Can the Government Be Negligent For Not Shutting Down A “Smoker”?
A smoker. In the combat sports world this is slang for an unsanctioned / unregulated fight. Cutting corners. Avoiding regulation. Exposing athletes to the dangers of a potentially neglectful environment.
Last week the BC Court of Appeal released reasons for judgement addressing whether the government could be liable for not shutting down such an alleged event.
The recent case (British Columbia Athletic Commissioner v. Simon Fraser University) involved a tragic outcome at an amateur level martial arts contest.
By way of background the Plaintiff Zhenhuan Lei, who was a PhD student at the University of British Columbia at the time, entered into what was advertised as a light contact martial arts tournament. He was struck in the head multiple times at the tournament. He eventually lost consciousness and was diagnosed with a subdural hematoma (bleeding of the brain) and remains in a persistent vegetative state. The competition was not regulated by the BC Athletic Commission. In the lawsuit one issue was whether the contest needed to be regulated and if so was the government negligent in not intervening.
Lei sued various parties alleging they negligently contributed to his life altering injuries. Simon Fraser University (“SFU”) was one of the parties named. SFU hosted the event on their property. SFU countersued the provincial government arguing the Athletic Commission’s office was aware that the promoter was hosting events that the Commission considered to be kickboxing without proper licensing. SFU argued the government should have shut the event down before it started and it was negligent in not doing so.
The government asked the court to dismiss the claims against them. A request that initially failed. Taking the matter to the BC Court of Appeal the court dismissed SFU’s claim. In doing so the Court left the door open for such a claim to proceed but found SFU’s allegations deficient. In short the Court said such a claim might be able to proceed but the pleadings must set out material facts setting out the government’s knowledge of the event and failure to act.
Below are some of the court’s key reasons:
[1] On October 14, 2023, Zhenhuan Lei participated in a mixed martial arts tournament called the Western Canadian Martial Arts Championship (the “Tournament”). The Tournament was held at Simon Fraser University (“SFU”). While participating in the Tournament, Mr. Lei was catastrophically injured. As a result, his committee sued the Tournament organizers and SFU for damages for personal injury. SFU brought third party proceedings against the British Columbia Athletic Commissioner (the “Athletic Commissioner”) and the Province of British Columbia (the “Province”).
[2] The Province applied to strike the third party notice on the basis that it was plain and obvious that the third party notice disclosed no cause of action. In a cross-application, SFU applied to amend its third party notice to, among other things, add Patrick Gilday, the Athletic Commissioner, personally. The applications were heard together in January and March 2025. The judge dismissed the Province’s application to strike and dismissed SFU’s application to add the Athletic Commissioner in his personal capacity. The Province and SFU have both appealed that decision.
[3] This appeal raises questions about the extent to which a government regulator can be found liable in tort for injuries to individuals taking part in regulated activities. For the reasons that follow, I would allow the Province’s appeal on the basis that the third party notice does not give rise to a cause of action against the Province and should have been struck. SFU’s appeal of the judge’s dismissal of its application to amend its pleadings to add Mr. Gilday personally was withdrawn in the course of oral submissions so it need not be considered by this Court.
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[46] Unregulated combat events are generally prohibited under the Code because they involve activities that are broadly understood to be harmful to the public good, not just to the individuals participating in the events. The Code prohibition is indicative of a societal recognition that unregulated fighting as a spectator sport, even with the consent of the participants, violates community values and is contrary to the public interest.
[47] Further, where there is to be an exemption from the Code prohibition, the statute and regulations advance the public good in another way, to ensure that event organizers need to have a licence and permit, which in turn impose some strict rules on the conduct of events. This benefits the members of the public who attend such events, by enabling them to discern between legal and licensed events and those that are neither.
[48] Thus the purpose of the ACA is to regulate the industry of combat sports for the benefit of participants, organizers, the general public and the communities in which these events take place. It is not a statute with a singular purpose, and one of its purposes is the advancement of the public interest.
[49] Generally, a statutory scheme that exists to advance the public good will not provide a sufficient basis to create proximity for the purposes of establishing a private law duty of care. This is true even if a potential claimant is a person who benefits from the proper implementation of the scheme: Frazier at para. 46; Wu at para. 56. Part of the rationale for not recognizing a private law duty of care in these circumstances is that such a duty may interfere with the government actor acting in accordance with its duties to the public: Wu at para. 56; Imperial Tobacco at para. 47.
[50] SFU relies on Fullowka as an example of a case where a private law duty of care was grounded in a regulatory statute. In Fullowka,nine miners were killed when an explosive detonated at their workplace during a labour dispute. At issue was whether the regulator had a private law duty to keep the miners safe. The legislative scheme in question imposed upon the government regulator a positive duty to act. Specifically, the mining inspector was required to order the immediate cessation of work in a mine that the inspector considers unsafe. In this way, the legislative scheme in Fullowka is different than the ACA. The ACA does not impose any positive duty to act on the Athletic Commissioner in any circumstance.
[51] In this case, a relationship of proximity between the Athletic Commissioner and individual athletes cannot be grounded in the legislation’s purpose, nor in any statutory duty to act. In my view, it is plain and obvious that the ACA and its regulations do not expressly or by implication create a private relationship of proximity between the Athletic Commissioner and individual athletes giving rise to a prima facie duty of care.
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[52] A combination of specific interactions between the parties and the government actor’s statutory powers and duties can give rise to the necessary proximity to ground a private law duty of care. However, the established approach to proximity when considering an allegation that a duty of care is owed by a government regulator requires the court to “look to the interaction between the regulator and the plaintiff to determine whether a sufficiently close and direct relationship exists to impose a prima facie duty of care”: Waterway Houseboats Ltd. v. British Columbia, 2020 BCCA 378 at para. 243 [emphasis added]. See also Tekamar Mortgage Fund Ltd. v. British Columbia, 2023 BCCA 20 at para. 67.
[53] In this case, there is no allegation that there were any interactions whatsoever between the plaintiff and the Athletic Commissioner. SFU seeks to ground its theory of proximity on interactions between the Organizers and the Athletic Commissioner. A similar theory of liability was advanced in the companion cases of Cooper and Edwards v. Law Society of Upper Canada, 2001 SCC 80,where the plaintiffs allegedly suffered harm at the hands of a party involved in a regulated activity (in Cooper,a mortgage broker; in Edwards,a lawyer) and then alleged negligence on the part of the governmental authority in charge of regulating the activity that gave rise to the plaintiff’s loss (in Cooper, the Registrar of Mortgage Brokers; in Edwards, the Law Society of Upper Canada). The plaintiffs in those cases were unsuccessful in establishing proximity in part because they had no direct relationship with the governmental authority.
[54] However, there is a body of jurisprudence in which proximity is grounded not in the direct interactions between the plaintiff and a government regulator but rather in the government’s responsibility to prevent the actions of a third party from harming the plaintiff. In such cases, proximity is established by the fact that the government entity “failed to act to protect the life and safety of individuals when the regulator was fixed with knowledge of a clear, present and significant danger posed to a discrete and identifiable segment of the community”: Taylor v. Canada (Attorney General),2012 ONCA 479 at para. 114. See also, Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 74 OR (2d) 225, 1990 CanLII 6611.
[55] In Frazier, this Court considered a proximity argument where the alleged duty of care arose “from a combination of the factual relationship between the parties and the regulator’s powers and duties under the legislation”: at para. 53. The Court in Frazier did not rule out a duty of care being imposed on a regulator where the regulator has knowledge of a danger combined with foreseeable harm to a limited group of persons: at para. 66.
[56] Cases like Taylor, Doe, and Frazier support the proposition that proximity could arguably be established absent direct communication between a government entity and a plaintiff where the regulator knew of a danger to an identifiable population and took no steps to protect those individuals. However, claims that seek to ground proximity on this basis will not survive a strike application if the pleadings do not contain the material facts necessary to establish proximity: Frazier at para. 79.
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[63] In this case, it is simply not clear on the record before this Court whether there are material facts available to SFU that would remedy the defects in the amended third party notice. If such facts exist, they have not been pleaded, nor has SFU suggested in argument that it presently knows of additional material facts that would support its claim against the Athletic Commissioner. As such, the appropriate remedy is to strike the third party notice.
[64] However, unlike Frazier and Imperial Tobacco, in this case there may be additional material facts that support proximity, known to the parties but not to the Court. As a result, while I would strike the third party claim, I would do so without prejudice to SFU’s procedural rights under the Supreme Court Civil Rules,B.C. Reg. 168/2009 [Rules]. Like any defendant, SFU may apply in the Supreme Court of British Columbia for leave to file a new third party notice under R. 3-5(4) of the Rules if it is aware of additional material facts that would support proximity, or if material facts are later discovered. Nothing in this judgment is intended to bar SFU from making such an application.
Over two years have passed since this event took place. Lei remains in a persistent vegetative state. Here is a link to a fundraiser for anyone who wishes to assist his family to contribute to his ongoing caregiving needs.
