Carcillo v. Canadian Hockey League, 2022 ONSC 1118

Court File and Parties

COURT FILE NO.: CV-20-00642705-00CP DATE: 20220217 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL CARCILLO and GARRETT TAYLOR Plaintiffs

• and - ONTARIO MAJOR JUNIOR HOCKEY LEAGUE, CANADIAN HOCKEY LEAGUE, WESTERN HOCKEY LEAGUE, QUEBEC MAJOR JUNIOR HOCKEY LEAGUE, BARRIE COLTS JUNIOR HOCKEY LTD., GUELPH STORM LTD., HAMILTON BULLDOGS FOUNDATION INC., KINGSTON FRONTENACS HOCKEY LTD., KITCHENER RANGERS JR. A. HOCKEY CLUB, LONDON KNIGHTS HOCKEY INC., MISSISSAUGA STEELHEADS HOCKEY CLUB INC., 2325224 ONTARIO INC. o/a MISSISSAUGA STEELHEADS, NIAGARA ICEDOGS HOCKEY CLUB INC., NORTHBAY BATTALION HOCKEY CLUB LTD., OSHAWA GENERALS HOCKEY ACADEMY LTD., OTTAWA 67’S LIMITED PARTNERSHIP c.o.b. OTTAWA 67S HOCKEY CLUB, THE OWEN SOUND ATTACK INC., PETERBOROUGH PETES LIMITED, 649643 ONTARIO INC. o/a 211 SSHC CANADA ULC o/a SARNIA STING HOCKEY CLUB, SOO GREYHOUNDS INC., SUDBURY WOLVES HOCKEY CLUB LTD., WINDSOR SPITFIRES INC., MCCRIMMON HOLDINGS, LTD., 32155 MANITOBA LTD., A PARTNERSHIP c.o.b. as BRANDON WHEAT KINGS, BRANDON WHEAT KINGS LIMITED PARTNERSHIP, CALGARY FLAMES LIMITED PARTNERSHIP, CALGARY SPORTS AND ENTERTAINMENT CORPORATION, EDMONTON MAJOR JUNIOR HOCKEY CORPORATION, KAMLOOPS BLAZERS HOCKEY CLUB, INC., KAMLOOPS BLAZERS HOLDINGS LTD., KELOWNA ROCKETS HOCKEY ENTERPRISES LTD., PRINCE ALBERT RAIDERS HOCKEY CLUB INC., EDGEPRO SPORTS & ENTERTAINMENT LTD., QUEEN CITY SPORTS & ENTERTAINMENT GROUP LTD., BRAKEN HOLDINGS LTD., REBELS SPORTS LTD., SASKATOON BLADES HOCKEY CLUB LTD., VANCOUVER JUNIOR HOCKEY LIMITED PARTNERSHIP and VANCOUVER JUNIOR HOCKEY PARTNERSHIP, LTD c.o.b. VANCOUVER GIANTS, WEST COAST HOCKEY LLP, WEST COAST HOCKEY ENTERPRISES LTD., o/a VICTORIA ROYALS, MEDICINE HAT TIGERS HOCKEY CLUB LTD., 1091956 ALTA LTD. o/a THE MEDICINE HAT TIGERS, SWIFT CURRENT TIER 1 FRANCHISE INC. and SWIFT CURRENT BRONCOS HOCKEY CLUB INC. o/a SWIFT CURRENT, ICE SPORTS & ENTERTAINMENT INC. o/a WINNIPEG ICE, MOOSE JAW TIER 1 HOCKEY INC. D.B.A. MOOSE JAW and MOOSE JAW WARRIORS TIER 1 HOCKEY, INC. WARRIORS o/a MOOSE JAW WARRIORS, LETHBRIDGE HURRICANES HOCKEY CLUB, 649643 ONTARIO INC. c.o.b. as SARNIA STING, KITCHENER RANGER JR A HOCKEY CLUB and KITCHENER RANGERS JR “A” HOCKEY CLUB, LE TITAN ACADIE BATHURST (2013) INC., CLUB DE HOCKEY JUNIOR MAJEUR DE BAIE-COMEAU INC. o/a DRAKKAR BAIE-COMEAU, CLUB DE HOCKEY DRUMMOND INC. o/a VOLTIGEURS DRUMMONDVILLE, CAPE BRETON MAJOR JUNIOR HOCKEY CLUB LIMITED o/a SCREAMING EAGLES CAPE BRETON, LES OLYMPIQUES DE GATINEAU INC., HALIFAX MOOSEHEADS HOCKEY CLUB INC., CLUB HOCKEY LES REMPARTS DE QUEBEC INC., LE CLUB DE HOCKEY JUNIOR ARMADA INC., MONCTON WILDCATS HOCKEY CLUB LIMITED, LE CLUB DE HOCKEY L’OCEANIC DE RIMOUSKI INC., LES HUSKIES DE ROUYN-NORANDA INC., 8515182 CANADA INC. c.o.b. CHARLOTTETOWN ISLANDERS, LES TIGRES DE VICTORIAVILLE (1991) INC., SAINT JOHN MAJOR JUNIOR HOCKEY CLUB LIMITED, CLUB DE HOCKEY SHAWINIGAN INC. o/a CATARACTES SHAWNIGAN, CLUB DE HOCKEY JUNIOR MAJEUR VAL D’OR INC. o/a VAL D’OR FOREURS, 7759983 CANADA INC. c.o.b. AS CLUB DE HOCKEY LE PHOENIX, 9264-8849 QUEBEC INC. c.o.b. as GROUPE SAGS 7-96 AND LES SAGUENEENS, JAW HOCKEY ENTERPRISES LP c.o.b. ERIE OTTERS, IMS HOCKEY c.o.b. FLINT FIREBIRDS, SAGINAW HOCKEY CLUB, L.L.C., EHT, INC., JOHN DOE CORP. A o/a EVERETT SILVERTIPS HOCKEY CLUB , WINTERHAWKS JUNIOR HOCKEY LLC, PORTLAND WINTER HAWKS INC., THUNDERBIRDS HOCKEY ENTERPRISES, L.L.C., JOHN DOE CORP. B. o/a SEATTLE THUNDERBIRDS , BRETT SPORTS & ENTERTAINMENT, INC., HAT TRICK, INC., JOHN DOE CORP. C o/a SPOKANE CHIEFS , TRI-CITY AMERICANS HOCKEY LLC, and TOP SHELF ENTERTAINMENT, INC. and JOHN DOE CORP. D o/a TRI-CITY AMERICANS Defendants

Proceeding under the Class Proceedings Act, 1992

Counsel: James Sayce and Sue Tan for the Plaintiffs Ranjan K. Agarwal, Ashley Paterson, and Nina Butz for the Defendants

HEARD: February 15, 2022

PERELL, J.

Reasons for Decision

Overview

1The Plaintiffs Daniel Carcillo and Garret Taylor commenced this action under the Class Proceedings Act, 1992, on June 18, 2020. They allege that the Defendants, which are comprised of hockey leagues and hockey teams have acted in concert in perpetuating a toxic system which condones violent, discriminatory, racist, sexualized, and homophobic conduct, including physical and sexual assault, on the proposed Class Members who are the players on their hockey teams.

2The Plaintiffs assert claims in systemic negligence, systemic breaches of fiduciary duty and breaches of common standard form contracts. The Plaintiffs plead that the Defendants are jointly and severally liable for their systemic failures.

Background

3On June 26, 2020, one week after this class proceeding was commenced, the Canadian Hockey League (“CHL”), one of the defendants, announced that it would appoint an Independent Review Panel to review the effectiveness of current policies and practices that relate to hazing, abuse, harassment, and bullying and the allegation that players do not feel comfortable reporting behaviours that contravene these policies.

4On July 23, 2020, the CHL announced the three members of the Independent Review Panel: (a) Sheldon Kenney, junior hockey abuse survivor, NHL veteran, and co-founder of the Respect Group; (b) Camille Thériault, former Premier of New Brunswick; and, (c) Danièle Sauvageau, a former RCMP officer known for her extensive experience in investigation, public safety, high level sport, business and sport coaching.

5Meanwhile, for the purposes of a pending certification motion, Mr. Carcillo and Mr. Taylor delivered affidavits describing their experience while playing hockey while they were minors.

6The parties have served 43 affidavits for the plaintiffs’ certification motion. In December 2020, the plaintiffs served 16 affidavits from former players, as well as an expert report from Dr. Jay Johnson. In October 2021, the defendants served 21 affidavits from various people involved in junior hockey in Canada, including 8 former players. In December 2021, the plaintiffs served 4 more affidavits from some of their witnesses.

7On October 31, 2020, The Independent Review Panel completed its report (“IRP Report”). It was released to the public on January 21, 2022 when it was posted on the CHL website.

The Motion

8Before the public release of the report, the Plaintiffs’ brought a motion seeking disclosure of the IRP Report. However, with the public release of the report, the Plaintiffs changed course. They attached the report to the affidavit of Catherine MacDonald, a law clerk in Class Counsel’s office, and served it as additional evidence for the certification motion.

9The Plaintiffs then revised their motion to compel the production of the IRP Report.

a. The Plaintiffs seek a ruling that the affidavit of Catherine MacDonald dated January 27, 2022, is admissible evidence for use on the certification motion. b. In the alternative, if the court rules that some testing of the IRP Report is necessary, the Plaintiffs request a direction that the examinations proceed via written interrogatory and be limited to: (a) the authentication of the IRP Report; and, (b) confirmation that the IRP Report accurately reflects the work of the IRP Members. c. In the further alternative, if full cross-examinations are necessary, the Plaintiffs request that the court issue the interprovincial certificate order so that the IRP Members can be cross-examined. d. In addition, the Plaintiffs request that the court direct this motion for the admission of the IRP Report be treated as "Phase 1" of the certification motion. Phase 1 would be adjourned when the reasons on this motion are delivered and would resume at "Phase 2" of the certification motion on June 13, 2022.

10It should be noted that Sheldon Kenney, Camille Thériault, and Danièle Sauvageau are not Ontario residents and that for any of them to be cross-examined for the purposes of obtaining their testimony for the certification motion, resort must be had to s. 5 of the Interprovincial Summonses Act, which states:

5 (1) Where a party to a proceeding in Ontario causes a summons to be issued for service in another province, the party may attend upon a judge of the Superior Court of Justice, who shall hear and examine the party or the party’s counsel if any, and, upon being satisfied that the attendance in Ontario of the person required in Ontario as a witness,

(a) is necessary for the due adjudication of the proceeding in which the summons or other document has been issued; and

(b) in relation to the nature and importance of the proceeding, is reasonable and essential to the due administration of justice in Ontario,

shall sign a certificate which may be in the form prescribed under subsection 2 (3) and shall cause the certificate to be impressed with the seal of the court.

Certificate

(2) The certificate shall be either attached to or endorsed on the summons.

11The Defendants do not oppose this court granting an interprovincial summons to examine the authors of the IRP Report. The Defendants have advised the court that they waive the confidentiality or non-disclosure provisions in the contracts with Sheldon Kenney, Camille Thériault, and Danièle Sauvageau. The Defendants have agreed to cooperate so that the cross-examination of affiants and the cross-examination of witnesses summonsed to give evidence on the certification motion can be completed on schedule.

Analysis

12In effect, in their revised motion, the Plaintiffs are seeking an advance ruling on the admissibility of their own evidence. The Plaintiffs then wish to hedge their bets, so to speak, by asking the court to issue a certificate under the Interprovincial Summonses Act, and then they seek advance rulings on the conduct of the cross-examinations of Sheldon Kenney, Camille Thériault, and Danièle Sauvageau.

13While there is jurisdiction for a court making a preliminary ruling to strike affidavit evidence proffered for a certification motion, there is no precedent or jurisdiction for an advance ruling on whether a party’s own evidence should be admitted in a civil proceeding and apart from discovery plans, there is no jurisdiction to determine in advance the propriety of questions asked at an examination.

14Certification motions are motions governed by the Rules of Civil Procedure and should proceed accordingly. In the circumstances of the immediate case, that means that the only appropriate order to make is for the court to provide a certificate under the Interprovincial Summonses Act and to leave it to the parties to proceed in accordance with the normal rules of procedure for interlocutory motions.

Disposition

15Order accordingly. The Plaintiffs’ motion is otherwise dismissed with costs in the cause of the certification motion.

Perell, J.