COURT FILE NO.: CV-20-00641984-0000 DATE: 2023-09-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RANDY BROOKES, Plaintiff AND: ATHLETICS ONTARIO, MINOR TRACK ASSOCIATION OF ONTARIO and DANIEL FIORINI, Defendants

BEFORE: Cavanagh J.

COUNSEL: Ryan Manilla, for the Plaintiff and Moving Party Oneal Banerjee, for the Defendants and Responding Parties Athletics Ontario and Daniel Fiorini

HEARD: June 13, 2023

ENDORSEMENT

Introduction

[1] The Plaintiff, Randy Brookes, is a certified sports performance and speed coach. He was formerly a Coach Member of the Defendant, Athletics Ontario (“AO”).

[2] In the within action, Mr. Brookes seeks relief against AO in relation to its decisions to suspend Mr. Brookes’ membership with AO as a Coach Member and, later, to terminate his membership.

[3] On this motion, Mr. Brookes seeks an interlocutory injunction restraining AO from interfering, directly or indirectly, with Mr. Brookes attending or coaching any sports event which is not hosted by AO, even if such event is sanctioned or approved by AO.

[4] For the following reasons, Mr. Brookes’ motion is dismissed.

Factual Background

[5] AO is a branch of Athletics Canada and the provincial sport governing body for athletics in Ontario. Athletics Canada is the national sport governing body for track and field and is Canada’s affiliated member of World Athletics, the world governing body for athletics.

[6] Athletics Canada and AO are the only organizations recognized by World Athletics as event or result sanctioning bodies for athletics competitions in Ontario (at the local, provincial, national, and international levels).

[7] When he was a 37-year-old adult, Mr. Brookes began a romantic relationship with a 44-year-old adult athlete (“C.B.”) he was coaching. The relationship ended after about four years. After the relationship ended, C.B. instituted a complaint against Mr. Brookes pursuant to AO’s harassment policy.

[8] On October 9, 2019, the Athletics Ontario Complaint Hearing Panel suspended Mr. Brookes Coach Membership for a period of no less than two years for having had a relationship with an athlete he was coaching at the time the relationship started. Mr. Brookes was prohibited from participating in any role at any event sanctioned by AO or an AO member club or association. The Panel decided that Mr. Brookes could be reinstated after two years if he had not violated this prohibition and met four conditions for reinstatement.

[9] On June 6, 2022, Mr. Brookes made a formal reinstatement request.

[10] At its September 14, 2022 meeting, the AO Board of Directors voted to terminate Mr. Brooks’ membership. The Board decided that a 10-year ban from reapplying for membership was appropriate. AO wrote to Mr. Brookes on September 20, 2022 to advise him of the Board’s decision to terminate his membership.

[11] Mr. Brookes issued a Statement of Claim on June 3, 2020. He delivered an Amended Statement of Claim on March 7, 2022. Following the termination of his membership (discussed below), Mr. Brookes seeks to deliver a Fresh as Amended Statement of Claim. The defendants have consented to this amended pleading.

[12] In the Fresh as Amended Statement of Claim, Mr. Brookes seeks various relief including (a) an order setting aside the findings and sentence imposed by AO; (b) an interim and final order that AO cannot bar Mr. Brookes from attending events sanctioned by both AO and Minor Track Association (“MTS”) even though Mr. Brookes is a member in good standing with MTA; (c) an order quashing Mr. Brookes’ suspension from AO and declaring that his membership in AO be restored in full; and (d) an order declaring that the decision by AO to terminate his membership to be improper, invalid, malicious and retaliatory.

Analysis

[13] Mr. Brookes moves for an interlocutory injunction restraining AO from interfering with Mr. Brookes attending or coaching any sports event which is not hosted by AO, even if such event is sanctioned or approved by AO.

[14] The test for obtaining an interim or interlocutory injunction was established by the Supreme Court of Canada in RJR-MacDonald v. Canada (Attorney General), [1995] 3 S.C.R. 199 in which was held that an injunction may be granted where the moving party establishes that (a) there is a serious issue to be tried; (b) the moving party will suffer irreparable harm if an injunction is not granted; and (c) the balance of convenience favours granting the relief sought.

[15] AO submits that Mr. Brookes is seeking a mandatory interlocutory injunction which would require AO to take positive actions including (i) amending its published termination order and circulating it to members to temporarily limit its application to events organized by AO so that event organizers do not rely on the existing termination notice, (ii) consider the likelihood of Mr. Brookes’ participation or attendance before sanctioning events not organized by AO; and (iii) consider revoking status of events once it is clear that Mr. Brookes plans to attend or participate. AO submits that, in substance, Mr. Brookes is seeking an order requiring AO to do something and, therefore, on a preliminary assessment of the merits, he must meet the strong prima facie case standard which would require me to undertake a more extensive review of the merits of the case. See R. v. Canadian Broadcasting Corp., 2018 SCC 5, at para. 15.

[16] Mr. Brookes contends that he does not seek a mandatory interlocutory injunction. Mr. Brookes is not seeking to compel AO to notify organizers of athletic meets of any information concerning Mr. Brookes or his status with AO. Mr. Brookes is not seeking an order compelling AO to tell meet organizers that it does not object to him attending their sports events, or to take any positive steps in relation to the termination of Mr. Brookes’ membership with AO. Mr. Brookes is seeking to prohibit AO from actively and unlawfully preventing him from attending events not hosted by AO, even if the event is sanctioned or approved by AO. Mr. Brookes states in his affidavit the conduct that, he says, AO has engaged in to prevent him from attending such events and that he seeks to enjoin.

[17] Given the limited order sought in Mr. Brookes’ notice of motion and the submissions by his counsel at the hearing of this motion, I am satisfied that Mr. Brookes is seeking a prohibitive interlocutory injunction and not a mandatory interlocutory injunction (where there is a higher onus on the moving party at the first stage of the analysis).

Has Mr. Brookes established that there is a serious issue to be tried?

[18] There are no specific requirements which must be met in order to establish a serious question to be tried in relation to a claim for interlocutory injunctive relief. The threshold is a low one. The judge on the motion must make a preliminary assessment of the merits of the case but a prolonged examination of the merits is generally neither necessary nor desirable. See RJR-MacDonald, at paras. 49-50.

[19] In his affidavit, at paragraph 25, under the heading “Injunctive Relief”, Mr. Brookes gives evidence of the actions by AO that he says have been taken and that he seeks to restrain:

AO has been actively preventing me from attending any events sanctioned by AO even if those events are hosted by other organizations in which I am a member in good standing. AO has threatened third parties and contacted he (sic) police in its efforts to bar me from any sports event it has sanctioned. AO has mentioned to others to involve the police if I am at their meets. AO has also suggested not to allow youth athletes from my former club, The Gazelles, to compete at meets hosted by third-party groups.

[20] Mr. Brookes provides no particulars in his affidavit of how AO has threatened third parties, other than his declaratory statement. He does not identify the person or persons representing AO who allegedly made these threats. He does not identify the person or persons to whom the alleged threats were made. Mr. Brookes does not state whether he learned this information from another source. This type of bald, declaratory statement is not evidence that there is a serious issue to be tried with respect to this alleged wrongful conduct.

[21] On the cross-examination on his affidavit, Mr. Brookes was asked about this statement in his affidavit in reference to AO contacting the police. He responded that he has been told by unnamed meet directors who are, he says, afraid to go on the record for fear of retaliation from AO, that representatives of AO have called and emailed them before a meet saying that Mr. Brookes cannot be at the meet, and for them to involve the police if he is there. His evidence on cross-examination is that he heard this “a couple of times”.

[22] Under rule 39.01(4) of the Rules of Civil Procedure, an affidavit for use on a motion may contain statements of the deponent’s information and belief if the source of the information and the fact of the belief are specified in the affidavit. Mr. Brookes does not identity the source of his information about contacts by AO with the police or with event organizers about calling the police if Mr. Brookes attends events sanctioned by AO. He does not expressly state the fact of his belief. The statements from Mr. Brookes about alleged contacts with the police are not admissible in evidence on this motion.

[23] Mr. Brookes provides no particulars, other than his declaratory statement, of suggestions by persons representing it that they have suggested that youth athletes from his former club, The Gazelles, not be allowed to compete at meets hosted by third party groups. He does not identify the person or persons alleged to have made such suggestions, to whom they were made, or the circumstances in which such statements were made. Even if there had been evidence to support this allegation, it would not be evidence establishing a serious issue to be tried with respect to the conduct against him which Mr. Brookes seeks an order restraining.

[24] Mr. Brookes relies on statements made by others that, he contends, support his position in the action that the proceedings which resulted in his suspension, and, later, in the termination of his membership with OA, were procedurally unfair. These persons are (i) a private investigator who gave a report concerning Mr. Brookes’ coaching status with MTA; (ii) a lawyer retained by Mr. Brookes to give an opinion on the procedural fairness of the proceedings that led to his suspension and the termination of his membership with OA; and (iii) persons at an independent case management company, Sports Health, that was retained by OA and gave a report that was provided to Mr. Brookes on June 5, 2023. The statements by these persons are not admissible in evidence on this motion. None of these persons was qualified as an expert witness. Even so, the substance of the statements by these persons goes to factual and legal issues that arise in the within action. These statements do not show that there is a serious issue to be tried in relation to the wrongful acts that Mr. Brookes alleges against AO and which, on this motion, he seeks an order to restrain.

[25] Mr. Brookes makes submissions about the merits of his action for relief seeking to set aside the suspension and termination of his membership with AO on the basis that he was denied procedural fairness. If Mr. Brookes had sought a mandatory interlocutory injunction requiring AO to amend its published termination notice and directing it to communicate to event organizers that it does not object to Mr. Brookes attendance at sanctioned events, this would require a preliminary assessment of the merits of Mr. Brookes’ claims made in the Fresh as Amended Statement of Claim to determine whether he has shown a strong prima facie case that his suspension and termination were unlawful and should be set aside. Mr. Brookes does not seek this mandatory relief on this motion and, therefore, it is not necessary for me to undertake a preliminary review of the merits of Mr. Brookes’ claims for this relief according to the strong prima facie case standard.

[26] Mr. Brookes has not shown that there is a serious issue to be tried in relation to the wrongful acts he alleges against AO and that he seeks to enjoin, involving unlawful threats to third parties and unlawful calls to the police and demands to event organizers that they call the police to remove Mr. Brookes if he attends their events. He has provided no evidence, other than his own declaratory statements, that AO has engaged in this conduct.

Has Mr. Brookes established that he will suffer irreparable harm if the injunction is not granted or that the balance of convenience favours granting the relief requested?

[27] Given my finding that Mr. Brookes has not established a serious issue to be tried with respect to the unlawful actions he alleges against AO on this motion, it is not necessary for me to reach a conclusion on the whether Mr. Brookes has established that he will suffer irreparable harm if the interlocutory injunction is not granted or that the balance of convenience favours granting the relief sought.

[28] If, however, I had found that Mr. Brookes has established a serious issue to be tried, I am not satisfied that he has established that he will suffer irreparable harm if the requested relief is not granted. Mr. Brookes submits that the harm to his reputation and livelihood is not compensable and that an award of damages would not compensate him. In making this submission, Mr. Brookes overlooks that on this motion, he does not seek a mandatory order that would have the effect of setting aside or suspending the termination of Mr. Brookes’ membership with AO. The termination will continue in effect regardless of the outcome of this motion. Mr. Brookes has not shown that he is unable to attend events not hosted by AO because of unlawful threats made to organizers by AO or requests that the organizers call the police if Mr. Brookes attends the event.

[29] Mr. Brookes has not shown that he will suffer irreparable harm if the conduct he alleges against AO on this motion is not enjoined.

Disposition

[30] For these reasons, Mr. Brookes’ motion is dismissed.

[31] The parties agreed that the successful party would be entitled to costs of this motion on a partial indemnity scale in the amount of $8,000, all inclusive. I order costs to be paid by Mr. Brookes to AO in the amount of $8,000 within 30 days.

Cavanagh J.

Date: September 26, 2023