Facts
The Canadian Centre for Ethics in Sport (CCES), Swimming Natation Canada (Swimming Canada) and Coaches of Canada (Coaches) have applied to set aside the 2007 decision of the adjudicator Graeme Mew, dated October 29, 2005, reinstating the Respondent Cecil Thomas George Russell (Russell) as a national level swimming coach on the basis of fraud.
History
In October 1997 Russell was banned for life from participating in sports funded or recognized by the Government of Canada, because he was found to have committed a doping related infraction by reason of his criminal conviction for possession and conspiracy to traffic in anabolic steroids in 1996.
On June 24, 2005 Russell applied for reinstatement for the second time and after a hearing was held in September of 2005, Arbitrator Mew ordered that Russell be reinstated as a swimming coach in Canada. After the arbitration hearing was held the CCES learned from reading newspaper articles in the Globe and Mail and the Toronto Star, that Russell had pleaded and been found guilty of conspiracy to possess with intent to distribute MDMA (ecstasy) in Arizona and was sentenced to a term of four years imprisonment in March of 2004. At his reinstatement hearing before Arbitrator Mew in September of 2005, that Russell did not disclose his conviction for conspiracy to traffic in ecstasy in Arizona in 2004, to Arbitrator Mew.
In this application and motion the Court must decide the following issues:
1. Did Russell’s failure to disclose the material fact of his criminal conviction for a drug-related offence in Arizona in 2004 or the making of false representations in his application for reinstatement, constitute fraud?
2. Does the Superior Court have jurisdiction to hear this application?
3. Should Commission Counsel and his firm be removed from the record?
4. Should the Court strike out the portions of the affidavits which set out the false evidence that is alleged to have been given by Russell at the arbitration hearing, where there was no transcript; and the portions which relate to newspaper articles describing Russell’s admission to assisting an associate to dispose of a murder victim’s body?
Decision
The CCES, Coaches and Swimming Canada application to set aside Arbitrator Mew’s decision on the basis of fraud pursuant to s. 46.(1).9 of the Arbitrations Act of Ontario is granted and the matter is referred back to Arbitrator Mew for reconsideration based on the additional evidence.
