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Case Name:
  Rudder (Litigation guardian of) v. Ontario Amateur
Softball Assn.

Between
Amy Salter, litigation guardian for Daniel Rudder,
applicant, and
Ontario Amateur Softball Association, President David
Cleugh, Stone Mills Athletic Association, President Al
Hamilton, Stone Mills Stingers, Coach RL, respondents

[2005] O.J. No. 3358
No. 05CV294629PD3

Ontario Superior Court of Justice
Toronto, Ontario
F.P. Kiteley J.

August 5, 2005.
(17 paras.)

Administrative law Natural justice Duty of fairness Procedural fairness Civil procedure Injunctions Considerations affecting grant Serious issue to be tried or strong prima facie case Ex parte injunctions.

Application by Rudder for an order compelling the Ontario Amateur Softball Assn. (OASA) to release him from playing for the Stone Mills Stingers. If granted such a release, Rudder could then play for the Kingston Kobras for the last tournament of the season. The application was brought ex parte. The relevant parties had been given notice that an application of this sort would be made, but they did not respond. Rudder was 11 years old and of African and Aboriginal Canadian ancestry. During a game in 2003, a parent of one of Rudder's teammates made a racist remark. That same parent became the coach of Rudder's team in 2005. Rudder's mother wrote to the OASA, seeking his release from the Stingers. She was told that the Player Eligibility Committee had considered her letter but had concluded that there were no extenuating circumstances to justify granting Rudder's release. The Committee relied on a letter from the President of the Stone Mills Athletics Assn. that it did not share with Rudder's mother.

HELD: Application allowed. There was a serious issue to be tried. The Committee gave no reasons for its decision. Simply stating that there were extenuating circumstances was insufficient. Moreover, there was no indication that the Committee had considered any of the issues raised in the letter from Rudder's mother. There was a serious issue that the rules of natural justice had been breached. Prohibiting Rudder from playing for the Kingston Kobras in the last tournament of the season would constitute irreparable harm to a star 11-year-old baseball player who loved the game. The balance of convenience was with Rudder.

Counsel:

Counsel for the applicant: Howard Morton, Q.C. and Selwyn Pieters


REASONS FOR DECISION

 1      F.P. KITELEY J.: This is an application on the afternoon of Friday August 5th, 2005 brought on behalf of Daniel Rudder for injunctive relief. At the outset, Mr. Morton indicated that his request was for a permanent injunction. As his submissions evolved, he thought it reasonable to focus on a temporary injunction. The relief sought is as follows:

an order requiring the Respondents to allow the applicant play in Provincial Tournaments as part of the Kingston Kobras on Saturday August 6, 2005.

 2      The underlying issues are important both to Daniel and to amateur sport. Unfortunately, before I could get to the important issues, I have had to struggle with significant procedural obstacles. Since this matter is proceeding in the absence of the respondents, those procedural obstacles must be addressed.

 3      As I understand it, the relief requested in the Notice of Application is not really what is sought. I have no jurisdiction to make the order requested. Mr. Morton indicated that technically what is sought is an order requiring the Ontario Amateur Softball Association (OASA) to grant a release from playing for the Stone Mills Athletic Association in order that Daniel can play for the Kingston Kobras for the last tournament of the season. If the release is granted immediately and if a copy of any order I make is provided to the officials of the Kingston Kobras by noon on Saturday August 6th, Daniel will be allowed to play in the tournament.

       This application is proceeding ex parte. Mr.
Pieters advised that he had sent an email to David Cleugh and
Al Hamilton on August 3rd indicating that a motion such as
this would be brought. Mr. Pieters also advised that he had
sent an email to David Cleugh and Al Hamilton yesterday in
which he attached the notice of application, the affidavit in
support and the factum and he indicated that the motion would
be brought today. He has heard nothing from any of them.

 4      I am unable to ascertain whether the title of proceedings is accurate. But it does appear that the key people and organization, (namely David Cleugh and the OASA and Al Hamilton) have been given notice that a request of this sort would be made. They have not responded to the communications. I am prepared to proceed in their absence.

 5      There is another procedural issue. The title of proceedings in the Notice of Application is "Daniel Rudder and Amy Salter". Daniel is a minor. His name does not belong in the title of proceedings. I am making an order changing the title of proceedings to indicate that Amy Salter is the applicant as his litigation guardian. I am overlooking the absence of her written consent.

 6      There is one further procedural issue. The title of proceedings includes the name of a person whom I have initialized as RL He may not be a necessary party to the application. What he did figures prominently in the application. No effort was made to notify him of this application or to serve him with the materials. It would be very unfair to incorporate his full name in any record of these proceedings until he has an opportunity to be served and participate. For that reason, I direct that the title of proceedings be amended as indicated above. The full name of RL shall not be published until further order.

 7      I turn now to the facts. Daniel is 11 years old. He is of Black/African Canadian and Aboriginal Canadian (Mohawk) ancestry. He played with his home centre the Stone Mills Stingers Athletic Association for the playing seasons, 2002, 2003 and 2004. The SMSAA is a member of the OASA.

 8      During the 2003 playing season, at a tournament in Port Perry, a parent of one of Daniel's team members yelled to the other bench "What do you think we're all fuckin niggers". That person is identified as RL Because Daniel is the only child with black ancestry on the team, Ms. Salter concluded that the remark was directed at Daniel. When Daniel went for tryouts in 2005, Al Hamilton informed Daniel's mother that RL would be the coach of Daniel's team. She verbally asked Al Hamilton to release Daniel from the Stingers and allow him to play for the Kingston Kobras. Mr. Hamilton refused.

 9      The motion record indicates that in an email dated May 31, 2005, Daniel's mother asked the OASA to release Daniel from the Stingers. In a letter dated June 17, 2005 signed by the Secretary of the OASA, Ms. Salter was told that the Player Eligibility Committee had considered her letter and a letter from Al Hamilton and had concluded that there were no "extenuating circumstances" to grant the release. The release was refused. Ms. Salter has not seen the letter from Al Hamilton.

 10      After receiving the decision refusing the release, Ms. Salter contacted the Mohawk Nation Elders Council. A letter was prepared on her behalf and was sent to David Cleugh on July 7, 2005. In that letter, Shawn Brant outlined the circumstances referred to above which he described as racist. Mr. Brant made a forceful argument that a child such as Daniel ought not to be forced to play on a team with a coach who would make such racist comments.

 11      In a letter dated July 12, 2005, Mr. Cleugh reiterated the June 17th letter and the decision that had been made.

 12      The by-laws do not provide for an appeal from the decision of the Player Eligibility Committee.

 13      The email dated May 31, 2005 was not included in the material. At my request, we recessed so that counsel could obtain a copy. In order for me to assess the decision made by the Player Eligibility Committee, I needed to see the basis upon which the release had been requested and refused. The email is apparently dated May 29. That email letter contains Ms. Salter's request to the OASA to release her son. The circumstances in that letter are very revealing. That letter ought to have been produced in the original record. It has now been made part of the record since it has been attached to an affidavit of a student at law. That letter makes it clear that there were a number of reasons why Ms. Salter wanted Daniel to be released, only one of which was the issue of racism.

Serious Issue to be Tried

 14      I agree that there are serious issues to be tried. First, the Player Eligibility Committee relied on a letter from Al Hamilton that it did not share with Ms. Salter. Second, the Player Eligibility Committee gave no reasons for its decision. Simply saying that there were no "extenuating circumstances" as referenced in the by-law is insufficient. The by-law does not specify that reasons are required. However, Ms. Salter is entitled to know the basis upon which the decision was made. Third, there is no indication that the Player Eligibility Committee considered any of the issues raised in the May 29th email. While the allegation of racism was one of several points raised by Ms. Salter, it is clear that she had raised serious issues with respect to the team and her son's involvement in it. The letter dated June 17th makes no reference to any of them. For these reasons, there is a serious issue that the rules of natural justice have been breached. These are issues that affect Daniel and the thousands of other children who play amateur sports subject to organizations such as the OASA.

Irreparable Harm

 15      This must be put into the context of Daniel's circumstances. Based on the evidence in paragraphs 16, 17 and 18 of the affidavit, I accept that if he is prohibited from playing for the Kingston Kobras in the last tournament of the season, that that would constitute irreparable harm to a star 11 year old baseball player who loves the game.

Balance of Convenience:

 16      I agree with Mr. Morton that the balance of convenience lies with the applicant.

 17      ORDER TO GO AS FOLLOWS:

1.

respondent Ontario Amateur Softball Association and the respondent David Cleugh in his capacity as President of the OASA shall release Daniel Rudder to enable him to play with the Kingston Kobras in a tournament on August 6 and 7, 2005;

2.

the application is otherwise adjourned to Wednesday August 10, 2005;

3.

all of the respondents shall be personally served with the materials before me including the affidavit of Brian Noble, no later than August 8, 2005 at 4:00 p.m.;

4.

there shall be no publication of the full name of RL until further order. If any member of the media takes issue with that order, a motion may be brought before me or before the judge hearing the application on August 10, 2005;

5.

the title of proceedings is changed with respect to the name of the applicant and the name of RL.

F.P. KITELEY J.

QL UPDATE:  20050812
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