Published July 11, 2010
This is not a sport case but is helpful nonetheless in providing guidance to tribunals writing decisions. This occurs often in the sport context – panels and committees are often called upon to make decision on selection, eligibility, carding or discipline issues, or to make hear appeals of these decisions. As well, these panels and committees are usually made up of lay people who may not grasp all the subtleties of administrative law: thus, this guidance is very helpful.
The facts of this Ontario case are briefly as follows. OMERS (Ontario Municipal Employee Retirement System) is a pension scheme for municipal employees. Tony Clifford, a subscriber to this scheme, separated from his wife in 1996, and formalized his divorce in 2004. In 1999 he began a common law relationship with another woman. In 2005 he died, leaving no will. At issue was who was to receive his OMERS pension benefits: his former wife or his common law partner. Complicating the case was the fact that he died during a drinking binge while living in a hotel, and there was evidence that his common law relationship had just ended prior to the binge.
The tribunal in this case was a panel of three persons, none of whom were lawyers. Their task was to determine if Mr. Clifford had lived in a common law relationship for at least three years before his death, and if this relationship was still in place at the time of his death. The first point was not contested, and they decided "yes" on the second point, writing: “We are not persuaded that the conjugal relationship between Ms. Campbell and Mr. Clifford had terminated at the time of his death, and accordingly we dismiss the appeal."
The case then went through two levels of judicial review. At the first level, the court found that the tribunal had not provided adequate reasons. At the next level, the Ontario Court of Appeal, three judges disagreed and found that the reasons given by the tribunal were adequate to fulfill its legal obligation.
The judges’ decision in this case is complex and the space here does not permit a full analysis. But here are some key points:
Tribunals in sport are usually made up of lay persons who might have difficulty grasping many of the nuances of administrative law. This by no means suggests that lay people cannot do an excellent job of hearing evidence, weighing evidence, applying policy, making a decision and then explaining their decision process in a principled, defensible way.
This case, and other cases referenced by it, reminds us that the decision-writing portion of a hearing process is very important. Those responsible to write decisions need to take the time to set out those reasons clearly, logically and succinctly. This will ensure that the parties affected can see the general “path” that the tribunal took (if not every detailed “landmark” observed along the way) to get from point A to point B.
Clifford v. Ontario Municipal Employee Retirement System, 2009 ON C.A. 670
Originally published: Centre for Sport and Law Newsletter (2009) Vol. 5(3)