Court File and Parties
COURT FILE NO.: CV-17-587538 DATE: 20180925 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BILAL SYED Applicant
AND:
CRICKET CANADA Respondent
BEFORE: Mr. Justice Peter Bawden
COUNSEL: Mr. Tarunjeet Gujral for the Respondent Mr. Bilal Syed on his own behalf
HEARD: September 19th, 2018
REASONS FOR JUDGMENT
[1] Mr. Bilal Syed seeks judicial review of the finding of an arbitrator under section 46(1) of the Arbitration Act. The Notice of Application is the only document that Mr. Syed filed in support of the application. Notwithstanding the failure of Mr. Syed to provide materials to support his application, the respondent has filed transcripts of the arbitration hearing, a factum, an application record and a Book of Authorities. Those materials have been extremely helpful and I am grateful to counsel for Cricket Canada for his diligence in preparing such a fulsome response to a sparse application.
[2] Mr. Syed was a candidate in the May, 2016 election for the presidency of Cricket Canada. He was unsuccessful in his campaign and subsequently challenged the election before an arbitrator alleging that the election was tainted by racism, discrimination and corrupt practices by the executive of Cricket Canada. The arbitrator dismissed the essence of Mr. Syed's complaints but did find fault with nine aspects of Cricket Canada’s by-laws and ordered the non-profit organization to amend them. The arbitrator considered the issue of costs and provided lengthy reasons explaining why he would not order costs against either party. He placed particular reliance on Section 6.22 of the Canadian Sport Dispute Resolution Code which reads in part:
6.22(a) Except for the costs outlined in Subsection 3.9(e) and Section 3.10 hereof and subject to Subsection 6.22(c) hereof, each Party shall be responsible for its own expenses and that of its witnesses.
6.22(c) The Panel shall determine whether there is to be any award of costs and the extent of any such award. When making its determination, the Panel shall take into account the outcome of the proceedings, the conduct of the Parties and their respective financial resources, intent, settlement offers and each Party’s willingness in attempting to resolve the dispute prior to or during Arbitration. Success in an Arbitration does not mean that the Party is entitled to be awarded costs.
[3] Cricket Canada sought judicial review of the arbitrator's order to amend its by-laws. That application was heard in May, 2017 before Justice Kristjanson of this Court. In reasons which are reported at 2017 ONSC 3301, Justice Kristjanson found that the arbitrator's order was outside of the scope of the arbitration agreement and granted Cricket Canada's application to quash the impugned orders. Mr. Syed was served with all of the materials relating to that application but did not appear and did not file any responding materials.
[4] In November, 2017, Mr. Syed served notice of this application. The Notice of Application appears to argue two points:
That the arbitrator erred in failing to award costs to Mr. Syed on a substantial indemnity basis; and
That the appropriate forum to review the decision of the arbitrator was Saskatchewan, not Ontario.
[5] Mr. Syed contends that he “won” the arbitration hearing as is evidenced by the fact that Cricket Canada was obliged to apply to this Court to review certain aspects of the decision. Mr. Syed maintains that the arbitrator's decision affirms his allegations of corrupt and unfair practices in the election of May, 2016 and he, as an impecunious litigant, is entitled to the entirety of his costs for having revealed the nature and extent of the wrongdoing.
[6] The arbitrator's decision does not even remotely support the submission made by Mr. Syed. The arbitrator dismissed the essence of Mr. Syed's complaints and found that Cricket Canada had acted in good faith at all times. The arbitrator also found that Mr. Syed's conduct in the course of the hearing had been obstructive and that Mr. Syed only escaped having costs awarded against himself because of the few points that were decided in his favour. All of those points were subsequently found to have been ultra vires of the arbitration agreement by Justice Kristjanson.
[7] The determination of costs was entirely within the jurisdiction of the arbitrator. The standard of review is one of reasonableness and given the terms of section 6.22 of the Resolution Code, that standard was obviously met here. The arbitrator gave fulsome and cogent reasons for his decision not to award any costs in the matter and, based on his comments concerning Mr. Syed's conduct during the hearing, one might conclude that Mr. Syed was fortunate that costs were not ordered against him.
[8] The decision regarding costs was a reasonable one which was well supported by the record. The application to review the costs order is dismissed.
[9] Justice Kristjanson also considered the issue of the jurisdiction of the Ontario Superior Court to hear a review of the arbitrator’s decision and concluded that it was. I agree entirely with Her Honour's reasons which appear at paragraph 54 of her judgment.
Conclusion
[10] The application for judicial review of the decision of the arbitrator is dismissed.
Justice Peter Bawden