1. 1 RISK MANAGEMENT Rachel Corbett Swim Ontario AGM Toronto September 2007

2. 2 www.sportlaw.ca

3. 3 Responsibility  safe environment Theory  the law (tort, human rights, administrative, criminal) Practice  risk management

4. 4 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

5. 5 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”

6. 6 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

7. 7 STANDARD OF CARE  Written/published standards  Unwritten/unpublished standards  Case law  Common sense

8. 8 WRITTEN STANDARDS Government statutes and regulations Equipment standards Organization policies and rules Code of Conduct Facility rules Technical rules Safety and emergency response procedures Coaching manuals Tournament/event guidelines Job description

9. 9 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!

10. 10 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

11. 11 COMMON SENSE Intuition Knowledge Experience Judgment “Gut” feeling

12. 12 STANDARD OF CARE Highest possible level of care - risk is eliminated Reasonable standard of care in the circumstances - risk is appropriately managed Failure to exercise any care - risk is ignored Behaviour is not negligent Behaviour is negligent

13. 13 St. John’s School - June 1978  No route maps drawn up, no- one familiar with route  Group had no rescue equipment and no emergency procedures  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

14. 14 Strathcona Tweedsmuir School - February 2003  OE 25 – For credit course for 10 th 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

15. 15 EMERGING CONCEPT IN RISK MANAGEMENT …  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

16. 16 Do the circumstances impose a duty of care? YESNO Has the standard of care imposed by this duty been breached? YESNO Is there resulting harm or loss? YESNO Did the breach of the standard cause or substantially contribute to the harm or loss? YESNO Negligence! Is there liability? maybe YES, maybe NO

17. 17 NEGLIGENCE v. LIABILITY NEGLIGENCE  refers to conduct LIABILITY  refers to responsibility for negligent conduct (… it might not be the person who was negligent!!)

18. 18 RISK CONTROL STRATEGIES  Retain the risks  you don’t do anything because the risk is inherent in the sport  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

19. 19 CHOICE OF STRATEGY Risks occur along a continuum from low to high … Risk control strategies tend to follow the same pattern … Low Medium High Retain Reduce Transfer Avoid

20. 20 RISK MANAGEMENT IS NOT ROCKET SCIENCE

21. 21 RISK MANAGEMENT = ORGANIZED COMMON SENSE (where common sense = sum of knowledge + experience)

22. 22 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)

23. 23 OTHER LEGAL ISSUES OF INTEREST TO COACHES 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)

24. 24 www.sportlaw.ca All the articles in Coaches Report/Coaches Plan 1994 to present

25. 25 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