COURT FILE NO.: DC-05-011079-00

DATE: 20060406

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROMAN SAHAYDAKIVSKI Applicant

• and -

YMCA OF GREATER TORONTO Respondent

COUNSEL: Gerard V. Thompson, for the Applicant William R. MacLarkey, for the Respondent

HEARD: March 1, 2006

REASONS FOR JUDGMENT

BELLEGHEM J.

The Application

1The applicant asks for an order setting aside his expulsion and restoring his membership to the YMCA as well as an order requiring the respondent YMCA to disclose the name of a complainant or complainants upon whose information the respondent relied in expelling the applicant.

Background

2Anthony Ierulli is the Manager of Health, Fitness and Relocation for the Mississauga YMCA. He deposes the YMCA’s societal role succinctly as follows:

The YMCA’s vision is to be a leader in enhancing civil society, where people are respectful and supportive of one another. A core feature of the programs and services offered to the community is the health and recreation facilities available to YMCA members. YMCA seeks to provide health and fitness facilities in a clean, safe, and friendly environment for people of all ages and stages of life.

3The applicant, who had apparently been a student member some years ago with the YMCA, joined the YMCA in the summer of 1998 as an adult.

4On April 8, 2005, according to Mr. Ierulli, he received a complaint from a YMCA ”member” about the respondent’s behaviour while in the men’s shower area. The impugned behaviour was:

Sahaydakivsky bends over in the shower, aims water at his anus, uses his hands so that it appears he is entering himself;

Sahaydakivsky brings boxes of Kleenex into the toilet area and flushes the toilet approximately 20 - 25 times;

Sahaydakivsky hangs around the lounge area of the men’s change room, naked, and for no apparent purpose; and

While in the shower area Sahaydakivsky sets up an area with his cleaning supplies, restricting the area in which people can walk around.

5Ierulli, along with his vice president, met with the respondent April 27, 2005 to discuss the complaint with the applicant. According to Ierulli, the applicant “acknowledged that some of his behaviour, particularly his showering habits, may make some members feel uncomfortable”. The applicant assured Ierulli that he would “utilize a private shower stall while in the showers and that he “would be more aware of his behaviour”. Ierulli says that he and the vice president reminded the applicant of the YMCA’s “participant etiquette statement” which provides:

The YMCA is a shared experience for everyone to enjoy. Each of us can make it better for all by being considerate of others. YMCA members, volunteers and staff all pledge to treat one another with respect and dignity.

6Approximately two weeks later on May 14, 2005, Ierulli received another complaint, this time from a staff member, that he had heard the applicant masturbating in the toilet stall in the men’s change room. Four days later, May 18, 2005, Ierulli met again with the applicant, this time in the company of Mr. Hendricks, Specialist, Membership Sales and Services, to review the staff member’s complaint. They informed the applicant that they were not taking the position that he had “in fact” been masturbating, but that the YMCA “was very concerned that his behaviour in the men’s change room was making others feel uncomfortable”. The applicant was understandably defensive and denied the behaviour. Nevertheless, Ierulli warned him “that any further incidents would result in suspension of his membership”. This was confirmed by letter of May 19, 2005. In this letter the applicant was advised that this was … “a letter of warning. Further incidents will result in the suspension of your membership”.

7Approximately one month later, June 14, 2005, Ierulli received a complaint from a member respecting the member’s observations two days earlier, June 12, 2005. According to Ierulli, the member told him “that upon entering the shower area he observed Sahaydakivsky, whom he knew through previous conversations, in the act of masturbation. Sahaydakivsky did not notice the member enter the shower area, as the member left the shower area upon observing Sahaydakivsky. The member stated that he was sure he observed Sahaydakivsky in the act of masturbation, and the member was extremely upset”.

8Ierulli in his affidavit in response to the application deposes as a result of this report that he was “satisfied that Sahaydakivsky had in fact been masturbating in the shower on June 12, 2005”.

9Ierulli discussed the matter with the vice president and senior vice president of the Greater Toronto YMCA as a result of which it was agreed that the applicant’s membership would be cancelled.

10Accordingly, a letter was sent dated June 16, 2005 to the applicant that reads as follows:

On May 19, 2005, we informed you that a member alleged to hear you masturbating in the men’s washroom. At that time, we reminded you of our member etiquette policy and warned you than any further incidents would lead to the suspension of your membership.

Despite this warning, I have been advised of a further incident pertaining to behaviour of this nature. On June 14, 2005 you were observed in the act of masturbation in the shower area of the Mississauga YMCA. We have investigated the information provided and are satisfied with the declaration.

This behaviour is unacceptable in a public area where children may be present and will not be tolerated. It is disrespectful to the rights of other members and constitutes sexual harassment.

We are therefore revoking your membership at the YMCA effective immediately.

11While little turns on it, the letter was in error in referring to the May 19th confrontation with the applicant as having been initiated by a complaint by a “member” when in fact it was a “staff” member.

12Following his expulsion, correspondence passed between the applicant’s counsel and the YMCA. The applicant’s counsel insisted upon a full hearing. The chief financial officer of the respondent offered on a “without prejudice basis to receive any information that you would like to share on behalf of Mr. Sahaydakivsky in connection with the June 14, 2005 incident”.

13When the matter remained unresolved, the applicant brought the present application.

Analysis

14Paragraph 5 of General By-law No. 7 of the YMCA of Greater Toronto deals with expulsion and suspension of membership. It gives the president and each vice president power to expel or suspend any member whose conduct the officer considers to be

…improper, unbecoming or likely to endanger other members of the Association or the property, employee’s welfare, interest or reputation of the Association or who wilfully commits a breach of the by-laws or rules of the Association”.

It provides, however, that

unless a law has been breached, no member shall be expelled or suspended without being given an opportunity to be heard by the officer or such officer’s designate.

The position of counsel for the applicant is that the applicant therefore was suspended “without being given an opportunity to be heard by the officer or such officer’s designate”.

15I do not agree. The preamble to the last sentence of the paragraph 5 of General By-law No. 7 provides “… unless the law has been breached …”.

16The position of the respondent is that masturbating in a public place is a breach of the law. More particularly, it is a breach of s. 173(1)(a) of the Criminal Code. See R. v. Burgar (2005), B.C.J. No. 2686 (B.C.S.C.) and R. v. Dodangoda (2000), 2000 26965 (ON CJ), O.J. No. 486 (S.C.J.). Accordingly, the respondent had the authority under its by-law to expel the applicant without a hearing.

17The applicant’s position in response to the above argument, as I understand it, is this: the finding by the respondent that the applicant’s actions “breached” “a law” are, by virtue of case law, a “finding of fact”; such a “finding of fact” could only have taken place in the context of a ”hearing” before the officer in order to determine whether “in fact” there had been a “breach” of the “law”. It was the failure of the respondent to hold a hearing into the evidence to make a finding of fact as to whether or not the law had been breached that denies the applicant’s right to a hearing by the officer, in accordance with the Rules of Natural Justice. This is the foundation for the application in this court.

18The applicant concedes that the function of the reviewing court is not to sit as a “Court of Appeal”, i.e. it is not to consider whether the decision was “right” or “wrong” but rather to inquire into whether the club followed its own rules in good faith, and whether the expulsion occurred in accordance with the tenets of “natural justice”. The applicant takes the position that the offer made to him to provide the officer information respecting his side of the event of June 12th demonstrates a lack of bona fides, and that he ought to have been provided an opportunity to face his accusers. It is argued that the failure of the officer to afford him the opportunity to be heard, and to face his accusers, at a full hearing, denied him “natural justice”.

19The applicant argues that he has been “presumed guilty” until he is able to prove his innocence; that he has a right to know the case against him; that he be given an opportunity to present his side of the case; and that he has the right to know who his accusers are and to face them in an open hearing. The applicant further argues that his concerns are of particular weight because the allegation in this case has obvious innuendos of “sexual impropriety”, yet he is not aware of who is saying precisely what about him which led to his dismissal. He argues that he has been denied full details of the allegations against him, including the name of the complainant, and that despite the nature of the association from which he was expelled, and their right to make their own rules, including dismissal processes, he has been denied his natural justice rights at common law.

20Lord Justice Denning in Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.) at 1181 invokes the concept of “fair play”, so far as expulsion from social clubs is concerned, in the following words:

The question in the present case is: To what extent will the courts examine the decisions of domestic tribunals on points of law? This is a new question which is not to be solved by turning to the club cases. In the case of social clubs the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club, and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter any more than from the decisions of a family conference. They have nothing to do with social rights or social duties. On any expulsion they will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules, but will not otherwise interfere.

21In the same decision Denning L.J. confirmed the court’s power to intervene “to protect rights of contract”. He held that

if a member is expelled by a committee in breach of contract, this court will grant a declaration that their action is ultra vires. It will also grant an injunction to prevent his expulsion if that is necessary to protect a proprietary right of his, or to protect him in his right to earn his livelihood

but it will not grant an injunction to give a member the right to enter a social club unless there are proprietary rights attached to it because it is too personal to be specifically enforced…

22Subsequent cases have shown a distinction between the right to “enter” a social club (which is not the present case) and the right to have an improper “expulsion” overturned, if there has been a breach of the contractual right attached to the membership, or if proprietary rights or right to a living are affected, in the proper case. There can be no doubt in the present case that the applicant is bound by both the by-laws of the YMCA, including the provisions of paragraph 5 of By-law 7, as well as the “participant etiquette” policy which is publicly posted throughout the YMCA facilities and which, if violated by the applicant, entitles the respondent to expel the applicant with a hearing, if it is not breach of a law, and without a hearing, if it constitutes a breach of the law.

23The position of the respondent is simply that the first incident may be nothing more than a breach of etiquette entitling the respondent to expel the applicant, once the applicant has had an opportunity to put his case to the officer. That, in fact, occurred. However, the applicant was not expelled.

24With respect to the second incident, while what was alleged to be the improper conduct probably amount to a breach of the law, assuming the respondent to have found it to have occurred, nevertheless the applicant had an opportunity to be heard and was not expelled. He was, however, warned both verbally and in writing that if similar conduct was reported that he would be expelled. Similar conduct was reported, the conduct reported was found by the respondent to have occurred, and amounted to a breach of law not requiring a hearing before the officer, as provided for in paragraph 5 of By-law 7.

25Three officers of the respondent found as a fact that the applicant did an act which in law constituted public indecency under s. 173 of the Criminal Code. Under paragraph 5 of By-law 7 the rules provide for expulsion without a hearing. As a member of the association, the applicant is deemed to have agreed to abide by the rules, and to have accepted as a term of membership the officers’ right to expel him in those circumstances.

26Both applicant and respondent agree that this court’s jurisdiction to review and overturn the expulsion is narrow. As was pointed our by Chapnik J. in Conacher v. Rosedale Golf Association Ltd. [2002] O.J. No. 575, (Feb. 15, 2002):

The by-laws of not for profit or “voluntary associations” such as social clubs, philanthropic, sports or professional bodies constitute contractual obligations as between the members and the corporation

membership in a club may give members valuable proprietary and social rights, including the right that the club’s affairs be conducted honestly and bona fides in accordance with its rules

while the internal rules may create enforceable legal obligations on the part of the social obligations on the part of the association to the member, it is a question in each case whether the particular rule in issue was intended to give rise to an enforceable contractual legal obligation.

27Justice Chapnik also observes that:

Clearly, the courts may intervene in a dispute where the members’ property or civil rights are at issue and natural justice has not been followed. The rationale appears to be that a member joins an organization voluntarily and the relationship is contractual in nature.

At the same time, as a matter of policy the law refuses to recognize a duty of care regarding the social expectations of others or to interfere in purely voluntary social relationships.

28The Supreme Court of Canada affirmed as recently as 1992 in Lakeside Colony of Hutterian Brethren v. Hofer (1992), 1992 37 (SCC), 3 S.C.R. 165 that “… these rights to remain (as members) are contractual in nature, rather than property right”, and adopts Lord Denning’s test referred to above in Lee. In the same decision the Supreme Court reaffirmed the statement of Stirling J. in Baird v. Wells, [1890] 44 Ch. D. 661 (p. 670) that:

The only questions which this court can entertain are: first, whether the rules of the club have been observed; secondly, whether anything has been done contrary to natural justice; and, thirdly, whether the decision complained of as being made come to bona fides.

29The first issue to be resolved, therefore, is whether the respondent complied with its own rules, specifically paragraph 5 of By-law 7. The respondent’s position is that the respondent had under its by-law the right to make a factual finding without a hearing as to whether or not events occurred in which a member was involved which constituted a breach of the law. The by-law in this regard is very simple and straightforward. The action complained of, if found by the respondent, is also simple and straightforward – a breach of s. 173(1)(a) of the Criminal Code. I agree with the applicant that the finding by the respondent, although it is that a breach of law has occurred, is nevertheless a “finding of fact”. It is a question of fact for the respondent to make.

30The court will not intervene on any finding of fact made by the respondent, provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association. I am not entitled to weigh the evidence leading to the respondent’s finding of fact that the applicant broke the law in that he, according to their finding, was masturbating in the public shower area. Whether we characterize the finding by the respondent officers as “an opinion” or a “finding of fact” the means by which they arrived at it, provided they complied with their own by-laws, and did not demonstrate mala fides, is not a matter upon which the court has jurisdiction to interfere.

31It is arguable that such a finding, if made on “no evidence”, would amount to mala fides. However, in the present case it is beyond doubt that the officers found in fact that there had been two previous complaints of a similar nature, and that they found that the facts complained of in the third complaint actually occurred. Those facts constituted a breach of law, which was the opinion of the respondent, and this entitled the respondent, under its by-law, to expel the applicant without any further hearing before the officers. Despite the forgoing, the officers agreed, albeit on a “without prejudice basis”, to hear the applicant’s side of the story. The applicant did not bother to take up the officers on their suggestion but chose to resort to the courts for relief.

32Given the history found by the board, it cannot be said that the finding of a breach of law, which required no hearing before expulsion, as found by the board was based on “no evidence”, and there was nothing in the material otherwise that suggests that the decision was made other in than in “good faith”.

33It follows, therefore, that the board exercised its authority to expel in accordance with its own rules, and that it did so in the absence of mala fides.

34The last way in which this court could interfere with the respondent’s decision to expel would be on the basis that the respondent in carrying out its expulsion failed to comply with the requirements of natural justice. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 the Supreme Court of Canada lays down a number of factors that are recognized as relevant to the issue of procedural fairness in the context of “statutory bodies”. The case, however, is instructive on the issue of the extent to which procedures the duty of fairness requires to be taken into account. It also addresses the “choices of procedure” made by the deciding body, “particularly when the statute leaves to the decision maker the ability to choose its own procedure”. Among other factors the court suggested as being important are the significance of the decision to the individual; the legitimate expectations of the individual vis à vis the decision; the nature of the deciding tribunal and its organization; and the particular process chosen by the agency to make its decision.

35In the present case I agree with respondent’s counsel that the importance of the decision to the applicant cannot be quantified as “significant”, because he has more than adequate opportunities to join other organizations providing essentially the same services available to him at the YMCA. It certainly does not affect his ability to carry on his living, nor are any proprietary rights called into question.

36As indicated earlier, the applicant could have had no other expectation, in light of the provisions of paragraph 5 of By-law 7, that if a complaint were made on the heels of the first two, which constituted a breach of law, that it is likely that he would have been expelled from the organization without any further hearing, given the fact he had already been confronted on two previous occasions, and had, in effect, been given “the benefit of the doubt” on those occasions.

37I also agree with counsel for the respondent that the nature of the organization, a very loose-knit social organization which provides fitness and recreation facilities, has an overarching obligation to ensure the safety, well being and comfort of all its members, even if this occurs occasionally at the expense of genuine misunderstanding. The nature of the organization is such that if it is going to err it must err, in accordance with its by-laws, on the side of the organization as a whole, rather than in favour of any particular individual.

38It is of particular significance in this context that the final complaint which led to the applicant’s expulsion came shortly after two early similar complaints in a relatively short period of time. Whether or not those complaints were legitimately founded will never be known. However, the organization simply does not have a positive duty to rule out with any degree of precision that what occurred was anything more than misunderstanding or series of misunderstandings rather than something more sinister. The organization simply cannot afford, given the nature and extent of its activities, to run the risk of putting any single individual’s contractual interest in maintaining membership, above the welfare of the organization, viewed as a whole.

39Provided it has rules in place, and followed those rules, provided the rules are transparent and treat all of its members equally fairly, this court has no right to interfere in how the organization carried out its decision to expel. This is particularly so in light of the history as it appears from the affidavit of Mr. Ierulli, and the undisputed meetings which took place prior to the expulsion, including the warning, and the warning letter itself.

40Finally, the procedure chosen by the organization was to expel for a breach of law. That in and of itself should not be objectionable. The only thing that might arguably be complained of in the present case is that expulsion for breach of law without a hearing was contrary to the principles of natural justice. That may well be the case in some circumstances, but not here.

41It is not the case here, because of the nature of the organization, the need for the organization to act quickly and decisively, in light of the two prior complaints, and the warning given, both verbally and in writing. There was simply no evidence to suggest anything other than genuine bona fides on the part of the organization who expelled the applicant which would otherwise give the court concern as to whether or not the applicant had been treated throughout with utmost fairness. Even the final “without prejudice” offer to listen to the defendant’s side of the third complaint demonstrated ongoing bona fides on the part of the organization.

42It is conceivable that the complaints were made to the organization by some malcontent. Nevertheless, the organization is simply not in the position to monitor and adjudicate personal social disputes of the sort that could arguably give rise to such mala fides complaints being made, if this is the position which the applicant would take on a full hearing.

43If the applicant took the position, on a full hearing, that it was a case of “misunderstanding”, then the organization would still have the right to expel, because there can be no question that it was the applicant’s activities which gave rise to the complaints in the first place and the organization, as indicated above, has a greater obligation to the whole of the organization than it does to any particular individual member.

44Such a social organization is not perfectly analogous to a political society in which the Charter of Rights protects interaction. Nor can such organizations be expected to exercise their discretion to expel or even to arrive at their opinions leading to the exercise of their discretion to expel based on the same types and extent of judicial trappings appropriate to society as a whole.

45As Lord Denning made clear in Lee, the applicant’s rights arise by contract. His legitimate expectations under the contract of being dealt with fairly were demonstrated by the two meetings initiated by the organization, and his final expulsion because an allegation of a breach of law had been made against him. He could not legitimately have expected any other outcome.

46It follows that the application must be dismissed with costs. Costs may be addressed as follows: the respondent shall deliver written cost submissions within 30 days; the applicant shall respond within 15 days; the respondent shall have 10 days to reply. My cost order will follow shortly thereafter.

Belleghem J.