In Rivers v. North Vancouver (District) et al, 2020 BCSC 1050, the plaintiff’s action for personal injuries was summarily dismissed against all defendants, including the various sports leagues and the District of North Vancouver. In dismissing the actions against the sports’ leagues, Justice Tammen gave important insight into the definition of “occupier” under the Occupiers Liability Act, RSBC 1996 c.337 (the “Act”) and the exceptional risk test that is required in order to impose a duty to warn on an occupier.
The plaintiff, a 58 year old man, was watching his 16 year old son’s baseball game at Inter River Park in North Vancouver. While focussed on the game, he was unfortunately struck on the head by a foul ball from another nearby baseball diamond and suffered injuries as a result. The plaintiff sued the District of North Vancouver as well as Little League Baseball Canada and the “League Defendants” (including Mount Seymour Little League Association and West Vancouver Little League Society).
The Claim against the League Defendants
The League Defendants host little league baseball games at Inter River Park. For the purpose of the summary trial, both the League Defendants and the District of North Vancouver conceded to being occupiers under the Occupiers Liability Act (the “Act”).
The plaintiff alleged that the League Defendants had been negligent for failing to warn spectators of the exceptional risk of foul balls, failing to bring such risk of injury to the attention of the District of North Vancouver, and failing to cease playing baseball simultaneously at both diamonds despite having known of this risk.
Justice Tammen set out that while the League Defendants owed a duty as occupiers under the Act, in order to impose a duty to ameliorate or warn of the risk, the risk must be exceptional. An exceptional risk must be that “which was known, or could reasonably be expected to be known, to the defendant, but which would not be perceived or appreciated by an ordinary person exercising common sense” (at para 90).
Justice Tammen held that this heightened test was not met as an ordinary person in the shoes of the plaintiff would have been aware of the risk of foul balls leaving the field of play and landing in the spectator bleachers. The League Defendants’ lack of a duty to warn was based in part on (1) affidavit evidence of users of the park who had knowledge of the risk of foul balls leaving the diamonds; (2), no evidence of a particularly unique hazard at Inter River Park; and (3) an absence of any concern being raised by spectators to the League Defendants prior to this incident.
The Claim against Little League Canada
Unlike the League Defendants, Little League Canada denied that it was an occupier under the Act. Little League Canada is a non-profit, wholly volunteer-led organization based out of Ottawa. The organization is divided into five administrative divisions, each of which has a District Administrator who acts as a liaison between the division and Little League Canada, yet is not supervised or controlled by Little League Canada.
Justice Tammen found that the plaintiff did not prove that Little League Canada was an occupier of Inter River Park. Section 1 of the Act provides two ways in which a party may be found to be an occupier: an occupier is as a person who either (a) has “physical possession of the premises” or (b) has “responsibility for, and control over, the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises” (s.1, the Act). With a headquarters in Ottawa, Justice Tammen found that Little League Canada was clearly never in physical possession of Inter River Park and therefore was not an occupier under s.1(a) of the Act.
The plaintiff noted that Wayne Hobson, a director at large on the board of Little League Canada and the District Administrator for the North Shore little leagues, obtained the permit issued by the District of North Vancouver to use the field at Inter River Park. The plaintiff argued that Mr. Hobson did so on behalf of the league organization, thereby demonstrating Little League Canada exercised a degree of responsibility and control over Inter River Park and the activities conducted therein pursuant to s. 1(b) of the Act. Justice Tammen disagreed, finding that Mr. Hobson was acting neither based on Little League Canada’s instructions nor policy, nor did he obtain the permit on behalf of Little League Canada. Rather, he obtained the permit as a matter of convenience to each individual team in the district. Mr. Hobson, while being the District Administrator, was not acting as a representative or board member of Little League Canada when he obtained the permit. As such, the court found that the Plaintiff failed on both possible definitions of establishing that Little League Canada was an occupier under s.1 of the Act. Therefore, Little League Canada did not owe the plaintiff, or any other users of Inter River Park, a duty of care.
The Claim against the District of North Vancouver
Against the District, the plaintiff argued that the municipality had failed to keep and maintain the premises such that spectators would be safe in watching baseball games played at the park. This claim was dismissed on the basis that the District’s baseball diamonds were consistent with or went beyond industry standards and recommendations and, therefore, the District had adequately met the standard of care required of a municipal occupier.
Despite having a District Administrator in the North Vancouver little league community, the national sports organization of Little League Canada avoided liability due to the court’s inability to find the league itself to be an occupier with sufficient physical occupation, responsibility for, or control over Inter River Park. The degree of separation between the District Administrator and the organization’s head operations in Ottawa sufficiently severed the connection such that Little League Canada could not be considered to have owed an occupier’s duty of care to the plaintiff or other users of Inter River Park.
The local leagues regularly utilizing Inter River Park also avoided liability. Although conceding they owed a duty of care as occupiers of the premises, evidence of the known risk of foul balls to various spectators at Inter River Park conclusively demonstrated the commonality of foul balls leaving the field of play such that it did not constitute an exceptional risk requiring the League Defendants to warn and ameliorate.
Ultimately, all sports organizations in this case were found not liable. However, it is important to note that this decision could have been different with slightly different facts. Justice Tammen noted that had there been evidence of the spectators warning the League Defendants of previous near misses, a finding could have been made against the League Defendants for failing to raise concerns with the District.
Written by Romany Benham-Parker with contribution from articling student Annette Bronsch.