(Approved February, 2016)
1. These terms will have these meanings in this Policy:
a) “Appellant”- The party appealing a decision.
b) “Days” - Days including weekends and holidays.
c) “In writing”- A letter, fax or email sent directly to Softball Canada.
d) “Member”- All categories of membership defined in the Softball Canada Bylaws, as well as to all individuals engaged in activities with or employed by Softball Canada, including, but not limited to, athletes, coaches, officials, volunteers, directors, officers, team managers, team captains, medical and paramedical personnel, administrators and employees (including contract personnel).
e) “Respondent” - The body whose decision is being appealed.
2. The purpose of this Policy is to provide Members the ability to appeal certain decisions made by Softball Canada without recourse to external legal procedures.
Scope and application of this Policy
3. Any Member, subject to the provisions of Section 4 and 5, of Softball Canada who is affected by a decision of the Board of Directors, of any Committee of the Board of Directors, or of anybody or individual who has been delegated authority to make decisions on behalf of Softball Canada will have the right to appeal that decision, provided there are sufficient grounds for the appeal as set out in Section 8 of this policy.
4. This Policy will apply to decisions relating to conflict of interest, eligibility, selection, discipline, membership or any other matter deemed appropriate by Softball Canada.
5. This policy will not apply to decisions relating to:
a) the playing rules of softball
b) competitions in Canada but not governed by Softball Canada, such as the Olympic Games, Pan American Games, World Championships and similar events governed by other international organizations.
c) Infractions for doping offenses, which are dealt with pursuant to the Canadian Anti-Doping Program or any successor policy;
d) the substance, content and establishment of National (includes all tours, events, training camps, Games or event teams, at both the junior and senior level) Team selection criteria (includes criteria used to select team members);
e) Matters that are decided by and within the jurisdiction of the general membership of Softball Canada such as enactment of an amendment of the Constitution, By-Laws and Special Operating rules;
f) budgeting and budget implementation;
g) operational structure, committees, staffing, employment or volunteer opportunities;
h) Volunteer appointments and the withdrawal of those appointments;
i) employment unless otherwise stated;
j) Commercial Matters;
k) Discipline matters and decisions arising during events organized by entities other than those within Softball Canada, which are dealt with pursuant to the policies of these other entities;
l) Disputes arising within competitions which have their own appeal procedures;
m) Decisions made under this Policy.
Timing of Appeal
6. Members who wish to appeal a decision will have ten (10) days from the date on which they received notice of the decision, to submit in writing to Softball Canada:
a) Notice of their intention to appeal;
b) Contact information;
c) Name of the Respondent and any affected parties, when known to the Appellant;
d) Date the Appellant was advised of the decision being appealed;
e) A copy of the decision being appealed, or description of decision if written document is not available;
f) Grounds for the appeal;
g) Detailed reasons for the appeal;
h) All evidence that supports the appeal;
i) The remedy or remedies;
j) An appeal fee of two hundred fifty dollars ($250), (certified cheque or money order payable to Softball Canada) which will be refunded if the appeal is successful.
7. Any party wishing to initiate an appeal beyond the ten (10) day period must provide a written request stating reasons for an exemption to the requirement of Section 6. The decision to allow, or not to allow an appeal outside the 10-day period will be at the sole discretion of the President (or designate appointed by Softball Canada) and may not be appealed.
Grounds for Appeal
8. A decision cannot be appealed on its merits alone. An appeal may be heard only if there are sufficient grounds for the appeal. Sufficient grounds only include if the Respondent:
a) Made a decision for which it did not have authority or jurisdiction as set out in governing documents;
b) Failed to follow procedures as laid out in the bylaws or approved policies of Softball Canada; and/or;
c) Failed to make its decision in accordance with criteria and/or principles established and approved by the appropriate body for the purpose of the decision in question.
9. The Appellant will bear the onus of proof in the appeal, and thus must be able to demonstrate, on a balance of probabilities, that the Respondent has made an error as described in Section 8.
Screening of Appeal
10. Upon receiving the notice of appeal and all other required documents, the President will review the appeal and will determine whether, the appeal falls under the scope of this Policy, if the appeal was submitted in a timely manner, and if there is sufficient evidence to support an appeal based on one or more of the grounds set out in Section 8. Sufficient evidence will mean that all of the evidence taken together, if unexplained or not contradicted, could support a finding of one or more of the grounds for an appeal as set out in Section 8 of this policy. If the President considers it appropriate in the circumstances, he/she may delegate this function to any other appropriate person.
11. If the appeal is denied, the Appellant shall be notified of this decision in writing, giving reasons. This decision is at the sole discretion of the President (or designate) and may not be appealed.
12. If the President (or designate) is satisfied that there are sufficient grounds for an appeal, he or she, upon their sole discretion, shall establish an Appeals Panel (the “Panel”) as follows:
a) The Panel will be comprised of one (1) or three (3) individuals, at the President’s sole discretion, to hear the appeal 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.
b) In the case of a three (3) person Panel:
i. The Panel’s members shall select from themselves a Chairperson.
ii. A quorum will be all three Panel members.
iii. Decisions will be by majority vote, where the Chairperson carries a vote.
c) In the case of a one (1) person Panel, a quorum will be the sole Panel Member and the decisions will be decided solely by the single Panel Member.
Administration of Appeal
13. Appeals shall be administered by the National Office of Softball Canada under the direction of the Chief Executive Officer. Administration of the appeal(s) may be contracted by the Chief Executive Officer of Softball Canada to an outside source, or agency, and in the event that it is, all of the duties and functions of the Chief Executive Officer or of the National Office as set forth herein will be carried out by such person or agency.
14. Where two or more Notices of Appeal have been delivered and it appears to the Chief Executive Officer of Softball Canada (or other person named to direct the administration of the appeals, if such to be the case) that:
a) They have questions of interpretation or factual bases in common;
b) The appeals arise out of the same circumstance or decision or decision making process; or
c) For any other reason there is sufficient commonality between or among the appeals that the appeals ought to be heard together,
The Chief Executive Officer (or other person named by the Chief Executive Officer to direct the administration of the appeals, if such be the case) may determine and so advise the Appellants that the appeals will be heard together by the one and same Panel and in that event the appeals shall be heard in that manner and dealt with as if one appeal.
15. Should an Appellant dispute the determination to have an appeal heard together with another or other appeals, the Appellant's only recourse shall be to raise the matter as a preliminary objection with the Panel and the Panel will either allow or disallow the objection and provide appropriate directions so that the Appellant's appeal can be otherwise heard in the event that the Panel allows the objection.
16. The Chief Executive Officer (or other person named by the Chief Executive Officer to direct the administration of the appeals, if such be the case), in cooperation with the Panel, will decide the format under which the appeal will be heard. This decision may not be appealed.
17. The hearing will proceed in any event, even if a Party chooses not to participate in the hearing.
18. In fulfilling its duties, the Panel may obtain independent advice.
19. If the matter under appeal relates to team selection, any person potentially affected by the decision of the Panel will become a party to the appeal. This is defined as a person whose continued participation in the sport may be directly or indirectly prejudiced by any decision of the Appeal’s Panel.
20. The Panel may direct that any other individuals participate in the appeal.
21. Unless otherwise agreed by the parties, there shall be no communication between Panel member(s) and the parties except in the presence of, or by copy to, the other parties.
22. The Panel may determine that the circumstances of the dispute warrant a preliminary conference:
a) The matters which may be considered at a preliminary conference include date of hearing, timelines for exchange of documents, format for the appeal, clarification of issues in dispute, any procedural matter, order and procedure of hearing, remedies being sought, identification of witnesses, and any other matter which may assist in expediting the appeal proceedings.
b) In the case of a three (3) person Panel, the Panel may delegate to its Chairperson the authority to deal with these preliminary matters.
23. Where it has been 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:
a) 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
b) The applicable principles and timelines set out in this Policy are respected.
Procedure for the Oral in-Person Hearing, an Oral Hearing by Telephone/ Telecommunications or Other Electronic Means Appeal
24. The Panel will govern the oral in-person hearing, an oral hearing by telephone/telecommunications or other electronic means appeal by such procedures as it deems appropriate, provided that:
a) The appeal hearing shall be held within 21 days of the Panel’s appointment.
b) The Appellant, Respondent and affected parties will be given 7 days written notice of the date and time of the appeal hearing.
c) Copies of any written documents which any of the parties would like the Panel to consider will be provided to the Panel, and to all other parties, at least 5 days in advance of the hearing.
d) Any of the parties may be accompanied by a representative or advisor, including legal counsel.
e) In the case of a three (3) person Panel and in the event that one of the Panel’s members is unable or unwilling to continue with the appeal, the matter will be concluded by the remaining two Panel members.
25. In order to keep costs to a reasonable level, the Panel will, as a normal course of action, conduct the appeal by means of a documentary hearing or documentary supplemented by telephone.
26. Within 10 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:
a) To void or confirm the decision being appealed;
b) To vary the decision;
c) To refer the matter back to the initial decision-maker for a new decision
27. The decision will be considered a matter of public record. A copy of this decision will be provided to the Parties and to Softball Canada. Where time is of the essence, the Panel may issue a verbal decision or a summary written decision, with reasons to follow, provided the written decision with reasons is rendered with the appropriate timelines.
28. If the circumstances of the dispute are such that this policy will not allow a timely appeal, the Panel may direct that these timelines be abridged. If the circumstances of the disputes are such the appeal cannot be concluded within the timelines dictated in this policy, the Panel may direct that these timelines be extended.
29. The appeal process is confidential and 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.
30. All differences or disputes will first be submitted to appeal pursuant to the appeal process set out in this policy. If any party believes the Panel has made an error such as those described in Section 8 of this Policy, the matter shall be referred to arbitration, such arbitration to be administered under the Sport Dispute Resolution Centre of Canada, as amended from time to time.
31. For any matters related to the Athlete Assistance program nomination or de-carding, all appeals must follow the Policies and Procedures of Sport Canada’s Athlete Assistance Program (AAP), Section 13.1 http://pch.gc.ca/progs/sc/pol/athlete05/1_f.cfm
32. This policy shall be governed and construed in accordance with the laws of the Province of Ontario.
33. No action or legal proceeding shall be commenced against Softball Canada in respect of a dispute, unless Softball Canada has refused or failed to abide by the provisions for appeal and/or arbitration of the dispute, as set out in this policy.