Part 5 Obligations

I

“With great power comes great responsibility.”

Whether this quote originated with the French Revolution or an early Spider-Man comic is up for debate.  However, the expressed principle appears to have been very well known for a long time and likely originated sometime in the remote past as leadership took shape as a social phenomenon in early human communities.  Certainly in the times before and after the French Revolution, people in positions of social power reflected on their obligations with it.

I wanted to begin this part of the tale this way to clarify the point that the “OLA” is not just one or two people, or a special group such as the Board of Directors, but rather the wider membership of people who comprise the activities and services and represent the organization at the grassroots levels.  For the most part when we say “the OLA” it is usually meant as a type of metaphor to refer to the actions made by a few people on behalf of the membership.  I want to make this distinction in order to ensure that when I say “the OLA” we all have the same understanding that my criticism is not specifically directed at the membership per se, but that such criticism may be seen by others, let’s call them ‘outsiders,’ as a direct criticism of the entire membership.  Such a view would not be true.

I have recognized the nature of the OLA as whole for quite some time; how it is constructed, who is who and how things get done.  At least I believe I have a good understanding, if only the experience is somewhat theoretical in parts.  (During the OLA Appeals hearing one of the appeals committee members sarcastically remarked that “not everyone has the constitution memorized.”  Of course, I do not have the OLA Constitution memorized, but it goes to show that I am able to refer to the OLA Constitution for practical purposes, such as defending myself.)

I also believe, given this perspective, how things ought to be done.  For the sake of the membership as a whole, I will leave my recommendations in that regard for the next installment of this blog.  However, I will say that there came a point in this entire fiasco that I made my decision to follow through with that holistic view in mind.  It may seem to you that the problem I was dealing with was very specific, but I realized that what I was going through was applicable to every single member of the OLA, including all the players, parents, clubs, volunteers, spectators, etc.  I happened to have found a route I could use to address my grievances, but the same cannot be said for the greater part of the membership.  In other words, most OLA members are stuck with the status quo and are mostly powerless to change it.  The OLA has been designed this way.

In the previous parts I referred to something called “procedural fairness” as it pertains to administrative law, that set of rules and regulations that form the guidelines for administering an organization.  In cases of government run decision-making organizations such as boards and tribunals, administrative law is applied more formally; in the case of quasi-public organizations, such as sport associations, housing associations, etc. (where services are offered to public members of the org)  administrative law is applied more informally.  A registered NPO has administrative obligations with regard to the Ontario Corporations Act, but when it comes to procedural fairness, well that is less defined.

When someone is subjected to a decision that affects their rights the decision making body has an obligation to hear the matter in a fair and unbiased way.  That is why conflict of interest statements usually appear at the beginning of administrative procedure documents.  If you have people hearing your side of the story and they are biased against you, the procedure can be considered unfair.  An unfair process can never produce fair results.

There is an interesting twist with regard to procedural fairness though and that is when it must be applied or when it can be expected.  This is a key concept: procedural fairness is only applicable in a process where a final decision is made.  If there is an appeal aspect to a process, procedural fairness cannot be expected since the decision is not final and an appeal on a decision can be made based on the procedure itself.  For example, I claimed that the first-but-really-second Zone disciplinary hearing was procedurally unfair and part of my appeal was based on that fact.  When I made my second level appeal to the OLA, I also claimed the first hearing was procedurally unfair.  That is, I had expectations that the hearing should have been fair, but I was mistaken because – and this is important – the OLA is not obligated to have a fair hearing since each stage of the hearing process has an appeal component.   This creates an at-whim decision making process and, since all members sign away their legal rights when they sign a registration form, grosser forms of discrimination can take place with no recourse.

II

As soon as the decision from my first OLA appeal hearing was released, I applied for a second level hearing and sent in my $200.00 cheque.  Then the waiting game began.  The OLA obligation toward the second level hearing is stated here in the 2015 OLA Constitution:

OR7.04
The third and final appeal board would be appointed by the O.L.A. to be comprised of individuals independent of the aforementioned groups as well as: the O.L.A. Leagues, the O.L.A. Board of Governors, the O.L.A. Board of Directors, the O.L.A. Board of Referees or anyone involved in the original disciplinary action.  The cost of this level of appeal shall be two hundred and fifty ($250.00) dollars and shall be non-refundable.

Note that appeal application does not specify any timeframe for the second level hearing.  In fact, there is no obligation for the OLA to hold hearings in any sort of specified timeframe, even though there is a specified time limit to make complaints and apply for appeals.  The OLA can delay a hearing for any reason whatsoever, and for as long as they wish.  They know this of course.

By late June, I was re-evaluating my options.  The season was coming to an end; I was not allowed to participate in any club events nor was I welcome at any events or games put on by the OLA.  (At one point in late June, the Zone Director had even laid in wait for me at one of the local arenas as my wife and son showed up to referee a Tyke and Novice rep game.)  I had queried the OLA about the delay in gaining a hearing and I received the following response:

Yes I have it  have contacted members to check their availability this usually takes 3- 4 weeks to get a panel together especially during summer holidays.  Will let you know when it is set up.

—–OLA Administrator—-

What was starting to emerge was a delay strategy so that by the time it was completed, the suspension would have been over, effectively hollowing out any sense of justice that could be obtained and resulting in little, if any, change.  If I was unsuccessful with the second level appeal, which had no obligation towards procedural fairness, I could always appeal to the CLA; if unsuccessful there, then I could always apply to appeal to the Sport Dispute Resolution Centre.  So long as there is an appeal, what should procedural fairness have to do with anything?

My list of options was thin: I could attempt a court challenge, but I had signed the waiver of legal rights and, according to Canadian sport law sources, such waivers were usually solid protection for the organization.  If I took up the court route, it would have to be based on a decision resulting from non-compliance on some law, and I was leaning towards the Corporations Act or administrative law.  The club had banned me outright, without first processing me through the suspension articles of the club by-laws and I had not signed any waiver with respect to the club.  I quickly dismissed this option since the club were no more than helpless bystanders and suing them would not result in the changes required by the OLA.

The other option I had was to look at all of the foregoing as discrimination, as it certainly was.  In my case, however, there was a wrinkle: I am an Indigenous person, Kanien’kehá:ka (Mohawk) to be specific, and there is a very long association between Mohawk people and lacrosse.  In fact, at the end of my OLA Appeal hearing I had asked the appeals committee if they were going to allow this broken process to exclude a Mohawk person from lacrosse and my question was met with silence.  We all know that silence is a sign of approval.

III

For some readers, the idea of moving this dispute into the hands of the Ontario Human Rights Tribunal (the “Tribunal”) might seem trivial, that such a body surely had no stake in what goes on in lacrosse in Ontario.  However, my experiences as an Indigenous person involved with lacrosse is a little different than most and I am sure that more than a fair share of Indigenous people in lacrosse have had similar experiences at one time or another.  As much as we all wish to think of lacrosse as some unified and progressive community outside of the bounds of racial and ethnic prejudice, it isn’t.  In that way, lacrosse is like any other aspect of our current society where racial discrimination can raise its ugly head.

The conundrum I faced was this: I do not believe that everyone who expresses a racially prejudiced view is “racist.”  This flies in the face of conventional thought including the legal perspectives adhered to by government bodies like the Tribunal.  My opinion is based on a comment by Spike Lee who once expressed the idea that individual prejudice and bias is mere bigotry and it only becomes racism when those racially prejudicial views have become entrenched with institutional power or when the authority of the institution is used by one or others to express their racial prejudice.  In other words, if a decision-making body is comprised of racially prejudiced persons, that prejudice could lead to racially biased decisions which would then be evidence of racism.

That is my personal view on how racism works, but as I said, this is not the convention which seems to say that any racially prejudiced expression defines racism.  The problem being that the Ontario Human Rights Tribunal did not operate on my unconventional view.  This meant that any human rights application I made with regard to a complaint about the OLA would necessarily result in an accusation of racism, something I was reluctant to do.  I knew some of the folks on the OLA side of the table and I did not consider them racist.  I can grant that perhaps at one time they may have had their out-group opinions on things – we all do – but I had a hard time considering them racist.  It was too harsh a term and it still is.  As it turns out, I did not have to label them at all.

I called the Ontario Human Rights Commission and was put in touch with one of their resource centre lawyers to discuss the prospect of making a complaint to the Tribunal.  I had researched the application process in some depth prior to making the call and I believed that my complaint fell within the grounds used by the Tribunal.  I had prepared for the call and had all the materials from my previous hearings on hand.

The human rights lawyer heard my story, including my experiences with racial prejudice while involved with OLA lacrosse, and she agreed that it was possible that some aspect of the Human Rights Code of Ontario (the “Code”) were being contravened.  She detailed the application process and also explained that she was not allowed to give out advice on what should be said.  Her role was only to explain how the Tribunal process worked.  In her explanation, she outlined the requirements to make a positive finding and explained that without direct evidence of racial prejudice by one of the participants (such as an uttered or written slur), my prospects for winning were very slim.  And of course, I had no direct evidence of any of the participants making any racially-tinged comments.

At this point, there are two connected things to note which I will expand on in the next chapter.  First, I decided to do this as a DIY project and not hire a lawyer.   I didn’t want to invest the money in what was basically a lost cause.  I did believe though, that while I was the first to take this step, I might not be the last and my experiences could be used by others down the road.  However, by going the DIY route, I had introduced ambiguities into my application which were not caught until the process had begun; such ambiguities made the process that much more difficult to resolve.  My bad.

Secondly, the Code is divided into several parts, but provides two broad means with which to apply: Part I is ‘prohibited discrimination’ meaning one must have direct evidence of racial discrimination; Part II is ‘constructive discrimination’ which is discrimination based on exclusion.  An example of Part II discrimination is the lack of a wheelchair ramp into a building which excludes wheelchair bound persons from entering the building.  When I made my application, I was not specific about which part of the Code I was applying under and the assumption from the Tribunal was that it was Part I.  This lack of clarity would play a big part in my interaction with the Tribunal.

IV

The wheels of justice turn slowly, or so I had been told.  This was the case in my dealings with the Tribunal.  All told, the process from end to end took about 18 months, with most of the time spent in waiting for word from the Tribunal on the overall matter.  I really did not have expectations with regard to how much time would pass for a decision, but accepted the idea that better something important receives careful deliberation, rather than a rush to judgement.  In the case of the Tribunal, while their rulings do not usually form law, the do form a precedent of sorts and are subject to appeal into the formal court system. The process must be seen as being objectively fair.

My attitude toward the process was to proceed in good faith as much as I could, so I limited any public discussion of the case, and was reluctant to discuss the details with anyone but my immediate family and close friends.  I did believe that certain people – the father and son for example – had a right to know what I was up to, but in order to protect them and myself, I only revealed enough to relay the information that I had found a legal avenue to pursue that was outside the confines of the legal rights waiver in the registration form.

The Tribunal application procedure is designed to make it easy for someone to do it themselves.  It is an online form-based process and all dealings can be done over email.  All I had to do was think about things and then write it out.  Despite the seeming ease of it all, there is a secondary effect of having to think about things deeply enough to show connections.  For example, one can only cite incidents that have happened within the past year unless the incident bears a direct connection to the current incident.  When I wrote out my application I took a slow walk back in time to review some ugly incidents of past years in order to determine if those incidents were somehow related.  The only connections I could make were evidentiary for background purposes only, that I had experienced prejudice in the past.

Despite some of the same people being involved in those past incidents, I decided not to push their connection with my current issue.  However, I did connect the experience of the father and son with my story, even though it had occurred outside the 12 month timeframe.  When I was done, I had pages of information including contextual information regarding my overall experiences with racial bias while involved with OLA lacrosse.

I must pause to categorically state that I do not believe that the OLA – in the large sense of the membership – is in any way, shape or form, racist or racially prejudiced.  The vast majority of OLA members are open-minded and good people, average and tolerant in their views, perfect examples of Canadians living in our multicultural country.  Everyone has their out-group prejudice, but by and large these views never make it to serious discussion and when push comes to shove, such views are abandoned in favour of a larger, community-oriented perspective.  However, I have encountered bigotry in the OLA and I have encountered bigotry with persons in positions of authority.  I am sure all OLA members have come across such persons from time to time.  While it is not rare to experience this, it is not common either.

Since the Tribunal application process is all on-line, I sent in the forms in late August, 2015 and received a reply from the OLA lawyer shortly after.  Understandably, they asked for the entire application to be dismissed on the condition that it did not qualify under the grounds allowed by the Code and that I had rejected participating in the OLA appeals process.  There was some back and forth about this, but this became the main position of the OLA.  Since they believed the application was invalid, they were not obligated to answer any of the complaints it contained.  A tinge of irony there considering the treatment of the father and the son with regard to the release request a year and half before.

In October, while reviewing the response from the OLA lawyer, it occurred to me that my original application was unclear with respect to which section of the Code I was applying under.  Recall that there were two broad areas to apply: direct, or prohibited discrimination, and indirect, or constructive discrimination.  When I re-read the application, I realized that I was not very clear upon which section I was applying, so I requested that the grounds of constructive discrimination be added.  Here is the gist of what I meant:

Most everyone involved in lacrosse knows that there is a special relationship with regard to Indigenous people and the game of lacrosse.  Whether they are fully aware of the nature of that connection or not is one thing, but even the most basic lesson on the origins and history of lacrosse points to some sort of special relationship.  I was specific with my final statement in the OLA appeals hearing when I said “Mohawk man.”  For all intents and purposes, this is what I am referring to – that lacrosse has a meaning to Mohawk people (at the very least) that goes beyond the bounds of the usual relationship between a group of people and a modern sport.

One could make the case that such special relationships exist between other people and sports; Canadians and hockey, Americans and football, the English and soccer.  However, in the case of Mohawk people, there is a long documented history of the origins of lacrosse as a spiritual and ceremonial medium.  (The 2015 World Indoor Lacrosse Championships held in Onondaga, New York attested to this relationship.)

Therefore, based on this relationship between Mohawk people and lacrosse, preventing Mohawk people from participating in lacrosse based on the factor of a procedurally unfair process was grounds for a Code complaint of discrimination.  Let me be clear about my argument here: everyone who is denied participation in lacrosse because of an unfair disciplinary process is being discriminated against.  However, the question I posed to the Tribunal needed to be specific to the Code, based on the grounds and the spirit of its application.  I didn’t need to prove that some person had denied me access to OLA lacrosse because they had an obvious and glaring condition of their racial prejudice; I had to prove that denying access to a spiritual and ceremonial medium based on an unfair disciplinary process resulted in discrimination under Part II of the Code.  To prove this I had to provide evidence.

Luckily I had saved everything from my previous encounters with the Zone and the OLA, all emails, documents, policies, etc.  I had also gathered quite a bit of material from the other parties involved, the father and son, the former club Director of Box Lacrosse, etc.  There was a lot of information to sort through.  However, it would also be helpful to have testimony from witnesses, from persons involved or knowledgeable about the situation.

There were folks who were aware of the basics of what I was trying to do and some had offered to help.  I was grateful for these offers – a few submitted statements via email and others pledged to testify if it came to that.  During November and December I heard rumours that certain persons associated with the Zone were talking with members of the club in the background, informing them of the severe consequences should they have anything to do with me or support my cause.   One potential witness refused to help me because of a conversation she had with the Zone Director who implied that should she help me, it would have a detrimental effect on her family’s participation in lacrosse.  As disgusting as this was, it was a clear (and wholly ironic) indication of witness tampering, which is against the rules of the Tribunal.  I immediately put in a complaint to the Tribunal about this, but was denied recourse due to the fact that I did not present actual evidence of this interference with witnesses and, if I had evidence, I could present this at the Tribunal hearing.

V

In March 2015, a full 8 months after I had submitted my application to the Tribunal, a preliminary hearing was scheduled via teleconference with the Vice-Chair, the Tribunal legal representative who would hear my case, and the OLA representative, which was their lawyer.  The significance of this meeting was not lost on me.

A preliminary hearing is held in order to establish the validity of the complaint and to clear up any problems with the application.  The key question in my case was whether or not there was enough evidence for a chance at a successful outcome should the matter go before a full Tribunal hearing.  Preliminary hearings are established to determine the probable outcome of an issue; if there was not enough evidence, the complaint was spurious, or the Code was not applicable, the Vice-Chair could decide that the matter should not proceed to a full Tribunal hearing for the sake of efficiency and to save the public expense of putting one on.

When you present a complaint to the Tribunal, you are really asking them to answer a question between two parties in dispute.  Both sides give their answers to the question being asked and then present a statement of the evidence in their possession.  The Vice-Chair then validates the statements and evidence using a series of tests based on whether the Code applies to the matter and how substantial the evidence is.  Since I was the complainant it was up to me to show how the Code applied in my case and that I had legitimate evidence to prove it.  The burden of proof was on me.

During the preliminary hearing the Vice-Chair asked questions about the nature of my application in order to clarify what incidents were to be included.  We agreed that the events involving the father and son, while exceeding the 12 month time limit, were directly connected to my complaint and would be considered as eligible.   She then asked me to explain why I was bringing this application forward and what evidence I had.  I explained my story, tried to connect the dots and show how the OLA disciplinary process could result in discrimination as applicable under Part II of the Code.

During the preliminary hearing, the Vice-Chair made two important comments that will come into play in the next section: at one point, while asking me to attempt to connect the string of incidents with the Code, she stated that she agreed that the treatment was horrible and unnecessary.  This was of great relief to me, to have someone outside of the OLA, someone not directly involved in Ontario lacrosse or biased to my cause  recognize that the process was not a good one.  Secondly, the OLA lawyer re-iterated that the application should not go forward because I had abandoned the OLA appeals process and did not give it a fair shake.  The Vice-Chair explained that this was not reason enough to halt the application because the Appeals process was at the centre of the complaint itself.  (In the next chapter I will expand on these concepts in more detail in order to show you how you can protect yourself.)

Once we had made our submissions to the Vice-Chair she thanked us for being there and the call ended.  It was a nerve-wracking experience, one in which you can talk, but are left with the impression of not being sure if the right message is being conveyed.  I had my doubts as to whether I was on the mark, but it was what it was and it was time for me to move forward.  I was satisfied that I had even reached a hearing stage, even if it was only preliminary, because I knew that any decision the Vice-Chair made, it would be made in writing and be posted in public for anyone to see.

Spring came and went and my suspension period ended.  I got back into coaching with the club, but under a very different footing; I was reluctant to be involved at the board level.  The same people were still in positions of authority and as far as I was concerned as long as I did not have to interact with them, a sense of détente could be established and they would leave the club alone.  Since the matter was still outstanding in a legal sense, I would not involve myself directly with the club’s business, nor would I talk about it.  I was still under my self-imposed rule of operating in good faith and letting the system do as the system ought to do.

In June 2016, I received the ruling from the Vice-Chair and, as expected, I was not successful in my application to have the question heard by the Tribunal.  But it was not all over.  In her ruling, the Vice-Chair only considered the application in respect to direct discrimination and stated that I had no evidence of any direct discrimination, which was true.  However, her ruling did not contain any reference to indirect discrimination which I had included in my revised application.  I was a little surprised by this omission, but it gave me grounds to appeal:

[24] In conclusion, I find that the applicant has no reasonable prospect of success with the allegation that the respondents suspended him or were procedurally unfair to him, as alleged, because of his race, ancestry or creed.  He did not advise the Tribunal of any evidence he has or would have to establish that his race, ancestry or creed was one of the reasons for the respondents actions and decisions, nor was he able to link those grounds to how his case was processed by the respondents.

I replied to the Tribunal with my appeal application in early July outlining how indirect discrimination applied in my case.  There was already legal precedent where Part II was not considered by the Vice-Chair and was successfully appealed.  I heavily cited this case in my appeal, hoping to have the Vice-Chair look at my matter with Section II in mind.  I sent in the appeal application and moved on.

The summer came and went, much fun was had with the team I was coaching, and it was all well-worth it.  Autumn came and went, winter settled in, Christmas and the New Year passed into history.  By early February 2017 I had my reply from the Tribunal and the appeal was denied.  I was a little disappointed with the final outcome and I believe that I had a good case for judicial appeal to the Divisional Court, but decided that at this point, I had all I needed to tell my story to you.

Since I will refer to the Tribunal judgements in the next section, I will not detail them here.  However, I am satisfied with the process and I believe it worked as it should have.  I am not a lawyer and have no legal training, but I believe the DIY process with the Tribunal can be useful.

Epilogue

At any point in this journey I could have dropped it and walked away.  I could have simply served out my suspension and let it be a lesson learned, but I could not.  The OLA disciplinary process is in such disastrous disarray that it cannot be used to determine anything resembling a fair outcome.   There may be well-meaning people operating in boards and zones, and even on the OLA Board of Directors, but no matter how well they believe they are doing, they are supporting a system that can be used by the unscrupulous to suppress and oppress.   The OLA must change this.

Do I believe that racism, sexism or other odious ‘isms’ exist in the OLA?  It should be no surprise that I do.  I have seen evidence of these isms firsthand.  Often they go unreported or, when there is a report, there are conditions placed on incident that most people can’t possibly satisfy or simply let it drop.  IN other cases, the fear of reprisal against them or their child makes silence an attractive option.

The problem is that such incidents, while present, only represent the experience of a few and if these things go unreported, or get lost in the secrecy and gossip that surrounds the OLA, the memory of their impact fades.  Any lesson to be gained from such experiences, are also lost.  So let me ask you a question: the OLA has a harassment policy, how well is it working and when was the last time you saw a report on its effectiveness?

The issue I am presenting goes beyond the confines of a harassment policy or any social ism that plagues a modern youth sporting organization.  What I experienced is a risk that all members take when they sign up for the OLA because there is absolutely nothing stopping anyone in a position of authority from doing what pleases them, for whatever reason they may dream up.  The OLA can post as many policies as they wish, but there is no standard by which they can be enforced.  If the OLA Board of Directors believes that they can exempt themselves from the application of a Code of Conduct, they can.  It says so right in their bylaws and rules and regulations.  The only legal means available to members is waived when they sign a registration form, or is implied when they participate.  What started out as a protective measure that all youth sporting organizations undertake has turned into something else altogether now.  It isn’t something that has the potential to be misused, that misuse has already happened.  And not just to me, but likely to many others over the years.  It has to stop.

Every single member of the OLA is at risk for harm.  You now see how it works.  Ask around, do your own research, talk to others who have been through this process.  You can invest all the resources you want in our beloved sport, you can invest all the goodness at your disposal, all the money for your kid’s equipment and team fees, all the time and effort into getting a club or a league running for the benefit of others and if someone doesn’t like you, doesn’t like the way you look, or acts on gossip, you can have all that work erased.  It has happened to others and it has happened to me – are you next?

Next: Part 6 Protect Yourself