What is Fair? B.C. Schools Case Fails to Meet the Required Threshold

We are often asked to help sport organizations administer internal hearings to ensure procedures are carried out properly, thus reducing the chance of a complaint or dispute being appealed or brought to court for judicial review. In this column, we report on a recent case from BC involving school sports that turned on the issue of what is ‘fair’ in internal proceedings that do not involve lawyers.

On October 5th, 2006, The Honorable Mr. Justice Silverman of the Supreme Court of British Columbia ruled in the Board of School Trustees of School District No. 37 (Delta) vs. British Columbia Secondary Schools Football Association that an injunction be granted to allow the Sands Secondary High School football team to play in the 2006 football season and to have these games count towards playoffs.

This case involved a dispute between a high school football team and the governing body to which that team and all BC high school football teams belonged. Judge Silverman was quick to point out in his decision that the court would not become involved in the merits of the dispute, and that a court’s authority should be limited to ensuring that procedures surrounding disputes are fair. In clearer terms, the court would only look at the process as if non-lawyers were involved, and although such an internal process might not be perfect (or ‘pencil sharp’ to use his words) such as the procedures before a court would be, the court would nonetheless determine whether the overall process was ‘fair’ in the ordinary sense of the word.

The Sands Secondary School football team was permitted to play scheduled games in the Fall 2006 season as exhibition games, but was suspended from any play beyond the regular season and in playoffs. Judge Silverman was asked by the school to grant an interim injunction of this suspension, thus allowing the team to compete toward playoffs, pending a trial to determine whether the suspension had been properly imposed. As in most cases like this, such a trial would not occur until long after the season had ended, so the injunction application would essentially decide whether or not the team would have the right to compete during the 2006 season.

In October 2005, BC School Sports received a complaint from the BC Schools Football Association (BCSFA) about alleged recruiting activities by two coaches of the Sands Secondary football team. BC School Sports followed its procedures in terms of investigating and hearing the complaint and at a hearing held in the spring of 2006, all the complaints were dismissed against one coach and six of the seven complaints were dismissed against the other coach. This coach conceded his guilt on the one remaining complaint (that he had allowed players to do spring workouts with the Sands team without first getting permission from their school) – the penalty subsequently imposed was a suspension for one exhibition game and that penalty was served.

On August 10th, 2006, the BCFSA (the complainant in the first case) wrote a letter to Sands Secondary School indicating that they would now be taking their own action against the school. The previous complaint had been against coaches, in their individual capacities. This letter indicated that the directors of the BCSFA had unanimously voted to suspend the school’s ‘recruited team’ from playoffs for one season. The school was invited to meet with the Directors before the suspension was implemented.

The problems with this letter were multi-fold. Firstly, the letter referred to the Sands team as a ‘recruited team’, which is not at all what BC School Sports had determined. Secondly, this letter was the first communication to the school that it was facing disciplinary action, therefore BCSFA had not provided sufficient notice. Thirdly, the letter stated that BC School Sports had determined that Sands Secondary had violated recruiting rules, which is also not the case, as the BC School Sports decision was only that a coach, not a school, had violated the rules. Fourthly, the school had been given no opportunity to address BCSFA about the allegation before the decision to punish had been made. And lastly, there was the appearance of bias, as the complainant from the first process was now the judge and jury in the second process.

With the support of the local school district, the Sands School went to court seeking an injunction to lift the suspension. In order to grant such an injunction, the court had to be satisfied that the procedures used by BCSFA were sufficiently suspect or deficient that they presented an issue that could be tried. The court also had to consider the ‘balance of convenience’ between the two parties: in other words, determine to what extent a party might be irreparably harmed by a decision to deny the injunction and await a future trial.

In this case Judge Silverman found that the many deficiencies set out above were sufficient to represent a triable issue. Although the BCSFA argued that the process involved people who were not lawyers and who were simply trying to do their best, the judge found that the many defects in the process left him concerned about its fairness. He stated:

“No matter how you look at it, lawyer or not lawyer, court or not court, that is just not fair. The school was never the subject of a complaint even before BC Schools Sports, and then all of a sudden they get a letter saying not only are they the subject of a complaint but they have already been found guilty of that complaint. The letter refers to them having a recruited team, which was not in the reasons of BC Schools Sports. The letter refers to them as having violated one of the rules, which was not in the decision of BC Schools Sports, which judged only the coaching, not the School. I am satisfied that those are real questions of fairness which must be decided”.

Furthermore, Judge Silverman found that the balance of convenience favoured the school team, not the BCFSA. If the injunction were not given the Sands players, through no fault of their own, would lose an entire season of play and that would not be fair. Conversely, if the injunction were granted, there would be a theoretical possibility that the Sands football team really was a recruited team that would sweep through all the other teams and become provincial champion, and that would not be fair either.

Judge Silverman concluded that there was no evidence that the Sands team was a recruited team, or that it was going to win any or all of its games – the only evidence was that a few players participated at spring training before asking for permission from their own schools. Accordingly, the injunction was granted.

This case had a little twist in it. A temporary injunction had been granted prior to Judge Silverman hearing this case, but even though the Sands team had been reinstated to the league and was ready to play games, other teams in the district were not willing to play against them and had deliberately forfeited games. Judge Silverman had strong words for the adults who most likely had made the decisions to forfeit games. He wrote:

“Forfeiting these games reflects a lost opportunity to teach young men that court orders, even if not directed at them specifically, are something to be respected. Second, an opportunity was lost to teach young men that if they are concerned that another team or some other type of adversary later in their lives may seem to have some sort of unfair advantage, a more useful way to deal with it might be to simply step up, try harder, win the game or hold their head high trying … The third reason why [the forfeiting team has] been ill-served  … may well be that a forfeited game will cost one or more teams a playoff spot that they might otherwise have earned.

The judge also reminded all the teams and players that they did not belong in court, and that if any team had a complaint about another team, the way to get satisfaction was to go out on the field and play.

[2006] BCSC 1576

Originally published: Coaches Plan (2007) Vol. 13(3)

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