CITATION: Adams v. Canada, 2011 ONSC 325
DIVISIONAL COURT FILE NO.: 223/09
DATE: 20110117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY J.
BETWEEN:
JEFFREY ADAMS
Responding Party (Applicant)
– and –
ATTORNEY GENERAL OF CANADA and CANADIAN CENTRE FOR ETHICS IN SPORT
Moving Parties (Respondents)
Timothy S. B. Danson, for Jeffrey Adams
Peter Southey and Roy Lee, for the Attorney General of Canada
Robert C. Morrow, for the Canadian Centre for Ethics in Sport
HEARD: September 15, 2010
MOLLOY j.:
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] This is a motion by the Attorney General of Canada and by the Canadian Centre for Ethics in Sports to dismiss the judicial review application brought by Jeffrey Adams on the grounds that the Divisional Court has no jurisdiction to deal with the issues raised. This case involves drug testing of elite international athletes, the extent to which Canadian athletes are still protected by human rights legislation and the Charter within that regime, and the ability of this court to review arbitral decisions relating to sports competition. The central issue to be determined on this motion is whether this court’s jurisdiction is ousted by an agreement signed by Mr. Adams, which provides that all disputes will be resolved by binding arbitration. The Attorney General also alleges that this application is an abuse of process because of the duplication between the relief sought here and that which is sought in a separate action brought by Mr. Adams in the Superior Court of Justice.
[2] The moving parties have satisfied me that it is plain and obvious this proceeding is outside the jurisdiction of the Divisional Court. Mr. Adams is bound by contract to pursue his remedies through arbitration and the appeal process provided in that regime. His constitutional and human rights are fully protected in that process. Further, the relief sought in his civil action is more comprehensive than in this proceeding and in essence duplicates the claims made here.
[3] For the reasons that follow, this application is dismissed as being outside the jurisdiction of this court and as an abuse of process.
B. BACKGROUND FACTS
[4] Mr. Adams is one of Canada’s top Paralympic athletes. He has competed at an international level in various wheelchair athletic events since the early 1990s and has won numerous medals for Canada. He has also earned many awards and honours over the years, both for his exceptional athletic performances and for his humanitarian work. As a motivational speaker, he has addressed thousands of students and others across Canada and has been a role model for many, both disabled and able-bodied.
[5] But Mr. Adams’ career, both as an elite athlete and motivational speaker, ended abruptly in the summer of 2006 when a urine sample taken after his first place finish in the ING Ottawa Marathon tested positive for cocaine metabolites. He alleges that this would never have happened if the authorities had properly accommodated his disability during the urine testing process.
[6] In order to compete at the level he did, and in order to be eligible for government funding to support his training, Mr. Adams was required to sign a contract with Athletics Canada. As part of that contract, he agreed to be bound by the Canadian Anti-Doping Program (“CADP”). Under the CADP, athletes agree not to take listed prohibited drugs and consent to providing urine samples in certain circumstances. Providing a urine sample after placing in the top three of the Ottawa Marathon was within the terms of the CADP and the presence of cocaine metabolites in the urine constituted an anti-doping violation.
[7] The CADP is administered and implemented by the Canadian Centre for Ethics in Sport (“Centre for Ethics”). Upon receiving the laboratory analysis of Mr. Adams’ urine, the Centre for Ethics notified him of the violation and, as was his right under the CADP, Mr. Adams requested a hearing before the Doping Tribunal.
[8] The Doping Tribunal is administered by the Sport Dispute Resolution Centre of Canada (“SDRCC”) and consists of a single arbitrator chosen by the parties from a roster established by the SDRCC. The applicable procedural rules, to which the athlete is required to adhere by the terms of the agreement with Athletics Canada and pursuant to the CADP, provide that the parties have waived their rights to request further or alternative relief or remedies from any court, subject to rights of appeal to an international tribunal. The applicable law is stated to be the law of Ontario, which includes the Arbitration Act.[^1]
[9] In this case, the parties agreed upon Richard H. McLaren, and the arbitration proceeded before him for nine days of oral hearings, followed by written submissions. The Arbitrator’s Award was released on June 11, 2007. The Arbitrator found that an anti-doping violation had occurred, disqualified Mr. Adams’ competition results at the Ottawa Marathon and imposed a period of sport competition ineligibility of two years.
[10] Mr. Adams had argued before the Doping Tribunal that the Centre for Ethics had violated his rights under the Canadian Charter of Rights and Freedoms and human rights legislation by failing to ensure that a sterile catheter was used for his urine collection after the race. The Doping Tribunal held that neither the Canadian Human Rights Act nor the provisions of the Charter applied. It did, however, apply the Ontario Human Rights Code. The Doping Tribunal accepted that the presence of cocaine metabolites in Mr. Adams’ urine sample resulted from his use of a previously-used contaminated catheter in the process of urine collection. However, Mr. Adams had provided the catheter himself, had failed to clean it of residual urine before using it on this occasion, and did not request a sterile catheter from the Centre for Ethics authorities. In these circumstances, the Doping Tribunal found that the Human Rights Code had not been violated.
[11] The governing procedural rules provide a right of appeal from the Doping Tribunal to the Court of Arbitration for Sport (“CAS”). This is a specialized international sport dispute resolution centre based in Switzerland. It was founded by non-governmental sports organizations (including the International Olympic Committee and various international and national sports federations) and those organizations appoint the administrative members, propose individuals for appointment to its roster of arbitrators, and fund its operations.
[12] Mr. Adams exercised his right of appeal to the CAS. The appeal was heard in Toronto before a three-person panel, two of whom were from Ontario. The applicable law was the law of Ontario. The CAS released its Award on May 16, 2008. It agreed with the Doping Tribunal that an anti-doping violation had occurred and upheld the disqualification of Mr. Adams’ competition results from the Ottawa Marathon, essentially accepting that this was an absolute liability situation. However, the CAS made factual findings that the prohibited substance was not in Mr. Adams’ system at the time of the competition, that it was introduced into his urine sample by reason of a contaminated catheter used by Mr. Adams at the time he provided the sample, and that the contamination occurred through no fault or negligence of Mr. Adams. The CAS, therefore, set aside the period of ineligibility from competition imposed by the Doping Tribunal.
[13] The CAS upheld the Doping Tribunal’s determination that the Charter and the Canadian Human Rights Act did not apply, and also agreed with the Doping Tribunal that the Ontario Human Rights Code, while applicable, had not been breached.
[14] Although partially vindicated by the CAS finding that he competed fairly, ethically and drug-free at the Ottawa Marathon, Mr. Adams alleges that the doping violation “conviction” has had a devastating impact on his life professionally, financially and personally. He argues that if he had been able-bodied, none of this would have occurred. The Centre for Ethics, which operates the drug testing sites, provides sterile, tamper-proof containers for athletes to use for urine collection immediately following a race. Mr. Adams requires the use of a catheter in order to provide a urine sample. Since the Centre for Ethics did not provide a catheter, he was forced to use one that had previously been contaminated. He submits that the Centre for Ethics’ failure to accommodate his disability by providing a completely sterile kit for urine collection violated his rights under the Charter and human rights legislation.
[15] In 2009, Mr. Adams commenced two legal proceedings: this judicial review application and a civil action in the Superior Court of Justice.[^2]
[16] The named respondents in the judicial review application are the Attorney General for Canada and the Centre for Ethics. The notice of application asserts that all relevant activities of the CADP and the Centre for Ethics constitute government action and alleges breaches of the Charter and of human rights legislation by virtue of the drug testing procedure that did not ensure contamination-free urine sample collection. The following relief is sought:
(a) An order setting aside the CAS decision on the issue of the applicability of the Charter and the application of the Ontario Human Rights Code;
(b) A declaration that the CADP constitutes government action and is subject to the Charter;
(c) A declaration that ss. 7, 8 and 15 of the Charter were violated;
(d) A declaration that the applicant is entitled to damages for the infringement of his Charter rights;
(e) An order for a trial of an issue on the quantum of those damages, or alternatively an order directing the CAS to determine the damages;
(f) In the alternative, a declaration that the CADP is inconsistent with the Charter and of no force or effect to the extent of the inconsistency;
(g) In the alternative, a declaration that the applicant’s rights were infringed under federal and/or provincial human rights legislation and for a remedy in damages for that infringement as in (d) above.
[17] The statement of claim in the civil action was issued on the same day as the judicial review application. The Attorney General of Canada and the Centre for Ethics are again named as defendants, but there is also an additional defendant, Athletics Canada. The statement of claim does not directly seek to set aside any aspect of the arbitration decisions against Mr. Adams. However, all of the other relief sought in the judicial review application is also sought in the statement of claim. In addition, the statement of claim seeks: pecuniary and non-pecuniary damages of $5 million for loss of income and for damages for breach of fiduciary duty, breach of contract, negligence, negligent misrepresentation, malicious and/or wrongful prosecution, abuse of process, mental distress and damage to reputation; reimbursement for all expenses incurred in defending the “prosecution” under the CADP; $500,000 in aggravated damages; and $750,000 in punitive damages.
C. THE TEST TO BE APPLIED ON THIS MOTION
[18] The parties agree that on a motion to quash an application, such as this, the same test should be applied as for a motion to dismiss an action under Rule 21.
[19] Accordingly, this judicial review application should only be quashed if it is “plain and obvious” that it cannot succeed. Unless it is beyond doubt that the application will fail, it must be permitted to proceed to a hearing before a full panel of the Divisional Court. Further, an application should not be dismissed at this early stage merely because the legal issues raised are novel.[^3]
D. JURISDICTION OF THE DIVISIONAL COURT
(i) The Position of the Parties
[20] Although the moving parties maintain that the activities of CADP and the Centre for Ethics do not constitute government action and that the Charter and federal human rights legislation do not apply, they concede there is a “genuine issue” on this point and that Mr. Adams would meet the “plain and obvious” threshold. Therefore, they concede that for purposes of this motion only, it can be taken that the activities of CADP and the Centre for Ethics do constitute government action and are subject to the Charter. However, with respect to the application itself, the moving parties argue that this does not confer jurisdiction on the Divisional Court. They take the position that Mr. Adams signed a contract in which he agreed to have his sports-related disputes decided by specialized arbitration bodies, not the courts. They maintain that the arbitrators who decided these disputes at the Doping Tribunal and the CAS derived their authority from contract and not pursuant to any statutory power and are therefore not reviewable by the Divisional Court as a statutory power of decision. Further, they point out that any appeal or review proceedings available under the Arbitration Act, 1991 would be within the jurisdiction of the Superior Court, not the Divisional Court.
[21] Mr. Adams argues that there is no true “agreement” to submit to arbitration. Rather, as a matter of government policy, he was forced to sign a contract with Athletics Canada as a condition of competition. He asserts that the entire scheme is in essence government action and that the government cannot escape the reach of the court under the guise of an imposed, rather than freely negotiated, “contract.”
(ii) Statutory Limits on the Jurisdiction of Divisional Court
[22] The Divisional Court has no inherent jurisdiction. It is a creature of statute and its jurisdiction is limited to that which is conferred by the statute. Therefore, unless the relief sought falls within s. 2 of the Judicial Review Procedure Act^4, it is beyond the jurisdiction of this Court. That statute provides:
(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.
[23] Almost all of the relief sought in the judicial review application is declaratory in nature. The only exception is the claim for an order setting aside that aspect of the CAS decision dealing with the Charter and human rights issues. With respect to the declaratory relief, jurisdiction would have to be established under clause 2 of s. 2(1) of the JRPA, which requires the exercise of a “statutory power.” The claim to set aside aspects of the CAS decision is not in the nature of mandamus or prohibition. If the Court has jurisdiction, it must be based on either the prerogative writ of certiorari (under the first clause of s. 2(1) of the JRPA) or the exercise of a statutory power (under the second clause of s. 2(1) of the JRPA).
[24] “Statutory power” and “statutory power of decision” are defined in section 1 of the JRPA, as follows:
“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party;
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
(iii) Analysis
The form of relief sought is not determinative
[25] Counsel for the Attorney General submits that even the form of relief that is nominally framed as seeking an order setting aside part of the decision of the CAS is, in essence, a claim for a declaration. Therefore, he argues that there would only be jurisdiction to grant that relief, as with all declaratory relief sought, if a statutory power was being exercised.
[26] I recognize that the relief sought in relation to the CAS decision is essentially the same as the claim for a declaration that the Charter and human rights legislation were infringed. However, I do not see the jurisdictional question as dependent upon whether this is a claim for declaratory relief, as opposed to certiorari. In either situation, the question is whether the court is being asked to intervene in a private contract dispute, as opposed to a matter of public law in which government power has affected the rights of an individual.
Mr. Adams is bound by the agreement he signed
[27] In this case, Mr. Adams entered into a contact with Athletics Canada. He signed the contract because he wanted to compete as an elite athlete at the national and international level, which required accreditation by the applicable national sports organization, in this case, Athletics Canada. Unless he entered into the agreement with Athletics Canada, he would not be accredited to compete at that level. Further, without such accreditation, he would not be eligible for government funding, which he acknowledged was necessary to enable him to compete.
[28] As part of his agreement with Athletics Canada, Mr. Adams agreed to be bound by the applicable rules to ensure drug-free competition. Those rules protect him, and others, from unfair competition by those who cheat by taking performance-enhancing drugs. Those rules also protect the integrity of sports competition within Canada and the reputation of Canada and its athletes throughout the world. The rules accepted by Mr. Adams as a condition of his participation, accreditation, and funding include the provisions with respect to the arbitration of disputes, which are the subject matter of this application.
[29] Counsel for Mr. Adams submits that this is not a true arbitration agreement because it was not freely negotiated and Mr. Adams had no choice but to sign it. I do not agree. Nobody forced Mr. Adams to participate in national and international sport competition. He freely chose to do that. He was given government funding to support his training and participation. The condition of his participation was that he abide by the rules, which included accepting the system of arbitration accepted by all other athletes competing at this level. This is what he freely agreed to, and he is bound by it.
[30] The initial arbitrator at the Anti-Doping Tribunal and the members of the CAS arbitration panel that heard Mr. Adams’ appeal from the initial arbitration award were selected by the parties in the manner provided for in the agreement. The procedure and rules to be applied in the course of those arbitration hearings flow from the agreement. There is no statutory provision empowering those arbitrators to hear the case. They derived their jurisdiction solely from the agreement between the parties.
The role of the Arbitration Act
[31] Most arbitrations conducted in Ontario, including the arbitrations involving Mr. Adams in this case, are subject to the Arbitration Act, 1991. That legislation provides for a limited basis upon which a court may intervene to review an arbitration decision. Under the Arbitration Act, the only court that has jurisdiction in this situation is the Superior Court of Justice.[^5] Parties are not permitted to contract out of some of the provisions of the Arbitration Act,[^6] including s. 19 (which provides for equal and fair treatment of the parties in the conduct of the arbitration) and s. 46 (which stipulates 10 grounds upon which a court may set aside an arbitration award). Section 46 of the Arbitration Act provides:
(1) On a party’s application, the court may set aside an award on any of the following grounds:
A party entered into the arbitration agreement while under a legal incapacity.
The arbitration agreement is invalid or has ceased to exist.
The award deals with a dispute that the arbitration agreement does not cover or contains a decision on a matter that is beyond the scope of the agreement.
The composition of the tribunal was not in accordance with the arbitration agreement or, if the agreement did not deal with that matter, was not in accordance with this Act.
The subject-matter of the dispute is not capable of being the subject of arbitration under Ontario law.
The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case, or was not given proper notice of the arbitration or of the appointment of an arbitrator.
The procedures followed in the arbitration did not comply with this Act.
An arbitrator has committed a corrupt or fraudulent act or there is a reasonable apprehension of bias.
The award was obtained by fraud.
The award is a family arbitration award that is not enforceable under the Family Law Act. 1991, c. 17, s. 46 (1); 2006, c. 1, s. 1 (7).
[Emphasis added]
[32] It is at least arguable that Mr. Adams could bring an application based on clause 5 of s. 46(1) based on his allegations of Charter violations, since the Crown takes the position that the arbitrator had no jurisdiction to grant a Charter remedy. However, if such an application is to be made, it can only be made to the Superior Court of Justice. Nothing in the Arbitration Act gives jurisdiction to the Divisional Court.
[33] It is also arguable that Mr. Adams may seek to appeal the CAS determination that there had been no breach of his rights under the Ontario Human Rights Code, pursuant to s. 45 of the Act. The arbitration agreement between the parties is silent as to any rights of appeal by the parties to the court. Where an arbitration agreement does not deal with appeals on a question of law, s. 45 of the Arbitration Act provides for an appeal to the court, but only with leave. The Arbitration Act provides that leave shall only be granted if the court is satisfied that:
(a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and
(b) determination of the question of law at issue will significantly affect the rights of the parties.
[34] Again, this is a possible avenue Mr. Adams might pursue, but it provides no jurisdiction to the Divisional Court.
[35] Section 6 of the Arbitration Act limits the intervention of courts in arbitrations except for the specified purposes of: (1) assisting the conduct of arbitrations; (2) ensuring that arbitrations are conducted in accordance with arbitration agreements; (3) preventing unequal or unfair treatment of parties to arbitration agreements; and (4) enforcing awards.
[36] The Court of Appeal has held that any judicial intervention in an arbitration proceeding must be strictly limited to those purposes set out in the Arbitration Act. In Inforica Inc. v. CGI Information Systems and Management Consultants Inc.,[^7] Sharpe J.A. held:
It is clear from the structure and purpose of the Act in general, and from the wording of s. 6 in particular, that judicial intervention in the arbitral process is to be strictly limited to those situations contemplated by the Act. This is in keeping with the modern approach that sees arbitration as an autonomous, self-contained, self-sufficient process pursuant to which the parties agree to have their disputes resolved by an arbitrator, not by the courts. As Inforica states in its factum, “arbitral proceedings are presumptively immune from judicial review and oversight.” The Act encourages parties to resort to arbitration, “require[s] them to hold to that course once they have agreed to do so”, and “entrenches the primacy of arbitration over judicial proceedings … by directing the court, generally, not to intervene”: Ontario Hydro v. Denison Mines Ltd., [1992] O.J. No. 2948 (Gen. Div.), Blair J.
The Divisional Court will not intervene in private contract arbitrations.
[37] The Divisional Court has consistently maintained that it will not intervene in disputes that are subject to private arbitration. In Rea International Inc. v. Muntwyler[^8] the Divisional Court referred to the Arbitration Act as a “comprehensive code governing private arbitrations in Ontario which limits court interventions in the arbitration process very narrowly.” On that basis, the Court declined to exercise its discretion to consider the merits of a judicial review application from an arbitral award, although stopping short of determining whether there remains any scope whatsoever for judicial review of arbitration awards in the Divisional Court.
[38] Similarly, in Kucyi v. Kucyi[^9] this Court referred to the earlier decision in Rea International and held that even if there is no conclusive authority that the Divisional Court lacks jurisdiction to judicially review the decision of an arbitrator, it ought not to do so as a matter of principle. The Court held that because the parties had agreed to proceed under an arbitration regime, they should not be permitted to sidestep that regime by bringing a judicial review application, noting that to hold otherwise “would undermine the goals that arbitration is designed to accomplish.”
[39] The decision of Boswell J. in Alaimo v. Di Maoi[^10] takes the analysis one step further. He held that, as a question of jurisdiction, judicial review is not an available remedy in respect of the decision of an arbitrator who takes his power from a private contract. He based that determination on the language of the JRPA and also on the fact that, historically, the prerogative writs (including certiorari) were a means of controlling the exercise of public powers. He concluded, at para. 54:
. . . Judicial review has been, and continues to be, a mechanism by which the Superior Court maintains some measure of control over the exercise of powers derived from delegated state authority. In other words, judicial review remains a public law remedy.
[40] I agree with the conclusion reached by Boswell J. in Alaimo that the Divisional Court has no jurisdiction under s. 2 of the JRPA to judicially review any decision outside the public law sphere. The prerogative writs were limited to the control of state power, and there is no reason to interpret the JRPA as having changed the nature of those remedies when it conferred power on the Divisional Court to grant them. On the contrary, the power of the Divisional Court to grant declaratory or injunctive relief was expressly limited to situations involving the exercise of a statutory power. The absence of those express words in the section dealing with the prerogative writs is, in my view, merely a recognition that those remedies were already limited to the exercise of public powers and to say so expressly would therefore be redundant.
[41] Boswell J. referred with approval to the decision of the Alberta Court of Appeal in Knox v. Conservative Party of Canada.[^11] I also find that decision to be well reasoned and highly persuasive. The case involved disputes about an electoral candidate nomination process. Pursuant to the political party’s constitution the disputes were referred to arbitration. The arbitration panel upheld the nomination process and judicial review applications were brought by affected parties. The Alberta Court of Appeal held that the decisions of the arbitration panel were not subject to judicial review because the powers of the arbitrator flowed from a private law agreement, and not from any statutory or government power. The Court recognized that it is sometimes difficult to determine whether a tribunal is exercising a function that is private, as opposed to public. The Court held, at para 20:
It follows that if a tribunal is exercising powers that do not accrue to private organizations, and that are only vested on the tribunal by statute for the benefit of the public, then it is subject to judicial review. Otherwise it is a private consensual tribunal and prima facie subject only to private law remedies.
[42] The Alberta Court of Appeal in Knox distinguished between a tribunal exercising a public power and a private tribunal that is deciding matters of importance to the public at large. It is only the former that is subject to judicial review remedies. The Court stated, at paras 26-27:
Neither constituency associations nor political parties are given any public powers under the Canada Elections Act, S.C. 2000, c.9. They are essentially private organizations. It is true that their financial affairs are regulated: they may only give tax receipts in certain circumstances, and they may only spend the money they raise in certain ways. However, merely because an organization is subject to public regulation does not make it a public body subject to judicial review. The fact that the organization may require or may hold a licence or permit of some kind is also not sufficient, nor is the fact that the organization may receive public money. Many organizations are subject to public regulation. For example, all charities must be registered in order to issue charitable receipts, but that does not mean that they are exercising public functions and therefore are subject to judicial review.
It is argued that the democratic process, elections, and the activities of political parties are of great public importance. That is undoubtedly true, but public importance is not the test for whether a tribunal is subject to judicial review. When arranging for the nomination of their candidate in Calgary West, the Party and the Association were essentially engaged in private activities, and their actions, in this case, are not subject to judicial review. They are, however, subject to private law remedies that may be engaged. Like many private organizations, the Appellants in this case have constitutions, bylaws and rules. Members are entitled to have those documents enforced in accordance with their terms and the proper interpretation of those terms. The remedies available are, however, private law remedies.
[Emphasis added]
[43] A similar conclusion was reached by the Nova Scotia Supreme Court in Sharecare Homes Incorporated v. Cormier,[^12] and for very similar reasons to those of the Alberta Court of Appeal. In that case, an employer dismissed an employee, who then threatened to bring an action for wrongful dismissal. Instead, the parties agreed to submit their dispute to arbitration. The arbitrator ruled in favour of the employee and the employer sought judicial review of the arbitrator’s decision. Smith A.C.J. held that any review of the arbitrator’s decision was limited to that which was provided for in Nova Scotia’s Commercial Arbitration Act and that judicial review remedies were not available. In coming to that conclusion, she made extensive reference to the Alberta Court of Appeal decision in Knox, supra, and also referred with approval to the decision of Boswell J. in Alaimo, supra, and the Ontario Court of Appeal decision in Inforica, supra. Smith A.C.J. held (at para. 51):
. . . the prerogative writs do not lie against a non-statutory tribunal, however, its proceedings are reviewable for want of jurisdiction and breaches of natural justice. Issues of jurisdiction and breaches of natural justice are now codified, however, by the Commercial Arbitration Act and, in particular, s. 49 of that Act. Any relief that the Applicant may seek must be found in the provisions of the Commercial Arbitration Act.
Conclusion: the Divisional Court has no jurisdiction in this case.
[44] I return, then, to s. 2 of the JRPA. In my view, it is plain and obvious that the CAS arbitration panel that heard Mr. Adams’ appeal was not exercising a statutory power. Its powers were derived solely from contract. Therefore, none of the declaratory relief sought is within the jurisdiction of the Divisional Court, since the power to grant such relief is limited to situations involving the exercise of a statutory power.
[45] Further, the remedy of certiorari is not available because the arbitration panel was a private tribunal, appointed pursuant to an agreement. It had no public mandate and did not exercise any public powers. Public law remedies, such as certiorari, are not applicable to private law decision-makers. The Divisional Court only has jurisdiction to review public law decisions. I recognize, as did the Alberta Court of Appeal, that distinguishing between public and private law functions is not always clear-cut. However, that is not the situation here. But for the agreement to submit disputes to arbitration, there would be no basis whatsoever for the CAS to have any powers over Mr. Adams. As I have already stated, Mr. Adams voluntarily signed the agreement and the fact that he had no power to negotiate terms different from all other athletes wishing to compete is immaterial to whether he nevertheless agreed to the arbitral process. Further, I recognize that the issues raised here are of significant importance to the public, both because of the personal rights and freedoms involved, and because of the importance to the public in maintaining the integrity of sports competitions. That does not turn a private arbitral process into a public law decision-making process. Finally, I recognize that there is a significant degree of government involvement in this matter, both with respect to influencing the content of the anti-doping policy and through the control it wields over athletes and sports organizations by withholding funding from those who do not want to play by those rules. Nevertheless, the arbitration process is not an exercise of public power, but rather a matter of private contract. In my opinion, none of the remedies available under the JRPA apply and the Divisional Court has no jurisdiction over the issue raised in this application.
[46] Counsel for Mr. Adams relies heavily on the decision of Linhares de Sousa J. in Certified General Accountants Assn. of Canada v. Canadian Public Accountancy Board[^13] as establishing the jurisdiction of the Divisional Court to grant the remedies sought in this case. However, I do not see that case as applicable because it involved issues fundamentally different from those raised here. The dispute in that case involved a power-struggle between certified general accountants (“CGAs”) and chartered accountants (“CAs”) over the right to perform audits for publicly-traded companies. In response to a number of high-profile business failures and accounting scandals, various significant players in the securities and financial investment fields from across Canada devised a scheme to oversee the auditors of public companies across Canada. A not-for-profit company was formed, the Canadian Public Accountability Board (“CPAB”). It had no statutory powers, but was to operate by way of Participation Agreements with any accounting firms wishing to conduct audits of public companies. The federal government published a Multi-Lateral Instrument on Auditor Oversight, which provided that all accounting firms conducting audits of public companies must have entered into a Participation Agreement with CPAB. All of the provinces and territories then adopted the Multi-Lateral Instrument, with the result that the standards imposed by CPAB in its Participation Agreements would be applied consistently throughout the country. The Participation Agreement also provided that any disputes would be resolved through arbitration.
[47] Firstly, I would distinguish the CGA case from this one on the basis that it is far closer to direct government regulation than is the case here. However, there is a more important distinction. The relief sought in the judicial review application before Linhares de Sousa J. did not relate to an arbitration, or even the arbitration clause itself. Rather, the national organization representing CGAs sought declaratory relief that CPAB’s structure was unfair to CGAs because it failed to give them fair representation, was structurally biased in favour of CAs, was unduly influenced by CAs in its governance structures and activities, and was not institutionally independent from the CAs whose work it oversees. CPAB moved to quash the application on the grounds that the Divisional Court had no jurisdiction to hear it. It was in this context that Linhares de Sousa J. held that it was not plain and obvious that the application could not succeed. She noted that the CPAB had a public interest mandate to protect the integrity of public markets and that governments had stepped in to “control the gate” by requiring Participation Agreements as a condition of conducting audits. Given those facts, and the restriction of the application to issues of natural justice and bias with respect to the structure and governance of the CPAB itself, she held that it was arguable that the Court had jurisdiction.
[48] It is not necessary for me to decide whether I agree with the conclusion reached by Linhares de Sousa J., or to determine whether the appropriate court to grant such relief would have been the Superior Court of Justice rather than the Divisional Court. The issues are sufficiently different that the case is completely distinguishable on its facts. The case did not involve a situation in which a party had signed an agreement and then sought a remedy inconsistent with that agreement. Indeed, there was no arbitration process involved in the CGA case. The fact that the parties could go to arbitration if there was a dispute in relation to the agreement is of no consequence; there was no such dispute and there was no arbitration award. Accordingly, I do not find this case assists Mr. Adams.
[49] Likewise, the decision of the Divisional Court in McDonald v. Anishinabek Police Service[^14] is distinguishable on its facts because the police service exercising the power in that case was found to be a public body exercising a government function as part of the machinery of government and, therefore, subject to judicial review. The same cannot be said of the CAS arbitration panel hearing Mr. Adams’ appeal.
[50] In conclusion, I find the moving parties have satisfied their onus of convincing me that it is plain and obvious that the Divisional Court has no jurisdiction to grant any of the relief claimed by Mr. Adams in this application. If I am wrong on the jurisdictional issue, I would nevertheless exercise my discretion to quash the application in light of the agreement to submit the dispute to arbitration, the arbitration decisions themselves, and the availability of remedies under the Arbitration Act. Given those circumstances, there is no need to invoke the supervisory powers of this court. It is inconsistent with the underlying purpose and intention of the Arbitration Act if parties to arbitration agreements are permitted to bring some disputes to the Divisional Court and others to the Superior Court.
E. ABUSE OF PROCESS – MULTIPLE PROCEEDINGS
[51] In light of my conclusion with respect to the jurisdictional issue, it is not necessary to deal in any detail with the abuse of process argument. I will, however, touch on it briefly.
[52] In the civil action, Mr. Adams seeks damages for the breach of his rights under the Charter and human rights legislation. He does not specifically seek an order to set aside the CAS arbitration award, but everything else he seeks in the judicial review application is duplicated in the civil action. Further, given the nature of the relief claimed in the civil action, if that relief is awarded, an order actually setting aside specific findings of the CAS would not be necessary (assuming, without deciding, that the CAS award does not operate to prevent Mr. Adams from re-litigating any of these issues).
[53] The civil action is far more comprehensive than the judicial review proceeding. Further, many of the claims (including relief claimed in the Divisional Court) involve disputed factual issues that are not conducive to being determined without a trial, which is not available in a Divisional Court proceeding.
[54] It also would have been open to Mr. Adams to seek any remedies available under the Arbitration Act in the civil action. He has not done so. But, if he does claim such relief, it can only be before a judge of the Superior Court, which is another factor that makes the civil action more comprehensive.
[55] It is contrary to the interests of justice to have parallel proceedings in relation to the same subject matter. This is not an efficient use of judicial resources, is unduly costly to the parties, and raises the risk of inconsistent verdicts. Multiplicity of proceedings is always to be avoided.
[56] The application in the Divisional Court does not advance Mr. Adams’ claims in any way that is not achievable, and perhaps more easily achievable, in the Superior Court action. I would, therefore, have stayed the judicial review application on this ground alone, independent of my conclusion on the jurisdiction issue.
F. CONCLUSION and ORDER
[57] In the result, the motion is granted and this judicial review application is quashed.
[58] If costs are sought, written submissions may be forwarded to me on a schedule to be agreed upon by the parties. Rather than the parties sending me submissions one at a time, I would ask counsel for the Attorney General to take carriage of the matter and forward to me, by the end of February 2011, the costs submissions of all parties bound in one volume.
MOLLOY J.
Released: January 17, 2011
CITATION: Adams v. Canada, 2011 ONSC 325
DIVISIONAL COURT FILE NO.: 223/09
DATE: 20110117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY J.
BETWEEN:
JEFFREY ADAMS
Responding Party (Applicant)
– and –
ATTORNEY GENERAL OF CANADA and CANADIAN CENTRE FOR ETHICS IN SPORT
Moving Parties (Respondents)
REASONS FOR JUDGMENT
MOLLOY J.
Released: January 17, 2011
[^1]: Arbitration Act, 1991, S.O. 1991, c. 17. [^2]: Action No. CV-09-378719. [^3]: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959; East Luther Grand Valley (Township) v. Ontario (Minister of Environment and Energy) (2000), 2000 22361 (ON SC), 48 O.R. (3d) 247, [2000] O.J. No. 1424 (S.C.J.); Redmond v. Hamilton (City of) (2008), 2008 67892 (ON SCDC), 94 O.R. (3d) 305 (Div.Ct.) at para 9. [^4]: Judicial Review Procedure Act, R.S.O. 1990, c. J.1. [^5]: Arbitration Act, 1991, s. 1. [^6]: Arbitration Act, 1991, s. 3 [^7]: Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, 311 D.L.R. (4th) 728 at para. 14. [^8]: Rea International Inc. v. Muntwyler, 2004 31795 (ON SCDC), [2004] O.J. No. 3969, 190 O.A.C. 227, 25 Admin. L.R. (4th) 193 (Div. Ct.) at paras. 8 and 13, aff’d [2005] O.J. No. 3128 (C.A.). [^9]: Kucyi v. Kucyi, 2005 48539 (ON SCDC), [2005] O.J. No. 5626, 206 O.A.C. 113 (Div.Ct.) at paras. 9-10. [^10]: Alaimo v. Di Maoi, [2008] O.J. No. 3570, 171 A.C.W.S. (3d) 784 (S.C.J.). [^11]: Knox v. Conservative Party of Canada, 2007 ABCA 295, 286 D.L.R. (4th) 129, 65 Admin. L.R. (4th) 167 at paras. 13-32, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 567. [^12]: Sharecare Homes Incorporated v. Cormier, 2010 NSSC 252, 321 D.L.R. (4th) 485. [^13]: Certified General Accountants Assn. of Canada v. Canadian Public Accountancy Board, 2008 1536 (ON SCDC), [2008] O.J. No. 194, 233 O.A.C. 129, 77 Admin. L.R. (4th) 262 (Div.Ct.). [^14]: McDonald v. Anishinabek Police Service (2006), 2006 37598 (ON SCDC), 83 O.R. (3d) 132, 55 Admin. L.R. (4th) 47 (Div.Ct.).