Ontario court finds Toronto Soccer Association and Ontario Soccer Association breached standard of fairness by failing to give adequate notice of the infractions at issue and the sanctions that could be faced in dispute over player ages

16. January 2018 0

Administrative law – Decisions reviewed – Soccer Association – Judicial review – Procedural requirements and fairness – Jurisdiction – Notice – Associations and clubs – Disciplinary proceedings

Islington Rangers Soccer League v. Toronto Soccer Association, [2017] O.J. No. 5647, 2017 ONSC 6229, Ontario Superior Court of Justice, November 2, 2017, M. Koehnen J.

The Ontario Superior Court of Justice heard the application for judicial review on an urgent basis on Friday, September 15, 2017, because the team had been disqualified from the championship game which was scheduled to be played at 10:00 a.m. on Saturday, September 16.

The League operates several youth soccer teams including the Islington Rangers Black 2004 U 13 girls team (“U 13 team”). The team is meant to be comprised of girls born in 2004 who are either 13 years old or turning 13 this year.  Peres is their volunteer coach.

The U 13 team plays in the League under the auspices of the Toronto Soccer Association (“TSA”) which in turn operates under the auspices of the Ontario Soccer Association (“OSA”).

The issue here was that five of the players on the U 13 team were 12 year olds born in 2005. The League permits 12 year olds to play on a U 13 team as long as their coach prepares a written evaluation of each player recommending that they play on the team and makes sure those written evaluations are filed with the TSA.

Peres completed evaluations of each of the five 12 year olds and submitted these to the League president who was to file them with the TSA. Through inadvertence, these were never delivered.

The five 12 year olds played on the U 13 team for the 2017 season. The players appeared in the player book which was available for each team member at each game.  Player books were checked by at least three other clubs during the course of the season and no one raised objections about the eligibility of the 12 year old players.

The U 13 team finished in first place and was scheduled to play in the league championship game on Saturday, September 16, 2017.

On August 14, 2017, the manager of an opposing team inquired about whether it was allowed to have 12 year olds on a U 13 team. Peres was asked to bring the player books for the five 12 year olds by a deadline of Friday, August 25 at 5:00 p.m.  Four of the five player books were dropped off, but the fifth could not be provided because the player was on vacation outside the country.

On August 28, Peres and the League received an email from the TSA advising them that there would be a discipline hearing relating to the alleged use of illegal players on the U 13 team. At around the same time, Peres became aware that the evaluation he completed with respect to the five 12 year old players had not been filed with the TSA.

The TSA emailed a disciplinary hearing notice to Peres on August 30 at 6:35 p.m., when the hearing was to take place on August 31 at 8:15 p.m. Peres did not see the notice until 9:30 that evening, because he was at back‑to‑back soccer practices.

The email purporting to give notice of the infractions said that the allegations were with regard to the use of illegal players and reference was made to Rule 6.2 and 15.8. Rule 6.2 was attached to the notice and provided that a maximum of five players from the same club could be called up in any one game and that under 12 players were not eligible to be used as call ups at U 13.

Rule 15.8 required that players be registered with their team at least one day before playing in a cup game.

The court noted that these players were not call up players. A call up is a temporary player substituting for an absent regular player.  The intention here was always that the five 12 year olds on the U 13 team were permanent team members.

The August 30, 2017 email also attached a formal notice of disciplinary hearing which indicated that the charge against Peres referred to playing an ineligible or suspended player in a sanctioned game. The materials referenced Rule 5.63 and Rule 2.63 but did not contain any of the information that explained what those provisions were.

The TSA then rendered its decision on September 1, 2017, causing the team to forfeit all points from the games in which any of the five 12 year olds had been listed on the game sheet, removing them from the league championship game, suspending Peres for six months (being three months for each of two counts of playing an ineligible player) and fining the League $2,500.

The court noted that the first jurisdictional issue is whether an application for judicial review can be made to the Superior Court of Justice. Usually, applications are made to the Divisional Court pursuant to the Judicial Review Procedure Act R.S.O. 1990, chapter J.1, s. 6(1).  However, where there is urgency and the delay required for an application to the Divisional Court will likely involve a failure of justice, an application can be heard before the Superior Court of Justice.

The second jurisdiction issue is whether the submission by the TSA and OSA that the court was without jurisdiction because courts should not interfere with the management and internal affairs of sporting clubs and other voluntary organizations.

The court reviewed the jurisprudence on this point and relied particularly on the analysis of Nordheimer J. in West Toronto United Football Club v. Ontario Soccer Association, [2014] O.J. No. 4773, in which the court held that the public nature of determining who can or cannot play in a particular sports league and the large number of people affected by that type of decision make it appropriate to subject it to judicial review.

Further, fairness is an important principle of social order and confidence, particularly in the context of children who are taught the importance of fairness from a young age. “If fairness is not a quality that can be enforced in a context that matters to children, we deal a significant blow to public confidence in fairness as a building block of social order.”

There are also many cases that have subjected the decisions of sports organizations to judicial review.

“The essence of judicial review is fairness”. In this circumstance, the court held that there was not adequate notice given to Peres and the League, nor was a meaningful opportunity to be heard provided to them.  Adequate notice must include notice of the specific offence alleged and the possible sanctions that may be imposed.

Here, the focus of the hearing ended up being the allegation that some of the five girls played on the U 12 team as well as on the U 13 team, which the TSA and OSA insisted their rules did not allow. The applicants were not given appropriate express notice of this infraction.  Rather, the email of August 30 attached 43 pages of materials in seven different attachments.  At the 24th page was a table listing the names of the five girls and in that table appeared columns headed U 13 games played and U 12 games played.  This table cannot be said to have provided fair notice, given that it was buried in the middle of various electronic attachments.  In assessing whether fairness for the purposes of notice had been provided, the court noted that the materials were sent at 6:35 p.m. on a Wednesday evening when the hearing was to take place the next day.  Peres, as a volunteer who also holds a fulltime job, could not be expected to pour through 43 pages of email attachments to glean the nature of the infraction, one day before the hearing.

The fact that the description of charges referred to “2.63 and 5.63” without providing the provisions that these numbers referred to was another failure to provide notice.

Fairness would have required the TSA to state in an email that the infraction Peres was charged with was having girls play on a U 13 team who had also played on a U 12 team in contravention of Rule X and that the sanctions for such an infraction could be Y.

In addition, Peres and the League were not given a meaningful opportunity to be heard. Peres attempted to file evidence in the form of game sheets that were filed at each game showing the girls’ birth dates and parent declarations showing that the girls had solely trained and played with the U 13 team during the summer 2017 season.  However, the disciplinary committee refused to accept this evidence.

As well, the respondents did not file evidence on the judicial review application, despite having the opportunity to do so. The court therefore concluded that the respondents had no contrary or qualifying information to put before the court.

The fact that, at the disciplinary hearing, the committee continued to characterize the use of the five 12 year olds as “call ups” even though the committee had before it evaluations and recommendations showing that these girls played regularly on the U 13 team was an arbitrary characterization without foundation in the evidence.

The court noted that the TSA ignored evidence that the five girls were not registered as members of the U 13 team because of an administrative error, that the girls had played with the team for the entire season, and that their names and birthdates were on the game sheets for each game in the season. It refused evidence that would have addressed the issue of the girls also having played on the U 12 team.

The court held that although rules should be complied with, decision makers must listen to why a rule has not been complied with, determine whether the circumstances of non‑compliance offend the rule and weigh those factors in determining whether a penalty is appropriate. A refusal to consider those factors and the evidence around them, without explanation, denies the applicants a fair opportunity to be heard.  As well, the applicants were denied a right to be heard on appeal, which the governing rules and regulations of the TSA said they were entitled to.  The rules gave the applicants a right of appeal of which they were deprived.  Therefore, the court found that the respondents TSA and OSA had breached the standard of fairness appropriate in the circumstances by failing to give adequate notice of the infractions at issue and the sanctions that could be faced.  The respondents also breached the standard of fairness by denying the applicants a meaningful right to be heard, and the application for judicial review was allowed.

The court noted that this decision was not intended to subject sports organizations to court‑like standards of fairness. The fairness standards merely required that the applicants be told the subject of a disciplinary hearing directly and clearly in terms of specifying the alleged infraction, advising of possible sanctions, considering relevant evidence that the applicants might want to adduce, and following the rules the association had itself established.

The court ordered full indemnity costs and disbursements at $32,898.05, in large part because the respondents behaved in a high handed manner and did not extend the most basic elements of fairness to the applicants, by failing to abide by their own rules.

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