Implied consent: a defence that's part of the game

Every time a player steps onto the ice, laces up their boots, or signs up for a weekend league, they are agreeing to something, even if they never said a word. In Canadian sports injury law, that silent agreement has a name: implied consent.

It is one of the most frequently raised defences in recreational and competitive sports litigation. Knowing how it works, and where it stops, can surely make or break a personal injury claim. As it turns out, implied consent really is part of the game.

What does implied consent to risk mean in sports injury law?

In most legal situations, consent is something you give out loud or in writing. However, it works differently in sports.

In the sports context, implied consent is the agreement that courts infer from a person’s voluntary conduct, rather than their words. Choosing to play is taken as consent to the physical contact and risk that naturally come with that activity.

The legal basis for this lies in public policy. If every collision in a hockey game or every tackle in a rugby match were treated as a civil wrong, organised sport could not function. Canadian courts have recognised this reasoning explicitly.

In R. v. A.E., 2000 CanLII 16823 (ON CA), it was held that the doctrine of implied consent is “strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis” for keeping sport from being over-criminalised.

Implied consent is not determined by what an injured player personally believed they were agreeing to. In R. v. Cey, 1989 CanLII 283 (SK CA), the Saskatchewan Court of Appeal confirmed that whether implied consent applies is assessed on an objective standard: what a reasonable person in that sport, in that context, would understand to be part of the activity.

Two tiers of contact on what implied consent covers

Canadian courts apply a two-tier framework to identify what implied consent covers. In R. v. CC, [2009] OJ No 2216 (ON CJ), it was confirmed that implied consent extends to:

• contact and force that falls within the rules of the sport
• force that is outside the rules, but within the accepted standards the game is actually played

In R v. TNB, 2009 BCPC 117 (CanLII), the court described the outer limits of implied consent as “an amalgam of written rules, unwritten code of conduct and guidelines set by a referee in a particular game.”

This second tier is relevant in sports where physical contact beyond the written rulebook is a recognised part of the sport, as in hockey.

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What is the threshold for consent inferred from voluntary participation?

Implied consent does not apply equally across all sports, all levels, or all players. Courts examine specific circumstances to decide whether a participant’s voluntary entry into a game amounts to genuine consent for the type of contact that caused the injury, such as:

• player’s experience
• conduct’s proximity to the play
• level of competition

We’ll discuss these things below.

The player’s experience

One factor courts pay close attention to is how well the injured player knew the sport and its risks.

In Levita v. Alan Crew et al., 2015 ONSC 5316, the plaintiff was hurt after being checked into the boards in a recreational hockey game. The court found that his more than 10 seasons in the same league meant he was well aware of how that game was played. That experience, the court held, was enough to support an implied consent defence had a negligence claim been established.

Players are not expected to have anticipated exactly how an injury might occur. What matters is that the participant were aware of the potential for injury. The precise sequence of events also does not need to match what they expected.

Proximity to the play and level of competition

Courts also ask whether the conduct was closely connected to the play in progress. This test was applied in Regina v. Leyte, 1973 CanLII 1449 (ON PROVCT), and contact with no real connection to what was happening on the field at the time is treated differently from contact that is incidental to competitive play.

Where a sport is recreational or has no-contact rules, courts may apply a lower tolerance for force. In other words, a recreational game carries a narrower scope of implied consent, as compared to a professional or semi-professional contact sport.

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What is the difference of implied consent and volenti non fit injuria?

Implied consent and volenti non fit injuria, which is a Latin for “to a willing person, injury is not done,” defences are not the same, and confusing them can lead to the wrong argument being made at the wrong time.

A court drew the distinction clearly in MacMillan v. Hincks, 2002 ABQB 283. Implied consent applies when the plaintiff consented to “the actual interference which constitutes the complaint.” Volenti non fit injuria means something different: that the plaintiff “knew that there was a risk of injury stemming from the defendant’s conduct and accepted that risk,” without agreeing to the injury itself.

In practical terms, the two defences cover different types of claims:

• implied consent: a defence to an intentional tort, such as battery; here, the plaintiff agreed to the specific contact that took place
• volenti non fit injuria: a defence to a negligence claim; it says the plaintiff accepted the risk that the defendant’s carelessness might cause injury

The court put this plainly in Pacheco v. Degife, 2014 BCSC 1570, calling it “the difference between actually consenting to being struck versus engaging in an activity in which one assumes the risk of being struck by virtue of the nature of the activity.”

Why the defence of volenti sets a higher bar

Volenti non fit injuria is a complete defence to negligence, but it is genuinely difficult to establish. In Dube v. Labar, [1986] 1 SCR 649, the Supreme Court confirmed that volenti only succeeds if the plaintiff both knew of a specific risk of harm and bargained away their right to sue for any resulting negligence. Awareness of risk alone is not sufficient.

The Supreme Court reinforced this in Hall v. Hebert, [1993] 2 SCR 159, confirming that volenti can only be applied in limited circumstances. This is why sports injury claims that cannot succeed on volenti often shift toward contributory negligence instead, where liability is apportioned between the parties.

When will the defence of implied consent fail?

Implied consent has clear limits. When conduct moves from competitive play into recklessness or deliberate harm, the defence falls away, and Canadian courts have consistently held that line.

The Jobidon principle

The starting point is R. v. Jobidon, [1991] 2 SCR 714, where the court held that consent is nullified once a defendant both intends to cause serious bodily harm and actually causes it. In sport, this means a player who deliberately sets out to injure an opponent cannot rely on the fact that the opponent chose to take the field.

The Ontario Court of Appeal applied this reasoning directly in R. v. Leclerc (C.A.), 1991 CanLII 7389 (ON CA), holding that “[c]onduct evincing deliberate intention to inflict injury” falls outside the protection of implied consent entirely.

What the civil courts have awarded

Two civil decisions show what is at stake when the implied consent defence breaks down:

• Zaccardo c. Chartis Insurance Company of Canada: a 16-year-old hockey player was checked from behind into the boards and left permanently unable to walk. The court awarded approximately $8 million in damages.
• Casterton v. MacIsaac: a 2020 decision of the Ontario Superior Court of Justice, a recreational hockey player who was checked from behind received more than $700,000 for injuries and loss of income.

Attacks outside the flow of the game

Implied consent also breaks down when the conduct bears no genuine connection to the game. In Leonard v. Dunn, 2006 CanLII 33419 (ON SC), an Ontario court found in 2006 that an unprovoked and unilateral attack during a hockey game was neither within the implied risk of participating in the activity nor within the scope of the waiver as properly construed.

The line between competitive contact and targeted harm is not always visible on the playing surface, but courts know where it sits.

Implied consent: knowing the game means knowing its legal limits

Implied consent gives sport its breathing room. It is the legal reason why a body check in hockey and a tackle in football do not automatically end in a courtroom. But as Canadian courts have made clear, the defence has boundaries, and they are not always visible from the rulebook alone. For personal injury lawyers on either side of a sports injury claim, the real work lies in knowing exactly where voluntary participation ends and actionable harm begins. After all, knowing the rules is part of the game too.

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