Jenny Hepditch
Associate
Article
8
A softball player trips over a divot on the ground. A child's hand gets caught in a rope during a tug-of-war game. A dumbbell rolls across a gym floor and hits someone's foot.
Sports and recreation facilities have obligations to their users. The facility owner, operator and team renting the premises must all take reasonable care to ensure that the individuals who enter are safe while on the premises. This duty extends across the premises (the rink to the changing rooms) and over the activities (fitness classes to football games). The duty is not limited to active participants (e.g. players) and can extend as far as trespassers.
In Ontario, the occupiers' duties towards people who access their premises is governed by the Occupiers' Liability Act ("OLA"). The OLA defines an "occupier" as:
a. A person who is in physical possession of premises, or
b. A person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.
There can be multiple occupiers at any given time and each can be liable to individuals who access the facility.
Section 3(1) of the OLA states that an occupier of premises owes a duty to individuals entering the premises. Occupiers should be aware that everyone who enters their facility could seek to impose liability, including those who were not invited. In the sports and recreation industry, there are two main categories:
The general duty under the OLA has a few exceptions:
The Ontario Superior of Justice recently considered the duties of an occupier pursuant to sections 3, 4 and 5(3) of the OLA. In Hosseinkhani v QK Fitness Inc ("Hosseinkhani"), the plaintiff was a 59 year-old woman who tripped on a dumbbell while attending a fitness class at the defendant's facilities. This class required the use of two dumbbells and a low step. The plaintiff used a pair of circular dumbbells. When she no longer needed the dumbbells, she placed them on the floor, to her right. The plaintiff believed that one of the dumbbells rolled from its original position and she stepped on it and fell. The plaintiff sought $5 million in damages.
The defendant brought a motion for summary judgment on the basis that the plaintiff's membership agreement contained an exclusion of liability clause and that the plaintiff was the author of her own misfortune for failing to place the round dumbbell she was using in an upright position. The Court granted the defendant's motion for summary judgment and dismissed the plaintiff's action.
The Court acknowledged that the Ontario Court of Appeal had confirmed the ability of occupiers of premises to obtain waivers of liability pursuant to section 3 and 4 of the OLA. The Court cautioned that occupiers were required to take reasonable steps to bring this permitted exclusion of liability to the attention of the person signing the agreement under section 5(3) of the OLA. The Court indicated that reasonable steps included headings indicating to "Please read carefully" or "Warning" set out in bold font or red font or surrounded by a frame.
In the present case, the Court observed that nothing drew the attention of the person signing the agreement to the exclusion of liability clause. Furthermore, the Court noted that the defendant failed to adduce any evidence that reasonable efforts were made to draw the plaintiff's attention to the exclusion clause at the time she signed the agreement. As a result, the Court held that the motion could not succeed on this basis.
The Court indicated that the defendant was not required to instruct the plaintiff on how to use dumbbells since they are not a complicated exercise machine that require instruction on proper use and safety. The Court held that the risk that a round dumbbell might roll is obvious and that an occupier has no duty to warn an adult about obvious risks. As such, the Court granted the motion on this basis.
Risk mitigation involves three steps: identifying the risks, evaluating their potential impact and determining what measures to implement in order to address the risks.
The best way to reduce liability and exposure from occupants is to understand your obligations as an occupier and plan for prevention and management.
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