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Rick Westhead

TSN Senior Correspondent

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The National Hockey League is taking its long-running case against former referee Dean Warren to the Supreme Court of Canada.

Eight years after the NHL fired Warren and the former official failed in an attempt to be reinstated, the league and Warren remain locked in a legal battle over his $250,000 severance.

Warren was fired by the NHL in 2008 and asked the Ontario Labour Relations Board (OLRB) to order the league to reinstate him in 2009. The OLRB ruled against him and the Ontario Superior Court supported the board’s decision.

Since then, Warren and the NHL have battled over his severance. While the OLRB ruled the NHL didn’t have to pay out the former official’s severance because too much time had passed since he left the league, the Ontario Superior Court disagreed.

The NHL appealed that decision to the Ontario Court of Appeal, which, in March, declined to hear the NHL’s arguments.

In an April 8 letter to Warren’s lawyer Tom Curry, the NHL indicated it will seek leave to appeal the case to the Supreme Court.

Warren, now 52, said he has spent several hundred thousand dollars on his case but vows to stay the course.

“The same as the referee in a game would make a call that they thought was the right call, this is the right thing to do and I don’t think you can step away from that at any cost,” Warren said in an interview with TSN. “They think they are above the laws of the land and the laws here in Canada and that’s a problem.”

“The reason you stay committed to it is you start and you have to finish,” said Warren, who owns and operates a golf course south of Hamilton, Ont.

An NHL spokesman did not respond to an email seeking comment on the case.

Since leaving the game, Warren said he’s had sporadic contact with current officials.

“Nobody wants to be the next Dean Warren,” he said. “A lot of the guys keep very quiet… I was a referee that was very successful in that league, did over 500 games, and worked the playoffs on a consistent basis until I was elected vice-president of the association. And I lost my job rather quickly so a lot of guys have a similar fear.”

After nine years as an NHL referee, the league fired Warren in April 2008 on the grounds of sub-par performance. Warren argued he was actually terminated because he had become an advocate for fired referees and an active executive with the National Hockey League Officials' Association (NHLOA).

“Warren had a long history of being an activist member of the union and had previously successfully opposed the NHL in respect of labour issues,” Warren’s lawyer argued in court documents filed with the OLRB in 2011. “He was known by the union membership and the NHL as being an antagonist on employment issues.”

Warren asked the OLRB to force the NHL to reinstate him, pointing out that in four of his first five seasons as an NHL referee, he was appointed to work NHL playoff games, evidence he was among the top 22 referees in the sport, his lawyer said.

But after NHLOA president Stephen Walkom moved from the union to management, joining the NHL’s front office in 2005, and after Warren was elected a union executive the following year, Warren’s lawyer argues the league was looking to sack him.

According to the OLRB’s 2011 decision, in which the board refused Warren’s bid for reinstatement, NHL executive vice-president Colin Campbell in mid-February 2007 sent Walkom a game clip showing Warren allegedly missing a high-sticking call.

“There must be a way to get rid of this guy,” Campbell wrote in a February 2007 email to Walkom. “Can we use this shit to remove him or is there an HR excuse?”

After the OLRB decision, which was upheld by an Ontario divisional court, Warren asked the league to pay out his severance.

The NHL refused, arguing it was no longer obligated to pay Warren the money because too much time had passed since his firing and also because the league’s contract with officials contains a clause that says employees forfeit any potential severance if they take legal action against the NHL.

The OLRB agreed with the NHL’s position.

“A reasonable person would have known that he was making a choice: take the severance offered or seek reinstatement at the Board,” the OLRB’s June 16, 2014, ruling reads.
“The applicant made his choice. If being put to that choice was unlawful, as the applicant now effectively claims, it was incumbent on him to raise the issue in a timely manner. Instead, he remained silent on the issue for over five years. This constitutes undue delay.”

Warren appealed the OLRB decision to the Ontario Superior Court and last winter, three Ontario Superior Court judges overruled the OLRB decision, writing in a Nov. 26, 2015, decision that there was no “reasonable line of analysis that can support the Board’s conclusion that Warren knew, or reasonably ought to have known, that he was making a choice between taking the severance pay offered and seeking reinstatement before the OLRB when he commenced his prior application.”

While the superior court judgment meant the OLRB would have to hear arguments from Warren and the NHL about the legality of the NHL’s contract with officials, the NHL –
with the OLRB’s support – sought leave to appeal the superior court decision to the Ontario Court of Appeal.

The NHL's stance regarding Warren – racking up years of legal bills on the case rather than paying the former referee his severance – offers an insight into the importance NHL officials have put on establishing a precedent with the case, legal experts say.

“The Warren case has probably cost the NHL a fortune – well into the six figures,” said a Toronto sports lawyer who requested anonymity because he believed he might have a conflict on the case. “You’ve had proceedings since 2011 with multiple court and board appearances. My sense is the NHL is concerned about principle. If they pay Warren out, when the next guy comes along and there’s a fight, he’ll say, ‘you paid out the last guy, just give me a cheque.’ The league has the resources to fight.”

Andrew Langille, a Toronto-based labour lawyer who is not involved with the case, said “This speaks to the hard-nosed litigation tactics the NHL is known to employ. I wouldn’t be surprised if the NHL’s legal bills on this approached $2 million.”