Oct 3, 2019

Does a Participant in a Recreational Sport Owe a Duty of Care?

Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127 (CanLII)

The Ontario Court of Appeal recently had the opportunity to address the issue of when a participant in a game or sport owes a duty of care to a fellow participant. In Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127 (“Bonnello”), the court was asked to consider which, if any, participants in a game of tug of war at a camp ground operated by the appellant, Gores Landing Marina, owed a duty of care to the plaintiff.

Gores Landing Marina had commenced third party claims against numerous participants in the tug of war game, as there was evidence that these participants knew that there were loops in the rope that was used for the game. Mr. Bonello’s left arm was injured as he had placed his arm through one of these loops in order to participate in tug of war; the loop tightened around Mr. Bonello’s arm after the game started and the resulting injury was so severe that amputation resulted.

The third party participants brought a motion for summary judgment against Gores Landing arguing that they did not owe a duty of care to the plaintiff and/or that even if they did, they were not negligent. The third parties relied on the fact that they did not organize the game of tug of war, nor did they provide the rope that was used for the game.

The Ontario Court of Appeal relied on a recent Supreme Court of Canada decision, Rankin’s Garage and Sales v. JJ, 2018 SCC 19, which cites a long standing decision of the House of Lords (Anns v. Merton London Bough Counsel) (1977), [1978] AC728). As enunciated in those cases, a duty of care requires establishing two elements: (1) reasonable foreseeability of harm, and (2) proximity.

When specifically looking at the reasonable foreseeability of harm branch of this test, the Court of Appeal asked itself whether the type of damage that occurred was reasonably foreseeable. In addition to the foreseeability component, the court also examined the nature of the relationship between the parties to determine whether there was a special link or proximity that would justify imposing a duty of care. The court identified three circumstances in which a positive duty to act had been imposed:

  1. Where a defendant intentionally attracts and invites others to an obvious risk that he or she has created or controls;
  2. Where there exists a paternalistic relationship of supervision and control; and
  3. Where the defendant either exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large.

The common theme running through each of these three circumstances is the implication that the defendant was involved in the creation of risk that was under his or her control to which others have been invited.

In Bonello, the tug of war game involved voluntary participation by members of a community of campers and cottagers with two teams of competent adults. None of the defendant participants stood in a special relationship with the plaintiff, nor were they engaging in a commercial activity with implied responsibilities to the public at large. As such, the court concluded that the law does not impose a duty to eliminate risk and accepts that competent persons have the right to engage in risky activities. On this basis, the defendant Marina’s claim over against the third party participants was dismissed, and the dismissal was upheld by the Court of Appeal[1].

The Ontario Court of Appeal decision in Bonello reminds us that there is a high threshold to be met to establish a duty of care when individuals are not participating in a game, sport or event for a commercial purpose. In these situations, in order to pursue a successful claim for contribution and indemnity from a participant, the onus is on the owner/proprietor to show that a participant was materially involved in both creating and controlling a risky activity.


[1] Nadine Nasr of Thomas Gold Pettingill successfully acted for one of the third parties to this action.