Transcript PROCEDURAL FAIRNESS

RISK MANAGEMENT
Rachel Corbett
Swim Ontario AGM
Toronto
September 2007
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www.sportlaw.ca
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Responsibility  safe environment
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Theory  the law (tort, human rights,
administrative, criminal)

Practice  risk management
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NEGLIGENCE
An action is negligent only when:

a duty of care is owed,

and the standard imposed by this duty is
breached,

and harm or loss is suffered,

and the breach of the standard causes or
substantially contributes to the harm or loss
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DUTY OF CARE
To whom do you owe
a duty of care?
“To anyone who you ought to know could
be affected by your actions”
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STANDARD OF CARE
“What a reasonable person would do, or not
do, in similar circumstances”
The reasonable person is interpreted to mean
a person similar to yourself, in skills,
experience and knowledge
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STANDARD OF CARE

Written/published standards

Unwritten/unpublished
standards

Case law

Common sense
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WRITTEN STANDARDS
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Government statutes
and regulations
Equipment standards
Organization policies
and rules
Code of Conduct
Facility rules

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Technical rules
Safety and
emergency response
procedures
Coaching manuals
Tournament/event
guidelines
Job description
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UNWRITTEN STANDARDS
COMMON PRACTICES OF OTHER
COACHES/ADMINISTRATORS/OFFICIALS
– Remain current with new developments in your sport
– Attend workshops such as this one
– Continually upgrade your certification
– Pursue other professional development
– Network with peers
– Read!
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CASE LAW
Previous court decisions about similar fact
situations
 Principles of common law which evolve over time
 Acts as a guide and provides important
information to coaches

– Dyck v. Manitoba Snowmobile Association
– Myers v. Peel County Board of Education
– Hamstra v. B.C. Rugby Union
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COMMON SENSE
Intuition
 Knowledge
 Experience
 Judgment
 “Gut” feeling

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STANDARD OF CARE
Highest possible level of care
- risk is eliminated
Behaviour is
not negligent
Reasonable standard of care in the
circumstances - risk is appropriately
managed
Behaviour is
negligent
Failure to exercise any care
- risk is ignored
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St. John’s School - June 1978

No route maps drawn up, noone familiar with route
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Group had no rescue
equipment and no emergency
procedures

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Some participants could not
swim: leaders did not know
which could and could not
No-one had canoed since the
previous autumn

There had been no preparation
for the trip such as physical
conditioning, learning canoe
rescue techniques, lifesaving
training

Canoes had been modified to
accommodate more cargo

Participants’ physical
endurance was reduced by all
night driving and early start,
lack of hot food at breakfast or
lunch
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Strathcona Tweedsmuir School
- February 2003
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OE 25 – For credit course
for 10th graders
Year-long preparation and
training for trip (fitness,
avalanche awareness and
rescue)
2 avalanche-certified
leaders
Day before accident
practiced digging
avalanche pits, doing
snow-pack and
compression testing
Avalanche hazard “moderate” at
and below tree-line
 Students followed avalanche
protocol (50 ft. separation)
 At mid-morning break quizzed
on avalanche safety
 Each student carried shovel,
probe and beacon
 All 17 on trip buried – 10 survived
 Group executed a perfect rescue
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EMERGING CONCEPT IN RISK
MANAGEMENT …
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Risk management efforts must recognize
the “culture” of an organization or program
Risk management analysis must occur in
context of an organization’s “tolerance for
risk”
Understanding and articulating this
requires skilled communication
The answers are not black and white
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Do the circumstances impose a duty of care?
YES
NO
Has the standard of care imposed by this duty been breached?
YES
NO
Is there resulting harm or loss?
YES
NO
Did the breach of the standard cause or substantially contribute to
the harm or loss?
YES
Negligence! Is there liability?
NO
maybe YES, maybe NO
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NEGLIGENCE v. LIABILITY
NEGLIGENCE  refers to conduct
LIABILITY  refers to
responsibility for negligent conduct
(… it might not be the person who was
negligent!!)
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RISK CONTROL STRATEGIES

Retain the risks  you don’t do anything because
the risk is inherent in the sport
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Reduce the risks  you take steps to reduce the
likelihood of occurrence, and/or the consequences, largely by
changing human behaviour

Transfer the risks  you accept the level of risk but
you transfer this risk to others through contracts

Avoid the risks  you decide simply to NOT do
something
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CHOICE OF STRATEGY
Risks occur along a continuum from low to high …
Low
Retain
Medium
Reduce
Transfer
High
Avoid
Risk control strategies tend to follow the same pattern …
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RISK MANAGEMENT
IS NOT ROCKET SCIENCE
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RISK MANAGEMENT =
ORGANIZED
COMMON SENSE
(where common sense = sum of
knowledge + experience)
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EVOLUTION IN RISK
MANAGEMENT APPROACHES
Traditional approach (1980s) 
risk management to prevent injury and liability
 Modern approach (1990s) 
risk management to avoid a wider array of legal
issues and loss exposures
 ‘True Sport’ approach (today) 
risk management is a comprehensive
approach to improve performance through
effective governance, efficient planning,
relevant programming (AS/NZS 4360)
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OTHER LEGAL ISSUES OF
INTEREST TO COACHES
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Coaches most often come to us for assistance
with employment contracts, dismissal from
coach positions, misconduct complaints, parent
problems, discrimination matters and ‘procedural
fairness’ issues

Board of School Trustees of School District No. 37
(Delta) v. British Columbia Secondary Schools
Association (2006)
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www.sportlaw.ca
All the articles in Coaches Report/Coaches Plan
1994 to present
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Preface
Acknowledgements
1 – The Law
2 – Negligence and Liability
3 – Violence in Sport – A Legal
Perspective
4 – Administrative Law –
Fairness in Decision Making
5 – Doping in Sport
6 – Discrimination in Sport
7 – Working Relationships
8 – Intellectual Property and
Licensing Agreements
9 – Contracts
10 – Dispute Resolution
Systems
11 – Risk Management
Glossary
Index
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