Court File and Parties

COURT FILE NO.: CV-23-1571-0000 DATE: 2024 09 20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mississauga Majors Baseball Association, Applicant AND: Provincial Women’s Softball Association, Respondent

BEFORE: Chozik J.

COUNSEL: Christopher Lee and Claire Copland, counsel for the Applicant Michelle Kropp, counsel for the Respondent

HEARD: January 22, 2024

RULING ON APPLICATION

Overview:

[1] The Applicant, the Mississauga Majors Baseball Association (“Majors”) seeks a declaration directing the Respondent, the Provincial Women’s Softball Association (“PWSA”) to comply with its by-laws and an order compelling the PWSA to grant association membership to the Majors.

[2] The Majors is a baseball and softball association in Mississauga, Ontario. It is a not-for profit corporation, offering baseball and softball leagues for youth and young adults. Its softball program is exclusively for females. The Majors has a house league and a representative (“rep”) program at various age divisions. It is a community organization whose roots go back to the 1970s. The Majors formed in 2005, when the Cawthra and Bloor Baseball Associations merged. It relies on volunteers and community support to create and run its programs.

[3] The PWSA is a not-for-profit corporation operating as a softball association in Ontario. It is comprised of member associations and teams. In 2024, the PWSA had 58 association members which field 220 rep teams in Ontario. It is the organization that sanctions Ontario provincial qualifiers and championships and selects the Women’s Ontario Softball Team. Its aims and objectives are to improve and promote the game of softball for women in Ontario, and to develop athletes and coaches. It is also run by volunteers.

[4] The Majors are of the view that its membership in the PWSA is essential to attract and retain players who hope to have a future in softball. The goal of a rep program is to provide advanced training and competition to players who wish to develop their skills at a higher level. According to the Majors, it loses players each year to other associations that offer rep play at that level because it is not a member of the PWSA. It is a member of Baseball Ontario, the Central Ontario Baseball Association, the Mississauga Baseball Lakeshore League and the Peel Halton Girls Softball Association.

[5] The Majors twice applied for membership in the PWSA, but were denied. Initially, the Majors thought that its membership from 2019 was ‘grandfathered’ under the PWSA by-laws, post-Covid, and were surprised to be subject to a membership hearing in 2022. After its membership application was denied in July 2022, the Majors sought a second hearing and were denied association membership in 2023 for 2024. The PWSA offered membership for two of the Majors’ teams on terms and conditions, which the Majors declined.

[6] The central issues on this application are whether the Majors met the criteria for association membership as set out in the PWSA by-laws, and if so, whether the PWSA had discretion to refuse it. A threshold issue is whether the Majors, as non-members of the PWSA, have standing to bring an application like this under s.191 of the recently enacted Not-for-Profit Corporations Act, 2010, S.O. 2010, c.15 [“ONCA”].

[7] For the reasons that follow, I find that the Majors are proper persons under s.182(3) of ONCA to bring this application. I find that the Majors met the criteria for association membership at the time of the applications. The Majors was not properly subject to a membership hearing under r.1.02 of the PWSA operating rules, which is expressly intended to apply to single team entries. While operating rules should be read with the by-laws as part of the PWSA governing structure, the only criteria to be met for association membership is what is expressed in the by-laws. Nothing in the by-laws expressly incorporates the operating rules as being part of the membership requirements. In my view, the PWSA did not have discretion to decline association membership to the Majors as the by-laws currently stand. It is not necessary to decide whether the PWSA acted in bad faith.

BACKGROUND:

[8] The evidence on this application is comprised of the affidavits of Mark Newman, the Vice President of the Majors, and Deborah Malisani, the President of the PWSA.

[9] It is not disputed that the Majors organizes and operates baseball teams for boys and girls aged 4 to 21 and softball leagues for girls aged 7 to 23. The Majors has approximately 900 registered athletes and several leagues, including a house league, a softball league, a rep league and an elite league. It has rep teams at highest levels of baseball in the Bantam and Midget levels for youth aged 14 to 18 years. The Majors has been growing its house league softball program, and in 2021 fielded seven different house league teams.

[10] The Majors claim that historically it was a member of PWSA, through its amalgamation with Cawthra. It also argues that its membership in the PWSA should have been ‘grandfathered’ from 2019 to 2022.

[11] The PWSA does not dispute that Cawthra was a member of the PWSA in some capacity many years ago but denies that the Majors has ever been an association member. Under the PWSA by-laws, there are three types of memberships: as an association, a team or an individual. In 2019, the Majors had one team in the PWSA which was affiliated as part of the Peel Halton Girls Softball Association (“Peel/Halton”). According to the PWSA, Peel/Halton was an association member in 2019. Since the Majors was not an association member in 2019, it was not entitled to have its membership grandfathered post-Covid.

[12] In July 2022, the Majors applied for membership in the PWSA. The president of the Majors, Tony Jasinski, spoke with Malisani on July 11, 2022 and advised her that the Majors wished to apply for membership. Malisani told him that she would coordinate a membership hearing. Jasinski then emailed her to confirm the Majors’ intention. His email did not say whether the application was for membership as an association or a team.

[13] In her evidence, Malisani claims that she was of the view that because the Majors had only ever had one team entry, it was reasonable for the PWSA to assume that the application was for team affiliation. As such, she was of the view that r.1.02 of the operating rules applied. In her email dated August 23, 2022, she advised Jasinski of this rule. In her email, she stated:

As per our rule 1.02 noted below we will be having a hearing to determine the viability of another association in the same area. The zoom information is below for Wednesday the 30th at 7 pm. [emphasis added]

[14] It is not disputed that Malisani did not advise the Majors of any documents, application forms or specific information they should present at this membership hearing. Rather, Malisani’s evidence is that since Jasinski had actively participated in two such membership committee hearings on behalf of the Majors to assess the applications of other associations, he knew what had to be provided.

[15] Newman’s evidence is that the Majors thought their membership would be grandfathered, and Jasinski was left with the impression after speaking with Malisani on July 11, 2022 that the hearing was “a formality.” Malisani’s evidence is that she certainly did not advise that the hearing was a formality.

[16] The PWSA by-laws do not set out a membership application process. Malisani states in her affidavit that in 2020, r.1.02 was voted in by the membership and that it was amended to address single team entries or new associations “popping up” and taxing the pool of athletes, diamonds, umpires, etc.. The rule states:

R1.02 Affiliation – Teams desirous of joining the Association (P.W.S.A) may do so by single team affiliation. A single team is defined as any one team not affiliated with an affiliated member softball association. In addition, the new team applying for entry into the Association may not be composed of a group that carries 2/3 of a member club in good standing from the previous playing season. Single team entries as of 2020 playing season are grandfathered into the Association (P.W.S.A) provided they remain in good standing. Exceptions to this rule can be made by review of a special P.W.S.A. approval committee made up of P.W.S.A. board members, and neighboring Affiliated member association presidents.

(1) Any team associated, or part of an Association, must play their home games in the District their association is based.

(2) Any team associated with an association that would like to schedule a practice or game in another district occupied by another association would have to ask permission to schedule any games or practices in the district or defined area.

(3) Any single team associations would have to follow the same rules as listed above and be denied access to any district they were not based out of without obtaining permission from a pre-existing single team or multiple team association.

(4) Any team or association found in violation of this policy would be subject to disciplinary action, and immediately cancel all games scheduled outside of their district/approved area. The Association is committed to protecting the privacy of your personal information.

The Association may maintain a record of your interaction with other Association affiliated teams – scores, statistics, suspensions, competitions, play-offs or travel commitments, etc. where required. Occasionally, affiliated teams, coaches or players may be contacted with softball related communications. If you have any questions or concerns regarding the privacy of your personal information, please contact the Association’s Privacy Officer.

[17] According to Malisani, the PWSA held hearings for some teams and associations, but granted membership to others without hearings. If there were no other teams in an applicant’s immediate region or it had no intention of using players from any existing PWSA affiliate, membership was granted without a hearing. Under r.1.02, the PWSA would invite neighbouring associations to participate in the membership hearings as a courtesy, regardless of whether they were PWSA members, because they could be impacted by the decision. The Majors’ president Jasinski was twice invited to participate in such hearings prior to the Majors’ membership application, and twice voted against granting membership to two neighbouring associations.

[18] According to Malisani, the purpose of the membership hearings is to address concerns about whether an association has the strength to sustain its own rep program from within its organization and not pillage from the other regional centres.

[19] Newman gave evidence that the Majors were not provided with any application policy to follow. He was unclear on the proper form, procedure or “terms of art” to use when applying for membership. In the six weeks leading up to the first membership hearing, the Majors were not advised of any documents or information that were required for the membership hearing.

[20] While the Majors were advised of r.1.02, they were of the view that the rule could not apply because the Majors were seeking association membership, and not a single team entry.

The Majors’ First Membership Hearing:

[21] The Majors’ first application hearing was held on August 26, 2022, virtually. The PWSA membership hearing committee was chaired by Malisani, and comprised of two PWSA Board members and a representative of each of three competing Mississauga softball associations. According to Newman the two PWSA Board members were not identified by their full names. Newman did not like the competing associations being present because they benefit from the Majors not having rep teams in the PWSA. It provides them with an opportunity to solicit Majors’ athletes who wished to play competitively. Newman and Jasinski objected to their presence on the membership hearing committee, but Malisani allowed them to stay and to vote on the Majors’ membership application.

[22] According to Newman, during the hearing, the Majors were asked questions about its house league program. The committee repeatedly expressed concerns that the Majors’ rep program would not be “sustainable” because of its house league program. Newman was of the view that a thriving house league program would support the Majors by providing a large pool of players from which to grow its competitive teams. Regardless, Newman expected that the Majors would be admitted as a member association for the 2023 season because it met the conditions for entry under s.2.1(a) of the PWSA by-laws and because of its historic affiliation with the PWSA, which in his mind meant that the Majors’ membership would be grandfathered.

[23] On August 29, 2022 Malisani advised by email that the Majors’ membership with the PWSA was denied because “[t]he committee and the board members felt that there was not a plan presented to [them], there were no costs, budgets, coaches, and plans in place or presented to the group.” She stated in the email that “[p]resented was past successes, hopes and a a [sic] handful of house league teams in various age groups as a foundation which offered no sustainability for the program in future years.”

[24] According to Newman, this was the first time the Majors heard of these purported requirements for membership. Requirements for “costs, budgets, coaches and plans” are not listed in the PWSA by-laws for association or team memberships. According to Newman, these purported requirements were not communicated to the Majors by the PWSA in advance of the membership committee hearing. In her evidence, Malisani states only that Newman must have known about these requirements because he was asked about these issues and he answered.

The Appeal of the First Decision Refusing Membership:

[25] The Majors sought to appeal the PWSA decision because it was of the view that the PWSA had overstepped its mandate. Twice, the Majors requested confirmation of the correct appeal procedure to follow. Malisani directed it to the PWSA appeal policy.

[26] On September 2, 2022 the Majors delivered a notice of appeal to Malisani. On September 9, 2022 Malisani rejected the appeal because the appeal fee had not been paid within the required time frame and because, in her view, the Majors had not set out a viable ground of appeal. Rather, the Majors were invited to make a new application for membership. The PWSA operating rules require a $100 fee to be paid for appeals of disciplinary matters concerning existing members, including coaches, players and team officials. The Majors are of the view that this rule ought not have applied to their case, since the appeal did not relate to a disciplinary matter.

[27] On October 21, 2022 the Majors filed a detailed supplementary appeal, which included concerns about the improper reliance on the missed payment and reiterated its view that the PWSA’s denial of membership was not justified under the PWSA by-laws.

[28] On November 15, 2022 the lawyer for the PWSA advised the Majors that the appeal would not be heard. She stated in her letter that the Majors were “welcome to re-apply for affiliation in accordance with the governing documents of the PWSA.” The letter reiterated the purported requirements for membership being costs, budgets, coaches, and plans in place, as described earlier by Malisani.

[29] On December 15, 2022 the Majors asked Malisani by email to confirm:

a. That the Majors were an associate member affiliated with the PWSA in 2019;

b. The expected membership criteria;

c. Whether there would be a hearing to consider the Majors’ application and the basis for requiring such a hearing; and

d. Whether the Majors qualified for an exception as prior associate members in accordance with the PWSA by-laws.

[30] Malisani did not respond to these questions.

The Second Membership Meeting:

[31] On January 6, 2023 the Majors notified Malisani by email that they were submitting a second membership application. Malisani responded that the Majors had to reapply citing the missing “components as per the PWSA constitution and by-laws.” Newman asked what exactly was required. Malisani responded that the PWSA was “always happy” to assist those trying to become members to explain the process, but did not provide any additional information.

[32] On January 24, 2023 the Majors submitted additional documents by email to Malisani. Malisani did not respond.

[33] On February 28, 2023 the Majors were advised that they were only being considered for the 2024 season. Jasinski spoke to Malisani and advised her that the Majors was applying for the 2023 season. According to the Majors, no other association was applying in early 2023 for 2024. Malisani told him that the Majors needed to have additional documents ready in the membership hearing. The Majors prepared and had ready with them at the hearing: rosters, budgets, certifications, coaching information, and team membership information which, according to Newman, fully satisfied the purported requirements.

[34] The second membership hearing was held on March 21, 2023. At the hearing, none of those documents were requested. Newman made a presentation, which was described by Malisani in her evidence as a “good presentation.” The membership hearing committee was again chaired by Malisani, and consisted of two or three unidentified PWSA board members and three representatives from the same competing Mississauga associations.

[35] According to Newman, the committee again asked questions about the Majors’ house league program and appeared concerned that admission into the PWSA would harm the Majors’ house league program. Newman found these questions to be illogical.

[36] According to Newman, the committee sought to impose conditions on the Majors’ membership to which, as far as he was concerned, no other association was subject. Malisani adduced in evidence conditions imposed on another Mississauga association that were similar to those proposed for the Majors. These included terms such as building teams from house league athletes and not tampering or poaching players from other PWSA members.

[37] According to Malisani, the PWSA committee is concerned with sustainability of the rep program from within the member association. The membership committee’s concern was that the Majors only had a limited house league program in each age group and that to sustain a rep program the Majors might have to get players from other associations, which in turn creates concerns for sustainability of those programs.

[38] According to Malisani, there are a handful of PWSA affiliated associations that have no house league program. The rationale for granting membership to those associations is that they posed no threat of impacting neighbouring organizations.

[39] At the conclusion of the membership hearing, the Majors was told that it could join for the 2024 season on the condition that it would not hold open tryouts for athletes outside of its jurisdiction. The Majors did not agree to this condition. The Majors believed that an open market for players is essential to a competitive rep program and that it would be severely disadvantaged if other associations were able to solicit players from both its house league program and outside the program, but the Majors could only build a team from within its house league program.

[40] On April 20, 2023 Malisani informed Newman by email that the second membership application was rejected because of a “lack of transparency” in the Majors’ presentations and “some threats and bullying” which go against the PWSA’s “safe sport values.” These concerns arose after the hearing, from emails Jasinski sent to Malisani.

[41] The emails between September 2022 and April 2023 however were mostly denying that the Majors misrepresented itself as a PWSA association, or inquiring about its right to appeal. In one e-mail, Jasinski stated: “As we stated we no longer wish to a be a farm system to the other rep teams. You keep advising us to reapply but as long as the other rep softball organizations have a vote we will be denied.” During the argument of this application, no one drew my attention to any email that contained any threats or bullying.

[42] According to Newman, the Majors was advised that they would be prohibited from applying for membership until 2024 for the 2025 season. He also gave evidence that the Majors was informed that it had no right of appeal in respect of the second membership application. According to Malisani, “no one was banned from playing anything.” Two teams from the Majors had been playing in the Peel Halton regional league since 2023. Moreover, two teams from the Majors were offered PWSA affiliation for the 2024 season.

[43] According to Newman, the Majors were advised for the first time, on May 17, 2023 by PWSA’s lawyer in a letter that the reason for the denial of their membership application was that the Majors should have applied for affiliation under operating rule 1.02. According to Malisani, as I have already set out, the Majors were advised from the outset to apply under r.1.02 in the email dated August 23, 2022.

THE ISSUES:

[44] The first issue is whether the Majors are a “complainant” under s. 191 of the Non-For-Profit Corporations Act. If not, then they have no standing to bring this application.

[45] The second issue is whether the Majors met the PWSA membership requirements for new association members under the PWSA by-laws. The third issue is whether the PWSA had the discretion to deny membership if its by-law requirements were met. If the PWSA had discretion to deny membership, the Majors argues that the PWSA did so in bad faith.

ANALYSIS:

Issue One: Is the Majors a “complainant” under s. 191 of the Non-For-Profit Corporations Act?

[46] Section 191 of the ONCA empowers a court, on an application of a “complainant” to make a compliance order in the event a not-for-profit corporation is acting in breach of its by-laws. It states:

On the application of a complainant or a creditor of a corporation, the court may make an order directing the corporation or any director, officer, employee, agent, auditor, trustee, receiver, receiver-manager or liquidator of the corporation to comply with this Act, the regulations or the articles or by-laws of the corporation or restraining any such person from acting in breach of them and may make any further order that it thinks fit.

[47] Sections 182(2) and (3) of the ONCA define a “complainant” as:

(2) A person who not more than two years previous ceased to be a member, director or officer of the corporation or of any of its affiliates.

(3) Any other person who, in the discretion of the court, is a proper person to make an application under this Part.

[48] The Majors argue that this is an appropriate case for the court to apply its discretion under s.182(3) of the ONCA and find that it is a complainant under section 191 of the ONCA. It was historically affiliated with the PWSA and a member as recently as 2019. The Majors must meet the terms of the PWSA by-laws to become members again, but cannot unless the PWSA complies with its own by-laws. Section 191 is therefore the only available remedy to the Majors.

[49] There appear to be no authorities or prior decisions about who is a complainant under s.191 or the scope of the exercise of discretion under s.182(3) to grant status as a complainant under the ONCA.

[50] The question of who is a complainant, and when this court ought to exercise its discretion to extend standing to a person to be a complainant has been considered under the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”). This definition of a complainant and the discretion of this court to grant status under the ONCA is very similar to that in the OBCA.

[51] In section 245 of that Act, a complainant is defined as:

(a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates,

(b) a director or an officer or a former director or officer of a corporation or of any of its affiliates,

(c) any other person who, in the discretion of the court, is a proper person to make an application under this Part.

[52] The authorities establish that the discretion for this court to grant status as a complainant under s.245 of the OBCA is “broad” and “unfettered”: Olympia & York Developments Ltd. (Trustee of) v. Olympia & York Realty Corp. (2003), 2003 CanLII 25511 (ON CA), 68 O.R. (3d) 544 (C.A.), at para. 45; Foglia et al v. Grid Link Corp. et al, 2021 ONSC 703, at para. 20. Overall, flexibility is essential for the broad remedial purpose of the legislation: Foglia, at paras. 20-21.

[53] Some of the factors courts look at to decide whether to exercise discretion to grant status to an applicant include the connection of the applicant to the corporation at issue, the applicant’s interest in how the corporation is managed, its interest to right a wrong to itself or others, as well as other courses of action available to obtain an adjudication or remedy: Larmon v. Synergy Hospitality Inc, 2004 CanLII 2562 (ON SC), [2004] O.J. No. 3013, at para. 33; Joncas v. Spruce Falls Power & Paper Co., [1999] O.J. No. 2359, at para. 7 ; 1217174 Ontario Ltd. v. 141608 Canada Inc, 2017 ONSC 7698, at paras. 35-38; Jeffrey v. London Life Insurance Co., 2011 ONCA 683, at para. 142.

[54] I find these decisions persuasive. Under the ONCA, the purpose of s.182(3) is to allow “a proper person” who is not a member, director or officer of a corporation but who, like the Majors, is closely related and dependant on that not-for-profit corporation, to apply for remedial protection to the court under the ONCA. The Majors have a strong interest in how the PWSA is managed, but no recourse except under the ONCA to ensure that the PWSA complies with its by-laws. This is especially so when their appeals of the decisions refusing membership were not heard by the PWSA. I have no evidence before me of any other appeal route to any other organization or body.

[55] I therefore exercise my discretion to find that the Majors is “a proper person” under s.182(c) of the ONCA who may apply for a remedy under s.191 of that Act.

Issue Two: Did The Majors meet the PWSA’s membership requirements as set out in the PWSA’s By-Laws?

[56] Section 48(1) of the ONCA states that “the by-laws of a corporation must set out the conditions required for being a member of the corporation, including whether a corporation or other entity may be a member.”

[57] Section 2.1 of the PWSA’s by-laws outlines the different categories of membership in the PWSA as follows:

2.1 Categories- The Association has the following categories of members:

(a) Association Membership- Association defined as an entity governed by a Board of Directors, with By-Laws and Policies under which all members are governed. All P.W.S.A. affiliated organizations comprising of more than one Team Member who agree to abide by the By-Laws of the Association, as enacted and amended from time to time, will be Association Members. Association Members have one vote per association.

Note! All Associations affiliated prior to November 2020 will be grandfathered in.

(b) Team Membership- All P.W.S.A affiliated female softball teams who agree to abide by the By-Laws of the Association, as enacted and amended from time to time, will be Team Members, who must be a member of an Affiliated Association. Team Membership is a non-voting class.

(c) Individual Membership- All players, coaches, and managers affiliated with Team Members in good standing. All players, coaches and managers are a non-voting class.

(d) Director, Officers, Past Presidents and Life Members in good standing, who agree to abide by the By-Laws of the Association, as enacted and amended from time to time, will be Members.

[58] The language of Article 2.1 is mandatory. An association or team that meets the criteria must have its membership recognized and does not confer any discretion on the PWSA to reject members. It explicitly states that an association or a team will be a member if the preconditions are satisfied.

[59] Article 9.1 of the PWSA by-laws sets out a list of changes to the by-laws that require a special resolution. This list includes, under Article 9.1(d), any change to a condition required for being a member. In other words, the only way these membership criteria can be changed is by a special resolution of all members.

[60] It is not disputed that the Majors is governed by a Board of Directors, with by-laws and policies that govern its members. It is also not disputed that at the time of its applications in 2022 and 2023, the Majors sought to field more than one team but at that time it did not have a single affiliated team.

[61] The Majors submits that: (a) its association membership ought to have been grandfathered from 2019 to 2022, and (b) that it otherwise met the requirements for membership at the time of its applications.

[62] According to Malisani, in 2020 the membership of the PWSA voted rule 1.02 into the operating rules, which states:

R1.02 Affiliation – Teams desirous of joining the Association (P.W.S.A) may do so by single team affiliation. A single team is defined as any one team not affiliated with an affiliated member softball association. In addition, the new team applying for entry into the Association may not be composed of a group that carries 2/3 of a member club in good standing from the previous playing season. Single team entries as of 2020 playing season are grandfathered into the Association (P.W.S.A) provided they remain in good standing. Exceptions to this rule can be made by review of a special P.W.S.A. approval committee made up of P.W.S.A. board members, and neighboring Affiliated member association presidents. [Emphasis added]

(1) Any team associated, or part of an Association, must play their home games in the District their association is based.

(2) Any team associated with an association that would like to schedule a practice or game in another district occupied by another association would have to ask permission to schedule any games or practices in the district or defined area.

(3) Any single team associations would have to follow the same rules as listed above and be denied access to any district they were not based out of without obtaining permission from a pre-existing single team or multiple team association.

(4) Any team or association found in violation of this policy would be subject to disciplinary action, and immediately cancel all games scheduled outside of their district/approved area. The Association is committed to protecting the privacy of your personal information.

The Association may maintain a record of your interaction with other Association affiliated teams – scores, statistics, suspensions, competitions, play-offs or travel commitments, etc. where required. Occasionally, affiliated teams, coaches or players may be contacted with softball related communications. If you have any questions or concerns regarding the privacy of your personal information, please contact the Association’s Privacy Officer.

[63] In her email dated August 23, 2022 to the Majors, as well as in her evidence before this court, Malisani takes the view that r.1.02 can properly be applied to association rather than team membership.

[64] I find that the operating rule does not set out the membership criteria for an association. In applying r.1.02 to assess the Majors’ application for association membership, the PWSA did not comply with its by-laws. The operating rule expressly states that it applies to single team entries. It does not set out membership criteria for an association.

Ought the Majors’ Membership Have been Grandfathered?

[65] I am not satisfied that the Majors have established that it was an affiliated association in 2019 or that its membership ought to have been grandfathered under the PWSA’s by-laws. There is no evidence that in its current form, the Majors had ever been an association member of the PWSA. The Majors formed in 2005. Other than its one team entry in 2019, there is no evidence that the Majors had any type of membership in the PWSA.

[66] The PWSA association membership list in evidence before me for 2019/2020 does not include the Majors.

[67] The “application for affiliation” that was submitted to and received by the PWSA on May 17, 2019 indicates that the team name is “Mississauga Majors” in the Bantam division at Tier II and that the “League/Association” is “Peel/Halton.” The form further sets out the names of the team managers and coaches.

[68] The application form was submitted by the team’s head coach, not any member of the Majors’ board of directors. The form sets out that upon payment of the fee and the acceptance of the application for membership in the PWSA, all “members of this team” must meet certain requirements. A fee was paid. It was paid from the team account, not from the Majors’ association account.

[69] Based on this application form, I am not satisfied that the Majors have established that their membership in the PWSA in 2019 was as an association member. Based on the application form, I find that it was more likely to be that of a single team.

[70] There is no evidence that the Majors paid a membership fee as an association, or what that fee normally is. There is no evidence that the Majors filed by-laws or policies order to affiliate in 2019. The PWSA records show that for 2019, the Majors were affiliated under “Peel Halton.”

[71] In his reply affidavit, Newman states that the Peel/Halton Softball League could not be a PWSA member because it is a league comprised of other associations like the Majors, in which the Majors play. While I accept Newman’s evidence about this, I also accept Malisani’s evidence that the Peel Halton Girls Softball League was an Association member of the PWSA. It is listed as an association member.

[72] To be an affiliated team member of the PWSA, Article 2.1 of the PWSA by-laws requires the team to be affiliated with an association member. Again, there is no evidence that the Majors was an association member prior to 2019. Hence, it makes sense that the “Mississauga Majors” team applied for membership in the PWSA under the Peel/Halton Women’s Softball League.

[73] Considering all the evidence, I am not satisfied that the Majors were an affiliated association in 2019 or that its membership ought to have been grandfathered. The onus of proof is on the Majors, who must establish the facts in support of its position on a balance of probabilities. On the evidence before me, I am not satisfied that it has met that onus.

Did the Majors Meet the Association Membership Criteria?

[74] I am satisfied that the Majors met the membership criteria in Article 2.1(a) for association membership. As I have set out, in paragraph 60, the Majors is governed by a Board of Directors, by-laws and policies. It put forward at least two teams for affiliation.

[75] I accept Malisani’s evidence that the purpose of the process it followed in assessing the Majors’ membership application was to ensure that an association that is fielding more than one team in an area where there are competing associations, has a sustainable house league program from which it can sustain a rep program, without pillaging neighbouring associations. However, this was outside the scope of the PWSA by-laws. The only criteria for membership are those contained in Article 2.1.

Issue Three: Did the PWSA have the discretion to deny membership?

[76] Article 2.1 of the PWSA by-laws does not confer any discretion on the PWSA to reject associations who apply for membership and who otherwise meet the membership conditions set out in those by-laws.

[77] No authorities were brought to my attention to the effect that a corporation could exercise discretion to deny membership where its by-laws state that membership must be granted when certain conditions are met. Section 48(1) of the ONCA requires all and any membership criteria to be contained in the by-laws of a non-for-profit corporation like the PWSA.

[78] The case law before me establishes that “unless the criteria for membership are set out in the by-laws, the directors do not have the discretion to deny membership on some other basis that they themselves determine.”: Farrish v. Delta Hospice Society, 2020 BCSC 968, at para. 52; De Guzman et al. v. Philippine Community Centre Society et al., 2007 BCSC 591, at paras. 7-8.

[79] To change the membership criteria, and address the legitimate concerns the PWSA may have about the poaching of players from the neighbouring associations or teams, the PWSA can – through special resolution – change its membership conditions. But it cannot apply an operational rule or policy to deny membership selectively to associations that otherwise meet its membership criteria as set out in its by-laws.

[80] More specifically, while r.1.02 allows the PWSA to form a committee and conduct a hearing in order to assess and grant membership, it does not confer the power to disregard the membership criteria listed within its by-laws. The PWSA must utilize its operating rules within the confines of its by-laws.

[81] Based on the clear wording of Article 2.1 of the PWSA by-laws, and s. 48(1) of the ONCA, as well as the legal authorities before me, I conclude that the PWSA did not have discretion to deny membership to the Majors. An order shall issue to compel the PWSA to comply with its by-laws and grant association membership to the Majors forthwith.

[82] In my view, it is not necessary to find that the PWSA acted in bad faith. It acted outside the scope of its mandate as set out in its by-laws. No further finding of bad faith is required to make the order sought by the Majors.

CONCLUSION:

[83] I exercise the court’s discretion and find that the Majors are a “proper person” to bring this application under the ONCA.

[84] I find that the Majors met the criteria for association membership under the PWSA by-laws at the time of its applications. I further conclude that the PWSA did not have discretion to deny membership to the Majors when it had met the requirements for membership under the PWSA by-laws.

[85] As a result, the Application is allowed. A declaration that the PWSA comply with its by-laws and an order that it grant membership to the Majors shall be issued.

COSTS:

[86] The parties are encouraged to agree on costs. If they are unable to agree on costs, they may make brief written submissions accompanied by a bill of costs and any offers to settle.

[87] Those submissions shall not exceed two double spaced pages, accompanied by a bill of costs. The Majors shall serve and file their written submissions not later than October 4, 2024. The PWSA shall serve and file its written submissions not later than October 18, 2024.

Chozik J.

Date: September 20, 2024

COURT FILE NO.: CV-23-1571-0000 DATE: 2024 09 20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Mississauga Majors Baseball Association, Applicant AND: Provincial Women’s Softball Association, Respondent

RULING ON APPLICATION

Chozik J.

Released: September 20, 2024