IN THE MATTER OF AN ARBITRATION OF ADR-SPORT-RED RE: SELECTION OF SWIMMERS FOR THE 2002 COMMONWEALTH GAMES BY SWIMMING/NATATION CANADA between ANNAMAY PIERSE GORD VELDMAN DOUG WAKE (the “Appellants”) and SWIMMING/NATATION CANADA (the “Respondent”) and KURTIS MACGILLIVARY CHAD MURRAY KARLEY STUTZEL (the “Intervenors”) ARBITRATOR: MICHEL G. PICHER APPEARANCES: For the Appellants Pierse, Veldman and Wake: David H. de Vlieger - Counsel For the Appellant Veldman (in part): John Phillippe Schuman - Counsel For Swimming/Natation Canada: Karen Spierkel - C.E.O. 2 For the Intervenors: Kurtis MacGillivary: Dean Boles - Coach/Agent Chad Murray: Brian J. Murray - Counsel Karley Stutzel: Dr. Peter Vizsolyi - Coach/ Agent A preliminary pre-hearing telephone conference was held on Thursday, June 20, 2002; The exchange of pleadings and related documentation was completed on Friday, June 21, 2002; The hearing was held by telephone conference on Saturday, June 23, 2002. DECISION This arbitration concerns the decision of Swimming/Natation Canada (SNC) establishing the 2002 Commonwealth Games Team. The arbitrator was appointed by the order of the Chief Arbitrator under Rule RA - 15.2(d) of the ADR-SPORT-RED Code, effective June 20, 2002. It is common ground that the deadline for the SNC to submit the names of its team members to the Commonwealth Games is June 24, 2002. It was therefore imperative to proceed expeditiously. To that end the arbitrator convened and conducted a pre-hearing conference by telephone commencing at 4:00 p.m. on Thursday, June 20, 2002. The purpose of the call was to establish 3 the procedure for the hearing, to ensure that all parties have, or be provided, the pleadings and related documentation and that all parties or their counsel or agents have notice of the hearing on the merits. During the pre-hearing conference all of the appellants, the respondent and all of the intervenors were represented by the persons named on the appearance list of this decision. All participants indicated which pleadings or related documents they had or did not have, and pursuant to the arbitrator’s direction, undertakings were made by counsel and agents to provide the necessary documentation to all parties, either directly or through the Court Office. The exchange of pleadings and related documentation was completed on Friday, June 21, 2002. All parties, including the appellant athletes and intervenor athletes, were provided, through their counsel or agents, full notice of the hearing, including the teleconference access number and code, and were thereby given the opportunity to participate, either directly or through their counsel or agent. Prior to the hearing, upon reading the pleadings, the arbitrator noted that counsel for G. Veldman, Mr. Schuman, requested as part of the remedial relief that swimmer Jennifer Carrol be de-selected from the team. There is no indication to the arbitrator that Jennifer Carrol has been notified of these proceedings, or was identified by counsel, either to the Court or to the arbitrator, as an affected party with a significant interest, within the contemplation of rule 4 RA-16.5. In the circumstances, having particular regard to the extremely short time involved, following preliminary submissions made at the outset of the hearing, the arbitrator rules that he does not consider that he has jurisdiction to direct the de-selection of swimmer Jennifer Carrol, in keeping with the rules of natural justice. Alternatively, if I have such jurisdiction, I would not exercise my discretion to make the order requested, given that counsel did not raise the obvious interest of Jennifer Carrol, who was at all material times unrepresented, during the pre-hearing conference. At the outset of the hearing on the merits the arbitrator canvassed the parties as to any jurisdictional objections. All parties agreed that I have jurisdiction subject to two objections. On behalf of the intervenor Chad Murray, Mr. Murray objected to the sufficiency of notice. On behalf of the intervenor Kurtis MacGillivary, Mr. Gene MacGillivary, his father, likewise objected to the sufficiency of notice. He conceded, however, that his son, who is in Australia, was advised by him, via e-mail, of this proceeding. The arbitrator appreciates the constraints of time in this matter. However, as noted above, and bearing in mind that the appeal process commenced after May 24, 2002, all parties did receive notice, did participate in the pre-hearing conference, did have access to all pleadings and documentation and did have the opportunity to submit their own documents, as they did, and to make oral submissions during the hearing on the merits. In the circumstances, I am 5 satisfied that there has been compliance with the rules of natural justice and that the procedural objections cannot be sustained. However, bearing in mind that the ADR-SPORT-RED process is in its development stages, it is to be hoped that in future document sharing and the identification of interested parties may be more expedited. The first issue to address is the standard of review. While counsel for the appellants maintain that the decision of the Appeal Panel should be reviewed for correctness, and the intervenors argue for the higher standard of patent unreasonableness, I find it unnecessary to resolve that debate in the instant case. For the reasons related below, I am compelled to conclude that the decision of the Appeal Panel is, in any event, unsustainable on the language of the Selection Criteria to the point of being patently unreasonable. The Selection Criteria, adopted and applied by the SNC Selection Committee read as follows: CRITERIA CATEGORY A: Swimmers who medal in an Olympic individual event at XVII Commonwealth Games Trials in Winnipeg, Manitoba AND whose performances equal or better the 2004 FINA “A” standard shall be automatically selected. Performances in the preliminaries and/or the semi-finals of the top three finishers shall be considered for selection. 6 CATEGORY B: Once Category A selections have been determined and finalized, swimmers who are medalists in an Olympic program individual event at the XVII Commonwealth Games Trials shall be ranked according to the 2001-2005 SNC Long Course Performance Ratings and shall be considered for selection up to a maximum of 12 men and 12 women inclusive of the Category A selections. CATEGORY C: Should positions remain open in the team complement, the SNC Selection Committee shall consider the first place finishers in an Olympic program event not selected in Category A or B. The swimmers shall [be] selected in rank order according to the 2001-2005 SNC Long Course Performance Ratings. CATEGORY D: Should positions remain open in the team complement, the SNC Selection Committee shall consider the second place finishers in an Olympic program event not selected in Category A, B or C. The swimmers shall be selected in rank order according to the 2001-2005 SNC Long Course Performance Ratings. CATEGORY E: Should positions remain open in the team complement, the selection committee shall consider the third place finishers in an Olympic program event not selected in Category A, B, C or D. The swimmers shall be selected in rank order according to the 2001-2005 SNC Long Course Performance Ratings. CATEGORY F: Additional swimmers may be considered for selection at the discretion of the SNC Selection Committee and SNC National Coach – Director High Performance Services. RELAYS: Relays shall be made up from the team complement at the discretion of SNC National Coach – Director High Performance Services 7 In making the initial team selection, the Selection Committee concluded that it was not restricted to filling team positions by selecting all swimmers within one category before proceeding to consider and include swimmers from a lower category. As National Team Head Coach, Dave Johnson, put it, “A strong third could be selected over a weak second place finisher.” As the Selection Committee initially viewed the document, subject to the mandatory selection of athletes in Category A, the Committee retained the discretion not to fill the balance of the team by the automatic sequential application of the following categories. In other words, the Committee could decide not to select all eligible swimmers in Category D and, instead, could select only some swimmers from Category D and then move on to Category E. The application of that approach led to the selection of the appellants over the intervenors. The intervenors protested to the Appeal Panel which allowed their appeal. Essentially, the Appeal Panel ruled that the Selection Committee did not have any discretion to select swimmers from Category E over swimmers from Category D. The decision of the Appeal Panel, dated May 13, 2002, reads, in part, as follows: DECISION OF THE COMMONWEALTH GAMES SWIMMING TEAM SELECTION – APPEAL PANEL ... 8 ISSUES The issue for the appeals of the First Appellants is whether the Committee properly applied the selection criteria when it selected certain third place finishers at the Commonwealth Games trials ahead of second place finishers. ... DECISION A. APPEALS OF KARLEY STUTZEL, CHAD MURRAY AND KURTIS MACGILLIVARY The First Appellants did not take issue with any of the selections made under Categories A, B, C, and F. The First Appellants argued that the selection criteria were clear and required all Category D swimmers to be selected before any Category E swimmers can be selected. The First Appellants submitted that the Committee erred in applying the selection criteria when it selected Category E swimmers and left them, as Category D swimmers, off the team. The Committee also argued that the selection criteria were clear. However, in the Committee’s view, all selections under Categories C, D, and E were discretionary. The Committee believed it had the discretion to select Category E swimmers over Category D swimmers if the Category E swimmers had higher ranking swims under the 2001 – 2005 SNC Long Course Performance Ratings (“Performance Ratings”).