CITATION: Wabinski v. Pickleball Ontario, 2023 ONSC 7020
DIVISIONAL COURT FILE NO.: 23-002-JR DATE: 20231211
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, D.L. Corbett and O’Brien JJ.
BETWEEN:
KASPER WABINSKI
Applicant
– and –
PICKLEBALL ONTARIO a/k/a PICKLEBALL ASSOCIATION OF ONTARIO
Respondent
Michael B. Lesage, for the Applicant
Michelle Kropp, for the Respondent
HEARD at Toronto: December 11, 2023
D.L. CORBETT J. (Orally)
[1] The applicant seeks judicial review of the respondent’s decision effective March 24, 2023, to suspend the applicant’s membership until January 1, 2024. The respondent raises a jurisdictional challenge of the application and we concluded that we should hear this issue as a preliminary issue. We concluded we do not have jurisdiction and dismiss the application for that reason for the reasons that follow.
[2] The Divisional Court is a statutory court and has no jurisdiction other than that conferred on it by statute.
[3] The applicant argues that this court has jurisdiction under subsection 2(1) of the Judicial Review Procedure Act which reads:
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 order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action or 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.”. In the instant case, the applicant argues that the second category, the exercise of a “statutory power” confers jurisdiction on this court.
[4] In our view, there is no statutory power exercised by the respondent. The applicant argues, to the contrary, that s. 50 of the Not-for-Profit Corporations Act is a statutory power. That provision reads as follows.
(1) Unless the articles or by-laws of a corporation provide otherwise, a membership is terminated when,
(a) the member dies or resigns;
(b) the member is expelled or the person’s membership is otherwise terminated in accordance with the articles or by-laws;
(c) the member’s term of membership expires; or
(d) the corporation is liquidated or dissolved under Part XII.
(2) Unless this Act, the articles or by-laws provide otherwise, the rights of a member, including any rights in the property of the corporation, cease to exist on termination of the membership.
[5] This provision does not create a statutory power; rather, it is a statutory authority prescribing the manner in which a not-for-profit corporation shall conduct its internal affairs, much in the same sense that the internal affairs of business corporations, other corporations, partnerships, limited partnerships, and voluntary associations may be prescribed by statute. Such regulation does not render the internal affairs of private organizations subject to judicial review in this court. See: Jehovah’s Witnesses 2018 SCC 26 at para. 14.
[6] Judicial review is the court’s jurisdiction to review public law decisions and is not the means by which the courts oversee private organizations. The applicant’s recourse in this case is in the Superior Court of Justice not the Divisional Court, as expressly provided in subsections 51(5) and 191 of the Not-for-Profit Corporations Act. Thereafter, an appeal could be brought from the Superior Court of Justice to this court pursuant to s. 192 of the Not-for-Profit Corporations Act. The applicant may not circumvent these provisions by way of an immediate judicial review application in this court.
[7] We appreciate that some courts have found that disputes in voluntary organizations can have a sufficiently public character to engage the court’s jurisdiction to conduct judicial review. We need not review that law in the circumstances of this case. This internecine dispute over intemperate emails, resulting in a 9-month suspension from a sports organization devoted to a pickleball is not in the exceptional category of private disputes with a sufficiently public dimension to ground jurisdiction for judicial review. See: Gymnopoulos v. Ontario Association of Basketball Officials, 2016 ONSC 1525 at paras. 43-54.
[8] With respect, this is not a close call. The application is dismissed. Nothing in these reasons should be taken to be a finding respecting the underlying merits of the applicant’s complaints.
[9] The application is dismissed.
_________________________________ D. L. Corbett
I agree
Sachs J.
I agree
O’Brien J.
Date of Oral Reasons for Judgment: December 11, 2023
Date of Release of Written Reasons: March 28, 2024
CITATION: Wabinski v. Pickleball Ontario, 2023 ONSC 7020
DIVISIONAL COURT FILE NO.: 23-002-JR DATE: 20231211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, D.L. Corbett and O’Brien JJ.
BETWEEN:
KASPER WABINSKI
Applicant
– and –
PICKLEBALL ONTARIO a/k/a PICKLEBALL ASSOCIATION OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
D.L. CORBETT J.
Date of Oral Reasons: December 11, 2023
Date of Release of Written Reasons: March 28, 2024