CITATION: Da Silva v. Gomes, 2017 ONSC 5841

COURT FILE NO.: CV-11-5016

DATE: 20170929

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL DA SILVA, DANIELA DA SILVA, DANIEL DA SILVA and MICHELLE DA SILVA, Plaintiffs

AND:

BRANDON GOMES, HAMILTON SPARTA SPORTS CLUB, THE ONTARIO SOCCER ASSOCIATION INCORPORATED, PETER GESSE, JACK MYSLIN and HILDEBERTO LEAL, Defendants

BEFORE: Shaw, J.

COUNSEL: Sergio Grillone, counsel for the Plaintiffs

John Evans, counsel for the Defendant Brandon Gomes

Mark Harrington, counsel For the Defendants Hamilton Sparta Sports Club, The Ontario Soccer Association Incorporated, Peter Gesse, Jack Myslin and Hildeberto Leal

HEARD: July 10, 2017

ENDORSEMENT

[1] The defendants, Hamilton Sparta Sports Club (“Hamilton Sparta”), the Ontario Soccer Association Incorporated (“OSA”), Paul Gesse (incorrectly named Peter Gesse in the Statement of Claim), Jack Myslin and Hildeberto Leal (collectively the “Soccer Club Defendants”) seek summary judgment against the plaintiffs. The co-defendant, Brandon Gomes (“Gomes”), has taken no position on the motion.

[2] Alternatively, the Soccer Club Defendants seek an order for partial summary judgement dismissing the plaintiff’s action against Paul Gesse, (“Gesse”) Jack Myslin (“Myslin”) and Hildeberto Leal (“Leal”).

[3] The plaintiff, Michael Da Silva (“Da Silva”) commenced this action seeking damages as a result of injuries he sustained during a soccer game. The remaining plaintiffs are family members who bring their derivative claims pursuant to the Family Law Act, R. S. O. 1990, c. F. 3.

[4] The position of the Soccer Club Defendants is that they met the standard of care owing to Da Silva and there is no basis for any finding of negligence. The defendants therefore bring this summary judgment motion to dismiss the action.

BACKGROUND

[5] Most of the facts are uncontested. I will identify those facts that are in dispute and areas where there may be insufficient facts before the court.

[6] This action arises as a result of an assault that occurred on September 9, 2010 during a soccer game between the North Mississauga Soccer Club (“North Mississauga”) and Hamilton Sparta. Da Silva was a player on the North Mississauga team and Gomes was a player with Hamilton Sparta. Both players were 16 years of age at the time of the assault. Leal was the head coach of Hamilton Sparta in 2010. Myslin was the team manager and Gesse was the vice-president. The OSA was the governing body for competitive soccer in Ontario in 2010. It is a not-for-profit corporation. Hamilton Sparta and North Mississauga were teams governed by the OSA. Both soccer teams were part of an under 18 soccer league.

THE ASSAULT

[7] Da Silva sustained injuries when he was punched by Gomes during the soccer game on September 9, 2010. The punch was an unprovoked attack by Gomes. It occurred after the referee had blown the whistle to end play during the game. The assault occurred near the Hamilton Sparta team bench, towards the side of the playing field.

[8] Gomes was convicted of a criminal offence as a result of this incident.

[9] The assault was preceded by Da Silva and another player from Hamilton Sparta running up the side of the field trying to gain control of the ball. In the course of doing so, there was some minor pushing between the two players. The referee therefore blew the whistle to stop the play. After the whistle was blown, the referees and players on the field from both teams ran towards Da Silva and the other player from Hamilton Sparta.

[10] Gomes was one of the players on the field. He also began running toward Da Silva. According to Gomes’ evidence from his examinations for discovery conducted on January 9, 2014, as he was running towards Gomes, his initial intention was to push Gomes off of the other player from his team. Instead of doing that, he punched Gomes. He did not know why he did it. His evidence was that his actions were impulsive. Gomes said at discoveries that he knew he was not to punch other players and did it anyways.

[11] No one from Hamilton Sparta, including Leal or Myslin, who were both at the game, saw Gomes running towards Da Silva or witnessed the assault.

[12] Da Silva’s evidence at examinations for discovery conducted on January 7, 2014, was that he had no recollection of the incident. His evidence was that his last memory before the assault was a week before the game and his next memory was waking up in the hospital. The plaintiffs did not present any other evidence regarding the assault other than as contained in transcripts from examinations for discovery of the parties. Other than the evidence of Gomes, there is no evidence from any other witnesses to the assault or what transpired during the game leading up to the assault.

[13] There is no evidence that Gomes or Da Silva knew each other or had any contact prior to this assault.

THE PARTIES

Hildeberto Leal

[14] Leal, who is also Gomes’ uncle, swore an affidavit dated November 28, 2016 in support of this motion. He also attended at examinations for discovery on May 6, 2015. Only portions of his transcript were filed for this motion.

[15] Leal was coaching the game on September 9, 2010. He recalled seeing Da Silva and a player from Hamilton Sparta pushing each other and the players from both teams running towards the commotion after the referee blew his whistle. Leal turned his back to the field to tell the players on the bench not to move or leave the team bench. When he turned back, Da Silva was on the ground. He did not see Gomes running towards Da Saliva. He did not see Gomes punch Da Silva.

Jack Myslin

[16] Myslin was the team manager for Hamilton Sparta. This was a volunteer position held for the 2009/10 season. His duties included sourcing funds, making sure there were uniforms and equipment and scheduling tournaments. He was not responsible for coaching, safety or discipline issues. He did attend every game. He was at the soccer game on September 9, 2010. He swore an Affidavit dated November 28, 2016 in support of this motion. He attended at examinations for discovery on January 8, 2014. The complete transcript from that discovery was filed for this motion.

[17] Myslin saw the pushing going on between Da Silva and the other player from Hamilton Sparta. There is no evidence that he saw Gomes running towards Da Silva. He did not witness the assault. After the assault, he helped Leal separate the teams and he personally grabbed Gomes and pushed him behind the bench.

Paul Gesse

[18] Paul Gesse was the vice present of Hamilton Sparta and had held the position for ten years. His evidence was that Hamilton Sparta is a soccer club that is a member of the Hamilton District Soccer Association (“HDSA”). The HDSA is one of the 21 district members of the OSA.

[19] In 2010, his responsibilities were to deal with the City to secure permits for playing fields for the teams. He was not involved in setting any policies or procedures for safety and discipline. He was not in attendance at the game on September 9 2010 and did not learn of the incident until this action was commenced.

Leal’s Coaching Certification

[20] The Plaintiffs’ allege that Leal was not properly certified to coach. Leal’s evidence from his examination for discovery was that he did not have any coaching certification through OSA but received a National Coaching Certification Program (“NCCP”) Coaching Card issued on February 11, 2010. He had been coaching soccer 16 years. He first started coaching the under 18 age group during the 2010 soccer season. There was no evidence presented that the NCCP Coaching Card was not appropriate certification for coaching Hamilton Sparta.

[21] Mr. Leonard Golberg was questioned on behalf of the OSA on January 8, 2014. His evidence was that the OSA provided training to coaches. When asked to describe that training, at question 67 he responded:

There is training provided, courses are provided to coaches at different levels, depending on the kind of player that they are applying to coach. The curricula are identified by the NCCP, National Coaching Conference Program, I believe, and endorsed by the CSA. And we use learning facilitators to present the courses to coaches. It is all voluntary. There are several different levels of coach and several different kinds of course.

[22] Mr. Vic Purewal, a lawyer from Grillone Law Firm, lawyers for the Plaintiffs, swore an affidavit dated June 29, 2017 in response to this motion. In that affidavit he deposes, based on a review of the transcript from Leal’s examination for discovery, that Leal was not certified to coach. Based on the evidence of Leal and Mr. Golberg, that is not accurate. Leal was certified through NCCP which, according to Mr. Golberg’s evidence, is a program used, in some fashion, for training purposes for coaches.

Gomes’ Prior Infractions

[23] Gomes was involved in two prior incidents while playing soccer for Hamilton Sparta in 2010. According to the documentation filed by the plaintiffs for this motion, the first incident occurred during a soccer game on July 6, 2010. He received two cautions (yellow cards) during that game. The written description of the incident prepared by the referee indicates that Gomes was “using dissent by word to me”. As he received two cautions during the game, he was dismissed from the game.

[24] In the “Incident Details” section of the “Referee Report – Dismissal Form” dated July 6, 2010, there are a number of sections that can be checked as the reason a player is dismissed including using offensive, insulting or abusive language or serious foul play or violent conduct. In this form, the section that was checked as the reason Gomes was dismissed from the game was “receives a second caution in the same game.” There is no evidence that Gomes received a one-game suspension or a fine following this incident as alleged in paragraph 18 of the Affidavit of Vic Purewal. According to the form completed by the referee, Gomes’ conduct was not violent nor did it constitute “serious foul play”.

[25] The second incident occurred following a soccer game on August 26, 2010. There were descriptions of the incident prepared by two witnesses. According to those written reports, after the final whistle ending the game, Gomes went by one of the referees and called him a “fuckin faggot”. There is no evidence that he was suspended or given a fine for his comments to the referee as alleged in paragraph 19 of the Affidavit of Vic Purewal. According to the forms filed in connection with this incident, there is no evidence that Gomes received any sanctions from the referee.

[26] In paragraph 19, of Mr. Purewal’s affidavit, he describes Gomes as acting aggressively toward the referee on August 26, 2010 and making obscene comments. There is no evidence that Mr. Purewal was present at the game and witnessed the incident of August 26, 2010 so I do not know the basis for his describing Gomes as acting aggressively towards the referee. Based on the “Description of the Incident” forms prepared by the assistant referees, Nick Northrup and Nick Centritto, Gomes did make an “obscene” or inappropriate comment towards the referee but there is no other evidence about his conduct.

[27] In paragraph 22 of the Affidavit of Michael Da Silva sworn June 29, 2017, he deposes that he was advised that Gomes was expelled from games twice in the same season prior to the September 9, 2010 game.

[28] Da Silva does not identify that source of his information in paragraph 22. He only references the documentation described above regarding these two prior incidents. There is no evidence Gomes was expelled twice prior to September 9, 2010. Following the first incident in July 2010, he was dismissed from the game as he received two cautions during that game.

[29] The plaintiffs have not filed affidavits from any of the referees involved in these two prior incidents. They would be the proper parties to give evidence regarding Gomes’ behaviour and not Mr. Purewal who was not present and therefore has no evidence regarding the nature of Gomes’ behaviour beyond that which is in the written reports.

[30] Based on the material before the court, there is no evidence that Gomes acted in a physically aggressive or violent manner during a soccer game prior to September 9, 2010.

[31] Leal’s evidence was that he had known Gomes his entire life and he was always well-behaved. His evidence was that he had no reason to believe that Gomes was aggressive on or off of the soccer field.

[32] As both these incidents occurred while Gomes was playing for Hamilton Sparta, Leal would have been the coach during those games. Leal did not review or warn Gomes about his conduct following these two incidents. His evidence at examinations for discovery was that he was unaware of the Special Incident Reports from either incident. There is no evidence that Leal reported these incidents to the Board of Directors of Hamilton Sparta or that these incidents were discussed at any board meeting.

[33] At the examination for discovery of Gesse conducted on May 6, 2015 he gave the following evidence with respect to Hamilton Sparta board meetings that occur approximately five to six times per year:

58. Q: Are the procedures in relation to safety ever discussed at these board meetings?

A: I believe so

59. Q. Okay. And what about it? What is it that comes up?

A: Discipline mostly, making sure coaches don’t have any problems.

60. Q: So is it brought to the attention of the board members if there are red cards given to players?

A: Not really. They don’t know that.

61. Q: Okay.

A: Unless the coach himself informs them of that fact but in most cases they don’t know. They just keep telling the coaches make sure there are no problems on the field. Make sure there is no red cards, make sure of that. They do talk about that.

[34] In response to whether or not there are any monetary penalties for violent conduct, he gave the following answer at question 133:

Yes, there is. If for example you received three yellow cards you’re suspended for a game and I believe a $30 fine goes with that. If you are convicted of a red card for example, you know what I mean, a red card there is $50 fine. If you get convicted and using the foul language and abusive language towards a referee, I’m not sure what the fine is, but the suspension could be the whole summer. If your team is involved in a brawl and cause a game to be abandoned that’s a $500 fine.

[35] There is no evidence that Gomes was convicted of using foul and abusive language towards a referee. There is a report that he called the referee an inappropriate name. There is no evidence that he received three yellow cards or was suspended for a game as a result of his conduct.

Code of Conduct and Policies and Procedures

[36] At Geese’s discovery, an undertaking was given that counsel for the defendants would review the minutes from the board meetings. At page 22 of the transcript there was the following exchange between counsel:

MS. JORGE: So just to clarify, counsel, you have undertaken to request copies from January to September of 2010 of the minutes and review for safety or violence issues and provide those portions of the minutes if they exist. You will also be reviewing the minutes from September 2010 to June 2012 and if there are any minutes dealing with this incident you will be producing those portions of the minutes as well. And you will take under advisement reviewing from January to September 2010 if there is anything in the Code of Conduct, anything dealing with the Code of Conduct, if there is you will advise. And if you are producing those portions you will notify me if that exists. Okay.

And just to clarify my full request was for portions of the minutes dealing with this incident, Violent Behaviour, Code of Conduct and Safety for three years prior to this incident until the time that counsel was retained. So everything else that’s not covered under your undertakings you’re refusing?

MS: KWINTER: That’s correct.

[37] There is no indication if this undertaking was satisfied or if plaintiffs’ counsel followed up with respect to the question under advisement or the refusal. There have been no minutes from any board meeting submitted as evidence for the court to consider.

[38] For this motion, neither party has produced any written document purporting to be a code of conduct for soccer players. There is no document produced setting out any policies or guidelines that might have been in place governing the behaviour of soccer players who played in this league and were members of the OSA. There has been no documentation filed regarding any coaching standards.

[39] It was Mr. Golberg’s evidence from his examination for discovery that the OSA follows the FIFA (International Football Association) Laws of the Game which includes provisions dealing with safety. The only section of the Laws of the Game filed for this motion were sections entitled “The Technical Area” and “The Number of Players”. No evidence has been filed dealing with any other policy or procedure with respect to the planning, organizing and operation of a soccer match or issues of safety or code of conduct for players.

[40] There is no evidence that Leal, or anyone from Hamilton Sparta, spoke to Gomes about a specific code of conduct governing players who play in the OSA or for Hamilton Sparta.

[41] Leal’s evidence from discoveries was that while all players receive a package of documentation when they register for the soccer season, he was not familiar with what was in that package. There is no evidence before the court regarding what was in that registration material and whether it contained any form of code of conduct.

[42] At examinations for discovery, it was Leal’s evidence that he was not familiar with the term “code of conduct”. He was unaware if a code of conduct was given to the players. He was not aware of any rules regarding how players are supposed to behave. Leal’s evidence was that he spoke to the players before each game and told them to play fair and be disciplined. His evidence was that he told his players that if there was contact between players, the referee should take care of it.

Position of the Parties

[43] The defendants’ position is that there are no material facts in dispute and that the court can apply Rule 20, based on the evidentiary record before the court, and make a determination as to whether or not the defendants breached any duty of care owed to Da Saliva. The plaintiffs’ position is that summary judgment is not appropriate as there are material facts in dispute, there are credibility issues and expert evidence is required regarding the standard of care of coaches and whether that standard was met in this matter.

[44] In the Statement of Claim, the plaintiffs plead that the Soccer Club Defendants breached their duty of care to the plaintiff by:

31. THE NEGLIGENCE OF THE DEFENDANTS, HAMILTON SPARTA SPORTS CLUB, PETER GESSE, JACK MYSLIN and HILDEBERTO LEAL IS AS FOLLOWS:

(a) They should have taken extra care in anticipating Brandon's violent behaviour, given his two previous instances of misconduct earlier in the season (accumulation of yellow cards).

(b) They were negligent as soccer coaches and members of the OSA to care for these teenagers while under their supervision.

(c) They were negligent as renters in their duty to provide safe premises for the players to compete in a soccer match, as required by the Occupier's Liability Act, R.S.O. 1990, c. 0.2.

(d) They failed to follow their organizations policy to ensure a safe playing environment for all their athletes.

(e) They knew or ought to have known that it was their duty to ensure that the intensity level of the match never exceeded reasonable limits while under their care as occupiers of the premises.

(f) They failed to enter the field of play when they saw the referees stop the match for safety reasons.

(g) They knew or ought to have known that Brandon intended on attacking Michael physically when they saw him running from across the field to confront Michael.

(h) They failed to make an effort to physically prevent Brandon from reaching Michael from the other side of the field, after the initial pushing incident was stopped.

(i) They helped plan, organize, host, market, sponsor and operate the soccer match where the assault occurred.

(j) They failed to follow their own policies and procedures with respect to the planning, organization and operation of the soccer match.

(k) They failed to implement and adhere to national and international standards and procedures for the organization and operation of the soccer match.

(l) They failed to properly plan and organize the soccer match when they knew or ought to have known that there was a risk of injury or harm to its participants.

(m) They allowed Brandon Gomes to participate in the match when they knew or ought to have known that his participation in the match posed a risk of injury to others.

(n) They failed to adequately or not at all hire and train their employees, servants or agents to properly plan and organize the soccer match.

(o) They failed to adequately or not at all provide adequate medical and emergency services to participants in the soccer match.

(p) They created a situation of danger from which Michael Da Silva, despite all reasonable efforts and precautions, was unable to extricate himself.

(q) They knew or ought to have known that Brandon's actions as described in this claim would result in physical and psychological damage to Michael as they in fact did.

32. THE NEGLIGENCE OF THE DEFENDANT, THE ONTARIO SOCCER ASSOCIATION INCORPORATED IS AS FOLLOWS:

(a) They are vicariously liable for the negligence of the players, coaches, manager and administration in failing to exercise their duty to care for the soccer players during the game.

(b) They are vicariously liable for the negligence of Peter Gesse in failing to exercise his duty to provide a safe environment on the premises he rented, as required by the Occupier's Liability Act

(c) They failed to take precautions or preventative measures to ensure that such injury to Michael did not occur.

(d) They failed to properly monitor the defendant, Hamilton Sparta· Sports Club, in planning, organizing, hosting and operating the soccer match when they knew or ought to have known that there was a risk of injury to participants.

(e) They failed to follow their own policies and procedures with respect to the planning, organization and operation of the soccer match.

(f) They failed to follow their own policies and procedures with respect to the registration of participants in the soccer match.

(g) They failed to implement and adhere to national and international standards and procedures for the organization and operation of the soccer match.

(h) They failed to adequately or not at all hire and train their employees, servants and agents to properly plan and organize the soccer match.

(i) They failed to adequately or not at all provide medical and emergency services to participants in the soccer match.

(j) They failed to take a leadership position to improve the quality of the soccer match.

(k) They created a situation of danger from which Michael Da Silva despite all reasonable efforts and precautions, was unable to extricate himself.

(l) They knew or ought to have known that Brandon’s actions as described in this claim would result in physical and psychological damage to Michael as they in fact did.

THE LAW

[45] The court must determine whether or not this is an appropriate case for summary judgment and, if so, whether or not the defendants have breached the standard of care owing to Da Silva and whether or not that breach resulted in injuries to Da Silva.

[46] The test for summary judgment is set out in Rule 20.04(2.1) in the Rules of Civil Procedures (“the Rules”). Summary judgment is to be granted where the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Rule 20.04(2.1) and (2.2) provides for additional fact finding powers available to the court. Specifically, Rule 20.04(2.1) permits the court to weigh the evidence, evaluate the credibility of the deponent and draw any reasonable inference from the evidence in order to consider whether there is a genuine issue requiring a trial.

[47] In Hryniak v. Mauldin 2014 SCC 7, [2014] SCJ No. 7, 2014 S.C.C. 7, the Supreme Court of Canada held that, on a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record without using any of the enhanced fact finding powers available under Rule 20.04 (2.1) and (2.2). The factual record should be reviewed and summary judgment granted if there is sufficient evidence to fairly and justly adjudicate the dispute. The court should also consider if summary judgment would be a timely, affordable and proportionate procedure. The court specifically found that summary judgment rules are to be interpreted broadly. The focus must be on providing access to justice in a timely manner. At para. 50, Karakatsanis, J wrote:

When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or costs effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it give the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to the resolve the dispute.

[48] In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, affirmed 2014 ONCA 878, Corbett J. reviewed the process by which the court considers whether summary judgment is appropriate. At paragraph 33 he found:

…the court on a motion for summary judgment should undertake the following analysis:

1. The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

2. On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

3. If the court cannot grant judgment on the motion, the court should:

a. Decide those issues that can be decided in accordance with the principles described in 2), above;

b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

[49] The moving party has the burden to demonstrate that there is no genuine issue for trial. If that is established, the burden shifts to the responding party to prove that its claim has a real chance of success. The responding party must “lead trump or risk losing.” (1061590 Ontario Limited v. Ontario Jockey Club 1995 CanLII 1686 (OnCA) [1995] O.J. No. 132, 21 O.R. (3d) 547 (Ont. C.A.))

[50] In Sweda, Corbett J. noted at paragraph 27 that on a motion for summary judgment, the court is entitled to assume that the record contains all of the evidence the parties would present at trial. If there is evidence that one of the parties alleges is necessary, the burden rests on that party to show that it has taken reasonable steps to obtain the evidence it needs for the motion for summary judgment and that the missing evidence would be material to the disposition of this motion.

[51] In Ryabikhina et al. v. St. Michael’s Hospital 2011, ONSC 1884, Belobaba J. granted summary judgment against the plaintiff in a medical malpractice case. In that instance, the plaintiff had not produced an expert report to support allegations of negligence. In his decision, Belobaba J. found that where the plaintiff failed to produce an expert report, the court may draw the inference that the plaintiff was unable to obtain an expert report to support the allegations of negligence. In the absence of an expert report, there is no genuine issue requiring a trial with respect to the allegations of negligence.

ANALYSIS

Are There Material Facts in Dispute?

[52] This is not a case where there are a number of material facts in dispute rendering summary judgment inappropriate. The facts are not complex or complicated. In my view, the key facts are not in dispute and can be summarized as follows:

a. There was some pushing between Da Silva and another player from Hamilton Sparta during the course of the game;

b. The referee blew his whistle to end the play following which the referees and players on the field ran towards Da Silva and the other player from Hamilton Sparta;

c. Gomes also ran over and then punched Da Silva;

d. Gomes punched Da Silva after the referee had blown the whistle;

e. The assault was unprovoked and was an impulsive act and not pre-meditated;

f. While the players were running towards Da Silva, Leal turned his back to the field to tell his players to remain on the bench and did not see Gomes running across the field towards Da Silva;

g. None of the defendants saw Gomes punch Da Silva;

h. Gomes was involved with two incidents at prior games where he called the referee names;

i. There is no evidence that Gomes was physically aggressive or confrontational with any other soccer player prior to this assault;

j. Leal was Gomes’ uncle and was unaware of any prior aggressive behaviour;

k. Leal did not speak to Gomes about his conduct following the two prior incidents;

l. Leal did not report these two prior incidents to any of the Soccer Club Defendants;

m. The Soccer Club Defendants did not discuss Gomes’ conduct or behaviour prior to the assault;

n. Leal did not review with Gomes any written document, such as a code of conduct, prior to the assault;

o. Leal had coaching certification through NCCP;

p. This was Leal’s first year coaching this age group;

q. Leal did not review any form of code of conduct with his players but told them before each game to play fair and be disciplined;

Are There Credibility Issues to Resolve?

[53] In paragraph 17 of the affidavit sworn by Mr. Vic Purewal, he deposed that Gomes was untruthful at his examination for discovery when he testified that he had never received a red card during the season and never received a card for violent or aggressive behaviour. This is not accurate. The following was Gomes’ evidence regarding these two prior incidents:

Q: It was probably a 5-3-2. Sorry. It doesn’t matter. Before this particular game – there is suggestion by the Plaintiff in their pleadings that you had to be issued yellow cards in games previous to the one involving this altercation –

A: Yes.

Q: Do you have any recollection about getting any yellow cards?

A: Yes, I don’t remember exactly but it was mostly for just talking back to the ref.

Q: for mouthing the ref?

A: Yes.

Q: Yes, you can get a yellow card for that. Absolutely. Do you remember how many times you got a card like that?

A: I remember two times. The ref thought I called him something when I was talking to a player on my team but it wasn’t the ref. He interpreted I called him something and he gave me a yellow and this is after the game was done. So there was that time.

Another time, at the field behind Ivor Wynne, the first yellow card I talked back to the ref and the second yellow card was immediately after when I said whatever, okay, I agreed and I took the yellow. And that was a red because two yellows are a red and I got kicked off the field.

Q: Have you ever gotten a card for any violent or aggressive behaviour?

A: No.

Q: Have you ever been in a fight before this particular date?

A: No.

[54] The documentation filed by the plaintiffs for this motion corroborates Gomes evidence. There is no credibility issue. Even if there is a credibility issue, and Gomes was not truthful at his discoveries, I have relied upon the documents filed by the plaintiffs regarding the two prior incidents. An assessment of his credibility is not required as I am not relying upon his evidence from examinations for discovery.

Is Expert Evidence Required Regarding the Standard of Care?

[55] The plaintiffs’ position is that the court cannot make a determination of the standard of care required of a coach without an expert opinion. The plaintiffs, however, failed to file such a report for this motion.

[56] Examinations for discovery in this matter were conducted in January, 2014. The original summary judgment motion was served on the plaintiffs on December 1, 2016. The plaintiffs have had ample time to retain an expert if their position is that such an opinion is necessary.

[57] As noted in Sweda, a party must put it best foot forward on a motion for summary judgment. If the plaintiffs intended to rely on an expert opinion, it ought to have been before the court for this motion. As noted in Ryabikhina, the court can draw an adverse inference when the plaintiff fails to produce an expert report for a summary judgment motion. As no such report was filed when the plaintiffs’ position is that a standard of care report is required, I make the adverse inference that the plaintiffs are unable to obtain such a report to support their allegations of negligence against the defendants.

[58] Even if I do not make such an adverse inference, it is my view that an expert opinion is not required in order to determine if Leal met the standard of care of a coach or if the OSA or Hamilton Sparta met their respective standard of care in this situation.

Is There a Complete Factual Record?

[59] As set out above, there are no material facts in dispute. With respect to documentation, the plaintiff is relying upon a code of conduct but they have not filed such a document for this motion. Presumably, if this document was important evidence for the plaintiffs, the document, if it exists, would have been filed as part of this motion.

[60] If the plaintiffs’ position is that the document is in the possession of the defendants, there has been sufficient time for the plaintiffs to have taken steps to have requested the document and bring whatever motion was necessary to compel if the defendants failed or refused to produce the document, if it exists.

[61] The plaintiffs have not filed any other documentation purporting to be any written standards for coaching. They have not filed any written policies or procedures or standards which they allege have been breached by the defendants. Again, there has been ample time for the plaintiffs to obtain such documentation, if it exists, to file with this court.

[62] I am satisfied that there is a factual record upon which this court can make the necessary findings of fact and apply the law in order to come to a fair and just determination of this matter on the merits. Based on the factual record that is before the court, I can make a determination with respect to the allegations of negligence against the defendants. Accordingly, this is an appropriate case for summary judgement.

Did the Defendants Meet the Relevant Standard of Care Owing to the Plaintiffs?

[63] Gomes is at fault for the injuries sustained by Da Silva as a result of the deliberate assault. He has not responded to this motion. The issue is whether or not the remaining defendants were negligent in failing to prevent the assault.

[64] The plaintiffs have made a number of claims for negligence against the defendants in their Statement of Claim which can be summarized as follows:

• The defendants ought to have known of Gomes violent behaviour given the two prior incidents and should have anticipated his conduct and not allowed him to play in the game or taken other action to prevent the assault;

• The defendants ought to have known of Gomes’ violent behaviour and ran on the field to stop him before he attacked Da Silva;

• The coach was not properly trained;

• Proper policies and procedures were not in place with respect to training of coaches and player safety;

• Proper policies were not in place to ensure that Gomes’ prior conduct was reported by Leal which could have led to Gomes’ suspension prior to this soccer game.

[65] The plaintiffs have also alleged that the defendants were negligent pursuant to the provisions of the Occupier’s Liability Act, R.S.O. 1990, C.O. for failing to provide safe premises. There is no evidence before the court regarding any site safety issues or that the playing field was not safe. There is no evidence that the defendants were in breach of any obligation owing pursuant to the provisions of the Occupier’s Liability Act.

[66] There is no dispute that the defendants owed a duty of care to Da Silva. To be successful, the plaintiffs must establish that the defendants breached the applicable standard of care owed to Da Silva and that the breach caused his injuries.

[67] In Hamstra (Guardian ad litem of) v. British Columbia Rugby Union [1989] B.C.J. No. 1521 at page 86, Hollinrake, J. found that in situations dealing with a sports coach, 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.

[68] Hamstra was referred to in the decision of Olinski v. Johnson [1992] O.J. No. 2398 where the court had to determine the standard of care owed by a Lacrosse Association as a result of injuries sustained by the plaintiff when a fight broke out in an arena. At page 10, Scott J. found that the standard of care of the Lacrosse Association was not that of a careful or prudent parent. The court found that the Lacrosse Association must take reasonable care in all of the circumstances, not simply to enforce the rules of the game, but to enforce reasonable order in the arena. In that case the court found that an attack on the two referees was reasonably foreseeable.

Was There a Breach of the Applicable Rules?

[69] Ontario Soccer is guided by the FIFA Laws of the Game. According to section 5.3 of the OSA policies; “The OSA shall support and maintain the principles of the Laws of the Game as established by the International Football Association Board (IFAB) and recognized by F.I.F.A”. The only evidence submitted regarding the Laws of the Game was a provision that stated as follows; “The coach and other officials must remain within the confines of its (technical area) except in special circumstances, e.g. a physiotherapist or doctor entering the field of play, with the referee’s permission, to assist an injured player.”

[70] When the referee blew his whistle to end the play, players from both teams ran towards Da Silva and the other player. Neither Leal nor Myslin entered on to the soccer field. According to the Laws of the Game, this was not a situation that required them to enter the field. Accordingly, their actions were not negligent for failing to enter the field.

[71] Furthermore, when the referee ended the play, neither Leal nor Myslin saw Gomes running across the field. They could not have stopped something that they did not see. Leal was complying with the Rules of the Game by not entering onto the field. Based on the evidence, there was no reason for Leal or Myslin to run onto the field, even if they saw Gomes running towards Da Silva.

Should the Defendants Have Known or Ought to Have Known of Gomes’ Propensity to Violence and Prevented Him From Playing or Provided More Supervision?

[72] The plaintiffs’ position is that the soccer defendants should have taken extra care in anticipating Gomes’ behaviour and perhaps not have allowed Gomes to play the soccer game when they knew there was a risk of injury to Da Silva based on the two prior incidents involving Gomes. The Plaintiffs submit that those incidents should have made the defendants aware that Gomes would act in a physically aggressive way towards Da Silva and he should not have been allowed to play.

[73] In my view, the two prior incidents were not predictive or demonstrative of the type of violent behaviour demonstrated by Gomes when he assaulted Da Silva. These two prior incidents involved Gomes being verbally inappropriate with referees. This is far short of the violent type of behaviour he demonstrated when he assaulted Da Silva. Gomes’ prior two incidents of making inappropriate comments to the referees was not the type of behaviour that should have led Leal, acting as a reasonable coach, to conclude that there was a risk regarding Gomes’ behaviour. Had Gomes been involved with prior altercations with players or demonstrated prior physically violent behaviour, it would be reasonable to expect that Leal should have spoken to Gomes about that behaviour and/or informed the board of directors of Hamilton Sparta about concerns regarding his behaviour. Talking back to the referees or calling them inappropriate names is not behaviour that would lead a reasonable coach to anticipate that a player, such as Gomes, posed a risk to others playing soccer and would behave in a physically violent way towards another player.

Did Leal’s Coaching Fall Below the Standard of Care Expected of a Coach?

[74] The plaintiffs’ position is that Leal’s coaching fell below the standard of care for a coach.

[75] In paragraph 21 of the affidavit sworn by Vic Purewal, he deposes that Leal was not certified to coach. This is not accurate. Leal’s evidence at examinations for discovery was that while he did not have a coaching certificate from the OSA, he had an NCCP coaching card. There is no evidence that the NCCP coaching card was not sufficient for the purpose of coaching in this league or at this age level.

[76] The plaintiffs’ position is that Leal should have had a better familiarity with the code of conduct for soccer players and have reviewed it with his players. The claim is that had the code of conduct been reviewed with Gomes, may not have engaged in the conduct which caused injury to the plaintiff.

[77] There is no evidence before the court that any such code of conduct exists so this cannot form a basis for any finding of negligence.

[78] Gomes’ evidence was that he knew he was not to punch other players. His evidence was that he assaulted Da Silva impulsively. Based on Gomes’ evidence, even if there was a code of conduct and even if he was made aware of it, it would not have prevented him from engaging in behaviour that was so beyond the realm of what is reasonable. He assaulted Da Silva and was convicted of an offence which resulted in a suspension from the league.

[79] The defendants relied on the decision of Lee (Litigation Guardian of) v. Toronto District School Board [2013] O.J. No. 1157. That case involved one child punching another in a school yard causing injuries. The plaintiffs claimed that the school board and staff owed a duty of care to the students and breached that duty in a number of ways. One of the claims was that the defendants ought to have known that the child who hit the other, both were seven years of age, had shown prior behaviour signs sufficient to raise a reasonable concern that he might behave violently. There were three pre-incident instances of misbehaviour in which he was described as being aggressive. On one occasion, he was described as fighting in the lunchroom.

[80] At paras. 167 and 168, Lauwers J. (as he then was) held:

This case involves 7-year-old boys who, one hardly needs to take judicial notice, routinely yell, shout, argue with one another, jostle, push and shove, all of which falls under the schools rubric of quotes “fighting” but would be quite normal and amenable to the schools ordinary disciplinary system without a report to the principal. The fact that a child, on occasion, manifests one or more of these behaviours is not reason enough to label him as showing signs that he might behave violently and sequestering him. I find that none of the three instances of Tevin’s misbehaviour, taken separately or together, is sufficiently serious to amount to reasonable signs that he might behave violently.

The plaintiffs have not proven on the balance of probabilities that the three instances, taken together, objectively showed signs sufficient to raise a reasonable concern that Tevin might behave violently. I am not satisfied on the balance of probabilities that school staff knew or ought to have known on the date of the incident that Tevin might behave violently so as to prevent the assault by supervising him differently. The defendants are not liable for failing to supervise Tevin McNeil more closely.

[81] I am not satisfied that Gomes’ behaviour from the two prior incidents was a sign sufficient to raise a reasonable concern that he might act violently as he did. His prior behaviour did not warrant any different level of supervision nor should he have been prevented from playing in this game. A reasonable sports coach would not have made a decision that Gomes could not play during the game based on his past behaviour.

[82] The defendants also rely on Patrick v. St. Clair Catholic District School Board [2013] O.J. No. 6216. That decision also involved a claim for personal injuries arising from injuries sustained by a student in a school yard. In that case, the parties were in grade 8. During a game of “keep-away” amongst the grade 8 students, one student pushed the plaintiff to the ground. After a series of pushes, the defendant student then punched the plaintiff causing serious injuries. The defendant student was convicted of assault.

[83] The issue was the liability of the school board and its staff, including the principal and vice principal and teachers of the school. The plaintiffs alleged that the defendants owed a duty of care to the injured student and that by failing to protect him from injury, they were negligent.

[84] The plaintiffs claimed that the defendants were negligent for not having proper supervision in place and that the prior behaviour of the defendant student should have identified him as someone who needed closer supervision.

[85] The defendants’ position was that the assault was a “sudden and unexpected event that could not have been anticipated by anyone.”

[86] At para 266, Nolan J, found that having more supervisors in the schoolyard would not have prevented the incident as it was a “sudden, unexpected event in the midst of an acceptable, safe activity”.

[87] Based on the factual record before this court, I find that Gomes’ action was a sudden and unexpected event that could not have been anticipated by the defendants. As it was unexpected and sudden there was nothing that a reasonable coach could have done to prevent Gomes’ assault of Da Silva

[88] The plaintiffs rely on the decision of Forestieri v. Urban Recreation Limited; 2015 BCSC 249. That case also involved a soccer game in which the Plaintiff was injured when an opposing player slide-tackled the ball. In that case, there was a unique rule of the league which specifically prohibited slide-tackling. On the day of the incident, an unregistered player was permitted to play. That player did not know about the unique rule nor was he told about it by the team coach. In that case, the court found that the defendants owed a duty of care to the plaintiff which they breached. The breach was not informing the player, who did the slide-tackle, that there was a rule forbidding such a tackle. In that case the court found that slide tackling was common in the sport although prohibited by the rules that were unique to that particular league. The court also found that had the player been told of the rule prohibiting slide-tackles, he would not have done one during the game.

[89] This case is distinguishable as there was no unique rule to soccer prohibiting punching another player of which Gomes ought to have been specifically informed. Assaulting another player is a criminal act. Although no evidence was presented on this motion regarding any code of conduct or playing rules to which players must comply, a rule prohibiting one player from assaulting another would not be a unique rule. It was not negligent behaviour for the defendants not to have informed Gomes he was not to assault another player during the game. In fact, Gomes’ evidence was that he knew he was not to punch another player but did so anyways.

Were Proper Policies and Procedures in Place With Respect to the Training of Coaches

[90] No evidence has been submitted regarding any written policies or procedures from Hamilton Sparta or the OSA regarding the training of coaches. If the Plaintiffs allege that such policies and procedures were not followed or were not appropriate, the Plaintiffs ought to have filed that material in response to this motion. They have failed to do so and have therefore not put their best foot forward.

[91] Leal was certified to coach through NCCP. There is no evidence that his certification was not valid and appropriate for coaching Hamilton Sparta.

Causation

[92] If I am not correct and the defendants were negligent and breached the standard of care owing to Da Silva, that does not end the analysis. To be successful, the plaintiffs must establish that the acts or omissions of the defendants contributed to their loss. As stated by McLachlin, C.J at para 46 of Clements v. Clements 2012 SCC 32 [2012] 2 SCR 32, “As a general rule, a Plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent acts of the defendant.”

[93] The plaintiffs claim that had Leal or any of the Soccer Club Defendants spoken to Gomes following the two prior incidents and properly disciplined him, this assault would not have occurred. The plaintiffs claim that had Leal been properly trained as a coach, presumably he would have known that Gomes’ past behaviour warranted intervention of some kind prior to September 9, 2010 which would have prevented the assault

[94] Based on the evidence, I am unable to conclude that the lack of or improper discipline would have deterred Gomes such that the assault upon Da Silva would not have occurred. Gomes’ evidence was that he knew he could not punch another player but did so anyways. His evidence was that the assault was not premeditated and, in fact, was an unprovoked and impulsive act.

[95] This matter is distinguishable from the facts in Foresteiri v. Urban Recreation Limited where the court found that it was a specific unique rule that the player was not informed of by the coach. In that case, the court found that had the player been informed of that unique rule, he would not have violated the rule and the plaintiff would not have been injured.

[96] Gomes admitted that he knew he was not to punch another player but did so anyways. There is no evidence that had he been disciplined in some fashion following the two prior incidents that he would not have assaulted Da Silva on September 9, 2010.

Conclusion

I am satisfied that this is an appropriate case for summary judgment. For the reasons set out above, I find that there is no genuine issue requiring a trial and the actions as against the defendants shall be dismissed.

Costs

[97] If counsel cannot agree on costs, they may file written submissions, of no more than 5 pages, and their Bill of costs by November 1, 2017.

Shaw J.

Date: September 29, 2017

CITATION: Da Silva v. Gomes, 2017 ONSC 5841

COURT FILE NO.: CV-11-5016

DATE: 20170929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL DA SILVA, DANIELA DA SILVA, DANIEL DA SILVA and MICHELLE DA SILVA, Plaintiffs

AND:

BRANDON GOMES, HAMILTON SPARTA SPORTS CLUB, THE ONTARIO SOCCER ASSOCIATION INCORPORATED, PETER GESSE, JACK MYSLIN and HILDEBERTO LEAL, Defendants

ENDORSEMENT

Shaw J.

Released: September 29, 2017