Feb 2018 Charity & NFP Law Update
On January 22, 2018, in Milberg v North York Hockey League, the Ontario Superior Court dismissed an application pursuant to section 2(1) of the Judicial Review Procedure Act (“JRPA”) for judicial review of a decision made by the North York Hockey League (the “NYHL”) to preclude Mr. Milberg from attending any NYHL games for the remainder of the season (“Suspension”). The Suspension was made due to Mr. Milberg’s behavior during a confrontation with a ticket attendant at his 11 year old son’s hockey games. The incident leading to the Suspension occurred when the cashier at the hockey game indicated that she could not accept the $100 bill Mr. Milberg offered to pay for the tickets. Mr. Milberg became upset and confronted the ticket attendant with inappropriate and vulgar language even though there was a sign posted at the cashier’s station indicating “no $100 bills.” After the incident Mr. Milberg was requested to attend at the offices of NYHL’s Chief Operating Officer to discuss the situation. During that meeting Mr. Milberg admitted his wrongdoing and, after over an hour of discussions, Mr. Milberg was given the Suspension.
In bringing the application for judicial review, Mr. Milberg argued that he was subjected to an internal discipline process by the NYHL in the absence of any rules or procedures. In that regard, Mr. Milberg argued that he was denied procedural fairness because he did not receive adequate notice of the infraction and possible sanctions, he was denied the right to a meaningful hearing, and Mr. Milberg was not advised of any avenues for appeal. Mr. Milberg also argued there had been no written decision provided to him, and that he had not been given access to the consultation process that led to the Suspension.
In dismissing the application, the court found that it had no jurisdiction to provide relief under the JRPA as the matter was governed by private law. In arriving at this decision, the court stated “…just because [a decision] has a public dimension to it does not make it a matter of public law. The decision or action in issue must also be an ‘exercise of public authority’. In my view, this authority must ultimately emanate from the government.” The court also stated as follows:
Private actors routinely make decisions that have implications for the public more broadly. However, if the decisions do not amount to an exercise of power emanating from the legislature, the Court’s jurisdiction over such matters should flow from the private law, and the related remedies available to litigants in the private sphere, and not the JRPA.
On a separate issue, the court recognized that a remedy might be available under private law and noted that courts have the jurisdiction to grant injunctions to prevent or restrain injuries to the infringement of rights which can be enforced at law or equity. On this issue, the court further stated:
I have no doubt that if the … NYHL … had arbitrarily or maliciously interfered with the [Mr. Milberg]’s ability to attend his son’s games, there would be a basis for a court to intervene. In such an instance, the interference may amount to a breach of an implied contractual right to attend. Similarly, if the decision was discriminatory or otherwise engaged rights protected under the [Ontario] Human Rights Code an interim remedy would likely be granted.
However, that is not the situation here. The actions of [the NYHL] can hardly be described as arbitrary or capricious. [Mr. Milberg] does not dispute confronting the employee at the stadium and using the vulgar language in that confrontation. [The NYHL] discussed the situation with [Mr. Milberg] at length, and [Mr. Milberg] was given a full opportunity to explain himself. The decision to suspend was directly related to [Mr. Milberg]’s rude and vulgar remarks to the attendant.
In its closing statements, the court indicated that:
“[i]n a situation like the one here, as long as [Mr. Milberg] has knowledge of the reasons for the sanction and had an opportunity to be heard by the decision maker, the requirements of procedural fairness would be satisfied ‘even if there was no structured hearing in the judicial sense of the word.”
This case serves as an important reminder to charities and not-for-profits that the courts continue to be reluctant to become involved in the internal affairs of an organization where steps taken by an organization to interfere with the rights of an individual generally reflects the requirements of procedural fairness. This case also clarifies that the requirements of procedural fairness that apply to a given situation may be flexible depending on the background facts involved.