Equine Canada Ordered to Pay $35,000 in Costs for Lost Jessica Phoenix Rio 2016 Olympic Appeal

Editorial

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 Fredericks 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.

Parting Thoughts...

This is certainly a troubling conclusion to what was a very disappointing situation that resulted in a significant impact to our athletes. 

It's often said that in order to make a lasting impression, you need to hit that person/entity in the pocketbook. Which is why corporate entities who deviate from best practices and receive fines and penalties for their transgressions. The hope being that they will think twice before doing the same thing again. 

What is markedly different with a not-for-profit organization like EC is that their pocketbook is actually built from ours: by our sport license fees, coaching fees, official fees, amateur fees, passport fees, the declarations our athletes pay to be considered for teams and the sponsors & donors who give their money willingly to support the equestrian community just to name a few of the revenue sources coming into EC. You could also easily argue that Canadian taxpayers also contribute to EC's pocketbook through the funding the organization receives through Sport Canada and Own the Podium.

So a hit to EC's pocketbook is really a hit to our own pocketbooks.

Which leads to the question asked by Eventing Connect in their coverage, "when is enough enough"?

Now that there are only 27 Members of EC, it makes it more challenging to have your voice heard.  Challenging, but not impossible.

We encourage you to reach out to the 27 EC Members , and to the EC Board of Directors . 

We'd also be interested in hearing your thoughts on how to ensure better transparency and governance practices between EC and the community it serves. 

Please leave your comments below, or better yet on our Facebook page post . We promise it's a delete-free zone! 

Additional Coverage

• Eventing Connect
• Horse-Canada.com