In Saint Mary’s University v. U SPORTS, 2017 ONSC 6749, Justice Archibald of the Ontario Superior Court of Justice recently decided an urgent interim interlocutory injunction brought by Saint Mary’s University to enjoin U SPORTS from releasing its ruling on the eligibility of a Saint Mary’s football player.
Background
U SPORTS is the national sport governing body of university sports in Canada and has established by-laws and policies to regulate, amongst other issues, the eligibility of student-athletes to participate in university football competition. One of those policies states that “an athlete’s name [that] appears, with his acquiescence, on a [CFL] practice roster … or such other list that directly or indirectly confers a monetary benefit to the athlete” is prohibited from participating in university sports “within one year” of CFL participation.
It was not disputed by the parties that the football player was on a CFL non-active practice roster from September 14, 2016 to October 11, 2016. However, the parties disagreed on whether the phrase “one year” referred to one academic year, or, 365 consecutive days. If “one year” meant 365 consecutive days, then Saint Mary’s would have to forfeit five regular season games played before October 11, 2016 and would be ineligible to play in the playoffs.
In the week prior to the playoffs, the parties entered into a settlement agreement in which U SPORTS agreed not to pursue a complaint against Saint Mary’s with respect to the eligibility of the football player and in exchange Saint Mary’s agreed not to proceed with legal action to confirm its interpretation of the policy. However, shortly afterwards, the other member universities in the Atlantic University Sports (AUS) football division protested the eligibility of Saint Mary’s in the playoffs. U SPORTS reversed its position arguing that the settlement agreement did not preclude U SPORTS from pursuing complaints initiated by other universities and proceeded with an eligibility hearing against Saint Mary’s on November 8, 2017.
Interim Interlocutory Injunction
Interim or interlocutory injunctions will be granted where: (1) there is a serious issue to be tried; (2) the applicant demonstrates the likelihood that it will suffer irreparable harm if the injunction is refused; and (3) the balance of convenience is in the applicant’s favour.
First, the Court found that Saint Mary’s had established a serious issue to be tried and a strong prima facie case because the evidence strongly suggested that the parties had a mutual intention to enter into a legally binding contract on two essential terms of the settlement: (1) U SPORTS will not pursue a complaint against Saint Mary’s with respect to the eligibility of the football player, regardless of who made the complaint; and (2) Saint Mary’s will not commence legal proceedings to obtain an order confirming its interpretation of the policy. The Court also found that there was a strong prima facie case that U SPORTS was estopped and had waived its right to pursue a complaint against Saint Mary’s.
Second, the Court agreed that each Saint Mary’s football player would suffer irreparable harm that could not be adequately compensated from the loss of opportunity to participate in the playoffs. Further, the university would suffer irreparable harm in the form of reputational harm, both academic and future athletic recruitment, and a negative effect on alumni relations if the tribunal ruling was released.
Third, the Court found that the balance of convenience was in Saint Mary’s favour because it would not have sufficient time to appeal the tribunal’s decision before the next playoff game if the injunction was refused.
After the above analysis of the applicable test, Justice Archibald granted the interim interlocutory injunction. St. Mary’s subsequently obtained an Order on an emergency interim injunction from the Nova Scotia Supreme Court requiring the AUS to sanction the playoff game that was previously cancelled and requiring the AUS to direct Acadia University to play Saint Mary’s no later than November 14, 2017. University football fans will note that Saint Mary’s lost 45-38 to Acadia University in overtime.
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