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March 3, 2011

Spectator Liability in Canada: An Overview

Alan Drimer
Alan Drimer,

By Alan Drimer
First presented at a Sports Liability Seminar

A spectator that becomes injured during the course of a sporting event will generally commence an action against the occupier of the facility where the sporting event was held. Occasionally, the action will include the individual participant, team, league, or others that may be appropriate in the circumstances.

The legislation imposes a duty on an occupier to ensure that the premise where the sporting event is being 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, the courts 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 on what the industry standard is for safety precautions in a given sport.

The Legislation

In Ontario, according to the Occupiers Liability Act ("Act"), the occupier of premises owes a duty to take reasonable care for the safety of persons and property entering the premises. According to section 1 of the Act,the occupier is defined to include persons in physical possession of the premises or who are responsible for, or have control over, the condition of the premises, the activities conducted, or the persons allowed to enter the premises.1

Section 3(2) of the Act clarifies this duty as applying to risks caused not only by the condition of the premises, but also to the activities that take place there. Furthermore, if the occupier limits that duty, then they must take reasonable steps to bring that limitation to the attention of the visitor. Importantly, the duty of an occupier varies depending on whether the party to whom it is owed is an invitee, a licensee, or a trespasser.2 More specifically, according to section 4(3) of the Act, a trespasser is presumed to willingly assume all the risks of the premises3.

The injured spectator as plaintiff has the onus of proving that the occupier was negligent, on a balance of probabilities. For an action to succeed, the plaintiff must prove the following elements:

  1. that the defendant is the occupier of the property were the incident occurred;
  2. that the defendant breached a duty of care owed to the plaintiff;
  3. that the breach caused the injuries that the plaintiff sustained; and,
  4. that the plaintiff suffered damage.4

The plaintiff must prove that it was more likely than not that the defendant, as occupier of the premises, breached its standard of care in the given case. The standard is one of reasonableness, not perfection. The occupier is not automatically liable by virtue of the fact that someone was on its premises and sustained injuries.

The operator of a sporting event or facility is under a duty to exercise reasonable care in organizing and supervising the event to ensure that both participants and spectators are reasonably safe. The occupier of the premises or the operator of the event or facility thus owes a statutory duty towards spectators that enter the premises.

The Common Law

Spectators at a sporting event generally accept the ordinary risks associated with attending a given event. Nonetheless, if a spectator that is injured at an event can prove that the occupier failed to exercise reasonable care to ensure the premises were safe, then the injured spectator may succeed in proving that the occupier was negligent in the circumstances.

An injured spectator can also commence an action for breach of contract. A contractual entrant is a person who has paid for the right to enter and use the premises. An injured spectator that has paid for a ticket can potentially sue the occupier for breach of the implied term that the seat sold to them will be safe. In order for the spectator to qualify as a contractual entrant, he or she must be on the premises for primarily the same reason as is contracted for.

Notably, at common law and under the Act, there can be more than one occupier of the same premises. For example, the owner of the premises and the occupier with control of the premises need not be the same party. In such instances, the court will need to look at the facts in order to determine liability.5

Operators of an event may seek to limit their liability. This can be done though limitation of liability clauses printed on the ticket, and other forms of contractual agreements. Generally, in order to be able to rely on the exclusion, the language used must be clear and specific. However, the operators in the Canadian case law to date have not attempted to use such a limitation clause as a defence, and thus, the courts have not provided any guidance on the effectiveness of such a clause.

Examples of allegations of unsafe premises in the context of spectator liability vary depending on the type of sporting event, however, they may include failure to erect proper screens and barriers, failure to maintain the facilities, and failure to hire adequate security to control the crowd.

In Elliott v. Amphitheatre Ltd.6, the plaintiff was seated in the front row the defendant's rink watching a hockey game for which he had a paid ticket, and he was hit by a puck. The plaintiff sued the operator of the rink claiming that it was negligent because of its failure to secure the protection of spectators by installing protective wiring or netting. The Manitoba Court of King's Bench dismissed the action, and held that the defendant was not an insurer against dangers that were incidental to the hockey game. Rather, the defendant must take reasonable steps to ensure the safety of spectators, which it did.

In Payne v. Maple Leaf Gardens Ltd.7, two hockey players began to fight over a hockey stick close to the boards at the edge of the rink, and injured the plaintiff spectator who was sitting next to the boards. The Ontario Court of Appeal held that the action was properly dismissed by the trial judge as against the operator Maple Leaf Gardens, because an accident of this nature could not have been anticipated and was not foreseeable.

In Deyo v. Kingston Speedway Ltd.8, the plaintiffs paid admission to attend a car race at the defendant's track. During the race, a car spun out of control and smashed into a guard rail, causing debris to be hurled through the air and strike the plaintiffs. One of the plaintiffs died instantly, and another was seriously injured. The Ontario Court of Appeal considered various factors, such as the fact that the plaintiffs were viewing the race from a restricted area which had a snow-fence and rope barrier, and which was generally considered unsafe. Notably, in this case, the Court indicated that the same spectators of a sporting event, in different places and at different times, may hold varying status, i.e. invitee, licensee or trespasser, for the purpose of occupiers' liability. The Court concluded that while the plaintiffs were invitees when they were in the non-restricted area, their status changed to that of trespassers when they went past the barrier, and thus, the defendant's duty to them changed as well. The Court held that the defendant was not liable to the plaintiffs in the circumstances (The plaintiffs' appeal to the Supreme Court of Canada was dismissed).

In Reese v. Coleman9, the plaintiff was struck by a snowmobile that went off the track while attending a race for which he paid admission. The Court held that the defendant Association was negligent because it did not take any steps to block off the area where the plaintiff spectator was standing, thus allowing the plaintiff to presume that it was safe.

In Hagerman v. Niagara Falls (City)10, the plaintiff spectator was hit in the eye with a flying puck while watching a hockey game at the Niagara Falls Memorial Arena, owned by the defendant. The plaintiff and his friend sat in the fourth row, slightly to the left of the goalie. The area was protected by a plexi-glass screen. The plaintiff's eye had to be removed as a result of the incident. In the claim, it was alleged that the defendant was either in breach of contract based on a breach of the implied term that his seat was in a place of safety, or was negligent because it failed to make the premises reasonably safe. The Court concluded that the defendant was not liable in contract or in tort, based on the standard of reasonableness and not perfection, and based on the fact that flying hockey pucks are inherent risks of the game.

In Noonan v. Exhibition Place11, the child plaintiff attended a Blue Jays baseball game with his father at Exhibition Stadium. The plaintiff was hit by a baseball while seated in a section close to the field where there was no protective screen. The Court held that the defendant was not liable, as the plaintiff knowingly and willingly sat in a section which did not offer the same degree of protection. I was also held that the defendant complied with industry safety standards.

More recently, in Dyke v. British Columbia Amateur Softball Assn.12, the plaintiff was struck in the head by a foul ball while standing in the spectator's section keeping score. The Court reiterated that the occupier's duty to spectators is to provide a standard of care based on reasonableness. Furthermore, the Court held that there must be a casual connection between an omission on the part of the occupier, and the plaintiff's injury. Finally, the Court stated that "[i]n sports cases, the reasonable standard of protection for a given location is largely determined by reference to the industry standard ..."13 This decision was upheld by the British Columbia Court of Appeal.


The above legislation and case law clearly stands for the proposition that the occupier is not an insurer that guarantees that the premises will be completely risk-free. Even in cases where the plaintiff sustained serious injuries, the courts have consistently looked to industry standards in determining whether the occupier has met the reasonableness standard. In cases where the occupier meets the standard, the plaintiff's claim has been dismissed.

Furthermore, the courts tend to take into account factors that are case specific, such as whether or not the plaintiff knew or ought to have known of the risks associated with a particular sport, as well as the area in which he or she decided to watch the said event from.

It is arguable that there are inherent risks with all sporting events. However, at trial, the question becomes whether the risk assumed by the spectator is foreseeable and reasonable in the circumstances. The answer is invariably decided by the facts of the case, as well as expert opinions on the industry standards.

1 R.S.O. 1990, c. O.2 as amended at s.1 (see Appendix "A" for complete wording).
2 R.S.O. 1990, c. O.2 as amended at s. 3(2) (see Appendix "A" for complete wording).
3 R.S.O. 1990, c. O.2 as amended at s. 4(3) (see Appendix "A" for complete wording).
4 Cherniak, Linden, Klar, Kryworuk, ed. by Rainaldi, Remedies in Tort Volume 3 (Toronto: Thomson Reuters Canada Limited, 2009 —Release 5) at 18-24.
5 ILewis N. Klar, Tort Law, 4th ed. (Toronto: Thomson Canada Ltd., 2008) at 588.
6, (1934) CarswellMan 69 (Man. K.B.).
7, (1948) CarswellOnt 82 (Ont. C.A.).
8, (1954) CarswellOnt 46 (Ont. C.A.) aff'd by, (1955) CarswellOnt 388 (S.C.C.).
9, (1976) CarswellSask 46 (Sask. Q.B.) aff'd by, (1979) CarswellSask 82 (Sask. C.A.)..
10, (1980) CarswellOnt 843 (Ont. S.C.).
11, (1991) CarswellOnt 1555 (Ont. S.C.J. Gen. Div.).
12, (2005) CarswellBC 2361 (B.C.S.C.) aff'd by, (2008) CarswellBC 11 (B.C.C.A.).
13 Ibid. at para. 15.



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