Sep 1, 2017

Mis-Frame-ing the Test for Ad Hoc Fiduciary Duties

Birss v Tien Lung Taekwon-Do Club, 2017 ABQB 518 (CanLII)
Transcribing, with permission, some comments sent to me by reader Matthew Farrell from Guardian Law Group LLP (mfarrell@guardian.law). He provides a helpful counterpoint:
"I can’t say that I agree with you. I was a varsity wrestler for a number of years, and now coach at a wrestling club. As I think about it, when you are training in a sport you do, and indeed must surrender some of your personal autonomy regarding where your limits lie to your coaches. It’s essential in training. It is not uncommon that you do not believe that you can do something, that you will just hurt yourself, or that you cannot go on, and if you want to progress in your sport, you have to be able to put your trust in your coach when he says “get up. Keep fighting, you can do this.” I have done this for kids (and adults) and I have had it done for me by coaches that I trust. I do feel it is my responsibility to make sure that when I ask an athlete to do something dangerous that I have considered the risks, and am asking them to do something that is in their best interests.
"If, for example, I was a university wrestling coach and my star athlete was injured, and I had the choice of giving him a cortisone shot, and keeping him in a match to win the national championship, or bench him in order to preserve his long term health, I think that it would engage my fiduciary responsibilities in making that decision.
"Similarly, here, if the coach who trained this man implied to him that he should keep going, that he could do this, and that he had to push his limits, and then placed him in a situation where he was likely to get hurt, then there is a real argument that there is a relationship where you have surrendered your personal autonomy, and decision making ability about what is safe, and about what your body and your skills can allow you to do.
"In addition, if I am sparring with a person where I am clearly better, I will modulate my attacks to allow them to improve, or test them at an appropriate skill level, not do “anything to win.” That blurs the lines between duty of care, and fiduciary duty I think, but it is not an argument beyond all hope, and would have to be allowed on an application of this kind.
"All in all, I don’t think Master Smart is off base in allowing the amendment, especially considering the very low threshold associated with amendments to pleadings.
Transcribing, with permission, some comments sent to me by reader Matthew Farrell from Guardian Law Group LLP (mfarrell@guardian.law). He provides a helpful counterpoint: