SPORT DISPUTE RESOLUTION CENTRE OF (SDRCC) CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA (CRDSC)

NO: SDRCC 18‐0366

GRACE WHEBBY

(CLAIMANT)

AND

CANOE CANADA (RESPONDENT)

REASONED DECISION

Appearances:

Chris Chaisson On behalf of the Claimant Grace Whebby

Adam Klevinas On behalf of the Respondent Casey Wade Anders Gustafsson (Head Coach) Graham Barton (Chief Technical Officer) Ian Mortimer 1. On July 11, 2018, I was selected by the parties as a Med/Arb Neutral and appointed by SDRCC under Article 6 of the Canadian Sport Dispute Resolution Code (the “Code”) to hear Grace Whebby’s appeal of Kayak Canada’s (“CKC”) decision not to select her to the 2018 U23 World Championship Team (“the Team”). 2. The proceedings were conducted on an expedited basis due to a July 21, 2018 deadline for the selected athletes to travel to the World Championships in Bulgaria. 3. Following an unsuccessful attempt to resolve the dispute by mediation on July 14, 2018, the parties filed written submissions on July 16 and 17, 2018. The parties subsequently agreed that additional oral submissions were not necessary. 4. On July 19, 2018, I issued my decision to deny Ms. Whebby’s appeal, with reasons to follow. These are my written reasons.

BACKGROUND

5. Ms. Whebby is a competitive kayaker and a member of CKC’s Kayak Sprint team. 6. CKC is the national governing body for competitive in Canada. It is recognized by the Federation, the Canadian Olympic Committee, the Canadian Paralympic Committee and as the designated authority for the sport in Canada. 7. On June 26, 2018, Ms. Whebby was informed that she had not been selected to the Team. 8. Ms. Whebby disputed the substance and reasonableness of the Selection Criteria as well as the reasonableness of the selection decision. 9. Because of the time constraints presented by the competition deadline, the parties agreed to bypass CKC’s internal appeal process and proceed directly to SDRCC to resolve the dispute. 10. CKC has the initial burden of establishing that the Selection Criteria were properly established and that the selection decision was made in accordance with those criteria. If that burden is satisfied, the onus then shifts to Ms. Whebby to demonstrate, on a balance of probabilities, that the Selection Criteria were not properly established and that the selection decision was not made in accordance with that criteria, or that the decision was otherwise wrong, objectively unreasonable or tainted by bias.

The Selection Criteria

11. The relevant portions of the National Team Selection Procedures 2018 – Sprint are as follows:

1. Performance Objectives

The following Canoe Kayak Canada Selection Procedures are guided by CKC’s performance objectives where an athlete or crew demonstrates the ability/potential to make a Top 8 finish at competitions for which athletes are selected and be progressing toward the podium at World Championships and Olympic Games.

2. Selection Procedures

The processes laid out in this document governs the selection of athletes to CKC teams in each of the disciplines and must be read in conjunction with the relevant Selection Criteria Supplement applicable to each CKC team/pool. […]

5. Selection Panel and Authority for Selection

5.1 Subject to clauses 4.2 and 4.3 there shall be a Selection Panel for each team to be selected. Each Selection Panel shall be appointed by the CTO [Chief Technical Officer] of CKC. Each Selection Panel will be responsible to the CTO and will comprise three persons: CTO, HC [Head Coach] and a member of the HPC [High Performance Committee]. Additional members, at the CTO’s discretion, may be appointed where the CTO deems this necessary.

7. Selection Criteria

7.1 The selection criteria are developed by the CTO. Following feedback from coaches, athletes and the CKC community, the final Selection Criteria is then forwarded to the High Performance Committee for review. The CTO then forwards this criteria to the Sprint Racing Council (SRC) for approval.

7.2 The criteria to be applied by the Selection Panel for the applicable team is that set out in the relevant Selection Criteria Supplement.

12. The relevant portions of the U23 Sprint World Championship Team Criteria Supplement 2018 are as follows: 1. Performance Objectives The following U23 World Championships Team Selection Criteria are guided by CKC’s performance objectives where a crew demonstrates the ability/potential to make a Top 8 at the U23 World Championships and be progressing toward the podium at Senior World Championships and Olympic Games. 2. Selection Overview 2.1 Athletes/Crews who are vying for a nomination to the U23 World Championship Team (The Team) will do so as part of the Senior World Championship Selection process. 2.2 The 2018 competitions that will be used in the selection of the Team are: 2.2.1 National Team Trials #1, April 20‐22, Gainesville, Georgia 2.2.2 World Cup #1, May 18‐ 20, Szeged, Hungary 2.2.3 World Cup #2, May 25‐27, Duisburg, Germany 2.2.4 National Team Trials #3, June 22‐24, Montreal, Quebec 2.3 […] 2.4 A crew can obtain a nomination to The Team on the basis of crew assessment during the Senior World Championships selection process. 2.4.1 See 2018 Senior World Championships Selection Criteria Supplement for details. 2.4.2 Priority nominations will be made for athletes or crews who are selected to the Senior World Championship Team. 2.5 It is not a requirement for Canoe Kayak Canada to enter crews in all events at all competitions. 2.6 […] 2.7 […] 2.8 The number of crews selected to the Team is dependent on the quality of the performance. Factors that will be considered when assessing the quality of performance can include:  % time differential from the GMT ‐ An athlete/crew’s performance against a Gold Medal Time (see Appendix A)  % time differential from the AFT – An athlete/crew’s performance against an A‐Final Time (see Appendix A)  % time differential from the Winner  % time differential from the previous finisher  Known Performance (e.g. results against known international competitors in the race)  Performance history (e.g. international results)  Ranking Lists (See Ranking Lists points chart in Appendix B) […]  Ranking Progression (Improvement or decline in National Rank)  Unforeseen Circumstances (See Section 8: National Team Selection Procedures 2018 – Sprint Document found on the CKC Website)

These factors are in no particular order and one or more may be used to either support or dismiss a selection. Other factors not listed may also be considered. […]

Were the Selection Criteria properly established?

13. The following narrative was outlined in CKC’s written submissions. As Ms. Whebby did not challenge any of this evidence, I accept it as fact. 14. Graham Barton, CKC’s Chief Technical Officer, developed CKC’s Selection Criteria, as he was mandated to do under Section 7 of the National Team Selection Procedures 2018 ‐ Sprint. 15. Mr. Barton made a considered decision to alter the criteria from a participation approach, which had guided selection decisions in previous years, to a results‐based or performance approach, with a view to achieving Top 8 finishes at competitions for which athletes were selected. 16. Prior to drafting the Selection Criteria, Mr. Barton engaged in a consultation process as he felt it was important to communicate the revised performance objectives with the paddling community. 17. In the spring of 2017, Mr. Barton held face‐to‐face meetings with CKC’s national team to provide a general overview of the changes to the selection policy, and in the summer of 2017, held informal discussions with club and provincial team coaches. 18. In September 2017, Mr. Barton held a planning session with CKC’s National team coaches to review and discuss the principles of the Selection Procedures and Criteria. 19. Mr. Barton drafted the Selection Procedures and Selection Criteria supplements in October 2017, and circulated them to athletes, coaches and the CKC community. Athletes and coaches were asked to provide feedback and were given the opportunity to seek clarification on any aspect of the documents. 20. Mr. Barton hosted a workshop with coaches in late November 2017 at CKC’s annual summit to review the principles of the Selection Procedures and Criteria supplements. 21. In January 2018, CKC’s High Performance Committee (“HPC”) reviewed the first draft of the documents and provided feedback to Mr. Barton. The documents were redrafted and circulated to the CKC community for further feedback. 22. On February 8, 2018, Mr. Barton and the Coaches’ Representative on the HPC held a conference call with the coach community to discuss the documents. Approximately 10 coaches participated. 23. On February 9, 2018, Mr. Barton and the Athletes’ Representative on the HPC held a conference call with the athlete community to obtain their feedback on the documents. No athletes other than the Athletes’ Representative participated in the call. 24. Between February 10 and 14, 2018, the HPC reviewed the revised documents and approved the final versions. On February 22, 2018, CKC’s Sprint Racing Council, the HPC oversight body, approved the final version of the documents. 25. On February 23, 2018, CKC posted the final, approved versions of the Selection Procedures and Criteria supplements to its website. 26. CKC received no objections to any of the documents following their publication. 27. As prescribed by the Selection Criteria, athletes seeking nomination to the U23 team were evaluated as part of the Senior World Championship selection process. CKC says that it assessed the U23 athletes with the senior athletes based on objective data that indicates that the vast majority of athletes performing at the Top 8 level internationally in the U23 category are also top‐ level international senior athletes.

Athlete’s position 28. Ms. Whebby contends that the U23 racing category was created to assist in the development of athletes leaving the U18 age category who have not yet reached the level or ability of senior athletes. She argues that it is unfair to evaluate these athletes, who do not have the experience or training of senior athletes, at a senior level, particularly in the absence of adequate funding for that training. 29. Ms. Whebby also contends that each age category should be evaluated according to their age group requirements, based on the standards set out in the Selection Criteria. 30. While I appreciate Ms. Whebby’s contention that the selection process unfairly evaluates athletes in her age group against senior level athletes, the evidence is that the Selection Criteria were developed over a six‐month period with the input and feedback from members of the paddling community. The Criteria, including the performance objectives and standards by which the athletes would be evaluated, were approved at the end of that consultative process. It is not for the Tribunal to interfere with policy choices made by a sporting organization after full opportunity for input and debate, provided they are not vague, arbitrary or discriminatory and otherwise comply with the general law. 31. In the absence of any dispute by Ms. Whebby that the Selection Criteria were improperly established, I find that CKC’s Selection Procedures and Criteria Supplement were objectively reasonable, fully considered by the paddling community and communicated to concerned parties in a timely fashion.

Were the Selection Criteria Properly Applied?

32. This summary is not intended to be a comprehensive recitation of every point made by each of the parties. It is a summary of the key positions of the parties, without oversimplifying those positions.

CKC’s Position 33. CKC agrees that Ms. Whebby was eligible for selection to the U23 team for the 2018 competition season, as she met both the age requirements and satisfied the eligibility criteria set out in section 6.1. 34. CKC assessed all of the athletes’ performances at four competitions as identified in the Selection Criteria: two National Team Trials in April (NTT1) and June 2018 (NTT3) and two World Cup events in May. At the first Team Trial in April (NTT1), Ms. Whebby finished 12th in the Senior Women’s K1 500m event, and 10th in the Senior Women’s K1 200m event. Following this competition, Ms. Whebby was ranked 11th on the Senior Women’s kayak combined ranking list and CKC did not select her to compete on the 2018 World Cup Tour. Ms. Whebby did not appeal CKC’s decision in this regard. CKC selected seven female kayak athletes to compete on the 2018 World Cup Tour, only one of whom was a U23 athlete. 35. At the second Team Trial in June 2018 (NTT3), Ms. Whebby finished 12th in the Senior Women’s K1 500m event and 6th in Senior Women’s K1 200m event and was ranked 9th on the Senior Women’s Kayak combined ranking list following this event. 36. Ms. Whebby’s final position on the combined ranking list was 10th after the results of the two team trials were considered. 37. In accordance with Section 5.1 of the Selection procedures, CKC established a selection panel to assess the performances of athletes eligible for selection to the World Championship Team. The panel included Mr. Barton, Mr. Gustafsson, and Mallory Nicholson, a two‐time World Champion in women’s canoe and a long‐standing member of the HPC. 38. The HPC met on June 25, 2018 to review the Selection Panel’s decision and to consider whether the performances satisfied CKC’s stated performance objective.

39. CKC says that, with respect to Ms. Whebby, it considered the following factors: * her % time differential from the U23 Gold medal time (95.5% (K1 500m, NTT1) and 96.2% (K1 200m, NTT1), 94.8% (K1 500m, NTT3) and 87.9% (K1 200m, NTT3)); * her % time differential from the U23 A Final Time (“AFT”) (97.7% (K1 500m, NTT1), 102.2% (K1 200m, NTT1), 96.9% (K1 500m, NTT3) and 93.4% (K1 200m, NTT3)); * her % time differential from the Winner of the A final in each race in which she competed at NTT1 and NTT3: (94.2% (K1 500m, NTT1), 95.7% (K1 200m, NTT1), 94.48% (K1 500m, NTT3) and 97.34% (K1 200m, NTT3)); * her known performance ‐ Ms. Whebby’s performances in K1 500m and K1 200m at NTT1 and NTT3 were compared to the best Canadian athlete in these distances; * her Performance history ‐ Ms. Whebby was 7th in the K1 200m event at the 2017 Junior World Championships; and * her ranking lists: Ms. Whebby was ranked 11th overall amongst senior women kayak athletes after NTT1 and 10th overall after NTT3. 40. CKC says that, after considering these objective factors, the Selection Panel concluded that Ms. Whebby’s 2018 performances did not indicate that she had the ability/potential to obtain a Top 8 performance at the U23 World Championship and was not progressing toward a podium finish at the Senior World Championship and Olympic Games. For this reason, CKC decided that it would not select Ms. Whebby to the team. 41. CKC says that the selection decisions were made in accordance with the Selection Criteria. It also argues that its assessment of Ms. Whebby’s eligible 2018 performances to determine if she had demonstrated the potential to obtain a Top 8 result at the U23 World Championship was fair, reasonable and fell within a range of possible, acceptable outcomes.

Athlete’s Position 42. Ms. Whebby argues that she has met the Selection Criteria and has achieved a better result than the selected athlete’s time and placement at NTT3. She argues that CKC has not fairly recognized her performance in light of the published Criteria. She also argues that the Criteria were not applied consistently for all athletes or teams. 43. Ms. Whebby contends that her % differential was better than the selected team member in 5 of 12 categories and better than multiple selected members of the Senior Women’s kayak team. She further argues that she surpasses the AFT by the greatest margin in any race compared to the selected member of the U23 kayak team. She argues that CKC’s decision is not supported by the analysis, and submits that selecting the 5th or 6th ranked senior athlete with comparable percentage times rather than the 2nd ranked U23 athlete cannot be justified. 44. Ms. Whebby’s known performances were 7th place in the K1 200m distance at the 2017 Junior World Championships and 1st in the 2017 K1 200m carding selection race. She says that her results at NTT1 and NTT3 races demonstrated consistently improved performances leading into the World Championships compared to other selected athletes. 45. Ms. Whebby also says that her ranking list and positions have improved compared to the selected U23 kayak athlete. 46. Finally, Ms. Whebby says that by not selecting her, after placing 7th at the Junior World Championships in 2017, because she does not meet Senior standards does nothing to assist her in becoming a better Senior level athlete, and does not assist CKC in achieving its goal of podium or Top 8 finishes in the future. She submits that not only has she demonstrated a high performance standard, she has the ability to improve her performances in future years.

ANALYSIS AND DECISION

47. Section 6.17(a) of the Code provides that the Panel shall have full power to review the facts and the law. In particular, the Panel may substitute its decision for:

(i) the decision that gave rise to the dispute […]

[…] and may substitute such measures and grant such remedies or relief that the Panel deems just and equitable in the circumstances.

48. Ms. Whebby has the burden of demonstrating, on a balance of probabilities, that she should have been selected. (Section 6.7 of the Code) 49. I am not bound by previous Tribunal decisions (Section 6.21 (k) of the Code). Nevertheless, I find no reason to depart from previous Tribunal decisions which have concluded that arbitrators will not easily interfere with decisions reached by responsible sports authorities, who are presumed to have the knowledge and experience to make decisions they have made, whether those decisions relate to the creation of criteria or the application of that criteria, be it in relation to team selection or carding. 50. Provided that CKC’s selection decision falls within a range of possible, acceptable outcomes that are defensible in light of the Selection Criteria and the facts, the Tribunal will not interfere with the decision. (see, for example, Blais‐Dufour v. (SDRCC 11‐0145) and Larue v. Bowls Canada (SDRCC 15‐0255)) 51. In Palmer v. (SDRCC 08‐0080), Arbitrator Pound determined that the standard of review of decisions of national sports organizations is that of reasonableness, not correctness. In doing so, he concluded that arbitrators will be willing to interfere with a sport organization’s decision in relation to that sport […] only when it has been shown to their satisfaction that the impugned decision has been so tainted or is so manifestly wrong that it would be unjust to let it stand.

52. Similarly, in Sera (SDRCC 13‐0200) Arbitrator Drymer stated that deference is owed to the sporting authority’s experience and expertise:

[…] wherever possible, selection decisions are best determined by […] the appropriate and knowledgeable representatives of the NSO (high performance coaches, selection committees), in accordance with valid and applicable rules.

53. While I express no view on whether or not the selection decision was “correct” or, in Ms. Whebby’s view, “fair,” there is no evidence that the decision was unreasonable or did not fall within a range of possible outcomes. 54. I acknowledge Ms. Whebby’s view, which seems to form the basis of her argument, that it was not fair to assess her against senior athletes with more experience and access to funding. However, as I noted above, the decision to apply more stringent criteria this year than in previous years was a considered policy decision that was fully discussed and approved by the paddling community. 55. The Criteria outline a number of factors the selection committee, which was composed of individuals with significant expertise and technical knowledge, were able to consider. Ms. Whebby did not dispute that the factors identified in the Selection Criteria were considered by the selection committee. Furthermore, there is no evidence the selection committee considered irrelevant factors or that the Criteria were inconsistently applied. 56. I accept that Ms. Whebby performed well in competitions in previous years, and that her percentage differentials were better than some other selected athletes. However, there are many other factors that the selection committee considered in addition to the time differentials. Those include ranking and consistency, as well as relevant factors including weather conditions at any particular race, who the other competitors were and where those athletes placed at international events, the different distances (including 200m and 500m) and disciplines (kayak and canoe), as well as a consideration of athletes for singles and double events. 57. I also accept that all of Ms. Whebby’s performances were considered by the selection committee. After considering all of the factors, the selection committee was of the view that Ms. Whebby did not demonstrate the ability and potential to reach an A final at this competition. 58. The individuals on the selection committee have far better knowledge about the sport than an arbitrator and will be afforded significant deference: The default position in [selection cases], absent reviewable error or proof of bias, is that those responsible for selection decisions are generally the most knowledgeable and experienced persons available, who attempt in good faith to produce the best possible outcomes in the particular circumstances. (Richer v. the Canadian Cerebral Palsy Sports Association (SDRCC 15‐0265)) 59. Although Ms. Whebby did place 6th at one Senior event at the four National Team trial events she competed in, her combined ranking was 10th after all four races. It is difficult to find that CKC’s decision not to select her based on its stated objectives, clearly outlined in the Selection Criteria, was an unreasonable one. 60. I appreciate Ms. Whebby’s concern that she does not have access to financial support necessary for her to achieve the potential to achieve a Top 8 result. However, that is a concern that is likely shared by athletes in many other sports and cannot be resolved through this process. 61. I also have no doubt in Ms. Whebby’s belief that experience at a World Championships would serve to assist her in achieving strong performances in the future. She has worked hard over the years, as her performances have demonstrated, and CKC remains committed to assisting her reach its performance standard. 62. While my decision is no doubt disappointing to her, I hope that Ms. Whebby’s commitment and dedication to her sport will bring her many successes in the future. 63. I wish to thank counsel and the parties for their efforts in this appeal.

CONCLUSION

64. The appeal is dismissed. 65. Neither party sought costs. In these circumstances, I make no award.

DATED: August 1, 2018, Vancouver, British Columbia

______Carol Roberts, Arbitrator