Kristen Worley v. Ontario Cycling Association, 2016 HRTO 952

Human Rights Tribunal of Ontario

B E T W E E N:

Kristen Worley Applicant

-and-

Ontario Cycling Association, Cycling Canada Cyclisme, and Union Cycliste Internationale Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 20, 2016 Citation: 2016 HRTO 952 Indexed as: Worley v. Ontario Cycling Association

APPEARANCES

Kristen Worley, Applicant Brenda Culbert and Beth Long, Counsel

Union Cycliste Internationale, Respondent Caroline (Nini) Jones and Jesse Elders, Counsel

Ontario Cycling Association and Cycling Canada Cyclisme, Respondents Albert Formosa and Macdonald Allen, Counsel

World Anti-Doping Agency, Proposed Respondent Brian Gover and Pamela Hrick, Counsel

1In her Application, the applicant alleged that the respondents discriminated against her with respect to services because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant is a cyclist who identifies as an XY female with a transitioned history. In other words, she was assigned the male sex at birth but later transitioned to being female.

3The applicant alleged that she is being discriminated against by the policies of the Ontario Cycling Association ("OCA"), Cycling Canada Cyclisme ("CCC"), the Union Cycliste Internationale ("UCI"), the International Olympic Committee ("IOC") and the World Anti-Doping Agency ("WADA"). In particular, she alleged that she is being discriminated against through the imposition of allegedly discriminatory anti-doping requirements as a condition of obtaining a race license in Ontario. She also claimed that she was discriminated against as a result of the application to her of the IOC's Stockholm Consensus, which makes recommendations regarding the participation in sport of individuals who have undergone sex reassignment.

4I directed that a preliminary hearing be held to determine various preliminary issues, primarily relating to the Tribunal's jurisdiction in this matter. For the reasons that follow, I find that the Application against the IOC must be dismissed on the basis that the Tribunal does not have territorial jurisdiction over the Application as it relates to this respondent.

5I find that the Tribunal has territorial jurisdiction over the Application as it relates to the OCA, the CCC and the UCI. I also find that the Application as against these respondents engages the social area of services under the Code. In my view, the allegations in the Application that relate to the denial of the applicant's race license applications in 2013, 2014 and 2015 are timely. However, the applicant's allegations relating to the application of the Stockholm Consensus are untimely and must be dismissed.

6For the reasons set out below, I find that the timely allegations contained in the Application cannot be summarily dismissed on the basis that they lack a reasonable prospect of success. Finally, I do not find it appropriate to add WADA as a respondent to the Application.

Factual background

The Parties

7The applicant is a high performance athlete in elite cycling who has competed in provincial, national, and international cycling events. As noted above, she also identifies as an XY female with a transitioned history.

8The OCA is a provincial cycling association that provides opportunities for cyclists through the development and delivery of programs and services in Ontario.

9The CCC is a national sports organization that promotes cycling in Canada. The CCC is comprised of provincial and territorial cycling associations, including the OCA.

10The UCI is the international association of national cycling associations and the worldwide governing body for cycling. The UCI's headquarters are located in Switzerland. It is comprised of 185 national cycling federations, including the CCC, as well as five continental federations. The UCI has no staff in Canada.

11According to its Constitution, the purposes of the UCI are:

a. to direct, develop, regulate, control and discipline cycling under all forms worldwide;

b. to promote cycling in all the countries of the world and at all levels;

c. to organize, for all cycling sport disciplines, world championships of which it is the sole holder and owner;

d. to encourage friendship between all members of the cycling world;

e. to promote sportsmanship and fair play;

f. to represent the sport of cycling and defend its interests before the International Olympic Committee and all national and international authorities;

g. to cooperate with the International Olympic Committee, in particular as regards the participation of cyclists in the Olympic Games.

12The IOC is the over-arching authority of the Olympic Movement. Its headquarters are also located in Switzerland. Among other things, the IOC develops policies governing the eligibility of athletes to compete in international competition, including in the Olympic Games.

13WADA is an agency created by the IOC to promote and coordinate the fight against doping in sport at the international level. WADA is responsible for monitoring and administering the World Anti-Doping Code.

Licensing Requirements in Cycling

14Cycling federations, such as the CCC, that are members of the UCI must comply with the Constitution and Regulations of the UCI as well as any decision taken under them. The UCI Constitution requires member federations to "have the Constitution, Regulations and decisions of the UCI complied with by all persons concerned." The Regulations of the UCI must be incorporated in the corresponding regulations of member federations. As well, the constitution and regulations of UCI members must not run counter to the Constitution and Regulations of the UCI. In case of divergence, only the Constitution and Regulations of the UCI apply.

15In order to be eligible to participate in cycling events held under the auspices of the UCI, its continental federations or its national federations, a cyclist must hold a license ("race license"). A race license is valid for one year, from January 1st to December 31st. A race license authorizes a cyclist to participate in international, national and provincial cycling events organized or supervised by, among others, the UCI, the CCC or the OCA. To be more specific, the applicant requires a UCI race license in order to compete in races organized by these organizations. Anyone who requests a license undertakes to respect the Constitution and Regulations of the UCI, the UCI continental federations and the UCI member federations. Under the UCI Regulations, member federations must refuse to issue licenses in the event of "irregular" applications.

16The granting of race licenses is heavily regulated by the UCI Cycling Regulations ("UCI Regulations"). These Regulations regulate a wide variety of matters ranging from the issuing procedure and categories of race licenses right down to the format and colour of licenses.

17Under the UCI Regulations, race licenses are issued by the federation of the country where the applicant resides according to criteria that the federation may determine. However, these criteria must meet the requirements set out in the UCI Regulations. The issuing federation is responsible for monitoring compliance with these criteria. For cyclists who reside in Canada, such as the applicant, the issuing federation is the CCC. The CCC has delegated its authority to issue race licenses to provincial and territorial associations such as the OCA. Therefore, the organization that issues race licenses to cyclists in Ontario is the OCA. However, as noted above, the UCI imposes extensive requirements that must be met by the OCA when issuing race licenses. These requirements are reviewed in more detail below.

18According to its Regulations, the UCI has a residual authority to issue race licenses directly to cyclists in two circumstances: (1) if there is no UCI member federation in their country and (2) if a cyclist's national federation does not respond to his or her application within 30 days of its being filed.

19The UCI Regulations provide procedural and appeal rights to athletes in circumstances where a member federation, or the UCI, declines to issue a race licence to them. For example, if a UCI member federation refuses to issue a race license to an applicant, it must inform the applicant of its decision with reasons by registered letter. The athlete must be invited to defend his or her application before such person or commission as may be designated by the president of the UCI or as indicated in the regulations of the member federation. A refusal to issue a race license is open to appeal to the UCI Arbitral Board if: (1) the applicant had no opportunity to present arguments in defence of his or her application; (2) no reason was given for the decision; (3) the reasons for the refusal contain factual errors; and (4) the refusal is irregular.

20Part 12, Chapter III of the UCI Regulations sets out the authority of the UCI Arbitral Board in disputes over the application or interpretation of the UCI Constitution or Regulations. Among other things, Part 12 provides that:

any dispute between license-holders or persons or authorities subject to the provisions of the UCI Constitution and Regulations over the application or interpretation thereof shall be submitted to the UCI Arbitral Board

21Anyone who requests a race license, either from a national federation or from the UCI directly, must undertake to respect the Constitution and Regulations of the UCI, the UCI continental federations and the UCI member federations. He or she must also undertake to participate in cycling events in a "sporting and fair manner".

22The UCI Regulations require member federations to include a declaration on the back of their race license application that must be signed by individuals who apply for a race license. Paragraph 3 of this declaration ("Race License Declaration") is central to this Application and states as follows:

I agree to submit to and be bound by the UCI antidoping regulations, the clauses of the World Antidoping Code and its international Standards to which the UCI antidoping regulations refer and to the antidoping regulations of other competent bodies as per the regulations of the UCI and the World Antidoping Code provided that they comply with that Code.

Anti-Doping Rules

23WADA was founded in 1999 under the initiative of the IOC to promote, coordinate and monitor the fight against doping in sport internationally. The World Anti-Doping Code was unanimously agreed to and adopted by delegates to the World Conference on Doping in Sport in 2003. Signatories to the World Anti-Doping Code are responsible for implementing its provisions through policies, statutes, rules or regulations.

24In accordance with the World Anti-Doping Code, WADA maintains a list of prohibited substances ("Prohibited List"). This list includes exogenous androgens (male sex hormones) such as testosterone. An athlete who uses a substance on the Prohibited List will be found to have committed an anti-doping violation, unless they have a Therapeutic Use Exemption ("TUE").

25A TUE allows an athlete to use a substance or method for valid therapeutic reasons as a result of a diagnosed medical condition and where the athlete has satisfied the conditions contained in WADA's International Standard for TUEs. Athletes, such as the applicant, who are not international level athletes must submit their TUE applications to their national anti-doping organization which, in Canada, is the Canadian Centre for Ethics in Sport. International level athletes may apply to the UCI for a TUE.

26WADA has developed TUE Physician Guidelines to support anti-doping organizations in their decision-making in relation to TUEs. WADA has developed a TUE Physician Guideline that applies to "Female-to-male (FtM) transsexual athletes" and also a Guideline that applies to "Androgen Deficiency/Male Hypogonadism". The "Female-to-male (FtM) transsexual athletes" Guideline defines the criteria for granting a TUE for treatment with hormones on the Prohibited List to "Female-to-Male" athletes. The "Androgen Deficiency/Male Hypogonadism" Physical Guideline applies only to males with androgen deficiency. It expressly states that a "TUE for androgen deficiency should not be approved for females." There exist no Physician Guidelines for TUEs applicable to XY female athletes such as the applicant.

27Part 14 of the UCI Regulations contains extensive anti-doping rules adopted in accordance with the UCI's responsibilities under the World Anti-Doping Code. It also sets out sanctions for violations of the anti-doping rules to be adjudicated, at first instance, by the UCI Anti-Doping Tribunal. In addition, the UCI also has mandatory regulations relating to TUEs which supplement its anti-doping rules and that are consistent with WADA rules and guidelines relating to TUEs.

Stockholm Consensus

28The Stockholm Consensus contains a series of recommendations issued in 2003 by an ad hoc committee convened by the IOC Medical and Scientific Commission. The Stockholm Consensus sets out recommendations on the eligibility of transitioned athletes to compete in their assigned sex category. For example, for an XY female (that is, male-to-female transsexual) athlete to compete in the female category, she must meet the following conditions:

a. sex-reassignment surgery including external genitalia changes and gonadectomy;

b. legal recognition of her assigned sex by appropriate authorities; and

c. maintenance of hormonal therapy appropriate for her assigned sex in a verifiable manner and for a sufficient length of time to minimize gender-related advantage which should not be sooner than two years after gonadectomy.

Applicant's Cycling Background

29In this section, I only summarize alleged facts contained in the applicant's materials that are relevant for the purpose of the preliminary issues addressed in this Interim Decision.

30The applicant stated that her body no longer produces any hormones, including endogenous androgens. According to the applicant, she must rely on exogenous androgens, such as testosterone, to maintain her health and day-to-day function. She also claimed that these exogenous androgens do not provide her with any competitive advantage over other female cyclists against whom she is competing.

31The applicant has sought to engage in competitive cycling since 2005. That year, she requested that the CCC confirm her eligibility to compete in the female category in accordance with the IOC Stockholm Consensus. According to the applicant, she was subject to an extensive gender verification process which took three months to complete.

32The applicant obtained a race license in 2006. In July 2006, she applied to the Canadian Centre for Ethics in Sport for a TUE to use testosterone. This TUE was granted, over three years later, in September 2009, and was effective for one year. The applicant sought to renew the TUE in 2012.

33In her application to the OCA for a race license in 2013, the applicant advised the OCA that she could not sign paragraph 3 of the Race License Declaration because of an ethical dilemma she had concerning gender, anti-doping and governance. The text of paragraph 3 is reproduced at paragraph 22 above. It confirms an applicant's agreement to submit to, and be bound by, applicable anti-doping regulations. In 2013, the OCA advised the applicant that it could not issue her a race license unless she signed the Race License Declaration.

34In 2014, the applicant again applied for a race license from the OCA. She initially indicated that she would sign the Race License Declaration but ultimately did not do so. The OCA once again declined to grant her a race license due to her failure to sign the Race License Declaration.

35In May 2015, the applicant applied once again to the OCA for a race license but indicated she would not sign the Race License Declaration. She included a copy of her correspondence sent to the Chief Executive Officer of the OCA in the materials she filed with the Tribunal. The OCA did not respond to her application for a race license. The applicant then filed this Application with the Tribunal. In its submissions to the Tribunal, the OCA claimed not to have received the applicant's May 2015 application for a race license. However, it stated that, in any event, it would have refused her application unless she signed the Race License Declaration, including paragraph 3 of that Declaration.

Parties' positions

36In her Application, the applicant alleged discriminatory treatment as a result of the imposition by the respondents of gender verification and anti-doping requirements as a condition of her obtaining a race license. Among other remedies sought in her Application, the applicant requested that the Tribunal order the OCA to issue her a membership. She also requested that the Tribunal order the UCI to issue her a race license and exempt her from paragraph 3 of the Race License Declaration. She requested that the Tribunal order the IOC to rescind its gender verification policies and anti-doping programs. In addition, she requested that the Tribunal order the IOC to convene a panel of independent medical experts to develop a comprehensive policy for the use of exogenous androgens.

37In their Responses, the respondents denied any discrimination and distinguished between anti-doping and gender verification. They also noted the existence of the TUE process, which the applicant had not raised in her Application. In their Responses, the respondents also made a number of objections to the Tribunal's jurisdiction over the Application. The UCI submitted that the Application against it does not fall under the social area of "services" or any other social area covered by the Code. The UCI also submitted that the Tribunal does not have territorial jurisdiction over it. All respondents who appeared at the preliminary hearing submitted that the Application is untimely. Finally, all respondents present at the preliminary hearing submitted that the Tribunal ought to dismiss the Application on the basis that it has no reasonable prospect of success under the Code.

38In her Reply, the applicant appeared to significantly expand her focus beyond what was set out in her Application. In her Reply, she alleged systemic discrimination through a pattern of differential and discriminatory conduct, policies and procedures embedded in the organizational structures of all of the respondents.

39Despite being given notice of the preliminary hearing, the IOC chose not to participate in it or file any written submissions with the Tribunal. However, I heard submissions from the applicant in relation to the above preliminary issues as they relate to the IOC.

Preliminary Issues

40I address the following preliminary issues in this decision:

a. Whether the Application engages the social area of "services" with respect to each of the respondents;

b. Whether the Tribunal has territorial jurisdiction over the Application as it relates to the UCI and the IOC;

c. Whether the Application is untimely;

d. Whether the Application should be dismissed on the basis that it lacks a reasonable prospect of success; and

e. Whether it is appropriate to add WADA as a respondent to the Application.

Social Area of Services

41The applicant alleged that she was discriminated against in the provision of services. Section 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, gender identity, gender expression, age, marital status, family status or disability.

42The OCA and CCC did not dispute that they are in a service relationship with the applicant. However, an issue that arises is whether the Application engages the area of services in relation to the UCI and IOC.

43The Tribunal does not have the power to inquire into claims of discrimination about every relationship or interaction. The Tribunal's jurisdiction is limited to the social areas set out in the Code. The Application alleges discrimination in the provision of services. The applicant argued that the issuance of a race license is a service within the meaning of the Code. I agree.

44It is well established that the Code, including the definition of "services", must be interpreted broadly and purposively. In several decisions, the Tribunal and the Divisional Court have found that a "service" must mean something of benefit that is provided by one person to another or to the public. See for example Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, rev'd on other grounds Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON SCDC) and Cooper v. Pinkofskys, 2008 HRTO 390.

45The issuance of licenses, such as driver's licenses, has been successfully challenged under the social area of services under human rights legislation. See, for British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 SCR 868, and Mortillaro v. Ontario, 2011 HRTO 310. Based on this case law, I accept that the granting of a race license is a service within the meaning of the Code.

46As I see it, the dispute between the parties is not whether the granting of a race license is a service. Instead, the question arising in this case is which of the respondents are responsible under the Code for this service.

Parties' Submissions

47The applicant submitted that she was in a service relationship with all of the respondents when applying for a race license. In particular, the applicant argued that the OCA has been delegated the power to grant race licenses by the UCI. I note that the applicant is not alone in characterizing the relationship between the UCI and the CCC/OCA this way. At para. 13 of their written submissions, the CCC and OCA state that, under its Regulations, the UCI "delegates" the power to grant licenses to each of its members including the CCC.

48The UCI submitted that it is not in a service relationship with the applicant on the basis that, under the UCI Regulations, she was required to apply to the OCA for a race license. When the applicant received no response from the OCA, she would have been entitled to submit a license application with the UCI but she did not. According to the UCI, the applicant did not apply to the UCI for a race license and therefore the UCI provides no services to her.

49The UCI also made a number of submissions with respect to the issue of territorial jurisdiction which I find are more appropriately dealt with as part of the analysis of whether the Application against the UCI engages the social area of services. The UCI rejected the applicant's claim that the UCI delegates licensing authority to the CCC. The UCI submitted that the only relationship between it and the CCC and/or OCA is that the CCC's policies must be consistent with those of the UCI and the OCA's policies must be consistent with those of the CCC. Overall, the UCI submitted that the fact of being affected by a policy is not enough to create a service relationship under the Code.

Findings

UCI

50As noted above, the applicant alleged that she is being discriminated against by the imposition of allegedly discriminatory requirements as a condition of obtaining a race license in Ontario.

51While the OCA is the organization that issues race licenses to cyclists who are resident in Ontario, in effect it is the UCI, through the imposition of its Regulations, that ultimately regulates all or most aspects of the race licensing process. This is the case whether a cyclist applies for a license directly to the UCI or through a UCI member such as the CCC or its delegate the OCA. As noted above, one of the purposes of the UCI as an organization is "to direct, develop, regulate, control and discipline cycling under all forms worldwide". The UCI regulates, controls and disciplines cycling by extensively regulating the licensing process and requiring member federations to impose UCI-mandated requirements on cyclists who apply for race licenses.

52Counsel for the UCI made compelling submissions in support of the UCI's position that it simply requires members to comply with minimum standards set by the UCI. However, after a detailed review of the UCI's governing documents, I am not convinced that the requirements imposed by the UCI are simply "minimum standards" or that they are at all minimal in nature. Through its Regulations, the UCI regulates almost every aspect of the licensing procedure and the requirements imposed as a condition of obtaining race licenses. As a member of the UCI, the CCC (and by extension the OCA) must incorporate the UCI Regulations into their own regulations. These organizations must comply with the licensing requirements imposed by the UCI as well as the licensing process extensively regulated by the UCI.

53While the CCC has the authority to impose its own licensing criteria, I have been pointed to no criteria imposed during the licensing process that were not mandated by the UCI. All of the key requirements imposed as a condition of obtaining a race license are imposed by the UCI. This is the case even if these requirements are implemented by the CCC and/or the OCA. If there were any divergence between criteria imposed by the CCC/OCA and those mandated by the UCI Constitution and Regulations, the Constitution and Regulations of the UCI would apply.

54The licensing requirements imposed by the UCI are extremely detailed and range from formalities such as the colour of licenses to much more substantial requirements relating to the procedure for issuing licenses, the conditions that cyclists must meet to obtain a license, and the undertakings they must give in order to be granted a license by a UCI member federation. The requirement at the center of this Application – the requirement to undertake to be bound by applicable anti-doping regulations – is a requirement imposed by the UCI Regulations.

55As the UCI ultimately imposes the key requirements regarding who can and cannot receive a race license from the OCA, I find that the UCI is one of the entities responsible for the imposition of allegedly discriminatory requirements upon the applicant as a condition of obtaining a race license in Ontario. As such, I find the UCI to be in a service relationship with the applicant within the meaning of the Code.

56I am fortified in this conclusion by the procedural and appeal rights that the UCI provides to cyclists in situations where a member federation declines to issue a race licence to them or even where a member federation fails to respond to a cyclist's application for a license. As noted above, the UCI itself retains the authority to issue a license directly to a cyclist if a member federation does not respond to the cyclist's application within 30 days of its being filed. In addition, the UCI Regulations grant various procedural rights to cyclists in situations where a member federation deems that it cannot issue a license to them. These include a cyclist's right to consult his or her file, the right to present argument to defend his or her race license application, and the right to be represented by a person of his or her choice bearing a proper power of attorney.

57In addition to these procedural rights, the UCI Regulations provide, what counsel for the UCI described in her written submissions as, "robust" appeal processes to cyclists such as the applicant who have had their request for a race license denied by a member federation. In fact, in its Response to the Application, the UCI submitted that the Tribunal should dismiss the Application on the basis that, according to the UCI, its Arbitral Board is the competent authority to deal with the applicant's complaints in relation to the UCI race license requirements.

58Although the UCI appeared to retreat from this position at the hearing, in its Response, the UCI relied upon Part 12, Chapter III of the UCI Regulations quoted above which, among other things, provides that:

…any dispute between license-holders or persons or authorities subject to the UCI Constitution and Regulations over the application or interpretation thereof shall be submitted to the UCI Arbitral Board.

59I agree with the applicant that it is implicit in this submission by the UCI that the applicant is either a "license holder" or "person… subject to the UCI Constitution and Regulations". Accordingly, on the UCI's own written submissions, the applicant is subject to the requirements imposed by the UCI Constitution and Regulations. She also enjoys the benefit of robust procedural and appeal rights in relation to the race license requirements imposed upon her by the UCI through its member federation the CCC (and by extension the OCA). The UCI's granting of such procedural and appeal rights to cyclists such as the applicant supports my finding that the UCI is in a service relationship with the applicant in regards to the issuance of race licenses.

60The UCI sought to analogize its relationship to the CCC/OCA to the relationship between a parent union and one of its locals. In doing so, it sought to rely upon the Supreme Court of Canada's decision in Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5. In that decision, the Court found that a parent union and its local were separate legal entities and that the national union was not liable for the negligence of officials from the local union.

61I do not find Fullowka applicable to the circumstances of this case as I have analyzed them above. I accept the UCI's point that the UCI and the CCC are separate legal entities. However, my conclusion that the UCI is in a service relationship with the applicant does not rest on the fact that the UCI and CCC are related entities. Instead, my conclusion is based on the UCI's extensive regulation of the race licensing process and its imposition of extensive requirements on cyclists who apply for a race license through its member federations.

62I note parenthetically, that race licenses appear to be commonly referred to as "UCI race licenses" and the Race License Declaration that is at the center of this case is referred to, even in CCC correspondence, as the "UCI Race License Declaration". Counsel for the UCI stated that this was just a convenient shorthand way of referring to these documents. If so, it is a shorthand reference that accords with the actual reality of the arrangements in this case.

63To summarize, the UCI extensively regulates the race licensing process and the requirements imposed as a condition of receiving race licenses by:

a. regulating the process for the issuance of race licenses in detail;

b. imposing all of the key requirements that cyclists must comply with as a condition for obtaining a race license even from UCI member federations;

c. imposing the rules set out in the UCI Constitution and Regulations on cyclists if there is a divergence between the CCC/OCA constitutions and regulations and those of the UCI;

d. retaining the authority to grant a race license directly to a cyclist if a member federation does not respond to his or her race license application within 30 days;

e. regulating the process to be followed by member federations if they deny a race license to a cyclist;

f. granting cyclists procedural rights to contest a decision by a UCI member federation to deny a cyclist's race license application; and

g. providing cyclists with appeal rights to the UCI Arbitration Board if their race license application is denied by a UCI member federation.

64In light of the above, I find that the UCI is in a service relationship with the applicant within the meaning of the Code.

IOC

65While I have found that the UCI engages in an extensive and detailed regulation of the race licensing process, the same cannot be said of the IOC. The applicant submitted that she is in a service relationship with the IOC because the IOC provides benefits to athletes through its broad athlete-focused mission. She argued that the IOC is the supreme authority over sport and ultimately set the anti-doping requirements that were imposed upon her in this case.

66As noted above, the definition of "services" in the Code must be interpreted broadly and purposively. However, it is not without limits. In my view, the promulgation by an international body of policies of general application worldwide, such as the ones at issue in this case, does not establish a service relationship between that body and an individual who becomes subject to those policies. If such a promulgation of policies did constitute services under the Code, it would mean that the policies of all international organizations such as the United Nations and other international organizations would be subject to the Code if their policies affected individuals in Ontario. In my view, this would be giving the term "services" a meaning that extends beyond what is reasonable, even on the broad purposive approach used by the Tribunal and courts.

67While it is true that the IOC's international policies have an impact on the applicant when implemented by the UCI, CCC and OCA, in my view that is not enough to establish a service relationship within the meaning of the Code. The applicant does not have a relationship with the IOC in relation to the race licensing process in the same way that she does with the OCA, the CCC and the UCI. As described above, the UCI regulates the race licensing process in detail including providing procedural and appeal rights to cyclists as part of that process. The same cannot be said for the IOC. I can understand the applicant's frustration that it is the IOC that ultimately sets the anti-doping requirements that affect her. However, this Tribunal's jurisdiction is limited to applying the Code. In my view, her Application against the IOC does not engage a social area covered by the Code.

68For the reasons set out above, I find that the IOC is not in a service relationship with the applicant within the meaning of the Code. The Application as against the IOC is dismissed on this basis.

Territorial Jurisdiction

69All parties agreed that the Tribunal has territorial jurisdiction over the Application as it relates to the OCA. Neither the OCA nor the CCC submitted that the Tribunal does not also have territorial jurisdiction over the Application as it relates to the CCC. However, one of the preliminary issues raised in the case is whether the Tribunal has territorial jurisdiction over this Application as it relates to the UCI and the IOC.

70The Tribunal is a creature of statute. It is created under the Code, legislation that was passed by the legislature of Ontario. As a provincial statute, the Code is subject to the constitutional limitation that provinces may not legislate "extra-territorially". This territorial limitation flows from the words of s. 92 of the Constitution Act, 1867 which limit the territorial reach of provincial legislation by stating "[i]n each Province, the Legislature may exclusively make Laws in relation to" the enumerated heads of power including "property and civil rights in the Province" (section 92(13)), and "generally all matters of a merely local or private nature in the Province" (section 92(16)). [emphasis added]

71As detailed below, I find that the Tribunal has territorial jurisdiction over the Application as it relates to the UCI. However, the Tribunal's jurisdiction and, by extension, its remedial authority is limited to the services of this respondent that are provided in Ontario. The scope of the Tribunal's remedial authority against the UCI is an issue that will need to be addressed as the Application continues through the Tribunal's process.

72For the reasons set out below, I find that the Tribunal does not have territorial jurisdiction over the Application as it relates to the IOC.

Appropriate Test to be Applied

73In my view, the appropriate inquiry when determining whether the Tribunal has territorial jurisdiction over applications such as this one is to determine whether the matters set out in the application have a "sufficient connection" to Ontario. However, I would reach the same conclusions even if the "real and substantial connection" test were the applicable test for determining territorial jurisdiction in this case.

74In the past, the Tribunal has not taken a consistent approach in articulating the test to be applied to the issue of territorial jurisdiction. In several cases, the Tribunal has applied a "sufficient connection" test where the matters in the application extend beyond the province of Ontario. See for example, Cohen v. Law School Admission Council, 2011 HRTO 703 ("Cohen"); Cash v. Stryker Canada, 2009 HRTO 1738 at paras. 5 and 10–12; Smith v. 507417 Ontario, 2010 HRTO 802; Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421 at para. 102; and Haskins v. Great-West Life, 2011 HRTO 1661.

75Meanwhile, in other cases, the Tribunal has applied a "real and substantial connection" test. See Abbasi v. Sygenics Inc., 2014 HRTO 142 at paras. 9-10; Thomas v. Siemens Canada, 2011 HRTO 503 at paras. 15-16; Knight v. A.A. World Services, Inc., 2015 HRTO 1306 at paras. 10 and 23 ("Knight"). In these cases, the Tribunal applied the analysis set out in Club Resorts Ltd. v. Van Breda and Club Resorts Ltd. v. Charron, 2012 SCC 17 ("Van Breda"). Van Breda dealt with the application of common law conflicts rules, also known as private international law rules, to determine whether Canadian courts will take jurisdiction over legal actions that extend across provincial or national boundaries. These rules are also applied by courts when determining whether they will recognize and enforce foreign judgments.

76Having had the benefit of full argument on this issue, I find that the "real and substantial connection" is not the proper test to apply to cases where the Tribunal is determining the scope of its jurisdiction under the Code. I make this finding for at least two reasons. First, the real and substantial connection test is applied to determine the jurisdiction of courts of general jurisdiction, not tribunals that are creatures of statute and only have the powers granted to them under their governing statutes. Second, in Canada, the real and substantial connection test applies to determine whether courts will take jurisdiction as matter of private international law. This issue is distinct from the issue of the constitutional applicability of statutes to matters that extend beyond the territorial boundaries of the enacting jurisdiction. It is the issue of constitutional applicability of a statute that is at issue in this case.

77The Supreme Court of Canada has applied the "sufficient connection" test to cases dealing with the constitutional applicability of statutes to matters that extend beyond the boundaries of the province that enacted the statute. See Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40 ("Unifund"). At paragraph 56 of Unifund, the Supreme Court found that the following propositions were relevant to assessing the constitutional applicability of provincial legislation:

1. The territorial limits on the scope of provincial legislative authority prevent the application of the law of a province to matters not sufficiently connected to it;

2. What constitutes a "sufficient" connection depends on the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it;

3. The applicability of an otherwise competent provincial legislation to out-of-province defendants is conditioned by the requirements of order and fairness that underlie our federal arrangements;

4. The principles of order and fairness, being purposive, are applied flexibly according to the subject matter of the legislation.

78The British Columbia Human Rights Tribunal applied the "sufficient connection" test to a case that extended beyond the province of British Columbia in S. obo X. v. English Language School Board, 2015 BCHRT 24. Courts have also applied the "sufficient connection" test in cases dealing with the jurisdiction of regulatory bodies governed by provincial legislation. See, for example, Ontario College of Pharmacists v. 1724665 Ontario Inc. (Global Pharmacy Canada), 2013 ONCA 381.

79The UCI argued that the key question is whether there is a sufficient connection between Ontario and a respondent named in an application. It is true that the Supreme Court in Unifund considered the degree of connection between an out-of-province respondent and the province that passed the statute in question. However, that inquiry was conducted in the context of the Court's consideration of whether the matters at issue in the claim were sufficiently connected to the province that passed the statute sought to be applied. At paragraph 58 of Unifund, for example, the Court summarizes the concept of "sufficient connection" by stating that "[t]he territorial limits on the scope of provincial legislative authority prevent the application of the law of a province to matters not sufficiently connected to it" [emphasis added].

80In my view, the key question when applying the test is whether there is a sufficient connection between the matters raised in the Application and the province of Ontario. Only in cases where the matters raised in the Application have a sufficient connection to Ontario can it be said that the Ontario legislature has the jurisdiction to require that these matters be subject to the Code. This focus on "matters", rather than parties, accords with the focus of the division of powers in ss. 91 and 92 of the Constitution Act, 1867 which lists of "matters" over which the provincial legislatures and the federal Parliament have jurisdiction.

81That said, the fact that a respondent has its headquarters or residence outside the province is relevant to the analysis of territorial jurisdiction. In Unifund, the Court stated that one of the factors to consider in applying the sufficient connection test is "the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it". See Unifund, above, at paragraph 56. However, the location of a respondent's headquarters or residence is not a determinative factor. Instead, it is one factor to consider along with other factors when assessing whether the matters raised in an application have a sufficient connection to Ontario.

82A review of the Tribunal's case law illustrates this point. In several cases, the Tribunal has held that it had jurisdiction over applications alleging discrimination by corporate respondents with headquarters outside Ontario. See, for example, Cohen, above; Arenson v. Law School Admission Council, 2010 HRTO 38, and Knight, above. Although less common, it is also possible that a corporate respondent with headquarters in Ontario will not be subject to the Code because the Application relates to events that occurred exclusively outside Ontario and for which the respondent would not be vicariously liable. See, for example, Thomas v. Siemens Canada, 2011 HRTO 503. As these cases illustrate, the location of a corporate respondent's headquarters, or a personal respondent's place of residence, is not determinative of whether the Code applies to a particular application. Instead, it is only one factor to be considered in assessing whether the matters raised in an application have a sufficient connection to Ontario.

83As the Supreme Court found in Unifund, what constitutes a "sufficient" connection depends on the relationship between the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it. Practically speaking, in matters arising under the Code, the matters raised are the alleged breaches of the Code. Therefore, the analysis that must be applied is whether a particular named respondent may be responsible for alleged breaches of the Code in Ontario.

Application to this case

UCI

84The UCI submitted that a sufficient connection does not exist between Ontario and the UCI as a respondent headquartered outside Ontario. For the reasons set out above, in my view, the appropriate question is not whether there is a sufficient connection between Ontario and the UCI, but instead whether there is a sufficient connection between Ontario and the matters raised against UCI in the Application. However, I note that I would have reached the same conclusions if the appropriate focus were on the parties to the Application rather than the matters raised in the Application.

85The "matter" of the Application is the alleged breach of the Code. It is the applicant's allegation that she is being discriminated against through the imposition of allegedly discriminatory requirements as a condition of obtaining a race license in Ontario. I found above that the UCI is in a service relationship with the applicant in regards to its extensive regulation of the race licensing process and its imposition of licensing requirements through its member federation, the CCC, and by extension the OCA.

86The issue I must now decide is whether the Application as it relates to the UCI has a sufficient connection to Ontario such that the provincial legislature has the authority to subject the Application as against UCI to the Code. I find that it does.

87In my view, two key factors establish that the Application against the UCI has a sufficient connection to Ontario. First, the applicant was denied a race license in Ontario. The OCA is an Ontario-based organization which, as detailed above, must adhere to the requirements imposed by the UCI's Constitution and Regulations. For all of the reasons detailed at para. 50-63 above, although the OCA implements the UCI's requirements, all of the key requirements imposed on the applicant as a condition of obtaining a race license are in effect imposed by the UCI. In short, the UCI provides services to the applicant in Ontario. Like all service providers who provide services in Ontario, the UCI must comply with the Code with respect to the services it provides in Ontario. In these circumstances, there is a sufficient connection between Ontario and the Application as against the UCI.

88Second, the UCI race license that was applied for by the applicant would permit her to compete in races organized by, among others, the OCA, the CCC, and the UCI. The applicant requires a UCI race license in order to compete in races organized by these organizations, some of which take place in Ontario. For this reason also, there is a sufficient connection between Ontario, the UCI, and the services it provides to the applicant.

89The UCI submitted that the Tribunal would be contravening the principles of order and fairness referred to by the Supreme Court in Unifund if it found that it has jurisdiction over the Application as it relates to the UCI. In particular, the UCI submitted that, if the Tribunal has jurisdiction over the UCI, it could mean that the UCI could be subject to the jurisdiction of all countries in which it has member federations. The UCI submitted that it would contravene principles of order and fairness for the UCI to be subject to the law of multiple jurisdictions, each of which might make different rulings in relation to the UCI's Regulations, some possibly protective of human rights and some that might violate human rights. Finally, the UCI argued that principles of order and fairness weigh in favour of the Tribunal not having jurisdiction in this case due to the presence of an Ontario entity, the OCA.

90I am not persuaded that the Tribunal lacks territorial jurisdiction over the UCI due to the principles of order and fairness enunciated by the Supreme Court. To begin, I do not agree that the presence of an Ontario entity affects the Tribunal's jurisdiction in this matter. The issue of territorial jurisdiction flows from the Constitution Act, 1867. The Tribunal either has jurisdiction over the Application as against the UCI or it does not. I do not agree that the presence of another entity alters the Tribunal's jurisdiction over the Application as it relates to the UCI.

91In my view, the legislature of Ontario has a significant interest in protecting persons against discrimination that occurs in Ontario. I agree with the UCI that the Tribunal would be acting extra-territorially, if it were to assume jurisdiction over the UCI's activities in relation to persons and races that have no connection to Ontario. However, that is not what is at issue in this case. The Application relates to the imposition of a requirement on the applicant in Ontario as a condition of receiving a race license in Ontario which can be used to compete in races, some of which occur in Ontario.

92I agree with the UCI that this Tribunal does not have jurisdiction over the imposition of UCI requirements, policies or regulations outside of Ontario. It also does not have jurisdiction over the actions of UCI member federations other than the CCC/OCA. Specifically, this Tribunal does not have jurisdiction over whether other member federations recognize UCI race licenses issued through the OCA in Ontario. In my view, the Tribunal would be acting extra-territorially if I found that it had jurisdiction over the actions of the UCI or its members outside Ontario. Overall, in my view, the concerns that the UCI raised under the rubric of order and fairness are concerns that relate the appropriate scope of the Tribunal's remedial authority if it finds a violation of the Code in this case.

93For the reasons set out above, I find that this Tribunal has territorial jurisdiction over the Application as it relates to the UCI's requirements imposed on the applicant as a condition for obtaining a race license in Ontario.

IOC

94I found above that the Application against the IOC does not fall under the social area of service provision under the Code. Even if the IOC were in a service relationship with the applicant, I find that the Application against the IOC does not have a sufficient connection to Ontario.

95The applicant's argument in favour of naming the IOC as a respondent hinges primarily on two factors: (1) the fact that she is a resident of Ontario and therefore experienced the effects of the alleged discrimination in Ontario and (2) the interconnection between the IOC's policies and those of the UCI and the CCC/OCA.

96In my view, the applicant's place of residence is a relevant factor but it is not a determinative one. Just as the location of a respondent's headquarters or residence is not determinative, the location of an applicant's residence also is not determinative of the issue of territorial jurisdiction. The location of the impact on an applicant is relevant, but in my view the IOC's connection to that impact is too remote for this Tribunal to have territorial jurisdiction over the Application as it relates to the IOC.

97The applicant's main argument relating to the IOC is that the allegedly discriminatory requirement imposed by the UCI, CCC and OCA in this case finds its origin with the IOC. The applicant relied heavily upon the Tribunal's decision in Knight, above, to support her submission that the Tribunal has jurisdiction over the IOC due to the interconnection between its organizational structure, policies and procedures and those of the UCI, CCC and OCA.

98The applicant in Knight alleged that he was discriminated against when Alcoholics Anonymous refused to list his group because the group's members are agnostic. The applicant initially named A.A. World Services Inc. ("AAWS") as a respondent and then sought to add the General Services Board of Alcoholics Anonymous Inc. ("GSB") and the Greater Toronto Intergroup ("GTRI") as respondents. Neither AAWS nor the GSB have headquarters in Ontario. The Tribunal denied AAWS' request that it be removed as a respondent. It also granted the applicant's request to add the GSB and the GTRI as respondents.

99I find that Knight has limited application for determining whether the Tribunal has territorial jurisdiction over the Application as against the IOC. First, the Tribunal in Knight applied the "real and substantial connection" test applicable to private international law cases. For the reasons set out above, I have found that this this is not the appropriate test to apply in cases such as the present. Second, there is no indication in Knight that the parties made any submissions in relation to the territorial limitations on the province's jurisdiction found in s. 92 of the Constitution Act, 1867. Therefore, the decision does not set out the Tribunal's analysis of this issue. Finally, the decision in Knight appears to hinge on the governance structure of Alcoholics Anonymous which the Tribunal itself described as "complex". Based on the evidence before it, the Tribunal found that the interconnections between the different respondents in Knight were sufficient for the Tribunal to have jurisdiction over all of them.

100In this case, it may well be that, as submitted by the applicant, the IOC exerts power and control over the other respondents to this Application in relation to the race license process. It is also the case that the IOC requires compliance with its policies and regulations in order to take part in the Olympic Games and other international competitions. However, the question I must determine is a more precise legal issue: whether any interconnection of policies and exertion of power that is present in this case is enough to establish a sufficient connection between Ontario and the Application as it relates to the IOC. Put differently, the issue is whether the provincial legislature has the jurisdiction to submit the matters raised against the IOC to an Ontario statute, the Code. I find that it does not.

101I have found that the UCI extensively regulates all aspects of the race licensing process carried out in Ontario by its member the CCC and its delegate the OCA. The same cannot be said of the IOC. The connection between Ontario and the actions of the IOC is more remote. Unlike the UCI, which regulates the main aspects of the race licensing process including providing procedural and appeal rights to cyclists such as the applicant, the IOC is primarily involved in setting policies for competitions, such as the Olympic Games, held at an international level. The IOC sets international policies of general application. Although these international policies have an effect on the applicant when implemented by the UCI, the CCC and the OCA in Ontario, I find that this is not enough to establish a sufficient connection between Ontario and the Application against the IOC.

102In addition, the Tribunal would not have the jurisdiction to grant any of the remedies the applicant has sought against the IOC. While the scope of the Tribunal's remedial authority is a remedial issue and not a jurisdictional one, I find it instructive to consider the remedies sought by the applicant against the IOC. As noted above, the applicant requested that the Tribunal order the IOC to rescind its gender verification policies and anti-doping programs. She requested that the Tribunal order the IOC to convene a panel of independent medical experts to develop a comprehensive policy for the use of exogenous androgens.

103By granting such remedies, the Tribunal would be acting extra-territorially. This Tribunal does not have the jurisdiction to order such remedies of general application beyond Ontario. The Code only applies to Ontario. In my view, the remedies sought by the applicant serve to illustrate how the applicant's claims against the IOC extend far beyond Ontario. They do not have a sufficient connection to the province and the Tribunal would be acting beyond its territorial jurisdiction if it assumed jurisdiction over the Application as it relates to the IOC.

104I note that the applicant sought to rely upon s. 9 of the Code to argue that respondents cannot do indirectly what they are prohibited from doing directly. I am not persuaded that s. 9 of the Code assists the applicant in this case. Like all the other sections of the Code, s. 9 is subject to the constitutional prohibition against legislatures acting extra-territorially.

105For the reasons set out above, I find that this Tribunal does not have territorial jurisdiction over the Application as it relates to the IOC. For this reason, in addition to the absence of a service relationship, the Application against this respondent must be dismissed.

Timeliness of Application

106The respondents submitted that the Application is untimely on the basis that the applicant was aware of her alleged claim more than three years before she filed her Application. In particular, the OCA and CCC pointed to a section of the Applicant's Reply in which she stated that she fully realized the barriers she faced as an XY female athlete with a transitioned history in or around June 2012. In addition, the applicant raised the same allegations of discrimination that she raised in her Application at the time that the OCA declined her application for a license in 2013, and she raised them again in 2014.

107The OCA and CCC submit that their position in relation to the applicant's request for a license did not change between the time she applied for a license in 2013 through to the present day. Their position when the applicant applied in 2013 was that she was not eligible for a license unless she agreed to be bound by applicable anti-doping policies. They took the same position when she applied for a race license in 2014 and they continue to take the same position.

108In light of this, the OCA and CCC argued that the only timely incident, the applicant's 2015 application for a race license, did not involve a fresh step. Therefore, in their view, it does not form part of a series of incidents within the meaning of s. 34(1) of the Code. The OCA and CCC sought to rely upon case law in which the Tribunal has held that the fact that a respondent maintains a decision it has already taken does not give rise to a separate breach of the Code. See Garrie v. Janus Joan Inc., 2012 HRTO 1955 ("Garrie") at para. 41, and Longtin v. Great-West Life Assurance Company, 2011 HRTO 244 at paras. 11 and 15. The OCA and CCC submitted that their decision to require the applicant to sign a Race License Declaration and adhere to applicable anti-doping policies was a discrete action with ongoing consequences, but did not form part of a series of incidents within the meaning of the Code.

109Meanwhile, the UCI argued that the application for a race license that the applicant submitted in May 2015 was not submitted to the UCI. The UCI stated that it had no knowledge of this 2015 application and never received a copy of it. Therefore, according to the UCI, there was no timely allegation against it and the Application as against the UCI should be dismissed on this basis.

110The applicant submitted that the Application is timely because it relates a claim of systemic discrimination. She sought to rely upon the Tribunal's decisions in Grange v. Toronto (City), 2014 HRTO 633 ("Grange"), and Association of Ontario Midwives v. Ontario (Health and Long Term Care), 2014 HRTO 1370 ("Midwives"), to argue that the timeliness analysis in cases of systemic discrimination ought to be different and more relaxed than in cases that do not involve systemic discrimination. The applicant argued that the Tribunal's jurisprudence is evolving toward a more contextual approach that does not isolate each allegation but instead looks at whether the allegations are capable of forming a pattern of conduct. In addition, according to the applicant, the Tribunal should not be too quick to determine the timeliness of applications that involve claims of systemic discrimination on a preliminary basis.

Applicable Law and Findings

111Section 34(1) of the Code provides that persons may file applications alleging that their rights under the Code have been infringed within one year of the incident (or last incident in a series of incidents) to which an application relates. Under section 34(2) of the Code, individuals may apply to the Tribunal more than one year after the incident to which their applications relate (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed.

112The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for a delay in filing applications. The one-year time period is consistent with the Code's objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires individuals to act with all due diligence, and file their applications within one year, when they seek to pursue human rights claims under the Code. See, for example, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25.

113Although in her Reply the applicant characterized her allegations as claims of systemic discrimination, the only particularized allegations of discrimination against the respondents relate to the denial of her application for a race license in 2013, 2014 and 2015 as well as their application of the Stockholm Consensus recommendations to her in 2005. In my view, the circumstances of this Application differ from to those in the Grange and Midwives cases. Both of these cases involved numerous allegations spread out over the course of several years. In particular, the Midwives case involves an application filed on behalf of 500 individuals that sets out highly particularized allegations of systemic discrimination. Without commenting on the suitability of the approach taken in Grange and Midwives to the circumstances of those cases, I find the analysis that the Tribunal has traditionally and consistently applied to the issue of timeliness is most appropriate to the circumstances of this particular case.

114The Tribunal's traditional approach to timeliness and the interpretation of the phrase "series of incidents" in s. 34(1)(b) of the Code was summarized by a panel of the Tribunal in Garrie. In Garrie, the Tribunal listed the following factors that will generally be relevant to the Tribunal's determination of whether or not allegations of discrimination are timely because they relate to a "series of incidents" (para. 30):

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

115At paras. 38-42 of Garrie, the Tribunal set out a number of non-exhaustive principles which help to identify the distinction between an incident of discrimination and its continuing effects:

a. Whether the acts of alleged discrimination could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

b. When the allegedly discriminatory decision or act occurred and whether this is distinct from the timing of its consequences. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code.

c. When the consequences of the alleged discrimination are manifest for the applicant.

116In terms of the last factor listed in the previous paragraph, it is true that the applicant was well aware of all of the facts relating to the alleged discrimination as early as 2012. In fact, she had made the same allegations of discrimination raised in her Application several times in the years since 2012. However, I find that the two other factors from Garrie listed in the previous paragraph support a finding that the Application is timely.

117The applicant included in her materials an application for a race license she made in May 2015. There is no dispute that the respondents were imposing the same anti-doping requirements that are at issue in this case in 2015, as in previous years. For this reason, the OCA stated that the applicant continued to be ineligible for a race license in 2015 due to her refusal to provide the undertaking mandated by the UCI's Regulations.

118In these circumstances, I find that the applicant is being subjected to what is alleged to be a continuing contravention of the Code and this alleged contravention becomes manifest every time she reapplies for a race license. Cyclists must apply for race licenses annually. A race license permits a cyclist to compete in races during the year covered by the race license. In this respect, the situation is similar to the facts of Garrie, in which the Tribunal found that the ongoing practice of paying the applicant less than other employees who did not have developmental disabilities was not a single act of alleged discrimination but an ongoing series of allegedly discriminatory payments for work performed on a series of occasions. Likewise, in this case, each denial of a race license was not a single act but an ongoing series of allegedly discriminatory race license denials. Each denial of a race license, standing alone, could amount to a violation of the Code. Therefore, the situation involves a continuing contravention of the Code rather than one contravention with continuing effects.

119I find that an analogy provided by the applicant at the hearing is helpful for analyzing the issue of timeliness in this case. The applicant drew an analogy to a scenario where an applicant who uses a wheelchair was unable to gain entry to a yearly film festival three years in a row due to the absence of a ramp at the festival venue. In my view, if the applicant in such a scenario filed an application to this Tribunal after the third attempt to access the film festival venue, her Application likely would be considered timely. This is because of the ongoing existence of a barrier preventing entry to the applicant. In the present case, as in the film festival scenario, the alleged discriminatory barrier imposed in the race licensing process remains in place. The alleged discrimination is ongoing and is made manifest every time the applicant applies for the annual race license.

120A second analogy reinforces this point. The timeliness issues arising in this case are similar to those that would arise in a case where a racialized person applied for an annual membership in a club and was refused three years in a row due to a club policy against granting membership to racialized people. Without deciding a case that is not before me, I think it is likely that the Tribunal would find an application timely even if it was filed after the third refusal. The reason for this would be that the applicant experienced ongoing discrimination as a result of the policy, discrimination that became manifest with each membership application. The same analysis applies in this case.

121Although I find the applicant's allegations regarding the denial of her applications for a race license in 2013, 2014, and 2015 to be timely, I find that her allegations regarding any application to her of the Stockholm Consensus to be untimely. The applicant stated that she met the conditions of the Stockholm Consensus in 2005. Accordingly, there is a gap of approximately seven years between this time and the incidents regarding the denial of her application for a race license. Applying the analysis in Garrie, and many other cases, I find that this significant gap in time serves to break the series of incidents in this case. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9. I do not think that one can fairly conclude that the applicant's allegations regarding the Stockholm Consensus form part of a series of incidents with her allegations regarding the denial of her race license applications in light of the significant period of time that elapsed between these alleged incidents.

122The applicant did not point to any good faith reasons for her delay in raising her claims regarding the Stockholm Consensus to this Tribunal. Indeed, it is clear from the materials filed by the parties that the applicant has asserted her claims of discrimination relating to the Stockholm Consensus many times over the years. In light of this, I see no reasonable explanation for why she could not have filed her claims regarding the Stockholm Consensus within the time period set out in s. 34 of the Code.

123Finally, I note that in her Reply the applicant sets out alleged facts relating to her application to the Canadian Center for Ethics in Sport for a TUE in 2011 and 2012. However, she made no allegations of discrimination against the Canadian Center for Ethics in Sport and this organization is not a respondent to this Application. Therefore, any alleged facts relating to the actions of the Canadian Center for Ethics in Sport may only be relevant as context for the applicant's discrimination allegations against the respondents with respect to the denial of her race license applications.

124For the reasons set out above, I find that the allegations in the Application that relate to denial of the applicant's race license applications in 2013, 2014 and 2015 are timely. The applicant's allegations relating to the Stockholm Consensus are untimely.

Reasonable Prospect of Success

125The respondents who were present at the preliminary hearing submitted that the Tribunal should dismiss the Application on the basis that it stands no reasonable prospect of success.

126First, they argued that applicant has experienced no disadvantage connected to her sex because all cyclists are treated the same. All cyclists who use testosterone or other substances on the Prohibited List are not permitted to obtain a race license unless they obtain a TUE.

127This submission does not take into account the concept of adverse effect discrimination (also called constructive discrimination). Adverse effect discrimination arises where a rule or standard is neutral on its face but has a discriminatory effect on a group of persons identified by a prohibited ground. See, for example, Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536, and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3. See also s. 11 of the Code.

128The applicant alleges that the anti-doping requirements imposed upon her by the respondents as a condition of obtaining a race license have an adverse effect on her on the basis of her sex. Even if these requirements are neutral on their face, they may nevertheless have an adverse effect on the applicant on the basis of sex. Therefore, I do not agree that the Application has no reasonable prospect of success because the impugned anti-doping requirements are neutral on their face.

129Second, the respondents submitted that the Application has no reasonable prospect of success because the requirement that she sign the Race License Declaration is a bona fide requirement ("BFOR"). Furthermore, the respondents submitted that permitting athletes to access substances on the Prohibited List without the oversight of the TUE process would cause undue hardship to them. They also argued that that the TUE process is a comprehensive, meaningful and reasonable accommodation process that complies with their obligations under the Code.

130I agree that these issues raised by the respondents are important issues that must be addressed in this case. This case raises complex questions about whether the requirement to sign the Race Licence Declaration is a BFOR. It also raises complex questions about the application of the undue hardship analysis in the context from which this Application emanates. These complex questions cannot be appropriately determined on a summary basis. They can only be appropriately determined after hearing evidence and full submissions from the parties in a hearing on the merits.

131In addition, I agree that the TUE process appears to be a key part of this case. While I have not heard evidence yet in relation to this process, it does seem that the process is intended to be a process which can provide reasonable accommodations to cyclists. I understand that the applicant has many criticisms of the process and finds it to be inadequate as a form of accommodation. I will need to hear evidence in relation to the TUE process before making any determination in relation to it.

132Finally, this case raises significant questions regarding the scope of the Tribunal's remedial authority if I find a breach of the Code in this case. As noted above, the Tribunal only has jurisdiction over matters in Ontario. This Tribunal does not have jurisdiction over the imposition of UCI or CCC requirements outside Ontario. It also does not have jurisdiction over the recognition or non-recognition of race licenses by parties outside Ontario. Like the other issues raised in the preceding paragraphs, any issues regarding the scope of the Tribunal's remedial authority can only be appropriately determined after hearing full evidence and submissions from the parties in a merits hearing.

133For all the above reasons, the timely allegations in the Application cannot be summarily dismissed on the basis that they lack a reasonable prospect of success.

Whether WADA should be added as a respondent

134The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12 ("Smyth"). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

135Applying the above analysis from Smyth, I find that it is not appropriate to add WADA as a respondent to this Application because the allegations made by the applicant cannot support a finding that WADA violated the Code.

136First, in my view, there is no service relationship between WADA and the applicant. The applicant bases her request to add WADA as a respondent on the basis that it provides protocols to sports federations to ensure the harmonization of anti-doping policies, rules and regulations with the World Anti-Doping Code. She also argues that the World Anti-Doping Code does not recognise that XY female athletes who have undergone gonadectomy require exogenous androgens to maintain health and day-to-day function. Even if I accept all of the above propositions as true and provable, they do not establish a service relationship between WADA and the applicant.

137I find that WADA is not in a service relationship with the applicant for the same reasons I detailed above in relation to the IOC. In my view, the promulgation of anti-doping policies and rules by WADA which have an impact on the applicant when implemented by the UCI, CCC and OCA does not establish a service relationship between the applicant and WADA.

138In addition, for the same reasons that I found that the Tribunal lacks territorial jurisdiction over the IOC, I find that the application as against WADA lacks a sufficient connection to Ontario.

139In light of the above, the applicant's request to add WADA as a respondent is denied.

order

140For the reasons set out above, the Tribunal orders as follows:

a. The Application is dismissed as against the IOC.

b. The UCI's request that the Tribunal remove it as a respondent is denied.

c. The allegations in the Application relating to the denial of the applicant's 2013, 2014 and 2015 race license applications are timely. However, the allegations relating to the Stockholm Consensus are dismissed as untimely.

d. The timely allegations in the Application cannot be dismissed on the basis that they stand no reasonable prospect of success.

e. The applicant's request to add WADA as a respondent is denied.

f. Since the applicant, the UCI, the OCA and the CCC have all agreed to mediation, the next step is for the Tribunal to schedule a mediation in this case.

Dated at Toronto, this 20th day of July, 2016.

"Signed by"

_________________________________

Jo-Anne Pickel Vice-chair