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). 3 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. 6 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.

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