Episode 19 - Demystifying the Litigation Process

Episode 19 September 26, 2023 00:27:19
Episode 19 - Demystifying the Litigation Process
Sportopia
Episode 19 - Demystifying the Litigation Process

Sep 26 2023 | 00:27:19

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Hosted By

Steve Indig Dina Bell-Laroche

Show Notes

Welcome to Sportopia, the place to re-imagine the future of sport! This week’s episode welcomes a conversation to demystify litigation processes in sport. Hosted by Dina Bell-Laroche and Steve Indig, partners of Sport Law, this episode welcomes Sport Law Team Member, Michelle Kropp, LL. B., to talk about how litigation can happen within our sport system. Michelle has been a member of the Sport Law team since 2020 and advises a diverse client base, including various not-for-profit and sports organizations, during dispute proceedings as well as providing guidance on general governance issues. Throughout the episode, our hosts ask Michelle to share her experiences as a litigator, how being trauma informed can support these processes, and some of the common themes she sees in her work.

Check out more blogs from Sport Law to learn more:

Learn more about Michelle Kropp.

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Hosts: Dina Bell-Laroche and Steve Indig
Guest: Michelle Kropp
Producer: Taylor Matthews 

Learn more about how Sport Law works in collaboration with sport leaders to elevate sport at sportlaw.ca

The Sportopia Podcast is recorded on the traditional, ancestral and unceded territories of the Indigenous Peoples of Canada. We wish to thank these First Peoples who continue to live on these lands and care for them, and whose relationship with these lands existed from time immemorial. We are grateful to have the opportunity to live, work, and play on these lands. 

Sport Law is committed to recognizing, supporting, and advocating for reconciliation in Canada and to actively work against colonialism by amplifying Indigenous voices and increasing our own understanding of local Indigenous people and their cultures.

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Episode Transcript

[00:00:01] Speaker A: Hi, it's Steve indigot sport Law. Leave me a message. I'll get back to you as soon as I can. [00:00:07] Speaker B: Hey, Steve, it's Dina. You aren't going to believe what just came across my desk. We need to chat. Give me a call. [00:00:26] Speaker C: Welcome to the latest episode of Sportopia. Episode content. Warning today's podcast deals with potentially sensitive content that some people might find difficult. If that is true for you, remember that you can reach out to a trusted advisor or a certified mental health care professional. We believe today's episode is a crucial conversation in building more healthy human sport. Today, we'll be exploring the process of litigation in sport. [00:00:55] Speaker A: To do so, we're going to spend some time with Michelle Crop, a sport law team member who spends most of her time in litigation. On behalf of our clients, we are so grateful to welcome Michelle to today's conversation, and we'll let her introduce herself in a few minutes. But before we jump in today, the infamous question, dina, what is coming across your desk this week? [00:01:17] Speaker C: Well, it kind of feels like what hasn't come across my desk this week? Something really hopeful, actually, is I was supporting a client in a communications plan, and it's really remarkable, Steve. 45 minutes into a conversation, he said to me, first of all, this feels like therapy. [00:01:36] Speaker A: Did you make him cry? [00:01:38] Speaker C: I didn't make him cry, but he was just able to have someone listen to him describe the situation. A lot of what has to do with conflict, people behaving badly, parents behaving badly. And so I asked him, well, what have you done? Tell me more about your communication practices. And what I loved where the conversation took us, is he acknowledged that they, as an organization, had let their communication practice slip. And we know, and we're going to be talking a lot about that with Michelle. 100% of the conflict, the stuff that gets in the way is usually a result of poor communication. So at the end of our time together, we created a communication plan. We mapped out who needs to know what, by when, how and why. And at the end of our conversation, he said this was a very helpful and cathartic conversation and experience. What about you, Steve? What's coming across your desk? [00:02:36] Speaker A: It's something I never thought I'd be ever talking about, particularly in a sporting context, but that is intellectual property. Just this week, I've had two files come in across my desk. One dealing with the use of pictures and a parent taking photos during an event and posting them online, branding them with his corporate logo, which, of course, crosses a bit of a boundary with respect to the use of image rights and commercial properties and privacy legislation. And the secondary component of it was two national sport federations arguing over the use of a trade name. The way we describe championships, the way we describe leagues, the way we describe our sport. And that's a negotiation that's been ongoing for the last two weeks, and we'll continue to decide the use of the name and who would own the name and who has a license to use the name. So, again, very interesting to see the things that come across our desks and 20 years later, I still say, really, are we really having these conversations? And this is what happens in sport and amateur sport, but of course, the answer is yes. So, Michelle, we're so excited to have you here today. Why don't you tell our listeners a little bit about yourself and funny enough, how you ended up working with sport law. [00:03:57] Speaker B: Thank you, Steve and Dina, thanks for having me here today. So, let's see, I'll start first with a bit of a background. Let's see, I was called to the bar a really long time ago, close to 20 years, and I've been a litigator pretty much ever since. I started out wanting to do intellectual property law and environmental law because I have a science degree. So when I went into law, that was my thought, that I would focus on something science based. And then when I articleed at a big firm in Toronto, and it was a full service firm, and I did a litigation rotation, and I fell in love with litigation. And my mentor said to me one day, a bad day in court is still better than a good day at the office. And that always stuck with me. And I feel that's true. I feel that for all the reasons I love litigation are the same reasons that sort of grind on me after a while. It's always something different, something new. Every day brings something I've never seen before. Somehow after this long, that still happens, but it can be wearing because it is an adversarial process. So there is a lot of acrimony, a lot of fighting, and so that's something I struggle with sometimes. But in any case, so I have always been a litigator in different capacities, which is to say I've done I practiced early in my career, corporate commercial litigation, and then criminal defense, family law, estates, real estate. I've done it all over the course of these years. Most recently when I moved back from the States, I sort of developed an appellate practice. So I spent a lot of time at the Ontario Court of Appeal, divisional court, which was interesting because appeal work takes the witnesses out of it. So you're getting something sometimes when it's at the court of last resort for most people, which is it's been through the trial court, maybe some intermediate court, and then at the Court of Appeal, where you're seeing what could have been done differently along the way. I spent many years doing that. And then I have a bit of a sport background. I'm a soccer player. I have a couple of black belts in karate. So through my work with both of those. I ended up in court on a couple of matters, and then I was in a mediation where I met Steve. [00:06:30] Speaker A: Who won, michelle, who won the mediation? [00:06:33] Speaker C: Well, Steve, do you ever win? [00:06:34] Speaker B: A good answer. I would say I did. [00:06:38] Speaker A: But wait a second. I would say that I did. [00:06:43] Speaker B: Interesting. Well, that's the thing about mediation. Everybody wins. I feel like I'm going to have. [00:06:48] Speaker C: To step in here and have a coaching conversation with the two of you. And I love it. Michelle, it's like, no wonder you win. You have a couple of black belts, right? So tell know, just to situate it for people. So you got to know, Steve, you have this passion for litigation. You're exceptionally good at it, and a big part of that is because you care so much. So what had you leaving maybe your other successful practice and saying yes to sport full time? [00:07:16] Speaker B: So, interesting question, Dina. So I had felt that I was at a bit of a crossroads where my practice before sport law was changing was kind of wrapping up. I actually had a business associate who we had decided that our practice together had kind of gone as far as it was going to go, and we both wanted to do different things. So I was actually exploring different aspects of law, such as corporate. And then I realized that after this long, litigation was probably what I would end up doing again. So when I ran into Steve again, he mentioned that sport law was looking for somebody to do this kind of work. So for me, it was, I guess, the marriage of two of my greatest passions, which were litigation and sport. And so it just seemed like a natural progression. I have to say, I never imagined I would be doing this much litigation. I honestly didn't really get that there was that much litigation know, court tribunal stuff in. But it's for me, that's all it is. So I did start know sort of helping Steve with the contract work, which I still enjoy doing. Because I think if I can see a contract from the beginning and see all the potential pitfalls that I've seen in court, which is this clause isn't very clearly worded or this might give rise to some ambiguity down the road that people will fight over. I like to see that from the beginning and then put my $0.02 in as to what I think could be better. Or given my extensive litigation experience, what could people possibly be sued for? [00:08:51] Speaker C: So, Michelle, walk us through the litigation process, because as you've shared, it can be really scary for people who don't know anything about the process. And when we don't know about the process, we can sometimes make things up in our head. And even if we know a little bit about the process, the process itself can feel a little bit like Pandora's box and maybe be a bit scary. So I don't know. I see you as a companion to help people understand the process, do so fairly, and then shed some light in some of those dark places, so it's not so difficult for them. So maybe walk us through so our listeners can better understand the work that you do. [00:09:31] Speaker B: Thank you, Dina. Those are good questions. So I think by way of broad overview, there can be so many different types of processes. So I've represented clients. As I mentioned at the Ontario Court of Appeal. Within this practice, I've represented clients at the Ontario Human Rights Tribunal, the Fdrcc, which, as most people would know, the Sport dispute Resolution Center of Canada. More commonly, we have what I would characterize as like a contractual arbitration hearing, which is a sport organization, has discipline and complaints policies, appeal policies. So whatever process that follows will happen under those policies, and they will set out what needs to happen. So a typical beginning of a file for me would be somebody comes to me and says, I've received a notice from the Human Rights Tribunal or the SDRCC that someone has filed a complaint or an appeal against me, and what do I do? If it's a national sport organization, they'll say, in ten years, I've never had a selection appeal, and now somebody is saying that they should have been picked over somebody else. Before I move on, I want to recognize that no matter who you are, if you're a complainant, a respondent, an appellant, there is some element of, I wouldn't even say trauma at this point in time for everybody. But I think it's important to recognize that when people are either thinking of filing a complaint or receive a complaint against them, there is some element of shock, of surprise, and it can be really jarring for people. So when they see on paper what somebody's accusing them of doing, that can be really hard. And even before I joined sport law in my litigation practice, I found that for most people, being sued or being taken to court in some capacity is one of the most stressful experiences they will ever have. So it's important for me at least to try and meet them where they are. So if they're coming to me, oh my gosh, I got a complaint, I'll just say, okay, walk me through this. Did you know it was coming? Did you see this coming? What were there signs there before? Or was it just a complete shock and all of a sudden this has just dropped on you? So we'll usually have some kind of initial conversation about that, and then I will, depending the venue, try to figure out the process. So if I've been through it many times, that makes it a little easier for me. Sometimes it's a policy I'm not familiar with, so I'll have to get up to speed before I speak to that person. But that's generally how it starts. And then on the flip side, I will have people coming to me saying, we just got this report of this terrible thing that happened and so then we have to evaluate, okay, well, it's a report. Is it an actual complaint? What does your policy say? Do we do an investigation? Do we find an investigator? So there's just a myriad of ways that it can go, depending on what the person is representing at that point. [00:12:35] Speaker C: In know, I know Steve's going to ask a follow up question. What I just want to acknowledge is just the way in which you answered that question. I almost would describe you as probably a warm weighted blanket because to your point, people are well, first of all, afraid. And fear is a generalized experience right now that is contagious in the sports system that all of us work in. So to know that I can pick up the phone, talk to someone who understands the rules of the pool, help guide my experience, but also kind of listen to me. Help me make sense of this. Give me some language that in and of itself, just allows people to kind of settle in and not be so afraid, so that their decision making can be informed less by their sympathetic system going on. Fight, flight, freeze, faint, and much more. It feels like you're resourcing people, Michelle, just in the way that you help know, make sense of a really difficult situation. So thanks know, opening up the conversation in the way that you did. [00:13:40] Speaker A: I'm curious, Michelle, in what I would call the prep work, dealing with people who may have been exposed to or may be a victim. So what kind of preparation would you do to prepare an individual to be a participant in a litigation process, in an arbitration process, there's obviously them coming in to tell their story and the possibility of being cross examined by respondents. Counsel? [00:14:07] Speaker B: Yeah, great question. Sometimes we see hearings in writing, which can be good and bad. It's good because it's usually more efficient and you'll get a decision quicker. But sometimes people really need to tell their stories. And that goes for both sides, whether it's the complainant and or respondent. So in terms of preparation, what I see a lot of in this space is that parties will give what's called their evidence in chief in writing. So it's like an affidavit, if anyone's familiar with that concept. So you basically write out all your evidence and then the other party cross examines you on that. I've seen it both ways, where we have the written evidence and then the oral verbal evidence in chief and then cross examination on that. But I do think it's all about the preparation because I think in the space it's about preparation and managing expectations and having realistic expectations. Like I have had to say to some witnesses, you're probably going to be cross examined for at least 2 hours. Now before you get upset, let's break that down as to how that looks like. It's more of a conversation I'll give them either verbally or in writing. I'll say this is what's going to happen. You're going to click the link. You're going to be called into the hearing. The arbitrator or me will swear you in. So you're swearing to tell the truth. I will ask this about your statement, you will swear that it's true and then the other side will cross examine you. Here are some questions that I think you're going to get. So typically I give them a chance to work through it in writing on their own because it can be a different thought process. And then once they've worked through those and maybe written out some answers, then we'll meet virtually typically and I'll go through the questions with them just to get them used to the rhythm. I think it's important to note too, in the virtual space it's different than in a courtroom where before it was more stressful for witnesses because they had to be up in a witness box in front of everybody facing the whole courtroom and then being asked questions by opposing counsel. But in this space it's a little easier for them, I think, because they can be in the virtual room in the comfort of their own home and there's a lot to be said for that. So again, it's about preparation because I think as long as people know what's coming, they will always be better prepared to handle that. [00:16:30] Speaker C: I so appreciate that. And I'm just wondering Michelle, have you noticed a bit of a trend because becoming more trauma informed is now almost becoming an expectation across different sectors. So for instance, I work in the healthcare profession as well, when I practice my death and dying work, right when I accompany people as a death doula. And I'm noticing that a lot more doctors are becoming trauma informed. And you would think, well, isn't that an obvious one? Not so much. Right. So I'm curious, are you noticing judges and or other lawyers are becoming more are they regulating their questions so that it maybe isn't so traumatic for people? I'm super curious about that. [00:17:17] Speaker B: I would say generally, yes, I do still see some opposing counsel, defense counsel, who ask the same kinds of questions they would ask in criminal court that I would see 20 years ago. So I think for some people they haven't really kept up with the general trend and the tone. But that being said, I am seeing a lot more arbitrators who will give witnesses options, such as the ability to be off camera while they're testifying, which is it's a hard balance because you want to give the respondent the procedural fairness of knowing the case. They have to meet, questioning the witnesses. But then you're at the same time balancing the interest of the witness. Who is the traumatized person? And so these accommodations are really important. So I am seeing more of those, definitely. But then again, I come across the OD. Arbitrator defense counsel who clearly is not trauma informed and who really doesn't understand or hasn't really turned their mind to the concept. That's always a bit of a shock. [00:18:22] Speaker A: Michelle, you and I have talked about this personally. I'm curious to know when you deal with such difficult conversations and maybe there's personal trauma and hearing sadness over and over and of course the negative aspects of know. I think we're all here because of the positives that we see in sport and unfortunately deal with a lot of the negatives. I'm wondering how you manage that personally. [00:18:46] Speaker B: Well, I try to take time for myself at the beginning of every single day. So I will go. I'll do usually a five kilometer dog walk, which first thing in the morning, six or seven, because I know if I don't get that reset, I find it really hard to start my day and be present for people the way that I need to be. And I will also take a break at lunch. So every day, whether that's 11:00 or two in the afternoon, I'll take again to take the dog around the block. And then this might sound terrible and callous. Sometimes I just have to laugh. It might not be an appropriate reaction, but that's how I physically and emotionally process things. At the same time, I think that's also part of being trauma informed is that when you see those what people might say are strange reactions from a witness or from somebody while they're testifying, it's important to realize that not everybody reacts to trauma the same way. And that's part of just recognizing how people process emotions and trauma. [00:19:46] Speaker C: Yeah, I love the noticing and I would say it's really helpful and I'm sure it'll be helpful for our listeners to understand that being trauma informed, trauma sensitive starts with ourself. So how do I ensure that I have it's called ethical practice, right? That I put that oxygen mask move on myself first so that I can continue to do the work that I move my body. I spend time with my dog, my family, I take breaks throughout the day. It's so important, Michelle, because too often as coaches, for instance, when we work with leaders, they're not even doing some of the basic physical needs to take care of their own. Really important. It's important that you're modeling that actually. Right. As a practitioner and lawyer, it's impossible almost that you can continue to do that work. And the risk is real, right? Compassion fatigue and workplace burnout are real and true. And in the sector that we are here supporting, the amount of trauma that we're witnessing is unprecedented. I would say as someone who's worked in the sector for plus 30 years, so it's really important work that you're doing and more importantly, that you're taking care of yourself as you continue to do this work? I'm curious, how do you assess the level of trauma? So as you're working through these different cases, how do you prepare and assess in advance so that you actually go into these cases, maybe aware of what you can expect? And, for instance, is there certain, like, an intake process or questions that you ask of the clients in advance to help situate it for both yourself and them? [00:21:30] Speaker B: Well, that's a good question, Dina, and I want to clarify that I'm not a certified trauma counselor or anything like that. I do have some training. I've done some several workshops and seminars through the Law Society of Ontario with sport law as well, so I can recognize trauma, but I'm certainly not qualified to assess specifics. So that being said, I do appreciate that with pretty much all processes that I see, I just assume there is some level of trauma. So I try to just ask some open ended questions. And I think that if I've seen the complaint, a report or specifics of what is being alleged, I think it's fair to say if there's some sexual misconduct being alleged, that there's going to be some level of trauma. So I try to start with just some really open ended questions like, what led you to file this complaint? I'm really sorry that you're going through this. Sorry to hear this. If there's anything I can do, please let me know, because sometimes I'm there on behalf of the organization, but the organization isn't a complainant, so we might get a complainant who's come in, who's filed the complaint, and then the organization will say, we think this person just needs some help navigating the process. So that's where I will come in and just try to find out what they're hoping to get out of this process. Because sometimes they don't know. Sometimes they say, I've been through this horrible experience, I don't want this to happen to somebody else. I feel like safe sport now requires me, or at least gives me some obligation or responsibility to notify others that this is happening. And so I try to figure out where they're at and what I can do to help and what they're hoping to get out of the process. Ultimately. [00:23:18] Speaker C: Any other tips that and seems almost strange to call them tips, but any other either stories or advice or tips that you would like to leave our listeners to support a successful litigation process? [00:23:33] Speaker B: Oh, gosh, I think that the main one would be be patient. It can be a long process. And that's what's really resonating with me, because I feel that I've been through hearings on a couple of matters lately where the complaint process in one took four and a half years to get to a hearing because there were initial reports, there was an internal investigation, there was a police investigation that put the internal investigation on hold. That was done and then the panel was convened. It was a panel of three, so getting three people together took a long time. That being said, once the hearing was done, we had, I think, five or six days of evidence, a couple of days of submissions. We got a decision which was very favorable to us. And then at the last minute, the respondent decided to appeal that decision. So, as we're at the end of four and a half years, we think, oh, my gosh, we're here, we've crossed the finish line, then there's an appeal. And so now it's going to be several more months. So I would say that when you file a complaint, find out what kind of timeline you're looking at, because I feel that a lot of trauma is caused by an expectation that this will be a quick process, and sometimes it is. But I think as a complainant and respondent, you need to be prepared that to make sure that everybody is treated fairly, there's going to be some delay or what you're going to perceive as a delay in getting this across the finish line, so to speak. [00:25:09] Speaker C: Michelle, we've talked to several of our clients who've had the privilege of having you support them through these complex, murky waters. And I'd say the overwhelming, prevailing message is they most appreciate your compassion, your listening and your tenacity, right? So they trust that you're in it with them. And so thank you so much from all of us, right, for you being willing to support people where I was going to say where very few dare travel because it's not easy work. And so thank you very much for doing this important work and also modeling a very compassionate way of being. [00:25:50] Speaker A: I was going to say the same thing, Dina. I was going to remind Michelle to keep taking her walks because we need her and she provides such an important service to the sport community so publicly. We wanted to say thank you, Michelle, for doing what you do and supporting sport the way you do. In the episode Notes below, we've linked a few blogs that relate to our conversation today and the litigation process in Sport. We thank our listeners so much. [00:26:17] Speaker C: We're really grateful to share our vision of Sportopia with you as we all work together to elevate Sport, as always, to have your say in Sportopia, email us at hello at sportlaw CA or on social media at sportlaw CA to let us know what you want to hear about next. So stay tuned for the next episode. Thanks, everyone.

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