Sports leagues and clubs across Canada are dealing with a new liability risk in the age of COVID-19, in a Sept. 25, 2020 story. (File photo by BLACK PRESS)

Liability in the age of COVID-19, Canada’s leagues, clubs wrestle with risk

Insurance is one tool for liability protection

The Flamborough Dundas Soccer Club cancelled its summer recreation league in July.

Under pressure from parents wanting their children back on the pitch, the club near Hamilton recently resumed training for competitive teams with multiple protocols in place to prevent the spread of the COVID-19 virus.

Club vice-president Patrick Turgeon hopes those measures are enough to not get sued.

“We brought it back based on a poll we did where 86 per cent of our parents wanted back on the field,” he said. “We took a deep breath and decided ‘OK, let’s move forward with it.’”

Sports leagues and clubs across Canada are dealing with a new liability risk in the age of COVID-19.

Even if a lawsuit isn’t successful, defence costs that can be borne by big-budget professional sports may be beyond local leagues and clubs run by volunteers.

“COVID has added another layer of risk that obviously didn’t exist, I’ll say a year ago,” said Steve Indig with the Sport Law and Strategy Group.

“Some sports have not come back. I’d say most are not opening because of the liability. They’re very fearful of not having the insurance coverage.”

Insurance is one tool for liability protection and risk mitigation another, according to David Kitchen, who is legal counsel for the Canadian Olympic Committee’s law firm Fasken.

“The liability portion is much bigger than just the insurance aspect,” Kitchen said. “Regardless of whether you have insurance or not, the liability landscape has now changed.

“What we’ve been saying to members of the COC is, what you need to do as a sports organization is to get a reasonable risk-management system in place. Part of that will necessarily include insurance or determining what your insurance covers.”

It’s likely any insurance policy that includes COVID-19 coverage will come with a high price tag that’s prohibitive for local sports associations.

“A more robust policy, one that covers greater contingencies, is going to come with a higher premium,” Kitchen said.

“Most amateur sports out there I suspect probably don’t have robust coverage, have something lesser, and now it’s one of those situations where you will probably be able to get coverage for it, but it’s going to cost you an additional premium.”

Additional costs are often passed down to the membership, he added.

For groups that can’t afford COVID-19 coverage ”you definitely have to implement risk-management techniques,” Indig said.

“And number two is you need to have a reserve fund. That’s very difficult to have, particularly in this financial environment.”

The B.C. government provided liability protection for non-profit sport groups in June.

Public safety minister Mike Farnworth’s ministerial order stated those organizations, and people in them, were not liable if operating in accordance to provincial health guidelines.

“I fought hard on that one only to find out the Government of Ontario isn’t able to create a ministerial order similar to what the solicitor general did in B.C.,” Turgeon said.

“Our governing body, Ontario Soccer, does not have insurance for litigation due to COVID or a pandemic. That’s being reviewed by their broker.

“We are taking on a risk as a club to provide a service. We hope our members realize everyone is doing their best and our coaches for the most part are volunteers.”

A COVID-19 lawsuit would likely claim there was negligence, or failing to meet a reasonable standard of care.

A reasonable standard of care is a moving target because public health directives can change almost daily, said Ringette Alberta executive director David Myers.

“We’re required to comply with public health orders,” Myers said. “And then there’s a clause in there that says to the extent possible. We don’t know what that means.

“That’s open to interpretation by everybody. That makes volunteer boards who do not have coverage for COVID pretty nervous.

“We have a reserve fund. We’d rather not spend it on legal fees. And our biggest concern is not so much a settlement, if that was ever to happen. Our concern is the defence costs.”

A national taskforce of Canadian sport leaders, led by COC chief medical officer Mike Wilkinson, issued this summer a return-to-sport framework and risk mitigation checklist for sport federations and clubs.

Wilkinson said the health of athletes and the community was the primary objective.

“Liability obviously does come into that, but it’s far down the line,” he said.

But the guidelines, which include compliance with public health directives, and checklists are also tools to help sports resume with a measure of protection, according to lawyer Jahmiah Ferdinand-Hodkin

“What the task force has done is they’ve created a baseline that provides guidance to organizations that should give them a good level of comfort of what the minimum requirements are to re-engage in sport,” said Jahmiah Ferdinand-Hodkin, a litigation partner in Gowling WLG’s Ottawa office.

“If you follow those minimum requirements, then you should be well positioned to counter any arguments that the court might have or that a plaintiff might have with respect to falling below the standard.”

Instituting and executing protocols even more strict than what is required is even better, she said.

“If you’re able to say ‘we reviewed these guidelines, we implemented every single step that was suggested or recommended and we did more’ then I would be very surprised if a court said you fell below a standard,” Ferdinand-Hodkin said.

Indig, Ferdinand-Hodkin and Kitchen all advise updating waivers to specifically include COVID-19 as a risk of participation.

They say requiring participants and any spectators to sign daily attestations that they’re not sick, haven’t been around people who are sick and haven’t travelled outside the country is necessary paperwork.

Reviewing insurance policies with providers is a given. Constantly communicating requirements and expectations to participants and spectators via signage, pamphlets and brochures, emails, social-media messaging and newsletters is also key.

“Generally overall a lot of people are very worried and get more upset at organizations when information isn’t being shared,” Ferdinand-Hodkin said.

“The more capable you are of sharing that information and the faster you share it, the less likely people will be to sue.”

Board members, directors, coaches and administrators could conceivably be included as defendants in a lawsuit and personally liable.

Indig suggests sports organizations not incorporated should do so.

“It’s more difficult for an individual to be found liable if they’re acting on behalf of a corporation,” he said.

This report by The Canadian Press was first published Sept. 24, 2020.

Sports

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Red Deer Mayor Tara Veer and Roland Gaviola, Iglesia ni Cristo Church of Christ district minister in the Calgary region, stand in front of the 300-plus boxes of donated food at the Red Deer Food Bank Saturday afternoon. (Photo by Sean McIntosh/Advocate staff)
Red Deer Food Bank receives big donation from local church

More than 300 boxes of food were donated Saturday

Jason Aquino has been adding to his front lawn Halloween display for the past five years. “I wanted to do it big this year, because even in the pandemic, we can still enjoy Halloween,” says the Red Deer father.
Halloween spookiness rises to new level

Rare astronomical occurrence caps off a strange holiday

Alberta Health Services' central zone jumped from 162 active COVID-19 cases to 178 on Friday. Five additional deaths were reported provincewide, bringing the toll to 323. THE CANADIAN PRESS/Graham Hughes
622 new COVID-19 cases set another daily high Friday

Province confirmed 622 additional cases Friday

Advocate file photo
Man awaiting murder trial facing two new trials for breaching release conditions

Quentin Strawberry going to trial in March in connection with 2019 murder

Ecole La Prairie students and teachers dressed up in Halloween costumes and paraded by Barrett Kiwanis Place, while waving at the building’s residents in Red Deer on Friday. (Photo by Sean McIntosh/Advocate staff)
Ecole La Prairie students parade in Halloween costumes for Red Deer seniors

Dozens of Red Deer students put on their Halloween costumes to spread… Continue reading

Over the years, Janice Blackie-Goodine’s home in Summerland has featured elaborate Halloween displays and decorations each October. (File photo)
QUIZ: How much do you really know about Halloween?

Oct. 31 is a night of frights. How much do you know about Halloween customs and traditions?

A costumed trick or treater turns after being given candy during Halloween celebrations in Toronto, on Tuesday, October 31, 2017. Families across the country have assembled their costumes and stockpiled their candy to celebrate a Halloween that is -- hopefully -- unlike any other. Public health restrictions to protect against COVID-19 vary depending on the region, but most officials have given trick-or-treating the go-ahead.THE CANADIAN PRESS/Chris Young
Families prepare for pandemic-era Halloween with public health restrictions in place

TORONTO — Canadians may be putting the final touches on their costumes… Continue reading

Indigenous fishermen adjust lines on their boat in Saulnierville, N.S. on Wednesday, Oct. 21, 2020. THE CANADIAN PRESS /Andrew Vaughan
N.S. Mi’kmaq chiefs demand stop of alleged federal plans to seize lobster traps

HALIFAX — The Assembly of Nova Scotia Mi’kmaq Chiefs is alleging the… Continue reading

Grand Chief Arlen Dumas of the Assembly of Manitoba Chiefs speaks in Ottawa on Thursday, December 7, 2017. Dumas says he's concerned about the growing number of COVID-19 cases First Nation communities. THE CANADIAN PRESS/Fred Chartrand
The family of Allan Landrie, shown in a family handout photo, is disappointed the Saskatchewan Coroners Service isn’t considering an inquest into the 72-year-old's hospital death. Landrie's death in September 2019 was ruled a suicide. More than three days had passed before his body was discovered locked in a hospital bathroom in Saskatoon. THE CANADIAN PRESS/HO
‘He was so sick,’ says daughter of Saskatoon man who committed suicide in hospital

Allan Landrie’s body was discovered three days after his death

Supporters listen as Democratic presidential candidate former Vice President Joe Biden speaks at a rally at the Iowa State Fairgrounds in Des Moines, Iowa, Friday, Oct. 30, 2020. (AP Photo/Andrew Harnik)
Obama: Trump failed to take pandemic, presidency seriously

FLINT, Mich. — Calling Joe Biden his “brother,” Barack Obama on Saturday… Continue reading

ll
Imagining the origins of Halloween

Long ago and far away, a small assemblage of English people gathered… Continue reading

Red Deer College president Peter Nunoda. (Photo by contributed)
Peter Nunoda: Winter term will be busier on RDC campus

In my column last month, I shared details about Red Deer College’s… Continue reading

FILE - In this Jan. 23, 1987 file photo, actor Sean Connery holds a rose in his hand as he talks about his new movie "The Name of the Rose" at a news conference in London. Scottish actor Sean Connery, considered by many to have been the best James Bond, has died aged 90, according to an announcement from his family. (AP Photo/Gerald Penny, File)
Actor Sean Connery, the ‘original’ James Bond, dies at 90

He died peacefully in his sleep overnight in the Bahamas

Most Read