Maintaining 'Fairness' in Investigations and Hearings

Occasionally in this column we are able to write about actual sport cases. This is a treat, as normally we draw from general cases, extracting their principles and interpreting them in the sporting context. In this column, we will write about lessons learned from the 2004 Alberta case, Paterson v. Skate Canada.[1]

Internal investigations are common in sport situations, as are disciplinary hearings. Certainly some coaches have been through this experience, and many volunteers have also played their part in carrying out these procedures. This particular case has much to say about how we should, and should not, carry out investigations, hearings and appeals and is a bit of a ‘wake-up call’ for those of us who may have become complacent in our view of ‘fairness’ as a flexible concept.

Gary and Stacey Paterson were two figure staking coaches who earned their livelihood through coaching at a Skate Canada-sanctioned club in Grande Prairie, Alberta.  Parents of some of their skaters lodged complaints about the Patersons with Skate Canada – the complaints alleged dishonesty, fraudulent misconduct, harassment and abuse of power. In essence, these complaints could be described as representing grievances that occurs not infrequently in sport clubs and organizations.

In response to the complaints, Skate Canada set in motion their policy and engaged two volunteers to investigate the complaints. They interviewed the parents, witnesses and the Patersons. As part of this process they properly disclosed to the Patersons the written complaints made by the parents.  All seemed well: the policies and procedures of the organization were being followed as intended, full disclosure of the complaint had been made to the Patersons and thus they presumably understood the case to be met, and the matter would run its course and would afford due process to all parties concerned.

However, such would not be the case. The Patersons found themselves being accused of serious offenses that, if found true would result in them losing their livelihood. While they were permitted under Skate Canada’s policies to speak against these accusations in their own defense, they were denied the opportunity to scrutinize the evidence coming from the investigation, including directly challenging the credibility of their accusers through any form of cross-examination.

Skate Canada properly asserted that it should be permitted to carry out its investigation unfettered by the parties’ interference. More specifically, Skate Canada said that the process was only at the complaint stage, that ‘charges’ had not yet been laid, and that no conclusions had been reached as to whether there was any foundation to the complaints. In other words, the request by the Patersons to cross-examine witnesses at this stage was premature. Skate Canada was simply trying to determine what had happened, or in the words of the Court hearing this case, ‘to ferret out the truth’, to determine whether there was some merit to the case or not.

Carrying out an investigation that included questioning the complainants, witnesses and the Patersons, but precluded cross-examination, appeared to be a reasonable course of action for Skate Canada in these circumstances. However, the Court disagreed. In essence, upon a closer examination of Skate Canada’s policies, the Court found that these policies did not provide for the accused to have any opportunity to challenge their accusers, nor to address directly the ultimate decision-makers, either orally or through a written document.

Skate Canada’s policies, not unlike the internal policies of many sport organizations, provided for an investigation that involved the gathering of evidence by way of interviewing the complainants and the accused persons, and the compilation of this information into a report which would be put before a committee. The committee would then make a decision based on this report.

The Patersons maintained, and the court agreed, that procedural fairness was not possible using these procedures, as at no point could the Patersons directly challenge the report or the witnesses who gave evidence in the report. Put another way, Skate Canada was relying upon the investigation to also serve as the hearing, and this is where their system broke down.

In its own defense, Skate Canada suggested that any procedural unfairness at the investigative stage could be ‘cured’ at the appeals stage. Again, the Court disagreed. The Court was satisfied that the appeal contemplated by Skate Canada’s procedures would be an appeal ‘on the record’, meaning that there would be no new evidence heard by the appeal panel and no opportunity for the Pattersons to respond to the original witnesses or evidence. Throughout the process, the Patersons had only been given the opportunity to respond to evidence that had been ‘filtered’ by the Investigators.

A restrictive appeal such as this is, in fact, a common practice among sport organizations. Such an appeal is perfectly acceptable as long as those being disciplined have had the opportunity at some point in the process to respond to the evidence and those bringing the evidence forward. This can be done by a written response to written allegations or through an oral hearing that allows the parties to respond to evidence. This certainly did not happen in the Paterson hearing.

In the end the Court in this matter concluded that a person facing disciplinary charges before a tribunal that is obliged to accord ‘due process’ (as all sport organizations are obliged to do), is entitled as a matter of due process to challenge the credibility of his accusers through cross-examination. The accused is also entitled, in such situations, to bring forward his own evidence to contradict the evidence of the accusers. If the original evidence comes forward through a written document, then a written response is sufficient. If the evidence comes orally, then the response needs to be done orally as well. If such a challenge poses a problem because complainants are not prepared to come forward for cross-examination, then there can be no complaint and no disciplinary action.

These are strong lessons for any sport organization. In this case Skate Canada was merely following their published procedures in a manner that they felt was appropriate and fair, all of which was and is consistent with fairly common practices within the sport community. Such practices may no longer be sufficient.

The next time you find yourself involved in a disciplinary complaint either as a recipient or an imposer of discipline, it might be prudent to get a word of advice first so as to ensure that the legal requirements of fairness are being met.

[1] Patterson v. Skate Canada (2004) Alberta Court of Queen’s Bench, J. Moen, decision dated 22 December 2004.

Originally published: Coaches Plan (2006) Vol. 12(3)

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