2014 ONSC 5881
DIVISIONAL COURT FILE NO.: 441/14
DATE: 20141008
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WEST TORONTO UNITED FOOTBALL CLUB
Applicant
– and –
ONTARIO SOCCER ASSOCIATION
Respondent
T. Danson, for the applicant
K. Pereira, for the respondent
HEARD at Toronto: September 26 & October 1, 2014
NORDHEIMER J.:
[1] Sports matches should be decided on the playing field - not in committee rooms nor in courtrooms. Yet that is what ultimately had to happen in this case.
[2] The applicant brought this application for judicial review, on an urgent basis, regarding a decision made by the respondent to change the result of the semi-final game of the Ontario Cup. Because of the urgency involved in this matter, at the conclusion of the argument, I made an order, with reasons to follow, setting aside the decision of the respondent’s Protest Committee and restoring the victory that the applicant’s team had achieved at the semi-final game of the Under 16 Boys Tier 1 Division of the Ontario Cup. I further ordered that the respondent should arrange to replay the final game with the applicant’s team playing in it. If that was not possible, then the applicant’s team was declared to be the winner of the final game.[^1] The following explains my reasons for reaching that result.
Background
[3] The West Toronto Cobras 98 are an Under 16 Boys Tier 1 Division team run by the applicant. The applicant is part of the Toronto Soccer Association which is an affiliate of the respondent. The TSA is responsible for registering eligible players for their clubs under the auspices of the respondent. For sake of convenience, I will refer to the applicant hereafter as the Cobras.
[4] The respondent, Ontario Soccer Association, governs soccer in the Province of Ontario. It is the organization under which all teams play soccer in this Province. The OSA sets the rules for competition, for the eligibility of players and it organizes various tournaments that culminate in the Ontario Cup. The winner of the Ontario Cup advances to the National Club Championships (or the National Cup) that is organized by the Canadian Soccer Association. The Canadian Soccer Association is the official governing body for soccer in Canada and is affiliated with the Federation Internationale de Football Association (FIFA).
[5] On Saturday, August 23, 2014, the Cobras played the Woodbridge Strikers 98A in the semi-finals of the Ontario Cup. The Cobras won the game 2-1. At some point during the game, the Strikers made some very informal complaint that the Cobras were using six players improperly as “call-ups”. Nothing was done with respect to this informal complaint at the time.
[6] On Tuesday, August 26, the Strikers formally challenged the Cobras’ victory (the “Protest”). The Strikers asserted that the Cobras had improperly used six players as “call-ups”. On Wednesday, August 27, the OSA sent the Protest to the Cobras. They were given until noon the next day to respond to the Protest. On Thursday, August 28, the Cobras were on a bus to Washington, D.C. to participate in a soccer tournament over the Labour Day weekend. The Head Coach of the Cobras responded to the Protest by letter that day denying that the Cobras had improperly used any call-up players in the semi-final game. The letter pointed out that all of the players on the Cobras were properly registered as members of that team.
[7] The Cobras say that a representative of the OSA assured them that this response would adequately address the Protest. The OSA denies that that assurance was given. While I do not have any reason to disbelieve the direct evidence from the Cobras that this assurance was made, it is not really necessary to decide that issue in light of what subsequently transpired.
[8] On Friday, August 29, the OSA sent an email to the Cobras that raised a new issue regarding the semi-final game. The OSA questioned the eligibility of one of the Cobras’ players, Tristan Borges, who had played for the Cobras in the semi-finals. It was asserted by the OSA that Tristan was not assigned to the Cobras as a player until August 12, 2014 which would be outside of the time frame to make him eligible to play in the Ontario Cup. The OSA said that this issue was going to be referred to the Protest Committee as part of its consideration of the Protest.
[9] The Cobras say, and I accept, that they were “blindsided” by the issue involving Tristan regarding whom there had been no prior problem in terms of him playing for the Cobras. According to the Cobras, Tristan had been a registered member of their team for the entire season. The Cobras were therefore legitimately confused as to how any issue could arise regarding Tristan’s eligibility. The Cobras suspected, however, that an administrative error may have been made by the TSA regarding Tristan because the TSA had made an administrative error a few weeks earlier regarding one of their other players. The Cobras alerted the OSA to this possible explanation on Monday, September 1.
[10] Because this was all unfolding over the Labour Day weekend, the Cobras had to wait until Tuesday, September 2 to contact anyone at the TSA to look into the issue of the registration of Tristan. On that same day, the OSA advised the Cobras that the Protest Committee was going to hold a hearing early that afternoon. In light of the information provided by the Cobras, the OSA did contact the TSA to follow-up on the claimed administrative error. That evening, a representative of the TSA confirmed to the OSA that an administrative error had been made regarding Tristan’s registration. The TSA’s representative advised the OSA that the mistake had been made back on August 12 when Tristan had been accidently removed from the roster of players for the Cobras during the course of making other changes. The TSA was unaware that it had made the error until it was contacted about Tristan’s eligibility. The TSA advised the OSA that the TSA was immediately fixing the error and sending to the OSA the corrected team roster for the Cobras, that included Tristan, as it should have been “in the first place”.
[11] As a result of this information from the TSA, the OSA made some follow-up inquiries of the TSA. Meanwhile, the meeting of the Protest Committee had been adjourned to be continued on September 3. In the early morning hours of September 3, the TSA responded to the OSA’s additional inquiries and again confirmed the error regarding Tristan.
[12] In the evening of that same day, September 3, the OSA sent out its decision on the Protest. It granted the Protest and awarded the semi-final victory to the Strikers. In its reasons for this decision, the Protest Committee made the following findings:
(i) Tristan was used ineligibly as a call-up in the semi-final game;
(ii) Tristan was not, at the time of the semi-final game, assigned to the Cobras;
(iii) the claims that Tristan’s ineligibility was due to a mistake made by the TSA were “unsubstantiated”;
(iv) there was “no evidence” that Tristan should not have been removed from the team roster for the Cobras, and;
(v) no effort had been made by the Cobras to rectify the situation involving Tristan until September 2 after the Protest had been filed.
[13] There are certain other facts that should be mentioned. One is that on September 2, the day before the Protest Committee’s decision to award the semi-final game to the Strikers, the OSA published, on its website, the schedule for the finals. Of note is that the schedule listed the Strikers as playing the Panthers in the final game, not the Cobras.
[14] On Friday, September 5, the Cobras advised the OSA, the CSA, the Strikers and the Panthers that it disputed the decision of the Protest Committee. On Saturday, September 6, the finals of the Ontario Cup were played. The Strikers beat the Panthers 1-0. As a result, the Strikers advanced to play in the National Club Championships.
[15] On Wednesday, September 17, the Cobras filed an appeal with the OSA. The OSA advised the Cobras that no appeal was available from the decision of the Protest Committee and returned the appeal material. This application for judicial review then followed.
[16] Against that background, I turn to the first issue that was raised and that is the jurisdiction of this court to hear a judicial review application in this matter. The OSA contends that this court has no jurisdiction to hear this application.
Jurisdiction
[17] I begin my consideration of this issue by saying that I agree with the general proposition that courts should be loathe to intervene in the results of sports matches or how they are played. That reluctance, however, does not equate to a conclusion that the court does not have jurisdiction to do so.
[18] The starting point for this analysis is the recent decision in Setia v. Appleby College (2013), 2013 ONCA 753, 118 O.R. (3d) 481 (C.A.). In that case, the Court of Appeal considered when it is appropriate for courts to review the actions of bodies that are not exercising a statutory power of decision. It is recognized that under s. 2(1)1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, in this Province judicial review is not restricted just to bodies that exercise a statutory power of decision. As was noted by Goudge J.A. in Setia, at para. 30:
The public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.
[19] In Setia, the Court of Appeal adopted the factors set out in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 (C.A.) in terms of what decisions are of a sufficiently public nature as to clothe the court with jurisdiction to review those decisions. Those factors are set out by Goudge J.A. at para. 34:
the character of the matter for which review is sought;
the nature of the decision-maker and its responsibilities;
the extent to which a decision is founded in and shaped by law as opposed to private discretion;
the body’s relationship to other statutory schemes or other parts of government;
the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
the suitability of public law remedies;
the existence of a compulsory power;
an “exceptional” category of cases where the conduct has attained a serious public dimension.
[20] Of these eight factors, I consider the following five to have particular application to this case. However, in understanding and applying any of these factors, it is helpful to return to the reasons of Stratas J.A. in Air Canada and his explanations, or clarifications, as to the meaning of the various factors. Those five factors are:
(i) the character of the matter for which review is sought. On this factor, Stratas J.A. posed the question: Is it a private, commercial matter, or is it of broader import to members of the public?
(ii) the nature of the decision-maker and its responsibilities. On this factor, Stratas J.A. posed the question: Is the decision-maker public in nature, such as a Crown agent or a statutorily-recognized administrative body, and charged with public responsibilities?
(iii) the suitability of public law remedies. On this factor, Stratas J.A. noted that “if the nature of the matter is such that public law remedies would be useful” then a court would be more inclined to view the matter as public in nature.
(iv) the existence of a compulsory power. On this factor, Stratas J.A. said that the “existence of compulsory power over the public at large or over a defined group, such as a profession, may be an indicator that the decision is public in nature”.
(v) an exceptional category of cases. On this residual category, Stratas J.A. said “Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable”.
[21] Another consideration in applying the factors from Air Canada, is that they are not a checklist where one answers Yes or No to each factor and then totals up the result. Rather, one uses the factors as a guide to reach the ultimate conclusion whether the particular matter in issue is of a public nature. On this point, I agree with Lederer J. in Assn. for the Protection of Amherst Island v. Ontario (Ministry of the Environment), 2014 ONSC 4574, [2014] O.J. No. 4056 (S.C.J.) where he said, at para. 42:
What this approach demonstrates is that the application of the factors is not an objective exercise where the numbers on one side are added and compared to the other to see which comes out ahead. This is not a matter of keeping score. It is a more subjective analysis applying and weighing those of the identified factors that are relevant to the particular case.
[22] This approach is also consistent with the one taken by Stratas J.A. in Air Canada where he said, at para. 60:
Whether or not any one factor or a combination of particular factors tips the balance and makes a matter “public” depends on the facts of the case and the overall impression registered upon the Court.
[23] I have set out the factors that I view as relevant to this case. With respect to those factors, I note that the OSA controls the playing of competitive soccer in Ontario. While the parties disagree over the precise numbers, there are about 500,000 players under the control of the OSA. Put simply, you cannot play competitive soccer in this Province without subjecting yourself to the authority of the OSA. When one factors into the mix the families and friends of soccer players, the number of people impacted by decisions of the OSA increases into the millions.
[24] Considering those realities, the actions of the OSA have a very broad public impact and it is correspondingly charged with very public responsibilities. The OSA is charged with ensuring that soccer is played in an organized and fair manner in this Province. Given the increased interest in soccer, and the importance that many people place on being able to play this sport, especially among young people, there is a very large public dimension to what the OSA does.[^2] The OSA also clearly exercises a “compulsory power” over a “defined group”. Further, while I would not rely solely on the residual category as providing jurisdiction in this case, it could be reasonably said that the OSA has a very serious effect on the interests of a broad segment of the public. I am therefore satisfied that the activities of the OSA fall within the purview of public law, at least insofar as it makes decisions fundamental to the sport that it governs.
[25] I also note on the issue of jurisdiction that there are a large number of decisions of courts in this Province and in British Columbia (that has similar legislation to Ontario’s JRPA) in which courts have reviewed the actions of sports governing authorities.[^3] I appreciate that these cases pre-date the decision in Setia but, as that decision pointed out, whether a particular matter is subject to public law should be informed by existing case law: Setia at para. 33.
[26] In considering whether the application of public law remedies would be useful, I repeat the basic principle that underlies the court’s use of the prerogative power of certiorari, or review, regarding public bodies. It is set out in Martineau v. Matsqui Disciplinary Board, [1980] 1 S.C.R. 602 where Dickson J. said, at p. 628:
The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. [emphasis added]
[27] It is that general duty of fairness that is of special importance in this case. We have a team of teenage boys who won an important game on the playing field only to have that victory subsequently taken from them by the actions of certain officials within the governing body. Our society works constantly to instill in young people certain basic principles among which are that people should treat each other with fairness and that everyone should be subject to, and should play by, the same rules. Our belief in those principles is best demonstrated by how we deal with issues such as arose in this case. If this victory is taken from these boys through a process that is fundamentally unfair, as I believe it to have been in this case as I shall explain below, then, in accordance with our stated principles, it would be expected that steps would be available to rectify that result. If we say that there is no recourse available to correct that unfairness, what message do we then send as to our true belief in the importance of fair play? I repeat that we are not here dealing with a school game or a neighbourhood league. We are dealing with the Provincial Championships in a sport that has both a broad public impact and a broad public interest.
[28] Lastly, on this point, the OSA raises concerns about the potential effect of a court ruling on its activities and the willingness of people to volunteer their time to assist it. I say in response to those concerns that neither the nature of the OSA’s work, nor the voluntary status of the many persons who devote time to the activities of the OSA, should be negatively affected by the knowledge that the manner in which the activities are run, or that the persons involved conduct themselves, will be judged against a general duty of fairness.
[29] I therefore concluded that this court did have jurisdiction to review the actions of the OSA given its overriding role in the sport of soccer and the nature of the specific decision that was in issue here.
The Protest Committee’s decision
[30] Having concluded that this court had jurisdiction to consider this application, I turn to my reasons for concluding on the second issue that decision of the Protest Committee had to be set aside. That issue can be dealt with more briefly.
[31] From a review of the facts as I have recited them, it should be readily apparent that the findings made by the Protest Committee, set out in paragraph 12 above, are fundamentally flawed. Contrary to the conclusion of the Protest Committee, the claims that Tristan’s ineligibility were due to a mistake made by the TSA were not only substantiated, they had been confirmed in writing to the OSA prior to the Protest Committee meeting. Again contrary to the conclusion of the Protest Committee, there was direct evidence from the Cobras and the TSA that it had never been the intention of the Cobras to remove Tristan from the team roster. Further, the complaint that the Cobras had not done anything to rectify the situation until after the Protest was filed is an unfair criticism. The Cobras were not aware of the TSA mistake until the issue was raised as part of the Protest. I note that the Strikers had not raised this as an issue. Rather, it was the OSA, on its own motion, that raised the issue.
[32] The governing body of a sport should only interfere with the result of a match if there is a clear and compelling reason to do so. Participants and spectators alike should be able to assume that the outcome of a match, as played, is the final result and that it will not be subject to reversal by officials at a later date unless there is convincing evidence that a fundamental breach of the rules, or some other equally significant impropriety, has occurred.
[33] In this case, if it had been clear that Tristan was not an eligible player, the OSA would have been entitled, fairly, to intervene. However, the only evidence available to the OSA was that Tristan had been a member of the Cobras for the entire season. His name was accidentally removed from the team roster through an administrative error made, not by the Cobras, but by the TSA. It was unreasonable for the Protest Committee to intervene and reverse the result of the semi-final game in those circumstances, especially when the Protest Committee did not provide the Cobras with a reasonable opportunity to respond to the ultimate concern that developed on this point. The suggestion by the OSA that, in some fashion, the representative of the TSA, who was providing information to the OSA on this issue, became an agent or representative of the Cobras and, thus, the Cobras had an adequate opportunity to respond through her, is an untenable one.
[34] The end result is that the OSA reached a conclusion that finds no foundation in the evidence that was before it. In effect, the OSA has arbitrarily, and unfairly, changed the result of a match and has done so for no apparently legitimate reason. As such, the decision of the OSA is one that does not deserve deference from this court. It is a conclusion that was unreasonable in the circumstances and it is a conclusion that was made without giving the Cobras a fair opportunity to be heard.
[35] For these reasons, I set aside the decision of the Protest Committee and restored the Cobras’ victory in the semi-final game. I further directed that the final game should be replayed with the Cobras and the Panthers participating, if that was possible. If that result turned out to be impractical, given the time constraints involved, then the Cobras were declared to be the winner of the finals since they properly stand in the shoes of the Strikers. That result does no disservice to the Strikers who ought not to have played in the finals. It also does no disservice to the Panthers who lost the final game and could have no reasonable complaint that they have not been afforded an opportunity to redeem that loss.
[36] Finally, I should note that the CSA, the TSA, the Strikers and the Panthers were all given notice of this application for judicial review and none of them appeared.
NORDHEIMER J.
Date of Release:
2014 ONSC 5881
DIVISIONAL COURT FILE NO.: 441/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WEST TORONTO UNITED FOOTBALL CLUB
Applicant
– and –
ONTARIO SOCCER ASSOCIATION
Respondent
REASONS FOR DECISION
NORDHEIMER J.
Date of Release:
[^1] By way of typed endorsement dated October 2, 2014, I dealt with a subsequent issue regarding whether the final game could fairly and reasonably be replayed. I determined that it could not and declared the Cobras as the winners.
[^2] I note that the Canadian Soccer Association’s website states that “soccer is the largest participatory sport in Canada and is considered the fastest growing sport in the country”.
[^3] I note, by way of one example only, that this court took jurisdiction in a very similar case also involving the Ontario Cup in Woodbridge Soccer Club v. Ontario Soccer Assn., [2002] O.J. No. 3806 (S.C.J.)