What Makes a Dispute Situation Fair - or Unfair?

Published November 26, 1997

Two recent situations involving the termination of coaches may shed some light on this question.

The first situation involves the termination of the Simon Fraser University (SFU) head swim coach. Liam Donnelly was dismissed from his full-time position after a campus committee found he had sexually harassed a former swimmer. A five day hearing was held; however, after obtaining legal advice, Donnelly did not participate in the hearing. Nonetheless, the hearing went ahead and Donnelly was terminated. SFU maintained the University acted in accordance with its harassment policy and procedures and stood behind the fairness of the process. While Donnelly has acknowledged he was wrongly advised to ignore the proceeding, he is currently disputing both the process used by the University and his termination.

The second situation involves a volunteer coach with Field Hockey Ontario who was terminated from his position as coach of the woman's senior provincial field hockey team. Peter D'Cruz, a volunteer coach, had signed a very simple contract that set out the broad parameters of what he should and should not do in his position. The contract stated that the executive of the Association had the authority to terminate him. Informed the coach of alleged breaches of the contract, he was invited to respond at a meeting of the executive. Mr. D'Cruz did so and the Executive subsequently terminated him. Mr. D'Cruz did not appeal this decision but instead brought an application for judicial review, alleging that the association had breached its duty of fairness to him. Among the concerns he cited were inadequate notice of the allegations, lack of opportunity to respond and inadequate right of appeal. The Court dismissed Mr. D'Cruz's application (D'Cruz v. Field Hockey Ontario: July, 1997).

The extent to which an organization must go to ensure "fairness" depends on the situation: what's required in one situation may not be necessary in another, or may be insufficient in yet another.

It is quite clear that private organizations, such as sport organizations, are legally entitled to prescribe and implement their own procedures. The question is, are there limitations or constraints on this entitlement? The answer is yes, but they vary depending on the circumstances. It is safe to say a sport organization must use a "fair" procedure. But what constitutes "fair" depends on the nature of the organization (statutory, private or some hybrid of the two), the nature of the dispute (what's at stake in the outcome), the nature of the dispute resolution procedure (is there an opportunity to appeal?), among other factors.

For example, organizations that derive their existence from a statute such as a hospital, prison or crown corporation have less autonomy over their procedures than private bodies such as sport organization, community clubs or churches. Interestingly, universities have been viewed as a hybrid and the courts have been prepared to grant a degree of deference to their procedural standards.

Thus, in the Donnelly case, SFU is certainly entitled to establish and move forward under its own procedures for dealing with harassment complaints; at the same time however, it would be subject to stricter provisions of procedural fairness than a sport association. Indeed, the courts are increasingly reluctant to interfere with the autonomy (or private power) of a private organization, specifically a sport organization, without a clear and compelling reason.

There are a number of other circumstances that also require more extensive procedural safeguards than others. For example, the potential loss of a proprietary interest such as the loss of a paid job (although not a volunteer position) or the loss of membership in an organization will demand greater safeguards. (In D'Cruz v. Field Hockey Ontario, the court rejected D'Cruz's argument that he had suffered a loss of reputation, which he maintained was a proprietary interest.) The scope of the internal process will also affect procedural requirements. For example, a single and final hearing, as opposed to a hearing from which there is further appeal, may require stronger procedural measures.

How does this play itself out in practical terms?

As a bare minimum, "fairness" requires reasonable notice of the allegations against one, and an opportunity to respond to these allegations before an unbiased decision-maker. The format of the notice and the opportunity to reply, and any other entitlements, will depend on the circumstances outlined above.

For example, notice can be in the form of a letter or a formal announcement. Disclosure of a complaint may provide every detail and the names of people providing information, or simply a summary of the details. A party may be entitled to any information or document remotely relevant to the issue, or only to those documents the decision-maker will use. The hearing can be an oral one before a panel with witnesses and opportunity to cross-examine, or simply a written response to the allegations. The decision-maker can be an individual or a panel, and can be chosen from within the organization or be independent of it.

Every situation is different and the procedural requirement to be "fair" will vary from minimal to very detailed. Whatever the case, it is important to know what process the organization has set out in its policies and/or by-laws. Where possible, the coach should be involved in determining how the process will play out and under what circumstances, particularly if he is entering into a contract.

And keep in mind, there is a long line of case law (the latest being D'Cruz v. Field Hockey Ontario) that says you must exhaust the internal remedies of the organization, except in exceptional circumstances, before the courts will consider intervention. Thus, it's better to lodge a protest or discuss your concerns, than to ignore the procedures of the organization or club.

Originally published: Coaches Report (1997) Vol. 4(2)

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