Safe Sport disputes and litigation are a growing area in the field of sports law in Canada. Since the 1990’s, national sports organizations (“NSOs”) have been required to have their own internal harassment and complaint policies in place in order to receive federal funding. Provincial sports organizations (“PSOs”) and clubs also have adopted harassment and complaint policies in order to protect their members. Importantly, in 2022, the Sports Dispute Resolution Center of Canada created and launched Abuse-Free Sport, an independent program aimed at removing all forms of harassment, discrimination and abuse from Canadian sport. Canada’s first Sport Integrity Commissioner was appointed to oversee the program and the Office of the Sport Integrity Commissioner (OSIC) operates independently to receive complaints about alleged violations of the Universal Code of Conduct to Address and Prevent Maltreatment in Sport (UCCMS).
In our experience assisting clients involved in Safe Sport disputes, both through OSIC and through the dispute resolution processes of NSOs and PSOs, one of our most important roles as counsel is ensuring procedural fairness. It is essential that the principles of natural justice and procedural fairness be strictly adhered to for these processes to be fair to both complainants and respondents.
Natural Justice and Procedural Fairness
The principles of natural justice exist in law as a safeguard for individuals and they stipulate that whenever a person’s rights or privileges are at stake, there is a duty to act in a procedurally fair manner. The principles of natural justice and procedural fairness are based on the theory that the substance of a decision is likely to be more fair if the procedure through which that decision was made is just. Importantly, as many of the complaints made against coaches or referees have the potential to affect their livelihood, a high standard of justice is required in these proceedings.[1]
Some of the most important principles of procedural fairness in relation to Safe Sport disputes include:
- Disclosure
- Opportunity to respond
- Duty to consider all of the evidence
- Right to impartial decision makers and freedom from bias
- Delay
Disclosure and Opportunity to Respond
The duty of disclosure and opportunity to respond often go hand in hand. Parties are entitled to be made aware of information that is part of a complaint and forms the basis for a finding or decision. Further, parties must be given a chance to respond to that information. For example, if an investigator in a Safe Sport dispute becomes aware of new evidence in the course of witness interviews, he or she must put that evidence to the other party and give them a chance to respond if the investigator plans to rely on that evidence as a basis for a finding or decision. The duty to disclose is high where the information is central to the complaint. If a party is not able to see and respond to information that is important to a case, that decision may be deemed procedurally unfair and set aside.[2]
The duty of disclosure also extends to the allegations being made against a Respondent and the potential consequences. In the case of Wayne Gordon v Canadian Amateur Boxing Association [Wayne Gordon][3], the arbitrator found that the coach had not been given adequate disclosure of the allegations against him or the potential sanctions, and as such, the decision makers failed to meet the necessary standard of fairness.
Duty to consider all evidence
In many Safe Sport disputes, including those that proceed through OSIC, an independent investigator is appointed to interview the parties and their witnesses to determine whether there is sufficient evidence to substantiate the allegations. Through this process, parties are usually asked to recommend a list of witnesses to the investigator in support of their case. Investigators have an obligation to be thorough and interview the recommended witnesses. This obligation was discussed in the case of Andy McInnis v Athletics Canada and Ottawa Lions Track and Field Club [Andy McInnis][4], where Arbitrator Bennett set out a non-exhaustive list of obligations of an investigation to ensure fairness. He specifically noted that investigators should review and carefully consider all evidence, and interview all witnesses put forward by both sides unless there are compelling reasons not to do so. If an investigator chooses not to interview someone, this should be identified in the final report and reasons given for why that decision was made.
Impartiality
Procedural fairness is violated when the decision maker is biased or their conduct or statements raise a reasonable apprehension of bias. Decision makers must not allow personal beliefs or interest to influence their decisions. The duty to be impartial applies to both arbitrators and investigators. The mere possibility of bias may be enough to show bias and have a decision set aside. Examples that may demonstrate a possibility of bias include: prior involvement in the case, a relationship between the decision maker and one of the parties, marked hostility towards one of the parties, or the possibility of a benefit from the outcome of proceedings. In the case of Andy McInnis, the arbitrator found that the investigation was biased, evidenced in part by the investigator’s use of inflammatory language and editorializing in the written report. In Wayne Gordon, the arbitrator found that two of the members of the decision-making committee acted as both investigators and judges in the case which did not meet the requisite standards of fairness and impartiality.
Delay
One of the biggest issues that our firm has encountered in the context of procedural fairness in Safe Sport disputes is delay. Unreasonable delay in the processing and handling of complaints can result in an abuse of process.[5] Delay in Safe Sport proceedings can cause extreme prejudice to parties, and particularly to respondent coaches and referees, as many discipline and complaint policies, including OSIC’s, provide that provisional measures can be implemented prior to any finding of guilt. This includes provisions ranging from mandated supervision to suspension. In some cases, these measures can prevent a party from pursuing his or her livelihood, or can impact other athletes’ careers who have a coach who is the subject of a complaint and provisionally suspended. This can lead to financial loss, loss of opportunity and reputational damage for a respondent. While the reasoning behind implementing provisional measures is honorable in that it seeks to protect vulnerable participants while investigations or hearings are pending, the consequences can, in many cases, result in extreme prejudice to respondents and runs counter to a sacred legal principle: the presumption of innocence. In some cases, provisional measures are imposed before a respondent even submits a response to the complaint. In many of these proceedings, Safe Sport investigations take several months to over a year and respondents are often not released from their provisional measures until the proceedings have resolved. In cases where the complaint is found to be unsubstantiated or frivolous, this can result in a real injustice to a respondent. It is therefore imperative that Safe Sport disputes proceed efficiently and without delay to protect the interests of the parties and ensure procedural fairness.
Conclusion
Sport organizations, including OSIC, face real challenges in fairly and effectively investigating, prosecuting, and resolving Safe Sport disputes in a way that is fair and protects the interests of all parties. Parties involved in a dispute should be aware of the principles of procedural fairness to ensure that their interests are protected. For more information on Safe Sport and related disputes, please contact Alexandre Maltas or Elizabeth Cordonier.
[1] Kane v Board of Governors of UBC., [1980] 1 SCR 1105
[2] See Davidson v Canada (Attorney General), [2019] FCJ No. 880, 2019 FC 997, Federal Court, July 25, 2019, H.S. Brown J.
[3] SDRCC 2003 ADR 02-0013
[4] SDRCC 19-0401 at para 165
[5] Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307