We are a sports-loving nation.
No surprise there.
Not only do we love watching sports, many of us are passionate about competing in sports and similar athletic pursuits.
Occasionally, however, that passion can get the better of an athlete, causing him to start a fight with another competitor. Think of a hockey enforcer responding to a late hit, a batter hit by an inside pitch, or a basketball player undercut in mid-air. (As an aside, ironically, in all of my years of martial arts training, I have never come across a situation where a sparring round escalated out-of-control, despite the combative nature of sparring – a discussion for another time.)
Many of us can still remember the Todd Bertuzzi punch on Steve Moore in 2004, a case that was settled in 2014. Through the settlement, the owner of Bertuzzi’s team, the Vancouver Canucks, avoided a finding that it was civilly liable for the assault. However, would the NHL or the team have been found liable if the case went to trial?
The Ontario Court of Appeal dealt with a similar situation in its decision in Da Silva v. Gomes. In this case, the plaintiff and his soccer team were involved in a match against the defendant’s team. In the heat of an altercation between the plaintiff and one of the defendant’s teammates, the defendant punched the plaintiff in the face, injuring the plaintiff.
The plaintiff sued not only the defendant, he also sued the defendant’s team, as well as the league itself. The plaintiff took the position that the defendant’s previous behaviour demonstrated a risk that he would commit violence against another player, and that his team and the league were negligent for allowing the defendant to play.
The league and the team were successful in a motion to dismiss the action, but the plaintiff appealed the decision.
In dismissing the appeal, the Court of Appeal reviewed the applicable case law, including cases against school boards. According to the Court of Appeal at paragraph 15, “The law is clear that supervising authorities are not legally responsible for “a sudden unexpected event in the midst of an acceptable, safe activity””. The Court of Appeal saw no reason to interfere with the motion judge’s finding that there was no evidence of any aggression by the defendant prior to the assault that the supervising authorities were aware of.
In the end, the only one who could be found responsible for the assault is the assailant himself. In the absence of any evidence that would establish that the supervising authorities, the assailant’s team or the league, knew or ought to have known that the match would not be safe, the team and the league will not be held responsible.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.