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

No: SDRCC 15-0269

Kira Lengkeek (Claimant)

and

Canada Snowboard (Respondent)

Attendees at hearing:

For the Claimant: Michael-Tai Nguyen Shannon Lengkeek Kira Lengkeek

For the Respondent: Fedora Mathieu Guy Poupart Robert Joncas

______

REASONS FOR DECISION

1. Introduction

1. This case concerns the Claimant’s appeal of a decision made by the Respondent and dated June 24, 2015 (the "Decision"), to not name her to the Halfpipe National Team, the Slopestyle Development Team, and the Slopestyle Next-Gen Team. As a result of not being named to these teams, the Claimant was not eligible to be nominated for carding for the 2015-2016 carding cycle under the Athlete Assistance Program (the "AAP").

2. On July 11, 2015 the Claimant's mother, as authorized Representative for the Claimant, filed a Request on her behalf (the "Request"). Various materials were filed at the time and shortly thereafter in support of the Request.

3. On July 17, 2015 the Respondent’s legal counsel, as authorized representative for the Respondent, filed an Answer (the “Answer”) on its behalf. The Answer alleged that the Decision appealed by the Claimant was final and could not be appealed to the SDRCC. It challenged the jurisdiction of the SDRCC to hear this dispute, and asked that a Jurisdictional Arbitrator be appointed by the SDRCC to rule on this preliminary issue. It also asserted that the outcome of another case between another athlete and the Respondent might influence or be of importance in rendering a decision in this case on the merits.

4. On July 24, 2015 the Claimant’s legal counsel, as authorized representative for the Claimant, filed an Amended Request (the “Amended Request"). The Amended Request clarified the issues raised in the Request but did not substantively change the issues. No amended Answer was filed. - 2 -

5. On July 31, 2015 a Jurisdictional Arbitrator rendered her decision, finding that the SDRCC did have jurisdiction and that the case should proceed on the merits. Reasons for that jurisdictional decision were issued on August 10, 2015.

6. On August 3, 2015 there was a preliminary conference call to plan the course of these proceedings on the merits. The parties agreed that they wished to delay things to allow that other pending case to conclude, and thereafter proceed to a hearing on the merits during the week of August 10, 2015. The Arbitrator who initially was to decide the case was unable to accommodate that schedule, and so I was appointed Arbitrator.

7. On August 7, 2015 I conducted a preliminary conference call to plan the course of these proceedings on the merits. I confirmed that there were no objections to me being named as Arbitrator, and we agreed on a hearing date and deadlines for submissions in advance.

8. On August 11, 2015 the Claimant's legal counsel filed a submission on her behalf. On August 13, 2015 the Respondent's legal counsel filed a reply on its behalf.

9. On August 14, 2015 we proceeded to a hearing on the merits. At the close of the hearing, after each party had presented its evidence (including witnesses) and arguments, each confirmed having been given a fair hearing.

10. On August 21, 2015 I issued my short decision without reasons in accordance with Article 6.21(c) of the Canadian Sport Dispute Resolution Code (January 1, 2015) (the “Code"). The SDRCC advised the parties of my decision that same day it was issued. In my decision I ordered as follows:

This is my decision pursuant to the Canadian Sport Dispute Resolution Code (January 1, 2015), arising from the hearing, which took place on August 14, 2015.

The Claimant's Request appealed the Respondent's decision to not name her to the Halfpipe National Team, the Slopestyle Development Team, and the Slopestyle Next-Gen Team. It was alleged that by not being named to these teams, the Claimant could not obtain funding through the Athlete Assistance Program (carding), although she had allegedly met the carding criteria.

After considering all of the evidence and arguments advanced, I have decided to dismiss the Request of the Claimant.

Complete written reasons for my decision will follow within the timelines prescribed by the Canadian Sport Dispute Resolution Code.

11. The reasons for my decision are set out below.

2. Factual Background

12. The facts recited below are a summary setting out the most salient parts of the evidence. Even though not documented in these Reasons, however, in coming to my decision I have considered all of the evidence presented.

13. As there was little in the way of conflict on the most important events, I generally have not attributed the evidence to specific witnesses. I felt it preferred to recite the facts in a coherent way, rather than focusing on precisely who said what in their testimony. - 3 -

14. The Claimant is 16 years old. She is a talented athlete in the sport of snowboard, in both the Slopestyle and Halfpipe disciplines. She has been competing for about 5 years. She competed in the World Junior Championships in China in the 2014-2015 season, and finished 5th in Halfpipe and 14th in Slopestyle. This was her only international competition for this season. Her overall performance was good but objectively behind the performance of those appointed to the High Performance Program (the "HPP") ahead of her. The HPP includes the National Teams for the disciplines, as well as any Developmental Teams or Next-Gen Teams.

15. The sport of snowboard has progressed significantly and continues to do so. Athletes improve and constantly introduce innovative and impressive tricks. Competitors learn these new tricks and are inspired and challenged to develop new tricks of their own. That cycle continues and the sport continues to evolve.

16. The Claimant has done very well in snowboard, and no doubt this is a credit to her own ability and hard work, as well as the support she has received from others, particularly her family.

17. As a National Sport Organization, the Respondent is party to an agreement with Sport Canada respecting athletes in snowboard who might qualify to receive financial aid (“carding”) with Sport Canada through the AAP. In order to obtain a carding nomination certain criteria have to be met, including specifically for our purposes here, the athlete must be named to the HPP.

18. The Snowboard National Teams (including Developmental Teams and Next-Gen Teams, if they exist) receive 98% of their funding from Sport Canada. This funding goes to develop the best athletes, and is linked to the Long Term Athletic Development model, which links back to the potential division of athletes in the HPP on the National Team, the Developmental Team or the Next-Gen Team.

19. Being named to the HPP in a particular discipline is a requirement but in and of itself does not qualify an athlete for carding. Other criteria must be met as well and so being named to the HPP is not by itself a guarantee of a successful application for carding.

20. Criteria for being named to the HPP are set by the Respondent. The intention is to have only the very best athletes who are going to compete successfully and represent Canada on the international scene. This is not about participation or reward for good work, but rather is intended to develop elite athletes who are able to win medals for Canada in international competition.

21. Eligibility and selection criteria for the HPP change from year to year. They are annually set by the Respondent through the efforts of Robert Joncas (the Director of the HPP) together with coaches and various other technical personnel who meet for this purpose. They review national and international statistics, all relevant information, and establish the criteria.

22. Performance in the present season determines selection for the HPP for the following season. Normally the eligibility/selection criteria for the HPP for the following season are set towards the very end of if not after the present season has concluded. This means that in most circumstances the specific criteria by which performances of the athletes are to be assessed, for the purposes of the HPP, are finalized after-the-fact. - 4 -

23. By this system then, athletes would conclude the 2014-2015 season not being aware of the specific criteria by which they were going to be assessed. The criteria would then be set by the Respondent (knowing what had already occurred throughout the 2014-2015 season), the athletes' performance in the 2014-2015 season then assessed as per that criteria and finally, eligibility and selection determined for the 2015-2016 HPP year.

24. There are exceptions to this timing of events, typically in Olympic years where obligations arising from the Olympics require teams to be named earlier. This means that criteria must be established at the start of or at the latest in the earlier part of the season, before most events have taken place, and then the athletes would compete and be selected as per those pre-set criteria. The Respondent described this as a real challenge, where everyone would "cross their fingers" in the hope that the eligibility and selection criteria proved to be correct, with the best athletes being selected to represent Canada at the Olympics.

25. The Respondent explained in detail why this after-the-fact process was much preferred to what was required in Olympic years.

26. Something called the Canadian Ranking List (the "CRL") is generated to rank Canadian competitive snowboarders. The CRL is a major component of selection for the HPP. Upcoming events and their anticipated point values are available online at the start of each season. Athletes gain points by competing in the events. The better the athletes do, the more points they get and the higher the CRL ranking. Not all events have the same point value potentially available. The intention is to set points considering factors such as the number and quality of athletes competing, the weather conditions, the level of competition, whether it is an international or Canadian field, etc. In other words, the stronger the event actually is, the more points should potentially be available.

27. As noted, the events and anticipated point values are published at the start of the season but things are amended throughout the course of the season, after each event, depending upon what actually occurs at the event. As an example, if elite athletes choose for whatever reason to skip a particular event and so the field is weaker than anticipated, then that can reduce the amount of points allocated to the event. The converse can also of course happen if, for example, more elite athletes attend. If weather cancels an event, or limits greatly the number of athletes who can compete, that impacts things as well and points are eliminated or reduced.

28. After each event the Respondent reviews what happened, and then has the ability to increase or decrease the points for the event by a maximum of 10 points. This is done afterwards, at the discretion of the Respondent, and is based on the factors noted. It also is published promptly after the events have taken place, so everyone who wishes to do so can know where they stand in the CRL and make adjustments to schedules as appropriate as the season continues.

29. Being eligible for selection to the HPP does not automatically result in an athlete being selected, just as being eligible for carding does not make that athlete automatically guaranteed carding. There is a link, but eligibility for the HPP is merely the first step in the process. To become carded, an athlete must accomplish the following:

1. meet the eligibility criteria to be named to the HPP; 2. be selected to the HPP; 3. meet the eligibility criteria for carding under the AAP; and 4. be awarded carding by Sport Canada. - 5 -

30. Specific selection criteria for the HPP may change from year to year, but there have always been 3 different general themes of criteria evaluated: results, skill and potential. To be evaluated on these criteria however, one must first meet the eligibility criteria.

31. Just as being considered for the HPP is designed to select and train the very best athletes for success, the same can be said about carding under the AAP. Simply put, both selection for the HPP and carding under the AAP are designed to support the elite, so that they can compete for Canada successfully at the international level.

32. The Claimant set 2 personal goals for the 2015-2016 season;

1. to make the HPP in snowboard in both Slopestyle and Halfpipe; and 2. to be a carded athlete pursuant to the AAP.

33. As a result, the Claimant (and more so her mother, who was assisting the Claimant on this) set out to plan the 2014-2015 season to try and determine how to accomplish these goals. In particular, the Claimant’s mother used the published criteria on the Respondent’s website and also communicated with staff of the Respondent, including Robert Joncas.

34. For both Halfpipe and Slopestyle, the published criteria on the Respondent’s website were initially to be found in a document updated as of April 2013, applicable for the 2013-2014 season. This was later updated for the 2014-2015 season by 2 publications dated March 2014. There was no evidence to suggest that these March 2014 publications were ever posted on the Respondent’s website. This seems to have been an error rather than an intentional act.

35. In early April 2015 the Claimant applied to the Respondent for selection to the HPP for Halfpipe and Slopestyle, and sought nomination for carding for 2015-2016. Only after that did the Respondent finalize and post the protocols with applicable criteria for eligibility/selection to the HPP for Halfpipe and Slopestyle, for the 2015-2016 season.

36. These new protocols had changed so that even to be eligible, an athlete would have to have participated in a certain minimum number of specified CRL value point level events in the 2014-2015 season. There was not this requirement in the past, though the CRL standings had been used since the inception of the CRL system. The Claimant had not participated in the requisite number of events and so was not eligible to be considered for selection.

37. During the course of the 2014-2015 season, the Claimant's mother not only had looked at the published material on the Respondent's website but went so far as to correspond with Robert Joncas.

38. The Claimant's mother made it clear what she was seeking, namely information on the path for her daughter to be named to the HPP and receive carding for 2015-2106. On September 22, 2014 she and Mr. Joncas exchanged some correspondence, with Mr. Joncas writing (in part) as follows:

Hi Shannon,

As Leo told you in the previous email I am getting back to you regarding your question about Junior Worlds. At this time, we are still working on our selection protocol for Junior Worlds, as well as our selection protocol for AAP (Athlete - 6 -

Assistance Program). From year to year, there are always some changes in the different protocols. Both protocols are linked together...

39. In response, the Claimant’s mother wrote (in part) as follows:

…Kira is looking for every opportunity to progress her riding in both Halfpipe and Slopestyle. One of her goals is to be considered for the Development Team progressing to the National Team (Slopestyle: am I correct that there is no Halfpipe team at this time?). We had looked up the carding requirements for the Development Team last season and I believe she met all the requirements (including FIS points), at the time, except that she had not attended the Junior Worlds for a top 16 finish. In order to achieve her goals, if she has the skill set required, she would appreciate the opportunity to compete (Halfpipe and Slopestyle).

Any information or direction you can offer would be greatly appreciated as we gain information that will assist Kira in further developing her riding and achieving her personal goals. If there are additional competitions that you would suggest or require, could you please let us know so that she can arrange to attend those as well. We appreciate any assistance you can offer.

40. In response to that, Mr. Joncas wrote (in part) as follows:

…Now with regards to the AAP and the criteria, to clarify, Kira did not meet any criteria last year. She did not go to Junior Worlds, so, the only way for her to quailify [sic] for carding was under the Priority 3 for both HP and SBS [Halfpipe and Slopestyle] and it is not based on the FIS points but on the Canadian Ranking List [CRL] and in both discipline, [sic] she does not meet the minimum requirement points. This process is set by myself, our manager at the High Performance Program with the advices from our National Team coaches and it is approved by our Executive Director, then supported by Sport Canada under their recommendations. To qualify for a development card next spring, this is according to the 2013 - 2014 AAP protocol since the 2014 – 2015 is not availble [sic] yet, she will need to earn a spot to go to Junior Worlds Championships and she will need to get a top 16. I am not saying that it is impossible but with my experience at Canada Snowboard for 10 years, she will need to work really hard to make this happen this season. I hope that Kira could meet these criteria as soon as possible and I wish her good luck with this. Again, best advice, Halfpipe or Slopestyle, but not both.

As I told you in the previous email, we are working on our selection protocol for the coming season. They should be available soon on our website.

41. The Claimant’s mother stated that based on this correspondence, including specifically the reference to the 2013–2014 AAP protocol and the other direction given in the correspondence, they planned the season as they did.

42. The Claimant would have met the eligibility criteria for 2013-2014 season. The Claimant’s testimony and that of her mother was that had they known of the changes for the 2015- 2016 year, the Claimant would have changed her schedule and met the eligibility requirements.

43. Sport Canada required the Respondent to publish its AAP criteria at the start of the season. However, Sport Canada imposed no precise deadline for publishing the HPP criteria. - 7 -

44. While it may be difficult or impossible to know specifically what is required as the season progresses, according to the Respondent at least, everyone in snowboard understands or should understand that they have to train and do the best they can to go to the bigger contests where they can achieve more points and climb up the rankings.

45. At one stage in the process, one of the witnesses for the Claimant was referring to some correspondence and discussion with an employee of the Respondent, which to that point had not been disclosed in any of the filings. In short, it caught the Respondent by surprise and as a result it objected both to the evidence as to any alleged statements by the employee, as well as the correspondence with that employee. It was also noted that the employee was not available to be contacted at this late stage, and as a result an effective cross examination would not be possible.

46. The Claimant argued that notwithstanding the objection, the evidence should be admissible with me applying the weight appropriate to it in all of the circumstances.

47. After hearing the parties on the point I determined that it would be unfair to consider the evidence, and therefore ruled it inadmissible. It is true that the strict rules of evidence or court procedures do not apply to a proceeding such as this, but the process still needs to be fair. There had been ample time for disclosure of this information prior to the hearing, and allowing it in at this late stage (even subject to weight) seemed unduly prejudicial, particularly as the individual in question was not available to assist in cross examination or potentially rebut the evidence himself by testifying.

3. The Law on Article 6.7 of the Code

48. Article 6.7 of the Code reads as follows:

Onus of proof in team selection and carding disputes

If an athlete is involved in a proceeding as a Claimant in a team selection or carding dispute, the onus will be placed on the Respondent to demonstrate that the criteria were appropriately established and that the selection or carding decision was made in accordance with such criteria. Once that has been established, the onus of proof shall shift to the Claimant to demonstrate that the Claimant should have been selected or nominated to carding in accordance with the approved criteria. Each onus shall be determined on a balance of probability.

49. The practical application of this can be seen in Stangeland v Canadian Snowboard Federation, SDRCC 14-0218 (Welbourn). There, the Claimant challenged the nomination of another athlete to the 2014 Winter Olympic Games team, ahead of her. She argued that the NSO had ignored required criteria in the selection protocol. Arbitrator Welbourn accepted the NSO’s position, concluded that the criteria set out in the selection protocol were appropriately established, and so the onus fell to the athlete to show that she should have been selected based on those selection criteria. He concluded that she was unable to do so. There were 2 methods of selection to be used, method "A" and method "B". Method "A" was to be used first, and the second athlete was selected properly as per that Method. Whether or not the claimant would have been selected by method "B" was not relevant as method "B" was not required to be used.

50. In Richer v The Canadian Cerebral Palsy Sports Association (including Boccia Canada), SDRCC 15-0265 (Pound QC), Arbitrator Pound made the following comments (with which I agree) regarding selection criteria; - 8 -

Selection criteria need to contain some reasonable flexibility, but, at the same time, cannot be entirely arbitrary. Certain sports lend themselves to somewhat easier team selection choices, where objective criteria such as times, points scores, weights and distances can be used. Others can be more or less self-selections, such as eligibility based on the results of qualification tournaments. The more difficult choices occur when there may be some element of judgment required regarding performance standards or a need to produce a team that will function most effectively in competition. The default position in such 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. (at p11)

51. In Larue v Bowls Canada Boulingrin, SDRCC 15-0255 (Pound QC) an accomplished athlete who had in the past been on the national team many times, challenged the decision not to name him again. Arbitrator Pound noted that the decision made by the team selection committee involved a great deal of discretion and so the applicable standard of review was that of reasonableness and not correctness. He noted that the leading case on reasonableness was Dunsmuir v. , [2008] 1 SCR 190, in which the Supreme Court of Canada determined the difference between the terms "correct" and "reasonable", and what level of deference should be applied by a reviewing body respecting a decision made by an administrative tribunal.

52. Applying Dunsmuir in Larue, Arbitrator Pound noted that there were 3 considerations that should guide an arbitrator when applying the “reasonableness” test;

1. absent cogent evidence of error, he should adopt a deferential assumption that the team selection committee, being composed of experienced experts, "knows its business"; 2. the arbitrator's role was not to rewrite the high performance policy or team selection criteria with a view to "improving" things or substituting his personal view of what they could or ought to contain, rather, the operating consideration should be that that the organization knows the sport better than any arbitrator could; 3. the arbitrator’s role simply was to determine whether the outcome of the team selection process was made in accordance with the selection criteria and whether that outcome fell within a range of possible and reasonable outcomes, defensible in light of the facts and the team selection criteria.

53. In Azmat, Khan and Springett v , SDRCC 13-0201 (McInnes). This was an appeal of a selection decision. The athletes had challenged the NSO for not publishing in advance formal, written criteria regarding the selection process. While that was true, the evidence showed that all athletes apparently knew of the general process (a selection camp and fitness testing). The Arbitrator found that there were imperfect applications in the procedures and suggested that the NSO should improve the “integrity” of their procedures. Ultimately however, the Arbitrator was unable to find a palpable or egregious error in the conclusion of the appeal panel decision, and upheld that decision and the selection.

54. These are but examples of the many cases dealing with these types of issues. While of course every case must be decided on its own merits, it seems well established that arbitrators should apply the “reasonableness” test in a case such as this, and should be quite “hands off” to allow the entity considerable discretion in setting and applying its standards. - 9 -

4. Arguments

55. The following is a summary of the parties' arguments. It is not intended and could not be a complete recital of everything presented in the written materials or at the hearing itself. While I do not refer specifically to everything presented, in making a decision I have in fact considered very carefully all of the arguments presented by the parties.

56. The Claimant’s counsel argued that the process was fundamentally unfair and unreasonable, and that it was simply wrong to determine the criteria for eligibility/selection after-the-fact. There was nothing more that the Claimant or her mother could have done, having checked the Respondent’s website regularly, and even following up by direct communication with staff from the Respondent. Counsel particularly stressed the correspondence with Mr. Joncas, which was described as detailing what was required of the Claimant to be named to the HPP and receive carding. It was suggested that effectively this was a contract, where the Claimant had fulfilled her end of the bargain but the Respondent had not. It also argued that the Respondent should have done more, proactively, to ensure that the Claimant was aware of the criteria she was facing.

57. Counsel for the Claimant argued that by the nature of the process, with the criteria being published after-the-fact, there was a risk of manipulation or bias. He was quick to say that he was not suggesting that there actually was manipulation or bias here, or bad faith, but that there was a risk of that perception with the system being what it was and so that made the system unreasonable and not appropriately established.

58. Counsel for the Claimant argued that if there was to be any subjective exercise of discretion allowed, then the protocol should have spelled that out much more clearly as had been done in other sports such as Alpine Ski, where the relevant provision there read:

"Coaches Discretion" means the exercise of discretion by the CAST Alpine Staff to nominate or not-nominate, an Athlete to the CAST based on various considerations, including without limitation, an evaluation of technical skiing abilities, previous motivation and performance, attitude and commitment, meeting expectations of the athlete agreement, outstanding results, event quality where top results were achieved, achieved results at appropriate level of competition, general level of physical fitness, injury history and athletic potential. Any Athlete in the Canadian alpine ski racing system may be nominated to the CAST under ‘Coaches Discretion’, provided the above-mentioned considerations make the nomination justified.

59. Counsel for the Claimant relied on various cases to support his position. He referenced Dufour-Lapointe v Canadian Freestyle Ski Association, SDRCC 07-0065 (Dumoulin) another carding case where it was successfully argued that the NSO unjustifiably failed to select and nominate the athlete. The athlete there argued that the NSO improperly used a handicapping system to finalize its ranking process, where that handicapping system was not referenced in either the AAP or the carding criteria issued by the NSO.

60. In Dufour-Lapointe, Arbitrator Dumoulin found that the process was fundamentally flawed. Handicapping was not mentioned at all in the NSO's carding criteria, and there was no evidence that Sport Canada knew or approved of the system. Athletes had no idea about the existence of the handicapping system. Most importantly, the evidence suggested that handicapping male and female athletes differently as was done, was just wrong and did not accomplish what was intended to be done. - 10 -

61. The case is of course distinguishable in that in our case, the particular criteria applied were published and known to the athletes in question, albeit not in advance. Further, they appeared to have been accepted by Sport Canada and there was no evidence before me to suggest that they were inappropriate in the sense of not doing what they were intended to do. To the contrary, they were explained as being intended to try to find the best of the best that could compete successfully on the international stage, and the evidence I heard suggested that this would be the likely result.

62. Counsel for the Claimant relied on the case of Island and Adam v , SDRCC 04-0008 (Sanderson, QC). This was a decision regarding the selection process for the Athens Olympics. Four days before the end of a 2 year selection process, the NSO issued an addendum for the selection criteria. The NSO argued that the addendum only clarified the criteria and did not change the basis of selection, but Arbitrator Sanderson instead concluded that the criteria were expanded. The Arbitrator also found that the addendum could have been issued some weeks or months earlier, but inexplicably was not. He emphasized that there was no intention to create confusion or unfairness, nor even a suggestion of bad faith. However, the unfortunate result of issuing the addendum at the last moment was to undercut the credibility of the selection process by expanding the criteria by which athletes would be measured, less than 4 days before the actual selection. The Arbitrator noted that it also appeared that other factors not even mentioned in the addendum had been considered. Most important to him, for the 2 years of the selection cycle the athletes had competed on the understanding that the earlier issued criteria were those that applied. The late introduction of additional criteria without knowledge or involvement of those affected, leaving them no time to react or respond, was held to be unfair.

63. This last point is important in that it seems that in Island, all of the athletes in question at the time were completely taken by surprise by the last moment introduction of new criteria. That seems to be somewhat different than what occurred here, where the evidence was that the criteria changed every year, typically at the very end of the season, and thus what took place should not have been a surprise to anyone. Further, in our case, there is no evidence that criteria not listed were considered in making the selection.

64. When asked for her position on Island, Counsel for the Respondent stated quite directly that this was a different sport with different factors at play, and while what occurred there may well have been quite unfair and inappropriate, our situation was factually different. Respectfully, I have to agree.

65. Counsel for the Claimant argued that not posting the 2014-2015 criteria should itself invalidate the process. Respectfully though, these criteria would have been out of date in any event, and the failure to post was an honest mistake, that seems to me to have no relevance to the issue of whether the 2015-2016 criteria apply.

66. The Claimant's mother added a supplement to the argument by Counsel for the Claimant. To summarize, her position was that the Claimant's performance ranked positively compared to the other athletes who might be considered, she had met the criteria that had been published at the relevant time, it was unfair to change the criteria after the fact, and there was a bias here in the sense that Mr. Joncas had suggested that the Claimant should pursue Halfpipe or Slopestyle, but not both as she had wanted.

67. The Respondent's position was not that the Claimant did not have the potential based on what she had done to this point (including one international competition in the relevant - 11 -

year). She might well have potential but as she had not met the required eligibility criteria, there was no hard evidence to show that she was at present among the best in the world and therefore deserving of status in the HPP and AAP funding.

68. Counsel for the Respondent defended the process followed as reasonable and fair in the circumstances, and known to everyone.

69. She relied on the case of Vachon v Canada Snowboard, SDRCC 15-0267 (Décary, CR) an August 12, 2015 decision addressing similar issues to those at hand in this case. For clarity, this was the other pending case that caused the parties here to delay proceeding to hearing on the merits.

70. Mr. Vachon had challenged the decision not to name him to the National Team and recommend him for funding through the AAP. He argued that the Respondent had modified the criteria for selection after-the-fact in making things more rigorous, which was inappropriate and so that should be set aside.

71. Arbitrator Décary noted the longstanding and substantial case law favouring deference to an NSO's exercise of discretion in establishing priorities and making choices regarding selection criteria. In “exceptional circumstances” we could interfere but otherwise we should not. Notably, where actions were taken in bad faith or without authority, in a discriminatory manner, or were so vague or arbitrary that they effectively granted inappropriate levels of discretion, then they could be challenged. He noted that the onus of proof on a claimant was particularly onerous in cases such as this. He found that while the claimant argued that he was merely challenging the application of the policies on selection, in reality he was attacking their validity. I find that this is exactly what is occurring in our case, and so, like Arbitrator Décary, I adopt a deferential view to the Respondent's actions.

72. Based on evidence that was very similar to what we heard in this case, Arbitrator Décary agreed that it was reasonable to adjust point values of events, and eligibility/selection criteria, to ensure that the most competitive athletes were selected. Adjustments could be required due to meteorological conditions, cancelled competitions, the quality of particular events, the number of athletes who participated, etc. All of these factors made it reasonable to adjust things throughout the course of the season and after-the-fact. These were matters outside of the control of the NSO and the athletes who participated in the sport knew that this occurred and the eligibility/selection criteria changed year after year. As a result, Arbitrator Décary dismissed the claim.

73. Counsel for the Claimant here had suggested that there were 3 reasons not to follow the reasoning in the Vachon case, particularly:

1. article 6.21(k) of the Code states that each case must be determined on its facts and the Panel shall not be bound by previous decisions, including those of the SDRCC; 2. while the Vachon case is similar, it is distinguishable on the facts in that there had only been a change to the criteria, from requiring a top 8 performance to a top 3 performance. This was simply a better performance being required. In our case something completely new was introduced into the mix, i.e. the CRL appearances and points; 3. if we were to allow the Respondent to publish new criteria after the year ended, this would encourage the addition of new criteria in other sports, which would be inappropriate just like in the Island case. - 12 -

74. Counsel for the Respondent focused strongly on the Vachon case and urged me to accept its reasoning. She argued that participation in CRL events and comparing the CRL ratings had always been part of the mix. She argued that it was the NSO's prerogative to decide and select, and to adjust the values given to events after-the-fact.

75. Counsel for the Respondent argued that arbitrators should not precipitously intervene in selection cases. NSOs have technical expertise to adapt selection protocols, and an arbitrator properly was to show deference to them if the protocols had been fairly established and applied impartially, which she said occurred here.

76. Counsel for the Respondent relied on Forrester v Athletics Canada, SDRCC 10-0117 (Hedley). She said that this case stood for the principle that the process need not be perfect. There must be an extremely compelling case made out in order that results of any team selection process should be interfered with by an arbitrator, even if an irregularity appeared in the process which may have had some bearing on the ultimate fairness of the criteria applied.

77. She also relied on D'Alessio v (CKC), SDRCC 10-0126 (McLaren). There, the Arbitrator found that if there was no valid or factual challenge to the sport organization's criteria, then the burden on the sport organization under the Code to demonstrate that the criteria were appropriately established, is satisfied. If there was no evidence that a selection decision was not made in accordance with the sport organization's established criteria, then the sport organization had established that the selection decision was made in accordance with those criteria. The onus then shifted to the athlete to establish that he/she should have been selected in accordance with the approved criteria.

78. Counsel for the Respondent also relied on Landeryou v Canadian Racquetball Association, SDRCC 08-0091 (Banack). There, Arbitrator Banack accepted that the burden rested on the claimant to assert grounds upon which to question the correctness of a decision made by the NSO, which would justify the substitution of an alternate decision or remedy. In the case, as the ranking system fulfilled the function for which it was designed, and was applied equally to all athletes, the claimant had failed to discharge his burden of proof to establish that the ranking decision made by the NSO was biased and open to challenge.

79. Counsel for the Respondent argued that the law was clear and I was obliged to follow the law in rendering a decision in this particular case. She argued that the Respondent had showed that the criteria applying for the 2015–2016 were valid and so should not be interfered with by me. The criteria were designed to select the best athletes in the process of competition, and not simply to encourage effort. She argued that the criteria evolved and became more demanding over time, and properly so in order to ensure that the best athletes were selected. She said that this was a fair process, and one that was coherent, credible and known.

80. Counsel for the Respondent argued that this was not about meeting the minimum requirements but rather trying to do the best one could by going to as many events as possible to try and rank as highly as possible. She argued that the CRL is a coherent and fair system, explained clearly and comprehensively, and that people in the sport know how it works. She emphasized the distinction between being eligible to apply for the HPP and being selected to it. Even if we pretended that the Claimant here had met the eligibility - 13 -

criteria to be considered for selection, there was no reason to believe that she would have been selected because she did not rank highly enough within the CRL system.

81. In terms of bias, Counsel for the Respondent argued that the system applied to the Claimant and all athletes. She argued that the timelines to publish the AAP criteria as set by Sport Canada were quite separate and apart from the timing requirements to publish the HPP selection criteria, and there was no requirement to publish those latter criteria at the start of the season. She argued that Sport Canada has never imposed any deadline, there was no proof of any deadline for HPP publication, and that it was up to the sport to make that decision.

82. Counsel for the Respondent argued that just as the points for an event are only properly finalized after the event has taken place, the eligibility and selection criteria for the HPP are also only properly finalized after-the-fact, after the season, and with the same rationale. Simply put, taking into account ongoing and changing circumstances throughout the season, the only way to select truly the best for the coming year is to do so based on the results achieved throughout that season, and after-the-fact finalize and apply eligibility and selection criteria. This is not done by one person, but rather is part of an exhaustive and complicated process, pursued by the High Performance Director for the Respondent, national coaches and various other technical officials.

5. Conclusions

83. Through her legal counsel and her mother, the Claimant had argued strenuously that had she known about the eligibility/selection criteria for the HPP at the time, she would have met them, as she would have competed in the required minimum number of races. Essentially, the position of the Claimant was that she planned her season based on the information available at the time, met the eligibility/selection criteria she knew of, and other criteria were imposed after-the-fact. This was unfair to her and the process should be overturned.

84. At first blush one might think that being able to adjust point values and eligibility/selection criteria after-the-fact is inherently unfair and no better than changing the rules of the game after the game had been played. In this context though, it seems appropriate and reasonable as a means of assessing who in fact performed the best.

85. I accept that throughout the 2014-2015 season an athlete (and the Claimant particularly) would not have known specifically what was required of her in order to qualify for the HPP and therefore potentially be eligible for carding for the 2015-2016 season. Everyone was in the same situation however, and it would not matter whether one worked with a particular coach, a parent or someone else. The reality was that the conclusive information on eligibility/selection to the HPP, and so potentially eligibility/selection for carding or potential carding, was not known by anyone at the relevant time.

86. Indeed, here the Claimant applied for selection for the HPP and carding in early April 2015 before the new criteria were determined and published. The criteria were then set and she was not accepted. The timing leaves the impression that the Respondent could have received the applications, decided whom it wanted to support, and then set the criteria to achieve that pre-planned conclusion (like a mystery writer deciding “whodunit” and then going back through time to create the story with that desired conclusion).

87. All that said, I emphasize that I have heard no evidence to suggest any manipulation or bias took place with respect to the allocations of points, or setting of criteria, and have no - 14 -

reason to believe that there has been any such bias or manipulation. If there had been then obviously that would compromise the system, but in the absence of any evidence of actual misconduct, is the mere potential for that enough to invalidate everything?

88. Before I answer that question, I should emphasize that on the issue of bias, we did hear evidence that Robert Joncas on behalf of the Respondent had advised the Claimant's mother that in his opinion, the Claimant would be best served in pursuing her snowboard career to pick one discipline or another rather than trying to pursue both to the elite, international level. Certainly the Claimant's mother, who passionately and with considerable vigor supported her daughter's snowboard career and participated in this hearing, felt that this was the wrong advice, that the Claimant should continue to pursue both disciplines, and that this advice suggested a possible bias.

89. Respectfully, that difference of opinion does not translate to evidence of bias in a legal sense. Further still, and notwithstanding this difference of opinion, everything I heard from the Respondent in terms of the Claimant's athletic abilities was complimentary and seemed genuinely meant to be encouraging. While complimentary and encouraging, however, the Respondent properly fell back to the overriding consideration that to be in the HPP, or receive carding, one had to be the very best of the best. It believed that the eligibility/selection criteria it had developed fairly resulted in other athletes being selected in these particular circumstances.

90. Answering my question, I find that in the context of snowboard, the mere potential for bias or manipulation does not render the system invalid. It may well be that a different conclusion could be drawn in a different context, but of course I do not have to decide that here.

91. It was argued that it was necessary to link the HPP eligibility/selection material to the AAP requirements, and as Sport Canada mandated that the AAP requirements were to be published by the start of the season, likewise the HPP requirements needed to be published by then. As they were not, they were invalid.

92. Respectfully, I do not accept this argument. While the two are linked in the sense that the HPP is a prerequisite for the AAP, they are 2 quite distinct programs. The evidence was also specifically to the contrary (i.e. there were no mandated deadlines for the HPP). There seems to be nothing in the agreement with Sport Canada that requires this, no requirement anywhere that requires this, and finally no past practice that would suggest this is the case. Indeed, the past practice seems to have been exactly the opposite, being that except in Olympic years that are exceptional, the criteria for the HPP typically are published at the very end of or immediately after the season.

93. I recognize that there appeared to be communication challenges for the Respondent in terms of publishing the most current information on its website, and not stating expressly or at the very least more clearly that the earlier published criteria had an expiry date, or something to that effect. However, I heard no evidence from the Claimant or indeed anyone, to suggest that the Claimant or anyone on her behalf expressly and clearly asked the Respondent if the earlier criteria applied for the relevant year, or received any representation of any sort to suggest that indeed that was the case. It may well be the Claimant or her mother thought that was the case, or drew assumptions based on what was found on the website from time to time, but I can point to nothing in the evidence which supports any clear communication or meeting of the minds that later was breached by the Respondent. - 15 -

94. The closest we had to this came in the communications between Mr. Joncas and the Claimant’s mother on September 22, 2014, and the ongoing publication on the website of the April 8, 2013 High Performance Program eligibility/selection criteria, long after they were out of date.

95. The September 22, 2014 email (with my emphasis added) is as follows:

Now with regards to the AAP and the criteria, to clarify, Kira did not meet any criteria last year. She did not go to Junior Worlds, so, the only way for her to quailify [sic] for carding was under the Priority 3 for both HP and SBS [Halfpipe and Slopestyle] and it is not based on the FIS points but on the Canadian Ranking List [CRL] and in both discipline, [sic] she does not meet the minimum requirement points. This process is set by myself, our manager at the High Performance Program with the advices from our National Team coaches and it is approved by our Executive Director, then supported by Sport Canada under their recommendations. To qualify for a development card next spring, this is according to the 2013 - 2014 AAP protocol since the 2014 – 2015 is not availble [sic] yet, she will need to earn a spot to go to Junior Worlds championships and she will need to get a top 16. I am not saying that it is impossible but with my experience at Canada Snowboard for 10 years, she will need to work really hard to make this happen this season. I hope that Kira could meet these criteria as soon as possible and I wish her good luck with this. Again, best advice, Halfpipe or Slopestyle, but not both.

As I told you in the previous email, we are working on our selection protocol for the coming season. They should be available soon on our website.

96. The “previous email” (also of September 22, 2014) read as follows, again with my emphasis added;

Hi Shannon,

As Leo told you in the previous email I am getting back to you regarding your question about Junior Worlds. At this time, we are still working on our selection protocol for Junior Worlds, as well as our selection protocol for AAP (Athlete Assistance Program). From year to year, there are always some changes in the different protocols. Both protocols are linked together...

97. Respectfully, to me it is quite clear that Mr. Joncas was only providing information based on what was available at the time (in other words, based on the past criteria, where she would be). He was making it clear that the actual criteria were not available as of yet. He was saying nothing that could fairly be taken as a representation that the old criteria still applied. He also was suggesting that the Claimant would be better served probably pursuing either Halfpipe or Slopestyle, but not both, as I believe he genuinely felt she had a better chance at succeeding at one or the other, but not both.

98. Further, in reviewing the April 8, 2013 HPP selection protocol for Freestyle relied on by the Claimant, objectively I think that on its face the document should have raised some question as to whether it would be governing the process moving forward and into 2015- 2016. As an example, one of the eligibility criteria indicated that the athlete would have had to submit skill charts and videos by April 24, 2013. Obviously, that would be impossible if one were applying for 2014–2015 or 2015–2016.

99. From the evidence I have heard I am satisfied the Respondent has met its onus of demonstrating that the selection criteria were appropriately established and that the selection decision was made in accordance with the criteria. For snowboard, with the - 16 -

vagaries facing it, the system in place makes sense and seems to provide the best likelihood of selecting the best athletes to represent Canada internationally.

100. By way of analogy, the snowboard system seems like in University courses where marks are assigned "on a curve" as opposed to in an absolute sense. The students do the best they can, not knowing what they need to get an “A” until after-the-fact. Likewise, athletes here do not know in advance necessarily what points will be awarded at what events, or what they have to do to be eligible for and selected to the HPP or receive carding. They merely know that they have to measure up favorably with their competitors, and to maximize the chance of that, they are well-advised to do their best and be open to changing an initially well-planned season in the midst of it in order to respond to changing point values.

101. In an ideal world, all the selection criteria would be published well in advance, easily located and understandable and never change until the next year. An athlete could then readily plan an entire season from the very start and assuming success in those events, achieve the planned success. Needless to say, we do not live in an ideal world and as a result the Respondent has it would seem in good faith and for what appears to be legitimate reason determined that eligibility/selection criteria must be finalized and published after-the-fact.

102. It is not for me to say whether I would do things differently and my role is not to substitute my judgment for that of the Respondent, but rather to assess whether in the circumstances it has acted reasonably. I believe it has, though I would respectfully encourage it to do what can fairly be done to make the process easier to understand to those participants within it and to ensure that the information posted is as it should be (i.e. clear, correct and up to date).

103. Again respectfully, it was my impression that the Respondent did things in a certain way, sometimes for many years, and assumed that those who were involved in the sport would know this. An excellent example is changing the criteria of eligibility/selection annually, and after-the-fact. Rather than make the assumption that everyone involved would somehow know this, it might be better to be more direct in disseminating this practice and similarly ensuring that published criteria are either current or at the least clearly state when they ”expire”. Not everyone has the same experience or knowledge base, and confusion or disconnect in communication can lead to problems or disputes that might otherwise be avoided.

104. These comments are of course meant constructively and not in any critical fashion.

105. As the Respondent has met its onus of demonstrating that the selection criteria were appropriately established and that the selection decision was made in accordance with the criteria, the onus then of course shifted to the Claimant to demonstrate that she should have been selected in accordance with the approved criteria. Respectfully, she has not been able to do so.

106. The evidence is quite clear that meeting the eligibility criteria to be considered for selection to the HPP is not the same as being selected to the HPP. While the Claimant’s performance was very good, there was no evidence to support her being placed automatically in the HPP. For example, the evidence did not establish her as by all accounts the very best, who by some mere technicality was considered not eligible. Her performance was objectively behind the performance of those appointed to the HPP ahead of her, and I heard no evidence that she would necessarily be any more deserving