SUPREME COURT OF Nova Scotia
Citation: Warren v. Football Canada, 2020 NSSC 29
Date: 20200121
Docket: Halifax, No. 478787
Registry: Halifax
Between:
Jason Kristian Warren
Applicant
v.
Canadian Amateur Football Association (Football Canada)
Respondent
DECISION
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Judge: |
The Honourable Justice Kevin Coady |
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Heard: |
September 25, 26, 30, October 1, 2019, in Halifax, Nova Scotia |
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Written Decision: |
January 21, 2020 |
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Counsel: |
Nasha Nijhawan, for the Applicant Sean Kelly and Richard Jordan, for the Respondent |
By the Court:
Background:
[1] The Applicant, Jason Warren, had a longstanding interest in the Nova Scotia Amateur Football community. He had years of experience as a player and a coach. Mr. Warren is a public school teacher by profession. In 2012 he learned of a Technical Director position with Football Nova Scotia. He decided to leave teaching to work with Football Nova Scotia. He felt that accepting this position was a step towards a full-time coaching career. Mr. Warren aspired to be a coach at the highest level.
[2] Mr. Warren started working as a Technical Director at Football Nova Scotia in 2013. In that position he was responsible for coach development, elite program development, league development, official development as well as administration and communication responsibilities. While coaching was not considered to be part of the Technical Director’s role, Mr. Warren volunteered to coach various teams. Football Nova Scotia was only too happy to take advantage of his coaching skills. After all, he had acquired the necessary accreditations and had achieved much success on the field. Mr. Warren’s coaching abilities were well respected in the Nova Scotia Amateur Football scene.
[3] In 2017 Mr. Warren was head coach of Football Nova Scotia’s U16 tackle team. That team was successful in winning a tournament termed the “Eastern Challenge”. As a result of that success, Football Canada invited him to be volunteer head coach of an Atlantic Canada U16 team scheduled to compete in an international event in Arlington, Texas in January, 2018. The Arlington, Texas competition was a Football Canada event and, as such, was the responsibility of Football Canada.
The Texas Trip:
[4] Mr. Warren’s U16 team was in Texas from January 12-18, 2018. On the last day the team was scheduled to travel by bus from their hotel to the Dallas/Fort Worth airport at 3:30 a.m. Unfortunately, one 15-year-old player (“JL”) overslept and missed the bus. At approximately 4 a.m. JL called Mr. Warren who was asleep in his room at the same hotel. Subsequently, JL took a taxi, unaccompanied, to the airport where he rejoined his teammates and flew back to Nova Scotia. This event caused much concern and discussion among parents and officials at Football Nova Scotia and Football Canada. This concern over the “JL event” culminated in an “event review” call with parents. The purpose of the call was to offer an explanation and an apology to affected parents. Mr. Warren participated in the conference call as well as representatives of Football Canada and its provincial member, Football Nova Scotia.
[5] The officials on the call apologized and discussed various concerns raised by the affected parents. They expected Mr. Warren to apologize as head coach and to accept responsibility for allowing JL to travel to the Dallas-Fort Worth Airport unaccompanied. The officials reported that, during the call, Mr. Warren became belligerent with a parent and was not prepared to apologize or accept any responsibility whatsoever. As a result of the “JL event”, and Mr. Warren’s behaviour on the event review call, Football Canada convened an emergency Board meeting and suspended Mr. Warren from all Football Canada events for three years. This suspension did not affect his position as Technical Director at Football Nova Scotia or as a volunteer coach at Football Nova Scotia events.
Football Canada/Football Nova Scotia:
[6] Football Canada is the national governing body for the sport of amateur football in Canada. Its mandate is to initiate, sustain and encourage programs, services and activities targeted at all levels of amateur football. Football Canada’s membership is comprised of the amateur football organizations from each of the provinces and territories of Canada. Football Nova Scotia is a member of Football Canada. It is not uncommon for officials of the provincial organizations to hold positions with Football Canada. Any time that a provincial team played in a Football Canada sponsored event, they were subject to Football Canada’s authority. The 2018 International Bowl was a Football Canada sponsored event.
The Proceeding:
[7] Mr. Warren has brought this proceeding by way of Application in Court pursuant to Civil Procedure Rule 5. The following individuals filed affidavits on behalf of the Applicant:
• Jason Warren, the Applicant herein, who was the head coach of the U16 team that participated in the International Bowl in Texas.
• James Izzard, Mr. Warren’s family physician. The import of his evidence relates to damages.
• Patrick Skerry, volunteer coach for Football Nova Scotia. He attended the International Bowl in Texas. Mr. Skerry was suspended at the same time as Mr. Warren, but that suspension was later revoked when new information became available.
• Dani-Lynn Warren, spouse of Mr. Warren.
• Brad Kelln, a clinical and forensic psychologist. He treated Mr. Warren and his evidence relates to damages.
[8] The following individuals filed affidavits on behalf of the Respondent:
• Shannon Donovan, Executive Director of Football Canada.
• Kim Wudrick, President of the Board of Directors of Football Canada.
• Karen Ouelette, Executive Director of Football Nova Scotia.
• Louie Velocci, Board member of both Football Canada and Football Nova Scotia.
• Edwin Rosenberg, Psychiatrist retained by the Respondent to perform an independent medical examination of Mr. Warren’s reported mental distress.
Relief Sought:
[9] Mr. Warren testified that the suspension caused his life to unravel. He stated that he could not believe everything he worked for could be taken away from him, including his reputation in the football community. He alleges that he was “targeted and betrayed”. Mr. Warren also stated that the entire process had a significant impact on his mental health, such that he required professional help. He describes the impact at paras. 111-112 of his affidavit:
The impact of the suspension and lack of an appeal process took a significant toll on me. I was irritable and distracted at home with my wife and my young sons. I stopped sleeping and my appetite was affected. I became embarrassed to go out, afraid that I would have to explain myself to people who didn’t know about the suspension. I was even more apprehensive about speaking to people within the football community who did know. I felt totally overwhelmed, and unable to put my feelings into words.
This process shook my sense of self. I spent my whole life believing that hard work and integrity would be rewarded, and that people would treat me fairly if I was honest and fair with them. The unfairness of the suspension and Football Canada’s response to my appeal affected me profoundly. I took it very personally, particularly when I compared how easy the process had been for Pat. I feel stripped of my sense of belonging in a community that has been integral to my identity for my whole life.
[10] Mr. Warren feels that he has no future in football, either as a coach or in any other capacity. He reports feeling isolated and disrespected.
[11] In this application Mr. Warren seeks a declaration that Football Canada has breached its contractual obligations by issuing the suspension in contravention of its by-laws, policies and rules, and in breach of its duty of good faith and fair dealing. Mr. Warren also seeks damages for the Respondent’s breach of contract, including:
• general or moral damages for reputational harm and loss of career opportunities in elite football coaching;
• general or moral damages for mental distress and loss of enjoyment;
• special damages for legal fees incurred by Mr. Warren during the internal appeal process, and past and future counselling costs; and
• punitive damages.
[12] Further, or in the alternative, Mr. Warren advanced a claim in negligence seeking damages for:
• mental suffering and reputational harm;
• loss of career opportunities in elite football coaching;
• aggravated damages; and
• special damages, including but not limited to loss of wages and past and future counselling costs.
[13] Mr. Warren argues there was a contract between Football Canada and himself and that Football Canada breached that contract by not providing fairness in the discipline process. The Respondent argues there was no contract. It submits that neither a breach of procedural fairness, nor its by-laws and policies, created a contract.
Findings of Fact:
[14] The U16 team was in Texas between January 12-18, 2018. They travelled by air and bus and were booked into a local hotel. Mr. Warren was head coach. Several other coaches and trainers attended the Bowl. Parents of some of the boys accompanied the team to observe their sons’ performances. Football Canada officials were responsible for the overall management of the team. Chaperones were put in place to ensure the boys behaved appropriately and were in their rooms at curfew. Mr. Warren was not scheduled to travel by air with the team, neither on the flight departing Halifax nor on the flight returning to Halifax.
[15] On January 18, 2018, the players were scheduled to board a bus at 3:30 a.m. to travel to the Dallas/Forth Worth airport. JL overslept and the bus left without him. Football Canada staff member, Aaron Geisler, incorrectly noted JL as being present on the bus when he was not. After the bus left the hotel, at approximately 4 a.m., JL called Mr. Warren from the hotel lobby. Mr. Warren was sleeping at the time as he was not travelling with the team and had no defined role in their departure. After a brief conversation, JL took a taxi to the airport where he met with his teammates and flew back to Halifax.
[16] There is some dispute as to what was said in the early morning phone call. Mr. Warren describes the conversation at para. 26 of his affidavit:
I suggested to JL that he should check with the front desk to see if there was an airport shuttle from the hotel. After more conversation with an unknown person or persons, JL told me that there was no shuttle that could get him there on time. It seemed like someone else suggested to him that he could take and [sic] Uber, and he repeated that suggestion to me. He is still talking to someone else, in addition to me. I told him that he couldn’t take an Uber because it wasn’t safe and because he didn’t have a credit card, but he didn’t seem to be paying attention to what I was saying. Eventually he did come to the conclusion that he couldn’t take an Uber. Then suddenly he tells me he has cash and is going to take a cab, says ‘thanks, Coach’ and is gone.
On cross-examination Mr. Warren added nothing to the above description of the early morning call with JL. After reviewing all the evidence, I find Mr. Warren’s description of the conversation to be factually correct.
[17] Once the team and officials arrived back in Halifax word of the JL event became a hot topic. JL’s mother raised the subject with Ms. Ouelette. On January 22, 2018, Football Canada received another parental complaint about the Texas trip. Officials and parents were very critical of Mr. Warren’s response to JL’s phone call. It was felt he should have gotten out of bed, gone to see JL in the lobby, and accompany him to the airport rather than have him travelling alone in a very large and unfamiliar American city.
[18] Mr. Velocci testified that, following a football practice held on January 22, he had a conversation with Mr. Warren about the JL event. He attributed the following comments to Mr. Warren:
Missing the bus and taking the taxi to the airport was a good life lesson for the 15-year-old player who needed to get his shit together.
We did worse when we were kids.
Mr. Velocci was shocked at Mr. Warren’s defensiveness. I accept Mr. Velocci’s version of the above conversation as factually correct.
[19] On January 30, 2018, Ms. Ouelette, Mr. Velocci, and another Football Canada official had a discussion about the JL event and other parental concerns about the Texas trip. They agreed the JL event and Mr. Warren’s responses were concerning. They agreed that Ms. Ouelette would have a discussion with Mr. Warren to hear what he had to say about his involvement in the matter of the 15-year-old taking a taxi to the airport alone. This conversation took place the following day. Mr. Warren was told about JL’s mother being very upset. Mr. Warren’s response was an admission to telling JL to take a cab and to text him when he got to the airport. He further stated that he felt this was the best option so that the 15-year-old didn’t miss his flight. He did briefly acknowledge that it may not have been the right choice. I am satisfied that Mr. Warren made these remarks to Ms. Ouelette.
[20] Given the overall situation, Football Canada decided there should be an “event review” call. On February 1, 2018 an agenda was prepared and one listed item was “Coaches on site – Jay Warren”. The call involved Mr. Velocci, Mr. Warren, Ms. Ouelette, Ms. Donovan, two other Football Canada officials, as well as several parents. The principal purpose of the call was to apologize to the parents and to discuss better practices. Paragraph 42 of Mr. Velocci’s affidavit sets forth the content of the “event review” call:
• Employees of Football Canada apologized to the parents for concerns and issues that arose at the 2018 International Bowl;
• Mr. Warren became aggressive with a parent of a U16 Team player who raised issues with the format of the International Bowl and Mr. Warren called into question that player’s skills and abilities.
• Mr. Warren was asked by the Player’s Mother about directing the 15-year-old Player to take a cab to the Airport alone and unaccompanied;
• In response, Mr. Warren:
(i) Stated that the 15-Year-Old Player was ‘an issue all week and needed to get his stuff together because he needs to take ownership’;
(ii) Said that sending the 15-Year-Old Player to the Airport alone and unaccompanied was ‘a good life lesson for him’; and
(iii) Criticized the Player’s Mother for being late submitting paperwork for the 2018 International Bowl.
• The Player’s Mother then asked Mr. Warren whether late submission of paperwork for the 2018 International Bowl was a ‘rationale for child abandonment’; and
• At this time, I interjected and advised the parents on the Conference Call:
(i) That I apologized on behalf of Football Nova Scotia and Football Canada for the issues that had occurred at the International Bowl;
(ii) That I was appalled by the discussion that had ensued on the Conference Call; and
(iii) That I would raise the issues with the Football Canada Board and ensure their concerns were heard and properly addressed.
The testimony of Ms. Donovan and Ms. Ouelette corroborates Mr. Velocci’s description of the “event review” call. Mr. Warren’s response was that he has no recollection of being aggressive on the call. I accept Mr. Velocci’s evidence on point as factually correct.
[21] On February 2, 2018 Mr. Velocci contacted Mr. Wudrick, Ms. Donovan and another Football Canada official to request an emergency Board meeting of Football Canada. That meeting was scheduled for February 5, 2018. The Board did not give Mr. Warren notice, as Mr. Velocci did not see that as obligatory. The Board felt that Mr. Warren’s disregard for JL’s safety was unacceptable and, accordingly, he was sanctioned with a three-year suspension from all Football Canada events. On February 6, 2018, Mr. Warren received his suspension letter. The following are the last four paragraphs:
The Board unanimously feels that your lack of understanding of the potential risk to the Player who you instructed to grab a cab to the airport at 4:00 am, unescorted, displays a significant disregard and a lack of general consideration for the safety of the Player.
Additionally, it is the unanimous view of the Board that your interactions during the call that was established by Football Canada with parents of the players from Nova Scotia, further underline your lack of accountability and understanding of the gravity of the situation.
Football Canada views this lack of care very seriously and the Board unanimously agreed to the following sanction; effective February 6, 2018 you will be suspended from any participating [sic] in any sanctioned Football Canada event as a Coach, for a period of three years.
You have the right to appeal this to the Football Canada Board of Directors; if you wish to appeal it must be requested in writing within one month of February 6th by email which should be addressed to Shannon Donovan at [lists email address in original].
[22] On February 7, 2018 Mr. Velocci and Mr. Warren spoke of the suspension. I accept that Mr. Warren refused to accept any responsibility by stating this was “not his issue”. Mr. Velocci told Mr. Warren that, if he wishes to appeal, Football Canada would make sure he received that option.
[23] On February 13, 2018, an in-person meeting was held involving Mr. Velocci, Mr. Warren, Ms. Ouelette and others from Football Nova Scotia. The events of that meeting are set forth in paras. 70-72 of Mr. Velocci’s affidavit:
• Mr. Warren expressed that he felt that Football Canada was using him as a ‘scapegoat’.
• Mr. Warren said that he felt he did not have an opportunity to tell his side of the story. He then walked us through what happened and admitted he should not have put the 15-Year-Old in a cab, but emphasized that he told the 15-Year-Old Player not to take an Uber;
• I asked Mr. Warren why he didn’t accompany the 15-Year-Old Player to the Airport himself. He responded by asking two hypothetical questions:
(i) What if he had been drinking alcohol the night before? I asked Mr. Warren if he had been in fact been [sic] drinking and he said he had not. I then explained that Mr. Warren had other options, whether he had been drinking or not, including calling other persons affiliated with Football Canada and/or Football Nova Scotia who were at the International Bowl.
(ii) What if he had accompanied the 15-Year-Old Player in a cab and the 15-Year-Old Player later accused Mr. Warren of touching him in appropriately [sic]? I scoffed at this suggestion and asked Mr. Warren if he could possibly be serious.
• I then explained that Mr. Warren owed a duty of care to each of the players on the team and that he had breached that duty when he directed the 15-year-old Player to travel to the Airport alone and unaccompanied;
• Mr. Warren insisted that he had done ‘nothing wrong’ and said Football Nova Scotia was not supporting him;
• I asked Mr. Warren how he would react if one of his own children as [sic] instructed by a coach to take a cab alone and unaccompanied to a busy airport in a foreign country – he said he would be ‘fine with it’; and
• Additionally, he stated that he had been texting the 15-Year-Old Player and his teammates to ensure he arrived safely at the Airport.
The above content was corroborated by Ms. Ouelette. Mr. Warren does not refute Mr. Velocci’s version of this meeting. I therefore accept it as an accurate record of that meeting.
[24] On February 12, 2018, Mr. Warren wrote to Mr. Wudrick stating, “I would like to formally request an appeal.” He requested the Football Canada Appeal Policy and Disciplinary Policy. Mr. Wudrick responded by indicating Mr. Warren had 14 days to appeal and enclosing Football Canada’s Harassment and Abuse Policy which had an appeal mechanism within.
[25] On February 22, 2018, Mr. Warren wrote to Mr. Wudrick stating, “I am in the process of putting my appeal letter together in response to the letter you sent me dated February 6, 2018.” Mr. Warren requested the following four items:
1. Please send the specific details surrounding the original complaint (who initiated the complaint, the specific details contained within the complaint, along with the date the complaint was filed).
2. Please send the written policy specific to ‘duty of care’ as it pertains to my suspension, in relation to Football Canada Volunteers, Coaches, and Football Canada (FC) staff and any other (FC) representatives.
3. Please send a list of the sanctions given to the other (FC) representatives who received disciplinary sanctions relating to the departure process on January 18, 2018, during the U16 International Bowl.
4. Please send me the minutes of any recordings from the call on February 1, 2018 with the NS parents as it pertains to the letter of suspension.
[26] On February 28, 2018, Mr. Wudrick responded to Mr. Warren as follows:
Sorry Jay, I did receive your email, we are looking to review the [sic] your email with our corporate lawyer and get back to you after that. Once that has been reviewed I will send you an email back to you with answers to your questions and the 14 days for the appeal can start then.
On February 28, 2018, Mr. Wudrick sent Mr. Warren the Minutes of the February 1, 2018 “event review” call. He then stated, “The official reply is being reviewed by the Executive Directors and the Football Canada legal console [sic]. We should have the reply back to you next week.”
[27] On March 7, 2018 Mr. Wudrick replied to Mr. Warren stating, “You have 14 days as of March 8, 2018 to provide your appeal in writing to Kim Wudrick. If you do move forward with the appeal we will provide an independent panel.” Mr. Wudrick then provided a response to Mr. Warren’s letter of February 22, 2018. The letter concluded with the following:
Football Canada has set up an Appeal Board, independent panel, to review your appeal. Members of the Appeal Board will review your appeal once they received your appeal in writing. If any further action is needed from the Appeal Board, Football Canada will set up a Conference Call with the Appeal Board and yourself. The Appeal Board has been made up of Football Canada Members without any involvement of any Member of Football Canada Board of Directors. This Appeal Board will be presented to you once Football Canada has received your appeal in writing of appeal of 3-year suspension from any Football Canada Event.
I HAVE ATTACHED A COPY OF THE MINUTES OF THE INTERNATIONAL BOWL REVIEW, WHICH YOU WERE APART [sic] OF THAT LEAD [sic] TO YOUR 3 YEAR SUSPENSION FROM ANY FOOTBALL CANADA EVENT.
Nothing further was heard from Mr. Warren, personally, regarding perfecting his appeal.
[28] On March 13, 2018, Mr. Wudrick received a letter from Dillon Trider, a Halifax lawyer retained by Mr. Warren. Mr. Trider begins his letter as follows:
I have been retained by Jason Warren in respect of the Suspension. My instructions are to appeal the Suspension, however, as I will set out below, an appeal does not appear to be the appropriate recourse for Mr. Warren because it is clear that there is no complaint properly before an Executive or Panel of Football Canada in accordance with the terms of its Harassment and Abuse Policy.
Mr. Trider demanded that Mr. Warren’s suspension be immediately lifted. He went on to state that “Football Canada’s handling of the matters relating to Mr. Warren’s conduct at the 2018 International Bowl violated his fundamental rights to procedural fairness”. He described the investigation as “mishandled and misguided”. Mr. Trider threatened legal action if the suspension remained.
[29] On March 22, 2018, Mr. Wudrick responded to Mr. Trider as follows:
Dillion, [sic] the Board of Football Canada is not prepared to lift the suspension as they believe that some form of disciplinary action is appropriate given the circumstances. Football Canada does not have an appeal policy to address Decisions of the Board and recommend that the matter be resolved through Resolution Facilitation at the SDRCC.
Mr. Trider responded, stating he is authorized to propose the following:
1. The question of Mr. Warren’s suspension be immediately referred to arbitration through the SDRCC.
2. Football Canada will bear all arbitration costs of the SDRCC.
3. Until the date the [sic] of the decision of the SDRCC, Mr. Warren will be permitted to act as coach of the U16 Provincial team in respect of the Eastern Challenge. In the event the suspension is upheld he will give up these coaching responsibilities if it is set aside he will, of course, be able to continue to be coach. (sic)
4. Mr. Warren and Football Canada will agree that the decision of the SDRCC will be final in respect of the suspension.
He went on to state that, if the above conditions were not met, he would commence legal action.
[30] On March 27, 2018, Mr. Wudrick responded as follows:
Dillion, [sic] thank you for your email dated March 23, 2018.
Football Canada does not consent to your proposal and we propose our initial recommendation that this matter be dealt with by Resolution Facilitation at the SDRCC, with each party bearing its own costs.
A copy of the Resolution Facilitation Request Form is attached for your review.
Mr. Wudrick testified that, up to that date, Mr. Warren had refused to participate in any mediation process offered by Football Canada, either through SDRCC or otherwise. The record supports this statement.
[31] On April 25, 2018, Mr. Velocci contacted Mr. Warren directly to re-offer mediation. Mr. Trider advised Football Canada that Mr. Velocci was not to contact Mr. Warren directly about the suspension.
[32] On April 27, 2018, Mr. Grant Machum, counsel to Football Canada, wrote to Mr. Trider, re-offering mediation:
We are strongly recommending mediation in an effort to maintain the relationship between our respective clients. Litigation should always be a final option and, as you know, is highly destructive of relationships such as that between Mr. Warren and Football Canada. You will recall that we proposed mediation even before the Application was filed. We are prepared to work with you to reach agreement on terms of the mediation.
It should be noted that, on April 10, 2018, Mr. Trider filed a Notice of Application in Chambers. Clearly, Mr. Warren upped the ante to adversarial rather than a mediated approach. On August 1, 2018, Mr. Machum wrote to Mr. Warren’s new counsel, Ms. Nijhawan, following her filing of this Application in Court on July 30, 2018. Mr. Machum wrote as follows:
It is highly unfortunate that your client has refused to participate in the mediated processes that have been offered repeatedly and has decided to proceed with protracted litigation. As we have reiterated numerous times to both yourself and to Mr. Warren’s previous counsel, it has always been the hope and intent of Football Canada and, we understand, that of Football Nova Scotia to preserve the relationship with Mr. Warren.
It is for this reason we have proposed mediation both through the Sport Dispute Resolution Centre of Canada as well as informally. Unfortunately, Mr. Warren has rescinded his willingness to attempt mediation and now, through the Application in Court, seems intent on destroying the relationship with Football Canada and Football Nova Scotia by filing an inflammatory pleading with numerous false statements and pursuing litigation.
With a view to resolving this matter in a timely and cost effective manner, Football Canada remains willing to participate in mediation.
[33] On October 20, 2018 Mr. Machum’s colleague, Mr. Sean Kelly, wrote to Ms. Nijhawan, as follows:
We recently met with our clients and reviewed the facts underlying this matter. To resolve the issue of penalty Football Canada has determined that it is willing to reduce the suspension of Mr. Warren’s ability to coach at Football Canada sanctioned events from 3 years to 1 year. This offer is conditional on Mr. Warren acknowledging that (a) he had some responsibility for the 15 Year Old Player when he answered the phone during the early morning hours of January 18, 2018 which resulted in him travelling to a busy international airport alone and unaccompanied; and (b) that he acted inappropriately on a conference call with the Nova Scotia parents of the U16 International Bowl Team on February 1, 2018.
Provided your client acknowledges the above, his suspension from coaching at Football Canada sanctioned events will be lifted on February 6, 2019.
This correspondence was sent “With Prejudice”. Mr. Warren showed no interest in this proposal and forged ahead with this litigation. It should be noted that Mr. Warren resigned from his position as Technical Director with Football Nova Scotia on July 29, 2018, effectively terminating his relationship with the amateur football community.
The Applicant’s Position:
[34] The Applicant argues that there was a contract between Football Canada and himself and that Football Canada breached the terms of that contract. He submits that Football Canada issued the suspension in contravention of its own by-laws, policies and rules and in is breach of its duty of good faith and fair dealing. Mr. Warren further argues that Football Canada breached its contractual obligations by imposing the suspension in a manner that contravened its “Harassment and Abuse Policy” (HA Policy). The HA Policy’s procedural requirements were (1) receipt of complaint, (2) fact finding with a report and (3) adjudication by a three-member panel of unbiased individuals.
[35] Additionally, Mr. Warren advances a claim in negligence. He claims that Football Canada owed him a duty of care and that its breach caused him to suffer mental distress. He claims that Football Canada’s actions in suspending him caused him to suffer reputational and psychological harm, including developing an adjustment disorder.
[36] Mr. Warren further argues that Mr. Velocci and Football Canada effectively thwarted his attempts to appeal his three-year suspension and that contributed to his distress and other mental health issues. He further submits that the lack of appeal led to his isolation from the amateur football community and essentially destroyed his long-term aspirations.
The Respondent’s Position:
[37] Football Canada submits there was no contract with Mr. Warren because he was a volunteer in a not-for-profit organization. It relies on Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, [2018] 1 S.C.R. 750, in support of this position. The Wall case was a judicial review.
[38] Football Canada refutes the suggestion that a contract between a volunteer and itself can be based on its by-laws, policies and rules. It argues that their by-laws apply only to “ordinary members” who are made up of provincial and territorial organizations. Only these members are entitled to have their rights enforced pursuant to the terms of the by-laws and that registered participants have no rights to enforce. Mr. Warren was a registered participant by a virtue of his volunteer coaching.
[39] Football Canada further articulates its position at para. 40 of its pretrial brief:
In this case Football Canada has not agreed to provide Mr. Warren with any services. It collects no dues from him. Mr. Warren has no right to vote. Since Mr. Warren is not a member of Football Canada, he bears the onus to establish that a contract exists between him and Football Canada because of his status as a registered participant. As such, the Supreme Court of Canada directs, in Wall that “the general principles of contract law would apply, meaning that Mr. Warren must establish the five essential elements of a contract:
1. Offer
2. Acceptance
3. Consideration
4. Intent to create legal relations
5. Certainty of terms
Football Canada submits that courts should not intervene in disputes over membership in a voluntary organization where no civil or property right is granted by that membership, even if there is an alleged breach of natural justice.
[40] Football Canada refutes that there is a duty of good faith and honest performance at play in this case. It acknowledges that, while there are classes of relationships that call for a duty of good faith to be implied by law, such is not the case between a not-for-profit and a volunteer member.
[41] Football Canada also argues that the suspension did not impact Mr. Warren’s future aspirations as he suggests. It states, at para. 59 of its pretrial brief:
Football Canada’s decision to suspend Mr. Warren did not – when he was Technical Director of Football Nova Scotia – and does not now – affect his livelihood. The only repercussion of Football Canada’s decision was that Mr. Warren could not coach at Football Canada sanctioned events for three years. Mr. Warren remained employed as Technical Director of Football Nova Scotia and continued to receive full salary. In fact, Football Nova Scotia renewed his contract on March 29, 2018 for a one-year term and increased his remuneration by agreeing to pay for Mr. Warren’s car-parking charges.
[42] On the negligence claim Football Canada argues that it did not owe a duty of care to Mr. Warren and that he failed in his onus to establish such a duty as set forth in Anns v. Merton London Borough Council [1987], A.C. 728 (H.L.). Further, Football Canada states that a remedy for “negligent infliction of mental suffering” is not available to Mr. Warren. It points out that he has failed to establish that any sought-after damages were caused in fact and in law by Football Canada. Football Canada reminds us that causation in fact is based on the “but for” test; that Mr. Warren must prove that he would have suffered no damage but for the negligence of Football Canada. The import of Football Canada’s position on causation is that Mr. Warren’s decisions alone caused his mental distress and any reputational damage in the amateur football community.
[43] Throughout this litigation, Football Canada has continuously made reference to how much it valued Mr. Warren’s participation in amateur football. While it was committed to preserving his contributions, it felt it could not ignore Mr. Warren’s handling of the JL event and his comments during the “event review” call. It felt that some form of sanction was warranted.
[44] Throughout this litigation Football Canada has continuously made reference to the fact that it valued Mr. Warren as an employee of Football Nova Scotia (Technical Director) and as a volunteer coach. It had invested in his development over several years and had a genuine interest in keeping him involved with Football Nova Scotia. Football Canada and Football Nova Scotia felt they could not ignore Mr. Warren’s handling of the JL event and his comments during the event review call.
[45] Football Canada feels that Mr. Warren, instead of taking advantage of their good will, essentially torpedoed it. He did that by steadfastly refusing to accept any responsibility for the JL event and to apologize to parents. He pursued litigation instead of perfecting his appeal or pursuing mediation which was offered over several months. Football Canada feels that Mr. Warren’s choices caused the injuries of which he complains.
The Sanction Process:
[46] Mr. Warren’s Achilles heel was his ongoing refusal to accept any responsibility for the JL event and to offer the appropriate apologies. Allowing JL to go off alone in a cab at 4 a.m. in a strange city represented a significant lapse in judgment. Mr. Warren’s view of the JL event is unsupportable. He was an adult coach and JL was a 15-year-old boy in a foreign city. Even in the absence of prescribed duties, he had an obligation to assist JL in a meaningful way. Once JL called him, JL became his responsibility. I find it hard to understand how an experienced coach and teacher did not see it this way. It was clearly a serious error in judgment that warranted a sanction of some sort. Mr. Warren’s attitude was exacerbated in the event review call. It has continued to be present throughout the litigation culminating in his refusal to accept a one-year suspension, the same resolution offered to, and accepted by, Mr. Skerry.
[47] The evidence, as a whole, satisfies me that Football Canada was woefully unprepared to deal with the complaints against Mr. Warren and that the process chosen offended the principles of procedural fairness. In relation to the decision to suspend, Mr. Warren should have been fully apprised of the specifics of the complaint. There should have been a more fulsome investigation which should have been disclosed and Mr. Warren should have been given the opportunity to tell his side of the story in a formal setting. Notwithstanding, I am firmly of the view that Mr. Warren was well aware of the nature of the complaint.
[48] The problem was that Football Canada had no vehicle to deal with the complaint. After discussions among several officials, it was determined that the complaint would be heard by the Board of Football Canada. Given a lack of discipline policies, it was decided to proceed under the auspices of their harassment and abuse policy. This was a cumbersome vehicle in that it was designed to address internal harassment and abuse and Mr. Warren’s situation did not fit in those categories. The shortcomings of the process reinforced Mr. Warren’s belief that Football Canada and Football Nova Scotia were out to get him. They also blinded him from realizing that an effort was underway to preserve his relationship with the amateur football community.
The Appeal Process:
[49] I do not accept Mr. Warren’s assertions that Football Canada misrepresented the appeal process or thwarted Mr. Warren’s attempts to appeal his suspension. I recognize that Football Canada did not have a formal appeal policy from a decision of its Board. However, I am satisfied that Football Canada recognized that one needed to be created for Mr. Warren’s appeal. While Football Canada’s efforts were cumbersome, they were not obstructive. I find that the failure to appeal is the responsibility of Mr. Warren. One, he failed to perfect his appeal and, two, he initiated litigation while at the same time indicating an intention to appeal.
[50] On February 12, 2018, Mr. Warren wrote to Mr. Wudrick stating, “I would like to formally request an appeal.” This was in response to Mr. Wudrick’s February 6, 2018 suspension letter which ended with the words: “You have the right to appeal this to the Football Canada Board of Directors …”. Additionally, Mr. Warren requested “the Football Canada Appeal Policy and the Football Canada Disciplinary Policy”. Mr. Wudrick then sent Mr. Warren the range of sanctions and the appeal mechanism. On February 22, 2018, Mr. Warren requested four items from Mr. Wudrick and requested an extension to the appeal window. On February 26, the extension was granted until Football Canada was able to provide the four items sought by Mr. Warren. On February 28, Mr. Wudrick provided one item (Minutes of February 1st event review call). On March 7, 2018, Mr. Wudrick wrote to Mr. Warren in response to the outstanding requests of February 22, 2018. Also, in that communication Mr. Wudrick stated: “Football Canada stands by their decision, you have the right to request an appeal.” He further stated: “You have 14 days as of March 8, 2018 to provide your appeal in writing to Kim Wudrick, if you do move forward with the appeal, we will provide an independent panel.” On March 13, 2018, Mr. Warren commenced litigation.
[51] Football Canada was obviously uncertain about how to run an appeal from a decision of its Board. A review of the email exchanges would suggest Football Canada was making it up as they went along. It is certainly arguable that Mr. Wudrick’s letter of March 7, 2018 was poorly considered. Further, its decision to utilize the harassment and abuse policy was a poor choice. Whatever Mr. Warren’s transgressions, they did not amount to harassment and abuse. While Football Canada’s responses to Mr. Warren may have been wanting, they were not intended to deter him from appealing his suspension. There is no evidence to suggest that Mr. Warren’s failure to perfect his appeal was the result of Mr. Wudrick’s correspondence or influence.
[52] Mr. Warren argues that Football Canada’s efforts to mediate the dispute through the SRDDC was an effort to block or frustrate the appeal. I do not accept this assertion. It is noteworthy that Mr. Trider’s letter of March 13, 2018 to Mr. Wudrick references an appeal by stating: “In respect of any appeal, it is clear that the documentary record is sorely lacking.” Mr. Trider goes on to demand a more wholesome record. The mediation process was handmade for this dispute. It could have provided all involved an opportunity to correct the procedural deficiencies. It also had the potential to preserve Mr. Warren’s reputation in the amateur football community.
The Contract Issue:
[53] Much ink has been spilled and much argument made about whether a contract existed between Mr. Warren and Football Canada. Putting aside the negligence claim for a moment, the damages Mr. Warren seeks can only flow if he establishes that a contract existed and that breaches of that contract led to damages (causation). I am firmly of the view that Mr. Warren’s conduct throughout is the cause of any injuries suffered, either physical, emotional or financial. There are a number of factors that drive this conclusion:
• Mr. Warren failed to accept he had any responsibility for JL when he got the 4 a.m. phone call. He knew JL missed the bus and did nothing to mitigate the situation. He was head coach and was ultimately responsible for all his players. Even though others were responsible for waking and transporting the team, he had an overriding responsibility for the safety of his players.
• Mr. Warren’s behaviour on the event review call did nothing to assure parents and officials that he understood the gravity of the JL event and the harm that could have occurred. This exacerbated the JL event and, no doubt, left parents and officials questioning his overall understanding of his responsibility for his players. If Mr. Warren had exercised good judgment and accepted some responsibility on the event review call, it is quite likely there would have been no further action and an acceptable sanction would have been found, one that would have a limited effect on his football aspirations.
• Prior to the event review call, and in its wake, Mr. Warren became increasingly defensive and made statements that seriously questioned his appreciation of his role as a coach of young boys. Officials and parents began to question whether Mr. Warren was willing to learn from his mistakes. If he had not been so entrenched, it is quite possible that a hearing in front of Football Canada’s Board of Directors would not have been necessary. In other words, an appropriate resolution would have been found, short of a three-year dismissal.
• From the time of the dismissal letter until the start of legal proceedings, Football Canada indicated that an appeal avenue would be available to Mr. Warren. While their efforts at constituting the process lacked sophistication, they never attempted to frustrate an appeal. In a February 22, 2018 letter, Mr. Wudrick stated: “Football Canada has set up an Appeal Board, independent panel, to review your appeal.”
• Mr. Warren never perfected his appeal, notwithstanding that in his first communication with Mr. Wudrick, Mr. Trider stated: “I have been retained by Jason Warren in respect of the suspension. My instructions are to appeal the suspension.” Less than one month later, Mr. Trider filed an Application in Chambers which essentially scuttled the appeal process. The evidence satisfies me that responsibility for a failed appeal process lies at the feet of Mr. Warren.
• Mr. Warren takes the position that Football Canada frustrated and blocked his appeal by pushing for arbitration. When Mr. Trider demanded the suspension be immediately lifted without further process, Mr. Wudrick stated that Football Canada would not do so. Mr. Wudrick then stated: “Football Canada does not have an appeal policy to address decisions of the Board and recommend that the matter be resolved through resolution facilitation at the SDRCC.” I am satisfied that this proposal was presented as a desirable way to proceed and not as an effort to block any appeal.
• On October 20, 2018, Football Canada offered to resolve the suspension by reducing it to one year on the condition Mr. Warren accept some responsibility for the JL event. That proposed suspension would be completed within four months. The offer was not accepted. I am satisfied that if Mr. Warren had accepted this proposed resolution that the entire matter would have blown over without further injury to his mental health or football reputation.
• Mr. Warren resigned from his position as Technical Director with Football Nova Scotia on July 29, 2018, six months after the JL event. This was his decision, which had the effect of terminating his relationship with the amateur football community.
[54] Mr. Warren was presented with many opportunities to resolve his dispute with Football Canada and to avoid the repercussions he describes. It is these refusals, and his overall intransigence, that caused any injuries to his mental health and professional reputation. I am satisfied that, while Football Canada struggled with process, it genuinely wanted to preserve Mr. Warren’s relationships in the football community. However, he lost sight of the big picture and made decisions that caused the harm of which he complains.
[55] Even if I had not concluded that causation rested with Mr. Warren, I would have found that no contractual relationship existed. While he was a registered participant, he was not a member of Football Canada. The only members of Football Canada were the provincial and territorial organizations. The by-laws of Football Canada do not grant rights to registered participants. Registered participants do not vote in Football Canada issues, nor do they pay membership fees or receive compensation.
[56] I also conclude that no conventional contract has been established by Mr. Warren. There are five essential elements of a contract: (1) Offer, (2) Acceptance, (3) Consideration, (4) Intention to create legal relations, and (5) Certainty of terms. There is no evidence that a contract was offered by Football Canada and accepted by Mr. Warren. There was no oral or written agreement relating to his decision to coach the U16 team. There was no passing of consideration either way. I have found no evidence of either party intending to create legal relations. Mr. Warren’s claims in contract are without merit.
The Negligence Issue:
[57] Given my conclusions on causation, little need be said about Mr. Warren’s claims in negligence. However, even if he was not the cause of his own mental distress and reputational harm, I would have to conclude that he failed to establish that Football Canada owed him a duty of care. Mr. Warren would have to establish reasonable foreseeability of harm, specifically mental distress and reputational harm. Mr. Warren’s suspension related to Football Canada events only. It did not impact on his position as Technical Director for Football Nova Scotia. It had no impact on his ability to coach in non-Football Canada events. The evidence leads me to conclude that Football Canada events represent a small percentage of the coaching opportunities that were available to Mr. Warren.
[58] Further, I would have to conclude that Mr. Warren has not established that there was a proximate relationship with Football Canada. He was a volunteer coach as a result of his reputation in the amateur football community. He was not an employee of Football Canada and had no commercial relationship with that organization. Mr. Warren’s claims in negligence are without merit.
Conclusion:
[59] It is most unfortunate that Mr. Warren made decisions that caused him such mental distress and reputational harm. He developed a blind spot in relation to the JL event. Instead of learning from that lapse in judgment, he immediately went on the defensive and maintained that attitude to the time of trial. Mr. Warren viewed himself as a victim and has not been able to shake that view. He was not able to see the many off-ramps that were available to him along the way. There were numerous opportunities to resolve this dispute in a way that would have preserved his relationship in the football community. Instead of taking advantage of these opportunities, he dug in his heels. I did not detect that any of the Respondent’s witnesses harbored any animus towards Mr. Warren. Mr. Warren created his own problems, ultimately driving a wedge between himself and those who had historically valued his contribution to the football community. It is that wedge that caused him to become an outlier.
[60] Mr. Warren’s Application in Court is dismissed.
Coady, J.