Berger v. Lock, 2026 ONSC 3573,is a helpful reminder of the high bar plaintiffs face when advancing negligence claims arising from recreational sports. The case involved an injury sustained during a competitive, unsupervised pickup basketball game, where the plaintiff alleged he was pushed from behind while attempting a layup, resulting in serious knee damage. On a summary judgment motion, the defendant argued that the contact was part of the ordinary risks of the game. Justice Schabas agreed, emphasizing that in contact sports like basketball, participants implicitly assume the risk of physical contact—including fouls—unless the conduct is malicious, reckless, or clearly outside the bounds of fair play.
The Court found no genuine issue requiring a trial, concluding that even if the defendant committed a foul (or even a “flagrant” foul), the play itself—an attempt to contest a shot—was consistent with the aggressive, high-level nature of the game and not legally actionable. There was no evidence of intent to injure or conduct so egregious as to fall outside what a reasonable participant would expect. The decision underscores that breaches of game rules do not automatically translate into civil liability; rather, the focus remains on whether the conduct was fundamentally incompatible with the norms of the sport.
