Case Comment - Sagen v. VANOC Appeal (2009)

Bruce Kidd (sport historian, Dean of the Faculty of Physical Education & Health at the University of Toronto and a former Olympian) describes the ski jumping feats of the Wurtle twins of Montreal back in the 1930's [1]. Seventy-seven years later, women will not be part of the ski jumping competition at the 2010 Canadian Winter Olympic Games. Certainly the reason is not the lack of passion and effort on the part of female ski jumpers.

In a previous newsletter we discussed the lawsuit a group of female ski jumpers brought in the British Columbia Superior Court. While the Judge found that there had been discrimination, she found the discrimination was by the International Olympic Committee (IOC) in the selection of sports for the Olympic program, and that the Charter of Rights and Freedoms (the Charter) did not extend to foreign corporations, such as the IOC.

The women appealed the decision. This note is about that appeal [2] and a subsequent but unsuccessful appeal to the Supreme Court of Canada. We have written this brief for our readers because most of what has been reported in the mainstream media has not been an accurate portrayal of the legal issues at play in this case.

Does the Charter Apply in this Case?

One might agree that Canadian law should not have such long arms as to affect foreign bodies and one might even accept the idea that the selection of sports for the Olympic program is within the exclusive domain of the IOC. However, what the women were arguing was that the IOC was implementing its (discriminatory) program through a Canadian corporation -- VANOC.

The question then becomes, is VANOC subject to the Charter? The Charter applies to "government action'. A government program such as Employment Insurance (EI) would constitute "government action"; but VANOC is a private corporation - just as, for example, a corporation such as General Motors is a private corporation - and is not subject to the Charter. But, perhaps the fact VANOC receives substantial government funding makes it subject to the Charter. There is case law that says the transfer of funds from the government does not make something "government action" (for example, the fact GM has received substantial government funding in the form of a bail-out does not bring it within the jurisdiction of the Charter).

That the IOC controls VANOC was undisputed; however, the government can be so involved in the affairs of a private corporation as to bring it into "government action". The federal government and other levels of government are clearly heavily involved in VANOC through the Multiparty Agreement -- an agreement entered into by three levels of government for the purpose of securing the 2010 Games with Vancouver as the Host City. Perhaps this is sufficient to bring VANOC under the jurisdiction of the Charter. According to the B.C. Court of Appeal, it is not enough to look at VANOC as a whole. It is necessary to look at the nature of the specific decision of VANOC that purports to infringe the Charter. On that basis the Court said VANOC had no control over the specific decision regarding the composition of the sport program and thus the Charter had no role. It wrote in its decision:

"[I]t is clear on the facts that neither government nor VANOC had any authority either to make or to alter the decision of the IOC not to include a women’s ski jumping event in the 2010 Games. The decision of the IOC not to add women’s ski jumping as an event in the 2010 Games is not a “policy” choice that could be or was made by any Canadian government and the staging by VANOC of only those events authorized by the IOC cannot reasonably be viewed as furthering any Canadian government policy or program."

The Issue of Discrimination

That could have been the end of the issue for the Court of Appeal -- the Charter does not apply to the activities of VANOC with regard to the selection of Olympic program sports, and the IOC, which has absolute control over the program, is outside the reach of the Charter. But the Appeal Court went on to ask, if the Charter did apply, was there discrimination under its provisions? Section 15(1) is the section of the Charter dealing with discrimination and it reads:

Section 15(1) - Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [emphasis added]

The Court asked if participating in the Olympic Games was a "benefit of law" to which the women ski jumpers were entitled. More generally, is participating in the Olympic Games a "benefit of law"? If it is not a benefit of law, then the Charter cannot help (even if there is discrimination). The Charter applies only to discrimination in the application of a benefit of law. (Clearly, for example, child support, employment insurance, the right to vote, obtaining a drivers license, etc. are each benefits of law.) The Court said participating in the Olympic Games is not a "benefit of law". That said, it is important to look at how a 'benefit of law' is phrased. There has been some criticism that this has been framed far too narrowly in this case, leading to the result it did. In other words, how one frames an issue is critical and can make or break a case.

Application to Appeal to the Supreme Court of Canada

The women ski jumpers applied for leave to appeal to the Supreme Court of Canada (SCC). The SCC does not hear every case coming its way. In fact, it hears very few appeals - less than 20 percent in fact. In this case the SCC denied the women’s application. The SCC is not required to give reasons for its decisions to grant or deny leave, and provided no reasons in this case. That brought to a conclusion the women's current legal odyssey.

Conclusion

A few points beyond the outcome and reasons of the courts (both trial and appeal) are worth noting. First, within the trial court 's decision, the real issue was whether or not the Charter applied to the matter. The women chose to try to use the Charter to argue discrimination. In general, discrimination speaks to treating something or someone differently - to make a distinction to prefer or to exclude. Our laws (the Charter and human rights legislation) do not allow discrimination on certain prohibited grounds, including gender. But, this legislation does not apply in all situations. They each have their own branch of application, or jurisdiction. As noted by the Court of Appeal in this case the Charter, for example, does not constitute a general guarantee of equality.

The Applicants here (i.e., the women ski jumpers) actually started their legal journey with an application under the British Columbia Human Rights Tribunal. They eventually withdrew that complaint for reasons known only to them, but they were engaged in negotiations at the time with the Secretary of State for Sport who, in turn, engaged in negotiations with VANOC. With the benefit of hindsight, perhaps they should have continued with their human rights application.

Perhaps the Applicants should have taken their case to the Court of Arbitration for Sport (CAS). For CAS to hear the matter, the women would have had to have appealed either to their International Federation (IF) and/or the IOC, as CAS is a transnational court of sport arbitration, and not a domestic tribunal. Alternatively, could the ski jumpers have accessed the Canadian dispute resolution process through the Sport Dispute Resolution Centre of Canada (SDRCC)? The athletes would have had a similar problem of jurisdiction. The fundamental issue is with the IOC. The IOC would probably not submit to the jurisdiction of the SDRCC and could not be compelled to do so (just as a foreign body cannot be compelled to comply with the Charter). VANOC would also likely not submit to the jurisdiction of the SDRCC either. So the SDRCC route was probably not a useful one to pursue.

This has been an interesting case and one that highlights the problems and complexities of jurisdiction in sport. Sport is one of the most complex of jurisdictional landscapes – in this case, just consider that privately owned facilities are used by local volunteer organizing committees who have created temporary business corporations that are funded by all three levels of government to put on an event meeting standards established by the International Olympic Committee and requiring the collaboration of numerous international sport federations. In that mix, the Canadian Olympic team is determined by national sport organizations working collaboratively with our National Olympic Committee, the COC. Whew!!

Sadly, in this case, issues of jurisdiction actually eclipsed the real issue, which was the issue of discrimination.

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[1] Kidd, B. Ladies Don't Leap: Women have fought for the right to compete since the modern Olympics Began. And they're still fighting. The Beaver. Dec. 2009-Jan. 2010, pp 33-35.Rhoda and Rhona Wurtele represented Canada at the 1948 and 1952 Winter Olympic Games - although not in ski jumping. They are now 88 years young and still running the Twinski Club in Montreal. (Kidd, 2009)

[2] Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522

Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(1)

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