Canada: Sports Liability: Not Just A Yellow Card – Slide Tackling Into Negligence

Many sports involve physical play and contact that would not be legally permissible outside the context of those sports.

A body check delivered to another person in the hallway or down a sidewalk would be subject to civil (and possibly criminal) liability. Different rules apply to sports as they involve willing participants engaging in consensual activity. However, there are limits, and the courts have historically been tasked with attempting to draw the line between reasonable play and negligent conduct.

Cox v. Miller, 2024 BCCA 3 is a recent decision of the British Columbia Court of Appeal which addresses that "line". The defendant injured the plaintiff while delivering a slide tackle during a recreational soccer match. A slide tackle is when a defensive player leaves his feet to slide towards the offensive player to dislodge the soccer ball. The match was governed by FIFA rules and slide tackles were not prohibited. A reckless slide tackle would be a foul under the rules.

Trial Decision – Miller v. Cox, 2023 BCSC 349

The trial judge found the manner in which the tackle was executed was reckless and dangerous. The plaintiff was approaching the defendant's goal when the defendant delivered a slide tackle from behind and to the plaintiff's left. The plaintiff fell forward, dislocating his right shoulder.

The referee, considered by the trial judge to be "experienced," described the slide tackle as "very reckless," given it was delivered from behind and the defendant's legs were raised. The referee believed the defendant "just took the man, not the ball," however did not believe the defendant intended to injure the plaintiff. The referee issued a yellow card (allowing the defendant to stay in the game) and not a serious red card (which would have resulted in ejection from the game).

In addition to the plaintiff, defendant, and referee, four players also testified, only one of which was from the defendant's team. The thrust of the testimony by the plaintiff and his teammates was that the defendant's slide tackle was violent, aggressive, delivered without control, and had no chance of contacting the ball. One of the defendant's teammates stated that the defendant seemed to be trying to play the ball as opposed to just taking out the plaintiff. However, he agreed that (a) the defendant had been in the plaintiff's blind spot; (b) the defendant had a much higher likelihood of hitting the plaintiff than getting the ball; and (c) the defendant was unsuccessful in touching the ball. Nevertheless, the defendant's teammate testified that the defendant's slide tackle was not outside his normal expectations for the game. While it was a foul involving hard contact, it was something that he had seen take place many times before.

The defendant testified that he contacted the ball and was in control at all times. The trial judge found this evidence to be contrary to the six witnesses who had a clear view of the tackle, and the judge rejected it entirely.

The trial judge reviewed the law on liability in the sporting context and noted that the approach to liability in sports differed in British Columbia compared to other jurisdictions such as Manitoba, Ontario, and New Brunswick. In Ontario, more than carelessness (e.g., maliciousness) was required to establish liability. In British Columbia, no maliciousness is required. Rather, the standard of care set out in the Court of Appeal decision in Unruh (Guardian of) v. Webber, 1994 CanLII 3272 (BC CA) ("Unruh") was "what would a reasonable competitor, in [the offending player's] place, do or not do," considering the speed, the amount of body contact and the stresses in the sport. A breach of the rules is a consideration but not definitive of the issue. The trial judge specifically noted that the British Columbia Court of Appeal in another case (Zapf v. Muckalt, 1996 CanLII 3250 (BC CA)) rejected the narrow approach to the standard of care where only intentional or reckless infliction of harm will ground liability.

The trial judge held the defendant liable, finding the slide tackle dangerous, reckless, and outside the conduct a player would reasonably expect in that recreational soccer league. While slide tackles were permitted, the trial judge believed there was no question this one was outside the accepted rules of play.

Court of Appeal

The defendant appealed on several grounds.

First, the defendant argued that the trial judge incorrectly characterized the standard of care as requiring only carelessness to establish liability. The Court of Appeal disagreed, finding that the judge correctly adopted the standard of care set out in Unruh. The Court of Appeal held that the trial judge did not resolve the case on a finding that the defendant's act was merely "careless, but otherwise permissible." Rather, the trial judge concluded that the defendant's actions were objectively "dangerous" and outside both the rules of play and the conduct a player in this recreational league could reasonably expect.

Second, the defendant argued that the trial judge erred by finding that liability flows from a permitted defensive manoeuvre carried out in a careless manner. The Court of Appeal rejected this argument, emphasizing that while the referee was in charge of the match, the trial judge was in charge of the litigation. The Court of Appeal noted that on the trial judge's factual findings, "the [defendant]'s conduct amounted to serious foul play that would have justified the issuance of a red card disqualifying the [defendant] from further participation in the game." In other words, the tackle was not permitted by the rules of the game, nor was it found by the judge to be merely careless. It was found to be dangerous.

The Court of Appeal commented that it was unaware of any authority for the proposition that a play permitted by the rules can never give rise to liability, no matter how dangerously executed and regardless of context under which the game is being played. The Court of Appeal used ice hockey as an analogy, providing that while open ice body checking is permitted in hockey, "liability in negligence may flow if the body check is executed in a manner that exposes an opponent to an unreasonable risk of harm." This would be "a risk the opponent could not reasonably be expected to assume by participating in the game, having regard to contextual factors including the speed and level at which the game is played." In other words, "a hockey player is no more immune from liability because body checking is permitted than is a driver who executes a lawful left turn in a manner heedless of the safety of others".

The Court of Appeal held that whether the defendant was trying to play the ball or not, the manner of his tackle was contrary to the rules of the game. Further, what the defendant was trying to do when he executed the tackle should not be focus of the inquiry. The question was not what the defendant was thinking, but what a reasonable competitor in his place would or would not do:

Lastly, the Court of Appeal rejected the defendant's third ground of appeal, specifically that the trial judge had incorrectly found that the tackle was reckless and outside the accepted rules of play. The Court of Appeal held that on the trial judge's factual finding, it could not see how the trial judge could have come to any other conclusion.

The Court of Appeal dismissed the defendant's appeal.

Game Summary – Points of Interest

This case is confirmation that in British Columbia it is not necessary to show malicious intent to establish liability in the context of a sporting activity. Liability can be found even where the referee levies a lesser penalty or foul. In the words of the Court of Appeal, the judge (not the referee) oversees the litigation. The fact that a play is permitted by the rules of the league is no bar to a liability finding where it was delivered dangerously and recklessly, and is something that a reasonable competitor would not do.

This case also demonstrates the importance of the factual evidence at trial. The trial judge was presented with the evidence of four players (including the plaintiff) and the referee, all who testified that the tackle was reckless. The defendant's evidence was rejected entirely, leaving only the evidence of his one teammate in support of the notion that the slide tackle "was not outside his normal expectations for the game". Given the evidence at trial, the finding of liability was not necessarily surprising.

What different players and referees view as reasonable play will no doubt vary in the context of recreational sports leagues, but it is the court that will make the final call in determining a player's liability by applying the standard of care to the factual findings. Ultimately, the rules of the game are no match for the rule of law.

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