Ontario – arbitrator determines complainant’s status as member of respondent and eligible to arbitrate dispute – #346

In Cricket Canada v. Alberta Cricket Council, 2020 ONSC 3776, Mr. Justice Markus Koehnen upheld an arbitrator’s determination that she had jurisdiction over both the complainant and the dispute, consistent with not only the applicable dispute resolution rules but also the administering institution’s enabling legislation.  Koehnen J. held that the arbitrator had not taken it upon herself the power to determine membership in a private corporation, had not undertaken any corporate reorganization or attempted any unjustified removal of a right to self-determine membership.  Rather, the arbitrator was correct in her determination that claimant’s status and the nature of the dispute fell within her jurisdiction and that of the administering institution which adopted the dispute resolution rules.

Cricket Canada (“Cricket Canada”) applied under section 17(8) of Arbitration Act, 1991, SO 1991, c 17 to challenge the jurisdiction of the Sports Dispute Resolution Centre of Canada (“SDRCC”) and the SDRCC-appointed arbitrator to resolve a dispute involving Cricket Canada, the Alberta Cricket Council (“Council”) and the Alberta Cricket Association (“Association”).

Cricket Canada is a not-for-profit acting as cricket’s governing body across the country with members comprising provincial cricket organizations provided the latter “demonstrate effective control of organized competitive cricket” within the province.

Council had sought to “displace” Association as the Cricket Canada’s Alberta member or be co-member. Council submitted that it met the requirements of Cricket Canada’s By-Laws section 2.2 which stipulated that any association which demonstrates effective control “will be considered a Member”.  Council applied for membership but Cricket Canada rejected its application. Council objected, stating that Cricket Canada had done so without investigating whether Council or Association had effective control.

Council had sought to commence arbitration before the SDRCC in June 2019.

The SDRCC declined to advance the arbitration, determining that it “currently” lacked jurisdiction, and required that Council first use Cricket Canada’s internal dispute resolution procedures (maybe: “Dispute Resolution and Internal Appeal Policy”). In November 2019, stating that it had “exhausted efforts to engage Cricket Canada” but the latter remained “unresponsive”, Council re-initiated arbitration.  

Cricket Canada initially participated in the arbitration but without counsel.  It filed an answer to Council’s request for arbitration, did not contest arbitration, selected arbitration over med-arb and proposed arbitrators including the one eventually appointed by the SDRCC.  After retaining counsel in March 2020, Cricket Canada contested jurisdiction.

The arbitrator issued an April 22, 2020 interim award in which she determined that she had jurisdiction.  In doing so, she did not rely on Cricket Canada’s initial pre-counsel answer to the request for arbitration or apply the requirement under section 17(3) of the Arbitration Act that a party object to jurisdiction “no later than the beginning of the hearing”.  Rather, the arbitrator analyzed the merits of Cricket Canada’s challenge.

The SDRCC’s arbitration procedures are set out in its Canadian Sport Dispute Resolution Code (“Code”) and contains a definition of “Sports-Related Dispute” at section 1.1(mm).

Section 1.1(mm) “Sports-Related Dispute” « Différend sportif » means a dispute affecting participation of a Person in a sport program or a sport organization. Such disputes may include (but are not limited to) those related to:

(i) team selection;

(ii) a decision made by a [National Sports Organization – NSO] board of directors, a committee thereof or an individual delegated with authority to make a decision on behalf of a NSO or its board of directors, which affects any Member of a NSO;

(iii) any dispute affecting participation of a Person in a sport program or a sport organization, for which an agreement to conduct an SDRCC Mediation, Arbitration or Med/Arb or use the services of the Resolution Facilitator of the SDRCC has been entered into by the Parties; and

(iv) any dispute arising out of the application of the Anti-Doping Program”[.]

Koehnen J. stated that the standard of correctness applied to questions of jurisdiction, citing Dayco (Canada) Ltd. v. CAW-Canada, 1993 CanLII 144 (SCC), [1993] 2 SCR 230 and proceeded in two (2) stages. First, Koehnen J. considered and dismissed two (2) of Cricket Canada’s arguments.

Ownership – Cricket Canada argued that the arbitrator in her decision “took upon herself the power to determine membership in a private corporation” by broadly interpreting “participation” in a sports organization. The arbitrator’s interpretation amounted to a “corporate reorganization of the most intrusive sort” and qualified as “an unjustifiable removal of Cricket Canada’s right to self-determine membership”.  Koehnen J. said no.

This is not a situation in which the members of the corporation have the right to choose membership based on subjective preferences like, for example, the decision to issue shares in a private corporation to a particular person.  Membership in Cricket Canada is an entitlement of anyone who can demonstrate effective control of competitive organized cricket in their province”. 

The wording in the Code did not support this objection to jurisdiction made by Cricket Canada.

SDRCC’s Code limits jurisdiction – Cricket Canada next focused on the wording of section 2.2 of the Code and argued that the list of categories in section 2.2 limited the SDRCC’s dispute resolution involvement to those three (3) categories.  Koehnen J. said no.

His reading supported a broader purpose, later supported by reference to the PASA, that the SDRCC had a general jurisdiction not limited to those three (3) categories.

[19] The statement that the Code will apply to the three enumerated categories is not, however, an exclusive statement of jurisdiction.   All the second sentence does is to state definitively that the three enumerated categories fall within the Centre’s jurisdiction.  It does not say that no other dispute falls within jurisdiction”. 

Beyond those arguments restricted to Cricket Canada’s textual arguments on the Code, Koehnen J. also resisted the narrow approach insisted on by Cricket Canada in its submissions. Koehnen J. pulled further back and looked to the Physical Activity and Sport Act, SC 2003, c 2 (“PASA”) for the SDRCC’s jurisdiction.

He referred to the PASA which, having established the SDRCC at section 9, granted broad jurisdiction to the SDRCC by section 10.  

10 (1) The mission of the Centre is to provide to the sport community

(a) a national alternative dispute resolution service for sport disputes; and

(b) expertise and assistance regarding alternative dispute resolution.

(2) For the purposes of subsection (1), a sport dispute includes disputes among sport organizations and disputes between a sport organization and persons affiliated with it, including its members”.

Koehnen J. responded to Cricket Canada’s arguments by underlining that the PASA gave the SDRCC its jurisdiction and not the Code or the reading given to by Cricket Canada.

[27] The Centre’s exercise of jurisdiction over a dispute which determines whether a particular organization should or should not be a member of Cricket Canada is consistent with the overall purpose for which the Centre was created namely to ensure “the “full and fair participation of all persons in sport and the fair, equitable, transparent and timely resolution of disputes “ relating to the participation of a person in a sports organization”. 

In arriving at the conclusion, Koehnen J. relied on the “plain meaning” of “organization”, not formally defined in the PASA.  This permitted Koehnen J. to recognize a broader scope for SDRCC’s involvement and, in doing so, dismiss Cricket Canada’s argument on a particular reading of the PASA.

urbitral note – First, the jurisdiction of SDRCC as the institution administering the arbitration drew not from the SDRCC’s own Code but from the legislation which established the SDRCC.  An organization is not limited necessarily by the terms of its own dispute resolution procedures or an interpretation narrower than the grant from its enabling legislation.

Second, Cricket Canada’s challenge was two-fold.  It first challenged Council’s status to have a dispute with Cricket Canada and then challenged that the dispute fell within the rules binding Cricket Canada and its members.

Third, Dayco (Canada) Ltd. v. CAW-Canada, 1993 CanLII 144 (SCC), [1993] 2 SCR 230 arose in a labour relations/grievance arbitration arising from a collective agreement.