COURT FILE NO.: CV-19-80158

DATE: 20211119

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PHILIPE TURCANU Plaintiff (Responding Party)

– AND –

CONNOR FITZPATRICK and CANOE KAYAK CANADA Defendants (Moving Parties)

Yavar Hameed and Nicholas Valela, counsel for the Plaintiff (Responding Party)

Roberto D. Aburto, counsel for the Defendant Connor Fitzpatrick (Moving Party) Dennis Ong, counsel for the Defendant Canoe Kayak Canada (Moving Party)

HEARD: October 14, 2021

Reasons for DECISION

R. Smith J.

[1] The defendants, Connor Fitzpatrick (“Fitzpatrick”) and Canoe Kayak Canada (“CKC”), have brought a motion to dismiss the action pursuant to Rule 21.01(3)(a) and (d) on the ground that the action is frivolous, vexatious or an abuse of process, and alternatively, that the court lacks jurisdiction to hear this matter because the respondent initiated a complaint against Fitzpatrick under CKC’s Code of Conduct. The Moving Parties submit that Philipe Turcanu cannot now seek damages before the civil courts for injuries he suffered during the incident.

[2] The plaintiff, Philipe Turcanu (“Turcanu”), submits that the CKC policies do not constitute an exclusive labour arbitration regime that ousts the jurisdiction of the civil courts. The plaintiff further submits that CKC’s policies relate to “sports disputes” and discipline and do not allow for the recovery of monetary damages for injuries suffered as a result of tortious conduct, where the essential character of the claims are in tort and negligence. Turcanu submits that he should be allowed to proceed with his action because it is not frivolous or vexatious and the court has jurisdiction to provide a remedy.

Background Facts

[3] The defendant, CKC, is a non-profit sports organization and the Canadian designated governing body for Canada’s national level competitive canoeing and kayaking sports.

[4] Turcanu and Fitzpatrick were both members of the men's national canoe team and members of CKC at the relevant time.

[5] On October 12, 2018, CKC sent Turcanu a document known as the Athlete’s Agreement (“the Agreement”) that he was required to sign in order to become a member of CKC. The Plaintiff signed the Agreement on October 21, 2018, along with the Athlete Assistance Program form in order to receive government funding.

[6] The Agreement refers to CKC’s Code of Conduct (the “Code”), CKC’s Discrimination and Harassment Policy (the “D&H Policy”), and CKC’s Appeals Policy (the “Appeals Policy”). These documents were not attached directly to the Agreement, but Mr. Turcanu does not dispute that all of these documents were publicly available on the CKC Website at the time he signed the Agreement.

[7] While training in Florida between November 12 and December 19, 2018, Turcanu alleges that he was harassed, belittled and bullied by Fitzpatrick. On the evening of November 19, 2018, Turcanu further alleges that Fitzpatrick broke into his locked dormitory room wielding a knife, told him he was worthless and threatened to “knock him to F--- out”.

[8] Turcanu filed a complaint between December 3 – 7, 2018 about Fitzpatrick’s inappropriate conduct under CKC’s Code of Conduct and a hearing was held before a disciplinary panel.

[9] On December 11, 2018, the Disciplinary Panel rendered its decision finding that Fitzpatrick had committed a major infraction under CKC’s Code of Conduct by:

• contacting an unidentified female acquaintance of Turcanu to inquire as to the nature of their relationship (whether it was sexual or not);

• describing to the unidentified female acquaintance, that Turcanu was allegedly involved in a sexual encounter at an adult club; and

• entering into Turcanu’s locked room when it was apparent that Turcanu did not wish to interact with Fitzpatrick.

[10] On December 21, 2018, the Panel released supplemental reasons for its decision, providing additional explanations for its original findings, which remained unaltered. The Panel did not consider the impact of Fitzpatrick’s behaviour on the Plaintiff’s mental state, nor did they investigate the role of CKC in aggravating the situation faced by the Plaintiff.

[11] The Disciplinary Panel did not have authority to award compensation to the Plaintiff as a remedy for any injury caused to him, as a result of Fitzpatrick’s violation of CKC’s Code of Conduct. The Panel’s authority was limited to ordering disciplinary sanctions relating to Fitzpatrick’s future participation in CKC activities, including ordering a temporary suspension from same. The Panel imposed the following discipline:

• Fitzpatrick is suspended from all CKC activities for the period November 21, 2018 to January 21, 2019;

• Fitzpatrick is to be placed on probation for the period January 22, 2019 to August 31, 2019. During this period of probation CKC may immediately suspend Fitzpatrick for any alleged breaches of the Code in their discretion and any further discipline to be imposed upon Fitzpatrick should take into consideration the findings of this Disciplinary Panel; and

• Fitzpatrick should write a letter of apology to the Executive Director of CKC, Andreas Dittmer, Tyler Laidlaw and Lucas Turnbull recognizing how his actions have negatively impacted their work and training.

[12] Turcanu was dissatisfied with the short period of suspension imposed by the Panel on Fitzpatrick as he was worried about his physical proximity to and interaction with his attacker in the future course of his training with CKC. As a result, on January 3, 2019, he commenced an appeal relating to the length of Fitzpatrick’s suspension under CKC’s policies.

[13] Mr. Turcanu’s Notice of Appeal was drafted with the assistance of his counsel. The Notice of Appeal specifically asked for the following relief:

(a) A greater suspension of Fitzpatrick;

(b) A remedy that was punitive in nature;

(c) The Panel consider the effect of Fitzpatrick’s actions against Turcanu’s physical and emotional health;

(d) Injunctive relief with ensuring that Fitzpatrick be ordered to not contact Turcanu into the future; and

(e) Relief tantamount to a permanent ban of Fitzpatrick from CKC activity for 8 years.

[14] Despite the disciplinary proceedings, Fitzpatrick was permitted to remain as a member of CKC’s national team; however, Turcanu was not invited to return to the senior men’s training camp in the winter of 2019.

[15] On April 12, 2019, the Plaintiff was “liberated” from CKC, and its policies, including the Agreement, in exchange for agreeing to waive his right to pursue any further appeal of the Disciplinary Panel’s decision of December 11, 2018.

[16] In the spring of 2019, Turcanu alleged that he was diagnosed with PTSD caused by Fitzpatrick’s abuse and how the incident was handled.

[17] In October of 2020, Turcanu issued a statement of claim seeking monetary damages against CKC and Fitzpatrick for the harm caused to him including the intentional infliction of mental distress, negligence, restitution, assault and defamation.

Analysis

[18] CKC and Fitzpatrick (collectively referred to as “CKC”) seek an order under Rule 21 dismissing Turcanu’s claim as an abuse of process or an impermissible collateral attack on the Disciplinary Panel’s decision. CKC submits that the Agreement signed by Turcanu and CKC’s policies exclude the jurisdiction of the court to hear a claim for damages. CKC further submits that having intially decided to make a complaint under the CDC’s Code of Conduct and its policies, he is now prevented from commencing a civil action for damages.

[19] Turcanu submits that the CKC Agreement and the CKC’s policies do not constitute an exclusive statutory arbitral regime that ousts the jurisdiction of the court. Turcanu also submits that CKC’s policies and dispute resolution procedure relate to “sports disputes” and an athlete’s conduct, participation and discipline in the sport context.

[20] The CKC policy specifically states at para. (f) that the Disciplinary Panel does not have jurisdiction to award damages, compensative, punitive or otherwise.

[21] The Disciplinary Panel found that Fitzpatrick had committed a major code of conduct violation but did not find that Fitzpatrick had threatened to stab Turcanu with a knife. Fitzpatrick was essentially suspended from participating in all CKC activities for one month.

[22] The CKC policies do not specifically exclude the court’s jurisdiction to award damages for the commission of a tort and there is no collective agreement or a legislative scheme limiting Turcanu’s access to the court to obtain compensatory damages for injuries suffered due to negligence. The CKC policies also do not allow the Disciplinary Panel to award compensatory damages.

[23] In Sokolov v. The World Anti-Doping Agency, 2020 ONSC 704, two Russian nationals sought relief from a decision barring them from participating in the Rio Olympics based on blood doping concerns. The court held that the Court of Arbitration for Sport Charter (“CAS”) was an exclusive jurisdiction regime based on the clear language of the Olympic Charter. The Sokolov decision relates to the plaintiff’s eligibility to participate in the Olympics which was an issue within the exclusive jurisdiction of the Olympic Charter, which distinguishes it from Turcanu’s situation.

[24] Turcanu seeks a remedy of monetary compensation for injuries he suffered due to Fitzpatrick’s alleged tortious conduct, a remedy which is not available under CDC’s dispute resolution policy or under the Athlete’s Agreement. The remedies available through CDC's disciplinary procedure are limited to the following:

• Written reprimand;

• Removal of certain National Team Privileges;

• Suspension from the National Team;

• Revocation of competition privileges;

• Termination of the Agreement;

• De-carding; and

• Any other sanction it considers appropriate.

[25] The remedies available to the Disciplinary Panel relate to disciplinary options of limiting an athlete's ability to participate in the sport and do not permit an award of compensatory damages.

[26] In Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929, at para. 45, the Supreme Court applied the “essential character test”. The third component of the test was described in Gaignard v. Canada (Attorney General), 2003 CanLII 40299 (ONCA), at para. 18 as follows:

[18] The third consideration is whether the arbitration process provided by the collective agreement can furnish an effective remedy for the dispute. The remedy need not be identical to that which the court would provide, but it must be responsive to the wrong complained of. The arbitration process does not acquire exclusive jurisdiction if the result is a real deprivation of any ultimate remedy. [Emphasis added]

[27] In this case, the CDC's discipline process does not provide any remedy to award any compensatory damages to Turcanu for injuries he suffered as a result of tortious conduct by a fellow athlete and there is no statutory or collective agreement excluding the court's jurisdiction.

Disposition of Issue of Court’s Jurisdiction

[28] For the above reasons, I find the CDC's dispute resolution procedures do not oust the jurisdiction of the court to award remedy of damages for tortious conduct of a fellow athlete or of CKC.

Disposition of Whether the Claim is Frivolous and Vexatious or a Collateral Attack

[29] For purposes of a Rule 21 motion, the pleadings are deemed to be proven (Hunt v. Carey). In this case, Turcanu has pleaded that Fitzpatrick broke into his dormitory room and threatened him with a knife. The Discipline Panel found that Fitzpatrick had committed a major code of conduct violation by his actions but did not find that Fitzpatrick threatened Turcanu with a knife. In these circumstances, it is not plain and obvious that the plaintiff’s claim for damages for alleged tortious actions would not be successful.

[30] The claim is not a collateral attack on the Discipline Panel's decision because Turcanu agrees with the finding that Fitzpatrick's conduct constituted a major conduct code violation. Turcanu did not agree with the penalty imposed but the penalty is not challenged in the court proceeding, rather Turcanu is seeking compensatory damages for Fitzpatrick's alleged tortious conduct.

[31] The doctrine of Issue Estoppel and Abuse of Process are also not applicable because the same question will not be considered by the court, namely what if any damages should be awarded to Turcanu for the intentional torts allegedly committed by Fitzpatrick.

[32] The essential character and purpose of Turcanu’s claim is to seek compensatory damages and not to mount a collateral attack on the Discipline Panel’s decision. Turcanu does not seek to challenge the Panel’s decision and as a result, the doctrine of abuse of process would not be applicable.

[33] The “essential character” of the dispute set out in the statement of claim does not arise from the interpretation, application, administration or violation of a comprehensive regulatory regime that provides for an exclusive dispute resolution purpose, and as such, a court has jurisdiction to provide an effective remedy.

Disposition of Motion by CDC and Fitzpatrick

[34] For the above reasons, the motions by CDC and Fitzpatrick are dismissed.

Costs

[35] Turcanu may make submissions on costs within 10 days, the moving parties shall have 10 days to respond and Turcanu shall have 7 days to reply.

Released: November 19, 2021

COURT FILE NO.: CV-19-80158

DATE: 20211119

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PHILIPE TURCANU

Plaintiff (Responding Party)

– AND –

CONNOR FITZPATRICK and CANOE KAYAK CANADA

Defendants (Moving Parties)

reasons for DECISION

R. Smith J.

Released: November 19, 2021