“Home Licencing” Requirements and MMA Fighter Mobility Rights

Canadian Charter

Section 83 of the Criminal Code delegates the regulation of MMA to the Provinces.  This requirement has created a diverse regulatory patchwork for the sport across Canada.

Some Canadian jurisdictions have ‘home licencing requirements‘ – that is, requirements for non-residents to be licensed in their jurisdiction of residency or other jurisdictions prior to being qualified to obtain a licence.  To take two examples, Ontario and Nova Scotia have such regulations on the books.

Section 8(5) of Ontario’s Athletics Control Act Regulation reads as follows:

(5)  A person who is not a resident of Ontario and who applies for a permit to take part in a professional contest or exhibition shall at the time of applying provide evidence satisfactory to the Commissioner that the person is the holder of a current valid licence to take part in professional contests or exhibitions in another jurisdiction. R.R.O. 1990, Reg. 52, s. 8 (5); O. Reg. 197/06, s. 4 (1); O. Reg. 465/10, s. 7 (2).

Section 20(a) of Nova Scotia’s Boxing Authority Regulations has a similar provision which reads as follows:

A boxer from outside Nova Scotia, when submitting an application for a licence, shall submit to the Authority

(a) proof of licence from a recognized licensing agency in the boxer’s jurisdiction;

If applicants don’t have such a licence they can be denied licencing by the Nova Scotia and Ontario commissions.

The difficulty with this requirement, however, is that it discriminates against Canadians who reside in a jurisdiction where MMA is not legal.  A resident from Newfoundland, for example, could not comply with the Nova Scotia requirement as they cannot obtain a licence from a ‘recognized licencing agency‘ in their home Province.

Since MMA is not legal in all of Canada such a licencing requirement seems to fly in the face of Section 6(2) of the Canadian Charter of Rights and Freedoms which provides Canadian citizens and permanent residents with the following protection:

2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

  • (b) to pursue the gaining of a livelihood in any province.

Section 6(3) of the Charter goes on to provide the following limited exception to this guarantee:

(3) The rights specified in subsection (2) are subject to

  • (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence

As has been held by Courts interpreting this provision, section 6(2)(b) protects the right of Canadians to pursue their livelihoods in any province even though they may not be residents.   Given the short career span of combat athletes and the reality that travel across provincial lines is all but a requirement to succeed at the highest levels in the combat sports trade these statutory impediments are significant infringements to the mobility rights of professional combatants.

If a commission denies an applicant a licence based on a ‘home licensing’ provision this improperly denies “the gaining of a livelihood” to Canadians who reside in a jurisdiction where MMA is not legal.  This, on the face of it, is discrimination based “primarily on the basis of province of present residence“.  If MMA is legal in a jurisdiction the Charter guarantees that a person’s residency cannot be a barrier to gaining a livelihood in the sport.  It is difficult to see how such clauses can survive judicial scrutiny and jurisdictions drafting their combat sports laws in Canada would do well to avoid home licencing provisions.

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