Proximate Cause, Negligent Misrepresentation and the Hockey Pool

Or, Do the Nashville Predators Owe Me $200?

But for the fact that the Nashville Predators have remained silent about a rumoured concussion to star forward Jason Arnott, I would still be in the running for a $200 payout in my class hockey pool. Had the Preds been forthcoming about the true nature of Arnott's injury, I would have sat him out last week, and played Toronto's Jason Blake in his place. Instead, a valuable slot on my roster sat empty, while Blake, sitting in reserve on my bench, collected the three points needed to stay my execution.

With my defeat last week, I have been relegated to playing for fifth place. In this month's 17th annual Marianas Cup Beach Volleyball Festival, placed in Saipan, the capital of the United States Commonwealth of the Northern Mariana Islands, the tying fifth place teams were awarded a $500 prize. There is no prize for fifth place in a class hockey pool.

This inequitable result should have been foreseen by the Nashville Predators organization. Listing Arnott as "day-to-day" suggested an imminent return, assuring faithful strategists like myself that keeping Arnott in the lineup would yield the sort of dividends that the big veteran had been providing all year long. Instead, Arnott has not played a game since March 10, and seems unlikely to return to action at any point in the near future.

Certainly I understand the team's reticence. Late in the year, coaches are often loath to reveal the specifics of injuries to their players, lest opponents target those weaknesses in future games. Yet necessity is no defense when the mere spectre of possible injury in the future is weighed against the certainty of harm to countless unwitting hockey enthusiasts across the continent.

Admittedly, there are some significant hurdles to be overcome in this claim. On Sunday, March 14, the Nashville Tennessean dutifully reported that Arnott was suffering from "a possible concussion, which generally keeps players out at least a week." On that day, had I read that particular publication, I could have removed Arnott from my lineup. Instead, I made the horrific discovery on Monday. Too late. The new week was underway and my lineup locked in. One might consider this failure to properly investigate to be contributory negligence on my part. Yet surely no reasonable person could be expected to dig through the local publications of every NHL city in order to formulate a winning strategy!

Unfortunately, an additional obstacle to recovery is to be found in the nature of the harm which I have suffered. My person remains intact. My physical property the same. If, in two weeks, statistics show that I would indeed have won the $200 pot, or even the $40 consolation prize, my losses will have been purely economic. The Supreme Court of Canada has recognized five categories of pure economic loss (Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85), including negligent misrepresentation, which would seem facially applicable here. (Nobody with an ounce of common sense would refer to a concussion as an "upper body injury"!) The five general requirements for imposing liability for negligent misrepresentations have been summarized by Mr. Justice Iacobbuci:

... (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said representation; (4) the representee must have relied, in a reasonable manner, on said negligent representation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted.

(Queen v. Cognos Inc., [1993] 1 S.C.R. 87 at 110)
At a minimum, the representation was misleading, and, due to the foreseeability of the harm which befell me, certainly negligent. Further, my reliance on it was obviously detrimental to my wallet. (There may be additional claims to be had for injuries to my ego and reputation, but those can wait.) The problem is the first prong. Until the Nashville Predators start answering my fan mail, a special relationship (for which I have long pined) may be beyond my reach.

In the interest of preserving scarce judicial resources, I would settle for a heartfelt apology and some playoff tickets.