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HomeMy WebLinkAboutOES 29-02 Ciú¡ o~ 1, ft,)'::) '-.' ,J, CONFIDENTIAL REPORT TO COUNCIL ",..... FROM: Stephen Reynolds Division Head, Culture & Recreation DATE: June 17,2002 REPORT NUMBER: OES 029-02 SUBJECT: Financial Assistance Request from the Pickering Aerials Gymnastics Club File: CO3000 RECOMMENDATION: That Confidential Report to Council OES-O29-02 regarding a request for financial assistance from the Pickering Aerials Gymnastics Club be received, and 1. That Council approve a grant in the amount of (amount to be determined by Council) to assist the Pickering Aerials Gymnastics Club with the proposal to relocate the Aerials training facility to a larger space at 1095 Kingston Road, and 2. That this grant be charged to Account #2195 (Grants to Organizations and Individuals) as an over-expenditure for 2002 Budget. - - - OR - - 1. That the Clerk be directed to inform the Pickering Aerials Gymnastics Club that their request for funding dated June 12, 2002, to assist with the relocation to a larger space at 1095 Kingston Road, be denied. ORIGIN: Letter from Dave Sora, Pickering Aerials Gymnastics Club, dated June 12,2002. AUTHORITY: Section 113(1) of the Municipal Act. FINANCIAL IMPLICATIONS: The Director, Corporate Services & Treasurer indicates that should Council decide to financially support this request, it would result in an over-expenditure in Account #2195, Grants to Organizations and Individuals. There is the possibility that it will be offset by surpluses elsewhere across the Corporation in 2002, however as budgets become "tighter" flexibilities decrease. . - EXECUTIVE SUMMARY: The Pickering Aerials Gymnastics Club have recently been advised that the landlord at 1095 Kingston Road has retained Royal LePage Commercial Division for the purpose of selling the property. To facilitate the sale the landlord has proposed a relocation of the Aerials to a larger. area (20,000 sq. ft.) within the existing building. Failure to relocate could result in eviction as the Aerials remain on a month-to-month lease. The Aerials have identified the proposed relocation and expansion of the facility would be beneficial and create opportunities to expand .104 Report to Council OES 029-02 Date: June 17,2002 Subject: Financial Assistance Request from the Pickering Aerials Gymnastics Club Page 2 programming to meet current and future needs. The associated costs are prohibitive without the assistance from the City of Pickering. ,... In a letter dated June 12, 2002, the Pickering Aerials Gymnastics Club have requested financial assistance in the fonn of a non-repayable grant in the amount of $98,000 to fund the proposal to relocate the Aerials training facility to a larger space. BACKGROUND: Due to the sale of the existing property at 1095 Kingston Road., the Pickering Aerials Gymnastics Club (Aerials) is requesting financial assistance from the City of Pickering in the fonn of a non-repayable grant in the amount of $98,000 to fund a proposal by the landlord to relocate the Aerials training facility to a larger space in the same building. On May 20, 2002, the landlord advised the Aerials that it had retained Royal LePage Commercial Division for the purpose of selling the property. To facilitate the sale, the landlord has proposed a relocation ofthe Club to a larger area (20,000 sq. ft.) within the existing building. The landlord has proposed that the Pickering Aerials Gymnastics Club relocate from their present location in the center of the complex to the southwest sector. The size and dimension of the space has been pre-detennined by the landlord to facilitate the sale of the property. The proposed area is approximately 20,000 sq. ft. - twice the Club's current occupancy - with approximately 3,500 sq. ft. finished office space and 16,500 sq. ft. unfinished industrial/commercial. - Recreation, Parks & Cultural Services Master Plan As part of the Recreation, Parks & Cultural Services Master Plan process the Pickering Aerials Gymnastics Club identified that they require an 18,000 - 20,000 square foot pennanent/semi- pennanent structure with 19' high ceilings in the shape ora square approx. 140 ft x140 ft. The facility would also require 20-25% non-programmable space such as administration, vestibule, washrooms, change rooms, storage areas. The program area would include two 40' x 40' raised sprung floors, four 12' x 17' in ground euro-tramps, warming track and open vaulting pit of approx. 12' x 18'. - The Pickering Aerials Gymnastics Club have identified that there does not appear to be a "level playing field" for all sports organizations in the City as some sports organizations receive direct or indirect subsidy from the municipality with no subsidy of gymnastics in Pickering. The Aerials have unique concerns because they are only the only sport user group that responded to the Master Plan user group survey that utilizes a privately owned facility in prime commercial space. With over 800 members currently, the Aerials identified that they could accommodate an additional 500 members if they had the space to offer more current programs and new programs. The Aerials have unlimited potential to build their programming by increasing their recreational and alternative gymnastics programs. ill order to grow however, the Aerials see the need to develop a partnership with the City of Pickering. Their ability to afford increased facility space cannot be fulfilled without the support of the municipality. Through the Master Plan consultation process the Aerials indicated that the City could provide support in a munber of ways which included - identifying partners in a multi-purpose facility, building a new facility the club can pay for over time, offering municipal land for construction of a new facility, interest free loans or assistance with seeking grants/corporate support. The Strategic Plan Report (DRAFT FINAL REPORT) recommends that by 2006, one gymnastic facility should be provided as part 'of a new multi-purpose facility. The plan for a gymnastic facility as part of a new multi-purpose facility does not address the immediate situation that the Aerials are dealing with. The proposal to relocate and acquire the Report to Council DES 029-02 Date: June 17, 2002 105 Subject: Financial Assistance Request ftom the Pickering Aerials Gymnastics Club Page 3 additional space at the current property (1095 Kingston Road) presents an excellent opportunity for the Aerials to meet their current and future needs. Options -- With respect to the current property, there are two primary options available to the Pickering Aerials Gymnastics Club: (A) Relocate to the proposed 20,000 sq. ft. and secure a long term lease (5-10 years) (B) Remain in the current 10,000 sq. ft. location subject to possible eviction with 2 months notice. (A) Relocate to the proposed 20,000 sq. ft. and secure a long term lease (5-10 years) While relocation and expansion of facility is beneficial and creates opportunities to expand programming and improve access to many more participants, the Aerials have identified that associated costs are prohibitive without assistance ftom the City of Pickering. With the relocation to the 20,000 sq. ft. facility, there are significant associated one-time costs. -- Retrofitting and physical relocation (requesting funding assistance) In-ground pit Removal of steel beam Upgrade washrooms Construction of changerooms Exterior double door Carpet and floor fmishing Total retrofitting & physical relocation $25,000 $15,000 $10,000 $ 5,000 $ 3,000 $ 3,000 $58,000 The landlord's proposal (20,000 sq. f1.) is twice the Aerials current occupancy (10,000 sq. ft.). The Aerials predict a 12 month lead period to develop and implement enhanced and/or new programming to generate revenues to cover operating costs related to the additional square footage. The Aerials can currently operate 10,000 sq. ft. and with rate adjustments and other initiatives have identified they can comfortably manage and operate 15,000 sq. ft. This leaves the Aerials a revenue shortfall on the operations and management of 5,000 sq. ft. for approximately one year (5,000 sq. ft. @ $7.00/sq. ft. = $35,000). The Aerials have identified additional relocation costs for moving ($3,000) and improved exterior lighting ($2000). Additional Relocation Costs (requesting funding assistance) 5,000 sq.ft. @ $7.00/sq. ft. Moving vans movers etc Improved exterior lighting Total additional relocation costs $35,000 $ 3,000 $ 2,000 $40,000 - (B) Remain in the current 10,000 sq. ft. location subject to possible eviction with 2 months notice. Failure to relocate could result in eviction as the Aerials remain on a month-to-month lease. If the Aerials lose the space in the current facility they would be required to find a new location to lease space in order to continue to provide their high quality gymnastics programs. The Aerials have been continuously searching for alternate space over the past five years with the direction, expertise and support of professional real estate agents and the City's Economic Development Officer but hav~ been unable to identify alternate suitable space to meet operational needs or 1 0 6 Report to Council OES 029-02 Subject: Financial Assistance Request !Tom the Pickering Aerials Gymnastics Club Date: June 17,2002 Page 4 budget. If identified an alternate suitable space would result in significant costs associated with relocation as identified above. Conclusion - The Aerials have concluded that the only realistic option is to relocate to the larger space in the same building. The Aerials have not been successful in obtaining an expansion loan !Tom local chartered banks. The Aerials require and have requested financial assistance from the City of Pickering. ' Gender Equity The Pickering Aerials Gymnastic Club's request for funding makes reference to a British Columbia Human Rights case. The case referred to involved the City of Coquitlam. Please find attached memorandum !Tom John H. Reble, City Solicitor, with his comments on the BC case and its relevance to the Pickering Aeriais Gymnastic Club's request. ATTACHMENTS: 1. 2. 3. Letter from Dave Sora, Pickering Aerials Gymnàstics Club, dated June 12,2002 Memorandum from John H. Reble, City Solicitor, dated June 14,2002 Location Map - "l Everet tsma Director, Operations & Emergency Services I ( '~ Stephen Re9rrO ds Division Head, Culture & Recreation SR:lc Attachments Copy: Chief Administrative Officer Director, Corporate Services & Treasurer Recommended for the consideration of Pickering City Council .;t' - ATTACHMENT#--L TO REPORT # q~S 029,- 02- pO:-Cj <::: \ ¿:' f) 1 1 «,,1, ' t'i " ( -. PICKERING AERIALS GYl\'lNASTICS CLUB 1095 Kingston Road Pickering, Ontario LIV 185 Telephone: 905-839-52(jÇJ Fax: 905-839-2296 -. Steve Reynolds Director, Culture and Recreátion City of Pickering 1 The Esplanade Pickering, Ontario ~[g~ll~~ ~ ill ',' fù 'JUN 1 J 1001 .;::.J Y -OF PICKERING C~\}URE & RECREATION . DIVISION June 12th,' 2002 Re: Request for funding Womens' artistic gymnastics and Pickering Aerials 'This is further to our recent conversation of June 7th, 2002 in which I informed you of recent developments at 1095 Kingston Rd. in Pickering which places the continued - operations of the Pickering Aerials at risk giving rise to the need 'for municipal support. Please find attached a summary report which explains.the situation and justifies the' request for financial support from the City in the amount of approximåtely $98,000 to offset the costs Ç>f relocation and provide !Js with long-term stability and the opportunity to improve and expand sport services to meet the needs of our community. . , As indicated. the landlord is proceeding with'the sale of the property and we areon.a month-to-month leave which creates tremendous vulnerability, However, a relocation' has been proposed as a possible remedy within the building but the costs associ¡:Jted with relocation and rental of increased space is prohibitive without municipal support. -. . , Time is of the essence, I trust this matter can be expedited through the Operations and Finance Committee and ultimately municipal council on June 24th, 2002. J:JQv-- , Dave Sora Pickering Aerials Gymnastics Club (on behalf of) , cc: PAGC Executive 1()8 ","l"">" "'H' '¡VI""',¡",!" \ '1"0" ¡;¡r¡:¡o R-I",¡,¡,,'Q~S 02.9 - 02- KI lAc.;. t:1'I! ¡ rT._..._-- nt:r ff_._..... pG.j€ 2 0\ 1 - PICKERING AERIALS GYMNASTICS CLUB Report to City and Municipal Council' Request for Funding Request , Due to the sale of the existing property at 1095 Kingston Rd.; the BQard of Directors of' the Pickering Aerials Gymnastics Club is requesting financial assistance from the City of Pickering in the form of a non-repayable grant in the amount of approximately $98,000 to .. fund a proposal by the landlord to relocate the Aerials training facility to a larger space' in the same building and avoid eviction. -. Situation . The Pickering Aerials Gymnastics Club (PAGC) has successfully operated a recreational' and competitive gymnastics program for nearly 25 years and for the past 9 years has developed a range of successful programs that have attemptedto meet community needs. As a result, we have been able to establish á growing reputation in the sport at our facility at 1095 Kingston Rd. ' . . , The Aerials have a long proven history of providing excellent sport programs to the . residents of Pickering, Durham Region and the GTA and currently provide training to have approximately 600 recreational and 70 competitive athletes. The success of local athletes training at our facility as well as Pickering athletes Who train at other facilities has been reported regularly in the locElI News Advertiser and provides strong representation for Pickering when travelling abroad. . , ' , . . In addition to regular pn;>gramming, during the past 8 years we have been successful in hosting a large-scale annual invitational gymnastics meet that attracts clubs from Canada and the US, recognized as being one of the largest in the area. . ' - Despite our success and continued development, on May 20th, 2002 the landlord .. advised the Board of Directors that it had retained Royall.:epage Commercial Division, for the purpose of selling the property. To facilitate the sale, the landlord has proposed a relocation of the Club to,a larger area (20,000 sq. ft.) within the existing building. Landlord's proposal.. . The landlord is proposing that we relocate from our present location in the center of the complex to the southwest sector. The size and dimension of the space has been pre- determined by the landlord to facilitate the sale. The proposed area is approximately 20,000 sq. ft. - twice our èurrent occupancy - with approximately 3,500 sq. ft. finished office space and 16,500 sq. ft. unfinished industrial/commercial. The proposai' to rel,ocate and acquire the additional space presents a significant opportunity for more athletes to participate' as well as the opportunity and space to develop a wider range of programming that will meet increasing community needs. Currently many residents are training at gyms outside Pickering and Durham region as the sport services and programs are simply not available here. This is an opportunity to provide programs within our own community a,nd prevent migrations to adjacent municipalities. ' A'fTACHIVIENf #,.,.1.-- REPOR1' # _.Q~~ 029,- 02 r~e, 3 ck 1 lng - Options With rèspect to the current property, there are two primary options available based on the presentation by the agent: Relocate to the proposed 20,000 sq. ft. without funds to cover relocation and retrofitting costs, or: ' ' Remain in the current 10,000 sq. ft. location subject to possible eviction with 2 months notice. Issues The practicality and feasibility of executing either option is affected by several issues including: - 1) Specificity of facility requirements Similar to all sports, the, building and facility requirements are specific to the sport of gymnastics alid include costs associated with construction of in-ground pits and chan~erooms, etc. to meet our specifications: 2) Size and afford ability of increased space . , The Aerials can currently operate 10,000 sq. ft. and with rate adjustments and other initiatives can comfortably manage and operate 15,000 sq. ft. The landlord's proposal (20,000 sq. ft.) is twice our current occupancy (10,000 sq. ft.) and predict á 12 month lead period to develop and implement enhanced and/or new programming to generate revenues to cover operating costs related tò the additional square footage. 3) Lease conditions . We are currently on a month-to-monthlease and subject to a 2-month eviction notice: 4) Alternate space , Continuous search for alternate space over the past 5 years with the direction, expertise and'support.of professional real estate agents and the City of Pickering's Èconomic Development department has not resulted in. the identification of alternate 'suitable space to meet operational needs or budget. - 5) Alternate funding The Aerials have not been successful in obtaining an expansion loan from local chartered banks and the prospect of parent-backed collateral, while considered, was concluded not to be appropriate. Risks Associated with Options While relocation and expansion of facility is beneficial and creates opportunities to expand programming and improve access to many more athletes, the assqciated costs are prohibitive and without assistance, consequential for continued operations. On the other hand, failure to relocate could result in eviction as we remain on a month-to-month lease. 110 #"~L,,TO REPORT # -,Q~ <; 02.. q - 02 paje 4 Oy 1 - (a) Failure to relocate Should the Aerials fail to relocate, there are several predictable consequences: Potential notice of eviction on 2-months notice . Continued inability to meet the needs of community due to limited space and opportunities: . ConQnued out-migration of residents to other municipalities for sport services with resultant impaCt on local economy: . While staying in our current location avoids costs associated with relocation, it is reasonable to assume that at best, we will become non-competitive in the sport and fail to meet the needs and demands of our commUnity or at worst, we will. be evicted. - (b) Relocation Should the Aerials decide to relocate to the 20,000 sq. ft. faéility, there are significant associated one-time costs that are unbudgeted with no available mech~nism for cost recovery. Therefore, relocation without adequate funding is irresponsible and can lead to eventual bankruptcy and closure. . While the Aerials have a proven history of successful.program, facility and club management of our current facility at 10;000 sq. ft., the prospect of supporting the costs associated with operating twice the space without new revenue sources and supported by a completely volunteer board, is. profound and unrealistic. . The proposed space is fixed at 20;000 sq. ft. and it'¡s our understanding that consideration will not be given to leasing a smaller space or different configuration. This' leaves a revenue shortfall on the operations and management of 5, 000 sq. ft. until such time as we can develop and effectively market expanded or new programs. This would take approximately one year. . Costs associated with relocation There are two significant costs associated with relocation (see Appendix A): 1) Retrofitting and physical relocation $58,000 2) lease costs associated with additional 5,000 sq. ft. 5,000 sq. ft. @ $7.00/sq. ft. $40,000 - Leveling the playing field . The Pickering Aerials have long maintained thatthe sport of womens' artistic gymnastics in Pickering does not receive the direct and indirect funding that all other sports in the area and region enjoy. Indeed, the recent article in the News Advertiser revealed significant plans for funding of all sports with a "potential loan for gymnastics" added as an afterthought. . While efforts to obtain financial information on municipal subsidy of sport in Pickering have been unsuccessfuÎ,it would be reasonable to conclude that other sport organizations such as the PHA, Pickering Soccer, Pickering Softball, etc. would not be able to offer affordable programs if they had to lease space at market rates including paying municipal taxes. . ATTACHMENT it -1-TO REPORT #: 06 S po-~ 5 of1 029 -02 111 - Comparatively, it has been estimated that the cost to install and maintain 4 lighting standards at a conventional baseball diamond would be in excess of $50,000. The current construction costs of the 3rd ice pad at Don Beer Arena are in the millions. Further, the City of Pickering is also aware of several successful and innovative partnerships between parent-run gymnastic clubs and municipal governments in other júrisdictions (eg., 'Oakville, Burlington, London). The 5-year plan exercis,e identified , possiþle capital partnerships involving the Aerials, the City and other sport organisations but such plans will not materialize for several years. . Finally, the City 9f Pickering is aware of a 1999 decision by the British CQlumbia Human Rights Commission which concluded that a local municipality (City of Victoria) was discriminating on the basis of gender byunderfunding women's artistiqgymnastics relative to other sports. In a settlement, the City agreed to PC\Y the Omega Gymnastics Club an annual operating subsidy of $65,000 per year. ' - Consequently, this requestfor funding not only prevents decay of sport and recreation programming in Pickering, it also provides for a "leveling of the playing field" in relation to the financial support provided by the City of Pickering to other sports and recreational activities. " , ' 5-year Recreation Planning Process The Pickering Aerials have completed and submitted an extensive survey and consulted with,the City and other sport groups. Clearly, any earlier speculation about capital funding forthe development of new facilities in partnership with local prganizatiöns such a$ the Aerials -while provocative - simply does not provide a resolution to, or relief for, the immediate situation while has developed. However, funding the expansion and relocation as proposed, does not qefeat thê goal of the 5-year niaster planning exercise as the opportunity to partner with the City and other organisations will still exist. . Opportunities If relocation funding can 'be beenmade available, a number of realistic opportunities are. available to ensure long-term stability arid revenue generation from the 20,000 sq. ft. facility. This includes: .' - expanding the current programs by adding the following: Larger scale trampoline program Power tumbling program Boys gymnastic program expanding the existing 'recreational programs. . . partnering with the City to offer coordinated gymnastics and/or activation/conqitioning programs . Threats . The failure to subsidize a relocation through fiscally responsible acquisition of additional space threatens the continued existence of the Club and the ability to provide high quality gymnastics programs to meet the needs of Pickering residents. 112 - - - AT1ACHf'iiENT # -Lro REPORT # - ~ S ' fCl~e & or 1 029 -02 If we do not grow we will experience increased competition from other clubs'in the area including: ' , ' Ajax Acros Scarborough Gym Elite Durham Academy Oshawa Gemini Planet Gymnastics (reèreational) Whiz Kids Gymnastics (Boys) Winstonettes gymnastiCs Markham Gymnastics Ironically, the City of Pickering's kindergym, program Is in direct competìtion with our programs and has the ability to draw not only registrants but also coaches. , ' It is ,our belief that every athlete deserves the opportunity to participate in a wide range of gymnastics programs in ,Pickering without having to leave our community. ,Conclusion, The future of women's artistic gymnastics and the potential for exciting new programs is currently in jeopardy as a result of the, recent development and decision to sell the' property at ,1095 Kingston Rd. where our blub'has operated for the past 8 y~ars. The only realistic option is for'the Club to relocate tò the larger space in the,same building as proposed. But to do so requires financial support. The Aerials have been duly diligent in our efforts to find alternate funding sources and space, but have, .. concluded that even in the çurrent situation, and given the expense, relocation without municipal.support would be impractical and Irresponsible for a volunteer, non-profit board. On the other hand, we are convinced that with municipal support we'can not only continue to provide excellent services but can also improve them and-meet the needs of all athletes in our community. - -" - Relative to th!3 direct and indirect municipal support provided to all other sport organizations in Pickering, and In recognition of t~e,need to level the playing fie/d,.the ' amo'unt of sùpport being requ~sted,is comparable and equitable. ATTACHMENT#-Lro REPORT#~.Q.~S 02 q - 02 pOtje 1 oç 1 11 ,~\ ...} - .. APPENDIX A Estimated relocation and primary, retrofitting costs. Relocation . Acquisition of 5,000 sq. ft. of extra, unbudgeted space for 12 months @ $7.00/sq. ft. X 12 months $35,000 $ 3,000 $ 2,000 . . Moving vans, movers, etc. Improved exterior lighting -. Subtotal [$40,000] Retrofitting In~gro~nd pit . Removal of steei beam Upgrade washrooms Construction of changerooms Exterior doublé door Carpet and floor finishing Subtotal $25,000 $15,000 $10,000 $ 5,000 $ 3,000 $ 3,000 [$58,000] . Total (estimate) $98,000 - 114 AT'IACHMENT #"_2 _TO REPORT#_QJ;:Ç 0 2~ - 02 Fje \ o~ 9 - :JOHN H REBLE BARRISTER & SOLICITOR j /, tv'" ) Memo to: Everett Buntsma, Director, Operations & Emergency Services copy: Date: June 14, 2002 Subject: Request for Municipal Funding - Female Gymnastic Club - Discrimination , ' You have discussed with me a reference by a local female gymnastic club seeking City funding to a a.c. Human Rights éa$e. The reference, in ~y opinio~ could be interpreted as a warning by the club thàt resort to the Ontario Human Rights Tribunal could be made if funding is not forthcoming. The B.C. case referred to involved the City of Coquitlam, not Victoria as noted by the author of the letter to the City. The case did not go to a hearing; it was settled by way of a mediated agreement. I have attached a review of the cas~ by-the Center for Sport and Law Inc. at Brock University. St. 'Catharines, Ontario.l have found the case review very helpful and would recommend its retention - for future reference. . . I offer the following comments on the B.C. case and its relevance to the request of the local gymnastic ,organization. . Firstly, the complaint "alleged that the allocation of resources, either as direct [mancial subsidy or tax relief, by the City of Coquitlam to sport and recreation facilities and organizations, . disproportionately benefited male-dominated spans over female- dominated sports." It is stated that to succeed it must be proven that: "1. there is discrimination; and 2. the discrimination relates to one of the prohibited grounds in the Code, in this case, sex; and' . . 3.th~ discrimination relates to a service which is customarily offered to the public." In the B.C. (Coquitlam) case; the agreement of the parties resulted in a Gender Equity Program implemented by the City for its sports programs. It is stated that . "The long term goal of the Special Program. islo achieve gender equity in sport in the City...In the short-term the intention is to achievè a 50% . reduction in gender inequities withiñ five years and a corresponding increase in the participation of young girls in sport in the City of Coquitlam." It is worth noting that the parties agreed that females wère under-represented in physical activities and that such undep-representation was as a result of gender inequities. There was also a recognition by the parties that there existed fiscal constraints on the resolution of .such gender inequities. . - There is no allegation by the author of the letter to Pickering that there exists gender inequities in the sports and related activities offered to the public by the City. Instead there is simply the . reference to fue B.e. case and the implied suggestion that there could be discrimination and a complaint may made. No effort has been made by the writer to verify that any gender' under- representation exists in Pickering in City supported activities. Rather, it appears fuat fue writer may be alLeging that discrimination is shown on the lack of funding for female gymnastic activities. It should be noted that he references other gymnastic programs offered by surrounding municipalities. Lack of funding for a specifi,c program i~ not discrimination under the Ontario Human Rights Code. . ATTACHMEN'f # ~TO REPORT # -Q~S D2'1 - 0'2 Fj€- 1 cR ~ 115. - : The request for funding by the City is made in a somewhat peremptory manner with the suggestion that if the funding is refused, then consequences could occur. I suggest that this is an.inappropriate manner in which to seek municipal support and to invoke the Hùman Rights Code. As the case review notes on page 6, a "critical element of any such complaint is the need for the Complainant to prove...that female athletes or participants are disproportionately and adversely affectedby the provision of certain services of the [municipality]. Specifically, the Complainant would have to prove that females are under-represented ìnsport, recreation and physical activity experiences within ß1e authority ofthe [muniCipality]; and that such under-representation was largely (though not necessarily solely) attributable to gender inequity in the provision of some accommodarion, service or facility.'.' . It is my opinion that any decision by the City to fund or refuse funding to this private gymnastic club should be made on groUílds of fiscal responsibility and policy in general. The decision should not be influenced by any threats that a charge. of discrimination will result'if the fundingis refused. That being said, the case review attached offers a good overview of the current status of municipal sports and physical açtivity policy in the field of Human Rights as it applies to the issue of gender equity. The comments made in the review should be noted. - '. . . . - - 1,16 Itre far ,Sport and Law Inc. .. ~,' .' . ~.. F7':""~"""'~"""':,~','" , HOME'.'.",.",.',','..""",,.',',"..'. ;A,Hour'us -.ô,'"-"""""""",,,,, " ~'~,cq,ü (~r',( , ,Jt-!'.¥t CuI ~~ [Im~t(S ,AKjJCLES,.',."'.. ..... .,', ~.," C'" i.'c,', E' "", " " ", f.!.' '\ ' ,..c, '.'~ """ AI'¡\' ~:lt'(,r.;.r'I'\,H,.¡'l i [H',fL""" "-, .....",.......,.,-.... ..,c.......,.. ' , ,....." , ....,.........." _.fu~.pEtrf rOGHI 'e:ll't't~Jìfl': '" )] ,t,ll!h. "'"" .. - C'::1ïhl '!:r::'"F:,r, "II' Lr.':'~ Þ.,¡,',.,.. k ')1"' ,(;{IC l3knl'Íj~1 '! ;""':1"":, ,E:L C¡:(h,'rÍnc'3, ¡XI ::"23 ,)Aj C:nar:',! '"' '"I; ;1':" -..-,-.........., ",,', . - ;tream :/11 / AT1ACHf1ENT #2- TO REPORT # J)fÇ.S 02 C) -02 fCl~'e 3 of q 'O/1't/V<' 1.<'1 tlv Human Rights ' ~lender Equity ':Medlated Agreement Between D~vld Morrison, the City .of Coquitlam, and the Deputy Chief Comm~~~¡o,~.~,r British Columbia Human Rights Commission March8,1999,,' , , , ' .' "', . , , " , , Why, This. C~se May Inte~st Yau: ' ' This case inV?lved a se.tt/ement reached by the parties in a human rights complaint. The complaint,alleged gender discrimination in muIJicipal subsIdies to sport and recreation facilities 'and prog,ams. Although the case is not precedent",setting as a coùrl case would be, the case has made it clear that complain(s about municipal subsidies disproportionately favouring male-dominated spans over female-dominated sports will /Ikelybe þearçf by human rights tribunal$.. As ~ resf!lt, this case is signiñcant to municipalities, . school boards and sport organizáUøns throughout Canada. The Complaint' This matter Involves a human rights complaint brought by David Monison against the City ofCoc:¡uitiam alleging th,at the way the City allocated flnanciål resoUrces to sport and recreation facili'ies discriminated against certain groups of perspns on the baals of sex, contrary to Section 8(1) of the British Columbia Human RightsÇode [R.S.B.C. 1996 c. 210]. Section8(1) ofthe Code reads as follows: "8{1) A person must not, without a bona fide and reasonable justification, (8) deny to a person or class of persons any, accommodation, servic~ or facility customarily available to the public, or (b) discriminate against a person or class of persons ány accommodation, service or facUity customarily' available to the public " because of the race, coloúr, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or s~xual orientation of that person or class .òt persons." Specifically, Mr. Mornson's complaint alleged that the aliocatlon of resources, either a$ direct financial subsidy or tax relief, by the City of Coquitlam to sport and PagE 'e for Sport and Law Inc. - - - ,tream://1/ ATTACHMENT# 2., TOREPORT#_o~ES C'2Cf '- 02 'pa5e Ii úÇ? CI 11 '¡ recreation facilities and organizations, disproportionately benefited male-dominated sports overfemale-dominateq sports. ' At the time 'of the complaint, Mr. Morrison was a director of the Omega' Gymnastics Club in the City of Coqultlam and had two daughters who participated in the programs oftheCllib. He also had a son who played minor hòckey. Mr. Moniaon ,brought this "class action" complaint on behalf of all members of the Omega Gymnastics Club and other young female gymnasts in the City of Coquitlam.' . In orderto succeed In a complaint under Section 8 of the Code, the Complainant , . ,(Mr. Morrison) must pro~e, 'on a, balance of probabilities, that: .' , 1. there is discrimination; and 2. the discrimination relates to one of the,prohibited grounds in the Code, in this case, sex; and' " ' 3., the discrimination relates to a service which is customarily offered to the public. ' Mediated Settlement' This complaint neverwenUo a Tribunal Hearing and thus Mr. Mòrrison did not have, to meet the onus of proof described åbove. Instead, the complaint was resolved through a mediated settlement pursuant to Section 29 of the Human Rights Code, which states: "29(1) The commissioner af investigati'an and mediation, a human rights officer ar any persan appo.inted, engaged or retained under sectian 17 may assis! the parties to. a èamplaint, through mediation and o.ther means, to achieve a settlement" ' Thi3 Parties were able to. reach agreement an a series ef principles and initiatives that came to fo.rm the basis of a specific Gender Equity pregram to. be Implemented by the City af Coqultlam as part of its sports and physical activity, services. Terms af any settlement reached thraugh mediation under the Code canno.t be , made public wlthaut the consent af the Parties. In. this case the Parties agreed to. make the terms public and went one step further by having them approved by the Deputy Chief Commissioner as a special program in accordance with Séction 42(3) o.f the 'code, which reads as fallows: : h42(3) The' chief cammis~ionerar deputy chief commissianer may approve any pragram ar activity that has as its o.bjective the amelioration af condltians of disadvantaged individuals or groups;' Approval af the Special Pragram was grant~d until March 31, 2009 (the date agreed upan by the Partie$ as the date by Which the terms af the Gender Equity Program were to. be fully !mplemented) , unless withdrawn eartler by the Deputy , Chief Commissioner.' , The Special Program involved appainting a Gender Eql!ity Committee and Gehder Equity Co-ordinatar for the City af Coquitlam and estabUshing a Gender Equity Fund, all specifically relating to. gender equity issues in sport. Funding criteria far the allecatian ef menies and ether subsidies fl'()m the Gender Equity Fund were' Page 2 of i 118 AT"jACHf'iJENT 2 P Cl3e REPORT ŒS" éJ2. 9 - 02 5 oe 9 -- ~ for Sport and Law Inc. bl 1'+1 UL I;.:. t-' V¡ established. The long-term goal of the Special Program is to achieve gender equity in sport in the City of Ccquitlam. In the short-term the intention isto achieve a 50% reduction in gender inequities within five years and a corresponding increase in the participation of young gins in sport in the City of Coq,uitlam. Issues on Which the Parties Agreed , . In the preamble to their Agreement. the Parties recognized and agreed that females were under-represented in many sport and recreation activities. They acknowledged that a significant reason (although not the sole reason) for such under-representàtion could be attributed to gender inequities at all junctures of the sport continuum including "themanagemeilt of sport facilities and marketing and , the'establlshment and availability of sport programs". " The Parties went on;ro reco'gnize the fiscal cònstraints which exist and which,' , "both compound that difficulty {of gender inequities] and require creative solutions to effect appropriate change".' - The Parties also agreed that the provision of subsidies to municipal sport anq recreation facilities and sport organizations by the City of Coquitlam.is a "seNice...customarily available to the public" withinthe meaning of Section 8(1) of the Brltish Cò/umbia Human Rights Code. Scope of Application of the Settlement The complaintin this matter was resolved by way of a mediated settlement. There was therefore no decision of the. Human Rights Tribunal with regard to whether or not discrimination had in fact taken place. The mediator explicitly c9mmented in the transcript of the formal terms of settlement that he "[does} not believe it can be said (without a hearing and a finding of fact by the Tribunal) that inequities do . exist". Although two of the Parties (David Morrison and the City of Coquitlam) acknowledged certain "past systemic ineq~lties.', this was a voluntary settlement. . between the Parties without an actual finding of discrimination on a prohibited ground. ' To put this settlement, and the legislation under which the complaint was brought,' into perspective, the Code is not intended to be punitive in nature but ameliorative , and remedial. In other words, where possible, solutions and settlement agreements are preferable to the adversarial process, of a Tribunal hearing. Where a solution to a complaint is found without the need for a hearing, it is binding only on those partie:s involved in that specific complaint. ' . -. The scope of application of the mediated settlement and subsequent Special Program approved by the Deputy Chief Commissioner is thus limited to the Parties who were part of the settlement. Specifically, it is binding only on the City of Coquitlam. Should another group or individual bring a similar complaint, it would be necessary for them to meet the onus of proving, on a balance of probabilities, that discrimination on a prohibited ground took place. Or alternativelY, the party against whom such a complaint were made might be prepared to accept the underlying premise of the complaint and enter into a settlement agreement as did the City of Coquitlam. In this specific case, the City of Coquitlam developed a research methodology ¡ream:/ /1/ Page 3 of 7 ATTACHMEN'r #_2.. o~s 02 ~- 02 tv of q 11;9 P0-3e- - : for Sport and Law Inc. which they used to analyze their own situation. Based on that research, the City of Coquitlam was .satisfied that girls were adversely affected by the subsidy policy of the City. The Deputy Chief Commissioner, who was a party to the mediation process and eventual settlement, took the position that the settlement agreement "constitutes an appropriate remedial means for eliminating any systemic barriers to female participation in sportpn the City of Coquitlam], including participation by young female gymnasts". . It is clear that the settlement relates only to the City of Coquitlam in the provision of its sport services, although the broader Implications for the participation of women and girts in sport are acknowledged. It is partly for this reason that the Parties agreed to have the final mediated settlement, and the complete text of the terms of such settlement, made public~ '. Discrimination onPtohibited Ground As noted earlier, it WfJ,s.J1ot necessary in ,this Gase for the Complainant to prove discrimination on a prohibited ground as the Parties agreed to a mediated settlement of the. complaint. - The term "discrimination" is not defined in the British Columbia Human Right~ Code, or in any other human rights statute in the country, but the term has been interpreted through various legal decisions. Andrews V,' Law Society (British Columbla).ill is perhaps the leading case defining discrimination, Mr. Justice Mcintyre of the Supreme Court of Canada wrote in that decision: , It...discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal , characteristics of the ilidividual or group, which has the effect of imposing burdens, obligations or disadvantages, on such individual or grQup not imposed-upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distillctions based on personal ~haracteristics , attribute,d to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities wilt rarely be so classed!" ' Services... Customarily Offered to the Public - As stated previously, the Parties in this case agreed that the provision of , subsidies to municipal sport and recreation facilities and sport organizations by the City of CoquitlarJ) is a "service...customarily available to the public" within the meaning of Section 8(1) of the British Columbia Human Rights Code, Previous case'làw-W makes it' clear that It is not necessary that all members of the public have access to a particular service - it is enough for a segment of the public to have access to bring that service within the "public" domain. Thus, while the City of Coquìtlam may put some limitation on which facilities and organizations would receive a subsidy or who might use City-owned facilities, the service may be deemed, and in this case, was considered by the Parties, to be a service "customarily available to the public". Determining whether the service, facility or accommodation in issue is essentially "public" or "private" is a threshold test for the application of the Human Rights Code. Thus, it may be useful to broaden this discussion to address the "public" or stream:/ /1 / Page 4 of 7 1 n r) . i (. '. #..,£~TO REPORT#~..Q,~S 0 2q - 02- pa.je 7 cf 9 - s for, Sport and Law Inc. Vf'-"V""~"'" "private" nature of services offered by other public bodies, including sport and recreation organizations. It is clear that public recreation facilities and munièipally-operated programs are subject to human rights legislation and are precluded from engaging in discriminatory practices on any prohibited ground. However,' if the service, facility or accommodation-Œ is not public in nature, a human rights complaint may not be accepted. Some of the earlier caseS involving the participation of gins in boys' sport programs failed because the organizations running the programs were seen to be private, based on an analysis of their constitutions and membership provisions, and the "services" they offered were thus not deemed to be customarily available to the publioili as required by the legislation. More recent case law has seen a broàder, more liberal interpretation of what it means to be "customarily available to the public" and, as a result, both provincial and federal human rights authorities ht:ive been asserting jurisdiction over sport organizations, operating at both the national and provincial levels, although not'necessarily those operating at the club lev~I~,!§ì '.., - Berg v.University of British Columbia lID, a decision of the Supreme Court of Canada arising out of a decision under the British Columbia Human Rights Code, sets out the general principles which are used to determine the "public" nature of services. This case said that such a detenÌ1ination is to be made using a broad and liberal analysis of the relationship between the service provider and the service user, not just by looking at tOe number of persons to whom the service may be available and declaring a service to be "public" where the quantity of usage might dictate. . In either words, a simple quantitative approach is not adequate. It is not a requireJTIent that a service must be available to a/I members of the public in order for it to be "customarily available to the public". In fact, there are few services which are available to the entire public that do notrequire qualifying criteria or standards be met. For example, in order to receive employment insuranée (EI) benefits an individual must be without a job. Thus anyone with a job is prech,lded from EI benefits but still, such benefits are considered to be a service "customarily. offered to the public". Similarly, a certain academic standard must be reached to gain admission to university in Canada but a university education is still considered a service "customarily offered to the public". Thus a private organization such as a sport organization may put certain constraints on who may have access to certain services, and those services could still be considered "customarily avaiiable to the public". The question is whether the relationship between the service provider and the service user is a "public" oile. .- In Berg, the various aspects of educational services at a specific faculty of a univ~rsity were found to be a public service. The court described the faculty in question as an extension of the university and the facilities, services and staff of the faculty as part of the "public" face of the university. The court commented that the only distinction between the students and the general population came as a result of the admissions procedure thalwas open to all to test themselves against. In other words, the educational services of the faculty were available to any member of the public who could meet the selection criteria. (The court did comment that the fact the university was publicly funded was not a determinative factor in assessing Its public nature.) Berg can be contrasted with the decision in Gould v. Yukon Order of Pioneers11J. where the Supreme Court of Canada recognized the distinction between the internal private activities of a private club offered to, and participated in, strictly by " " . ;tream:/11 / Page 5 Qf 7 2 "'-,.,'-,." FQ)3 _,Of;S 02-9 ,- 02 8 01 9 1?1 -. 'e fo\ Sport and Law Inc. b/14/U¿ I:':: I t'IVI , , its own members, from those selVices of the same club that were offered to the genera! public. The Yukon Order of Pioneers is a private men's club. The services in question were the collection and recording of historical records and the public access to such records. Based on its analysis of the selVices, the court described the collection and recording of historical facts as private activities of the club but the access to those records by the community as a whole as a service Ilcustomarilyavailable to the public". The first two services thus do not attract the jurisdiction of human rights legislation while the third does, notwithstanding the private nature of the club. - As a general statement, virtually any service or facility offered by a municipal, regional, provincial orfech~ral government would be Considered a service or facility offered to the public. Thus, any municipality offering a subsidy or tax concession to certain facilities or certain group$ '(such as the City of Coquitlam) would be said to be offering, "a service custoiJtarily available to the public", however that "public" , " might be defined. However, it i~ equally clear that the activities (services) of even a private club (such as, the Yukon Order 'of Pioneers or a sport club) can attract the attention of human' rights legislation where such services are of a "public" nature' , due to the relationship between that club and the users of its programs and services. ' " A finer analysis such as the relational one set out in the Berg and Gould decisions would need to be carried out todeterrnine whether the services or facilities of a ' private organization, such as a sport or recreation club, are considered "public" or "private" in nature. The Gould decision identified a number of factors one could loekto in making this determination, including selectivity in the provision of the servièe, diverSity of those to whom the service is offered, whether the service is commercial as opposed to social or benevolent, and the objectives or -purpose of offering the service. Such an analysis might conclude certain services of a particular organization or institution are of a "public" nature and subject to human rights legislation, and certain other serVices of the same organization or institution are "private" and thus not subject to the scrutiny of human rights legislation. Implications for Mul1icipalities Clearly I the settlement reached by the City of Coquitlam is not binding on any ,other municipality in. British Columbia, or elsewhere. However, the settlement does 'demonstrate that a complaint of the sort brought by Mr. Morrison will be ' , considered by the British Columbia Human Rights Commission, and quite likely will be considered by Commissions in other jurisdictions across Canada. - A critical elemept of any such complaint is the need for the Complainant to prove, on a balance of probabilities. thaUemale athletes or participants are ' ,disproportionately and adversely affected by the provision of certain services of the Respondènt. SpecifiCally, the Complainant would have to prove that females are under-represented in sport, recreation and physical activity experiences within the authority of the Respondent municipality; and that such under-representation was largely {though not necessarily solely) attributable to gender inequity in the provision of some accommodation, service or facility. Being able to prove this depends largely on the validity and reliability of the way. or , ways, in which up-to-date data is collected regarding participation rates and demographics across all sport activities in the municipality, as well as patterns in municipal subsidy and resource allocation. Note: This summary was prepared by the Centre for Sport and Law for a coJlective õtream:/ /1/ ,Page 6 of 7 1?2 # 2 #~~s Olq '-02. F~t Cj of ~ - ¡ for Sport and law Inc. . , , group of organizations and individuals including the Canadian Association for the Advancement of Women ånd Spod and Physical Activity; Promotions Plus, the' British Columbia Organization for Girls and Women in Physical Activity and Sport; the British Columbia Parks and Recreation Association; the Canadian' PårkslRecreation Association, and several other interested individuals. The viëws expressed in this summary are the views of the Centre for Sport and Law and not nece~sarily the views of the collective group. This summary is used with permission. ' 1. {1989) 1 S.C.R. 143, 34 B.C.loR. (2d) 273, 25 C.C.E.lo 255, 10 C.H.R.R. DI5719, 36 C.R.R. 193, 56 D.L.R.. (4th) 1,91 N.R. 255. 2. See for example: Ro!i;Ín y. Canada (Canadian Forces) (1990), {1991] 1 F.C. 391, 34 C.C.E.L.179, 16 C.H.R.R. D/441 , (sub nom. Canada (Attorney General) v. Rosin} 91 C.L.loC. 17:,011, 131 N.R.295 (C.A.) - a parachtrtlng course offered by the Canadian Armed Forces is a public selVice even though It Is available only to qualified cadets. Chaing v. Natural Sciences & Engineering Research Council of Canada ' ., - 3. The terms "selVices". "facilitles~ and "accommodation" have been used Interchangeably by the Canadian court& and broadly interpreted. 4. Rs Cummings and Ontario Minor Hockey Assooiation (1979). 26 O.R. (2d) 7,104 D.loR. {3d} 434 (C.A.);.affg. (1978). 21 O.R. (2d) 389,90 D.L.R. (3d) 568 (Dlv. Ct};revg. (1977), 29 R.F.L. 259 (Bd. Of Inq.); Ontario Human Rights Commission v. Ontario Rural Softbafl Association (1979), 26 O.R. (2d) 134, 102 D.L.R. (3d) 303 {C.A.}; affg. (sub nom. Re Ontario Rural Softball Association y. Bannerman) 1978). 21 O.R. (2d},395, 90 D.loR. (3d) 514 (Div. Ct.); revg., unreported, May 19.1977 (Bd. Qflnq.), . Lederman.. , , 5. Supra, note 1. See also Solin v. B~C. Amateur Hockey Association (1988),9 C.H.R.R. D/5266 (B.C. Human Rights <founcll), 6. [1993] 2 S.C.R 353,13 Admin. loR. (2d) 141, 79 B.C.L.R.(2d) 273,18 C.H.R.R. D/31 0, 26 a.CAC. 241,44 WAC. 241.102 D.L.R. (4th) 665,152 N.R. 99 7. Gouldv. Yukon Order of Pioneers (1989), 10 C.H.R.R.. DI5812 (V.T. Bd. of Adjudication), rev'd (1991). 14 C.H.R.R. D/17G, 87 D.loR. (4th) 618 (V.T.S.C.), aff'd (1993),79 B.C.L.R. (2d)'14,¡ 100 D.L.R. (4th) 596. 18 B.C.L.R. (3d) 1. 133 D.loR. (4th) 449, [1996) f S.C.R. 571,25 C.H.R.R. D/87, 194 N.R. 81, 72 B.C.A.C.1, 119 WAC. 1 (S.C.C.) , .. I!ú!w. .. I!l..Dm - ! ~ I About lJs I ServiŒ¿~ I BoQkstor~ I T oDics I Articles I OopiQQ I Cases I Haras~mentl Student LoQin I Site Mat! I . @ Centre fOr Snort and Law Inc. 2001 .' stream:!!l! 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