Sport Dispute Resolution Centre of Canada (Sdrcc)
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SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) NO: SDRCC 16-0294 LOUISE PROVENCHER (CLAIMANT) AND KARATE CANADA (KC) (RESPONDENT) ARBITRATOR: MICHEL G. PICHER APPEARANCES FOR THE CLAIMANT: William Hilder - Representative for the Claimant Louise Provencher - Claimant APPEARANCES FOR THE RESPONDENT: Craig Vokey - President, Karate Canada A preliminary meeting by teleconference call was held in this matter on June 8, 2016, during which parties agreed that the jurisdictional challenge raised by the Respondent could be heard by way of documentary review. Written submissions were filed by the parties on June 13, 2016 (Respondent) and June 14, 2016 (Claimant) and reply submissions were filed on June 15, 2016 (Respondent). JURISDICTIONAL AWARD This decision concerns the jurisdictional objection made by the Respondent Karate Canada against the Claimant’s position that the SDRCC does have jurisdiction in respect of the instant complaint. Karate Canada claims it does not. Certain background facts are not disputed. The Claimant, Louise Provencher, is a coach on the Karate Quebec Provincial Team. Karate Quebec is the Sport Governing Body for karate in Quebec (PSO), while Karate Canada is the Sport Governing Body for karate in Canada (NSO). I am satisfied on the basis of the submissions of the parties that all events pertinent to this claim occurred under the auspices of Karate Quebec. On January 4, 2016, Ms. Provencher filed a complaint with Karate Canada alleging that certain members had breached the Karate Canada Code of Conduct and Ethics, and associated policies inclusive of the Karate Canada Discipline and Complaints Policy. Each of the members of Karate Canada against whom the complaint was made were also members of Karate Quebec. Ms. Provencher’s complaint was against Karate Quebec’s handling of an internal dispute between Ms. Provencher and Karate Quebec members. Pursuant to the provisions of the Karate Canada Discipline and Complaints Policy, Ms. Provencher’s complaint was referred by Karate Canada to a Case Manager. In turn, the Case Manager referred the matter to the Board of Directors of Karate Canada for a determination as to whether Ms. Provencher’s claim should proceed. On or about February 5, 2016, Karate Canada reported that the Board of Directors had decided not to 1 allow Ms. Provencher’s claim to go forward. A request for reconsideration was subsequently denied, as communicated on March 21, 2016. In response, on April 6, 2016, Ms. Provencher filed her instant complaint against Karate Canada with the SDRCC. In challenging the jurisdiction of the SDRCC to hear Ms. Provencher’s complaint, Karate Canada asserts both that Ms. Provencher failed to exhaust the internal dispute resolution procedures of Karate Canada as required by section 3.1(b) of the Canadian Sport Dispute Resolution Code (“the Code”) and, more fundamentally, that the Code is not applicable to Ms. Provencher’s complaint because section 2.2(b)(i) of the ADR-sport- RED Code of June 1, 2004 stipulates that it does not apply to sports-related disputes arising from a provincial organization such as Karate Quebec. Regarding the issue as to whether Ms. Provencher exhausted the internal dispute resolution procedures of Karate Canada, it is noted that section 3.1(b) of the Code provides the following: (b) Unless otherwise agreed or set out herein, and if the dispute involves a NSO, where a Person applies to the SDRCC for the resolution of a Sports-Related Dispute, the Person must first have exhausted any internal dispute resolution procedures provided by the rules of the applicable NSO. For the avoidance of doubt, a NSO internal dispute resolution procedure is deemed exhausted when: (i) The NSO has rejected the right of the Person to an internal appeal; (ii) The NSO or its internal appeal panel has rendered a final decision; or 2 (iii) The NSO has failed to apply its internal appeal policy within reasonable time limits. Ms. Provencher contends that she did exhaust the internal dispute resolution procedures of the NSO, Karate Canada, because the Case Manager, on behalf of Karate Canada and through referral to the Board of Directors, made a final decision not to allow Ms. Provencher’s complaint to proceed forward. Ms. Provencher’s representative emphasizes that her request for reconsideration of that decision resulted only in a confirmation by Karate Canada that it considered the matter concluded. To underscore the contention that Ms. Provencher’s complaint could proceed no further with Karate Canada’s internal dispute resolution procedures, and, more specifically that the determination of the Case Manager was unable to be appealed, Ms. Provencher’s representative points to section 8a) of the Karate Canada Discipline and Complaints Policy which provides as follows: Case Manager 8. Upon receipt of a complaint, Karate Canada will appoint a Case Manager to oversee management and administration of complaints submitted in accordance with this Policy. […]The Case Manager has an overall responsibility to ensure procedural fairness is respected at all times as per this Policy. […]More specifically, the Case Manager has a responsibility to: a) Determine whether the complaint is frivolous or vexatious and within the jurisdiction of this Policy. If the Case Manager determines the complaint is frivolous or vexatious or outside the jurisdiction of this Policy, the complaint will be dismissed 3 immediately. The Case Manager’s decision as to acceptance or dismissal of the complaint may not be appealed. [emphasis added] Accordingly, it is submitted on behalf of Ms. Provencher that because the Case Manager, through referral to the Board of Directors, dismissed Ms. Provencher’s complaint and because section 8a) of the Karate Canada Discipline and Complaints Policy stipulates that the Case Manager’s decision may not be appealed, she had exhausted the internal dispute resolution procedures of Karate Canada. Ms. Provencher’s representative further stresses that while section 33 of the Karate Canada Discipline and Complaints Policy stipulates that “[t]he decision of the Panel may be appealed in accordance with the Karate Canada’s Appeal Policy”, such a Panel was never appointed by the Case Manager in the instant matter because the Case Manager had determined that Ms. Provencher’s complaint should not proceed forward to be heard by such a Panel. In contrast, the Respondent Karate Canada’s representative maintains that Ms. Provencher did not exhaust its internal dispute resolution procedures because she did not file an appeal from the decision of the Case Manager/Board of Directors not to move forward with the complaint. To support the Respondent’s position that Ms. Provencher was entitled to appeal the decision of the Case Manager/Board of Directors, reliance is placed on section 3 of the Karate Canada Appeals Policy, which provides as follows: 4 Scope and Application of This Policy 3. Any Karate Canada Member will have the right to appeal a decision of the Karate Canada Board of Directors, of any committee of Karate Canada, or any body or individual who has been delegated authority to make decisions on behalf of Karate Canada, provided there are sufficient grounds for the appeal as set out in Section 8 of this Policy subject to the limits in Sections 5, 6, 7, 10 and 11 of this Policy. In short, on the one hand, Ms. Provencher’s representative points to section 8a) of the Karate Canada Discipline and Complaints Policy to assert that it precluded her from filing an appeal from the decision of the Case Manager/Board of Directors and, on the other hand, the Respondent’s representative highlights section 3 of the Karate Canada Appeals Policy to argue that Ms. Provencher left unutilized her right to appeal the decision of the Case Manager/Board of Directors. While there may be some ambiguity, if not conflict, flowing from the co-existence of the provisions of section 8a) of the Karate Canada Discipline and Complaints Policy and section 3 of the Karate Canada Appeals Policy, I am satisfied that whether or not Ms. Provencher exhausted the internal dispute resolution procedures of Karate Canada, the SDRCC, in any event, does not have jurisdiction to hear Ms. Provencher’s complaint because it arises from a provincial organization, Karate Quebec, a PSO, as opposed to from a national organization, Karate Canada, a NSO. It is this contention that Ms. Provencher’s complaint arises from a provincial organization, Karate Quebec, that forms the second and more fundamental objection to 5 the Respondent’s claim that the SDRCC lacks jurisdiction to hear Ms. Provencher’s complaint. In support of its position, the Respondent cites the following excerpt from section 2.2 of the ADR-sport-RED Code adopted by the SDRCC on June 1, 2004: S-2.2 Sports-Related Disputes (a) “Sports-related disputes” encompass any dispute related to sport to which a Member or NSO is a party. Such disputes specifically include those related to: (i) Team selection to Major Games: (ii) A decision made by a NSO board of directors, a committee thereof or an individual delegated with authority to make a decision on behalf of a NSO or its board, which affects any Member or participant of a NSO; (iii) Any disputes for which an agreement to arbitrate or mediate has been entered into by the Parties; and (iv) A decision made in respect of a Doping Dispute. (b) For the avoidance of doubt, the Code does not apply to: (i) Sports-related disputes arising from a provincial, territorial or international organization, with the exception of team selection for the Canada Games; or (ii) Criminal law offences. [emphasis added] However, the ADR-sport-RED Code does not apply in this instant case. The ADR- sport-RED Code from 2004 was in fact replaced by the Canadian Sport Dispute Resolution Code on April 1, 2006, and its iterations of May 2007, January 2009, January 2011 and now January 2015.