Court File and Parties
Court File No.: 19-68678 Date: 2019-03-15 Superior Court of Justice – Ontario
Re: Niagara Ice Dogs Hockey Club Inc., Applicant And: Ontario Major Junior Hockey League (OHL), David Branch and another
Before: Mr Justice Ramsay
Counsel: David Thompson and R. Brent Marshall for the Applicant
Heard: March 15, 2019
Endorsement
[1] The Applicants are an OHL hockey team. The Respondents concerned in this motion are the league and its commissioner. The Applicants are moving ex parte for an interim injunction to require the OHL to adjourn an appeal filed by the Applicants from a discipline ruling made by the commissioner. The Application itself seeks an order staying further discipline proceedings until a dispute between the Applicant and one of its players is submitted to arbitration.
[2] As a courtesy the Applicant gave the Respondents a copy of its motion materials this morning. Their lawyer was able to attend, but was not in a position to file materials in response or prepare for argument. He did send a letter to the Applicants setting out his position, which the Applicants included in their materials.
[3] In May 2018 the former player complained to the commissioner that in addition to the terms of the written contract between him and the Ice Dogs, the Ice Dogs had promised him $10,000 for every year he played with them (four years) in a side contract that was not disclosed to the league and that they had not paid him. The Ice Dogs maintain that they never made that promise, which would have contravened the rules of the league.
[4] The commissioner caused a law firm to investigate the allegations. The investigator filed a report with its findings of fact in June 2018. The investigator concluded that the Ice Dogs had made the alleged unwritten deal.
[5] On February 15, 2019 the commissioner accepted the findings of the investigator and issued a decision fining the Ice Dogs $250,000 and depriving them of two future draft picks. The investigator interviewed representatives of the Ice Dogs but the decision was made without further process.
[6] On March 1, 2019 the Ice Dogs filed an appeal to the league under the provisions of its constitution and asked for “the earliest date” for hearing. On March 11, 2019 they were given March 18, 2019.
[7] On March 14, 2019 (yesterday) the Ice Dogs wrote to the commissioner asking him to arbitrate the contract dispute between the team and the player. In view of the arbitration request the team asked to commissioner to have the Board of Governors adjourn the appeal. By e-mail of the same day, the OHL declined to adjourn the appeal.
[8] Today the Ice Dogs brought this application and motion.
[9] They argue that the league cannot proceed on the appeal because the written agreement between the Ice Dogs and the player contains an arbitration clause. They cite s.6 of the Arbitration Act, 1991, S.O. 1991, c. 17, which provides:
6 No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:
- To assist the conducting of arbitrations.
- To ensure that arbitrations are conducted in accordance with arbitration agreements.
- To prevent unequal or unfair treatment of parties to arbitration agreements.
- To enforce awards.
[10] It is submitted first that the Arbitration Act applies because of the arbitration clause in the player’s contract, and second that the court can intervene under the first three clauses of section 6.
[11] I do not accept the Applicant’s argument because the decision in question did not concern the player’s contract. The commissioner’s decision did not purport to decide the issue between the player and the team. It did not award the player any compensation. The commissioner was not asked to arbitrate the dispute between the league and the player until after he had issued the decision in question. The commissioner imposed a penalty on the Ice Dogs for breach of the league’s rules, by which the Ice Dogs have agreed to abide. I have not been given any evidence of an arbitration clause in the league’s constitution, rules or by-laws.
[12] If the Ice Dogs wish to pursue a remedy in the courts for the decision of the commissioner, they should first exhaust the remedies available to them by virtue of their membership in the league.
[13] The motion is dismissed. The Application is adjourned sine die.
J.A. Ramsay J. Date: 2019-03-15