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E- Newsletter - November 2009
IN THIS ISSUE WHAT'S NEW * Calling All Winter Olympic Sports - Are You Dispute Ready? * Centre for Sport and Law at Sport Leadership in Vancouver * Ontario Bans Use of Handheld Devices While Driving * Imagine Canada Risk Management Experts * Coaches of Canada and CCES Roll Out National Code of Conduct and Canadian Policy on Prohibited Conduct TIPS FOR SPORT LEADERS - Strategic Planning - Let's Try Something New!
RECENT SPORT LAW CASES/DECISIONS
* Hussack v. School District No. 33 (Chilliwack), 2009 BCSC 82 * Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385 * Clifford v. Ontario Municipal Employee Retirement System, 2009 ON C.A. 670
FEATURE ARTICLE - Tapping the Performance Potential of Your Organization's Values
WHAT'S NEW?
Calling All Winter Olympic Sports - Are You Dispute Ready?
Many winter sport NSOs will be selecting their Olympic teams in the coming months. At the same time, they will be focusing all their resources and energy on Olympic preparation. Selection disputes can distract hugely from this effort, so consider if the Centre for Sport and Law can relieve you of this burden while you focus on what is really important in the final weeks and months before the Games.
A valuable but somewhat invisible service that we provide to the sport community is management of internal appeals. "Valuable" in that we will spare you the time, worry, distraction and animosity of running your own appeal process. "Invisible" in that we ensure that your appeals are professionally, fairly and confidentially managed and that your appeal decisions are defensible. Typically, your dispute will stop with us.
The Centre for Sport and Law provides this service on a standing basis to numerous summer sport NSOs and has also done so for Alpine Canada and Canadian Freestyle Ski Association. We also manage internal appeals on an "as-needed" basis for several more national sport bodies.
To learn more please contact Rachel. Nous sommes également disponibles de gérer des appels en français.
Centre for Sport and Law at Sport Leadership in Vancouver
Thanks to those who dropped by to see us at the Sport Exchange. We look forward to seeing you next year in Ottawa. Also, we wish to congratulate Jon Blair, coach with the Fernie Alpine Ski Team, who visited our booth and won our draw prize of a copy of our book, Legal Issues in Sport: Tools and Techniques for the Sport Manager, in a sturdy book-bag.
Ontario Bans Use of Handheld Devices While Driving
The Ontario government recently passed Bill 118 – Countering Distracted Driving and Promoting Green Transportation Act. While Ontario is not the first jurisdiction in Canada to do this, it is the largest province to impose such a ban. The result of the new law is that drivers are prohibited from using handheld devices (cell phones, pagers, Blackberrys, GPSs and even MP3 players such as I-pods) while driving. Drivers may use these devices in hands-free mode, provided the device is firmly secured to, or mounted in the vehicle.
Enforcement of the law will begin in earnest starting February 1, 2010, when fines will be imposed. Until then, offenders will receive warnings.
This law is important to employers who have employees who travel and who use cell phones and other devices to carry out business (most sport organizations fall into this category!). Not only will employers be potentially liable for fines and penalties, they may also be liable for more, should an employee be involved in an accident as a result of being distracted while using a hand-held device. This has occurred in the United States and in one recent case, an employer’s insurer settled a claim for about $2 million USD when an employee inadvertently killed a pedestrian while talking business on her cell phone.
The solution? As an employer you need a policy to set out the parameters of acceptable use of portable technologies while driving. Your policy can be as simple as prohibiting your employees from using these devices at all times while behind the wheel. Alternatively, you can supply your employees with the appropriate hands-free accessories and mounting systems and require that all employees use them at all times. Either way, a clear policy is necessary to safeguard your organization or business. For more information, feel free to contact Steve.
Imagine Canada Risk Management Experts
Imagine Canada has recently launched a web-based feature of short pieces written by ten risk management experts. Rachel Corbett of the Centre for Sport and Law is the “expert” on sport risks and joins nine others writing practical columns about risk management issues relating to boards, governance, screening, employment, finances and technology. To access these columns, visit the Insurance and Liability Resource Centre for Non-Profits. Better yet, create a bookmark!
Coaches of Canada and CCES Roll Out National Code of Conduct and Canadian Policy on Prohibited Conduct
Coaches of Canada and the Canadian Centre for Ethics in Sport (CCES) recently distributed the above two policy documents to sports administrators throughout Canada. (Go to their Coaches of Canada website to download the documents). The Code and Policy seek to create a national, coordinated mechanism whereby organizations can discipline those who engage in prohibited conduct in sport. The rationale is to protect athletes and participants from misconduct by those individuals (coaches, officials, volunteers, administrators) who occupy positions of trust and authority.
One unique element of the Code and Policy is that the CCES will maintain a national registry of individuals who have been disciplined under the Code. This is a great idea and will make it far more difficult for offenders to move quietly under that radar among different sports or different jurisdictions. We support the overall objectives of the Code and Policy, and encourage all organizations to consider them carefully.
However, a few cautions are in order:
1. If you already have a Code of Conduct and discipline policy, which contain procedurally fair hearing procedures (something all NSOs and most PSOs have in place because their government funders require it) then you need to incorporate only some components of the Code into your own policy documents. Most importantly, your policies must reflect the nine prohibitions contained within the Code. However, if you adopt the Code as presented in its entirety, you create the potential for duplication and confusion within your own policy framework. Integrating the Code into your existing policies can be a complex task.
2. In order to participate in the national registry portion of the Policy, you need to adopt the Canadian Policy on Prohibited Conduct in its entirety. This is really simple to do and would not create any significant conflicts with your other policy documents.
3. Be mindful that the Policy and Code do not apply to athletes or participants. This is an omission that might not be appropriate in your situation. In many sports it is common to have younger and older athletes training together and in these scenarios older athletes are often in a position of trust and influence over younger athletes (gymnastics, swimming and diving are sports where this is common). In recreational settings and in sports involving masters athletes, one could also argue that the prohibitions of the Code should apply to all individuals in positions of authority, including athletes and participants. This discussion is a good one to have in your particular circumstances, and it might also be a little complicated.
If all of the above leaves you confused, we understand. Feel free to contact Rachel for more information on the Code and Policy, or for help in integrating the Code and Policy into your organization’s specific policy framework.
TIPS FOR SPORT LEADERS
Strategic Planning - Let's Try Something New!
We had the opportunity to attend an interesting session on strategic planning at the Sport Leadership Conference in Vancouver earlier this month, involving presentations by Richard Way, Carolyn Trono of Rowing Canada Aviron and Peter Montopoli of the Canadian Soccer Association.
Strategic planning has been around since 1957 when an American named Phil Selznick first coined the term. It was a new take on traditional, rational planning that attempted to accommodate growing uncertainly in the post-war world. For 50 years now strategic planning has been a necessary thing for organizations to do, but most organizations do it poorly. The preparation of strategic plans consumes considerable energy and resources, yet the majority of them end up sitting idle on shelves as opposed to being valued as the powerful management tools that they are.
However, we think there are a number of forces aligning in the universe that bode well for a rethink on how we go about the business of developing strategy in Canadian sport. Here is a quick snapshot:
- In 2001 the Canadian Sport Policy (CSP) was enacted that identified four broad priorities for the Canadian sport system – participation, excellence, capacity and interaction. Bingo!! An excellent organizational framework from which to plan. Forward thinking NSOs recognized this immediately and many have established sound planning documents aligned with the CSP.
- Soon after the LTAD framework was introduced. The framework is values-driven and identifies seven stages of athlete development, applicable to all sports. The LTAD movement has made it apparent that a sport organization’s core business is sustainable long-term athlete development. For each stage of LTAD, we can then ask the questions: what does the athlete need? What must coaches do to provide it? What organizational infrastructure is necessary to support it? This provides further guidance and clarity in the planning process. Progressive sport organizations are developing strategic plans aligned with LTAD, and a small handful of sport bodies are recognizing that their governance structure can similarly be adjusted to also better support the organization’s core mission of LTAD.
- In the last decade or so, there has also been a trend away from ‘management by objectives’ to ‘management by values’ and from deficit-based approaches to asset-based approaches in planning and strategy. Informed by academic models of appreciative inquiry (AI) and positive organizational scholarship (POS), the traditional SWOT analysis is giving way to more strength-based models for planning. Consider for a moment that half of the SWOT analysis dwells on negatives (the weaknesses and threats assessment): it is therefore no wonder that the traditional strategic planning process saps the spirit! A new model called SOAR is starting to be noticed and it involves conversations among stakeholders about organizational strengths, market opportunities, collective aspirations and measurable results. The proponents of SOAR say that instead of plans sitting unused on shelves, strategy can become a living, energy-creating part of everyone’s job.
- Lastly, we have observed small and subtle shifts in attitudes among sport leaders, and an emerging consensus that rich collaboration between NSOs and PTOs is the only way forward. As Pierre Lafontaine has been saying for several years now, his organization is not in the business of Swimming Canada, but rather the business of Swimming in Canada. From a planning standpoint, there is virtually no logical reason that the strategy of a national body and the strategies of provincial bodies should not be fully aligned. We all have the same core business – sustainable LTAD – we are all on the same team, so as Richard Way urges, let’s all wear the same uniform. We haven’t seen it yet, but one or two NSOs are about to take their first steps down the path of NSOs and PTOs developing strategy together.
This synergy of developments represents an exciting breakthrough. For this reason it is dismaying to watch a handful of national bodies take aggressive, top-down approaches to their relationships with provincial associations. But on the flip side, it is breathtaking to see traditional bodies like the Royal Canadian Golf Association (RCGA) and the Canadian Soccer Association (CSA) take bold steps towards charting a collaborative, aligned future with their provincial branches. Soccer in Canada – the combination of the CSA with Provincial and Territorial bodies as well as District Associations, Clubs and Teams – verges on a one billion dollar enterprise, and that is worth planning for!
It has been said that traditional strategic planning, which we all know and do, is based on a model of fear, scarcity and competition. We plan in order to escape a current predicament. An appreciative inquiry approach to strategic planning, on the other hand, is based on a model of strength, assets and collaboration. We plan in order to move towards a desired outcome. As problems and challenges arise, we reframe them to opportunities. It becomes second nature to imagine future action by considering where it is strong, what the opportunities are, what we aspire to see happen, and what would indicate progress.
If you would like to learn more about a new approach to planning and strategy in your sport, please contact us. Rachel Corbett of the Centre for Sport and Law is trained in the planning area, is a full member of the Canadian Institute of Planners, and bears the professional designation of Registered Professional Planner (RPP) in Ontario. Dina Bell-Laroche is an experienced facilitator with expertise in strength-based planning, including appreciative inquiry, SOAR, and values-based frameworks. Rachel and Dina are uniquely qualified to guide you through your planning processes.
As Peter Drucker said, “the best way to predict the future is to create it.” Let us help you start to create your future.
RECENT SPORT LAW CASES/DECISIONS
Hussack v. School District No. 33 (Chilliwack), 2009 BCSC 82
Devon Hussack was a Grade 7 student when he was injured by a field hockey stick in a physical education class. Devon had not attended school for the first few weeks of the field hockey unit. He had a chronic history of school absences. The principal met with Devon’s father, Mr. Hussack, and the physical education teacher. The teacher recommended that Devon attend the field hockey class so that he could start to re-integrate himself into the school.
Devon had a background in ice hockey and the teacher felt for this reason that Devon could participate in the field hockey scrimmage games with the other students. As part of the introduction to the day’s games, the teacher reminded the students not to ‘stick check’ from behind. That is, when one player winds up taking a shot, a player on defence should not come up behind that player – otherwise there is a risk of being smacked in the face by their stick.
During the game, Devon approached another player who was taking a shot and was smacked in the face by their stick. The injury led to "somatoform" disorder (a mental disorder evidenced by physical problems) – which also led to Devon becoming somewhat of a recluse.
Although Mr. Hussack refused any psychological treatment for Devon’s disorder, and actively coached Devon to remember symptoms when he met with many different doctors, the court decided that but for the field hockey injury, Devon’s disorder would not have occurred.
The court decided that, despite Devon’s knowledge of ice hockey, he was inadequately prepared for field hockey and was not properly instructed in the sport’s safety requirements. Devon had not participated in progressive instruction for the sport and therefore should not have participated in the scrimmage game.
The main lesson that we can take away from this case is that coaches and instructors must prepare athletes through progressive instruction. This has been affirmed in a long series of legal cases in Canada. This case is also interesting in that its outcome turned on the analysis of "proximate cause" and the application of the "but for" test. Despite the pervasive feeling that Devon was "coddled" by his father, and that Devon made little attempt to recover from his own injury, the court still focused on the proximate cause of the situation. The court found that the lack of instruction led to the injury, which in turn led to the disorder.
Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385
Victor Wong, a 12-year-old boy, was injured after being thrown to the floor during a sparring session at Lok’s Martial Arts Centre. Wong’s mother, Yen To, had previously attended the class and decided to enroll her sons as well. Before enrolling her sons, Michael Lok (the owner and operator of the Centre) required Yen To sign the following document on behalf of her children:
It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.
In addition to this waiver, there were also signs and notices posted informing the participants that they were responsible for their own injuries and that Lok’s Martial Arts Centre could not be held liable.
Yen To claimed she did not see these warnings and, despite signing a waiver, she and her son sued the Centre. Michael Lok filed a motion saying that the lawsuit should be dismissed because Yen To signed a waiver absolving his school of negligence.
Not surprisingly, the court denied Michael Lok’s claim and decided that the lawsuit should go to trial. The judge maintained that a parent cannot waive a child’s right to sue for negligence.
Our website contains many articles on the issue of waivers, and their validity (or lack thereof) when executed by minors or on behalf of minors. Visit our Writings section for more information.
Clifford v. Ontario Municipal Employee Retirement System, 2009 ON C.A. 670
This is not a sport case but is helpful nonetheless in providing guidance to tribunals writing decisions. This occurs often in the sport context – panels and committees are often called upon to make decision on selection, eligibility, carding or discipline issues, or to make hear appeals of these decisions. As well, these panels and committees are usually made up of lay people who may not grasp all the subtleties of administrative law: thus, this guidance is very helpful.
The facts of this Ontario case are briefly as follows. OMERS (Ontario Municipal Employee Retirement System) is a pension scheme for municipal employees. Tony Clifford, a subscriber to this scheme, separated from his wife in 1996, and formalized his divorce in 2004. In 1999 he began a common law relationship with another woman. In 2005 he died, leaving no will. At issue was who was to receive his OMERS pension benefits: his former wife or his common law partner. Complicating the case was the fact that he died during a drinking binge while living in a hotel, and there was evidence that his common law relationship had just ended prior to the binge.
The tribunal in this case was a panel of three persons, none of whom were lawyers. Their task was to determine if Mr. Clifford had lived in a common law relationship for at least three years before his death, and if this relationship was still in place at the time of his death. The first point was not contested, and they decided "yes" on the second point, writing: “We are not persuaded that the conjugal relationship between Ms. Campbell and Mr. Clifford had terminated at the time of his death, and accordingly we dismiss the appeal."
The case then went through two levels of judicial review. At the first level, the court found that the tribunal had not provided adequate reasons. At the next level, the Ontario Court of Appeal, three judges disagreed and found that the reasons given by the tribunal were adequate to fulfill its legal obligation.
The judges’ decision in this case is complex and the space here does not permit a full analysis. But here are some key points:
- Although not all administrative tribunals are legally obliged to give reasons, certain circumstances can create this obligation. In a ten year old Supreme Court of Canada case (Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817) the factors that would create such a requirement include, among others: the nature of the decision and the process used, the importance of the decision to the individual, the finality of the decision, and the legitimate expectation of the individual who is impacted by the decision. In the sport context, many of these factors come into play and it is likely that upon judicial review, the circumstances of most sport disputes would create this obligation. For this reason we have always strongly recommended that all sport tribunals give written reasons for their decisions.
- The sufficiency of written reasons is addressed in a criminal case, R. v. R.E.M. [2008] 3 SCR 3. This case said that sufficiency is established if the decision, read in context, shows why the tribunal decided as it did. This does not mean that the tribunal needs to refer to every piece of evidence or set out every finding that it made in arriving at a decision. Put another way, the "path" taken by the tribunal to reach its decision must be clear, but it is not necessary that the tribunal describe every "landmark" along the way.
- It is critical to distinguish procedure and substance. It is one thing to challenge the adequacy of reasons (procedure) and quite a different thing to challenge the substance of the reasons themselves. In other words, the fact that the outcome of a decision is not pleasing is not a basis to challenge the reasoning process. The trial judges in this case erred by not maintaining this distinction.
- One reality of administrative tribunals is that they are seldom composed of legal experts. This is certainly the case in the sport system. Said the Ontario Court of Appeal in this case: “If the language used falls short of legal perfection … this will not render the reasons insufficient, provided there is still an intelligible basis for the decision.”
- Lastly, this case reminds us of the guidance in Dunsmuir v. New Brunswick [2008] 1 SCR 190. This case noted that reasonableness is not just a function of outcome, but also of the process of articulating reasons. In Dunsmuir, the Supreme Court said that the concept of reasonableness “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law."
Tribunals in sport are usually made up of lay persons who might have difficulty grasping many of the nuances of administrative law. This by no means suggests that lay people cannot do an excellent job of hearing evidence, weighing evidence, applying policy, making a decision and then explaining their decision process in a principled, defensible way.
This case, and the other cases referenced by it, remind us that the decision-writing portion of a hearing process is very important. Those responsible to write decisions need to take the time to set out those reasons clearly, logically and succinctly. This will ensure that the parties affected can see the general “path” that the tribunal took (if not every detailed “landmark” observed along the way) to get from point A to point B.
There are numerous articles on our web site about appeals, hearings, procedural fairness and tribunal decision-making. If you need help with a tribunal, a hearing or a decision, feel free to contact Steve or Rachel.
FEATURE ARTICLE
Tapping the Performance Potential of Your Organization's Values
Organizational values are often described as the glue that connects your mission to your vision. What we know to be true, however, is that in the absence of stated, agreed-to, and lived values, people default to their own set of personal values to make decisions, prioritize, or resolve conflicts. If our core business as sport organizations is to produce ‘better human beings’ and sport is a tool to achieve that, to what extent are we, as sport leaders, leveraging our assets to deliver on this mission?
When coaches are trying to teach a new skill or increase their own knowledge, they often turn to sport science or sport medicine to inform their decisions. They are quick to seek advice from psychologists, nutritionists, and physiotherapists to help athletes gain a competitive advantage on the field of play.
But what of the sport organizations who plan, deliver, and organize sport in this country? We are close to 34,000 strong and yet, do we turn to organizational scholarship to seek answers to the many questions that dominate our landscape: How best to put out this fire? What is our legal obligation when terminating an employee? Is there a more efficient way to plan? How do I recruit and retain highly qualified people? How do I minimize conflict between my national office and my provincial/ territorial members? How do I lead the implementation LTAD at the club level?
Here’s what we’re seeing after having consulted with numerous organizations over the past several years in the areas of change, strategy, and culture. Organizational values can be described as dormant, lived intentionally or practiced intuitively. For many sport leaders, the practice of living their values can be described as "the way we do business here" or "it’s in the cultural DNA." That works really well when the values of the organization’s leaders are congruent with the values of the organization. It works really when staff and volunteers have been in place for a relatively long period of time and have generated a true sense of how things get done without having to necessarily refer back to the organization’s values.
What happens, though, when new volunteers or staff join the sport organization? What happens in moments of crisis when the organization’s values might be overlooked or dismissed to deal with the tyranny of the immediate? How can we increase the likelihood that our decisions are reflective of our core values and aligned with our mission and vision?
What a growing number of sport leaders have shared indicates that the living of corporate values happens often by accident or at best, through osmosis. In a sector that is known for achieving extraordinary outcomes and of igniting a sense of what is humanly possible, is the timing right for us to explore more deeply the connection between values and performance? We know them not to be mutually exclusive on the field of play – can they be leveraged more intentionally off the field in boardrooms and offices? In a social profit sector such as sport, can we afford to not leverage our values?
We invite you to share your thoughts and ideas as we look to work with you to increase our understanding of what makes good organizations, great ones. Feel free to contact Dina or Rachel to learn more about values-based planning and values management.
Watch for our next newsletter in January 2010
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