by Howard Borlack and Alan Meka

In Cox v. Miller (Cox), the British Columbia Court of Appeal (the "BCCA") upheld the trial judge's decision by affirming that irrespective of an individual's intent and permissible rules of a game, injuries as a result of reckless and dangerous acts during recreational sports are risks not undertaken by players and are thereby able to constitute liability in negligence.¹

Background Facts

In May 2018, pleasure turned into pain during an organized soccer match among players with varying skill levels (the "Game"), when Cox slide tackled Miller in the penalty box (the "Tackle"). The Tackle was advanced from Miller's back left side while he was dribbling the ball on his right side, which thereafter led Miller to fall forward and dislocate his right shoulder. The Game was officiated pursuant to FIFA rules, where slide tackles are permissible maneuvers. The only issue at trial was whether Cox's tackle constituted negligence. Following a breakdown of which acts are deserving of a yellow and/or red card, along with witness evidence provided by the Game players and referee, the trial judge (the "Judge"), on a reasonableness standard, found that Cox was negligent for the Tackle on Miller.

Some factual findings the Judge found regarding the Tackle include:

• Miller not seeing Cox approaching from behind;
• Cox lifting both legs off the ground in executing the Tackle; and
• Cox's actions being "dangerous and reckless," not falling within the purview a reasonable player would expect to encounter during the Game.

The Appeal: Arguments

Cox's Appeal was based on the following grounds:

• The Judge erred in law by incorrectly articulating the standard of care;
• The Judge erred in law in applying the standard of care; and
• The Judge committed palpable and overriding error in finding him negligent.
  

Articulating the Standard of Care

The BCCA recognized the differing legal standards among other provinces and outlined that such persuasive authority must be approached with caution in British Columbia. In addition, the BCCA denied Cox's submission that the Judge resolved the case based on a finding of carelessness in the context of permitted play. Rather, the Judge deemed the Tackle by Cox to be objectively "dangerous and reckless," situated outside both the rules of play and the conduct a player in the Game could reasonably expect. The BCCA further noted that Cox cited no direct authority for the proposition that a permissible play, executed dangerously, can never amount to negligence. Moreover, the BCCA outlined that while the rules of the Game are a factor to be considered along with other circumstances, the rules are by no means conclusive.

...the Tackle was contrary to the rules of the Game...

Applying the Standard of Care

The BCCA noted problems with Cox's position regarding his intent in executing the Tackle. First, the Tackle was contrary to the rules of the Game and appropriately resulted in a penalty. Second, his intent could not be the focus of the inquiry, but rather what a reasonable competitor would do or not do. Finally, the BCCA rejected Cox's submission that one would be immune from liability in negligence if contacting the ball, irrespective of the remoteness or danger posed to an opposing player, was a possibility during a slide tackle.

The BCCA provided deference to the Judge's finding of fact, labelling the Tackle as "dangerous and reckless."

Significance

With analogies made to other recreational sports in the decision, neither its relevance nor impact could be understated. Although this was a soccer case, the overarching rule regarding recreational sports in British Columbia seems to favour the notion that injuries derived from reckless and dangerous acts are risks not consented to by players and could thus result in an individual's liability in negligence. This seems to be true irrespective of whether the act causing injury was intentional and/or permitted by the rules of the game.

The Cox² decision would be noted by Ontario Courts as injured parties may use it as persuasive authority in submitting their respective cases. However, it must be noted that current Ontario case law favours implied consent, with limitations, as a prevalent factor in determining sports negligence liability since a player is assumed to accept some risk of accidental harm. For reference, although the Ontario Court in Levita concluded that a player was clearly overly aggressive and exhibited a lack of care considering the circumstances, the player had not acted maliciously or beyond the bounds of fair or expected play.³ Since a lack of carefulness falls short of the creation of an unreasonable risk of harm, the Court in Levita did not impose liability on the subject player.⁴

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1. Cox v. Miller, 2024 BCCA 3 at para 5.
2. Ibid.
3. Levita v. Crew, 2015 ONSC 5316 at paras 99-100.
4. Ibid at paras 100, 123.
   

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