Arena Use Agreement
When you enter into agreements utilizing various recreation facilities – public and private – for programming we enter into the field of contract liability.
When reviewing, renewing or negotiating your ice user/arena contracts with your local municipality or private facility owner make sure that you read and understand the contract. Know what you are signing and what you are signing responsibility for. Hockey Alberta has had a long standing approach to the belief that our members accept responsibility for their conduct within the confines of recreation facilities we have agreed to rent as we deliver our programs each season. The basic Hockey Alberta stance on this issue is that we will accept responsibility for those situations that we can control but we will not be held responsible for those situations/conditions that are beyond our control.
Most often, arenas are municipally owned, and municipalities are increasingly insisting that Hockey Canada "hold them harmless" for any liability arising from the use of the arena, and to either indemnify them for, or pay on their behalf any and all liability claims that may directly or indirectly arise in consequence of our activities. These undertakings are frequently embodied in the language of the contracts that we sign. It typically has the effect of making us contractually responsible for the acts of arena employees or sub-contractors who are not under our control, direction or supervision.
Facility contracts may contain wording which attempts to offload all responsibility when anything goes wrong, on you the user. Such things as defective arena equipment, carelessness/negligence of arena staff, and the actions of other ice users in the community are beyond your control and therefore you must not be held responsible. Bulletins have been issued annually that instruct members to carefully scrutinize the language in arena contracts that bind associations, teams and leagues to the terms therein. Look carefully at the wording of your contract and specifically for such phrases as "save and hold harmless", "responsible for any damage", and "we (facility) will not be held responsible for…".
None of us like signing this type of contract; but we are usually in a poor bargaining position. We must either sign the contract, or lose the use of the arena facility. While it is clearly unreasonable for a contract to make us responsible for the acts of persons not under our control, it may nonetheless be enforced in a court of law, especially when the two contracting parties involved are considered to be of equal "weight" in terms of knowledge and resourcefulness.
You can provide an addendum to your contract that states that you will accept the terms therein however you note in writing that you are signing for only those matters over which you have control.
There are some arguments that may help Hockey Canada when liability should more properly fall to the owner of the arena. In general, it is not quite as easy as the contract may make it appear for the arena’s owners to escape the consequences of their negligence; and may be particularly difficult for them to escape from "gross" negligence. This is especially true when the liability generating condition is under their exclusive control, when they are fully aware of a defect that has injury causing potential and when they have failed to take the proper steps to correct it.
It is reasonable to conclude that Hockey Canada and the owner of the arena have joint responsibility. Ideally, Hockey Canada and the owner will develop an operational partnership that will provide a safe environment within which hockey can be played. The "environment" can be considered as consisting of two main segments: the playing area, and the public area.
The playing area is obviously concerned with such issues as ice condition, lighting, the location and the physical design of the penalty bench, condition and composition of boards and related factors. It will take into account new technology.
For example, it is now possible to install magnetic net fastening devices rather than fixed anchors. Given that the magnetic installations have a significant potential for the reduction of injury, such equipment is not merely possible, but is now necessary if we are to:
- Eliminate avoidable injury.
- Successfully defend against liability for net related injury in the future.
The public area is concerned with the safety in the balance of the arena and the external areas surrounding the arena. It includes such obvious items as: adequate spectators screen protection, emergency exits, floor maintenance and condition (especially around snack bar concessions) and overall operations.
The difficult choice facing you in signing a contract is not likely to be an adequate legal defence against the use of an arena that is clearly defective from a safety point of view. When defects exist they should be clearly and formally identified, and Hockey Canada or its branches must take such action as may be practical and possible to work with the arena owner on a corrective program.
In situations where the owner will not cooperate, you should ensure that the list of defects is lodged with the owner, and regularly updated as conditions wither, improve or remain unchanged. The owner must be regularly informed of Hockey Canada’s concerns and of our willingness to contribute, to the best of our ability, to the accident prevention partnership.
Finally, if Hockey Canada believes that a specific defect or the total number of defects is such as to make it imprudent to use an arena for a particular purpose (league play, for example, versus practice only), the arena should not then be used for that purpose until such time as the hazard or hazards of concern have been eliminated, or at least minimized.
Hockey Canada’s potential contract liability exposure is not, of course exclusively concerned with the use of arenas. A form of contract liability may or may not exist whenever we hire or rent buses, banquet halls, or set out or accept certain terms from any of the many who provide us with supplies or services.
The principle that governs all of these contractual relationships is straightforward, we must do everything possible to resist taking on, by contract, liability that more properly belongs to others. We should review all contracts carefully with this danger in mind.
We do not seek to victimize others by unreasonably passing on our own proper common law liability via a contract, but equally, we are not prepared to become victims when others seek to pass it on to us.