Law Times

Law Times • sepTember 14, 2015 Page 13 www.lawtimesnews.com Courts consider hockey injuries in civil, criminal contexts BY JENNIFER BROWN Law Times t has been a busy time for hockey-related litigation with two new rulings con- sidering injuries on the ice in both the personal injury and criminal spheres. On Sept. 1, the Superior Court considered the claim by a lawyer, Robbie Levita, that sought dam- ages over a 2006 incident in which he sustained a fractured right tibula and fibula while playing recreational hockey in a league operated by True North Hockey Canada. Alleging he's unable to participate in recreational, house- hold, employment, and athletic activities, he sought non-pecuni- ary damages of about $100,000. Among other things, he alleged the league knew or should have known that Alan Crew, the player who checked him into the boards from behind, was dangerous. But in considering the issue this month, Justice Stephen Fires- tone dismissed the action. Among other things, he found Levita had signed a "clear waiver" and was aware of the risks. "He continued to play in the league for more than ten seasons, well aware of the style of play and the risks involved in the style of play of the level A divi- sion, as well as the manner of play of Crew," wrote Firestone in Levita v. Alan Crew. "Levita assumed the physical and legal risks involved in playing in the True North league." The ruling came a day after the Ontario Court of Appeal considered a hockey injury in the criminal context. In that case, a recreational hockey player in Ot- tawa will get a new trial after the Ontario Court of Appeal found a judge to have erroneously applied speculative reasoning to her deci- sion that convicted him of blind- siding another player. In R. v. MacIsaac, Gordon MacIsaac appealed his convic- tion for aggravated assault that resulted from an on-ice collision during a senior men's hockey game in 2012. At the centre of the determina- tion of guilt at trial was whether an on-ice collision involving Ma- cIsaac and another player was an unavoidable accident or a deliber- ate blindside hit. On Aug. 31, the appeal court allowed the appeal and ordered a new trial. It found MacIsaac didn't have a fair trial because the judge "engaged in imper- missible speculative reasoning in reaching her verdict." On March 15, 2012, MacIsaac's team, the Tiger-Cats, was play- ing in a senior no-contact men's hockey league in Ottawa against the Pirates. During the last 47 sec- onds of the game, with the Pirates up by two goals, MacIsaac col- lided with Pirate Drew Casterton. Casterton fell to the ice on his back and suffered lacera- tions to his face, a concussion, and the loss of two front teeth. Police charged MacIsaac with one count of aggravated assault. The court heard from 11 wit- nesses as well as a referee and various members of both teams. The Crown held that MacIsaac deliberately delivered a blind- side hit to the left side of Caster- ton's head. The goalie for the Pirates tes- tified he saw MacIsaac leap off the ice, raise his arms, and hit Casterton in his shoulder and head area. He said MacIsaac's arms hit Casterton's head and that his face mask may have hit Casterton's face. The defence's position was that the incident was an acci- dental, unavoidable, face-to-face collision. At trial, Ontario Court Justice Diane Lahaie said most of the witnesses showed "a clear bias depending on which of the two hockey teams he belonged to." She found the referee was the sole "completely neutral" witness and that his evidence was credible and reliable. While his account of MacIsaac's and Casterton's positions on the ice — with the pair heading toward the puck behind the net — dif- fered from that of the other wit- nesses, she accepted the entirety of his evidence aside from his testimony regarding a tripping incident earlier on the same play. Lahaie also accepted all of Casterton's testimony. The inju- ries to the left side of his face were consistent with his testimony about where he was looking and supported the conclusion that this wasn't a "face to face 'head on' collision." Lahaie rejected the evidence of one of MacIsaac's teammates. She was "not prepared to find beyond a reasonable doubt" that the teammate had been on the ice at the time of the incident because it was "not logical" for three Tiger-Cats defencemen to be on the ice with the team down by two points and so little time left in the game. "Mr. MacIsaac intended to deliver a blindside hit to Mr. Casterton's head and knew of the risks associated with head shots. He delivered it anyway as his frustration and desire for re- venge took over," she wrote. She rejected MacIsaac's claims that he left his usual position as a defenceman in an effort to steal the puck from Casterton and score a goal; that Casterton made an unpredictable turn rendering a collision unavoidable; and that MacIsaac didn't have sufficient control over his speed to avoid hitting Casterton. On the issue of consent, La- haie found the hit amounted to a marked departure from the conduct expected in a no-con- tact hockey league as "consent to such conduct cannot be given." As for mens rea, she held that MacIsaac foresaw the possibility that his actions would cause se- rious bodily harm but nonethe- less chose to take that risk. "The criminal standard was being applied in this case," says Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP. "Perhaps an inference that is more of a stretch might be ac- cepted in a civil context, but you couldn't do it in a criminal con- text where you might be putting someone in jail." MacIsaac's lawyers said Lahaie misapplied the law of consent and failed to consider whether MacIsaac had an honest but mistaken belief in consent. He thought players in the league had consented to any type of bodily contact that was foreseeable in a game, including deliberate blindside checks. Writing for the Court of Ap- peal, Justice William Hourigan wrote: "I agree with the submis- sion of the appellant that the trial judge engaged in imper- missible speculative reasoning in rejecting the evidence of the defence witnesses. This im- paired the appellant's right to a fair trial. On this basis, I would order a new trial." 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