SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) LEYLA SMIRNOVA AND. JANICE JOHNSTON (sole arbitrator) AWARD

Transcription

1 SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) FILE NO: SDRCC IN THE MATTER OF AN ARBITRATION BETWEEN: LEYLA SMIRNOVA AND (Claimant) SKATE CANADA (Respondent) JANICE JOHNSTON (sole arbitrator) APPEARANCES: FOR THE CLAIMANT: Laura Robinson Counsel FOR THE RESPONDENT: Daphne Fedoruk Counsel AWARD

2 This matter arises from a request for arbitration filed by the Claimant, Ms. Leyla Smirnova, on February 17, I was appointed by the SDRCC from its rotating list to act as Arbitrator and have filed the requisite Declaration of Independence. 2. A preliminary conference call was held on March 3, During this call, I advised the parties that given the nature of the case, it might be possible to determine this matter based upon written submissions and a documentary review. Counsel for the Claimant indicated a preference for a hearing to be held in addition to written submissions and counsel for the Respondent did not feel that a hearing would be necessary. Pursuant to Article 3.12 of the Canadian Sport Dispute Resolution Code (the Code ), if the parties are not in agreement on the format of the proceedings the Arbitrator has the discretion to make a final determination. 3. The parties were therefore directed to proceed on the assumption that a hearing might not be necessary in this case. Subsequent to the conference call, the parties agreed upon a timeframe for the filing of submissions and additional documents. After the receipt of and a review of the materials filed by the parties with the SDRCC, I determined that I was in a position to determine this case without the need for viva voce evidence or additional oral submissions. I would like to thank counsel for the extensive and comprehensive submissions that were filed. They provide a thorough analysis of the respective positions of the parties. The jurisprudence provided by both parties was also very helpful to me in coming to the conclusions that follow. BACKGROUND 4. The Claimant appeals from two decisions issued by a Skate Canada Hearing Panel (the Panel ) established in accordance with Skate Canada s by-laws. The

3 - 3 - Panel was made up of three Skate Canada members with a background in both skating and arbitration. The Claimant in this case does not raise allegations of bias nor does she challenge the competence, composition or status of the Panel. The Claimant does not dispute that the hearing process was fair nor does she allege any breaches of procedural fairness in the hearing process. The Panel heard and determined the allegations raised by Skate Canada that the Claimant had breached the Membership Complaints Policy and the Coaches Code of Ethics Policy. The Panel in this case was tasked with applying Skate Canada's policies and the values they reflect. The Panel was required to determine whether Ms. Smirnova upheld Skate Canada s values of positivity, sportsmanship, and respectful conduct, in compliance with Skate Canada s policies. The panel had before it three complaints containing allegations that the Claimant had engaged in inappropriate conduct and had verbally and physically abused young skaters on a consistent and regular basis. 5. The Panel heard testimony from sixteen witnesses over three days from December 16 to 18, The panel issued a decision on January 15, 2016, in which it concluded that the Claimant s conduct constituted an abuse of power and personal harassment in violation of Section 9 of the Membership Complaints Policy and Section 4.4 of the Coaches Code of Ethics Policy. The Panel also found that the conduct of the Claimant constituted major misconduct in breach of Sections 4.1, 4.3, 4.4 and 5.6 of the Coaches Code of Ethics Policy. Following a hearing conducted by conference call on February 2, 2016, the Panel issued a second decision on February 8, 2016, setting out the penalty to be imposed. The Claimant s membership in Skate Canada was suspended effective February 15, 2016, to December 31, 2018, with the stipulation that she could apply for reinstatement effective January 1, The Claimant requests that the SDRCC set aside the disciplinary decision dated January 15, 2016, and the decision on penalty dated February 8, As part of

4 - 4 - her appeal, the Claimant sought provisional and conservatory measures pursuant to Article 6.15 of the Code. She sought a stay of the operative portion of the sanctions imposed by the Panel. A Jurisdictional Arbitrator was appointed to hear this application. An award with reasons dismissing the request for a stay was issued on March 1, Skate Canada is the governing body for the sport of figure skating in Canada. Skate Canada qualifies and appoints judges, referees and other officials, conducts training programs for skaters and coaches, provides financial support to national team athletes and disseminates information about figure skating to the general public. Skate Canada provides standards and rules for the figure skating activities of its members. Skate Canada is a private not-for-profit association, governed by a National Board of Directors whose responsibilities include enacting by-laws for the association. These policies, rules and regulations apply to all of Skate Canada's members. 8. Skate Canada has approximately 180,000 registrants across the country. Of those, 154,705 are children under the age of 18, and 142,861 are under the age of 14. Therefore, Skate Canada considers itself a children's organization. Skate Canada's policies exist to advance Skate Canada's mission of bringing children and youth into the sport of skating and helping them grow, learn and foster a lifelong love of skating. Skate Canada's registered coaches are at the front line of that mission. 9. At the time the allegations that gave rise to this case arose, Ms. Smirnova was a coach at the Thornhill Figure Skating Club and had been for a decade. In February, 2015, Ms. Smirnova received a letter from Skate Canada, informing her that her membership had been suspended because of serious allegations made against her and that a Children s Aid Society ( CAS ) investigation had been commenced. The CAS investigation which concluded by February 26,

5 , found that the allegations of physical harm by Ms. Smirnova towards her students had not been verified and that allegations that Ms. Smirnova had made demeaning comments to her skaters were inconclusive. 10. Skate Canada alleged that the Claimant verbally and physically abused skaters while coaching them, including behaviour such as: yelling and using insults, expletives and name-calling; and grabbing children by the shoulders and shaking them, pulling hair, and grabbing, squeezing and pulling skaters in anger. This abusive behaviour was directed at certain students, some of whom testified before the Panel. 11. The Panel heard from A.K. (age 12), A.B. (age 11), K.B. (age 9) and the mother of M.K. (age 11). Skate Canada also called to testify three figure skating coaches currently coaching at the Thornhill Figure Skating Club, Myke Gillman, Ellen Gould and Angela Harkness and a former coach at Thornhill, Rasa Budraitiene. 12. The Skate Canada Hearing Panel heard evidence from eight witnesses called on behalf of the Claimant. Ms. Smirnova testified on her own behalf, two figure skating coaches who had assisted Ms. Smirnova during her summer camps at the Thornhill Figure Skating Club testified, Lisa Makeeva and Ian Youle and five parents of the Claimant s students also testified, Lioudmila Savostianova, Dina Blumkin, Vitaly Birbraer, Roderick Tapp and Maria Mikhailitchenko. 13. A transcript of the internal appeal hearing was filed with the SDRCC. Both parties referred to specific portions of the transcript in making their written submissions. The Claimant s submissions in particular provide an exhaustive review of those portions of the transcript referencing the testimony which the Claimant asserts should have led the Panel to conclude that she had not engaged in the conduct for which she stood accused.

6 The evidence given by the witnesses called by Skate Canada in the lengthy hearing in December, 2015, was very different from the testimony provided by the witnesses called by Ms. Smirnova. Credibility was therefore a crucial issue in the hearing and one which had to be addressed in the decision. POSITIONS OF THE PARTIES 15. Counsel for the Claimant pointed out that the Canadian Sport Dispute Resolution Code makes it clear that the jurisdiction of the Arbitrator includes the full power to review the facts and apply the law. She stressed that I could substitute my own decision for the decision of the Skate Canada Hearing Panel, and may substitute such measures and grant such remedies or relief that I deem just and equitable in the circumstances. 16. Counsel for the Claimant argues that in this case a review of the reasons provided by the Panel reveals that it entirely failed to consider a substantial amount of relevant evidence, both testimony and documentary. This evidence was wholly inconsistent with the decision reached. A trier of fact must consider all of the evidence in relation to the ultimate issue to be determined, and the failure to do so constitutes an error of law (see R v. H. (J.M.), 2011 SCC 45 at para. 31 and R. v. M. (R.E.), 2008 SCC 51 at para. 38). 17. Further, counsel asserted that it is settled law that the standard of review for questions of law is correctness. No deference is shown to the findings of a trier of fact when an appellate tribunal reviews questions of law. The Supreme Court has confirmed that when reviewing a decision for correctness, an appellate court is free to replace the opinion of the trial judge with its own (see Housen v. Nikolaisen, 2002 SCC 33 at para 8). The Supreme Court confirmed that [w]here the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence,

7 - 7 - then it falls upon the reviewing tribunal to intercede (see R. v. M. (R.E.) (2008) SCC 51 at para. 50, citing R. v. Harper, [1982] 1 S.C.R. 2 at p. 14). 18. The written submissions provided by the Claimant provide a very detailed review of the evidence before the Panel with specific references to the transcript from the hearing. I do not propose to set them out here but will simply highlight the Claimant s submissions. 19. If I were to scrutinize the decision carefully, counsel suggested that the reasons provided by the Panel reveal that it failed to consider the totality of the evidence in this case in respect of each of the allegations as against Ms. Smirnova. The decision of the Panel reveals that it failed to consider relevant evidence from numerous witnesses and documents that was directly contrary to the findings made against Ms. Smirnova. It was argued that the reasons provided by the Panel for the conclusions reached give rise to the reasoned belief that the Panel must have forgotten, ignored or misconceived the evidence in a manner that affected its conclusions. In light of this error of law, no deference is owed to the findings of the Panel and I ought to examine and determine whether Skate Canada met its burden to prove each of the allegations against Ms. Smirnova in light of the entirety of the evidence. 20. The Claimant s counsel stressed that the trier of fact must scrutinize the relevant evidence with care to determine whether it is more likely that not that an alleged event occurred. The evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. 21. She pointed out that the Supreme Court has provided guidance to triers of fact considering the reliability and credibility of witnesses in cases of conflicting or inconsistent evidence. A trier of fact is not to consider the plaintiff s evidence in isolation but rather must look at the totality of the evidence to assess the impact

8 - 8 - of any inconsistencies on questions of credibility and reliability (see in this regard F.H. v. McDougall, 2008 SCC 53 at paras. 46, 49, 58 and 86). 22. The Claimant argues that an appropriate review of the totality of the evidence reveals that Skate Canada has failed to prove its case, as there is clear, cogent and convincing evidence that Ms. Smirnova did not engage in the verbally and physically abusive conduct as alleged by Skate Canada. The Claimant therefore requests that the appeal be allowed and the decisions of the Skate Canada Hearing Panel dated January 15, 2016, and February 8, 2016, be set aside. 23. Counsel for the Claimant also argued that it was plainly incorrect of the Panel to have relied on Mr. Gillman, Ms. Gould and Ms. Harness for the finding that Ms. Smirnova called skaters names or swore in front of skaters. None of these witnesses speak Russian, and none provided evidence that they had heard Ms. Smirnova swear or call skaters names in English. 24. It was also asserted by the Claimant s counsel that the Panel incorrectly failed to consider the results of the CAS investigation, which found that the allegations of physical abuse were not verified and that the allegations of verbal abuse were inconclusive. While not determinative, the fact that the specialized entity tasked with protecting children in the province of Ontario and its professional investigators reviewed these very allegations and found them to be not verified was relevant evidence that the Panel ought to have considered in reaching its conclusions. The Panel s failure to consider this evidence constitutes an error of law. 25. The failure of parents and coaches to act, to make complaints, or to terminate their coaching and social relationships with Ms. Smirnova, was argued to be inconsistent with the allegations that she mistreated skaters. Counsel suggested that were I to review the evidence carefully, the parents conduct proves that Ms.

9 - 9 - Smirnova did nothing wrong. The parents were aware of the coaching style of Ms. Smirnova and accepted it. 26. Counsel for the Respondent argues that the Panel's decision was justifiable, transparent and intelligible. Its conclusions find support in the extensive evidence before the Panel and in the law to which the Panel referred. Based on the totality of the evidence, which was considered by the Panel, the decision that Ms. Smirnova had engaged in serious misconduct was reasonable. 27. Skate Canada submits the Panel did not disregard Ms. Smirnova s evidence. The fact that the Panel did not refer to every piece of evidence in its reasons does not mean that the evidence was ignored. In fact, the Panel specifically states that it considered the evidence of each witness called by the Claimant. There is no evidence whatsoever that the Panel misapprehended or neglected the evidence. In its decision, the Hearing Panel acknowledged the evidence of all sixteen witnesses who testified at the hearing. The Hearing Panel listed the sixteen witnesses who gave evidence at footnote 1 in paragraph 12 of the decision. At paragraph 12 of the decision, the Panel correctly observed that it is unnecessary to repeat the evidence given by all witnesses. The Hearing Panel summarized the evidence at paragraphs 13 through 45 of the disciplinary decision. 28. The Hearing Panel specifically acknowledged, at paragraphs 40, 41 and 43 of the disciplinary decision, that a number of witnesses called on behalf of Ms. Smirnova gave evidence that Ms. Smirnova s conduct toward their children was positive and appropriate. The Panel acknowledged, at paragraphs 42, 44 and 45, the evidence of Ms. Smirnova s witnesses that they had never observed any inappropriate or concerning behaviour by Ms. Smirnova. Very clearly, contrary to the Claimant s submissions, the Panel did not disregard the evidence of these witnesses who gave contradictory accounts to those of Skate Canada s witnesses.

10 Contrary to the assertion of counsel for the Claimant, it was argued that the standard of review of the Hearing Panel s decision should be reasonableness, not the less deferential standard of correctness. So long as the decision is reasonable, Skate Canada submitted that I should not interfere with it. The standard of reasonableness has been consistently adopted by courts when reviewing disciplinary decisions taken by administrative bodies (see in this regard LSNB v Ryan, [2003] 1 S.C.R. 247 (SCC) and Noriega v College of Physicians and Surgeons of Ontario (2016) ONSC 924). The standard of reasonableness appropriately recognizes the greater expertise of the Panel in the choice of disciplinary sanctions for its own members. 30. It was also asserted by counsel for the Respondent that the SDRCC s internal jurisprudence recognizes that the standard of reasonableness applies to the SDRCC s review of decisions made by National Sports Organizations ( NSO s ). In support of this assertion counsel referred me to Bechard v. Canadian Amateur Boxing Association SDRCC (Arbitrator Richard Pound), Marchant and DuChene v. Athletics Canada SDRCC (Arbitrator Graeme Mew) and Bastille v. Speed Skating Canada SDRCC (Arbitrator Graeme Mew). 31. Counsel for the Respondent suggested that in this appeal, Ms. Smirnova expressly asks that I reconsider the evidence that was before the Panel and pay no deference to its decision. Such an approach would simply be wrong under administrative law principles. Under the reasonableness standard, the SDRCC must consider whether the Hearing Panel s reasons as a whole support the decision. This does not involve embarking on a fresh consideration of the evidence. 32. Dealing next with the issue of credibility, it was pointed out that each of the Claimant s alleged factual errors or omissions relates to a finding of credibility by

11 the Panel, rather than a failure on the part of the Panel to consider the evidence at all. Skate Canada argued that I must show particular deference to the Panel s findings of credibility. Although the Panel s fact-finding task may have been difficult, that does not open the door to a reviewing tribunal, being removed from the testimony and not seeing the witnesses, to reassess the credibility of the witnesses. The Panel s assessments of credibility were made in the context of the evidence as a whole. The Panel had an opportunity to hear testimony from both sides. Believing the testimony of one witness over another is a matter of judgment that the Panel was entitled to make and one that should be shown deference (see in this regard F.H. v. McDougall, 2008 SCC 53). 33. Skate Canada submits that the Panel reasonably determined based on all the evidence that Ms. Smirnova engaged in very serious misconduct, namely, mistreatment and abuse of children. Given the procedural rigor and strong evidentiary basis for the Panel's findings, Skate Canada submits that Ms. Smirnova s application must not succeed. It was entirely reasonable for the Panel to make each of the findings that it did, based on all the evidence before it. Each of the Panel s determinations finds ample support in the oral and documentary evidence before the Panel, and in the reasons for its decision. The Claimant does not argue that there was no basis in the record for the Panel s findings. Rather, her position is that the outcome would have been different if the Panel had preferred the evidence of her own witnesses. 34. The Panel was required to make numerous findings of credibility and to resolve inconsistencies in the evidence by preferring the evidence of some witnesses over that of others. The Panel made these factual determinations guided by relevant jurisprudence on assessing the credibility of witnesses. The Panel, which heard live in-person testimony from sixteen different witnesses, is in the best position to assess the evidence and credibility of the witnesses. The Panel's

12 factual findings should not be disturbed by an Arbitrator sitting in review of the decision, who has not had the benefit of seeing and hearing the witnesses speak. 35. In reply, Counsel for the Claimant pointed out that the Respondent argued that the appropriate standard of review in this case is reasonableness, on the basis that prior SDRCC cases have employed this standard. This submission misapprehends the proper procedure for determining the standard of review by an appellate body. The appropriate standard by which a reviewing court ought to assess the decision of a lower body is determined by the category of question that is being reviewed. 36. It was again stressed that in this proceeding, the category of question that is being reviewed is one of law, that is, whether the Panel properly considered all of the relevant evidence in relation to the allegations as against Ms. Smirnova. The Supreme Court jurisprudence confirms that the failure of a trier of fact to consider all of the relevant evidence in relation to the ultimate issue to be determined is an error of law. The jurisprudence clearly establishes that the appropriate standard of review for questions of law is correctness (see in this regard R. v. H. (J.M.), 2011 SCC 45 at para. 31 and R. v. M. (R.E.), 2008 SCC 51 at para. 38). The SDRCC jurisprudence confirms that the appropriate standard of review is dependent upon the nature of the question raised in the review. STANDARD OF REVIEW 37. Rule 6.17 of the Canadian Sport Dispute Resolution Code provides: Scope of Panel s Review (a) The Panel shall have full power to review the facts and apply the law. In particular, the Panel may substitute its decision for: (i) the decision that gave rise to the dispute;

13 (iii) and may substitute such measures and grant such remedies or relief that the Panel deems just and equitable in the circumstances. 38. Pursuant to this provision, the parties did not dispute that the SDRCC has a wide discretion. The internal appeal processes found in the policies and by-laws of Canada s National Sport Organizations ( NSO ) vary greatly. Some call for a simple straightforward review and others allow for proceedings that are judicial in nature. 39. In the Bastille decision Arbitrator Mew states: The more cogent and well reasoned a decision appealed from, the less likely it is that on a review or further appeal, it will be overruled. Conversely, where the reasons of the tribunal below are brief and give limited insight into how the tribunal came to its decision, the likelihood of a more extensive evaluation of the merits of the case increases. I agree with this observation. There are occasions when the SDRCC is in a sense a court of first instance and other times where we are reviewing the internal decision by the NSO as an appeal court would sit in judicial review. In the case before me, the proceeding conducted by the Panel was a three-day legal hearing in which evidence from sixteen witnesses was heard. This resulted in a thirteen-page decision, which in my view is very well written. In reviewing this process, it is appropriate for me to adopt a standard of review similar to that which would be applied by an appeal court in an application for judicial review. 40. Counsel for the Claimant argues that the Panel s failure to consider all of the relevant evidence in relation to the ultimate issue to be determined in this case is an error of law and that the appropriate standard of review for questions of law is correctness. As a result, I have been asked to review the evidence, pay no

14 deference to the decision of the Panel and substitute my own decision. The argument that the standard of review is correctness is predicated on the assertion that the Panel entirely failed to consider a substantial amount of relevant evidence both viva voce and documentary. 41. I disagree with this assertion and will review the pertinent paragraphs in the Panel s award that demonstrate clearly that the evidence which the Claimant asserts was not considered, in fact was considered and rejected. Accordingly, I have determined that in this case, the appropriate standard of review is not correctness but the less onerous standard of reasonableness. 42. In Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748 (SCC) at para 56, the Court articulated the following test for reasonableness:... an unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. See also in Maloshicky v. Canada (Canada Customs Revenue Agency), 2005 FC 978 at para 10:... A reasonable decision is not necessarily a correct decision. There can be more than one reasonable decision. It does not matter whether or not I would have made the same decision. The reasonableness standard means that the decision should not be interfered with unless clearly wrong in the sense of being based on a wrong principle or a misapprehension of the facts. Accordingly, this is the standard which I will utilize in this case.

15 ANALYSIS AND CONCLUSIONS 43. In the Respondent s submissions, there is a quote from Noriega v College of Physicians and Surgeons of Ontario (2016) ONSC 924 that I find to be very helpful and completely agree with. The Ontario Court of Appeal summarizes some relevant administrative law principles as follows: (i) Reasonableness is a deferential standard, animated by the principle that certain questions that come before tribunals do not lend themselves to one particular result. It is concerned with whether the outcome falls within a range of possible acceptable outcomes... (ii) A reviewing court should not seize on one or more mistakes or elements of the decision that do not affect it as a whole. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision... (iii) Deference therefore requires that the Court refrain from subjecting the tribunal s reasons to a painstaking scrutiny. It would be counterproductive to dissect minutely a fact-finder s reasons so as to undermine the fact-finder s responsibility for weighing all of the evidence... (iv) The task of the reviewing court is not to posit alternative interpretations of the evidence, or engage in a reassessment of the evidence. The powers of the appeal court do not amount to a general warrant to retry the case decided by the tribunal. Rather, the task of the reviewing court is to determine whether the Committee s decision is reasonable and that it had some basis in the evidence. The reviewing court s review of the evidence is beside the point.... (v) Heightened deference is owed to tribunals' assessments of credibility... (vi) An appellate court should not interfere with a trial judge s assessment of a complainant s evidence simply because it would have arrived at a different result... (vii) Where credibility and reliability are an issue, and the trial judge demonstrates she is alive to inconsistencies but accepts the evidence of the witness nonetheless, in the absence of a palpable and overriding error, there is no basis for interference In addressing the issue of assessing a court s findings of credibility, there is also a quote from the Supreme Court of Canada in R v. M (R.E) 2008 SCC 51 in the Respondent s submissions that I would like to refer to:

16 The sufficiency of reasons on findings of credibility the issue in this case merits specific comment. The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge s reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that [a]ssessing credibility is not a science. While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. 45. In the Panel s decision, the issue of credibility is specifically addressed and dealt with. The Panel sets out a lengthy quote from a Nova Scotia Court of Appeal decision and then applies the legal principles enunciated to the case before it. The testimony of the witnesses was specifically addressed and findings of credibility were made. For example, in paragraphs 56 and 57 the Panel concluded: 56. Ms. Smirnova denied swearing at skaters and using inappropriate language, such as, sukka, loser or stupid. She said these comments were taken out of context. However, there was reasonable and consistent evidence of skaters, A.K. A.B. and K.B., as well as Mrs. Kuperman and Ms. Harkness, that inappropriate language was yelled in front of others on a consistent basis. Additionally, Mr. Gillman specifically testified Ms. Smirnova called a skater fat in front of him and Ms. Gould testified as to yelling and screaming. The evidence is well founded and substantial that Ms. Smirnova swore, screamed and called skaters names in front of others. The evidence of A.K., A.B., K.B. Mrs. Kuperman, Ms. Harkness, Mr. Gillman and Ms. Gould is persuasive and accepted by the Hearing Panel as the accurate account of what took place.

17 The Hearing Panel accepts the evidence of Mrs. Kuperman. Her evidence was candid and concise. When Ms. Smirnova s recollection of events differs from that of Mrs. Kuperman, we find the testimony of Mrs. Kuperman to be more credible. And again in paragraphs 59 and 60 the Panel states: 59. Ms. Smirnova denied being physically aggressive with skaters, including pinching, hitting and pulling. There was credible and consistent evidence of skaters A.B. and K.B., as well as Mrs. Kuperman and Ms. Harkness, that physical abuse occurred on a consistent basis. Their evidence is persuasive and accepted by the Hearing Panel as the accurate account of what took place. 60. The Hearing Panel accepts the evidence of A.B. His testimony was forthright and he appears to have a clear and concise recollection of the incidents he testified to. When Ms. Smirnova s recollection of events differs from that of A.B., we find the testimony of A.B. to be more credible. 46. These are just examples that demonstrate that clearly the evidence of Ms. Smirnova is being assessed vis-à-vis the evidence given by others. Counsel for the Claimant refers to and quotes from the transcript extensively in her submissions. She invites me to accept and prefer the evidence given by the Claimant s witnesses over that given by the witnesses called by Skate Canada. In my view, that is not appropriate. The Panel heard the testimony and is in the best position to determine whose evidence should be preferred. 47. Counsel for the Claimant urges me to conclude that, based on the testimony of the witnesses called in support of Ms. Smirnova, no misconduct occurred. Even were I to engage in the assessment of the evidence I am requested to perform, it does not lead to the conclusions requested by counsel for the Claimant. In my view, the fact that parents called by Ms. Smirnova did not see her engage in inappropriate and abusive conduct is not determinative of the issue. The fact that they did not see anything is not inconsistent with a finding that abuse occurred. It

18 is equally consistent to conclude that they just did not see it, but that it nevertheless occurred. 48. The Claimant also asserts that the Panel entirely failed to consider a substantial amount of relevant evidence that was inconsistent with the decision reached. It was suggested that a review of the decision of the Panel reveals that it failed to consider relevant evidence that was directly contrary to the findings made against Ms. Smirnova. This is simply not accurate. It is true to say that the Panel did not set out all of the evidence, but it is not required to do so. In paragraph 12 of the decision the Panel stated: 12. All oral evidence at the hearing of this matter was given under affirmation and cross examination was permitted. All witnesses of minor age confirmed that they understood the nature of the affirmation and the requirement of being truthful. It is unnecessary to repeat the evidence given by all witnesses. In a footnote to paragraph 12 the Panel listed the sixteen witnesses who testified before the Panel. 49. I would like to next address three specific instances cited by the counsel for the Claimant as examples of evidence that the Panel failed to consider. 50. Counsel for the Claimant argued that it is incorrect for the Panel to have relied on English-speaking witnesses for the finding that Ms. Smirnova called skaters names or swore in front of skaters as it was alleged that the name calling was done in Russian. None provided evidence that they had heard Ms. Smirnova swear or call skaters names in English. 51. It was also asserted by the Claimant s counsel that the Panel incorrectly failed to consider the results of the CAS investigation as it was relevant evidence that the

19 Panel ought to have considered in reaching its conclusions. The Panel s failure to do so was argued to be an error of law. 52. The failure of parents and coaches to act, to make complaints, or to terminate their coaching and social relationships with Ms. Smirnova was argued to be inconsistent with the allegations that she mistreated skaters. Counsel suggested that were I to review the evidence carefully, the parents conduct proves that Ms. Smirnova did nothing wrong. 53. The decision of the Panel specifically addresses each of these issues. At paragraphs 18 and 20, the Panel comments on the evidence given by two of the English-speaking witnesses and states: 18. Prior to Sectionals 2014 (a competition held in late October/early November 2014), Mr. Gillman saw Ms. Smirnova shake a male skater (M) and yell in his face in Russian in a manner that Mr. Gillman viewed as inappropriate. Mr. Gillman does not speak Russian. He described Ms. Smirnova yelling very aggressively, but did not understand what was said. The boy appeared upset and shaken. 20. Ellen Gould is a teacher and a figure skating coach at the same club as Ms. Smirnova, as well as part time coach at another club. She does not speak Russian. She testified that during she saw Ms. Smirnova look angry and frustrated when yelling at skaters, but did not know what was being said. She observed roughness, including grabbing students and pulling them off the ice roughly. She testified that it was disruptive and at times an unpleasant atmosphere. She testified that she heard a coach address Ms. Smirnova about her behaviour and that parents and coaches complained to her about Ms. Smirnova s behaviour, and that she approached the club s Board of Directors. 54. Clearly the Panel assessed the evidence given by English-speaking witnesses who testified as to the way skaters were spoken to and the appearance of Ms. Smirnova when she was yelling in Russian.

20 The CAS investigation and the fact that some parents did not complain was also specifically addressed by the Panel in its award at paragraphs 67 to 70: 67. Evidence was given that there was a Children s Aid Society ( CAS ) investigation. The Hearing Panel does not know what specific complaints or evidence were given to CAS. It is not up to this Hearing Panel to comment on any CAS investigation nor was any weight placed on the reported results of the CAS investigation. 68. A number of witnesses testified as to Ms. Smirnova s positive relationship with their children. Nevertheless, the testimony does not mean that the verbal and physical abuse by Ms. Smirnova toward other skaters did not occur. It is recognized that Ms. Smirnova was not verbally or physically abusive toward all skaters. 69. The Hearing Panel draws no conclusion as to why coaches or parents did not intervene with Ms. Smirnova. It is well accepted that in many cases of bullying, domestic violence or abuse in sport or other similar incidents that bystanders do nothing. There is a wide variety of reasons why people, including children, do not intervene. It does not mean the abusive conduct did not occur. 70. The Hearing Panel recognizes that there are different coaching styles and our findings are not to be understood that a strict or disciplined style is not permissible. However, it is found that Ms. Smirnova s conduct while coaching consistently crossed the line and was abusive particularly, based on the evidence here, with skaters whom she potentially saw as advancing competitively. Accordingly, it is again not correct to assert that the Panel failed to consider evidence. The Panel did consider the evidence, but came to conclusions that the Claimant does not like or agree with. 56. I conclude that the disciplinary decision made by the Panel was reasonable and, as I noted earlier, it is a thoughtful and well-reasoned decision. I also see no reason to interfere with the decision of the Panel on penalty. Accordingly, the Claimant s appeal is dismissed.

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