Ski jumpers’ appeal could overturn VANOC’s legal status 

‘Half a good decision’ may force more accountability from Games organizers

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Equality in sports isn't the only value at stake in the women's ski jumping appeal - also at stake is VANOC's subjection to Canada's Charter of Rights and Freedoms.

In a 42-page decision on July 10, B.C. Supreme Court Justice Lauri Ann Fenlon ruled against the female ski jumpers who sued VANOC for excluding them from the Olympic Winter Games.

The women had argued that the organizing committee was discriminating against them because of their sex, in violation of Charter s. 15 which guarantees equality regardless of sex, race, national or ethnic origin, colour, religion or mental or physical disability.

Fenlon agreed that excluding women's ski jumping was discriminatory but decided that VANOC wasn't in breach of the Charter, ruling that the committee was carrying out a function of the International Olympic Committee (IOC).

There were, however, two key conclusions that came out of the lawsuit: 1) that VANOC is performing a government activity in putting on the Games and 2) that it's bound by the Charter, which guarantees rights such as freedom of speech, assembly and religion.

VANOC has long been the subject of complaints with regard to its accountability. The organization is not bound to release information through either the provincial Freedom of Information and Protection of Privacy Act, nor the federal Access to Information and Privacy Act.

Board meetings are held out of public view despite the fact that VANOC has received approximately $580 million in government funding for construction of Olympic venues and renovation of existing facilities. Corporate sponsorships amounting to around $760 million make up the bulk of VANOC revenues.

Its status as a government entity has long been in question and the ski jumpers' lawsuit gave at least a little clarity to VANOC's legal status.

The lawsuit focused on two key questions: does the Charter apply to VANOC, and is VANOC in violation of s. 15? Any entity that's not part of government is still subject to the Charter if it's subject to "routine or regular control" by government.

The ski jumpers argued that governments control VANOC, particularly in the areas of governance, funding and policy and operations. Fenlon disagreed with this, saying the "government control" argument didn't subject VANOC to the Charter.

She did, however, agree that VANOC is carrying out a government activity, recognizing that the decision by governments to hold the Games is a government activity in itself.

She also cited a case from the U.S. 9 th Circuit Court that said there was a sufficient link between organizers of the 1984 Olympics and the government to allow the application of rights under the U.S. Constitution.

She thus concluded that VANOC is subject to the Charter in carrying out the planning, organizing, financing and staging of the 2010 Games.

Despite the finding, a higher court could nullify these decisions now that the ski jumpers have launched an appeal. In launching the appeal the female jumpers hope the B.C. Court of Appeal will allow them to compete at the 2010 Games.

If they lose, another judge could overturn those conclusions, according to Micheal Vonn, policy director at the B.C. Civil Liberties Association.

"We've got ski jumpers and they've got half a good decision," she said. "The half a good decision is actually good for the rest of the community in the sense that yes, we would like to pursue this notion of VANOC being accountable to the citizens whose tax money they are using.

"We have a lot to gain from having that half a good decision stand and be pursued and clarified and really flesh out the ramifications of that. It is possible that the Court of Appeal could reverse that."

Jeffrey Horswill, one of two lawyers working on behalf of the women ski jumpers, said they're not appealing the conclusion that hosting the Olympics is a government activity and that they're focusing solely on the fact the jumpers don't have an event in the Games.

He said the issue of VANOC's status as a government entity would have to be appealed on its own, but that could happen within the same hearing.

"That issue would have to be raised before it could be overturned," he said. "VANOC would have to do a cross appeal saying that there was an error of law made and such and such a point of her conclusion, you know, this finding is a result of an error of law and so it should be overturned."

VANOC would not confirm whether it will appeal Fenlon's conclusions, saying only that it has said all it is prepared to say about the lawsuit.

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