Sagen & Others v. VANOC 2010 (case report)

Sources: see an interesting blog account of the trial: http://vanessapierce.wordpress.com/ or read the full case report here: http://www.vancouver2010.com/dl/00/69/78/-/69784/prop=data/1y2401t/69784.pdf

The facts of the case of Sagen & Others v. Vancouver Organizing Committee for the 2010 Olympic & Paralympic Winter Games (VANOC) has been reported in brief earlier on the blog. Here is the full case report.

The case was brought by 16 highly-ranked (current and retired) female ski jumpers who all claim that female ski jumpers are being excluded from competing at the 2010 Winter Olympic Games because of their sex, in violation of their equality rights under s.15 of the Canadian Charter of Rights and Freedoms. [1]

They argued in the Supreme Court of British Columbia that as the VANOC is a federally incorporated organisation, it had duties under the Charter to make provision for women’s events if it is also hosting male ski jumping competitions. The claimants therefore wanted VANOC to stage a female ski-jumping event, or alternatively to remove the male ski-jumping event (although the claimants suggest at [6] that the IOC would authorize VANOC to host a female event rather than cancel the male event).

By contrast, VANOC suggested that the claimants were suing the wrong defendants and that they were sympathetic to female ski jumping (and indeed remained ready to host an event), but their hands were effectively tied by the IOC [4].

Although the Court ruled that the exclusion of women’s ski jumping from the Winter Olympic was discriminatory and was for no other reason than their gender [7], her Honorable Madam Justice Fenlon then went on to state that as not every discrimination is actionable, and given the degree of IOC control, VANOC was not in breach of the Charter.

The main arguments of the case can be summarised by the following two questions:

1)       Does the Charter apply to VANOC?

Broadly speaking, the Charter only applies to government responsibilities [10]. For the claimants to succeed, they therefore had to argue that VANOC was either controlled by government, or carrying out a governmental program.

The problem for the claimants was that although the Canadian, British Columbia, Vancouver and Whistler governments were all represented on VANOC, there was no evidence of any governmental day to day governance [24] or control over VANOC finances [29], and indeed VANOC operated ‘more like a franchisee of the IOC, than a purchaser of a product’ [39]. Even the degree of control operating under s9 of the Trade Marks Act was not conclusive evidence [48].

However the claimants did succeed on the latter argument, and at [58] the Supreme Court held that staging the 2010 Winter Games was a governmental activity, even though it had created a private entity (VANOC) to deliver the actual event.

 

2)       Is VANOC in breach of s15 of the Charter?

Having established this, the next problem to be overcome was whether VANOC was in breach of the Charter. In doing this, the Court considered three issues:

i)                     What was the benefit at issue? – the opportunity to participate in the 2010 Winter Games at an Olympic Ski Jump Event [75]

ii)                   What is the appropriate comparator group? – Male ski jumpers [75], indeed the court held that Lindsey Van holds the facility record at Whistler [66]

iii)                  What is the discrimination? That the claimants are being treated less favourably on account of their gender [75]

Having established that this discrimination exists, it is then important to understand why and this effectively is the crux of the claimant’s case. The IOC criteria for the inclusion of new events were governed by rule 47 of the Olympic Charter (which effectively laid down certain criteria regarding participation and standards of competition). The problem is not that the rule itself is discriminatory (if anything while it applies equally to men and women, the rule sets a lower standard for participation in women’s events), but rather that its application to ski jumping is discriminatory. This is because while women’s ski jumping does not meet the criteria, neither does the men’s events [86], but they are still included under a ‘grandfather clause’ because they had previously been an Olympic event. As women’s ski jumping had not historically been included, this event was not eligible and therefore constituted discrimination.

The problem with this argument is that the claimants were not asking for a women’s ski jumping exhibition event, but rather an Olympic event [108] and this was beyond VANOC’s capacity. Indeed, the claimants agreed at [116] that VANOC does not have the authority to stage an Olympic Event without the consent of the IOC (while VANOC itself could stage a women’s ski jumping event at the venue, without IOC approval it would not be an Olympic event. Similarly, both the International Ski Federation (FIS) and many National Olympic Committees (NOCs) have stated that they will only participate in IOC sanctioned events during the Olympics).

Given this conclusion, and the IOC’s degree of control, VANOC was not therefore in breach of s15 of the Charter by implementing the IOC Programme of events.

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About Kris

Senior Lecturer in Law, Staffordshire University; British Gymnastics Senior Coach / Assessor / Tutor

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