Field of broken dreams
FUMBLED DONATION: A former London high school quarterback’s generosity – he’s donated nearly $500,000 to have his school’s playing field rebuilt – has gone way offside and landed in the courts.
By JANE SIMS, THE LONDON FREE PRESS
Matt Giffen says his vision for his old alma mater has been blind-sided.
The reconstruction of his high school football field was supposed to bring glory and championships to London’s South Collegiate Lions — a new field without weeds and bare spots, a scoreboard and permanent stands, new goal posts and a 400-metre track.
Nearly $500,000 in donations later, Giffen says the field is in worse shape than ever and the track embarrassingly only runs half-way around the field.
He says the Thames Valley District school board fumbled the ball.
Giffen, a South grad and former school quarterback who is a managing director of Scotia Capital in Toronto, is in a mud-slinging match with the board over how it spent his hefty donation on the field adjacent to the school in Old South.
The case has landed in the courts.
Giffen, along with co-plaintiff Thomas Miller, another South grad and University of Waterloo running back, have made an application to the Superior Court of Justice under the rarely used Charities Accounting Act, arguing the school board misused a charitable trust set up with money donated by Giffen beginning in 2006 to build “a first-class facility.”
They’re seeking an order the board rebuild the field the way Giffen wants it. But this time he wants artificial turf instead of real grass, saying that way the board can’t botch up the maintenance.
He also wants a court to order the board to start accepting his donations again — a refusal that began when Giffen threatened legal action.
“It is an unusual situation,” said Christopher Stanek, Giffen and Miller’s lawyer. “What this comes out of is the theory that when a charitable donation is made, it is a trust — but not a trust in favour of the donor, it is a trust in favour of a particular purpose.”
The purpose in this case was the board would use the money to build “a first-class facility.”
The board argues it did nothing wrong. It says there was no charitable trust to break to begin with, it followed all the proper procedures, and it treated the South field no differently than any other field.
“That’s not what they agreed to do,” Stanek said.
While neither Giffen nor Miller wanted to discuss the case, their views and those of the board are contained in the thick court file opened in June. While none of the allegations has been proven in court, what plays out in the pages of affidavits, e-mails, site plans, photographs and tender documents is how a generous idea has gone completely offside.
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“The heart of a lion runs deep and you are indeed evidence of this!” Barbara Sonier, then South’s principal, wrote to Giffen in an e-mail when he first broached the school with money for the athletic field.
Giffen was captain of South’s senior football team in 1984, and graduated in 1985. Since leaving London, he never forgot about his Forest City roots, especially his time at South.
Those memories, Giffen says in his affadavit, included playing football on a field that was always in poor condition. It was weedy and bare in parts and “it was one of the worst football playing fields in . . . London.”
Giffen wanted to donate money to fix it and asked the board to name the field after his late father, James Giffen, who was a lawyer in London before he died in 1990.
“My ultimate intention was that the school would have, if not the best, then one of the best football playing fields in the city,” he says in his affidavit.
Giffen, who lived in Singapore from 2005 to 2007, approached principal Sonier, now the school board’s superintendent of operation services, in December 2005, and in early 2006 handed over a cheque for $150,000.
He says he knew his donation wouldn’t be enough to cover the cost and entered into a signed agreement with the board that would allow him to donate more. The signed document would make sure, he says, that the board would carry out his wishes — and created a charitable trust.
In total, Giffen donated another $325,000 and the board agreed to contribute money as well. But while he was living overseas, he says, cost-cutting decisions were being made that were not part of the original vision.
The work was tendered to TCG Asphalt and Construction Inc. for $436,118.40 in July 2007. There were additional costs, pushing the project price to $527,415.37.
Giffen says that’s when, instead of taking Giffen up on his offer to pay any of the additional costs, the board started to pinch pennies and take shortcuts.
The first South homecoming in 2007 and the first big test for the James A. Giffen Memorial Field was supposed to be a night of pride for the school. Giffen and his wife travelled to London for the game and in the beginning, “the field looked great,” Giffen says.
But as the players locked horns on the field, the sod began to shift “like strips of carpeting.
At the 2008 Homecoming game, Giffen says, the coaches of the opposing St. Thomas Aquinas team told him “They were shocked at the condition of the field.” Chunks of grass were missing and water was pooling near the hash marks, making the field “a quagmire.”
By then, the board had decided it would not build the envisioned 400-metre track and opted for the 200-metre half-track.
By May 2009, Giffen says, the field was “in very bad shape.” The next month, the board had hired TDS Turf Drainage Systems Ltd. to install drainage and would aerate, top dress, laser grade, overseed and fertilize the field.
While they were putting in the drainage pipes, the firm found rebar, asphalt, heavy clay and stone under the topsoil, Giffen says.
But Giffen says after all the work was done, he was told “the field should be in great shape for September.” It wasn’t.
More work was done in 2010. TDS tried sand-banding to break up the hard surface. Giffen paid out $2,000 to $3,000 to re-sod the middle of the field.
When Giffen initiated legal action, the board’s tone became testy. Giffen made other donations to the school — $60,000 for the weight room and $16,000 for football equipment. But, the board rejected his last three donations for the Adopt-A-Lion, the school’s auditorium and for jackets for the football team.
“The board’s stated reason for rejecting these donations was my threat of litigation over the condition of the field and board breach of the charitable trust.” Giffen says.
Charles Attard, the board’s project co-ordinator, says in his affidavit that overuse, not negligence, caused problems. The field is used for gym classes as well as a host of other high school sports. Also, Tecumseh elementary school uses the field as well as the East London soccer club and the public.
There were initial snags in the construction. The field wasn’t level and the west end had to be built up a full metre with fill.
Attard disputes virtually all Giffen’s complaints and insists sod wasn’t laid over compacted soil, the field was properly drained, and the board properly maintained it.
South football players are practising on the field in the afternoons — but the field is in no way what Giffen envisioned.
But even after all the controversy, he still stands by South.
“I remain ready, willing and able to financially assist the board in making the field a first-class facility,” he says in the affidavit.
A court date has been set in November.
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Among donor Matt Giffen’s complaints about South’s playing field:
- The school board opted for a cheaper “substandard” fill rather than more expensive material under the field.
- “Substandard” topsoil was spread too thinly and the field was compacted, making it impossible for the sod to take root.
- The field didn’t drain properly.
- The field wasn’t properly maintained starting in the summer of 2008.
In July 2010, Giffen had his lawyers contact the board with a request he be allowed to investigate the problems himself. The board “relented” and in December 2010 Giffen had two experts look at it.
The experts say the board erred by:
- Not retaining a landscape architect to design the field.
- Compacting the field, which was “unnecessary and harmful to its ability to grow grass.”
- Failing to provide proper drainage.
- Not installing enough top soil.
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HOW A 400-METRE TRACK BECAME A 200-METRE TRACK
Matt Giffen believed part of his donation to reconstruct the football field would go to a 400-metre oval. Instead, it’s a 200-metre half oval.
The board said it was impossible to build a 400-metre track on the site without encroaching on the Tecumseh elementary school playground and cutting down mature trees – some planted by school alumni.