As the quarter-final round of the World Cup is happening, the Ontario Court of Appeal saw fit to release a decision about an altercation that occurred in the middle of a soccer game. For those not familiar with the sport, physical altercations are not typical: soccer is a technical sport which requires high physical stamina, incredible ball control, and a dash of theatrics to make a fall look more painful than it actually is (see Neymar Jr’s theatrics at the 2018 World Cup). However, when tempers rise and an altercation ensues, who should be held responsible for damages associated with an assault on the field?
On September 9, 2010, the North Mississauga Soccer Club was playing against Hamilton Sparta in a game governed by the Ontario Soccer Association (OSA). In the middle of the game, Da Silva, a player on the North Mississauga club, was battling for the ball against a player from Hamilton Sparta. The referee decided that the battle was too physical and stopped the play. After the whistle blow, players from both teams ran onto the field from the benches. Among those players was Gomes, a player from Hamilton Sparta, who decided to punch Da Silva.
Gomes was criminally convicted of assault. Da Silva also commenced a civil suit against Gomes, Hamilton Sparta, the coach, team manager and vice president of Hamilton Sparta, and the OSA. The defendants (with the exception of Gomes) brought a summary judgment motion to dismiss the action against them.
At the summary judgment motion, Da Silva argued that the defendants breached the standards of care for coaches, on-field supervision, and player conduct. Fundamental to his claim was the argument that Hamilton Sparta, and its executive team, should have foreseen that Gomes would commit an assault and should have prevented him from playing. This was based on two previous occasions where Gomes had verbal altercations with referees.
The motion judge rejected this argument. She relied on case law from BC and concluded that, when dealing with sport coaches, “the standard of care is not that of a careful and prudent parent but whether the coach acted in accordance with the ordinary skill and care of a coach in the circumstances in which he or she find themselves”. The motion judge found that the assault was a “sudden and unexpected” event that was not foreseeable by the club, its staff, or the OSA. The judge also determined that the two past incidents were not predictive of Gomes’ conduct exhibited in this game.
Additionally, the FIFA Laws of the Game (the rules governing Ontario Soccer) specifically state that the coach and other team officials are not allowed to enter the field of play without the permission of the referee. Therefore, Hamilton Sparta staff could not do anything to prevent the assault from occurring.
The Plaintiff attempted to rely on Forestiere v. Urban Recreation Limited, wherein the court found that a coach had breached a standard of care when a player was injured as a result of a slide tackle. However, the motion judge distinguished this case as, in Forestiere, the slide tackle was performed by an unregistered player who was not aware of a rule unique to that league: no slide tackling. In that case, the court found that the coach breached the standard of care by not informing the unregistered player of this rule.
The motion judge found that there is no unique rule to soccer prohibiting one player from punching another – it’s simply a criminal act. A code of conduct prohibiting punching during a game would not be a unique rule and likely would not have prevented Gomes from committing the assault. The motion judge concluded that the OSA, Hamilton Sparta, and its coach, manager, and Vice President did not breach their respective standards of care. The judge therefore dismissed the action against these defendants.
The Ontario Court of Appeal
The Ontario Court of Appeal agreed with the motion judge.
The Court of Appeal found that the motion judge did not make any palpable and overriding errors and confirmed that supervising authorities are “not legally responsible for a sudden unexpected event in the midst of an acceptable, safe activity”.
The court also reiterated the importance of parties putting their best foot forward on summary judgment motions, noting that courts reasonably assume that “the parties have placed before it, in some form, all of the evidence that will be available at trial”. The court specifically noted that the plaintiff’s case “foundered on the absence of evidence”.
Takeaway – Raising the Standard
This case confirms that, in Ontario, athletic organizations and coaches will only be held legally responsible for acts that are foreseeable and that are ultimately preventable. An organization will be held to a higher standard of care if it creates unique rules, policies, and procedures. However, absent a self-implemented standard of care, an athletic organization will not be legally responsible for “sudden unexpected events” in an activity that is innately acceptable and safe. Happy Soccering!
See Da Silva v. Gomes, 2018 ONCA 610, aff’g Da Silva v. Gomes, 2017 ONSC 5841.