HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzanne Demars

Applicant

-and-

Brampton Youth Hockey Association and Richard Doornink

Respondents

A N D B E T W E E N:

Robyn Demars

Applicant

-and-

Ontario Hockey Federation

Respondent

A N D B E T W E E N:

Shaunna Demars

Applicant

-and-

Ontario Hockey Federation

Respondent

A N D B E T W E E N:

Shaunna Demars

Applicant

-and-

Brampton Youth Hockey Association

Respondent

A N D B E T W E E N:

Robyn Demars

Applicant

-and-

Brampton Youth Hockey Association

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: November 8, 2011

Citation: 2011 HRTO 2032

Indexed as: Demars v. Brampton Youth Hockey Association

APPEARANCES

Shaunna Demars, Robyn Demars and ) Self-Represented

Suzanne Demars, Applicants )

Brampton Youth Hockey Association and ) William Gilmour, Counsel

Richard Doornink, Respondents )

Ontario Hockey Federation, Respondent ) Craig Vander Zee, Counsel

Hockey Canada, Intervenor ) Jennifer Fantini, Counsel

1These five applications were filed in June 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying Human Rights Complaints (the “Complaints”) were filed with the Human Rights Commission and abandoned upon the filing of these applications.

2On December 22, 2004, the applicant Robyn Demars filed her Complaints with the Ontario Human Rights Commission (through her litigation guardian and mother Suzanne Demars) against the Ontario Hockey Federation (“OHF”) (application TR-0440-09) and the Brampton Youth Hockey Association (“BYHA”) (application TR-0443-09) alleging discrimination on the basis of sex in the provision of a service contrary to section 1 of the Code. The applicant alleges that once she turned 12 years of age she was not permitted the same access to the dressing room as her male hockey teammates and was the subject of discriminatory comments due to her gender. Shaunna Demars, Robyn’s sister, filed similar Complaints against the OHF (application TR-0441-09) and the BYHA (application TR-0442-09) on December 22, 2004.

3The applicant Suzanne Demars, the mother of Robyn and Shaunna Demars, filed her Complaint (application TR-0439-09) on January 5, 2005, against the BYHA and the BYHA President Richard Doornink on the basis of family status and reprisal. She alleges that the respondents reprised against her because her daughters filed their Complaints against the BYHA.

4On January 5, 2010, Hockey Canada (“HC”) was granted Intervener status.

BACKGROUND

5The respondent OHF is a not-for-profit Ontario corporation, and a member branch of Hockey Canada. OHF is comprised of seven member partners: Ontario Minor Hockey Association, Ontario Women’s Hockey Association, Northern Ontario Hockey Association, Ontario Hockey Association, Ontario Hockey League, Greater Toronto Hockey League, and Minor Hockey Alliance Ontario.

6Member partners in turn are comprised of local centres/associations/clubs. The respondent BYHA is a local association within the Ontario Minor Hockey Association (“OMHA”). In October 2003, the BYHA board of directors appointed personal respondent Richard Doornink to be its Interim President. He was ultimately elected President at the 2004 AGM. In both capacities he served as a volunteer. Prior to October 2003, Bill Ewles was the BYHA volunteer President.

7When a player registers with the OMHA, a portion of the registration fee is retained by the local association or club, in this case the BYHA. Likewise part of the registration fee is forwarded to the OHF. OHF regulations state that a player must abide by all rules, regulations, and policies of the OHF and Member Partner.

8The age categories (determined as of December 31 in any given season) for minor hockey players recognized by all the above are:

Minor novice............. under 8

Novice....................... under 9

Minor Atom............... under 10

Atom.......................... under 11

Minor Peewee.......... under 12

Peewee..................... under 13

Minor Bantam........... under 14

Bantam...................... under 15

Minor Midget............ under 17

Midget....................... under 18

Juvenile..................... under 21

9Within an age category there are levels of play from House League to AAA.

10There were approximately 210,000 players playing within the OHF in December 2004. Approximately 35,000 were female players and of those, approximately 4,000 to 5,000 were playing in co-ed programs.

The OHF Dressing Room Policy

11The BYHA at the relevant time did not have its own dressing room policy but followed the policy of the next superior level of hockey organization that did have a published policy, which at the time was the OHF.

12The OHF policy was based on an HC policy that had been recently rewritten to reflect the settlement of another human rights complaint (the “Argent Complaint”). In December 1999 and June 2000 a female hockey player, Sarah Argent, filed a human rights complaint against the Canada Hockey Association (“CHA”, now Hockey Canada), Ottawa District Hockey Association, Ottawa District Minor Hockey Association, and the West End Hockey League, challenging the dressing room policy used by the latter group. Those parties entered into a written settlement agreement on December 13, 2000. On January 4, 2001, the Ontario Human Rights Commission ratified the Argent Settlement, which set out the substance of a new dressing room policy and required Hockey Canada to communicate the Settlement terms to its member branches.

13As per those terms, Hockey Canada formulated a new policy that was essentially adopted by the OHF on February 17, 2002, and in force at the relevant time (the “Policy”). The OHF Policy stated:

Players

It is the policy of the OHF that from Atom and down, mixed genders may change in the same room, at the same time in the presence of two properly screened adults as set forth by the OHF policies on the ten steps.

Players Pee Wee and higher may not change in the same room at the same time and it is the responsibility of the coach to ensure that all are involved in both pre-game and post-game activities.

In response to a recent complaint the CHA [now Hockey Canada] participated in a mediation session with the Ontario Human Rights Commission. Results of the mediation session proved to be very positive and assisted in creating direction for our membership in working within the policy that currently exists. The following was agreed upon by all parties involved with the mediation process, and was subsequently approved by the Commissioners of Ontario Human Rights:

1. When separate facilities exist for both male and female participants, males and females shall make use of these separate facilities.

2. If the facility does not have separate changing areas available, players shall address the issue by dressing, undressing and showering in shifts. It is the responsibility of the team to provide a plan and actively manage the risk and ensure the safety of individual players when they are dressing, undressing and showering.

Background

The purpose of this policy is to provide clear guidelines while still maintaining a degree of leniency for local associations and teams to work in conjunction to provide players with a safe and inclusive environment. Should circumstances arise that require an alternate solution, it is the responsibility of the team and local association to actively manage the risk and ensure the safety of individual players when they are dressing, undressing and showering.

Officials

Male and female officials may not change or shower in the same room at the same time. If separate facilities are not available, each party is expected to manage the risk appropriately.

In 2006, after the underlying complaints were filed, HC again changed its dressing room policy and the OHF in response changed its Policy accordingly. That policy is not an issue in these Applications.

The Complaints

14The essence of the Applications against the BYHA is as follows:

• The dressing room policy was discriminatory;

• The manner in which the BYHA applied the Policy was discriminatory in that its volunteer staff excluded Shaunna and Robyn Demars from the team activities that occurred in the team dressing room;

• The BYHA tolerated discriminatory comments directed to the applicants;

• The BYHA did not investigate Shaunna Demars’, Robyn Demars’, or their mother’s complaints; and

• The BYHA and Richard Doornink reprised against applicant Suzanne Demars for filing the Complaints on behalf of her daughters.

15The essence of the Applications against the OHF is as follows:

• The OHF is responsible for the BYHA’s application of a discriminatory dressing room policy and the OHF ignored the applicants’ formal requests that it address the alleged resulting discrimination; and;

• A representative of the OHF made a discriminatory comment during a phone conversation.

EVIDENCE

16There was a great deal of testimony and written documentary evidence in this hearing. Where the applicants’ and respondents’ witnesses’ testimony differs, credibility must be assessed. Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which include considering a witness’s opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he or she has seen and heard. In addition, the Court stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

17Other factors the Tribunal has applied in assessing credibility include corroborative evidence from other witnesses and the extent to which witnesses may have an interest in the outcome of the case or have self-interest in testifying for one of the parties. See Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case.

18Shaunna Demars became 12 years old on October 25, 2002. The substance of her complaint spans a period of three hockey seasons. It is not disputed that she was not permitted to change in the team dressing room during the 2002-2003 season (first season), from September through November 2003 of the 2003-2004 season (second season), and from September through late December 2004 during the 2004-2005 season (third season). She testified that during the first season there were approximately two practices per week and one to two games per week as well as between three and six tournaments. During the second and third season, she was playing at a lower level and so played fewer games. Greg Smith was Shaunna Demars’ coach during the first season. Tim Harrison was her coach during the second and third seasons.

19Robyn Demars became 12 years old on September 2, 2004. She testified that during the 2004-2005 season there was one game a week and one practice every two weeks. She testified she was excluded entirely from the team dressing room that season and that Tim Grant was her coach during that season. Mr. Grant, however, testified that he was an assistant coach and his brother Dave Grant was the head coach.

20Shaunna and Robyn Demars submit that an appropriate dressing room policy providing that “boys wear no less than boxers, girls wear no less than T-shirt and shorts” would have permitted them to change with the male players in the team dressing room.

Access to pre- and post-game team activities held in the team dressing rooms

21Shaunna and Robyn Demars allege that during periods of time when they were not permitted to change in the team dressing room with the male players, they were effectively excluded from participating in pre- and post-game team activities and were unsupervised in the arena with no access to coaches, trainers, or other BYHA volunteers. Specifically they allege that during those periods they were excluded from the following team activities: socializing with teammates, coaching pep talks and tips, game strategy development, access to the team trainer, team drinks, post-game celebrations, and “mandatory” adult supervision.

22All parties agree that during the relevant time, for mixed-gender teams where the players were 12 years of age or older, the teams were generally expected to apply a “ten-minute rule” that required the coach to ensure both genders were in the team dressing room ten minutes prior to and after each game. Testimony from the respondents indicated that in some cases a 15-minute period was used. The purpose was to include both genders in pre- and post-game team activities, identified by Mr. Harrison for example as the coach’s talk, strategy sessions, and post-game celebrations or “tears”. Mr. Harrison testified that team camaraderie during the pre- and post-game periods was a very important part of team building and a player’s experience. Mr. Doornink also testified that team camaraderie is important and that the coach talk just before the game is the most important time to impact the team. He also testified that to his knowledge equipment repairs and skate tune-ups occurred in the team dressing room. When he coached this was done by the trainer during his speech. His view was that the trainers needed to ensure that just before the players hit the ice they had everything they needed. Mr. Doornink testified that when he coached, he made all team announcements in the team dressing room immediately after the post-game activities and before anyone left. Greg Smith testified that in his experience there was commonly music and socializing in the team dressing room. Tim Grant testified that when Robyn was not changing in the team dressing room she did not have the same access to the trainer or coaching staff. He testified however that a 15-minute pre-game period was sufficient time for the trainer to deal with the players’ equipment. Mr. Grant did not recall ever hearing music in the team dressing room although he thought that it was a common practice for some teams.

Shaunna Demars

First season 2002-2003

23Shaunna Demars was the only female on her team and she testified that Mr. Smith was able to successfully implement the ten-minute rule about 50% of the first season. Later, under cross-examination, Shaunna testified that Mr. Smith was successful applying this rule about 10% of the time. However, later in cross-examination, Shaunna testified that during the first season, when Greg Smith was her coach, she was never allowed in the team room at all and only interacted with her teammates on the ice and thus not able to take part in the pre- and post-game meetings with the rest of her teammates in the dressing room.

24Shaunna Demars testified that because she did not have consistent access to pre- and post-game team time she often did not know what the team line-ups were or benefit from other coaching tips and had to learn the hard way during the game. Suzanne Demars testified that no access to trainers meant no assistance with equipment failures such as helmet screws, stick tape, or blade issues.

25Mr. Smith testified that at first he did not have knowledge of an official dressing room policy. He testified that when Suzanne Demars, the parent rep that season, asked early in the season if Shaunna could dress with the boys, he went to each male player and asked them how they felt about that. He testified that three boys said they did not care but the rest did, so he went with majority rule. After that he found out about the OHF Policy and asked his manager to check the Policy. He advised Suzanne Demars of the Policy and told her that Shaunna could not change with the male players.

26Mr. Smith testified that he tried to include Shaunna in every pre- and post-game activity. He testified that he asked his players to arrive one hour before each game. He testified that the team would usually get into the dressing room about 45 minutes before the game. The trainer and assistant coach periodically checked equipment. He testified that he did not prevent Shaunna from entering the team room. He also testified that he applied the ten-minute rule and Shaunna was always there and that she was present for his post-game short talks as well. He also testified that if a male player arrived during the ten-minute period he would not have told Shaunna to leave and that he would not start a pre-game talk if all players were not present. He testified that his pre-game talk focused on preparing for the game and setting up line sheets. He also testified that Shaunna would have had access to the trainer. He testified, however, that he was not routinely in the dressing room except for the pre- and post-game talks.

Second and third seasons 2003-2004, 2004-2005

27In the second season Shaunna had Mr. Harrison as her coach. Mr. Harrison testified that prior to the 2003-2004 season, he actively drafted Shaunna to play for the team he coached. Mr. Harrison testified that Shaunna made a great contribution to the team, she had a great personality, was one of the team leaders, and was “one of the boys” and “right in there.”

28Mr. Harrison testified that he asked players to arrive a half-hour pre-game and no later than 20 minutes early. This was important to be able to put lines together. He was familiar at the time with the Policy and believed it required a mandatory ten-minute period pre- and post-game time for the team dressing room to be accessible to the lesser represented gender, in this case girls. It was his practice that if a male player arrived after the ten-minute pre-game period began, the player would have to wait to change until the others went on the ice. He said that at some point he increased the time to 15 minutes to give Shaunna extra time with the team. Shaunna was the only female on the team.

29Mr. Harrison testified that in the second season after two or three games, Shaunna approached him and asked if she could change with the team. His first response was to ask Suzanne Demars how she felt about this and when she said that she approved, he polled the rest of the team and parents. There was unanimous approval. So, in late November 2003 and for the rest of that season, Shaunna Demars was permitted to stay in the team dressing room at all times pre- and post-game.

30Shaunna Demars testified that prior to November 2003, Mr. Harrison tried to apply the ten-minute rule so that she could join in team activities; however, it was not so successful because male teammates seemed to arrive late and when that happened her coach would ask her to leave. So she testified that for most of the games she remained standing outside the team door with no pre-game access.

31During the third season Mr. Harrison was again Shaunna’s coach and again she was the only female on the team. She testified that she was not allowed to change in the team dressing room with her male teammates from September to December 2004, which comprised 14 games. She testified that there were no practices at this level. During this period, she testified that Mr. Harrison tried to implement the ten-minute rule but was successful less than half the time. In December 2004 after a team vote, which this season also included parents, she was again permitted to change with her teammates in the team dressing room. She alleges that when allowed to change with her male teammates, the team instructed the boys to wear no less than boxers and her no less than shorts and a T-shirt.

32With respect to the vote the third season, Mr. Harrison testified that he told Shaunna that in order for her to change with the team, every player would need to vote yes. He testified that he spoke to each player alone so that there would be no pressure from peers. The year before when he conducted the poll he did not speak to the league first and he regretted that. He recalled that the second season the vote took only one or two weeks, however during the third season he polled every player and every parent and then took the results to the BYHA for approval. Thus the voting process took longer and was not completed until December 13, 2004, and following approval by the BYHA Shaunna was dressing with the team by the Christmas tournament. He agreed that during the third season Shaunna asked at every game if the voting had been completed.

33Shaunna testified that the team vote was embarrassing and humiliating, particularly during the third season when the voting process took four months. Shaunna and Suzanne Demars testified that at school players would say to Shaunna “you better be nice to me or I will vote no.” Shaunna testified that the process traumatized her because she knew if one person voted against her then she would not be allowed to change in the team room. When she was voted in the first time, the team cheered when she entered the team dressing room. The rest of that season there were no issues about gender and it was “amazing.”

34Mr. Harrison testified that he did not observe any changes in Shaunna between the times that she dressed with the team in the team dressing room and the times that she did not and his 15-minute rule was in place.

35The parties submitted the email referenced above that was written by Mr. Harrison to Mr. Doornink and copied to the VP of House League as well as to Suzanne and Shaunna Demars on December 13, 2004, requesting that Shaunna be permitted to change with the male players and outlining some of his observations to date. He wrote in part:

….

About 4 or 5 games into last season Shaunna and her Mother approached me for permission to have Shaunna change in the room with the rest of the Team. Our policy to that point had been that Shaunna would be present in the room a minimum of fifteen minutes before the game time and until I dismissed the Team afterward. If a male Player was late his choices were to find some other place to change or wait until we left the room for the ice. I had my share of reservations but asked the Players individually and privately if they had any objections to having Shaunna use the same change room. The response was unanimous… a shrug and a “doesn’t matter to me.” I discussed this with the rest of the Staff and we considered that we run a very responsible dressing room under the constant supervision of a Coach or Parent Rep; we have a female Trainer (Lori Lichty), and that Shaunna was missing out on the most important aspect of a Team sport – the camaraderie. We invited her to join us and I/we monitored the situation carefully. There were absolutely no incidents or situations to make me regret the decision. Shaunna was one of the guys – she joined in the revelry of 16 kids enjoying each other’s company – she made new friends – she enjoyed herself thoroughly.

What I do regret is the way that I handled the situation. I asked the Players but did not think to ask the Parents or BYHA for their consent to this move. I remember you mentioning this policy at the Coaches pre-season meeting this year and you can imagine what the first thing was that popped into my head…

This Season when Shaunna and Suzanne approached me I was better prepared. I spoke with our Parent Rep – Mike Angemeer. Mike is a very conscientious Parent Rep and is always present in the Dressing Room before and after games. He has given his consent as a parent and has agreed to help us monitor the proceedings. I asked all of the Parents to discuss it with their sons and let me know what their personal and anonymous opinions were. (I apologize to Shaunna and Suzanne for the length of time this process has taken – it was a lot easier getting a shrug from the boys than it was to pin down fifteen families for answers!). There were some concerns expressed – the obvious one being that these 14 boys would be in various states of undress at the same time as a teenage girl… and visa versa. We were able to assure them that none of their sons took post-game showers; that the room would never be left unsupervised; that there would likely be more skin showing at pool-side than there ever would be in the Dressing room; that if there was the slightest hint of inappropriate behaviour we would suspend the exercise subject to review; and that Shaunna needs to be accepted as part of this Team so that this Season can be as enjoyable for her as last season was.

The result is a unanimous consent from all of the Players and their Parents to bring this before the League for their approval.

I would ask on behalf of Shaunna and the other members of the Attrell Toyota Team that you consider our request to have Shaunna share the changing facilities with her team-mates. Shaunna is an important part of this team and we would like to give her the opportunity to join us for the best half-hour of the week… the 30 minutes prior to game time.

36As noted earlier, the allegations in respect of Shaunna begin in the 2002 and span a three-year period. The evidence of Shaunna’s mother and applicant Suzanne is that she made her first complaint in respect to the treatment her daughter received at the start of that first season in 2002. During the first and second season, Suzanne Demars testified that she had several in-person conversations with Mr. Ewles in regards to her concerns and complaints over that time period. She testified that Mr. Ewles told her to put her concerns in writing, so she sent him two letters on September 20, 2002 and September 24, 2003. The applicants submitted copies of two letters allegedly written by Suzanne Demars to Mr. Ewles. The first letter dated September 20, 2002, listed the BYHA Executive as a recipient and also copied the Ontario Hockey Federation; however, Suzanne Demars testified that she did not send a copy to the OHF. The letter referenced “Abuse Disclosure” of Shaunna Demars and identified her coach as Greg Smith. Suzanne Demars wrote:

Shaunna has been physically blocked from entering her team room. She has been told that she is not allowed with her team because she is a girl. She has verbalized loud and clear that she has done no wrong, and therefore should not be punished. She tries to get in the room every week but is blocked by coaching staff at the direction of the BYHA and the OHF. This treatment is in contradiction with all zero tolerance Policies, and Harassment policies. Shaunna now is sent alone to dress in sub-standard rooms with no team staff supervision. She is also receiving trash talk due to her gender by her team and parents who think it is ok to harass the “Girl”. She wears shorts and a T-shirt, and wants back in the team room. Please assist us in stopping this maltreatment.

37Suzanne Demars’ next letter addressed to both Bill Ewles and the BYHA Executive dated September 24, 2003, at the start of the second season referenced “Player Harassment and Discrimination.” In this letter she stated:

I implore with you to reconsider implementing a dress code on coed teams. Female players are in danger of harm due from being isolated from the team. Shaunna has been told the league (Executives) say no to her inclusion. This has caused significant negative emotional impact on Shaunna. Her stress is high and she is having trouble in the arenas, and community for speaking out. She is called names like “dyke” and “Heman”, and told to “go play girls’ hockey” by players, coaches, parents, and fans. She persists on being in the room with her team. Her teammates do not have any problem with Shaunna in the room with a dress code. Please put a policy in place that includes all players. This maltreatment must stop. Shaunna is a real person with real feelings. This is abuse. You have received this disclosure, it is now your responsibility to inform the OHF. Please tell them to stop the exclusion. Players need to be respected and treated like genderless hockey players while participating.

38The respondents offered no evidence that Suzanne Demars did not speak to Mr. Ewles. Her testimony that she spoke to Mr. Ewles and that in response to his request for a written account she wrote two letters is credible and is consistent with the evidence that Shaunna was not permitted to change in the team dressing room the first season. Therefore I accept that these letters were written, were delivered to Mr. Ewles, and fairly described the situation at the time.

39Both Mr. Doornink and Mr. Harrison testified persuasively that pre- and post-game team time together is the most important part of team building. For the first season, respecting whether or not applying the ten-minute rule resulted in Shaunna Demars participating in team activities, Mr. Smith’s evidence was that it was successfully implemented and Shaunna Demars testified inconsistently, stating at one point that the rule worked 50% of the time, then 10%, then not at all. Suzanne Demars’s first letter to Mr. Ewles complaining that Shaunna was blocked from entering the dressing room was written September 20, 2002, just as the season was starting. Thus that letter corroborates only a few instances at most. Although Mr. Smith testified (as did all three coaches) that their memories from ten years ago were not perfect, he was credible when he testified that he tried to include Shaunna in all pre- and post-game activities. Based on her testimony and her mother’s letter I am persuaded that that did not always succeed and there were times during the first season when Shaunna was not able to join her team for pre- and post-game activities. It is also logical given the number of games and players at each arena on any particular game day, Mr. Smith would not recollect each situation, and that given the importance to Shaunna she would more readily recall that she was not always included. I am persuaded that during the first season Shaunna was not always able to participate in the pre- and post-game team activities.

40During the second and third seasons, Mr. Harrison testified persuasively that he attempted to apply the ten-minute rule so that Shaunna could be with the team for team activities and that in fact he increased the time to 15 minutes. I accept his testimony, not disputed by the applicants, that he tried to organize an alternate plan whereby the team would approve both genders changing together so that Shaunna Demars could fully participate in all team activities that occurred in the team dressing room. His letter to Mr. Doornink corroborates his attempts as well as his attempt to involve the BYHA in the decision for the third season.

41With respect to whether or not during the second and third seasons Shaunna Demars was able to participate in team activities held in the team dressing room, even though Mr. Harrison wrote in his December 13, 2004 email to Mr. Doornink that he felt that by not being in the team dressing room the entire time Shaunna was missing out on team camaraderie and suggested that a full 30-minute period with the team was essential to the team experience, on a balance of probabilities the evidence persuades me that Mr. Harrison made efforts to assist Shaunna to be a part of the team activities. Mr. Harrison was very clear in his testimony, articulating details about the season including Shaunna’s participation in the team dressing room activities, and on this point I found him a credible witness. I am persuaded that Mr. Harrison’s recollection that Shaunna participated in team activities in the team dressing rooms is accurate. During the second and third seasons I find that even when Shaunna was not permitted to change with her male teammates in the team dressing room, she was nonetheless able to participate in the pre- and post-game team activities that were held during the 15 minute periods.

42With respect to the votes that Mr. Harrison organized, Mr. Harrison, Suzanne Demars, and Shaunna Demars all testified that during the third season when the vote process took four months Shaunna was quite frustrated and concerned and I accept that that was an accurate account. I also accept that in the circumstances male players made the alleged comments regarding the vote and that those comments compounded her frustration.

Robyn Demars

43The time period in question in relation to applicant Robyn Demars was the 2004-2005 season – this would have been the third season of the alleged discrimination against her sister Shaunna as set out above. Robyn was the only female on her team. She testified that at the first game of the 2004-2005 season when she approached the dressing room, her coach Tim Grant took a step towards her and said she couldn’t be with the team because she was a girl. She testified that she continued to walk towards the dressing room door and Tim Grant blocked her, waiving the Policy, their bodies colliding. She testified that she asked “what are you doing” and he said “a girl can’t go in.” She testified that she asked “where should I go?”; and he replied that she should ask an arena guide to find a room. She testified that her coach told her that it was because of the Policy that she could not come into the dressing room. At that point she testified that she was crying and players came out and asked her what was going on. She also testified that the first few weeks teammates snuck her in but she got caught and was thrown out and so stood outside by the door.

44Robyn Demars testified that beginning in December 2004, her coach started using the ten-minute rule, but that most of the games that month the male players arrived late and the coach would ask her to leave. Robyn testified that at the post-game meetings, players would stare at her and say “get out.”

45Robyn Demars testified that as a result during that fall she missed hearing the coaches’ talks about team line-ups, the coaches’ pump-up speeches and the after-game celebrations. As well she missed out on team drinks. She felt that she was not part of the team. She testified that at one point she tried to speak to her coach about the situation and he said “no way Robyn, I don’t want to hear it.” Robyn testified that the assistant coach who she identified as Dave interrupted her in mid-sentence and told her to go away.

46Tim Grant testified that he was actually the assistant coach and his brother Dave Grant was the head coach that season. As the assistant coach he testified that his job was to help where needed. He testified that he did not recall blocking Robyn from entering the team dressing room at the first game and would have followed appropriate conduct, which is hands-off. However, he did testify under cross-examination that although he had no recollection of doing so he may have taken a step in front of Robyn to block her entrance at one point. Tim Grant testified that he came to know of the existence of a dressing room policy when a fellow coach informed his brother Coach Dave Grant that there were special considerations for co-ed use of the dressing rooms. Tim Grant then downloaded the Policy off the Internet. He did recall that thereafter he had the Policy with him in his binder so that he could read it and at one game Robyn wanted to see it so he pulled it back. But he did not recall waiving the Policy in Robyn’s face. He recalled being present for a few coaching staff discussions of the Policy. Tim Grant testified that he knew that the BYHA had discussed the Policy with his brother the head coach.

47Tim Grant testified that he did not recall if Robyn was always in the team dressing room for the pre-game, which he recalled was 15 minutes, as he himself was not always in the room. But because he watched the door, to the best of his knowledge she was there. He testified that he did recall one incident when a male player arrived late during the pre-game period and he told that player to go elsewhere to change. He also testified that he recalled that Robyn was at the post-game meetings, and that once the coach was finished speaking it was time to get changed.

48Robyn Demars was a credible witness and recounted in persuasive detail her encounter with Tim Grant the first game of the 2004-2005 season. Mr. Grant on the other hand admitted that his recollection was not perfect as the events were ten years ago and during his testimony he answered many questions with the statement “I don’t recall”. In my view this undermines his testimony that he could recall that Robyn was in the dressing room in December as per the ten-minute rule. Given his overall inability to recall details I do not accept his evidence on this issue as anything more than speculation. I accept that Tim Grant was not the head coach and perhaps the head coach would have a better recollection. The BYHA, however, did not call the head coach as a witness. Robyn Demars was a credible witness and thus on a balance of probabilities, I accept her testimony that she was not permitted in the team dressing room at all until December 2004, and that during that month the ten-minute rule was not effectively applied to permit her to join the team for all team activities. I find that during the fall of the 2004-2005 season, Robyn Demars was not permitted in the team dressing room at all until December 2004 and that during that month she was not always able to fully participate in activities held in the team dressing room.

Changing rooms

49Suzanne Demars testified that on many occasions her daughters told her they did not know where to change and that they commonly had to “lug” their heavy hockey bags all over arenas looking for an arena manager. Robyn Demars testified that her coach would never check to see where she was changing. Tim Grant testified that he would have had no involvement in any arrangement for her change facilities. Her head coach did not testify. On a balance of probabilities, I am persuaded that Robyn Demars’ coaches did not provide any oversight into where she was changing.

50Shaunna Demars similarly testified that she was told by her coaches to go find her own dressing rooms. Her season #1 coach, Mr. Smith, testified that he did not know who arranged where Shaunna changed; it was not him. He assumed that Suzanne would supervise her daughter. He testified that he was not aware that sometimes there were not rooms available for Shaunna to change. According to Mr. Harrison, Shaunna’s coach for seasons #2 and #3, no one from the coaching staff supervised the location of Shaunna’s change rooms. Mr. Harrison did testify that the coaching staff made sure Shaunna was in the building, had her equipment, and that her stick was taped. He testified that with respect to supervising Shaunna while she changed, he thought her mother Suzanne Demars was with her and the rule was that other than a parent two adults were required to be with underage players, so it would have been difficult to organize other volunteers to supervise her. I am persuaded that none of Shaunna’s coaches during the relevant three-year period had any oversight into where she changed.

51Shaunna and Robyn Demars allege that during the periods they were told they could not change in the team dressing room they were required to change in unsuitable and unequal rooms as compared to those of their male teammates. The applicants allege that the room conditions were dangerous as some were used to store cleaning supplies, the rooms were dirty, not always heated, one had a window on the door, and many were not locked so that arena staff could and did walk in while they were changing.

52Suzanne Demars submitted a typed description of the rooms the girls found to change in. She describes rooms in these Brampton arenas: South Fletchers, Greenbriar, Earnscliffe, Powerade Centre, Memorial and Victoria Park, and the Terry Miller Recreation Centre – to include referee rooms, first aid rooms, public washrooms, and arena managers’ offices. Common issues included adult referees kicking the girls out of their rooms, various arena staff entering the first aid rooms without first knocking, obvious lack of privacy in the public washrooms, and first aid rooms containing cleaning supplies. At the Powerade Centre, often the girls were told there were no rooms available for them to change.

53Shaunna testified that some of the rooms she was sent to were scary, especially when arena staff walked in unannounced. Robyn testified that when the team practiced at the Memorial arena she was sent to a cleaning supply room. Suzanne Demars testified that in the South Fletcher arena the room given to Robyn to change had a clear window on the door and they taped paper up to cover the window. Robyn Demars testified that she was given this first aid room in the South Fletcher arena each time she played there. Suzanne Demars testified that she told Mr. Doornink about this and shortly thereafter in December Brampton City replaced the clear glass with frosted glass.

54Mr. Harrison, Shaunna’s coach during seasons #2 and #3, testified that with respect to the rooms that Shaunna Demars changed in, he only recalls seeing a room in the Victoria Park arena and thinks that they had to put down carpet for her in that room so that she could walk from that room to the ice without damaging her skates. He recalls that this was probably a storage room. As he was pretty busy with 16 players he does not recall if he saw the other changing rooms. In general, Mr. Harrison testified that he recalled that every arena had a facility in which to change, although not necessarily good ones.

55Mr. Doornink testified that at that time the association had over 4000 players, and conducted house league, inter-city rep, and also affiliated with local junior teams, and consequently purchased about $1,000,000 of ice rental time from the City of Brampton. The city would allocate the ice to various groups assigning the arenas and usage times.

56Mr. Doornink testified that Brampton City’s fourteen arenas comprised a range of old to new structures. For example, the Victoria Park arena was built in the 1960s and was considered an antiquated facility and the Memorial arena was built in the 1950s. He testified that it would not be fair to say that all arenas did not have appropriate separate changing facilities, citing the South Fletcher arena, and also said that he felt a fully functioning first aid room was a proper change room. Mr. Doornink testified that for out of town tournament games, the BYHA would enter into a contract with the tournament host who would provide the ice time. He testified that he couldn’t be responsible for every arena or facility. As the BYHA President, his goal was to ensure the players got onto the ice, enjoyed the game without risk, and wanted to come back. He testified that he was not aware of what the rooms looked like at the various arenas and that it was the coaches’ responsibility to ensure the well being or care of the players.

57Glen McIntyre, the current BYHA President, testified that although at present most arenas are upgraded, at the time of the Complaints they were not. He testified that the City of Brampton undertook the renovations.

58Considering all of the evidence, it does not seem to be disputed that the applicants needed to make their own arrangements to find places to change. The respondents did not dispute that they did not arrange where Shaunna and Robyn were to change when they were not permitted to change in the team dressing rooms. The applicants’ evidence that was not challenged by the respondents is that neither the team nor the association managed or seemed to be aware of where the girls were changing with one exception that Mr. Harrison recalled regarding the Victoria Park room where Shaunna changed. It also was not contested, and I accept, that sometimes the girls were given no room in which to change.

59The respondents’ evidence regarding the age of the facilities at the time was not challenged and I accept that the arenas were in a range of old to newer structures. I also accept that the BYHA, along with other associations, rented ice from the City of Brampton and also played at arenas organized by host teams. The applicants’ evidence regarding the nature of the rooms they were given to change in was very specific and I accept Suzanne Demars’ written account of these rooms.

Alleged comments by BYHA players, coaches, and parents

60The applicants also allege that during the periods they were not allowed to change in the team dressing room, Shaunna and Robyn were teased by male players and parents who made comments such as “get out of the room, this is a boys dressing room,” “which closet did they send you to?,” “if you don’t like it, go play girls’ hockey.” They also allege that other comments made were “dyke,” “go back to your closet,” “go play girls’ hockey,” “figure skaters do not belong here,” “girls are not allowed to be with the team, leave,” “don’t pass it to the girl,” “why are you complaining about getting dressed alone in that little room, you are a girl and should feel lucky we even let you play,” “are you going to cry like a girl now because you got kicked out.” During the team voting process Shaunna heard “if you are not nice we won’t vote for you.”

61With respect to season #1 for Shaunna, Mr. Smith stated that there were a few issues regarding players making derogatory comments to Shaunna that were brought to his attention. He testified that with one exception he did not overhear any comments by either players or parents and that with respect to the comment he did hear he recalled he made the player apologize to Shaunna. Although in his direct testimony he did not identify the comment, on cross-examination Mr. Smith testified that he heard a player say “why don’t you play girl’s hockey.” He testified, however, that contrary to the applicants’ assertion, no complaints about his son Steven respecting comments to Shaunna were brought to his attention. He said that he would have always addressed any issues as he wanted the players to have fun.

62Suzanne Demars could not recall the names of those who allegedly made these comments and she testified that she would not forget the term “dyke” applied to her daughters. Shaunna Demars also testified that she could not recall the names of the players or the exact words except for the comment “dyke”; however, the theme of the comments was the same. She also testified that she complained to her coaches who took no action. Specifically, she testified that she complained to Greg Smith as his son was one of the players who made the comments. Suzanne Demars’ September 2002 letter to Mr. Ewles also mentions that players and parents engaged in “trash talk” and her letter in 2003 specified that comments included “dyke”, “heman,” and “go play girl’s hockey.” I am persuaded that at least these comments were made to Shaunna prior to the time the second letter was written. And as earlier discussed, I am persuaded that during the seasons 2003-2004 and 2004-2005 players taunted Shaunna respecting the vote to permit her to change with them.

63Shaunna testified that when she was permitted to change in the same room after the team votes, the players’ comments stopped; however, she was vague on whether or not the parents’ comments ceased.

64Robyn Demars testified that players specifically said to her “there’s the girl” and “go play girls’ hockey.” Robyn testified that these comments began the first day of the season and that the players were laughing while making the comments. Robyn Demars testified the players said “why don’t you just go play girl’s hockey” and later said “how’s the closet we sent you to?” She testified that she complained to her coaches about the players’ comments every week. Mr. Grant did not recall hearing any player tease Robyn. Nor did he recall any specific conversations with the applicant about comments. Mr. Grant did not recall telling Robyn that “she could go play girl’s hockey if she did not like the Policy”.

65I have already noted that Robyn’s assistant coach, Tim Grant, testified that he could not recall well the period ten years ago, and he testified that as an assistant coach he was deployed as needed. It is therefore reasonable to conclude that Tim Grant would not have always been present where Robyn was and may not have heard comments directed to her. As I have noted Robyn testified articulately and I accept that although she cannot recall who exactly made them, comments in the nature of those she testified about were made to her by players on her team. I find that Robyn Demars experienced discriminatory comments during the fall of 2004.

Alleged comment by OHF representative

66Suzanne Demars testified that in a conference call in December 2004 with Phil McKee and Brandy Conenbaum of the OHF, someone said “If you (Robyn’s mom) want to stop the discrimination/harassment she should play in the girls' league.” “You (Robyn’s mom) signed a players card knowing the rule that was there.”

67Mr. McKee denies the comment was made. He testified that he discussed with her options within the OMHA and Canadian Women’s Association and did say that by choosing to play in a co-ed program they were doing so accepting the policies in place. Mr. McKee was a credible witness who had a more detailed recollection of the various communications he had with Ms. Demars including the call in which the alleged comment was made. I prefer his characterization of the conversation and it is consistent with his overall testimony that the purpose of these calls was to assist the Demars family in resolving their concerns. Although Ms. Demars may believe in hindsight that her account is accurate I am persuaded that she is mistaken and I find that Mr. McKee did not make the alleged comment. The Demars offered no evidence to substantiate that Ms. Conenbaum made the alleged comment. They did not call her as a witness and I thus draw an adverse inference that her testimony would not have supported the allegation.

Communications and complaints to the BYHA

68The applicants allege that the treatment described above was known to the BYHA to be unwanted, unwelcome, and abusive, yet the BYHA did not investigate. The applicants allege that they complained frequently to various BYHA coaches and officials.

69For example, as discussed earlier, Suzanne Demars testified that she communicated to Bill Ewles when he was the BYHA President in person and by letter. In this way she complained about the discriminatory comments, exclusion from the dressing rooms, and the disturbing conditions of the rooms that Shaunna was given to change. I have found that the applicants have met their onus to prove that these communications were made to Mr. Ewles.

70On the other hand, during most of the three-year period covered by Shaunna and Robyn’s Applications, Ms. Demars also sat on the BYHA Executive Committee and she testified that she did not discuss these issues with the Executive Committee during her committee tenure.

71Suzanne Demars testified that she also complained to BYHA coaches, managers, volunteers, and conveners. She recalls specifically talking to coaches Greg Smith and Tim Daniels and telling them that Shaunna was experiencing unwanted discrimination. Suzanne Demars testified that although she could not recall the name of Robyn’s 2004-2005 coach, she told him that the change rooms provided were discriminatory.

72When asked about complaints from Suzanne or Shaunna Demars, Mr. Smith testified that there were none about the dressing room. However, in cross-examination Mr. Smith testified that although Shaunna did not come to him with complaints, Suzanne did probably one or two times after her initial request. Later in his cross-examination Mr. Smith testified that although he did not recall Shaunna complaining about the dressing room situation to him, given that it was ten years ago he could not really remember. He testified, however, that after he polled the male players regarding Shaunna dressing with the team, although he did not ask her how she felt about the result, she made her feelings very clear that she wanted to change with the team. Mr. Smith testified that it was true that Shaunna would stand outside the team dressing room door asking to come in. During cross-examination he also recalled that perhaps at practice he had had casual conversations with Shaunna about her request to change with the team. He did not recall what he told Shaunna. He felt that he probably said that the boys were not comfortable. He thought that he did not show Shaunna the Policy; however, he did recall showing it to Suzanne. Given Mr. Smith’s changing testimony and difficulty recalling the period ten years ago, I accept Shaunna and Suzanne Demars’ evidence that they did complain at least about the rooms in which Shaunna changed and about the alleged comments.

73Mr. Smith testified that he did not see the letters allegedly written by Suzanne Demars to Mr. Ewles nor did he have any conversations with Mr. Ewles about Shaunna dressing with the male players. No evidence was presented that would contradict that recollection and I accept this testimony.

74Mr. Harrison, Shaunna’s coach in seasons #2 and #3, does remember that Shaunna complained to him about the rooms in which she changed. He testified that there was nothing that he could do other than keep the process moving to try to permit her to change in the team dressing room. Mr. Harrison testified that he did not recall any other specific conversations with Shaunna or her mother in the arena. For example, he did not recall if Suzanne Demars told him about the letters that she allegedly wrote to Mr. Ewles. He testified that it was ten years ago and that at the time, because of his extensive involvement with the BYHA over the years, he could hardly walk from one end to the other of any arena without “glad handling” many individuals so it was difficult to remember specific conversations. Mr. Harrison testified that he did not recall if Shaunna had complained about other players making inappropriate comments to her.

75Robyn Demars testified that she told her coach each week that she did not appreciate the treatment, there was nowhere to go, the rooms she was sent to were dirty, and arena staff walked in while she was changing. I have already found that Robyn’s recall of that period is more credible than the testimony of her assistant coach Mr. Grant.

76Mr. Doornink testified that he was appointed to the BYHA board of directors in 2002. He testified that he observed that the organization was run loosely with no systems in place and no process for filing complaints. He also observed that the BYHA management was not transparent, record keeping was poor, and there were no financial controls. The board went from crisis to crisis in his view and the board, coaches, and parents expressed concern. As a result Mr. Doornink testified that he met with Mr. Ewles, who agreed to resign as President. In October 2003 the board appointed Mr. Doornink Interim President. He was ultimately elected President at the 2004 AGM.

77Mr. Doornink testified that he met with stakeholders and began to try to rebuild the organization. This included developing by-laws, creating a public website, writing an operations manual that would document policies and procedures including a complaint process, which was posted on the website in November 2004. He also set up new committees and developed a strong parent rep group. Another of his goals was to remove the President from direct decision-making so that, for example, coaches were selected by a group who considered specific skills and abilities criteria.

78Mr. Doornink testified that he had an open-door policy; he gave out his cell phone and home numbers and email publicly to member parents. This testimony was not disputed by the applicants and I accept it as accurate.

79Mr. Doornink testified that he had known Suzanne Demars when they were both board members in the 2001-2002 season. Thereafter he lost contact with her. He recalls that his first contact after that was through emails on October 25, 2004. His recollection of those emails was that Suzanne Demars stated that the OHF Policy was a good rule but that she was concerned about the changing room facilities for the female players at the Victoria Park and Brampton arenas. In the October 25, 2004 email, Suzanne Demars wrote:

One area that still needs work is the girls that are over 12 (dressing in separate rooms). That is a good rule (OHF), with maturity and privacy, but it does not always work. Our arenas in Brampton mostly have 4 dressing rooms (used by teams), first aid room (bad floor for skates, dirty, no chair, hard to find keys), Refs rooms (used by refs). Vic park 2 weeks ago, soccer was going on outside so soccer refs were using the only back room available for girl to dress. She was made dress [sic] in arena managers office. It is a challenge finding a suitable place to dress for these girls, and it is unacceptable the conditions they are placed in so that they can play hockey.

Could your risk management committee look into this. Dressing in rooms with cleaning agents, in the cold is not right. They need to be given the same safe arena experience as the boys.

80Mr. Doornink testified that he agreed with Suzanne Demars’ email suggestion that the Risk Management Committee should look into the situation of where the female players should change at Victoria Park and agreed that the manager’s office was not appropriate. He testified that he appreciated receiving the email and sent it on to the BYHA Risk Management Committee. Given that he did not perceive any urgency in Suzanne’s email and the fact that the Risk Management Committee was handling a large project dealing with a system for police checks, he forwarded it intending that it be dealt with at the next committee meeting scheduled for December 16, 2004. On January 5, 2005, he also forwarded her email to Mr. McCurdie, Dick Bennett and Todd Jackson of the OHF, and copied 32 others, indicating that he had previously sent it to the Risk Management Committee.

81Mr. Doornink testified that he recalled only one conversation with Shaunna Demars in October 2004 at an event when she asked him what he did. He responded that he was the BYHA President and she said “I hear you did wonderful things.” He testified that Robyn Demars never spoke to him. Mr. Doornink testified that after hearing from Suzanne Demars, he would not have contacted her daughters as it was a reasonable assumption to him that he should deal with parents.

82When he received Suzanne Demars’s next email on November 29, 2004, he gathered that while she appreciated his efforts following the first email, she now raised as a new issue the dressing room policy. In this email Suzanne Demars wrote:

Thanks for the kind words.

New events have taken place throughout Canada on this issue. The Moncton Minor Hockey Association has broken ground with a human rights ruling a 13 year old girl named Bridget be allowed in the dressing room. She faced similar facility problems once she hit 12, and was booted out of her team’s dressing rooms and had to dress in dirty substandard rooms, and feelings of exclusion. The CHA, AND OHF now agree that if suitable arrangements are made (boys wearing boxers, girls wearing short, and t-shirt) it is the right thing to do to allow them to be a real part of the team, always. In saying that I would hope that BYHA set a trend of inclusion, and be one of the first to implement a simple dress code rule (boys wearing boxers, girls wearing short, and t-shirt), and in so doing would end the exclusion of females who chose to play with BYHA.

When a girl has represented Brampton since she was 6 years old in the dressing room, then hits 12 and is kicked out it is devastating, and very emotionally damaging. Shaunna has been kicked out, and fought her way back in. This crazyness has taken away from her thoughts of the game. How can you focus when you are wondering if you get the privilege of being with your team that game, or after a Championship win. Do you have any idea what dressing alone after a big game feels like. I as a mom have witnessed it, and am very saddened by it. It should not matter what coach we get, and if he will pick the right decision to let her be in the room, or by parents who decide if she should be a part of the team. It should be in writing in our constitution. Here is her brief history.

Shaunna Vivian

[6 yrs old to ten yrs old – in dressing room]

11 yrs old – in dressing room until Dec, coach kicked her out after parents complained. After appealing to OHF, coach allowed her back in. she was out 12 games (very upset)

12 yrs old – in dressing room

THIS SEASON – 13 yrs old-out for first 6 games, coach asked players by vote, all team voted her back in room. She remained in room the rest of season. Note she also was an under aged player playing with 14 yr old boys.

14 yrs old – out until coach Tim Harrison takes vote, and talks to league.

This process is ridiculous because it takes so long. Every week she is excluded is damaging to her ability to play her best.

Thank you so much for responding. I am always available to assist if needed.

83Mr. Doornink testified that the contents of this email were news to him and that he was confused because her earlier email had expressed satisfaction with the Policy, calling it a good rule. He testified that thereafter he had several conversations with Suzanne Demars wherein he attempted to explain the process of changing the BYHA approach to the Policy via changing the constitution. He explained that that step could not occur until the next AGM in 2005. He testified that the operations manual that was distributed in August 2004 had included the Policy and since that time it had not been raised with him until Suzanne Demars did in this November 29, 2004 email. He testified that he began to investigate how many female players were impacted.

84Suzanne Demars also sent Mr. Doornink an email dated December 7, 2004 that she alleges described the dangerous conditions of the change rooms. She wrote:

Sat at Vic Park problem. The City apparently changed the lock on the only female dressing room (un-heated, 50 bags of salt on floor). The city worker said that he did not have a key, and what did we expect him to do. Shaunna got dressed in bathroom. Could you please put priority into dealing with this issue. Shaunna is born 1990, but plays with 1989’s. Every Sat afternoon at Vic Park.

Please implement Dress Code across the board

(Boys wear boxers, girls wear shorts, t-shirt) asap.

If it needs to go to the AGM, I would like to put it forward now. In the mean time can we deal with the teams that have girls on them now.

Once again, I am willing to put time into this if needed.

85Mr. Doornink testified that he contacted Harvey Newlove, an employee of Brampton City, so that the issue raised at Vic Park could be addressed. By email dated December 13, 2004 Mr. Doornink forwarded Suzanne Demars’ concerns about Victoria Park to Harvey Newlove, stating:

I just received this email as it was incorrectly addressed to me (rdoornick instead of rdoornink). I would appreciate that it be given immediate attention as the availability of change rooms for females has been an issue in the past.

In the short term can you please correct the situation at Vic Park. In the long term can you please advise how we can work together to ensure that City facilities provide females access to an appropriate change room.

Please let me know what we can do at our end to assist, thanks.

Suzanne Demars testified that Mr. Doornink had followed up in the manner she requested.

86On December 13, 2004, Mr. Doornink received Mr. Harrison’s email asking that the BYHA consider allowing Shaunna to change with her teammates. Mr. Doornink testified that he forwarded it to Chuck Jeffrey who as the VP of House League was the appropriate person to deal with it, and followed up with both Mr. Harrison and Suzanne. He recalls telling Mr. Harrison that he needed a few days to contact and speak with the OHF and re-read the policies. Mr. Doornink testified that until Mr. Harrison’s email he did not know about the voting process and was concerned when he read about it in that email.

87Later on December 13, 2004, Mr. Jeffrey responded to Mr. Harrison and the others who had been copied in Mr. Harrison’s email:

….

The policy regarding female players is one set down by the OMHA, OHF or Hockey Canada I believe. They are to change in a separate area. Depending upon the arena, this is usually the first aid room or the female refereed room at South Fletchers and join the rest of the team about 5 minutes before the game starts once all of the boys have dressed.

This is covered by the OHF (Ontario Hockey Federation) Policy # 12 which is available on the OHF website at www.ohf.on.ca/Harrassment/POLICIES-HandA.htm.

You can also read about integrated teams in the OHF Handbook at www.ohf.on.ca/Harrassment/OHFHAGD.pdf in Chapter 6.

88In an email dated December 14, 2004, from Suzanne Demars to Mr. Harrison, she wrote in part:

Tim Thank-you

….

I appreciate your support, and do not forget that you had a hand in creating changes. We have a hard battle on our hands, but as Shaunna says it is worth it because of her love for the game.

I will keep you informed of what is going on.

Next stop Ontario Human Rights Commission.

89Mr. Harrison responded to Suzanne Demars by email stating:

You know that you have my support and I wish Shaunna all the best in the uphill battle that faces her.

I noticed that Chuck Jeffrey copied you with his response. I wasn’t really looking for his opinion but merely included him as a courtesy.

Richard also responded to me, asking for a few days to study the issue before rendering his decision. This is more the kind of response that I was expecting and I am hopeful (but not terribly optimistic) that he will be able to convince the Hockey Overlords that the situation does not have to be volatile if it is properly managed.

Let me know if there is anything else that I can do to help.

90Suzanne Demars also responded to Mr. Jeffrey’s email on December 14, copying Mr. Doornink, stating:

I am very disappointed, and outraged by this response by the best minor hockey association in Canada. I am surprised that the executive did not do their homework when it comes to checking rules and policies set out by the OHF, and CHA.

Yes policy 12 is still there, but it is a recommendation and not set in stone. The OHF Policy does allow “AN alternate solution” if the team and local association are willing.

This team has asked that Shaunna be allowed in the dressing room.

The coach has requested it in writing, and Shaunna wants in the team room.

Hockey Canada passed a resolution in 2000 saying boys and girls from Atom down could change in the same room. Boys peewee and higher could not.

They changed that stance in Jan 2001 after the family of a Ottawa girl in pee wee complained to the Ontario Human Rights Commission. In a mediated settlement the CHF came up with a four point plan that stated that teams were free to relax the exclusion rules “if the team agrees with an alternate plan. Boys wear boxers, Shaunna wears shorts and a t-shirt.

Please respond in a fair and just way that does not cause more emotional damage to a player who has represented your organization with honour and pride in the rep system, and house league system.

91Later that evening, Mr. Jeffrey wrote the following email to Suzanne Demars, copied to Mr. Doornink:

The first part of the answer was given based upon our past policy, especially with regard to older age groups and before I had fully read the Handbook.

OHF Handbook does allow an alternative arrangement to Policy 12, so long as all parties agree. This appears to have been done in this case. Therefore, unless anyone does not agree with the arrangement as requested, the team can proceed.

We as an organization have recently set up a risk management committee and this topic would be appropriate for them to develop guidelines for approval by the organization.

92Mr. Doornink testified that given his open-door policy he felt that if he could solve issues informally that was most responsive. After the conversations escalated he realized, however, that this was now at the level of a complaint, which required a letter. He also testified that rather than long and inefficient email chains, a letter could better start the formal process. So he asked Suzanne to prepare a letter. By letter dated December 16, 2004, addressed to the BYHA Executive and Robyn’s Coaching Staff, Suzanne Demars wrote:

….

Robyn has been excluded from pre and post game activities strictly because she is a girl. Robyn did not go on her own free will but rather was thrown out of the dressing room as her 12th birthday approached.

The team then chose to use a ten-minute policy where the girls would go into the room right before and after the game. This clearly has not worked. The facilities are not available to accommodate girls in separate rooms. The room they are using at South Fletchers Arena is supposed to be a First Aid room, the key is hard to get, there is only one chair, and there is a window on the door, which does not allow for privacy. The biggest concern is that the girls do not have Team Staff supervision that is mandated, and addresses safety issues.

It is Robyn’s right to dress in the TEAM dressing room with her team. She is willing to wear shorts and a T-shirt to the games, and request the boys wear boxers.

It would be unfair to ask that the players or parents vote on whether she should be excluded based on gender. Robyn’s access to the TEAM Dressing room is not a privilege that can be revoked based on gender. (CHA Bulletin 01/28)

93The applicants agree that Mr. Doornink contacted the city who replaced the clear window in the South Fletcher room with frosted glass.

94Mr. Doornink testified that he was not aware that Robyn was not allowed in the team dressing room ten minutes before or after each game, and that there were 4000 players, 14 arenas, and ten hours of games on any given weekend so he would not know the details of every player’s situation. He also was not aware that any of the applicants had complained to their coaches. And he testified that he had not seen either of the letters allegedly written to Mr. Ewles in September 2002 and September 2003. According to his testimony, the first notice of any problem that Mr. Doornink received was in the fall of 2004 when he received Suzanne Demars’ first email.

95The next email from Suzanne Demars to Mr. Doornink submitted by the applicants is dated December 21, 2004. Ms. Demars wrote:

Rick please deal with this matter as soon as possible. ….

I have also attached the official letter.

I would also like to know when a resolution will be put to the Executive to deal with this issue. It is my recommendation that

All BYHA CO ED teams will follow the following dress code while in dressing room

Boys wear boxers / Girls wear shorts and T-Shirt

along with procedures be put in place to educate the coaches about gender inclusion and inform parents of new rules

96Suzanne Demars testified that she also made phone calls to Mr. Doornink in December 2004. And Mr. Doornink testified that he spent most of December 22 and 23 on the phone with Suzanne Demars. He recalls that she asked him to put a resolution in place to change the BYHA constitution. He explained the procedure he believed would need to occur and offered to help her draft a request to the OMHA to change its policy or alternatively they would need to wait until the BYHA AGM in 2005, and he offered to take a resolution to the BYHA executive in January regarding the latitude offered in the Policy. Mr. Doornink testified that Suzanne’s response was to demand that he deliver to her on BYHA stationary the association’s position and policy regarding her demands. He recalls stating that he would need to further understand the issues and offered again to bring it up to the BYHA Executive in January. He testified that the BYHA was getting mixed signals from the HC and OHF policies as he felt they were slightly different. He wanted to have more information. He also stressed that this was a co-ed program and that was his focus. He testified that there were about 800 coaches in the system and no two teams were the same.

97Mr. Doornink then wrote the following email to Suzanne Demars dated December 23, 2004 copied to several others referenced “integrated dressing rooms case 2” and marked “high importance”:

As per our conversations, if this is an official complaint and you would like an official response, please follow the attached complaint process. In the mean time I am forwarding this email to the City of Brampton and will ask them to rectify the issues you have outlined regarding the change room at South Fletcher.

I have already contacted the OMHA, the OHF and Hockey Canada with respect to their official policies regarding females changing in the dressing room with male players, the policies of these governing bodies would supersede any that we might choose to have in place. As it currently stands, the BYHA does not have a By-law, Resolution or Policy in place specifically covering this issue, we have tried to allow each team to reach an understanding on a case by case basis under the above mentioned policies. As you are aware some of your participant’s coaches have worked hard on providing an inclusive and safe environment for both female and male players on their team(s).

If this unofficial response is not satisfactory, and you feel that we cannot mediate these requests to your satisfaction, please feel free to make an official complaint and a response will be provided as outlined in our Manual of Operations (copy attached, see Chapter 7 Issues of Concern Process). I will at that time provide an answer based on information received from the OMHA, OHF, HC as well as our own legal counsel.

If you have any questions feel free to contact me.

98Suzanne Demars testified that she began completing the Ontario Human Rights Commission complaint forms about a week prior to filing them on December 22, although she could not recall exactly when. At about the same time, both the Toronto Star and Brampton Guardian ran stories about the changing rooms. Mr. Doornink testified that his home phone number was listed on the BYHA website and that during the holiday tournament and after these newspaper stories, he began getting phone calls from the media regarding the newspaper articles, one of which included a photo of Shaunna and Robyn Demars at the Memorial Park arena. The media asked him how the BYHA could treat its females that way. He testified that his position had not changed, he was disappointed and wanted to help.

99Mr. Doornink testified that on January 5, 2005, he continued to work on developing a BYHA dressing room policy with Ms. Demar’s concerns in mind and with the flexibility that he felt was permitted by the OHF Policy.

100With respect to whether or not the respondents were aware of the applicant’s complaints about discrimination, I have found that Suzanne Demars did deliver to Mr. Ewles two letters in 2002 and 2003. The applicants allege that the BYHA did not take any action to investigate following these letters and the BYHA has not provided any evidence that they did until Mr. Doornink became aware of the Demars’ concerns in the fall of 2004. A conclusion that the BYHA did not investigate the Demars’ complaints during Mr. Ewles’ tenure as President would be consistent with Mr. Doornink’s evidence that before he became President, the BHYA management was chaotic and without a complaints process. However, I am also persuaded that the Demars’ earlier complaints were not made known to Mr. Doornink and that he responded promptly to each concern as it was raised with him. There was no evidence that he was aware of the two letters written to Mr. Ewles and the email chains submitted by the parties support his testimony that he was surprised by the issues raised. The dates and content of the email chains between Suzanne Demars, Mr. Doornink, Mr. Harrison, and Mr. Jeffrey corroborate Mr. Doornink’s evidence that he only became aware of issues regarding the nature of the changing rooms and the Policy after late October 2004 with most of the communications occurring in December 2004, just prior to the filing of the Complaints. As well, the email chains and December 16th letter indicate that Ms. Demars did not complain to Mr. Doornink about alleged discriminatory comments, only about the nature of the changing rooms and her request that the Policy be changed. Further, it is not disputed that even after the Complaints were filed, Ms. Demars and Mr. Doornink continued communicating about the question of changing the Policy.

101For the most part I found Mr. Smith to be a credible witness when he testified in general about his coaching practices; however as discussed earlier Mr. Smith changed his testimony regarding whether or not Suzanne Demars or her daughter Shaunna had complained to him about the dressing room situation. He admitted that over ten years his memory has faded and I accept that could be the case. Shaunna Demars and Suzanne Demars were credible and consistent in their testimony that they persistently complained to Mr. Smith about the changing rooms and about comments made to Shaunna.

102Mr. Harrison does recall that Shaunna Demars complained about the nature of the dressing rooms. His evidence was also credible that he was attempting to solve this issue by engaging a process to permit her to change in the team dressing room.

103The BYHA did not present any evidence regarding Robyn Demar’s situation other than from Mr. Grant who was Robyn Demars’ assistant coach and who did not have a clear recollection of many of the conversations from that period. I accept Robyn’s evidence that she did complain to her coaches about the dressing rooms and also about comments made to her and that they were thus aware of both the conditions of the rooms she changed in, the fact that often there was no room for her to change, that she experienced discriminatory comments and they tolerated the discriminatory comments.

Communications and complaints to the OHF by the applicants or through HC

104The applicants initially submitted that the OHF was aware of the alleged discrimination against both Shaunna and Robyn and their constant requests for it to stop, citing three alleged calls where Suzanne Demars left messages with a secretary and on the OHF President’s voicemail. At the hearing, however, Suzanne Demars testified that she did not speak to anyone at the OHF until after the Complaints were filed.

105Suzanne Demars also testified that she did not deliver a copy of either of the letters she wrote to Mr. Ewles to the OHF but that she assumed Mr. Ewles would speak to the OHF about the contents. She testified that she thought it was the BYHA’s responsibility to report “disclosures” up the chain. Ms. Demars also testified that she did not attempt to contact the OHF Executive Director Mr. McKee before January 13, 2005.

106Shaunna Demars alleges that she put in many formal requests to the OHF, but did not identify any. Robyn Demars testified that she had never contacted the OHF.

107In February 2003 Mr. McKee was appointed the OHF Executive Director. Prior to that time he was an administrative assistant to the OHF staff. Mr. McKee testified that in 2004 there were five salaried staff including his position. His function was to work with the sub-member partners and HC to implement policy and facilitate any policy changes. He testified that in 2004 there were no offices or dedicated phone lines set up for the OHF Executive, only for the staff. Also at the time the OHF did not have a receptionist. He also testified that on the dates that the applicants originally alleged phone messages were left, September 6, 2004, which was Labour Day, and October 11, 2004, which was Thanksgiving, the office was closed and to his knowledge no voice message was left.

108He testified that he did not see either letter allegedly written to Mr. Ewles and he had searched the OHF records and could not find them.

109Mr. McKee testified that he checked the records and the December 16, 2004 letter from Suzanne Demars to the BYHA Executive was not received by the OHF. He testified that since 2001 the practice was that letters received were scanned and uploaded to the OHF server. To date the OHF had not deleted any correspondence thus recorded. He did, however, receive a copy of Suzanne Demars’ December 23, 2004 email to Mr. Doornink. He testified that this was the first time that the applicants’ concerns became known to the OHF. He testified that he was not in the office on this date and received the email when he reached his holiday destination. The OHF submits that its offices were closed between December 24, 2004 and January 2, 2005, and Mr. McKee was out of the country from December 22, 2004 to January 2005. The OHF submits that on either December 22 or 23, 2004, Mr. Jackson of HC told Suzanne Demars that the OHF office was closed for the holidays and that Mr. McKee was out of the country and would contact her upon his return. Mr. McKee testified as well that no one from HC contacted him prior to December 23, 2004 with respect to the Demars’ concerns. Thus Mr. McKee testified that although the December 23, 2004 newspaper stories quoted the Demars stating that “the OHF refuses to consider this a priority,” Suzanne Demars had neither contacted the OHF directly prior to December 23, nor informed the OHF that she intended to issue the press releases. On December 23, 2004, through communications from Todd Jackson and Glen McCurdie, both of HC, the OHF became aware of a pending news release by the Demars.

110The applicants also submitted that Suzanne Demars communicated with HC who would have related her concerns to the OHF. Suzanne Demars testified that on Monday October 11, 2004, she called Hockey Canada and spoke to a secretary who put her through to Todd Jackson’s voice mail. However, in cross-examination Suzanne Demars testified that contrary to the allegations in the Applications, between October 11 and until December 22, 2004, when the Complaints were filed, she did not speak to anyone at HC. Mr. Jackson testified that he was first contacted at HC by email from Suzanne Demars on December 23, 2004. His practice was to make a note of all calls and print and save all emails. He did not recall receiving a voice message from Ms. Demars on October 11, 2004, also as had been alleged by the applicants. And he testified that that day was a holiday. I accept the respondents’ testimony and find that Ms. Demars did not contact HC until December 23, 2004.

111On December 23, 2004, Todd Jackson of HC wrote an email to Suzanne Demars to “follow up” on her message to him about co-ed dressing rooms. In that email he reviewed the history of the Policy development and offered to discuss it with her. Ms. Demars responded on the same day asking Mr. Jackson to phone her and he did. At the same time he heard from Mr. Doornink. He testified that in the call HC fully recognized that many facilities are not sufficient for co-ed dressing but that as users they were limited in their ability to deal with that situation. Further, with respect to the Argent Settlement and Policy, teams were permitted to come up with alternate plans. The call ended with the understanding that Suzanne Demars and Mr. McKee would follow up. Mr. Jackson had no further phone calls with Ms. Demars. However, he participated in further emails during January 2005.

112Glen McCurdie testified that HC member branches were required to follow HC policies and with respect to the dressing room Policy, member branches could not pass a policy that was less restrictive. If that happened the HC Board could intervene and take any action including striking the policy or withdrawing membership. HC’s expectation was that its policies would be uniformly implemented. Mr. McCurdie testified that he was involved in the Argent Settlement.

113Mr. McCurdie testified that he first became aware of the applicants’ concerns with the Policy on December 23, 2004, when Mr. Jackson shared an email he had received from Suzanne Demars. He recalled that he and Mr. Jackson spoke by telephone with Suzanne Demars on December 24, 2004. They addressed the issues and background of the Policy, identified concerns that the Policy addressed, and told Suzanne Demars that it was HC’s responsibility to balance the needs of all its members. He recalls that they discussed that it was common knowledge that the facilities were “brutal” and that lack of facilities was an issue. He had no direct contact with Suzanne Demars afterwards.

114Given the applicants’ testimony that none of them spoke to or communicated with anyone at the OHF before the Complaints were filed, Mr. McKee’s testimony regarding the set-up of the OHF offices, and the fact that the alleged calls would have occurred on holidays, I find that the applicants did not communicate any concerns to the OHF prior to filing Shaunna and Robyn’s Complaints. I am not persuaded that the OHF had any knowledge of the applicants’ complaints prior to December 23, 2004 thus triggering its duty to investigate. Although one of the handwritten notes written to Mr. Ewles included a cc to the OHF, Ms. Demars testified that she does not know that it was delivered to the OHF. The other letter did not specify a cc to the OHF. Ms. Demars testified that she did not send copies to the OHF but thought that BYHA would do so. Mr. McKee testified that he searched the OHF records and could not find a copy of either of the September 2002 or September 2003 letters. I find that the applicants have not met their onus to prove that either of these letters was sent to or received by the OHF.

115Nonetheless the applicants allege that the OHF was aware that most facilities in Ontario do not have suitable or comparable rooms to dress, was aware of the types of rooms that Shauna and Robyn had changed in, and was aware that enforcement of the Policy meant the loss of team staff supervision that is mandatory for all players.

116The OHF denies that it was aware that “female players are kicked out” and further submits that it considered the possibility that comparable rooms may not be available. The OHF submits that it did not have a policy that mandated supervision for all players, just those participating in Atom division or below. It maintains that the Policy required the coach to ensure that all players were involved in pre- and post-game activities.

117The applicants have not presented evidence that would enable me to conclude that the OHF would have known about the specific rooms that Shaunna and Robyn Demars were changing in. The OHF denied that they had this knowledge and there is no evidence to the contrary. I find that the applicants have not shown that the OHF was or should have been aware of their allegations of discrimination.

118After the Complaints were filed and upon his return from holiday, Mr. McKee attempted to call Suzanne Demars on January 4, 2005, but no one answered her phone. He testified that on January 6, 2005 he called again and Ms. Demars’ son answered, so he left a message with him to ask her to call him back. Mr. McKee testified that he had contact with Suzanne Demars after January 6, 2005 and set up a phone call for January 13, 2005. In his phone discussions, Mr. McKee testified that his advice on behalf of the OHF was to first speak to the BYHA and then later on January 24, 2005,he indicated to Suzanne Demars that the next step would be to contact the OMHA. He testified that although the OMHA had no authority to change the OHF Policy it could bring suggestions that the OHF could take to HC. He testified that he advised her that a harassment complaint should go to the OMHA before it was presented to the OHF. The OHF submits that it understood from the January 13th call that Ms. Demars would provide it with documentation regarding her previous communications to the BYHA so that the OHF could review that material and consider a plan of action to resolve the matter with the OMHA and BYHA. It submits that it did not receive that documentation. Mr. McKee testified that after January 24, 2005, the OHF and Suzanne Demars had no further contact.

Fair Play Committee – Suzanne Demars

119Suzanne Demars was a volunteer with the BYHA for 13 years acting in a variety of positions, including seven years on the BYHA Board of Directors. She was not on the board during the 2004-2005 season, but volunteered as a coordinator for tryouts and registration. She also testified that she attended many BYHA AGMs.

120In November 2004, Mr. Doornink asked Suzanne Demars to sit on the BYHA Fair Play Committee. Ms. Demars alleges that she attended one committee meeting in December 2004, was given work to do, and spent many hours on committee work. The applicants submitted an email dated December 16, 2004 from Robert Dugan to Ms. Demars thanking her for her commitment to work with the committee, attaching the minutes of the last meeting so that she could catch up, and welcoming her to an upcoming meeting. A subsequent email from Mr. Dugan to the committee members included the meeting minutes, noted Suzanne Demar’s presence, and action items assigned to her.

121Mr. Doornink testified that after the Demars’ December 2004 press releases were issued and it became known that Shaunna and Robyn Demars had filed their Complaints through Suzanne Demars, he received phone calls from BYHA volunteers like Bob Duggan who chaired the Fair Play Committee, and he began to think that there was a conflict of interest for Suzanne Demars to continue to sit on that committee. He testified that he felt she should step aside until after the conflict was resolved. He testified that while he had no authority to appoint committee members because that was done at the AGM on a motion by the Executive Committee, he nonetheless felt that he could not support her membership on that committee. So he sent her an email to that effect on January 5, 2005, stating “please be advised that as it appears you are in the process of filing an Ontario Human Rights Complaint against our organization I respectfully have withdrawn your name from consideration for appointment to the Risk Management Committee until which time as this issue is resolved.” Mr. Doornink testified that he meant to write the Fair Play Committee in this email and wrote an email to that effect to Ms. Demars a few minutes later. Mr. Doornink testified that although Ms. Demars had attended meetings, she had not yet been officially appointed, as that would happen at the 2005 AGM.

122Ms. Demars felt that she was “fired” from this volunteer position because of her association with her daughters’ Complaints and wrote back to Mr. Doornink that she considered it a reprisal for supporting her daughters’ human rights complaints. Ms. Demars did not dispute that the President could only recommend names to committees and did not actually appoint members.

PRELIMINARY ISSUES

123The respondents raised several preliminary issues. First, they argue that neither the OHF nor the BYHA were providing a service to the applicants Shaunna Demars or Robyn Demars and thus the Tribunal does not have the jurisdiction to hear these Applications. Second, the respondents argue that the Tribunal should decline to decide the allegation that the Policy is discriminatory because it was the result of a mediated settlement ratified by the Ontario Human Rights Commission. Finally, the respondents argue that the Tribunal should decline to hear Shaunna and Robyn’s applications as the issues they raise are now moot.

Jurisdiction – Were the BYHA and the OHF providing services to Shaunna and Robyn Demars?

124It is well established Tribunal jurisprudence that while the term “services” is defined in the Code only to the degree that is it described as not including a levy, fee, tax, or periodic payment imposed by law, given the nature of the Code and fact that the term “services” has not been limited, it should be given a broad, liberal and purposive interpretation. See Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, Suhanovs v. Toronto Transit Commission, 2010 HRTO 1240 and cases cited within, C.K. v. Ontario (Children and Youth Services), 2010 HRTO 2500.

125The Tribunal to date has determined that evidence of a “service relationship” requires something more than mere interaction between the parties. In Cooper v. Pinkofskys, 2008 HRTO 390, citing Braithwaite, the Tribunal stated that “a service in the Code must mean something which is of benefit that is provided by one person to another or to the public. The Code is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it.” See Thavarajasoorier v. Incorporated Synod of the Diocese of Toronto, 2009 HRTO 314, and Cooper, supra.

126In brief submissions on this jurisdictional issue, the BYHA submits that Shaunna and Robyn voluntarily participated in programs co-ordinated by the BYHA and that the provision of facilities was by the City of Brampton; thus the BYHA provided no goods or services to them. In contrast, Mr. Doornink testified that in order to promote amateur hockey and the love of the game, the BYHA provides coaches, supervision, and safety, among other things. This intent is also evident in the BYHA Manual. Further, Mr. Doornink testified that one of his duties as the BYHA President had been to ensure that the association delivered fair value to the hockey families for the dues they paid. In my view, clearly the BYHA is providing a service to players who register to play in this association.

127The respondent OHF argues that because it is not operating to make a profit or operating in any commercial way, it cannot be found to be providing goods and services to the applicants. In my view whether or not the OHF was carrying on a business because it is a non-profit organization is not the correct focus. For the following reasons, I find that despite its non-profit status the OHF was providing a service to the applicants Shaunna and Robyn Demars.

128The parties do not dispute that among the OHF’s objects is to foster, encourage, and promote the sport of amateur hockey within its jurisdiction. Additional objects are listed as: “to provide opportunities for all players to play the sport at levels appropriate to their degree of skill or interests.”

129The OHF carries out its objectives through various committees and operates under its regulations, which include for example its authority to approve the Playing Rules of OHF Member Partners and protective equipment for players. Within its Handbook are also listed rules related to Player Registration and Eligibility. The OHF Handbook also includes various policies such as a Code of Conduct, the Dressing Room Policy, and the identification of minimum suspensions for certain infractions by players, coaches, and team officials associated with game play.

130Although each OHF Member Partner may administer its affairs within its own jurisdiction and may have their own governing rules and regulations, it must operate in a manner consistent with the Constitution, By-laws, Regulations, and Rules of Hockey Canada and the OHF. And as an association within the OHF Member Partner OMHA, the BYHA is bound by its constitution and as a condition of its membership to obey the policies, rules, and regulations as “propounded” down through the hierarchy. And at the player level, the OHF Regulations, included in its Handbook, state that each player must abide by all rules, regulations, and Policies of Hockey Canada, the OHF, and the OHF Member Partner for which they are eligible.

131As per the OHF Handbook, each player who participates with or in a Member Partner must register with the OHF and pay an annual registration fee. Thus a player may not participate with a Member Partner without first registering with the OHF and paying its registration fee, which is a part of the total fee collected by each player’s local association. Mr. McKee testified that if OHF expenses increased this could translate into an increase in player registration fees.

132In my view the relationship established by the OHF rules and the players’ fees creates more than a mere interaction between the OHF and the fee-paying players. Further in my view the various OHF policies are beneficial to the players. Through the collection of player fees, the OHF offers a service to the public in promoting and supporting hockey and by developing rules, regulations, and policies towards that goal. The applicants as fee-paying registrants are members of that public to which it provides these services. Among its services are the development and presentation of policies and rules which the Member Associations and the players must comply with, including the Dressing Room Policy. These policies can be regarded as both services in and of themselves as well as administrative tools to support the various services it provides to its members. See also Blainey v. Ontario Hockey Association, 1986 CanLII 145 (ON CA), 54 O.R. (2d) 513, 7 C.H.R.R. D/3529, 1986 CanLII 145 (ON CA).

133I find that during the period that the applicants Shaunna and Robyn Demars were registered to play hockey for the BYHA, both the OHF and the BYHA were providing services to them as that term is understood in the Code.

Should the Applications be dismissed under the doctrine of mootness?

134The OHF also asks that the Applications be dismissed because there is no live controversy between it and the applicants. Citing Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the OHF argues that if a live controversy is no longer present when a court is called upon to reach a decision, then the court is required to decide if it should nonetheless exercise its discretion to hear the matter after applying the factors listed in Borowski.

135Given the current ages of Shaunna and Robyn Demars they are beyond the age where they could play with the BYHA, and the Policy at issue is no longer in effect having been revised in 2006. However, in my view the doctrine is not appropriate here. Among the powers given to the Tribunal pursuant to the Code is the authority to address past discrimination and the impact of that on applicants. If either the BYHA or the OHF discriminated against the applicants as alleged, they may be entitled to damages for that discrimination. Furthermore, if liability is found there may be public interest remedies appropriate to address the respondents’ behaviour. For all these reasons, it is not appropriate to dismiss these Applications under the mootness doctrine.

Effect of Argent Settlement

136The subject matter of Shaunna and Robyn Demar’s Applications includes the allegation that the OHF Policy discriminates against players of the female gender. The respondents argue that the merits of this issue were settled when the Ontario Human Rights Commission ratified the Argent Settlement. Hockey Canada argues that since that time it has relied on the ratified Settlement and believed it could enact the Policy across the country with confidence that it would not be held to be discriminatory.

137In Sanford v. Koop, 2005 HRTO 53, the Tribunal refused to make findings regarding allegations against an employer who had previously entered into a settlement with the applicant. The Tribunal reviewed the Ontario Divisional Court decision York Advertising Ltd. v. Ontario (Human Rights Commission), [2005] O.J. No. 1808, (2005), C.H.R.R. Doc. 05-472 (Div. Ct.), where it noted that the Divisional Court “emphasized the importance of maintaining the integrity of the settlement process envisaged and encouraged by the Code.” In York the court stated that the party there was entitled to assume that “once the terms of the settlement reached had been fully finalized, [it] could safely disengage [itself] …. without fear of being in jeopardy of being the subject of adverse findings and conclusions by the Tribunal.” I also observe that the Tribunal’s Rules provide a mechanism for and encourage settlement of disputes under the Code.

138The OHF Policy that was in place at the relevant time was written to reflect and conform with the terms of the Argent Settlement reached between an OHF member branch, a local club within that branch, and the intervener in these applications HC. While the undisputed evidence is that the OHF is, and was, bound by HC rules to conform to any HC policy, the OHF itself was not a party to that settlement. Hockey Canada was a respondent to the Argent Complaint. However, it is an intervenor in the immediate Applications. Most importantly the applicants were not parties to the Argent Settlement and are not bound by it. See also Shykula-Ross v. Salmon Arm Minor Hockey Association and others, 2008 BCHRT 262. I do not find, therefore, it is appropriate to use the Argent Settlement as a bar to these applicants challenging the OHF Policy as discriminatory towards them.

ISSUES

139The issues before me are as follows:

1. Was the OHF Policy in force at the relevant time discriminatory with respect to the applicants?

2. Did the respondents discriminate against the applicants Shaunna and Robyn Demars on the basis of gender?

3. Did the respondents have a duty to investigate the applicants’ claims of discrimination, and if so did they fulfill that duty?

4. Did the BYHA or Mr. Doornink discriminate against Suzanne Demars on the basis of family status or reprisal?

5. If discrimination occurred, what is the appropriate remedy?

RELEVANT CODE SECTIONS

140Section 1 of the Code provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability.

141With respect to reprisal, Code section 8 provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

ANALYSIS AND DECISION

1. Was the Policy Discriminatory?

142The Policy clearly specifies that once a player attains the age of 12, players of opposite genders must either change their clothes in separate dressing rooms if available or, if no separate changing areas are available, then share one dressing room in shifts. Mr. McCurdie testified that the judgment was made that at age 12 the risks of mixed genders changing together were higher. Mr. McKee testified that the Policy wording: “seeks to balance rights and feelings”, refers to how the players would feel about changing with the opposite gender in the same room. I am satisfied that the general purpose of the Policy was to ensure that all players’ rights and feelings for modesty and privacy are respected when changing clothes in a safe and respectful environment. Code section 20 provides that:

The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency.

143In my view, to require male and female players over the age of 12 to change in separate dressing rooms or apart from each other is not discriminatory under the Code. Further, the Policy directs that male and female players have access to either separate facilities or to share one facility in shifts. There is no evidence the standard was adopted as a pretext to disadvantage female players. As such, I find that the Policy in effect at the time was not discriminatory under the Code.

144I observe, however, that based on the evidence of several witnesses it was common knowledge that while there were more than 600 facilities in Ontario at that time, these were in high demand and, given the constraint of space and time, the changing rooms typically were also used to conduct team activities. It was not disputed that in the Brampton area as well as generally in Ontario, several amateur teams would be booked to use an arena on any given day and that therefore available dressing rooms and/or rooms in which to conduct team activities were limited. Further, there was much undisputed testimony regarding the fact that many of the arenas during the relevant period in the Brampton area were old and had few dressing rooms. The OHF testified that the number of women participating in co-ed youth hockey programs has steadily been increasing, thus it is also a fair conclusion that it would have been understood that there was growing pressure on available space for changing rooms. Although the Policy purports to set out clear guidelines, there are no standards set out to assist and guide the local associations in establishing what may be acceptable alternate change room facilities.

145A second difficulty results from the necessity for the change rooms to serve more than one function, in that these also serve as a team meeting or activities room. Although based on the evidence there seemed to be an understanding and acceptance that 10 or 15 minutes before and after each game would be reserved for team meetings and activities, the Policy was lacking any guidance on how to ensure both genders would have equal access to the pre- and post-game team activities conducted in the change rooms.

146Mr. McKee testified that the OHF did not provide guidance on how to implement the Policy and to his knowledge had never been asked. Mr. McKee testified that as stated in the Policy, the OHF expected the coaches to be responsible for ensuring player participation in the pre- and post-game activities and if there were any issue with a local facility it would be the local association that would deal with it. It was not disputed, however, that the local associations do not own or control the arena space, but instead rent ice time for their use.

147Thus although I find that the Policy as written is not discriminatory with respect to the use of change rooms for dressing or undressing, there appear to have been gaps in giving guidance on how to ensure mixed-gender teams included all players in team activities held in these same rooms. Further, the Policy did not provide any practical guidance to assist teams to find appropriate separate change room facilities.

2. Did the respondents discriminate against the applicants Shaunna and Robyn Demars on the basis of gender?

OHF

148Both Shaunna and Robyn Demars allege that the discriminatory treatment they received, including change rooms that were not equal separate facilities, resulted because of the OHF Policy. I have already found that the OHF Policy was not discriminatory and a plain reading of the Policy, albeit with no guidance, is that if separate and presumably comparable facilities are not available then the dressing room that is available shall be used in shifts. The Policy background states as a purpose that the players be provided a safe and inclusive environment. The Policy does not condone relegating the lesser-represented gender players to substandard changing rooms. If the applicants were in effect sent to substandard and unequal changing rooms, this would not have been because of the Policy but because of the local association’s practice. Further the Policy requires that teams ensure all players have access to pre- and post-game team activities.

149In addition to the Policy, the other alleged discrimination by the OHF is in Robyn’s Application wherein she alleges that during a phone conference call among Suzanne Demars, Todd Jackson, Phil McKee, and Brandy Conenbaum, one of the OHF participants said to Suzanne, “if you want to stop the discrimination/harassment [Robyn] should play in the girls league.” I have found that the applicants did not meet their onus to prove that this statement was made and therefore there is no basis for this allegation against the OHF and it is dismissed.

BYHA and Richard Doornink

150Other than dressing and undressing together, implementation of the Policy per its directives does not prevent both genders from being together in the team dressing room. The Policy required that teams ensure all players participate in pre- and post-game activities regardless of the gender of the individual and further required “the team and local association to actively manage the risk and ensure the safety of individual players when they are dressing, undressing and showering.” I have found that there were periods when Shaunna and Robyn Demars’ pre- and post-game experiences were far different than that of their male teammates.

151On a balance of probabilities. the evidence persuades me that during the first season, 2002-2003, Shaunna Demars was unable to participate equally in the pre- and post-game activities and was subjected to discriminatory comments from her teammates. During the second and third seasons, prior to being able to dress with the team following a vote each of those seasons, I am persuaded that on balance the evidence supports that she was able to be in the team dressing room for team activities.

152I am also persuaded that during the fall of the 2004-2005 season Robyn Demars did not have access to team activities that were held in the dressing rooms at all until December 2004. In December 2004, she was permitted to stay in the team dressing room for a 10 or 15-minute period before each game only when male players did not arrive late and during post-game activities she was told a few times by male players to leave the dressing room. As well she experienced discriminatory comments from some of her male teammates that were tolerated by the coaching staff.

153Thus during the periods outlined above: the first season, 2002-2003, for Shaunna Demars and the fall of the 2004-2005 season for Robyn Demars, these applicants were not able to fully participate in team activities held in the team dressing rooms. Thus they did not receive the full benefit of coaches’ talks, game strategies and tips, socializing with teammates, access to the team trainer, and team drinks and celebrations while their male teammates did.

154Shaunna and Robyn Demars faced further discrimination in that, unlike the male players, neither the team coaches nor the BYHA arranged places for them to change or even developed a plan for how they would find suitable rooms. By not arranging for a suitable place for them to change, those applicants were treated differently than their male teammates, who were assured an appropriate dressing room in each arena and not made to fend for themselves to locate a room in which to change. Further, on a balance of probabilities I am persuaded that during the first season for Shaunna and during the fall of 2004 for Robyn, these applicants were not able to find comparable rooms and in fact sometimes they were not able to find rooms at all.

155In my view the Code requires that the association monitor whether or not the arenas they play or practice in have sufficient and suitable rooms available for all players regardless of gender and develop a plan for how to locate equal rooms if necessary for the co-ed teams. Although Mr. Doornink did follow up on complaints once he was apprised in October 2004, prior to that time the coaches would have been aware that female players on their teams needed places to change, and they did not address the matter.

156I have found that at least during the start of the 2002-2003 season, male players made discriminatory comments to Shaunna Demars. I have also accepted Shaunna and Suzanne Demars’ evidence that during the 2004-2005 season male teammates taunted Shaunna with comments to the effect that she needed to be nice or they would not vote for her request to remain in the team dressing room the entire pre- and post-game periods. Despite the fact that Mr. Harrison was attempting to gain access for Shaunna through a voting process, these unwelcome and discriminatory comments were made as a result of the dressing room situation and flowed from her gender. I have found that the BYHA knew and tolerated the fact that the alleged comments were made. And even if I were not to have made that finding, I observe that they ought to have known it would happen given the way they undertook things.

157I find that Shaunna and Robyn Demars faced discrimination on the basis of their gender by the BYHA during the periods outlined above.

3. Did the respondents have a duty to investigate the applicants’ claims of discrimination, and if so did they fulfill that duty?

OHF

158In the provision of its service to youth hockey players the OHF had a duty to investigate any claims of discrimination. See Abdallah v. Thames Valley District School Board, 2008 HRTO 230.

159The applicants Shaunna and Robyn Demars allege that since they turned 12 years old the OHF was aware they suffered discrimination and harassment in their hockey activities and ignored constant requests for it to stop. The applicants allege that the OHF was aware that these applicants had to dress in unsuitable tiny rooms meant for cleaning supplies, where chemical and cleaning supplies were stored, and that these rooms were unheated, were without chairs, and had no lock on doors (with the result that many times arena staff would walk in on them), and that the OHF knew that they were not supervised when left alone to change.

160The OHF submits that when it became aware that the applicants had an issue with the Policy, it made contact with Suzanne and the BYHA to see if they could resolve the matter. This was after Shaunna and Robyn Demars’ Complaints were filed. Emails dated December 23, 2004 that were submitted and not contested showing various communications among Todd Jackson, HC Manager, Safety and Risk Management, Brandy Tanenbaum, OHF Technical Director, Glenn McCurdie, and Suzanne Demars indicate that after Shaunna and Robyn Demars’ Complaints were filed, Ms. Demars informed Todd Jackson about the subject matter of those complaints. The emails further evidence that a phone call was then planned to discuss the issues with Suzanne, and to discuss the process for requesting changes to the Policy as well as to discuss the requirements in the Policy that coaches ensure that all players are involved in pre- and post-game activities. The email exchanges continue into early 2005 and evidence that discussions continued on these issues. Thus it appears that it was after the Complaints were filed that the OHF and HC first became aware of the issue and that subsequent to this they took the matters raised seriously. The evidence does not support that OHF’s duty to investigate was triggered prior to the Complaints’ filing date.

161I have found that the applicants did not meet their onus to prove that prior to filing their Complaints they communicated their concerns to the OHF or for that matter to HC who then may have spoken to the OHF. Nor have the applicants proven that the OHF received copies of the letters that Suzanne Demars wrote to Mr. Ewles. And while they allege that the OHF ought to have been aware of any communications they made to the BYHA, as they assume that it is the local association’s duty to report any complaints of this nature to the OHF, they have not proved that there is any basis to conclude that the OHF would have or should have been apprised.

162Further, considering Mr. McKee’s evidence, I find that the applicants have not shown on a balance of probabilities that the OHF should have known that Shaunna and Robyn Demars were not supervised in the location of their change rooms, that some of those rooms were substandard, or that sometimes they had no room in which to change.

163I find that the applicants have not shown that prior to making their Complaints they apprised the OHF about their concerns, thus triggering its duty to investigate. And in fact after the Complaints were filed, once the OHF became aware of the applicants’ concerns with the Policy, without delay it contacted Suzanne Demars in order to try to resolve the matter.

164I find that the OHF’s duty to investigate the complaints of discrimination by those to whom it delivered services was not violated by the events in these Applications.

BYHA

165With respect to Shaunna Demars, I have found that Suzanne Demars delivered two letters to Mr. Ewles while he was the BYHA President outlining her concerns about the dressing room situation for Shaunna as well as complaining about some discriminatory comments. I have also found that the evidence supports a finding that both Suzanne and Shaunna Demars made their concerns about unequal treatment and discriminatory comments known to Mr. Smith while he was Shaunna’s coach. I am persuaded that following those communications the BYHA had a duty to investigate and at that time it did not.

166With respect to Robyn Demars, I accepted Suzanne Demars’ evidence that her letter dated December 16, 2004 to BYHA was the first time she informed the BYHA in writing about any issues regarding Robyn. However, Robyn Demars’ testimony that was unchallenged by the BYHA because her head coach did not testify was that she complained to her head coach each week about the ordeal of finding changing rooms, the condition of the rooms, and the comments. I have also accepted Mr. Grant’s testimony that he could not recall all conversations during that season; therefore his testimony does not detract from Robyn Demars’ on this point. I find that the BYHA’s duty to investigate was triggered and it was under an obligation during the fall of 2004 to investigate Robyn Demar’s complaints of unequal and unfair treatment.

167The evidence is that when Mr. Doornink became aware of the applicants’ issues with the dressing room situation, he contacted Suzanne to resolve the issues. Mr. Doornink responded to the complaints about the rooms given to Shaunna and Robyn as he became aware of them. He responded to Suzanne Demars’ request to change the Policy as soon as she communicated that to him. He also responded to Mr. Harrison’s request as soon as that was delivered. And Mr. Doornink continued to discuss these issues up to and beyond the time that Suzanne Demars filed Complaints on behalf of Shaunna and Robyn.

168Despite Mr. Doornink’s tenacity once he became aware of the Demars’ concerns, the evidence is that beginning in September 2002 Suzanne Demars communicated her concerns to Mr. Ewles in private conversation and through two letters. Mr. Grant, Mr. Smith, and Mr. Harrison were aware of the Demars’ complaints of unequal treatment and Mr. Grant and Mr. Smith were aware of their complaints of discriminatory comments. Of these coaches, only Mr. Harrison took it upon himself to attempt to address the concerns.

169I find that with the exception of Mr. Harrison’s inquiry to Mr. Doornink, prior to Mr. Doornink’s involvement, the BYHA offered no evidence that during the period from September 2002 to October 2004 the BYHA investigated any of Shaunna Demars’ concerns and that during September through November 2004 Robyn’s coaches did not apprise the BYHA of her concerns and thus these too were not investigated. Thus I find that during the majority of the period covered by the Applications, the BYHA was under a duty to investigate allegations of discrimination and did not satisfy its duty to investigate those allegations as required under the Code.

4. Did the BYHA or Mr. Doornink discriminate against Suzanne Demars on the basis of family status or commit a reprisal?

170Based on the evidence, I find that it is reasonable to conclude that Mr. Doornink did not have the authority to appoint or dismiss committee members. His undisputed testimony is that he was attempting to distance the President from influencing the process. On the other hand, Mr. Doornink did ask Suzanne to sit on the committee in the first place and presumably provided her name to the committee. His communication with Fair Play Committee chair Mr. Dugan persuades me that Mr. Doornink decided after learning that Suzanne Demars filed her daughters’ Complaints to withdraw his support for her committee assignment and that in effect she would then no longer be a candidate at the spring AGM. In effect she would not be welcome at committee meetings in the interim either.

171I find that through these actions, BYHA through Mr. Doornink infringed Suzanne Demars’ rights to participate in her volunteer role because she instituted proceedings under the Code and thus infringed her Code rights. And he did so intentionally because she instituted the proceedings.

172For all the reasons above the Applications against the OHF are dismissed. To the extent listed below the applications against the BYHA and Richard Doornink are granted:

• The BYHA discriminated against Shaunna and Robyn Demars by not providing equal access to pre- and post-game activities and in not providing access to comparable dressing rooms as well as in not arranging dressing rooms for them as were arranged for their male teammates. Further, the BYHA discriminated against Shaunna and Robyn Demars by tolerating discriminatory comments made by male teammates while engaged in a BYHA organized game or practice.

• Until Mr. Doornink became involved in the fall of 2004, the BYHA discriminated against Shaunna and Robyn Demars in not investigating their complaints after its President Mr. Ewles and Robyn’s coaches and Shaunna’s coach Mr. Smith were apprised.

• Mr. Doornink and the BYHA committed a reprisal against Suzanne Demars when it removed her from a committee as a volunteer because she instituted proceedings under the Code.

5. What is the appropriate remedy?

173Section 45.2(1) of the Code provides the Tribunal with the authority to direct a party who has violated the Code to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings, and self-respect. Shaunna and Robyn Demars are entitled to monetary compensation for the injury to their dignity, feelings, and self-respect arising from the breach of their right to be free from discrimination due to their gender. Suzanne Demars is entitled to the same type of compensation for her right to bring the Complaints on behalf of her daughters without reprisal.

174Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The effect on the victim, while important, is not the only factor relevant to compensation for intangible loss. It is also appropriate to apply a degree of objectivity in evaluating the circumstances surrounding the violation of the Code; see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

175The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (Ont. Sup. Ct.), (2008) 295 D.L.R. (4th) 425. The Divisional Court has also recognized that humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages; see ADGA Group Consultants Inc., supra at para. 154.

176As stated in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, under the Code, the Tribunal is required:

to make a general evaluation of the circumstances of the Code violation and its effects to determine the appropriate monetary compensation for injury to dignity, feelings and self-respect.

177The Tribunal in Arunachalam further discussed the two criteria identified in Seguin, supra: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination as follows:

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

178Applying the first criterion, the objective seriousness of the conduct to Shaunna’s situation, both the disregard for Shaunna’s situation during the 2002-2003 season and the lack of oversight for finding a place for Shaunna to change during that season and the fall of the next two seasons shows a complete lack of respect or consideration for the circumstances of a female player on a co-ed team during that period. Furthermore, the BYHA had a duty to investigate and failed in that duty until late in the three-year period covered by her Application. This prolonged period of not dealing with the circumstances facing Shaunna as a female player on a co-ed team increased the injury to her dignity, feelings, and self respect.

179Applying the second criterion, the effect on the applicant Shaunna Demars of experiencing discrimination: her Application covers a three-year period, and during the first season and fall of each of the next two seasons, I have found that Shaunna was not provided with comparable dressing rooms, was in fact left on her own to find places to change, and was harassed due to her gender. I have also found that for most of the first season she was not permitted the same access to team activities held in the dressing room as her male hockey team mates.

180During part of the second and third seasons when Shaunna was permitted to change with the team in the team dressing room, Suzanne Demars testified that there were no problems. Mr. Harrison testified that he did not see much of a difference in Shaunna between when she was permitted to change and when she was not. Shaunna herself testified that both times she was allowed to change in the team dressing room things were fine and those seasons went well. Thus there was some evidence that during the those times in the second and third seasons Shaunna did not experience the same frustration and hurt feelings as otherwise.

181I accept Shaunna’s evidence and that of her mother Suzanne that during the entire first season, 2002-2003, and for the first part of each of the second and third seasons, she was frustrated and her feelings were injured when she was left alone to find a room to change in, sometimes could not find a room, and felt distanced from her team and embarrassed and hurt by the comments that she received. Furthermore, I accept her evidence that she was humiliated during the fall of 2004 when teammates teased her about not voting for her unless she treated them nicely. Also, Shaunna, given her young age relative to the adult coaching staff, would have been vulnerable. I have found that but for her gender none of this would have happened.

182An order for compensation for injury to dignity, feeling, and self-respect is a discretionary award. I conclude that, in the circumstances of this case, and considering the fact that Shaunna faced discrimination during the first season and for portions of the second and third seasons as well as the fact that the BYHA did not investigate for a period of over two years, an award of $12,000 to compensate this applicant for loss of dignity and the injury to her feelings arising from her right to be free from discrimination due to gender is appropriate.

183Applying the first criterion, the objective seriousness of the conduct to Robyn’s situation, here also the BYHA and Robyn’s coaches during the fall of 2004 and with respect to the pre- and post-game periods, did not respect her circumstances as a female player on a co-ed team. Furthermore, the BYHA had a duty to investigate and failed in that duty, albeit for a shorter period of time than the three-year period covered in Shaunna’s Application.

184Applying the second criterion, the effect on the applicant Robyn Demars of experiencing discrimination, I have found that during the fall of 2004, a period of four months, Robyn Demars was hurt and frustrated when she was unable to participate in the pre- and post-game team activities that her male teammates enjoyed and also faced similar frustration to that of Shaunna in finding her own change rooms, which also were not comparable to the team dressing rooms and sometimes not available at all. Robyn was vulnerable given her age relative to the adult staff. Robyn was also subjected to discriminatory and hurtful comments. Furthermore, I accept Robyn’s evidence that she was visibly upset and crying prior to the first season game when she was abruptly told that she could not enter the team dressing room and left on her own to determine where to change. Robyn testified that during the fall of 2004 she missed out on the coach’s talks, making new friends and team drinks; lost spirit for the game; and was sad and embarrassed.

185Given the four-month period that Robyn faced discrimination, I conclude that an award of $4,000 is appropriate to compensate this applicant for loss of dignity and the injury to her feelings arising from her right to be free from discrimination due to gender.

186Suzanne Demars testified that she was hurt after she learned that she would not be supported as a Fair Play Committee member and embarrassed and humiliated when other parents brought it up. She felt that she had given many years as a volunteer and that added to her hurt feelings. In addition, Ms. Demars testified that the ordeal of trying to raise awareness about her daughters’ situations was very stressful and emotional and thus it is fair to conclude that she was in a vulnerable state when told that she would no longer be supported as a member of the Fair Play Committee essentially because she had advocated her daughters’ human rights. In the particular circumstances, her experience as the parent of Shaunna and Robyn Demars, attempting to advocate on their behalf (for a three-year period in the case of Shaunna), persuades me that the effect on her over that period was serious. Objectively, Ms. Demars had enjoyed her association with the BYHA and had worked tirelessly as a volunteer for several years. Thus the sudden loss of the volunteer position that was important to her and had resulted from her long association with the BYHA is a greater injury to her dignity, feelings and self-respect than if she had had a more casual and less involved history of volunteering with the BYHA. Therefore, I conclude that in the circumstances an award of $2,000 is appropriate.

ORDER

187As monetary compensation for the loss arising out of the infringement of the Code the respondent BYHA is ordered to pay:

a. to the applicant Shaunna Demars $12,000;

b. to the applicant Robyn Demars $4,000;

c. to the applicant Suzanne Demars $2,000; and

d. pre-judgment interest (calculated from the date of the Complaints to the Commission) and post-judgment interest (calculated from 30 days from the date of this Decision) in accordance with sections 128 and 129 of the Courts of Justice Act, R.S.O. 1990 c. C.43, as amended, on all amounts.