By Robert Smithson 

 If asked, “Do you consent to being assaulted at work?” the great majority of employees would undoubtedly answer, “No.”  In some workplaces, however, violence is just part of the game.

 Perhaps the most high profile setting is professional sports, with hockey being a prime example.  We may not tend to think of professional athletes when we’re considering the rules of employment but, for hockey players, the ice surface is their workplace.

Recently, in Victoria, an example of the courts’ treatment of violence in sport was played out in B.C. Provincial Court.  Victoria Salmon Kings player Robin Gomez was charged with assault after a March, 2008 game in which he punched an opposing player in the face. 

Gomez’s punch knocked the other player unconscious and caused a concussion, cuts requiring stitches, and temporary paralysis in the face.  The player who was punched returned to the ice several months later.

Reports of the game and of the testimony in court suggest that, during a stoppage in play, the two came together and Gomez threw the punch.  Evidence given in court indicated the other player may have been directing some “trash talk” in the direction of Gomez.

Gomez was acquitted of the assault charge under Canada’s Criminal Code.  Published reports indicate the judge determined that hockey is a sport of implied consent in which the players can expect fights to occur.

This is just the most recent of a series of Canadian court cases involving on-ice violence.  In 1970, the Ontario Provincial Court issued an early decision on this subject, in the Maki case. 

It arose out of an ugly stick-swinging incident during an NHL game between St. Louis and Boston.  The judge dismissed the charge against Maki but commented that “No sports league, no matter how well organized or self policed it may be, should … render the players in that league immune from criminal prosecution.” 

On the topic of implied consent, the judge stated that “all players when they step onto a playing field or ice surface assume certain risks and hazards of the sport and in most cases the defence of consent … would be applicable.  But … there is a question of degree involved and no athlete should be presumed to accept malicious, unprovoked or overly violent attack.”

In 1976, another Ontario court, in the Dan Maloney case, weighed in on the topic of implied consent.  It stated that hockey players agree “to those assaults which are inherent in and reasonably incidental to the normal playing of the game of hockey” but that there are “legal limitations to the consent that a person can give”.

In 1979, the Ontario County Court tackled the issue of implied consent in the context of a “pick up” hockey game.  The accused, St. Croix, was participating in an informal hockey game on a local outside rink for which no protective gear was worn.

During a heated confrontation on the ice, St. Croix cross-checked the other player across the mouth.  The Court stated that “professionally trained and professionally employed hockey players in the National Hockey League consent to more assaultive type behaviour than in a purely amateur … friendly neighbourhood hockey game” and went on to state that “every intentional application or immediate threat of force is capable of being an assault”.

In 1985, the Manitoba Provincial Court ruled in the context of a junior “A” hockey game.  Raymond Mayer was charged with assaulting another player on the ice.

That Court asked, “if one of [the] NHL superstars stepped on the ice for the opening period and prior to the face off, another player skated up behind him and punched him in the face, can it be said by playing hockey, that the superstar has consented to such an assault?”  It answered its own question by stating that “such a blow is not reasonably incidental to playing hockey because of the circumstances under which it was delivered.”

In 1989, the Ontario District Court ruled on the Ciccarelli case after he repeatedly struck another player in the “head area” with his stick.  That court accepted that the scope of implied consent is determined by reference to the nature of the game (amateur or professional), the nature of the particular act and the surrounding circumstances, the degree of force used, the degree of risk of injury, and the state of mind of the accused. 

Finally, in 2000 the B.C. Provincial Court assessed the stick attack by Marty McSorely to the helmet of Donald Brashear. In the course of its reasons, the Court concluded that “a slash aimed at the shoulder was too dangerous for the players to consent to it.”

Although stating it in various ways, the courts seem unanimous that, when they go to work each day, hockey players give their consent to a certain level of violence.  Fortunately, for most of us, a hockey stick to the head isn’t part of “just another day at the office”.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future Legal Ease, email him at smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.