Court File and Parties

COURT FILE NO.: CV-17-587542 DATE: 20190102 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Saskatchewan Cricket Association, Applicant AND: Cricket Canada, Respondent

BEFORE: Justice Peter Bawden

COUNSEL: Tarunjeet Gujral, for the Respondent None Appearing, for the Applicant, Saskatchewan Cricket Association

HEARD: September 18, 2018

Endorsement

[1] The applicant Saskatchewan Cricket Association (“SCA”) seeks judicial review of an arbitration award made by Professor Richard McLaren on August 8th, 2017. The responding party, Cricket Canada (“CC”) submits that the arbitrator’s findings were both reasonable and correct and the application should be dismissed.

[2] The applicant filed only a Notice of Application and it is extremely difficult to identify the grounds for this application from that document. The paragraphs are not consistently numbered so references to the Notice of Application are of limited assistance. The following appear to be the grounds for the application:

• The arbitrator’s decision with respect to the facts and the law was contrary to the evidence presented at the hearing;
• The arbitrator erred in finding that solicitor-client privilege precluded the applicant from calling counsel for Cricket Canada, Mr. Steven Indig, as a witness at the arbitration hearing;
• The arbitrator erred in admitting hearsay evidence by allowing witnesses to testify concerning legal opinions which they had received from Mr. Indig;
• The arbitrator failed to consider the public policy considerations arising out of a previous arbitrator’s finding of misconduct by the Board of Directors of Cricket Canada; and
• The arbitrator failed to identify any exceptional circumstances which would justify ordering $5,000 in costs against the applicant.

Factual Findings

[3] Section 46(1) of the Arbitration Act provides an exhaustive list of the grounds to set aside an arbitrator’s award. Disagreement with the arbitrator's findings of fact is not an enumerated ground. If the arbitrator's findings were unreasonable, it might be argued that a review could be considered under s. 46(1)(6) of the Act. In this case, however, the applicant has not identified any dubious factual finding made by the arbitrator. The reasons of the arbitrator comprehensively address the relevant evidence and there is no basis to find that the arbitrator’s factual determinations were anything other than reasonable and entirely within his province.

Privilege Issue

[4] The respondent concedes that the appropriate standard for review on this question is correctness.

[5] The arbitrator found (and it is not disputed here) that Mr. Indig was counsel to CC with respect to the very matter which was the subject of the arbitration hearing. CC refused to waive solicitor-client privilege and objected to their own counsel being called as a witness to testify concerning legal advice that he had provided.

[6] In a list of issues provided to the arbitrator at the outset of the hearing, SCA alleged that CC had purchased “bogus” legal opinions from Mr. Indig and others in order to further their corrupt practices as a board. The arbitrator quite correctly recognized the potential breach of solicitor-client privilege if Mr. Indig was to be called as a witness. There is nothing in the record to suggest that Mr. Indig had any relevant evidence to give apart from matters which would clearly fall within the privilege. The arbitrator acted correctly in precluding SCA from calling Mr. Indig as a witness.

Hearsay Evidence

[7] One of the central points of dispute between the applicant and CC was the removal of the “succession” clauses from the by-laws of the corporation.

[8] In paragraph 36 of his reasons, the arbitrator recounts evidence given by Mr. Amit Joshi that CC received advice from Mr. Indig which caused the board to believe that it was not necessary to include the clauses in the by-laws. The clauses no longer had the support of the board and they were removed. Other witnesses gave similar evidence concerning statements made to them by Mr. Indig.

[9] Mr. Joshi’s evidence of what he was told by Mr. Indig was not hearsay. The value of the evidence did not lie in the truth or falsity of Mr. Indig’s statement but rather in the effect of his advice on Mr. Joshi. The issue in this arbitration was not the legal correctness of Mr. Indig’s advice to CC but rather the validity of the applicant’s allegations of corrupt practice against the respondent.

[10] The arbitrator was correct in recognizing that the evidence was not hearsay and to receive the testimony of Mr. Joshi.

Public Policy Considerations

[11] In a separate but factually related proceeding, a different arbitrator had found that the election of CC’s Board of Directors was conducted improperly and ordered that new elections be held. The arbitrator made a number of orders concerning how future elections were to be held and ordered CC to amend its bylaws to confirm to those orders. CC brought an application for judicial review of the arbitrator’s decision which was successful. Justice Kristjanson found that the orders were ultra vires of the arbitrator’s authority and quashed the ruling. The reasons for that decision are reported at 2017 ONSC 3301.

[12] The applicant submits that the arbitrator in these proceedings was bound by the finding of the earlier arbitrator that the board of CC had acted in a nefarious, corrupt fashion. The applicant further alleges that the arbitrator here failed to consider the unspecified public policy implications of CC’s corrupt behaviour.

[13] The arbitrator did advert to the earlier ruling and invited both parties to make submissions as to whether Justice Kristjanson’s Ruling had any relevance to this proceeding. Neither party argued that it did.

[14] Any “public policy” considerations which purportedly arose from the earlier ruling were extinguished by the successful challenge to the arbitrator's jurisdiction. The previous arbitrator found that there had been a failure to adhere to the by-laws of the corporation but he did not find that this involved any corrupt practice on the part of the Board of Directors. Professor McLaren did not find any corrupt practices in this case and there is nothing in the record to suggest that he should have. There is no evidence to support a finding that there were any issues of public policy at stake in these proceedings.

Costs

[15] The awarding of costs is governed by section 6.22 of the Canadian Sport Dispute Resolution Code. The section requires the arbitrator to consider whether to order costs based on factors such as the outcome of the proceeding, the conduct of the parties and their respective financial positions. The applicant is mistaken in its submission that the awarding of costs demands exceptional circumstances.

[16] The arbitrator observed that CC had succeeded in the event and would ordinarily receive costs as a result. In this case, however, there had been a lack of communication between the parties which gave rise to misunderstandings which ultimately necessitated the hearing. Recognizing that the failure to communicate was common to both parties, the arbitrator elected to order minimal costs of $5,000 against SCA.

[17] The awarding of costs involves the interpretation of the Code which governs the arbitration hearing itself. This is clearly within the field of expertise of the arbitrator and the appropriate standard of review is reasonableness. The record demonstrates that the arbitrator was aware of the appropriate test, considered the criteria which were relevant to the case before him and made an order which fell within the range of acceptable outcomes which were open to him. There is no basis for this court to interfere with the costs order.

[18] The application for judicial review is dismissed. The parties are to provide written submissions concerning their costs for this application within 60 days of the release of this endorsement.

Justice Bawden Released: January 2, 2019