Chinook Park-Kelvin Grove-Eagle Ridge Community Association v Minor Hockey Association of Calgary, 2021 ABQB 532

Court of Queen’s Bench of Alberta Citation: Chinook Park-Kelvin Grove-Eagle Ridge Community Association v Minor Hockey Association of Calgary, 2021 ABQB 532 Date: 20210714 Docket: 2001 07267 Registry: Calgary Between: Chinook Park-Kelvin Grove-Eagle Ridge Community Association and Jeremy Thal Applicants - and - Minor Hockey Association of Calgary Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] On June 8, 2020, the Applicant, Chinook Park-Kelvin Grove-Eagle Ridge Community Association (“CKE”) filed an Originating Application seeking various relief including:

a) a declaration that the CKE Relocation is invalid, void and/or ultra vires ;

b) an order quashing the CKE Relocation, setting it aside, and declaring it to be null and void;

c) a declaration that the CKE Relocation was made in breach of the articles, objects, by-laws, rules, regulations, policies, mission statements, and other constating and governing documents of Hockey Calgary, Hockey Alberta and/or Hockey Canada;

d) a declaration that the CKE Relocation was made in breach of Hockey Canada’s contractual relationship with its members;

e) in the alternative, an oppression remedy pursuant to the Court’s authority under the Societies Act and the Business Corporations Act , setting aside the CKE Relocation on the basis that it is oppressive and unfairly prejudicial to the Applicant and its members, and unfairly disregards the interests and reasonable expectations of the Applicant and its members;

f) in the further alternative, an order staying the CKE Relocation, and/or enjoining and restraining the implementation of the CKE Relocation pending the final determination of this Application. [ 2 ] CKE’s Originating Application relates to an April 27, 2020, decision of the Board of Directors of Hockey Calgary (“the Board”) to redraw the boundaries of certain of its’ member associations, thereby requiring certain families residing in CKE who were formerly members of Glenlake Minor Hockey Association (“Glenlake”) to relocate to the Southwest Hockey Association (“Southwest”).

The decision was announced on April 30, 3020, to be effective the 2020-21 hockey season. Registration for the 2020 hockey season was scheduled to commence on July 1, 2020. [ 3 ] On June 30, 2020, the Respondent filed a cross-application seeking a declaration that the Applicant lacked standing to assert its Originating Application filed on June 8, 2020, against the Respondent, as well as costs on a party-party basis. In support of this application, the Respondent filed the affidavit of Kevin Kobelka, Executive Director, Minor Hockey Association of Calgary (“Kobelka”) (“Hockey Calgary”), sworn on June 30, 2020.

Kobelka was questioned on his affidavit on July 8, 2020. Responses to undertakings arising from this questioning were filed on July 17, 2020. [ 4 ] On July 8, 2020, the Applicant filed a further application for an order permitting it to file the Amended Originating Application, as well as costs of the application. The proposed amendment seeks to add Jeremy Thal as an applicant to this action, both on his own behalf and also on behalf of members of CKE, Glenlake, and Hockey Calgary.

It also seeks additional forms of relief from that set out in the Originating Application filed on June 8, 2020. [ 5 ] In support of its cross-application, the Applicant sought to rely on ten (10) additional affidavits. [ 6 ] This application was heard on August 26 and 27, 2020, and continued on September 22, 2020. At the conclusion of oral submissions, I reserved my decision. These are my reasons for decision. Facts [ 7 ] The factual underpinnings relative to this matter come from a series of affidavits filed by the parties, notably the affidavit of Kobelka.

In his affidavit sworn June 30, 2020, Kobelka deposes that:

a) Hockey Alberta is the governing body for minor hockey in Alberta, with the City of Calgary, as represented by Hockey Calgary, constituting a single member of Hockey Alberta. Hockey Calgary has provided support to minor hockey and young hockey players since 1949. It was incorporated on June 26, 1970 under the Societies Act , RSA 1955, c 315 . The tradename “Hockey Calgary” was incorporated on February 17, 1997.

b) Hockey Calgary, the largest minor hockey association in Alberta, has 21-member associations at present, consisting of 15 Community Hockey Associations, 4 Elite Hockey Associations, 1 Female Hockey Association and 1 Recreational Hockey Association. It consists of over 14,000 players, 3700 coaches, 1200 officials, and numerous volunteers. Hockey Calgary is the governing body for all minor hockey in Calgary from Timbits to Junior, involving players aged 5-21 years.

c) The mission and mandate of Hockey Calgary is as follows: Hockey Calgary’s mission is to provide a safe, fun, fair environment by building strong partnerships through shared leadership, development, and support with its member associations, for the enjoyment and success of all stakeholders. Its mission statement supports the Hockey Alberta mission statement. It is: Through our membership we promote: -Healthy and Safe Competition -Positive Life Skills -Fair Opportunity -Optimal Hockey Skill Development -Access to the Game For the enjoyment and success of all participants!

The mandate of Hockey Calgary is to make decisions and govern hockey in Calgary so that all participants, players, and stakeholders have an equal opportunity for success, enjoyment, development, and the other key outcomes of a positive hockey experience. Hockey

Calgary strives to eliminate obstacles to such equal opportunity.

d) Of the approximately 14,000 current players, approximately 72 reside in the communities of Chinook Park, Kelvin Grove and Eagle Ridge. Of these 72 CKE players, 9 families (involving 12 players) have asked to be released from playing for Southwest in the upcoming season. A further 36 players have been “grandfathered” and can continue to play for Glenlake or may choose to play for Southwest. The remaining 24 affected players have not communicated with Hockey Calgary.

e) The determination of where players will play minor hockey in Calgary is based on boundaries established by Hockey Calgary. The determination of boundaries is made by the Board, the Operations Committee, Hockey Calgary management and member associations.

f) The determination of boundaries and boundary changes focuses on providing the best quality hockey for all players irrespective of where they live. Over time, smaller member associations have disappeared, merged, or been amalgamated into larger associations so as to permit children to play on full slates of teams at each level in each division, from the most competitive to the least competitive.

g) In 2000, Hockey Calgary was made up of 24 community hockey associations, an amalgamation of neighbouring communities. For the 2015-16 hockey season, this was reduced to 15 community hockey associations due to changes in demographics and the needs of members.

h) Boundary reviews are either initiated by Hockey Calgary on the basis that member associations are not able to offer similar playing experiences for their players, or when member associations seek a review on the basis of inequities between the various member associations. Hockey Calgary’s approach to boundary review and changes is based on the principle that all players have a positive minor hockey experience and: -they have an opportunity to compete at the appropriate skill level; -they have an opportunity to develop their skills equally; -they have an opportunity to have equal access to ice; and -there exists for them a competitive balance of competition across all member associations.

i) By 2017, it had become clear that boundary changes were required to address the fact that some member associations had approximately 1200 players, while others had approximately 400, leading to an inability to fill teams at all levels. During the most recent boundary review, the objective was to create boundaries that resulted in between 900 and 1100 players.

Implementation of boundary reviews is difficult in that it creates disruptions as players are shifted from one association to another. [ 8 ] Kobelka deposes at para 8 of his affidavit that “As I think is done with many sport organizations and by public and Catholic school boards in determining where athletes participate and where students are required to go to school, the city map is divided up, lines are drawn, and the determination is made by the respective boards in the best interests of ‘ALL’ members.” [ 9 ] He further deposes at para 19 that the following factors were taken into consideration by Hockey Calgary, its Operations Committee (comprised of the Presidents of all member associations) and others leading up to the 2019 boundary revisions:

i) The size gap between associations under the Hockey Calgary umbrella; ii) Registration data from 2017-2018, 2018-2019, and 2019-2020; iii) The size of other minor hockey associations across Alberta; iv) The performance of association teams in major Hockey Calgary events over the last three years (including Esso Minor Hockey Week and City Championships);

v) Participation and performance at Provincial Championships over the past three years; vi) Winning percentage of all teams over a three-year trend and a one-year trend; vii) The health of member associations measured by comparing the percentage of players at U11 levels and below versus U12 levels and above, so as to permit analysis of the question whether the member has a young membership with growth potential or an old membership with declining numbers; viii) The projected number of players at different age groups and teams under different models (no change, 11 associations, 13 associations); ix) Growth trends and grandfathering (house league included and excluded);

x) Growth Analysis over a 10-year trend and a 3-year trend; xi) Drive-time analysis (not as detailed, but directional); xii) Access to ice (directional, and in big picture terms); xiii) Feedback from member association executives; and xiv) Consideration of ‘Legacy’ communities and unique arrangements that were specific to existing Associations.

[ 10 ] Consultations took place over an 18-month period from the fall of 2017, until March 2019, regarding proposed boundary changes. At paragraph 17 of his affidavit, Kobelka states: The boundary review was initiated to deal with issues of unfairness and inequality that had arisen, primarily as a result of demographic changes in Calgary, changes that had resulted in large and unacceptable disparities in association size across member associations.

Hockey Calgary sought to remove these disparities, and it did that through the long, detailed, and consultative process that resulted in the first boundary decision, dated March 16, 2019. [ 11 ] The 2019 boundary review resulted in a number of changes, specifically:

i) The elimination of the Calgary Saints Hockey Association (“the Saints”) from membership in Hockey Calgary, and the distribution of Calgary Saints players across McKnight, Simons Valley and Blackfoot Associations, effective the 2019-2020 hockey season; ii) Players from the community of Douglasdale shifted from Bow Valley Association to Blackfoot Association (effective 2019- 2020); iii) Re-arranging the boundaries of several other associations, including moving CKE from the Glenlake Hockey Association to the Southwest Hockey Association, effective as of the 2019-2020 hockey season.

Players from Kingland were also moved from Glenlake to Southwest; iv) The Capital Hill & Collingwood Communities were moved from the Northwest Warriors Association to the McKnight Hockey Association effective the 2019-2020 hockey season;

v) The Lake Bonavista Association and the Mavericks Association were merged as of the 2020-2021 hockey season; vi) The Bow River Bruins Hockey Association, the Crowfoot Minor Hockey Association and the Northwest Warriors Association were merged as of the 2020-2021 hockey season; and vii) The elimination of the Crowchild Hockey Association and the Westwood Hockey Association, operating under the name Northwest Warriors Hockey Association (“the Warriors”) and merging their players into two other associations.

The 2019 Court Decision [ 12 ] On April 29, 2019, the Calgary Saints Hockey Association, the Crowchild Hockey Association, the Westwood Hockey Association, and CKE, filed an Originating Application seeking to set aside the March 18, 2019, boundary review decision on the basis that it was ultra vires the Board. As outlined above, the decision altered the boundaries of some of Hockey Calgary’s community hockey associations, and reduced the number of member hockey associations from 14 to 11.

On May 17, 2019, Neufeld J issued an interim injunction restraining Hockey Calgary from implementing the decisions until the matter could be fully argued on the merits. [ 13 ] The application was heard by McCarthy J on June 21, 2019. McCarthy J held that the Societies Act governed the contractual relationship between Hockey Calgary and its member associations and, as such, the Board was authorized to manage the business and affairs of Hockey Calgary, subject to its’ bylaws.

He also held that s 14 of the Act allowed a member to be expelled if the conduct of the member was found to be improper, unbecoming or contrary to the interests of Hockey Calgary. He went on to find that a boundary re- designation or a forced amalgamation fell within the meaning of elimination or expulsion as set out in the Societies Act .

Further, he found that any boundary decision was required to take the expulsion provisions found in s 7 of the bylaws into consideration when making decisions that “effectively eliminated or expelled from membership or participation in Hockey Calgary as a result of boundary re- designations against their will”: Reasons, June 21, 2019, p 4, l 6-8. [ 14 ] McCarthy J held that Hockey Calgary’s by-laws required it to delegate operational decision-making authority to its’ Operations Committee and the Board’s Executive Director.

He found that while the Operations Committee had previously considered the issue of boundary changes, but no recommendation was ever presented to the Board of Directors.

In view of the fact that the by-laws prescribed that the Board can review, approve or reject the recommendations of the Operations Committee, McCarthy J held that the Board lacked authority to effect the challenged boundary changes in the absence of a recommendation to that effect emanating from the Operations Committee. [ 15 ] The decision went on to suggest that it would be open to Hockey Calgary to amend its by-laws to allow for a member in good standing “to be terminated as a member by way of a re-designation of boundaries or forced amalgamation”: Reasons, at p 4, l 10-13. [ 16 ] In the result, McCarthy J set aside the decision in its entirety on account of the Board’s failure to follow the process set out in its bylaws.

He reiterated that “the Hockey Calgary bylaws and regulations, as they currently exist, do not give the Hockey Calgary Board the unilateral authority to eliminate members or retroactively - - or restrict community members boundaries so that the - - they no longer exist”: Reasons, p 5, l 40 - p. 6, l 2. [ 17 ] Following the decision, Hockey Calgary reverted to the former boundaries for the balance of the Covid-19 shortened 2019- 2020 hockey season. Lake Bonavista and the Midnapore Mavericks did, however, agree to merge to form the Knights Hockey Club.

The April 30, 2020 Boundary Revision Decision [ 18 ] The second boundary revision decision, the decision under review in these proceedings, is dated April 30, 2020. This decision implicated CKE, as well as other communities, including Douglasdale, previously affiliated with Bow Valley and now part of Blackfoot. [ 19 ] The Operations Committee, consisting of the President or their designate of each of the member hockey associations, as well

as the Female Hockey, Rec Hockey and 4 Elite programs, met on August 26, 2019. The Committee unanimously passed a motion to move to a larger association size model with the target size of between 900 and 1100 players per hockey association. The motion included a commitment on the part of each Association to “actively engage in the conversation and be open to new ideas and possibilities”.

The Operations Committee also directed Kobelka to, amongst other things, “set up meetings with Glenlake and Southwest to re-consider the move of CKE to Southwest”: Kobelka Affidavit at para 33. [ 20 ] The Operations Committee met again on December 9, 2019, at which time the Committee was presented with a draft of proposed boundaries for the 2020-21 hockey season based on 11 hockey associations at the 900-1100 player level. The proposal included moving CKE to Southwest.

According to Kobelka, Glenlake was not supportive of moving the 72 players from CKE to Southwest, but did not advance any alternatives for consideration. [ 21 ] The Operations Committee met again on March 9, 2020. Boundary recommendations for the 2020-21 hockey season were circulated in advance of the meeting.

As set out at paragraph 44 of the Kobelka affidavit, the proposal set out the following commentary with respect to CKE: Southwest-Glenlake/Southwest Discussion is around the moving of the CKE community to Southwest Association Glenlake is 2nd largest Association in HC and continues to grow, much like Bow Valley they are close to the maximum range as outlined by the Operations Council recommendation of 900-1100 players, (1083 community players) Geographically CKE is best fit to move to Southwest, with many other sporting programs aligning to portion of the Southwest boundary Southwest had 2nd largest drop in registration this past year at -6.8% and are now at the low end of the 900 registration recommendation (914 community players) Recommendation #4 The CKE Communities become part of the Southwest Association effective the 2020-21 playing season with the following caveats: -all players entering into the Midget Age Division (U-18) are grandfathered to Glenlake -Players currently in Pee Wee (U-13) and Bantam (U-13) will have the option to be grandfathered.

Members will have a 3-week period to exercise their grandfather rights prior to the official opening of registration for the 20-21 season (dates TBD) o [sic] If the family does not exercise these rights in the time frame agreed upon then they will be designated to the Southwest Association -All current Initiation, Novice and Atom players must go to the Southwest Association o[sic] Families with siblings in Pee Wee, Bantam, and Midget, can request to be grandfathered as a family -All future hockey participants ‘MUST’ go to the Southwest Association [ 22 ] The boundary change recommendations were set for a vote at the April 13, 2020, meeting of the Committee.

Members of the Committee were asked to submit any feedback or amendments to the boundary change recommendations by March 16, 2020. [ 23 ] On March 13, 2020, the 2019-20 hockey season was cancelled on account of the Covid-19 pandemic. On March 15, 2020, the Glenlake President, Chris Brett, sought and obtained an extension of the March 16 th deadline to March 30 th .

On March 30 th , Brett advised that Glenlake was considering advancing a motion at the April meeting that would postpone by one year the decision with respect to the CKE and Douglasdale proposed changes, but allow the other two boundary changes to go forward. He also proposed that the grandfathering provisions for the CKE communities be extended to second year Atom players and to the children of existing board members.

Brett’s proposal with respect to the grandfathering of additional CKE players was included in the material circulated to the members of the Operations Committee in advance of the April 13 th meeting. [ 24 ] Brett was subsequently advised that the historic grandfathering provision in relation to the families of board members would apply, but that extending the grandfathering provision to second year Atom players would require approval by the Operations Committee. [ 25 ] At the April 13, 2020, meeting, Brett’s proposal to delay the consideration of some of the boundary changes did not receive the support of the Operations Committee.

In four separate motions, the Committee approved the recommended boundary changes. Three of the motions were approved unanimously with some abstentions. The motion relating to moving CKE to Southwest was supported by 16 members, while two members voted against the motion and three others abstained. [ 26 ] On April 20, 2020, Brett submitted a request that all CKE players be given a one-year option to stay in Glenlake.

This request was included in the materials sent to the members of the Board in advance of their April 27 th meeting. [ 27 ] On April 22, 2020, legal counsel for CKE sent an email requesting that all CKE players be given a one-time option to stay with Glenlake. This proposal was forwarded to the members of the Board in advance of their scheduled meeting on April 27th. On April 22, 2020, the Chair of the Board received communication from legal counsel for CKE seeking to have the Board allow the grandfathering of all current CKE players.

Karen Pirie, the Chair of the Board, responded by way of email dated April 23, 2020, confirming that the Board would consider the recommendations made by the Operations Committee. [ 28 ] On April 27, 2020, the Board approved the boundary review recommendations made by the Operations Committee. At Hockey Calgary’s Annual General Meeting held on June 25, 2020, a resolution to accept and implement the recommended boundary changes was passed. Seventeen of the nineteen member associations present at the AGM voted in favour of the resolution, while two

associations abstained, including Glenlake. Issues [ 29 ] The following issues arise for determination in these proceedings:

a) Following the Supreme Court’s recent decision in Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 , does this court have jurisdiction to grant the relief sought by the Applicants? In other words, have the Applicants demonstrated an underlying legal right upon which to ground their claim for relief?

b) Can the Applicant add Jeremy Thal as an applicant to this action, both on his own behalf and also in a representative capacity on behalf of members of CKE, Glendale and Hockey Calgary? Can CKE bring this application on its’ own behalf and in the capacity of representatives of CKE families affected by the boundary revision decision?

c) Does CKE have standing to bring this application?

d) Can Thal bring this application in a representative capacity on behalf of members of CKE, Glendale and Hockey Calgary?

e) Did Hockey Calgary have the authority under its bylaws or regulations to make the boundary revision that moved CKE from the Glenlake to the Southwest Hockey Association?

f) If Hockey Calgary did have the authority under its’ bylaws or regulations to make the boundary revision, do the Applicants have standing to seek an oppression remedy under the Business Corporations Act? Analysis The Supreme Court’s Decision in Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga, 2021 SCC 22 [ 30 ] On May 21, 2021, the Supreme Court released its decision in Aga Orthodox Tewahedo Church of Canada St Mary Cathedral v Aga , 2021 SCC 22 .

Given the decision’s possible impact on the within matter, counsel were invited to make written submissions regarding the application, if any, of this decision. Further written submissions were received from counsel for the Applicants on June 7, 2021, and from counsel for the Respondent on June 8, 2021. Reply submissions were received from counsel for the Applicants on June 11, 2021. [ 31 ] In Aga , a group of five church parishioners were expelled from the Ethiopian Orthodox Tewahedo Church of Canada St Mary Cathedral.

They applied to the Ontario Superior Court seeking, amongst other things, a declaration that their expulsion was null and void as it violated the principles of natural justice. In support of their application, the parishioners alleged that the leadership of the church failed to follow the church’s own constitution and bylaws in expelling them from the organization. [ 32 ] The church and its senior leadership responded by seeking

summary judgement to have the action dismissed. In arguing that the court lacked jurisdiction to set aside their expulsion, they contended that there is no freestanding right to procedural fairness and that the Applicants had no underlying legal right upon which to ground their claim. [ 33 ] The Ontario Superior Court dismissed the application on the basis that the expelled members failed to establish an underlying legal right.

However, the Ontario Court of Appeal reversed on the basis that the churches bylaws and constitution constituted a contract setting out the respective rights and obligations of the organization and its members. Combined with the monetary contributions to the church made by the parishioners, the Court of Appeal concluded that there was an enforceable contract between the church and its members. [ 34 ] Writing for the Supreme Court, Rowe J allowed the appeal and dismissed the parishioners’ application, finding that the Court did not have jurisdiction to entertain the matter.

He determined that the jurisdiction of the court “to intervene in the affairs of a voluntary organization depends on the existence of a legal right which the court is asked to vindicate”: at para 3. He went on to find that while voluntary associations with constitutions and by-laws may be constituted by contract, in this instance there was no evidence of an objective intention to enter into legal relations.

In the absence of a contract, he concluded that the court had no jurisdiction to intervene and, further, that there was no genuine issue for trial. [ 35 ] The decision in Aga includes a helpful discussion regarding the nature of voluntary associations and the mutual undertakings or “agreements” that are routinely entered into between friends, family members and individuals coming together in voluntary associations. At para 23-24, the Court held: ... Such associations are vehicles to pursue shared goals.

To this end, many such associations will have rules, sometimes even a constitution, bylaws and a “governing” body to adopt and apply the rules. These are practical measures by which to pursue shared goals. But they do not in and of themselves give rise to contractual relations among the individuals who join. The members of the local minor hockey league, or a group formed to oppose development of green spaces, or a Bible study group, for example, do not enter into enforceable legal obligations just because they have joined the group with rules that members are expected to follow.

The practical wisdom embodied in the common law is that much of what we agree to in our day-to-day lives does not result in a contract. Where there is no contract, or other obligation known to law, there is no justiciable interest and no cause of action.

[36] The Court in Aga created a new framework for the determination of whether a court has jurisdiction in cases involving avoluntary association. At para 31, the Court set out the applicable test in the following terms: The question to be answered in a given case is not whether the voluntary association exercises legal rights in general, but whether theparticular relief sought by the plaintiff is the vindication of the legal right.

If not, then there is simply no cause of action (Wall, at para.13) and no basis for relief. [37] Subsequently, at para 49, Rowe J summarized: In sum, courts can only intervene in the affairs of a voluntary association to vindicate a legal right, such as a right in property or contract.Membership in a voluntary association is not automatically contractual. Even a written constitution does not suffice. Membership iscontractual only where the conditions for contract formation are met, including an objective intention to create legal relations.

Such anintention is more likely to exist where property or employment are at stake… [38] The Court in Aga recognized that the circumstances that may give rise to an intention to create legal relations will vary fromcase to case. As such, it noted that “[T]he local stamp club or bridge night might have rules, but without more, nobody would supposethat the members intend them to be legally enforceable”: at para 39. However, as previously noted, the Court went on to note that anobjective intention to create legal relations is more likely to exist where property or employment is at stake.

Likewise, it suggested that itwould be more difficult to show an objective intention to create legal relations in the religious context: at para 40-41. [39] In Aga, the Court offered examples of circumstances in which courts do not have jurisdiction to intervene relative to voluntaryorganizations. Referring to the Court’s earlier decision in Wall, Rowe J noted that the courts had no jurisdiction to decide whether Wallhad been properly expelled from the church “because there was no legal right attached to the plaintiff’s membership in his religiouscongregation”: at para 29.

Likewise, referring to the Alberta Court of Appeal’s decision in Zebroski v Jehovah’s Witnesses (1988), 1988ABCA 256 , 87 AR 229 (CA), Rowe J noted that the appellant in that instance could not establish a property interest viavoluntary labour and other contributions made to the church. [40] I do not accept the Applicants’ contention that the Supreme Court’s decision in Aga is restricted to religious associations ororganizations. The underlying facts in Aga obviously involved a religious entity.

While the Court recognized the unique circumstancesassociated with religious organizations, I read the general principles articulated in the decision as being of general application to othervoluntary associations. In my view, this is clear from the Court’s reference to various other types of voluntary associations, including“the local minor hockey league”: at para 23.

As such, the requirement to demonstrate an objective intention to create legal relationswould seem to apply to all voluntary associations. [41] I also do not accept the Applicants’ suggestion that both Aga and Highwood Congregation of Jehovah’s Witnesses (JudicialCommittee) v Wall, 2018 SCC 26, are procedural fairness cases and, by implication, somehow have limited application in this instance.While I agree that both Aga and Wall considered the existence of a freestanding right to procedural fairness, they both also explored theissue of justiciability, ie. whether the subject matter of a dispute is appropriate for a court to decide.

In my view, both decisions providesignificant guidance in terms of the resolution of this matter. [42] The Applicants also seek to distinguish this case from Aga on the basis that Hockey Calgary, Glenlake and CKE are allsocieties incorporated under the Societies Act, whereas only the church was incorporated under the Business Corporations Act ofOntario, in the Aga case. The Applicants do not elaborate on the significance of this factual distinction. In my view, this is simply part ofthe factual underpinning of this matter.

The fact that a number of incorporated societies interact with one and other does not in and ofitself point to an objective intention to create legal relations. It is simply one factor to be considered. [43] In Wall, the Supreme Court signalled caution in courts becoming involved in cases that would, citing Syndicat Northcrest vAmselem, 2004 SCC 47, “unjustifiably entangle the court in the affairs of religion”: at para 36. In Wall, Rowe J, the same justice whopenned the Court’s decision in Aga, explained the concept of justiciability. In my view, his comments are instructive in considering thewithin matter.

At paras 32-35: … In addition to questions of jurisdiction, justiciability limits the extent to which courts may engage with decisions by voluntaryassociations even when the intervention is sought only on the basis of procedural fairness. Justiciability relates to the subject matter ofthe dispute. The general question is this: Is the issue one that is appropriate for a court to decide? Lorne M. Sossin defines justiciability as: a set of judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life.

Inshort, if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if the subject-matter is held not to besuitable for judicial determination, it is said to be non-justiciable. (Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd ed. 2012), at p 7. Put more simply, “[j]usticiability is about deciding whether to decide a matter in the courts”: ibid., at p. 1. There is no single set of rules delineating the scope of justiciability.

Indeed, justiciability depends to some degree on context, and theproper approach to determining justiciability must be flexible. The court should ask whether it has the institutional capacity andlegitimacy to adjudicate the matter: see Sossin, at p. 294.

In determining this, courts should consider “that the matter before the courtwould be an economical and efficient investment of judicial resources to resolve, that there is a sufficient factual and evidentiary basis forthe claim, that there would be an adequate adversarial presentation of the parties’ positions and that no other administrative or politicalbody has been given prior jurisdiction of the matter by statute” (ibid.).

By way of example, the court may not have the legitimacy to assist in resolving a dispute about the greatest hockey player of all time,about a bridge player who is left out of his regular weekly game night, or about a cousin who thinks she should have been invited to a

wedding” Court of Appeal reasons, at paras 82-84, per Wakeling J.A. [ 44 ] At para 31 of Wall , Rowe J acknowledged that the actions and decisions of a voluntary organization may have an adverse or negative impact on those involved in some fashion with the organization. In that regard, he observed: This is not to say that the [society’s] actions had no impact on [the respondent]; I accept his testimony that it did. Rather, the point is that in the circumstances of this case, the negative impact does not give rise to an actionable claim.

As such there is not basis for the courts to intervene in the [society’s] decision-making process; in other words, the matters in issue fall outside the courts’ jurisdiction. [ 45 ] In this instance, I acknowledge that the CKE boundary change may have an adverse impact on the affected hockey players and their families. It is certainly clear from the various affidavits that have been filed in these proceedings that a number of parents strongly believe that this will be the case.

However, as Rowe J observed in Wall , negative impact on its own does not give rise to an actionable claim. [ 46 ] Justice Rowe went on to address the issue of religion relative to the question of justiciability. He noted that Abella J held in Bruker v Marcovitz , 2007 SCC 54 , that courts should not decide matters of religious dogma.

Similarly, he referred to the Court’s decision in Amselem , wherein Iacobucci J for the majority held (at para 50), that “secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the courts in the affairs of religion.” At para 36 of Wall , Rowe J concluded that “[T]he courts have neither legitimacy nor institutional capacity to deal with such issues, and have repeatedly declined to consider them. [citations omitted]” Finally, at para 39, he concluded that: “[I]n the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.” [ 47 ] While it is clear that the Supreme Courts decisions in Aga , Wall , and other related decisions involve religious voluntary associations, I interpret the decision in Aga as signaling caution to trial courts in assuming jurisdiction relative to internal disputes arising within voluntary organizations, generally.

The religious context of all of these decisions is clear and, as such, serves to underscore the fact that religious voluntary organizations may well occupy a separate and distinct category of voluntary organizations. However, I am satisfied that the decision in Aga must be given broad application given the Court’s repeated reference to voluntary organizations that do not have a religious foundation. [ 48 ] The Applicants maintain that there is substantial evidence of an objective intention to create legal relations between the Applicants and Hockey Calgary. The Applicants advance a number of arguments.

First, the Applicants refer to the fact that Hockey Calgary is an incorporated society under the Societies Act , and subject to its established Bylaws and Regulations. The Applicants suggest that the Bylaws and Regulations of Hockey Alberta form some of the contractual terms between itself and dues-paying families. [ 49 ] Second, they point to the fact that they pay annual membership dues to Glenlake, their community hockey Association, with the knowledge that these dues will be paid to Hockey Calgary.

As such, the Applicants maintain that Hockey Calgary accepts membership fees from its member community hockey associations with the knowledge that these fees come from hockey players and their families. [ 50 ] Third, the Applicants refer to the fact that certain of their members contribute volunteer time to their local hockey associations. [ 51 ] Fourth, the Applicants say that the Bylaws and Regulations of Hockey Calgary, Hockey Alberta, and Hockey Canada, confirm player and parent rights relative to decisions taken by hockey’s governing bodies.

According to the Applicant, these bodies have obligations that are owed to the families who pay player registration dues. [ 52 ] Finally, the Applicants say that they relied on representations and other information posted on Hockey Calgary’s website to the effect that children would play hockey based on the community in which they reside, and that Hockey Calgary would entertain applications to permit children to play in a different community through a “player release” process. [ 53 ] The Respondent, on the other hand, relying on para 31 in Aga , says that the Applicants do not have any legal rights relative to Hockey Calgary, either arising by way of contract, by the Societies Act , or otherwise at law, that entitles them to the relief they seek.

Neither CKE nor Thal are members of Hockey Calgary. The relevant member of Hockey Calgary is Glenlake to which both CKE and Thal legitimately claim some form of association. However, the Respondent contends, that does not make them members of Hockey Calgary. [ 54 ] The Respondent maintains that there is no evidence of any mutual intention as between Hockey Calgary and the Applicants to create any rights related to hockey boundaries. Evidence of subjective intention of some parents relied upon by the Applicants is not evidence of objective mutual intention.

a) Objective Intention to Create Legal Relations [ 55 ] The Applicants maintain that Hockey Calgary’s public advertisement on its website seeking interested hockey players constitutes an “offer” from a contract analysis perspective. Players “accept” this offer by signing up to play hockey with their community hockey association. The Applicants say that the “consideration” requirement is met by the Applicants paying registration fees to their community hockey association in return for the opportunity to play hockey.

According to the Applicants, prospective hockey players are aware that their fees go to Hockey Calgary. Hockey Calgary, in turn, is aware that the fees are coming from players and their families. The Applicants maintain that the combined effect of all of these key contractual elements demonstrate an objective intention to create legal relations. [ 56 ] In addition to evidence of offer, acceptance, and consideration, the Applicants also point to point to the contents of the Hockey Calgary bylaws and regulations as providing certainty of some contractual terms. Further, the Applicants maintain that an objective

intention to create legal relations can be gleaned from the “consideration” provided through voluntary contributions of labour and the fact that the bylaws and regulation impose some obligations on participants. Each of these arguments is addressed below. [ 57 ] In my view, classic contract theory holds that public advertisement of a product or service is generally regarded as an invitation to treat, not a formal “offer” for contract purposes.

While this general rule admits of exceptions, notably situations involving unilateral contracts, as most famously illustrated by the decision in Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (CA) . Whether a public advertisement amounts to an offer or merely an invitation to treat is dependent upon the language actually employed and the surrounding circumstances. [ 58 ] More recently, in Roback v University of British Columbia , (2007) 277 DLR (4 th ) 901 (BCSC), Koenigsberg J held (at p 607): In the present case, the advertisement was not meant to induce specific performance such as reward cases do.

Nowhere in the advertisement does the University promise anything or make any representations relating to the hiring process. The clear purpose of the advertisement was to invite applications: “The Department of Creative Writing invites applications for a tenure-track appointment at the Assistant Professor rank commencing July 1, 1995.” The advertisement was an invitation for expressions of interest.

Unlike Carlill v Carbolic Smoke Ball Co ., the advertisement does not provide a sufficient basis to ascertain the essential terms of a contract. [ 59 ] In my view, Hockey Calgary’s public advertisement is simply an invitation that it extends on behalf of its member organizations for interested young people to join their local hockey organization to play hockey in a city-wide organization. The “offer” is actually the submission by the player by his or her application, accompanied by the prescribed fee, the “consideration” requirement of the contract.

The “acceptance” lies in the individual hockey association’s receipt of the application and fee, and in providing the player a place on a team and the opportunity to participate in a structured hockey

schedule for the upcoming year. [ 60 ] What this traditional contract analysis relevels is that all of the dealings and interactions are between the players, their families, and the community hockey association, not between players and Hockey Calgary. Even assuming that any objective intention to create legal relations exists in this scenario, I am of the view that the parties to such a contract would be the individual player and his or her community hockey association. In this instance only Hockey Calgary is named as a Respondent in this proceeding.

As such, it is not necessary for me to decide whether a legally enforceable contract exists as between a hockey player and his or her community hockey association.

However, based on Aga , I am inclined to the view that no such intention to create legal relations can be found in these circumstances involving children and young adults playing recreational hockey. [ 61 ] I am satisfied that the players and their families are not members of Hockey Calgary, notwithstanding the fact that Hockey Calgary, an umbrella organization comprised of its various member hockey associations, provides an oversight and coordinating function for all of the community hockey associations in Calgary.

As more fully explained later in these reasons, the Hockey Calgary bylaws clearly exclude such broad membership. Moreover, individual players and individual community associations have no independent legal relationship with Hockey Calgary that could give rise to a legal right amenable to vindication. It follows, in my view, that no objective intention to create legal relations can be found relative to the Applicants and Hockey Calgary.

b) Hockey Calgary accepts membership fees from member hockey associations with full knowledge that these fees come from hockey players and their families [ 62 ] On the evidence before me, it seems clear that Hockey Calgary is an umbrella organization that facilitates and coordinates city-wide hockey activities for children and young people registered to play hockey through their community hockey organizations.

The by-laws of Hockey Calgary make it clear that its’ membership consists of local hockey organizations, not every child or adolescent (or their respective parents) who elect to pay fees in order to join their local hockey organization so that they can play hockey.

There is no evidence that Hockey Calgary ever manifested an intention to enter into a legal relationship with every single child or adolescent who registers to play hockey in Calgary. [ 63 ] It is also clear that individual hockey players pay an annual fee to Glenlake to become, by virtue of the Glenlake Bylaws, a registered member of Glenlake along with every other registered hockey player, as well as the communities of South Calgary, Lakeview, North Glenmore Park and the Canadian Forces base.

Glenlake, like the other member hockey associations, pays a fee to Hockey Calgary to run programs, pay for ice time and referees and, amongst other things, to create hockey schedules. [ 64 ] However, the fact that Hockey Calgary accepts a fee from its member hockey associations does not create legal relations between Hockey Calgary and individual players or their families. As set out above, any legal relationship possibly arising in such circumstances would be between the player and the community hockey association accepting his or her registration fee.

Similarly, the players and their families are not members of Hockey Calgary simply because Hockey Calgary receives funds from the member community hockey associations. [ 65 ] I agree with the Respondent that the fees paid by a player’s family to Glenlake does not create a legal relationship between that player, his or her family, and the Glenlake Community Hockey Association, let alone Hockey Calgary.

c) CKE community members contribute volunteer time to the local community hockey association [ 66 ] The Applicants appear to place significant emphasis on the fact that various CKE residents, including the Applicant Thal, contributed significant volunteer hours in support of their children’s involvement in community hockey. A number of the affidavits filed by the Applicants described in some detail the extent of the commitment of these CKE residents as community hockey volunteers.

In their supplementary written submissions, the Applicants contend that this volunteer time to Glenlake by CKD resident was “with the expectation that their children would be allowed to continue playing there, which is further consideration”: Applicants’ Supplementary Brief, para 29.

[ 67 ] With respect, I do not accept that the evidence filed by the various CKE hockey volunteers supports the existence of any such expectation. None of the referenced affidavits make mention of any connection between the affiant’s decision to volunteer and any hope that their children would be able to indefinitely continue to play for Glenlake. Likewise, the existence of such an expectation cannot, in my view, reasonably be inferred from any of these affidavits.

Rather, what this evidence supports is a conclusion that these CKE parents demonstrated their support for their children’s participation in community hockey by volunteering significant amounts of time to the hockey association to which their children were affiliated at the time. [ 68 ] The essence of volunteerism excludes the notion of any concrete return or reward other than the satisfaction of having contributed to a worthy community undertaking.

It follows that I do not accept the Applicants’ suggestion that the voluntary activities of any of the CKE parents, as set out in their affidavits, somehow amounts to part of the “consideration” as between players and their families and Hockey Calgary.

d) Hockey Calgary’s bylaws create appeal rights that recognize its legally enforceable obligations owed to dues paying families [ 69 ] The Applicants refer to the ability of parents and players to “appeal” decisions up the minor hockey organizational chain that includes Hockey Calgary, Hockey Alberta and Hockey Canada.

According to the Applicants, this is “in recognition of the fact that the associations owe the dues-paying families certain obligations, and that these obligations ought to be enforceable, and contestable when not fulfilled”: Applicants’ Supplementary Brief, para 26. [ 70 ] The Applicants points to what is described as a communications flowchart that precedes the listing of regulations in Hockey Calgary’s Regulation Handbook (effective June 2019).

Under the heading “Communication Process”, it states: The following communication flowchart applies to all streams of hockey within the area known as Hockey Calgary (Calgary and Springbank) or Hockey Alberta Zone 9. It is meant to clarify and facilitate communication channels throughout the Hockey Calgary organization. The right to appeal decisions(

s) rendered at any point throughout the process to the next applicable level of authority exists. [ 71 ] What follows is a schematic flow chart that illustrates the previously described communication process.

It begins with parent/players; followed by Coach/Manager; Local Association Representatives; Hockey Calgary (League Chair); Hockey Calgary (Age Category Governor., Council Chair, Game & Conduct Coordinator); Hockey Calgary (Directors, Staff, Appeals Committee); Hockey Alberta; Hockey Canada. [ 72 ] This communication flowchart, properly construed, is a vehicle designed for communication within a large voluntary organization and for the informal resolution of disputes that may arise in the ordinary course of operations.

In my view, the reference to a right to “appeal” decisions taken at any level within this organization is formal recognition of the fact that disagreements and disputes will inevitably arise in any group of individuals coming together to undertake a shared activity. The fact that Hockey Calgary created an informal mechanism for dispute resolution does not lead to the conclusion that Hockey Calgary intended the creation of legal relations with every parent, player, coach, manager, local Association Representatives, Hockey Alberta, or Hockey Canada.

In my view, an objective intention to create formal legal relations cannot, without more, be found in such a communications statement. [ 73 ] The Applicants then refer to the Hockey Alberta Regulations dealing with appeals, Appendix VI “Appeals”. The opening words of this

section provide that: Hockey Alberta provides the opportunity for any Member MHA [Minor Hockey Association], Member Hockey Team, Player, Team Official, or Official that is dissatisfied with the decision or ruling, in whole or in part, made pursuant to the Bylaws, Rules and Regulations, to have the right of appeal. [ 74 ] The first

section of Appendix VI deals with First Stage Appeals in the following terms: The Appeals Committee shall determine whether or not an appeal can be heard and hear those appeals as outlined below, adjudicating on the issues arising from the appeal. Issues that can be appealed at the first stage of appeal are:

a) A decision of the Chief Executive Officer (CEO), or designate, including formal decisions (made in writing) by an Operational Committee, Volunteer and/or staff member; or

b) A decision of a member Minor Hockey Association, Club Team or sanctioned League, including formal decisions (made in writing) by any of the above-named organizations at the Minor, Junior, and/or Senior divisions of hockey, provided all Appeals at the local level have been exhausted. Decisions being appealed must arise from the Rules and Regulations of Hockey Alberta. Decisions, involving registered participants that fall outside the realm of registration, suspensions, player movement, etc. are not appealable.

Additionally, decision such as conduct violations of parents are local issues that do not arise within the Hockey Alberta rules and regulations and therefore will not be heard. [ 75 ]

Section 8 of Appendix VI specifies that all member minor hockey associations, member hockey teams, players, team officials, or officials, “shall accept as final and binding the decisions of the Board, including, without limiting the generality of the foregoing, the Board’s

interpretation or construction of the Rules, Regulations and Bylaws subject only to a right of Appeal to Hockey Canada as provided for in the Bylaws of Hockey Canada.” Finally,

Section 11 stipulates that “recourse to the law courts of any jurisdiction before all rights and remedies as provided by these Bylaws and the Bylaws of Hockey Canada have been availed and utilize, shall be prohibited.” [ 76 ] The Applicants’ reliance on the Hockey Alberta regulations must be viewed in light of the fact that Hockey Alberta is not named as a party to these proceedings. While a player may have a right of appeal to Hockey Alberta in certain circumstances, the Applicants fail to demonstrate how this gives rise to, or otherwise confirms, the existence of a contractual relationship with Hockey

Calgary. [ 77 ] Further, the Hockey Alberta regulations do not create appeal rights for community associations, such as CKE, or parents or other family members, such as the Applicant Thal. The regulation only makes reference to member hockey associations, member hockey teams and players.

In my view, this undermines the Applicants’ contention that the Hockey Alberta regulations somehow support the existence of a contractual relationship between a hockey organization, either Hockey Alberta or Hockey Calgary, and a community association or a hockey parent acting on his or her own behalf or in a representative capacity.

The Applicants have failed to persuade me that this branch of their argument supports the existence of an objective intention to create legal relations between the actual parties in these proceedings. [ 78 ] The Applicants also rely on certain provisions in the Rules and Regulations of Hockey Alberta and Hockey Canada which, the Applicants suggest, impose obligations on players and other officials involved in minor hockey amounting to contractual terms.

By way of example, the Applicants point to the Hockey Calgary by-law requirement that all players register with Hockey Alberta and agree to abide by the Rules and Regulations of Hockey Alberta and Hockey Canada.

The Applicants also point to the Hockey Calgary regulation that directs that liability insurance is mandatory for all players and other officials. [ 79 ] While the existence of rules, obligations or duties set forth in the bylaws or regulations of an organization may evidence the existence of a contract, the Court in Aga urged caution in assuming the existence of a contract based on a constitution, bylaws, and the existence of a governing body to apply rules: at para 24.

In my view, like the bridge or stamp club examples cited in Aga , the fact that all of Hockey Calgary players agree to be bound by a common set of rules does not evidence in this instance an underlying objective intention to create legal relations. [ 80 ] The final argument advanced by the Applicants relate to what they describe as the representation on the Hockey Calgary website regarding the availability in certain circumstances of a “player release” process to allow children to play hockey with a community hockey association other than their home hockey association.

According to the Applicants, this option was eliminated by Hockey Calgary as an option during those years marked by boundary changes. [ 81 ] It is clear from the vast materials filed in this matter that certain CKE residents feel aggrieved by the boundary change that resulted in children and young people from those communities being required to play in the Southwest Hockey Association.

It is equally clear that many of these same CKE residents feel aggrieved by the fact that Hockey Calgary made the decision to suspend the operation of the “player release” program otherwise available other than during years involving a boundary change. However, the issue before the court is not whether some CKE residents agree or disagree with the decisions taken by Hockey Calgary in this regard. Rather, the issue to be determined is whether or not the Applicants have legal rights that might be vindicated by the court in this instance.

In my view, no such rights exist. [ 82 ] While I am sympathetic to the Applicants’ obvious disappointment resulting from Hockey Calgary’s decision to make certain adjustments to the boundaries of its member associations, disappointment, inconvenience and even modest disruption to some community residents does not create legal rights to be vindicated by a court.

As such, I agree with the Respondent that it is necessary to examine the specific remedies being sought by the Applicants in this instance and then to ask whether or not any of these remedies can be properly connected to rights that a court can vindicate. [ 83 ] The remedies sought in this instance are as follows:

a) An order declaring the CKE relocation to be invalid, void or ultra vires ;

b) An order quashing the CKE relocation as being made in breach of the articles, objects, bylaws, rules, regulations, policies, mission statements and other governing documents of Hockey Calgary, Hockey Alberta and/or Hockey Canada;

c) A declaration that the CKE relocation was made in breach of Hockey Calgary’s contractual relationship with its members;

d) An order directing Hockey Calgary to permit all children who played with Glenlake in the 2019-2020 season, and who are affected by the CKE Relocation, the option to be grandfathered and to remain with Glenlake for the 2020 – 2021 season;

e) An order directing that Hockey Calgary shall grant Player Releases to the CKE children for the 2020-2021 hockey season, permitting them to continue to play for Glenlake;

f) An order directing that Hockey Calgary must continue to consider the “community ties” criteria in its player release process for the 2020-2021 hockey season. [ 84 ] I am satisfied that the Applicants have no legally enforceable right to challenge Hockey Calgary’s boundaries or to limit decision-making when boundary review is underway. As such, I accept the Respondent’s argument that local communities and parents of players who play on teams that form part of Hockey Calgary have never been asked to consent or to approve any boundary change proposals.

Nowhere in the decision of McCarthy J is there any suggestion that any community association or individual parent must consent to a boundary revision. [ 85 ] If a parent wants their child to play for Glenlake, they must live within the current Glenlake boundaries as defined from time to time by Hockey Calgary. As set out in his affidavit, Thal moved to Kelvin Grove in order to enable his children to play for Glenlake. If he wishes that to continue, unfortunately he will have to move again or seek relief through the player release option. Otherwise, his children are required to play for Southwest.

Thal has no legal right to veto any boundary changes to Glenlake that may impact where his children play hockey in the future. Again, while I am sympathetic to the impact of the boundary change on Thal and other parents similarly situated, I agree with the Respondent that the decision to live in a CKE community, regardless of the reason for that decision, does not create a legal relationship with Hockey Calgary. [ 86 ] The Applicants have failed to persuade me that the requested remedy of declaring the CKE relocation to be invalid, void or

ultra vires relates to any legal right held by the Applicants. [ 87 ] The Applicants’ next request is for an order quashing the CKE relocation as having been made in breach of its’ governing documents. [ 88 ] Later in these reasons, I outline the basis for my conclusion that the CKE relocation is not ultra vires the Board of Hockey Calgary. My reasons also include an explanation for my conclusion that the Applicants lack standing to challenge the CKE relocation decision. I am, accordingly, satisfied that the Applicants have not established a legal foundation upon which to seek such a remedy.

In other words, the Applicants do not have a legal right to challenge Hockey Calgary’s boundary decisions. CKE and Thal have no claim to the rights held exclusively by member associations. Likewise, CKE and Thal have no right to enforce the rights of Glenlake on behalf of Glenlake when Glenlake is neither named as a party nor took any steps to assert any rights that it may hold in these circumstances. [ 89 ] As outlined above, the Applicants seek a declaration that the CKE Relocation was made in breach of its contractual relationship with its members.

Given my conclusion that the Applicants are not members of Hockey Calgary, and do not have a contractual relationship with Hockey Calgary, it necessarily follows that the Applicants cannot seek a remedy that conceivably only belongs to a Hockey Calgary member. [ 90 ] The next three remedies sought by the Applicants relate to discretionary powers held by the Board or the Executive Director of Hockey Calgary relating to “player releases” and the so-called “grandfathering” provisions that serve to suspend in certain circumstances the strict enforcement of the requirement that players be assigned to teams within their home hockey association. [ 91 ] I accept the Respondent’s contention that each of these requests amounts to an attempt by CKE and Thal to remove or fetter the discretionary powers held by the Board or the Executive Director of Hockey Calgary, and not a request for the vindication of a legal right.

Amendment of the grandfathering provisions is properly a matter left to Hockey Calgary. It is noteworthy in this regard that the President of Glenlake sought and obtained certain grandfathering provisions to the benefit of certain CKE players after the boundary revision was approved. [ 92 ] Player Releases are, similarly, discretionary decisions made by the Executive Director. I agree with the Respondent that there is no right vested in CKE or Thal to predetermine, or otherwise fetter, the decision of the Executive Director.

In my view, there is no enforceable right to a release of a player in any given situation, or a right to be “grandfathered” in any given situation. Any “right” that could be said to exist would be limited to the “right” to have such a request considered and determined. [ 93 ] Before concluding, I would observe that one of the challenges in conducting a so-called Aga analysis is that none of the actual members of Hockey Calgary has asked this court to determine how it’s relationship with Hockey Calgary fits within the Aga framework.

Rather, a group of stakeholders in a member hockey association invite this court to consider whether an objective intention to create legal relations between them and Hockey Calgary can be found in this instance. If nothing else, as a procedural matter, the “primary” issue regarding the nature of the relationship between Hockey Calgary and its actual members should, in my view, be addressed first.

The answer to that question would, I suggest, inform the analysis of the “secondary” question as regards the nature of the relationship between Hockey Calgary and admittedly legitimate individual stakeholders in a member association, none of whom are actually Hockey Calgary members themselves. [ 94 ] For the reasons outlined above, I am satisfied that the Applicants are seeking remedies in this instance with regard to which they have no substantiating legal right, either under private law or statute. As such, this court has no jurisdiction to hear this matter and no authority to intervene to resolve this dispute.

The Amended Originating Notice is, accordingly, dismissed. [ 95 ] In the event that I am wrong in dismissing the Amended Originating Notice on the basis of an Aga analysis, I will go on to examine the preliminary applications raised by both parties and then to consider the application on its merits. The Preliminary Applications [ 96 ] Each of the parties raise a preliminary application in this proceeding, neither of which were before the court when it accepted the parties’ proposal to have this matter set down for a half day special application.

First, Hockey Calgary challenges the standing of Chinook Park, Kelvin Grove and Eagle Ridge Community Associations to bring this application on the basis that they are not members of the Hockey Calgary. Second, in response to the Respondent’s challenge to their standing, CKE filed an application on July 8, 2020, in which it seeks to amend the Originating Application to add Jeremy Thal as an applicant in this action and to act, along with CKE, “in the capacity of a representative of CKE families, who have a common interest in the subject of this application”.

a) Does CKE have standing to bring this application? [ 97 ] At the outset, I would note that the issue of CKE’s standing to challenge the boundary decisions taken by Hockey Calgary was also raised before McCarthy J during the 2019 court proceedings. [ 98 ] In his Reasons, McCarthy J also found that the Warriors and the Saints, both of which had been eliminated in the 2019 boundary revisions, had standing to challenge Hockey Calgary’s decisions regarding boundary changes. However, I would note that Hockey Calgary only challenged the standing of CKE.

It conceded that the Saints had standing and urged the court to find that the application by the Warriors was premature, an argument ultimately rejected by the Court.

With respect to the standing of CKE, McCarthy J held (at p. 3, l 18-20): With regard to CKE, I don’t think they do have standing with regard to the bylaws, but they may have standing with regard to the oppression remedy, but for reasons that follow, I’m not going to deal with that today. [ 99 ] The Applicants contend that they are affected by the Decision in that they will be required to switch from Glenlake to Southwest; that the will lose their investment of registration fees paid to Glenlake and Hockey Calgary; and that they will lose their

volunteer efforts, community ties and relationships within Glenlake. According to the Applicant, CKE has standing “as a member ofGlenlake”. Moreover, according to the Applicant, they are “obviously affected”, contrary to the narrow view of standing advocated bythe Respondent. [100] The Respondent, on the other hand, says that CKE is not a member of Hockey Calgary and not a member of any association thatis a member of Hockey Calgary. Further, the Respondent contends that CKE is not a member of Glenlake.

Rather the individual playerswho reside within any of the communities within the Glenlake boundaries, and who pay a fee, are registered members of Glenlake. Inthe result, the Respondent maintains that CKE has no justiciable legal relationship with Hockey Calgary. [101] The Respondent goes on to point out that both Glenlake and Southwest are members of Hockey Calgary. They are clearlyaffected by the 2020 boundary revision and, as such, would have standing to challenge the decision.

However, neither Glenlake norSouthwest are parties to this application. [102] The Respondent urges the court not to make a decision affecting non-parties in such circumstances. Further, the Respondentquestions whether CKE has the authority to represent all of the Glenlake players who may be affected by this decision.

According to theRespondent, the Applicant has not demonstrated that it has the authority to represent CKE residents who wish to remain with Glenlake orCKE residents who wish to play for Southwest. [103] Finally, the Respondent raises the issue of issue estoppel and res judicata on the basis that they say the issue of CKE’s standinghas already been determined by McCarthy J in his 2019 decision. [104] The by-laws of the Glenlake Minor Hockey Club, a society incorporated under the Societies Act on July 5, 1979, reveal thatonly the South Calgary Community Association, the North Glenmore Community Association, the Lakeview Community Associationand the Canadian Forces Base Calgary Community Association are members of the society.

The three community associations thatcomprise CKE have never been added as members. [105] On the evidence before me, I am satisfied that CKE is not a member of Glenlake Minor Hockey Club. While the affidavits ofboth Merritt Ranseth and Chris Brett suggest otherwise, they offer nothing other than a simple assertion of that fact without anysupporting documentation or proof. [106] In Angle v Minister of National Revenue, (SCC), [1975] 2 SCR 248, the Supreme Court outlined therequirements of issue estoppel.

At p 254, Dickson J (as he then was) for the majority, stated: Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2), at p 935 defined the requirements of issue estopped as: ... (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) thatthe parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raisedtheir privies… [107] The Supreme Court confirmed the three-part test in its decision in Angle in Danyluk v Ainsworth Technologies Inc, 2001 SCC44.

However, the Court also identified a residual discretion to determine whether issue estopped ought to be applied to the particularfacts of a given case. Binnie J, on behalf of the Court, held (at para 33): The rules governing issue estoppel should not be mechanically applied.

The underlying purpose is to balance the public interest in thefinality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are correspondingprivate interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditionsto the operation of issue estoppel set out by Dickson J in Angle, supra.

If successful, the court must still determine whether as a matter ofdiscretion, issue estoppel ought to be applied… (citations omitted) [108] In relation to prior court proceedings, as opposed to decisions of administrative agencies or tribunals – the situation in Danyluk– Binnie J noted that the Supreme Court in General Motors of Canada Ltd v Naken, (SCC), [1983] 1 SCR 72, observedat p 101 that “such a discretion must be very limited in application”. However, he went on to endorse the words of Finch JA in BritishColumbia (Minister of Forests) v Bugbusters Past Management Inc

(1998) CanLII 6467 (BCCA), at para 32: Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issueestoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicialdiscretion to achieve fairness according to the circumstances of each case [109] I am satisfied that the three requirements of issue estoppel have been met in this instance.

First, I am satisfied that McCarthy Jdetermined in the 2019 proceedings that CKE did not have standing to challenge the decision of Hockey Calgary relating to boundarychanges. In his oral decision (at p 3), he held: As far as standing goes, I’m satisfied that the Warriors and the Saints have standing under the – – as applicants. And with regard to thedecision, the Warriors – – while the decision hasn’t been totally completed, the Warriors in my view, having heard the evidence, haveevery reason to be concerned that they may be put out of business within the – – within the next year.

With regard to CKE, I don’t thinkthey do have standing with regard to the bylaws, but they may have standing with regard to the oppression remedy, but for reasons thatfollow, I’m not going to deal with that today. [110] In my view, it is clear that McCarthy J found that CKE did not have standing to challenge Hockey Calgary’s boundary decisionsas being ultra vires the bylaws of Hockey Calgary.

At the same time, he left open the question as to whether or not CKE had standing toseek an oppression remedy under the Business Corporations Act, RSA 2000, c B-9. [111] I am also satisfied that the decision was a final decision and that the parties to the within proceedings are the same parties whoparticipated in the 2019 court challenge. The shifting of CKE from Glenlake to Southwest is common to both the 2019 and 2020 Hockey

Calgary boundary revisions. [ 112 ] Under the circumstances, I decline to exercise my judicial discretion to deviate from the result flowing from an application of the doctrine of issue estoppel in this instance. In reaching this conclusion, I take into consideration the following factors:

a) No appeal was taken from the decision of McCarthy J;

b) Glenlake could have brought this Originating Application, but elected not to do so;

c) Neither Glenlake nor Southwest, both member associations of Hockey Calgary would clearly be affected by any decision of this Court to set arise the boundary decision but are not parties to this action;

d) In accordance with this Court’s directions in the 2019 decision, Hockey Calgary and its member organizations, including Glenlake and Southwest, entered into a collaborative process to implement boundary changes. Hockey Calgary’s Operations Committee advanced a boundary revision recommendation that was approved by the Board and the membership at the Annual General Meeting. Glenlake, the member organization that included CKE players, abstained from the vote at the meeting of the Board and again at the Annual General Meeting.

Further, at no time during the process did Glenlake propose any amendments to the proposed boundary revisions. I accept the Respondent’s contention that the proper forum to have addressed issues or concerns with these boundary revisions was the Operations Committee, a committee that included the full participation of Glenlake, and the branch of Hockey Calgary charged with operational decisions by the Hockey Calgary bylaws;

e) Hockey Calgary has the mandate and the expertise to oversee and manage minor hockey in Calgary in the fulfillment of its mission and mandate. This Court has no such expertise and ought not to substitute its view as to the appropriateness of hockey boundaries. Deference is owed to this decision-maker in the absence of clear error. [ 113 ] For the foregoing reasons, I am satisfied that CKE lack standing to challenge Hockey Calgary’s decision to revise the hockey association boundaries as falling outside the authority conferred by its bylaws.

In my view, the Applicants are estopped from raising this issue by virtue of the fact that this same issue was previously decided by McCarthy J in his 2019 judgment. I would simply add that even if issue estopped did not operate to prevent the Applicants from raising this issue, I am satisfied that CKE is not a member of Hockey Calgary and, as such, has no standing to challenge the boundary revision decision.

b) Can the Applicant amend the Originating Application? [ 114 ] The Applicants seek to add Jeremy Thal as an applicant to this action, both on his own behalf and also in a representative capacity, on behalf of members of CKE, Glenlake and Hockey Calgary “having a claim against Minor Hockey Association of Calgary”. Further the Amended Originating Application stipulates the CKE, the original applicant, brings the application in its own capacity and in the capacity of a representative of CKE families “who have a common interest in the subject of this application”. In terms of additional relief sought over and above that set out in the Originating Application, the application seeks:

a) If required, an Order pursuant to Rule 2.6 of the Rules of Court , granting leave to CKE and Thal to bring and continue this application as the representatives of CKE families, who have a common interest in the subject of this application;

b) Further, and in the alternative, an Order directing that Hockey Calgary shall permit all children who played with Glenlake in the 2019-20 season, and who are affected by the CKE Relocation (the CKE Children), the option to be “grandfathered” and to remain with Glenlake for the 2020-21 season and until ineligible to continue playing for Glenlake due to age;

c) Further, and in the alternative, an Order directing that Hockey Calgary shall grant Player Releases to the CKE Children for the 2020-21 hockey season, permitting them to continue to play for Glenlake;

d) Further, and in the alternative, an Order directing Hockey Calgary to continue to consider the “community ties” criteria in its Player Release process for the 2020-21 hockey season. [ 115 ] During oral submissions, counsel for the Respondent conceded that the Court should permit the proposed amendment adding Thal as a party. Counsel for the Respondent agreed that any prejudice to his client could be remedied through an award of costs.

However, counsel for the Respondent properly pointed to the Consent Order that the parties entered into before Jeffrey J on June 23, 2020, in which the parties agreed to a litigation plan and to adhere to a set of enumerated timelines in order to ensure that the matter could be heard on July 23, 2020. [ 116 ] The Order specified that all dates were peremptory. In addition, the Order directed that the Applicants were to file any further affidavits by June 24, 2020, and that the Respondent was to file any cross-application(

s) by June 26, 2020. The Order provided dates for the filing of any responding affidavits by the Respondent and any reply affidavits by the Applicant, responding to the Respondent’s further affidavits or cross-application(s). Further, the Order specified dates for the completion of Questioning and the filing of Briefs.

Finally, the Order provided for the possibility of further amendments to the Litigation Plan on consent, failing which the parties were to seek the direction of the Court. [ 117 ] The Respondent sought and obtained the Applicants’ consent to file its cross-application on June 30, 2020, not June 26, 2020, as set out in the Order. On July 3, 2020, the Applicants send a proposed Amended Originating Notice to the Respondents. When consent to the filing of this amended application was not forthcoming, the Applicants filed an application to amend their Originating Notice on July 8, 2020.

In its’ Cross-Application seeking an order permitting it to file the Amended Originating Application, the Applicants described the proposed Amended Originating Application

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