Canada v. Council

Introduction

Claimant: Softball Canada

Respondent: Canada Games Council

Type of Dispute: Sport selection

Arbitrator: Michel G. Picher

Date of Decision: August 4th, 2008

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Dispute Summary

Softball Canada appealed a decision by the Canada Games Council to exclude men’s softball from the 2013 Canada Summer Games program.

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Background Facts

After the Canada Games Council (CGC) reached its decision to exclude men’s softball from the program for the 2013 Summer Games, Softball Canada filed an appeal through the CGC’s Dispute Resolution Policy and Procedures. On April 16th, 2008, Independent Adjudicator Hugh Christie denied the appeal, concluding that CGC had followed proper procedures in reaching its decision and had not failed to consider relevant information. Softball Canada appealed the CGC ruling to the Sport Dispute Resolution Centre of Canada (SDRCC).

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Claimant’s Position

Softball Canada’s case was based on the following arguments: • men’s softball should be seen as a team sport in its own right, independent of women’s softball; • CGC failed to follow its own policies and procedures and did not have the authority to make the decision; • CGC failed to consider relevant information, or took into account irrelevant information, in making its decision; • the selection process was inherently discriminatory; and, • CGC’s use of the Sport Canada SFAF* rankings was contrary to the Human Rights Code.

*The Sport Funding and Accountability Framework (SFAF) is the process used by the Department of Canadian Heritage to identify which National Sport Organizations (NSOs) are eligible for Sport Canada contribution programs, in what areas, at what level and under what conditions.

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Respondent’s Position

The Canada Games Council’s case was based on the following arguments: • the decision to exempt men’s softball was consistent with the Council’s selection procedures; • all sports were treated the same way under the SFAF process. The fact that men’s softball was rejected did not mean that the process itself was applied incorrectly or that it was inherently wrong; • the issues raised in this case were dealt with in a previous SDRCC arbitration ruling (Softball Canada v. Canada Games Council and Royal Canadian Association, Rugby Canada and Canada, SDRCC/CRDSC 05-0026) where the arbitrator denied the claim; and, • there was no violation of the Ontario Human Rights Code; moreover, the Arbitrator lacked the proper jurisdiction to interpret, apply, or enforce the Code in this case.

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Arbitrator’s Analysis

Arbitrator Michel G. Picher rejected the CGC’s contention that the claim should be dismissed on the grounds that the issues had already been addressed in a previous SDRCC arbitration ruling. After a careful review, he concluded there was a distinction between the issues raised in the two cases. In his analysis, Mr. Picher rejected Softball Canada’s assertion that gender equity would be served by including men’s softball at the 2013 Canada Games. Under that scenario, men would compete in both and softball, while women would be restricted to softball. “With respect, to follow that reasoning, as is suggested by [Softball Canada], is truly to fail to see the forest by only focusing on two trees.” Mr. Picher concluded that, ultimately, such a result would discriminate against women. His analysis also led to a determination that CGC had followed proper procedures in reaching its decision.

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Arbitrator’s Analysis

With respect to the alleged violation of the Ontario Human Rights Code, Mr. Picher determined that it was within his jurisdiction to consider the matter. In his ruling, he expressed having difficulty with the position advanced by Softball Canada, noting that certain sports, and in some case certain disciplines of sports, are in fact gender specific. In Olympic Games, he noted, boxing is a gender specific male sport while synchronized and rhythmic gymnastics are gender specific female sports: “These kinds of distributions of sports, and disciplines within sports, are not discriminatory in the sense contemplated by human rights legislation. On the contrary, they are generally conceived and administered in such a way as to promote gender equity in the overall participation of athletes, both male and female, in the Games.”

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Ruling

The claim by Softball Canada was dismissed, effectively confirming CGC’s decision to exclude men’s softball from the 2013 Summer Games program.

Sport Dispute Resolution Centre of Canada Softball Canada v. Canada Games Council

Lessons Learned

1. Importing standards or policies of other organizations into its own policies is acceptable when the criteria imported is not unfair or contrary to the organization’s own rules and standards. 2. There are several ways of achieving gender equity in sport; sports organizations must be cognizant of the bigger picture in order to promote overall gender equity in their programming. 3. The role of the tribunal is to ensure that decisions have been made in a manner which is not in bad faith, arbitrary or discriminatory, and which is in keeping with generally accepted standards of fairness, as recognized in Canadian administrative law.

Sport Dispute Resolution Centre of Canada