IN THE MATTER OF COMPLAINTS MADE PURSUANT TO THE DISPUTE POLICY OF SWIM
ONTARIOREGARDINGTHECONDUCTOFTHEDOLPHINSSWIMCLUBOFOAKVILLEINC.
SWIMONTARIO,Applicant
And
DOLPHINSSWIMCLUBOFOAKVILLEINC.,Respondent
DECISION
(a)Background
(1) The Applicant, Swim Ontario, is a non‐profit sports governing body responsible for
the organization and regulation of amateur swimming in Ontario. The Respondent,
Dolphins Swim Club of Oakville Inc., (the Dolphins) is a club member of Swim Ontario.
Although he is not a party these proceedings, the relationship of Cecil Russell to the
Respondentiscentraltothem.
(2)Mr.Russelloperateshisownbusinessasahighperformancetrainer,primarilyinthe
sport of swimming. He has had extensive experience and achievement as a coach,
includingthecoachingofhistwooldestchildren,SineadandColin,whohavebeenhighly
successful as competitive swimmers both nationally and internationally. His wife, Erin
Russellalsohashadahighlysuccessfulcareerasacompetitiveswimmerandiscurrently
the head coach of the Dolphins. Their three younger children “are at a high level of
swimmingintheiragegroup”accordingtoMr.Russell.Alloftheirchildrenswimorhave
swumcompetitivelyfortheDolphins.
(3) In 1996, Mr. Russell was suspended for life from participation in amateur sports as
theresultofacriminalconvictionrelatedtotraffickinginsteroids.Hewasreinstatedby
anarbitratorin2005butthematterwasreferredbacktothearbitratorbyajudgewho
determined that Mr. Russell had fraudulently failed to disclose to the arbitrator a
subsequent drug conviction in 2003. Following the re‐hearing of the reinstatement
application,hislifetimebanwasrestoredin2007.
(4) Finally, on October 24, 2012, Arbitrator Richard McLaren rendered a decision in a
furtherreinstatementapplication.ThelifetimebanagainstMr.Russellwasreducedtoa
ban for three more years beginning on September 10, 2012, and subject to certain
2
conditions. That decision, which contains documentation of the other proceedings
referred to above, is available on the website of the SportDispute ResolutionCentreof
Canada. In my view, the McLaren reinstatement does not affect the proceedings before
me since it provides for a potential future reinstatement. Mr. Russell has been under
suspensioncontinuouslyduringalltimesrelevanttotheseproceedings.
(5) Mr. Russell testified that during his period of reinstatement from 2005 to 2007 he
actedastheheadcoachoftheDolphins.ErinRusselltookover as head coachwhen his
ineligibility was restored and hascontinuedin that capacity to thetime of this hearing.
Shetestifiedthatsheceasedtobean“employee”oftheDolphinsduringthefive‐month
periodoftheclub’ssuspensionin2012referredtobelow.PanagiotaKlentrou,amember
of the Dolphins Board, testified that the club had virtually ceased operations, and was
“barelykeepinggoing”duringthissuspension.Shesaidthattherewereno“employees”
althoughsomepeoplecontinuedtoassistasvolunteers.
(6) The Dolphins club has been sanctioned on at least two previous occasions by Swim
Ontario.AnundatedSettlementAgreementbetweentheDolphinsandSwimOntariowas
filed with me prior to the hearing involving a complaint “concerning the Club’s
interactions with an individual that was subject to lifetime ineligibility for a ‘doping‐
related infraction’ . . .” The individual in question is not named. This Agreement also
states that Swim Ontario and the Dolphins had entered into a previous “probationary
arrangement” involving “a person under such a ban”. The person in question was not
identified in that earlier agreement either. Counsel advised me that the previous
arrangementwasmadein2009andwasforaprobationaryperiodof12months.
(7) The Settlement Agreement that was filed imposed on the Dolphins: a probationary
periodfromSeptember1toDecember31in2011;asuspensionfromJanuary1toMay31
in 2012, and; a further probationary period from June 1 to August 31 in 2012. The
Dolphinsalsowererequiredtopayafineof$2,500toSwimOntario.Inthefourthbullet
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ofthisAgreement,itelaboratesontheinteractionsthatwereforbiddenbetweentheclub
andanyineligiblepersonas“including,butnotlimitedto,anyadministrative,managerial,
volunteer, mentoring or other activity with the Club or any member of the Club while
engagedinClubactivity”.Thedocumentcontainsagrammaticalerrorinthisfourthbullet
butthisisitsonlyreasonableinterpretation.TheAgreementconcludesthatifany“major
infraction” under Swim Ontario disciplinary procedures or any “material breach” of the
Agreement should occur during these periods, the Dolphins’ “membership with Swim
Ontarioshallbeterminated”.
(8) As stated above, the proceedings before me are not affected by the potential future
reinstatement of Cecil Russell. The Settlement Agreement begins by stating that it is
addressing the Dolphins interactions with a person under “lifetime ineligibility”. That
certainly was Mr. Russell’s status prior to the McLaren decision and during the five‐
month period of the Dolphins suspension. However, the fact that Mr. Russell’s “lifetime
ineligibility” has been altered would not be an answer to the alleged breach of the
Agreementinanyevent.Thefourthbulletmakesitclearthattheoperativeword isnot
“lifetime”but“ineligibility”.AmajorinfractionalsocouldbefoundagainsttheDolphins
undertheSwimOntarioDisputePolicyquiteapartfromtheAgreement.
(b)TheseProceedings
(9)OnFebruary20,2013,IwasappointedbytheExecutiveDirectorofSwimOntarioasa
HearingPanelwithrespecttothreecomplaintsthataroseinrelationtothreesanctioned
swimmeetsthatcanbedescribedas:(1)Clarington(May5,2012);(2)CAMO(Dec.14‐
16,2012);and(3)Mississauga(Nov.2‐4).Thesecomplaintsallegematerialbreachesof
theSettlementAgreementandmajorinfractionsundertheSwimOntarioDisputePolicy
arising from the interaction of the Dolphins with a person subject to ineligibility in
relationtothesemeets.
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(10) An initial pre‐hearing telephone conference with counsel was conducted on
February 25, which was followed by a series of further calls, email messages and the
distributionofdocuments.Thepartiessoughttorelyondocumentaryevidenceasmuch
aspossibleinordertoavoidthecostanddelayofcallingcomprehensiveoraltestimony.
Whereobjectionswereraised,argumentwasheardandrulingsweremade,bothpriorto
and during the hearing of the oral testimony and the submissions. In particular, it was
agreedthattheMcLarendecision,referredtoabove,couldberelieduponinrelationto
bothitsfindingsandthefactsuponwhichthosefindingswerebased.Itwasreferredtoon
anumberofoccasionsbybothcounselduringtheseproceedings.
(11) This expeditious co‐operation by the parties permitted the hearing into the
complaints to commence on March 7 in Ottawa. However, at the outset, Mr. Ward
indicated that a short time prior to commencing the hearing, he had received a new
document from Swim Ontario, dated December 13, 2012, purporting to be a contract
between the Comfort Inn Laval and the Dolphins. It apparently was signed by Cecil
Russell. Counsel then engaged in private discussions and obtained further instructions
from their respective clients. Based on his discussions with Mr. Russell and his
instructions from the Dolphins, Mr. Boyd contended that the signature in question was
notthatofMr.Russellandsaidthatahandwritingexpertwouldberetained.Mr.Ward,in
turn,indicatedthat,basedonhisinstructionsfromSwimOntario,thislettershouldform
thebasisofafourthcomplaintagainsttheDolphins.
(12)Inthesecircumstances,thepartiesagreedthatthehearingwouldbeadjourneduntil
March26and27.ItwasalsoagreedthatthedatesofApril25and26wouldbereserved
intheeventthatanyfurthertimeshouldberequiredtocompletethehearings.OnMarch
21,counselfortheDolphinsadvisedthePanelthatitwouldnotbepossibletohavethe
forensicanalysisofthesignaturecompletedpriortoMarch26.Thepartiesthenagreed
that the substantive hearing would proceed on April 26 and 27. However they also
requestedthatthePanelconveneonMarch27toaddresspreliminaryissuesarisingout
5
of the proposed fourth complaint as well as any other matters that could expedite the
hearinginApril.
(13)AtthehearingonMarch27,attherequestofcounselforSwimOntarioandwiththe
consent of counsel for the Dolphins, the Mississauga complaint was ruled to be
withdrawn.CounselfortheDolphinsarguedthattheproposedfourthcomplaintrelated
totheDecember13documentshouldnotbeallowedtoproceedandthattheClarington
Meetcomplaintshouldbedismissed.ThesesubmissionswerebothrejectedbythePanel.
Argument also was heard and orders were made in relation to the admissibility of
evidenceandtheproductionofdocuments.ThePanelprovidedwrittenreasonsforallof
thesedecisionstothepartiesonthenextday,March28.
(14) On April 24, counsel advised me that a number of logistical issues had arisen in
relationtothecallingofwitnessesthatwouldpreventthecompletionofthehearingover
thenexttwodays.Theyrecommendedthatthehearingbepostponeduntilthefollowing
weeksothatallofthewitnessescouldbeheardonacontinuousbasis.Ultimately,itwas
agreedthatthehearingwouldproceedat9:00amonMay3.Theevidencewascompleted
onthatdayandoralsubmissionswerereceivedonMay9.
(c)TheMcLarenDecision
(15)CecilRussellisnotapartytotheseproceedings.However,thecomplaintsbeforeme
allariseoutoftheDolphinsallegedinteractionwithhim.Inparagraph45ofhisdecision,
ArbitratorMcLarenmadethefollowingfindingsoffactinrelationtoCecilRussell:
 In 2008, he incorporated a numbered company, 1759717 Ontario Ltd., through
which he conducts business as a high performance trainer, as sole director and
shareholder.
 TheCompany’sregisteredbusinessnameisDolphinSwimClubofOntario.
 It is a separate legal entity from the Respondent, Dolphins Swim Club of Oakland
Inc.
6
 ErinRussellhasworkedforCecilRussell’scompanyasacoach/trainerattimes.
 The similarity of these corporate names gives rise to confusion in the minds of
peoplewhointeractwithCecilorErinRussell.
 ManyofCecilRussell’sclientsareorweremembersoftheDolphins[Respondent].
 ItisdifficulttodetermineunderwhichcompanymembersoftheRespondentswere
participatingintrainingand/orcompetitionactivities.
 Someparentsdidnotnecessarilymakeadistinctionbetweenthetwo.
 Cecil and Erin Russell shared an email address [email protected] which
bothofthemusedbutrecipientscouldnotdeterminefromtheemailswhowasthe
sender.
 TheyalsosharedacellphonenumberthatappearsontheRespondent’swebsite.
 During the Respondent’s practices Cecil Russell’s personal training sessions were
sometimesconductedinadjacentlanesofthesamepoolatthesametime.
 Cecil Russell actively participated in training his daughter by writing her training
routine on a white board prior to Respondent’s practices that she and the other
coachesandathletescouldseeandrefertoonthepooldeck.
Other examples that Arbitrator McLaren provided of the interaction of Cecil Russell
andswimmingmembersoftheRespondentDolphinsincludedparticipationinswim
meets in Europe, where he trained them, hosting a training camp in Barbados that
theyattendedandtakingsplitsoftheirperformances,whileinthepublicgallery,for
subsequentfeedback.CecilRussellalsoexplainedthatthenationalgoverningbodyfor
swimminginCanada(SNC)hadadvisedhimthathewasentitledtocoachhischildren
andtooperatehistrainingbusinessprovidedthattheseactivitieswerenotconducted
under the auspices or as part of the activities of a member club of Swim Ontario or
SNC.Ofcourse,theDolphinsaresuchamemberclub.
(16) ArbitratorMcLarenconcludedthatCecilRussellhadtaken “averystrict,literal
view” of the limits on his entitlement to coach his children. He interpreted this as
includinganytimewhentheywerenotintheRespondent’sprograms.Hedecidedthat
7
thisallowedhimtowritehisdaughterSinead’spracticeplanonthepooldeckboard
immediately before the practice formally began. He also interpreted his ban on
coachingasbeinglimitedtothatofa“professionalcoach”.Thatmeanttohimthatas
anindependenttrainer,hecouldengageinanyactivitieswithhisclientsaswellashis
children“uptothepointwheretheathletewasinthestartingblocks”.TheArbitrator
noted that this invalid interpretation ignored the limitations imposed by the words
“anyrole”whichwerecentraltotheineligibilityprohibitions.(Paragraphs76,77,78)
(17)TheArbitratorconcludedthatCecilRussellhadcommittedanumberofbreaches
ofhisineligibilitystatus.Thedecisionclearlystatedthatthebreachesidentifiedwere
merely some examples, since “the quantum of breaches” did not have to be
determined. (Paragraph 81) The following paragraphs describe the breaches that
involved interaction with the Respondent Dolphins club, in the words of the
Arbitrator.TheyarelistedasbulletsinParagraph79ofthedecision.
(18) Writing out training routines and warm‐up routines on the white board prior to
Oakville Dolphins' practices. Whether or not they were Sinead's practices is irrelevant.
The factis, thatthewarm‐up waspart ofthe activitiesofthe OakvilleDolphins. While
theactionofwritingthewarm‐upandotherroutinesmayhavetakenplacepriortothe
official start time of the practice, the effect of the action took place during Oakville
Dolphinsswimtime.
(19) Advising and meeting with members of the Oakville Dolphins about their
performancesatswimmingmeetsthroughconversationsinthepublicviewingareasof
the pool; orother adjacent locationssuchas stairwells andlobbies ofvenues; prior to,
duringandaftercompetitionsthatwereorganized,convened,heldorsanctionedbythe
ReferencedOrganizations.[Thesearedescribedearlierinthedecisionasnationaland
provincialsportsgoverningbodiesortheiraffiliates]
8
(20)Russellincorporatedacompanyandusedthisvehicletocontractwithpoolowners
and other individuals, such as his wife, where it suited his mode of operation. He
developedprivatecontractswithswimmerswhowerealsoregisteredasswimmerswith
the Oakville Dolphins as well as with athletes of other Referenced Organizations.
Expressed in terms of the ban, under those private contracts, Russell, through his
corporation, and in his own words, performed many activities and roles of a
coach/trainerformembersoftheOakvilleDolphins.Heonlydrewthelineatbeingon
thepooldeckduringsanctionedpracticesandeventsandactingas"coachofrecord"for
thosesameactivities.
(21) Assisting athletes in Canet, Barcelona, and Monaco in their training and
preparationfortheMareNostrum.WhileitisconcededthattheMareNostrumisnota
competition"run"orsanctioned,intheofficialsense,byaReferencedOrganization,Erin
Russell organized the attendance on behalf of the Oakville Dolphins and in my v1ew,
attendanceoftheOakvilleDolphins(asOakvilleDolphins)atameetisinandofitself,an
activityascontemplatedbytheban.ItfollowsthatIdonotreadthebantobelimitedto
participationineventsthatarerunonlybyReferencedOrganizations.Itisclearthatthe
banisintendedtoprecludeRussellfrombeinginvolvedinanymannerwithReferenced
Organizations,includingtheOakvilleDolphins.
(22) In addition to finding these breaches, Arbitrator McLaren made a number of
more general observations about the course of conduct adopted by Cecil Russell in
relation to his ineligibility. He described the manner in which his activities were
carried out since 2009 as being: with the subterfuge of joint email and cell phones,
directives to swimmers intended to draw a distinction between coaching and training
suchassaying:speaktoyourcoachandstatementsthat"Iamnotyourcoach",allthese
actions demonstrate a propensity by Russell, to engage in activities that obfuscate the
forceandeffectoftheban.Theseactivitiessince2009areengagedintopushthelimits
ofandcircumventtheban.(Para.82)
9
(23) The Arbitrator added the following: The joint email address and the joint
telephone numbers, the fact that the joint number was also the Oakville Dolphins web
site telephone number, are all devices which blur the dividing line between Russell's
activities conducted under the auspices of his contracts for personal service, and
activitiesthatarewithintheOakvilleDolphinssphereofactivity.(Para.83)Theobjectof
his method was to obscure the dividing line between the Oakville Dolphins and his
operation as Dolphin Swim Club of Ontario and thereby disguise his conduct that
violatedtheban.Therewasconsiderablesubterfugebetweenhisoperationandthatof
the Oakville Dolphins; (Para. 86) The modus operandi suited Russell and his desire to
remain involved in swimming, while disregarding the consequences of his activities on
othersbetheyindividualswimmersortheOakvilleDolphins.(Para.87)
(24) These specific references to the McLaren decision, in relation to Cecil Russell’s
breachesofhiseligibilityban,willnotbeassessedbymeaspotential“misconduct”for
the purpose of determining any potential breach by the Dolphins of the Settlement
Agreement. My role is confined to the three remaining complaints against the
Dolphins and the evidencerelatedto them. The McLaren decisioninvolveddifferent
issuesfromthosethatarebeforeme.
(25) However, there is an overlap in some of his findings and some of the evidence
presented before me relating to the Dolphins. Some of the findings and some of the
observationsofArbitratorMcLarenassistinprovidingarelevant context thatmight
be helpful in understanding the relationship of Cecil Russell to the Dolphins. They
might also have relevance to the collateral issue of credibility in some respects. The
McLarendecisionwasabouttheconductofCecilRussellbutmuchofhisconductthat
resulted in the findings of breaches of his ineligibility, involved his interaction with
the Dolphins. The case before me is about the conduct (or non‐conduct) of the
10
DolphinsbutthecomplaintsagainsttheDolphinsinvolvetheclub’srelationshipwith
CecilRussellasanineligibleperson.
(d)TheDolphins’Operations
(26) Evidence and submissions about the general manner in which the Dolphins
conducted its business were presented by Swim Ontario in the context of the
Clarington complaint. However, I have addressed this conduct separately since it
amounts,initself,toabreachoftheSettlementAgreement.TheDolphins’operations
illustratethatCecilRussellwasallowedtomaintainarelationshipwiththeclubthat
went far beyond the role of a parent of swimming members or the husband of the
head coach of the Dolphins. The evidence demonstrates that he was permitted to
maintain a presence in the club’s operations in the manner described by Arbitrator
McLaren as using “devices that blur the dividing line”, involve “subterfuge” and
“disguisehisconduct”.Inthatcase,hisobjectivewasto“obfuscatetheforceandeffect
oftheban”.Intheseproceedings,ithasbeennecessarydealwithsimilarobfuscation.
(27)TheApplicant,SwimOntario,filedasExhibit9ascreenshotofthe“ContactUs”
link on the Dolphins’ website as it existed in May of 2012. It provides the following
emailaddress:[email protected]
addressatleastsincehisbriefperiodofreinstatementin2005,whenhebecamethe
head coach of the Dolphins. His wife had shared this address with him after she
became the head coach and it continued to be the public electronic address for the
Dolphins at least until May 2012 (during the period of suspension). Both Cecil and
Erin Russell stated that he did not deal with any correspondence that involved the
DolphinsbutwouldreferanymessageintendedfortheDolphinstoher.
(28)ThescreenliststheDolphinstelephonenumbersasfollows:


OakvilleNumber:(905)847‐0430
BurlingtonNumber:(905)632‐7841(leaveamessage)
11

AlternateOakvilleNumber:(905)208‐2529
TheevidenceindicatesthatthefirstnumberalsowasMr.Russell’sbusinessoffice
number.ItappearsonthreechequescontainedinExhibit8asitemsK13,K14and
K15. All three of these identify the account as “1759717 ONTARIO LTD., O/A
DOLPHIN SWIM CLUB OF ONTARIO. The same telephone number also appears on
thechequewhichisitemK12butwhichidentifiestheaccountasDOLPHINSSWIM
CLUB INC. The evidence shows this to be an account of the Respondent Dolphins
rather than that of Mr. Russell’s corporation, yet he testified that he had filled out
thecheque(K12)andsignedit.ItisdatedMarch15,2013.Thischeque,signedby
Mr.Russell,hasthesameaccountidentificationandaccountnumber(5202589)on
itsfaceasanumberofchequescontainedinExhibit18thatErinRussellidentified
assignedbyheronbehalfoftheDolphins.Oneofthemisthechequefor$2,500sent
on behalf of the Dolphins to Swim Ontario as payment of the fine imposed by the
SettlementAgreement. Mr. Russell’s explanation that the cheque identified as K12
wasfromhispersonalaccountsimplyisnotbelievable.
(29) Mr. Russell testified that the second telephone number was for their home
telephonebutitwasusedfortheDolphins.Hesaidthathedidnotusethislinebutif
hiswifewerenotpresenthewouldtakeanumbersothatshecouldcallback.Erin
Russell also stated that he did not use this telephone number. However, in an
apparent contradiction, Mr. Russell entered (905) 632‐7841 as his “Home
Telephone” in the “Swimmer Registration 2012‐2013” for three of their children.
Thenumber(905)684‐7689wasenteredforErinRussell’s“HomeTelephone”and
they both stated that this also was a home telephone number. This document is
identifiedasitemK‐10inExhibit8,whichisthereportofthehandwritingexpert.
(30)ThethirdtelephonenumberlistedontheDolphins’“ContactUs”pagehadbeen
Mr.Russell’scellnumberformanyyearsanditsusewassharedwithErinRussell.
ThisnumberwasactivelyusedbyMr.Russellandwasprovidedbyhimforfurther
12
discussions in relation to the Clarington Meet, which is discussed below. The
sharing of telephone numbers between Erin and Cecil Russell was depicted by
counselfortheDolphinsassimplyacost‐savingmeasurewithinthefamilybutdoes
notexplainwhytheDolphinsalsoshouldbeinvolvedinsuchanarrangement.
(31)Exhibit5isaletter,datedJuly5,2012andsignedbyPanagiotaKlentrou,asa
BoardmemberoftheDolphins.Theletterheadhasagraphicatthetopofthepage,
which contains the words “Dolphins Swim Club”. The only other information
providedonthisstationeryisthefollowingaddress,whichisatthebottom ofthe
page:“1244SpeersRoadSuite8,Oakville,ONL6L2X4”.Mr.Russellidentifiedthis
asthesameaddressaswasusedinhisbusinessoftrainingathletes.Itistheaddress
thatappearsonthethreebusinesschequesidentifiedasitemsK13,K14andK15in
Exhibit 8. These cheques are referred to in Paragraph 28 above and are clearly
identified as an account of his corporation.The explanation provided by Cecil and
ErinRussellwasthatthisaddresswasneverusedforDolphins’operationsbutwas
merely used as a convenient “mailbox” for receiving correspondence addressed to
theDolphins.Thisexplanationignoresthefactthatreceivingmailisanormalpart
ofbusinessoperations.
(32)TheevidencedescribedaboveclearlydemonstratesthatCecilRussellandhis
business were inextricably involved with the Dolphins throughout the period of
suspension in 2012. His business office telephone was listed on the Dolphins
websiteastheprimarynumberfortheclub.Hishometelephoneandcellnumbers
were listed as the other two contact numbers for the club. His email address was
listedastheemailcontactaddressfortheclub.Thelocationoftheclubwaslistedon
itsstationeryandonitsbankingaccountasidenticaltotheaddressofhisbusiness.
He admitted to filling out and signing a cheque (K12) on the club’s account. He
claimedthatthiswashispersonalaccountbut,ifso,theDolphinsweresharingthat
personalaccountwithhim.
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(33) These circumstances are clearly in breach of the provisions contained in the
SettlementAgreementanddescribedinParagraph7above.TheDolphinswere, in
effect,awillingpartnerwithanineligiblepersonintheoperationsoftheclub.There
was no reason for the Dolphins club not to have its own telephone number, email
and mailing addresses. Details of Mr. Russell’s business were not presented in
evidencebutitwasclearthatmanymembersoftheDolphinsalsowereclientsofhis
business.Itwouldbealogicalinferencethathisbusinesscouldbenefitfromflowing
theDolphins’communicationsthroughthatbusiness.Hewasabletosignacheque
ontheclub’saccountasrecentlyasMarch15,2013.
(34) The Dolphins cannot avoid responsibility for this state of affairs, particularly
aftertheclubhadrecentlyagreed,ontwoseparateoccasions,tosanctionsimposed
by Swim Ontario for previous infractions related to interaction with an ineligible
person.Attheveryleast,theclubengagedin“willfulblindness”.Insomerespectsit
maybeunderstandablewhytheDolphins,andparticularlytheparents,wouldwant
tomaintaintheclub’sinteractionwithCecilRussell.BothheandErinRussellwere
coaches of a high caliber and the club members could benefit from the private
trainingofferedbyhisbusinessaswellasfromtheactivitiesoftheclub.Thesuccess
of the Russell children would be an attraction for other parents when they were
choosingaclubfortheirownchildrentojoin.BothColinandSineadweremembers
oftheCanadianOlympicSwimmingTeamattheLondon2012Games.
(35) But these factors do not diminish this material breach of the Settlement
Agreement through the nature of the Dolphins’ continuing association with Cecil
Russellduringtheperiodofthesuspension.Noristhereanyprejudiceorunfairness
toaddressingtheDolphins’operationsastheequivalent ofaseparatebreach,asI
havedone.Thisapproachmerelyseparatesoneaspectoftheevidencepresentedas
partofthefirstcomplaint.Alloftheevidenceanddocumentationdiscussedabove
14
was fully within the knowledgeand possession ofthe Dolphins.Afull opportunity
wasprovidedatthehearingfortheDolphinstorespondandtheDolphinsdidso.
(e)TheClaringtonMeet
(36) This alleged breach of the Settlement Agreement arises out of the Dolphins
interactionwithCecilRussellinhisattempttohavehisclients,includingmembers
of the Dolphins, participate in a sanctioned swim meet. The Clarington Spring
InvitationalTournamentwasheldonMay5,2012.OnFebruary1,2012,theMeet
Manager,KarenHillisStinson,sentemailstoswimclubsinCentralOntarioinviting
themtoparticipate.ErinRussellreceivedthisinvitationonbehalfoftheDolphins.
ShestatedinherAffidavit(Exhibit16)thattheClaringtonSwimClubwas“informed
oftheclub’ssuspensionandthattheDolphinswouldbeunabletoparticipate.”She
also testified that she had responded to the February 1 email by saying that the
Dolphins could not enter a sanctioned meet since the club was suspended. This
emailwasnotenteredintoevidence.
(37) ErinRusselltold her husband about the invitation. Inheraffidavitshestated
that he responded by suggestingthat perhaps the host club would be prepared to
have a “fun meet” with the participation of his clients. Both Cecil and Erin Russell
testified that it was Erin who initiated this idea. In either case, Cecil Russell then
enteredintocommunicationswiththeMeetManagerabouthavingsuchameet.He
clearlydisclosedthatsomeoftheswimmersheproposedtosendwereregistered
(many of his clients were registered with the Dolphins) and that others were not
registered (and could not participate in a sanctioned meet). Arrangements were
madeandtheswimmers(bothregisteredandnon‐registered)attendedonMay5.
(38) Erin Russell accompanied the swimmers as their coach. She stated that the
swimmers had already entered the pool when she first realized that this was a
15
sanctioned meet and that her swimmers were identified in meet documents as
members of the Dolphins. She called her husband and they decided that the
swimmers could not participate in this meet. She withdrew the swimmers before
theycompetedinanyoftheeventsandtheyallreturnedhome.TheMeetManager
wrote to Cecil Russell the next day to acknowledge her “mistake” based on a
“misunderstanding” between them. She said that the misunderstanding had
occurred because he had assumed it was a “fun” meet while she thought his
swimmerswere“legit”.
(39) Erin Russell stated in her Affidavit that during the Dolphins suspension she
was“unemployed”butvolunteeredher“timeandservicesatpubliclaneswimming
andatprivatepoolsessions.”Sheaddedthatsheonly“resumedmydutiesasHead
Coach” on the day after the suspension period ended. Ms. Klentrou also stated, in
her letter, that Erin Russell was “not employed by the Club during the term of
suspension” (Exhibit 5). However, even though the Dolphins may not have
continuedtopaythewagesoftheiremployeesduringthesuspension,therewasno
evidencethatErinRussell’sstatusasheadcoachhadbeenrevoked.Her“coaching”
dutiesobviouslyhadchangedsincetheclubhadnopooltimeduringthisperiod.But
sheremainedtheheadcoach.
(40)TheKlentrouletter,writtenbyhertoSwimOntarioasaBoardmemberofthe
Dolphins,statedthatneithertheDolphinsclubnoranyoftheBoardmembershad
any“associationorconnection”withCecilRussellinrelationtotheClaringtonmeet.
Inmyview,thisisnotcorrect.TheDolphinsdidassociatewithCecilRussellinthis
respect, through the actions of the club’s head coach. The Dolphins club cannot
dissociateitselffromitsheadcoachsimplybyassertingthatshewasunemployed
duringtheperiodoftheclub’ssuspension.
16
(41)TheconductoftheDolphinsheadcoachinrelationtotheClaringtonmeetfell
belowthestandardofdiligencerequiredoftheclubanditsrepresentativesinthe
circumstancesofthesuspension.ErinRussellisnotcredibleinstatingthatshefirst
learned that this was a sanctioned meet shortly after her swimmers entered the
pool.Shealsohadtestifiedthatsherespondedtotheinvitationbywritingthatthe
Dolphinscouldnotenterasanctionedmeetbecausetheclubwassuspended.That
shouldhavebeentheendofthematterasfarastheinvolvementoftheheadcoach
oftheDolphinsinthismeet.
(42)Instead,shealertedCecilRusselltotheinvitationreceivedbytheDolphins,and
encouraged him to pursue a potential avenue of participation on behalf of his
clients.BothofthemknewthatmanyoftheseclientsalsowereDolphinsmembers.
She then accompanied the registered Dolphins and the unregistered swimmers as
their coach at the meet. It is difficult to appreciate how Cecil and Erin Russell
thought they could get away with participating in a sanctioned meet simply by
characterizingitasa“funmeet”.
(43)Mr.RusselldidnotmisleadtheMeetManagerabouttheswimmersbutshedid
not exercise the diligence required by her in this capacity either. Indeed, she
apologized for her “mistake” and subsequently was sanctioned for her conduct.
Apart from who may have initiated the idea of a “fun meet” it is clear that Cecil
Russell made all of the arrangements on behalf of his clients. In one of his emails,
[Exhibit14]hewarnedtheMeetManagerthathisnon‐registeredswimmers“should
not swim with registered swimmers or it could be a issue if someone reports
this.” [Emphasis added]. This suggests that it might be a problem only “if we get
caught” and that interpretation would be consistent with the observation of
ArbitratorMcLarenquotedinParagraph23abovethat:“Themodusoperandisuited
Russell and his desire to remain involved in swimming, while disregarding the
17
consequences of his activities on others be they individual swimmers or the Oakville
Dolphins.”(Para.87)
(44) Evidence also was led and argument made by Swim Ontario to support an
allegationthatCecilRussellwasallowedtouseDolphinssoftwareaswellasitsdata
baseinthecourseofenteringhisclientsinthismeet.Inmyviewitisnotnecessary
toaddresstheseissues.Ifindthattheactivecollaborationofarepresentativeofthe
Dolphins with an ineligible person to pursue a Dolphins invitation that simply
should have been declined, is sufficient to constitute a material breach of the
SettlementAgreement.
(f)TheCAMOMeet
(45)ThesecondcomplaintinvolvesconductonthepartofCecilRussellinrelation
totheDolphinsparticipationintheCAMOmeetheldinMontrealonDecember14,
15 and 16, 2012. In particular, it alleges that he played an active role in making
bookingarrangementswiththeComfortInnLaval,wheretheDolphinsteamstayed
duringthismeet.SwimOntariohadarrangedfortwoemployeesoftheComfortInn
totestifyatthehearingscheduledforApril25.ThehearingwasadjournedtoMay3,
forthereasonsindicatedinParagraph14,above.
(46) On April 30, the Comfort Inn received a letter from a Gatineau, Quebec, law
firm,whichstatedthatitrepresented“theinterestoftheDolphinsSwimCluband
parents of swimmers” who had rented rooms for the days of the meet. The letter
statedthatinformationhadbeenillegallyprovidedbythehoteltoSwimOntarioand
that“anytestimonyaboutinformationsenttoSwimOntariobyyourstaff...”also
wouldbetreatedasillegalandcouldresultinalegalactionfordamages,including
punitive damages. As a result, the hotel declined to allow its employees to testify
18
and this complaint proceeded only on the basis of documentary evidence and the
testimonyofCecilandErinRussell.
(47)Exhibit7consistsofaseriesofemailsdatedOctober10and11.Theyinitiate
andconfirmthebookinginquestionandareinthefollowingorder:
(i) From Comfort Inn, commencing “Hello Mr. Russell. It was nice speaking to you
thismorning.HereiswhatIcanofferyouforyourstayarrivingDec13th2012for3
nights.”Itthenreferstotherooms,therateandthebreakfastoptions;
(ii) Reply commencing “GOOD DAY YOU WHERE [sic] FAST” then inquiring about
extrafreerooms,taxesandadding“justwaitingonthehostteamandIwillbook”.
The“sign‐off“is“COACHRUSSELL”;
(iii)FromComfortInn“HiMr.Russell”thenconfirmingfreeroomsandtaxes;
(iv) Reply confirming dates and that “will take 30 rooms”. The sign‐off is “CECIL
RUSSELL”;
(v)FromComfortInn“HiMr.Russell”attachingagreementandaskingtosignand
return;(TheattachedagreementisalsoreproducedinExhibit7)
(vi)Replysayingroominglistwillbeprovidedin4weeks.Thereisnosign‐off.
ThecorrespondentforallthreeemailsfromtheComfortInnis“ChristineBernard”,
whoisidentifiedasthe“SalesCoordinator”.Theheadersforallthreelettersfrom
theDolphinsshowthattheyarefrom“Mr.cecilrussell[sic]”andthesubjectis“Re:
DolphinSwin[sic]Club”.Wherehisaddressisshown,[email protected].
(48) Cecil Russell denied sending these emails and claimed that he did nothing to
arrangeforaccommodationsfortheDolphinsatthisoranyothermeet.Hetestified
that he had called the hotel to book his own room and the first email from the
ComfortInnwasaresponsetohiscall.Hesaidthatwhenhereceived“other”emails
from the hotel, he told his wife and she took over the correspondence. This
explanation is not credible. It explains why the hotel might have responded to his
email address rather than that of the Dolphins. However, the contents of the first
message are not consistent with booking a single private room, as opposed to a
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groupbooking.ThesubjectrelatestotheDolphinsSwimClub.Itrefersto“rooms”in
the plural. It provides options for breakfast and these seem to relate more to
childrenthantoanadult(1glassofmilkandnoreferencetocoffeeortea).Italsois
fromthe“SalesCoordinator”andreferstosending“anagreement”whichwouldnot
benecessaryorappropriateforasingleadultbookingaroom.
(49)Moreover,ErinRusselltestifiedthatshehadrepliedtothefirstemailonbehalf
oftheDolphins,whichshewouldnothavedoneifthefirstemailwereinresponse
to her husband’s telephone call. She stated that these emails “appeared” to come
fromherhusbandbecauseshehadstartedthecorrespondencewiththeComfortInn
by erroneously using his email account rather than the Dolphins. She said it was
onlywhenhetoldherthathehadreceivedamessagefromtheComfortInnthatshe
realized she was using the wrong account. She said that she had made telephone
callstoanumberofhotelstostarttheprocessofbookingforCAMOandconcluded
that the first Comfort Inn message was in response to one of her telephone calls.
However,thisdoesnotexplainwhythehotelrespondedtohertelephoneinquiryby
writingtoCecilRussell’spersonaladdressratherthantoherthroughtheDolphins
address.
(50)ErinRussellwasaskedwhythesign‐offtothefirstresponsetotheComfortInn
(listedas(ii)inParagraph47)was“COACHRUSSELL”ratherthan“DolphinsSwim
Club, Head Coach”. The latter is the usual description she adopts, as illustrated by
the many other emails reproduced in the evidence. She explained that it would
dependonhowmuchtimeshehadandsometimesshewouldnotuseanysign‐offat
all,ifshewererushed.Eventhoughsheclaimedthatshehadwrittenandsentthe
secondresponse(listedas(iv)above)onbehalfoftheDolphinsshecouldofferno
explanationastowhythesign‐offforthismessagewas“CECILRUSSELL”.
20
(51)Finally,Exhibit“B”ofherAffidavitcontainsanemailthatappearstobefrom
the Comfort Inn to the “Dolphins swim club” dated December 17, 2012. It begins
withthesalutation“HelloMrs.Russell”.Sheidentifiedthisasafollow‐upfromthe
hotel to correct the account for their stay since the hotel had over‐charged on a
number of items. A different version of the same email was obtained from the
ComfortInnandfiledbySwimOntarioasExhibit20.Themostsignificantdifference
betweenthetwoisthatthesalutationinExhibit20is“HelloMr.Russell”ratherthan
“Mrs.”.Thereareslightdifferencesinthecontent,andtheversioncontainedinher
Exhibit“B”haschangesintheformattingaswellasanunusualheader,whichplaces
the“subject”linein‐betweenthe“From”and“To”lines.SwimOntariocontendsthat
the document in Exhibit “B” had been altered in order to make it appear that the
hotelwascorrespondingwithErinRussellratherthanwithCecilRussell.
(52)ThisallegationbySwimOntarioissupportedbytheattachmenttotheversion
ofthemessagecontainedinExhibit“B”,whichprovidesadetailedlistofcharges.At
thetopofthefirstpageitdescribestheclientas“Mr.CecileRussell”.Thefirstname
appearstobeaslightspellingerrorbutthe“Mr.”isunambiguous.Onabalanceof
probabilities,IcanonlyconcludethattheallegationofSwimOntarioiscorrectand
that the document in Exhibit “B” has been deliberately altered. The only rational
inferenceisthatthealterationwasdesignedtomisleadthisPanel.
(53) When this finding is considered together with all of the inconsistencies and
unbelievableexplanationsofCecilandErinRussell,theemailmessagesinExhibit7
mustbereadattheirfacevalue.ThisleadstotheconclusionthatCecilRussellwas
actively involved in making the bookings on behalf of the Dolphins for the CAMO
meet. Thisconstitutes a “major infraction” under the Swim Ontario Dispute Policy
anddisciplinaryprocedures.
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(g)TheFourthComplaint
(54)ThefourthcomplaintisthatCecilRussellenteredintoacontractonbehalfof
theDolphinswiththeComfortInninrelationtoameetheldinFebruary2013.The
origin of the document, which is the basis of this complaint, is referred to in
Paragraph 11 above. It is an agreement between the Comfort Inn Laval and the
DolphinsSwimClubintheformofaletterdatedDecember13,2012,fromChristine
Bernard,SalesCoordinatortoDolphinsSwimClub.Thesalutationis:“Mr.Russell”
and it concludes with “Best Regards”. Below that are two signatures identified
under each, respectively, as “Christine Bernard, Sales Coordinator” and “Mr. Cecil
Russell,DolphinsSwimClub”.Theformandcontentofthebodyofthisdocumentis
similartothecontractsentbytheComfortInninrelationtotheDolphinsOctober
reservation for the CAMO meet (listed as (v) in Paragraph 47 above) with the
followingchanges:

8roomsinsteadof30

February13th2013checkinfor4nightsinsteadofDecember13th2013for3
Thedatesforprovidingroominglistsandforcancellationwithoutpenaltywerealso
adjustedaccordingly.Theroomrateremainedthesame.
(55) When it became apparent that Christine Bernard no longer could attend the
hearingasawitness,counselfortheDolphinssubmittedthatthisfourthcomplaint
should be dismissed. He argued forcefully that the agreement in question would
have no evidentiary value since such a document must be proven by a witness
before it can be considered by the trier of fact. I ruled that this document was
admissibleinevidenceandwouldformthebasisforafourthcomplaintagainstthe
Dolphinsintheseproceedings.Thislettercanbecharacterizedashearsayevidence,
which this Panel has authority to consider, even if it would be inadmissible in a
courtoflaw.Intheabsenceofawitnesstointroducethisdocument,theweightto
be given to it, if any, must be determined by circumstantial evidence such as the
22
manner in which it was obtained and any inferences that can be drawn from its
content.Ofcourse,anypotentialprejudicetotheDolphinsalsomustbeconsidered
inthecontextoftheprincipleoffairness.
(56) In my view, this document has probative value as evidence that Cecil Russell
actedonbehalfoftheDolphinsinsigningtheagreementforthehotelarrangements
that are described in the document. It was obtained by Swim Ontario from the
ComfortInnandthereisnoreasontodoubtitsauthenticity,apartfromMr.Russell’s
contention that he did not sign it. The specific content of the document is not
disputed. The only issue regarding the fourth complaint is whether the signature,
whichisshownonthedocumenttobethatofCecilRussell,actuallyishissignature.
(57) In addition to the real evidence on the face of document itself, there is
circumstantial evidence to suggest that it is his signature. The document is dated
December 13, 2012, which is the date that he arrived at the Comfort Inn for the
CAMO meet. The email exchanges supporting his active involvement in making
similar hotel arrangements for the Dolphins in relation to CAMO also support the
possibility that a similar pattern of conduct would be repeated in the future. It is
highly unlikely that a business record of this nature would be fraudulent. The
previousevidenceofhislackofcredibilityalsodetractsfromhisdenialthathehad
signedtheDecember13document.
(58) Erin Russell testified that she was solely responsible for making the hotel
arrangements on behalf of the Dolphins and Exhibit 17 was entered in support of
thatcontention.ItcontainsaseriesofemailsbetweenErinRussellandChristine
Bernard regarding the Dolphins reservation at the Comfort Inn commencing on
February 13, 2013. This was the same reservation that was described in the
December 13 document. These emails illustrate that she was actively involved in
alteringandconfirmingvariousaspectsofthesearrangements.Shetestifiedthatno
23
actualcontractexistedforthisstay.However,therelevantemailsarealldatedafter
December 13, 2012, the date of the contract in question. Also, the subject line for
these emails is “Re: Revised contract . . . att: Erin Russell”. [Emphasis added]. As
Exhibit7demonstrates,theComfortInnsentoutasimilarcontractfortheprevious
stayontheOctober10thdateofCecilRussell’sinitialinquiry.
(59)Mr.Russellpersonallyinstructedahandwritingexperttoprovideanopinionas
towhetherthesignatureontheDecember13documentwashis.Mr.DavidBabbof
Vancouver is described on his letterhead as a “Forensic Document Examiner”. Mr.
Russell testified that he spoke with Mr. Babb, who requested that he provide
samplesofhissignatureforcomparisonswiththe“questioned”signature,whichis
described as Q1 in the expert’s report. The samples could be, for example, signed
chequesandcontracts.Mr.Russellchose16samplestosend,whicharedescribedin
theexpert’sreportas“known”signaturesandidentifiedasitemsK‐1toK‐16.Inhis
report, Mr. Babb concluded that: “Based on the documents supplied . . . it is my
professionalexpertopinionthatthe‘Q1’signatureisnotwrittenbythesameauthor
asthe‘K’signaturesofCecilRussell.”
(58) Swim Ontario takes no issue with Mr. Babb’s expertise or methodology but
challenges the validity of his conclusion because of the nature of “the documents
supplied”. It takes the position that the signatures provided to the expert by Cecil
Russellwerenotrepresentativeofthesignaturesthatheactuallyused.All16ofthe
signaturesprovidedbyMr.Russellarewritteninaverydeliberateand“tight”style
thatisclearandlegible.Threeinitialscanbeeasilyidentifiedas“CTG”beforethe
name “Russell” although the bottom of the “C” sometimes curls inward to almost
resemblea“G”.Periodsareusedoccasionallyaftersomeoftheinitialsbutthereis
no obvious pattern. These signatures resemble printing rather than a flowing,
cursive style. In fact, Item K3 has the name “Cecil Russell” printed below the
signatureandthereisastrongsimilaritybetweentheprintingandthesignature.
24
(61) Q1 is the disputed signature purporting to be that of Cecil Russell on the
Comfort Inn agreement dated December 13, 2012. In contrast to the 16 samples
providedtotheexpertbyMr.Russell,Q1hasalarge“scrawling”naturethatisnot
legible and can be easily identified by a non‐expert as having no similarity to the
samplescontainedinitemsK1toK16.However,Q1doeshaveastrikingsimilarity
tothesignatureonMr.Russell’sAffidavit(Exhibit6).Ofparticularinterestaretwo
distinctiveloopsatthehighestpointofeachofthesetwosignatures.Mr.Russell’s
signature also appears on documents attached as Exhibits “A” and “C” of his
Affidavit. The similarity of these signatures to Q1 is not as pronounced as is the
similarity of his signature to the Affidavit, itself, but the two distinctive loops are
stillclearlyidentifiableinbothExhibits“A”and“C”.Itis clearthatallthreeofthe
signaturesintheaffidavitaremuchmoresimilartoQ1thantheyaretoanyofthe
16samplesthatwereprovidedtothehandwritingexpert.
(62)CounselforSwimOntariointroducedthreeadditionaldocumentsassamplesof
Mr.Russell’ssignature.Exhibit11isacarrentalagreementthathehadsigned.The
signature on this document is also strikingly similar to Q1. Exhibit 12A was
introducedsubjecttomyrulingontheobjectionbycounselfortheDolphinsthatit
issubjecttoanimpliedundertakingbyopposingcounselnottodiscloseit.Ihave
decidedagainstthisobjectionandhaveexaminedthisdocument.Inmyviewitalso
is strikingly similar to Q1. Exhibit 13 is an affidavit of Mr. Russell from a court
proceeding.Thissignatureisnot“strikinglysimilar”butismuchmoresimilartoQ1
thantoanyofthe16samplesprovidedtotheexpertbyMr.Russell.
(63) When confrontedwith thesedifferencesand similarities, Mr. Russell testified
thathissignaturevariesdependingonhowrushedhemightbeandonthenatureof
thedocumentheissigning.Hesaid,forexample,thatifheis“goingfastbecauseof
lots of documents”, he would “just scribble”. But if he has time, as when signing a
25
contract,hewouldincludehisfullinitials.Thedifficultywiththisexplanationisthat
anaffidavitwouldbelikelytofallintothemoredeliberatemoderatherthantobe
“rushed”.
(64) Swim Ontario takes the position that Mr. Russell deliberately misled the
handwritingexpertbyprovidingnon‐representativesamplesofhissignature.Itis
notpossibleontheevidencebeforemetodeterminewhetherheregularlyusesthe
styleofsignaturecontainedinthe16samplesthatheprovided.Butitisclearthat
hedoesuseastyleofsignaturethatisverydifferentfromthestyleinthosesamples.
Thatisclearfromthe3signaturesusedinhisAffidavitandtheadditionalsignatures
discussed in Paragraph 62 above. If he does regularly use the style in those
samples,thenhewasselectiveinchoosingsamplesonlyfromdocumentsinwhich
that style was used. If he did not previously use the style of signature reflected in
thesamples,thenhemusthavemanufacturedthesamplesforthisspecificpurpose.
(65) Evidence presented by Swim Ontario leads to the conclusion that one of the
sampleswasmanufacturedbyCecilRussellbyfalsifyingadocument.ItemK3inthe
expert’sreportisasix‐pagedocumentcontainingtheArticlesofIncorporationfor
hisnumberedcompany1759717OntarioLtd.Atthebottomofpage6ofK3isabox
withtheheading“Signaturesoftheincorporator(s)”.Inthebottomleftoftheboxis
asignatureandprintedimmediatelybeneathitisthename“JamesSmythe”.Inthe
bottom right of the box is the sample signature of “C T G Russell” and printed
immediatelybeneathitisthename“CecilRussell”.
(66) It is notable that the name beneath the first signature had been typewritten
whilethename“CecilRussell”,beneaththesecondsignature,hadbeenprintedina
handthatisverysimilartothesignature.Itisalsonotablethatthesection“outside
the box” at the top of the same page states: “The names and addresses of the
incorporatorsare”.Immediatelybelowthisareenteredthenameandtheaddressof
26
James Smythe. But there is no name or address entered for Cecil Russell, even
thoughhehadsignedwhereheisshownasanincorporator.
(67) Counsel for Swim Ontario obtainedfromtheOntarioMinistryofGovernment
Services and entered as Exhibit 13, a microfiche and certified copy of the same
Articles of Incorporation. It is identical to the document K3 except in one respect.
The official document contains only the first signature. It does not contain the
signature of Cecil Russell. Under cross‐examination, Mr. Russell could provide no
explanation for this discrepancy between the official document and the altered
document that became K3 in the expert’s report. He stated that his company was
first owned by Smythe alone, then they both became owners and, finally, Russell
becamethesoleowner.Thereappearstobeonlyonereasonableexplanationforthe
discrepancy between the two documents. I have concluded that Mr. Russell had a
copyoftheoriginaldocument,whichshowsSmytheasthesoleowner,andadded
his signature and printed name to it. He then included the altered document with
the handwriting samples that were sent to the expert. This finding also detracts
significantlyfromMr.Russell’sgeneralcredibility.
(68) There are other circumstances surrounding the sample signatures that raise
suspicions about their authenticity. However, whether through selectivity or
manufacture, the samples provided to the handwriting expert were not reliable.
TheyexcludedthemostrelevantstyleofsignaturethatisusedbyMr.Russell.This
rendered the expert report to be of no value in relation to the conclusion that it
reached.TheselectionofanexpertfromVancouverratherthanfromOttawainvites
the inference that the Dolphins had no interest in having the expert testify. This
leavesthefollowingrelevantevidenceaboutwhetherthesignatureontheComfort
InnletterdatedDecember13,2012isthatofCecilRussell:

ThecircumstantialevidencereferredtoinParagraph57above.

Histestimonydenyingthatithissignatureinthecontextofhiscredibility.
27

Therealevidenceofhisapparentsignatureonthedocument.

Theverystrongsimilarityofthatsignaturetoothersthatareirrefutablyhis.
(69)Inothercircumstances,Iwouldbereluctanttoengageinhandwritinganalysis
without expert guidance but common experience, perception and common sense
aresufficienttoreplacetheneedforexpertiseonthefactsofthiscase.Iamsatisfied
bythestrikingsimilarityofthesignatureontheaffidavitenteredasExhibit6and
thesignatureontheComfortInnagreementdatedDecember13,2012,thatthetwo
documents were signed by the same person, namely, Cecil Russell. The additional
signatures discussed in Paragraphs 61 and 62 strongly reinforce this conclusion.
ThecomparisonsareobviousandIhavenodoubtthatexpertanalysiswouldreach
thesameconclusion.
(70)TheconductofCecilRussellinsigningtheagreementwiththeComfortInnon
December13,2012,onbehalfoftheDolphins,constitutesamajorinfractiononthe
part of the Dolphins under the Swim Ontario Dispute Policy and disciplinary
procedures.HisconductmusthavebeenknownbytheheadcoachoftheDolphins
and,attheveryleast,wasignored.
(h)Penalty
(71) As described in Paragraphs 6 and 7 above, the Dolphins were subjected to a
probationary period of one year in 2009. They subsequently were subjected to a
combination of periods of probation and suspension extending from September 1,
2011 to August 31, 2012. The Settlement Agreement, upon which the second
sanctionswerebased,concludesthatifany“majorinfraction”underSwimOntario
disciplinary procedures or any “material breach” of the agreement should occur
during these periods, the Dolphins’ “membership with Swim Ontario shall be
terminated”.
28
(72) The Swim Ontario “Procedure Manual” refers to the “Subject” of “Dispute &
Discipline Procedure”. It then begins this section of the Manual under the general
heading of “Dispute Policy”. As the previous paragraph indicates, the Settlement
Agreementrefersto“disciplinaryprocedures”.Imentionthissimplytoexplainany
perceived inconsistencies in terminology in these reasons. However, the Dispute
Policy is unambiguous in giving Panels broad authority to impose sanctions that
include “any other sanction which the Panel considers appropriate in the
circumstances”.
(73)InviewofthetwomaterialbreachesoftheSettlementAgreementandthetwo
major infractions under the Swim Ontario Dispute Policy, the membership of the
DolphinsSwimClubofOakvilleInc.inSwimOntarioisterminated.
(74) I wish to express my appreciation to both counsel for the industrious,
expeditiousandcourteousmannerinwhichtheyhaveconductedthismatterinthe
verydifficultcircumstancesofthiscase.
DatedatOttawathis24thdayofMay2013.
EdRatushny
Panel(SoleArbitrator)
29
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