Court File and Parties

COURT FILE NO.: CV-17-582393 DATE: 20181204 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KIRILL SVESHNIKOV, DMITRY STRAKHOV AND DIMITRY SOKOLOV Plaintiffs – and – WORLD ANTI-DOPING AGENCY (WADA) and RICHARD MCLAREN Defendants

Counsel: Eric S. Block, Fiona E. Legere and Christine Wadsworth for the Plaintiffs James D. Bunting and Carlos Sayao for the Defendant World Anti-Doping Agency (WADA) J. Thomas Curry and Robert Trenker, for the Defendant Richard McLaren

HEARD: December 3, 2018

Endorsement

DIAMOND J. :

[1] The plaintiffs are three Russian cyclists who were excluded from participating in the 2016 Summer Olympic Games in Rio de Janeiro, Brazil, by the International Olympic Committee (“IOC”). In this proceeding, the plaintiffs have sued the World Anti-Doping Agency (“WADA”) and Richard McLaren (“McLaren”) for damages allegedly caused by the defendants’ negligent investigation of doping allegations, defamation and other unlawful acts.

[2] On December 3, 2018, I was scheduled to hear three motions brought by the defendants. Those motions were as follows:

(a) the defendants’ joint Rule 21.01(3)(a) motion to dismiss or permanently stay this proceeding on the grounds that this Court has no jurisdiction over the subject matter of the claim; (b) the defendants’ joint Rule 21.01(3)(d) motion to dismiss or permanently stay this proceeding on the grounds that it is an abuse of process; and, (c) McLaren’s Rule 21.01(1)(b) motion to strike out the Statement of Claim as against him on the grounds that it discloses no reasonable cause of action.

[3] I shall refer to the defendants’ two joint motions collectively as the Rule 21.01(3) motions.

[4] Voluminous records were filed by all parties. At the outset of the hearing, I raised a concern with counsel that the Court’s ultimate disposition of the Rule 21.01(3) motions could require a fact-finding exercise that exceeds the normal jurisdiction afforded a Judge hearing a Rule 21 motion. Submissions were made to address this concern, and at the end of the morning I indicated to counsel that, for reasons to follow, my concern was not alleviated and the Rule 21.01(3) motions were to be reconstituted and proceed as either motions for summary judgment, or perhaps a trial of the issues of jurisdiction and abuse of process.

[5] I then advised counsel that brief reasons would follow. These are those reasons.

[6] In Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, 2011 ONCA 728, the Court of Appeal for Ontario upheld a decision of Justice Beaudoin dismissing a proceeding on the grounds of lack of jurisdiction. The motion before Justice Beaudoin was brought pursuant to Rules 21.01(3)(a) and 21.01(3)(d).

[7] In upholding Justice Beaudoin’s decision, the Court of Appeal for Ontario held as follows (my emphasis in bold):

“Father Hart argues that because this was a Rule 21 motion, the motion judge ought not to have made findings on these disputed issues, and then used those findings to decide the motion. I do not agree with this argument.

I start with the obvious point that evidence is admissible on a motion to determine jurisdiction. A court cannot resolve a question of subject matter jurisdiction without a factual foundation. On the present motion Father Hart filed one affidavit from an expert on canon law. The Archdiocese filed two affidavits, one from an expert on canon law, the other from the Vicar General of the Archdiocese. All three deponents were cross-examined. Their evidence went before the motion judge without objection.

Although evidence is admissible on a jurisdiction motion, the courts have limited the motion judge’s fact-finding powers to those facts necessary to decide jurisdiction. The motion judge may make findings on jurisdictional facts but not on “disputed central questions of fact.” The rationale for limiting the motion judge’s fact-finding powers in this way is to prevent a jurisdictional challenge from becoming a “mini-trial,” and thereby doing an “end run” around what should properly be a motion for summary judgment: see Goudie v. Ottawa (City), 2003 SCC 14, 2003 S.C.C. 14, [2003] 1 S.C.R. 141.

Even findings on jurisdictional facts may be beyond the purview of a motion judge if those jurisdictional facts are at the same time disputed central questions of fact, that is, facts going to the underlying merits of the claim. That was the situation in Goudie. There, employees covered by a collective agreement with the City of Ottawa sued in the Superior Court alleging a breach of a pre-employment contract outside the terms of the collective agreement. The City moved to stay the action on the ground that labour disputes must be arbitrated, not litigated in the courts. The motion judge agreed and dismissed the action.

This court overturned that decision and the City’s appeal was dismissed by the Supreme Court of Canada. As Binnie J. said at para. 33, “The pleadings themselves established that the central allegation of jurisdictional fact (the existence of a pre-employment contract) was also the central issue on liability in the lawsuit.” Thus, “the jurisdictional issue could not be determined on a preliminary motion” (at para. 34).

The motion giving rise to this appeal differs from the motion in Goudie in that here the jurisdictional facts are quite separate from the facts relating to the underlying merits of Father Hart’s constructive dismissal claim. Four of the five findings Father Hart complains of relate to the question of the Superior Court’s jurisdiction over his claim; not one is a disputed central question of fact relating to its merits. The second finding – the chronology of events – simply puts the jurisdiction argument in context. The motion judge was entitled to make all five findings to decide whether the court had jurisdiction. I would not give effect to this ground of appeal.”

[8] The plaintiffs have attached as Appendix “C” to their factum a list of what they contend are disputed facts which (a) go beyond the traditional “jurisdictional facts” which the Court may decide on a Rule 21.01(3) motion, and (b) delve into the merits of the proceeding itself. The plaintiffs submit that, unlike the factual matrix in Hart, there is a substantive risk, if not a likelihood, that the Court’s potential disposition of these disputed facts will devolve the Rule 21.01(3) motion into a mini-trial, something which (as set out above) the Supreme Court of Canada frowned upon in Goudie. As such, the plaintiffs ask that the Rule 21.01(3) motions be dismissed as being no more than “dressed up motions for summary judgment.”

[9] I have reviewed Appendix “C” attached to the plaintiffs’ factum. Most of the purported disputed facts relate to either jurisdictional facts and/or the context needed to explain the defendants’ jurisdictional arguments. That said, in my view there is one issue that would require me to stray beyond my role on a Rule 21.01(3) motion and force me to make findings on “disputed central questions of fact” as that term was used by the Court of Appeal for Ontario in Hart.

[10] Central to the defendants’ argument is their submission that an essential pillar of the International Olympic Regulatory Regime is a robust and specialized dispute resolution system with mandatory and exclusive jurisdiction to resolve sport-related disputes. The defendants submit that the Court of Arbitration for Sport (“CAS”) is the specialized arbitral tribunal charged with adjudicating all such disputes.

[11] The alleged exclusive jurisdiction of the CAS is a key component to the defendants’ argument. In support of their position, the defendants rely upon the expert opinion of the Honourable L. Yves Fortier, Q.C. (“Fortier”). In response, the plaintiffs have tendered the expert opinion of Dr. Despina Mavromati (“Mavromati”).

[12] In Hart, the Court of Appeal for Ontario confirmed that the experts who gave evidence before Justice Beaudoin were in agreement that a pastor’s office is ecclesiastical, and thus it was canon law which jurisdictionally created a pastor’s office, duties and responsibilities (all underlying jurisdictional facts necessary to decide the Rule 21.01(3) motion before Justice Beaudoin).

[13] The same cannot be said in the case before me. Both Fortier and Mavromati differ in their respective conclusions as to the scope and application of the arbitration clause at issue in this proceeding. In addition, the plaintiffs challenge Fortier’s alleged lack of independence in support of their position that Mavromati’s opinion should be preferred over that of Fortier.

[14] I find that the above evidence will require me to make findings of fact beyond those limited to a judge hearing a Rule 21.01(3) motion. Not only am I being asked to make findings of credibility against Fortier due to his alleged lack of independence, but I am also being asked to make findings of fact going to the merits of the dispute in terms of the CAS’ purported exclusive jurisdiction to entertain the dispute(s) in question.

[15] As a result, I decline to hear the Rule 21.01(3) motions as currently constituted, and as a result make the following order:

(a) the Rule 21.01(3) motions shall be reconstituted and heard as either Rule 20 motions for summary judgment, or a trial of the issues of jurisdiction and abuse of process, both processes subject to the discretion of the presiding Judge. Counsel for the parties shall seek instructions from their respective clients with a view to advising me how the Rule 21.01(3) motions shall proceed. (b) McLaren’s Rule 21.01 motion shall “take a back seat” for the time being, and await the Court’s disposition of the reconstituted Rule 21.01(3) motions, all without prejudice to the rights and interests of the parties to this litigation; (c) whether the Rule 21.01(3) motions proceed as motions for summary judgment or a trial of issues, the defendants shall serve and file Statements of Defence limited to the issues of jurisdiction and abuse of process. Those Statements of Defence shall not result in the defendants having attorned to the jurisdiction of the Ontario Superior Court of Justice. (d) the parties shall participate in a telephone case conference with me on December 11, 2018 at 9:15 am. They may make the scheduling arrangements with my assistant Michelle Giordano at michelle.giordano@ontario.ca. During that case conference, counsel will confirm whether the Rule 21.01(3) motions will be reconstituted as motions for summary judgment or a trial of issues, and the parties shall hopefully agree upon a timetable for the remaining steps leading up to a hearing date(s), which date(s) shall thereafter be scheduled with my assistance through the motion scheduling office. (e) the costs of the December 3, 2018 attendance shall be reserved to the Judge presiding over the reconstituted Rule 21.01(3) motions.

[16] Order accordingly.

Diamond J. Released: December 4, 2018