COVID-19, Sports And Waivers: How To Limit The Risk Of Legal Liability In The "New Normal"

• Published date: 28 May 2020
• Author: Mr Jake Cabott
• Subject Matter: Media, Telecoms, IT, Entertainment, Coronavirus (COVID-19), Sport, Litigation, Contracts and Force Majeure, Operational Impacts and Strategy
• Law Firm: Borden Ladner Gervais LLP

Introduction

Recreational and competitive sport activities came to a halt in mid-March with the arrival of the COVID-19 pandemic. Sport organizations in every Canadian jurisdiction swiftly put an end to sport activities and competitions due to COVID-19's significant health risks and high risk of transmission through physical or shared contact.

Provincial governments have recently started to discuss plans to ease restrictions on social contact. "Return to play" is in sight for many sports and may begin as early as this spring. However, COVID-19 will continue to be a risk when sport activities resume and the pandemic will introduce new risks for sport organizations, particularly in the area of legal liability.

This article briefly canvasses the use of waivers to protect against liability for transmission of COVID-19 by participants in sport activities.¹

Sport organizations should consider implementing participant waivers with provisions that specifically and expressly address liability for contraction of COVID-19 for the reasons listed below.

The three paths to exclusion of liability in sport cases

There are three general ways to establish exclusion of liability in sport cases: 1) voluntary assumption of risk; 2) inherent risk; and 3) waiver.

The concept of voluntary assumption of risk applies where a party agrees to assume a risk. The courts have significantly narrowed the scope of this defence over the years. The Supreme Court of Canada has stated that the concept will only apply where it is clear that the participant knew of the "virtually certain risk," and both parties truly understood that the organization would not be responsible for the participant's care and safety.² This narrow scope makes the concept very difficult to invoke and it is likely not well suited to the novel risk of COVID-19.

The concept of inherent risk recognizes that certain risks in sport activities are inevitable. The concept applies where an injury arises from one of those inevitable risks. Those risks are perceived as a "part of the game," and by participating in "the game," the participant accepts the risk. Risks inherent to the activity are derived from elements of the activity, such as conflict, exertion and physical contact. Illness is not generally accepted as an inherent risk in sport liability cases. On the other hand, COVID-19 is novel and, because it can be transmitted through physical or shared contact with another person, the risk of contraction from engaging in sport activities is arguably foreseeable. It is possible that COVID-19 could be determined by a court at some point to be an inherent risk in certain sports, but it is currently unclear and uncertain.

A waiver is an agreement between the participant in a sport program (athlete, coach, etc.) and the organization providing the program. The participant agrees not to hold the organization liable for injuries he or she might receive as a result of participating in the sport program, including injuries that were caused by the organization's negligence.

Law of waivers in recreational and sport activities

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