Smithson: Ice surface workplace for players has felt impact of courts

Thanks to Zdeno Chara, Max Pacioretty has had a week in the spotlight.

Thanks to Zdeno Chara, Max Pacioretty has had a week in the spotlight.

No doubt, however, he would have been happier to remain in the shadows.

Pacioretty, a forward with the NHL Montreal Canadiens, was the unfortunate recipient of a jarring hit into one of the unpadded stanchions along the boards, having been guided to that spot at high speed by the hulking Chara, a defenceman with the Boston Bruins (ever since the Todd Bertuzzi incident, it’s mandatory to describe any hockey player causing an injury to another as “hulking”).

Pacioretty suffered a concussion and a fractured vertebrae in his neck.

The Chara hit has prompted an unprecedented reaction from the non-hockey world (also referred to in some circles as the “real world”).

Air Canada was first out of the gate, cautioning the NHL that its patience for severe injuries in hockey is waning.

Prime Minister Stephen Harper also had strong words for the league.

Now, Via Rail has jumped into the fray to express its concern at the league’s seeming inability to take measures to protect its players.

Most notably, authorities in Quebec quickly indicated they would be considering whether criminal charges against Chara are warranted.

For Chara, the game against the Canadiens was surely just another day at the office.

Of course, at Chara’s office (unlike yours and mine), violence is just part of the game.

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.

And occasionally, the courts are called upon to pronounce judgment when the boys can’t get along at work.

An example of the courts’ treatment of violence in sports played out recently 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.

Gomez was acquitted of the assault charge—the judge determined that hockey is a sport of implied consent in which the players can expect fights to occur.

In 1970, the Ontario Provincial Court issued an early decision on this subject, in the Wayne 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 1985, the Manitoba Provincial Court ruled on the topic of implied consent 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 Dino 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.

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 implied consent to a certain level of violence.

Did Max Pacioretty consent to being introduced, abruptly, to a stanchion courtesy of Zdeno Chara? We’ll have to wait and see.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna.

This subject matter is provided for general informational purposes only and is not intended as legal advice.

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