Killian McParland

The Supreme Court of Nova Scotia recently released its decision in Warren v. Football Canada, 2020 NSSC 29 – a protracted legal dispute that began with a 15-year-old football player who was accidentally left behind at a hotel in a foreign country. This decision provides important insights on:

• The responsibility of coaches to their youth players;
• The limited availability of legal claims for volunteers; and
• The perils of refusing reasonable opportunities to engage in alternative dispute resolution.

Key Facts

Jason Warren, the Applicant in this legal proceeding, was the Technical Director of Football Nova Scotia and well known in the Nova Scotia amateur football community. Football Nova Scotia is a member of Football Canada, the national governing body for amateur football. Separate from his employment duties with Football Nova Scotia, Mr. Warren was also the volunteer head coach of Football Nova Scotia’s Under-16 team.

After the team won a regional football tournament, Football Canada invited Mr. Warren to be the volunteer head coach of the Atlantic Canada team at an international tournament in Arlington, Texas.

At the end of the international tournament, the team was scheduled to travel by bus from their hotel to the Dallas-Fort Worth airport at 3:30 a.m. Unfortunately, a 15-year-old player overslept and missed the bus after organizers mistakenly identified him as present. At 4:00 a.m., the young player realized what had happened and called his head coach, Mr. Warren, from the hotel lobby. Mr. Warren was not travelling back with the team and was asleep in his room when he received the call.

On the phone, Mr. Warren told the young player that he should not take an Uber because it was not safe, to which the player responded he would take a taxi instead. Mr. Warren remained in his hotel room while the player travelled unaccompanied to the Dallas-Fort Worth airport by taxi.

The fact that this 15-year-old player had travelled to the airport alone caused much concern among parents of the players and officials from Football Nova Scotia and Football Canada. As a result, an “event review” call was held to offer an explanation of various issues that arose on the trip and an apology to affected parents. Apologies were offered by officials of Football Nova Scotia and Football Canada on the call; however, despite having been directed to apologize, Mr. Warren refused to do so, declined to accept any responsibility, and criticized other parents and players.

As a result, Football Canada convened an emergency Board meeting and decided to suspend Mr. Warren from all Football Canada events for three years. This suspension did not affect his employment or volunteer coaching with Football Nova Scotia, although Mr. Warren would decide to resign from his position as Technical Director with Football Nova Scotia six months later.

After informing Mr. Warren of the suspension, Football Canada also told him that he could appeal the decision internally. Although he initially expressed an intention to appeal, including through his legal counsel, he ultimately did not do so and instead commenced legal proceedings against Football Canada and Football Nova Scotia (the claim against Football Nova Scotia was later discontinued).

From the outset of the dispute, Football Canada emphasized to Mr. Warren its desire to preserve the relationship. Football Canada repeatedly offered mediation, both informally and through the Sport Dispute Resolution Centre of Canada, and maintained these offers after the litigation began. Mr. Warren would not agree to mediation and instead insisted on litigation. Football Canada also offered to resolve the dispute by reducing the suspension to one year, subject to Mr. Warren acknowledging he had “some responsibility” for the 15-year-old-player and that he had acted inappropriately on the subsequent “event review” call with parents. Mr. Warren declined and, as described by the Court, instead “forged ahead” with his litigation.

Summary of Court Decision

Mr. Warren claimed a wide range of losses related to reputational and psychological harm on two bases: (1) breach of contract, and (2) negligence. He claimed that Football Canada had breached a contract with him by allegedly issuing the suspension in contravention of its own by-laws, policies, and rules and in breach of its duty of good faith and fair dealing. Similarly, he claimed that Football Canada had acted negligently in its handling of the issue.

The Court dismissed both claims on the basis that, in the circumstances, Mr. Warren had himself been the cause of the alleged losses. As part of his claims for both breach of contract and negligence, Mr. Warren was required to prove that his alleged losses had been caused by Football Canada. The decision focused primarily on this legal issue of “causation”.

Notably, the Court found that a mediation process was “handmade” for a dispute of this nature. While there were deficiencies in the procedure followed by Football Canada in determining the appeal process, the Court held that the alternative dispute resolution processes repeatedly offered by Football Canada had provided Mr. Warren with the opportunity to correct any procedural issues and preserve his reputation in the amateur football community.

The Court stated that allowing the underage player to travel unaccompanied in a taxi at 4:00 a.m. in a foreign city had represented a significant lapse in judgment. Instead of learning from this lapse in judgment, Mr. Warren went on the defensive and failed to see “the many off-ramps that were available to him along the way.” Refusing to take advantage of the numerous opportunities to resolve the dispute, Mr. Warren “dug in his heels” and drove a wedge between himself and those who valued his contributions to the football community.

The Court determined that Mr. Warren’s “Achilles heel” in this dispute was his ongoing refusal to accept any responsibility or offer the appropriate apologies. Since the losses claimed by Mr. Warren would not have occurred “but for” his own decisions, his claims were dismissed.

With respect to the claim for breach of contract, the Court went on to also determine that Mr. Warren had not proven a contract existed between the parties. There was no evidence that a contract was offered by Football Canada or accepted by Mr. Warren, no consideration exchanged, and no evidence of either party intending to create legal relations.

With respect to the negligence claim, the Court also determined that Mr. Warren had not proven that Football Canada owed him a duty of care. In particular, the Court was not prepared to find that the alleged mental distress and reputational harm was “reasonably foreseeable” from Football Canada’s actions.

Key Takeaways

This decision confirms that volunteer coaches have responsibilities to youth players in their care. It also confirms that, given the nature of a volunteer relationship, volunteers may have relatively limited legal recourse against the organizations they volunteer for.

However, this decision also offers an important lesson on the perils of aggressively insisting upon litigation, refusing reasonable opportunities for dispute resolution, and failing to accept ownership of a lapse in judgment. While a party’s conduct in the litigation process is commonly reflected in an award of legal costs at its conclusion (including in relation to prior offers for settlement), in this case the refusal to engage in alternative dispute resolution proved fatal to the entire litigation.

Football Canada was represented by Sean Kelly and Football Nova Scotia was represented by Grant Machum, both of Stewart McKelvey’s Labour and Employment practice group.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour and Employment group.

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