligent in allowing Gavreau-Beaupré to play, or negligent in enforcing their rules.

It is worth noting that Chartis Insurance defended Gavreau-Beaupré at the trial level in spite of the evidence that he may have intended to harm Zaccardo.

On appeal, Chartis Insurance argued that its policy excluded damage that was intentionally caused. The Court of Appeal noted rejecting this argument and ruled that Chartis could not take an off coverage position because it plead in its Statement of Defence that Gavreau-Beaupré did not intend to hurt Zaccardo. The Court also highlighted that the jurisprudence outlines a dual intention–the insured must have intended both the act and the results that flowed from his act if the insurer is to be successful in taking an off coverage position, which was not the case in this instance.36

The NHL has considered the inherent risk in hockey and has purchased insurance policies to insure against injuries that flow from the game. The National Hockey League Players Association's ("NHLPA") Collective Bargaining Agreement outlines, in Article 23, the group insurance policies that are to be maintained by the Clubs and the NHLPA. The Agreement states that if a player receives full payment of a claim under the career ending disability policy or serious disability policy, the player will release:

the Club, the League, the NHLPA, and other Clubs, the insurance carrier, and the servants, employees, officers and agents of each of the above from any and every additional obligation, liability, claim or demand for any additional salary or other payments arising out of or relating to such injury or the treatment thereof, including without limitation liability in tort and extending to all damages.37

This release would limit the NHLPA's litigation exposure.  


Most amateur and recreational hockey players can recall a time where they were injured in a game. Blows and collisions incidental to play are common and players must accept these assaults as part of the game. Players should be allowed to execute rough manoeuvres in furtherance of the game without fear that they will be taken to court if those hits happen to cause injury. There is, however, a limit to the inherent roughness of the game. As discussed above, players will not be protected if they deliver hits that are intended to injure others. Also, body checks delivered in good faith can attract liability if they are performed negligently and without due regard for the safety of other players.  When determining whether liability will attach, courts will examine the circumstances of the league and its style of play in order to ascertain the boundaries of the risks to which players consent. In spite of the fact it was decided under the Civil Code of Quebec, the legal principles discussed in Zaccardo with respect to the inherent risks of hockey and the use of video evidence may shape common law jurisprudence.

Regardless of the circumstances, negligence is likely to be the focal point of a hockey injury case for coverage purposes. Plaintiff's counsel will likely manipulate the facts to support a finding of negligence and discount the possibility of a fortuitous incident or inherent risk. In contrast, counsel for the insurer will likely use these possibilities as defences to discourage a finding of negligence. If the court makes a finding of assault or battery, then the insurer may not have to indemnify the participant defendant. However, a specific pleading of no intention to injure by the participant defendant could prevent an insurer from taking this position.

The use of video evidence at the Zaccardo trial presents as an interesting topic for further discussion. This evidence was admitted, but only after vigorous opposition by defence counsel. There are good arguments on both sides regarding the reliability of video evidence. The Zaccardo case shows just how damaging this evidence can be to a defendant's case and, as a result, we have not heard the end of the debate about its proper use in the courtroom. The debate is likely to continue since parents are keen to tape their own Sidney Crosby or Jonathan Toews in action. As such, there is likely to be ample video documentation in the event of an injury and subsequent litigation.

2 Checking is a defensive manoeuvre designed to legally separate an opposing player from the puck using stick or body contact. John Barnes, The Law of Hockey, (Markham, Ontario: LexisNexis, 2010) at pg. 193.
3 Geoffrey M. Moore, "Has Hockey Been ‘Checked from Behind' North of the Border? Unruh, Zapf, and Canada's Participant Liability Standard" (1995) 18 Loy LA Int'l & Comp LJ 641 at pg. 652.
4 Patrick K. Thornton, "Rewriting Hockey's Unwritten Rules: Moore v Bertuzzi" (2009) 61 Me L Rev 205 at  pg. 217.
5 Zaccardo v Chartis Insurance Company of Canada, 2016 QCCS 398, [2016] JQ No 623 ["Zaccardo"].
6 Ibid.
7 2015 ONSC 5316 ("Levita").
8 Moore, supra note 3 at pg. 644.
9 Ibid.
10 Agar v Canning, 1965 CarswellMan 59, [1965] MJ No 24 ["Agar"].
11 Ibid at pg. 304.
12 Barnes, supra note 2 at pg. 234..
13 Moore, supra note 3 at pg. 646..
14 Nguyen v. Kempf, 2015 ONCA 114 at para. 103.
15 Unruh v Weber (1992), 98 DLR (4th) 294, 1992 CarswellBC 1135 ["Unruh']..
16 Kempf, supra note 14 at para 13.
17 Zapf v Muckalt (1995), 11 BCLR (3d) 296, 1995 CarswellBC 598 ["Zapf"]..
18 Unruh v Webber (1994), 112 DLR (4th) 83, 88 B.C.L.R. (2d) 353 (CA) ["Unruh appeal"] at 368.
19 Ibid.
20 Zaccardo, supranote 5
21 Zaccardo, supra note 5 at paras 11-12.
22 Ibid at paras 17-18.
23 Ibid at paras 109-115.
24 Ibid at para 116..
25 Zaccardo, supranote 5 at para 95.
26 Levita, supra note 7.
27 Levita, supra note 7at para 83
28 Levita, supra note 7 at para 21.
29 Levita, supra note 7at para 23.
30 Levita, supra note 7 at paras 33-34.
31 Levita, supra note 7 at para 101.
32 James Careless, Video Evidence, The Canadian Bar Association (CBA),  21 April 2011,
33 Surveillance Video at Trial: To Use or Not to Use. Courtroom Science, Inc. 15 May 2014
34 Camera Shots & Tricks: Deceptive Angles And Zolly Shooting Videomaker
35 Non-Marine Underwriters, Lloyd's London v. Scalera, 2000 SCC 24, 2000 CSC 24..
36 Chartis Insurance Company of Canada (Aig Insurance Company of Canada) v Zaccardo, 2016 QCCA 787, at paras 3-5.
37 Collective Bargaining Agreement Between National Hockey League and National Hockey League Players Association, National Hockey League  (September 16, 2012–September 15, 2022).




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