SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) CENTRE DE RÈGLEMENT DES DIFFÉRENDS SPORTIFS DU CANADA (CRDSC) NO: SDRCC 18‐0366 GRACE WHEBBY (CLAIMANT) AND CANOE KAYAK CANADA (RESPONDENT) REASONED DECISION Appearances: Chris Chaisson On behalf of the Claimant Grace Whebby Adam Klevinas On behalf of the Respondent Casey Wade Anders Gustafsson (Head Coach) Graham Barton (Chief Technical Officer) Ian Mortimer 1. On July 11, 2018, I was selected by the parties as a Med/Arb Neutral and appointed by SDRCC under Article 6 of the Canadian Sport Dispute Resolution Code (the “Code”) to hear Grace Whebby’s appeal of Canoe Kayak Canada’s (“CKC”) decision not to select her to the 2018 U23 World Championship Team (“the Team”). 2. The proceedings were conducted on an expedited basis due to a July 21, 2018 deadline for the selected athletes to travel to the World Championships in Bulgaria. 3. Following an unsuccessful attempt to resolve the dispute by mediation on July 14, 2018, the parties filed written submissions on July 16 and 17, 2018. The parties subsequently agreed that additional oral submissions were not necessary. 4. On July 19, 2018, I issued my decision to deny Ms. Whebby’s appeal, with reasons to follow. These are my written reasons. BACKGROUND 5. Ms. Whebby is a competitive kayaker and a member of CKC’s Kayak Sprint team. 6. CKC is the national governing body for competitive paddling in Canada. It is recognized by the International Canoe Federation, the Canadian Olympic Committee, the Canadian Paralympic Committee and Sport Canada as the designated authority for the sport in Canada. 7. On June 26, 2018, Ms. Whebby was informed that she had not been selected to the Team. 8. Ms. Whebby disputed the substance and reasonableness of the Selection Criteria as well as the reasonableness of the selection decision. 9. Because of the time constraints presented by the competition deadline, the parties agreed to bypass CKC’s internal appeal process and proceed directly to SDRCC to resolve the dispute. 10. CKC has the initial burden of establishing that the Selection Criteria were properly established and that the selection decision was made in accordance with those criteria. If that burden is satisfied, the onus then shifts to Ms. Whebby to demonstrate, on a balance of probabilities, that the Selection Criteria were not properly established and that the selection decision was not made in accordance with that criteria, or that the decision was otherwise wrong, objectively unreasonable or tainted by bias. The Selection Criteria 11. The relevant portions of the National Team Selection Procedures 2018 – Sprint are as follows: 1. Performance Objectives The following Canoe Kayak Canada Selection Procedures are guided by CKC’s performance objectives where an athlete or crew demonstrates the ability/potential to make a Top 8 finish at competitions for which athletes are selected and be progressing toward the podium at World Championships and Olympic Games. 2. Selection Procedures The processes laid out in this document governs the selection of athletes to CKC teams in each of the disciplines and must be read in conjunction with the relevant Selection Criteria Supplement applicable to each CKC team/pool. […] 5. Selection Panel and Authority for Selection 5.1 Subject to clauses 4.2 and 4.3 there shall be a Selection Panel for each team to be selected. Each Selection Panel shall be appointed by the CTO [Chief Technical Officer] of CKC. Each Selection Panel will be responsible to the CTO and will comprise three persons: CTO, HC [Head Coach] and a member of the HPC [High Performance Committee]. Additional members, at the CTO’s discretion, may be appointed where the CTO deems this necessary. 7. Selection Criteria 7.1 The selection criteria are developed by the CTO. Following feedback from coaches, athletes and the CKC community, the final Selection Criteria is then forwarded to the High Performance Committee for review. The CTO then forwards this criteria to the Sprint Racing Council (SRC) for approval. 7.2 The criteria to be applied by the Selection Panel for the applicable team is that set out in the relevant Selection Criteria Supplement. 12. The relevant portions of the U23 Sprint World Championship Team Criteria Supplement 2018 are as follows: 1. Performance Objectives The following U23 World Championships Team Selection Criteria are guided by CKC’s performance objectives where a crew demonstrates the ability/potential to make a Top 8 at the U23 World Championships and be progressing toward the podium at Senior World Championships and Olympic Games. 2. Selection Overview 2.1 Athletes/Crews who are vying for a nomination to the U23 World Championship Team (The Team) will do so as part of the Senior World Championship Selection process. 2.2 The 2018 competitions that will be used in the selection of the Team are: 2.2.1 National Team Trials #1, April 20‐22, Gainesville, Georgia 2.2.2 World Cup #1, May 18‐ 20, Szeged, Hungary 2.2.3 World Cup #2, May 25‐27, Duisburg, Germany 2.2.4 National Team Trials #3, June 22‐24, Montreal, Quebec 2.3 […] 2.4 A crew can obtain a nomination to The Team on the basis of crew assessment during the Senior World Championships selection process. 2.4.1 See 2018 Senior World Championships Selection Criteria Supplement for details. 2.4.2 Priority nominations will be made for athletes or crews who are selected to the Senior World Championship Team. 2.5 It is not a requirement for Canoe Kayak Canada to enter crews in all events at all competitions. 2.6 […] 2.7 […] 2.8 The number of crews selected to the Team is dependent on the quality of the performance. Factors that will be considered when assessing the quality of performance can include: % time differential from the GMT ‐ An athlete/crew’s performance against a Gold Medal Time (see Appendix A) % time differential from the AFT – An athlete/crew’s performance against an A‐Final Time (see Appendix A) % time differential from the Winner % time differential from the previous finisher Known Performance (e.g. results against known international competitors in the race) Performance history (e.g. international results) Ranking Lists (See Ranking Lists points chart in Appendix B) […] Ranking Progression (Improvement or decline in National Rank) Unforeseen Circumstances (See Section 8: National Team Selection Procedures 2018 – Sprint Document found on the CKC Website) These factors are in no particular order and one or more may be used to either support or dismiss a selection. Other factors not listed may also be considered. […] Were the Selection Criteria properly established? 13. The following narrative was outlined in CKC’s written submissions. As Ms. Whebby did not challenge any of this evidence, I accept it as fact. 14. Graham Barton, CKC’s Chief Technical Officer, developed CKC’s Selection Criteria, as he was mandated to do under Section 7 of the National Team Selection Procedures 2018 ‐ Sprint. 15. Mr. Barton made a considered decision to alter the criteria from a participation approach, which had guided selection decisions in previous years, to a results‐based or performance approach, with a view to achieving Top 8 finishes at competitions for which athletes were selected. 16. Prior to drafting the Selection Criteria, Mr. Barton engaged in a consultation process as he felt it was important to communicate the revised performance objectives with the paddling community. 17. In the spring of 2017, Mr. Barton held face‐to‐face meetings with CKC’s national team to provide a general overview of the changes to the selection policy, and in the summer of 2017, held informal discussions with club and provincial team coaches. 18. In September 2017, Mr. Barton held a planning session with CKC’s National team coaches to review and discuss the principles of the Selection Procedures and Criteria. 19. Mr. Barton drafted the Selection Procedures and Selection Criteria supplements in October 2017, and circulated them to athletes, coaches and the CKC community. Athletes and coaches were asked to provide feedback and were given the opportunity to seek clarification on any aspect of the documents. 20. Mr. Barton hosted a workshop with coaches in late November 2017 at CKC’s annual summit to review the principles of the Selection Procedures and Criteria supplements. 21. In January 2018, CKC’s High Performance Committee (“HPC”) reviewed the first draft of the documents and provided feedback to Mr. Barton. The documents were redrafted and circulated to the CKC community for further feedback. 22. On February 8, 2018, Mr. Barton and the Coaches’ Representative on the HPC held a conference call with the coach community to discuss the documents. Approximately 10 coaches participated. 23. On February 9, 2018, Mr. Barton and the Athletes’ Representative on the HPC held a conference call with the athlete community to obtain their feedback on the documents. No athletes other than the Athletes’ Representative participated in the call. 24. Between February 10 and 14, 2018, the HPC reviewed the revised documents and approved the final versions. On February 22, 2018, CKC’s Sprint Racing Council, the HPC oversight body, approved the final version of the documents. 25. On February 23, 2018, CKC posted the final, approved versions of the Selection Procedures and Criteria supplements to its website. 26. CKC received no objections to any of the documents following their publication. 27. As prescribed by the Selection Criteria, athletes seeking nomination to the U23 team were evaluated as part of the Senior World Championship selection process. CKC says that it assessed the U23 athletes with the senior athletes based on objective data that indicates that the vast majority of athletes performing at the Top 8 level internationally in the U23 category are also top‐ level international senior athletes.