Mayan v. World Professional Chuckwagon Association, 2011 ABQB 140

Court of Queen ’ s Bench of Alberta Citation: Mayan v. World Professional Chuckwagon Association, 2011 ABQB 140 Date: 20110304 Docket: 1001 16968 Registry: Calgary Between: Brian Mayan Applicant - and - World Professional Chuckwagon Association Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ The Proceedings [ 1 ] The applicant, Brian Mayan, is a professional chuckwagon racer and member of the World Professional Chuckwagon Association (the “Association”).

His membership was suspended by an August 26, 2010 decision of a Hearing Panel constituted by the Association. [ 2 ] Mr. Mayan seeks judicial review of the decision, with relief that would set it aside, restrain the Association from enforcing it, and reinstate him to active membership and participation in the 2011 chuckwagon tour conducted by the Association. The evidence before the Court consists of two affidavits by Mr. Mayan, two affidavits by Bruce Watson of the Association, an affidavit by Jim Bottomley of the Association, transcripts of the questioning of Mr. Mayan and Mr.

Watson on their affidavits, and exhibits and

undertaking responses relating thereto. I. Factual Background (

a) The Association [ 3 ] The Association is a non-profit corporation, incorporated under

Part II of the Canada Corporations Act , [1] with its head office in Calgary. It promotes and controls professional chuckwagon racing in Canada. Competitors who want to race in the Association’s events must be members of the Association. [ 4 ] There is at least one similar organization, the Canadian Professional Chuckwagon Association. It does not operate on the same scale. When Mr. Mayan was asked whether its tour offered similar sorts of things -- “tarp auctions and prize money for winning events” – he responded that they were “not even similar at all.

Not even close.” [ 5 ] Both parties focussed parts of their submissions on the By-Laws and the Chuckwagon Race Rules (“Rules”) of the Association.

The most germane provisions of the By-laws are the following: 2.09 Membership in the Association may be terminated upon a breach of these By-Laws or the Rules and Regulations by a Member, upon a resolution passed by the Board and approved by a vote of at least three-quarters (3/4) of the Members at an annual general meeting or special general meeting of the Members of the Association. 6.01 The Board shall have the power and authority to fine and/or suspend any Member or Permit Member who has not paid any amounts owing to the Association as provided herein or who is in breach of any By-Law, Rule or Regulation. 7.01 The property and business of the Association shall be managed by a Board of Directors (the “Board”), of who a majority is required to constitute a quorum. 7.18 A meeting of the Board at which a quorum is present shall be competent to exercise any or all of the authorities and discretions granted to it by or under the Act, By-Laws or the Rules and Regulations. 7.19 The Directors may delegate any of their powers to any other person or persons or committee of Directors as they determine and may at any time revoke such delegation, and any such person of persons or committee of Directors so appointed shall, in the exercise of powers so delegated conform to the By-Laws and the Rules and Regulations and to any regulations that may from time to time be imposed upon him or them by the Board. 10.01 Every Director or Officer of the Association shall be:

a) President;

b) First Vice-President;

c) Second Vice-President; and such other Officers as may be determined from time to time by the Board. The Officers shall also be Directors of the Association during their term of office. 11.04 All Officers and Members of the Board shall, in addition, perform such duties as may from time to time be assigned to them by

the Board. 17.01 The Board may prescribe such rules, regulations and policies not inconsistent with these By-Laws relating to the conduct of chuckwagon racing and the management and operation of the Association as it deems expedient, provided that such rules, regulations and policies shall have force and effect only upon ratification at the next general meeting or special general meeting of the Members of the Association.

The most germane provisions from the Rules are the following: 1.01 No person shall compete in a Race meet unless he is a Member of the Association in good standing. 1.03 All Members at a Race Meet shall conduct themselves in a manner that does not bring the Association into disrepute, and will also be subject but not limited to the provisions of 11.09 through 11.11. 11.03 fines for any other infractions of these Rules, including an infraction set out in

section 12.0 below, shall be assessed at the discretion of the Officers. 11.09 Any member can report another member, and/or individual that a member is deemed responsible for as stated in

section C1.04, that is in violation of any policy or conduct and must do so in writing with in 48 hours of the violation*. This written notification must be legible, detailed, dated, and signed. It must be handed into either the WPCA President or WPCA General Manager. *or within 48 hours of the incident being made public in the media. 11.10 The President and/or General Manager will notify a member either by phone, in person or in writing that a complaint has been received and the Officer group will be reviewing it.

The member filing the complaint and the member the complaint is concerning will be provided a date, time and place that they can address the complaint to the officer group. Subsequent to reviewing both sides of the issue at hand the Officer group may impose a fine. Any fines levied to a member will be done so in writing. No further appeal process will be heard. 11.11 In accordance with

Section C1.03 violations of conduct will include but are not limited to:

a) Conduct Unbecoming - Verbal Abuse - may include but are not limited to verbal abuse by swearing, using inappropriate language or comments, slanderous remarks, on the race track, a sponsor function, venue function, in the presence of fans, media or sponsors, children, or other competitors. This will encompass the entire auction and racing season and all locations on the tour, and is not limited to the race track or grounds. Fines will be assessed as follows: First offense $500.00, Second Offense - $1000.00, Third Offense - $2000.00, subsequent offenses will double the previous fine levied and continue doubling for each additional offense during one race seasons.

b) Conduct Unbecoming - Physical Abuse - may include but are not limited to the inappropriate use of spitting, pushing, shoving, slapping, hitting, punching, kicking, or throwing objects on the race track, a sponsor function, venue function, in the presence of fans, media or sponsors, children, or other competitors. This will encompass the entire auction and racing season and all locations on the tour, and is not limited to the race track or grounds. Fines will be levied as follows: First Offense $2000.00, Second Offense $4000.00, Third Offense $8000.00, subsequent fines will double the previous fine levied and continue doubling for each additional offense during one racing season.

c) Conduct Detrimental to the sport may include but are not limited to: i. Divulging unauthorized association information regarding contracts, venues, sponsors, future planning and expansion, judging, with out board approval to do so.

ii. In any way show disrespect or disregard towards the association, the board, management or it’s members while attending a sponsor function, venue function, in the presence of fans, media or sponsors, children, or any other situation that is deemed inappropriate. iii. Taking action that undermines the integrity, and forward progress of the association and its elected board. iv.

Violations as provided in 11.11 c (i), (ii), (iii), are subject to the following levies: First Offense $3000.00, Second Offense $ 6000.00, Third Offense $ 9000.00, subsequent offenses will double the previous fine levied and continue doubling for each additional offense during one racing season. v.

Conduct that causes the association to suffer a loss of sponsorship and/or cancellation of a contract that is a direct result of a member’s violation of conduct will be subject to the levies in accordance to 11.11 c (iv) plus any additional fines as determined by the board in regards to total loss incurred by the association. vi. Upon a member’s Third offense, as provided in 11.11 c (i), (ii), (iii), during the course of one year or Fourth with in a two year period the board shall consider terminating the member’s membership in accordance with

Section B 2.09 and 2.10. [ 6 ] The Association permits 36 chuckwagon drivers to participate, along with their teams, during a racing season. To qualify for participation in a season, a driver must either finish the previous season with a ranking in the top 30 of the 36 competitors, or be successful in a qualifying race held by the Association in September of the previous year.

The qualifying race is open to all six of the competitors who to failed rank within the top 30 and is also open to some chuckwagon racers who may wish to join the Association for the following year. [ 7 ] The most lucrative chuckwagon race each season is the Calgary Stampede. It has its own entry requirements and is not limited to Association members; however, an Association member who has finished within approximately the top 22 to 24 spots in the Association’s events would likely be entitled to participate in the Calgary Stampede. (

b) Mayan ’s Racing History [ 8 ] Mr. Mayan’s father was a successful chuckwagon driver. Mr. Mayan was an outrider for many years and has run his own chuckwagon since 2002.

He has been a member of the Association since at least 2002. [ 9 ] Briefly, his annual racing history from 2002 is as follows: • 2002 : Raced with the Association, finishing in 36 th place (out of 36 competitors) • 2003 : Failed to qualify, and therefore did not race with the Association. • 2004 : Failed to qualify, and therefore did not race with the Association. • 2005 : Failed to qualify, and therefore did not race with the Association. • 2006: Raced with the Association, finishing 35 out of 36. • 2007 : Raced with the Association, finishing 35 out of 36. • 2008 : Raced with the Association, finishing 27 out of 36. • 2009 : Raced with the Association, finishing 17 out of 36. • 2010 : Raced with the Association, ranking 29 out of 36 as of the time of his suspension. [19] As of August 26, 2010, there were two races left in the 2010 Association tour, to be held at Drumheller and Edmonton.

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c) The Altercation [20] During a race on August 20, 2010 at Rocky Mountain House, there was a collision between Mr. Mayan’s chuckwagon and the chuckwagon of another competitor, Codey McCurrach. An event judge concluded that the collision was caused by Mr. McCurrach’s wagon interference, and an infraction report was issued. As a result of the collision, Mr. Mayan’s wagon was brought to a stop. Three of his horses were injured; one of them, which Mr. Mayan believed was his best horse, was euthanized on the spot. [21] Mr. Mayan believed that Mr. McCurrach had intentionally swerved into his chuckwagon.

Following the event, he pursued Mr. McCurrach’s chuckwagon, entered it and had some physical altercation with Mr. McCurrach the details of which are disputed. According to Mr. Mayan, the altercation was “basically” out of sight of the crowd. However, Mr. Watson’s evidence and complaints from other persons tend to indicate that the incident “took place on the race track in front of the fans, sponsors, media and other competitors.” [22] Mr.

Watson’s affidavit states that “on August 21, 2010, the Officers [a term he defines to mean the officers of the Association] received several written complaints (nine, from seven people) against Mr. Mayan in regards to the events [on August 20], including but not limited to a written complaint by Mr. McCurrach himself, other competitors, members of the Board [of the Association] and members of the Rocky Mountain House Chuckwagon Association.” Those complaints, exhibited to Mr. Watson’s affidavit, contain details of the incident and, in some cases, general complaints about Mr.

Mayan’s conduct for some period before August 20, 2010. There is some indication in the complaints that hard feelings between Mr. McCurrach and Mr. Mayan had arisen in previous events. (

d) The Hearing [23] By letter dated August 21, 2010, the Association [by Kelly Carson, its operations manager] sent the following letter to Mr. Mayan: Re: Incident report filed by Codey McCurrach against Brian Mayan as per

Section C 11.09 The WPCA has received written notification from Codey McCurrach filing complaints against Brian Mayan under

Section C 11.11

a) and 11.11

b) reporting one or more incidents of Conduct Unbecoming Verbal and Physical Abuse on August 19 & 20, 2010 in Rocky Mountain House, AB. This letter will serve to notify you that this complaint will be reviewed by the Officer Board on Thursday, August 26, 2010 at 12 o’clock noon at the WPCA office located at #3, 2828 - 18 St. NE, Calgary, AB. Both Brian Mayan and Codey McCurrach have the option to be present at this time to address the complaint to the officer group as per

Section C 11.10. [2] [24] A hearing was conducted on August 26, 2010 by four Association officers, who were also directors. The only information Mr. Mayan was given before the hearing was the notice of August 21, 2010, quoted above. The officers, sometimes referred to as the “Hearing Panel,” decided to have Mr. Mayan and Mr. McCurrach give oral statements to the hearing panel separately from one another. Mr. Mayan gave his statement first. [25] Mr.

Mayan stated that he was asked to speak without being told anything about the complaint other than what was contained in the August 21, 2010 notice. [26] In his affidavit, Mr. Watson testified on how the hearing proceeded, as follows: 12. When Mayan entered the hearing room, the first comment that he made to the Officers was “I almost throttled that little prick outside”, referring to McCurrach who was outside the hearing room awaiting his opportunity to provide his statements to the Officers.

The Officers then asked Mayan to provide them, in his own words, the events that transpired at the race in Rocky Mountain House on August 20, 2010. Mayan, in a very agitated and aggressive manner, advised the Officers that during the race in Rocky Mountain House McCurrach had interfered with his chuckwagon and his horses resulting in a collision which ultimately caused the death of one of his

horses. He proceeded to tell the Officers that he in fact chased after McCurrach’s chuckwagon on foot and jumped into his chuckwagon while McCurrach was still under way driving. Mayan indicated to the Officers that he did in fact physically grab a hold of McCurrach but that he did not hit him. Mayan noted to the Officers that McCurrach “got what he deserved” because McCurrach’s actions had caused the death of one of his horses. At this point in the formal hearing the Officers asked Mayan what penalty, if any, the Officers should consider for his actions in Rocky Mountain House.

Mayan became extremely upset and started to pound his fists on the hearing table and yelled at the Officers several times, “he killed my fucking horse!” The Officers then asked Mayan if there was anything further that he wished to tell the Officers before they heard from McCurrach and made their final decision. Mayan indicated “there was nothing else to say”. 13.

It was very apparent during the hearing process that Mayan was aware of the complaint registered against him including the relevant facts alleged, however at no point did he accept any responsibility for the events that transpired that day or was he apologetic for his actions. Further, it appeared that Mayan failed to consider the seriousness of his actions and the significant risk that his actions posed to all involved. According to Mayan, McCurrach “got what he deserved” and no action need be taken against him by the WPCA. 14.

Shortly after the Officers had heard from Mayan, McCurrach was called to the hearing room to provide his statements and version of the events that transpired in Rocky Mountain House. 15. McCurrach advised the Officers that after the collision between himself and Mayan, Mayan ran down the track and entered his chuckwagon while it was under way and then struck him once in the back and then once again in the back of the neck and attempted to throw him out of his chuckwagon. McCurrach then advised the Officers that another member entered his chuckwagon and physically removed Mayan from the chuckwagon.

McCurrach advised the Officers that as Mayan was forced to leave the chuckwagon, he made a threat towards McCurrach stating “you are going to bleed tonight”. McCurrach indicated that all of this happened on the track in the presence of fans, media, sponsors, children and other competitors. In addition McCurrach advised the Officers that he feared for his safety and the safety of his family and that as a result of this fear he filed a complaint with the Rocky Mountain House RCMP at 9:30 pm on August 20, 2010. [27] In a supplemental affidavit, Mr. Mayan took issue with part of Mr.

Watson’s evidence as follows: Watson misstates my testimony at paragraph 13 of the Watson Affidavit where he says that I said McCurrach “got what he deserved”. I never said that. What I said was: “if you condemn me then you condone what McCurrach did.” When asked what sanction should be imposed on me arising from the Altercation, I said “I have already paid enough - one of my horses was killed.” [28] Mr. Mayan stated in his supplemental affidavit that there were many details in the complaints received by the Association of which he was unaware, and which he states are untrue.

They may be summarized as follows: • He did not hit Mr. McCurrach. • He did not take a swipe at anyone during the altercation. • He did not make a threat towards Mr. McCurrach. • He did not strike Mr. McCurrach’s father. • He did not try to throw Mr. McCurrach from the wagon. • No one pulled him off Mr. McCurrrach; he voluntarily let go of his shirt and left the area. • To his knowledge, he did not cause physical harm or injury to Mr. McCurrach. • To his recollection, he did not use profane language towards Mr. Carson during the altercation. [37] Mr. Mayan further stated that he was not aware that Mr.

McCurrach had advised the hearing panel that he feared for his safety or the safety of his family or that the hearing panel had been told that the police were involved.

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e) The Decision [38] On the same day, August 26, 2010, the Association gave Mr. Mayan the following letter, constituting its decision: In accordance to

Section C 11.11 regarding your conduct up to and including Rocky Mountain House, and after reviewing and investigating the incidents that have occurred, the WPCA Officer Group has made a decision to suspend you from racing effective immediately and for a period of one (1) year thereafter for Conduct Unbecoming Verbal Abuse and Conduct Unbecoming Physical Abuse and Conduct Detrimental to the sport. Such conduct will not be tolerated by the World Professional Chuckwagon Association.

The rules and policies put in place for the membership of the association are intended to govern and increase the level of professionalism of the sport and conduct of its members. The officer group recognizes the intensity competitor’s have for the sport. This is a professional sport and we must maintain a level of professionalism at all times. In addition to the suspension, you must successfully complete an Anger Management Program approved and funded by the WPCA prior to being able to attend a qualification run off in the World Professional Chuckwagon Association.

The decision of the Officer Group is final and no further investigation or appeal shall be heard. [39] Mr. Watson explained the reasoning behind the Hearing Panel’s decision in his Affidavit, as follows: 16. The Officers deliberated and based on the evidence provided by both Mayan and McCurrach determined that Mayan had in fact breached sections of the WPCA Rules and Regulations.

The Officers determined the altercation was a very serious incident which not only caused physical harm to McCurrach, but had McCurrach been thrown out of the chuckwagon by Mayan, his actions could have caused serious injury or death to McCurrach and potentially could have put fans, sponsors and other competitors at serious risk of injury or death as well. 17.

In addition to the harm to McCurrach and the risk to fans, sponsors and other competitors, the Officers determined that there were additional aggravating facts, including that the incident occurred in full view of the fans, sponsors, media and other competitors and that Mayan appeared to be completely unremorseful and unconcerned with the safety of everyone else involved. Further McCurrach’s genuine fear for his safety and fact that the incident could be considered a criminal matter was also an aggravating factor.

Ultimately, the Officers determined the appropriate penalty for Mayan’s conduct at the WPCA Rocky Mountain House event was a suspension for the remaining tour events of 2010, a suspension from competing in the WPCA tour events in 2011, with the exception that he would be able to compete in the final “run off” at the end of 2011, and a requirement that Mayan complete an anger management course before returning to qualify at the WPCA run off in 2011. Attached as Exhibit “D ” to this Affidavit is a copy of the Officers Meeting Minutes for August 26, 2010. [40] Mr.

Mayan submitted a letter to the Association, requesting the board to consider whether the decision was properly authorized by the board and within the applicable rules. At a board meeting on September 4, 2010, the matter was discussed but no different action was taken as a result. II. Legal Analysis (

a) Review of Decisions by Private Tribunals [41] The Association initially took the position that the impugned decision did not “fall within the narrow exception of cases where the decision of a private tribunal can be subject to the public remedy of judicial review.” That position was, however, abandoned during argument.

[42] In light of the Association’s position (which is reasonable, in the circumstances of this case), it is only necessary to consider the point briefly.

The courts will be slow to interfere with the decision of a voluntary, private tribunal. [3] In general, the courts have intervened at least in cases where the tribunal’s decision could detrimentally affect a member’s employment, [4] or where the tribunal has acted without jurisdiction, breached natural justice or made a decision that is patently unreasonable. [5] The supervisory jurisdiction of the court does not extend, however, to determining whether the tribunal’s decision was right or wrong in substance. [6] [43] In reviewing the decisions of private tribunals in these limited circumstances, it is recognized that memberships are legally structured as contractual obligations. [7] (

b) The Association ’s Obligations [44] As noted, it is not the court’s function to review the Hearing Panel’s decision on whether Mr. Mayan had contravened the By- laws and, assuming a contravention, what degree of sanction was appropriate.

The court’s role is to determine whether the Hearing Panel acted lawfully which, in this case, involves the issues of whether (1) it had the legal authority to impose the sanctions of suspension and directing completion of an anger management course, and (2) it met the requirements of procedural fairness. [45] From the By-laws and Rules quoted earlier, it can be seen that the Association’s board is given the power and authority to fine or suspend any member who is in breach of a By-law or Rule (By-laws,

section 6.01), and that the board may delegate its powers to other persons or committees of directors (By-laws,

section 7.19).

Article 11.0 of the Rules is entitled “Fines and Monetary Penalties,” and it provides a procedure by which alleged violations may be reported to the Association and reviewed by “Officer group.” The Officer group is given the authority to impose a fine (section 11.10), and specified fines are prescribed for a number of offences (section 11.11). The Rules contain no express authority for the Officer group to impose any sanctions other than fines, with the limited exception of suspensions for particular reasons under

article 12.0 of the Rules. [46] It is not disputed that the suspension of Mr. Mayan was not made by the board of the Association, but by an “Officer group”. It could not be otherwise, because the officers and directors meeting on August 26, 2010 did not constitute the quorum required for a board meeting (By-laws,

section 7.01). The Association asks that delegation of suspension power be found on the basis of Mr. Watson’s testimony during questioning. The passage relied upon, together with the necessary context, is as follows: Q In paragraph 5 of your Affidavit, sir, you’ve said: Pursuant to the bylaws the Board is authorized to delegate any of their powers to any committee of directors as they determine. And then you go on to say: Amongst other things, the Board assigned the duties of reviewing complaints against its members conducting formal hearings and imposing suitable penalties to the officers of the WPCA.

Is that correct, sir? A Yes, it is. Q Okay. And when you say that the board assigned those duties, are you referring to something that you’re looking at at your Exhibit “A,” being the bylaws, race rules, and policies of the Association, or are you referring to some separate document by which the board assigned these duties? A It’s a combination. Officers of the Association have always been assigned the duties of assessing fines and penalties. Q Okay. But my question is you made a statement about an authorization by the board to the officers, and I’m wondering are you just

restating what your read of the bylaws is or are you saying that there is a separate authorization apart from what’s contained in this written document here? A I would say it’s our understanding of the bylaws. Q Okay. So you’re not aware of any specific board resolution, for example, that grants any specific powers to the officers of the WPCA with respect to these kinds of hearings other than what is specifically contained in the documents which you’ve attached as your Exhibit “A;” is that correct? A Run that by me again. Q I’m afraid you were going to ask that.

COURT REPORTER: (By reading) Q So you’re not aware of any specific board resolution for example, that grants any specific powers to the officers of the WPCA with respect to these kinds of hearings other than what is specifically contained in the documents which you’ve attached as your Exhibit “A;” is that correct? THE WITNESS: That’s a good question. I would say it’s our understanding the way the bylaws are laid out for us so yes would be the answer. Q MR. BLACKETT: All right. And no outside authorization other than the bylaws; correct? You got your bylaws. A Right.

Q You don’t have any other authorization apart from the bylaws? A Apart from the bylaws specifically, no. [47] Mr. Watson testified that the officers were assigned “the duties of assessing fines and penalties.” The Association submits that the term “penalties” in this evidence should be read broadly, to include suspensions. [48] In my view, there is no warrant for interpreting the word “penalties” to include the power to suspend, in the absence of a more express evidentiary foundation. In any event, the argument ultimately fails because Mr.

Watson confirmed that all authorizations were contained within the By-laws. Thus, we are led back to an

interpretation of the By-laws. (That is, in any event, the logical result. To delegate its powers, the board would meet and speak by resolution.) [49] The By-laws and the Rules show no delegation by the board of its power to suspend. In fact, it is clear from those documents that a distinction is drawn between fines and suspensions, and the provisions under which the Officer group acted in Mr. Mayan’s case contemplate fines as the only possible sanctions. If there were any doubt, the doctrine of contra proferentem would require that it be resolved against the Association.

As noted above, mutual legal obligations in a voluntary association are based on contract principles. The contra proferentem rule is particularly applicable “where as here the interpretive question is a jurisdictional question concerning the application of potential penalties which could have very serious consequences. The petitioner is entitled to know with clarity the powers of a society that asserts such extraordinary powers over him.” [8]

[50] The Officer group also required that Mr. Mayan complete an anger management program before being able to attend aqualification race. The Association does not seriously dispute that there is no authority in the By-laws or Rules for the imposition of thisrequirement. [51] For these reasons, I find that the Association’s suspension of Mr. Mayan’s membership and its requirement that he completean anger management course were unlawful and cannot stand. [52] In addition to the legality of the sanctions, Mr. Mayan argues that the Hearing Panel did not comply with its obligations ofprocedural fairness. Mr.

Mayan alleges that (1) he was not given adequate notice of the case against him, and (2) he was not givensufficient disclosure of all information relied upon by the Hearing Panel. [53] In law and application, there is significant overlap between these points.

Furthermore, it has been held that for the deferentialreview appropriate to decisions of voluntary associations, the courts should take “a broad view of the entire process”: 85 In my view, the correct approach is as follows: each single error must be given due consideration in order to determine if it, on itsown, is a procedural error/denial of natural justice to such an extent that it renders the process as unfair. If any one such error does havethat result, then the plaintiff succeeds with his application.

However, if each error, taken individually, does not rise to the level ofunfairness, then it is necessary to consider all of the errors collectively. Ultimately, it is a broad view of the entire process which must beconsidered. Each individual error will have its place within the broad view of the entire process.

With this in mind, the Court must askitself a question concerning the broad view of the entire process, as well as the individual errors that form part of that broad view. 86 The question that I must ask myself is this: “Although imperfect, has this process been fundamentally fair?”[9] In support of the quoted proposition, Silverman, J. relied upon Stachiw v. Saskatoon Softball Umpires Assn., (SKKB), [1985] 5 W.W.R. 651 (Sask. Q.B.), at 653 - 54; and Knight v. Indian Head School Division No. 19, (SCC),[1990] 1 S.C.R. 653, at 685. [54] It is not in dispute that Mr.

Mayan was entitled to be treated with procedural fairness by the Hearing Panel. That principle is well established.[10] [55] The content of the obligations of procedural fairness may vary according to the nature of the tribunal and the matter beingconsidered.

Even in the context of a public tribunal, the need for flexibility was recognized by the majority of the Supreme Court ofCanada, as follows: It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court.The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed bya court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair.

As pointed out by de Smith’s Judicial Review of Administrative Action, 4th ed. (1980), at p. 240), the aim is not to create “procedural perfection” but toachieve a certain balance between the need for fairness, efficiency and predictability of outcome.

Hence, in the case at bar, if it can befound that the respondent indeed had knowledge of the reasons for his dismissal and had an opportunity to be heard by the Board, the requirements of procedural fairness will be satisfied even if there was no structured “hearing” in the judicial meaning of the word.[11] [56] The content of the duty to be fair is comprised primarily of the principles of audi alteram partem (the right to hear the other side, and to know the case against one) and nemo judex in sua causa debit sesse (which can be loosely termed the rule against bias).[12] The criticisms made by Mr.

Mayan against the Association’s decision relate generally to the audi alteram partem requirements. [57] The authorities generally eschew comprehensive statements of what is contained within the duty of fairness, observing instead that “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case,”[13]

however, it is clear that as the significance of the decision to the individual affected increases, so will the stringency of the procedural. [14] Mostly basically, a person in the position such as Mr. Mayan must know the case alleged against him and be given an opportunity to answer it before the decision maker. [58] The August 21, 2010 notice given by the Association to Mr. Mayan must be considered in the light of these principles. The following points are of concern:

a) Reference is made to a “written notification from Codey McCurrach filing complaints against Brian Mayan ... reporting one or more incidents ... on August 19 & 20, 2010 in Rocky Mountain House, AB.” The primary reference is to Mr. McCurrach’s written notification, but it was not provided to Mr. Mayan. He could reasonably assume that the main subject was the altercation following the race on August 20, 2010, but had no way of knowing particulars that might be alleged against him, or what precise conduct of August 19 was brought into question. (The written complaint Mr.

McCurrach gave to the Association states, with respect to August 19: “Brian Mayan came across the finish line cussing and swearing at both myself and Jason Johnstone. This was loud enough the fans, media, sponsors, children and other competitors could here [sic] the abusive language.”)

b) The notice refers to four sections of the Rules. They describe the process, give general descriptions of the referenced violations, and indicate that the Officer group may impose a fine – and various amounts are set out for first and subsequent offences. The notice gives no indication that suspension was possible. Mr. Mayan did not read the sections before the hearing, but had he done so he would reasonably have concluded that he was exposed to fines of $500.00 and $2,000.00. [59] The Association submits that during the hearing, any deficiency in notice was compensated for by pointed questions asked of Mr.

Mayan which should have alerted him to details of the allegations against him. Regardless of whether notice during rather than before the hearing is adequate, the evidence does not support that submission. Mr. McCurrrach was heard second, and therefore questions arising from his allegations at the hearing could not be put to Mr. Mayan. Mr. McCurrach’s evidence included that he feared for his safety or the safety of his family, and that he had filed a complaint with the police. Furthermore, Mr. Mayan was not specifically questioned about details contained in Mr.

McCurrach’s written complaint, including but not limited to allegations that Mr. Mayan: attempted to throw Mr. McCurrach from a moving chuckwagon, stated that “you are going to bleed tonight,” hit Mr. McCurrach’s father, had to be forceably removed, and used profane language towards Mr. Carson. [60] Mr. Watson’s affidavit and the questioning support the Association’s submission that Mr. Mayan was asked about what, if any, penalties the officers should consider.

There is, however, no indication that he was warned that a suspension of his racing privileges was possible. [61] The Association submitted that it was not clear whether the officers on the Hearing Panel had received copies of the written complaints submitted by persons other than Mr. McCurrach. The only evidence on the point, however, leads to a strong inference that such material was before the Hearing Panel. Mr.

Watson’s affidavit indicates that on August 21, 2010 the officers received the written complaints exhibited to the affidavit (nine complaints from seven individuals); that “after receiving the written complaints, ... the Officers issued a Notice to Mayan;” and that “on August 26, 2010, the Officers conducted a formal hearing.” In the absence of specific testimony that only some of the officers received all of the complaints, it must be concluded that all of the material was before the Hearing Panel. None of it was given to Mr.

Mayan. [62] The Association further submits that, in any event, deficiencies in procedural fairness were harmless and did not likely contribute to the decision. In my view the evidence points to a different conclusion. As quoted above, Mr. Watson’s affidavit indicates that the deliberations following Mr. Mayan’s and Mr. McCurrach’s oral statements included the facts that Mr.

McCurrach suffered physical harm; that he might have been thrown out of the chuckwagon, potentially causing serious injury or death; and that “McCurrach’s genuine fear for his safety and fact that the incident could be considered a criminal matter was also an aggravating factor.” Those are details founded on the written complaints and Mr. McCurrach’s oral statement to the hearing of which Mr. Mayan was unaware. [63] I find that the Association failed to comply with the most basic requirements of the principles of natural justice and procedural fairness. Mr.

Mayan could not have a fair hearing without knowing all of the relevant circumstances alleged against him, most of which he would have adamantly denied. This is especially so in this case, where the Hearing Panel considered the particulars as relevant to the seriousness of the sanctions to be imposed on Mr. Mayan. In many respects, the facts are similar to those in Alberta (Funeral Services Regulatory Board) v. Strong . [15] In the context of a decision made by a statutory tribunal, Ross, J. noted the following:

32 Firstly, the notice provided was not adequate. It did not make clear that the “meeting” was in fact a hearing at which sanctions would be addressed. .... The notice that they received was in large part responsible for this. It referred only to “violations of

section 8 .... Nor particulars were provided; neither was the Inspector’s report nor the supporting evidence disclosed. ... There was no reference to any final determination at all; certainly no indication that sanctions including cancellation or suspension of their licenses would be considered. ... 34 Secondly, there was insufficient disclosure of the case to be met. Strong and McKay were not provided with [reports or copies of files]. The Regulatory Board argues that the lack of disclosure is insignificant in view of the admissions by Strong and McKay that they violated the Regulation. I reject this argument.

The nature of the case against them, and therefore disclosure of that case, was relevant not only to the question of whether the Regulation had been breached, but also to the question of the appropriate sanction. Further, there was a virtually complete lack of disclosure - not only were the report and supporting evidence held back from Strong and McKay, they were not even provided with particulars of the allegations against them. ....

In the face of such completely inadequate disclosure, Strong and McKay could not be prepared to meet the case against them. 35 Thirdly, the Regulatory Board should not have heard from Konner in the absence of Strong and McKay ( Kane v. University of British Columbia , at pp. 1113-15). As a result, Strong and McKay were questioned by the Regulatory Board on allegations they had not even heard. “The court will not inquire whether this evidence worked to the prejudice of one of the parties; it is sufficient if it might have done so” ( Kane , at p. 1116). [16] [64] I therefore find that Mr.

Mayan was not given adequate notice or disclosure regarding the allegations against him and the case he had to meet, and for that reason the Hearing Panel’s decision cannot stand. III. Remedy (

a) Issues Raised by Parties [65] Mr. Mayan submits that merely setting aside the Hearing Panel’s decision would provide no effective relief. Mr. Mayan’s evidence is that his suspension prevented him for qualifying for any 2011 events, except that he might participate in the September, 2011 qualification race which relates to 2012 events. In his affidavit, he testified as follows: If I am unable to race during the 2011 season, I will likely be unable to sustain the expenses of maintaining my chuckwagon and team in order to be able to try to make a comeback in 2012.

If that happens, it will effectively end my career in professional chuckwagons. For this reason I say the suspension may cause me irreparable harm. [66] For that reason Mr. Mayan seeks injunctive relief reinstating him to the Association’s 2011 tour of events and enabling him to participate in the 2011 Calgary Stampede. This latter request was withdrawn during argument, because participating in the Association’s events does not automatically guarantee participation in the Calgary Stampede. There is no basis in this action for relief to be granted against the Calgary Stampede. [67] Mr.

Mayan relies most heavily on National Ballet of Canada v. Glasco . [17] The issue was whether Glasco’s employment had been wrongfully terminated. An arbitrator made an interim award ordering that Glasco be assigned roles and performances, and the divisional court was then charged with reviewing the arbitrator’s interlocutory order, and the National Ballet’s motion for an order staying the arbitrator’s award. The National Ballet was unsuccessful, for reasons summarized by O’Leary J. as follows: [23] Glasco is a mature artist in the final stages of her career, performing at the highest level.

Any further hiatus in her dancing is likely to prevent her from being able to resume her career. Such a loss to her is impossible to measure and cannot be adequately compensated for by monetary damages. [24] The National Ballet of Canada will not suffer a fatal blow if the order for reinstatement stands but Ms. Glasco’s dancing career will likely be finished if she is kept from dancing any longer.

[68] The Association has adduced no evidence of harm or inconvenience that it would sustain if an order directing reinstatement is made. The only submission in its brief on this point is as follows: Conversely, if the application for injunction is granted, the WPCA will be forced to reinstate the Applicant despite his admission that he had in fact breached a number of the By-laws and the Rules and Regulations, and the potential risk that he created to the fans, the sponsors, media, and other competitors through his actions during the altercation.

The reinstatement of the Applicant would in effect undermine and debilitate the WPCA’s ability to govern itself as a private, voluntary organization due to no fault of its own. As such, the balance of convenience is clearly in favour of dismissing the application for injunctive relief. [69] The only reference to inconvenience the Association might encounter if Mr. Mayan is reinstated arose as a result of a direct question on the point to Mr. Mather during his submissions.

He asked the court to draw an inference that there would be inconvenience because the Association has “historically” had 36 drivers in its events, and racers have been chosen for the 2011 events. There is, however, no evidence on any of these points. [70] The Association’s main grounds for opposing reinstatement are that it is too speculative to conclude that Mr. Mayan would have successfully qualified for the Association’s 2011 events if he had not been suspended on August 26, 2010. (

b) Principles of Law [71] The parties have argued their positions and submitted authorities on the basis of the tripartite test for interlocutory injunctions. However, the essence of Mr. Mayan’s application is for a perpetual injunction, which has been defined as follows: A perpetual injunction is an injunction that is directed towards the final settlement and enforcement of the rights of the parties that are in dispute; and it is none the less perpetual if those rights are themselves restricted in point of time. [18] Even though Mr.

Mayan seeks his injunction only for the 2011 season, it is “perpetual” because it finally settles his rights for that defined period. [72] In addition, Mr. Mayan seeks an injunction that is mandatory rather than prohibitive in nature. Courts must consider different factors where a mandatory order is sought because it would require the respondent to undertake a positive course of action, rather than refraining from particular conduct. [73] A useful description of the general approach that should be taken when considering mandatory injunctions was given by Megarry J., in a passage quoted by Clarke J. in G.A.

Developments Ltd. v. Girard : The matter is tempered by a judicial discretion which will be exercised so as to withhold an injunction more readily if it is mandatory rather than if it is prohibitory. Even a blameless plaintiff cannot as of right claim at the trial to enforce a negative covenant by a mandatory injunction.

Second, although it may not be possible to state in any comprehensive way the grounds upon which the court will refuse to grant a mandatory injunction in such cases at the trial, they at least include the triviality of the damage to the plaintiff and the existence of a disproportion between the detriment that the injunction would inflict on the defendant and the benefit that it would confer on the plaintiff.

The basic concept is that of producing a ‘fair result’, and this involves the exercise of a judicial discretion. [19] [74] I am not aware of any decisions that specifically consider the remedy of prohibitive mandatory injunctions granted by judicial review of a voluntary association, and none have been submitted by counsel; however I am satisfied that where a basis for judicial review of the decision of a voluntary association has been established, there is no reason that a perpetual mandatory injunction cannot be granted.

Further, the Association has not taken the position in these proceedings that the type of injunction sought is not available as a matter of principle. Rather, its arguments focus on whether it is justified on the facts of this case.

[75] In determining what factors should be considered on whether to grant an injunction, the comments of Megarry J., incorporated into Clarke J.’s decision, have persuasive weight. Also helpful are the conditions collected by Spry, in The Principles of Equitable Remedies . [20] However, It is not helpful to set out the tests with great nicety as the overriding principles are discretionary. [76] Having regard to the authorities referenced (and those addressed later), in my view the factors that should inform the decision on whether to grant the requested injunction are as follows: 1.

As the remedy would be final, Mr. Mayan must establish on a balance of probabilities that the Association acted unlawfully, so as to entitle him to relief. 2. There must be a reasonable evidentiary foundation for the assumption on which the requested remedy is based, namely that Mr. Mayan would have qualified for the 2011 events but for his suspension. 3. Mr. Mayan must show that damages would be inadequate remedy. 4. It must not be impossible or unduly onerous for the Association to comply with an order that Mr. Mayan’s membership be reinstated. 5.

There must be no other reason militating against the exercise of judicial discretion in favour of an injunction, such as disproportionality between Mr. Mayan’s benefit and the Association’s detriment, conduct of the parties, need for supervision of the order, delay in application, and unclean hands. (

c) Application of Factors

i) Entitlement to Relief [77] For reasons given above, I have found that the Association’s decision was made without authority in its constituting documents and that Mr. Mayan was deprived of his rights to be treated fairly. For those reasons, the Hearing Panel’s decision was unlawful, should not have been made and must be set aside. [78] Therefore, Mr. Mayan has established on a balance of probabilities his entitlement to some form of relief. ii) Mr. Mayan ’s Prospects of Qualifying [79] As noted above, to qualify for the Association’s 2011 tour, Mr.

Mayan would have been required to finish with a ranking in the top 30 of the 36 competitors, or successfully qualify in the September, 2010 qualification race. [80] For the five years from 2006 through 2010, Mr. Mayan had successfully qualified. Until 2008, he had not finished within the top 30 but fell within the next six competitors, entitling him to participate in the qualifying race – and he was successful when doing so. In 2008 and 2009, he finished in 27 th and 17 th place, respectively. [81] As of his suspension in 2010, with two races to go, he was in 29 th place. [82] The materials exhibited to Mr.

Watson’s supplemental affidavit make it possible to view Mr. Mayan’s standings over the course of the 2010 tour, before his suspension. His rank progressed in the following order chronologically, as the events took place: 31, 28/29, 24, 31/32, 28, 28, 28, and 29.

[83] Not surprisingly, there do not appear to be any authorities determining what standard of proof should apply to determining whether, but for the suspension, Mr. Mayan would have qualified for the 2011 tour. In a case concerning excavation causing soil erosion and concern about eventual damage to a nearby house, Russell L.J. stated the following: In different cases differing phrases have been used in describing circumstances in which mandatory injunctions and quia timet injunctions will be granted.

In truth it seems to me that the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances. [21] [84] Spry suggests that proof on a balance of probabilities as to the imminence of harm is required but the balancing of all factors required in injunction cases means proof to that level may not be required. [22] [85] I am satisfied on a balance of probabilities (even though that standard may not be necessary) that, but for the suspension, Mr. Mayan would have qualified for the 2011 tour.

His record over the previous five years and the consistency of his performance during the 2010 tour satisfy me that he would probably have finished within the top 30 drivers, but even if he slipped below thirtieth place he would almost certainly have been within the top 36 and would probably have qualified in the September, 2010 qualifying race. [86] The Association suggests that chuckwagon racing involves many risks, and something might have occurred in the last two races to deprive Mr. Mayan of his position.

That is a speculative argument which is best answered by remembering that the courts do not deal in certainties, but on various degrees of probabilities based on the evidence. [87] While I do not base my decision on this point, there is a reasonable argument that because the Association’s wrongful conduct deprived Mr. Mayan of his opportunity, they should be fixed with Mr. Mayan’s standing as of the date of his suspension. That would avoid any need for what the Association suggests is speculation. iii) Damages as a Remedy [88] As noted above, Mr.

Mayan submits that damages could not compensate him for the loss of his opportunity to continue developing his career as a professional chuckwagon racer. The Association submits that damages could be assessed, and they might be nominal because Mr. Mayan might have recovered at best a modest profit after paying the heavy expenses of maintaining his team, horses and equipment. [89] In my view, damages could not adequately compensate Mr. Mayan for his suspension.

It is a reasonable inference from the evidence that the most significant impact of his inability to compete in 2011 would be on the development of his career, including as public exposure, development of skills, maintaining his team, horses and equipment, and continued relationships with sponsors and other members of the chuckwagon racing industry. Loss of a year on tour would cause real loss to Mr. Mayan, even though much of it may seem intangible and impossible to measure. [90] The Association’s position with respect to damages reinforces this finding.

A strict financial analysis along the lines proposed by the Association would give Mr. Mayan at best a modest award, probably not even sufficient to maintain his team, equipment and horses. To suggest that as the damages for missing an entire tour season serves to highlight the inadequacy of that form of relief. [91] The Association also suggested that Mr. Mayan has other opportunities to participate in chuckwagon racing in 2011. However, the only evidence before me suggests that there is no other organization that offers opportunities of the same scope and level as the Association. Mr.

Mayan’s affiliation with another organization occurred over five years ago, still very early in his career and only because he did not qualify them to race with the Association. iv) Impossibility or Onerousness of Injunction [92] As noted above, the Association has adduced no evidence of any impossibility or degree of onerousness associated with an

[92] As noted above, the Association has adduced no evidence of any impossibility or degree of onerousness associated with an order reinstating Mr. Mayan’s membership and participation in the 2011 tour. [93] In its brief, the Association asks the court to infer that reinstatement would undermine the Association’s ability to self-govern.

That conclusion is doubtful, and in any event cannot justify self-governing conducted beyond the authority of constituting documents and in contravention of procedural fairness. [94] In its oral submissions, the Association asks for an inference that organization of the 2011 tour would be made difficult by the reinstatement. Again, there is no evidence to support such an inference, and it is far from amounting to the degree of impossibility or onerousness that would justify refusing an injunction on that ground above.

v) Other Factors [95] In my view, there are no other factors that militate against granting a perpetual mandatory injunction in favour of Mr. Mayan. The nature of the order sought would not require significant direction or supervision. There is no suggestion that Mr. Mayan delayed seeking his remedy. Neither party can be criticized for acting in a manner that would affect the normal application of equitable principles. Finally, I am satisfied that the seriousness of the harm established by Mr.

Mayan and the inadequacy of another remedy, weighed against the absence of any evidence of undue effect of an injunction on the Association, justifies the exercise of discretion in favour of the remedy sought. IV. Conclusion [96] For these reasons, there will be an order setting aside the decision of the Hearing Panel of August 26, 2010, reinstating Mr. Mayan to membership as of that date, and entitling Mr. Mayan to full participation in the Association’s 2011 chuckwagon tour. [97] This judgment is not intended to exonerate Mr. Mayan in regard to his conduct of August 19 and 20, 2010.

Indeed, it was acknowledged on his behalf that he probably breached the Rules. It remains open for the Association to convene a Hearing Panel to consider Mr. Mayan’s conduct in a fair process and to impose sanctions that are within its authority if it considers them to be justified. [98] The parties have leave to speak to costs if necessary. Heard on the 09 th day of February, 2011. Dated at the City of Calgary, Alberta this 4th day of March, 2011. G.H. Poelman J.C.Q.B.A. Appearances:

Glenn Blackett Carscallen Leitch LLP for the Applicant Ward Mather Miles Davison LLP for the Respondent [1]R.S.C. 1970, c. C-32. [2]The designation “C” by the

section numbers indicates that the references are to the Rules, rather than the By-Laws. [3]Street v. B.C. School Sports, 2005 BCSC 958 at paras. 34 - 41, and cases there cited. [4]Chaudhary v. Canadian Society of Respiratory Therapists, 2007 BCSC 467, at paras. 34 - 38. [5]Schow v. Alberta School’s Athletic Association, [2002] A.J. No.1711 at para. 8. [6]Ibid. [7]Senez v. Montreal Real Estate Board, (SCC), [1980] 2 S.C.R. 555, at 566 (in a civil law context); and LakesideColony of Hutterian Brethren v.

Hofer, (SCC), [1992] 3 S.C.R. 165, at 174, 185. [8]Chaudhary, supra note 4 at 60 - 64. [9]Street, supra note 3 at 86. [10]Chyz v. Appraisal Institute of Canada, (1985), (SK CA), 44 Sask. R. 165 at paras. 8 - 12 (C.A.); Lakeside Colonyof Hutterian Brethren, supra note 7 at 175. [11]Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653 at 685. [12]Jones and de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 255. [13]Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 21. [14]ibid, at para. 25. [15]2006 ABQB 873, 410 A.R. 334. [16]The authority to which Ross, J. referred is Kane v. Board of Governors of the University of British Columbia, (SCC),[1980] 1 S.C.R. 1105. [17]National Ballet of Canada v. Glasco (2000), (ON SCDC), 49 O.R. (3d) 223 (Div. Ct.). [18]I.C.F. Spry, The Principles of Equitable Remedies, 8th ed. (Sydney: LawBook Co, 2010) at 382. [19]G.A. Developments Ltd. v. Girard, 1999 ABQB 719, para. 45, quoting from Shepherd Homes Ltd. v.

Sandham, [1971] 1 Ch. 340, at351. [20]Spry, supra, note 18 at 540 - 41.

[21] Hooper v. Rogers , [1975] Ch. 43 (C.A.) at 50 . [22] Spry, supra , note 18 at 394.