Court File and Parties

Court File No.: CV-24-98074
Date: 2025/04/29
Ontario Superior Court of Justice

In the matter of an application pursuant to section 46 of the Arbitration Act, 1991, S.O. 1991, c. 17

Between:
David Spinney, Ahmed Shamiya, and Mara Schiavulli, Applicants
and
Dr. Frank Fowlie and Wrestling Canada Lutte, Respondents

Appearances:
Justin Safayeni and Olivia Eng, for the Applicants
Andre Marin, Adam P. Strombergsson-DeNora, and Karifa Magassouba, for the Respondent Dr. Frank Fowlie
Rachel Allen, for the Respondent Wrestling Canada Lutte
Geoffrey Cullwick, for the Sport Dispute Resolution Centre of Canada (appearing as friend of the Court)

Heard: January 28, 29 and 31, 2025 (Ottawa)

Reasons for Decision
Charles T. Hackland

Overview

1This is an Application under s. 46 of the Arbitration Act, 1991, SO 1991, c 17 in which the applicants ask the Court to set aside the Award of Arbitrator Richard W. Pound, CC, KC, dated November 22, 2024. The arbitration was conducted through the Sport Dispute Resolution Centre of Canada (SDRCC) and pursuant to its Code of Procedure.

2The proceedings were an appeal from an internal discipline decision of the Respondent Wrestling Canada Lutte (WCL), which governs the sport of amateur wrestling (also known as Olympic style wrestling) in Canada. The applicants David Spinney (Spinney) and Ahmed Shamiyah (Shamiyah) both coach wrestling, Spinney at Western University and Shamiyah at McMaster University and Shamiyah also competes personally in the sport at an international level.

3The respondent Dr. Frank Fowlie (Fowlie) served as WCL’s Complaints and Appeals Officer (CAO) from September 2020 until WCL terminated his contract in October 2021. One of Fowlie’s functions as WCL’s CAO was to receive and evaluate complaints arising under WCL’s Code of Conduct. He had a discretion to have complaints investigated and where warranted, to establish a discipline panel. He received a complaint about an undeclared relationship between Spinney and a female athlete whom Spinney coached. He retained an investigator to look into this concern, who reported back that such a relationship could not be confirmed and accordingly no hearing before a panel was required or held.

4Unfortunately, while the matter was being looked into, Fowlie received a series of emails (18 in total) from the applicants Spinney, Shamiyah and from Mara Schiavelli (Schiavelli), the mother of the athlete suspected of having a relationship with Spinney. These very strongly worded emails attacked Fowlie personally and caused him to feel he was being harassed. He asked his employer WCL to take some action, which they declined. As noted, Fowlie’s contract as CAO was terminated by WCL in October 2021. Shortly thereafter, he filed a harassment complaint with WCL relating to these emails. Fowlie’s harassment complaint was heard by an arbitrator under WCL’s internal discipline Code in September 2022 (by Arbitrator Cullen), discussed in more detail below. Fowlie was unhappy with Arbitrator Cullen’s decision and appealed to the SDRCC where the matter was heard by Arbitrator Pound, resulting in the Award under appeal in this Application.

5The applicants contend that the present Award should be set aside on the basis of several violations of the Arbitration Act, sections 19 and 46(1) of which provide:

Equality and fairness
19 (1) In an arbitration, the parties shall be treated equally and fairly. 1991, c. 17, s. 19 (1).

Idem
(2) Each party shall be given an opportunity to present a case and to respond to the other parties’ cases. 1991, c. 17, s. 19 (2).

Setting aside award
46 (1) On a party’s application, the court may set aside an award on any of the following grounds:
6. The applicant was not treated equally and fairly, was not given an opportunity to present a case or to respond to another party’s case …

Issues

6The substantive issue in the arbitration was whether the applicants had harassed the WCL’s CAO, Mr. Fowlie, through their email campaign. The arbitrator found that Fowlie had been harassed and he levied significant sanctions against all 3 of the applicants.

7The main issue in this appeal is whether the applicants were treated “equally and fairly” in the arbitration proceeding, as required by the Arbitration Act. After significant delays (discussed below), the hearing began and the complainant Fowlie testified and presented his case on December 4, 2023 in an on-line oral hearing. Further dates were subsequently set for a continuation of the hearing on July 2, 3 and 5, 2024. The plan was to allow the applicants to cross examine Fowlie and his two witnesses and then to allow the applicants to present their own evidence and to allow for cross-examination thereon and finally, to hear closing submissions.

8However, at the opening of the hearing on July 2, 2024, the arbitrator advised the parties that he had decided to switch the hearing format to require the applicants to question Fowlie by way of written questions only and then to proceed with presenting their case entirely in writing. The applicants contend this change from an oral hearing (after Fowlie’s case had been presented orally), with the applicants being forced to submit questions to Fowlie in writing and proceed with the balance of the hearing in written format, constituted unequal and unfair treatment in the circumstances. Secondly, the applicants Spinney and Shamiyah say it was unfair for the arbitrator to refuse to consider their respective written closing submissions on the basis the applicants chose not to submit evidence in the hearing. Thirdly, the applicants contend the arbitrator failed to provide adequate reasons for his award.

9Lastly, I will explain why I have declined to sign a consent Order proffered by counsel for the applicants and for Fowlie and WCL, purporting to have the Court sever and set aside 11 paragraphs of the arbitrator’s award. This relief was sought in a cross motion submitted by the WCL, purportedly agreed to by Fowlie and the applicants.

Factual Background

10As noted, Fowlie, on or around October 16, 2021, filed a complaint under the WCL code of conduct alleging “harassment” against the applicants and asking that they be expelled from Wrestling Canada. This complaint was based on 18 specific communications (emails) sent to Fowlie’s email account, all of which were appended to the complaint.

11The WCL Complaint was received and reviewed by Mr. Yampolsky, Fowlie’s successor at WLC, as CAO. Yampolsky determined the WCL Complaint should proceed under “Process #1” of the WCL Code (a summary procedure), and not the more procedurally complex “Process #2”, concluding that the WCL Complaint reflected a matter of ‘disrespectful conduct’ that did not rise to the level of harassment. Fowlie appealed Yampolsky’s “Process #1” determination to the SDRCC. On March 1, 2022, that appeal was dismissed on the basis of prematurity. The WCL Complaint then proceeded to a “Process #1” arbitration under the WCL Code.

12On September 1, 2022, Arbitrator Cullen issued his decision pursuant to Process #1 (the “Cullen Decision”) finding Spinney, Shamiya, and Schiavulli had engaged in “disrespectful conduct” by sending the emails to Fowlie and, by way of sanction, requiring each of them to deliver a confidential written apology to Fowlie within 30 days. Spinney and Shamiya were ordered to register in an ethics course for coaches at their own expense within 30 days, to be completed within six months. If Spinney, Shamiya or Schiavulli chose not to deliver the apology or complete the course, then they would be suspended from WCL activities for 90 days, 60 days or 30 days, respectively.

13Spinney delivered a written apology and completed the ethics course, as required.

14Schiavulli was suspended as was Shamiya (between September 10 and November 9, 2022). Shamiya also completed the ethics course at his own expense. Fowlie attempted to appeal the Cullen Decision internally within WCL. On October 21, 2022, his appeal was denied by Mr. Yampolsky. Fowlie then pursued the present appeal to the SDRCC. The SDRCC assigned the appeal to Arbitrator Pound.

15On November 22, 2022 — 32 days after receiving word that his internal attempt to appeal the Cullen Decision was rejected — Fowlie filed his initial paperwork to appeal the Cullen Decision to the SDRCC. The Canadian Sport Dispute Resolution Code (“the SDRCC Code”) states that “the time limit to file a Request shall be thirty (30) days following the later of the date on which… the last step in attempting to resolve the dispute occurred” and that all “days are included in the calculation of time limits, including weekends and holidays.”

16Shamiya immediately objected to Fowlie’s Request as being late. In January 2023, he moved to dismiss Fowlie’s appeal, arguing that it was out of time and there was no jurisdiction to proceed. Arbitrator Pound dismissed this motion without making a formal ruling. Shamiya and Spinney followed up orally and in writing in March and May 2023, reiterating their position that Fowlie’s appeal was out of time under the SDRCC Code, and seeking a written ruling on that issue.

17For several months, the arbitration proceeding before arbitrator Pound did not advance as Spinney and Shamiya sought to remove him based on alleged reasonable apprehension of bias. These challenges were heard and subsequently dismissed by a separate “jurisdictional arbitrator” (Arbitrator Thauli) appointed by the SDRCC. Arbitrator Thauli’s decision dismissing the bias challenge was dated April 3, 2023.

18Hearing dates for the arbitration were initially set for Monday September 11, 2023. On the Friday afternoon prior to the Monday hearing date Spinney requested a delay relating to his involvement in preparations for a competition which, in the arbitrator’s opinion, Spinney would have known about well in advance. An adjournment was refused by the Arbitrator. Then, on the Monday morning of the hearing the SDRCC received notification that Shamiya had been hospitalized. In the circumstances, the hearing was adjourned and new hearing dates were subsequently set for three months later, being December 4, 5, 6 and 8, 2023.

December 4, 5, 6, and 8, 2023 Hearing

19As the December hearing dates approached, Spinney’s counsel advised the Arbitrator that he would not attend the first day of the hearing on December 4, 2023, for personal reasons, as he wished to attend the funeral of a close friend and former colleague. He requested that the matter be delayed for one day so that he could represent Spinney at the hearing. Then on the evening of December 3, 2023, Shamiya’s partner notified the Arbitrator that a previous head injury suffered by Shamiya was re-triggered when he competed in a wrestling tournament. She provided documentary evidence that Shamiya had to forfeit a match due to injury and explained that the injury left him unable to review hearing materials or participate, and requested an adjournment.

20The Arbitrator was not prepared to further adjourn the hearing in the circumstances. On December 4, the hearing proceeded in Shamiya’s absence and without Spinney’s counsel present. Schiavulli was also absent. Spinney himself attended at the outset of the hearing, in order to express to the Arbitrator that he did not feel comfortable attending without his counsel present. The Arbitrator repeated his decision to not adjourn the hearing. Shamiya then disconnected from the online hearing.

21In the circumstances, on December 4th, the Arbitrator proceeded in the applicant’s absence to hear Fowlie’s entire case, including oral evidence from Fowlie and two other witnesses, as well as receiving documentary evidence and certain oral submissions from Fowlie’s counsel.

22The hearing was then suspended at the applicant’s insistence, pending the determination of further apprehension of bias challenges against the Arbitrator. The SDRCC again appointed a jurisdictional arbitrator (arbitrator Bilodeau), who rendered his decision on April 18, 2024 dismissing the challenges and finding the Arbitrator acted reasonably and within his jurisdiction in refusing to adjourn the hearing and concluding there was no evidence of bias or conflict of interest.

23On May 9, 2024, Arbitrator Pound held a case conference with the parties where he suggested three further oral hearing days to “allow ample time to proceed with cross-examination of the Claimant’s witnesses, re-examinations as needed, evidence from [the applicants] and WCL (followed by cross-examination and re-examination as needed), and closing submissions”. All parties agreed to proceed with further oral hearing days.

24In a subsequent Procedural Order, dated May 16, 2024, the Arbitrator acknowledged that the applicants required “a reasonable opportunity to cross-examine and to produce their own evidence and submissions”, and that “[i]t is in the interests of justice that they have such an opportunity”. Subsequently, in a June 5, 2024 Procedural Order, the Arbitrator set July 2, 3 and 5, 2024 as oral hearing dates and confirmed the applicants’ right to (i) cross-examine Fowlie’s witnesses; (ii) present their own evidence in chief; and (iii) make oral closing submissions.

July 2, 3, and 5, 2024 Hearing

25At the outset of the hearing on July 2, 2024 without consultation with the applicants or their representatives, the Arbitrator declared he would be issuing a Procedural Order requiring that all steps from that point forward would take place in writing. Those steps were to include the Applicants’ cross-examination of Fowlie and his witnesses, all of whom had already testified orally and in person (on December 4th) as well as the applicants’ evidence in chief and any cross examinations on the applicants’ evidence.

26Counsel for the applicants emphasize the point that the Arbitrator made this Procedural Order prior to hearing any submissions from any party or their representatives on these procedural changes, and without their consent. They submit counsel were taken completely by surprise.

27At the hearing on July 2, 2024 and by correspondence thereafter, the Applicants repeated their objections to the sudden switch to a purely written procedure and requested that the previous oral hearing process be resumed. They made submissions as to what they characterized as inequality, unfairness and prejudice arising from (i) Fowlie presenting his evidence-in-chief orally and then being prevented from having that evidence tested in live cross-examination; and (ii) the Applicants not being given the same chance as Fowlie to present evidence and submissions at an oral hearing.

28During the hearing on July 2, 2024, the applicants urged the Arbitrator to let them conduct a live cross-examination of Fowlie on that day, given that Fowlie and all parties or their representatives were present. The Arbitrator refused, stating: “No, I’ve told you what I’m going to do”.

29Two days before the July 2nd hearing, Fowlie’s counsel had advised that he would be seeking to re-open his case to introduce new documentary evidence that would not be available until August 2024, and he would be summoning three additional witnesses to testify. Fowlie ultimately never took those steps.

30In a Procedural Order dated July 4, 2024, the Arbitrator confirmed that his mind was made up regarding his decision to proceed in writing, notwithstanding the wishes of the parties. He stated:

“With respect to the manner in which the matter will proceed, in the circumstances, my decision to proceed by way of written questions and written answers (supported by affidavits) stands. This was a decision communicated by me to the Parties and Affected Parties, not the opening of a discussion. That said, I have fully considered the verbal and written suggestions and observations of the Parties and the Affected Parties and, based on experience during these proceedings to date, I have not changed my mind.”

31On July 12, 2024, the Arbitrator circulated a “Schedule for Submissions” reflecting deadlines for the imposed written process. This process extended over five months between July 18 and November 22, 2024. The Arbitrator did not seek the parties’ input on the Schedule or consult as to their availability.

32On July 17, 2024, Spinney’s counsel, Mr. Smith, advised the Arbitrator that the Schedule was not workable given his previously booked out-of-country travel and multi-week criminal trials. Mr. Smith again requested that the Arbitrator set three hearing dates so the matter could be concluded fairly and efficiently. Also on July 17, Shamiya advised the Arbitrator that he had lost his representation due, he said, to the change in hearing format. On October 18, 2024, Mr. Smith formally resigned as Spinney’s counsel. Schiavulli was unrepresented at this point.

33The Applicants assert that as a direct result of the Arbitrator’s unilaterally imposed written hearing process and Schedule, the Applicants were “not in any position to further participate in the proceedings”. They did not avail themselves of the written participation in the proceedings contemplated by the Schedule. That is to say, they did not seek to cross-examine Fowlie via written questions, nor adduce affidavit evidence of their own. Spinney and Shamiya did, however, file their own written closing submissions. Schiavulli did not file a closing submission.

34On November 22, 2024, the Arbitrator released his Award, allowing Fowlie’s appeal and finding that the Applicants had engaged in harassment of Fowlie through emails sent to him. He did not separately analyze the harassment findings against each of Spinney, Shamiya, and Schiavulli, and gave them each the same sanction: a suspension “from all positions with or designated by WCL… [and] from participating in any activities within, organized or sponsored by WCL, including any role relating to Canadian teams participating in any events, which was to last until 30 days following the conclusion of the 2028 Olympic and Paralympic Games.” This was a suspension lasting nearly four years.

35In his award, the Arbitrator said that he declined to consider the closing legal submissions of Spinney and Shamiya, writing: “I can give the submissions no status since they are not based on evidence properly before me in these proceedings.”

Discussion and Analysis

The Switch to an In-Writing Hearing

36The applicants argue they were entitled to an oral hearing. Clearly all participants and the Arbitrator initially proceeded on the basis there was to be an oral online hearing. The preliminary steps were taken and the oral hearing was set to begin December 4, 2023. Fowlie received his oral hearing on December 4, 2023. He testified in person and called two other witnesses and filed in evidence some 150 emails, including the 18 emails which were alleged to be harassing in the prior WCL proceeding. Fowlie was not cross-examined then, or, as matters transpired, at any later time.

37As noted previously Spinney’s counsel, Mr. Smith, did not attend the first day of the scheduled December 4, 2023 hearing as he chose to attend a memorial ceremony for the passing of a friend. As noted, Spinney himself connected to the opening of the hearing to ask the arbitrator for an adjournment because of the absence of his counsel and when that was refused, he disconnected from the hearing. Shamiya did not attend the hearing for medical reasons. Shiavulli also did not attend. As noted, Fowlie presented his case on December 4th. The arbitrator directed that the hearing be recorded and the recording was made available to the parties at the end of the day’s proceedings with the intent that the recording be available to the parties to facilitate their participation in the balance of the hearing.

38The next morning, December 5, 2023 Spinney’s counsel, Mr. Smith was available and joined the online hearing and proceeded to present the Arbitrator with another motion to remove himself for alleged reasonable apprehension of bias. The Arbitrator rejected this motion as an abuse of process. Spinney’s counsel specifically declined to cross-examine Fowlie at that time, as explained in the Arbitrator’s award. The hearing was suspended. The SDRCC appointed another jurisdictional arbitrator (Mr. Bilodeau) to address the new apprehension of bias allegation. This process resulted in another significant delay.

39Jurisdictional arbitrator Bilodeau rendered his decision on April 18, 2024. He dismissed the applicants’ allegations of bias, particularly as they were based on the arbitrator’s refusal to grant an adjournment to Spinney’s counsel, being a reasonable decision in the circumstances and a matter entirely within the Arbitrator’s discretion. Jurisdictional arbitrator Bilodeau suggested “…the appointed arbitrator may wish to consider…resuming the hearing by allowing the affected parties to present evidence, if so desired, followed by cross-examination and supplementary submissions by the claimant and WCL, as required…followed by reply submissions by the affected parties…”

40New hearing dates were set for July 2, 3, and 5, 2024 as reflected in the Arbitrator’s Procedural Order of June 5, 2024. This Procedural Order specifically confirmed the applicants right to cross-examine Fowlie and to present their own evidence in chief and make oral closing submissions. Clearly all parties and the Arbitrator were proceeding on the understanding that an oral hearing process was underway and would be completed.

41However, on June 28, 2024, Spinney advised he could not attend personally at the first 2 days of the hearing due to a last minute coaching trip to Spain, although his lawyer would be in attendance throughout. On July 1 Shamiya’s representative advised that Shimaya would miss the first two days of the hearing due to surgery but his representative would be in attendance.

42At the opening of the hearing on July 2, Arbitrator Pound advised that he had decided the format of the proceedings would change and would henceforth continue in writing, according to a schedule the Arbitrator would release. Both representatives of the applicants were present and objected to the format change and expressed that they were prepared to cross examine Fowlie at that time. The Arbitrator also had before him a request from Fowlie’s counsel that he be permitted to re-open his case in order to file new evidence, which would not be available during that session of the hearing.

43The Court would observe that s. 26(1) of the Arbitration Act provides the arbitration tribunal “may hold hearings for the presentation of evidence and for oral argument; however the tribunal shall hold a hearing if a party requests it”. In the present case the parties did request an oral hearing and indeed Fowlie had the benefit of receiving an oral hearing on December 4, 2023. Moreover, article 3.10 in the SDRCC Code confirms that an oral hearing by way of conference call is the “normal” format in SDRCC proceedings, unless the parties agree otherwise. The Arbitrator’s ability to change procedural formats is limited to a “case of disagreement by the Parties on the format of the proceedings”. That did not occur here. Prior to the July 2, 2024 ruling, all parties agreed to oral hearing dates and, as noted, Fowlie had previously presented his case by way of oral hearing.

44There was no consultation with the parties or their representatives about a change in format for the balance of the hearing, no “last chance” warning that further delays on the part of the applicants would result in an end to the oral aspect of the hearing and no opportunity to discuss or modify what was clearly a significant change in procedure in the middle of the hearing.

45In the Court’s opinion the Arbitrator’s failure to allow the applicants to cross examine Fowlie and to present their own case by way of oral hearing was in contravention of the applicants’ statutory rights under s. 26(1) of the Arbitration Act and the change in format of the hearing which allowed Fowlie an oral hearing and denied that same opportunity to the applicants, contravened s. 19(1) of the Arbitration Act which requires that “the parties shall be treated equally and fairly”.

46The switch in procedure announced to the parties on July 2 was undoubtedly due to the Arbitrator’s concerns at the delays attendant on the repeated allegations of bias made by the applicants and their apparent reluctance to attend scheduled hearing dates. Arbitrator Pound characterized the procedural aspects of the hearing as having been “a long and difficult matter …replete with motions, challenges, incivility, and deliberate delays”. He found most frustrating were the 3 sets of arbitrator challenges for alleged bias and conflicts of interest all designed to delay the proceedings. The Arbitrator explained his reasons for the mid-hearing switch in procedure at paras. 43-44 of his Award:

43. While it was a much less satisfactory process than I would have preferred in the ordinary course/ the demonstrated tactical conduct of the Affected Parties had been such that I decided the remaining proceedings, including the tendering of evidence, cross-examination thereon and all subsequent submissions were to be in writing, with evidence to be supported by affidavits. A schedule was created to allow this to happen within a reasonable time and was posted on the SDRCC Case Management Portal. Written proceedings regarding evidence and pleadings are hardly unknown to the law. Regular reminders of all "due dates" were communicated to the parties.

44. The Affected Parties were not happy with this turn of events and took the position that they should have been consulted in advance. It was, however, their continued and concerted course of conduct which had led to the decision to proceed in writing, with the "on the clock" feature that provided certainty regarding the conclusion of this much-delayed process. It is not unlikely that resistance to the amended process may have been related to the evaporation of any further delaying tactics.

47Notwithstanding the Arbitrator’s reasonable concerns about the applicants’ apparent intention to continue to delay proceedings, it is well established that the fairness and equality of treatment standard must be adhered to inspite of a party’s conduct during an arbitral proceeding. Awards have been set aside for a failure to satisfy s. 19 of the Arbitration Act even where parties were found to “have consistently acted in a fashion which has had no impact other than to delay, see Universal Settlements International Inc. v. Duscio, 2011 ONSC 968, para 176, aff’d 2012 ONCA 215.” Similarly, it has been held that a party’s refusal to participate in an arbitration process “did not obviate her right under s. 19(1) of the Act to be treated equally and fairly.”, see Hercus v. Hercus, [2001] O.J. No. 534. In short, considerations of delay and non-participation cannot justify unfair and unequal treatment. The Arbitrator was entitled to take steps to avoid further undue delay, but not at the expense of a fair and equal process.

48In assessing whether a decision maker has complied with the common law obligation of procedural fairness, the Ontario Court of Appeal in Afolabi v. Law Society of Ontario, 2025 ONCA 257, para 60, has recently reiterated that a reviewing court is required to determine whether the decision maker followed a procedurally fair process, with specific reliance on the factors articulated by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. As explained by Gillese J.A. in Afolabi at para. [60]:

“… evaluating whether the duty of procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation. Second, where procedural fairness is at issue, the question is not whether the substance of the decision was correct or reasonable but, rather, whether the decision-making procedure was fair having regard to all of the circumstances.”

49Justice Gillese continued at para [63]:

At paras. 23-27 of Baker, the Supreme Court of Canada set out the following list of non exhaustive factors as relevant to determining what the common law duty of procedural fairness requires in a given set of circumstances:

(i) the nature of the decision being made and the process followed in making it;

(ii) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(iii) the importance of the decision to the affected individual(s);

(iv) the legitimate expectations of the person challenging the decision; and

(v) the choices of procedure made by the decision-maker, particularly where the statute leaves to the decision-maker the ability to choose its own procedure.

50In applying the Baker factors to the Arbitrator’s Award in the present case, this was an application under s. 46(1) of the Arbitration Act, alleging the applicants were not treated equally and fairly, in contravention of their right to fairness and equality in the arbitration procedure. The arbitration had proceeded through a hearing, up to the conclusion of Fowlie’s evidence, when the arbitration was switched to an in-writing process, without consent of the parties and without receiving the submissions of the parties and arguably, contrary to their legitimate expectations. This court is of the opinion that having regard to the fairness and equality of treatment obligation in s. 19(1) of the Arbitration Act and also considering s. 26(1) of the Act and article 3.10 of the SDRCC Code, an oral hearing was required for both parties in all the circumstances. The issues at stake involved serious allegations of misconduct against coaches Spinney and Shimaya and the requested sanctions (expulsion from the WHL) would likely be career ending for each of them. For these reasons the arbitration Award must be set aside.

Ignoring Spinney’s and Shamiya’s Closing Submissions was Unequal and Unfair

51The 3 applicants declined to provide any testimony in writing nor did they file any materials and they declined to question Fowlie or his 2 witnesses in writing. This is a choice they made and they are bound to take responsibility for this choice. The Arbitrator was, in effect, left with one narrative of events. On the other hand, the applicants were not required to call evidence and were entitled to choose not to. Failure to call evidence did not disentitle the applicants to provide written submissions. Spinney and Shamiya each filed a written submission. The Arbitrator said he could give these submissions “no status”. He explained:

50. On 14 November 2024 both AP Spinney and AP Shamiya filed separate submissions in which each sought to justify their conduct as entirely principled and not sufficiently excessive to rise to the level of harassment. Unfortunately, given their refusal to participate in the evidentiary phase of the proceedings, these submissions are completely bereft of evidence in support of their claims. I can give the submissions no status since they are not based on evidence properly before me in these proceedings. Nothing has been received from AP Schiavulli.

52With respect, the Arbitrator’s reasoning in this regard is unacceptable from a fairness point of view. There was an evidentiary record including Fowlie’s testimony and the 18 emails in issue and a large volume of other emails authored by the applicants, all of which were filed in evidence. All of these emails reflected the applicants’ perspectives on the issues they were attempting to advance. Spinney was entitled to make submissions that his email communications were principled and did not amount to harassment and to have such submissions duly considered. The Arbitrator was required to consider these submissions, and Fowlie’s submissions and was of course entitled to accept or reject some or all of them. In addition, in his written submission, Spinney chose to address some legal and some procedural points based on the existing record. He should not have been precluded from doing so simply because he had chosen not to file written or documentary testimony of his own. For example, Spinney provided, in his written submission, his perspective on the following relevant and important issues:

(a) the limited jurisdictional scope of what communications could be reviewed as part of the Request (i.e. only those emails in the original WCL Complaint);

(b) the appropriate legal approach to harassment, including the key objective element and the need to consider the full context surrounding the communications; and

(c) the considerations to be borne in mind with respect to any appropriate and proportionate sanction, in the event harassment was established.

53The applicants argue there is no “right to be heard” if written arguments are filed, only to be ignored, as occurred here when Spinney and Shamiya’s closing submission was accorded “no status”, in the Arbitrator’s words. I accept that submission. The arbitrator’s decision to accord “no status” to Spinney and Shamiya’s written submissions, while discussing Fowlie’s submissions in detail, was a failure to accord fair and equal treatment. On this basis as well, the Arbitrator’s award must be set aside.

Disposition

54For the reasons set out above, the Court finds the Applicants were not treated equally and fairly in this arbitration hearing, contrary to s. 19 of the Arbitration Act. Accordingly, the Award (as well as the costs award) is set aside under s. 46(1) 6 of the Act and the matter is remitted to the Sports Dispute Resolution Centre of Canada for a new hearing before a different arbitration panel.

55In view of the fact that a new arbitration hearing will be held, the Court has deliberately not decided several issues raised in argument, as follows:

• the substantive issue before the arbitrator of whether Mr. Fowlie was harassed by the applicants’ email campaign;
• whether Fowlie’s appeal to the SDRCC from the disposition of the WCL complaint was out of time;
• whether the harassment complaint encompassed only the 18 emails dealt with at the WCL level or the 150 emails filed in evidence in the present arbitration hearing; and,
• whether there was a failure on the Arbitrator’s part to provide sufficient reasons for the Award, both as to the finding of harassment and the sanctions levied on each of the applicants.

56Lastly there was a cross-appeal brought by the WCL, seeking to sever and set aside 12 paragraphs of the arbitrator’s Award as well as a heading in his reasons entitled “The Strange Posture of WCL”. An order to this effect, purportedly on consent of all parties, was presented to me for signature. I declined to sign such an order as I view the requested relief as unjustified and an abuse of process. The 12 paragraphs in question are a thoughtful critique by the learned arbitrator of the respondent, the WCL’s failure to participate in any meaningful way in this arbitration, and, as he put it, their “completely inadequate response” to the applicants’ conduct which was directed at the WCL’s own complaints administrator. I view the arbitrator’s observations as providing important context to the reasons expressed in his Award, both as to his finding of harassment against the applicants and the propriety of the sanctions rendered.

57If the applicants wish to seek costs of this application, they are to provide a written submission within 30 days of the release of these reasons and the other parties may respond within 30 days of receiving the applicant’s submission.

Justice Charles T. Hackland