Case Comment – Clifford v. Ontario Municipal Employee Retirement System (2009)

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:

  • Although not all administrative tribunals are legally obliged to give reasons, certain circumstances can create this obligation. In a ten year old Supreme Court of Canada case (Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817) the factors that would create such a requirement include, among others: the nature of the decision and the process used, the importance of the decision to the individual, the finality of the decision, and the legitimate expectation of the individual who is impacted by the decision. In the sport context, many of these factors come into play and it is likely that upon judicial review, the circumstances of most sport disputes would create this obligation. For this reason we have always strongly recommended that all sport tribunals give written reasons for their decisions.
  • The sufficiency of written reasons is addressed in a criminal case, R. v. R.E.M. [2008] 3 SCR 3. This case said that sufficiency is established if the decision, read in context, shows why the tribunal decided as it did. This does not mean that the tribunal needs to refer to every piece of evidence or set out every finding that it made in arriving at a decision. Put another way, the “path” taken by the tribunal to reach its decision must be clear, but it is not necessary that the tribunal describe every “landmark” along the way.
  • It is critical to distinguish procedure and substance. It is one thing to challenge the adequacy of reasons (procedure) and quite a different thing to challenge the substance of the reasons themselves. In other words, the fact that the outcome of a decision is not pleasing is not a basis to challenge the reasoning process. The trial judges in this case erred by not maintaining this distinction.
  • One reality of administrative tribunals is that they are seldom composed of legal experts. This is certainly the case in the sport system. Said the Ontario Court of Appeal in this case: “If the language used falls short of legal perfection … this will not render the reasons insufficient, provided there is still an intelligible basis for the decision.
  • Lastly, this case reminds us of the guidance in Dunsmuir v. New Brunswick [2008] 1 SCR 190. This case noted that reasonableness is not just a function of outcome, but also of the process of articulating reasons. In Dunsmuir, the Supreme Court said that the concept of reasonableness “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.”

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)

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