Casselman v. Ontario Soccer Assn.
1993-10-25
Ontario Board of Inquiry
Erin Casselman by her litigation guardian Steven Casselman and Suzanne Ouellet by her litigation guardian Bernard Ouellet
Complainants
v.
Ontario Soccer Association
Respondent
Date of Complaints: July 30 and 31, 1992
Date of Decision: October 25, 1993
Before: Ontario Board of Inquiry, Lorne Slotnick
Comm. Decision No.: 559
Appearances by: Anthony Griffin, Counsel for the Commission Casey Van Maris, Brian Avey and Clifford Dell, Counsel for the Respondent
ATHLETICS — female denied opportunity to play soccer — SEX DISCRIMINATION — participation in athletics — AFFIRMATIVE ACTION — athletic team as affirmative action program
Summary: The Board of Inquiry finds that the Ontario Soccer Association discriminated against Erin Casselman and Susan Ouellet because of their sex when it permitted them to be barred from playing soccer on a boys' team in a soccer tournament.
Erin Casselman and Susan Ouellet were 16 and 15 years of age at the time of the Ontario Unico Cup in 1992. They both played soccer for the Belleville Youth Soccer Club, an under-16 boys' "rep" team that played similar teams in other communities. At the quarter-final game of the Unico Cup in Guelph, the two girls were told that they could not play because their team might be disqualified if girls played.
The Board of Inquiry finds that the Ontario Soccer Association maintains rules that allow it and its constituent bodies to bar girls and women from playing on the team of their choice or in certain competitions for no other reason than their sex.
The Board of Inquiry concludes that these rules violate the Ontario Human Rights Code and that the complainants were discriminated against when the rules were applied to them.
The Board of Inquiry orders the Ontario Soccer Association to pay each complainant $3,500 as compensation for the humiliation she experienced. It also orders the Ontario Soccer Association to ensure that its rules do not bar girls and women from participating on boys' and mens' teams
Cases Cited
Blainey v. Ontario Hockey Assn. (1986), 1986 CanLII 6547 (ON CA), 7 C.H.R.R. D/3529 (Ont. C.A.): 25, 33
Blainey v. Ontario Hockey Assn. (No. 1) (1987), 1987 CanLII 8494 (ON HRT), 9 C.H.R.R. D/4549 (Ont. Bd.Inq.): 26
Blainey v. Ontario Hockey Assn. (No. 2) (1988), 1988 CanLII 8886 (ON HRT), 9 C.H.R.R. D/4972 (Ont. Bd.Inq.): 38
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 36
Legislation Cited
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11: 25
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 1: 32
s. 14: 33
s. 41(1): 36
1Erin Casselman and Suzanne Ouellet are high school students in Belleville, Ont. They are also avid soccer players. In 1992, they were the only girls on their under-16 "boys'." team. The team was good enough to make it to the quarter-finals of the Ontario championships. They were all set to play in the big game, held in Guelph on July 12, 1992. But on the morning of the game, the two girls were told that if they played, the team would be disqualified because it was supposed to be an all-boys' team.
2Ms. Ouellet was 16 at the time, and Ms. Casselman was 15. They didn't play in the game because they didn't want to let down their team. However, they did complain to the Ontario Human Rights Commission that their right to equal treatment with respect to services without discrimination because of sex was violated on that day by the Ontario Soccer Association.
3The Ontario Soccer Association ("OSA"), based in Metro Toronto, is the umbrella group for soccer in the province. Brian Avey, the OSA's full-time executive director, gave evidence that about 144,000 Ontario residents play under the group's auspices. More than 80 percent of these are under 18, and about a quarter are girls and women.
4Within the OSA, there are twenty district associations, representing geographic regions of the province. Belleville, for example, is in the East-Central Ontario Soccer Association. Within these district associations are clubs, such as the Belleville Youth Soccer Club, where Ms. Casselman and Ms. Ouellet played. Most clubs, including the Belleville one, have two types of teams: "house league" teams, which stay in the community, and the higher calibre "rep" teams that play similar teams from other communities.
5Ms. Ouellet started playing soccer when she was 4, and had played on girls' teams before her family moved to Belleville in 1988. In 1989 and 1990, she played on the under-14 boys' rep team, because, she told the hearing, there was no girls' rep or house league team in Belleville. In 1991 and 1992, she moved to the under-16 boys' rep team. Both teams played in several tournaments, and Ms. Ouellet said she was never disqualified from any game.
6Ms. Casselman began playing soccer in Belleville in 1986, first on house league teams. In 1990, she played on a boys' rep team. In 1991, she was the only girl on her rep team, but was not disqualified from any of the tournaments. In 1992, she was together with Ms. Ouellet on the under-16 boys' rep team.
7In the first round of the 1992 Ontario championships, known as the Ontario Unico Cup, Ms. Casselman played for the team, but Ms. Ouellet was out with an injury. The team won, and went on to the quarter-finals in Guelph. Both girls were ready to play in what was clearly their most important game yet. On the morning of the game, though, Ms. Ouellet said she was told by the coach, Jim Wilson, that if the two girls played, the team would be disqualified because it was a boys' competition.
8Both girls testified that they felt they had no choice but to watch from the sidelines while their male teammates played. The team lost.
9It appears that it was not until June 30 — at least two months after the team had registered for the Unico Cup boys' division — that Clifford Dell, a senior OSA official in Belleville, discovered that the team was mixed. Mr. Dell testified that he told Mr. Wilson, the coach, that the presence of the girls could draw protests from rival teams. Mr. Dell added that Mr. Wilson said he would "correct the matter," apparently by ensuring that Ms. Casselman and Ms. Ouellet were not on the field on July 12.
10Mr. Avey testified that the whole problem could have been avoided had the team requested permission to play as a mixed team in the boys' under-16 division. Permission would have been granted, he said, but under the OSA policy, the tournament organizers — in this case, the OSA itself — must be made aware that a mixed team is being entered. He acknowledged that the OSA did nothing to ensure the team could play without protest between the time Mr. Dell discovered the presence of girls on June 30 and the game on July 12.
11Being benched at the last minute under these circumstances was obviously a crushing blow to both girls.
"I was angry, confused and embarrassed," Ms. Ouellet testified. "It was my team; I had every right to play . . . I made it fair and square, I was part of that team."
Ms. Casselman had a similar reaction. "I was good enough to play . . . I had earned my position on the team."
12After the July incident, the team went on to play in other tournaments, with Ms. Ouellet and Ms. Casselman. The two were not disqualified from any games.
13This year, Ms. Ouellet, said, she played in a ladies' league, because the human rights complaint was still unresolved and she did not want to cause further commotion. She said she would rather have played on a men's under-19 team because they have more practices and more playing time, travel to a wider variety of places and generally play a higher level of soccer.
14Ms. Casselman played this year in the same ladies' league, but said she regrets not trying out for the under-17 boys' team. She said she believes the players in the ladies' league are not as committed to the game and that her own play has suffered as a result of not playing "with the guys."
15The OSA appears confused about its own policy on whether girls and women can choose to play on boys' and men's teams, perhaps because, as Mr. Avey noted, the issue has rarely surfaced. Casey Van Maris, the OSA's president, told the hearing at the outset that the association does not deny girls the opportunity to play on boys' teams. But later, in final argument, he stated that OSA policy allows girls to play on boys' teams if no other (girls') teams are available.
16Mr. Avey spent some time explaining the OSA's written "mixed-team play policy." The two-paragraph policy, adopted in 1982, states:
The Ontario Soccer Association does not discourage mixed team play up to the age of puberty. However, after such age it is recommended that mixed team play meet with the approval of both the organizers and the parents.
Mixed team play only applies to each specific activity e.g. a House League. If a mixed-team wishes to compete outside that specific activity (e.g. a Tournament) it may only do so with the permission of the host of that Competition.
17Only after his attention was drawn to the exhibits he filed did Mr. Avey acknowledge that this policy has now been superseded by another, adopted in November 1992. It states as follows:
Up to the age of puberty, boys and girls may register to play on mixed teams. After the age of puberty, and where possible, separate girls' teams and boys' teams should be encouraged. The competition rules at tournaments, cup competitions, league games, and exhibition games must stipulate whether mixed teams are permitted.
18Mr. Avey described the OSA as an affirmative action organization that is committed to expanding opportunities for girls and women. He said the association's market research tells it that girls want to play on girls' teams and women want to play on women's teams. I have no reason to doubt this, but it is not what these complaints are about. These complaints are about those girls and women who want to play on boys' and men's teams.
19Mr. Avey said a number of concerns lie behind the mixed-play policy. He cited a medical concern — girls' bones mature more quickly than boys' — as well as the practical issue of providing separate dressing rooms, and what he called a philosophical issue: that the OSA does not want to be perceived as encouraging boys and men to be tackling girls and women. He also mentioned the possibility of insurance problems if there were more post-puberty girls on mixed teams, although he conceded that he has never been told this by any insurance company. And he said the policy attempts to localize decisions on whether mixed play is allowed.
20While a reading of the two above-noted policies leads to more questions than answers, it appears to me from hearing the OSA representatives that their policy aims to discourage mixed play and in fact allows local league and tournament organizers to ban it; at the same time, it acknowledges that in some situations mixed play will be necessary because girls who want to play have no access to girls' teams.
21Application of this policy means that local competition organizers working under the umbrella of the OSA can bar girls from boys' teams in some competitions. It also means that girls can be barred from boys' teams where a girls' team is available. For example, it appears that OSA rules might have barred Ms. Casselman and Ms. Ouellet from playing on their team had there been a girls' under-16 rep team in Belleville.
22Furthermore, Mr. Avey's statement that the Belleville team needed permission to play as a mixed team suggests that there are circumstances where that permission would be denied. Asked directly about this, Mr. Van Maris provided the most concise statement of OSA policy: he said permission must be asked to see whether there was another opportunity for the girls to play with girls, and if there was not, "then we are prepared to allow them in that competition."
23In summary, the OSA maintains policies that allow it and its constituent bodies to bar girls and women from playing on the team of their choice or in certain competitions for no other reason than their sex.
24This is in fact what happened to Ms. Casselman and Ms. Ouellet. They played on the same "boys'." team both before and after the Ontario Unico Cup competition in July 1992, but were told that their team might have to forfeit the game if girls played in that competition on July 12. Effectively, this barred them from the game simply because they were girls.
25Are the OSA's policies and its actions toward Ms. Casselman and Ms. Ouellet violations of the Human Rights Code [R.S.O. 1990, c. H.19]?
The obvious starting point is the well-known Blainey case (Blainey v. Ontario Hockey Association(1986), 1986 CanLII 6547 (ON CA), 7 C.H.R.R. D/3529), involving the 13-year-old who was barred from a team just because she was a girl. In its initial stages, the case dealt with a section of the Code that, in effect, exempted athletic organizations from complaints of discrimination on the basis of sex. The Ontario Court of Appeal ruled that section was contrary to the Canadian Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11], and the section was later removed from the Code.
26When the Blainey case, supra, was heard subsequently by a Board of Inquiry ((1987), 1987 CanLII 8494 (ON HRT), 9 C.H.R.R. D/4549), the Adjudicator noted that the hockey association's policy was to bar females from male teams if there was a comparable female team in the area. This appears very similar to, if not exactly the same as, the OSA's policy.
27The Board of Inquiry in the Blainey case, supra, also found that Ms. Blainey could have played on teams in the Ontario Women's Hockey Association, which would have provided her, the Board says, with "a meaningful hockey experience." But for honestly held reasons, Ms. Blainey wanted to play on a boys' team. The Board found that her rights under the Code had been violated.
28If anything, Ms. Casselman and Ms. Ouellet have a stronger argument because they had no option of a girls' team in their area. Like Ms. Blainey, they have honestly held reasons for wanting to play on boys' teams. But because they had no access to comparable girls' teams in their area, they could not play in the Ontario championships unless they played on a boys' team. But when they got to the quarter-finals as part of the boys' team, they were told girls couldn't play.
29Mr. Van Maris argued that the OSA did not violate the Code because the team did not ask for permission to play a mixed team in the Ontario championships. But it is clear there is no reason to ask permission except to enforce the OSA's rule that girls must play on girls' teams unless there is no alternative. The permission is thus part of the rule that allows the barring of otherwise qualified girls from teams and competitions.
30Mr. Van Maris also argued that the OSA cannot be said to have denied the girls access to the competition because it was the team coach, not the OSA, who told them girls could not play in the game. But the coach was acting on the advice of Mr. Dell, an OSA board member, who was attempting to alert the coach to OSA rules. I do not think the OSA can lay the blame on officials and teams that play under its umbrella. Nor can it justify a policy that is discriminatory by saying that decisions are made at the local level. The OSA has a responsibility to ensure that its policies and their enforcement are non-discriminatory both at the provincial level and throughout the regions and communities of the province.
31The OSA could have ensured that its constituent teams operated in a non-discriminatory manner by telling those involved in the Ontario championships that they had an obligation to let the girls play. But the OSA did nothing. Since the Blainey case, supra, the law has been clear that the right to equal treatment under the Human Rights Code means that in sports, girls and women have access to the team of their choice, provided they can make the grade athletically. The OSA officials ought to have known that they had a legal duty to let these girls play.
32It was not disputed that the soccer competitions are a "service" within the meaning of s. 1 of the Code.
I therefore find that the OSA's policies, and their application on July 12, 1992, violated Ms. Casselman's and Ms. Ouellet's right under s. 1 of the Code to equal treatment with respect to services without discrimination because of sex. They were treated unequally simply because they were girls.
33In the Blainey case, supra, the Board of Inquiry dealt with the argument that girls' and women's hockey would be threatened if girls had a choice of whether to play on girls' teams or boys'. There were two concerns: first, that if girls could play on boys' teams, there was nothing to stop girls' teams from recruiting boys in an effort to increase their chance of winning. On that issue, the Board found that women's hockey qualified as a special program to assist disadvantaged groups under what is now s. 14 of the Code. As such, women's teams could legally bar males without infringing the Code. I heard little evidence of the OSA's girls' and women's program, but I believe the same logic would apply.
34The second concern addressed in Blainey, supra, was that women's hockey would languish if the most talented girls and women had the choice of playing on boys' and men's teams. On this issue, I would rely on Mr. Avey's own evidence that research shows very few girls and women want to play on male teams. Furthermore, I would have expected to hear some evidence from the OSA on this point had women's hockey been adversely affected in the aftermath of the Blainey decision.
In any event, as counsel for the Commission pointed out, the Legislature could have moved to counteract the Blainey decision had it felt a need to do so, but it did not.
35I believe Ms. Casselman and Ms. Ouellet suffered considerable distress as a result of the OSA's actions in depriving them of their right to be free of discrimination. They also understandably felt they had no choice but to play in a women's soccer league this year, even though they should have been allowed to play on the team of their choice. As a result, they lost whatever benefits they could have derived from being on a men's team.
36Damages ordered under s. 41(1) of the Code should include compensation for the loss of dignity resulting from the discrimination and for the loss of the right to be free from discrimination. I do not believe the OSA engaged in the discrimination wilfully or recklessly, so I will not make an award under the last clause of s. 41(1)(b) (see Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170.)
37However, I believe this case warrants an order compelling the OSA to change its policies and practices to ensure this type of discrimination will not happen again.
38The final order in the Blainey case (unreported, March 21, 1988 [reported 1988 CanLII 8886 (ON HRT), 9 C.H.R.R. D/4972]) awarded Ms. Blainey $3,000 and made an extensive order with respect to the Ontario Hockey Association's future practices. The Blainey order is useful in setting out the remedy in this case.
39The OSA asked that if I were to assess any "penalties," that I take into account the organization's reliance on government funding and volunteer labour. However, awards under the Human Rights Code are not penalties, but rather compensation to the victim of discrimination. The damage suffered by the victim is no smaller when the discriminating party is not wealthy.
I therefore make the following order:
ORDER
401. That the Ontario Soccer Association (OSA) pay to Erin Casselman and Suzanne Ouellet $3,500 each. This is intended to compensate the complainants from the time of the infringement until the date of this decision. There will be no separate order of interest. (Although the complaints were signed by the girls' fathers, the money should be paid to Ms. Casselman and Ms. Ouellet to be used at their discretion.)
412. That the OSA be barred from refusing, preventing or otherwise interfering with a female's right to compete for a position on a soccer team on the same basis that males are allowed to compete and, if successful, from interfering with her right to play on such team.
423. That the OSA be barred from enforcing, promulgating or monitoring any rule, regulation, directive, custom or usage which bars or restricts in any fashion whatsoever females from participating with males in soccer on an integrated basis. In particular, the OSA will accept for entry in the Ontario Cup competition, in the "boys'." division, a team which otherwise meets the entry criteria, notwithstanding the presence of a female player or players on the team.
434. That the OSA shall refuse to sanction or endorse any soccer tournament in Ontario in which female players are prevented from playing on a team entered in the "boys'." division.
445. That the OSA be barred from disciplining or otherwise penalizing any club or team or any member thereof including any individual player, coach or manager for allowing females to play on a team.
456. That the OSA communicate the result in this case to all clubs and organizations in its jurisdiction, and to all tournament organizers whose tournaments are sanctioned or endorsed by the OSA.