Administrative law – Associations and clubs – Governance – Disciplinary proceedings – By-laws – Elections – Voting rights – Judicial review – Applications – Jurisdiction – Stay of proceedings – Test
Voorhorst v. Canadian Soccer Assn.,  A.J. No. 205, 2011 ABCA 74, Alberta Court of Appeal, March 4, 2011, J.E.L. Côté and M.B. Bielby JJ.A. and D.A. Sulyma J. (ad hoc)
The Appellants were parties to litigation involving the Respondent Soccer Association. The Appellants had directed other provincial and local associations to start court proceedings against the Respondent Association and had sworn affidavits in support of litigation. The Respondent considered these actions to be forbidden by its bylaws, and commenced disciplinary proceedings against the Appellants aimed at removing their rights to hold office or to participate in voting within the Association. The Respondent did not allege that the Appellants’ conduct was dishonest or based on improper motives, but simply that the Respondent’s bylaws forbid the Appellants from seeking recourse to “ordinary courts”.
The prior proceedings had concerned the winding-up of a deadlocked association pursuant to the Societies Act and the Business Corporations Act. While the court in that action had postponed the question of whether to order liquidation, the party in that action supported by the Appellants did obtain a favourable ruling, in that they successfully upset the contested election and a new general meeting was ordered, at which they won the election held by a significant margin.
The Appellants launched a judicial review against the Respondent’s discipline hearing, and in response both sides filed a motion. The Appellants sought an interim stay of the disciplinary proceedings pending the outcome of the judicial review, which was denied. The Respondent sought a summary dismissal of the judicial review proceeding, while it did not obtain that order, a stay of the judicial review was granted. The Appellants appealed both decisions.
The Appellants claimed that, since they were not members of the Respondent Association and have no express contract with it, and the Respondent’s only claim to disciplinary jurisdiction came from an implied contract between the parties, jurisdiction was in issue. The Respondent admitted that when jurisdiction is contested, there is a serious question to be tried. The Court therefore held that the first branch of the test for a stay of disciplinary proceedings had been established.
At the second stage of the test, it was alleged that irreparable harm would occur to the Appellants if the stay was not granted. While the chambers judge had found that loss of reputation alone did not warrant a claim for irreparable harm, the Court of Appeal noted that the Appellants had also claimed for loss of rights to participate in governance. The Respondent’s position had been that since the Appellants were denied their right to vote at that year’s general meeting only and would be eligible to vote and hold office the following year, they would not suffer irreparable harm. The Court of Appeal noted that while elections are held each year, the practical effect of denying the Appellants’ right to participate in the current elections could affect governance indefinitely, and therefore an irreparable harm would occur.
Under the third branch of the test, the Court noted that the disciplinary proceedings commenced by the Respondent amounted to punishment against the Appellants for having sought access to the courts. The Court of Appeal noted that such conduct was an attempt by the respondent to emasculate the superior court and should therefore be taken into consideration when examining the balance of convenience.
The Court of Appeal therefore held that the chambers judge’s decision, which found that only the first branch of the test had been met, was incomplete and was plainly unreasonable. As a result, the discipline proceedings were stayed pending the judicial review.
The Court of Appeal also lifted the stay of judicial review proceedings so as to avoid judicial gridlock.
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