Niagara Ice Dogs Hockey Club Inc. v. Ontario Major Junior Hockey League

Court File and Parties

Citation: 2019 ONSC 2629 Court File No.: 19-68678 Date: 2019-04-26 Superior Court of Justice – Ontario

Re: Niagara Ice Dogs Hockey Club Inc., Applicant And: Ontario Major Junior Hockey League (OHL), David Branch and another And: TSN, affected party

Before: Mr Justice Ramsay

Counsel: R. Brent Marshall for the Applicant Robert B. Bayne and Laura J. Freitag for OHL Tae Mee Park for TSN

Heard: April 26, 2019 at Hamilton

Endorsement

[1] TSN (The Sports Network) moves under Rule 37.14 to set aside my order of March 15, 2019 that sealed everything in the file except my written reasons [2019 ONSC 1713]. The Niagara Ice Dogs Hockey Club Inc. applied ex parte for an injunction and other relief. The Respondents participated informally, but on short notice. The Ice Dogs asked for the sealing order at the OHL’s request but TSN was not notified. TSN therefore has the right to move to set aside the order: National Bank of Canada v. Melnitzer, [1991] O.J. No. 1604 (Gen. Div.).

[2] In the circumstances I treat this motion as a request de novo for a sealing order. The party seeking to restrict access to judicial proceedings must justify the restriction: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, para. 102; R. v. Mentuck, 2001 SCC 76; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41.

[3] The Niagara Ice Dogs are a team in the Ontario Hockey League. In May 2018 a former player complained to the commissioner of the OHL that in addition to the terms of the written contract between him and the Ice Dogs, the Ice Dogs had made a promise to him to pay him $10,000 for every year that he played with them (four years), once he went to university and that they had broken their promise. The Ice Dogs maintain that they never made that promise, which would have contravened the rules of the league. The commissioner of the league instituted an investigation. The investigator filed a report with his findings of fact in June 2018. The investigator concluded that the Ice Dogs had made the alleged unwritten deal. The commissioner accepted the findings of the investigator. He fined the Ice Dogs $250,000 and forfeited two of their draft picks. The Ice Dogs appealed to the Board of Governors of the league as provided in the league’s rules and filed a notice of arbitration. They brought an application ex parte for an order requiring the adjournment of the appeal pending the arbitration. I dismissed the application on the basis that the contract between the team and the league, as opposed to the contract between the team and the player, made no provision for arbitration. The Board of Governors heard the appeal and reduced the penalty to a $150,000 fine and one draft pick.

[4] The investigators were also asked whether the Ice Dogs had manipulated the 2015 draft. They found not.

[5] In the application for an injunction the Applicants filed the affidavit of Bill Burke, which set out the facts of the dispute from his point of view and attached the investigator’s report as an exhibit. Some attachments to the report consisted of written communications between parties and witnesses to the affair.

[6] The principles to be applied on a motion prohibiting public dissemination of documents filed in court proceedings are set out at paras. 53-55 of Sierra Club, which adapts the Dagenais and Mentuk test. To obtain a confidentiality order, the requesting party must satisfy a two-part test:

i) the order must be necessary to prevent a serious risk to an important interest, including a commercial interest, because reasonable alternative measures will not prevent the risk; and

ii) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which includes the public interest in open and accessible court proceedings.

[7] To meet the first part of the test, the requesting party must show: an important interest that can be expressed as a public interest; a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question; and no other reasonable alternative to the order sought: Elbakhiet v. Palmer, 2019 ONCA 333, paragraphs 25-27.

[8] The OHL justifies the sealing order on the basis that it cannot expect candid accounts from complainants and witnesses when it investigates breaches of league rules unless its investigator can assure witnesses of confidentiality. OHL players tend to be minors. The league’s ability to protect young persons from breaches of the rules by their teams is at risk because young players will not come forward if they know that their complaint and personal information will be published in the press and on social media for all time. The Ice Dogs support the OHL’s position.

[9] This strikes me as an important interest that can be expressed as a public interest. I do not however, find any real and substantial risk on the evidence before me.

[10] The main focus of the OHL’s concern is the identity and personal information of the complaining player and another young player who spoke to the investigator. There is little private information contained in the investigator’s report apart from some general references to the player’s financial needs. Neither the complaining player nor the minor witness are said to have done anything wrong.

[11] Moreover, the identity of the complaining player has been made public. The Applicant included his name in the style of cause. The court docket containing his full name has been available to the public since March 15.

[12] There are reasonable alternatives to a sealing order, even a limited one. In the present case, the complainant has come forward and the witnesses have given recorded accounts. To prevent a chilling effect on future complaints, the league can enforce its rules against disclosure of confidential information.

[13] My order of March 15, 2019 sealing the materials in the file is set aside and replaced by an order providing that the Notice of Application, the Application Record and the Responding Application Record, all dated March 15, 2019, are sealed until 4 pm on May 3, 2019. The delay is designed to give the parties a chance to seek a remedy elsewhere, if they think fit, before their cause is rendered moot.

Costs

[14] Given the absence of offers to settle the parties were able to speak to costs at the conclusion of the hearing. In my view TSN as the successful party is entitled to partial indemnity of $3,500. I think that the Ice Dogs should indemnify TSN and the OHL in that amount. The OHL was unsuccessful, but it was brought in to court by the Ice Dogs (not then represented by Mr Marshall), who unnecessarily revealed what had been confidential information on the ex parte motion. The motion was, as I said at the time, frivolous. It could have been sought in any event with redacted materials. I see an order for costs against the Ice Dogs and in favour of the OHL not as punishment, but as a reasonably foreseeable indemnity to a party that would have been expected to respond.

[15] I order the Ice Dogs to pay $3,500 costs to each of TSN and the OHL, forthwith.

J.A. Ramsay J.

Date: 2019-04-26