Extra Time at the Divisional Court: the Wide Net of Judicial Review

Readers may remember my post late last year on an Ontario case refusing judicial review of a school’s decision to expel a student, with the knock-on consequence that the student was unable to graduate: Setia v. Appleby College, 2013 ONCA 753. They may also be interested in suggesting how one can reconcile that case with West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, where Nordheimer J. quashed the respondent’s decision to award a semi-final victory in a provincial soccer championship to the losing side on the basis that the victors had fielded an ineligible player.

Now, Nordheimer J. was right to blow the whistle in the sense that the respondent’s decision was indefensible. In administrative law terms, it was a clear own goal, both unreasonable on the merits and procedurally unfair:

[34]           The end result is that the OSA reached a conclusion that finds no foundation in the evidence that was before it.  In effect, the OSA has arbitrarily, and unfairly, changed the result of a match and has done so for no apparently legitimate reason.  As such, the decision of the OSA is one that does not deserve deference from this court.  It is a conclusion that was unreasonable in the circumstances and it is a conclusion that was made without giving the Cobras a fair opportunity to be heard.

But the interesting general question that Nordheimer J had to tackle is whether the OSA was subject to judicial review in the first place. Nordheimer J. concluded that the OSA was within the Divisional Court’s whitewash and that he could legitimately cry foul:

[23]          …I note that the OSA controls the playing of competitive soccer in Ontario.  While the parties disagree over the precise numbers, there are about 500,000 players under the control of the OSA.  Put simply, you cannot play competitive soccer in this Province without subjecting yourself to the authority of the OSA.  When one factors into the mix the families and friends of soccer players, the number of people impacted by decisions of the OSA increases into the millions.

[24]           Considering those realities, the actions of the OSA have a very broad public impact and it is correspondingly charged with very public responsibilities.  The OSA is charged with ensuring that soccer is played in an organized and fair manner in this Province.  Given the increased interest in soccer, and the importance that many people place on being able to play this sport, especially among young people, there is a very large public dimension to what the OSA does.  The OSA also clearly exercises a “compulsory power” over a “defined group”.  Further, while I would not rely solely on the residual category as providing jurisdiction in this case, it could be reasonably said that the OSA has a very serious effect on the interests of a broad segment of the public.  I am therefore satisfied that the activities of the OSA fall within the purview of public law, at least insofar as it makes decisions fundamental to the sport that it governs.

A basic concern for ensuring a level playing field motivated Nordheimer J.’s decision:

[27]           It is [the] general [administrative law] duty of fairness that is of special importance in this case.  We have a team of teenage boys who won an important game on the playing field only to have that victory subsequently taken from them by the actions of certain officials within the governing body.  Our society works constantly to instill in young people certain basic principles among which are that people should treat each other with fairness and that everyone should be subject to, and should play by, the same rules.  Our belief in those principles is best demonstrated by how we deal with issues such as arose in this case.  If this victory is taken from these boys through a process that is fundamentally unfair, as I believe it to have been in this case as I shall explain below, then, in accordance with our stated principles, it would be expected that steps would be available to rectify that result.  If we say that there is no recourse available to correct that unfairness, what message do we then send as to our true belief in the importance of fair play?  I repeat that we are not here dealing with a school game or a neighbourhood league.  We are dealing with the Provincial Championships in a sport that has both a broad public impact and a broad public interest.

I find this hard to square with Appleby College — even if Nordheimer J. could point to a line of cases in which the Ontario courts had reviewed the decisions of sporting associations, it appears as if Appleby College shifted the goalposts.

Nonetheless, the Cobras were reinstated as winners of the semi-final and, indeed, went on to the national championships on the back of an endorsement from Nordheimer J.: as the losing side had won the final, there was no unfairness in having the Cobras take their place.

Their opponents in the national championships should be forewarned: the Cobras may well strike late, even after the final whistle has been blown.

This content has been updated on October 13, 2014 at 18:59.