The Sport Dispute Resolution Centre of Canada (SDRCC) just published the decision on the award of costs related to the hearing that took place earlier this summer regarding Equine Canada initially not naming Jessica Phoenix and A Little Romance to the 2016 Rio Olympic team. You may recall that hearing ended with a decision against Equine Canada , and supporting Jessica Phoenix, deeming team coach Clayton Frefericks as a biassed selector based on his conduct and Equine Canada's failure to properly apply their selection criteria. [read full original appeal decision] While it's not typical for parties to be awarded costs , the SDRCC Code does include a provision for the awarding of costs. And award they did, stipulating that Equine Canada must pay $35,000 stating that the Claimants (Phoenix, Don Good and Don & Anita Leschied) were "subject to a process which could not withstand scrutiny" and that the case "manifestly did not have the appearance of fairness". The decision makes for some very interesting reading. We've noted several highlights below, and encourage those interested in what is happening at our national federation to read the full decision here .
Legal Counsel
At the initial hearing, Equine Canada made the curious decision not to be represented by legal counsel. Instead, their representative was then Eventing High Performance Advisor Ozzie Sawicki. For this awards hearing, EC chose to have Benoit Girardin represent them. Some may recognize Mr. Benoit's name as the person who worked with the Bromont Bid Committee in order to draft Bromont's bid document for the 2018 World Equestrian Games. He was also a lobbyist (Office of the Commissioner of Lobbying of Canada ) for Equine Canada with regards to the ill-fated 2018 World Equestrian Games. And some may have seen him at the EC Convention earlier this year where he was retained by EC as a facilitator for panel discussions. More recently, in addition to being EC's legal counsel for this SDRCC awards hearing, his firm was appointed in September by Equine Canada to perform a High Performance review .Arbitrator's Introduction
- The Arbitrator recapped the original hearing decision starting that he found the "selection process was flawed for a number of reasons, not the least of which was when the team coach, Clayton Fredericks, told Ms. Phoenix that her refusal to run two of her horses at the event in Bromont would ruin her chances to make the Olympic Team."
- The Arbitrator "rejected the denial of Mr. Fredericks that he made any such threat."
- The Arbitrator also found that Mr. Fredericks "was a very important member of the Selection Panel who had suggested how the panel would proceed at the outset of the selection meeting.." and concluded that "a Selection Panel in which one of its principal members prejudges the outcome cannot be said to be a panel, which acts fairly and creates an appearance of fairness."
EC's Position
- While EC's counsel recognized at the outset that costs submissions are not be used as an opportunity to re-litigate the case, the counsel "proceeded to do just that and argued that the case had been wrongly decided."
- EC counsel "made much of the fact that EC was not represented by counsel."and that the preparation on behalf of Phoenix's counsel "appear excessive."
- The Arbitrator rejected these "serious allegations"
- EC Counsel argued that "Mr. Frederick's conduct did not affect the decision the (Selection) panel made." and that "while counsel concedes that Mr. Fredericks' conduct was not appropriate, his reason for such conduct was for Ms. Phoenix's benefit and he wanted her on the team."
- EC Counsel also made an argument regarding EC's limited financial resources and that "an award of costs only ensures that there is less money for others..."
Aribtrator's Conclusion
In the end, the Arbitrator did not accept the submissions made by EC's counsel and stated that in his view "the evidence in this case clearly establishes that this is an exceptional case." And went further to say "this case manifestly did not have the appearance of fairness. Indeed events turned out exactly as they were predicted by the coach."Respondent listed as "Equine Canada"
This is interesting to note as it re-affirms that the resources (both staff and financial) that were allocated to the significant re-branding exercise earlier this year seems to be exactly that...a re-branding only and not affecting the actual legal name of the organization which remains as Equine Canada.
The Sport Dispute Resolution Centre of Canada (SDRCC) just published the decision on the award of costs related to the hearing that took place earlier this summer regarding Equine Canada initially not naming Jessica Phoenix and A Little Romance to the 2016 Rio Olympic team. You may recall that hearing ended with a decision against Equine Canada , and supporting Jessica Phoenix, deeming team coach Clayton Frefericks as a biassed selector based on his conduct and Equine Canada's failure to properly apply their selection criteria. [read full original appeal decision] While it's not typical for parties to be awarded costs , the SDRCC Code does include a provision for the awarding of costs. And award they did, stipulating that Equine Canada must pay $35,000 stating that the Claimants (Phoenix, Don Good and Don & Anita Leschied) were "subject to a process which could not withstand scrutiny" and that the case "manifestly did not have the appearance of fairness". The decision makes for some very interesting reading. We've noted several highlights below, and encourage those interested in what is happening at our national federation to read the full decision here .
Legal Counsel
At the initial hearing, Equine Canada made the curious decision not to be represented by legal counsel. Instead, their representative was then Eventing High Performance Advisor Ozzie Sawicki. For this awards hearing, EC chose to have Benoit Girardin represent them. Some may recognize Mr. Benoit's name as the person who worked with the Bromont Bid Committee in order to draft Bromont's bid document for the 2018 World Equestrian Games. He was also a lobbyist (Office of the Commissioner of Lobbying of Canada ) for Equine Canada with regards to the ill-fated 2018 World Equestrian Games. And some may have seen him at the EC Convention earlier this year where he was retained by EC as a facilitator for panel discussions. More recently, in addition to being EC's legal counsel for this SDRCC awards hearing, his firm was appointed in September by Equine Canada to perform a High Performance review .Arbitrator's Introduction
- The Arbitrator recapped the original hearing decision starting that he found the "selection process was flawed for a number of reasons, not the least of which was when the team coach, Clayton Fredericks, told Ms. Phoenix that her refusal to run two of her horses at the event in Bromont would ruin her chances to make the Olympic Team."
- The Arbitrator "rejected the denial of Mr. Fredericks that he made any such threat."
- The Arbitrator also found that Mr. Fredericks "was a very important member of the Selection Panel who had suggested how the panel would proceed at the outset of the selection meeting.." and concluded that "a Selection Panel in which one of its principal members prejudges the outcome cannot be said to be a panel, which acts fairly and creates an appearance of fairness."
EC's Position
- While EC's counsel recognized at the outset that costs submissions are not be used as an opportunity to re-litigate the case, the counsel "proceeded to do just that and argued that the case had been wrongly decided."
- EC counsel "made much of the fact that EC was not represented by counsel."and that the preparation on behalf of Phoenix's counsel "appear excessive."
- The Arbitrator rejected these "serious allegations"
- EC Counsel argued that "Mr. Frederick's conduct did not affect the decision the (Selection) panel made." and that "while counsel concedes that Mr. Fredericks' conduct was not appropriate, his reason for such conduct was for Ms. Phoenix's benefit and he wanted her on the team."
- EC Counsel also made an argument regarding EC's limited financial resources and that "an award of costs only ensures that there is less money for others..."