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

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.

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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.

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