SPORT DISPUTE RESOLUTION CENTRE OF (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 ; 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. It is rather in citing the current Code that Karate Canada is

6 in fact reflecting the scope of SDRCC’s jurisdiction. Karate Canada’s submissions read as follows:

From the Code dated January 1, 2015

2.1 Administration (a) The SDRCC administers this Code to resolve Sports-Related Disputes.

(b) Subject to Subsection 2.1(c) hereof, this Code applies to a Sports-Related Dispute where the SDRCC has jurisdiction to resolve the dispute. This Code will therefore apply to any Sports-Related Dispute: (i) in relation to which a Mediation, Arbitration or Med/Arb agreement exists between the Parties to bring the dispute to the SDRCC; (ii) that the Parties are required to resolve through the SDRCC; or (iii) that the Parties and the SDRCC agree to have resolved using this Code.

(c) This Code shall not apply to any dispute that a Panel determines, in its discretion, is not appropriate to bring before the SDRCC or to a dispute where the Panel determines that the SDRCC does not have jurisdiction to deal with the dispute.

It is noted that there is no agreement between Karate Canada and its PSOs to bring PSO related issue[s] to the SDRCC. Karate Canada does, as a matter of course, suggest mediation through the SDRCC to PSO-related disputes but it cannot force the PSOs to accept this. It is therefore useful to go back to the definitions at the beginning of the Code to establish the entities that the SDRCC is set up to service. While there is a definition of an NSO, there is no mention of a PSO.

Since Karate Canada cited definitions from the obsolete ADR-sport-RED Code

2004 in its submissions, I must instead refer to the definitions of an NSO and of a Sports-

Related Dispute in the Canadian Sport Dispute Resolution Code 2015 which are slightly different:

7 Article 1. Definitions

(z) “NSO” « ONS » includes any Canadian sport organization that is: (i) a “National Sport Organization” recognized from time to time by the SDRCC; (ii) a multisport service organization receiving funding from , including, without limitation, the Canadian Centre for Ethics in Sport, the Canadian Olympic Committee, the Canada Paralympic Committee, Commonwealth Games Canada, Canadian Interuniversity Sport, the Canadian Collegiate Athletic Association, and the Canada Games Council; (iii) a representational sports-related group receiving funding from Sport Canada from time to time; (iv) an umbrella sport organization, including, without limitation, the Aquatics Canada and the Canadian Ski and Snowboard Association; and (v) a Canadian Sport Centre receiving funding from Sport Canada.

[…]

(mm) “Sports-Related Dispute” « Différend sportif » means a dispute affecting participation of a Person in a sport program or a sport organization. Such disputes may include (but are not limited to) those related to: (i) team selection; (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 of directors, which affects any Member of a NSO; (iii) any dispute affecting participation of a Person in a sport program or a sport organization, for which an agreement to conduct an SDRCC Mediation, Arbitration or Med/Arb or use the services of the Resolution Facilitator of the SDRCC has been entered into by the Parties; and (iv) any dispute arising out of the application of the Anti-Doping Program.

8 Concerning the assertion of Karate Canada that Ms. Provencher’s complaint arises from a provincial organization, Karate Quebec, as opposed to a national organization,

Karate Canada, the following excerpt from the Respondent’s submission dated June 13,

2016 sets out what appears to be uncontested facts upon which the Respondent relies to characterize Ms. Provencher’s complaint as arising from a provincial organization:

Original Complaint:

The original complaint to Karate Canada, listed as document C-09 in the case management file submitted April 6, 2016 by the claimant, clearly lists that the complaint is solely against members of Karate Quebec in regards to their roles within Karate Quebec. The complaint is directed toward the Karate Quebec board of Directors, an official for Karate Quebec, and Karate Quebec club instructor/owner, [name redacted]. While I invite you to review document C-09 so that you fully understand the nature of the actual dispute, I will list a few items from the document here under the section titled ‘The Incidents’:

12. On or about December 8, 2015, Complainant made a comment on a Facebook posting. The posting was not on Complainant’s Facebook page, nor on Respondent [name redacted]’s Facebook page. It was not intended in any way to be insulting and no reasonable reading of the comment would lead a reasonable person to perceive the comment as insulting or in bad taste.

13. The same day, respondent [name redacted] sent Complainant an e-mail, and copied the Karate Quebec Board of Directors. In this e-mail, Respondent [name redacted] requested that Complainant clarify her comment she made on Facebook.

18. After this response demanding the presence of other persons, some of which included members of the

9 Karate Quebec Referee Committee, Louise felt threatened because what started out as a social media endeavor quickly was heading towards an adversarial proceeding based on the words and actions of Respondent [name redacted].

22. This is clear from the fact that the Board of Directors (Ed. Quebec Board), along with Referee Committee members, were suddenly going to be present at a discussion that was intended to clear up any misunderstanding Respondent [name redacted] had.

35. This letter from the Board of Directors, which is attached as an exhibit, states that the incident complained of occurred on December 6, 2015, the 3rd Karate Quebec Team Selection event.

43. Due to the fact that this letter from Karate Quebec Board of Directors provides no due process to the Complainant, has not provided the Complainant with all the materials she is entitled to in order to defend herself against these allegations, and essentially admits that no deliberation will take place as the Board will decide her innocence or guilt immediately, the Board of Directors has not acted ethically in their handling of the Complaint filed against Louise; has not treated Louise fairly or with respect in direct contravention of 7(a)(iii) and 7(a)(v) of the Karate Canada Code of Conduct and Ethics.

It would also appear from the uncontested submission of the Respondent that in the end Karate Quebec dropped its action against Ms. Provencher. Moreover, there was no decision, no hearing, no action and no sanction that was ever taken against Ms.

Provencher.

Drawing from this factual basis for the complaint, the Respondent in its June 13,

2016 submission summarized its argument that the complaint arises from a provincial

10 dispute through Karate Quebec and that the SDRCC, therefore, is without jurisdiction to hear it, as follows:

From the complaint letter C-09 it is very clear that the entire dispute involves Karate Quebec members pertaining to events in Karate Quebec and/or under the auspices of Karate Quebec. None of these items involved Karate Canada or were under the auspices of Karate Canada or at a Karate Canada sanctioned event or function. This is strictly a Provincial Sport Organization matter and this is at the heart of the argument that the SDRCC has no jurisdiction in this matter.

I take further note of the summary of the Respondent’s position that Ms.

Provencher’s complaint arises from a provincial organization, Karate Quebec, as set out in its Reply Submissions:

In conclusion, it is very clear that this is not a Karate Canada matter but a Provincial PSO (Karate Quebec) matter. The weight of evidence clearly indicates that all interactions occurred within the Province of Quebec and under the auspices of Karate Quebec. The sole role that Karate Canada played in this situation is that the Claimant made a complaint under a Karate Canada policy and this was dealt with professionally and ethically. The SDRCC is very clear that it does not intervene in PSO related matters and has no mandate or contract with any Karate PSO and as such has no jurisdiction over any Karate PSO. The secondary points of the failure to exhaust the internal appeals policy and the fact that no sanction or action was actually taken against the complainant by Karate Quebec are also noteworthy and should be considered.

On the basis of my assessment and full review of the submissions of both parties,

I am in full agreement with the position of the Respondent that the complaint of Ms.

11