Is sports liability case headed to Canada’s top court?

A “dangerous” sporting play causing injury to another player — even if the move was permitted within the rules of play — can give rise to sports negligence liability, the B.C. Court of Appeal has affirmed.

The decision points to a difference between the provinces about the standard required to find an aggressive player liable to pay damage for the other player’s injuries.

“This case is relevant and important for all sports-related negligence matters in Canada,” Cory Giordano of Supreme Advocacy LLP wrote in a blog published on CanLii Connects. “The Court of Appeal firmly rejected the proposition that ‘a play permitted by the rules of the game, no matter how dangerously executed and regardless of the context…can never give rise to liability in negligence.’

“The Court also analogized this case to open ice body checking in hockey, finding that, in those circumstances negligence may also flow where a check is executed in a matter that exposes an opponent to an unreasonable risk of harm.”

Giordano questioned in his blog whether the Supreme Court of Canada might entertain an appeal in this case.

In Cox v. Miller, Intact Insurance defended Karl Cox, a soccer player who executed a “dangerous” slide tackle in a recreational league game, as described by the trial judge.

B.C.’s Supreme Court found Cox liable in negligence for causing Jordan David Miller’s shoulder injuries when Cox attempted to execute a slide tackle during a recreational soccer match. The match was governed by FIFA rules. Slide tackles were not prohibited by the rules of play.

The trial judge “found the manner in which the tackle was executed to be reckless and dangerous — something a reasonable competitor in [Cox’s] situation would not do,” as the B.C. Court of Appeal summarized.

The trial judge found Cox approached Miller from behind as Miller was running towards the net, dribbling the ball. Miller could not see Cox, and so he could not brace himself, the trial ruling states. Both of Cox’s feet left the ground when he made contact with the back of Miller’s knee. Cox was nowhere near the ball when he made the tackle, trial witnesses testified.

Cox appealed the finding, making two arguments.

“At the heart of [Cox’s] wide-ranging submission lies an assertion that, to hold [him] liable in negligence for [Miller’s] injury, the judge was first required to find that the slide tackle violated the rules of play. In the absence of such a finding, [Cox] submits that mere carelessness in the execution of a permitted defensive play does not give rise to liability in negligence.”

Related: Want lower liability exposure for athletes? Don’t play sports in B.C.

B.C.’s Appeal Court rejected both arguments.

On the first point, the appellate court dismissed Cox’s argument that the referee only issued a yellow card on the play, suggesting it was a penalty, but nevertheless within the bounds of play. (Under FIFA rules, soccer players are given red cards when they are disqualified for tackles using “excessive force … and/or endangers the safety of an opponent.”)

But the court’s rules trump the rules of the game, the Court of Appeal found.

“The trial judge concluded that [Cox’s] tackle was a dangerous and impermissible defensive challenge that was contrary to the rules of the game,” the Appeal Court ruled in its decision released Jan. 5, 2024. “The referee found the manner in which the appellant executed the slide tackle to be an ‘offence’ or penalty under FIFA rules, which warranted the issuance of a yellow card. That the referee, perhaps charitably, decided not to issue [Cox] a red card for the tackle is, at best, a non-decisive factor….