Gymnopoulos v. Ontario Association of Basketball Officials, 2016 ONSC 1525

2016 ONSC 1525

COURT FILE NO.: DC-15-898-00

DATE: 20160302

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Constantine (Gus) Gymnopoulos, John Glezakos and Claude Nembhard

Applicants

– and –

Ontario Association of Basketball Officials

Respondent

William W. Markle Q.C., for the Applicants

Samuel R. Hill, for the Respondent

HEARD: February 25, 2016

JUDGMENT

BIRD j.:

Introduction

[1] This case should serve as a cautionary tale in relation to the serious repercussions that can result from conduct during the course of youth sporting events. The Applicants are volunteer coaches of the Vaughan Voyageurs Senior Boys high school basketball team. They all have a long and impressive history of involvement in the sport. Mr. Gymnopoulos is a teacher at Vaughan Secondary School and is the head coach of the team. Mr. Glezakos was an educator for more than 30 years before he retired as a principal. Even after his retirement, he continued in his position as an assistant coach of the Voyageurs. Mr. Nembhard is a financial advisor who runs a basketball academy and has been coaching basketball for 25 years. He is also an assistant coach with the Voyageurs. There is no question that all three Applicants are exceptionally dedicated to the sport of basketball and to mentoring and coaching youth.

[2] The Ontario Association of Basketball Officials (OABO) is a private, self-governed, not-for-profit organization that was incorporated in 1982. It consists of approximately 1,600 voluntary members from across Ontario and its executive is staffed entirely by volunteers. OABO has a comprehensive constitution and by-laws which set out, among other things, its purpose, rules regarding membership, a code of conduct and a complaints procedure. While there is no obligation for any official to join OABO, it is the only professional association for basketball officials in the province. Article 3.2 of its constitution states that one of its purposes is “to act as the official spokesman for basketball officials within the province on any and all provincial matters pertaining to basketball officiating”. Article 3.5 states that OABO will work with various other organizations including the Ontario Basketball, Canada Basketball, the Ontario Federation of School Athletic Associations (OFSAA), Ontario Universities Athletics, Ontario Colleges Athletic Association, International Association of Approved Basketball Officials and the Canadian Association of Basketball Officials to promote and develop the game of basketball. OABO acts as the Provincial Board for Ontario of the International Association of Approved Basketball Officials.

[3] While it is theoretically possible to work as a basketball official in Ontario without being a member of OABO, the Respondent organization has exclusive contracts to supply officials to many leagues. Specifically, they have contracts to supply officials to elementary school boards, public secondary school boards and Catholic secondary school boards across the province. They have a contract with OFSAA to provide the officials for each of the six provincial basketball championships.

[4] Mr. Gymnopoulos and Mr. Glezakos both have a long history of officiating as well as coaching, and are members of OABO in their capacity as officials. Mr. Nembhard is not a basketball official and therefore is not a member of OABO.

[5] As a result of the Applicants’ behaviour following an OFSAA basketball game on March 10, 2015, sanctions were imposed on them by the Respondent. They have brought an application for judicial review of the discipline decision, alleging a lack of natural justice and procedural fairness. The Applicants seek an order in the nature of certiorari pursuant to Section 2(1)1 of the Judicial Review Procedure Act R.S.O. 1990, C. J.1, (JRPA), setting aside the decision of the Respondent made on May 7, 2015 imposing sanctions on them. The Respondent challenges the application on several grounds, both substantive and jurisdictional.

Factual Background

[6] On March 10, 2015 the Vaughan Voyageurs lost a basketball game in the final seconds, ending their OFSAA playoffs. They had been leading for the entire game, but had six fouls called on them in the last 90 seconds of play. Their opponent won the game by two points. Chris Spooney and Marty Bourgeois were the two OABO game officials. Robin Holbrook was the Assistant Referee-in-Chief and was present in the gym watching the game. The Applicants were all very upset by their team’s loss and blamed the referees. In their view, Vaughan received a disproportionate number of penalties in the final 90 seconds which led to the loss.

[7] After the game, there was a confrontation between the Applicants, the two referees and Mr. Holbrook in various locations. While there are differences among the participants’ versions

of events as to the extent of the interaction, it is apparent that the Applicants were very irate and expressed their displeasure with the officiating. This occurred in a public area that spectators and players had access to. It is clear that at least some of the altercation was witnessed by third parties.

[8] After leaving the gym, Mr. Gymnopoulos posted several negative comments about the officiating on Twitter. He also re-tweeted comments posted by other people in response. In his tweets, Mr. Gymnopoulos referred to the game as a “Napolean hose job”. He expressed his view that OFSAA was not providing the teams with the highest possible caliber of officials and that it was affecting game results. All of Mr. Gymnopoulos’ comments were posted on March 10, 2015 following the game. The posts did not include any foul language.

[9] Both parties agree that it is not my function on this application to make any findings of fact in relation to the conduct of the Applicants or the OABO officials who were present at the game. My review is to be focused solely on the legal and procedural issues raised by the case. Further, it is not necessary or appropriate for me to comment on the fitness of any sanctions imposed by OABO.

[10] However, it must be acknowledged that respect for officials and the conduct of the various parties involved in youth sports is an issue of utmost concern to the public. It is almost impossible to enter any sports arena without seeing posters reminding players, parents and coaches that youth sports are played for fun and that respect for the game should be the top priority. While officials in most sports are paid to perform their work, they do so primarily for the love of the game. It is simply not acceptable for any official to be subjected to inappropriate verbal or physical behaviour by a player, coach or spectator. Nothing in these Reasons should be taken as condoning any disrespect for sports officials.

[11] On March 12, 2015, Mr. Gymnopoulos received an email from the Vice-President of the York Region Association of Basketball Officials (YRABO) advising him that he had received a complaint from OABO’s president regarding the comments made on Twitter. Despite saying that he would be in touch in the near future, there was no further direct contact from YRABO, which is a local board of OABO, about the matter.

[12] On April 2, 2015 Mr. Gymnopoulos and Mr. Glezakos received an email from Jaime McCaig, who is the president of OABO. The email was not sent to Mr. Nembhard as OABO did not have his email address. The email read:

Hi Gentlemen

Please be advised that the Ontario Association of Basketball Officials will be conducting a hearing with respect to the Post Game Incident that took place at the AAAA OFSAA Boys Championships in Windsor on March 10 with the game between the Vaughan Secondary School and Sir John A. Macdonald.

The hearing will be conducted by Conference Call on Thursday April 16^th/2015 from

7:00 p.m. to 8:00 p.m.

The purpose of the hearing is to listen first hand to all parties directly involved in the incident. For your information I have attached reports from the Officials and the Assistant Referee-in-Chief for the tournament.

I do not have an email address for Claude Nembhard so I would greatly appreciate it if one of you could forward this correspondence to him so he can take part in the Hearing.

[13] Mr. Nembhard swore an affidavit stating that he never received the email but was made aware of the conference call. He was unable to participate in the call due to a work commitment. Mr. Nembhard called Mr. McCaig on April 16, 2015 to advise him of his conflict. In his affidavit, Mr. Nembhard stated that Mr. McCaig told him not to worry about his unavailability as the call was meant to be an information gathering session. Mr. McCaig denies making this comment.

[14] Mr. Holbrook, who was the primary OABO official involved in the altercation with the Applicants, was also not available for the April 16,2015 call. Present during the conference call were four members of the OABO executive committee (now referred to as a discipline committee), the two game officials, Mr. Gymnopoulos and Mr. Glezakos. The call was not audio recorded. Both Mr. Gymnopoulos and Mr. Glezakos state in their affidavits that at the outset of the call, Mr. McCaig said that its purpose was to gather information. Mr. McCaig did not address this allegation in his affidavit.

[15] At some point after the April 16, 2015 conference call minutes were prepared by Don Thorne, who was OABO’s secretary and treasurer. Those minutes were not provided to the Applicants until January of 2016. Mr. McCaig described them in his affidavit as “brief minutes” and they are not meant to represent a verbatim account of the conversation.

[16] The discipline committee of OABO met by conference call the week following April 16, 2015 to discuss the matter further. During this call, Mr. Thorne told the committee about additional information he had received in a conversation with Mr. Holbrook. This information was not contained in Mr. Holbrook’s report, nor was it disclosed to the Applicants until January of 2016. The new information included an allegation that Mr. Nembhard sprayed spittle on Mr. Holbrook and had to be pushed away from him by Mr. Gymnopoulos. This information was considered by the executive committee unbeknownst to the Applicants.

[17] On May 1, 2015 OABO’s executive committee, which consists of a total of seven members including the four people who were part of the discipline committee, met to consider the matter. The discipline committee advised the other three members of the executive committee that they had made several factual determinations including:

1. Mr. Gymnopoulos loudly expressed negative opinions as the officials were leaving the gym and several players also joined into the vocal outburst.

2. All three Applicants confronted and loudly berated Mr. Holbrook.

3. Mr. Gymnopoulos posted disrespectful comments about the officiating on Twitter “continuously” over the course of “several days”.

4. Mr. Nembhard “was spitting on Mr. Holbrook” and had to be pushed away by Mr. Gymnopoulos.

5. Mr. Glezakos followed Mr. Holbrook to the change room area and waited outside the room for him to engage in another confrontation.

6. Mr. Gymnopoulos approached Mr. Holbrook during the half-time break of the next game to continue the conversation about the officiating. This discussion was described as respectful, although Mr. Gymnopoulos continued to be critical of the officiating.

[18] On May 7, 2015 the OABO executive committee released a written decision imposing sanctions on the Applicants. The letter advised them that a complaint had been presented to the OABO executive regarding their conduct on March 10, 2015. The Applicants have never been provided with a formal written complaint or with a summary of any complaint that was made verbally. It is unclear who initiated the complaint referred to in the May 7, 2015 decision. The only documents the Applicants were provided with prior to the April 16, 2015 conference call were the reports of Mr. Holbrook and the two game officials.

[19] In its written decision, the OABO executive referred to four specific sections of the by-laws that they found Mr. Gymnopoulos and Mr. Glezakos had breached. The committee stated that the conduct amounted to a major contravention of the Code of Conduct. The characterization of the conduct as major determined the sanctions that were available to the committee. Misconduct that is not found to be major is dealt with under the “Routine Enforcement” provisions of By-law 7E. The available sanctions are a letter of caution or a suspension of up to one month.

[20] If the misconduct is deemed to be “major”, By-law 7F applies. It requires a report that “should contain as much information as possible” and which “clearly indicates the aspect of the Code of Conduct which the complainant believes has been violated, and the nature of that violation”. As noted, the Applicants were not told who the complainant was. The reports of the game officials and Mr. Holbrook do not make any reference to the Code of Conduct. Pursuant to By-law 7F, the available sanctions include a withdrawal of services and a suspension of an undefined length. There is no definition of “major” misconduct in OABO’s constitution or by-laws.

[21] Mr. Gymnopoulos’ membership in OABO was suspended for a period of two years commencing May 1, 2015. This prohibited him from working as an official at any events that OABO has the contract for. In addition, for the same two year period, OABO instructed its members to withdraw services from any game that Mr. Gymnopoulos was involved in as a coach, assistant coach or participant. In doing so, OABO prevented Mr. Gymnopoulos from playing in any OABO officiated game and from being behind the bench in a coaching capacity.

[22] OABO does not have the authority to suspend Mr. Gymnopoulos’ coaching privileges. His ability to coach high school basketball is controlled by the York Region Athletic Association (YRAA). The YRAA conducted a formal inquiry into the events of March 10, 2015 and determined that it was not appropriate to suspend the coaching privileges of any of the Applicants. On May 29, 2015, the acting president of the YRAA sent Mr. McCaig a letter advising him of the outcome of the YRAA’s inquiry. The letter specifically asked OABO to respect the decision of the YRAA to deal with its coaches in an appropriate manner. Mr. McCaig responded by email on June 2, 2015, and said that he had reviewed the letter with the other members of OABO’s executive and they were maintaining their withdrawal of services. Mr. McCaig explained that this meant that OABO would not supply officials for any games the Applicants were involved in for the duration of the sanctions.

[23] While OABO does not have the ability to suspend anyone’s coaching privileges, the withdrawal of services had the effect of preventing the Applicants from coaching from the bench during any games or tournaments that OABO supplied the referees for. OABO has the exclusive contract with the YRAA to supply officials for all league and playoff games involving public secondary schools in the region. As a result, the Applicants were barred from coaching the Vaughan Voyageurs from the bench in any games for the duration of the sanctions. They were not prevented from coaching practices, from being in the change room with the team before and after the games and during half-time or from watching games in the gym. However, the impact on the team of not having its coaches behind the bench during games is significant. In a letter dated October 5, 2015, two members of OFSAA wrote Mr. Gymnopoulos a letter advising him that as a result of the OABO sanctions he “will not be allowed to be on the bench in any capacity during the 2015-2016 OFSAA Basketball Championship”.

[24] Mr. Glezakos was subjected to the same sanctions as was Mr. Gymnopoulos, but for a period of one year rather than two. Because Mr. Nembhard was not a member of OABO, the sanctions against him were limited to a withdrawal of services for a period of one year. The written decision of the OABO executive did not provide an explanation for the fact that Mr. Gymnopoulos was subjected to sanctions for twice as long as the other Applicants.

[25] At the end of the written decision the Applicants were advised that the appeal process was governed by By-law 7G, which states that an appeal will only be considered where it can be shown that a procedural error had taken place, or where new information specifically pertaining to the original complaint had come to light. The final sentence of the disciplinary decision defined a complaint as “a dispute in writing arising from the interpretation, application, administration or alleged contravention of the OABO Code of Ethics”. On this definition, considered in the context of By-law 7F, it is reasonable to expect that there was or should have been a formal written complaint that initiated the disciplinary process.

[26] An appeal by an OABO member must be filed within 30 days of any disciplinary action. Appendix 4B(3) to the by-laws provides that an appeal from a decision of the OABO executive committee is made to the delegates at the next Annual General Meeting (AGM). This procedure applied to Mr. Gymnopoulos and Mr. Glezakos. Mr. Nembhart, who was not an OABO member, had to file a notice of appeal with the secretary-treasurer within 30 days. His appeal would have been dealt with by an appeals committee created by the executive, had it proceeded.

[27] The Applicants retained counsel to represent them shortly after receiving the disciplinary letter. They filed their appeal on June 5, 2015. Mr. Nembhard withdrew his appeal prior to it proceeding on the basis that he did not accept the fact that OABO had any jurisdiction over him as a non-member. On July 15, 2015, counsel for the Applicants had a telephone conversation with Mr. Thorne about the appeal process. During this conversation, counsel asked for disclosure of all documents in OABO’s possession in relation to the complaint, the conduct of the investigation, the April 16, 2015 conference call, the discussion of the executive committee on May 1, 2015 and the written decision of May 7, 2015. The only additional disclosure that was provided prior to January of 2016 was a copy of the Twitter comments posted and re-tweeted by Mr. Gymnopoulos.

[28] The 2015 AGM was scheduled for September 13,2015. OABO has 70 voting delegates, of whom 68 were present at the AGM. The Applicants were all given notice of the hearing, and had the opportunity to have their lawyer present and to produce any evidence they wanted to. Robert Borden was the parliamentarian for the AGM and presided over the hearing of the appeal. Mr. Borden is not, and has never been, a member of OABO. It is apparent that he took his responsibilities in relation to the appeal very seriously. In advance of the AGM, he developed a procedure to be followed that focused on attempting to ensure fairness. Notwithstanding the fact that By-law 7G restricts appeals to procedural issues and new information, Mr. Borden’s process more closely resembled a de novo hearing by permitting the Applicants to have counsel present and call witnesses. I accept that OABO, and particularly Mr. Borden, made their best efforts to create an appeal process that was fair and transparent.

[29] Neither side called any witnesses at the appeal. Most of the time prior to the deliberations was spent dealing with questions asked by the delegates. The issues raised by delegates included questions about the grounds for the sanctions, the process that was followed by the discipline and executive committees, the evidence that had been considered and the previous discipline history of the Applicants. During the hearing, the delegates were read the notice of the April 16, 2015 conference call, the Minutes of that call, the reports of Mr. Holbrook and the game officials, the twitter postings, the May 7, 2015 decision of the executive committee and the Applicants’ notice of appeal.

[30] During his statement to the delegates, Mr. Gymnopoulos said that he had never previously been disciplined by OABO. In fact, Mr. Gymnopolous was disciplined twice in 2014 by YRABO. One of the delegates who was present at the AGM was YRABO’s vice-president. Mr. Carlisle told the delegates that Mr. Gymnopoulos had been disciplined by YRABO twice in 2014, although no details were provided. Mr. Gymnopoulos’ disciplinary history had not previously been referred to in any of the material and was not something that OABO relied upon to justify the imposition of sanctions against him. It is regrettable that it came to light during the question period because it resulted in the delegates considering information that was not previously part of the record.

[31] After brief closing statements were made by the parties, the delegates engaged in a private debate that lasted more than two hours. Mr. Borden presided over the deliberations and in his affidavit stated that the delegates considered the decision of the executive committee, the submissions of the parties, the responses to the delegates’ questions, the contents of the documents that were read aloud and the credibility of the witnesses. A resolution was passed by a majority of the delegates, which upheld the imposition of sanctions but reduced the time period they were in effect for by half in relation to each Applicant. As a result, the sanctions imposed on Mr. Glezakos ended on October 31, 2015. Mr. Gymnopoulos’ sanctions will expire on April 30, 2016. No reasons were provided for the appellate decision, either at the AGM or in the written report dated October 2, 2015. Even though Mr. Nembhard had abandoned his appeal, the OABO executive decided to reduce his sanctions by half and advised him of this decision through counsel.

[32] On December 9, 2015, the Applicants filed this application for judicial review.

Issues

[33] This application raises the following five issues:

1. Is this matter “urgent” within the meaning of Section 6(2) of the JRPA?

2. Is the matter moot in relation to Mr. Glezakos and Mr. Nembhard because the sanctions imposed upon them have expired?

3. Does the court have jurisdiction over OABO?

4. Was there procedural unfairness or a denial of natural justice in the hearing on April 16, 2015?

5. If the original hearing was defective, was it cured by the September 13, 2015 appeal?

Urgency

[34] The JRPA requires an application for judicial review to be heard by the Divisional Court. Section 6(2) makes an exception in cases of urgency when the delay required for an application to Divisional Court is likely to involve a failure of justice. In such situations, a judge of the Superior Court of Justice can hear the application.

[35] In this case, the high school basketball season is almost at an end. The Vaughan Voyageurs are in the playoffs and the OFSAA tournament will take place in early March 2016. If leave is not granted pursuant to Section 6(2) of the JRPA, Mr. Gymnopoulos will miss the remainder of the 2015/2016 high school basketball season. His sanctions will expire before the matter is heard by the Divisional Court.

[36] The Respondent submits that the Applicants are the authors of their own misfortune for failing to act more expeditiously in bringing this application. The Applicants were informed of the result of their appeal at the AGM, but did not receive written confirmation of it until October 2, 2015. This application was filed with the court on December 9, 2015. Any delay after that date was the result of the inherent time requirements of a matter of this nature. The Respondent needed time to file responding material and court space had to be secured for a full day hearing. In fact, the application was originally scheduled to be heard on January 21, 2016, but could not be dealt with on that date through no fault of the parties.

[37] While it did take the Applicants more than two months to file this application after receiving the written appellate decision, there was a three month delay from the time they filed their notice of appeal until the date the appeal was heard. That time was clearly beyond their control. The Applicants were told that the appeal would be heard at the AGM and had no control over when that meeting occurred. While it is possible that this application could have been filed somewhat earlier than December 9, 2015, it is a complicated matter with voluminous material and a lengthy factum in support. As a result, I do not fault either side for the fact that this application could not be heard until February 25, 2016. In any event, there is no evidence to support a submission that if the application had been filed in October or November 2015, it would have already been heard by the Divisional Court. The Respondent did not provide evidence or make submissions about the scheduling of cases in Divisional Court.

[38] In Canadian Football League Players’ Assn. v. Hamilton Tiger Cat Football Club (2003) Corp., [2013] O.J. No. 4394 (S.C.J.), Pardu J. (as she then was) made an order on an urgent basis declaring that the arbitrator tasked to decide whether a football player was a free agent was not functus. The arbitrator was ordered to render a decision on the issue within 15 days. In granting leave to abridge the time for service of the application, Pardu J. took into account the fact that the player was in limbo and the football season would soon be over.

[39] While this case does not involve a professional sports organization, the importance of high school athletics was recognized by the court in Milne v. Nipissing District Secondary School Athletic Assn., [1998] O.J. No. 4678 (G.D.). 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 (at paragraph 21).

[40] Although Mr. Gymnopoulos is a coach and not a player, he has dedicated a large portion of his life to basketball, and particularly to coaching youth. It is part of his identity and something he is deeply committed to. The sanctions imposed by OABO do not prevent him from coaching the team but do mean that he cannot be behind the bench for any games. Every competitive sports team hopes to be in a position to vie for a championship. That is the purpose of the long hours of practice and the preparation in games leading up to the playoffs. I find that being prevented from coaching from the bench in the playoffs is significant not only Mr. Gymnopoulos but also to his players. If I do not grant leave to hear this application, the 2015/2016 basketball season will be over before the matter is heard by the Divisional Court. The loss of the opportunity to coach in the playoffs, and perhaps in OFSAA, is something that cannot be given back to Mr. Gymnopoulos or the Vaughan Voyageurs. For that reason, I find that this matter does fall within Section 6(2) of the JRPA and, accordingly, grant leave for the application to be heard in the Superior Court of Justice.

Mootness

[41] The Respondent raised the fact that the sanctions imposed on Mr. Glezakos and Mr. Nembhard have expired and submitted that this application is moot in relation to them. Neither side pressed this point in oral argument in light of the fact that Mr. Gymnopoulos is still subject to the sanctions so the issues raised on the application must be determined. However, the fact that the sanctions have expired do not render a review of the disciplinary process meaningless from the perspective of Mr. Glezakos and Mr. Nembhard. All of the Applicants fairly raise the impact that the disciplinary process has had on their reputations within the basketball community. There is apparently widespread knowledge of the March 10, 2015 incident and the resulting sanctions. Courts have recognized that the diminution of a person’s reputation can be serious (Canpages Inc. v. Quebecor Media Inc., [2008] O.J. No. 2169 (S.C.J.), Church & Dwight Ltd. v. Sifto Canada Inc., 1994 CanLII 7314 (ON SC), [1994] O.J. No. 2139 (G.D.) and Igbinosun v. Law Society of Upper Canada, [2007] O.J. No. 4791 (S.C.J.)).

[42] Further, if Mr. Glezakos is ever the subject of disciplinary proceedings in the future, the presence of this finding on his record could impact on any sanctions imposed at that time. It is analogous to a sentence appeal in a criminal matter being heard on its merits, even though the appellant has served the original sentence in its entirety. While there may be no practical benefit to a successful appeal, the appellant would not be barred from proceeding with it. As a result, I do not find that the issues raised on this application are moot in relation to Mr. Glezakos and Mr. Nembhard.

Jurisdiction

[43] Section 2(1)1 of the JRPA provides that despite any right of appeal, a court may grant relief in the nature of an order of certiorari on an application for judicial review. The Respondent submits that it is beyond the reach of the courts because it is a private, not-for-profit corporation that does not fall within the scope of public law. In Setia v. Appleby College, 2013 ONCA 753, [2013] O.J. No. 5736 (C.A.), the court held that the jurisdiction to make an order for judicial review does not depend on the decision in question being an exercise of a statutory power. The availability of judicial review pursuant to Section 2(1)1 of the JRPA, turns on whether the decision is of a nature that can be reached by public law and to which a public law remedy can be applied (at paragraph 32).

[44] This determination must be made based on the particular circumstances of each case, taking into account the principles enunciated in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2011] F.C.J. No. 1725 (C.A.). The factors to be considered include:

1. The character of the matter for which review is sought. Is it a private, commercial matter or is it of broader import to members of the public?

2. The nature of the decision-maker and its responsibilities. Is the decision-maker a public body charged with public responsibilities?

3. The extent to which a decision is founded in and shaped by law as opposed to private discretion.

4. The body’s relationship to other statutory schemes or other parts of government.

5. The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity.

6. The suitability of public law remedies.

7. The existence of compulsory power.

8. An exceptional category of cases where the conduct has attained a serious public dimension.

[45] As noted by Nordheimer J. in West Toronto United Football Club v. Ontario Soccer Assn., 2014 ONSC 5881, [2014] O.J. No. 4773 (S.C.J.), the Air Canada factors are not a checklist that involves keeping score. Rather, the factors are to be used as a guide to reach the ultimate conclusion about whether the particular case under consideration is sufficiently public in nature to attract judicial review (at paragraph 21).

[46] In this case, I find that factors 1, 2, 4, 6, 7 and 8 are particularly relevant. With respect to the character of the matter, it does not involve a private business dispute. This is not a contractual dispute between private parties engaged in a business transaction. Rather, it arises out of a game played at a provincial secondary school tournament in a public forum.

[47] OABO has an extremely broad reach over basketball played at all levels in Ontario. It supplies officials for the vast majority, if not all, of the games played by students in elementary and secondary schools across the province. In York Region alone there are approximately 180 secondary school basketball teams and OABO has the exclusive contract to officiate all of the games those teams play. OABO also has the exclusive contract to supply officials for every OFSAA basketball tournament.

[48] OABO is the only organization for basketball officials in Ontario. Its constitution gives it the authority to deal with complaints in relation to “officials, players, coaches, bench personnel, administrators or others associated with a team”. When one takes into account the players, coaches and parents affiliated with teams that OABO supplies officials to, the number of people it has the potential to impact can be described as considerable. Decisions made by OABO have the potential to affect a significant number of people and therefore have a broad public import. As a result, it is charged with public responsibilities as described in factor 2.

[49] With respect to the fourth factor, while OABO is not a government agent, it does provide officiating services to school boards across the province. Therefore, it has a close affiliation and contractual relationships with a branch of the government.

[50] The public law remedy sought by the Applicants, specifically an order by way of certiorari setting aside the disciplinary decision of OABO’s executive committee, is an appropriate way to deal with this matter if the process was flawed. In fact, the Respondent was unable to point to an equally effective alternate remedy.

[51] While membership in OABO is voluntary for basketball officials, it nonetheless exercises a compulsory power over many other people, including Mr. Nembhard. Despite the fact that he has never been a member of OABO, Mr. Nembhard was sanctioned by the Respondent. As noted, in its constitution OABO gives itself the power to deal with complaints in relation to people who are not members. While OABO cannot suspend coaching or playing privileges, by ordering a withdrawal of services in relation to non-members, it can create the same effect. It clearly exercises a compulsory power over a large segment of the public.

[52] Finally, it can also be said that OABO’s conduct has a serious public dimension to it. In all likelihood there is no matter of greater public concern in youth sports than respect for the game and the officials. This impacts not only basketball but every sport played by youth across the province. At the core of OABO’s mandate is the desire to promote respect for the sport and officials. This is an admirable and vitally important goal. It is one that should be shared by everyone who participates in any way in youth sports, whether as a coach, player or spectator. The fact that it lies at the heart of OABO’s constitution is evidence of the impact that the Respondent’s actions can have on the public at large. A message sent by OABO through its disciplinary process has the ability to impact the attitudes and behaviour of thousands of people involved in youth basketball across Ontario.

[53] There are many examples of cases where organizations similar to OABO have been found to fall within the scope of public law. For instance, in Rankin v. Alberta Curling Federation Appeals Committee, 2005 ABQB 938, [2005] A.J. No. 1759 (Q.B.), the court found that a disciplinary decision of the curling federation was subject to judicial review. Nordheimer J. found that the activities of the Ontario Soccer Association fell within the purview of public law in West Toronto United Football Club, supra. Other examples of private organizations being subject to judicial review include Khan v. University of Ottawa, 1997 CanLII 941 (ON CA), [1997] O.J. No. 2650 (C.A.), Milne, supra, Chyz v. Appraisal Institute of Canada, [1985] S.J. No. 820 (C.A.), Hammond v. Hamilton-Wentworth District School Board 2005 CanLII 44389 (Ont. S.C.J.) and Kane v. University of British Columbia, 1980 CanLII 10 (SCC), [1980] S.C.J. No. 32.

[54] Taking into account all of the circumstances of this case and applying the factors set out in Air Canada, I find that the disciplinary decision of the OABO executive made on May 7, 2015 is subject to judicial review.

Procedural Fairness on April 16, 2015

[55] The disciplinary procedure engaged in by OABO must have afforded the Applicants natural justice and procedural fairness in order to be valid. In determining whether OABO complied with the duty of procedural fairness, the appropriate standard of review is one of correctness (Mission Institution v. Khela, 2014 SCC 24, [2014] S.C.J. No. 24 at paragraph 79). There has long been a recognition that boards comprised of lay people cannot be expected to comply with the same formal technicalities as a court does (see for example Kane, supra, Hashi v. Canada (Minister of Citizenship and Immigration), 2014 FC 154, [2014] F.C.J. No. 167 and MacDonald v. Windsor-Essex County Real Estate Board (1982) 1982 CanLII 1902 (ON SC), 38 O.R. (2d) 589 (H.C.J.)).

[56] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the court stated that the duty of fairness owed by an administrative body is flexible and depends on the circumstances of each case. However, the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, and that those people who may be affected by a decision have the opportunity to fully advance their views and any evidence they wish to call for consideration by the decision-maker (at paragraph 22).

[57] The basic requirements of natural justice are notice, an opportunity to be heard and an unbiased tribunal. It is insufficient to merely advise a member of an organization that his or her conduct is going to be considered at a meeting (Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165 at page 195). Even in cases where a decision with respect to sanctions is obvious, the affected party is still entitled to procedural fairness (at page 222).

[58] In Rankin, supra, the court found that the failure of the review committee of the Curling Federation to notify the curlers that they faced a possible suspension was a clear violation of procedural fairness (at paragraph 57).

[59] Certain circumstances require a heightened level of procedural fairness. For instance, in Kane, the Supreme Court of Canada stated that a high standard of justice is required when the right to continue in one’s profession or employment is at stake (at page 8). Similarly, in Igbinosun, supra, Lane J. held that proceedings that involve the loss of a person’s ability to earn income attract the highest level of fairness (at paragraph 4). The suspension of Mr. Gymonpoulos’ and Mr. Glezakos’ membership in OABO deprived them of the opportunity to earn income by officiating basketball games. While this was not their primary source of income it was, nevertheless, a deprivation of their ability to work as officials for a significant period of time.

[60] In Kane, the court also said that it is a “cardinal principle of our law” that an adjudicator must not hold private interviews with witnesses in the absence of the party whose conduct is under scrutiny. The affected party must know the case against him, know what evidence and statements have been made affecting him and have a fair opportunity to correct or contradict them (at page 8). The court cited a case that involved an umpire, taking into consideration evidence which had not been communicated to the other side. In the case cited, this conduct was described as a matter of substance that was of “the last and deepest importance”. The court, in Kane, also referred to one of its own decisions that held that it is clearly contrary to the rules of natural justice to rely on information obtained after a hearing has been completed without disclosing it to the parties and giving them an opportunity to respond to it (at page 9).

[61] In addition, Kane states that a court conducting a review will not inquire about whether the evidence that was not disclosed actually caused prejudice to one of the parties. It is sufficient if it might have done so. The court found that it was a fundamental error for the board to have considered evidence that Dr. Kane was not made aware of (at page 10).

[62] Taking into account the legal principles concerning the requirements of natural justice and procedural fairness, the following is a list of what I consider to be serious defects in the April 16, 2015 hearing:

1. A fair reading of Mr. McCaig’s April 2, 2015 email would not alert anyone to the possibility that serious sanctions, including lengthy suspensions and a withdrawal of services, were being considered. The notice did not include the words “discipline”, “Code of Conduct”, “major violation”, “suspension” or “withdrawal of services”. The tone of the email was quite informal and consistent with having a discussion to gather information. The Applicants’ belief that the call was simply to gather information is understandable in light of the content and tone of Mr. McCaig’s email. If Mr. McCaig’s email was intended to be a formal notice about a disciplinary hearing, it was wholly insufficient.

2. The Minutes of the April 16,2015 call also do not contain the words “discipline”, “Code of Conduct”, “major violation”, “suspension” or “withdrawal of services”. According to the Minutes, at the end of the call Mr. McCaig advised the parties that the OABO executive would make a “final decision of recourse”. There is nothing in the Minutes to suggest that the Applicants were made aware that they could expect to be subjected to significant sanctions in the immediate future.

3. By-law 7F appears to require a written complaint to initiate the discipline process. If such a document was created, it has never been provided to the Applicants. If OABO is relying on Mr. Holbrook’s report as being the initiating document, it fails to comply with the requirement of the by-law to “clearly indicate the aspect of the Code of Conduct which the complainant believes has been violated”.

4. Mr. Nembhard was not notified of the April 16, 2015 hearing by OABO. It is not acceptable for an organization to delegate responsibility for notifying a person who they may impose sanctions on to someone else. Mr. Gymnopoulos and Mr. Glezakos had no obligation to forward the notice and attachments to Mr. Nembhard. The fact that Mr. Nembhard became aware of the call does not compensate for the lack of formal notice by OABO.

5. Two of the key participants in the March 10,2015 incident were not available for the conference call. Mr. Holbrook had the most involvement with the Applicants and was not present during the hearing to answer any questions they may have had for him. Mr. Nembhard could not participate in the call due to a work commitment. To forge ahead with the call in those circumstances, in the absence of any urgency, was inappropriate. It is not an answer to say that the Applicants did not seek to reschedule the call. There was nothing in Mr. McCaig’s email to suggest to them that they had the ability to do so. They were told of the date and time of the call with no alternative proposed.

6. The Applicants were only provided with the first page of the game officials’ report prior to the meeting. The paragraph authored by Mr. Spooney entitled “comments to be added” was not included. In fact, they did not receive this part of the report until January of 2016 when it was provided as an appendix to Mr. McCaig’s affidavit in response to this application. However, members of the discipline and executive committee had access to the full report. The Respondent has explained that Mr. Spooney’s portion of the report was unintentionally omitted from the copy that was provided to the Applicants.

7. There was no reference in Mr. McCaig’s April 2, 2015 email to Mr. Gymnopoulos’ Twitter comments. However, those comments were one of the five factors that the committee relied on in its decision to impose sanctions. Mr. Gymnopoulos was not given notice that this aspect of his behaviour was being considered by OABO. The Applicants were not provided with a copy of the Twitter comments as an attachment to the April 2, 2015 email. If they had been, that might have been some notice that the discipline committee was going to consider them. Further, in its written decision, the executive committee misapprehended the Twitter evidence by describing it as having been posted “continuously for several days”. In fact, all of the impugned comments were posted on March 10, 2015.

8. The executive committee relied upon statements made by Mr. Holbrook to Mr. Thorne prior to the conference call. Mr. Thorne stated that Mr. Holbrook told him that Mr. Nembhard sprayed him with spittle and had to be pushed away by Mr. Gymnopoulos. Mr. Thorne acknowledged in his affidavit that he did not raise this during the conference call. He said he forgot about it because Mr. Holbrook did not participate in the call. This illustrates the folly of having proceeded with the conference call in the absence of all of the key participants. In addition, it makes it clear that the executive committee considered statements that the Applicants were not aware of and had no ability to respond to. These additional allegations by Mr. Holbrook were never reduced to writing by him, and the Applicants were not aware of how they came to light until receiving Mr. Thorne’s affidavit in response to this application.

9. Although Mr. Thorne’s affidavit states that Mr. Nembhard was so agitated that he “sprayed” Mr. Holbrook with spittle, the May 7, 2015 decision of the executive committee says that Mr. Nembhard was “spitting on” Mr. Holbrook. The distinction between the two characterizations may appear to be trivial. However, spraying someone with spittle due to being agitated suggests an unintentional act, while spitting on someone could be seen as deliberate. Because of the fact that this information was never received from Mr. Holbrook directly, there is no way of knowing which version is accurate. In addition, it is concerning that there was no reference to either the spitting or Mr. Gymnopoulos pushing Mr. Nembhard away in Mr. Holbrook’s official report. This is particularly significant if this report is meant to be the document that initiated the discipline process pursuant to By-law 7F.

10. It is impossible to determine from Mr. Holbrook’s report which of the two assistant coaches he is referring to when he describes the altercation. He does not provide the name of the assistant coach or a description of him. Based on his report, he appears to have only dealt with one of Vaughan’s assistant coaches but it is unclear whether it was Mr. Nembhard or Mr. Glezakos. Mr. Holbrook’s report does not provide either of them with adequate notice of what it is they are alleged to have done.

11. In Mr. McCaig’s affidavit, he states that the Applicants’ conduct was reported to him by “several other witnesses to the event” who provided him with specific comments about their observations. There is no information about how many additional people Mr. McCaig spoke to or who they were. There is no written record of their comments and the Applicants learned about this information for the first time in Mr. McCaig’s affidavit. This raises a concern that the executive committee considered comments from several unidentified people without the Applicants being made aware of this information.

12. There is no explanation provided in the decision of May 7, 2015 as to how the length of the sanctions was arrived at. Specifically, there is no reason given for the fact that Mr. Gymnopoulos was subjected to sanctions for twice as long as Mr. Nembhard and Mr. Glezakos. This is particularly concerning if the allegation that Mr. Nembhard intentionally spat on Mr. Holbrook is true, and that Mr. Gymnopoulos assisted Mr. Holbrook by pushing Mr. Nembhard away.

[63] I accept that the non-disclosure of certain documents and additional information was unintentional. I do not believe that OABO or any member of its executive was attempting to be unfair to the Applicants. However, any of the above irregularities alone would likely be sufficient to result in a finding of procedural unfairness. Taken cumulatively, they are overwhelming evidence of a failure by OABO to conduct the discipline hearing in accordance with the rules of fairness and natural justice.

The Effect of the Appeal

[64] A properly conducted appeal can cure procedural defects in the original disciplinary hearing (McNamara v. The Ontario Racing Commission 1998 CanLII 7144 (Ont. C.A.) at paragraph 26). Whether that occurs in a particular situation depends on the seriousness of the initial errors, the procedure followed by the appellate body, the powers of the appellate body, the way those powers were exercised and the weight the appellate body attributes to the initial decision. The closer the appeal is to a complete reconsideration of the matter, the more likely it is to cure the original defects (Khan, supra, at paragraphs 39 and 41).

[65] If full disclosure has not been provided at the time of the appeal, a denial of natural justice at that stage can occur. For instance, in Milne, supra, the failure of the transfer committee to provide the Applicant with a memo it had in its possession was found to cause a denial of natural justice in the appeal proceedings (at paragraph 18).

[66] OABO and Mr. Borden are to be commended for the efforts they made to infuse procedural fairness into the appeal heard by the delegates at the AGM. Although By-law 7G limits appeals to matters involving procedural errors and new information, the process afforded to the Applicants more closely resembled a de novo hearing.

[67] However, given the seriousness of some of the initial errors, the appellate process was not sufficient to cure the procedural defects in the original hearing. Several of the pre-existing problems had not been cured prior to the appeal including:

1. The Applicants still did not have a copy of the complete report by the game officials.

2. The Applicants had not been told that Mr. Thorne had a private conversation with Mr. Holbrook during which the allegations about the spittle and pushing were made.

3. The Applicants had not been provided with a copy of the Minutes of the April 16, 2015 call prior to the appeal hearing. While the minutes were apparently read aloud to everyone at the AGM, the Applicants should have been given a copy in advance if they were going to be relied upon by the Respondent.

4. The Applicants were not advised that Mr. McCaig had received information from “several other witnesses” to the incident on March 10, 2015.

[68] In Kane, the court made it clear that it is a fundamental error for a member of a disciplinary body to receive information about the event in question from a third party without providing full disclosure of it to the person whose conduct is being reviewed. Doing so transforms a process that must be open and transparent into one that is shrouded with secrecy. A person whose conduct has been impugned must at all stages be aware of the evidence against them. If they are not, they do not have a meaningful opportunity to defend themselves.

[69] The Applicants are not required to establish that they suffered actual prejudice as a result of the non-disclosure. It is sufficient if the breach of procedural fairness may have done so (Khan at paragraph 34). In this case, the reasons of the disciplinary committee dated May 7, 2015 made specific reference to the information provided by Mr. Holbrook to Mr. Thorne privately. The reasons were read to the delegates at the AGM, so they too were aware of this information. While Mr. Nembhard had abandoned his appeal, the contradictory accounts of the spittle and Mr. Holbrook’s failure to include any reference to it in his report were still relevant to the reliability of his account of the events. In his affidavit, Mr. Borden disclosed that the delegates considered the credibility of the witnesses, which presumably would have included Mr. Holbrook.

[70] With respect to the information Mr. McCaig received from the unnamed witnesses, it is impossible for the Applicants to know if that caused them actual prejudice. To date there has been no disclosure about the particular details these people provided to Mr. McCaig. If the accounts of these witnesses varied in any material way from that of Mr. Holbrook or the two game officials, that could impact on the reliability of the information they provided. It is certainly possible that non-disclosure of this information was prejudicial to the Applicants.

[71] A final issue that impacts on the fairness of the appeal procedure is the discussion about Mr. Gymnopoulos’ prior disciplinary history with YRABO. While it may be argued that he brought this topic up by advising the delegates that he did not have a disciplinary history, the delegates were given information by Mr. Carlisle that had not previously been relied upon by OABO. Knowing that Mr. Gymnopoulos had been disciplined in the past can reasonably be expected to have had an impact on the decision of the delegates. In Lee v. Canadian Kennel Club Appeal Committee 2003 ABQB 51, the court found that reference to past events involving Mr. Lee by the discipline committee was of great importance and created an irresistible inference that the committee was influenced by it (at paragraphs 120 to 123).

[72] Because the delegates did not provide any reasons for their decision, it is impossible to know with any precision what information they relied on and to what extent. However, Mr. Borden stated in his affidavit that the delegates did consider the responses to the questions that were asked. This could include the questions about Mr. Gymnopoulos’ prior disciplinary history.

[73] The Respondent relies heavily on the fact that the delegates reduced the sanctions imposed on Mr. Gymnopoulos and Mr. Glezakos by half to support its position that the appeal process was highly effective. In the absence of reasons, there is no way of knowing what led them to do so. It is noteworthy that the delegates agreed with the executive committee that lengthy suspensions and withdrawals of services were necessary, and that Mr. Gymnopoulos deserved twice the punishment as Mr. Glezakos did. This suggests that the delegates were heavily influenced by the original decision of the executive committee.

[74] In the circumstances of this case, notwithstanding the fact that the appeal process resembled a de novo hearing, I am not satisfied that it was sufficient to cure the serious defects in procedural fairness that tainted the original discipline hearing.

Order

[75] For the foregoing reasons, I find that the disciplinary process engaged in by OABO in relation to the Applicants lacked procedural fairness that was not cured by the subsequent appeal. The May 7, 2015 decision of OABO imposing sanctions on the Applicants is therefore set aside.

[76] If counsel are unable to agree on costs, written submissions of not more than three pages in length can be submitted within thirty days of receipt of this judgment.

Justice L. Bird

Released: March 2, 2016