Rule 140 (c)

June 25, 2012 1

140    APPEALS

140.1    Purpose

The purpose of this rule is to enable disputes with members and participants to be dealt with fairly, expeditiously and affordably, within Athletics Canada without recourse to external legal procedures.

140.02    Definitions

These terms will have these meanings in this rule:

1    Days — will mean total days, irrespective of weekends or holidays.
2    Member — refers to all categories of members in Athletics Canada as well as to all individuals engaged in activities with Athletics Canada, including but not limited to directors, officers, coaches, athletes, officials, volunteers, medical and paramedical personnel, and members.
3    Appellant — refers to the Member appealing a decision
4    Designated Official – refers to the person designated by Athletics Canada to administer this rule and its procedures.
5    Respondent — refers to the body whose decision is being appealed.

140.03    Scope of Appeal

Any Member of Athletics Canada who is affected by a decision of the Board of Directors, of any Committee of the Board of Directors, or of any body or individual who has been delegated authority to make decisions on behalf of the Board of Directors, will have the right to appeal that decision, provided there are sufficient grounds for the appeal as set out in section 5 of this rule.

This right to appeal will not apply to decisions relating to:
Infractions for doping offences, which are dealt with pursuant to the Canadian Anti-Doping Program, or any successor policy;
The Rules of Athletics Canada;
Discipline matters arising during events organized by entities other than Athletics, which are dealt with pursuant to the policies of these other entities;
Matters of budgeting and budget implementation;
Matters of operational structure, staffing or employment;
Matters that are decided by the general membership of Athletics Canada such as approval and amendment of the Constitution and Bylaws, and enactment, amendment or repeal of competition rules;
Commercial matters for which another dispute resolution process exists under a contract or applicable law;
Any decisions made under Paragraphs 6 and 9 of this rule.

140.4    Timing of Appeal

Members who wish to appeal a decision will have 15 days from the date on which they received notice of the decision, to submit in writing notice of their intention to appeal to the Chief Executive Officer of Athletics Canada, along with a cheque in the amount of $250 payable to Athletics Canada. This cheque will be returned if the appeal is successful.

The notice will contain the coordinates of the Appellant, the name of the Respondent, grounds for the appeal, a summary of the evidence that supports these grounds, and the remedy or remedies requested. Upon receiving this notice, the Chief Executive Officer will refer this request to the Designated Official who will administer the appeal process.

140.05    Grounds for Appeal

Not every decision may be appealed. Decisions may only be appealed, and appeals may only be heard, on procedural grounds. Procedural grounds are strictly limited to the Respondent:

Making a decision for which it did not have authority or jurisdiction as set out in governing documents;
Failing to follow procedures as laid out in the bylaws or approved policies of Athletics Canada;
Making a decision that was influenced by bias, where bias is defined as a lack of neutrality to such an extent that the decision-maker is unable to consider other views or that the decision was influenced by factors unrelated to the merits of the decision;
Exercising its discretion for an improper purpose; or
Making a decision that is grossly unreasonable or unfair.

140.6    Screening of Appeal

Within 7 days of receiving the notice and grounds of an appeal, the Designated Official will determine whether there are appropriate grounds for the appeal to proceed as set out in section 5.

If the appeal is denied on the basis of insufficient grounds, the Appellant will be notified of this decision in writing, giving reasons. This decision is at the sole discretion of the Designated Official, and may not be appealed.

140.07    Appeals Panel

If the Designated Official is satisfied that there are sufficient grounds for an appeal, within 14 days of the Chief  Executive Officer having received the original notice of appeal the Designated Official will establish an Appeals Panel (hereafter referred to as the “Panel”) as follows:

The Panel will be comprised of three individuals, drawn from a pool of qualified nominees submitted by Member Branches, who will have no significant relationship with the affected parties, will have had no involvement with the decision being appealed, and will be free from any other actual or perceived bias or conflict.

The Designated Official may name one of the Panel members to serve as Chairperson of the Panel. In the event the Designated Official does not name a Chairperson, the members of the Panel will select from themselves a Chairperson.

In extraordinary circumstances, and at the discretion of the Designated Official, a Panel of one person may be appointed to hear and decide the case.

140.8        Preliminary Conference

The Panel may determine that the circumstances of the appeal warrant a preliminary conference. The matters that may be considered at a preliminary conference include:

Format of the appeal (hearing by documentary evidence, oral hearing or a combination of both);
Timelines for exchange of documents;
Clarification of issues in dispute;
Identification of affected parties;
Clarification of evidence to be presented to the Panel;
Order and procedure of hearing;
Location of hearing, where the hearing is an oral hearing;
Identification of witnesses; and
Any other procedural matter that may assist in expediting the appeal proceedings.

The Panel may delegate to its Chairperson the authority to deal with these preliminary matters on behalf of the Panel.

140.9    Procedure for the Hearing

Where the Panel has determined that the appeal will be held by way of oral hearing, the Panel will govern the hearing by such procedures as it deems appropriate, provided that:

The hearing will be held within 21 days of the Panel’s appointment.
The Appellant and Respondent will be given 10 days written notice of the date, time and place of the hearing.
A quorum will be all three Panel members. Decisions will be by majority vote, where the Chairperson carries a vote.
If the decision of the Panel may affect another party to the extent that the other party would have recourse to an appeal in their own right under this rule, that party will become a party to the appeal in question and will be bound by its outcome.
A representative or advisor, including legal counsel, may accompany any of the parties.
The Panel may direct that any other person participate in the appeal.

In order to keep costs to a reasonable level the Panel may conduct the appeal by means of a telephone conference.

140.10    Procedure for Documentary Appeal

Where the Panel has determined that the appeal will be held by way of documentary submissions, it will govern the appeal by such procedures as it deems appropriate provided that:

All parties are given a reasonable opportunity to provide written submissions to the Panel, to review written submissions of the other parties, and to provide written rebuttal and argument; and

The applicable principles and timelines set out in section 9 are respected.

140.11    Appeal Decision

Within 14 days of concluding the appeal, the Panel will issue its written decision, with reasons.

In making its decision, the Panel will have no greater authority than that of the original decision-maker. The Panel may decide:

To reject the appeal and confirm the decision being appealed; or
To uphold the appeal and refer the matter back to the initial decision-maker for a new decision; or
To uphold the appeal and vary the decision but only where it is found that an error occurred and such an error cannot be corrected by the original decision-maker for reason of lack of clear procedure, lack of time, or lack of neutrality; and
To determine whether costs of the appeal, excluding legal fees and legal disbursements of any of the parties, will be assessed against any party. In assessing costs, the Panel will take into account the outcome of the appeal, the conduct of the parties and their respective financial resources.

The decision will be considered a matter of public record. A copy of the decision will be provided to each of the parties and to the Designated Official.

In extraordinary circumstances, the Panel may issue a verbal decision or a summary written decision, with reasons to follow, provided the written decision with reasons is rendered within the timelines specified in section 11.

The Appeal Process is confidential involving only the parties, the Designated Official and the Panel.  Once initiated and until a written decision is released, none of the parties or the Panel will disclose confidential information relating to the appeal to any person not involved in the proceedings.

140.12    Timelines

If the circumstances of the dispute are such that this rule will not allow a timely appeal, or if the circumstances of the disputes are such the appeal cannot be concluded within the timelines dictated in this rule, the Panel may direct that these timelines be revised.

140.13    Location

The appeal will take place in the location determined by the Designated Official, unless the Panel decides the appeal is to be held by way of telephone conference, or unless, at the specific request of a party, a different location is mandated by the Panel as a preliminary matter.

140.14    Final and Binding Decision

The decision of the Panel will be final and binding upon the parties and upon all members of Athletics Canada, subject to the right of any party to seek a review of the decision pursuant to the rules of the Sport Dispute Resolution Centre of Canada (SDRCC) as amended from time to time, and subject to these limitations:

The ‘law’ to be considered by the SDRCC tribunal is the internal rules, policies and selection criteria of Athletics Canada;

The ‘facts’ to be considered by the SDRCC tribunal are the facts relevant to the case under appeal;

If the SDRCC tribunal determines that Athletics Canada has made a decision in error, the role of the SDRCC tribunal is to identify that error and send the matter back to Athletics Canada to make the decision free from error, unless this is not possible or practical;

The parties will execute an arbitration agreement that will confirm the jurisdiction of the SDRCC tribunal to decide the matter, specify the precise decision under appeal, specify the issues in dispute and specify other matters the parties agree will be binding on themselves and the SDRCC tribunal.

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