policy implications presentation by steven indig
TRANSCRIPT
Policy Implications
Presentation by Steven Indig
Sport Law & Strategy Group
Providing strategic insight to the Canadian sport community through professional services in these areas:
– Legal Solutions & Risk Management– Planning & Governance– Communications & Coaching
1. Complaint Management2. Insurance3. Anti-Spam4. Human Rights
Agenda
RE-EXAMINE CONFLICT Conflict should be viewed as a positive state
Important change within organizations does not occur without conflict
“if we’re all thinking the same way, then we’re not thinking”
DISPUTE RESOLUTION TECHNIQUES
MEDIATION – an informal process where a third party brings the parties together to help resolve their differences and find a mutually agreeable solution
INTERNAL HEARING – Parties present their dispute before an internal hearing panel or decision-maker
LITIGATION – Parties present their dispute to a judge in a court, who makes a decision. Must follow rules of court and requires the help of a lawyer
MANAGING YOUR DISPUTES 1. Prior planning ensure your governing policies are
sound
2. Proper execution interpret and implement your governing policies properly
3. Appeals implement an appeals policy
4. Intervention consider the services of an outside administrator, case manager, mediator, arbitrator, consultant
PROCEDURAL FAIRNESS
1. Authority - authority to make a decision has been delegated to the decision-maker
2. Right to a hearing - the person affected has a reasonable opportunity to present his case
3. Rule against bias - the decision-maker listens fairly to both sides to reach a decision untainted by bias
FORMAT OF HEARING
simple oral interview and response review of written documents review of documents, written arguments
and conference call oral hearing in-person an oral hearing with formal, court-like
procedures
COMPOSITION OF PANEL
Single decision-maker or panel?
What skills/qualifications are required?
Is there bias or prior involvement?
Any evidence of a closed mind?
Members v. non-members?
Are lawyers required?
“ART” OF DECISION-MAKING
Panel makes its decision based on policy and evidence
Sift through all sources of evidence Use logic, good judgment, common sense Make decision based on what seems most
probable, reasonable, right
Code of Conduct -- a statement of the standard of behavior expected of members including harassment
Disciplinary Process -- the mechanics of how to deal with a breach of a code of conduct
Appeal Process – the mechanics of how to deal with a breach of policy and/or procedure
Policies
Recent Innovations
• Independent administrator (let someone else manage, leaving you free to be a part of the process!)
• “Screen” appeals (if not brought on proper grounds, they do not proceed)
• Put confidentiality provisions in policy (breach can result in the appeal process being suspended or stopped)
• Simplify the Tribunal and its procedures
Reciprocity
Definition “a relation of mutual dependence or action or influence; the mutual exchange of rights, privileges or obligations between [nations].”
The Problem without taking explicit, positive steps as a matter of policy, sport organizations cannot recognize each other’s disciplinary decisions.
ONE PIECE OF ADVICE ...
When you receive a complaint …
DO SOMETHING!
INSURANCE
• Who is covered?– The importance of registering participants
• The coverages– Accident– Liability– Directors and Officers– Legal Fees
• What activities are covered?– The importance of sanctions
Synchro Swim Ontario
Insurance
Anti-Spam
Canadian Anti-Spam Legislation
• Canada’s new anti-spam law was passed in December, 2010, and will come into force July 1, 2014.
• According to the Cisco 2008 Annual Security Report, Canada was ranked fourth on the Spam by Originating Country list for 2008
• The year after Australia passed similar legislation in 2004, it dropped out of the world's top 10 spam originating countries.
APPLICABILITY
• Who needs to know about this law?– Anyone who makes use of commercial electronic messages
needs to be aware of this law.• What is a commercial electronic message?
– Any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit:
• Purchase or sell a product, goods or service• Advertises or promotes anything referred to a product, good
or service• A request for consent
Requirements for Sending Commercial Messages
• It is prohibited to send to an electronic address a commercial electronic message unless:– The person to whom the message is sent has consented to
receiving it; and– The message sets out information that identifies the person
who sent the message; and– Sets out information enabling the person to whom the
message is sent to readily contact the Sender; and– Sets out an unsubscribe mechanism.
CONSENT
– Implied Consent – Consent can be implied in some cases such as where there is an "existing business relationship“ or an "existing non-business relationship“.
– There must have been some type of transaction or personal interaction in the 2 years prior to sending the message. People are not considered businesses.
– Consent can also be implied where the recipient has published his or her email address or provided their "business card" as long as the individual has not told you they do not want to receive these types of messages.
EXCEPTIONS
• CASL does not apply to:– Non-commercial activity. – Political parties – Charities that engage Canadians through email if these communications do not involve selling
or promoting a product.
• Further exemptions include for situations where organizations engage in commercial activities with people who have made a donation, volunteered or performed volunteer work, or were a member of the organization in the last 18 months. These exceptions apply to registered charities, political parties and candidates in federal, provincial, territorial or municipal elections.
EXCEPTIONS
• “Existing Non-Business Relationship” means a non-business relationship between a person and the sender who have ascertained:
– Membership, (being accepted as a member of a club, association or voluntary organization in accordance with its membership requirements) within the two-year period immediately before the day on which the message was sent.
ENFORCEMENT• Maximum penalties
– The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.
– There is a reverse onus meaning you are presumed guilty unless you can show otherwise through representations that you are entitled to make to the CRTC.
• CRTC's mandate pursuant to Canada's anti-spam law?– sending of commercial electronic messages without consent;– installation of computer programs without express consent.
• What is the Competition Bureau's role?– The Competition Bureau will investigate and take action where appropriate against false
or misleading representations and deceptive marketing practices.• What is the Office of the Privacy Commissioner's role?
– The Office of the Privacy Commissioner of Canada protects the personal information of Canadians.
Canada is set to enact new anti-spam legislation which, when it comes into force, will regulate the distribution of electronic messages.
To comply with this new law, ___________is required to obtain your consent in order to continue to send you e-communications from our ORGANIZATION. This may include newsletters, publications, announcements, invitations and other news or information.
Please use the button below to confirm your consent to receive emails and other electronic exchanges, as outlined above, from ___________________.
SAMPLE CONSENT
Human Rights
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Section 15(1): Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination…
THE CHARTER - JURISDICTION
• Applies to matter of “government action”– Corporation mandated by government statute
• Public School Sport• Municipal Sport and Recreation Programs
– Private schools, Private club and other privately owned businesses are not part of “government action” and thus are not subject to the Charter
It is a discriminatory practice in the provisions of goods, services, facilities or accommodation customarily available to the general public (Section 1 of OHRC):
(a) to deny, or deny access to, any goods, service, facility, or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
PROVINCIAL HUMAN RIGHTS LEGISLATION
PROHIBITED GROUNDS
• Section 1 - Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of:Race Ancestry Place of origin Color
Ethnic origin CitizenshipCreed SexSexual orientation Age Gender Identity Gender ExpressionMarital Status Family Status Disability
LEGAL ANALYSIS1. Is there differential treatment
(discrimination)?2. Is the discrimination based on a prohibited
ground?3. Is there justification?
– must be supported by more than impressionistic evidence, expert evidence is often needed.
– must be supported by substantial and bona fide evidence that such an exception is reasonable and necessary under the circumstances.
4. Is reasonable accommodation possible?
IS THE DISCRIMINATION JUSTIFIABLE?
• Any justification must be supported by more than impressionistic evidence, expert evidence is often needed.
• Reasonable justification must be supported by substantial and bona fide evidence that such an exception is reasonable and necessary under the circumstances.
GENERAL RULES
Distinguishing athletes on the basis of their skill level or athletic
performance.
Hockey and Inclusion - Jesse Thompson, a 17 year old Oshawa hockey player
born as female but who identifies as male, filed a human right complaint within Ontario Human Right Commissions against Hockey Canada
- Made to change in closet, boiler room, etc. and filed the application after facing difficulties at this local arena
• Thompson’s mother, Ailsa Thompson, said it was “very upsetting” when a coach booted her son from the boys dressing room on the basis that “she’s a girl.”
• “Parents would come in and kick Jesse out of the girls change room because it was for girls only.”
ONTARIO Settlement- Provide training to all its Ontario-based trainers and coaches on
gender identity and gender expression- Amend its Ontario Co-Ed Dressing Room Policy, which will be
publicly posted on the web to include that:• A player has a right to use a dressing room that
corresponds with the player's self-identified gender identity;
• A player shall be addressed by the player's preferred name and referred to by pronouns corresponding to the player's self-identified gender identity; and
• A player is entitled to privacy and confidentiality with respect to the player's trans status
• Provide information about the amended policy to staff, volunteers, parents/guardians and players in Ontario.
