DATE: 20060619

DOCKET: C42908

COURT OF APPEAL FOR ONTARIO

RE:

CHRISTOPHER BEAUCHAMP (by his litigation guardian, JUDITH PAYNE) and MITCHELL LEBAR (by his litigation guardian, BRANKO LEBAR) (Applicant/Appellant) v. NORTH CENTRAL PREDATORS AAA HOCKEY ASSOCIATION, YORK SIMCOE EXPRESS HOCKEY ASSOCIATION, GREATER TORONTO HOCKEY LEAGUE, ONTARIO MINOR HOCKEY ASSOCIATION, ONTARIO HOCKEY FEDERATION and HOCKEY CANADA (Respondents/Respondents in Appeal)

BEFORE:

O’CONNOR A.C.J.O., BORINS and ROULEAU JJ.A.

COUNSEL:

Brian H. Greenspan and David Stratas

for the appellant, Mitchell Lebar

Craig Vander Zee

for the respondents, Ontario Hockey Federation and Hockey Canada

Thane A. Campbell

for the respondents, Ontario Minor Hockey Association, North Central Predators AAA Hockey Association and York Simcoe Express Hockey Association

Michael J. Penman

for the respondent, Greater Toronto Hockey League

HEARD:

June 13, 2006

On appeal from the judgment of Justice DiTomaso of the Superior Court of Justice dated March 1, 2005.

E N D O R S E M E N T

[1] This appeal is moot. At the outset we were advised that Christopher Beauchamp had discontinued his appeal. With respect to Mitchell Lebar (the appellant), the dispute underlying the case has disappeared.

[2] The appellant, who resided in Aurora, applied for an order pursuant to s. 11(1) of the Discriminatory Business Practices Act, R.S.O. 1990, c. D.12, directing the respondents to take steps necessary to enable him to play hockey in the Greater Toronto Hockey League.[^1] The appellant wished to play for the Toronto Young Nationals during the 2004/2005 season, but did not satisfy the residency requirements of the respondents and his request for an exemption had been refused.

[3] This appeal is from the judgment of DiTomaso J. dated March 1, 2005 dismissing the application.

[4] Subsequent to the dismissal of his application, the appellant changed his residence from Aurora to Richmond Hill and thereby became eligible to play for the Young Nationals. He played for that team for a portion of the 2004/2005 season and for the entire 2005/2006 season. Thus, as events turned out, the appellant has been able to do what he asked the court to order.

[5] The appellant indicates that if this appeal is allowed, he may or may not choose to move back to Aurora, raising the possibility that if he does move, he may not be eligible to play for the Young Nationals in the upcoming season.

[6] The appellant argues that the appeal should proceed for two reasons. First, he maintains that it is not moot. He says that the respondents’ residency requirements constitute a discriminatory business practice under the Act and as such place an unacceptable burden on his decision whether to change his residence prior to the upcoming hockey season. However, the appellant has not yet decided whether he wishes to change his residence and if he does, he can apply for an exemption from the residency requirements and may well be permitted to play in Toronto in any event. It is premature to consider the issue of the appellant’s residency decision for next year at this point.

[7] Moreover, this argument depends on very different factual considerations than those that underlie this appeal. The facts in our record are premised on the appellant living in Aurora and having been refused the permission to play hockey in Toronto. That is no longer the situation. The appellant has played hockey in Toronto for the past two seasons. If he now decides to move back to Aurora, there will be several facts that would be very relevant to a request to play in Toronto that are not in the record before this court.

[8] If the appellant decides that he wishes to change his residence back to Aurora and permission to play in Toronto is refused, he could bring a new application based on the applicable facts. We do not accept that the courts cannot deal with such an application in a timely manner. We note that the application in this case was dealt with by the Superior Court in three months. Moreover, if an appeal becomes necessary, this court can address an expedited appeal very promptly.

[9] The appellant also argues that this court should hear his appeal because it raises the important question whether the respondents’ residency requirements, in general, contravene the Discriminatory Business Practices Act. We are not prepared to address that issue. That issue has not been the focus of this case throughout. In his application, the appellant did not challenge the whole residency requirements scheme, rather his attack was directed at the decision to refuse him permission to play hockey in Toronto.

[10] In his factum in this court, the appellant put his argument as follows:

Christopher and Mitchell [Christopher Beauchamp, who was previously an appellant, and the appellant] have not challenged the Respondents’ residency requirements because Christopher and Mitchell appreciate that requirements were designed to increase the possibility that minor hockey players would have opportunities to play, maintain a competitive balance and discourage recruitment. Christopher and Mitchell have challenged the arbitrary nature of the Respondents’ refusal to release them and the Respondents’ failure to discharge their legal obligation to consider the effect of the Respondents’ refusal on Christopher, Mitchell and their families.

[11] To allow an argument challenging the respondents’ entire residency requirements scheme at this stage would be a substantial shift of focus of this case.

[12] The appeal is therefore dismissed.

[13] We direct that the litigation guardians of the appellant and Christopher Beauchamp pay to the respondents the sum of $15,000 for costs of this appeal, inclusive of disbursements and GST. The two litigation guardians shall be jointly and severally responsible to pay this amount and the respondents should attempt to agree among themselves as to the apportionment. If there is any difficulty with the implementation of the costs order, we may be spoken to.

“Dennis O’Connor A.C.J.O.”

“S. Borins J.A.”

“Paul Rouleau J.A.”

[^1]: Christopher Beauchamp joined with the appellant in making this application, however, he abandoned the appeal on June 12, 2006.