Erin Mills Soccer Club v. Ontario Soccer Association, 2016 ONSC 7718

CITATION: Erin Mills Soccer Club v. Ontario Soccer Association, 2016 ONSC 7718

COURT FILE NO.: CV-16-549650

DATE: 20161215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ERIN MILLS SOCCER CLUB, NORTH MISSISSAUGA SOCCER CLUB

Applicants

– and –

ONTARIO SOCCER ASSOCIATION, PEEL HALTON SOCCER ASSOCIATION

Respondents

Glenroy K. Bastien, for the Applicants

Kurt K. Pereira, for the Respondents

HEARD: July 19, August 2 and October 14, 2016

REASONS FOR DECISION

DIAMOND J.:

Overview

1By late 2015, the Mississauga Soccer Club (“MSC”) had been suffering through several months of significant financial difficulties. It became apparent that MSC would not be able to continue as a member of the respondent Peel Halton Soccer Association (“Peel”) for the upcoming 2016 season. As a result, all of the players previously registered with MSC would need to continue playing with different soccer clubs.

2The players (and parents) on a few MSC teams were desirous of staying together as a collective unit, and were looking to transfer their teams “en masse” to new soccer clubs.

3While I will summarize the salient facts in greater detail hereinafter, ultimately the applicants, Erin Mills Soccer Club (“Erin Mills”) and North Mississauga Soccer Club (“North”) were willing to accept (in total) three MSC teams. Those transfers were ultimately not approved by Peel and its governing body the respondent Ontario Soccer Association (“OSA”).

4On behalf of the three MSC teams, the applicants commenced this application seeking, inter alia, an order in the nature of certiorari requiring the respondents to reverse their decision, and an order substituting those decisions with a judgment granting transfer position status with Erin Mills and North to the three MSC teams.

5On April 28, 2016, this application proceeded on an urgent basis before my colleague Justice Akhtar, who (a) granted the applicants injunctive relief which effectively compelled the respondents to permit the three MSC clubs to play the 2016 season with Erin Mills and North, and (b) adjourned the application “for a discrete mini-trial on the sole issue of whether Peel told the applicants that they would be permitted to play in the Elite League subject to satisfying certain conditions” (ie. a trial of an issue).

6Justice Akhtar did not seize himself of that trial of an issue, which subsequently proceeded before me over the course of three days.

7The scope of the evidence tendered at trial ultimately transcended the narrow issue ordered to be tried. Notwithstanding the fact that the hearing of this application did not conclude until after the 2016 soccer season was over, the Court was still asked to determine, inter alia:

a) whether the Court has jurisdiction to hear the applicants’ request for judicial review under the Judicial Review Procedure Act R.S.O. 1990 C.J.1. (“JRPA”); and,

b) if the Court does have jurisdiction, what remedy ought to be granted in the circumstances of this case?

8At the conclusion of the hearing I took my decision under reserve and waited for written closing submissions from the parties. I have now reviewed those submissions.

9These are my Reasons.

The Parties

10The OSA is a not-for-profit corporation that promotes, develops and governs soccer in the province of Ontario. According to the evidence of its president Ron Smale (“Smale”), the OSA is primarily a voluntary organization funded by member dues and overseen by a Board of Directors consisting of representatives from its 21 district associations.

11Peel is a not-for-profit corporation, and one of the OSA’s district associations overseeing the Peel-Halton Region. Peel’s president is William Hay (“Hay”). Neither the OSA nor Peel are governmental actors, agencies or adjuncts.

12As a district association, Peel managed various leagues including the Golden Horseshoe Soccer League (“GHSL”) and the Youth Peel Halton District League (“YPHDL”). GHSL was created for elite competition for players aged under 14 to under 18. YPHDL was established for district completion for players aged under 13 to under 18 in premier level of play.

13Prior to its membership being placed “not in good standing”, MSC was a Peel member soccer club. The president of MSC was Tony Krosel (“Krosel”).

14Erin Mills and North remain Peel member soccer clubs. Erin Mills’s president is Tim Hocking (“Hocking”). North’s president is Trevor Bertrand (“Bertrand”).

The Teams

15As stated, the applicants bring this application on behalf of three former MSC teams:

a) the 2001 boys soccer team which last played as an MSC team in the GHSL’s Elite Division. The 2001 boys team finished first in that Elite Division at the end of the 2015 season.

b) the 2001 girls soccer team which also last played as an MSC team in the GHSL’s Elite Division during the 2015 season. The 2001 girls team was the second ranked team representing Peel in the Elite Division,

c) the 2000 girls soccer team which last played as an MSC team in the Ontario Youth Soccer League (“OYSL”, a top league for under 16-18 players in Ontario), and finished third in their division.

OSA Policy

16In or around 2013, OSA shifted its player development focus from its historical “team-centric” approach to a “player-centric” model. The respondents referred to these principles as Long Term Player Development (“LTPD”) which apparently follows national player development models in other leading soccer-playing countries.

17An OSA publication entitled “How Soccer in Ontario is Changing” was distributed by the OSA to its members in the spring of 2013, and set out the OSA’s new philosophy in detail. Notably, the key principle of OSA’s new philosophy was that the needs of the player be put first in all decisions.

18The respondents submitted that this new approach was well known to the applicants. Both Krosel and Bertrand gave evidence at trial that by 2015, they both knew that the OSA had chosen to implement a player-centric development approach.

MSC’s Financial Difficulties

19There is no dispute between the parties that MSC suffered through an extended period of financial difficulty. Both the OSA and Peel exerted efforts to assist MSC with its financial re-organization, but those efforts did not produce the intended results.

20In mid-March 2015, Peel sent a letter to the coaches, players and parents of MSC seeking to reassure them that, at the time, MSC remained a club in good standing with Peel, and that MSC’s competitive teams would have a full 2015 outdoor season. Behind the scenes, Peel and OSA were likely guilty of “wishful thinking”, but the letter was sent with a view to calming any concerns on the part of MSC staff, parents and players.

21Unfortunately, that was MSC’s last season as its financial difficulties did not improve. The proverbial writing was on the wall, as Krosel testified that by the 2015 summer season he was having conversations with both Smale and Hay with a view to potentially transferring MSC competitive teams to other soccer clubs.

22By e-mail dated August 13, 2015, Hay advised Krosel as follows:

“If the players and coach decide for whatever reason to register with another club there is no placement retention. The positions at provincial, regional and district leagues are Club positions not team or coach positions.

If Erin Mills was to sign some players or a coach they (Erin Mills) could assign that group to an Erin Mills league position but not a position previously held by the Falcons (note – this is the MSC team name). The example would be GHSLU14B. Currently the Falcons have a position in Elite, Erin Mills has a position at Premier and First.

If the current Falcons’ coach and some players from the team were to sign with Erin Mills that Club could choose to have this “new” squad play at the Premier level in 2016 or the First division or as a new team in the First level but would not retain a position previously held by the Falcons in Elite.”

23In response, Krosel delivered the following e-mail to Hay:

“Okay, but based upon my past conversations with Ron and yourself, MSC can give their spots to Erin Mills, as long as Erin Mills doesn’t have a team in the same division. For OYSL, we can give our spot to Erin Mills and there are no restrictions.

Correct?”

24Hay then answered Krosel’s question and provided OSA’s position as follows:

“No a Club cannot give league positions to another Club. In the past a Club was able to apply to the OSA to transfer a team’s position in Provincial or Regional leagues however that was discontinued some time ago. In addition Erin Mills (or any Club) should be worried that those positions should be considered an asset of the MSC which would open the Club to debt exposure.”

25Later that same day (still August 13, 2015), Krosel and Hay participated in a conference call. They discussed the state of MSC and its competitive teams. In handwritten notes taken by Krosel during the conference call, he wrote down as follows:

“Rules don’t allow.

Request to Deviate – district to OSA. District needs to get majority agreement for clubs. Ron can vocally support at PHSA pres meeting.”

26Accordingly, it appears that Krosel was aware that any potential team transfers from MSC to another soccer club would require a majority vote of the Peel member soccer clubs.

27By letter dated September 15, 2015, Peel advised MSC that effective that day, MSC’s status with Peel had been placed in “not in good standing”, and until such time as MSC met all its outstanding accounts and obligations to the satisfaction of Peel’s Board and Directors, Peel would have no further dealings with MSC.

28While Peel was technically not required to continue dealing with MSC or Krosel, it continued to do so in response to Krosel’s request for assistance in potentially transferring MSC competitive teams to other soccer clubs.

The August 25, 2015 Meeting

29Peel thereafter convened a meeting of its member soccer clubs to discuss two issues: (a) an issue relating to referees for the upcoming 2016 season (the “referee issue”, which was unrelated to the issues in this application), and (b) MSC’s request for the transfer of some of its competitive teams to other soccer clubs (the “transfer issue”).

30In advance of the meeting, Peel had circulated an agenda among its member soccer clubs which described the transfer issue as follows:

“Request 2 The Mississauga Soccer Club has been looking to address the stability for the remaining competitive teams currently registered to MSC. They have had discussions with some member clubs looking for a program to transfer their team too.

The OSA/PHSA have advised on a number of occasions that players/coaches are not the property of the Club and are free to move to the club of their choice at the end of the season. MSC has indicated that these teams wish to stay together.

The OSA/PHSA have advised MSC that the positions currently held by MSC in various leagues are in fact Club positions and not team positions. Those positions are not transferable to another club.

The joint request by Erin Mills Soccer Club with the support of the Mississauga Soccer Club (See Attachment 2) asks for the members’ support for the MSC teams to be transferred to Erin Mills and the following action be taken:

That the members agree and support:

• The transfer of team positions for the Peel Halton District League Youth by PHSA.

• The recommendation to the Golden Horseshoe Soccer League to transfer the team positions from MSC to Erin Mills where no conflict arises; and

• To recommend to OSA League Management that the MSC team positions be transferred to Erin Mills for teams in OYSL and OSL.

Request 3

That PHSA can be in a meeting where the member clubs can entertain a presentation from MSC and Erin Mills on these requests. The members will have the opportunity to ask questions and vote on the questions.”

31The meeting took place on August 25, 2015, and was attended by most of the presidents of the Peel member soccer clubs. Krosel, Bertrand, Hocking and Hay were all present at the meeting. Smale participated by telephone. All five testified at trial, as did Frank Stradiotto (“Stradiotto”, the president of Clarkson Soccer Club) who also attended the August 25, 2015 meeting.

32The referee issue was passed by vote of the Peel member soccer club presidents. The focus then shifted to the transfer issue.

33Krosel testified that he had to leave the August 25, 2015 meeting before the transfer issue was discussed among the presidents. Krosel admitted that he had no personal knowledge of what happened at the meeting after he left.

34Bertrand testified that there was somewhat of an “uproar” during the meeting, as many presidents questioned why the applicants would be the sole beneficiaries of MSC ceasing operations. Several presidents were of the opinion that the players were free to re-register with other soccer clubs individually (assuming there was space), but did not believe it was fair that the applicants simply inherit “ready-made” competitive teams.

35Hocking testified that with the exception of North, the transfer issue was “not well received by the Peel members…as for the most part the presidents did not feel that it was fair that Erin Mills obtain so many teams.”

36Stradiotto testified that during the meeting, the presidents began talking in smaller groups, and although there was not much support for the transfer issue he personally didn’t care as Clarkson did not have spots for any of the potential competitive teams in any event.

37Both Hay and Smale were clear in their evidence that the transfer issue was raised and discussed by the presidents, but there was little to no support behind it.

Was There a Vote?

38Witnesses called by both parties respectively disagreed as to whether a formal vote on the transfer issue was taken at the conclusion of the August 25, 2015 meeting.

39Hay and Smale testified that the presidents did vote, and voted against the transfer issue (ie. the MSC competitive teams could not transfer to Erin Mills and North). Their evidence was supported by Stradiotto, who testified that he along with the other presidents voted against the transfer issue.

40Hocking testified that no vote was taken on the transfer issue. Bertrand testified that the transfer issue was “unresolved” by the end of the meeting. I note that Hay testified that he recalled Bertrand voting against the transfer issue although Bertrand gave evidence that no vote took place and the transfer issue was to be re-visited “at some other time.”

41For his part, Krosel had no personal knowledge as to whether a vote took place or not, but he testified that after the August 25, 2015 meeting Hay advised him that there was not enough support from the presidents in favour of the transfer issue, and a vote wasn’t taken at the end of the meeting because “it would not have passed.”

42I find that regardless of whether an actual vote was taken on the transfer issue at the conclusion of the August 25, 2015 meeting, it is clear that the Peel member soccer club presidents did not support MSC’s request to transfer the competitive teams to Erin Mills and North.

OSA Operational Procedure 22.2.2.1

43The applicants called an additional witness, Nikki Allen (“Allen”, a parent and team manager of the 2001 boys soccer team). Allen testified that as a result of the respondents allegedly ceasing communication with Krosel (something which, ironically, the respondents were permitted if not mandated to do given MSC’s loss of standing), she began sending email correspondence to Hay and Smale seeking direction and assistance with the transfer of the 2001 boys soccer team to another soccer club.

44Allen testified that she (and Bertrand) did not receive any substantive responses from the respondents between September - November 2015. However, in one of her emails sent on October 19, 2015, Allen referenced and reproduced section 22.2.2.1 of the OSA’s Operational Procedure (“OP22”). Section OP22 provides as follows:

“If a Club decides to discontinue the operation of its “Team Position Status” in a division of a Youth League and it wishes to permit the majority of players who played for that “Team Position Status”, to continue playing for that “Team Position Status”, it may transfer the “Team Position Status” to another Club providing that:

1. there is an exceptional reason why the Club can no longer continue operating its “Team Position Status” including, but not limited to:

2. the Club has terminated or is terminating its operations

3. the Club is merging its operations with another Club, and

4. the Club is not permitted to operate that “Team Position Status” by its municipality

5. both Clubs agree to the transfer,

6. the involved League is advised of the proposed transfer,

7. the involved District Association(s) approves the transfer,

8. the appropriate League Management Committee(s) approves the transfer,

9. the Club receiving the TPS transfer applies to play in the league prior to the league’s deadline for entering teams in that league, and

10. the team registers at least nine of the players from the previous playing season.”

45Up to late November 2015, there was little to no evidence that section OP22 was ever offered by the respondents as an option the applicants and/or MSC could have pursued.. It appears that by doing her own research, Allen came across section OP22 as a potential way for the MSC competitor teams to be transferred to other Peel soccer clubs.

46Of note, section OP22 changed in February 2016, but the above quoted section was valid and in place during the relevant transfer issue time period. In cross-examination, Hay testified that section OP22 was drafted during the period when the OSA’s focus was more “team-centric”, and was thus “out of touch” with OSA’s newer approach.

The December 3, 2015 Meeting

47In or around late November 2015, Smale requested a meeting at the OSA offices to address and discuss the team transfer issue. While the applicants argue that Smale’s request for a further meeting was evidence that no vote in fact took place at the end of the August 25, 2015 meeting, it appears that by late November 2015 Smale was aware of section OP22 and, presumably, the follow up meeting was scheduled to address the impact and application of section OP22.

48Smale, Hay, Krosel, Bertrand and members of the OSA League Management Committee were all present either in person or by telephone at the December 3, 2015 meeting. Smale testified that section OP22 was discussed in detail during that meeting, but all attendees were advised that section OP22 was “not mandatory or automatic, but discretionary in nature”.

49Both Smale and Hay testified that with respect to “the involved District Association” providing its approval (ie. condition 4 in section OP22), any formal transfer application would need to proceed to a vote of Peel’s Board of Directors. As president of Peel, Hay did not have a casting vote unless the votes among Peel’s Board of Directors were tied.

50Krosel testified that nobody at the December 3, 2015 meeting ever represented that approval of the transfer issue (whether from OSA or Peel) was granted or forthcoming.

51Bertrand testified that he never had any clear indication that the team transfers would in fact happen, as neither Smale nor Hay made any representations or promises with respect to a transfer application(s) being approved.

The Vote

52Erin Mills, North and MSC submitted formal applications to Peel in respect of the transfer issue. The next Peel board meeting was not scheduled to take place until January 27, 2016, and OSA League Management Committee meetings would not take place until after a Peel vote. As a result, a vote by the Peel Board of Directors was expedited to allow the matter to be considered as soon as possible.

53By email dated December 7, 2015, Hay communicated the results of the Peel vote to Krosel and Bertrand. The salient contents of that email are as follows:

“Therefore based on the need to expedite the process and with information presented at the meeting I circulated the transfer request to the PHSA BOD and asked for their responses to be delivered via an email vote.

The Board considered:

• The movement of the players to PHSA Clubs.

• The fact that the Mississauga Soccer Club is no longer a member of the Association; and

• Fairness to the Clubs to know their positions from the 2016 outdoor season and players to make decisions on their pathways.

The PHSA BOD has unanimously voted (with one extension due to conflict of interest). The PHSA will not support the transfer request(s).

With this message the OSA League Management is advised of our non-support.”

54The applicants submit that they met all of the conditions under section OP22 save for obtaining the transfer approval of the OSA and Peel. The applicants further submit that Hay’s December 7, 2015 email evidences a vague decision with no clear reasoning, and that the decision was “dismissive and disingenuous”.

No Appeal Taken

55There is no dispute between the parties that: (a) there are appeal routes and procedures within the OSA Operational Procedure, (b) North never pursued any of those appeal routes or procedures, and (c) on December 21, 2015, Erin Mills did file an application for leave to appeal on behalf of the 2001 boys team.

56By Reasons dated January 7, 2016, the OSA dismissed Erin Mills’ application for leave to appeal, specifically rejecting Erin Mills’ position that Peel was influenced by bias as Erin Mills “failed to indicate why it felt the Peel decision was so influenced…nor was any evidence provided to support the suggestion that Peel was or had reason to be biased against Erin Mills”.

57Erin Mills had a right of further appeal from the OSA decision to the Canadian Soccer Association (“CSA”). Erin Mills did not pursue any such appeal of the OSA decision to the CSA.

The Akhtar Order and the 2016 Season

58As previously stated, on April 28, 2016 Justice Akhtar granted the applicants injunctive relief. That order effectively compelled the respondents to permit the three MSC competitive clubs to play with Erin Mills and North.

59As a result of Justice Akhtar’s order, and the time it took for the hearing of the trial to be completed, the three MSC competitive teams were able to play the 2016 Season with Erin Mills and North.

Does this Court Have Jurisdiction to Hear the Application?

60This application was brought under section 2(1)1 of the JRPA seeking review of the decisions of the OSA and Peel for an order in the nature of certiorari. While applications for judicial review under the JRPA typically relate to the review of a statutory power (or a decision by a governmental actor operating under a namely legislation), the availability of judicial review is not solely dependent on the decision in question being an exercise of a statutory power. As held by the Court of Appeal for Ontario in Setia v. Appleby College 2013 ONCA 753, the Court’s jurisdiction provided in section 2(1)1 of the JRPA turns on whether the decision sought to be reviewed is the type of decision reached by public law, and therefore a decision to which a public law remedy can be applied.

61In Setia, the Court of Appeal listed eight factors to be considered in its determination of jurisdiction based upon the particular circumstances of each case. Those factors are as follows:

• The character of the matter for which review is sought.

• The nature of the decision maker and its responsibilities.

• The extent to which a decision is founded in and shaped by-laws as opposed to private discretion.

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

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

• The suitability of public law remedies.

• The existence of a compulsory power.

• An “exceptional” category of cases where the conduct has obtained a series public dimension.

62In West Toronto United Football Club v. Ontario Soccer Association 2014 ONSC 5881, Justice Nordheimer held that the eight factors are “not a check list where one answers yes or no to each factor and then totals up the result…rather one uses the factors as a guide to reach the ultimate conclusion whether the particular matter in issue is of a public nature.”

63Both the OSA and Peel are volunteer organizations funded by member dues, and are not government agencies. That said, most, if not all, of the members of the OSA and Peel are drawn from the public.

64The applicants rely upon several decisions where this Court has taken jurisdiction to review decisions made by various sports associations including the OSA. In West Toronto, Justice Nordheimer found that the actions of the OSA have a broad public impact, and the OSA is correspondingly charged with public responsibilities including ensuring that soccer is played in an organized and fair manner in the province of Ontario.

65As held by Justice Bird in her recent decision in Gymnopoulos v. Ontario Associates of Basketballs Officials 2016 ONSC 1525, the OSA has a broad reach over soccer played at all levels within the province of Ontario.

66In West Toronto, Justice Nordheimer was faced with a situation where a playoff victory by a team of teenage boys was “taken away from them” by the actions of certain officials within the OSA’s governing body. Justice Nordheimer found that the overturning of the playoff victory was carried out through a “process that was fundamentally unfair” and which ran contrary to the key message of the importance of fair play in our society. Justice Nordheimer specifically held that he had jurisdiction to review OSA’s actions due to the “nature of the specific decision that was in issue” before him.

67In Gymnopoulos, the applicants were coaches of a high school basketball team and also members of a voluntary, not for profit organization for basketball officials (the “association”). The applicants blamed the referees when the team they coached lost a playoff game. As a result, the association imposed sanctions upon the coaches including a two year suspension from the association which prevented the coaches from coaching any further tournament games for which the association supplied the referees. Justice Bird found that the impact of the association’s decision would cause the coaches to miss the rest of the season. In finding that she had jurisdiction, she found that the association clearly exercised “a compulsory power over a large segment of the public” as its decision created the same effect of suspending the coaches from coaching in the tournament.

68The applicants further rely upon the decision of Justice Cullity in Woodbridge Soccer Club v. Ontario Soccer Association, [2002] O.J. No. 3806 (S.C.J.) where the OSA denied a soccer club the right to participate as its Ontario representative in the National Finals. While Justice Cullity did allow the application for judicial review, he also noted the following:

“At the commencement of the hearing, I raised the question whether the application was properly brought under the Judicial Review Procedure Act and was informed by counsel that it was common ground between them that the jurisdiction existed. I have some concern on this question in view of the comments of A. G. Campbell J. in D’Cruz v. Field Hockey Ontario [1997] O.J. No. 4365 (G.D.) but, in view of the agreement of counsel, the authorities cited by them - including St. Andrews College v. York Region Athletic Association [2000] O.J. No.637 (S.C.J.) - and those discussed in the decision of LaForme J. in Cureatz v. Progressive Conservative Party of Canada [1997] O.J. No. 2309 - as well as the urgency of the matter - I decided that I should deal with the application on the basis that counsel proposed.”

69I have reviewed the cases relied upon by the applicants in detail. In my view they are all distinguishable as those cases involve decisions taken by associations which adversely impacted one or more member’s ability to participate in the sport itself. In the case before me, none of the decisions carried out by the OSA or Peel have precluded the applicants, and specifically the children playing on competitive teams, from participating in the sport of soccer. Rather, the OSA and Peel decisions may simply preclude some of the children from continuing to play together on the same team. The decisions of the OSA and Peel may impact the children’s ability to play with their friends or current teammates, but it does not impact their ability to play soccer in Ontario.

70While I can appreciate the children on the three competitive teams wanting to stay together as a unit, such a desire is not in line with the OSA’s “player-centric” philosophy. None of these children are being told that they cannot play soccer, at an Elite level or any other level. Each individual child is effectively a “free agent” and at liberty to register with any soccer club he/she chooses.

71The OSA and Peel decisions were carried out after allowing the applicants several opportunities to be heard, and canvassing the opinions of the Peel member soccer clubs. The applicants may not like the result, but the OSA and Peel decisions were consistent with the “player-centric” approach and did not amount to any violation of the fair play principle.

72While there are emerging cases where the Court has taken jurisdiction over volunteer sports associations, in my view it is not the function of the Court to involve itself in matters such as the membership makeup of a specific team. To do so would amount to the Court micro-managing discretionary decisions of a sports association which do no impact an individual member’s right to play.

73I agree with the respondents that the OSA and Peel decisions are examples of a non-judicative, executive function grounded upon operational policy. It is not a compulsory decision like the OSA’s decision in West Toronto. It is not a decision shaped by the law, nor a decision with a significant public dimension that is reached by public law.

Failure to Exhaust Appeal Routes

74In addition, as held by Justice Sacks in Baker v. Ontario (Director, Ministry of the Environment) 2013 ONSC 4142, absent exceptional circumstances, a party who is dissatisfied with a matter arising in an ongoing administrative process must pursue all effective remedies that are available to him/her within that process. When that administrative process has finished, i.e. when there are no further appeal routes, only then may the party proceed to Court.

75I do not find the presence of any exceptional circumstances in the case before me. Both the OSA and Peel clearly had jurisdiction over the subject matter of the transfer issue. The only evidence offered by the applicants on their decision not to pursue appeal routes was (a) it was made on the advice of counsel, and (b) such pursuit of appeals was “hopeless” as it would have yielded the same result. That may or may not have been the case, but in any event a party’s subjective view of the merits of proceeding with an appeal cannot amount to exceptional circumstances.

Did the Court Take Jurisdiction by Reason of Justice Akhtar’s Order?

76In my view, nothing in Justice Akhtar’s order rendered the court functus officio in this application, including the primary question of whether this Court should take jurisdiction to review the OSA and Peel decisions.

77In hearing the application brought on an urgent basis, Justice Akhtar recognized that the transfer issue could not be resolved on the paper record before him, and ordered a trial of the issue of whether the respondents represented to the applicants that the three teams would in fact be transferred to Erin Mills and North. That is a remedy available under Rule 38.10(1)(b) of the Rules of Civil Procedure. Further, as held by the Divisional Court in Moyle v. Palmerston Police Services Board 1995 ONSC 10659, that relief is mandatory when there are material facts in dispute on an application (which was precisely the case before Justice Akhtar).

78The granting of interim injunctive relief was a term of adjourning the matter to a trial of the issue ordered by Justice Akhtar. The interim injunction was to remain in place until the final disposition of the application and all issues raised therein. From the outset, the respondents challenged the applicants’ position that this Court had jurisdiction to entertain the applicants’ request for judicial review.

79I do not find that the terms of Justice Akhtar’s order amounted to the Court impliedly assuming jurisdiction. The interim injunction - an equitable remedy - was ordered to permit the former MSC competitive teams to play together in the 2016 season pending the Court’s disposition of, inter alia, the jurisdiction issue.

80As such, I decline to take jurisdiction of this application and it is dismissed on that basis.

Did the Respondents Make the Representations to the Applicants?

81For completeness of the exercise, and having heard the testimony of all witnesses called by the parties, I find that the respondents never told the applicants that the three competitive teams would be “permitted to play in the Elite League subject to satisfying certain conditions.”

82The reasons given by the Peel member soccer club presidents for opposing the team transfer requests are understandable. Each soccer club was likely looking out for its own interests, and did not agree with the applicants benefitting from the transfer of a team of elite players while the OSA attempted to develop and implement a “player-centric” philosophy.

83Krosel, Bertrand and Hocking all admitted in their respective testimony that the respondents never represented to them that the team transfers would be approved, conditionally or otherwise. All three of them properly admitted that section OP22 required, inter alia, the approval of Peel’s Board of Directors as condition of any potential team transfer. All three of them further testified that Peel had no support from its member soccer club presidents to approve the requested team transfers. It is difficult to understand how the applicants could have formed the belief that Peel would provide its approval of the team transfer requests, as in doing so Peel would have had to disregard and vote contrary to the wishes of its own member soccer clubs.

84For the reasons given, the application is dismissed.

Costs

85I would urge the parties to try and resolve the issues of costs of this application, including the trial of the issue. In the absence of such an agreement, the parties may deliver written costs submissions for my review and consideration.

86The respondents may serve and file their costs submissions within 10 business days of the release of these Reasons. Those submissions shall be no more than five pages including a Bill of Costs.

87The applicants shall thereafter have an additional 10 business days from the receipt of the respondents’ costs submissions to deliver their responding costs submissions which shall also be no more than five pages including a Bill of Costs.

Diamond J.