Court File and Parties
CITATION: Adams v. Attorney General of Canada, 2011 ONSC 7592
DIVISIONAL COURT FILE NO.: 223/09
DATE: 2011/12/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JEFFREY ADAMS, Applicant (Moving Party)
AND:
ATTORNEY GENERAL OF CANADA and CANADIAN CENTRE FOR ETHICS IN SPORT, Respondents (Responding Parties)
BEFORE: Jennings, Dambrot, Harvison Young JJ.
COUNSEL: Timothy S. B. Danson, Marjan Delavar, for the Applicant (Moving Party) Peter Southey, Roy Lee, for the Respondent, Attorney General of Canada Robert C. Morrow, for the Respondent, Canadian Centre for Ethics in Sport
HEARD: December 15, 2011
Endorsement
[1] The applicant, Jeffery Adams (“the applicant” or “Mr. Adams”) moves to set aside the judgment of Molloy J. granting the respondent Attorney General of Canada’s motion to quash the applicant’s application for judicial review. Molloy J. was sitting as a single judge of the Divisional Court. Mr. Adams asks that the application for judicial review be allowed to continue to adjudication before a panel of the Court.
[2] The facts and rather complex procedural background of this matter are fully set out in the reasons of the motion judge and need not be repeated here.
[3] The central issue on this appeal, as before the motion judge, is whether this court’s jurisdiction is ousted by an agreement signed by Mr. Adams with Athletics Canada, which provides that all disputes will be resolved by binding arbitration.
[4] The applicant also submits that the motion judge erred in going on to find that the judicial review proceeding if not quashed should be stayed as an abuse of process. Mr. Adams seeks to set aside both the conclusion (i) that it is plain and obvious that the Divisional court has no jurisdiction to grant the relief sought; and (ii) that the application for judicial review constituted an abuse of process in light of the parallel proceedings brought in the Superior Court.
[5] For the reasons which follow, the motion is dismissed.
Standard of Review
[6] The applicable standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, that is, correctness on matters of law, and palpable and overriding error on findings of fact and findings of fact and law that are inextricable: see 3394603 Canada Inc. (c.o.b. Harman Transport) v. Ontario (Deputy Registrar of Motor Vehicles), [2008] O.J. No. 5173 at para. 1 (Div. Ct.).
Jurisdiction of the Divisional Court
[7] The parties agreed before this panel, as they had before the motion judge, that the correct test on a motion to quash a judicial review application is whether it is plain and obvious that it cannot succeed. This is the same test as that applied on a motion to dismiss an action under Rule 21.
[8] The applicant raises a number of arguments in support of the proposition that it is not plain and obvious that the judicial review application cannot succeed. First, he submitted that despite the fact that he signed an agreement with Athletics Canada, the broad regulatory context within which Canadian athletes seeking to compete at the international level, at least with funding, takes it out of the private sphere. Accordingly, he submitted that judicial review should be available as sought.
[9] The second argument raised is that the arbitrator was exercising a statutory power of decision and that, accordingly, the declaratory relief sought is available pursuant to s. 2 (1) 2 of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1 (“JRPA”):
(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.
[10] Both points were fully argued before the motion judge.
[11] The first argument raised by the applicant is that the arbitrators who decided this matter were exercising public powers and are therefore subject to judicial review. The applicant focused his arguments before the review panel on this point, arguing that the arbitration cannot fairly be characterized as “private” in the present case, and that the entire scheme within which the arbitration operated was part of a public function, given the complex context of statutes and regulations within which this contractual provision operated. Accordingly, he submitted, it is not plain and obvious that an application for judicial review cannot succeed. The motion judge held that the remedy of certiorari could not be available in this case because the arbitration panel was a private tribunal.
[12] The motion judge considered the authorities, stating that:
[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 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.
[13] At para. 40 of her reasons, she concluded on this point:
[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.
[14] While it may be true that the institutions of contract are increasingly harnessed in the operation of the modern regulatory state, we see no basis for finding that the motion judge erred in her conclusion on this point in the circumstances of this application.
[15] In any event, even if she had erred on this point, it is plain and obvious that the judicial review application could not succeed because the relief sought by the applicant is declaratory in nature and not in the nature of certiorari at all.
[16] As indicated above, the applicant also submits that the motion judge erred in finding that the CAS arbitration panel that heard Mr. Adams’ appeal was not exercising a statutory power.
[17] The Notice of Application sought the following relief:
(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.
[18] It is clear from a reading of the relief claimed that it is declaratory in nature. The only decision that he seeks to challenge in his application is the legal conclusion reached in the arbitral award that the Charter and the Canadian Human Rights Act do not apply to the anti-doping process, and that the Ontario Human Rights Code applies but was not breached.
[19] As s. 2(1) 2. of the JRPA indicates, injunctive or declaratory relief is not available in the absence of the exercise of a statutory power of decision. As the motion judge held, it is plain and obvious that there was no statutory power of decision conferred here. The authority was conferred by contract. The motion judge rejected the argument that the applicant did not enter into the contract freely:
[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).
[20] We agree. There is no basis for challenging the validity of this contractual agreement.
[21] Accordingly, even if the power exercised in this case had been considered to be public in nature in light of the overall scheme, as the applicant submitted, there was no power of decision conferred by statute. The source of the authority to arbitrate here was clearly contractual in nature. Without a statutory power of decision, it is plain and obvious that declaratory relief cannot be available, and plain and obvious that the application for judicial review cannot succeed.
[22] The applicant also challenges the motion judge’s conclusion that the judicial review proceedings should be stayed as an abuse of process in light of the parallel proceeding which the applicant has commenced in which he seeks damages in a civil action.
[23] We do not find it necessary to consider whether the judicial review proceedings constituted an abuse of process in light of the parallel proceeding commenced, and we decline to do so.
[24] For the foregoing reasons, the application is dismissed. If the parties are unable to agree as to costs, they may file brief submissions with the court on a timetable to be agreed upon.
Jennings J.
Dambrot J.
Harvison Young J.
Date: December 21, 2011