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Published March 17, 2011
The Alberta Court of Appeal has reminded us in no uncertain terms that sport organizations cannot, through their bylaws or policies, or through threats of disciplinary action, stop individuals from seeking recourse in the courts. Getting to this nugget of knowledge has been a bit of a convoluted journey, and no doubt an expensive one, for all involved.
The decision Voorhorst v. Canadian Soccer Association (CSA) [1] was rendered by the Alberta Court of Appeal on March 4, 2011 and was part of a continuing legal wrangle involving the Alberta Soccer Association and an unfortunate “fracturing” of its leadership. My colleague Rachel Corbett has written previously on the underlying issues of at least part of that dispute. Basically, the dispute concerned which individuals constituted the legitimate Board of Directors of the Alberta Soccer Association (ASA). It resulted in the parties bringing four different court applications to determine the issue, and if the court could not determine the issue, a request to the court to dissolve the Association. This case also involved the courts placing the ASA under court-directed management. This dispute was purely a provincial matter and did not involve the CSA.
The CSA become involved when it sought to discipline three of the individuals who had been part of the group involved in the Alberta dispute and who were perceived by the CSA as leading the legal action. These three believed that the CSA did not have authority to discipline them, and undertook further legal action seeking judicial review of the CSA's discipline actions. They alleged, among other things, that the CSA did not have jurisdiction over them as they were not members of the CSA but rather were members of the ASA.
This is where this case gets complicated. The three individuals asked the court to determine whether the CSA had jurisdiction to discipline them, but they also asked the court to delay the disciplinary hearing until this review could take place. The initial court decision suspended the judicial review and allowed the discipline action to proceed. The three appealed that ruling which brings us to the present decision: Voorhorst v. Canadian Soccer Association.
Keep in mind that this is not the final decision in this matter, but rather a step along the way. Essentially, the court is allowing the judicial review application of the CSA's authority to carry out discipline on ASA members to proceed. It has suspended the actual disciplinary proceeding itself until this review occurs. While it is all very convoluted and would appear that really nothing has been decided with any finality, in fact, this decision is informative because it tells sport organizations something very important about drafting the content of bylaws and governing documents.
The bottom line from this Alberta ruling is that an organization cannot obstruct a person"s access to the courts. As the Court of Appeal said, "Everyone in Canada has a constitutional right to access her Majesty"s courts as a litigant or as a witness. The punishment impending here... [i.e., the CSA threat of disciplinary action] is doing just that." (at para. 16].
By way of background, the CSA has a clause in its bylaws that orders disputes to be dealt with internally, and prohibits any recourse to the courts. The bylaws say that violations will be subject to disciplinary action. They also require that member associations institute the same regime within their own governing documents. It was this imperative with which the Appeal Court had a serious problem. The Court of Appeal further stated: "This is a question of express threats to harm someone for going to court or acting as a witness in court. Or for punishing him for having done so and (partly) winning." The court made it clear that any attempt to thwart a person from going to court, whether through policies and rules or through threats of disciplinary action, is simply not acceptable.
The Court of Appeal cited a number of cases substantiating the right to access to the courts it was asserting, including several Supreme Court of Canada cases. Indeed, the Alberta Court of Appeal made clear such interference of one"s access to the courts can constitute "contempt of court" under the Criminal Code of Canada. In other words, this is very serious business.
A quote stemming from the Supreme Court of Canada [2] put the right to access to the courts in perspective: "We have no doubt that the right of access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. It is the preservation of that right with which we are concerned in this case. Any action that interferes with such access by any person or groups of persons will rally the court"s powers to ensure the citizen of his or her day in court..."
The Supreme Court of Canada [3] also drew a definition of contempt from the decision in an old British case stating that "contempt" included: "...conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law..."
In conclusion, it must be kept in mind that this is an interlocutory decision - meaning it is a decision pending the actual hearing of whether or not the CSA has jurisdiction to bring disciplinary action against the three individuals. But interim or no, this is a decision of a Court of Appeal. In other words, it has weight.
But I should also point out that the Alberta Court of Appeal it not treading any new legal ground here - this really is old stuff, we just have not seen it play out in the sport domain. People in Canada will always have the right to seek recourse to the courts, and no organization or business can deny them this. This is not to suggest that alternatives to court are not available - in fact mediation and arbitration are widely available, but their use must be based upon the consent of the parties, where such consent is usually established as part of a contractual relationship.
We will keep readers informed should this case take another quirky turn.
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[1] 2011 ABCA 74
[2] BCGEU v. AG British Columbia (1988) 2 SCR 214 at para 26
[3] Ibid at para 39
