CITATION: Capelli v. Hamilton Wentworth (Catholic School Board), 2017 ONSC 5442
DIVISIONAL COURT FILE NO.: 494/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
LAUREN CAPPELLI, A MINOR, BY HER LITIGATION GUARDIAN, ADAM CAPPELLI
Applicant
– and –
HAMILTON WENTWORTH CATHOLIC SCHOOL BOARD, GOLDEN HORSESHOE ATHLETICS CONFERENCE AND ONTARIO FEDERATION OF SCHOOL ATHLETIC ASSOCIATIONS
Respondents
C. MacLeod and J. Kasozi for the Applicant
P. Sullivan for the Respondent Hamilton Wentworth Catholic School Board
S.J. MacDonald For the Respondent Ontario Federation of School Athletic Associations
HEARD: September 5, 2017
1The applicant, Lauren Cappelli (“Lauren”), seeks judicial review on an urgent basis of decisions by the Hamilton Wentworth Catholic District School (the “Board”) and the Golden Horseshoe Athletic Committee (“GHAC”) denying her eligibility to play basketball on her high school team for the 2017/2018 school year.
2In January 2017, Lauren transferred from Bishop Tonnos High School (“BT”) to St. Thomas More High School (“STM”). The Board has a policy that precludes students from playing any team sports for one year following a transfer to a new school. The policy allows for exceptions in situations where the transfer occurred due to bullying. Lauren applied to the Board for an exemption from the policy on the basis that she had been bullied by another student at BT and by that student’s father who is a teacher and basketball coach at BT.
3The Board denied the request for an exemption from the policy on the basis that there was insufficient evidence to support Lauren’s request. GHAC reviewed and upheld the Board’s decision. At the applicant’s request, following the submissions of additional information, both the Board and the GHAC reviewed and upheld their decisions.
4The next level of appeal is the Ontario Federation of School Athletic Association (the “OFSAA”), but the OSFSAA’s next meeting is on October 5, 2017, and the girls’ regular basketball season starts on September 19, 2017. The applicant has therefore brought this application for judicial review to be heard on an urgent basis pursuant to section 6(2) of the Judicial Review Procedures Act, seeking an order for certiorari quashing the decisions of the Board and the GHAC and a declaration that she is eligible to play basketball on the team at STM for the 2017/2018 season, or, alternatively, requiring the OFSAA to hear and decide Lauren’s appeal by no later than September 15, 2017.
5The applicant challenges the decisions of the Board and GHAC on two grounds. First, she argues that the decision gives rise to a reasonable apprehension of bias and, second, that there was a lack of procedural fairness. The respondents argue that the Divisional Court does not have jurisdiction over the application or, alternatively, that there was not bias or lack of procedural fairness.
6For the reasons set out below, I find that the application should be dismissed. While this is an appropriate case to be heard on an urgent basis and the Divisional Court does have jurisdiction over the matter, I am not satisfied that the applicant has established a reasonable apprehension of bias or procedural unfairness.
Background Facts
Transfer Policy and appeal process
7STM and BT are both schools within the Board. Inter-school athletics within the Board are governed by the Hamilton-Wentworth Catholic Athletic Association, which has codified the policies for participation in inter-school athletics in the Hamilton-Wentworth Catholic Athletic Association Constitution (the “Constitution”).
8The Constitution includes a policy governing the eligibility of transferring students to participate in team sports at their new school (the “Transfer Policy”). The Transfer Policy provides that a student who participates on a school sports team at his or her home school and then transfers to another school cannot compete in that sport for one year from the date of the transfer.
9The Board’s evidence on the purpose of the Transfer Policy is that:
a. Strong teams tended to attract good players which in turn created and perpetuated super teams and discouraged other students from participating or trying out for a school team;
b. To prevent the recruitment of student athletes from one school to another;
c. The transfer of good student athletes weakens teams and could lead to folding a program;
d. A transfer student would displace an athlete who had participated on the school team the previous year or would have participated but for the transfer student; and
e. A transfer student could take a lead role and significant playing time away from other students who would have taken on that role.
10The Transfer Policy includes a number of exceptions, including in situations in which a student has transferred to a new school due to bullying. The Transfer Policy sets out the requirements for approval of a transfer due to bullying, including a requirement that the transferring school provide a letter of support:
A student or his/her representative may apply to the designated Superintendent in charge of athletics to be deemed eligible to participate in H.W.C.A.A. sports according to the following criteria:
The student was the victim of bullying and after attempts to resolve the issue the sending school agreed that it was in the best interests of the student to transfer schools. The appeal must be accompanied by the following information: documentation from the sending school’s administration or police confirming the seriousness and frequency of the bullying, including a description of the incidents and dates; documentation from the sending school’s administration describing strategies put in place to resolve the bullying and the reasons that strategies did not succeed and a letter from the sending school’s administration in support of the transfer.
11The Transfer Policy provides that applications for eligibility to play a particular sport within one year of transfer are to be made to the Superintendent in Charge of Athletics (the “Superintendent”), who reviews the application to determine whether it falls within one of the policy’s exceptions.
12The application and decision of the Superintendent are then provided to the GHAC, which reviews the application and the Board’s decision and ultimately decides whether to approve or deny the application.
13If the GHAC finds that a student does not meet one of the exceptions to the transfer policy, the student has a right of appeal to the OFSAA. The OFSAA is a federation of 18 regional high school athletic associations in Ontario. Membership in the OFSAA is voluntary, but all participants agree to adhere to the rules of the OFSAA which include a requirement to abide by the Transfer Policy.
14Appeals to the OFSAA are considered de novo by a body referred to as the “Board of Reference – Transfers”, consisting of at least a three person panel that includes principals, vice-principals, physical education heads and teachers. The OFSAA has a written policy governing the procedure on appeal. The process allows an appealing student to make written submissions and to call viva voce evidence:
(a) In the event that a student, ineligible by reason of the Transfer Policy, seeks to appeal his or her ineligibility to the Federation’s Board of Reference – Transfers (hereinafter referred to as the “Board of Reference”) the following procedure shall be followed:
(i) The student, or his or her representative, shall submit, in writing, on the designated form, to the Board of Reference, the grounds of the appeal and the reasons why the student claims to be eligible;
(ii) Upon receipt of the application for appeal, the Board of Reference shall notify the student, in writing, of the date, time and place that the appeal is to be heard. The student shall also be advised that he or she may personally attend the hearing of the appeal, along with his or her representative;
(iii) The Board of Reference shall send letters, post-marked or delivered, no later than (14) days before the date of hearing, addressed to the student and principal at the school which the student attends;
(iv) At the hearing the student or representative may make whatever submissions, or call whatever witnesses he or she chooses, and which the Board of Reference shall permit in its sole and exclusive discretion;
(v) The Board of Reference shall render its decision, in writing, and in doing so shall state briefly the reason(s) for its decision. The decision of the Board of Reference shall be final and conclusive and there shall be no right of appeal to any body or court of competent jurisdiction.
Events leading up to the applicant’s application for eligibility
15Lauren is a 16 year old student currently enrolled at STM in Hamilton in grade 11. She started high school in grade 9 at BT, but transferred from BT to STM in grade 10 in January of 2017. Prior to attending BT, she went to elementary school at St. Joachim in Ancaster.
16Lauren has played basketball for many years. From grades 4 to 8, she played with the Ancaster Magic/Blitz rep basketball teams. The teams included Julia Di Federico (“Julia”) and were coached by Julia’s father, Mr. Di Federico.
17By grade 8, it appears that the relationship between Lauren and Julia grew strained, and in grade 9 Lauren avoided playing on teams coached by Mr. Di Federico and on which Julia was a player. In grade 9, Mr. Di Federico was the coach at BT for the junior girls’ basketball team and Julia was a player on that team. Lauren did not play on that team but rather played on the midget girls’ basketball team coached by someone else. In grade ten, Lauren played on the girls’ senior team at BT, while Mr. Di Federico continued to coach the junior team and Julia played on the team coached by her father.
18Outside of school, in grades 9 and 10, Lauren did not play with the Ancaster Blitz Club, but joined another club, the Newman Youth Basketball Club Team.
19In March and April of 2016, there were incidents at two tournaments involving Lauren and Julia’s out of school rep teams.
20The first incident occurred at a tournament in early March 2016 in Toronto. In his affidavit in support of the application, Lauren’s father states that, during the course of a game, Julia hit Lauren after which Julia received a technical foul. He also states that Julia bragged about the incident to other students at BT on the following Monday morning, and that Lauren’s mother contacted the school about the issue.
21The other incident occurred in early April 2016 at a tournament at Brock University in St. Catharines. In his affidavit on the application, Lauren’s father states that on the first day of the tournament he was accosted by a parent from the other team who indicated that Lauren was “trash talking” and that he intended to raise the issue with Lauren directly. The affidavit also indicates that, on the second day, there was a “hostile verbal altercation, involving parents and players on both teams, including, Lauren, Julia, Mr. Di Federico, and myself”. He also indicates that the day following the tournament Lauren reported that she had heard at school that there was an online group chat involving Julia and other girls who were disparaging and mocking Lauren.
22Following the incidents, the liaison officer at BT was advised about the events at the tournaments by another police officer, and he then alerted the administration at BT about the issues between the girls and their parents. On April 8, 2016, BT convened a reconciliation/mediation meeting involving the girls and their families. The participants included another girl and her family, BT’s principal and vice-principal, the liaison officer and the Superintendent Mr. Hucal.
23In the fall of 2016, while Lauren was in grade 10 and playing on the BT senior basketball team, it was announced that Mr. Di Federico would be coaching the girls’ senior team the following year.
24Lauren then transferred to STM part way through grade 10 in January 2017.
25On this application, while Lauren’s father states that Lauren felt increasingly uncomfortable at BT and at the prospect of having Mr. Di Federico as her coach following the two incidents in the fall of 2016, there is no evidence from the parties of any specific incidents following the April 8, 2016, meeting.
Application for exemption under Transfer Policy
26Given that Lauren had played basketball at BT in the fall of 2016, she is not eligible to play basketball at STM in the fall of 2017 unless she falls under one of the exceptions to the Transfer Policy.
27In June of 2017, Lauren’s father initiated an application for Lauren to be exempted from the Transfer Policy on the grounds that she was being bullied by Julia and Mr. Di Federico. As part of the application, Lauren’s father provided a statement about the basis for the request. In support of the application he stated that there was conflict between Lauren and Julia in grade 8, and described the two incidents in the spring of 2016. The only incidents he referred to that postdated the events of April 2016 were a reference to his exchange of communications with the school requesting that Mr. Di Federico not be permitted to coach girls’ basketball at BT and a basketball try out in June 2016 at which Lauren felt uncomfortable because Mr. Di Federico did not speak to her. The statement in support of Lauren’s application said that Lauren felt increasingly uncomfortable at BT, and that it would be unfair to require Lauren to compete on a team coached by Mr. Di Federico given the history between the girls and Mr. Di Federico’s own involvement with the conflict.
28As required by the Transfer Policy, Lauren’s father also requested that BT support her application. However, in a letter dated June 16, 2017 from BT’s principal, Frank Ciancone, BT refused to do so, setting out its rationale. Because the applicant takes issue with the contents of the letter, its contents are reproduced almost entirely below and are addressed further in this decision:
The Bishop Tonnos administration team has reviewed the letter from Mr. Cappelli affirming the grounds of his application and has decided not to support the application for the following reasons:
That most, if not all, assertions occurred outside the confines of Bishop Tonnos C.S.S. during weekend tournaments, etc.
The animosity between the parties stems from the situation that transpired between their children during the last weeks of June at their elementary school (2015).
Bullying is defined as “unwanted, aggressive behavior that involves a real or perceived power imbalance. The behaviour is repeated, or has the potential to be repeated, over time.” All parties (students), in question were bantering back and forth with social media antics. No one party, we believe, demonstrated any action(s) that would underwrite the bullying definition as described above. If they did, it would have been a very serious matter and the school administration would have taken appropriate action.
After the April 8, 2016 RJ meeting (was arranged by the Liason Officer due to an outside the school incident), with BT’s Liaison Officer with all parties, Mr. Hogan kept in constant contact with the girls for months. Asking them is everything ok? According to Mr. Hogan all parties were good with each other and there were no further incidents or concerns.
During semester one (2016), Mr. Cappelli’s daughter played on the Senior Girls’ Basketball team coached by Mr. McPhee. I, nor any of the VPs, coaches, etc. (during semester 1), received any form of communique, visits from Mr. or Mrs. Cappelli concerning their daughter having any issues with the said party in question or with anyone else for that matter. The daughter was also silent during the entire semester.
29The response from BT also included a copy of the letter from the school’s Chaplain, Kim Pastrak. In her letter, Ms. Pastrak made reference to her involvement with an incident at BT in June of 2016. She met with Lauren on a number of occasions at that time. She indicated that there were three girls involved who were “not on good terms because of tension between their parents”. She states that she made herself available to Lauren and kept an eye out following June of 2016, but that no issues of bullying or intimation were raised with her in counselling after June of 2016.
30On June 29, 2017, following receipt of Lauren’s application and the materials from BT, the Superintendent, Morris Hucal, sent a letter to the parties advising that the application was denied. His letter does not provide reasons, but states only that “the request for athletic eligibility does not meet the criteria of the Hamilton-Wentworth Catholic Athletics Association”. The letter also states that the decision could be appealed to the OFSAA, that the hearing date would be October 5, 2017, and that materials in support of the review were to be filed no later than September 25, 2017.
31The Superintendent’s decision was then upheld by the GHCA. I note that no reasons from the GHCA’s original decision were included as part of the materials on the application for judicial review.
32Following receipt of the Superintendent’s decision, Lauren’s father requested a reconsideration by the Superintendent. In support of his request for a reconsideration, he provided additional email exchanges and a document titled “Informal Resolution Agreement” from the Office of the Independent Police Review Director. The document arose from a complaint made by Lauren’s father about the involvement of the liaison officer in the incidents in the spring of 2016. The form makes reference to the events leading up to the complaint as including the officer’s involvement in a dispute resolution process at BT arising from “three female youths who had been bullying one another”.
33For its part, BT also provided additional materials including a longer explanation of its investigation and actions in relation to the incidents in the spring of 2016. In the document, the school described how the school became aware of the incident and the steps taken to deal with the issue.
34The document describes the information it had about the conflicts as follows:
The Administration of Bishop Tonnos initial involvement in the conflict between Julia DiFederico, Lauren Cappelli and Kendra Carey took place on March 8, 2016. It was alleged that JD was telling everyone through social media how much she hates LC and that she had punched LC at a basketball game (weekend of March 5-7) and was given a technical. I was never in possession of the alleged texts but followed up with JD as I was asked to by Mrs. Cappelli.
The next occurrence the school was made aware of happened April 3, 2016 at another basketball game on the weekend. Upon our limited investigation because we didn’t have access to all parties involved, we realized it was a he said/she said scenario and not under the authority of the school. We realized that all parties were bringing it into the school and we needed to find a solution. We suggested mediation through the form of Restorative Justice.
35The document goes on to state that the families agreed to participate in the mediation session, and that the school made inquiries from the girls’ elementary school prior to the meeting to understand the background between the girls and their families. The document describes the outcome of the mediation as follows:
The mediation/Restorative Justice session was held on the 8th and all parties had an opportunity to have their say including the girls. It was evident there were hard feelings between the parents of the girls that evolved over the years. The girls didn’t appear as upset and it was acknowledged that JD was going to KC house during the school day without the parent’s knowledge.
Further, it was agreed that any further conflict would be reported to the school Administration so that it could be followed up.
There were 2 more alleged incidents brought to my attention by Mr. Di Federico. Both were investigated thoroughly and one with reference to a washroom could not be substantiated and the other involved a third party not the direct result of any of the girls.
I followed up with all 3 girls in the weeks to come and each reports no further conflict. I also contacted the parents of the girls on April 24 and each acknowledged no further conflict. I also contacted the parents of the girls on April 24 and each acknowledged no further conflict. To this day I have not received any further reports.
36Despite the additional materials, by email dated July 25, 2017, the Superintendent advised that the Board would not reopen the issue because “the information recently provided was known by the school as both the Principal and Vice-Principal attended the meeting with the community officer”.
37While the Superintendent’s decision letters are fairly brief, on this application the Superintendent swore an affidavit in which he explained further the reasons for dismissing Lauren’s application for an exception under the Transfer Policy. In his affidavit, Mr. Hucal provides a fairly detailed review of the events and materials provided by the applicant and the school, and he concludes that there was insufficient evidence to substantiate the allegations of bullying made against Julia and her father:
I did not find that the Application for eligibility supported the contention that the actions of a student (Julia) and her father were tantamount to abuse and bullying as alleged. While there was a history of exchanges between Lauren and Julia, most incidents occurred either prior to their attendance at BT or on weekends or at non-school events. The only reports – two incidents reported in March and April – were addressed and no further incidents were reported for a period of nine months after which Lauren transferred to STM.
The Application failed to reference any specific or sufficient evidence to substantiate any claims of bullying or harassment by Michael. While Lauren’s Application suggests her discomfort level intensified in September 2017 as a result of continuing bullying – I found no evidence to suggest that contention. I also found it somewhat unusual that the Application would criticize Michael for not speaking to Lauren when she was trying out for the girls’ senior basketball team in September 2017.
I found that there was not enough evidence to support the Application allegations of bullying and harassment and therefore denied the request.
38The GHAC also reconsidered its decision. While the GHAC did not participate in the hearing of this application for judicial review, at the hearing counsel for the parties provided me with a copy of an email from the GHAC dated August 31, 2017, in which the GHAC indicated that it had reviewed all of the documentation provided and that its ruling remained unchanged. The email essentially indicated that the GHAC was not satisfied that there was evidence that Lauren had been bullied by Julie or her father.
Current status
39During the course of the hearing, it became evident that Lauren’s inability to participate in girls’ basketball at STM is not as imminent as suggested by the materials filed by the parties. Lauren has been allowed to try out for the team and, subject to the outcome of two further try outs during the week this matter was heard, she has been selected for the team. She is also being permitted to practice with the team. However, she will not be permitted to play in any games unless the Board and GHCA’s decisions are reversed.
40The first game in the season is scheduled for September 19, 2017. I was told during the hearing by counsel for the Board that there will be five to six games between September 19th and October 5, 2017, which is the next date on which the OFSAA is scheduled to hear appeals. The regular season will end toward the end of October, and play offs will take place in November.
41Following the hearing, the applicant requested that I admit a further affidavit sworn by Lauren’s father in which he states that in addition to the games Lauren will miss in the regular season prior to the appeal to OFSAA, she will also miss two weekend tournaments, the first one starting on September 15, 2017.
42The respondents made submissions in response to the request that I admit the additional affidavit. They object to the affidavit, but indicated that there are six regular season games before October 5, 2017, and that there are fourteen games in total during the regular season. They also state that the tournament games are not part of the regular season.
Analysis
43This application raises the following issues:
a. Should the applicant’s affidavit submitted after the hearing of the application be admitted into evidence?
b. Should leave be granted to hear this matter on an urgent basis?
c. Does the Divisional Court have jurisdiction over this application for judicial review?
d. What is the standard of review?
e. Do the decisions of the Board and the GHCA give rise to a reasonable apprehension of bias?
f. Did the Board and the GHCA breach the applicant’s right to procedural fairness?
Additional Affidavit
44As indicated above, following the hearing, the applicant’s counsel requested an opportunity to file a supplementary affidavit addressing the upcoming games that Lauren will miss if she is not granted eligibility before the OFSAA’s hearing date of October 5, 2017. The affidavit attempts to correct information that had been provided during the course of the hearing indicating that Lauren would miss five to six games whereas it appears that that number is higher given that she will miss two tournaments before the October 5, 2017 hearing. The affidavit also contains statements about the emotional impacts on Lauren of not being able to participate in the games prior to October 5, 2017.
45The letter provided by the applicant’s counsel enclosing the affidavit indicated that the respondents objected to its admission. I therefore gave counsel for the respondents an opportunity to provide submissions on the issue. The respondents provided written submissions objecting to the admissibility of the affidavit primarily on the grounds that it contains information that could have been included in the materials originally filed on the motion and that it is argumentative. However, they do not object to ensuring that I have correct information about the number of games in the season and the number of games Lauren will miss if she is not found to be eligible before October 5, 2017.
46I agree that the portions of the affidavit dealing with the emotional consequences for Lauren of not playing in regular season games before October 5, 2017 are not proper at this time. However, the evidence dealing with the number of games Lauren will miss is responsive to questions I raised at the hearing. This evidence is relevant to the issue of whether this application should be heard on an urgent basis. Accordingly, I am considering the affidavit and subsequent information provided by counsel for the respondents only to the extent that they clarify information about the number of games at issue.
Urgency
47The Board did not take issue with the matter having to be heard as an urgent application for judicial review. The OFSAA argued that the applicant should have made the application for an exemption earlier, in which case there would have been no need for an urgent judicial review because the OFSAA could have heard the appeal in advance of the 2017-18 school year.
48Section 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, provides that leave may be granted to hear an application for judicial review by a single judge of the Superior Court “where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice”.
49In this case, while it is true that the application for an exemption could have been brought earlier, the application was submitted to the Board in mid-June 2017, and by the time the matter was decided in late July, the next available date for a hearing by the OFSAA was October 5, 2017. At this point, there is some urgency to the matter because it appears that Lauren will not be able to play in a significant number of regular season and tournament games before the OFSAA’s next meeting date. Moreover, the urgency was not only caused by the applicant’s delay, but also in large part by the girls’ basketball season schedule and the date set for OFSAA hearings. Under the circumstances, I am prepared to accept that there is some urgency in this case.
50While there is little evidence of the longer term consequences to Lauren of missing a number of games in the regular season, this Court has already recognized that high school athletics give rise to the types of issues that warrant granting urgent relief. For example, in Gymnopoulos v. Ontario Assn. of Basketball Officials, 2016 ONSC 1525, [2016] O.J. 1097 (Sup. Ct.) at para. 39, the Court held:
While this case does not involve a professional sports organization, the importance of high school athletics was recognized by the courts in Milne v. Nipissing District Secondary School Athletic Assn., [1998] O.J. No. 4678 (Ont. Div. Ct.). Milne involved an application by a high school student who had been declared ineligible to participate in sports at his current school. In granting an interim injunction, Valin J. found that the loss of an opportunity to participate in school sports can be immeasurable, irreparable and not something that can be compensated for in monetary damages.
51Accordingly, given that similar stakes are at issue in this case and that there is some urgency to the matter, I am satisfied that is an appropriate case in which to grant leave under section 6(2) of the Judicial Review Procedure Act.
Jurisdiction
52The respondents argue that the Divisional Court does not have jurisdiction over the issues raised on this application for judicial review. They argue that the decisions being challenged do not arise from the exercise of a statutory power nor do they engage matters of public law. In contrast, the applicant argues that the decisions at issue derive from the Education Act, R.S.O. 1990, c. E.2, and that in any event they are matters of public law.
53Section 2(1) of the Judicial Review Procedure Act circumscribes the Court’s jurisdiction on an application for judicial review:
2(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
54While section 2(1)2 clearly requires that the judicial review arise from the exercise of a statutory power, section 2(1)1 focuses on the nature of the relief sought. In Setia v. Appleby College, 2013 ONCA 753, the Court of Appeal clarified that section 2(1)1 does not necessarily require that the decision under review relate to the exercise of a statutory power. Rather, the focus of the enquiry is whether the decision has a public law character:
In my view the jurisdiction to make an order for judicial review quashing the expulsion decision does not depend on whether the decision is the exercise of a statutory power of decision. Rather, the jurisdiction provided by s. 2(1) the JRPA turns on whether the expulsion decision is the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied. This reflects the purpose of the JRPA, namely to provide a simplified process to obtain public law remedies in those circumstances where public law applies.
55The Court of Appeal went on, at para. 34, to list the relevant factors for assessing whether a public law remedy is available:
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 compulsory power;
An “exceptional” category of cases where conducts has attained a serious public dimension.
56This Court has held that the factors are not to be used as a checklist but rather as a guide to reaching a final conclusion on the character of the decision at issue: West Toronto United Football Club v. Ontario Soccer Assn., 2014 ONSC 5881 (Div. Ct.) at para. 21.
57In Setia v. Appleby College, supra, the Court of Appeal found that the Divisional Court did not have jurisdiction over a student’s expulsion from a private school. In that case, the Court reviewed a number of the factors listed above but ultimately found that the expulsion decision was shaped by private law rather than public law because the grounds for expulsion were set out in a contract between the school and the student’s parents.
58In contrast, in West Toronto United Football Club v. Ontario Soccer Assn., supra, at para. 20, the Divisional Court considered a situation involving the rights of a soccer team governed by a voluntary athletics organization, finding jurisdiction in that case. Amongst the factors considered by the Court were the broader importance of the matter to the general public, the public nature of the decision maker, the suitability of public law remedies to the issues in dispute, and the deciding body’s compulsory powers.
59In this case, I am influenced by a number of factors in finding that the Court has jurisdiction over this matter:
a) While the decisions of the Superintendent and the GHAC under the Transfer Policy are not directly governed by a statute, section 171(1) 27 of the Education Act explicitly empowers the Board to “provide for the promotion and encouragement of athletics and for the holding of school games”;
b) The Board is a public body created by statute. While it delegates some of its authority to promote school athletics to voluntary associations such as the GHAC and the OFSAA, the power originates with the Board;
c) The powers of the superintendent and the GHAC are compulsory. If they do not agree to the request for an exception to the Transfer Policy, a student is precluded from playing on a school team unless the OFSAA reverses that decision;
d) As indicated above, the courts have already acknowledged the importance of high school athletics; and
e) The powers exercised by the Superintendent and the GHAC have a public law character, and they are amenable to public law remedies such as certiorari.
60This case is not unique. There are in fact a number of decisions in which the courts in Ontario have intervened on the issue of whether a student should be eligible to play on a high school sports team. The respondents argue that these decisions were rendered by the Superior Court in the context of motions for injunctions brought in civil actions, thereby suggesting that judicial review is not available when such issues arise. Interestingly, while some decisions were considered in the Superior Court, the cases often deal with issues that typically arise in the public law context rather than in the private law context such as natural justice and procedural fairness. (See for example, Hammond v. Hamilton-Wentworth District School Board, [2005] O.J. No. 5139 (Sup. Ct.) at para. 32.) In any event, there are in fact a number of cases that have considered school sport eligibility issues on applications for judicial review to the Divisional Court. (See for example Gymnopoulos v. Ontario Assn. of Basketball Officials, supra, and Milne v. Nipissing District Secondary School Athletic Assn., [1998] O.J. 4678 (Div. Ct.)).
61In this case, the applicant seeks certiorari and raises issues of bias and procedural fairness. Therefore, besides the fact that the decision has a public law character, some of the remedies sought are uniquely available in the Divisional Court. Accordingly, I am satisfied that this Court has jurisdiction over the issues raised on this application.
Standard of review
62In the factum filed on behalf of the applicant, the only grounds on which the decision is challenged are reasonable apprehension of bias and procedural fairness. During argument by counsel for the applicant, I confirmed more than once that these were in fact the only grounds on which the decision is challenged.
63While none of the parties presented any arguments on the standard of review applicable in this case, it is well established that where issues of natural justice and procedural fairness arise, the Court does not engage in an analysis of whether the correctness or reasonableness standard of review applies. Rather the Court must determine whether a common law duty of fairness exists and, if so, whether the duty has been met in the circumstances of the case: Benson v. Vandersluis, [2015] O.J. No. 6656 (Div. Ct.) at para. 22.
Reasonable apprehension of bias
64The applicant argues that the decision was biased for the following reasons:
a. They argue that Mr. Di Federico improperly influenced the Board’s decision;
b. The Superintendent who made the decision participated in meetings in 2016 over the Brock and Toronto incidents and was therefore not neutral; and
c. The June 16, 2017 letter from BT indicating that the school did not support Lauren’s application did not properly deal with the issues to be addressed as required by the Transfer Policy.
65In the applicant’s factum, the test the applicant proposes applies in these circumstances is the test used by the courts to decide whether there is a reasonable apprehension of bias in the context of decisions made by courts and administrative tribunals. This was a test most recently articulated by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25 at paras. 20-21, as follows:
What would an informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
66However, given the administrative nature of the decision, in my view the test that should more likely be applied in this case is the “closed mind” test. This is the test applied in cases where the decision maker is not engaged in the type of adjudication undertaken by courts and administrative tribunals; see: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623 at para. 27.
67In any event, given the record before me, I cannot see that an informed person, viewing this matter realistically and practically would think that the decision makers, whether consciously or unconsciously, would act unfairly.
68On the first issue raised, Mr. Di Federico was not the decision maker nor is there any evidence that he was involved in the decision making process. On the contrary, in dealing with the 2016 incidents, Mr. Di Federico was treated as one of the parties to the conflict, and the dispute resolution process involved him and his family. There is also evidence that the administration at BT spoke to him on more than one occasion about the issues involving Lauren and Julia, but they also spoke to Lauren and her family, and there is no indication that Mr. Di Federico improperly influenced the Superintendent’s decision. In fact, there is one report in the materials of Mr. Di Federico raising issues with the vice principal at BT about the girls, and the vice principal looking into those issues and dismissing them.
69One of the arguments put forward on Lauren’s behalf is that BT states in its documents that administrators spoke to Mr. Di Federico on at least one occasion about whether he would treat Lauren fairly as a coach if she were to try out for his team, and that he assured them that he would be able to do so. The applicant argues that the fact that the school took him at his word shows bias. However, there is no evidence that the school was aware of a pattern of conduct by Mr. Di Federico directed at Lauren that should have discredited his answer. Rather, it appears that the school was aware of conflict between the girls and their parents, but they had not concluded that Lauren was the victim of bullying and they addressed the conflict through the mediation with ongoing follow up. The school had heard from all parties and was in a position to assess whether Mr. Di Federico could treat Lauren fairly.
70The fact that Mr. Di Federico is a teacher and coach at BT is not sufficient to conclude that the decisions of the Superintendent and GHAC were biased. If that were the case, the Superintendent could never make any decisions involving complaints about bullying against teachers.
71On the second issue raised, Mr. Hucal’s involvement in the 2016 mediation also does not give rise to a reasonable apprehension of bias. Mr. Hucal participated in the meeting between the families in his capacity as superintendent. There is no evidence that he had any personal interest in the matter or that there was anything improper about the manner in which he participated in the matter. Administrators who have decision making roles in an organization can be expected to wear different hats at different times. The courts have recognized that this does not disqualify them from being involved in the decision making process. For example, Gonthier made the following comment in Lakeside Colony of Hutterian Brethren v. Hofer, 1992 37 (SCC), [1992] 3 S.C.R. 165, at para. 84(QL), is apt:
There is no doubt that an unbiased tribunal is one of the central requirements of natural justice. However, given the close relationship amongst members of voluntary associations, it seems rather likely that members of the relevant tribunal will have had some previous contact with the issue in question, and given the structure of a voluntary association, it is almost inevitable that the decision makers will have at least an indirect interest in the question. Furthermore, the procedures set out in the rules of the association may often require that certain persons make certain kinds of decisions without allowing for an alternate procedure in the case of bias.
72In this case, arguably Mr. Hucal’s familiarity with the matter assisted him in assessing whether Lauren’s situation met the criteria for exemption from the Transfer Policy. The incidents that Lauren and her family relied on primarily in support of the application were those that had led to the mediation process, and Mr. Hucal’s involvement in the meetings in his capacity as Superintendent would have given him a deeper understanding of the nature of the conflicts at issue. His involvement cannot lead to the conclusion that he could not address Lauren’s request for an exception to the Transfer Policy with an open mind.
73Finally, in my view, the content of the letter from BT does not assist the applicant in its argument that there was bias in this case. The decision makers were the Superintendent and the GHAC. They did not author the letter. Rather, the letter was one of the factors considered in reaching the decision. There is no evidence that the Superintendent and the GHAC were involved in drafting the letter or that they influenced the contents of the letter. Therefore, on its face, I cannot see how the letter can form the basis for an argument of reasonable apprehension of bias.
74While the letter is evidently unsatisfactory to Lauren and her family because it does not support her application, it does address the issues the Transfer Policy requires be addressed by the sending school in such a letter:
a. It addresses the issue of whether Lauren had been the victim of bullying, stating that there was “bantering back and forth”, and that no one party could be seen as the perpetrator of bullying; and
b. To the extent there had been issues involving Lauren, the school addressed the issues through a mediation between all of the parties, and continued to monitor the situation in the following months with no evidence of ongoing problems. Accordingly, based on the information available to the school, there was no ongoing bullying that required a school transfer.
75In any event, Lauren and her family were given an opportunity to provide their own views about how Lauren’s transfer from BT to STM was the result of bullying, and therefore the letter was not the only basis on which the Superintendent and the GHAC reached their conclusion.
76Accordingly, in my view the applicant has not demonstrated that there was a reasonableness apprehension of bias in the decisions made by the Superintendent and the GHAC. This is not a case in which an informed person would conclude that the decision makers could not make an impartial decision.
Procedural fairness
77The procedural fairness arguments were not pressed at the hearing.
78In her factum, the applicant appears to argue that the decision was procedurally unfair because the Superintendent and GHAC did not give the applicant an opportunity to review and comment on the school’s letter before making a decision on Lauren’s eligibility. However, it was conceded that they did have an opportunity to review the letter before making submissions for the reconsideration performed by the Superintendent and the GHAC.
79They also seem to argue that the Superintendent failed to properly consider the additional OIPRD document provided as part of the request for a review. This is more of a substantive complaint than a procedural fairness complaint, but I note that in my view there was nothing unreasonable about the Superintendent’s conclusion that the document did not provide new information. The information contained in the document referred to the 2016 incidents that had already been addressed in the earlier materials. It did not disclose other incidents that would support Lauren’s request for an exemption. The fact that the document uses the work “bullying” in reference to the 2016 incidents is not determinative. First, the reference in the document is to “three female youths who have been bullying one another”. Second, and more importantly, the document is an “Informal Resolution Agreement” in relation to a complaint made by Lauren’s father against the Liaison officer at BT; it is in no way an investigation or confirmation supporting Lauren’s contention that she was subject to bullying by Julia and Mr. Di Federico at BT.
80The requirements of procedural fairness depend on a number of factors, including the nature of the decision and the importance of the decision to the individual: Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23 to 26. In this case, given the type of decision and the nature of the informal administrative nature of the decision making process, in my view there was no breach of procedural fairness. Lauren was given an opportunity to make submissions independently from BT, and was permitted to make additional submissions following the Superintendent’s initial decision. Moreover, Lauren will have an opportunity to have a hearing de novo before the OFSAA on October 5, 2017, where she can present her evidence and arguments afresh.
Conclusion
81For the reasons set out above, the application for judicial review is dismissed.
82However, it should be clear from my decision that nothing in these reasons precludes Lauren from pursuing an appeal to the OFSAA on October 5, 2017, and to present the evidence and arguments she deems appropriate in that context where they will be considered de novo. The issues raised on the application are narrow, and only deal with the questions of reasonable apprehension of bias and procedural fairness. There is nothing preventing Lauren from presenting evidence afresh about the events that led to her departure from BT and the impact those events had on her while she was at BT.
83At the conclusion of the hearing, counsel for the parties asked for an opportunity to make submissions on costs following the issuance of this decision. Accordingly, the respondents will have ten days from the date of this decision to make submissions, and counsel for the applicant is to make submissions ten days later. Submissions are to be no longer than three pages excluded the costs outline.
FAVREAU J.
RELEASED: September 15, 2017
CITATION: Capelli v. Hamilton Wentworth (Catholic School Board), 2017 ONSC 5442
DIVISIONAL COURT FILE NO.: 494/17
DATE: 20170915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
LAUREN CAPPELLI, A MINOR, BY HER LITIGATION GUARDIAN, ADAM CAPPELLI
Applicant
– and –
HAMILTON WENTWORTH CATHOLIC SCHOOL BOARD, GOLDEN HORSESHOE ATHLETICS CONFERENCE AND ONTARIO FEDERATION OF SCHOOL ATHLETIC ASSOCIATION
Respondents
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: September 15, 2017