Court File and Parties

COURT FILE NO.: CV-23-1172 DATE: 2023-04-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHMOND HILL ZONE HOCKEY ASSOCIATION Applicant – and – ONTARIO MINOR HOCKEY ASSOCIATION and ONTARIO HOCKEY FEDERATION Respondents

Counsel: R. Trent Morris, for the Applicant Christopher A.L. Caruana, for the Respondent, Ontario Minor Hockey Association Craig Vander Zee, for the Respondent, Ontario Hockey Federation

HEARD: March 17, 2023

Reasons for Decision

CHARNEY J.:

Introduction

[1] The Applicant, Richmond Hill Zone Hockey Association (RHZHA), operates eight AAA Level hockey teams across various age groups (ages 10 to 18) in Richmond Hill, Ontario. The teams are known as the Richmond Hill Coyotes.

[2] The RHZHA is a member of the Ontario Minor Hockey Association (OMHA). In December 2022, the OMHA decided to dissolve the Richmond Hill AAA Level zone at the end of the 2022-23 hockey season and make it part of the Markham AAA Level zone. If this occurs, the 150 players on the eight Richmond Hill AAA teams will have to find other teams to play on. There are also 32 coaches who will have to find other teams to coach.

[3] Faced with this decision, the RHZHA sought to transfer its membership to a different hockey league, the Greater Toronto Hockey League (GTHL), for the 2023-24 season. After participating in a mediation process with the OMHA, a membership proposal was made to the GTHL, which, on February 24, 2023, rejected the proposed membership of the RHZHA in the GTHL.

RHZHA Application

[4] In response to these decisions, on March 9, 2023, the RHZHA commenced an urgent Application for various declarations, interim and permanent injunctions and mandatory orders. The Application was commenced as an urgent application pursuant to both Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the Rules) and s. 2(1) and 6(2) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1 (the JRPA).

[5] The Application alleges that the Respondent OMHA and a second Respondent, the Ontario Hockey Federation (OHF), failed to comply with their own policies and procedures in arriving at the impugned decisions.

[6] The RHZHA has also brought a motion for an interlocutory injunction, which is discussed below.

Motion for Interlocutory Injunction

[7] The RHZHA motion for an interlocutory injunction seeks primarily to prohibit the Respondent OMHA from dissolving the Richmond Hill AAA Level zone at the end of this hockey season (April 2023). If the interlocutory injunction is granted, the Richmond Hill AAA Level zone will continue within the OMHA league for at least one more season.

[8] The RHZHA also seeks an interlocutory injunction directing the second Respondent, the OHF, to keep open the RHZHA application to join the GTHL and “to seek any counter proposal from the Greater Toronto Hockey League, and directing the Ontario Hockey Federation’s Board of Directors to receive submissions from the Ontario Minor Hockey Association and the Richmond Hill Zone Hockey Association”. The purpose of this mandatory interlocutory injunction is to leave open and perhaps advance the RHZHA’s application to join the GTHL.

[9] This interlocutory injunction against the OHF is not spelled out in the Notice of Motion. It was drafted by counsel for RHZHA at my request at the outset of the hearing and presented to the Court and opposing counsel after a brief recess.

[10] I asked counsel for RHZHA to provide this clarification at the outset of the proceeding for the following reason.

[11] The Notice of Motion sets out six interim orders sought by the Applicant on this motion. One of those is the interlocutory order to prohibit the Respondent OMHA from dissolving the Richmond Hill AAA Level zone at the end of the current hockey season.

[12] At the outset of the hearing, I explained to the Applicant’s counsel that none of the other five interim orders appeared to be orders that could be obtained on an interlocutory motion, either at all or in this case. For example, the Applicant was seeking a number of “interim declarations” that the OHF and OMHA had violated their own policies.

[13] There is no such thing as an “interim declaration”. A declaration is a final order. Asking for an “interim declaration” is like asking for an interim final order; it is an oxymoron.

[14] A declaratory judgment by a court is “a formal statement…pronouncing upon the existence or non-existence of a legal state of affairs”: Itzhak Zamir and Jeremy Woolf, The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), at para. 1.02., cited in Brown v. Hanley, 2019 ONCA 395, at para. 35. See also the thorough discussion of declarations by Granger J. in Nickerson v. Nickerson (Gen. Div.); Yasin v. Ontario, 2018 ONCA 417, at para. 8.

[15] Once the court makes a declaration, the issue has been determined as between the parties. There is nothing “interlocutory” about it. See: Sawridge Band v. Canada (T.D.), 2003 FCT 347, [2003] 4 FC 748, at para. 6:

First, I am quite satisfied that the relief sought by the Crown in paragraph a. above is not available. An interim declaration of right is a contradiction in terms. If a court finds that a right exists, a declaration to that effect is the end of the matter and nothing remains to be dealt with in the final judgment. If, on the other hand, the right is not established to the court’s satisfaction, there can be no entitlement to have an unproved right declared to exist. (See Sankey v. Minister of Transport, [1979] 1 F.C. 134 (T.D.).) I accordingly treat the motion as though it were simply seeking an interlocutory injunction.

[16] In Sankey v. Minister of Transport, [1979] 1 F.C. 134, at 135, the Federal Court stated:

I know of no authority or rule under which an interim declaration, which in substance would accomplish the whole purpose of the action with­out a trial on the merits, may be made. If a case for a declaration were shown to exist or to be fairly arguable, the Court might perhaps intervene by injunction, in an appropriate case, to hold matters in status quo until the right could be tried but that is by no means the same thing as granting an interim declaration of right. The likelihood of ultimate entitlement to the declaratory relief would help to persuade the Court to issue an injunction but the Court would do so without determining the right to the declaration either temporarily or at all.

[17] See also Pacific Salmon Ind. v. The Queen, [1985] 1 FC 504, at p. 510, per Strayer J.:

Further, the request appears to be for interim declarations and there is no authority for giving declarations on an interim basis: see, for example, Sankey v. Minister of Transport, [1979] 1 F.C. 134 (T.D.).

[18] In Nelson et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 5415, at para. 26, Schabas J. states:

Further, the declaratory relief sought by Ms. Dixon, which seeks the same result as an injunction, cannot be made on an interim basis. As Professor Hogg has stated in Liability of the Crown, 2nd ed. (1989), quoted with approval in Loomis v. Ontario (Ministry of Agriculture & Food) (1993), 16 OR (3d) 188:

Can a declaration be obtained in interlocutory proceedings, that is, before the trial of the action, in order to obtain a temporary order holding the defendant to the status quo? The answer is no. A declaration is by its nature final. It is “absurd” for a court “to declare one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not”. For this reason, courts have nearly always refused to grant a temporary declaration before there has been a final determination of the applicable law. In other words, interlocutory (or interim) relief, which is available in the form of an injunction, is not available in the form of a declaration. [1]

[19] Other relief claimed in the Notice of Motion involve the Applicant changing its membership from the OMHA to the GTHL, notwithstanding the fact that the GTHL has rejected the Applicant’s proposal to change membership and is not a party to this Application.

[20] When questioned on the availability of the relief claimed in his Notice of Motion, counsel for the Applicant sought to clarify the relief sought. To avoid confusion, I asked him to set out in written form the relief that he was requesting.

[21] The OHF has objected to the Applicant being permitted to amend the relief sought so late in the proceedings on the basis that it did not have time to prepare a proper response to the new relief claimed. Its factum responds specifically to the relief claimed in the Notice of Motion. This is a legitimate objection, and it is one that may be relevant to the issue of costs. Nonetheless, I am of the view that the Court is not limited to the specific terms of the orders proposed by the Applicant, and is free, where appropriate, to provide “such further and other relief as may seem just”, which is also requested in the Notice of Application.

Facts

Governance Structure

[22] Amateur hockey in Canada is governed by Hockey Canada, which is not a party to this case. Each province or territory has its own governing organization immediately below Hockey Canada. In Ontario, it is the Respondent OHF.

[23] In turn, the OHF has seven member leagues covering seven geographic zones. One of those leagues is the Respondent OMHA. Another is the GTHL. The OMHA covers a geographic area from Windsor in the west, Kingston in the east and Parry Sound in the north, excluding Toronto and Mississauga. The GTHL covers Toronto and Mississauga.

[24] The RHZHA is a local association or club in the OMHA. It is a AAA Level club with eight teams divided by age group from 10 to 18. These teams are not open to everyone; they are reserved for children that have demonstrated higher skill at playing hockey. AAA Level hockey is the highest caliber minor hockey for each age group. If the player is good enough, they may be chosen to go from minor hockey to junior hockey. Junior hockey is the talent pool from which professional hockey teams source many new players.

[25] The hockey organizations have rules to prevent teams in one geographic region from “poaching” players in another geographic region. Teams in the GTHL can only bring in up to four “imports” from the OMHA, and vice versa.

[26] Within the OMHA, a player who lives in one zone must first try out for the team in their zone, and only if denied a spot on that team can they try out for a team in a different zone. These limits apply only to players under 13 years of age.

OMHA Dissolution of RHZHA

[27] The OMHA regulations authorize the OMHA Board to “realign, reduce, consolidate or expand” AAA Level zones. The procedural requirements that must be met before such action can be undertaken are discussed below.

[28] In 2021, the OMHA began to consider whether the various AAA Level zones needed adjusting. The OMHA believed that there were too many AAA Level teams. The affidavit evidence indicates that these considerations were based on the following factors:

a. The declining participation rate for children playing hockey: player registration went down in both Richmond Hill and Markham from the 2019-20 season to the 2020-21 season. b. The reduction in players has led to AAA Level teams maintaining their numbers by recruiting from the A and AA Levels to play for AAA Level teams. The OMHA was concerned that A and AA Level players were being promoted to AAA Level before they were ready, and children truly playing at the AAA Level were playing at a diluted level of competition. c. The OMHA was also concerned that parts of the Richmond Hill AAA zone (Caledon) were actually closer to the Brampton AAA Level zone than to Richmond Hill.

[29] The dissolution of the Richmond Hill AAA Level zone and its consolidation with Markham was one of several recommendations put forward by the OMHA committee considering these issues.

[30] The result of this recommendation, if adopted, would be that the Richmond Hill zone would be consolidated with the Markham zone, and players living in King and Richmond Hill will have to try out in Markham if they want to play at AAA Level. The OMHA was of the view that this would address the impact of declining registration numbers as well as the impact of players playing above their appropriate level.

[31] There is no dispute that, as a private organization, the OMHA can organize its membership zones any way it pleases. This case is not about the merits of the OMHA decision to merge the Richmond Hill AAA Level zone with the Markham AAA Level zone. The sole issue in this case is whether the OMHA and the OHF complied with their governing process in making the impugned decisions. The rationale for the decision may, however, be relevant to the third component of the RJR-MacDonald test for an interlocutory injunction: the balance of convenience.

[32] As indicated above, the OMHA regulations authorize the OMHA Board to “realign, reduce, consolidate or expand” AAA Level zones. The regulations require that such decisions shall be made “in full consultation with all concerned Centres and Zones”. The regulations require that “issues for consideration by the OMHA Board shall be submitted by October 1 for implementation for the upcoming season. A decision will be communicated by February 1st”.

[33] By December 2021, the Applicant was aware that the OMHA was considering re-aligning some of the AAA level zones.

[34] On January 10, 2022, the OMHA invited the RHZHA to a PowerPoint presentation of the OMHA where it informed RHZHA that it intended to dissolve the Richmond Hill AAA Level zone for the 2022-23 hockey season and merge it with the Markham AAA Level zone.

[35] Counsel for the RHZHA wrote to the OMHA on January 19, 2022, taking the position that this decision had been taken without consultation and contrary to the timelines set out in the OMHA regulations, and it was too late for the OMHA to implement these changes in the 2022-23 hockey season.

[36] Given this response, the OMHA’s AAA Committee recommended that the proposed dissolution of the Richmond Hill AAA Level zone and re-alignment of the remaining “feeder” associations in that zone be delayed pending further consultation with the affected parties with a view to implementing the proposal for the 2023-24 season. Since the organizations involved in the realignment/consolidation of the Brampton AAA Level zone were agreeable to that proposal for the Brampton area, that decision came into effect for the 2022-23 season.

[37] The AAA Committee’s proposal and recommendations were put before the OMHA’s Board of Directors at the meeting held on January 22, 2022.

[38] On January 25, 2022, the Executive Director of the OMHA wrote two letters to the Presidents of the five OMHA AAA Level zones, including the Richmond Hill AAA Level zone. The letters were received by RHZHA on January 26, 2022.

[39] The first letter of January 25, 2022 advised that the AAA Committee of the OMHA had engaged in a comprehensive review of AAA hockey across the OMHA, and that one issue under consideration was zone restructuring. The letter stated:

At it’s January 22, 2022 meeting, the AAA Committee report to the OMHA Board of Directors included the intention of the committee to continue consultation with all stakeholders impacted with a view to arriving at resolution/direction for implementation in the 2023-2024 season.

Items to be addressed as part of this ongoing consultation will include:

• Dissolving the Richmond Hill Coyotes AAA zone • The creation of a new AAA Zone made-up of the following feeder associations: Markham Minor Hockey, Richmond Hill Minor Hockey, and Whitchurch-Stouffville • Determining the AAA Zone to which King Township will be a feeder association.

Continuing dialogue with the affected centres will be ongoing during the course of finalizing the details of the restructuring.

Once details of the restructuring have been ratified by the OMHA Board of Directors, process and timelines for appeal will be communicated at that time.

[40] The second letter of the same date advised that at its January 22, 2022 meeting, the Board of Directors of the OMHA ratified the following recommendation of the AAA Committee:

Beginning the 2022-23 season, the OMHA will create a new AAA Zone made up of the following feeder associations: Brampton Hockey, Caledon Minor Hockey and Orangeville Minor Hockey.

[41] At its meeting of December 3, 2022, the OMHA Board of Directors accepted the AAA Committee’s recommendation to dissolve the Richmond Hill AAA zone effective on the conclusion of the 2022-23 season. This decision was communicated to the RHZHA on December 8, 2022.

[42] The OMHA takes the position that it has had numerous meetings with various hockey associations for Markham, Richmond Hill, King and Whitchurch-Stouffville for the purpose of consultation regarding the re-alignment of the players from those associations to the Markham AAA Level zone for the 2023-2024 season.

[43] The RHZHA appealed the OMHA dissolution decision to the Ontario Hockey Federation on December 20, 2022. On January 5, 2023, the OHF stayed the appeal pending a mediation process under its changing member policy, which is discussed below. The RHZA appealed the OHF stay decision to the Hockey Canada National Appeals Committee (NAC), which, on January 26, 2023, declined to lift the stay of RHZHA’s appeal, stating:

The NAC sees no prejudice to the Appellant in proceeding in this fashion, as it still retains its right to appeal the Dissolution Decision if that remains necessary after the change of member process has run its course. Accordingly, the NAC sees no basis to intervene to adjust the process proposed by the OHF.

RHZHA Application to Change Membership to the GTHL

[44] The OMHA was advised by the president of the RHZHA that the RHZHA intended to apply to the GTHL to change its membership from the OMHA to the GTHL. The affidavit in support of this motion filed by the RHZHA states that “The GTHL is the league of choice for residents of the RHZHA”.

[45] On September 30, 2022, the RHZHA sent its changing member application to the OMHA. On October 19, 2022, the RHZHA made its application to the OHF to change membership to the GTHL. The RHZHA affidavit states that “the RHZHA member vote to apply to change members to the GTHL was unanimous”.

[46] The OHF constitution provides a process for clubs that want to change membership from one league to another. This process is entitled the “Changing Members Policy” (Policy).

[47] Pursuant to para. 6.3 of the Policy, any change of membership requires an amendment to the OHF by-laws and approval of the OHF Board of Directors.

[48] The Policy requires the club requesting to change membership to first raise the issues giving rise to its request with the executive of its current league.

[49] Failing an internal resolution, the club may make its application to the executive director of its current league and the executive director of the OHF. The Policy sets out the information that must be included in the application.

[50] Paragraph 4.5 of the Policy requires that the club and the current league “engage in a formal resolution process” that may extend for up to 60 days. The parties have referred to this as the “mediation process”.

[51] Paragraph 4.5 of the Policy states:

4.5.1 In the course of this [mediation] process, the OHF will engage the Prospective Member and Applicant for the purpose of ascertaining if a change of Member might address the issues set out in the Application and, if so, whether or not the Prospective Member would be receptive to the change in Member sought by the Applicant.

4.5.2 If the Prospective Member opposes the Application the Application will cease to proceed.

[52] The mediation process was commenced on January 24, 2023 and continued on February 1, 10, and 14, 2023. The mediator’s minutes indicate that the GTHL was provided with a copy of the Change Member Application some time prior to January 24, 2023. There were communications between the GTHL and the OHF regarding the proposed change. The OHF advised the GTHL that the proposed change would result in the expansion of the GTHL to include the area of Richmond Hill, so that AAA Level Richmond Hill residents would be non-imports at the AAA Level in the GTHL.

[53] The GTHL advised the parties that it would not commit to a decision until after the mediation process between the OMHA and the RHZHA was complete.

[54] At the end of the mediation process, the OMHA and RHZHA agreed to the following mediated proposal:

If accepted into the GTHL, Richmond Hill residential players regardless of where they have played and all GTHL residents would be non-imports to Richmond Hill Zone. All Richmond Hill Zone residents would be imports for all other GTHL associations.

[55] The RHZHA made it clear in correspondence with the OHF and OMHA that although it agreed with that proposal, it would consider any transition plan that might be acceptable to the GTHL, and RHZHA was prepared to work with the GTHL on a transition plan.

[56] The mediated proposal was communicated by the mediator to the GTHL on February 13, 2023.

[57] On February 13, 2023, the GTHL responded to the mediator to confirm its understanding of the proposal. It also asked the mediator the following question:

Furthermore, to clarify, you are seeking only a “support” or “not support” with reasons and are not looking for a “counter proposal” from the GTHL. Is that correct?

[58] The mediator responded the next day:

This captures the proposal that is currently in front of the mediation aspect of the change in Member process.

[59] This was not a direct answer to the question of whether a counter proposal from the GTHL would be considered.

[60] On February 15, 2023, the mediator wrote to all concerned parties (the RHZHA, the OMHA, the GTHL, and the OHF) advising them that “the OHF requires the GTHL position on this change of Member application prior to Friday, February 24, 2023”, and indicating that if the GTHL had any questions or required any further information with respect to this application, to direct the questions to the mediator or the Chair or Executive Director of the OHF.

[61] On February 14, 2023, the President of the GTHL wrote to the Board of Directors of the OHF, to advise that the GTHL had hosted a consultation meeting with the GTHL AAA Level clubs (11 out of 12 attended) and held a special Board meeting on February 23, 2023 to consider the matter. At that meeting the following resolution was adopted:

The GTHL is not willing to accept the Richmond Hill Coyotes as a Member of the GTHL based on the parameters presented to the GTHL by the OHF Mediator.

[62] The letter listed several factors considered by the GTHL in coming to this position. Four of these factors related to the lack of time provided to complete a full and proper analysis of the impact that the change would have on current GTHL teams and players and to hear from the OMHA and the RHZHA on their rationale for making these changes. The GTHL was also concerned that the proposed import terms would provide a disproportionate advantage to the Richmond Hill clubs.

[63] Two of the factors were unrelated to the process or the terms of the proposal:

The concern that the GTHL would be adding another “AAA” team at each age group, while at the same time drawing from the same catchment area and number of players who currently have access to GTHL “AAA” teams.

And the fact that the GTHL has recently advised other applicants that it is unwilling to accept new “AAA” teams because of the post pandemic enrollment decline, which has caused considerable competitive imbalance, negatively affecting players experiences.

[64] Pursuant to para. 4.5.2 of the Changing Members Policy, the rejection of the RHZHA application by the GTHL was the end of the changing member process.

[65] Given the number of factors listed by the GTHL in its February 14, 2023 letter, it is unknown whether the GTHL would have come to a different conclusion had it been given more time to consider the change member application, or had the proposed import terms been different. That said, the GTHL’s stated concern about declining enrollment and the “considerable competitive imbalance negatively affecting players experiences” mirrors the concerns raised by the OMHA in reaching its decision to dissolve the Richmond Hill AAA Level hockey zone.

RHZHA Appeal

[66] On February 25, 2023, the RHZHA appealed to the Hockey Canada National Appeals Committee (NAC) the alleged failure of the OHF to follow its Changing Members Policy. The RHZHA argues that the OHF failed to follow paras. 4.5.1 and 6.5 of its Changing Members Policy in four ways:

a. Failing to notify the GTHL until after the mediation had started. b. Failure to engage GTHL at Mediation. c. Insistence on OMHA’s agreement to conditions. d. Inserting itself as a determinant of conditions prior to approval.

[67] In brief, the RHZHA takes the position that the mediator erred in trying to arrive at change member terms that were acceptable to the OMHA. Once it was determined that the OMHA and RHZHA could not be reconciled, the duty of the mediator under para. 4.5.1 of the Policy was to determine if there were terms under which the GTHL would accept the RHZHA. Instead, the mediator approached the issue by determining if there were terms under which the OMHA would be prepared to agree to let the RHZHA join the GTHL, even though the OMHA has no veto under the Policy.

[68] When the motion for the interlocutory injunction was argued on March 17, 2023, the Hockey Canada NAC had still not released a decision on the appeal and had advised the parties that it would not release its decision until the week of March 20 or March 27. I advised the parties that I would not release any decision on this matter until the Hockey Canada NAC released its decision on the appeal. The Court will not intervene in these proceedings when the internal appeal process has not yet run its course and a decision from the NAC is imminent. Moreover, the decision of the Hockey Canada NAC, and its interpretation of the Policy, may be relevant to the legal issues raised on this motion.

[69] On March 27, 2023, the Hockey Canada NAC advised the parties that it had reviewed the information presented with respect to the RHZHA, and had denied the appeal. It advised that the official appeal decision letter with further detail and explanation regarding the decision would be sent out later in the week.

[70] On March 29, 2023, the Hockey Canada NAC released its decision. The NAC reviewed the relevant facts and regulations and considered the positions of the parties. The NAC came to the following conclusions:

a. On a plain reading of section 4.4, there is no timeframe for delivery of a Change of Member application to the other OHF Member Partners. Although it might have expedited the process had the OHF provided the Application to the GTHL sooner, failing to do so did not amount to a breach of the Policy as written. b. Section 4.5.1 of the Policy does not require the Prospective Member to be involved in the mediation. Section 4.5.1 sets out a separate, parallel process whereby the OHF must engage with the Prospective Member and the applicant. While this could be conducted in a joint session, the NAC believes that the wording of section 4.5.1 provides the OHF with the discretion of how this engagement should occur. It elected to deal with the GTHL and the Appellant separately for the purposes outlined in section 4.5.1, and the NAC does not find that decision was a violation of the Policy. c. The NAC does not agree that section 6.5 of the Policy provides any support to the Appellant’s argument that Prospective Members are only meant to discuss terms associated with an association’s change of member until after that change has been formally approved by the OHF Board of Directors as per section 6 of the Policy.

[71] As a result, the Hockey Canada NAC denied the RHZHA’s appeal.

[72] The NAC also noted that the RHZHA’s appeal of the Dissolution Decision, which was previously stayed (see para. 43, above), could now proceed. The NAC stated:

[T]he NAC notes that the Appellant is now permitted to pursue an appeal of the Dissolution Decision, which was previously stayed while the change of member process was ongoing. The NAC would once again reiterate its previous instruction to proceed with this matter as expeditiously as possible, as tryouts for the 2023-24 season are approaching very quickly.

[73] Accordingly, the internal appeal process has not completely run its course. While I am reluctant to release this decision prior to the final resolution of the internal appeal process, I am mindful that the Applicant is anxious to get a decision from this Court prior to the commencement of the tryouts for the 2023-24 season, and there is no indication when the appeal from the Dissolution Decision might be addressed by the OHF.

Analysis

Jurisdictional Issue

[74] The OHF raised a jurisdictional issue at the outset of these proceedings. The Applicant purported to bring this Application under both Rule 14.05 of the Rules, and as an urgent application for judicial review under ss. 2(1) (1) and 6(2) of the JRPA.

[75] It is clear that this matter cannot proceed as an application for judicial review. The remedies available under the JRPA apply only to public decision makers that derive their powers from statute in their performance of functions of a public or governmental nature: Setia v. Appleby College, 2013 ONCA 753, at para. 20.

[76] In Trost v. Conservative Party of Canada, 2018 ONSC 2733, the Divisional Court confirmed, at paras. 30-32, that a decision maker must be discharging public duties or exercising powers of a public nature in order that the decision is subject to the public law remedy of judicial review. The Court rejected a second line of cases that did not require an exercise of state authority in order that a decision be subject to judicial review. In Trost, the Court expressly adopted the reasons of de Sa J. in Milberg v. North York Hockey League, 2018 ONSC 496, at para. 32:

Private actors routinely make decisions that have implications for the public more broadly. However, if the decisions do not amount to an exercise of power emanating from the legislature, the Court’s jurisdiction over such matters should flow from the private law, and the related remedies available to the litigants in the private sphere, and not the JRPA.

[77] Accordingly, this matter is governed by private law, and the Court has no jurisdiction to provide relief under the JRPA.

[78] The Applicant acknowledged this limitation at the outset of the hearing and abandoned its reliance on the JRPA.

[79] The only issue in the main application, therefore, is whether the Respondents have complied with the procedural obligations set out in their respective and applicable constitutions, by-laws, or policies. As stated above, the Court is not concerned with the merits of any of these decisions.

Interlocutory Injunction

[80] There are three basic issues on a motion for an interlocutory injunction. These three issues are commonly referred to as the RJR-MacDonald test: “First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits”: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334.

[81] As a general rule, the first step presents a low threshold. As the Supreme Court observed in RJR-MacDonald, at p. 337:

What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case…

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

[82] Where the Plaintiff seeks a mandatory interlocutory injunction, as opposed to a prohibitive interlocutory injunction, the first test is not the low threshold “serious question to be tried”, but the much higher threshold “strong prima facie case” test.

[83] In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court of Canada stated, at para. 15:

In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR-MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel. Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”. The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR-MacDonald as “extensive review of the merits” at the interlocutory stage. [Citations omitted.]

[84] The Court explained, at para. 17, that a “strong prima facie case” imposed:

a burden on the applicant to show a case of such merit that it is very likely to succeed at trial. Meaning, that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.

[85] The Court, at para. 18, summarized the modified RJR-MacDonald test for a mandatory interlocutory injunction as follows:

(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction.

[86] In this case the Applicant requests two injunctions. The first, prohibiting the Respondent OMHA from dissolving the Richmond Hill AAA hockey zone at the end of this hockey season, is a prohibitory injunction. The second, directing the OHF, “to seek any counter proposal from the Greater Toronto Hockey League, and directing the Ontario Hockey Federation’s Board of Directors to receive submissions from the Ontario Minor Hockey Association and the Richmond Hill Zone Hockey Association”, is more akin to a mandatory interlocutory injunction.

Serious Issue to Be Tried

[87] The procedural issues raised by the Applicant relate to two interrelated matters involving the RHZHA and the OMHA and OHF. The first is the OMHA decision to dissolve the Richmond Hill AAA Level zone and combine it with the Markham AAA Level zone. The second is the outcome of the RHZHA application to change its membership from the OMHA to the GTHL, which process was overseen by the OHF.

[88] With regard to the dissolution decision, the Applicant argues that the OMHA did not engage in a bona fide consultation with the RHZHA before the decision was reached. RHZHA’s only participation in the process was the PowerPoint presentation to which it was invited on January 10, 2022. At no time did the OMHA seek the input of RHZHA on the issues under consideration. It was always presented as a fait accompli.

[89] While the OMHA had meetings with the other affected parties, it acknowledges that there was no consultation with the RHZHA, but takes the position that this was because the RHZHA had “clearly and repeatedly indicated that it was their intention to transfer to the GTHL and, as such, had no intention of discussing the re-alignment of the Richmond Hill AAA Level zone”. The OMHA argues that the Applicant could have made submissions to the OMHA any time after January 10, 2022, but, apart from letters from the RHZHA lawyer, no effort was made to make submissions.

[90] This presents a factual dispute that I cannot resolve on this motion. There has not, as yet, been cross-examinations on either affidavit. At this stage, however, I am prepared to hold that the RHZHA has at least passed the low threshold of “a serious issue” with regard to this aspect of their case.

[91] The second issue relates to the RHZHA application to change its membership from the OMHA to the GTHL. Counsel for the Applicant takes the position that the mediation process undertaken by the OHF did not comply with paras. 4.5.1 and 6.5 of its Changing Members Policy (see paras. 66-67, above).

[92] The OHF takes the position that it complied strictly with the procedural requirements of the Policy. The GTHL decided to not accept the RHZHA on the basis of the proposal offered. The GTHL did not make any counter proposal, and this ended the process.

[93] The OHF further takes the position that the injunction claimed against the OHF is really a mandatory interlocutory injunction and, therefore, the more onerous “strong prima facie case” standard in Canadian Broadcasting Corp. applies. This was certainly correct with regard to the original relief requested by the Applicant in its Notice of Motion.

[94] The revised interlocutory injunction requested against the OHF will require the OHF to “seek any counter proposal from the Greater Toronto Hockey League, and … receive submissions from the Ontario Minor Hockey Association and the Richmond Hill Zone Hockey Association”. While technically mandatory, it is not particularly onerous, costly, or burdensome and, at the end of the day, it is still open to the GTHL to decline the RHZHA’s application to change membership or for the OHF Board of Directors to decline to approve it. This is not, therefore, a case where granting the mandatory interlocutory relief requested will result in “the effective final determination of the action in favour of the plaintiff.” In these circumstances, the rationale for the “strong prima facie case” standard does not fully apply to the specific mandatory injunction requested in this case.

[95] On the other hand, since it is a mandatory injunction, some assessment of the strength of the applicant’s case is warranted.

[96] The parties’ submissions were made before the Hockey Canada NAC decision regarding the Changing Members Policy was released. This decision sheds some light on the merits of this part of the Applicant’s case. While not an administrative tribunal, the Hockey Canada NAC is a specialized arbitral body with expertise in amateur hockey matters, and its interpretation of the rules and by-laws of its constituent members is entitled to deference. Its decisions on such matters are reviewed on the standard of reasonableness. The adverse decision by the NAC places the RHZHA’s application in a tenuous position, since it must persuade the court that the NAC’s interpretation of the Policy was unreasonable. This factor must be included in the balance when considering the merits of the proposed mandatory interlocutory injunction against the OHF.

Irreparable Harm

[97] The issue here is whether the RHZHA will suffer harm that cannot be remedied by monetary compensation at the end of the trial if it is ultimately successful.

[98] The RHZHA argues that the OMHA’s decision has already been “catastrophic” to the RHZHA. The timing of OMHA’s announcement has “struck a stake in the heart of RHZHA’s recruiting process.” The RHZA has already lost two coaches and has been unable to replace them. Parents have already started to search for alternative teams for their children to play on. Other teams have already started recruiting players from the RHZHA’s teams. Hockey try-outs for the 2023-24 hockey season begin at the end of April 2023, and the RHZHA will lose more players and more coaches before the application is heard if the interlocutory injunction is not granted. RHZHA players who are not accepted on other teams will lose the opportunity to play at the AAA Level.

[99] The OMHA does not dispute the irreparable harm but argues that this motion for an interlocutory injunction has come too late; the irreparable harm has already occurred. Even if the interlocutory injunction is granted before the try-outs begin, “the damage is already done…and cannot be repaired.” The OMHA argues that there is no evidence that granting the injunction will suddenly bring players and coaches back to the RHZHA. Even if an interlocutory injunction is granted, the uncertainty that led to the loss of players and coaches will continue until the application is heard and decided. The OMHA raises this argument at each stage of the RJR-MacDonald test.

[100] Moreover, the OMHA argues that the present urgency and concurrent harm was caused by the RHZHA’s delay in making its application to transfer its membership from the OMHA to the GTHL. It was aware of the OMHA’s intention to dissolve the Richmond Hill AAA Level zone as early as January 2022 but did not apply to join the GTHL until eight months later, on September 30, 2022. Had the RHZHA made its application to transfer membership earlier in the process, there would have been more time for the parties and the GTHL to address the application without urgency. Delay by the party seeking the interlocutory injunction is relevant to the assessment of irreparable harm: Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929, at para. 73.

[101] While I am satisfied that the RHZHA will suffer irreparable harm if the interlocutory injunction is not granted, there is some force in the OMHA argument that much of the harm has already occurred, and the interlocutory injunction may come too late to benefit the RHZHA in any substantial way. This is, however, a factor that is more appropriately considered when assessing the final step of the RJR-MacDonald test: the balance of convenience.

Balance of Convenience

[102] The RHZHA argues that if the interlocutory injunction is not granted it will effectively go out of business before the application is heard.

[103] The OMHA argues that its interest is not in protecting any territory or “turf” but acting in the best interest of minor hockey.

[104] The OMHA argues that the RHZHA has only 150 players spread out over eight teams. The intention of the OMHA in dissolving the Richmond Hill AAA Level zone and making it part of the Markham AAA Level zone was to consolidate two struggling zones with almost equal numbers and make one better, more competitive AAA Level zone. This will be better for the AAA Level players because it will improve the level of competition among these elite players. If the level of competition for AAA Level teams is diluted due to less talented children being promoted to AAA Level teams before they are ready in order to ensure a minimum number of players, it will disadvantage both the AAA Level players and the A and AA Level players who are moved to that level too early.

[105] The RHZHA is comprised solely of the eight AAA Level teams. It does not have other teams, levels, or categories of players such as house leagues.

[106] The OMHA argues that the “balance of convenience” favours the OMHA’s decision to consolidate the two AAA Level zones because this decision was taken to improve competition in the best interest of all the AAA Level players in the league. Granting the interlocutory injunction will harm the league as a whole, even if some harm is avoided for some Richmond Hill AAA Level players.

[107] In other words, the “irreparable harm” sought to be avoided by the RHZHA is exactly the objective that the OMHA seeks to attain for the benefit of the league as a whole. While not quite rising to the level of “public interest”, the broader interests of the league, for which the OMHA is responsible, must be taken into consideration.

[108] The OHF’s factum addressed the balance of convenience with respect to the relief claimed in the Notice of Motion. I agree with OHF’s position that the original relief claimed would have forced the GTHL – which is not a party to this application – to accept the RHZHA’s change of membership (see para. 19), and was, therefore, not available on this motion.

[109] The interlocutory relief requested in the material file by the Applicant on the day of the hearing (see para. 8, above) would require the OHF to keep open the RHZHA application to join the GTHL and “to seek any counter proposal from the Greater Toronto Hockey League, and directing the Ontario Hockey Federation’s Board of Directors to receive submissions from the Ontario Minor Hockey Association and the Richmond Hill Zone Hockey Association”. As indicated, this does not seem particularly onerous or inconvenient given the fact that it will still be open to the GTHL to decline the RHZHA’s application to change membership or for the OHF Board of Directors to decline to approve it.

[110] While not expressly stated, the two injunctions appear to be something of a package deal. The RHZHA’s goal appears to be to continue for one more season so that the GTHL might have a change of heart if it is given more time to consider RHZHA’s application. For this to work, both injunctions would have to be granted.

[111] In weighing the balance of convenience, I am required to weigh the disadvantage that will be suffered by the 150 Richmond Hill AAA Level players against the disadvantages to the OMHA if it is not permitted to proceed with the consolidation of the Richmond Hill and Markham AAA Level zones.

[112] I am concerned that the proposed interlocutory injunction will not succeed in avoiding much of the irreparable harm feared by the RHZHA. The RHZHA described the OMHA decision as “catastrophic”. The evidence filed by the RHZHA indicates that parents have already started to search for alternative teams for their children to play on. The status quo appears to have already shifted. Even if the interlocutory injunction is granted, parents will remain uncertain about the future of the Richmond Hill AAA Level zone. The granting of an interlocutory injunction at this stage may only result in further uncertainty, which will disadvantage the league as a whole.

[113] I am satisfied that the OMHA decision to dissolve the Richmond Hill AAA Level zone and make it part of the Markham AAA Level zone was a decision taken for the benefit of the league as a whole. In this circumstance, the balance of convenience favours the OMHA.

Conclusion

[114] Based on the foregoing, and weighing the three elements of the RJR-MacDonald test for an interlocutory injunction, it is my view that this is not an appropriate case in which to grant an interlocutory injunction. The motion is accordingly dismissed.

[115] If the parties cannot agree on costs, the Respondents may each file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 15 days of the release of this decision, and the Applicant may file responding submissions of no more than 5 pages plus costs outline and any offers to settle, within a further 10 days.

Justice R.E. Charney

Released: April 5, 2023

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RICHMOND HILL ZONE HOCKEY ASSOCIATION Applicant – and – ONTARIO MINOR HOCKEY ASSOCIATION and ONTARIO HOCKEY FEDERATION Respondents REASONS FOR DECISION Justice R.E. Charney

Released: April 5, 2023

[1] This quote now appears in: Peter W. Hogg, Patrick Monahan and Wade K. Wright, Liability of the Crown, 4th ed. (Scarborough: Carswell, 2011) at p. 39. This text recognizes that there remains some debate as to whether something akin to an interlocutory declaration can be obtained against the Crown in jurisdictions where injunctive relief is not available against the Crown (see pp. 39-42). See also: Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Thompson Reuters Canada Ltd., 2022) at §3:27. The Crown is not a party to these proceedings and so I need not consider this point.