LEYLA SMIRNOVA. and SKATE CANADA JURISDICTIONAL ORDER. Richard W. Pound, Q.C. Jurisdictional Arbitrator

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1 SDRCC LEYLA SMIRNOVA (Claimant) and SKATE CANADA (Respondent) JURISDICTIONAL ORDER Richard W. Pound, Q.C. Jurisdictional Arbitrator Appearances: Laura Robinson for the Claimant Daphne Fedoruk, Ilan Yampolsky and Ahad Ahmed for the Respondent

2 2 Background I was appointed as a Jurisdictional Arbitrator in this matter pursuant to section 6.10 of the Canadian Sport Dispute Resolution Code (Code). The Claimant appeals from two decisions of a Hearing Panel (Panel) established in accordance with rules established by the Respondent (Skate Canada). The first decision was rendered on 15 January 2016, following a three day hearing on December 2015 on the merits of a complaint filed by Skate Canada in relation to the conduct of the Claimant and the second decision regarding the penalty to be imposed was rendered on 8 February 2016, following a hearing held on 2 February 2016 by conference call, during which further sworn and unsworn evidence was submitted by the parties. The background to the dispute can easily be summarized. The Claimant is a coach in the sport of figure skating. She coaches a number of skaters, many of whom are minors. Several complaints have been filed with respect to her conduct, alleging both physical and verbal abuse of skaters among her pupils. As a result, the Claimant was temporarily suspended by Skate Canada. Lack of due process led to revocation of the early suspensions. Skate Canada persisted with its inquiries, which culminated in the hearing by the Panel in December 2015, its decision on the merits dated 15 January 2016 and its penalty decision rendered on 8 February Skate Canada had sought permanent revocation of the Claimant s membership within Skate Canada on the basis that her course of conduct amounted to major misconduct, sufficient to justify such permanent revocation of her status. The Panel imposed a penalty that terminates on 31 December 2018 and permitted the Claimant to apply for reinstatement effective 1 January The Claimant appeals on the basis of alleged errors of fact that are said to be palpable and on the Panel s failure to consider certain aspects of the evidence before it. No claim is made by the Claimant as to any failure to provide due process, nor as to bias. No challenge was raised as to the competence, composition or status of the Panel. In essence, the Claimant s position is that the Panel simply got it wrong and that its decision should be reversed. That is the case that she will have to present to the Arbitrator who will hear the matter on its merits. Pursuant to section 6.10(b) of the Code, that issue cannot be decided by a Jurisdictional Arbitrator and I expressly do not purport to anticipate the eventual decision by the Arbitrator. Interim Measures Pending a decision on the merits of her appeal, the Claimant seeks a stay of the operative portion of the sanction imposed by the Panel. She argues, inter alia, that irreparable damage will be suffered by her pupils if they are deprived of her coaching in relation to an Ontario competition that will occur in mid March Her counsel proposes certain protective measures and supervision. Skate Canada rejects any such measures. Counsel for the Claimant argues that the Panel s decision on the merits contains errors of law (failure to consider evidence favourable to the Claimant), as well as palpable and overriding errors of fact and mixed fact and law, such that its penalty decision should be suspended pending a final determination by the Arbitrator who will hear the appeal. Counsel states that there will be irreparable harm to the Claimant, who will be prevented from working and earning a living, and irreparable damage suffered by

3 3 the skaters, who will be prevented from having access to the coach of their choice. Alternatively, the Panel s decision(s) should be stayed and the Claimant s membership should be restored, subject to conditions deemed appropriate by the Arbitrator (in the circumstances, by the Jurisdictional Arbitrator). Short Decision Counsel for both parties agreed that the entire matter, not merely the provisional measures in respect of which I must rule as a Jurisdictional Arbitrator, should be heard and resolved as quickly as possible. I was advised that the Claimant has requested a transcript of the evidence given during the course of the December 2015 hearing before the Panel. This transcript can, apparently, be provided in early March With respect to the provisional measures, having requested and received written submissions from the parties, I asked the SDRCC staff to contact the parties counsel, to advise that I did not require further oral argument, and to determine whether they preferred to have a short decision, with reasons to follow, or to wait until a reasoned decision was ready. The Claimant preferred to have a short decision with reasons to follow. Skate Canada had no preference. It seemed to me that the balance of convenience on that aspect favoured the Claimant, so I issued the following Order on 26 February 2016: The Claimant s request for provisional and conservatory measures pursuant to section 6.15 of the Canadian Sport Dispute Resolution Code is rejected. Costs, if any, shall be determined by the Arbitrator who decides on the merits of the appeal. This Order is the reasoned decision in respect of the Claimant s request for provisional measures. Analysis Both parties rely on the principles established by the Supreme Court of Canada in the case of RJR Macdonald v. Canada (Attorney General), [1994] 1 S.C.R In that case, the Court identified three basic elements to be considered in the context of a request for provisional measures, namely: (a) the existence of a serious issue to be tried; (b) the likelihood of irreparable harm to the moving party; and (c) the balance of convenience must favour the granting of the relief sought. I will deal with each in turn, while bearing in mind that the elements are not watertight compartments and that the weighting of each element may vary in the circumstances. Serious Issue This is normally a reasonably low threshold and can provide a knockout punch only where the litigation is vexatious or frivolous. I find that neither of those circumstances exist in this matter.

4 4 The line of this portion of the inquiry does, however, extend to the likelihood of success. 1 The Claimant argues, inter alia, that there are palpable and overriding errors of fact and mixed fact and law. For an error of fact to be palpable, it must be obvious and apparent on the face of the impugned decision. With the greatest of respect for the Claimant s argument, I find nothing of such nature in either of the Panel s decisions, either as to liability or penalty. It appears, on the face of the record, that the Claimant was given every opportunity to make her case to the Panel, including the presentation of evidence and the opportunity to cross examine witnesses presented by Skate Canada. It was, as noted above, common ground that there were no procedural defects and no bias. It is clear from the Panel s decision on the merits of the appeal that the Panel was quite conscious of its responsibilities to consider and weigh the evidence and to make findings of fact on the basis of such evidence, including the evidence offered on behalf of the Claimant. It proceeded to do so. The Panel concluded that a pattern of abuse had been established. I see nothing on the face of that decision which suggests that such a conclusion was obviously incorrect. On the penalty decision, the Panel did not grant the permanent withdrawal of the Claimant s membership that had been sought by Skate Canada. The Claimant s appeal is against the Panel s decisions. It will be a matter for the Arbitrator to determine the degree of deference that should be afforded to those decisions and whether they fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, para. 47.) There might well be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59, quoting Dunsmuir v. New Brunswick). Further guidance regarding Dunsmuir was provided by the Supreme Court of Canada in Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, in which the Court noted that reasons are to be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes and noted that courts may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. The Court summed up in para 16: In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. As noted, however, in Saber & Sone Group v. M.N.R. (2014 FC 1119): The corollary is also true; if the reasons do not allow the Court to understand why the decision maker decided as it did and do not permit the Court to determine whether the decision is within the range of acceptable outcomes, the Dunsmuir criteria are not met and the decision cannot be said to be reasonable. I find that there is a serious issue to be decided. This finding is tempered by the fact that the Claimant has, in my respectful view, a steep hill to climb in the face of the findings of fact made by the Panel. 1 See, for example, University of Regina v. Canadian Interuniversity Sport, SDRCC , Arbitrator Richard McLaren.

5 5 Irreparable Harm This criterion is directed to irreparable harm that may be suffered by the moving party. It is not a shotgun provision that extends to all persons or classes of persons who might be affected by the particular litigation. No other party has intervened to claim that he or she will suffer irreparable damage due to the suspension of the Claimant. There may have been some evidence submitted on that issue, which the Panel will, presumably, have considered in reaching its decisions. Should the Arbitrator find that the Claimant has been unjustly suspended, the Claimant may well have some further recourse in respect of loss of income. That is not a matter to be resolved within this appeal. Should the Arbitrator determine that the decisions of the Panel were reasonable in the circumstances, presumably that will be the end of the matter. I am not persuaded that the Claimant will suffer irreparable damage that would justify staying the Panel s decisions. Balance of Convenience In my view, protecting minor children from verbal and physical abuse at the hands of a coach far outweighs the interests of the Claimant in continuing to earn income from her coaching activities. The findings of the Panel regarding the pattern of such abuse were quite clear. Pending any possible reversal of the Panel s findings and decisions by the Arbitrator, those findings and decisions should be maintained. The Claimant s alternative submission of establishing conditions for and supervision of the Claimant s continued coaching activities is one best left to the Arbitrator, who will have the benefit of having reviewed the transcript of the hearing and of considering whatever new evidence that may be admissible and relevant. All things considered, therefore, the Claimant s request for provisional measures is rejected. 1 March 2016 Richard W. Pound, Q.C. Jurisdictional Arbitrator

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

SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC) FILE NO: SDRCC 16-0291 IN THE MATTER OF AN ARBITRATION BETWEEN: LEYLA SMIRNOVA AND (Claimant) SKATE CANADA (Respondent) JANICE JOHNSTON (sole arbitrator)