The group of elite female players fighting the use of artificial turf at the 2015 Women's World Cup played their legal card yesterday.
The women filed a complaint to the Human Rights Tribunal of Ontario. The HRTO is a quasi-legal body that may be unfamiliar to those outside of the province. In an effort to understand the legal thinking behind the women's decision to file with the HRTO, and to make an educated guess at the possible outcomes of the filing, we present the following look at what the HRTO is, what its history of decisions suggests, and what jurisdiction it has.
WHAT IS THE HRTO?
Simply put, the HRTO resolves claims of discrimination and harassment brought under the Ontario Human Rights Code. It claims it does so "in a way that is fair, just and expeditious."
The Ontario Human Rights Code ("The Code") is "a law that protects people in Ontario from discrimination and harassment in the areas of employment; housing; goods, services and facilities; contracts; and, membership in trade and vocational associations."
Specifically, The Code prohibits discrimination and harassment on any of the following grounds: race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, sex, including sexual harassment and pregnancy, sexual orientation, gender identity, gender expression, family status, marital status, age and, in claims about housing, receipt of public assistance.
All good stuff. But, does it apply in this case? After all, none of the complainants are from Ontario. Rather, they are foreign nationals voluntarily participating in an international soccer tournament. For now let's ignore that question. We will move forward in our examination of the HRTO under the assumption that the complainants are eligible to have the case heard.
If eligible, the claim is almost certainly focused on the need to provide equal facilities to the women.
WHAT DOES THE HRTO CONSIDER TO BE DISCRIMINATION?
First of all it's important to know that "not all unfair conduct or unequal treatment is covered by the Code." A large part of the claim is based on a perception that it's unfair to make the women play on turf when the senior men never have had to.
It's unclear whether this perception is legally relevant. For that to be the case, The Code must apply. Once again, The Code only applies in cases where unequal treatment was found to have occurred in the areas of employment, housing, goods, services and facilities, contacts and membership in trade and vocational associations.
Since the only possible area that could apply here is facilities, the history of international soccer events in Ontario appears to be relevant. It's possible that the normal use of soccer facilities in Ontario will factored as well.
The men's professional team the Ottawa Fury play on turf and the 2007 men's u-20 World Cup was played on turf in Ontario.
For the sake of the discussion, let's assume the pro team play is found to be irrelevant. However, it's difficult to see how the HRTO would view the 2007 u-20s as irrelevant since it would seem to be in violation of its own mandate to not make distinctions based on age.
Another argument the women may make is that forcing them to play on turf constitutes an "undue hardship."
On that, The Code states that "employers, landlords and service providers (the relevant body here) are required to accommodate (make alternate arrangements for) human rights related needs unless doing so would cause undue hardship due to cost or health and safety concerns.
Is playing soccer on grass a "human rights related need?" Based on the examples provided by the HRTO -- providing sign language interpreters for persons who are Deaf when receiving medical treatment at a hospital, providing time off work to attend pregnancy-related medical appointments, or modifying dress codes to allow the wearing of religious clothing -- that might be a stretch.
There would seem to be a ready made defence for the CSA in the language that allows for flexibility in facilities if providing accommodations would constitute an undue hardship to the CSA based on cost.
DOES FILING THE CLAIM GUARANTEE THE HRTO WILL HEAR THE CASE?
Short answer: No.
Now that the case has been filed the HRTO will review the case and will either move forward, dismiss, or ask the applicants to submit more information.
The entire rules of procedure protocol is too involved to summarize here, but we will highlight a couple potential pitfalls below. If you'd like to read the rules in full you can do so here: http://www.hrto.ca/hrto/sites/default/files/Whats%20New/Section%2034%20Rules%20-%20ENGLISH%2026-05-10.doc
The biggest complication for the women might be timing. The HRTO requires that the complain be made within a certain timeframe.
Specifically, it requires that it's filed "within one year of the date on which discrimination is alleged to have occurred."
This is where things get very dicey for the women on two fronts. If their argument is that the discrimination occurred at the time the tournament was awarded then the one year period has passed. The women must then argue for an extension, which can be allowed in certain cases.
For that to happen, the HRTO must find that there was "a good reason for filing late and that the delay will not negatively affect other people involved in the application."
It's reasonable to assume that the CSA will argue that requesting the switch this late would negatively affect them.
The other possibility is that the women are arguing that the discrimination will occur when they play on the turf. In that case discrimination has yet to occur. The HRTO is not set up to mandate change, but rather to award damages to those who have been discriminated against.
That begs the most relevant questions of all.
WHAT CAN THE HRTO DO? WHAT ARE THE WOMEN HOPING TO ACCOMPLISH?
The HRTO can award damages. Since it is not a court, but rather a quasi-legal tribunal, it CANNOT FORCE THE CSA OR FIFA TO PLAY ON GRASS. It also only has jurisdiction in Ontario, where only Ottawa is hosting games.
This is where it becomes difficult to understand why the women chose this venue.
We can only speculate.
One possible reason is that there is a lower threshold in place for the the HRTO to hear a case than there would be for the case to be heard in a Canadian court.
In 2009, the BC Supreme Court ruled that it did not have jurisdiction to hear a gender discrimination case brought forward by female ski jumpers against VANOC (Vancouver Olympic Games Organizing Committee) and the IOC. In that decision, the court expressed sympathy to the women's case -- they wanted to force the Vancouver Olympics to include women's ski jumping -- but was clear that it did not have the mandate to force the IOC to change its program.
With VANOC, the court ruled that it was not within VANOC's power to force change upon the IOC and therefore VANOC could not be held responsible for a decision made by the IOC.
The Supreme Court of Canada refused to hear an appeal of that verdict. As such the BC ruling could be argued to have legal precedence in this case.
By going to the HRTO the women do not have to overcome that legal precedent.
In terms of jurisdiction the only possible argument the women could be making is that Ontario is the home province of the CSA so the filing must be made in Ontario.
ALL THAT SAID IS IT STILL POSSIBLE THAT THE WOMEN COULD WIN?
If by win you mean "receive compensation" then yes. If you mean force the tournament to be played on grass then, as illustrated above, no.
It's very likely the women understand they can't force the change to grass through legal means and are instead looking to use a ruling in their favour to shame the CSA into making the change by gaining the Canadian public's sympathy.
Based on the past history of the HRTO it's possible they might get a favourable ruling (if they can get the case heard, which is likely their biggest obstacle).
The HRTO is an exceptionally left leaning body. Even in a left leaning country like Canada, it has made extremely controversial rulings in favour of complainants.
As one example, in 2009, It awarded a black woman $5,000 after it determined she had been a victim of racial profiling by police. On the surface that's hardly controversial until you read the judgement. There, the HRTO admitted It found no evidence that police officer "consciously subscribes to any such (racist) attitudes or belief systems." Additionally, it found "no direct evidence that the complainant's race or colour was a factor in the incident."
Rather, the HRTO concluded that "the officer's actions were motivated by a deep-seated prejudice...because a white person in a position of authority has an expectation of docility and compliance from any non-white person they encounter."
The ruling was widely criticized with many pointing out that assumption of systemic racism -- even when the possibility of its existence is viable -- should not be enough to label someone as having made a racist decision. In an effort to provide the complainant with a fair hearing, the HRTO had violated the defendant's right to be assumed innocent.
That's a common complaint about the HRTO (and a quick Google search of HRTO decisions makes for some interesting reading). Since it's not a court, it operates on a reverse onus basis -- rather than a complaint needing to prove they were discriminated against, the defendants must instead prove they didn't discriminate.
Whether that's a fair way to operate isn't for this space to determine, but it is likely relevant to the question of why the women chose to file with the HRTO.
SO WHAT HAPPENS NOW?
Basically we wait. The first step will be the HRTO determining whether they will hear the case. That should happen fairly quickly (they have 10 work days to respond--Oct 15).
It's possible the CSA will file a application for a Summary Hearing. A SH is used to determine whether the case "should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed."
The HRTO can also call a SH on its own.
If the case does proceed the HRTO has a mandate to push for mediation to resolve the case. This could be another goal of the women, who have long claimed that FIFA and the CSA refuses to work with them to find a solution.
If mediation does not resolve the dispute (and the HRTO cannot force the two parties to agree to mediation) then their will be a public hearing where witnesses are called and evidence is presented in support and in defence of the case (again it's not a trial because the HRTO isn't a court).
Ample time must be provided to allow both sides time to receive and review all relevant papers and evidence. Typically, at least 45 work days are required.
Even with the request for an expedited hearing it's hard to image this being heard before the new year.
Basically this will either be thrown out and (likely) done (they could still file in another jurisdiction -- likely BC) in the next month, or it's going to drag on for a few more months yet.