[1]           Applicant Guy Sprung, an accomplished playwright and theatre director, among other things,[1] has filed an application seeking judicial review of a disciplinary decision rendered by a Disciplinary Panel struck by respondent Canadian Actors’ Equity Association (“Equity”) following a complaint filed against him by four cast members engaged by Montreal’s Infinithéâtre for a certain production.

[2]           Equity is an association whose membership includes almost 6000 English-speaking artists working in theatre and other performing arts across Canada.[2] It is a recognized association under the Act respecting the professional status and conditions of engagement of performing, recording and film artists.[3]

[3]           On November 28, 2021, the Disciplinary Panel rendered a decision finding that applicant had engaged in discriminatory behaviour and conducted himself in a manner contrary to the professional standards expected of members. It imposed a sanction in the form of a reprimand and a one-year suspension (the “Decision”).[4]

[4]           Applicant attempted to appeal the decision under the applicable rules governing appeals, but to no avail, his appeal being dismissed on January 27, 2022, at the first in a two-stage process, where an appeal is scrutinized in summary fashion.[5]

[5]           On February 28, 2022, applicant filed the present judicial review proceedings, raising a number of both procedural and substantive grounds and asking that the Decision be quashed.

[6]           For the reasons that follow, the Court is of the view that, on the basis of the substantive grounds, the application should be granted.

[7]           Applicant is the author of Fight On!, a play styled as a fictional account of the adventures of Francis Jeffrey Dickens, son of the celebrated novelist. Inspired by the historical fact of Dickens’ career in the North West Mounted Police in the 1870s and 1880s and, in particular, Dickens’ encounter with Cree Chief Big Bear in 1885, the play recounts those events, intended as an ironic deconstruction of colonial attitudes toward Indigenous peoples. As applicant wrote in the program notes to the play, his fictional version of Dickens’ character “discovers the theft and duplicity that robbed the Indigenous Peoples of their lands”[6] and slowly learns to respect First Nations. Obviously written with tremendous sensitivity toward the subject matter, the script received input from Drew Hayden Taylor, another acclaimed playwright and author hailing from the Anishnawbe community of Curve Lake, whose “sardonic, ironic and iconic commentary” was even incorporated into the text of the play. Prior to that, input on an earlier version of the script had been received from the M’Chigeeng First Nation on Manitoulin Island. The goal was to foster reconciliation with First Nations, as per the narrator’s words that conclude the play: “the end or rather, we hope, just the beginning.”[7]

[8]           In the spring of 2018 and that of 2019, the two parts of the play were workshopped to great critical acclaim.[8] The workshop process had seen applicant make numerous revisions to the script in reaction to comments and suggestions, including those of one of the future complainants.

[9]           In December 2019, casting had been completed and the play was ready to move toward rehearsals and public performance in the winter and spring of 2020. The cast of nine, which included several actors with an Indigenous background, were to play some 80 different characters. The actors had all received the script in November or December 2019.

[10]        Rehearsals began on Monday, February 17, 2020 and were to take place six days a week, except Sundays. The four future complainants all signed their contracts.[9] On the first day, a so-called “table reading” of the play was done. One future complainant would later admit that that was the first time she had read the script, despite having received it the previous November.

[11]        During the second week of rehearsals,[10] another future complainant expressed displeasure at the fact that the character she was to play as Dickens’ “love interest” was not enough of a feminist to her liking, being too much of a 19^th-century Dickensian woman. During the third week,[11] yet another future complainant began taking liberties with the text for a character called Smiley, replacing the lines in the script with others of his own.

[12]        During the second workshop phase a year earlier, an issue had arisen about the use of the word “savage” in the play. At that time, a convention had been adopted whereby a loonie would be placed in a “swear jar” every time the word was uttered. Out of that, $400 had been donated to the Native Women’s Shelter in Montreal. The final text of the script involved one of the actors, coincidentally one of the future complainants, explaining the use of the word based on its historic significance, as well as the word “Indian”:[12]

[13]        As the text just quoted itself indicates, handling the issue in this manner had met with the approval of all.

[14]        During the rehearsal process, applicant asked the Indigenous members of cast to write a note for inclusion in the program expressing their perspective on the play. On Friday, March 6, 2020, those three individuals provided the following text:[13]

[15]        This note would indeed be included in the printed program.[14]

[16]        The script contained text in certain Indigenous languages. On Saturday, March 7, 2020, there was a session with a Mohawk “language keeper” in order to provide language coaching as might be required.[15] The future complainant who had not read the script prior to the commencement of rehearsals and who was thus unaware that she would be required to speak Indigenous languages in the play, expressed fear that she would embarrass herself in front of her community.

[17]        At that point, public performances were just over a week away, having been scheduled to being on Monday, March 16, 2020. The script had to be viewed as final.

[18]        On Monday, March 9, 2020, the actress in question failed to show up for rehearsal. Later that day, her agent sent applicant a “list of actionables” that read as follows:[16]

[19]        Applicant asked the stage manager to call a rehearsal for the next day, Tuesday, March 10, 2020, at which the matter could be taken up.[17] However, the two actresses referenced in the opening paragraph of the list of actionables failed to turn up, and the actionables were therefore not discussed.

[20]        Then those two actresses, as well as the other actor mentioned (who would not be among the future complainants) simply walked out on the production. With those members of cast having effectively repudiated their contracts, an issue arose as to their contractual entitlement to reimbursement of their travel expenses. Applicant took the position that, having breached their contract, they were not so entitled. Equity’s staff took a different view, first stating that their decision to leave the production had been the result of discrimination, later taking the position that they had left an unsafe workplace. One way or the other, Equity felt that their departure was warranted and did not cause them to forfeit their contractual rights.

[21]        This led to exchanges with Equity in its capacity as representative of the actors under the relevant contractual scheme.[18] The matter could have been the subject of a grievance that would have pitted the theatre against Equity. But events were overtaken by Covid-19, and the contractual issue was never litigated. Indeed, with the onset of the pandemic and the measures taken by public authorities, the play, which was to have opened the following Monday, was “shuttered.” Tickets had been sold and much money invested.

[22]        Several months passed.

[23]        Then in January 2021, four members of the cast filed a joint complaint that became the basis of the disciplinary proceedings leading to the Decision of which judicial review has been sought.[19] The complaint was neither dated nor signed, but the names of the complainants appeared clearly.

[24]        Thirteen pages in length, the complaint consisted of a series of accounts by each of the four complainants. The material fell under one or the other of the following three rubrics, which were taken from the disciplinary section of Equity’s Constitution and Bylaws (“Bylaws”), article 35 of which creates offences for a member who: “(i) engages in acts of bullying, discrimination, harassment, racism, sexual harassment, or violence in the workplace; (ii) abuses their position, or perceived position, of power in the workplace; […] (iv) acts in an unprofessional manner in the workplace.”[20]

[25]        Various situations were recounted where the words savage and Indian were discussed once again and where a complainant had expressed discomfort with certain text to be spoken by her when playing the role of Louis Riel. Two complainants related their attempt to rewrite a certain scene, notably because it failed to justify the lack of the Blackfoot language in the play. There was a concern about the Louis Riel character consuming alcohol. There was an issue about safety moving around the stage in a long costume. There was an account of further discussion of the “swear jar” and the manner in which to make the donation therefrom. In many of these situations, applicant’s reaction is described. The foregoing is merely a summary, however, and the full complaint contains much more.

[26]        A Complaints Manager at Equity took charge of the file and began a dialogue with applicant, who was thus advised of the details of the process, in addition to receiving a copy of the complaint. He responded thereto in two substantive documents,[21] in addition to providing 20-odd supporting documents by way of contrary evidence.

[27]        A Disciplinary Panel was struck by Equity’s council.[22] Given the nature of the complaint, the Disciplinary Panel retained the services of a third-party investigator (“TPI”), as mandated by the Bylaws in instances where article 35(i) is in play.[23]

[28]        The Complaints Manager provided the TPI with a so-called “amended complaint.”[24] It was in fact the original complaint as is, with yellow highlighting of those portions “that the Disciplinary Panel felt were most pertinent to be investigated further.”[25] The highlighting represented about one fifth of the text. Asked by the TPI whether the highlighted portions were therefore to be viewed as being the only elements that were “in scope,” he was told that, indeed, the Disciplinary Panel felt that the other items were “not within the scope of what Equity can investigate or were describing people’s feelings rather than [applicant’s] action,” and were therefore to be taken as “context only.” However, the Complaints Manager added that, as the TPI was more experienced in such investigations, he was free to draw the Disciplinary Panel’s attention to anything in the unhighlighted portions that he might see as a “red flag.”[26]

[29]        The TPI was initially charged with the task of “determining” whether or not the Bylaws had been infringed. At an unspecified later date, his mandate was changed to simply a fact-finding role.

[30]        The TPI first interviewed the complainants. Later, on May 25 and 27, 2022, he interviewed applicant, who was accompanied by a relative who was then a lawyer. At that time, the TPI had reviewed applicant’s two substantive documents, but had not yet seen all of his supporting exhibits. Indeed, due to problems with technology, as late as August 30, 2022, the TPI still had not managed to open all of the files. At that time, the TPI therefore contacted applicant seeking assistance to gain access to the documents, which he ultimately did.

[31]        The TPI also interviewed a number of other people whose names had emerged in the course of his investigation.

[32]        As with the complainants and other people met with by the TPI, applicant was sent a statement prepared by the TPI following their interview, meant to reflect the person’s account of the facts and inviting corrections. Applicant made numerous revisions to the draft he had been sent.[27]

[33]        Applicant was not given an opportunity to see or in any way react to the statements of the complainants or of anyone else. Ultimately, he would see only the complaint itself, as well as a certain chain of e-mails.[28]

[34]        During the process, applicant went along with it, in the sense that he did not formulate any specific demands requesting this or that in terms of procedural rights. Those grievances would come only after the Decision.[29]

[35]        In the autumn of 2021, the TPI took the information obtained from the various witness statements and organized it under 44 distinct rubrics, such that all the different accounts of a particular event or issue would be grouped together. This he called the “evidence compilation.” He also prepared a “final report” stating his conclusions on each of the 44 points. Those two documents were sent to the Disciplinary Panel in draft form in October 2022. They were resent in final form in November, without change.[30]

[36]        Based on that material, the Disciplinary Panel rendered the Decision.

[37]        In its two-and-a-half page Decision, the Disciplinary Panel concluded that several components of the complaint were beyond the reach of the disciplinary process, namely contractual issues with the theatre (access to language services, payment of fees, etc.) and the content of the script itself.

[38]        Of the 44 distinct points canvassed by the TPI, only four attracted the attention of the Disciplinary Panel as being worthy of attention from a disciplinary perspective. Those points bore numbers 5, 10, 12 and 30 and can be summarized as follows.

[39]        To point 5 the TPI had given the heading “scene not set.”[31] The TPI picked up on the position of one of the complainants to the effect that applicant had “failed to mention Indigenous-Settler relations at the outset of the rehearsals, which demonstrated a lack of due care, and resisted suggested changes to the script from the cast.” There followed the position of the cast member who had not read the script and who had expressed insecurity about her ability to deliver lines in Indigenous languages, accusing applicant of having “failed to have proper resources during rehearsal to reduce the emotional impact to her, and resisted changes that came from female and Indigenous cast members.” The TPI’s report continued as follows on this point:

[40]        Point 10 picked up on an exchange where applicant had called one of the complainants a “fundamentalist” in response to comments about the script. The young actress in question did not feel she was being taken seriously. The TPI went on to conclude that the evidence substantiated that applicant had indeed “scoffed.”[32]

[41]        Points 12 and 30 both related to controversy surrounding use of the word “savage.” Point 12 made mention of the fact that applicant had rolled his eyes and sighed in certain discussions about the use of the word “savage” in the play, an accusation that the TPI found had been substantiated. Point 30, again in connection with the word “savage” and apparently in reference to the money that would be collected through the swear jar, referenced an exchange in which applicant had made an ironic joke about saving money through reducing the number of occurrences of the word in the script.

[42]        On the basis of those four points, the Disciplinary Panel rendered a decision finding applicant guilty of discrimination and improper conduct. In addition to expressing assent to the TPI’s conclusions on the four above-mentioned points, the Disciplinary Panel’s own reasons consisted of the following three paragraphs:

[43]        By way of sanction, the Disciplinary Panel imposed a reprimand and a one-year suspension with several consequences, including applicant losing the right to accept any contracts for services within Equity’s jurisdiction during that period.

[44]        At the hearing before the undersigned, applicant led evidence to the effect that he has suffered economic and other consequences from the Decision, asking that his rights be reserved with respect to damages that he might ultimately pursue in distinct proceedings.

[45]        As already stated, applicant appealed the Decision, but that procedure was dismissed summarily based on a preliminary screening procedure set out in the Bylaws. Applicant thus never presented a substantive appeal on the merits.

[46]        It is not disputed that the Decision is properly the subject of judicial review.[33]

[47]        In seeking to have the decision of the Disciplinary Panel quashed, applicant raises both procedural and substantive grounds,[34] which will now be addressed in turn.

[48]        In addition to certain other procedural grounds that will be addressed below separately, applicant focused on what he feels were certain insufficiencies in the procedure followed by the Disciplinary Panel in the treatment of the complaint.

[49]        Both sides agree that the precise content of the duty of procedural fairness varies from case to case and is to be determined based on the following criteria:[35]

[50]        Applicant argues that, given the nature of the matter and the potential gravity of the consequences for him, he should have had the right to an oral hearing. He stresses that the TPI did not, by his own admission, turn his mind to assessing credibility. Applicant therefore argues that he himself would have benefited from the opportunity to cross-examine the complainants at an oral hearing and confront them with certain documents that they had written that undermined the position they had taken in the complaint.[36]

[51]        Applicant also faults the TPI for having failed to consider all of his materials prior to interviewing him, and in not giving him access to the witness statements of the complainants and other people interviewed, which failures deprived him of the opportunity to fully know the case he had to meet and exercise his right to a full defence. He also faults the Disciplinary Panel for having retained the services of a TPI who had no personal knowledge of the theatre world.

[52]        All this added up to there being no safeguards, thereby leaving applicant prey to the vicissitudes of “cancel culture.” Or so he argues.

[53]        Applicant thus invokes the first criterion, insofar as the mere fact that the process in question had a disciplinary character militates in favour of ensuring the presence of various procedural safeguards. He also relies on the third and fourth criteria. He adduced evidence of the serious impact the Decision has had on him from a professional, economic and reputational perspective. As to his legitimate expectations, he points out that during the contractual dispute in the spring of 2020, he had been given assurances that, in the event of a complaint, he would be afforded “the opportunity to defend [himself] and present [his] side of the story within the process.”[37]

[54]        Equity looks to the second criterion, pointing out that the statutory scheme only requires it to have a grievance process in its role as a representative association for its members as they are engaged in the performing arts and contract with theatres and the like. It is not subject to any legislative requirement about its internal disciplinary procedures for members.

[55]        That leaves the fifth criterion, which, in this case, essentially involves consideration of the Bylaws, which set out a detailed process.[38] Given its length, its provisions have been reproduced in an appendix at the end of the present judgment. The reader is invited to refer thereto as may be seen fit. That said, the crux of those procedural rules can, at least for our present purposes, be distilled to the following propositions.

[56]        Article 35 of the Bylaws sets out the different substantive disciplinary offences the commission of which can lead to disciplinary consequences for a member. The process creates the position of Complaints Manager, as well as the appointing of a Disciplinary Panel. The member whose conduct has been called into question, dubbed the “respondent,” is to be given the opportunity to respond to the complaint.[39] Where the complaint invokes article 35(i) and the respondent files a response — as was the case here — recourse must be had to a TPI to conduct the investigation.[40] Where the complaint does not involve an offence under article 35(i) or where the respondent does not respond, the Disciplinary Panel has the choice of either using a TPI or hearing the complaint itself.[41] Finally, there is an appeal process.[42]

[57]        Except for the fact that the complaint was not signed (which shall be addressed under a distinct rubric, below), applicant has not directed the Court’s attention to any violation of the Bylaws by the Disciplinary Panel. His contention is rather that, at least in the specific circumstances of his case, the rules of procedural fairness, as they have been set out in the jurisprudence, required those additional procedural elements that have been outlined above.

[58]        On its end, Equity does not dispute that the Bylaws do not call for the additional procedural components that applicant has raised. On the specific issue of an oral hearing, since article 35(i) was in play, the complaint was referred to a TPI for investigation, as mandated by the Bylaws. That said, at the hearing before the undersigned, Equity took the position that the wording of the Bylaws did not preclude the holding of an oral hearing[43] and that one could have been held had the Disciplinary Panel seen fit to do so. That said, no evidence was adduced as to whether the Disciplinary Panel in fact turned its mind to the issue.

[59]        As has been mentioned, applicant did not seek any form of formal procedural relief during the process. Hence what is at stake is not some specific procedural decision that was rendered by the Disciplinary Panel during the course of the process, but rather the sufficiency or lack thereof of the procedural mechanisms set out in the Bylaws, from the standpoint of the applicable principles of administrative law.

[60]        The standard of review on procedural matters is said to be correctness.[44] However, there can be situations where deference is nevertheless called for by the reviewing Court, the precise taxonomy of which still awaits definitive resolution in the caselaw.[45] It can be said, however, that a given body’s fashioning of its own procedure is not to be tampered with lightly.[46]

[61]        The Court is of the view that care must be taken where a decision-making body has, in full compliance with its statutory duties — or, as here, in the absence of any specific duties — crafted a detailed procedure for the handling of disciplinary proceedings and then adhered to it. In those circumstances, a reviewing Court should not lightly superimpose another procedural regime over top.

[62]        Indeed, the law must retain some degree of pragmatism. The members of a body charged with applying a certain legal regime, and in particular one which, as here, is composed primarily if not exclusively of laymen without specialized legal training, already have their hands full merely ensuring that they are properly complying with what can be, again as here, quite a complex procedural regime. They cannot work on the assumption that those rules are perhaps somehow incomplete and be required, on the basis of a vague, multifactorial balancing test, to determine what lacunae need to be addressed and remedied. To think otherwise would mean that decision-makers, rather than focusing on the already difficult task of trying to scrupulously follow the applicable rules, would instead be required to be constantly second-guessing them and calling them into question.

[63]        That is not to say that the decision of a body that has scrupulously followed its own procedural rules is immune from review on procedural grounds. An aggrieved litigant could argue that the rules, in general, are flawed. He could also point to some specific reason why, in his case, there was an injustice.

[64]        Here, applicant has not argued that the procedural rules that the Disciplinary Panel was bound to follow were somehow egregious on their face.

[65]        Moreover, whereas applicant claims to have been deprived of the opportunity to know the case he had to meet — having received only the 13-page complaint, to the exclusion of further facts gleaned by the TPI during his investigation — he has failed to point to any specific fact or other detail which, as a result, was not brought to his attention and which, had it been, would have prompted further submissions from him.

[66]        Finally, it bears stressing that domestic disciplinary procedures are not required to contain all the trappings of a court of law. Oral hearings, complete with the right to cross-examine, are not necessarily required. The resulting system may be imperfect, but the absence of features found in the ordinary courts is not a basis for concluding that the minimum procedural standards, as mandated by principles of administrative law, have not been met.

[67]        The Court is therefore of the view that the process leading to the Decision did not infringe the duty of procedural fairness.

[68]        Also under the general rubric of procedural grounds, applicant went to great lengths to try to establish a link between, on the one hand, the contractual dispute with the three members of cast who walked out in March 2020 and, on the other, the disciplinary process that began 10 months later when the complaint was filed. Reduced to its essence, the argument goes like this: since the contractual people at Equity had found that there had been “discrimination” or, later, an “unsafe” workplace, the dice were, as it were, loaded.

[69]        This argument is without merit. First, the two processes are conceptually and legally distinct. Second, there is no evidence suggesting that the disciplinary process was somehow contaminated by the earlier dispute. The mere fact that the Disciplinary Panel had access to the earlier e-mail exchanges does not mean that they were unable to make the necessary distinctions.

[70]        There is also no basis to believe that the Decision was somehow an attempt by Equity to cover its tracks, so to speak, or that the complainants themselves were, in reality, motivated to complain by a desire to protect their contractual rights.

[71]        Applicant also argues that because one member of the Disciplinary Panel had, some 15 years earlier, been in a professional relationship with one of the complainants,[47] there was a reasonable apprehension of bias.

[72]        The relevant test has been expressed as follows: “the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.” In other words, what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude? Would such a person think that it is more likely than not that the decision, whether consciously or unconsciously, would not decide fairly?[48] Mere suspicion is not enough.

[73]        The Court is of the view that a reasonable person would not take the view put forth by applicant. Actors work together in many situations. And the relationship in this case went back many years.

[74]        Applicant also came at the issue of bias from a slightly different angle. He led evidence to the effect that Equity not only had disciplinary procedures in place, but had also issued a policy position,[49] which was followed by a report on a certain survey on the whole issue of discrimination.[50] Appellant effectively argued that Equity and its Disciplinary Panel were therefore saddled with an attitudinal predisposition toward an unfavourable outcome for him in the case. In short, the Disciplinary Panel would have felt pressure to take a hard line when faced with this complaint, which was among the first, if not the first, following the above-mentioned survey.

[75]        It is true that, if proven, such a predisposition can indeed constitute a form of bias. The fact remains, however, that the evidence is insufficient to conclude that a reasonable outside observer would come to the conclusion that the Disciplinary Panel was likely to be ill-disposed to treat the complaint fairly.

[76]        The grounds based on bias are therefore without merit.

[77]        Finally, Applicant points out that the complaint was undated and unsigned. The lack of a signature at least is contrary to the Bylaws, which require that formal complaints “be made in writing, signed by the Complainant and delivered to the Complaints Manager.”[51]

[78]        Equity argues that this technicality is not fatal, as the Disciplinary Panel clearly knew who the complainants were. Indeed, their full names appear at the beginning and their given names appear repeatedly before each of the individual complainant’s respective narratives.

[79]        The Court is of the view that, given the facts stated in the preceding paragraph, the lack of a formal signature or date should not be viewed as vitiating the complaint.

[80]        For the reasons stated above, the Court concludes that applicant has failed to establish a basis for the Court’s intervention on procedural grounds.

[81]        We now turn to the issue of whether the Decision, examined at this point from the standpoint of its substance, bears scrutiny on a standard of reasonableness.

[82]        As has already been mentioned, the evidence shows that, although it had initially tasked the TPI with “determining” whether the relevant provisions of the Bylaws had been breached, the Disciplinary Panel later restricted his mandate to a role consisting purely of “fact finding.” Moreover, although the TPI’s final report nevertheless drew conclusions that were akin to legal characterizations of the facts — “the evidence substantiated that…” — the Disciplinary Panel was also in possession of his 183-page evidence compilation summarizing all of the evidence, organized by topic, thus leaving the Disciplinary Panel free to draw its own conclusions based on the facts. Reading the Decision alongside the TPI’s conclusions on his 44 points, one can see that in several instances, the Disciplinary Panel declined to find any wrongdoing despite the TPI’s conclusion to the effect that “the evidence had substantiated” the particular point in question. It therefore cannot be said that the Decision should be quashed on the ground that the Disciplinary Panel committed an error in the form of abdicating its decision-making authority to the TPI. Nor did applicant so argue.

[83]         But that is not to say that there are no problems that undermine the reasonableness of the analytical process followed. There are in fact several.

[84]        The final report claims to have assessed credibility,[52] an assertion that was flatly denied by the TPI, who, twice during the hearing of the application for judicial review, and without hesitation either time, candidly stated that his investigation entailed no assessment of credibility whatsoever. And yet, in many instances, he was faced with conflicting accounts of a given point. In the evidence compilation, one finds no attempt to reconcile or otherwise reach factual conclusions. It consists merely of a succession of paragraphs indicating no more than so-and-so stated this, whereas someone else stated that. There is no substantive discussion.

[85]        It is as if someone had been asked to describe the appearance of a large tapestry, who then proceeded to give a square-inch-by-square-inch account, going to great pains to note every detail of the colours, shapes, the number of knots and stitches in each separate square-inch surface area, one after the other, but without taking any interest in the overall image and picture being portrayed. Bald facts are lined up one after the other. In the final report, an equally bald conclusion then follows “substantiating” this or that. There is no sense that the TPI was able to gauge the relative weight to be given to this or that account. Nor does one sense that the TPI was able to put facts into context. His evidence compilation, later distilled to its essence to constitute his final report, is little more than the aggregate of a lengthy series of isolated assertions.

[86]        Whether or not the TPI thereby acquitted himself of his fact-finding role is a contractual matter as between him and Equity, which was not debated and about which the Court expresses no opinion. The point is simply that, for the overall analytical process leading to the Decision to have been reasonable, it was necessary that someone, at some step, appropriately weigh the importance of certain key elements of context.

[87]        It will be recalled that, of the 44 distinct topics culled by the TPI from the mass of evidence collected, only four attracted the attention of the Disciplinary Panel as exhibiting anything that could be viewed as in any way blameworthy. Those points now deserve further analysis as to their reasonableness.

[88]        The TPI’s discussion of what he grouped together under point 5 is in fact a hodgepodge of diverse and unrelated remonstrances. It begins with the patently absurd claim that the cast had somehow been taken by surprise to learn that the play was about Indigenous-Settler relations. It goes on to speak of applicant’s resistance to changes in the script, with no sensitivity to the fact that applicant was, after all, the playwright. Following other unrelated statements gleaned here and there from a myriad of situations of which absolutely no detail is afforded the reader, the TPI concludes that applicant was “more open and positive” to certain people based on gender, age and ethnicity. The reader of such words cannot but come away with a staggering impression of the disparity between the gravity of the conclusion and the shallowness of its basis. The same must unfortunately be said of the Disciplinary Panel’s laconic reasons on this point.

[89]        With respect to point 10, neither the TPI nor the Disciplinary Panel gave any consideration to the fact that the matter had been resolved. And yet, the evidence, more specifically that which had been grouped together under the very next point, point 11, revealed that this situation had come to a resolution deemed satisfactory by the complainant herself.[53] The evidence compilation confirmed the same.[54] The complaint itself indicated that Applicant’s “response was remorseful and he apologized,” with the complainant being “satisfied with [applicant’s] response” at the time.[55]

[90]        Finally, points 12 and 30 deal with the word “savage.” As we have seen, applicant — as playwright/director — and cast, in a process of very open collaboration that dated back at least to the second workshop phase in 2019, had eschewed an approach that would, for example, censor Mark Twain’s classic Adventures of Huckleberry Finn, anti‑racist though it is, or, closer to home, an attitude, espoused by some, that would condemn the mere mention of certain works by Pierre Vallières and Yvon Deschamps, anti-racist though they are as well. Protecting people from being reviled with hurtful invectives is one thing. Crass cultural illiteracy is quite another. Playwright and cast had successfully navigated those tumultuous waters. There had been the inclusion in the script of a clear explanation of the intent, to be spoken by the actress at whose instance much of this solution had come to be and who, ironically, would later be among the complainants. The swear jar donation to charity was an elegant final touch. The enormous significance of this point went unappreciated.[56]

[91]        The Disciplinary Panel, to its credit, was careful to avoid sitting in judgment on the artistic choices thus made by playwright/director and cast. It viewed matters having to do with the script itself as beyond its reach; i.e. outside its jurisdiction. But it too failed to put the issue in context. Nor was it appropriate to use the disciplinary process as a means to vindicate eleventh-hour misgivings by certain members of the cast.

[92]        But the problem in fact goes much deeper than that. Indeed, despite being both playwright and director, applicant was faced with a highly-charged environment in which, quite astonishingly, at least some of the actors, although engaged to perform a set script, with only a few weeks of rehearsals prior to public performance, appeared to think that they were in some sort of improvisational or workshop setting where they were at liberty to criticize the script, propose changes and, in one case, even rewrite their own lines as they saw fit. Clearly, if an actor or actress somehow felt uncomfortable with the manner in which the playwright had chosen to handle the issue of 19^th-century discrimination against First Nations by European settlers of the Canadian West, then he or she should simply have declined to participate in the production. All had received the script well ahead of time. Regrettably, some chose to derail the production in the final days of rehearsals.

[93]        If applicant is to be faulted with anything, it is for having been too open to the cast’s critiques and suggestions, thereby perhaps creating inappropriate expectations and a blurring of people’s respective roles. At the end of the day, no reasonable conclusion can be reached other than to say that certain members of cast exhibited conduct which lacked professionalism. To point the finger at applicant in that context amounts to turning the whole matter on its head.

[94]        It cannot be disputed that the point of the play was to fight discrimination against First Nations, with a view to furthering the laudable objective of reconciliation, the importance of which has often been stressed by the Supreme Court of Canada.[57] When the stated objective of the entire theatrical exercise is precisely to combat such problems, and when one has gone to great lengths to achieve those ends, to then have one’s slightest utterance, involuntary eye movement and spasmodic reflex of the diaphragm held up to minute scrutiny, is to be held to an impossible standard.

[95]        The outcome of the Decision is thus so at adds with the factual context that it is unjustifiable on a reasonable basis.[58]

[96]        The Disciplinary Panel’s Decision is therefore unreasonable and will be quashed. For the reasons set out above,[59] the appeal decision must logically suffer the same fate.

[97]        In the circumstances, based on the relevant criteria,[60] it would not be appropriate to return the matter for another investigation. Factors of time and cost militate for this result, as does the inevitability of the outcome. The Court will therefore itself dismiss the complaint also.

[98]        As to applicant’s request that the Court reserve his right to damages, suffice it to say that, although there are exceptions, such a conclusion is not normally appropriate and will therefore be denied here.[61]

[99]        GRANTS applicant’s Application for Judicial Review;

[100]     QUASHES the decision of November 28, 2021 of the Disciplinary Panel of defendant Canadian Actors’ Equity Association dealing with the complaint of four cast members of the play Fight On!;

[101]     QUASHES the appeal decision of January 27, 2022 regarding the same matter;

[102]     DISMISSES the complaint (exhibit P-33);

[103]     DISMISSES applicant’s request that his right to claim damages be reserved;

[104]     THE WHOLE with costs in favour of applicant Guy Sprung.