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E- Newsletter - Winter 2008
IN THIS ISSUE:
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What’s New? Centre for Sport and Law celebrates launch of new website, and other news including two upcoming workshops
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Tips for Sport Leaders - What we have learned from managing appeals
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Recent Sport Law Cases/Decisions:
Case Comment 1 - Canadian Universities Reciprocal Insurance Exchange (CURIE) v. CGU Insurance Company of Canada, 2007 Ont. CA 650
Case Comment 2 - Manitoba High Schools Athletic Association v. Pasternak et al, 2008
WHAT’S NEW?
1. Preparing for Beijing: Are You Dispute-Ready?
The Centre for Sport and Law and friends are organizing a workshop for NSOs to assist them in managing risks associated with upcoming Olympic selection disputes. The workshop is taking place on Tuesday April 8, 2008 in the morning (9 to 11:30am), at the offices of SIRC in downtown Ottawa. Registration is $50 and enrollment is limited to 25 so do not delay in registering. For full information on the workshop and how to register, click here.
2. The Centre for Sport and Law is launching a new web site!
Our web site was created about a decade ago, which is like a century in today's technological terms. You will be pleased to know that we are freshening it up, maintaining its rich content of articles and resources, while adding new features such as a regular Notable section where we will be able to provide our visitors with up to date news on important legal cases and issues affecting sport. Our launch should take on or about April 1, 2008 - so check back to have a look!
3. Centre for Sport Capacity created at Brock University
The Department of Sport Management at Brock University (St. Catharines, Ontario) is pleased to announce the recent creation of the Centre for Sport Capacity, housed within the Faculty of Applied Health Sciences. The mandate of the Centre is to support research and development to improve the capacity of the Canadian sport system. The Centre will engage in research collaboration, community outreach and national and international consulting partnerships. The Department of Sport Management is Canada's only undergraduate sport management degree-granting program, and comprises a dozen faculty members teaching and conducting research in the areas of sport governance, sponsorship and marketing, event and facility management, sport and law, sport policy, sport leadership and organizational development, and finance and economics of sport. For more information on the Centre for Sport Capacity, please contact Joanne Maclean (905-688-5550 ext 1-3159, jmaclean@brocku.ca).
4. PRO Education Forum
Rachel Corbett and Steve Indig will be presenting a session on Best Practices in Risk Management at the Parks and Recreation Ontario Educational Forum March 30 to April 2, in Huntsville, Ontario. We will also be exhibiting in the Trade Show. Although the recreation sector is not usually where you will find us, we firmly believe that community level recreation/sport is where Canadian Sport for Life begins - and is vital to the health of the entire sport sector. If you are attending any portion of the Conference, come look for us at the President's Reception and Trade Show on Sunday night, March 30, 2008.
5. Success in Selection - Lunch and Learn at the Sportalliance Building
Join Steve Indig, Rachel Corbett and Hilary Findlay for an informative session on managing your coach, manager and athlete selection procedures. Selection disputes consume enormous energy and resources, attract harmful publicity and distract teams from preparing for competition. Participants will learn how to improve selection policies, how to implement them properly, and how to effectively manage appeals of selection decisions. Plan to join us on Tuesday, April 15, 2008 from noon to 2 pm in Boardroom 1A at the Sport Alliance Building. For more information on this professional development opportunity, and how to register, click here.
6. Risk Management Pilot Project
In our last newsletter we provided an update on this national project involving eight NSOs, which uses an innovative risk management methodology to help sport organizations improve their capacity to afford safe, welcoming and rewarding sport experiences to their participants. One outcome of this project was an increased awareness of the link between risk management and values management. Dina Bell-Laroche and Rachel Corbett, coordinators of the project, have recently authored an article to stimulate thinking and continued discussion about this idea of "management by values" as a better way to do business in sport. For a copy of the article, click here. We welcome your feedback on our ideas.
TIPS FOR SPORT LEADERS
What we have learned from managing appeals
Fifteen years ago the Centre for Sport and Law began writing appeal policies for sport organizations. In 1995 we published a handbook on the topic (Administrative Appeals - A Handbook for Sport Organizations) and in 2000 we did a second handbook (So You’ve Got a Complaint – The Hearing Process from Start to Finish). Now, in 2008, we find ourselves reviewing these early policy documents and recommending improvements.
As many sports are now beginning the process of team selection for Beijing, we thought it might be useful to share some of these new ‘best practices’ in writing appeal policies and managing appeals.
Have an independent professional manage your appeal
There are two reasons for this: one, as a party to an appeal it is difficult for the sport organization to maintain an appearance of impartiality while also managing the appeal: and two, running a smooth appeal requires experience and skill. Consider writing into your appeal policy a role for an ‘appeal administrator’ or ‘case manager’ or whatever you wish to call it. This person can do the heavy administrative work, organize logistics and provide support to the panel, leaving you, as the sport organization, free to focus your energies on being a respondent in your appeal.
Leave some flexibility to appoint your appeals panel
If your policy says that appeal panel members must be members of your organization or must meet other affiliation requirements, you may find yourself unable to put together an appeal panel quickly. We recommend that your appeal panel be made up of any persons you choose to appoint. In fact, it has been our experience that people from outside your sport can provide an excellent independent perspective and improve the quality of your appeal decisions.
Appoint one panel member who is experienced in law and procedure
If your appeal is contentious or complex, which most are, this experience can be invaluable. Such people can also be an excellent resource when it is time to write the appeal decision. Over time, your sport organization should strive to cultivate ongoing relationships with such unique volunteers. Consider offering them an honorarium in exchange for their important services.
Allow flexibility in the format and timing of your appeal
It is difficult to anticipate all the dispute circumstances that you will face. Your appeal policy should permit flexibility in terms of how the appeal is to be run, and the timelines it should follow. In terms of format, appeals can be through documents alone, by telephone, in person or by a combination of all these methods. In terms of time, some appeals need to happen in hours, while others may unfold over weeks or months, without prejudice to a party. Decisions on format and timing should be decided by your appeals administrator or appeal panel.
Include a confidentiality clause in your appeal policy
It never occurred to us that this would be important until we managed a high profile appeal during which the appellant waged a separate campaign through the community while the appeal was underway. The appellant, quite correctly, pointed out that the appeal policy of the organization had no requirement of confidentiality. While it is standard practice in arbitrations and court proceedings that those proceedings are confidential to the parties, such a clause is not common in appeal policies. We think it should be there – because an appeal cannot proceed properly and fairly in a public fishbowl.
Think about what’s NOT appealable
Not every decision can be appealed. Good policies specify what may be appealed and what may not. Internal appeal policies are not the appropriate forum to deal with issues such as budgeting, staffing, governance structure, program design, or any matter normally decided by the membership as a whole. As well, employment, discrimination and commercial matters are common disputes best left to traditional dispute resolution methods. Generally, appeal policies in sport organizations should be limited to eligibility, selection, discipline and carding matters.
Don’t confuse ‘grounds for an appeal’ with ‘merit of the appeal’
Most appeal policies have a screening step, where someone first decides whether an appeal may be allowed. Such screening steps may serve to exclude a number of appeals. It is important that this screening function be properly exercised and be restricted to examining the grounds of the appeal, not its merits or its likelihood of winning. A very common and fatal mistake is for the person doing the screening to assess the worth of the appeal, and if the appeal is weak, to not allow it. Proper grounds mean simply that the issue or error raised by the appellant is a valid one – regardless of whether the appellant can ultimately prove it.
Consider requiring appellants to clarify their issues
Most appeal policies simply require appellants to list the grounds of their appeal. This is fairly easy to do no matter what the issue, because a notice of appeal can simply state, for example, ‘the committee failed to implement the selection properly’. It’s better for all concerned to have the appellant provide details of their issues in the notice of appeal – then there are fewer surprises later.
Think carefully before bypassing your internal appeal to go to arbitration
The SDRCC (Sport Dispute Resolution Centre of Canada) will hear arbitrations of disputes without them first going to an internal appeal, if the parties consent. Many NSOs choose this route because they believe it to be quicker and less costly. However, other factors should be considered when choosing to go to SDRCC directly – including the fact that the SDRCC rules are very different from normal appeal rules. There is a different onus of proof (for selection disputes), a different standard of review and different remedies available, all of which put the sport organization at a distinct disadvantage in this forum.
For more information on the topic of appeals and disputes, consider attending our workshop Preparing for Beijing: Are You Dispute-Ready? scheduled for April 8, 2008 in Ottawa (link), or feel free to contact any of us at the Centre.
RECENT SPORT LAW CASES/DECISIONS
Case Comment 1
Canadian Universities Reciprocal Insurance Exchange (CURIE) v. CGU Insurance Company of Canada, 2007 Ont. CA 650
This Ontario Court of Appeal decision from the fall of 2007 created quite a stir among sport organizations in Ontario. Although the case was entirely a dispute between two insurers about who should bear the cost of an insurance claim, the case went to the heart of a sport organization’s bylaws – that obscure policy document that few people understand or pay attention to. This case is very important to the issue of bylaws within a sport organization, but at the same time, the case does not mean that the ‘sky is falling’ (which many sport administrators believed at the time the case was reported). As with almost all legal cases, this case turns on its specific facts and circumstances, which are not necessary common to all situations.
The case of CURIE v CGU began in 1996 when Chester Lam, a novice judo participant, was severely injured at the University of Windsor. We discussed this case some years ago in a magazine column. Shortly after the accident, the University insurer provided immediate funds for the settlement and then sought a court-directed order as to the apportionment of liability among the various defendants, only one of whom was the University. Ultimately, the University was found 1/3 liable, the regular judo instructor was found 1/3 liable, and the substitute judo instructor (filling in for the regular instructor who was ill) was found 1/3 liable.
This case arose when CURIE later sought a contribution to the financial settlement from the insurer for Judo Ontario, which CURIE claimed carried overlapping coverage for the incident. The trial judge had ruled that Judo Ontario’s insurance did not apply because the student-organized judo club was not a member of Judo Ontario at the time of the accident. The Ontario Court of Appeal disagreed and upheld CURIE’s claim.
This finding raised a lot of concern among sport organizations in Ontario. The facts are that the judo club was a registered member of Judo Ontario in the 1994/95 academic year, and also in the 1996/97 academic year, but at the time of the accident (September of the 1995/96 academic year), the club had not registered as a member. The Court of Appeal ruled that the club should be construed as a member nonetheless and that the two instructors (who together were 2/3 liable) should be deemed to be volunteers of the club, thus insured at the time of the accident. Understandably this finding is alarming, as it suggests on the surface at least, that ‘once a member always a member’ and therefore always insured.
The Court of Appeal’s finding was based squarely on the wording in the bylaws of Judo Ontario. This wording provided that once admitted as a member, a club or an individual remained a member unless it resigned, was suspended or was expelled. There were no other references in the bylaws to membership duration. Suspension and expulsion could occur, as initiated by Judo Ontario, if the member failed to re-register and pay its dues. However, the long-standing practice of Judo Ontario was to not pursue members who did not pay dues, but rather to simply accept that they no longer wished to be members and therefore to believe that they no longer were members.
In essence, under Judo Ontario’s bylaws, a member could remain a member (although, it might be characterized as a ‘member not in good standing’) until it resigned or until such time as Judo Ontario took a positive step to suspend or expel the member. Whether the member was not in good standing made no difference to its status as a member. In reaching this decision, the Ontario Court of Appeal merely gave the language of the bylaws its plain and ordinary meaning.
What is the lesson here? Firstly, we are reminded that policy is what’s written on paper, not what’s in the minds of the drafters of the policy, what is intended by the organization, or what historic practice has been. To quote Adjudicator David Lech in a recent dispute about selection (a different matter but following the same principle) – ‘[selection criteria] should say what they mean and will be interpreted to mean precisely what they say’. Judo Ontario had likely paid little attention to their bylaws and perhaps should have. Correcting the loophole that was the core issue of this case is easy – amend the bylaws to make it clear that membership is granted for a set period of time, then ends unless renewed or a new application made. For example, the wording in the bylaws of Boxing Ontario is as follows:
‘2.9 Duration - Membership is accorded on an annual basis, and all members shall re-apply for membership each year’.
This clause has the added benefit of giving the sport organization more control over membership, and in fact gives Boxing Ontario additional tools to deny a re-application for membership, which may be useful when dealing with problem members.
As noted at the top of this case comment, CURIE v CGU case does not mean that ‘the sky is falling’. It does mean that all sport organizations should pay close attention to their bylaws. Although they are the least interesting and sexy of all your policies, at the end of the day they are ultimately the most important. Be aware!
Case comment 2
Manitoba High Schools Athletic Association v. Pasternak et al. (2008) MBQB 24.
Recently, there have been a number of situations that have raised questions about whether females can participate in all-male sport activities and, conversely, whether males can participate in all-female sport activities – and if so, under what circumstances. In our Fall 2006 Newsletter we reviewed the case of Pasternak v. Manitoba High Schools Athletic Association (MHSAA). That decision has now been appealed by MHSAA and the decision was rendered in late January this year.
The original decision
The Pasternak twin sisters made a complaint to the Manitoba Human Rights Commission when the MHSAA would not let them play on their high school boys’ ice hockey team. There did exist a girls’ team at the school; however, the Pasternaks argued that this team did not play at a skill level that was appropriate for them. MHSAA argued that the high school girls’ team was new and it needed the leadership and skill of the Pasternak twins to develop further. In other words, allowing the top players to play elsewhere essentially undermined the formative girls’ team.
The Human Rights Tribunal rejected these arguments, stating that the girls did not sign up to be leaders or pioneers, but to be players on a school team commensurate with their level of skill. Making the point that “equal opportunity must mean more than simply having a team for each gender”, the Tribunal stated that the policy of the MHSAA that teams will be “equally-resourced” must be interpreted broadly, and accepted the evidence of experts that “the concepts of equal opportunity and equal resources include the opportunity to participate and compete at one’s own level”.
This decision is consistent with the earlier decisions in both Blainey v. Ontario Hockey Association (No.1) and Casselman v. Ontario Soccer Association. In Blainey there existed no girl’s hockey team. In that case the Ontario Human Rights Tribunal ruled that Blainey should be allowed to play on the boy’s team. The decision in Casselman extended the opportunity for girls to play on boy’s teams, whether or not there was a comparable experience available for girls. In this case two girls played on a mixed soccer team until they were banned at the quarterfinals stage of a competition. They were given the opportunity to play on an all-girls team, but the calibre of the team was not comparable. The Ontario Human Rights Tribunal found in favour of the girls and ordered that the soccer association not stop females from participating with males in soccer on an integrated basis.
The MHSAA Appeal
A number of interesting issues were raised during the course of this appeal. First, in confirming that the Pasternaks had established a basic case of discrimination against MHSAA, the Court pointed out that the twins had been denied the opportunity to be judged on the basis of their personal merit because of their gender. In other words, they were required to try out for the girls’ hockey team (as opposed to trying out for the boys’ team) solely on the basis of their sex. Being treated on the basis of merit as opposed to a personal characteristic such as one’s sex is the essence of “substantive equality” within the Canadian legal system.
The judge in this appeal therefore concluded that the best place to judge individuals on their own merit was through the team try-out process. The evidence was clear that the Pasternak twins, though not expert hockey players, did possess a level of skill beyond that of the girls’ team and certainly were competitive with the boys. Had the evidence not supported this level of skill in the twins, the outcome may well have been different.
MHSAA argued that notwithstanding the twins’ skill, there was a reasonable justification for the discrimination. MHSAA argued that its mandate was to provide a reasonable opportunity for sport participation to all students and that it could not “tweak” the system in every area for each individual or group of individuals. The original Adjudicator as well as the appeal judge disagreed with this characterization of the mandate. Pointing to MHSAA’s own governing documents they found that the MHSAA was not involved in managing sport programs within individual schools, thus could not be characterized as “tweaking” anything - its mandate was to ensure an inter-school competitive sport program that represented “the highest competitive level of school competition in their sports”.
An important lesson to us all from these decisions is that the nature of the evidence that must be brought forward to argue a reasonable justification for a discriminatory practice. It is now clear that the argument for any justification must be supported by concrete evidence. It will not be enough to rely on presumptions, impressionistic evidence or anecdote. Some direct evidence that the concerns anticipated will arise, and what their actual impact might be, must be offered to justify the discrimination. The judge noted the lack of such evidence with regard to the concern that allowing girls to play boys hockey would cause the erosion of female hockey. In fact, the objective evidence points to just the opposite – female hockey has flourished in the twenty years since the Blainey decision.
Another lesson is for sport organizations to pay attention to their governing documents. There is a long list of legal cases where an organization’s bylaws of incorporation have been placed under scrutiny – for example Hamstra v B.C. Rugby Union (where the court examined the association’s mandate as expressed in its constitution), this Manitoba case, and also CURIE v. CGU Insurance Company of Canada (summarized in this newsletter).
We are currently working with CAAWS, Canadian Association for the Advancement of Women and Sport and Physical Activity, in writing a comprehensive up-date of the law in this area. Look for it to be published soon.
Watch for our next newsletter – Spring 2008
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