While in practice, I acted for a young soccer player intentionally tripped by an opponent, suffering complex leg fractures that ended his career. The case was hard-fought and settled on the courthouse steps. In another file, a player fractured his ankle after stepping in a divot on the field, another career-ending injury. It settled, but not before the skilled defence counsel had put me through my paces.

Neither plaintiff had signed a waiver.

This piece is a complement to my earlier blog on waivers, “Read Before You Leap: The Ironclad Waiver”^[1], but it tackles a different question. When do players and participants legally accept the risks of sport such that a defendant (player, league, club, or facility) has a defence even without relying on a written waiver?

The Core Idea: What Volenti Actually Requires

The core idea is volenti non fit injuria, meaning no wrong is done to one who consents.

In Canadian tort law, volenti requires proof that the plaintiff not only understood the specific risk but accepted the legal consequences of that risk, effectively agreeing to give up the right to sue if that risk materialized. Although not a sports case, the Supreme Court of Canada in Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 SCR 456^[2] has made two points that still govern on the field, that mere knowledge of danger is not enough, and that the analysis is intensely factual and context-driven.

Player-Versus-Player Standards: Two Approaches

For player-versus-player claims, Canadian courts have developed two overlapping approaches to the standard of care among athletes.

The Manitoba/Ontario line, often traced to Agar v. Canning, 1965 CanLII 872 (MBQB) 54 W.W.R. 302^[3]; aff’d 1966 CanLII 107 (MB CA)^[4], treats vigorous, rule-bound contact as part of the game and suggests civil liability generally follows only where a player deliberately sets out to cause harm or acts with reckless disregard for safety.

British Columbia has emphasized a negligence standard tailored to sport, asking what a reasonable competitor would do in that game, at that level, in those circumstances. A rules breach is relevant but not conclusive either way. The BCCA’s decisions in Unruh (Guardian of) v. Webber, 1994 CanLII 3272 (BCCA)^[5]and Zapf v. Muckalt, 1996 CanLII 3250 (BCCA)^[6] are touchstones for this analysis.

A Modern Reminder: Rules Aren’t Immunity

A modern reminder that “playing within the rules” is not immunity comes from Miller v. Cox, 2024 BCCA 3^[7]. The B.C. Court of Appeal upheld liability against a recreational soccer player whose slide tackle was found objectively dangerous in context, even though slide tackles are part of the sport. Rules and officiating matter, but they do not answer the civil negligence question. The court asks whether the conduct fell below the reasonable-competitor standard.

Ontario Illustration: Keeping Waivers Distinct From Volenti

Ontario offers a useful illustration of how standards of play and contractual waivers operate on separate tracks. In Levita v. Crew, 2015 ONSC 5316^[8], the court dismissed a player-versus-player claim on the theory that the conduct did not cross the line into civil liability, and in a distinct analysis, it enforced a written waiver in favour of the league. The first outcome turned on the standard of care among players. The second turned on contract.

Organizers and Facilities: Consent Won’t Cure Negligence

Organizers and facilities cannot use “consent” to dodge their own negligence.

In a case that was released and vigorously debated in my torts class when I was in first year law school, Crocker v. Sundance Northwest Resorts Ltd., 1988 CanLII 45 (SCC), [1988] 1 SCR 1186^[9], a ski resort allowed an obviously intoxicated participant to compete in a dangerous inner-tube race. The Supreme Court held the resort liable despite an entry form and talk of “assumed risk,” finding that volenti failed because the plaintiff had not accepted the legal risk and the resort’s negligence was plain.

When Targeted Waivers Succeed

By contrast, Dyck v. Manitoba Snowmobile Association Inc., 1985 CanLII 19 (SCC), [1985] 1 SCR 589; reasons reported 1989 CanLII 8 (SCC), [1989] 2 SCR 29^[10], shows how targeted drafting can succeed in competitive contexts where risks are explicit and the document is properly brought home to the participant. There, a signed release and assumption-of-risk wording protected a volunteer race official within the class covered by the release.

Statutory Overlay: Occupiers’ Liability Acts

The statutory overlay matters.

Most provinces have Occupiers’ Liability Acts that codify a general duty of reasonable care to keep entrants reasonably safe, with carve-outs where risks are “willingly assumed.” Those carve-outs are narrow and context-specific, and in Ontario, when risks are “willingly assumed” under section 4, the occupier’s duty is reduced to avoiding harm by acting with intent or in reckless disregard. It is not a free pass for careless maintenance or supervision. See Occupiers’ Liability Act, RSO 1990, c O.2, ss. 3–4^[11].

British Columbia’s Occupiers Liability Act similarly imposes a general reasonableness duty and recognizes that contractual notices can modify duties in some circumstances, but labels do not control. Courts ask whether the occupier acted reasonably in all the circumstances. See Occupiers Liability Act, RSBC 1996, c 337^[12].

Don’t Confuse Volenti with Contributory Negligence

It is important not to mix up volenti with contributory negligence.

Even when the full volenti defence fails (and it often does) damages can be reduced for a plaintiff’s own fault under the Negligence Act or provincial equivalents, for example where a participant ignores warnings, fails to use protective gear required by the league, or returns to play too soon. That is apportionment, not a complete defence. See Negligence Act, RSO 1990, c N.1^[13].

Practical Bearings for Counsel and Clients^[14]

Practically, plaintiffs should frame the play in its real context: the level of competition, the rules in force, what officials observed, and what a reasonable competitor would anticipate.

Video should be secured early, and where helpful, a coach or neutral sport-rules expert can anchor the standard of care to the actual game being played.

Allegations against organizers should be tied to concrete lapses—supervision, screening, alcohol policies, field or ice maintenance, marshal placement, or follow-through on known hazards—so that the negligence analysis is grounded in facts rather than generalities.

Defendants, for their part, should avoid the reflexive “it’s hockey/soccer, injuries happen” line. That argument fails where execution is objectively dangerous in context. If relying on volenti or a release, the record must show the participant truly accepted the legal risk, including conspicuous wording delivered at the right time, capacity to consent (no intoxication or duress), a fair opportunity to read, and scope that clearly covers the activity and the defendants. Leagues and facilities should align rules, discipline, and risk communications with actual hazards at the relevant level of play, because paper alone will not cure negligent operation.

Working Summary of the Law^[15]

Stepping back, the working summary is straightforward.

Volenti is a narrow defence that turns on informed acceptance of legal risk, not mere awareness of physical danger, as emphasized by the Supreme Court in Waldick.

Player-versus-player standards are calibrated to the sport and level of play. Manitoba and Ontario authorities often cite Agar v. Canning for an intent/recklessness threshold, while British Columbia leans on a reasonable-competitor negligence frame, reaffirmed in Unruh, Zapf, and Miller.

Waivers and volenti are different tools. A clear, properly delivered release can succeed, as in Dyck, but it will not excuse negligent operation, as Crocker illustrates.

And across the country, occupiers’ liability statutes keep a baseline of reasonableness in place, with “willingly assumed risk” carve-outs that are narrow and context-specific.

Final Takeaway

The takeaway is simple and practical. Facts and context rule. Courts look at the sport, the level of play, the rules and their enforcement, how the play unfolded in real time, and what everyone reasonably expected. Volenti is narrow. Waivers can work but only if drafted and delivered properly. Occupiers remain on the hook for basic reasonableness. Do not conflate “this sport is rough” with “anything goes.”

Disclaimer: This blog is informational only and not legal advice. Cases cited are from CanLII and support only the propositions stated above. If you have a live file, get jurisdiction-specific advice on facts, rules, and contracts in play.