SPORT DISPUTE RESOLUTION CENTRE OF CANADA (SDRCC)
No. SDRCC 15-0261
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Cynthia Meyer (Claimant)
AND
Shooting Federation of Canada (SFC) (Respondent)
AND
Susan Nattrass (Affected Party)
Before:
Roger Gunn (Arbitrator)
Attendances:
For the Claimant:
Cynthia Meyer, Athlete
Emir Crowne, Counsel
Miganoush Megardichian, Counsel
Maria Charrie, Counsel
For the Respondent:
Susan Verdier, Technical Director, SFC
For the Affected Party: Susan Nattrass, Athlete
Mark McMackin, Counsel
Norm Ronski, Counsel
Ann Peel, Counsel
ARBITRATION AWARD
June 29, 2015
INTRODUCTION AND BACKGROUND
1. This is an arbitral decision rendered pursuant to paragraph 6.21 (a) of the Canadian Sport
Dispute Resolution Code (January 1, 2015) (the “Code”). I was selected pursuant to
paragraph 6.8 (b) (i) of the Code to hear and determine the present matter. My
appointment was confirmed by the SDRCC on June 13, 2015 pursuant to paragraph 6.9
of the Code.
2. During the preliminary conference call with the parties on June 14, 2015, I ruled that
written submissions would not be allowed due to the urgency of the matter. Parties would
make oral submissions at the hearing held via conference call on June 15, 2015 and
would be permitted to reference the material posted on the SDRCC’s Case Management
Portal. A decision had to be rendered by 4:30 p.m. (EDT) on June 15, 2015. I rendered a
decision denying the claim of the Claimant stating reasons would follow. This award
spells out the submissions of the parties and the reasons for my decision.
3. This matter refers to a team selection decision for the women’s trapshooting team for the
upcoming Pan Am Games in Toronto in July 2015. The Claimant Ms. Cynthia Meyer
claims she should have been selected for the team instead of Ms. Susan Nattrass. The
dispute arose at the Pan Am Selection Shoot in Tucson, Arizona from May 6 to 12, 2015.
Ms. Meyer placed third after the finals and a shoot-off. Only the top two positions were
nominated to compete in the Pan Am Games namely, Amanda Chudoba and Susan
Nattrass.
POSITION OF THE PARTIES
RESPONDENT
4. It should be noted that the Code, Article 6.7 Onus of Proof in Team Selection and
Carding Disputes states as follows:
If an athlete is involved in a proceeding as a Claimant in a team selection or
carding dispute, the onus will be placed on the Respondent to demonstrate that the
criteria were appropriately established and that the selection or carding decision
was made in accordance with such criteria. Once that has been established, the
onus of proof shall shift to the Claimant to demonstrate that the Claimant should
have been selected or nominated to carding in accordance with the approved
criteria. Each onus shall be determined on a balance of probabilities.
5. Therefore the Respondent made her submissions first. Ms. Susan Verdier, the Technical
Director of the Shooting Federation of Canada (SFC) and the Team Leader for the Pan
Am Games represented the Respondent. Ms. Verdier stated that the criteria were applied
properly through the use of two different committees. One was the Jury at the Tucson
shoot which denied the claim of Ms. Meyer and secondly the SFC High Performance
Committee which had the authority to hear and rule on the appeal of the Claimant. ISSF
Rules were in place for the qualifying shoot and Ms. Verdier was of the opinion that
1
those Rules were adhered to. They provide guidance and direction for the proceedings,
she submitted.
6. The ISSF Rules were specifically referenced by the Jury at the Tucson shoot. For
example, Ms. Verdier referenced Rule 6.8.9 which states:
Jury Members have the right to make individual decisions during competitions,
but should confer with other Jury Members and Range Officers when any doubt
exists. If a Team Official or Athlete does not agree with the decision of an
individual Jury Member, a decision of the majority of the Jury may be requested
by making a written protest.
At the Tucson competition the Chief Referee applied this rule in deciding to allow Ms.
Nattrass a make-up round without a penalty being applied to her. Ms. Verdier explained
the applicable Rules in this regard were Rule 9.16.5.4 Make up Round of Absent Athlete,
which reads as follows:
a) An athlete who is declared “ABSENT” must present himself to the Chief of
Referees before the squad has finished for that round and request permission
to shoot the missed round. Failure to do so may result in disqualification; and
b) The athlete will then be permitted to shoot the missed round at a time and on
the range decided by the Chief of Referees with a deduction of three (3) points
to be applied against the first three (3) targets hit in the make-up round. The
athlete should, if possible, shoot a make-up round on the same range as the
one he had to leave.
Rule 9.16.5.5 Exceptional circumstances states:
If an athlete arrives late for a competition or fails to present himself to the Chief
of Referees before the squad has finished that round and it can be proved that the
lateness was due to circumstances beyond his control, the Jury must whenever
possible give him the opportunity to take part without disruption of the overall
shooting program. In this case the Chief Referee will determine when and where
he will shoot and no penalty will be imposed.
Ms. Verdier stated the Claimant disagreed with this ruling and made a complaint after the
competition was completed.
7. Ms. Verdier stated the shooting results sheets were posted as per the Rule book and any
protests had to comply with Rule 6.16.6.1 Scoring Protest Time, which reads as follows:
All scoring or results protests must be submitted within 10 minutes after
preliminary results are posted on the Range Scoreboard (Rule 6.4.2 e). The time
when the Scoring Protest Time ends must be shown on the Range Scoreboard,
when preliminary results are posted. The location to which any score protest must
be made must be published on the official program.
2
Ms. Verdier explained the Claimant did not protest within ten minutes, nor did she file a
written protest as per Rule 9.16.9.2. Ms. Verdier said the Chief Referee, Mr. Dale
Caswell posted the results at the club house at 2:55 p.m. for the men’s competition and
around 3:15p.m. for the women’s competition. The posting of the results complied with
the rules and when the competition was completed the results are final, Ms. Verdier
added.
8. Ms. Verdier said there was a verbal protest by the Claimant after the completion of the
competition, complaining that Ms. Nattrass was allowed by the Referee to continue
shooting without a penalty, and complaining there were no exceptional circumstances
under Rule 9.16.5.5. for Ms. Nattrass. The Jury rejected the appeal based on timeliness.
Rule 6.16.1 states:
All Protests and Appeals are to be decided in accordance with ISSF Rules
Rule 9.16.9.2 Protest Time Limit states:
Any written protest must be received within twenty (20) minutes after the end of
the round in which the incident is alleged to have occurred. The protest must be
accompanied by the appropriate fee.
The Jury rejected Ms. Meyer’s protest on the grounds that it did not meet the 20 minute
time frame as required under 9.16.9.2.
Ms. Verdier stated the times in the Rules apply. A protest on scores had to be made
within ten minutes once they were posted. The Complainant did not do this so the scores
were accepted. Ms. Verdier referenced Rule 6.16.5 Written Protests which states:
Any athlete or team official who does not agree with the action or decision taken
on a verbal protest may protest in writing to the Jury. Any athlete or team
official also has the right to submit a written protest without making a verbal
protest. All written protests must be submitted to a member of the appropriate
Jury not later than 20 minutes after the matter in question and the protest fee
becomes payable.
Ms. Verdier stated the Claimant did not submit a written protest.
9. With regard to Ms. Meyer’s appeal to the High Performance Committee (HPC) of SFC,
requesting the Jury’s decision be set aside, Ms. Verdier submitted there was no ISSF Rule
to reconsider. She stated the incident in question did not occur outside of the ISSF Rules
and there was nothing contrary to the ISSF Rules. If one assumed an error did take place
with the scoring, then Rule 6.16.6.1 applies and the protest has to be in within 10 minutes
after the results are posted.
10. Ms. Verdier explained the HPC contacted members of the original Jury at the Tucson
competition as part of their analysis. In the conversations with the Jury members they
stated that exceptional circumstances were not present but there was still the timing issue
3
that led to the denial of Ms. Meyer’s appeal. Once the scores are published and final they
cannot be changed after the event, Ms. Verdier concluded.
CLAIMANT
11. Mr. Emir Crowne, counsel for the Claimant provided his opening remarks saying this
case was about fairness and that there had been serious breaches of natural justice. The
HPC decision said the Jury came to the conclusion that locked keys in a vehicle cannot
meet the test of exceptional circumstances. It also expressed its disappointment at how
the Tucson event had unfolded, but the HPC concluded it had no mechanism to change
the result. That, counsel stated, was the first breach of natural justice. “You can’t have a
right without a remedy. The Claimant had the right to appeal to the HPC and the HPC
had the power to make decisions but said we can’t give you a remedy,” Mr. Crowne
stated.
12. The second breach of natural justice, Mr. Crowne submitted, related to the Tripartite
Committee. Ms. Meyer, on page one of her appeal named Pat Boulay as her
representative on the Committee. This was ignored. The Committee met without
including Ms. Boulay on the panel. Mr. Crowne referred to an email dated June 11, 2015
from Mr. Asmir Arifovic, President of the SFC which said, “We will form a new
committee and redo this excluding the members that were already involved.” This, in Mr.
Crowne’s view, was an acknowledgement of a breach of natural justice. This was breach
number three, he said. The Claimant then brought her appeal to the SDRCC.
13. Mr. Crowne submitted that the scores were irrelevant. The question was, should the
exceptional circumstances provision be invoked? In his opinion, “People could do it for
nefarious reasons.”
14. Ms. Cynthia Meyer provided her understanding of the events at the Tucson meet. She
said she shot in the gold medal shoot and Ms. Nattrass shot in the bronze medal shoot. It
was at that time that Ms. Meyer was told by others about the absence of Ms. Nattrass and
that the three point deduction rule had not been enforced. Ms. Meyer then spoke to Ms.
Nattrass who told her about the keys being locked in her car. Ms. Meyer then searched
for Chief Referee Dale Caswell who told her he had made the decision not to penalize
Ms. Nattrass. Ms. Meyer then protested to Mr. Caswell who managed to round up the
five members of the Jury who deliberated for an hour. Ms. Meyer said she waited outside
the meeting room while the Jury was in session. She said she had her wallet in hand in
case she needed to pay a fee. She said she did not do a written appeal as she was not told
she needed to. Ms. Meyer had someone go into the Jury meeting room to inquire if her
presence was required. The person came out and told her she was free to go, so Ms.
Meyer flew home.
4
15. Ms. Meyer said she was unhappy with the process so she filed an appeal to the SFC dated
May 18, 2015. On May 29, 2015 she received a letter from SFC’s High Performance
Committee denying her claim. The HPC letter stated in part,
The High Performance Committee directed the Jury to review the protest. The
result was the Jury came to the conclusion that a competitor having their
equipment locked in a rental or personal vehicle did not meet the intent of the
conditions outlined in 9.16.5.5 – Exceptional Circumstances…
The HPC expressed disappointment in the way the match was officiated and
operated, however determined that, as there was no mechanism in place to change
the outcome of the competition, the final scores and rankings would be upheld.
Ms. Meyer referred to her May 30, 2015 appeal which read in part as follows:
Appendix “A” of the Provisional Shooting Federation of Canada Internal Team
Nomination Procedures Pan American Games 2015, describes procedures and
criteria used to internally select the Pan Am Games Team. On page 2 of that
document, it clearly states that the SFC has charged the HPC with making final
internal nominations. On page 4 of that document, it has an Unforeseen
Circumstances paragraph. That paragraph states “In the event of unforeseen
circumstances beyond control of the SFC that prevent the High Performance
Committee from fairly implementing these internal nomination procedures as
written, the HPC shall have full discretion to resolve the matter as it sees fit,
taking into account factors and circumstances that are deemed relevant.”
Ms. Meyer stated the HPC did have the ability to rule and she thought the HPC made the
wrong decision.
16. Ms. Meyer filed an appeal to the Tripartite Committee of the SFC on May 30, 2015
naming Pat Boulay as her representative. She did not hear anything about her appeal until
June 9 when she received a letter from the Tripartite Committee denying her appeal. Ms.
Meyer submitted the Committee was incorrectly framed, so she emailed Mr. Arifovic
who offered to form a new committee and revisit the appeal. Ms. Meyer said there was no
time to do this so she brought her claim directly to the SDRCC.
17. Ms. Meyer concluded her submissions stating she protested (at the Tucson competition)
as soon as she found out about there being no deduction to Ms. Nattrass’ scores. She was
not sure of the time but said it was after the gold medal round or it was before or after the
“miss and out.” She said she did not have the actual time.
5
AFFECTED PARTY
18. Ms. Nattrass recounted the events of May 11, 2015 at the Tucson competition saying she
had shot two rounds already and at approximately 12:40 p.m. she said she had to rush to
the washroom so she left her keys in her rental vehicle. When she returned the vehicle
was locked with the keys and her equipment inside. She said she had no idea how the car
had locked. She explained the situation to the Referee Dale Caswell and mentioned to
him the same thing had happened in a previous U.S. army shoot where the Match
Director did not deduct three targets. Mr. Caswell could see three people trying to help
Ms. Nattrass break into her car. Mr. Caswell decided not to deduct three points, believing
he had the authority to do so, submitted Ms. Nattrass. She said it took her thirty minutes
to get into her rental car.
19. Ms. Nattrass said her squad went ahead and shot and then she shot with the next squad at
1:30 p.m. She shot her last round at 2:00 p.m. and the scores were posted at around 2:30
p.m. to 2:45 p.m. Ms. Nattrass said it was the responsibility of the shooter to look at the
scores. If there is a penalty given the score sheets have a negative one or negative three in
the corner of the sheet. There were no negatives on the sheet containing her scores. At
3:40 p.m. Ms. Nattrass said she shot in the bronze medal match and Ms. Meyer shot in
the gold medal match. There was a shoot off between Ms. Nattrass and Ms. Meyer and
Ms. Nattrass won, two to one. She said after the shoot off Ms. Meyer came to her about
the issue of the keys being locked in her car. Ms. Nattrass told Ms. Meyer she did not
lock the keys in the car.
20. Ms. Nattrass submitted that Ms. Meyer filed her verbal protest at 4:30pm and the Jury
met for an hour and forty-five minutes. Ms. Nattrass was of the view that the Jury was
correct, ruling there were exceptional circumstances. All the scores were posted at the
latest at 2:45 p.m., stated Ms. Nattrass and reiterated that Ms. Meyer had twenty minutes
to protest after the Jury decision but did not.
21. Ms. Nattrass stated, “Dale had the right to make the decision himself. He saw me panic
and saw people working on my car. If he said no I would have asked for a forty minute
delay.”
22. Ms. Nattrass’ counsel Mr. Mark McMackin and Mr. Norman Ronski submitted the key to
this matter was that the competitors are obliged to check the scores and that any protests
were to be timely. They submitted that Ms. Meyer had ample time at 2:30 p.m. to
consider her options. It was hours later that she voiced a protest. They were of the view
the Referee had acted reasonably and the Jury had considered the facts and the same
outcome resulted.
6
FINAL ARGUMENTS OF THE PARTIES
RESPONDENT
23. Ms. Verdier argued the crux of this matter is that the onsite Jury denied Ms. Meyer’s
appeal. She had a right to appeal but her protest was untimely. She should have made her
protest after the qualifying round and she should have asked someone else to check the
scores if she did not want to do that herself.
CLAIMANT
24. Mr. Crowne commented that the focus of others in the hearing has been over a written
appeal and of timeliness. He pointed out there are no time lines for a verbal protest under
Rule 9.16.8. Ms. Meyer went immediately to the official and verbally protested. The
official referred the matter to the Jury as per Rule 9.16.8.3 which states:
Competition officials receiving any verbal protests must consider these
immediately and take immediate action to correct the situation or refer the matter
to the Jury for a decision. Shooting may be temporarily stopped if absolutely
necessary.
25. Mr. Crowne argued that the equipment must to be in the control of the athlete and Ms.
Nattrass did not have her equipment in control as per Rule 9.4.1.1.
26. Mr. Crowne argued that the entire process used was plagued by breaches of natural
justice and that the scores are irrelevant.
27. The Claimant Ms. Meyer argued some rules were applied and some were not. The rule on
having to post a protest time was not applied. She admitted she should have looked at the
scores but, when she learned about the rule not being enforced (the deduction of three
points) she protested immediately.
28. Ms. Megardichian, co-counsel, argued that Ms. Nattrass knew about vehicles locking on
their own prior to the Tucson competition. She was aware of the risk as these things were
widely documented, she could have avoided the risk. She argued that Ms.Nattrass
received preferential treatment under Rule 9.16.5.5.
AFFECTED PARTY
29. Mr. McMackin argued Rule 9.16.8.3 has a clear meaning. It is up to the discretion of the
official on the scene to make decisions. Mr. Caswell took immediate action and had the
athletes stand down for ten minutes. It was a short temporary stoppage, as is
contemplated in the Rule, Mr. McMackin argued. Mr. Caswell also ruled that unforeseen
circumstances were in place.
30. Regarding the argument of the Claimant that Ms. Nattrass knew in advance that new cars
locked automatically, counsel argued that she learned after the event about this issue. She
7
had only heard about a similar event happening at an army shoot. The rental car Ms.
Nattrass used was fresh off the line and had a temporary license plate. It was so new the
rental company had no time to program the vehicle, counsel argued.
31. Counsel argued each athlete is responsible for their own accountability, therefore Ms.
Meyer had an obligation to check the scores.
32. Ms. Nattrass stated all competitors leave their guns in their cars. She stated she had no
idea new cars lock on their own. She added that she had only heard about the army case,
but not any of the details surrounding it. All she knew was that the Match Director had
made a decision not to deduct any points. She argued she did not have any previous
knowledge about cars locking on their own.
33. Ms. Nattrass argued that Mr. Caswell as the Chief Referee and Acting Match Director
had the right to decide on exceptional circumstances. He acted reasonably, she added.
34. Mr. Ronski argued there was no breach in natural justice as the review panels acted fairly
and reasonably in accordance with the rules. There was fairness throughout the process to
the extreme by the previous tribunals and Ms. Nattrass was not given preferential
treatment. It was unfortunate how the events unfolded but the rules are black and white,
Mr. Ronski argued.
REPLY BY THE CLAIMANT
35. Mr. Crowne clarified the power of the Chief Range Officer referring to Rule 9.5.3.3. The
Chief Range Officer can only change the times of the competition with the approval of
the Jury.
36. Regarding the Tripartite Appeal Committee, the person nominated by the appellant, Ms.
Pat Boulay, took no part in the Committee therefore that was a breach of natural justice,
argued Mr. Crowne. This current appeal arises because of the poorly constituted panel,
added Mr. Crowne.
DECISION
37. This arbitration stems from the events at a Pan Am selection match on May 11, 2015 at
the Tucson Trap and Skeet Club in Tucson, Arizona. At that match the Chief Referee,
Mr. Dale Caswell, who was also a member of the Jury, invoked Rule 9.16.5.5
Exceptional Circumstances and did not deduct any points from Ms. Nattrass who
presented herself to the Referee stating the keys had been locked in her rental vehicle
which contained her gun. This decision was made at the time based on the circumstances
presented to him. According to Ms. Nattrass, Mr. Caswell could see people trying to
break into her rental vehicle which they finally did, after a number of minutes. Ms.
Nattrass submitted she did not know that was a feature of new cars, that they
automatically locked and that she had no intention of purposely locking her vehicle. The
Claimant was of the view that points should have been deducted as Ms. Nattrass was
absent. Did this situation constitute exceptional circumstances? After the end of the
8
competition when Ms. Meyer, the Claimant, appealed to the Jury, the members of the
Jury discussed whether or not the situation constituted an exceptional circumstance and
spent much time deliberating over this point. They made no definitive conclusion on this
matter, as can be seen from the notes of the meeting (Exhibit R-02). There was nothing
presented to me in the hearing that the decision of Mr. Caswell, to not deduct points from
Ms. Nattrass, was made in bad faith or with any bias or ill will. It appears that it was a
reasonable decision considering the circumstances and should not in my view, be second
guessed.
38. The rejection of Ms. Meyer’s protest at the end of the competition was not based on
whether the circumstances were exceptional but based on the fact Ms. Meyer did not
meet the 20 minute time frame as required under Rule 9.16.9.2 which states:
Any written protest must be received within twenty (20) minutes after the end of
the round in which the incident is alleged to have occurred. The protest must be
accompanied by the appropriate fee.
The Respondent, Ms. Verdier pointed out that Ms. Meyer did not submit a verbal protest
of a score within the allotted 10 minute time frame after the preliminary results were
posted, as per Rule 6.16.6.1. Ms. Meyer also did not file a written protest as per Rule
9.16.9.2. It was the Claimant’s contention that she protested verbally to the Jury as soon
as she found out about the Referee’s ruling on exceptional circumstances. The Affected
Party argued it was the responsibility of the athlete to check the scores which Ms. Meyer
did not do. There was some discrepancy around when the scores were posted and when
the 10 minute or 20 minute time frame started or stopped. However the Jury came to the
decision that a written protest should have been filed before the women’s final as there
had been discussions with Ms. Meyer about the situation, well before the final, and she
would have been aware that no targets/points had been deducted.
39. It is clear Ms. Meyer did not file a verbal protest within the required 10 minutes of the
scores being posted, nor did she file a written protest within the required 20 minute time
frame after scores were posted. She did not comply with Rule 6.16.6.1 and with Rule
9.16.9.2. I agree with counsel for the Claimant who pointed out that there were no time
limits for the filing of a verbal protest under Rule 9.16.8. Ms. Meyer did file a verbal
protest and the Jury considered her protest and deliberated for over an hour and a half.
This does not alter the fact Ms. Meyer did not protest the scores in a timely fashion. It is
my view the Jury acted in a fair and reasonable manner and reached a conclusion
consistent with the ISSF Rules.
40. Ms. Meyer appealed the decision of the Jury to the SFC’s High Performance Committee
on May 18, 2015. Her appeal referenced that SFC had charged this committee with the
power to make final internal team nominations. The HPC investigated what took place on
May 11 at the Tucson competition by communicating with three members of the May
11th Jury in two conference calls on May 20th and May 27th. The HPC directed the Jury
to review the protest of Ms. Meyer and the Jury concluded exceptional circumstances
9
were not present on May 11. The HPC denied Ms. Meyer’s appeal stating, “…as there
was no mechanism in place to change the outcome of the competition, the final scores
and rankings would be upheld.” The Claimant argued this decision was a breach of
natural justice by not providing a remedy. The Respondent’s position was that the scores
are final in a competition and cannot be changed. The Affected Party argued there were
no breaches of natural justice. The Affected Party said the review panels acted fairly and
reasonably in accordance with the Rules. The HPC had the power to decide the team
nominations, so in the face of the Jury reversal on exceptional circumstances, is it curious
that they did not conclude three points should have been deducted from the scores of Ms.
Nattrass. Instead they concluded, “… there was no mechanism to change the outcome of
the competition.” The HPC gave no reasons as to how they reached that conclusion.
Perhaps they agreed that final scores could not be changed after the fact. What is clear is
that the HPC denied Ms. Meyer’s appeal. One might not like the decision rendered by the
HPC but the fact remains the HPC did accept to review Ms. Meyer’s appeal, did
investigate it, and did render a decision. They gave a reasoned ruling as a result of their
investigation, having analyzed the situation before them. There was no breech of natural
justice here. The process was fair and they made a final decision in accordance with the
“PROVISIONAL Shooting Federation of Canada Internal Team Nomination Procedures
Pan American Games 2015.”
41. Ms. Meyer did not like the decision of the HPC and appealed on May 30, 2015 to the
SFC Tripartite Appeal Committee (TAC), nominating her representative, Ms. Pat Boulay.
The TAC ignored this nomination and it was B. Harrison, M. Deneka and M. Johnson
who met via a conference call on May 30 and June 3. They concluded, in a letter dated
June 9, 2015, that Ms. Meyer’s appeal be denied stating, “The incidents presented did not
lie outside of the ability of ISSF Rules to address.” Ms. Meyer emailed Mr. Asim
Arifovic on June 11, 2015 reiterating that her representative should have been on the
committee. That same day Mr. Arifovic replied saying, “We will form a new committee
and redo this excluding the members that were already involved.” The SFC admitted
there was a “mess up” and offered to have a new committee address the appeal with Ms.
Meyer’s representative present. The TAC process was flawed. Ms. Boulay should have
been a party to these discussions and was not. The SFC realized this and the offer of a
new committee was made. Ms. Meyer chose not to proceed with the new TAC and
instead appealed to the SDRCC for an arbitration hearing as time was of the essence. The
deadline for team selection was June 15, 2015. This does not discount or ignore the fact
the SFC were willing to form a new TAC as the first committee was flawed. The SFC
realized that and were willing to make amends. Ms. Meyer did not pursue the offer. There
was no breech of natural justice here as the SFC realizing the error came forward with the
solution of the do over.
42. It is my conclusion that the appeal of the Claimant be denied as I wrote in my short
decision of June 15, 2015. Ms. Meyer appealed three times and three times she was
denied. It is my view the Jury of May 11 reached a reasonable decision and treated Ms.
10
Meyer fairly. The HPC fairly reviewed the decision of the Jury and they too denied Ms.
Meyer’s appeal. The TAC denied the appeal but that denial should not be considered as
the committee was not composed of the right people. Two different bodies reviewed the
appeal of the Claimant and twice denied her appeal.
43. The Claimant has not proven sufficiently there were significant flaws to the appeal
process used nor has the Claimant proved there were breaches of natural justice. The
Claimant has not proven there were intentional or blatant violations of the ISSF Rules in
this case. There is not sufficient grounds that would lead me to claim Ms. Meyer was not
treated fairly and reasonably.
COSTS
44. The Affected Party gave notice of her intention to seek costs, as contemplated by Article
6.22 (b) of the Code, on June 16, 2015. In their submissions on costs, counsel claimed the
appeal of Ms. Meyer to the arbitration hearing was, “…frivolous, vexatious and without
substantive or legal merit.” They stated neither the ISSF Rules nor the Code provides a
substantive basis for the award of costs other than what is set forth at Article 6.22 of the
Code but submitted there is a presumption that the successful party is entitled to recover
his or her costs. Counsel for the Affected Party viewed her as the successful party as the
arbitration award validated Ms. Nattrass’ position on the Canadian Pan Am team.
45. Counsel for the Affected Party submitted that the fact Ms. Meyer was unsuccessful at
arbitration and in three other separate forums namely, the Jury, the HPC and the TAC,
Ms. Meyer should bear the responsibility to pay costs to Ms. Nattrass. Counsel also
submitted that, “…the Arbitration proceedings which the parties participated in is not
designed to give individual litigants such as Ms. Meyer, a forum for carrying on in a
manner they wish, oblivious to the impact of that conflict on the other parties, and
perhaps more importantly, oblivious to the mounting costs to the other party as a result.”
46. The Affected Party submitted that Ms. Nattrass should be entitled to recover Substantial
Indemnity Costs resulting in approximately 65-70% of the actual costs incurred being
awarded to the successful party, both for fees and disbursements and tax. Counsel for the
Affected Party calculated their total fees, disbursements and taxes at $26,576.78.
47. The Claimant’s submissions referred to Sub-section 6.22 (c) of the Code providing the
conduct of the parties be taken into account and Sub-section 2.5 of the Code which
provides that breaches of the Code may be taken into account in assessing the issue of
costs.
48. The Claimant submitted the Affected Party violated the confidentiality of the arbitration
proceedings by going to the press with a story (Susan Nattrass beats challenge for her
Pan Am spot) that appeared in the Toronto Star on June 17, 2015. The story contained
confidential information, only revealed during the course of the arbitration such as the
incident of the keys in the locked car, the name of the arbitrator, the four attempts by Ms.
11
Meyer to get on the team and that the Affected Party was looking for the award of costs
of upwards of $20,000. The article ended with a quote by Mr. McMakin which counsel
for the Claimant described as, “A veiled and insulting reference to the Three Little Pigs
fable.” Counsel pointed out, “These breaches of confidence ostensibly led the SDRCC to
issue a “Confidentiality Rule Reminder” on June 17, 2015.”
49. Counsel for the Claimant referred to another story (Arbitrator rules Nattrass can keep
spot on Pan Am shooting team), Canadian Press of June 17, 2015, in which a number of
references to the arbitration were made, including “Meyer’s request was thrown out by an
arbitrator…” and a quote from Mr. McMackin that, “This hearing was the fourth appeal
on this matter – all of which were denied – and we feel this was a vexatious proceeding
and a considerable waste of resources…” Counsel for the Claimant submitted the two
stories were, “… picked up at least 43 times.”
50. Counsel submitted that Sub-section 4.3 (c) of the SDRCC Code should be taken into
account saying the Affected Party’s conduct during the Resolution Facilitation should be
considered in determining the award of costs. In that regard the Claimant’s submissions
contained an Affidavit signed by Ms. Meyer in which she referred to comments made by
the Affected Party’s representative.
51. Counsel characterized the conduct of the Affected Party and her representatives as
“exceptional” describing the public statements as “inflammatory” and showing
“disrespect for the sanctity/confidentiality of these proceedings.” Counsel went on to say
the conduct should not be condoned or sanctioned by the Panel and “…should weigh
heavily in the Claimant’s favour in deciding that the Affected Party should pay part, or
all, of her costs.”
52. Finally, counsel submitted the matter was not frivolous, there was a genuine issue to be
decided and there was a reasonable basis for the claim. The Claimant submitted the
Respondent and/or the Affected Party should bear her legal costs, either individually or in
amounts proportional to their respective conduct. The Claimants’ costs amounted to
$10,985.00
53. The Respondent made no submissions on the matter of costs.
DECISION ON COSTS
54. I disagree with the Affected Party that Ms. Meyer’s appeal to the SDRCC and subsequent
hearing on the matter was “frivolous, vexatious and without substantive or legal merit.”
Ms. Meyer availed herself of her rights to appeal to the Jury, the day of the competition,
because she felt the Referee’s decision not to deduct points from Ms. Nattrass’ scores
was incorrect. She appealed to the HPC which she was entitled to do because she
disagreed with the Jury’s conclusion. She took the decision of the HPC to the Tripartite
12
Appeal Committee, again exercising her rights to disagree with the HPC’s decision.
Finally she turned to the SDRCC arbitration process to have her case heard because she
truly believed errors in process had been made and that she should have been nominated
to the team for the Pan Am games. A lot was at stake in the appeals which Ms. Meyer
initiated. She was serious in her appeals and was exercising her rights to appeal the
decisions made. These appeals were not vexatious or frivolous actions on Ms. Meyer’s
part, far from it. The selection of an athlete to a team to participate in a competition as
important as the Pan American Games is of great import. If an athlete considers herself to
have been wronged then she has the right and opportunity to have a say at every level of
appeal possible.
55. The Affected Party’s claim for costs are therefore denied.
56. I find it significant the Respondent made no submission on costs. I can only infer from
that they did not feel costs were warranted or decided not to pursue costs as there were no
grounds for a positive ruling on costs.
57. The Claimant’s costs submissions contain some disturbing revelations about a lack of
confidentiality on the part of the Affected Party. Article 6.3 of the Code, Confidentiality
of Proceedings states:
(a) Arbitration proceedings under this Code are confidential and the hearings are
not open to the public.
(b) The Panel, the Parties, their representatives and advisors, the witnesses, the
experts, the SDRCC and any other Persons present during the Arbitration shall
not disclose to any third party any confidential information or confidential
document related to the proceedings or any information or document given to
them during the Arbitration, except as provided for in this Code or under the
rules and the by-laws of the SDRCC, or unless required by law to do so.
58. The Affected Party and her representatives communicated with the press on June 17,
2015 and disclosed information about this arbitration in contravention of the Code. This
prompted the SDRCC to issue a Confidentiality Rule Reminder the same day which
stated in part:
We wish to remind parties and counsel of the confidentiality rules under which
the SDRCC proceedings are conducted. A reasoned decision having not been
issued yet and a possible determination on costs still outstanding, this case is not
considered closed.
59. The comments made to the press disclosed a number of pieces of confidential
information including the names of the parties in the dispute and the number of appeals
made by the Claimant. The comments by Mr. McMackin pertaining to the hearing which
were quoted in the press violated the Code. Notably, his quote about houses of straw,
sticks and brick was uncalled for, unprofessional and unsportsmanlike.
13
60. Due to the fact that the Affected Party breached the confidentiality provisions of the Code
and due to their conduct with the media on or around June 17, 2015, I order the Affected
Party pay half the costs of the Claimant, namely $5,492.50.
61. The Claimant’s cost submissions referred to Sub-section 4.3 (c) and argued that a Party’s
conduct during the Resolution Facilitation (RF) also be considered in determining an
award of costs. Article 4.3 (c) states:
If a Party in an Arbitration refuses to spend the aforementioned time with the RF
or is so inadequately prepared as to frustrate the purpose of the Resolution
Facilitation, the Panel may award costs against such Party pursuant to Section
6.22 hereof.
62. It is important to bear in mind that the RF process is a confidential one and that any
statements, offers or other discussions cannot be raised at another forum such as the
arbitration hearing. The sanctity of confidentiality in an RF cannot be undermined.
Article 4.4 (b) of the Code states:
The RF, the Parties, their representatives and advisors, the experts and any other
Persons present during the Resolution Facilitation shall not disclose to any third
party any information or document given to them during the Resolution
Facilitation, unless required by law to do so.
Ms. Meyer’s Affidavit which divulges information which arose in the RF is in
contravention of 4.4 (b).
63. How can Article 4.3 (c) be invoked if Article 4.4 (b) of the Code prohibits any
information about the RF being given to a third party including those on a Panel? It
seems Article 4.3 (c) is meant to address those rare cases of a flagrant abuse of the RF by
coming unprepared or refusing to partake in the RF. Article 4.3 (c) speaks of two factors
or actions which may lead to an award of costs, that being the failure to spend at least
three hours with the Resolution Facilitator and secondly, being inadequately prepared.
Ms. Meyer’s Affidavit (forming part of the Claimant’s submission for costs) did not
specifically refer to one of the parties refusing to spend time at the RF nor did it state that
a party was inadequately prepared. It is best to take a narrow and specific interpretation
of Article 4.3 (c) because to do otherwise might undermine the purpose and reason for an
RF.
64. Therefore I make no order with regard to costs flowing from Article 4.3 (c).
14