CITATION: Saint Mary’s University v. U Sports, 2017 ONSC 6749

COURT FILE NO.: CV-17-586062

DATE: 20171110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SAINT MARY’S UNIVERSITY

Applicant

– and –

U SPORTS

Respondent

Erin Hoult & Eric Leinveer from Blake, Cassels & Graydon LLP and Robert G. Belliveau, Q.C. & Kevin Gibson from McInnes Cooper, for the Applicant

Graham Sirman, for the Respondent

HEARD: November 9, 2017

archibald j.

REASONS FOR JUDGMENT

A. Introduction

1Saint Mary’s University (“SMU”) moves for an interlocutory injunction preventing the U SPORTS Tribunal, which convened a hearing on November 8^th, 2017 in respect of a complaint against SMU, from disseminating the ruling until the final disposition of this Application. This Application was brought in Ontario, as opposed to in Nova Scotia, because the by-laws of U SPORTS requires any court proceedings concerning U SPORTS to be brought here.

2The complaint against SMU is that one player on their men’s football team is ineligible to play under U SPORTS policy. The practical effect of that complaint, were it proven, would be that SMU would be ineligible to play in the Loney Cup against Acadia on November 11^th, 2017. SMU previously prevailed in the first round of the playoffs by defeating St. Francis Xavier on November 4^th, 2017.

3SMU’s application is based upon the proposition that U SPORTS agreed that it would not pursue the complaint against that particular player’s ineligibility. It is argued that U SPORTS reached a settlement with SMU. Subsequently, having received complaints from other competitor schools, U SPORTS reversed its position and pursued the very same complaint against SMU. In considering whether to grant the interlocutory injunction requested by SMU, there were three issues before me: (1) the jurisdiction of the court to deal with U SPORTS and SMU; (2) whether or not U SPORTS made an actual offer to SMU to not pursue this complaint, and whether the offer was accepted by SMU; and (3) whether or not U SPORTS as a voluntary not-for-profit organization can be estopped from revisiting the settlement. Before specifically dealing with those issues, I will provide a factual context.

4At the outset of the hearing, both parties agreed to the facts, as opposed to calling viva voce evidence. Much of the proposed viva voce evidence would have been inadmissible under the parole evidence rule.

B. Facts

5These facts are uncontested and are taken from the affidavit of Dr. Robert Summerby-Murray dated November 7, 2017 and from a variety of exhibits.

6SMU is a university in Halifax, Nova Scotia. SMU is a member institution of U SPORTS and competes in the Atlantic University Sport (“AUS”) conference in men’s football.

7U SPORTS is an association with an office located in Richmond Hill, Ontario. U SPORTS is the national sport governing body of university sport in Canada. U SPORTS is a not-for-profit voluntary incorporated company. U SPORTS has established bylaws and policies for the purpose of regulating its affairs, in order to enable it to exercise its governance mandate. U SPORTS is comprised of 56 member institutions which are Canadian universities, or, more specifically, the athletic programs or athletic departments within these universities. U SPORTS regulates the relationships between the member institutions with respect to the adherence to its policies. These policies represent an agreement among all members of U SPORTS that governs their relationships. (This particular paragraph is from paragraph 4 of the affidavit of Mr. David Brown dated November 8, 2017).

8U SPORTS creates and enforces various policies which govern the athletic programs of its member institutions including a policy regarding the eligibility of student-athletes to participate in U SPORTS’ men’s football competition. Policy 40.10.6.2.1.6.1 specifically states:

Participation, including affiliation, in the following leagues are subject to the charging of eligibility and prohibit participation in U SPORTS competition within one year of participation:

(i) CFL regular season or play offs

Participation in the following CFL opportunities are exempt from this rule:

(a) CFL training camp

(b) pre-season exhibition game

(c) Listed on the Practice roster until August 15^th

(ii) NFL, NFL-Europe, the United Football League, and the Arena Football Leagues

For the purpose of this policy, affiliation exists when an athlete’s name appears, with his acquiescence, on a practice roster, reserve list, injury list, suspended list, or retired list, or such other list that directly or indirectly confers a monetary benefit to the athlete after August 15.

The year of eligibility shall be charged to the academic year that commences in the fall of the same calendar year as the date of participation.

9Mr. Archelaus Jack commenced his first year as a SMU student-athlete in the fall of 2017 and began participating as a member of the SMU men’s football team for the first time in August 2017. The evidence before the court indicates that the 2017-2018 academic year was the first year Mr. Jack engaged in U SPORTS competitions or was a student at a U SPORTS member institution.

10Mr. Jack was listed on a CFL non-active practice roster from July 12, 2016 to August 12, 2016, and from September 14, 2016 to October 11, 2016. Mr. Jack was not a participant or affiliated with a CFL team in any other way, and he did not play in a CFL regular season or play-off game, or receive any form of “game cheque.”

11Around October 24, 2017 U SPORTS wrote to SMU informing SMU that U SPORTS had received:

…substantive evidence, by way of the CFL transactions website, that Saint Mary’s University appears to have been in breach of U SPORTS policy 40.10.6.2.1.6.1.

Upon request from U SPORTS National Office, the Canadian Football League (CFL) confirmed that, among other transactions, Archelaus Jack was listed on a practice roster, and would have a corresponding signed Practice Roster Agreement, from September 14, 2016 to October 11, 2016. Such participation would, based on policy 40.10.6.2.1.6.1 charge the student-athlete with a year of eligibility and preclude U SPORTS participation within one year of CFL participation.

12In this letter, Ms. Hahto, the Manager of Compliance, Eligibility and Discipline for U SPORTS asked SMU to provide any information it had to contradict the information in the letter. She also requested SMU to provide any exonerating information by October 26, 2017 because of the urgent possibility that SMU would have to forfeit regular season games. The effect of forfeiting those games would mean that SMU would be rendered ineligible for the play-offs.

13Counsel for SMU responded to Ms. Hahto on October 26, 2017 and stated that the phrase “one year” in the policy referred to one academic year, and not, as U SPORTS’s letter contended, 365 consecutive days. SMU’s position was that while Mr. Jack was ineligible for the remainder of the 2016-2017 academic year, he became eligible at the beginning of the 2017-2018 academic year. SMU’s counsel asked U SPORTS to confirm that Mr. Jack’s eligibility would not be pursued any further and wrote, “If U SPORTS does not provide the above requested confirmation to SMU, our instructions are to proceed to the Supreme Court of Nova Scotia the first of next week to obtain an Order confirming its interpretation.”

14On Friday October 27, 2017, telephone discussions to resolve this matter took place between senior members of SMU and U SPORTS.

15On October 30, 2017, David Goldstein, COO of U SPORTS wrote to Dr. Robert Summerby-Murray, the President and Vice-Chancellor of SMU and stated:

…it remains our position that the intent of the policy and the effect of the wording would have been to preclude Mr. Jack’s participation in U SPORTS competition until October 12, 2017. However, the letter from Robert Belliveau of McInnes Cooper on your behalf raised a compelling question about the ambiguity of the wording and the possibility of conflicting interpretations, and our preference is not to dispute this matter in court.

Accordingly, U SPORTS will not pursue a complaint against Saint Mary’s University with respect to the eligibility of Archelaus Jack. Kindly confirm that Saint Mary’s will not be proceeding to the Supreme Court of Nova Scotia to pursue an Order confirming its interpretation, or any other legal action.

16In a letter dated October 31, 2017, Dr. Robert Summerby-Murray responded to Mr. David Goldstein as follows:

I write in response to your letter of 30 October 2017 and confirm your agreement that you will not pursue a complaint against Saint Mary’s University as referenced in your letter, and our agreement that we will not proceed with legal action.

17Also, in the evidence before me is an October 31, 2017 letter from counsel for the Atlantic University Sport (AUS) to Mr. David Goldstein titled “Re: Saint Mary’s Eligibility Issue” where that counsel submits that there is no ambiguity to the eligibility clause when Participation Rule 40.10.6.2.1 is taken into account since “that section is completely clear in prohibiting participation within one year from the date that the athletic (sic) last participated in the identified league.”

18On November 2, 2017, Dr. Summerby-Murray received a letter from Mr. David Goldstein asserting that his “initial position” communicated in his letter of October 30 was given without the formal input of U SPORTS Board of Directors. Mr. Goldstein states, “The position Mr. Brown and I took was that U SPORTS would not pursue a complaint against Saint Mary’s University on the issue noted in the correspondence.” Mr. Goldstein discussed the impending possibility that eligibility protests may be filed by AUS members, and pursuant to AUS policies, these protests would return to U SPORTS for determination. Mr. Goldstein then stated:

In accordance with the guidance of our Board of Directors, in the event U SPORTS were to receive such a complaint, Mr. Brown and I would recuse ourselves from the process, and the complaint would be guided instead by our Executive Committee.

19On November 3, 2017, William L. Ryan, the Chair of the Judicial Committee for Atlantic University Sport sent Dr. Summerby-Murray a letter informing him that the Committee had received a formal complaint dated November 1, 2017 from Mount Allison University, St. Francis Xavier University, Acadia University, and Bishop’s University relating to the alleged breach by SMU of U SPORTS policies 40.10.6.2.1 and 40.10.6.2.1.6.1. A copy of the complaint was enclosed. I note that that complaint is identical to the one referenced by Ms. Hahto in her letter to SMU dated October 24, 2017.

20On November 3, 2017, Ms. Hahto wrote to Kim A. Squires, the Senior Director, Human Resources for SMU informing SMU that the four universities had submitted a joint letter of complaint. Ms. Hahto underlines:

In accordance with U SPORTS Policy 90.30.3.3., this complaint was directed to Chief Operating Officer David Goldstein who, in accordance with that policy forwarded it to me as the Designate of the CEO. For clarity, David Goldstein and the U SPORTS Chief Executive Officer Graham Brown have recused themselves from this process, on which I will be guided by the Chair of the U SPORTS Board, Michael Mahon.

U SPORTS, in accordance with 90.30.4.1, has determined that there will be no investigation. In accordance with 90.30.4.10, it has been determined that a Formal Charge is to be prepared…

A Tribunal will be struck and the Record will be circulated to their attention.

21Against this backdrop, on November 4, 2017, SMU played St. Francis Xavier in the AUS semi-final football game. SMU won 16-15.

22During this controversy, Dr. Summerby-Murray has received communications from alumni and members of SMU’s administrative team expressing grave concern about the effect of these events upon fundraising, alumni relations, and the recruitment of students to the university in the future.

C. Position of the Parties

23In all of these circumstances, SMU asserts that U SPORTS should not be allowed to determine the issue of Mr. Jack’s eligibility. It is simply a matter of fairness and in accord with the principles of good faith to not let U SPORTS resile from its settlement. It would also be highly prejudicial at this juncture to not let the football players from SMU play on November 11, 2017. In addition, the injunction should be granted because the release of such a decision will cause serious reputational harm to SMU as an academic institution, and irreparably damage its ability to recruit players for participation in its athletics programmes in the future. That harm cannot be compensated in damages.

24SMU’s position is that (1) this Court has jurisdiction under s. 101 of the Courts of Justice Act and pursuant to an analysis of the decision in McGarrigle v. Canadian Interuniversity Sport, [2003] O.J. No. 1842 (McGarrigle); (2) there was a firm offer and subsequent acceptance of a settlement agreement between the parties in correspondence engaged in October 2017; and (3) the general principles of contract law including waiver and estoppel apply to U SPORTS – a registered corporation under the Canada Not-For-Profit Corporations Act, S.C. 2009, c. 23.

25U SPORTS argues that (1) this Court’s jurisdiction to deal with the matter is narrowly circumscribed to administrative law and judicial review oversight premised upon the Supreme Court’s decision in Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165; McGarrigle, and Conacher v. Rosedale Golf Assn, [2002] O.J. No. 575; (2) there never was a settlement reached between the parties; and (3) that this Court should not interpret the Settlement Agreement between the parties in a manner that fetters the discretion of U SPORTS to deal with complaints from other schools about a player’s ineligibility, because that could not have been the intention of U SPORTS.

D. Jurisdiction

26Section 101 of the Courts of Justice Act, R.S.O. 1990, c C.43 states:

(1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

(2) An order under subsection (1) may include such terms as are considered just.

27U SPORTS is a registered corporation under the Canada Not-For-Profit Corporations Act, S.C. 2009, c. 23. U SPORTS, as a non-for-profit voluntary incorporated company, has established bylaws and policies for the purpose of regulating its affairs, or to enable it to exercise its governance mandate.

28In McGarrigle, the Ontario Superior Court of Justice considered whether it had the jurisdiction to grant a declaration quashing a decision of the Appeal Panel of the Canadian Interuniversity Sport (“CIS). I note that CIS is the predecessor to U SPORTS. At paras. 22-23 of McGarrigle, Aitken J. held:

CIS is a federal corporation of which post-secondary institutions of learning within Canada, and various advisory, consultative, educational and professional organizations involved with universities or athletics, are members. Its function is to regulate interuniversity sports in Canada. It does so, not by virtue of any statutory authority, but by virtue of the authority given to it by its members. As such, it is a ‘domestic tribunal’ that provides, in essence, a quasi-public function.

Even though domestic tribunals do not exercise statutory power, their decisions are nevertheless subject to review by the court for errors of law, acting in excess of jurisdiction and failure to comply with the principles of natural justice [citations omitted]. The decisions taken by CIS can have a profound impact on the careers of university athletes, university athletic coaches and interuniversity athletic programs in Canada. This power in the educational and athletic domain in Canada supports the conclusion that this Court has the jurisdiction to grant a declaration quashing the CIS Appeal Panel Decision should I find that the Appeal Panel made an error of law, exceeded its jurisdiction or failed to comply with the principles of natural justice.

29It is clear from McGarrigle that this court has the jurisdiction to consider U SPORTS decisions under the principles of administrative law. U SPORTS argues that McGarrigle does not give me the jurisdiction to consider the legitimacy of the alleged settlement agreement between the parties based on the principles of contract law.

30I disagree. It cannot be that settlement agreements between U SPORTS and its member universities can only be scrutinized under administrative law. The Ontario Court of Appeal’s decision in Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481 makes it clear that not all decisions of a body like U SPORTS are subject to judicial review. Its decisions concerning only private matters remain governed by the private law of contract. As the Court of Appeal noted in Setia, the continued application of private law in this context is consistent with the Supreme Court’s holding in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190. (In these urgent circumstances, I did not have the opportunity to discuss the import of these two cases with either party.)

31An analysis of the validity of a settlement agreement is different in scope and substance from disciplinary decisions given by a U SPORTS tribunal. Settlement agreements are contracts. Settlement agreements are governed by the basic principles of contract law, namely – offer, acceptance, and consideration. The requirements of natural justice such as notice, an opportunity to make representations, and an unbiased tribunal are not relevant, or of any assistance when assessing the settlement at hand. Restricting the Superior Court of Justice to only applying the principles of administrative law would unjustly deprive SMU from the possibility of seeking an injunction to prevent U SPORTS from breaching the settlement agreement.

32In Lakeside Colony of Hutterian Brethren v. Hofer, 1992 CanLII 37 (SCC), [1992] 3 S.C.R. 165, a decision U SPORTS relied upon, Gonthier J. at para. 8 quoted with approval Lord Denning in Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175, [1952] 2 Q.B. 329 (C.A.):

If a member is expelled by a committee in breach of contract, this court will grant a declaration that their action is ultra vires. It will also grant an injunction to prevent his expulsion if that is necessary to protect a proprietary right of his, or to protect him in his right to earn his livelihood…but it will not grant an injunction to give a member the right to enter a social club, unless there are proprietary rights attached to it, because it is too personal to be specifically enforced…

33We are not here dealing with minor social issues in, for example, a recreational club but rather substantive issues which will have wide-ranging and serious impact upon many people. Pursuant to Article 2 of the U SPORTS bylaws, SMU is a member of U SPORTS. The proposition that the jurisdiction of the Superior Court does not extend to injunctive relief concerning whether or not U SPORTS entered into a settlement agreement with SMU is simply untenable.

E. Test from RJR MacDonald

34An application for an interim or interlocutory injunction will be granted when: (1) there is a serious issue to be tried; (2) the applicant demonstrates the likelihood that it will suffer irreparable harm if the injunction is refused, and (3) the balance of convenience is in the applicant’s favour (R.J.R. MacDonald Inc. v. Canada (Attorney General), [1993] 1 S.C.R. 311.

35The branches of the test can be considered as a whole when assessing their collective impact. As Justice Sharpe states in his authoritative text Injunctions and Specific Performance:

The terms “irreparable harm”, and “status quo” and “balance of convenience” do not have a precise meaning. They are more properly seen as guides which take colour and definition in the circumstances of each case. More importantly, they ought not to be seen as separate, and water-tight categories. These factors relate to each other, and strength on one part of the test ought to be permitted to compensate for weakness on another.

E(1). Serious Issue to be Tried

36The serious issue to be tried standard is a relatively low standard, requiring that the moving party merely show that its claim is not frivolous or vexatious (RJR, p. 337-339). The higher standard of a strong prima facie case is required where the result of the interlocutory injunction will amount to a final determination of the claim (RJR, p. 337). SMU argues that it meets both the serious issue to be tried, and the strong prima facie case standards.

37SMU argues that there is both a serious issue to be tried, and a strong prima facie case because: (1) The Agreement between the parties is a clear settlement; (2) U SPORTS is thus estopped from bringing the complaint; and (3) U SPORTS waived its right to bring the complaint.

E(2). Offer and Acceptance

38For the purposes of this analysis, I will only deal with the strong prima facie case test which is the much higher burden. I find that there is a strong prima facie case of a valid offer and acceptance. In my view, the offer in Mr. David Goldstein’s (COO of U SPORTS) October 30, 2017 letter is clear, unambiguous and firm. The letter does not communicate a tentative position. Crucially, Mr. Goldstein states:

Accordingly, U SPORTS will not pursue a complaint against Saint Mary’s University with respect to the eligibility of Archelaus Jack. Kindly confirm that Saint Mary’s will not be proceeding to the Supreme Court of Nova Scotia to pursue an Order confirming its interpretation, or any other legal action.

39It is transparent from the letter that if SMU accepts the offer, the matter is over. Mr. Goldstein, as COO, tendered the offer on behalf of U SPORTS not on behalf of himself personally or on behalf of Mr. Brown, the CEO. He was binding U SPORTS. He made that clear by the unequivocal use of the U SPORTS name to start the pivotal paragraph: “Accordingly, U Sports will not pursue a complaint against Saint Mary’s University…”

40U SPORTS argues that Mr. Goldstein’s letter actually meant that only U SPORTS would not pursue a complaint against Saint Mary’s. U SPORTS argues that Mr. Goldstein’s letter was silent on the possibility that a complaint against Saint Mary’s by a competitor school would proceed, and that is exactly what happened here.

41From the lens of the strong prima facie case test, U SPORTS argument is not persuasive because while member schools can make complaints, only U SPORTS has the jurisdiction under its bylaws to decide whether to pursue a complaint. U SPORTS policies on Complaints, Investigations, and Discipline demonstrate that the only people who have the jurisdiction to decide if a complaint can go forward are the designate of the CEO and the COO.

42Under U SPORTS’ Complaints, Investigation and Discipline Policy, the Complainant can be U SPORTS or an individual, or a member institution engaged in the activities of U SPORTS. Policy 90.30.3.3 states, “Complaints, which include self-disclosures, shall be directed to the Chief Operating Officer, who shall forward it within 7 days to the designate of the CEO.” Policy 90.30.4.1 on the Determination of a Formal Charge states:

Within 7 days of receiving the written complaint, the designate of the CEO and the Chief Operating Officer, shall consider the complaint to determine whether or not to initiate an investigation and what the scope of that investigation should be in order to proceed with this policy, specifically, to determine whether or not to prepare a formal charge.

43The U SPORTS policy on the Determination of a Formal Charge (90.30.4) clearly gives the discretion to the designate of the CEO and the Chief Operating Officer to determine if there are grounds for a formal charge. Policies 90.30.4.9 and 90.30.4.10 stipulate:

If the designate of the CEO and Chief Operating Officer, determines that there are no grounds for a formal charge, the designate of the CEO shall immediately advise the Affected Parties. In consultation with the Chief Operating Officer, the CEO designate may levy costs of any investigation against the complainant.

If it is determined that there are grounds for a formal charge, within 7 days, the designate of the CEO, with the support of the Chief Operating Officer, shall prepare the charge in writing setting out the same information as is required to be set out in a complaint under Section 90.30.3.3 of this policy.

44The offer that U SPORTS made to SMU in Mr. Goldstein’s letter of October 30, 2017 was that U SPORTS would not pursue a hearing against SMU, on the issue of Mr. Jack’s eligibility – regardless of who made the complaint. Based upon the strong prima facie case perspective, that is a very reasonable interpretation of U SPORTS’ intentions, and likely the only possible one on its face. If, as U SPORTS now argues, U SPORTS was only offering not to be the complainant against SMU, then the doctrine of good faith required that U SPORTS should have clearly communicated that to SMU at the time; otherwise, they truly lulled SMU into a false sense of security. But most importantly, that proposition strikes me as unreal when I re-read Mr Goldstein’s letter against the backdrop of U SPORTS’ policies.

45Mr. Goldstein’s letter asked SMU, as consideration for U SPORTS’ offer, not to pursue a court proceeding regarding the ambiguity of the one-year rule. From the strong prima facie case lens, the most viable interpretation of U SPORTS offer is that it included an offer not to pursue subsequent identical complaints made by other schools on this same issue. The language of U SPORTS offer is unequivocal. U SPORTS did not, for example state, “At this time U SPORTS will not pursue a complaint…” SMU was ready to go to court to resolve this matter as of October 30, 2017. SMU had no reason to agree to the offer, and waive its right to pursue the matter in court, unless the offer was genuine from U SPORTS that U SPORTS would not prepare a formal charge against SMU based upon Mr. Jack’s eligibility.

E(3). Settlement Agreement Enforceable

46In order to conclude that the Settlement Agreement between SMU and U SPORTS is enforceable, a Court must conclude that the parties: (1) had mutual intention to create a legally binding contract, and (2) reached agreement on all of the essential terms of the settlement (Hodai v. RBC Dominion Securities, 2011 ONSC 6881, at para. 17).

47Based upon the strong prima facie case test, the correspondence filed on this motion between U SPORTS and SMU demonstrates that the parties had a mutual intention to create a legally binding contract, and that the parties agreed on two essential terms of the settlement: (1) U SPORTS would not pursue a complaint against SMU regarding Mr. Jack’s eligibility; and (2) SMU would not pursue a court order confirming its interpretation of the U SPORTS eligibility policy.

48When U SPORTS pursued the complaint against SMU, as evidenced by the Formal Charge that was enclosed to Ms. Hahto’s letter to SMU on November 3, 2017, U SPORTS breached the settlement agreement.

49When a negative covenant has been breached, there is a strong presumption in favour of the granting of injunctive relief. Courts are also more willing to grant injunctive relieve where the moving party is seeking specific performance of a negative obligation, as is the case here. In Doherty v. Allman (1878), 3 App. Cas. 709 at 720 (H.L.), Lord Cairns stated:

If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all the a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury – it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves.

50Specific performance is available where damages would not constitute a complete remedy. If U SPORTS is allowed to breach its promise to SMU not to pursue the complaint regarding Mr. Jack’s eligibility, the results of the complaint could remove SMU from the AUS playoffs. Such a result could not be remedied by damages. Specific performance is therefore necessary in this situation.

E(4). Why U SPORTS is Estopped or Waived

51SMU argues that U SPORTS is also prevented under the doctrine of promissory estoppel from pursuing the complaint.

52Sopinka J. stated the elements of promissory estoppel in Maracle v. Travellers Indemnity Co. of Canada, 1991 CanLII 58 (SCC), [1991] 2 S.C.R. 50, at p. 57:

The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. In John Burrows Ltd. v. Subsurface Surveys Ltd., 1968 CanLII 81 (SCC), [1968] S.C.R. 607, 68 D.L.R. (2d) 354, Ritchie J. stated [at p. 615, S.C.R]:

It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties entered into a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legal relations created by the contract would be altered as a result of the negotiations.

53In using the strong prima facie test, I find that the elements of promissory estoppel are fulfilled in this case because U SPORTS assured SMU that it would not pursue a complaint against SMU on this issue. As SMU argues, this promise was meant to affect U SPORTS’ legal relationship with SMU, and it was to be acted upon. Further, the promise induced SMU not to pursue court proceedings. It is clear that by not pursuing court proceedings, SMU relied upon U SPORTS’ to its own detriment.

54SMU argues that in the alternative, U SPORTS waived its right to pursue a complaint against SMU. Waiver occurs where one party communicates a clear intention to waive a right to another party. In order for SMU to establish waiver, SMU must establish that U SPORTS had: (1) full knowledge of the deficiency that might be relied on and (2) an unequivocal and conscious intention to abandon the right to rely on it (Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597 at para. 63, citing Saskatchewan River Bungalows Ltd. V. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490.

55Based upon the strong prima facie case test, the requirements of waiver are also made out in this case. It would appear on the record before me that U SPORTS had more than sufficient knowledge of the facts surrounding Mr. Jack’s eligibility. U SPORTS was also aware that other member institutions, or individuals could make complaints regarding Mr. Jack’s eligibility. With knowledge of these facts, and while maintaining in Mr. Goldstein’s October 30, 2017 letter that U SPORTS’ position was that the one-year ineligibility rule was not ambiguous, U SPORTS waived their right to pursue a complaint against SMU for the purpose of inducing SMU not to pursue legal proceedings to resolve the interpretation of the one-year rule.

F. Irreparable Harm

56Harm is irreparable where it cannot be quantified in monetary terms, or an award of damages would not adequately compensate the moving party for his/her loss (RJR at p. 341). Our courts have recognized that the harm of the loss of the opportunity to participate in sports can be irreparable. In Gymnopoulos v. Ontario Assn. of Basketball Officials, 2016 ONSC 1525, [2016] O.J. No. 1097, Bird J. held at para. 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 (Ont. Div. Ct.). 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).

57I accept that if SMU is removed from the playoffs as a result of a U SPORTS Tribunal decision, every player on the football team will suffer irreparable harm that cannot be monetarily compensated. I also accept SMU’s position that a negative decision from the U SPORTS Tribunal will cause SMU serious reputational harm to SMU as an academic institution, and irreparably damage SMU’s ability to recruit players to participate in its athletic programmes in the future. I also accept that alumni and members of SMU’s staff are concerned about the impact that these events will have on SMU’s alumni relations, fund raising, and the general recruitment of students to SMU.

58As such, I find that SMU has made out the branch of the injunctive test constituting irreparable harm.

G. Balance of Convenience

59The balance of convenience depends upon assessing the relative harm to each party of granting or refusing the injunction sought (RJR, p. 342, 348-349.)

60In this case, SMU has acted without any delay and has been very efficient in bringing this motion. SMU relies on the Saskatchewan Court of Appeal decision in Potash Corp of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, 2011 SKCA 120 where the Court held that the procedural context in which the proceedings arose was a relevant consideration to be taken into account when weighing the equities of granting the injunction.

61Here, because SMU relied upon U SPORTS assurance that U SPORTS would not pursue a complaint against SMU, SMU now will not have sufficient time to challenge the Tribunal’s ruling before the playoff game on Saturday, November 11, 2017. It will be out of time because it relied upon U SPORTS’ clear assurance not to proceed with the complaint.

62SMU has won the first round of the playoffs. It earned the right on the playing field to advance to the next round against Acadia. If SMU is removed from the AUS playoffs, every player and coach on the men’s football team will suffer. If I were not to grant this interlocutory injunction in light of my analysis on the settlement negotiations between U SPORTS and SMU, I would err in assessing both the balance of convenience and irreparable harm tests.

H. Conclusion

63In conclusion, the interim interlocutory injunction is granted enjoining U SPORTS from releasing its decision in the SMU case. Wednesday November 15, 2017 is set aside for argument, if necessary, to extend the duration of the injunction and to consider its potential permanence.

64On consent, the parties have agreed that the successful party on this motion (SMU) will receive $10,000 in costs inclusive of disbursements, plus HST.

Archibald J.