A. Introduction

[1] The Tewaaraton Lacrosse League (“TLL”), which is a not-for-profit corporation incorporated under the Not-for-Profit Corporations Act, 2010[^1] sues the Ontario Lacrosse Association (“OLA”), another not-for-profit organization for interference in economic relations by unlawful means.

[2] The alleged interference in economic relations is that pursuant to an OLA regulation, an OLA athlete will be suspended from membership if he plays for a competing league, such as the TLL and a suspended athlete becomes ineligible to play for Team Ontario or Team Canada.

[3] The TLL says that it is being economically injured because it wishes to recruit the high-performance athletes that aspire to play for Team Ontario or Team Canada and OLA’s rule undermines the TLL’s ability to recruit athletes. Although the TLL is not a member of the OLA, it claims that the OLA’s rule is oppressive, ultra vires OLA’s by-laws, a restraint of trade, a breach of contract between the athletes and the OLA, and a contravention of the Competition Act[^2].

[4] In this motion for an interlocutory injunction, the TLL seeks an interlocutory injunction (a) suspending OLA Regulations 6.07(a) and (b); and (b) directing the OLA to cease interfering in the operations of the TLL.

[5] For the reasons that follow, the motion for an injunction is dismissed.

[6] I foreshadow to say that to understand those reasons, it shall be important to appreciate that if TLL’s injunction request had been granted, then not only would current Regulation 6.07 - the regulation that the TLL submits was designed to inflict harm on it - be suspended, but the essentially identical predecessor regulations - which have existed for the five decades before the TLL came into existence and that govern player/team affiliation - will also be suspended.

B. Procedural and Evidentiary Background

[7] On January 31, 2022, the TLL commenced its action against the OLA by Statement of Claim.

[8] On February 15, 2022, at a case management conference, the TLL sought an expedited hearing of a motion for an interlocutory injunction because it wanted to start its lacrosse league season in June 2022. After hearing submissions, Justice Vella determined that the motion was not urgent, and she fixed May 19, 2022 for a full day hearing.

[9] On February 17, 2022, the TLL brought its motion for an interlocutory injunction. The TLL supported its motion for an injunction with the following evidence:

• Affidavit dated February 7, 2022 of Brett Dobson. Mr. Dobson is a 21-year old, lacrosse player. He is a Canadian citizen born in Oshawa, Ontario. He plays goal for the men’s lacrosse team at St. Bonaventure University (New York) in the United States. His team is a Division I Athletic Program, the top college level. Mr. Dobson is an all-star lacrosse athlete.

• Affidavits dated February 9, 2022 and April 1, 2022 of Lewis Staats. Mr. Staats is one of the founders of the TLL. He is the TLL’s President. He is also the President of the Six Nations Arrows, one of the TLL’s five teams. The Six Nations Arrows were formerly a team of the OLA. Mr. Staats is a former member of the Board of Directors of the OLA.

[10] The OLA defended the motion with the following evidence:

• Affidavit dated March 17, 2022 of Greg Hummel. Mr. Hummel is the President of the OLA. He has been involved in lacrosse in Ontario as a player, coach, and volunteer for nearly 50 years. He is currently the VP of Operations for the Kitchener-Waterloo Junior “A” Braves and General Manager of the Kitchener-Waterloo Senior “B” Velocity. He currently is serving as Assistant Commissioner and Treasurer of Ontario Series Lacrosse, the OLA’s Senior “B” box lacrosse league.

[11] On April 14, 2022, Mr. Staats and Mr. Hummel were cross-examined.

[12] The motion was heard on May 19, 2022, and I reserved judgment.

C. Facts

1. The Parties

[13] The Ontario Lacrosse Association (“OLA”) is a not-for-profit corporation incorporated under the Not-for-Profit Corporations Act. The OLA is the provincial governing body for the sport of lacrosse in Ontario and receives financial support from the Ontario government. It was founded in 1987.

[14] The By-laws of the OLA define its objects as follows:

ARTICLE B-11: OBJECT

B2.01 – To govern, promote, develop and foster the game of lacrosse at all levels and in all forms, to all residents regardless of race, sex, creed, age or economic status throughout the Province of Ontario.

B2.02 – The [OLA] shall be the sole governing body for lacrosse within the Province of Ontario and shall govern, regulate and promote lacrosse within the Province and such other territory as shall from time to time be desirable.

B2.03 – To emphasize fair play at all times between competitors, to encourage them to play the game for the sake of the game, with proper respect to competitors and spectators.

[15] The OLA is the provincially recognized governing body for amateur lacrosse in Ontario. The OLA oversees 66 lacrosse associations competing in 13 leagues. The Junior Divisions support players aged 14-21 years old, while the Major and Senior Divisions provide competition for players aged 22 years and older.

[16] The Ontario Junior A Lacrosse League (“OJALL”), which is a league for athletes between 18 to 21 years of age, is the OLA league that is the closest rival to the TLL. Games in the OLA Junior Division typically run from May or June through September.

[17] Team Ontario, which is not a party to this action, is the provincial lacrosse team for intra-provincial play. Team Ontario requires its athletes to be registered with and play for the OLA in the current year. Team Ontario’s rules provide that any athlete “who chooses not to play at a rep level with their OLA Home Association over the course of the summer season will be immediately removed from the [Team Ontario] roster”.

[18] The OLA is the Ontario member of Lacrosse Canada (formerly the Canadian Lacrosse Association), which is the national governing body for the sport of lacrosse in Canada. Lacrosse Canada requires that all Ontario members of Team Canada, the lacrosse teams for international play, be members in good standing with the OLA and have played in the OLA or an accredited academic league for two or more consecutive seasons.

[19] The Tewaaraton Lacrosse League (“TLL”) is a not-for-profit corporation incorporated under the Not-for-Profit Corporations Act. Lacrosse has its seminal roots in North American indigenous culture, and the TLL has close ties to and it has its headquarters within the lands of the Six Nations of the Grand River.

[20] The TLL is a five-team box lacrosse league (Burlington, Oshawa, Six Nations, Toronto, Tri-City (Kitchener-Waterloo-Cambridge)). The TLL’s goal is to establish itself as the premiere major junior box lacrosse program in North America. The TLL is for athletes between 18 to 23 years of age who may have aspirations to play professional lacrosse. Play in the TLL is governed by the rule book for the National Lacrosse League (“NLL”), the leading professional box lacrosse league in North America. The TLL is not a member of the OLA or of Lacrosse Canada.

2. The By-laws, Rules and Regulations of the OLA

[21] The OLA has By-Laws, Rules, and Regulations that are created and approved by the OLA membership and that govern all OLA athletes. At the heart of the current dispute between the OLA is what is now Regulation 6.07.

[22] The policy behind Regulation 6.07 is that an OLA athlete who signs to play for an OLA team cannot play for another OLA team or for a team from another league without the written permission of the OLA. This policy, which I shall label the “One Team Policy” was adopted in the 1970s.

[23] It shall be significant to the analysis of the factors for and against granting injunctive relieve, and most particularly significant to the balance of convenience factor, to appreciate that the evidence on this motion established that there were very sound organizational and health and safety reasons for the “One Team Policy”.

[24] The organization value is that Regulation 6.07 promotes stability for each team. The OLA oversees lacrosse leagues and lacrosse teams with training, practice sessions, and schedules for seasonal and championship play. It is a sophisticated organization that requires stability for it to operate. Although the OLA is a not-for-profit organization, there is value to each team from the investments it made in players. In exchange for the investment, players are asked to make a commitment to the OLA and to agree to not play in a competing league. The commitment provides stability and ensures that proper safeguards are in place to support and protect the athletes. The OLA is not a school yard random day-by-day “pick-up team’s” operation.

[25] The health and safety value of the “One Team Policy” is that lacrosse is an extremely physically demanding activity. The activities of the athlete including practices and play in game conditions need to be monitored for safe and healthy play. The OLA has insurance and the insurance insures the players for injury. The insurance coverage does not cover injuries incurred by a player while playing for a non-OLA team, which may or may not have adequate insurance coverage of its own.

[26] It is to be noted that the “One Team Policy” applied both internally to OLA teams and leagues and also externally to non-OLA teams and leagues and that the “One Team Policy” does not absolutely preclude an athlete playing for more than one team. Playing for more than one team is possible with permission.

[27] It is also to be noted that historically the OLA did not object to an athlete playing for teams in leagues whose season of play did not overlap or did not substantially overlap with OLA team play; visualize: a college athlete would play for his college teams during the school year and for an OLA team during the school summer vacation.

[28] The “One Team Policy” was set out in the 1983 version of the Regulations as follows:

R6.07 (a)

Players who sign a certificate for any team in the [OLA] shall not play or sign with any other team or in any other league without the written permission of the [OLA].

R6.07 (b)

Players who do sign or play in another league or association without the permission of the OLA shall be suspended for the balance of the season and for the entire season following.

[29] The 1983 version of Regulation 6.07 appears in the 2017 Rules and Regulations of the OLA. The 1983/2017 version was the operative version of the regulation until March 2021 at which time, as discussed further below, the OLA’s Board of Directors received a recommendation from the Junior-Major Operating Council Commissioners that the regulation be amended.

[30] On May 27, 2021, Regulation 6.07 was amended to read as follows:

R6.07 (a)

Players who have been registered, protected, or rostered with any team in the Corporation shall not play or sign with any other team or in any other league without the written permission of the League Commissioner. (amended on May 27th, 2021 and effective immediately as per B9.01(b) for the 2021 season)

R6.07 (b)

Players who sign or play in another league or association without the authorization of the League Commissioner shall be suspended for the balance of that season and for the entire season following, and are deemed to be not in good standing with the Corporation.

Players who intend to return to Ontario Lacrosse participation during that period must submit a Reinstatement Application to the League Commissioner and may not return to participation until membership approval has been granted.

[31] On August 13, 2021, Regulation 6.07 was further amended to read as follows:

R6.07 (a)

Players who have been registered, protected, or rostered with any team in the Corporation shall not play or sign with any other team or in any other league without the written permission of the OLA. (amended on August 13th, 2021 and effective immediately as per B9.01(b) for the 2021 season)

R6.07 (b)

Players who sign or play in another league or association without the authorization of the OLA President shall be suspended for the balance of that season and for the entire season following and are deemed to not be in good standing with the Corporation. (amended on August 13th, 2021 and effective immediately as per B9.01(b) for the 2021 season)

[32] On November 6, 2021, at the OLA’s Annual meeting, the current version of Regulation 6.07 was enacted. The current version states:

R6.07 (a)

Players who are registered, protected, or rostered with any team in the [OLA] shall not play or sign with any other team in any other competing league without the written permission of the OLA VP of Junior to Major. The leagues of recognized academic institutions are exempt.

R6.07 (b)

Players who sign or play in another league or association without authorization shall be suspended for the balance of that season and for the entire season following, and are deemed to be not in good standing with the Corporation.

3. The Dispute between the OLA and the TLL

[33] In May 2021, TLL announced its plans to have an inaugural season of league play beginning in August 2021.

[34] On May 18, 2021, Mark Grimes, the Commissioner Ontario Junior ‘A’ Lacrosse and Doug Luey, the Commissioner Major Series Lacrosse, wrote the following letter to Jim Bomhof, the then president of the OLA:

A LETTER FROM THE ONTARIO JUNIOR ‘A’ LACROSSE LEAGUE AND MAJOR SERIES LACROSSE

Dear Mr. President,

Subject: Urgent Review of R6.07

The Ontario Junior ‘A’ Lacrosse League and Major Series Lacrosse are respectfully requesting the urgent review of R6.07 by the Ontario Lacrosse Association’s Board of Directors. As you are aware, the newly formed Tewaaraton Lacrosse League (TLL) is threatening the wellbeing of the Junior to Major leagues within the Ontario Lacrosse Association. It’s imperative that these rules are addressed immediately for our leagues to remain strong and prosperous. Please find below our recommendations, endorsed by the Junior to Major commissioners, for your consideration:

R6.07(a)

Players who are properly registered and are rostered to any team in the Corporation shall not play or sign with any other team in any other competing league without the written permission of the Corporation. (Leagues for academic institutions are exempt).

R6.07(b)

Players who do sign or play in another league or association without the permission of the OLA (as per R6.07 (a)) shall be suspended for the balance of that season and for the entire season following.

It is crucial that these rules are amended and communicated to our players well in advance of the TLL draft scheduled on Thursday May 27, 2021. Further to the above recommendations, it is the recommendation of the OJALL and MSL that the OLA Board of Directors revise the Conflict-of-Interest policy to address the status of OLA members operating as staff in leagues directly competing with the Ontario Lacrosse Association.

Your attention to this matter is greatly appreciated. Yours in lacrosse,

[35] On June 3, 2021 the OLA announced amendments to Regulations 6.07. The press release stated:

AMENDMENTS TO OLA REGULATION 6.07 (JUNIOR-SENIOR PLAYER ELIGIBILITY)

TORONTO, ON – June 3, 2021 – The Ontario Lacrosse Association Board of Directors have reviewed the Ontario Lacrosse Association’s Rules and Regulations in light of a non-sanctioned league publicly claiming to protect members in good standing of the OLA who participate in the junior series. The following is not a new policy, but R6.07 has been amended in OLA the Rules and Regulations and the changes are currently in effect:

The Ontario Lacrosse Association respects the right of every individual to participate in lacrosse opportunities outside of the OLA, however, any player who makes the choice to participate in a non-sanctioned league directly competing with the OLA’s league calendar must understand the ramifications of that choice including, but not limited to, being ineligible to participate with the leagues governed by the Ontario Lacrosse Association, Team Ontario and/or Team Canada (Lacrosse Canada National Team Program Policy and Guidelines, 1.1.4). Players who do sign or play in a non-sanctioned league without authorization under OLA R6.07 (b) will be ineligible to participate in any Ontario Lacrosse sanctioned league for the balance of that season and for the entire season following. This includes:

• Ontario Junior “A” Lacrosse League

• Ontario Junior “B” Lacrosse League

• Ontario Junior “C” Lacrosse League

• Major Series Lacrosse

• Ontario Series Lacrosse

• Senior Series Lacrosse

• Ontario Women’s Box Lacrosse League

Non-sanctioned leagues as it relates to OLA R6.07 are leagues that operate above the minor lacrosse level and during the Ontario Lacrosse Association’s established competition calendar within the province of Ontario. Participation in a non-sanctioned league is defined as involvement in tryouts, combines, training, tournaments, league games, playoff games or other in-person events. This does not include academic, intramural or school-based leagues, winter recreation leagues, or professional lacrosse leagues as recognized by the Ontario Lacrosse Association.

Ontario Lacrosse encourages our players to reach out to the OLA team they are registered, protected, or rostered with for information about Return to Play 2021. We look forward to sharing league plans for the 2021 season soon.

The Ontario Lacrosse Association acknowledges its consultation and review of Hockey Canada’s Policy on Non-Sanctioned Leagues for guidance in this process.

[36] On July 27, 2021, the TLL announced that it would be holding a two day player showcase in St. Catharines, Ontario on August 21 and 22, 2021. The event was to be cohosted by the NLL. The purpose of the event was to feature players from across North America looking to increase their draft position and prospective careers in the NLL.

[37] On August 13, 2021, the OLA announced a minor amendment to the Regulations. The press release stated:

AMENDMENTS TO OLA REGULATION 6.07 (JUNIOR –SENIOR PLAYER ELIGIBILITY)

TORONTO, ON – August 13th, 2021 – The Ontario Lacrosse Association is providing a minor update to OLA Regulation 6.07 (Junior & Senior Player Eligibility), which was last amended on June 3rd, 2021. Since that time, our league and team governors have written to us to provide their feedback, and today’s update reinforces our approach because it is supported unanimously by our seven league commissioners. We are taking this opportunity to remind players who wish to participate in non-sanctioned leagues operating with Ontario and above the minor lacrosse level that this decision will void their OLA membership eligibility for the 2022 season. Inquiries regarding participant status or event sanctioning may be directed to president@ontariolacrosse.com for additional information.

The Ontario Lacrosse Association respects the right of every individual to participate in lacrosse opportunities outside of the OLA, however, any player who makes the choice to participate in a non-sanctioned league directly competing with the OLA’s league calendar must understand the ramifications of that choice including, but not limited to, being ineligible to participate with the leagues governed by the Ontario Lacrosse Association, Team Ontario and/or Team Canada (Lacrosse Canada National Team Program Policy and Guidelines, 1.1.4). The Ontario Lacrosse Association acknowledges its consultation and review of Hockey Canada’s Policy on Non-Sanctioned Leagues for guidance in this process.

[38] The press release had a significant impact on the TLL’s plans for the event scheduled for August 21 and 22, 2021 to showcase players from across North America looking to increase their draft position and prospective careers in the NLL. After the OLA press release, players who had registered for the event dropped out. On August 15, 2022, the TLL cancelled the event, incurring approximately $30,000 in cancellation costs.

[39] On November 6, 2021, at the OLA’s Annual meeting, the current version of Regulation 6.07 was enacted.

[40] On January 31, 2022, the TLL commenced its action against the OLA.

4. The Evidence of Brent Dobson

[41] Brett Dobson is a 21 year old lacrosse player, who has had a very successful lacrosse career including playing in nine Ontario Provincial Lacrosse championships and two Canadian National Field Lacrosse Championships with Team Ontario. He has been a registered player under the OLA for most of his life, most recently as a member of the Whitby Warriors, a team playing under the OLA’s Ontario Junior “A” Lacrosse League.

[42] He deposed that he understood that by committing to play for the Whitby Warriors, he would be provided with a uniform, coached by the Warriors’ staff, and play in scheduled games. He understood that the Warriors would protect him under its insurance policy.

[43] In the spring of 2021, Mr. Dobson became aware of the TLL. He had no plans to play for the TLL because he had committed to playing in the OJALL for his last year of eligibility.

[44] In the summer of 2021, Mr. Dobson also became aware of Regulation 6.07. He thought the regulation was confusing. He thought the regulation was unfair because he thought it was designed to punish players who wanted to play in the TLL who would become ineligible to play for Team Ontario or Team Canada.

[45] Mr. Dobson agreed that if a player commits to a team in the OLA, then the player should honour that commitment, but he disagreed with the effect of Regulation 6.07, which he felt was punishment for a player for joining the TLL.

[46] In Mr. Dobson’s opinion, provincial and national spots should be made available to the best players. He thought the idea was offensive that an inferior player from an OLA team could take a provincial or national team spot from a better TLL player.

[47] Now that because of his age, he is no longer eligible to play Junior “A” level lacrosse, he said that his preference was to play lacrosse in the TLL; however, he would not do so because it meant that he would be ineligible for play for Team Ontario or Team Canada.

D. Discussion and Analysis

1. Mandatory and Prohibitory Interlocutory Injunctions

[48] The OLA submits that the TLL’s motion should be dismissed because it has not satisfied the test for a mandatory interlocutory injunction. In the alternative, the OLA submits that the TLL’s motion should be dismissed because it has not satisfied the test for a prohibitory interlocutory injunction. The TLL submits that it is not seeking a mandatory injunction and has satisfied the test for a prohibitory or restrictive injunction.

[49] Section 101 of the Courts of Justice Act[^3] provides the court with the jurisdiction to grant interlocutory injunctions. Section 101 states:

Injunctions and receivers

101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory Order may be granted or a receiver or receiver and manager may be appointed by an interlocutory Order, where it appears to a judge of the court to be just or convenient to do so.

Terms

(2) An Order under subsection (1) may include such terms as are considered just.

[50] In RJR-MacDonald Inc. v. Canada (Attorney General),[^4] the Supreme Court set out the test used for granting or refusing to grant an interlocutory injunction. Under the RJR-MacDonald test for an interlocutory injunction, the court considers three factors: (1) whether the plaintiff has presented a serious issue to be tried or, in a narrow band of cases, a strong prima facie case; (2) whether the plaintiff would suffer irreparable harm if the remedy for the defendant's misconduct were left to be granted at trial; and (3) where does the balance of convenience or inconvenience lie in the granting or the refusing to grant an interlocutory injunction.

[51] Under the RJR-MacDonald test, the court considers whether the plaintiff or applicant has shown that there is a serious issue to be tried in the sense that the plaintiff or applicant has a viable claim. For most cases, this factor sets a low threshold, and this approach negates the need of any intensive review of the merits at the preliminary phase of the proceedings. However, if its consideration of the other elements of the test is inconclusive, the court may revisit the question of the strength or merits of the plaintiff's case as an aspect of the balance of convenience factor.[^5]

[52] When a court grants a mandatory injunction, it commands performance of a legal, equitable or statutory obligation owed the plaintiff.[^6] For a mandatory interlocutory injunction, the plaintiff must show a greater likelihood of success than must be shown for a prohibitory injunction.[^7] To find a strong prima facie case, the motion judge must be satisfied after an extensive review of the evidence of the merits of the case that there is a strong likelihood on the law and the evidence presented that the moving party would ultimately be successful at trial in proving the allegations set out in the notice of motion.[^8]

[53] In classifying whether an injunction is mandatory or prohibitory, the analysis goes beyond formalism and requires the court to examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something or to refrain from doing something.[^9]

[54] The irreparable harm analysis means the court will consider whether damages awarded after a trial will provide the plaintiff or applicant with an adequate remedy without the need for an interlocutory remedy.[^10] The onus is on the party seeking an injunction to place sufficient financial and other evidence before the court showing that irreparable harm will result.[^11] The onus is on the plaintiff or applicant to show that if made to wait for a hearing where damages are awarded, then he or she will suffer irreparable harm. If damages or some other trial remedy would come too late or be inadequate to repair the harm or be insufficient to do justice, then the harm may be said to be irreparable. Evidence of irreparable harm must be clear and not speculative.[^12]

[55] The balance of convenience analysis considers what is the effect on the parties and sometimes on third parties of the court granting or not granting the interlocutory injunction.[^13] This analysis involves a determination of which of the two parties will suffer the greater harm from the granting or the refusal to grant an interlocutory injunction pending a decision on the merits. In this context, the court will need to compare and contrast the harm that the plaintiff may suffer if the interlocutory injunction is refused with the harm that the defendant would suffer that would not be reparable by the plaintiff's undertaking as to damages if the interlocutory injunction is granted. The factors that the court may consider in assessing the balance of convenience and the weight to be given to them are indeterminate and will vary from case to case.[^14]

[56] If the plaintiff's case seems weak, then the undoubted convenience of an injunction may not balance the inconvenience of the defendant suffering the interference with his or her rights based on a doubtful claim. Conversely, if the merits of the plaintiff's case seem quite strong then the plaintiff's inconvenience of being denied an interlocutory remedy may seem to outbalance the inconvenience of the defendant having to suffer a restraint on his or her rights.[^15]

2. Analysis and Discussion

[57] The TLL seeks a two-branched interlocutory injunction. The first branch seeks an Order suspending OLA Regulations 6.07(a) and (b). The second branch seeks an Order directing the OLA to cease interfering in the operations of the TLL. The practical effect of the second branch of TLL’s request for an injunction would be to suspend the essentially identical predecessor regulations – which have existed for the five decades before the TLL came into existence and that govern player/team affiliation.

[58] The first issue to address is whether the TLL is seeking a mandatory interlocutory injunction and thus subject to the more onerous test for the granting of an interlocutory injunction. To answer this question and to expose certain factors that are relevant to whatever test is applied, it is necessary to examine more closely the relationship between the current Regulation 6.07(a) and (b) and its predecessors.

[59] The TLL submits that current Regulation 6.07(a) and (b) expands upon the former versions of Regulation 6.07(a) and (b).

[60] I agree with the TLL that there is some expansion and some change in language of Regulation 6.07(a) and (b). However, the expansion is minimal, and the changes just reflect the circumstances that the OLA has changed the formalities, the language, and the technology for establishing the relationship between a team and its athletes by abandoning a “certificate” system to one where athletes “register” with a team.

[61] The practical effect of the current Regulation 6.07(a) and (b) is the same as the practical effect of the former versions of the regulation. This practical reality explains why the TLL has brought a two-branched injunction request; it needs an injunction to suspend present and all past versions of the regulation. However, this practical reality presents a substantive dilemma for the TLL in its two-branched request because the thrust of its case is that it was targeted by enactment of the current Regulation 6.07, which makes no substantive sense if the current Regulation 6.07 is to the same practical effect as its predecessors that were enacted fifty years before the TLL came into existence.

[62] The TLL submits that the current version of Regulation 6.07(a) and (b) was expanded to directly target the TLL and to punish Ontario players who might otherwise wish to play in the new league. I will address the allegation of targeting below but had there been no amendment to Regulation 6.07(a) and (b), the TLL’s plight would be precisely the same under the versions of Regulation 6.07(a) and (b) that have existed for five decades.

[63] While it is true that TLL’s circumstances will be the first occasion that the old or the new versions of Regulation 6.07(a) and (b) may influence the behaviour of the athletes and their decisions to play for a non-sanctioned league, this happens to be the case precisely because the TLL has made it the first occasion by deciding to be a non-sanctioned league that has scheduled its season of play to overlap and conflict with the summer season of play of the OLA.

[64] The first conclusion that can be drawn from this analysis is that both branches of the TLL’s injunction request are for a prohibitory not a mandatory interlocutory injunction. The TLL is seeking to restrain or enjoin the OLA from employing or enforcing current Regulation 6.07(a) and (b) and its predecessors. The TLL is seeking a prohibitory order. Thus, to succeed on the first factor of the RJR-MacDonald Inc. v. Canada (Attorney General) test for an interlocutory injunction, the TLL must just present a serious issue to be tried in its claim for interference in economic relations by unlawful means.

[65] As I shall next plain, in my opinion, the TLL fails to satisfy the first factor of the RJR-MacDonald Inc. v. Canada (Attorney General) test.

[66] A defendant commits the tort of an intentional interference with economic relations when: (a) he or she commits an unlawful act against a third party (i.e., an act that would be actionable if the third party had suffered loss); and, (b) he or she intends to economically harm the plaintiff or he or she intentionally harms the plaintiff for some ulterior purpose.[^16] The tort allows a plaintiff to sue a defendant for economic loss resulting from the defendant’s unlawful act against a third party.

[67] It is essential to note that the tort of intentional interference with economic relations is, as reflected in its very name, an intentional tort. And it is essential to note that in the immediate case, some of the alleged wrongful acts against the third party (the athletes) are also intentional torts as against the third parties, and that intent to harm is easy to plead but notoriously difficult to prove.

[68] It is also essential to note that the tort of intentional inference with economic relations is a narrow tort and generally operates so as to not interfere with competition between rivals for the same trade. In the leading case of A.I. Enterprises Ltd. v. Bram Enterprises Ltd.,[^17] Justice Cromwell in the context of describing the policy reasons for a narrow ambit for the operation of the tort stated at para. 31 of the Supreme Court of Canada’s judgment:

Second, the common law has traditionally been reluctant to develop rules about fair competition: OBG [OBG Ltd. v. Allan, [2007] UKHL 21 at para. 56], per Lord Hoffmann. The common law in general, and tort law in particular, have been astute to assure "some elbow-room [many would say much elbow-room] for the aggressive pursuit of self-interest": C. Sappideen and P. Vines, eds., Fleming's The Law of Torts (10th ed. 2011), at para. 30.120. As Bowen L.J. put it in Mogul Steamship Company v. McGregor, Gow, & Co. (1889), 23 Q.B.D. 598 (C.A.), at p. 614, aff'd [1892] A.C. 25 (H.L.), there can be no liability for a person who has "done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade". The same sentiment comes through in Lord Davey's speech in Allen v. Flood, [1898] A.C. 1, at p. 173: "The right which a man has to pursue his trade or calling is qualified by the equal right of others to do the same and compete with him, though to his damage." More recently, Lord Nicholls acknowledged the common law's respect for competition in OBG where he wrote:

Competition between businesses regularly involves each business taking steps to promote itself at the expense of the other... . Far from prohibiting such conduct, the common law seeks to encourage and protect it. The common law recognises the economic advantages of competition. [para. 142]

[69] Later in his decision, Justice Cromwell stated at paragraphs 95-97:

[…] It is the intentional targeting of the plaintiff by the defendant that justifies stretching the defendant's liability so as to afford the plaintiff a cause of action. It is not sufficient that the harm to the plaintiff be an incidental consequence of the defendant's conduct, even where the defendant realizes that it is extremely likely that harm to the plaintiff may result. Such incidental economic harm is an accepted part of market competition.
Goudge J.A. put this point aptly in Alleslev-Krofchak, where he summarized the House of Lords' discussion in OBG:

intentional interference with economic relations requires that the defendant intend to cause loss to the plaintiff, either as an end in itself or as a means of, for example, enriching himself. If the loss suffered by the plaintiff is merely a foreseeable consequence of the defendant's actions, that is not enough. [para. 50]

In my view, this narrow approach to intention is consistent both with the policy concerns relevant to this area of law as well as the underlying "liability stretching" rationale for the tort. It is an important safeguard against attaching liability to vigorous but lawful competitive behaviour. Economic harm to a competitor is often a foreseeable consequence of such behaviour. Mere foreseeability of such harm does not meet the requirement for intention in the unlawful means tort.

[70] In my opinion, there is no serious issue to be tried; the TLL does not have a viable claim for intentional interference with economic relations.

[71] The OLA did not target the TLL in amending a regulation that had been in existence for five decades. It is true that the emergence of the TLL acted as a catalyst for the amendments, but as I have already observed, the plight of the TLL would have been and was the same if there had been no amendments and the OLA just announced that it intended to enforce the old Regulation 6.07(a) and (b).

[72] It may have been the case that the old regulation had had a deterrent effect but now the TLL was proceeding undeterred, and the athletes, who had already agreed to be bound by the old regulation were properly told that there might be consequences. It is just rhetoric to label the information announced by the OLA as a warning. Some athletes but not others might be disinterested or unconcerned about the consequences, but all the athletes needed to be advised that Regulation 6.07(a) and (b) existed.

[73] It should also be noted that the fact that the TLL may have been harmed by the OLA’S announcement or by a decision to enforce any version of Regulation 6.07(a) and (b) does not ipso facto mean that there is a serious issue to be tried about the tort of intentional infliction of economic relations.

[74] Both leagues are entitled to compete with one another and for players. If the TLL had been successful in recruiting players from the OLA perhaps by emphasizing that the TLL offered better prospect for a professional lacrosse career with the NLL, then it would have been the OLA that was harmed, and it would have a weak case to enjoin the TLL’s competition. Competitors are entitled to act in their own self-interest and to occasion economic harm on their rivals, and the tort of intentional infliction of economic harm is a narrow exception to that regulation of the marketplace.

[75] The absence of a serious issue to be tried that the OLA intended to harm the TLL is fatal to the TLL’s request for an injunction, and it is not necessary to decide whether there is a serious issue to be tried that the OLA committed wrongful acts against its athletes as alleged by the TLL. For present purposes, it is sufficient to say that the claims of oppression, ultra vires regulations, restraint of trade, breach of contract between the athletes and the OLA, and a contravention of the Competition Act[^2] are of doubtful merit.

[76] The allegations of wrongdoing are pleaded but there is little factual evidence on this motion that would support the allegations made against the OLA. In this regard, it needs to be observed that the OLA is the type of organization, like unincorporated associations, clubs, social groups, labour unions, and political parties for which associations courts are generally reluctant to interfere with their internal affairs.[^18]

[77] In any event, if I am wrong about the first factor of the RJR-MacDonald Inc. v. Canada (Attorney General) and assuming without deciding that the irreparable harm factor is satisfied, then the TLL’s motion should also be dismissed for the reason that the TLL does not satisfy the balance of convenience factor of the test.

[78] The first analytical point to note about the balance of convenience is that the matter of ineligibility to play for Team Ontario and Team Canada is a red herring. It is for the organizers of Team Ontario and Team Canada teams to decide what are the eligibility requirements and those organizers could, if so inclined, remove the eligibility connection to the OLA. Enjoining the OLA’s Regulation 6.07 would not affect Team Ontario’s or Team Canada’s right to determine eligibility for play.

[79] As mentioned above, there were sound organizational and health and safety reasons for the “One Team Policy” and, Mark Grimes, the Commissioner Ontario Junior ‘A’ Lacrosse and Doug Luey Commissioner Major Series Lacrosse were correct in asserting that the TLL was threatening the wellbeing of the Junior to Major leagues within the OLA organization by undermining the “One Team Policy.”

[80] The balance of convenience favours the OLA, which would be substantially destabilized by the suspension of Regulation 6.07 and its predecessors. The OLA’s ability to service its approximately 33,000 members will be seriously harmed by the suspension of Regulation 6.07 and its predecessors. OLA teams and members agreed to join and invest time and money and energy based on the organizational structure of the OLA and the stability that structure provides. If R.6.07 is suspended, players will be free to leave and re-join the OLA at any interval they choose, which will harm OLA teams and athletes due to the uncertainty of being able to field a competitive team, or a team at all.

[81] The TLL submits that it will be unable to maintain its existence unless OLA’s Regulation 6.07(a) and (b) and its predecessors are not suspended. But the TLL has not established a status quo and it is the one that is seeking to disrupt a status quo that has existed for five decades. The TLL requires players to field five teams for one league, while the OLA regulations are designed for the governance of 66 lacrosse associations competing in 13 leagues. In my opinion, the OLA will be more harmed by the granting of the injunction than the TLL will be harmed by dismissing its motion. The TLL remains free to compete for players to fill out the rosters of its five teams with the lure of better training, better competition, and possibly a better connection to the professional leagues. It also has the freedom to schedule its playing season so that it does not overlap with the OLA’s season.

E. Conclusion

[82] For the above reasons, the motion for an injunction is dismissed.

[83] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the OLA’s submissions within twenty days of the release of these Reasons for Decision followed by the TLL’s submissions within a further twenty days.

Perell, J.

Released: June 16, 2022.

2022 ONSC 3592

COURT FILE NO.: CV-22-00676049-0000

DATE: 20220616

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE TEWAARATON LACROSSE LEAGUE

Plaintiff

and -

ONTARIO LACROSSE ASSOCIATION

Defendant

REASONS FOR DECISION

PERELL J.

Released: June 16, 2022

[^1]: S.O. 2010, c. 15.

[^2]: R.S.C., 1985, c. C-34.

[^3]: R.S.O. 1990, c. 43.

[^4]: [1994] 1 S.C.R. 311.

[^5]: Omega Digital Data Inc. v. Airos Technology Inc. (1996), 32 O.R. (3d) 21; Empire Stevedores (1973) Ltd. v. Sparringa (1978), 19 O.R. (2d) 610 (H.C.J.); American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.).

[^6]: Ryerson Students’ Union v. Ryerson University, 2020 ONSC 1490; R. v. Canadian Broadcasting Corp., 2018 SCC 5; 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125 at paras. 49–59.

[^7]: R. v. Canadian Broadcasting Corp., 2018 SCC 5.

[^8]: Ryerson Students’ Union v. Ryerson University, 2020 ONSC 1490 at para. 44; R. v. Canadian Broadcasting Corp., 2018 SCC 5 at para. 17.

[^9]: Ryerson Students’ Union v. Ryerson University, 2020 ONSC 1490 at paras. 31-39; R. v. Canadian Broadcasting Corp., 2018 SCC 5 at para. 16.

[^10]: Traynor v. Unum Life Insurance Co. of America (2003), 65 O.R. (3d) 7 (Div. Ct.); Paddington Press Ltd. v. Champ, [1979] O.J. No. 796 (H.C.J.).

[^11]: 2158124 Ontario Inc. v. Pitton, 2017 ONSC 411 at para. 48; Ciba-Geigy Canada Ltd. v. Novopharm Ltd., [1994] F.C.J. No. 1120 at paras. 117-118 (T.D.).

[^12]: 2158124 Ontario Inc. v. Pitton, 2017 ONSC 411 at paras. 49-51; Downtown Kids Academy Inc. v. Zakrzewski, 2017 ONSC 5045; Ontario v. Shehrazad Non-Profit Housing Inc. (2007), 2007 ONCA 267, 85 O.R. (3d) 81 at para. 26 (C.A.); Kanda Tsushin Kogyo Co. v. Coveley, [1997] O.J. No. 56 at para. 14 (Div. Ct.); 754223 Ontario Ltd v. R-M Trust Co, [1997] O.J. No. 282 at para. 40 (Gen. Div.); RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311 at paras. 57-59.

[^13]: Synergism Arithmetically Compounded Inc. v. 1130163 Ontario Inc., [1997] O.J. No. 4271 (Gen. Div.); American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.).

[^14]: RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311.

[^15]: Bell Canada v. Rogers Communications Inc., [2009] O.J. No. 3161 at para. 38 (S.C.J.); Quizno's Canada Restaurant Corp. v. 1450987 Ontario Corp., [2009] O.J. No. 1743 at para. 46 (S.C.J.); Omega Digital Data Inc. v. Airos Technology Inc. (1996), 32 O.R. (3d) 21 (Gen. Div.); Empire Stevedores (1973) Ltd. v. Sparringa (1978), 19 O.R. (2d) 610 (H.C.J.); American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.).

[^16]: A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12.

[^17]: 2014 SCC 12.

[^18]: Karahalios v. Conservative Party of Canada, 2020 ONSC 3145; Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26; Surrey Knights Junior Hockey v. Pacific Junior Hockey League, 2018 BCSC 1748; Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165.

The Tewaaraton Lacrosse League v. Ontario Lacrosse Association, 2022 ONSC 3592

Case Summary

A. Introduction

B. Procedural and Evidentiary Background

C. Facts

1. The Parties

2. The By-laws, Rules and Regulations of the OLA

3. The Dispute between the OLA and the TLL

4. The Evidence of Brent Dobson

D. Discussion and Analysis

1. Mandatory and Prohibitory Interlocutory Injunctions

2. Analysis and Discussion

E. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 2