In the Matter of an Arbitration

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN AMATEUR SOFTBALL ASSOCIATION C.O.B. SOFTBALL CANADA Claimant

AND

CANADA GAMES COUNCIL Respondent

RE: 2013 CANADA GAMES – MEN’S SOFTBALL

SOLE ARBITRATOR: Michel G. Picher

APPEARING FOR THE CLAIMANT:

Hilary Findlay – Counsel Hugh Mitchener – CEO, Softball Canada

APPEARING FOR THE RESPONDENT:

Maria Holman – Counsel Sue Hylland – President and CEO, Canada Games Kelly-Anne Hodgins – Manager of Sport, Canada Games

A telephone conference call hearing was held on July 18, 2008.

AWARD

This Arbitration involves the claim of Softball Canada which alleges that

men’s softball was improperly excluded as a sport in the Canada Summer

Games, 2013. The instant claim follows an appeal taken under subsections 7(a),

(b) and (d) of the Canada Games Council Dispute Resolution Policy and

Procedures and a decision of the Independent Adjudicator under that process.

By a decision dated April 16, 2008 Independent Adjudicator Hugh Christie denied the appeal of Softball Canada. Adjudicator Christie found that the Canada

Games Council did not fail to follow its own procedures and did not fail to consider relevant information which applies to those procedures.

The scope of this claim is somewhat broader. Before this Arbitrator

Softball Canada claims that the Respondent failed to follow the procedures as laid out in the by-laws and approved policies of the Council, that it made a decision for which it did not have authority or jurisdiction as contemplated within governing documents, that it failed to consider relevant information, or took into account irrelevant information in making its decision and, additionally, that the selection process is inherently discriminatory in its effect and that the use of current Sport Canada SFAF rankings by the Respondent is contrary to the

Ontario Human Rights Code (R.S.O. 1990, c. H.19, as amended).

The Respondent takes a threefold position: firstly, it maintains that those

things alleged by the Claimant are not made out, and that there has been a 2 proper adherence to the Canada Games Council’s own selection procedures, with no failure to consider relevant information or taking into account irrelevant information. Additionally, it submits that issues which are raised in this claim have been determined in a prior arbitration award of the SDRCC, and were fully ruled upon by Arbitrator Richard W. Pound. (Softball Canada v. Canada Games

Council and Royal Canadian Golf Association, Rugby Canada and Triathlon

Canada, SDRCC/CRDSC 005-0026 an award of Arbitrator Richard W. Pound dated February 16, 2005.) On that basis the Respondent argues, on a principle analogous to res judicata, that the issue should not be reargued or reconsidered in these proceedings. Finally, the Respondent acknowledges that the alleged violation of the Human Rights Code is a new issue in these proceedings. It denies that there has been any violation of the Human Rights Code in the selection process or in the ultimate decision to include women’s softball and exclude men’s softball in the Canada Summer Games, 2013. The Respondent also questions the jurisdiction of the Arbitrator, in any event, to interpret, apply or enforce the Human Rights Code in these proceedings.

Central to the dispute is the use by the Canada Games Council, in attributing points for the selection of sports for the games, of Sport Canada’s

Sport Funding and Accountability Framework (SFAF).

The 2013 Canada Summer Games Sports Selection Process is relatively complex. That process is, without substantial challenge, fairly described in the following portion of the Claimant’s brief to the Arbitrator.

There are four main components to the Selection Process:

1. Minimum Eligibility Criteria – This section represents minimum criteria NSOs must meet in order to be considered for inclusion into the 2013 Summer Games program 2. Core Sports – Sports meeting both the Minimum Eligibility Criteria and Enhanced Eligibility Criteria receive pre-selection for inclusion in the Games. These are known as “Core sports”. 3. Extra Assessment – Sports meeting the Minimum Eligibility Criteria but not the Enhanced Eligibility Criteria (i.e., they are not “Core Sports”) are ranked according to “Extra Assessment” criteria. 4. Procedures for the final selection of Sports – Sports are selected for inclusion in the 2013 Summer Games programme by rank order but may be subject to other factors at the discretion of the Respondent.

5. Both Men’s Softball and Women’s Softball met the first category – “Minimum Eligibility Criteria”; however, neither met the second component for Core Sport designation, the “Enhanced Eligibility Criteria”. Specifically, neither Men’s nor Women’s Softball are included in the 2012 Olympic games and Men’s Softball has not been included in the most recent four consecutive Canada Summer Games. Thus neither can be designated as “Core Sports”. Because neither is designated as a “Core Sport” each must go to the third component of the Selection Process – the “Extra Assessment”.

6. The “Extra Assessment” results in a point score made up of five parts defined as follows:

NSO coaching assessment – 22% of the score 4

Provincial/Territorial ranking – 33.5% of the score Sport Canada ranking – 33.5% of the score Number of member competitors – 6% of the score International major games – 5% of the score

This arbitration relates specifically to the third component – the Sport Canada ranking (worth 33.5% of the score).

7. The Sport Canada ranking provides, in part, that:

Sport Canada will provide an Interim Excellence Results ranking for the current SFAF cycle, updated to include the most recent Olympic and World Championship (i.e. through to November 18, 2007) on a discipline-specific basis. This ranking is consistent with SFAF III Excellence Results Assessment protocols and is intended for the sole purpose of the Canada Games selection process [emphasis added].

8. The Sport Funding and Accountability Framework (SFAF) is an internal process Sport Canada uses to determine eligibility for Sport Canada contribution programs (e.g., core funding to National Sport Organizations (NSO), Athlete Assistance Program, etc.). NSOs are evaluated against a set of criteria that make up the SFAF. The Respondent has chosen to import the Excellence component of this evaluation to determine the Interim Excellence Results ranking referred to in the quote contained in paragraph 7 above. The Interim Excellence Results ranking reflects performance at Olympic games as well as World Championships and also reflects a sport’s high performance system. The Excellence component represents 60% of the total available SFAF points. The three sub-components – Olympic results, World Championship results and the High Performance system each receive an equal weighting of 20%. This means that an Olympic sport can theoretically score 60/60 while a non-Olympic sport can only score a maximum of 40/60, given that a non-Olympic sport is not 5

eligible for any score in the Olympic category.

9. Men’s Softball is not on the Olympic program but does compete in World Championships. Women’s Softball is currently on the Olympic program and competes in World Championships. However, based solely on the designation of Women’s Softball as an Olympic sport, Men’s Softball receives no score from Sport Canada for either Olympic performance or World Championship performance or for its High Performance system. In a letter of explanation written by Mr. Tom Scrimger, Director General of Sport Canada, to Mr. Hugh Mitchener, CEO of Softball Canada, Mr. Scimger writes:

Men’s Softball is not attributed points within SFAF excellence pillar as a result of a policy established under SFAF I and reaffirmed in SFAF II and III, which states that: “For sports on the Olympic and Paralympic Games Program: only results from events that are on the Olympic or Paralympic program will be considered either at Games or World Championships”.

(emphasis in the original)

The central point of contention, as noted above, is the effect on men’s softball of the Respondent’s attribution of points based on the Sport Canada ranking, which represents 33.5% of the score, based on the SFAF system. It is not disputed that under that system, because women’s softball is an Olympic sport, and men’s softball is not, men’s softball receives no score for Olympic performance or World Championship performance or for its High Performance system in the SFAF calculation.

There is no dispute that the use of the current SFAF ranking system

effectively operates to exclude men’s softball from the games. The Claimant argues that the use of the SFAF ranking by the Respondent amounts to a departure from its own governing documents and mission and vision statements.

Citing vision statements which appear on the Respondent’s website including statements such as “Every sport strives for inclusion”, and “Every young athlete dreams of competing” counsel for the Claimant draws to the Arbitrator’s attention the following statement found on the Respondent’s website:

We are ethical, inclusive and strive for excellence in all that we do. We work with integrity, honesty and respect. We are accountable and responsive to our stakeholders.

The Claimant submits that effectively excluding men’s softball from consideration

by applying the current SFAF process of Sport Canada is tantamount to failing to

consider each applicant on its own merits, and is contrary to the Respondent’s

own governing documents.

She also submits that the selection process is discriminatory in its effect

and should be corrected by a board of arbitration. In that regard she cites a prior

award of this arbitrator in the following terms:

The role of the [tribunal] is to ensure that the decision has been made in a manner which is not in bad faith, is not arbitrary or discriminatory and which is in keeping with generally accepted standards of fairness, as recognized in Canadian administrative law.

(Canadian Amateur Boxing Association v Canadian Olympic Committee. Arbitration Award ADR-Sport- 7

RED Ordinary Division, 10 July, 2004, Arbitrator Picher, p.6.)

Characterizing what has occurred as arbitrary and discriminatory, counsel for the Claimant compares the situation of rugby. She notes that neither men’s rugby nor women’s rugby is an Olympic sport. In the result, the Sport Canada

SFAF policy is not applied to men’s rugby, as it is to men’s softball, resulting in men’s rugby being included in the Games, while men’s softball is excluded.

Additionally, she submits that the operation and management of the

Canada Games is sufficiently “public” as to be subject to the human rights

legislation. In that regard she cites Berg v. University of British Columbia (1993),

18 CHRR D/310 (SCC); Wood v. Canadian Soccer Association (1984), 5 CHRR

D/2024 (Can Trib.)).

Counsel also argues that the Respondent has failed to follow its own

procedures as laid out in the Canada Games Council Sport Selection Process.

She notes that the definition section of the process defines a team sport and

specifically states: “…the term Team Sport will always refer to a gender-specific

team”. She submits that that indicates that under the process a team sport

should not be considered or treated as falling under a generic sport, but rather

must be viewed on a gender specific basis. She notes, however, that Sport

Canada, in its SFAF process, makes its assessment for funding purposes on the

basis of a generic sport, and not in respect of the various disciplines of a sport. 8

More importantly, from the standpoint of her submission, she notes that the Sport

Canada funding system deals more broadly with an NSO and does not treat gender specific team sports as independent entities for the purposes of the SFAF

funding process. Essentially, Counsel for the Claimant submits that by adopting

the Sport Canada SFAF standards the Respondent has departed from its own

fundamental standard of treating a team sport as being gender specific.

Counsel also argues that the Respondent has failed to consider relevant

information in the selection process. By adopting the SFAF ranking system

men’s softball received no score for its World Championship results and its High

Performance system, by reason of the sole fact of women’s softball’s participation in the Olympic Games. That, she submits, is an irrelevant consideration. She submits that scores for World Championship results and the

High Performance system can and should be made available for men’s softball and be considered and fairly weighed in the selection process. Again, she submits that the flaw in the process stems from the fact that Sport Canada operates its SFAF process based on generic sports while the Respondent expressly defines the team sports within its selection process as being gender specific. On that basis she submits that men’s softball should be seen as a team sport in its own right, independent of women’s softball. By adopting the Sport

Canada SFAF process the Respondent has, she argues, essentially departed from its own standards.

As a first position, the Respondent submits that the instant claim is an

attempt to re-litigate the very issue heard and disposed of by Arbitrator Richard

Pound. The award in that matter, which issued on February 16, 2005, denied the

claim, finding that there had been no incorrect information or data in the

Respondent’s decision making process. On that basis, with the exception of the

human rights issue, counsel for the Respondent submits that the claim should

simply not be entertained, and should in any event be dismissed.

With respect to the merits of the dispute, the Respondent argues that

there has been no departure from its own selection standards. Its counsel

stresses that those standards properly incorporate the Sport Canada SFAF

ranking, and do so for all sports in a way that is known to all NSOs. She stresses that all sports are treated the same under the SFAF process and that the

Claimant NSO has not suffered any adverse consequence which would not be

experienced by any other NSO subject to the same system. There is, on that

basis, no discriminatory treatment demonstrated, counsel submits. She submits

that the Appeal Adjudicator correctly concluded that the Respondent followed its

own selection process. She stresses that the fact that that process might result

in some sports being rejected does not of itself mean that the process was

applied incorrectly or that it was inherently wrong.

Counsel for the Respondent submits that it is entirely open to the Canada

Games Council to use the SFAF policy of Sport Canada in its selection process. 10

She notes that the criteria are well known and are applied equally to all sports.

The fact that a given sport is not selected does not establish that the decision

arrived at was arbitrary, discriminatory or made in bad faith. She argues that the

fact that the Claimant might not like the outcome of the process does not, of

itself, make it unfair or indeed contrary to the Respondent’s own rules and standards. On the contrary, counsel submits, the process has adhered to the standards, standards which it has applied equally to all sports.

Counsel for the Respondent submits that there is no jurisdiction in this

Tribunal to make a determination that a decision of the Respondent violates the

Ontario Human Rights Code, as the Claimant in the instant case alleges based

on Ontario being the place of residence and normal place of business of the

parties and Ontario law applying to the proceedings of the SDRCC pursuant to

article 6.25 of the Canadian Sport Dispute Resolution Code. While she

acknowledges that such jurisdiction has been found to apply in doping cases

(Jeffrey Adams v. Canadian Centre for Ethics in Sport [SDRCC DT-06-0039] a

decision of Arbitrator Richard H. McLaren dated June 11, 2007) she submits that

there is no such jurisdiction in a claim, such as the instant case, dealing with the

selection of sports for the Canada Games.

Counsel for the Respondent specifically distinguishes the authority of an

Arbitrator hearing a case under the Canadian Sport Dispute Resolution Code and

an Arbitrator with statutory authority, as for example a board of arbitration sitting 11

under a labour relations act with the express authority to apply human rights

legislation (e.g. Parry Sound Social Services Administration Board v. Ontario

Public Service Employees Union, Local 324 [2003] 2 S.C.R. 157).

In her supplementary submission, counsel for the Claimant relies, in part, on the Parry Sound decision. She stresses the public nature of the Canada

Games, involving as it does, to some degree, the exercise of federal, provincial

and municipal government authority. She also notes that the CSDR Code, which

gives the Arbitrator his jurisdiction, is rooted in federal legislation, in particular the

Sport and Physical Activity Act, S.C. 2003, c.2. Counsel also relies on the

decision of Arbitrator McLaren in the Adams case, cited above.

I turn to consider the merits of the dispute. Firstly, the Arbitrator strongly

agrees with the suggestion of counsel for the Respondent that is it not

appropriate to re-litigate those issues heard and disposed of by Arbitrator Pound

in the prior award between these same parties which was issued on February 16,

2005. However, after a careful review of Arbitrator Pound’s decision, there does

appear to be a distinction between the issues raised in the instant claim and

those which were litigated before him. Arbitrator Pound’s reasoning appears, as

follows, at pp 8-9 of his decision:

On the merits of the appeal, however, I have concluded that Softball Canada’s appeal must be rejected.

There is no evidence before me that the data and/or information supplied by Sport Canada and considered by the CGC are “incorrect.”

On the contrary, the data, as they relate to softball (male), make quite clear what effect the Sport Canada assessment produces, namely that softball (male) does not qualify at all for a high performance ranking. What Softball Canada seems to be attempting, through this proceeding, is either to attack the underlying policy considerations that have led to this conclusion or to blur the distinction between NSOs, on the one hand, and sport performance, on the other.

As to the first, I have nothing before me to suggest that the ranking, made solely for the purposes of assisting the CGC in its selection of sports for the program of the Canada games, is “wrong.” On its face, the ranking is said to have been made consistent with the SFAF II Excellence Assessment protocols and intended for the sole purpose of the Canada Games selection process. There might well have been different policy considerations that could have led to development of different criteria and concomitantly different results, but that is a sport-political battle that must be fought elsewhere, not in arbitration proceedings. It is clear that Softball Canada is (or must be taken to be) aware that softball (female) is an Olympic discipline and that softball (male) is not. It has certainly lived with the Sport Canada funding consequences arising from that distinction.

To be successful on the ground of incorrect data or information, Softball Canada would have had to come forward with evidence that Sport Canada had incorrectly applied its own criteria or had made some error of calculation in producing the ranking that it provided to the CGC, or that the CGC, having been provided with Sport Canada’s ranking, misapplied it or refused to adopt it. I leave for another appropriate proceeding the issue of what standard of review the CGC should be held to apply when it receives information from a third party for use in applying its Sport Selection Policy. 13

As to the second, it seems to me that the Sport Selection Policy is sufficiently clear to compel me to reach a conclusion that the evaluation of the performance of a sport under section 2.2.2 of that policy is directed at sport performance, not the organizational performance of the NSO qua organization. The responsibility for providing the relevant data for that portion of the overall assessment lies with Sport Canada, which has fulfilled that responsibility. It is the level of achievement on the field of play that matters for such purpose. No matter how efficiently a NSO may carry on its operations, it is not its efficiency in organizing board meetings and other activities that counts for this portion of the assessment, but how its teams – assessed on a gender basis – perform in competition. That is the measurement contemplated in section 2.2.2. It would be remarkable indeed were any different construction to be derived from the plain meaning of the language used and the underlying intention of the selection criteria.

The appeal by Softball Canada is dismissed.

As can be seen from the foregoing, there was no analysis, and it would appear no argument, that the Respondent in fact departed from its own standards and procedures by importing the SFAF funding standards of Sport

Canada into the selection process. In that case the narrower argument put forward appears to have been that there was, in the adoption of the standard, an incorrectness or error on the part of the Respondent. Nor, obviously, was there any analysis, as indeed there was no argument, with respect to an allegation that the decision making process was discriminatory and in violation of the Ontario

Human Rights Code. On the whole, therefore, I must conclude that the issues argued in the instant case are sufficiently different from those placed before 14

Arbitrator Pound so as to preclude the application of a rule analogous to res judicata.

I consider next the issue of jurisdiction. Can it be said that an Arbitrator seized of a claim under the CSDR Code is without jurisdiction to consider or give effect to the possible illegality of a rule, process or decision taken by a party before it, and in particular a violation of general human rights legislation? In approaching this question it is difficult to forget the observation made famously by Lord Denning to the effect that there cannot be one law for the courts and another law for arbitrators. That is particularly so when dealing with matters as fundamental as human rights codes.

As noted above it would appear settled that, insofar as doping cases are

concerned, Boards of Arbitration under the CSDR Code do have the jurisdiction

to consider human rights legislation. It was put in the following terms by

Arbitrator McLaren in the Adams decision, at paragraph 145:

Jurisdiction

145. Article 6.18 of the Canadian Sport Code gives the Doping Tribunal jurisdiction over the subject matter of this dispute, the parties and the remedies sought; and, grants full power to review relevant facts and applicable law:

6.18 Scope of Panel’s Review

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; or II. in case of Doping Disputes, the CCES’s assertion that a doping violation has occurred and its recommended sanction flowing therefrom,

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

Therefore, where fair and equitable, the Doping Tribunal may consider the Charter or any other relevant legislation, including human rights legislation in rendering its decision. It is not relevant whether the Doping Tribunal has the authority of the provincial or federal government to apply the law, as this power is being recognized in the context of a private arbitration proceeding by the rules governing its procedures.

Is there any reason to believe that the Arbitrator’s jurisdiction is any

different where the issue in dispute, also arising under the authority of article 6.18

of the CSDR Code, may concern some other issue, such as sport selection, team

selection or carding? I think not. It is difficult to conceive of the tribunal

empowered to provide relief which is “just and equitable” being precluded from

considering standards of general public law, and in particular the anti-

discrimination provisions of human rights codes. Is it conceivable that an arbitrator would be limited under the CSDR Code to finding that a team selection standard which excluded a particular minority race was properly followed, having regard to the rules and procedures of the NSO, simply because that NSO’s rules expressly incorporate racial discrimination? To ask the question is to answer it. 16

The question was addressed and to some degree answered in different

terms by this Arbitrator in a prior decision. In Canadian Amateur Boxing

Association v. Canadian Olympic Committee (Arbitration Award ADR-Sport RED

Ordinary Division, 10 July, 2004) stated the following:

To put it differently, accepting that this arbitration rests on a contractual

footing, as a matter of contract interpretation it should not be inferred that the

parties intended their rules and procedures to be contrary to public law. For

these reasons I am satisfied that it is within the jurisdiction of the Arbitrator to consider whether the processes and/or decision of the Respondent have in some manner violated the anti-discrimination provisions of the Ontario Human Rights

Code. More specifically, is the treatment of male athletes, the men’s softball team, discriminatory as compared with the treatment of women’s softball given the application of the Sport Canada SFAF standards in the sport selection process for the Canada Summer Games? A parallel question, raised by the

Claimant, is whether the adoption of the Sport Canada rules amounts to a contradiction of the Respondent’s own sport selection process and standards, and amounts to the importing of irrelevant considerations and failing to consider only relevant information. 17

When all of the above questions are examined, the Arbitrator has some difficulty with the position advanced by the Claimant. Firstly, it should be stressed that the Sport Funding and Accountability Framework (SFAF) of Sport

Canada is not a minor add-on to the sport selection process of the 2013 Canada

Summer Games. The definitions section of the process contains the following:

Sport: a sport is a regulated form of physical activity organized as a contest between two or more participants for the purpose of determining a winner by fair and ethical means. Such contests may be in the form of a game, match, race, routine, or other form or event.

• Team Sport: a form of physical activity organized as a contest between two teams, and that cannot be organized as a contest between two individuals. In this document, the term Team Sport will always refer to a gender-specific team. Examples of Team Sports are female rugby, male basketball, male baseball, female volleyball, etc.

• Individual Sport: all Sports that are not Team Sports, as defined above. Individual Sports are primarily a contest between individual participants, but not exclusively. In this document, the term Individual Sport will always refer to combined male and female participation. Examples of Individual Sports are judo, swimming, diving, tennis, etc.

Sport Funding and Accountability Framework: The Sport Funding and Accountability Framework (SFAF) is the process used by the Department of Canadian Heritage to identify which National Sport Organizations (NSOs) are eligible for Sport Canada contribution programs, in what areas, at what level and under what conditions. 18

• Sport Funding and Accountablility Framework’s eligibility requirements: eligibility requirements are a set of criteria to identify NSOs that have reached a requisite level of development and capacity enabling them to provide technically and ethically safe and sound sport programs and activities that are accessible to all Canadians. In addition to being the entry point to the SFAF process, eligibility provides direction and information for new and developing NSOs on the type and nature of requirements they will need to achieve in order to apply for eligibility for Sport Canada contribution programs.

…

C. SPORT SELECTION PROCESS

In order to minimize the administrative requirements of NSOs, the CGC-SC will rely on data from other sources to complete the sport selection process. Data used by Sport Canada in the administration of the Sport Funding and Accountability Framework will be used for section 1.1; data from the Coaching Association of Canada will be used for 1.2 (although NSOs will be required to answer some questions). The questionnaire to NSOs will be kept as simple as possible.

…

3.2 Sport assessments

…

33.5% Sport Canada ranking Sport Canada will produce an Interim Excellence Results ranking for the current SFAF cycle, updated to include the most recent Olympic and World Championship (i.e. through to November 18, 2007) on a discipline- specific basis. This ranking is consistent with SFAF III Excellence Results Assessment 19

protocols and is intended for the sole purpose of the Canada games sport selection process. This ranking and the scores on which it is based should not be inferred as a reflection of, or a reference to, the upcoming SFAF IV assessment. The final score for each sport will then be adjusted according to the weight of this category (33.5%).

…

4. Procedure for the final selection of Sports

…

• The number of male and female athletes selected to the combined Winter 2011 and Summer 2013 Games will be equitable. Given this, among those sports not pre- selected, a lower-ranked Sport may be selected over a higher-ranked Sport in order to meet this gender equity target.

In approaching this dispute it is important, I think, to bear in mind that the

Canada Games Council is compelled to keep its eye on the big picture, and to manage its selection process in a way which will promote an overall gender equality in the content of the Games. That is expressly reflected in the paragraph quoted above under the “Procedure for the final selection of Sports”.

The Respondent’s own governing document goes so far as to express that a higher ranked sport may yield to a lower ranked sport to achieve overall gender equity in the Games.

Overall gender equity is not necessarily achieved by arguing that a team

sport which is available for one gender must be a team sport also available for

the other gender. That would, in fact, risk unbalancing the gender equity

exercise that must be engaged in by the Games authority. From the standpoint

of gender equity, it is not insignificant that both the 2008 Summer Olympic

Games and the 2013 Canada Summer Games include baseball for men (and not

for women) and softball for women (and not for men). Indeed, in the Summer

Olympic Games scheduled for London in 2012 both baseball (for men) and

softball (for women) will no longer be included as sports.

Nor can it be ignored that in Olympic and National Games generally

certain sports, and in some case certain disciplines of sports, are gender specific.

In Olympic Games boxing is a gender specific male sport while synchronized

swimming and rhythmic gymnastics are gender specific female sports. Within

the sport of artistic gymnastics events in rings and the pommel horse are unique

to men while the balance beam and the uneven bars are exclusive to women.

While these arrangements may be said to be “discrimination” based on gender,

in fact they are part of a balancing of sports and disciplines within sports to achieve overall gender equity in the Games.

These kinds of distributions of sports, and disciplines within sports, are not

discriminatory in the sense contemplated by human rights legislation. On the

contrary, they are generally conceived and administered in such a way as to 21

promote gender equity in the overall participation of athletes, both male and

female, in the Games. It would appear to be less than clear to the Arbitrator that

the principle of gender equity would be served if the instant claim were allowed.

That would mean that at the 2013 Canada Games men would participate in baseball as well as in softball, while women would be restricted to softball. In that event, a micromanaged discrimination analysis which would find in favour of men’s softball would have the ultimate effect of disturbing gender equity and in fact imposing a result which is, in the aggregate, discriminatory as against females. With respect, to follow that reasoning, as is suggested by the Claimant, is truly to fail to see the forest by only focusing on two trees.

I also find it difficult to give substantial weight to the argument of the

Claimant to the effect that using Sport Canada’s SFAF standards contradicts or

undermines the sport selection process adopted by the Respondent. As the

excerpts from the selection process reproduced above clearly confirm, the SFAF

standard is front and centre in the selection process, accounting as it does for

fully one-third of the score. The Respondent’s published process expressly

incorporates the discipline specific approach of the SFAF, as stated in article 3.2.

Nor do I see any conflict in the fact that the Respondent’s selection process refers to team sports as being gender specific. That reference can, I believe, be well understood as a point of clarity for the administration of the selection process. It is not clear to the Arbitrator that it cannot stand side by side