Safe Sport
Ontario Court Allows Retroactive Application of UCCMS to Historic Misconduct
Date: August 18, 2026
In Myles v. Sport Dispute Resolution Centre of Canada, the Ontario Superior Court of Justice declined to disturb an arbitrator’s ruling that the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS) may, in certain circumstances, be applied retroactively to address historical allegations of misconduct. Notably, the Court did not resolve whether it had jurisdiction to hear the appeal, and held in the alternative that the arbitrator’s ruling was reasonable. The Court acknowledged conflicting authority at the Sport Dispute Resolution Centre of Canada (SDRCC) related to the issue of retroactivity.
This decision is an important but not yet settled point in the development of law on the UCCMS because it confirms that, where the applicable framework and consent language support it, historical misconduct may still be addressed under the UCCMS even when the alleged conduct predates the Code. At the same time, the Court’s reasons underscore that retroactive application remains a developing and fact-specific area, particularly where organizations seek to rely on policies, jurisdictional language and participant consent to respond to conduct that occurred years earlier.
Background
On February 20, 2023, the Office of the Sport Integrity Commissioner (OSIC) received a complaint alleging that a figure skating Coach had hosted underage athletes at his home, where he served them alcohol, watched pornography with them, and shared a bed with them. These events occurred in 2005, approximately 20 years prior to the UCCMS coming into force.
An independent investigator concluded that the allegations were substantiated and that the Coach attempted to coerce false testimony from witnesses during the investigation. The Deputy Director of Sanctions and Outcomes then reviewed the investigator’s findings, determined that the Coach’s conduct violated the UCCMS, and declared the Coach permanently ineligible to participate in Skate Canada.
The Coach appealed that decision to the SDRCC.
Arbitrator’s Decision
As a preliminary jurisdictional matter, the arbitrator appointed through the SDRCC was asked to decide whether the UCCMS could apply to the historical allegations, which occurred in 2005.
Relying on the Supreme Court of Canada’s decision in Brosseau v. Alberta Securities Commission (1989), the arbitrator concluded that the UCCMS could apply retroactively to the historical allegations. In Brosseau, the Court distinguished between: (a) new legislation that imposes punishment for past conduct, which is presumptively unenforceable; and (b) legislation that prospectively aims to protect the public, which is presumptively enforceable.
The arbitrator determined that the purpose of the UCCMS was to protect the sporting public by fostering a safe sport environment, rather than to punish past behaviour. As a result, the UCCMS could apply retroactively to historical allegations.
Notably, the investigation uncovered a second, independent concern. In addition to substantiating the historical allegations, the investigator found that the Coach had attempted to coerce false testimony from witnesses during the course of the investigation. The arbitrator observed that this attempted interference would itself have been grounds for the matter to proceed, irrespective of the historical allegations from 2005. As a result, the retroactivity question, while central to the decision, was not the only basis on which the complaint could advance.
Decision of the Ontario Superior Court of Justice
The Coach brought an application before the Ontario Superior Court of Justice seeking leave to appeal the decision.
Three issues were before the Court: (1) whether leave to appeal should be granted; (2) whether the decision should be set aside because the arbitrator had made an error in law in concluding that the UCCMS applied retroactively; and (3) whether the arbitrator’s decision should be set aside because the Coach was denied natural justice.
Court’s Jurisdiction
Although the Court declined to rule on its own jurisdiction, it emphasized that it was not persuaded that it had jurisdiction to hear an appeal on a preliminary issue. The arbitrator had treated the question of historical application of the UCCMS as a preliminary issue, and an arbitration award could only be appealed to the Court on a question of law pursuant to s. 45(1) of the Arbitration Act.
Notwithstanding this, given the importance of the issue and the parties’ expressed wish that the appeal be heard by the Court, the Court proceeded to address the matter without making a ruling on the issue of the Court’s jurisdiction.
The Coach argued that the arbitrator erred in law for two reasons: first, by failing to properly consider the nature of the contractual relationship between the parties; and second, by failing to properly consider the presumption against retroactivity and the absence of any specific language in the UCCMS or the consent form signed by the Coach, indicating retroactive application.
Error in Law
The Court found that the arbitrator made no error of law in concluding that the UCCMS fell within the legal exception permitting its retroactive application. It emphasized that the arbitrator had accepted the respondents’ argument that the application of the UCCMS arose from the relationship between the parties (including the Coach, Sport Canada and Skate Canada). The Court also noted that Skate Canada had adopted the Abuse-Free Sport program, and that the Coach had signed a consent to be subject to the UCCMS, both of which granted Abuse-Free Sport jurisdiction over actions predating the adoption of the UCCMS.
The Court held that the arbitrator’s approach was supported by the strong public policy favouring the protection of participants in sport, particularly young people.
Natural Justice
Importantly, the Court emphasized the nature of the allegations – sexual maltreatment of minors – which has always been unacceptable to Skate Canada. The Court stressed:
“[…] it can not be reasonably argued that the retroactive application of the UCCMS has characterized as maltreatment conduct that was acceptable at the time of the occurrence of the events. Sexual abuse of minors was never acceptable and can never be tolerated. Therefore, it could not be reasonably argued on the facts of the present case that a retroactive or retrospective application of the UCCMS would constitute procedural unfairness or amount to a breach of natural justice so as to give rise to a right of appeal under section 46(1) of the Arbitration Act.”
The Court found, therefore, that a retroactive or retrospective application of the UCCMS would not constitute procedural unfairness or amount to a breach of natural justice that would give rise to a right of appeal under section 46(1) of the Arbitration Act.
Disposition and Remittance Back to the Arbitrator
The Court dismissed the appeal and upheld the arbitrator’s award. Because the arbitrator’s ruling addressed only the threshold question of whether the UCCMS could apply to the 2005 conduct, the Court remitted the matter back to the arbitrator to decide the substantive merits, including whether the Coach’s conduct violated the UCCMS.
The Role of Consent
It is important to note that the Court’s decision was not based on the Brosseau public-protection exception alone. The Court held that the arbitrator both “correctly applied the protection of the public exception” and “adopted a reasonable interpretation of the contractual relationship applying to the UCCMS to which the appellant consented and agreed to be bound.” The contractual basis turned on specific language in the Signatory Agreement acknowledging that incidents predating the UCCMS could be the subject of a complaint, and the Coach’s consent form bound him to the UCCMS’s jurisdiction “for such longer period as required for purposes of administration and enforcement of the UCCMS”.
Implications for Sport Organizations
This decision confirms that individuals bound by the UCCMS may in the appropriate circumstances be investigated and disciplined for conduct that predates the UCCMS enactment. This is an important development because it highlights the possibility, and challenges, of litigation over events that occurred years (or decades) in the past.
Another practical lesson for sport organizations and employers is that clear, forward- and backward-looking consent language, rather than the public-protection rationale alone, made retroactive application enforceable on the facts.
For organizations looking for assistance with safe sport (The Universal Code of Conduct to Prevent and Address Maltreatment in Sport) alignment, policy drafting, or that have any questions, please contact Hicks Morley lawyers Frank Cesario, Kayley C. Leon or Brittany Bates.
The authors thank Tomas Castaldo, 2026 Summer Student, for his assistance with this article.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©