Christie v. Canadian Hockey Association, 2010 HRTO 1313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Christie by his litigation guardian, Todd Christie

Applicant

-and-

Canadian Hockey Association o/a Hockey Canada

Respondent

-and-

The Attorney General of Ontario

Intervenor

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: June 11, 2010

Citation: 2010 HRTO 1313

Indexed as: Christie v. Canadian Hockey Association

1This is an Application filed June 25, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the respondent’s and intervenor’s request to dismiss the Application for mootness and the applicant’s request to add a co-applicant to the Application.

3The applicant was born in February 1993 and was 13 years of age when he filed a complaint with the Ontario Human Rights Commission in August 2006 alleging discrimination in services on the basis of age, contrary to section 1 of the Code. He is now 17 years of age. The applicant asserts that between April and June of 2006, his father contacted a number of Junior A and Junior B hockey teams throughout southern Ontario and was advised that the respondent’s age restrictions prevented the applicant from attending Junior A and Junior B tryouts. The applicant alleges that he was denied the benefits associated with playing in Junior A or Junior B hockey such as lack of registration fees and equipment costs as well as development of hockey skills by playing with more skilled players.

4The respondent is a voluntary association that establishes and maintains uniform regulations and policies for amateur hockey. In 2006 the respondent developed a Canadian Development Model (CDM) that provided uniform eligibility regulations and policies for 14 to 17 year olds relating to playing minor and junior hockey in Canada. There are restrictions on players 17 years and younger with respect to where they can play and with whom. In particular hockey players 14 years and younger are prohibited from participation in Junior A or Junior B hockey; hockey players of 15 years of age are restricted to playing a maximum of five games per season in Junior A or Junior B hockey; and players 16 years of age or younger are prohibited from obtaining a transfer from Hockey Canada to Hockey USA if they will be moving without a parent.

5The applicant alleges that these rules discriminate against him on the basis of age. Recognizing that the ground of age as defined in the Code in section 10(1) “means an age that is 18 years or more”, the applicant asserts that the restriction on age is of no force or effect as contrary to section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”). To the extent that section 20(3) of the Code provides a statutory defence for age discrimination by recreational clubs (assuming that the respondent can avail itself of this statutory defence), the applicant also asserts that this provision is also of no force or effect as contrary to section 15(1) of the Charter.

6The applicant seeks two remedies in his transitional Application: an order striking out the definition of “age” in section 10(1) of the Code and an order barring the respondent from enforcing or promulgating eligibility regulations which restrict hockey players 16 years and younger from playing Junior A and Junior B hockey.

7At the direction of the Tribunal, the applicant gave notice to the Attorney General of Ontario pursuant to section 22.1 of the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code.

8The Attorney General intervened with respect to the constitutional issues.

9On May 6, 2010 the applicant made a Request for Order during Proceedings seeking to add a party to the proceedings. The applicant sought to add Ryan Christie, the brother of the applicant. Ryan Christie, born in January 1996 is currently 14 years of age. The proposed co-applicant submits that he is similarly adversely affected by the respondent’s eligibility regulations.

Is the Application Moot?

10The respondent submitted that the Application was moot on the basis that the applicant and proposed co-applicant were never members of the respondent hockey association and therefore were never bound by its restrictions. The respondent submitted affidavit evidence to establish that the applicant and proposed co-applicant were never registered in Canada as a Canada Hockey Association-regulated amateur hockey players.

11The applicant and proposed co-applicant do not dispute that they were not registered with the respondent as amateur hockey players. However, the applicant submits that the effect of the respondent’s eligibility regulations prevented him from trying out for a Junior A minor hockey team because of his age.

12In support of this, the applicant submitted the affidavit evidence of Harvey Shapiro, President of the Toronto Junior Canadiens from 2000 to 2009. The Toronto Junior Canadiens is a Junior A hockey team which is member of the Greater Toronto Hockey League, which is a member partner in the Ontario Hockey Federation, a member branch of the respondent hockey association. Mr. Shapiro affirmed that he knew the applicant’s father as a certified player agent with the National Hockey League Players’ Association who advised elite young hockey players. Mr. Shapiro affirmed that the applicant’s father had introduced him to several elite young hockey players and he grew to accept the applicant’s father’s recommendation for accepting young players for try-outs. When the applicant’s father sought a try-out for the applicant with the Toronto Junior Canadiens for the 2006-07 season, Mr. Shapiro advised the applicant’s father that he had no choice but to deny the applicant a tryout as the respondent’s regulations prevented the then 13 year old applicant from playing on a Junior A hockey team. Mr. Shapiro further affirmed that but for the respondent’s eligibility regulations he would have granted the applicant a tryout for his Junior A hockey team.

13The respondent asserts that Mr. Shapiro’s affidavit demonstrates that the applicant and the proposed co-applicant were not actually competitive hockey players and that the true purpose of the Application is not to address the alleged discriminatory impact on the applicant and proposed co-applicant but to have the respondent’s age restrictions struck down for the benefit of the applicant’s father in recruiting elite young hockey players.

14I have determined that I need to hear further evidence with respect to the bona fides of the applicant’s and proposed co-applicant’s desire and capacity (i.e., that they were sufficiently skilled and competitive) to try out for Junior Hockey.

15The applicant and the proposed co-applicant are directed to file affidavit evidence outlining their actual hockey experience (including dates, teams they played on, level of team) to demonstrate that they were sufficiently skilled and competitive to obtain a Junior A tryout. The applicant and proposed co-applicant should consider whether direct evidence from a hockey coach might be more persuasive evidence than that of the applicant’s father with respect to their hockey skills and that the Tribunal may draw an adverse inference from the failure to provide such evidence. The affidavit evidence should be submitted within 30 days of the date of this Interim Decision.

16A hearing will be convened for the cross-examination, if any, of the applicant and proposed co-applicant or other witnesses. I note that the applicant had requested the opportunity to cross-examine the respondent’s deponent and that cross-examination may be conducted at the same time.

17Oral argument on the issue of whether this Application is moot or not bona fide and the addition of the applicant’s younger brother as a co-applicant will also be heard at that time, if required.

18The previously scheduled date of July 13, 2010 is adjourned and the Registrar-Transition will contact the parties to schedule a new day of Hearing.