Sunshine is the best disinfectant. There is really nothing like daylight to keep problematic behaviour from being left to fester in the dark. When the public is able to see that inappropriate behaviour is handled effectively and that perpetrators are held accountable for their actions, it builds trust in our institutions and also discourages others from engaging in such behaviour.
Unfortunately, Hockey Canada, the national governing body for amateur hockey in this country, has yet to demonstrate that it's learned this lesson. And, what's worse, a recent appeal of a disciplinary decision by the organizations' Independent Third Party (ITP) reviewer has left people wondering just how much disturbing behaviour is being handled with slaps on the wrist, kid gloves, and a general acceptance that "boys will be boys."
In this blog post, I review a recent decision by the Sport Dispute Resolution Centre of Canada (SDRCC) which publicized woefully inadequate disciplinary sanctions set down by the ITP against numerous players and coaches in response to a complaint by a minor hockey player alleging "ongoing and persistent bullying, sexual misconduct and sexual harassment."
Remarkably, the public likely would have never known about these sanctions or the toxic culture that had developed were it not for the bravery shown by the complainant and his parents when they opted to appeal the ITP decision. This case demonstrates why Hockey Canada needs to show it takes its conduct policies seriously by making disciplinary actions available for review on a public registry.
A Toxic, Appalling Cesspool.
On April 18, 2024, a member of an Ontario U14AA Hockey Team made a maltreatment complaint to Hockey Canada's ITP. Since the 2022‐2023 season, maltreatment complaints made to Hockey Canada involving national‐level athletes have, in most circumstances, been managed by an independent complaint system (the ITP).
The complainant (known as Party X) alleged that some players on the team "engaged in ongoing and persistent bullying, sexual misconduct and sexual harassment of other players throughout the 2023‐2024 season" in the team dressing room.
Some team members were reportedly engaged in:
- "trash talking" and bullying
- exposing their own genitals and/or "pantsing" other players by pulling down their underwear
- blocking exit doors to prevent players from leaving while other players were forcibly "pantsing" other players
- taking photos and videos of these incidents of forced exposure and potentially posting the images on the team's SnapChat and other social media platforms
Party X alleged this misconduct occurred in the team's dressing room before or after games and practices. He further alleged that team coaches had contravened Hockey Canada policy by not providing adequate supervision of this space. The "Rule of Two" requires two "trained and screened adults" in or "immediately outside the dressing room with the door propped open to monitor the environment and ensure that it is free of any discrimination, harassment, bullying, or other forms of maltreatment."
Following an investigation, on October 17, 2024 the ITP adjudicator determined a number of players, and three adults had engaged in conduct that breached the Ontario Hockey Federation (OHF) Ontario Dressing Room Policy, the Hockey Canada Dressing Room Policy, the OHF Respect and Expectation Policy, the Universal Code of Conduct to Prevent and Address Maltreatment in Sport, and Hockey Canada's Maltreatment Complaint Management Policy.
Of note, the Adjudicator described the content of the Team Snapchat account as "…disappointing and disturbing. It is a cesspool of racist and homophobic images and content, slurs, and jokes about sexual assault…. Comments in the Team SnapChat include homophobic jokes and slurs (including the "F" word), comments mocking players' penis sizes, comments calling players "Mexicans" or "lesbians," as well as the use of the "N" word and other racial slurs."
Calling the content "appalling," the Adjudicator stated it is "reflective of a toxic culture that clearly took root in the Team over the 2023‐2024 season."
The Adjudicator also took note of certain actions (and inaction) by head coach Dave Mercanti. Despite Mercanti's denials, the Adjudicator determined that the coach had been made aware of problems in the dressing room and had been confronted about his failure to abide by Hockey Canada's Rule of Two for supervision of players. The Adjudicator further suggested that Mercanti was dismissive of the evidence demonstrating the basis of the complaint, demonstrated contempt for the ITP investigation process, and "took no acceptance or responsibility for his actions or the actions of the players"
Inadequate Sanctions and an Appeal.
The Adjudicator assessed sanctions included suspensions of between one to seven games for specific players, a five-game suspension for Mercanti, and written reprimands for assistant coaches Greg Williams and Bill Whalen.
Party X and his parents were "in disbelief." Speaking to TSN's Rick Westhead, Party X's mother said: "Seven games was less than a slap on the wrist. We started our appeal process because we wanted our son to know that there are consequences for your actions. It's easier to walk away than to do something about it but along the way we realized that nobody speaks out because the processes that are in place prevent them from being able to… We want other families experiencing maltreatment to know that they aren't alone."
For Party X, the inadequate sanctions were an insult that were soon followed by injury. On Nov. 1, 2024, he was "violently assaulted" by a teammate at a local rink. That attack, recorded by closed-circuit video in the rink, spawned a further ITP complaint that resulted in a one-year suspension for the offending player.
In reviewing the ITP Adjudicator's sanctions, Carol Roberts, an Arbitrator for the SDRCC, first considered whether the standard of reasonableness or correctness should be used when assessing the sanctions prescribed.
Since the issue on appeal is the application of an internal policy rather than a statutory provision, she found the standard of review is one of reasonableness, not correctness. Case law affirms that this standard requires a "robust review" where the Arbitrator should focus "on the decision actually made, including the justification for it, not on the conclusion a reviewing court would have reached in the administrative decision maker's place."
In light of Hockey Canada's own policy guidelines for determining sanctions, Roberts found the Adjudicator's decision could not withstand the robust review of the reasonableness standard.
In her decision, Roberts noted the Adjudicator erred by:
- improperly inferring a lack of intent as a mitigating factor in assessing the sanctions for the player.
- improperly considering the "volunteer" status of two coaches as constituting mitigating factors in assessing sanctions for the adults
- failing to properly consider section 42 of the policy (factors relevant to determining appropriate sanctions) and,
- failing to fully consider other sections as well as the intent and purpose of the Universal Code of Conduct to Prevent and Address Maltreatment and Abuse in Sport, in particular, when arriving at his sanction decisions.
In addition to sanctioning the players and assistant coaches with probationary periods, Roberts issued a six-month suspension from Hockey Canada games, events, and practices, and an additional one year of probation for Mercanti. The Arbiter wrote that while "there was no evidence that any of the coaches had any prior history or pattern of inappropriate behaviour,... I find that, without an effective sanction, Mercanti, in particular, poses an ongoing potential threat to the safety of others."
Roberts added: "The collective failure of the coaches to properly supervise the dressing room in contravention of the Policies had an impact not only on the Claimant, but other members of the Team, Hockey Canada and the broader sporting community."
Shine a Light on Misconduct.
The collective failure of the coaches to monitor what was happening in the locker room was not the only part of this case to have a broad impact on players and the public.
Hockey Canada's refusal - to date - to establish a public registry of the ITP's disciplinary decisions and sanctions means that we are left to wonder if the inadequate sanctions in this case are exceptional, or much more common. Were it not for the actions of Party X and his parents, the unsafe conditions in this team's locker room may never have come to light.
As TSN explains in its coverage: "Hockey Canada has said for more than a year that it is 'studying and evaluating' the possibility of making sanctions public. Several sources close to the federation's board have said that while there is mounting pressure as other sports organizations adopt public registries, Hockey Canada's lawyers are concerned the organization could face lawsuits from people who are named publicly for bad behaviour."
It's both sad and infuriating that concerns about lawsuits from people who are publicly named for bad behaviour would trump concerns about the people suffering from this bad behaviour. Moreover, people who have been harmed by these kinds of actions are far more likely to pursue lawsuits than people engaging in indefensible harassment and bullying.
Other sports organizations and associations in Canada have public sanctions registries or are in the process of establishing them. When institutions pull back the curtains and reveal the state of their operations, "warts and all," it can result in a period of uncomfortable adjustment for everyone involved. However, once the sun shines in and keeps beaming brightly, conditions become much less hospitable for problematic behaviour and toxic culture to take root.
It's high time for Hockey Canada to heed some of the painful lessons of the past few years when it comes to its systemic failures. By establishing a public registry, it can work to get out of the public opinion penalty box and show the country that when it comes to tackling misconduct, it's ready for the big leagues.
If you are a survivor of sexual assault or abuse, our trauma-informed Toronto sexual abuse lawyers are here to help. We will listen to you with compassion and empathy and your initial meeting with us is always a confidential free consultation with no obligation.