CITATION: Islington Rangers Soccer League et al v. Toronto Soccer Association et al, 2017 ONSC 6229
COURT FILE NO.: CV-17-582690
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ISLINGTON RANGERS SOCCER LEAGUE and IAN C. PERES
Applicants
– and –
TORONTO SOCCER ASSOCIATION and ONTARIO SOCCER ASSOCIATION
Respondents
COUNSEL:
Timothy B. Danson, for the Applicants
Jordan Goldblatt, Melissa Mustafa, for the Respondents
HEARD: September 15, 2017
BEFORE: Koehnen J.
[1] The applicants seek an urgent judicial review to set aside decisions of the respondents, which decisions caused a girls soccer team to forfeit the points they earned in various games throughout the 2017 season and which disqualified the team from playing in the league championship game. In addition, the decisions suspended the applicant, Ian Peres (“Mr. Peres”) as a coach for six months and fined the applicant Islington Rangers Soccer League $2,500.
[2] The alleged offence that led to these sanctions was that the team had five 12-year-old players on a team for 13-year-olds.
[3] The matter came before me by way of an urgent application on Friday, September 15, 2017. The urgency arose because the championship game from which the team had been disqualified was scheduled to be played at 10 a.m. on Saturday, September 16.
[4] I released an email endorsement on September 15, 2017 in which I set aside the decisions at issue, reinstated the scoring and placement of the team and ordered that the team be allowed to play the championship game on Saturday, September 16. I did so because, in my view, the respondents had breached basic rules of fairness that they owed the respondents and the team. At the time, I indicated I would issue more formal reasons in due course. These are those reasons.
I. The Parties
[5] The applicant, Islington Rangers Soccer League (the “Rangers”), operates a number of youth soccer teams including the Islington Rangers Black 2004 U 13 girls team (the “U 13 team”). In principle, it is a team comprised of girls born in 2004 who are 13 years of age or are turning 13 this year. Mr. Peres is the volunteer coach of that team.
[6] The Rangers and its U 13 team play under the auspices of the respondent, Toronto Soccer Association (the “TSA”), which in turn operates under the auspices of the respondent Ontario Soccer Association (the “OSA”).
[7] The TSA also operates the Toronto District Youth Soccer League the (“TDYSL”) and a disciplinary system pursuant to the rules of the TDYSL and the rules of the OSA.
II. The Facts
[8] The dispute arises because five of the players on the U 13 team were 12-year-olds who were born in 2005. Twelve year-olds are allowed to play on a U 13 team provided the coach of the U 13 team prepares a written evaluation of the 12-year-olds recommending that they play on the U 13 team and provided those written evaluations are filed with the TSA. In the ordinary course, the TSA would rubberstamp their approval.
[9] Mr. Peres completed evaluations of each of the five 12-year-olds, recommended that they play on the U 13 team and gave the evaluations to the Rangers’ President who was to file them with the TSA. Mr. Peres followed up with the Rangers’ President and was assured that the filing was being taken care of.
[10] As it turns out, the Rangers never delivered the evaluations through inadvertence, as a result of which they were never filed with or formally approved by the TSA.
[11] Mr. Peres did not become aware of this until shortly before the disciplinary hearing that is the subject of this application for judicial review.
[12] The five 12-year-olds played on the U 13 team throughout the 2017 season. Teams are required to have a player book available for each team member at each game. Each player book contains a photograph of the team member, her name and her date of birth. The player books were available at all games during the season and were checked by at least three other clubs during the course of the season. No one raised any objections about the eligibility of any of the players.
[13] In addition, each team is required to bring three copies of a game sheet to each match. The game sheet lists the names and birth dates of the players. Copies of the game sheet are given to the referee and to the opposing team. Game sheets with the birth dates of all players, including the five 12-year-olds were submitted at each game during the season.
[14] The U 13 team had a successful season. It finished in first place and was scheduled to play in the league championship game on Saturday September 16, 2017.
[15] Following a game on August 14, 2017, the manager of the opposing team made inquiries to determine whether it was permissible to have 12-year-olds on a U 13 team. On August 23 Mr. Peres was asked to bring the player books for the five 12-year-olds to the TSA by Friday, August 25 at 5 p.m. Four player books were dropped off as requested. The fifth was not available because the player was on vacation with her family outside of the country.
[16] On Monday August 28, 2017 the applicants received an email from TSA advising them that a:
“discipline hearing relating to the alleged use of illegal players on the Islington Rangers GU 13 team will take place on Thursday, [August 31] at 8:15 p.m.
You will receive all relevant documentation by noon Wednesday.”
[17] At around this time, Mr. Peres became aware that the evaluations of the five 12-year-old players had not been filed with the TSA.
[18] The TSA emailed a notice of the disciplinary hearing on Wednesday, August 30 at 6:35 p.m. Mr. Peres and the Rangers’ President did not see the notice until after 9:30 p.m. because both were at back-to-back soccer practices until then.
[19] The portion of the email that gave the applicants notice of the alleged infractions stated:
“Please note, the allegations regarding the use of illegal players relate to games in the TDYSL GU 13 division as well as the TDYSL League Cup. These allegations relate directly to TDYSL league rules:
6.2
15.8
both of which can be referenced in the attached TDYSL rules document.”
[20] Rule 6.2 which was attached to the notice provides that:
“A maximum of 5 players from the same club may be “called up” in any one game to a maximum of 7 games per player per season. PLEASE NOTE, U 12 PLAYERS ARE NOT ELIGIBLE TO BE USED AS CALL UPS AT U 13.” (Emphasis and underlining in original).
[21] Rule 15.8 requires that players be registered with their team at least one day before playing in a cup game.
[22] The concept of a “call up” is, however, different from the concept of having a 12-year-old player registered as member of the U 13 team. A “call up” is a temporary player who is substituting for a regular player who is absent. The intention for the five 12-year-olds on the U 13 team was to have them as permanent team members throughout the season. The respondents did not contest this difference at the hearing before me.
[23] The email of August 30, 2017 also had attached to it a formal notice of disciplinary hearing that provided the date, time and location of the hearing and a “Description of the Charges.” In the case of Mr. Peres the charge referred to
“2.63 Played an ineligible or suspended player in a sanctioned game (43 counts).”
[24] In the case of the Islington Rangers Soccer League the charge referred to “5.63” with the same text as had been ascribed to Mr. Peres for “2.63”.
[25] The materials that accompanied the email of August 30 and the notice of hearing did not contain any information that explained what 2.63 or 5.63 referred to. At no time before the hearing did the panel direct the applicants to what those provisions were.
[26] Both Mr. Peres and the Rangers’ President attended the hearing believing that the issue involved a minor administrative matter of evaluations that were completed at the beginning of the season but which had not been filed through inadvertence.
[27] The TSA rendered its decision on September 1, 2017. The decision caused the U 13 team to forfeit points from all games in respect of which any of the five 12-year-olds had been listed on the game sheet, removed the U 13 team from the league championship game, suspended Mr. Peres for six months (three months for each of two counts of playing an ineligible player) and fined the Rangers $2,500 for playing ineligible players.
III. Analysis
A. Jurisdiction
[28] As a preliminary matter, there are two jurisdictional issues to address.
[29] First, applications for judicial review must ordinarily be made to the Divisional Court: Judicial Review Procedure Act R.S.O 1990, chapter J. 1 s. 6(1). Section 6(2) of that statute does, however, allow applications to proceed before this court, with leave which may be granted at the hearing of the application, where there is urgency and the delay required for an application to the Divisional Court is likely to involve a failure of Justice. Here there was urgency because the championship game was scheduled to be played the day after the hearing. It would not have been possible to obtain a Divisional Court hearing in that time, as a result of which I granted leave to bring the application before the Superior Court of Justice.
[30] Second, the respondents submit that I have no jurisdiction because courts should not interfere with the management and internal affairs of sporting clubs and other voluntary organizations.
[31] The starting point of the analysis on this second jurisdictional issue is that s. 2(1)1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, does not limit the availability of judicial review to entities that exercise statutory powers.
[32] In Air Canada v. Toronto Port Authority, 2011 FCA 347 the Federal Court of Appeal developed a number of criteria to consider when determining whether judicial review should be available to examine the actions of bodies that do not exercise statutory powers. Those criteria were adopted by the Ontario Court of Appeal in Setia v. Appleby College (2013), 2013 ONCA 753, 118 O.R. (3d) 48.
[33] In West Toronto United Football Club v. Ontario Soccer Association 2014 ONSC 5881, [2014] O. J. No. 4773 Nordheimer J. (as he then was) adopted five of those criteria as particularly relevant to reviewing the conduct of the OSA. When setting out those factors, Justice Nordheimer supplemented them with comments that Stratas J.A. had made when he initially formulated them in Air Canada v. Toronto Port Authority. The factors and additional comments applied by Justice Nordheimer are as follows:
(i) 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?
(ii) The nature of the decision-maker and its responsibilities. Is the decision-maker public in nature, such as a Crown agent or a statutorily-recognized administrative body, and charged with public responsibilities?
(iii) The suitability of public law remedies. If the matter is one in respect of which public law remedies would be useful, a court would be more inclined to view the matter as public in nature.
(iv) The existence of a compulsory power. The existence of compulsory power over the public at large or over a defined group may be an indicator that the decision is public in nature.
(v) An exceptional category of cases. Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable.
[34] The three additional factors cited in Setia and Air Canada that Nordheimer J. found less relevant in the context of sports organizations are:
(i) The extent to which a decision is founded in and shaped by law as opposed to private discretion.
(ii) The body’s relationship to other statutory schemes or other parts of government.
(iii) The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity.
[35] In weighing these factors Justice Nordheimer highlighted the public nature of determining who can or cannot play in a particular sports league and the large number of people affected by that type of decision. He concluded that the public nature of the question and the number of people affected by decisions like this made it appropriate to subject them to judicial review. While decisions of the TSA do not necessarily affect the same number of people as those of the OSA, the public nature of the decisions remain the same.
[36] In paragraph 27 Justice Nordheimer noted the importance of fairness as a principle of social order and confidence, particularly in the context of children who are taught the importance of fairness from a young age. If fairness is not a quality that can be enforced in a context that matters to children, we deal a significant blow to public confidence in fairness as a building block of social order.
[37] The reasoning of Justice Nordheimer is equally relevant here to subject to judicial review the decisions of the respondents in this proceeding.
[38] I also note that, in addition to Western Toronto United, a number of other cases have subjected the decisions of sports organizations to judicial review: St. Andrew’s College of v. York Region Athletic Association [2000] O.J. No. 737; Woodbridge Soccer Club v. Ontario Soccer Association [2002] O.J. No. 3806; Oz Optics Ltd. v. Canadian Soccer Association [2001] O.J. No. 5701; Gymnopoulos v. Ontario Association of Basketball Officials [2016] O.J. No. 1525.
[39] The respondents rely on Erin Mills Soccer Club v. Ontario Soccer Association [2016] O.J. No. 6453 in support of their submission on jurisdiction. In Erin Mills, the court declined to take jurisdiction, after a 3 day trial of an issue.
[40] In my view Erin Mills is distinguishable. First, it did not involve any urgency that required the matter to be brought to the Superior Court of Justice as opposed to exhausting the appeal procedures within the OSA and then proceeding to Divisional Court, if necessary.
[41] Second, it involved an operational decision not an adjudicative decision. In Erin Mills, a soccer league was unable to continue because of financial difficulties. The players in the defunct league wanted to transfer to another league but wanted their teams to remain intact. While all players were accepted into another league, it was not possible to maintain the integrity of the old teams. Instead, players on a team in the defunct league would be spread across a number of teams in the new league. As the court noted in para. 73 of Erin Mills, a decision about how to distribute players in the new league was not shaped by law. It did not disqualify players or otherwise prevent them from playing. It was a purely operational, logistical decision about how to deal with an influx of new players.
B. Fairness
[42] The essence of judicial review is fairness. In Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 at p. 631 the Supreme Court of Canada noted at paragraph. 105 that:
“In the final analysis, the simple question to be answered is this: did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.”
[43] Fairness in the context of an administrative body is flexible and depends on the circumstances of each case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 22.
[44] Two basic requirements of fairness are notice and an opportunity to be heard. In my view, the respondents breached the applicants’ right to fairness in respect of both requirements.
i) Notice
[45] Adequate notice includes notice of the specific offence alleged and the possible sanctions imposed: Gymnopoulos v. Ontario Association of Basketball Officials, 2016 ONSC 1525, [2016] O.J. No. 1097 at para. 58.
[46] With respect to notice of the offence, the email that the applicants received on August 30, 2017 described the infraction as:
“Played an ineligible or suspended player in a sanctioned game. (43 counts) ”
[47] Given the number of infractions alleged, and given Mr. Peres’ understanding of the issue, he could and did fairly conclude that the issue involved the inadvertent failure to file with the TSA the evaluations of the five 12-year-old girls on the U 13 team.
[48] It appears that the nature of the infraction changed during the course of the hearing. The focus of the hearing appeared to involve the allegation that some of the five girls played on the U 12 team as well as on the U 13 team, which the respondents rules did not allow.
[49] The applicants were not, however, given express notice of this infraction before the hearing.
[50] The email of August 30 had attached to it 43 pages of materials in seven different attachments. The 24th page was a table which listed the names of the five girls. Beside the names were columns headed U 12 games played and U 13 games played. Could it be said that this table gave fair notice to the applicants of the infraction they were faced with? In my view it did not. The table was buried in the middle of various electronic attachments. Neither the email nor the description of charges drew attention to that particular aspect of the allegation.
[51] In assessing fairness for purposes of notice in the circumstances of this case, it should be borne in mind that the applicants were not sent materials until 6:35 on Wednesday evening and did not see those materials until after 9:30 that evening. Mr. Peres is a volunteer who holds a full-time job. Expecting him to pour through 43 pages of email attachments without providing him specific guidance about the nature of the infraction, one day before the hearing is a rather tall order. Especially since the TSA had been aware of the complaint for almost two weeks.
[52] Moreover, to the extent the allegation was that some of the five girls were playing on the U 12 team as well as the U 13 team, one day’s notice does not give the applicants adequate time to investigate the issue and introduce evidence about it. While Mr. Peres coached the U 13 team, he had no involvement with the U 12 team and would not have been aware of its composition.
[53] Notice of the allegations was further complicated by the fact that the description of charges referred to “2.63 and 5.63.” These numbers presumably refer to section numbers of some type of document. The email of August 30 and the attachments to it did not attach those sections and did not indicate what document the section numbers referred to.
[54] With respect to notice of sanctions the applicants faced: none of the materials delivered to them before the hearing told them what sanctions they or their team faced. The respondents submit that this should not matter because the rules of the TDYSL that were attached to the August 30 email contain rule 16.5 which provides:
“The League will follow OSA Standard Penalties for Misconduct. This document will be posted on our website for reference.”
[55] It is the OSA Standard Penalties that prescribe the sanctions the applicants faced. Those penalties and the sanctions described as 2.63 and 5.63 are found on pages 136 and 145 of the Ontario Soccer Operational Procedures (a document that was not attached to the email of August 30, 2017).
[56] This does not amount to adequate notice of the sanctions Mr. Peres and his team faced in the circumstances of this case.
[57] In effect, the respondents say the following: Mr. Peres, a volunteer coach should come home after attending soccer practices until 9:30 p.m., review the email and its 43 pages of attachments, figure out what 2.63 and 5.63 refer to without any guidance, realize that the 36th page of the attachment to the August 30 email contains rule 16.5 of the TDYSL rules, realize that he should find the OSA Standards for Penalties and Misconduct, wade through the TSA website to find that document and realize that 2.63 and 5.63 describe the sanctions he could be facing.
[58] The most elementary standard of fairness should require the TSA to simply state in an email that the infraction Mr. Peres was charged with is having girls play on a U 13 team who also played on a U 12 team in contravention of Rule X and that the sanctions for that infraction could amount to Y. That would be putting the TSA to considerably less effort than they expect of Mr. Peres.
ii) Opportunity to be Heard
[59] To demonstrate that it had always been his intention to have the five 12-year-old girls play on the U 13 team, Mr. Peres brought with him to the hearing, game sheets filed at each game showing the girls’ birth dates and parent declarations showing that the girls had solely trained and played with the U 13 team during the summer 2017 season. This evidence would also have been relevant to the allegation that the five girls had played with the U 12 team as well as the U 13 team.
[60] Mr. Peres filed an affidavit in this proceeding stating that the disciplinary committee refused to accept his evidence. The refusal to accept evidence that is responsive to allegations amounts to a denial of the opportunity to be heard.
[61] I pause here to note that the respondents did not file evidence before me. Although the application was brought on short notice, the respondents could have sought a brief adjournment to file responding materials. Even though the championship game was scheduled to be played the day after this hearing, it could have been re-scheduled by a week or two to allow the respondents to file materials had they wished to take issue with anything Mr. Peres said. In fact the respondents did ask to re-schedule the game after I released my decision on the evening of Friday September 15, 2017. In the absence of any request to adjourn the hearing to file responding materials, I can only conclude that the respondents had no contrary or qualifying information to put to me.
[62] At the TSA disciplinary hearing, the committee continued to characterize the use of the five 12-year-olds as call ups even though the committee had before it evaluations and recommendations that the girls play on the U 13 team that were completed before the season began and had evidence from the Rangers’ President to the effect that the forms had not been filed because of an administrative error.
[63] To insist on characterizing the participation of the five girls as call ups in the face of that evidence, would appear to be an arbitrary characterization that had no foundation in the evidence and that was contrary to evidence that Mr. Peres tried to submit.
[64] Eligibility provisions in sports organizations are designed to prevent people who are over-aged or semi-professional from playing in amateur leagues: St. Andrew’s College v. York Region Athletic Association [2000] O.J. No. 637 (SCJ) at para. 19. During oral argument, the applicants underscored several times that the presence of 12-year-olds on a team of 13-year-olds does not give the team an unfair competitive advantage. If anything, it would tend to give the team a competitive disadvantage. The respondents did not deny this or make any submission to the contrary.
[65] In West Toronto United, Justice Nordheimer dealt with situation similar to the one under review. In that case, a player had been accidentally removed from the team roster. After the team played and won a semi-final game with the player who had been accidentally removed, the opposing team challenged the use of the player. The OSA found that the player had played improperly because he was not on the team roster as of the date of the game.
[66] Justice Nordheimer found that the decision of the OSA was fundamentally flawed and unworthy of deference because it ignored evidence that the team had never intended to remove the player from the team roster and ignored evidence that the player had played with the team for the entire season. To ignore evidence in this way denied the team a fair opportunity to be heard (at para. 31 and 34).
[67] St. Andrew’s is to similar effect. In that case, a goalie was asked to join a hockey team after one of the regular goalies could no longer play. The replacement goalie’s name was inadvertently omitted from a player eligibility list submitted to the sports organization. The goalie was otherwise entitled to play. He dressed for eight games and played four. His name appeared on the game sheets for the eight games for which he dressed. The York Region Athletic Association held that, according to the rules of the league, the team had to forfeit all games in which the goalie had played. The decision was reversed on judicial review. The interpretation of the rules placed on them by the Association placed form over substance and robbed the rules of any elasticity or discretion which rendered their interpretation unreasonable (at para. 23, 24 and 27).
[68] The situation under review is similar to those in West Toronto United and St. Andrew’s.
[69] The TSA appears to have ignored evidence that: the five girls were not registered as members of the U 13 team through administrative error; the girls played with the team for the entire season; and that their names and birth dates were on the game sheets for each game in the season. It also refused evidence that would have addressed the issue of the girls having played on the U 12 team.
[70] The respondents’ answer to this on the hearing before me was that “rules are meant to be complied with and there are consequences if they are not.”
[71] While it is true that rules should be complied with, it is also true that decision makers need to listen to why a rule was not complied with, determine whether the circumstances of non-compliance offend the rule and weigh those factors in determining whether a penalty is appropriate. The refusal to consider those factors and evidence about them, without explanation, denies the applicants a fair opportunity to be heard.
[72] The appeal process that the applicants were afforded amounted to a further denial of the right to be heard.
[73] Rule 17.10 of the TDYSL rules and regulations provides that:
“Any club, team or player dissatisfied with the decision of the TSA Discipline Committee on any protest shall have the right to appeal, at its own expense, to the TSA Executive Committee.”
[74] This rule gives the applicants an absolute right of appeal. The TSA has not, however, established an executive committee to which the applicants could appeal. Instead, the applicants were required to seek leave to appeal to the OSA. They did so and the OSA denied them leave to appeal.
[75] The TSA failed to follow its own procedures. The rules gave the applicants a right of appeal of which they were deprived. If, as the respondents argued on this hearing, “rules are meant to be complied with”, that would also apply to them.
[76] In Woodbridge Soccer Club v. Ontario Soccer Association, [2002] O.J. No. 3806 Justice Cullity noted that courts should be reluctant to interfere with the management and internal affairs of sporting clubs and other voluntary organizations. At the same time, however, he noted that clubs, players and associations are contractually entitled to expect that their rules will be observed and applied fairly in accordance with their terms (at para. 19). This is especially so when the rights of third parties (the girls on the U 13 team) are at issue. The TSA failed to do so.
Conclusion
[77] For the reasons set out above, I concluded that the respondents had breached the standard of fairness appropriate for the circumstances in that they did not give the applicants adequate notice of the infractions at issue and the sanctions they faced. In addition, the respondents breached the standard of fairness by denying the applicants a meaningful right to be heard.
[78] I underscore, however, that this is not intended to subject the respondents or other sports organizations to court-like standards of fairness nor is it intended to add a layer of legal formality to their procedures. The fairness standards I required are merely to: (i) tell the subject of a disciplinary hearing directly and clearly what the specific infraction is that is alleged against them; (ii) advise them of the possible sanctions in a way that enables the subject of the proceeding to understand easily what sanctions they face; (iii) consider relevant evidence the subject wants to adduce; and (iv) follow the rules the association has itself established.
Costs
[79] The applicants seek costs of $27,645 on a full indemnity scale plus HST plus disbursements for a total of $33,238.97. The respondents submit that an appropriate award of costs is $4000 in fees on a partial indemnity scale and $460.13 in disbursements. The respondents base this submission on the fact that they would have sought costs of that amount had they been successful.
[80] In my view, what the respondents would have asked for in costs is not relevant to the facts of this case. The respondents retained counsel very shortly before the hearing. The respondents were not put to the cost of preparing an application record. The respondents did not prepare a factum or brief of authorities. It has been said repeatedly that is not the role of courts to second-guess the time spent by counsel unless it is manifestly unreasonable, the total time spent is clearly excessive or the matter has been over lawyered: Boucher v. Public Accountant’s Counsel for the Province of Ontario, [2002] O.J. No. 4678 at para. 71.
[81] Mr. Danson spent 28.8 hours on the case, his colleague Mr. Reich spent 22.8 hours. Given the complexity of the proceedings and the urgency with which matters had to proceed, I do not believe those are unreasonable amounts of time. Mr. Danson’s partial indemnity rate is claimed at $390 per hour. His full indemnity rate is claimed at $650 per hour. The respective rates for Mr.Reich are $240 and $400. Mr. Danson is a 1980 call. Mr. Reich is a 1993 call. Those rates accord with prevalent rates for senior counsel in Toronto. Many in larger firms will have materially higher hourly rates. As a result, the rates claimed are consistent with what one might reasonably expect to be called upon to pay by way of partial indemnity or full indemnity rates in Toronto.
[82] The respondents object to photocopying charges which the applicants’ counsel charged at $0.25 per page. The more standard rate for such charges is $0.15. I would adjust that disbursement downward from $754.25 to $452.55 with a further downward adjustment of $39.22 to reflect HST on the difference in the two amounts.
[83] A number of other factors the court is required to consider in determining costs under rule 57.01 (1) also render the respondents submission on quantum inappropriate.
[84] I set out and analyse below the rule 57.01 factors relevant to this case.
Complexity of the Proceedings
[85] The proceedings were rendered more complex for the applicants because of the respondents’ failure to disclose precisely what the applicants were charged with. In addition, the applicants were required to it weave their way through a myriad of rules regulations and procedures to determine what the appropriate rules were. The relevant rules included the Ontario soccer Association, which then changed its name to soccer Ontario, the Toronto soccer Association and the Toronto District youth soccer league. Understanding and reconciling those rules in the absence of precise guidance about the nature of the charge does take time.
The Importance of the Issues
[86] The matter was of some importance to the players on the U 13 team. They were deprived of their standing in the league and deprived of the ability to play in a championship game in essence because they were charged with cheating. The applicant Ian Peres was given a six-month suspension effectively also for cheating even though he had done everything right. He prepared the evaluations as required and submitted them to the team administration. Issues of that sort have the potential to cast a pall on an individual’s reputation.
Conduct That Tended to Lengthen Unnecessarily the Duration of the Proceeding
[87] The absence of clear direction by the respondents about the specific nature of the charges against the applicants required applicants’ counsel to spend more time than would otherwise have been required. In addition, the confusion in the respondents’ respective rules and websites about the relevant appeal roots also required time that would not have been necessary had the respondents either abided by their own rules or made information about the proper appeal routes more readily accessible.
Any Other Matter Relevant to the Question of Costs
[88] Two additional factors are relevant here to the issue of costs.
[89] First, the U 13 team is comprised of players who come from backgrounds of modest economic means. The team itself is a not-for-profit organization. Understandably it does not carry a large budget for legal fees if any budget at all. The parents of those players should not be left with the financial burden of defending against unfair aspersions cast on their children or on their children’s coach.
[90] Second, I issued an order on September 15, 2017 that ordered the decisions of the respondents to be set aside. Setting aside the suspension of Mr. Peres was implicit in that order because the suspension formed part of the decisions I set aside. Despite being faced with a court order setting aside their decisions, the respondents have failed to lift Mr. Peres’ suspension. The fall winter soccer season began on October 28, 2017. Given that the respondents continued to list Mr. Peres as being suspended, he has been unable to coach.
[91] The applicants raised this issue in their cost submission which was served on October 6, 2017. The respondents delivered their response on October 20, 2017. To my surprise, the respondents’ submissions were silent about the continued suspension of Mr. Peres. They offer absolutely no explanation for refusing to abide by the order I made on September 15, 2017. I can only conclude that the respondents are wilfully breaching a court order. I am deeply concerned that the respondents are counting on the fact that neither Mr. Peres nor the parents will have the financial resources to bring additional proceedings to enforce my order of September 15, 2017.
[92] Regardless of the precise motivation of the respondents, they are in breach of a court order. The first page of their mission statement states:
“Ethical,
High moral principles & professional standards.”
[93] Organizations that do actually operate ethically and with high moral principles do not ignore court orders.
[94] Rule 57.01(4) (d) permits me to award an amount of costs that reflects full indemnity. Full indemnity costs are reserved for rare and exceptional cases where the conduct of the party against whom costs is ordered is reprehensible or where there are other special circumstances that justify costs on the higher scale: Fehr v. Sun Life Assurance Co. of Canada [2017] O.J. No. 1749 at para. 43. The circumstances of this case and meet both of those requirements.
[95] The respondents have behaved in a high handed manner. They appear to believe that they do not need to extend the most basic elements of fairness to the respondents, do not need to abide by their own rules and do not need to abide by court orders. That amounts to reprehensible conduct. In the circumstances of this case the applicants are entitled to their full indemnity fees and disbursements which I fix at $32,898.05
Conclusion
[96] As a result of the foregoing:
(a) The applicants were granted leave to bring this application before the Superior Court of Justice pursuant to section 6(2) of the Judicial Review Procedure Act R.S.O 1990, c. J. 1.
(b) The decision of the TSA Discipline Committee Order dated September 1, 2017, Case No. DBH – 105 – 17 and the Order of the OSA, Appeal number A17 – 12 were set aside as of September 15, 2017.
(c) The TSA and OSA were ordered to reinstate the scoring and placement of the U 13 team on the leader board in first place overall and confirm them as TDYSL U 13 league champions as they were before the decisions referred to in paragraph (b).
(d) The U 13 team was ordered to be permitted to play the championship game on Saturday, September 16, 2017.
(e) The player books for the U 13 team were deemed to be stamped as if they were 2004 players even though some of the players on the Team may have been born in 2005.
(f) The respondents shall pay the applicants its costs which I fix at $32,898.05.
Koehnen J.
Released: November 02, 2017
CITATION: Islington Rangers Soccer League et al v. Toronto Soccer Association et al, 2017 ONSC 6229
COURT FILE NO.: CV-17-582690
DATE: 2017-10-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ISLINGTON RANGERS SOCCER LEAGUE and IAN C. PERES
Applicants
– and –
TORONTO SOCCER ASSOCIATION and ONTARIO SOCCER ASSOCIATION
Respondents
REASONS FOR JUDGMENT
Koehnen J.
Released: November 02, 2017