COURT FILE NO.: CV-20-00642705-00CP

DATE: 2023/09/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL CARCILLO. GARRETT TAYLOR, and STEPHEN QUIRK

Plaintiffs

• and -

ONTARIO MAJOR JUNIOR HOCKEY LEAGUE, CANADIAN HOCKEY LEAGUE, WESTERN HOCKEY LEAGUE, QUÉBEC 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 67's 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 THE 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 QUÉBEC INC., LE CLUB DE HOCKEY JUNIOR ARMADA INC., MONCTON WILDCATS HOCKEY CLUB LIMITED, LE CLUB DE HOCKEY L’OCÉANIC DE RIMOUSKI INC., LES HUSKIES DE ROUYNNORANDA INC., 8515182 CANADA INC. c.o.b. as 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 QUÉBEC INC. c.o.b. as GROUPE SAGS 7-96 AND LES SAGUENÉENS, JAW HOCKEY ENTERPRISES LP c.o.b. ERIE OTTERS, IMS HOCKEY c.o.b. FLINT FIREBIRDS, SAGINAW HOCKEY CLUB, L.L.C., EHT, INC., WINTERHAWKS JUNIOR HOCKEY LLC, PORTLAND WINTER HAWKS INC., THUNDERBIRDS HOCKEY ENTERPRISES, L.L.C., BRETT SPORTS & ENTERTAINMENT, INC., HAT TRICK, INC., TRI-CITY AMERICANS HOCKEY LLC, and TOP SHELF ENTERTAINMENT, INC.

Defendants

Proceeding under the Class Proceedings Act, 1992

• James Sayce, Vlad Calina, and Caitlin Leach for the Plaintiffs.

• Michael Eizenga, Gannon Beaulne, Ethan Schiff, Nina Butz, and Marshall Torgov for the Defendants.

• Crawford Smith, Nadia Campion, Carter Liebzeit, Tim Pinos, Kate Byers, and Hardeep Dhaliwal for the 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 John Doe Corp. D o/a Tri-City Americans.

Hearing: August 29, 2023

Contents

A. Introduction. 3

B. The Parties’ Response to the Certification Motion, Jurisdiction Motion, and the Ragoonanan Motion Decisions. 5

C. The Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion. 6

D. The Invocation of Section 7. 11

E. The Function and Functioning of Section 7 of the Class Proceedings Act, 1992. 17

F. Synopsis of the Plaintiffs’ Section 7 Plan. 20

G. Synopsis of the Defendants’ Section 7 Plan. 22

H. Critique of the Parties’ Notices, Notice Plans, and Section 7 Plans. 24

I. The Court’s Section 7 Plan Proposal 27

J. Explanation and Analysis of the Draft Section 7 Plan. 32

K. Conclusion. 36

Schedule A: Abuse of Players in the Canadian Hockey League- Individual Issues Protocol 38

Schedule “B”: Abuse of Players in the Canadian Hockey League IIP- Notice and Dissemination Plan 53

Schedule C - Common Discovery Order 58

Schedule D: Defendants’ Joinder Actions Protocol 62

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] This motion requires the court to solve a problem of procedural logistics. How does Ontario’s Superior Court of Justice deliver access to justice to 15,000 plaintiffs who as a group have sued seventy eight defendants but whose proposed class action has been dismissed?

[2] The three Plaintiffs are former amateur hockey players. They brought a proposed class action on behalf of 15,000 amateur hockey players, who for over a half-century, played for Junior A hockey teams. The Plaintiffs sued 60 hockey teams, the Canadian Hockey League (“CHL”), the Western Hockey League (“WHL”), the Ontario Hockey League (“OHL”), and the Québec Major Junior Hockey League (“QMJHL”).

[3] I dismissed the Certification Motion, which was brought by the Plaintiffs, and I granted a Ragoonanan Motion, which was brought by the Defendants. However, pursuant to Section 7 of the Class Proceedings Act, 1992,[^1] I also provided the Plaintiffs with the option of transitioning their proposed class action by continuing it as “one or more proceedings between different parties.” The proposed class action could proceed in an altered form.

[4] Pursuant to Section 7, I gave the Plaintiffs the option of transitioning their proposed class action into up to 60 joinder actions to be populated by up to 15,000 co-plaintiff Players. The precise number of co-plaintiffs was unknown because the putative Class Members, that is, the Players would have to opt-into one or more of the up to 60 joinder actions.

[5] Since the number of co-plaintiffs is unknown, and since the substantive liability of the Defendants has yet to be determined, transitioning would be complicated and challenging. Transitioning would involve the court approving: (a) a Notice, (b) a Notice Plan (a plan of distribution of the notice); and (b) a Section 7 Plan.

[6] Unfortunately, in my Reasons for Decision permitting a Section 7 motion, I inaptly described what was required to be approved as an “Individual Issues Protocol”. What needed to be approved is better described as a Notice, a Notice Plan, and a Section 7 Plan.

[7] The Plaintiffs took up the Section 7 option. There was a case management conference, and I scheduled a motion to proceed in three phases for the approval of the plans. Hearings were scheduled for August 29, 2023, September 13, 2023, and September 27, 2023. This motion is Phase 1.

[8] For Phase 1, as their Section 7 Plan, the Plaintiffs submitted for the court’s approval, the plans that are attached as Schedules A, B, and C. The Defendants raised objections, and they submitted a counterproposal. The Defendants submitted the Section 7 Plan that is attached as Schedule D.

[9] At the Phase 1 hearing, although the Plaintiffs had not sued Hockey Canada, it made an appearance as an affected non-party. Hockey Canada was an affected party because the Plaintiffs’ proposed Section 7 Plan, most particularly Schedule C of the Plan, required information about what assets the Defendants may have to satisfy judgments, and Hockey Canada has insurance policies and self-insurance or reserve funds that might be available to the Defendants to satisfy their exposure to liability. The Plaintiffs argued that Hockey Canada could be regarded as an insurer of the Defendants.

[10] Although the competing Section 7 Plans had some good ideas, upon analysis and as I shall explain below, I found that the parties’ Section 7 Plans missed Section 7’s overall target of access to justice, behaviour modification, and judicial economy in a way that was procedurally fair to both the Plaintiffs and the Defendants and that took into account what had already been determined at the Plaintiffs’ Certification Motion, which I dismissed, the Defendants’ Jurisdiction Motion, which I dismissed, and the Defendants’ Ragoonanan Motion, which I granted.

[11] The night before the Phase 1 hearing, I circulated for discussion purposes a “Draft Section 7 Notice” for the parties’ consideration. This Draft Section 7 Plan is described and explained later in these Reasons for Decision.

[12] At the Phase 1 hearing the next day, both parties advised me that with some reservations and some clarifications and some questions, the Draft Section 7 Plan could solve the procedural logistics problem of delivering access to justice to 15,000 plaintiffs who as a group have sued 78 Defendants but whose proposed class action has been dismissed. I advised the parties that the Draft Section 7 Plan was just a draft and that after our discussion, both parties would be provided with an opportunity to present revised drafts. Both parties advised me that they were prepared to discuss the Draft Section 7 Plan. The next five hours of Phase 1 were spent discussing the Draft Section 7 Plan.

[13] At the conclusion of what might be described as a roundtable discussion rather than the argument of a motion, I directed the parties: (a) to exchange revised drafts by September 5, 2023; (b) then to meet and consult about the revised drafts; and then (c) by September 12, 2023 submit for the court’s consideration their respective revised drafts. The review of the revised drafts would be the subject matter of the Phase 2 hearing scheduled for September 13, 2023.

[14] I promised the parties Reasons for Decision for Phase 1, but I encouraged them to immediately begin working on revising the Draft Section 7 Plan. These are the promised Reasons for Decision for Phase 1.

B. The Parties’ Response to the Certification Motion, Jurisdiction Motion, and the Ragoonanan Motion Decisions.

[15] In response to the dismissal of the Certification Motion and the granting of the Ragoonanan Motion, the Plaintiffs appealed; however, the Plaintiffs also brought this motion for approval of a Section 7 Plan.

[16] By consent order of the Court of Appeal, the appeal of the Certification Motion decision and the Ragoonanan Motion decision has been suspended, i.e., held in abeyance, pending the outcome of the Section 7 Plan motion.

[17] Because it was envisioned that it would require more than one attendance to develop the Section 7 Plan, this motion was scheduled to proceed in three phases on August 29, 2023, September 13, 2023, and September 27, 2023.

[18] For Phase 1 of this motion, the Plaintiffs delivered: (a) Motion Record (560 pages); (b) Supplementary Motion Record (84 pages); (c) Second Supplementary Motion Record (60 pages); (d) Third Supplementary Motion Record (2,599 pages); (e) the affidavits dated June 5, 2023 August 1, 2023, August 25, 2023, and August 29, 2023 of Catherine MacDonald, who is a law clerk of Koskie Minsky, LLP, the Plaintiffs’ Counsel; (f) the affidavit dated June 2, 2023 of Dr. David Wolfe, a Registered Psychologist and adjunct professor and research scholar at the Centre for Research and Education on Violence against Women and Children at Western University; (g) the affidavit dated June 2, 2023 of Dr. Peter Jaffe, a Registered Psychologist and Professor Emeritus in the Faculty of Education at Western University; (h) a factum (174 pages); (i) a reply factum (50 pages); and (j) a reply factum (20 pages) to the factum submitted by Hockey Canada.

[19] For Phase 1 of this motion, the Defendants delivered: (a) Responding Motion Record (90 pages); (b) the affidavit dated July 14, 2023 of Tara Pirog, who is a legal assistant with Bennett Jones LLP, Defendants’ Counsel; and (c) a factum (89 pages).

[20] For Phase 1 of this this motion, Hockey Canada delivered a factum (14 pages).

[21] On this motion, the Plaintiffs’ sought: (a) an Order approving the Individual Issues Protocol, which is attached as Schedule A; (b) an Order approving the Notice and Dissemination Plan, which is attached as Schedule B; and (c) an Order substantially in the form of the Common Discovery Order, which is attached as Schedule C.

[22] The Defendants opposed Schedules A, B, and C. The Defendants submitted instead, what they labelled a “Joinder Actions Protocol.” This protocol is attached as Schedule D.

C. The Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion

[23] Pursuant to Ontario’s Class Proceedings Act, 1992, Daniel Carcillo, Garrett Taylor, and Stephen Quirk brought a proposed class action. They sued 60 hockey teams that competed at the highest level of junior amateur hockey in Canada. The 60 hockey teams were owned by 74 defendants situated in every Canadian province, except Newfoundland and Labrador, and also in four American states.

[24] The Plaintiffs also sued the Western Hockey League (“WHL”), the Ontario Hockey League (“OHL”), (formerly the Ontario Major Junior Hockey League (“OMJHL”)), and the Québec Major Junior Hockey League (“QMJHL”). The Plaintiffs also sued the Canadian Hockey League (“CHL”), which was founded by and is the creation of the WHL, OHL, and the QMJHL. The 60 hockey teams are members of the CHL.

[25] Messrs. Carcillo, Taylor, and Quirk sued on behalf of a class of 15,000 putative Class Members defined as:

All former and current players who claim to have suffered the “abuse” while playing in the CHL League between May 8, 1975 and the present.”

"Family Class" means "all parents, spouses, siblings, and children of Class Members.

[26] Messrs. Carcillo, Taylor, and Quirk made May 8, 1975 the starting date for the forty-eight-year Class Period because that was the day that the WHL, OMJHL, and QMJHL founded the CHL.

[27] The fundamental purposes of the Plaintiffs’ lawsuit were: (a) behaviour modification, i.e., ending a culture of “abuse” that putrefied organized amateur hockey in Canada; and (b) access to justice. i.e., imposing a collective liability to pay compensation to the victims of the “abuse.” The Fresh as Amended Statement of Claim defined “abuse” as follows:

“Abuse” means, inter alia, physical, and sexual assault, hazing, bullying, physical and verbal harassment, sexual harassment, forced consumption of alcohol and illicit drugs, and the use of homophobic, sexualized and/or racist slurs directed against minors playing in the Leagues, perpetrated by players, coaches, staff, servants, employees, and agents of the Leagues, including players, coaches, staff, servants, employees, and agents of the teams, as further particularized herein.

[28] Messrs. Carcillo, Taylor, and Quirk sued the Defendants - collectively - for what is described as a culture of silence that hides a predatory, perverse, culture of violence, hazing, bullying, harassment, and assaults. They advanced four causes of action against the collective of the WHL, OHL, QMJHL, CHL, and the 60 teams, namely: (a) breach of fiduciary duty; (b) systemic negligence; (c) vicarious liability; and (d) breach of Québec causes of action.

[29] The Defendants did not deliver Statements of Defence and Messrs. Carcillo, Taylor, and Quirk moved for certification of their action as a class action. The Defendants opposed certification, and the Defendants brought two countermotions.

[30] The Defendants’ brought a “Jurisdiction Motion”. The WHL, QMJHL, and their 40 teams (but not the CHL, OHL, and their 20 OHL teams) sought to permanently stay Messrs. Carcillo, Taylor, and Quirk’s action as against them because these defendants submitted that this court does not have jurisdiction simpliciter to decide the dispute.

[31] The Defendants brought a “Ragoonanan Motion.” Since Messrs. Carcillo, Taylor, and Quirk respectively were members of only five teams, the other 55 teams from the WHL, OHL, and QMJHL sought to have the Plaintiffs’ action dismissed against them pursuant to the so-called “Ragoonanan Principle,”[^2] which is authority that in a proposed class action, there must be a representative plaintiff with a claim against each defendant.

[32] Notwithstanding their opposition to the Certification Motion and notwithstanding their two countermotions, all the Defendants asserted that the Plaintiffs, and the putative Class Members’ who experienced the “abuse” deserved access to justice in criminal proceedings or in individual actions against the perpetrators of the “abuse”. The Defendants submitted, however, that a class proceeding was not the preferable procedure to bring the perpetrators to justice.

[33] I pause here to emphasize that although the Defendants opposed the proposed class action as the route, the Defendants emphatically and passionately asserted that the hockey players who were victims of the “abuse” should have access to justice.

[34] There was a four-day hearing of the Plaintiffs’ Certification Motion and the Defendants’ two countermotions. For present purposes, it shall be pertinent to note that there was an enormous evidentiary record for the certification motion. The Plaintiffs proffered 21 witnesses. The Defendants proffered 21 witnesses. The written evidentiary record for the three motions comprised over 8,500 pages. There were 10 factums (600 pages).

[35] I heard the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion, and I arrived at the following findings and conclusions:[^3]

a. This court has jurisdiction simpliciter over all of the Defendants; therefore, the Jurisdiction Motion is dismissed.

b. There are no collective causes of action; therefore, the Plaintiffs cannot be Representative Plaintiffs for claims against 55 teams of the CHL; therefore, the Ragoonanan Motion is granted.

c. The Certification Motion is dismissed. The Plaintiffs failed to satisfy all the certification criteria.

d. However, the dismissal Order is suspended pending the determination of a motion for approval of an Individual Issues Protocol. (As noted above, the Individual Issues Protocol is better described as a Section 7 Plan.)

e. Pursuant to Section 7 of the Class Proceedings Act, 1992, it was ordered that Messrs. Carcillo, Taylor and Quirk shall have 120 days, if so advised: (a) to prepare an “Individual Issues Protocol” for individual (discreet/separate) joinder-actions against the WHL, OHL, or QMJHL, respectively and their teams respectively; and (b) to bring a motion for approval of the Individual Issues Protocol (i.e., the Section 7 Plan), failing which the proposed class action shall be dismissed.

f. Pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992, it was ordered that Messrs. Carcillo, Taylor and Quirk shall have 120 days, if so advised: (a) to prepare a Notice to the Class Members of the Individual Issues Protocol and a Distribution Plan for the dissemination of the Notice at the expense of the Defendants (i.e., the Section 7 Plan); and (b) to bring a motion for approval of the Notice and of the Dissemination Plan, failing which Messrs. Carcillo, Taylor, and Quirk’s proposed class action shall be dismissed.

[36] With respect to these findings and conclusions, for the purposes of Phase 1 of this motion to determine a Section 7 Plan, it shall be pertinent to note that there is no longer any question about the jurisdiction of this court to adjudicate the claims against the 20 Ontario teams and the 40 non-Ontario defendant hockey teams.

[37] The Defendants, however, assert that in any Section 7 Plan, they should have the right to challenge this court’s jurisdiction on the grounds of forum non conveniens. I disagree. The jurisdictional issues are res judicata by virtue of the doctrine of issue estoppel.

[38] Whether Ontario’s superior court can and should adjudicate up to 60 joinder actions for teams from nine Canadian provinces and four American states was fully canvased as an aspect of the Certification Motion, the Jurisdiction Motion and the Ragoonanan Motion. Non conveniens is a jurisdictional challenge that could have been and ought to have been raised during the Jurisdiction Motion itself and as an aspect of the preferable procedure criterion of the certification motion. The Defendants did not appeal the Certification Motion decision or the Jurisdiction Decision. The Defendants are foreclosed from raising any jurisdiction or venue issues as an aspect of determining a Section 7 Plan.

[39] For the present purposes of approving a Section 7 Plan for the immediate case, it is also pertinent to note that notwithstanding the Defendants’ purported reservation of rights to challenge joinder, which is a major ingredient of their proposed Section 7 Plan, there is no longer any question that up to 60 joinder actions can be commenced in the immediate case without challenge. The test for joinder is satisfied in the immediate case.

[40] The test for joinder is satisfied for two reasons. First, by its literal language Section 7 empowers the court to permit the proceeding to continue as one or more proceedings, and I shall be permitting up to 60 joinder actions, one for each of the 60 teams that have already been sued.

[41] Second, the criteria for a joinder under the Rules of Civil Procedure[^4] have already been satisfied. Apart from the authority provided by Section 7 of the Class Proceedings Act, 1992, a fundamental principle of s. 138 of the Courts of Justice Act[^5]is that: “As far as possible, multiplicity of legal proceedings shall be avoided.” The Rules of Civil Procedure provide very robust joinder rules for the joinder of plaintiffs, the joinder of defendants, and the joinder of causes of action. Rules 5.01, 5.02, and 5.03 or the Rules of Civil Procedure state:

Joinder of Claims

5.01 (1) A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant has against an opposite party.

(3) Where there is more than one defendant or respondent, it is not necessary for each to have an interest in all the relief claimed or in each claim included in the proceeding.

Joinder of Parties

Multiple Plaintiffs or Applicants

5.02 (1) Two or more persons who are represented by the same lawyer of record may join as plaintiffs or applicants in the same proceeding where,

(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding; or

(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.

Multiple Defendants or Respondents

(2) Two or more persons may be joined as defendants or respondents where,

(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;

(b) a common question of law or fact may arise in the proceeding;

(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;

(d) damage or loss has been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief or the respective amounts for which each may be liable; or

(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice.

Joinder of Necessary Parties

General Rule

5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.

[42] In the immediate case, with respect to the criteria for rules 5.01, 5.02, and 5.03, for each of up to 60 joinder actions to be commenced in Ontario:

a. there are a group of co-plaintiffs that advance the identical causes of action arising from the “abuse” against the hockey team of which the group was a player, the hockey team’s league (WHL, OHL, or QMJHL), and the CHL, all of whom have an interest in the relief being claimed against them.

b. the group of co-plaintiffs advance claims arising out of the same occurrences or series of occurrences in which they were victims of the “abuse.”

c. common questions of law and fact will arise;

d. joining the plaintiffs, defendants, and causes of action in the same proceeding will promote the convenient administration of justice; and

e. the presence of all of the co-defendants is necessary to enable the court to adjudicate effectively and completely on the issues in the proceedings.

[43] Rule 5.01 provides for the joinder of parties and causes of action arising from claims to relief arising from a series of occurrences, which is more than adequate to cover a series of occurrences that are the consequences of a reptilian culture of physical, and sexual assault, hazing, bullying, physical and verbal harassment, sexual harassment, etc.

[44] That the players, coaches, staff, servants, employees, and agents of the 60 teams changed over fifty years does not undermine the joinder of parties and causes of action any more than the comings and goings of priests and ministers at the 139 Indian Residential Schools across Canada from the 1860s until the 1990s would not have undermined the joinder of parties and causes of action in the Indian Residential School class actions. The test for joinder was satisfied in that infamous abuse case; it is satisfied in the immediate infamous abuse case.

[45] In other words, pursuant to a Section 7 Plan, there is no basis to challenge a joinder order in the immediate case until after the pleadings have closed and documentary discovery has been completed. Once that much progress is made in the actions, either party could avail themselves of Rule 5.05, which states:

Relief against Joinder

5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,

(a) order separate hearings;

(b) require one or more of the claims to be asserted, if at all, in another proceeding;

(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;

(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or

(e) make such other order as is just.

[46] It is worth clarifying the last point. The Draft Section 7 Plan envisions the commencement and the pleading of up to 60 joinder actions. Once the up to 60 joinder actions are assigned to a judge for multilateral case management, then either party may apply for severances. For example, this prospect would accommodate test cases, bellwether cases, or single Player claims that required individual treatment.

D. The Invocation of Section 7

[47] In my Reasons for Decision, at paragraphs 12-31 and 441-458, I explained why and to a certain extent I explained how, the proposed class action could be transitioned into joinder actions pursuant to an “Individual Issues Protocol”, which, as I have mentioned several times, is better described as a Notice, a Notice Plan, and a Section 7 Plan. In my Reasons for Decision, at paragraphs 12-31 and 441-458, I stated:

Overview: Construction of an Individual Issues Protocol

12. In the immediate case, all the parties agree that there should be access to justice for what happened to some of the putative Class Members.

13. As is apparent from the above introduction, which foreshadows the outcomes of the Jurisdiction Motion, the Ragoonanan Motion, and the Certification Motion, in the immediate case, the route to access to justice begins as a proposed national opt-out class action under s. 5 of the Class Proceedings Act, 1992 but continues as national opt-in joinder actions pursuant to sections 7, 12, and 25 and an Individual Issues Protocol for the joinder actions.

14. Explaining why this action moves from s. 5 of the Class Proceedings Act, 1992 to sections 7, 12, and 25 involves describing the Defendants’ piece-by-piece deconstruction of the Plaintiffs’ proposed class action and the construction of an Individual Issues Protocol from the pieces.

15. A Certification Motion is just a procedural motion. It is about the ways and means - the procedure - to the ends or goals of achieving procedural and substantive justice, behaviour modification, and judicial economy in a procedurally fair way to both the plaintiffs and the defendants.

16. In this intensely contested Jurisdiction Motion, Ragoonanan Motion, and Certification Motion, the opposing parties do agree on one thing about ways and means. They agree about the ends. The opposing parties passionately agree that the players of the CHL, WHL, OHL, and QMJHL should have the ways and means to access justice for the disgraceful wrongdoings that have occurred.

17. The opposing parties, however, passionately disagree about the precise ways and means to achieve that end. The Plaintiffs submit that s. 5, i.e., a certified class action is the only route to access to justice. […]

18. The Defendants disagree, and they submit that individual actions are the only route to access to justice. […] Quoting from their factum, the Defendants say: […]

19. The Defendants challenge and dismantle the Plaintiffs’ proposed class action. The Defendants ultimately do not dispute that - as individuals - Messrs. Carcillo, Taylor, and Quirk have some causes of action against five teams; however, the Defendants through the Jurisdiction Motion, the Ragoonanan Motion, and their resistance to the Certification Motion deconstruct, in the sense of dismantling - the collective aspects - of the proposed class action.

20. What, however, emerges from the Defendants’ deconstruction, is that the Jurisdiction Motion is dismissed, the Ragoonanan Motion is granted, and the Certification Motion is dismissed. And, it is the dismissal of the Certification Motion that opens the door to an Order pursuant to sections 7, 12, and 25 of the Class Proceeding Act, 1992 to establish a national opt-in Individual Issues Protocol for joinder actions against the respective teams that may be liable for systemic negligence, vicarious liability and or the Québec causes of action.

21. I agree with the parties that the abused players of the WHL, OHL, QJMHL should have the ways and the means to achieve access to justice. In my opinion, this court in Ontario has the jurisdiction simpliciter and the ways and means to provide that route for the players of the 60 teams of the WHL, OHL, and QJMHL. That route is pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992 and an Individual Issues Protocol.

22. As I shall explain below, the Jurisdiction Motion, which was brought by the 22 teams of the WHL, the 18 teams of the QMJHL, and the WHL and QMJHL is dismissed because there is a real and substantial connection between this court and the Plaintiffs and all of these Defendants. The Defendants carry on business in Ontario. And, in any event, Ontario has a real and substantial connection severally with each and every of the 60 hockey teams and the WHL, OHL, QMJHL, and CHL.

23. As I shall explain further below, the Ragoonanan Motion is granted. Although this court has jurisdiction simpliciter as against all 60 teams, Messrs. Carcillo, Taylor, and Quirk have only individual actions against five teams and the leagues to which those teams are members. There is no “collective liability causes of action” in the immediate case. The case at bar needs a plaintiff to have a cause of action against every particular defendant. The result is that there are potential claims against 55 teams, for whom there is no named plaintiff to pursue those claims. Thus, the Ragoonanan Motion should be granted.

24. To use Mr. Taylor as an example, he has an individual causes of action for systemic negligence (also non-systemic negligence) and vicarious liability to pursue as against the WHL and the CHL and its teams from Lethbridge and Prince Rupert; however, he has no legally viable claims against the other teams of the WHL or the other teams of the CHL or against the OHL and the QMJHL; there is no collective liability. The claims against Defendants that did not engage in a concerted wrongdoing against Mr. Taylor are doomed to failure.

25. When there is a so-called Ragoonanan Problem, often the proposed representative plaintiffs are offered an opportunity to fix the problem by recruiting additional plaintiffs. In the immediate case, this solution is not available, because it would be meaningless, since Messrs. Carcillo, Taylor, and Quirk’s proposed class action is not certifiable. Their proposed class action asserting a collective liability fails the cause of action criterion, the common issues criterion, the preferable procedure criterion, and the representative plaintiff criterion because of the Ragoonanan problem and because of an unworkable litigation plan.

26. The proposed class action is not certifiable because its major or fundamental premise, which is that each of the 60 member teams of the WHL, OHL, QMJHL, or CHL are jointly and severally liable for each other’s wrongdoings regardless of whether the particular team participated in the wrongdoing is incorrect and not legally viable. Moreover, if the premise were correct (but it is not), the proposed class action would fail all the other certification criteria except the identifiable class criterion. An abused hockey player has only individual causes of action against his own team and his own leagues.

27. If the proposed class action is treated as individual causes of actions by the putative Class Members for non-collective causes of action for breach of fiduciary duty, systemic negligence, vicarious liability, and breach of the Québec causes of action, the cause of action criterion would be satisfied for all but the breach of fiduciary duty claim.

28. So much for deconstruction; the certification motion must be dismissed. However, there are realistic avenues to accountability and access to justice. Pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992, an Individual Issues Protocol can be fashioned to provide access to justice against the perpetrators and their enablers, i.e., the individual hockey teams and the particular league that should have protected the player from the abuse.

29. If the allegations of the “abuse” are proven and any defences disproven, there are defendants that should and can be held accountable for the reprehensible and outrageous breaches of the duty of care and for vicarious liability for the torts of assault, sexual assault, battery, sexual battery, false imprisonment, and intentional infliction of emotional distress.

30. Therefore, in the immediate case, certification must be refused. However, the court pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992 has the jurisdiction to permit Messrs. Carcillo, Taylor, and Quirk’s action to continue as one or more proceedings between different parties.

31. I, therefore, order Messrs. Carcillo, Taylor, and Quirk, if so advised, to prepare and submit for court approval an Individual Issues Protocol within 120 days. They will need to recruit, a plaintiff for each of the 60 teams of the WHL, OHL, and QMJHL for the Individual Issues Protocol,[^6] and the Individual Issues Protocol will then provide a means for the putative Class Members to have access to justice.

The Section 7 Order

441. For the above reasons, I am dismissing the jurisdiction motion, granting the Ragoonanan Motion and dismissing the Certification Motion.

442. In these circumstances, I am directed by s. 7 (1) of the Class Proceedings Act, 1992 to consider whether notice of the refusal should be given under section 19 of the Act to the putative Class Members. Pursuant to s. 7 (2), I am empowered to permit the proceeding to continue as one or more proceedings between different parties. Section 7 of the Act is set out below.

Refusal to certify

7 (1) If the court refuses to certify a proceeding as a class proceeding, the court shall consider whether notice of the refusal should be given under section 19, and whether such notice should include,

(a) an account of the conduct of the proceeding;

(b) a statement of the result of the proceeding;

(c) any other prescribed information; and

(d) any other information the court considers appropriate.

Proceeding may continue in altered form

(2) If the court refuses to certify a proceeding as a class proceeding, the court may permit the proceeding to continue as one or more proceedings between different parties and, for the purpose, the court may,

(a) order the addition, deletion or substitution of parties;

(b) order the amendment of the pleadings or notice of application; and

(c) make any further order that it considers appropriate.

443. Pursuant to s. 12 of the Class Proceedings Act, 1992, I am empowered with a large discretion on my own initiative or on the motion of a party to make any order I consider appropriate respecting a proceeding under this Act.

444. Messrs. Carcillo, Taylor, and Quirk’s proposed class action is a proceeding under the Act, and pursuant to s. 12, I am empowered to make orders to ensure its fair and expeditious determination. Section 12 of the Act states:

Court may determine conduct of proceeding

12 The court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

445. Section 25 is the section of the Act that empowers the court to design the individual issues part of a class action. Strictly speaking, s. 25 is available only when the court determines common issues in favour of the class and considers that the participation of individual class members is required to determine individual issues. Section 25 of the Act states:

Individual issues

25 (1) When the court determines common issues in favour of a class and considers that the participation of individual class members is required to determine individual issues, other than those that may be determined under section 24, the court may,

(a) determine the issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;

(b) appoint one or more persons to conduct a reference under the rules of court and report back to the court; and

(c) with the consent of the parties, direct that the issues be determined in any other manner.

Directions as to procedure

(2) The court shall give any necessary directions relating to the procedures to be followed in conducting hearings, inquiries and determinations under subsection (1), including directions for the purpose of achieving procedural conformity.

Idem

(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the issues that is consistent with justice to class members and the parties and, in so doing, the court may,

(a) dispense with any procedural step that it considers unnecessary; and

(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.

Time limits for making claims

(4) The court shall set a reasonable time within which individual class members may make claims under this section.

Idem

(5) A class member who fails to make a claim within the time set under subsection (4) may not later make a claim under this section except with leave of the court.

Extension of time

(6) Subsection 24 (9) applies with necessary modifications to a decision whether to give leave under subsection (5).

Determination under cl. (1)(c) deemed court order

(7) A determination under clause (1) (c) is deemed to be an order of the court.

446. In the immediate case, I shall employ my jurisdiction pursuant to s. 12 of the Act and I shall employ s. 25 by analogy to formulate the procedural means for the individual actions that are required for access to justice in the immediate case. As repeatedly foreshadowed above, I shall be making an order pursuant to s. 7 of the Class Proceedings Act, 1992.

447. With the Plaintiffs’ and the Defendants’ assistance, I shall, in effect, be designing an opt-in joinder action for 60 actions where a group of co-plaintiffs will sue three co-defendants comprised of (a) a specific team, (b) that specific team’s league (WHL, OHL, or QMJHL), and (c) the CHL.

448. In Hudspeth v Whatcott,[^7] I suggested that an opt-in joinder proceeding pursuant to s. 7 might be accommodated by the Class Proceedings Act, 1992, where a class action was not available. See also: Green v. The Hospital for Sick Children,[^8] Green v. The Hospital for Sick Children,[^9] Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc.[^10] and O’Brien v. Bard Canada Inc.[^11] The recently adjudicated Barker v Barker,[^12] demonstrates the utility of the s. 7 procedure.

449. Barker v, Barker was about the horrific treatment of patients at Ontario’s maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario between 1966 and 1983. The patients who suffered from serious psychiatric illnesses were involuntarily admitted to Oak Ridge. Some of those admissions came as a result of Warrants of Remand from the courts, penitentiaries, and reformatories, others pursuant to Warrants of the Lieutenant Governor after having been found not guilty by reason of insanity and still others were involuntarily committed under the version of the Mental Health Act applicable at the time.

450. In what was originally styled as Egglestone v. Barker, Ms. Taylor and Mr. Joanisse moved for certification of their action as a class action. Justice Cullity dismissed the motion.[^13] He found that although there were causes of actions and although there were common issues, the Plaintiffs had not demonstrated that a resolution of issues would advance the proceedings. In 2006, pursuant to s. 7 of the Class Proceedings Act, 1992, Ms. Taylor and Mr. Joanisse moved for an order permitting the action to continue as an ordinary joinder action with approximately 30 individual co-plaintiffs. Justice Cullity granted the motion.[^14]

451. The action continued as a joinder action. I succeeded Justice Cullity in case managing Egglestone v. Barker, which became Barker v Barker. I granted a summary judgment, but my decision was reversed by the Court of Appeal[^15] and Justice Morgan took over the management of the case, and he successfully steered the case toward achieving all of the goals of a class proceeding; namely, access to justice, behaviour modification, and an economic and efficient procedure that is fair to the defendants.[^16] Barker v. Barker demonstrates that the s. 7 procedure can provide a preferable procedure to a class action.

452. In the immediate case joinder could be made for those putative Class Members who self-identify and opt-in to advance a claim against a particular team and its co-defendants. I agree with the Defendants’ submission that joinder of cases based on similar experiences among claimants is a more appropriate and feasible means to achieve access to justice.

453. To allow the s. 7 process to unfold and to prevent the recommencement of any limitation periods, I suspend my Order dismissing the Certification Motion for 120 days pending the determination of a motion for approval of an Individual Issues Protocol.

454. Pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992, I order that Messrs. Carcillo, Taylor and Quirk shall have 120 days, if so advised: (a) to prepare an “Individual Issues Protocol” for individual (discreet/separate) 60 joinder-actions against the WHL, OHL, or QMJHL, respectively and their teams respectively; and (b) to bring a motion for approval of the Individual Issues Protocol, failing which Messrs. Carcillo, Taylor, and Quirk’s proposed class action shall be dismissed.

455. Pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992, I order Messrs. Carcillo, Taylor and Quirk shall have 120 days, if so advised: (a) to prepare a Notice to the Class Members of the Individual Issues Protocol and a Distribution Plan for the dissemination of the Notice at the expense of the Defendants; and (b) to bring a motion for approval of the Notice and of the Dissemination Plan, failing which Messrs. Carcillo, Taylor, and Quirk’s proposed class action shall be dismissed.

456. I note that if the Plaintiffs’ affiants for the certification were prepared to be lead plaintiffs, then there is already the basis for joinder actions against thirty-eight teams.[^17]

457. To be clear, Messrs. Carcillo, Taylor, and Quirk and Class Counsel are under no obligation to seek an order under sections 7, 12, and 25 of the Class Proceedings Act, 1992, in which case the certification motion will be dismissed with costs to be determined.

458. I appreciate that the burden of them will not be lightened if they proceed to seek a s. 7 order. It is an arduous and time consuming process to prepare an individual issues protocol, as Class Counsel in the immediate case is well aware because of their experience with Brazeau v. Canada, Reddock v. Canada, and Francis v. Ontario, which are cases where very elaborate individual issues protocols were developed. They are under no obligation to make this effort. In any event, Messrs. Carcillo, Taylor, and Quirk should be commended for their courage and their pursuant of access to justice and the betterment of Canadian society of which they have already made an enormously valuable contribution.

E. The Function and Functioning of Section 7 of the Class Proceedings Act, 1992

[48] For the present purposes of discussing the Draft Section 7 Plan, the critical matter is the function and functioning of Section 7 of the Class Proceedings Act, 1992.

[49] For the immediate case, it is helpful and necessary to appreciate that the function of Section 7 is to answer the question of: how does Ontario’s Superior Court of Justice deliver access to justice to 15,000 plaintiffs?

[50] Section 7 (2) of the Class Proceedings Act, 1992, states:

Proceeding may continue in altered form

7 (2) If the court refuses to certify a proceeding as a class proceeding, the court may permit the proceeding to continue as one or more proceedings between different parties and, for the purpose, the court may,

(a) order the addition, deletion or substitution of parties;

(b) order the amendment of the pleadings or notice of application; and

(c) make any further order that it considers appropriate.

[51] For present purposes, it is helpful and necessary to appreciate that while Section 7 speaks about addition, subtraction, and substitution, its primary function is division. Division involves a “dividend,” i.e., the number to be divided, and a “devisor,” the number by which the dividend is to be divided. The quotient is the answer to the division problem. Section 7 provides the means of dividing a group of putative class members, (an undivided collective singularity), into a collection of co-plaintiffs in a multiplicity of proceedings.

[52] When I wrote my Certification Motion decision, I did not know the dividend, the divisor, and the quotients for the immediate case.

[53] When I wrote my Certification Motion decision, I thought that the Section 7 divisor in the immediate case would be up to 60 because the players had played for 60 hockey teams. The divisor, however, might be less than 60 if some of the teams had civilized sports cultures.

[54] I did know that the dividend would not be 15,000 hockey players. While the “abuse” was rampant, it was not suffered by all 15,000 hockey players and even if the “abuse” was suffered by all 15,000 hockey players, some proportion of them would be unable, unwilling, or disinterested in suing, i.e., they would not opt-into the up to 60 joinder actions. (Unlike a certified class action where a Player would be automatically included unless they took steps to opt-out, in the immediate case a Player was automatically excluded from the Section 7 Plan unless they took steps to opt-in.)

[55] When I wrote my Certification Motion decision, I thought that the parties’ Section 7 Plans would answer the question of what is the dividend, the divisor, and the quotients for the immediate case. When I wrote my Reasons for Decision, I did not envision that the average quotients would be 250 co-plaintiffs for 60 joinder actions, but I was confident that my judge colleagues would be more than capable of providing access to justice if that was the case.[^18]

[56] As the analysis below will reveal, it appears that the Plaintiffs’ Section 7 Plan envisions 15,000 individual issue trials and the Defendants’ Section 7 Plan by its reservation of rights to challenge joinder and venue also envisions up to 15,000 individual issues trials. In short, the analysis below will reveal that both parties’ Section 7 Plans are dysfunctional. Upon analysis, both parties are using a dividend of 15,000 and a divisor of 1. Neither plan is approvable.

[57] For the reasons expressed above, in the immediate case - as a matter of jurisdiction - there are no problems about the authority of the Ontario court to adjudicate up to 60 joinder actions involving teams from nine provinces and four U.S. states and there are no procedural problems about the joinder of plaintiffs and defendants and causes of action for the up to 60 joinder actions.

[58] However, in the immediate case, in employing or implementing Section 7 of the Class Proceedings Act, 1992 to transition a proposed class action into a different adjudicative dispute resolution system, there are eight procedural logistics problems that must be confronted by the parties and by the court.

[59] The first procedural logistics problem is that the number and size of the co-plaintiffs in the up to 60 joinder actions is unknown. What is known from the certification motion is that the “abuse” was rampant over a half-decade of hockey leagues organized by the Defendants for approximately 15,000 talented hockey players. However, there was no basis in fact for concluding that all 15,000 hockey players, the putative Class Members, suffered the “abuse”. In the immediate case, it cannot be said that all the putative Class Members were harmed throughout the almost 50-year class period. Many were, but how many were harmed is not presently known.

[60] The second procedural logistics problem is that it is also not presently known how many of the hockey players are uncertain, apprehensive, unable, unwilling, or uninterested about advancing their idiosyncratic claims against the Defendants. In other words, there are players who might have viable claims, but for a multitude of reasons, these players are not inclined to advance their claims. In the immediate case, the parties differed about a variety of mental health, wellness, confidentiality, and privacy issues that may inhibit players from advancing claims. On the other hand, some claimants may simply not wish to sue the Defendants. The number of co-plaintiffs is not indeterminate, but the number has not yet been determined.

[61] The third procedural logistics problem, which is related to the second problem, is how to manage, if at all, the “revictimization” or trauma associated with the administration of justice in sexual assault and sexual abuse cases for the Players that do wish to advance claims. As I described in my Reasons for Decision in some gruesome detail, the Plaintiffs and their affiant witnesses had to be heroic to tell their personal stories. The procedural logistics problem is whether the court with or without the co-operation of the opposing parties can or should use its procedural powers to ameliorate the psychological harms of litigation on the victims of the “abuse.”

[62] The fourth procedural logistics problem is that it is also not presently known how many Defendant teams are exposed to claims. While the “abuse” was rampant, there is no collective liability, and it is possible that some of the Defendants may have behaved responsibly and had a civilized culture. It is also possible that a Defendant may be exposed to liability but there are no hockey players prepared to advance claims. The procedural logistics problem is that a transitioning plan will need to gather information to determine how many actions are actually necessary to provide access to justice and to determine the number of co-plaintiffs in each action.

[63] The fifth procedural logistics problem is that liability has not been established. Although it is gruesomely apparent that civil (and criminal) harms have been perpetrated, none of the Defendants have yet been found liable, and in the immediate case, the Defendants are entitled to due process in the determination of their liability.

[64] As will be revealed in the discussion below of each side’s Section 7 Plans, the parties contest how far the court can go to shortening the procedural road to access justice and the procedural road to achieve behaviour modification. It is important to keep in mind that while settlement approval cases and cases about establishing individual issues protocols have valuable lessons for the immediate case, the immediate case is a case where no finding of liability has been made with the ironical provocation that in the immediate case, it is painfully apparent that there are wrongdoers to be held to account.

[65] The sixth procedural logistics problem is that Section 7 of the Class Proceedings Act, 1992 is not a panacea for all the problems of access to justice. There are jurisdictional limits to the procedural powers of the court under: (a) the Class Proceedings Act, 1992, (b) the Rules of Civil Procedure, and (c) the court’s inherent, common law, and equity jurisdiction. As will be seen in the discussion below, both parties overreach in their aspirations for procedural innovations.

[66] The seventh procedural logistics problem, which is related to the last problem, is that the extent of the parties’ willingness to augment by private law the court’s procedural and substantive jurisdiction is presently unknown. By private agreement, parties have the ability to augment the court’s procedural and substantive jurisdiction. For example, in certified class actions, while court approval is necessary, the parties can fashion settlements and distribution schemes that go well beyond the jurisdiction of a court to manufacture by its public law as opposed to private law. In the immediate case, it is unclear how far the Defendants are prepared to go to assist the Players seeking access to justice.

[67] In the immediate case, the Defendants have professed in their constituting documents including their corporate documents and constitutions and their organizational manuals, a duty and responsibility to protect the putative Class Members. In the immediate case, in open court and in their factums, the Defendants asserted that the Plaintiffs, and the putative Class Members’ who experienced the “abuse” deserved access to justice in criminal proceedings or in individual actions against the perpetrators of the “abuse.” Despite these assertions, it nevertheless remains uncertain the extent to which the Defendants will walk their talk to assist the court in providing access to substantive justice for the hockey players.

[68] It must immediately be acknowledged that the Defendants are in a very difficult position, and it is not easy for them to make procedural and substantive concessions. Even if some of the Defendants were to admit liability, it is presently indeterminate to whom the Defendants may be liable, and it is presently indeterminate what is the quantification of the liability. The Defendants have contractual responsibilities to their liability insurers, that may constrain concessions and admissions of liability. And the Defendants have claims against Third Parties that further complicate matters of making concessions, even procedural ones. In any event, whatever the moral imperatives and their own moral aspirations may be, the Defendants are not legally obliged to make procedural and substantive concessions.

[69] The eighth procedural logistics problem in the immediate case, which is an ironical problem given the parties’ overreach in their aspirations for procedural innovations, is that they also underappreciated the court’s existing powers to solve procedural logistics.

F. Synopsis of the Plaintiffs’ Section 7 Plan

[70] The Plaintiffs’ Section 7 Plan may be summarized as follows:

1. The Individual Issues Protocol and Notice Plan shall proceed in three phases: Phase A is the Notice, Claims and Common Discovery Period, which has a one year duration. Phase B is the Claims Mediation and Settlement Period. Phase C is the Claims Determination Period. The Claims Determination Period has three tracks, two of which modelled on a reference procedure in which a roster of non-judge adjudicators prepare reports that are submitted to the court for approval. The third track is a summary judgment procedure.

2. For Phase A and to inform the other Phases, at the expense of the Defendants, an Administrator will be appointed: (a) to translate the English Notice and the Claims Form into French; (b) to distribute the Notice and a Claims Form in English and French; (c) to create and manage the “CHL Abuse Website” in English and in French; and (d) to prepare an updated index of claims and the settlement of claims, which index is to be shared with the lawyers for the claimants which include Koskie Minsky LLP and also independent lawyers selected by the claimant.

3. At the expense of the Defendants, a roster of Adjudicators will be appointed to adjudicate the Track 1 and 2 Claims of Phase C.

4. At the expense of the Defendants, Wellness Support Persons will be made available to the Claimants.

5. The Defendants, the Administrator, the Wellness Support Persons are subject to confidentiality and privacy obligations, but nothing precludes a Claimant from telling his story.

6. At the expense of the Defendants, a current or former judge or well-respected legal professional will be appointed “External Reviewer” to investigate, receive communications from claimants and from individual associated with the Defendants to prepare a public report about the “abuse” and make recommendations for reform. The report will be based, amongst other things, on the written stories and interviews of individual claimants who elect to confide with External Reviewer anonymously, non-anonymously, or with conditions on the disclosure of their stores.

7. The Court will appoint a judge of the Ontario Superior Court of Justice as a mediator who on consent of the parties may mediate any issue in relation to the Individual Issues Protocol.

8. In Phase A, the Notice and Claims form will be distributed by the Administrator. The notice will be provided by email to the putative Class Members in a short form approved by the court and will be on the CHL Abuse Website. The notice will be posted on Koskie Minsky LLP’s and the Administrator’s websites and on the Defendant’s websites and at their arenas and in player locker rooms. Koskie Minsky LLP shall issue a press release.

9. The CHL Abuse Website shall be comprised of, amongst other things: the Notice to Class Members, the External Reviewer’s public report, a professionally produced video to be produced at the expense of the Defendants.

10. The reasonable cost of the Notice and the Notice Program will be paid by the Defendants.

11. “Common Discovery” of Defendants will proceed during the Claims Period of Phase A in accordance with a Common Discovery Order.

12. In Phase A, a Claimant has twelve months to initiate a claim with the Administrator and to initiate a claim, a claimant must: (a) indicate whether he intends to be represented by Koskie Minsky LLP or by other identified counsel; (b) indicate whether he claims: monetary compensation, an apology, and participation in the External Reviewer process; (c) provide information, so that the Administrator can organise a claims index, including information about the claimant’s experience with the CHL upon which his claim is based.

13. In Phase A, the Administrator will on a rolling basis, provide the Claims Index to counsel for the parties without identifying information about any Claimant.

14. For Phases A and B the court shall issue an Order requiring the Defendants to produce within a defined time period (the “Outside Date”) the listed “Common Discovery Documents.”

15. The Defendants shall provide counsel for each Claimant insurance information.

16. The Defendants shall provide the Claimants’ Counsel “Team Transfer Information” including information about current ownership, information about former owners.

17. For Phase B, Counsel for each Claimant shall provide the Defendants with a Claim Synopsis including, among other things; a statement describing the claimant’s experience in the CHL and the impact of those experiences; the causes of action the claimant will pursue; and documents in support of the claim.

18. The dismissal of the certification motion and the dismissal of the action pursuant to the Ragoonanan principle shall remain suspended until Koskie Minsky LLP is satisfied that all joinder actions [not limited to 60] have been issued after which a motion to discontinue the proposed class proceeding shall be brought by the Plaintiffs or the Defendants.

19. Subject to defined time constraints, the Defendants may make early settlement offers.

20. Defendants who are prepared to engage in reasonable settlement discussions may use an early testing of claims process.

21. Each Claimant shall select a Track for the determination of his claim.

22. Actions for Track 1, 2, or 3 claims shall be commenced in Toronto.

23. The deemed undertaking rule (rule 30.1) will not apply to actions governed by the protocol and relevant evidence from one action may be proffered in other actions governed by the protocol.

24. Track 1 and Track 2 claims will be referred to a Claims Adjudicator to be determined out of court subject to a confirmation motion.

25. Track 1 and 2 actions will proceed in sealed court files in accordance with s. 137(2) of the Courts of Justice Act.

26. Track 1 claims are for non-pecuniary damages up to $100,000. The claims will be processed without examinations for discovery based on the claimant’s affidavit and up to four additional affidavits and the defendants may provide up to five affidavits. The affiants may be cross-examined for a maximum duration of two hours or by written interrogatories. The parties may provide the adjudicator with written submissions.

27. For Track 1 claims, the Adjudicator may not award costs exceeding $12,000 unless a Rule 49 Offer to Settle has been made to which cost consequences apply.

28. For Track 1 claims, the Adjudicator shall issue a report to be confirmed by motion or motions to the court.

29. For Track 2 claims, Koskie Minsky LLP and the Defendants’ Counsel will agree upon a roster of joint experts in (a) psychology/psychiatry; (b) cost of future/past healthcare; (c) vocations; and (d) accounting.

30. The procedure for Track 2 claims is: exchange of affidavit of documents; examinations for discovery not to exceed three hours in duration regardless of the number of persons to be examined; the joint reports of the experts; the claimants personal affidavit and any additional affidavits; the Defendants’ responding affidavits; the claimants’ reply affidavits; and cross-examinations of affiants for a maximum duration of four hours or by written interrogatories. The parties may provide written submissions to the adjudicator. The adjudicator shall convene a one day hearing and issue a report.

31. The Track 3 Claims shall proceed after the close of pleadings in the main action and any third party claims by a summary judgment process in accordance with a timetable set by the case management judge.

32. Track 3 claimants may apply to seal all or part of their court file.

G. Synopsis of the Defendants’ Section 7 Plan

[71] The Defendants’ Joinder Actions Protocol may be summarized as follows:

1. An Administrator shall be appointed to distribute a Notice and an Intake Questionnaire.

2. The Notice shall be distributed: (a) in Short Form in both English and French by email; and (b) in the form of the link, https://chllitigation.com to a website created and managed by the Administrator with content as prescribed by the Joinder Actions Protocol.

3. Koskie Minsky, CHL, WHL, OHL, QMJHL, and the Defendant teams will post the Short Form Notice in both English and French, on their websites.

4. The parties will jointly issue a press release including the website link.

5. The court shall approve the Notice and the Notice Plan. The Defendants shall bear the costs of the Notice Plan.

6. A putative Class Member may participate in the Joint Actions Protocol by submitting to the Administrator before the [Questionnaire deadline] an Intake Questionnaire.

7. The Intake Questionnaire shall contain, among other things: contact information; the putative Class Members’ team associations; the Defendants against whom relief is sought; a description of the offending conduct and the alleged consequential damages; the names of the perpetrators; whether the misconduct was reported to the Defendants; and any other relevant information as determined by the putative Class Member.

8. The Administrator will provide copies of the Intake Questionnaires to Koskie Minsky LLP.

9. All Players who submit a complete Intake Questionnaire by the Questionnaire Deadline will then have until the Opt-In Deadline to opt into this Protocol by advising the Administrator in writing (whether directly or through counsel) by the Opt-In Deadline that they wish to commence litigation and are opting into this Protocol, and who (if anyone) they have retained as their counsel.

10. The Administrator will prepare an Opt-In Compilation and provide a copy to the Defendants’ counsel.

11. the Administrator, Koskie Minsky, LLP Defence Counsel, the Defendants, and any insurers (and their counsel) will treat all information obtained through the opt-in process as confidential.

12. After actions are filed with the Court, any information will no longer be confidential, but any party may seek confidentiality protections in accordance with the Rules of Civil Procedure.

13. Koskie Minsky LLP and the Defendants shall bear the reasonable costs of the Administrator’s Services 50:50.

14. Within 60 days of the Opt-In Deadline, Koskie Minsky LLP will Defence Counsel with a list of proposed individual actions and actions proposed to be joined identifying whether it is an individual or a joinder action, the causes of action, the quantum of damages sought by each plaintiff, whether the action will proceed under the Rules of the Small Claims Court, the simplified procedure, or the Rules of Civil Procedure. If a joinder action, the grounds for joinder will be identified by Koskie Minsky LLP.

15. Within 60 days of receiving the Proposed Actions List, Defence counsel will provide Koskie Minsky LLP the Defendants position on whether the actions may proceed as individual or joinder actions.

16. Within 90 days of receiving the response to the Proposed Actions List, Koskie Minsky, LLP self-represented Players, and any other plaintiffs’ counsel will issue and serve statements of claim for all individual and joinder actions.

17. Within 60 days of service of the statements of claim, the applicable defendants may bring one or more motions to the Case Management Judge for relief from joinder under rule 5.05 of the Rules of Civil Procedure in respect of any actions the joinder of which is disputed.

18. Except as modified by the Protocol, for all individual or joinder actions will be governed by Rules of Civil Procedure.

19. Actions may be commenced in the Superior Court of Justice in Toronto without prejudice to the right of any Defendant to argue that another jurisdiction, forum, venue, or court is more appropriate.

20. Any individual or joinder actions alleging claims in the aggregate up to $35,000 will be determined in accordance with the procedures for discovery and evidence under the Rules of the Small Claims Court.

21. Individual or joinder actions alleging claims in the aggregate above $35,000 but where no individual claim is above $200,000 will be presumptively subject to the simplified procedure under the Rules of Civil Procedure.

22. Once actions are commenced under the Protocol, the proceedings will be assigned to case management under rule 77.05 of the Rules of Civil Procedure.

23. Within 60 days after the close of pleadings, the parties will meet and confer about a Discovery Plan for each individual and joinder action and if the parties cannot agree, the Discovery Plan will be determined at a case conference or, if necessary, on a motion.

24. Players may seek the consent of the Defendant(s) to have a non-party attend examination for discovery or out-of-court cross-examination to provide mental health and wellness support and if the Defendants refuse the request may be determined by the case management judge.

25. The deemed undertaking rule applies unless bilaterally waived by the parties.

26. Koskie Minsky and the Defendants will agree on a non-exclusive roster of mediators. Unless otherwise agreed, the mediator’s costs will be borne equally by the parties engaged in the mediation.

27. Mandatory mediation is to take place within 180 days after the first defence has been filed.

28. Any limitation periods suspended by s. 28 of the Class Proceedings Act, 1992 will remain suspended until: (i) for Players who do not opt into this Protocol, the day after the Opt-In Deadline; and (ii) for all other Players, the day after the deadline for commencing litigation under this Protocol.

H. Critique of the Parties’ Notices, Notice Plans, and Section 7 Plans

[72] The parties’ respective Notices, Notice Plans, and Section 7 Plans have some good ideas, and there are a few procedural topics where there is a consensus about the procedure, but the Notices, Notice Plans, and Section 7 Plans are unacceptable for a myriad of reasons. What follows is a critique of the Notices, Notice Plans, and Section 7 Plans.

• The Plaintiffs’ Section 7 Plan envisions up to 15,000 individual issue trials prosecuted using three procedural tracks and the Defendants’ Section 7 Plan by its reservation of rights to challenge joinder and venue also envisions up to 15,000 individual issues trials. Neither plan is a proper deployment of the court’s procedural jurisdiction under Section 7 of the Class Proceedings Act, 1992.
• Involving unnecessary procedural steps or unnecessarily convoluted procedural steps, and including self-serving procedural tactics designed to frustrate or gain a march on the opponent, the Plaintiffs’ Section 7 Plan and the Defendants’ Section 7 Plan, respectively, are inefficient, cumbersome, disproportionate, unfair, byzantine, and labyrinthine.
• The Plaintiffs’ Section 7 Plans and the Defendants’ Section 7 Plans both employ an Administrator to implement the Notice Plan and to gather information for both the plaintiffs and the defendants. However, an Administrator is unnecessary to disseminate notice to the class and this responsibility can and should be assumed by Koskie Minsky LLP.
• Moreover, in the respective Section 7 Plans, the Administrator would be tasked with responsibilities that interfere with the proper formulation of a lawyer and client relationship between Koskie Minsky LLP and the Players who would be the law firm’s clients and that intrude on the responsibilities of the Defendants’ lawyers to gather information for their clients’ defence. It is for the lawyers not an Administrator to gather information about the client’s claim or defence.
• The Plaintiffs’ Section 7 Plan provides the Players with a right to opt into joinder actions by retaining Koskie Minsky LLP or to opt into joinder actions or individual actions by retaining other lawyers to bring the action. This design, however, conflates the right of the Players to opt out of a certified class action with the rights provided by Section 7 of the Class Proceedings Act, 1992, which rights are to continue the Plaintiffs’ proposed class action - i.e., the action in which the Plaintiffs retained Koskie Minsky LLP. In the immediate case, a Section 7 plan is a recruitment device for the lawyer chosen by the Plaintiffs. In effect, in the immediate case, Section 7 is a way to continue the Plaintiffs’ retainer for a class action into one or more other proceedings for the putative Class Members. In the immediate case, the Players always had the right to opt out of the proposed class action and Section 7 is not designed to create a recruitment advise for other than Koskie Minsky LLP.
• The Plaintiffs’ Section 7 Plan and the Defendants’ Section 7 Plan did not take into account the issues that were resolved by the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion, most particularly the matters of the court’s jurisdiction, the matter of venue, and the matter of joinders of parties and causes of action.
• The Plaintiffs’ Section 7 Plans and the Defendants’ Section 7 Plan respectively are self-servingly and disingenuously attempt to ameliorate weakness and problems in the claim and in the defence that cannot be fixed on a Section 7 Motion. There would be possibly insurmountable limitation period problems or certainly serious delays associated with adding new parties or new causes of action.
• The Plaintiffs’ Section 7 Plan requires the Defendants to disclose information about insurance and about predecessor owners and defunct teams during Phase A, which phase occurs even before any actions have been commenced. This pre-pre discovery is not authorized by the Class Proceedings Act, 1992 or by the Rules of Civil Procedure and is procedurally inappropriate and unjustified.
• In normal litigation and in proposed class actions, a plaintiff is not entitled to pre-judgment execution or pre-judgment security for judgment unless the conditions for a Mareva injunction are satisfied and a plaintiff’s entitlement to what insurance policies are available to satisfy a judgment are exclusively addressed by rules 31.06 (4) and (5) of the Rules of Civil Procedure, and thus there is no justification and no authority to include pre-pre-discovery disclosure of insurance policies. (I shall return to this topic later in my Reasons for Decision after the discussion of the Draft Section 7 Plan.)
• The Plaintiffs’ Section 7 Plan introduces procedural innovations that are beyond the court’s jurisdiction on a Section 7 motion, although the procedures: (a) might be appropriate with the consent of the Defendants, which in this case is not forthcoming; or (b) are procedures that are within the domain of the lawyer and client relationship and not within the domain of the court’s adjudicative function to provide; an example is the Wellness Support Persons, an innovation the merits of which is contentious although worthy of exploring.
• The Plaintiff’s Section 7 Plan provide for the appointment of an “External Reviewer” at the Defendants’ expense, to prepare a public report. This is another example of a procedural innovation that is outside the court’s jurisdiction. Normative litigation is not a legislative function to determine social policy. Normative litigation is not a public inquiry. Normative litigation is not a truth and reconciliation project.
• The Defendants in the immediate case have not been found liable, and the court has no jurisdiction as a part of Notice, Notice Plan, or Section 7 Plan to order the Defendants to produce a video to be posted on their web pages.
• Many of the Defendants’ objections to the Plaintiffs’ Section 7 Plan as impinging on the Defendants’ due process rights and as being beyond the court’s jurisdiction are incorrect and manifest a mistaken understanding of the court’s authority under the Class Proceedings Act, 1992, the Courts of Justice Act, the Rules of Civil Procedure and the court’s inherent, common law, and equity jurisdiction.
• The Defendants’ rights with respect to exposure to claims (the viability of the causes of action), jurisdiction, venue, and joinder of parties and causes of action have been prescribed by the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion. While not limitless, the court has abundant inherent, common law, and equity jurisdiction and authority under the Class Proceedings Act, 1992, the Courts of Justice Act, the Rules of Civil Procedure to address the procedural logistics problems of the immediate case.
• The appointment of a judge of the Ontario Superior Court of Justice as a mediator is withing the court’s jurisdiction to appoint, but unnecessary and unjustified in the early stages of the Rule 7 Plan.
• The Plaintiffs’ proposals for a reference and report confirmation procedure for Track 1 and 2 claims is without the consent of the Defendants, which is not forthcoming is beyond the court’s jurisdiction to impose.
• The Plaintiffs make concessions in their procedures for the three proposed adjudicative tracks about the calculation of damages, about several liability, and about some information about player-on-player abuse, which would facilitate third party claims. These concessions are confusing and in my opinion should not be made. The Players’ claims should not be short changed and it is for the Defendants to marshal their defences to minimize or apportion liability.
• Both parties’ proposals as to the mode of the actions be it normative actions, simplified procedure actions, summary judgment motions, trials etc. are premature. What is imminently required in the immediate case is to populate and plead up to 60 proposed joinder actions and have the lot of them prosecuted pursuant to case management, which was an example of a good idea about which there is consensus.

I. The Court’s Section 7 Plan Proposal

[73] A draft of a potentially approvable Section 7 Plan that suits the exigencies of the immediate case is set out below. In the next part of these Reasons for Decision I shall analyze and explain the draft plan.

• style of cause –

Section 7 Plan

1.0 Recitals

1.1 Pursuant to the Class Proceedings Act, 1992, Daniel Carcillo, Garret Taylor and Stephen Quick brought a proposed class action (Court File CV-20-642705-00CP;) against 60 amateur hockey teams, the Western Hockey League (“WHL”), the Ontario Hockey League (“OHL”), the Québec Major Junior Hockey League (“QMJHL”), and the Canadian Hockey League.

1.2 The proposed class action was brought on behalf of the following putative Class Members, hereinafter referred to as “Players”:

All former and current players who claim to have suffered the “abuse” while playing in the CHL League between May 8, 1975 and the present.”

Family Class" means "all parents, spouses, siblings, and children of Class Members.

1.3 The proposed class action had a class period commencing on May 8, 1975.

1.4 The Plaintiffs advanced four causes of action against the collective of the WHL, OHL, QMJHL, CHL, and their 60 teams, namely: (a) breach of fiduciary duty; (b) systemic negligence; (c) vicarious liability; and (d) breach of Québec causes of action.

1.5 The fundamental purposes of the Plaintiffs’ lawsuit were: (a) behaviour modification; i.e., ending a culture of “abuse”; and (b) access to justice; i.e., imposing a collective liability to pay compensation to the victims of the “abuse.”

1.6 The Fresh as Amended Statement of Claim defined the “abuse” as follows:

“Abuse” means, inter alia, physical, and sexual assault, hazing, bullying, physical and verbal harassment, sexual harassment, forced consumption of alcohol and illicit drugs, and the use of homophobic, sexualized and/or racist slurs directed against minors playing in the Leagues, perpetrated by players, coaches, staff, servants, employees, and agents of the Leagues, including players, coaches, staff, servants, employees, and agents of the teams, as further particularized herein.

1.7 The Plaintiffs moved for certification of their action as a class action, and the Defendants opposed certification, and brought a Jurisdiction Motion and a Ragoonanan Motion.

1.9 There was a four-day hearing of the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion, and the court ruled, among other things, that:

a. The Ontario Superior Court of Justice has jurisdiction simpliciter over all of the Defendants; therefore, the Jurisdiction Motion was dismissed.

b. There are no collective causes of action; therefore, the Plaintiffs cannot be Representative Plaintiffs for claims against the 55 teams of the CHL; therefore, the Ragoonanan Motion was granted.

c. The Certification Motion was dismissed because the Plaintiffs did not satisfy all of the certification criteria.

d. The dismissal Order was suspended pending the determination of a motion for approval of a Notice, a Notice Plan, and a Section 7 Plan.

e. The Plaintiffs brought a motion for approval of the Notice, the Notice Plan, and a Section 7 Plan.

1.10 The purpose of the Section 7 Plan is to transition the proposed class action into up to 60 joinder actions to be commenced in Ontario in the Superior Court of Justice against the 60 defendant hockey teams, their defendant owners, the CHL, WHL, OHL, and QMJHL as co-defendants.

2.0 Approval of Section 7 Plan, the Notice, the Notice Plan, and the Contingency Fee Retainer Agreements.

2.1 The Court approves this Section 7 Plan, which includes a Notice and a Notice Plan.

2.2 The Court approves the Notices set out in this Section 7 Plan.

2.3 The Court approves the Notice Plan set out in this Section 7 Plan.

2.4 The Court approves the Players’ Contingency Fee Agreement set out in the Section 7 Plan as Schedule “I”.

2.5. The Section 7 Plan shall be governed by (a) the Class Proceedings Act, 1992; (b) the Courts of Justice Act; (c) the Rules of Civil Procedure; and (c) the Superior Court of Justice’s inherent, common law, and equity jurisdiction.

2.6. On motion of the parties, the Section 7 Plan may be amended by further court order.

3.0 Notice

3.1 In accordance with the Notice Plan set out in the Section 7 Plan, Koskie Minsky LLP shall distribute to the Players the Notice set out in Schedule “II” to this Section 7 Plan.

3.2 In accordance with the Notice Plan set out in the Section 7 Plan, Koskie Minsky LLP and the Defendants shall post on their respective webpages, if any, the Notice set out in Schedule “III” to this Section 7 Plan.

3.3. In accordance with the Notice Plan set out in the Section 7 Plan, Koskie Minsky LLP shall release the Press Release set out in Schedule “IV” to this Section 7 Plan, which Press Release shall contain a link to the Notice set out in Schedule “II” to this Section 7 Plan.

3.4 In the Notices set out in Schedules II and III, the Players will be notified:

(a) that a proposed class action brought on their behalf was not certified.

(b) that had the proposed class action been certified, each Player would have had the two mutually exclusive choices of:

(i) opting-out of the class action, in which case the Player could sue the Defendants as a self-represented litigant or could sue the Defendants by retaining a lawyer of his own choosing; or

(ii) joining the class action (by not opting out), in which case the Playaer would have been represented by Koskie Minsky, LLP as Class Counsel.

(c) that since the proposed class action was not certified, the Player now has the three mutually exclusive choices of:

(i) [insert opt-in date] (180 days from the approval of the Section 7 Plan) electing to sue the Defendants in one or more of 60 joinder actions to be commenced by Koskie Minsky LLP pursuant to court approved contingent fee retainer agreements and pursuant to a Section 7 Plan;

(ii) suing the Defendants as a self-represented litigant, in which case the Player should be alert to the resumption of the running of limitation periods on [insert s.28 termination date] (365 days from the approval of the Section 7 Plan); or

(iii) suing the Defendants by retaining a lawyer, in which case, in which case the Player should be alert to the resumption of the running of limitation periods on [insert s.28 termination date] (365 days from the approval of the Section 7 Plan);

4.0 Notice Plan

4.1 Each of the Defendants shall by [insert contact information date] (36 days from the approval of the Section 7 Plan) provide Koskie Minsky LLP with a list (the “Defendants lists”) of the Players’ mail addresses, email addresses, and telephone numbers for text messages within their possession, power, or control.

4.2 Koskie Minsky LLP shall by compile by [insert contact information date] (36 days from the approval of the Section 7 Plan) a list of (“the Koskie Minsky LLP list”) of the Players’ mail addresses, email addresses, and telephone numbers for text messages within its possession, power, or control.

4.3 Koskie Minsky LLP shall by [insert notice date] (72 days from the approval of the Section 7 Plan) disseminate by mail, email, and text messages the Short Form Notice attached as Schedule “II” in English and in French.

4.4. Koskie Minsky LLP and the Defendants shall by [insert notice date] (45 days from the approval of the Section 7 Plan) post on their respective webpages, if any, the Notice set out in Schedule “IIi” in English and in French.

4.5 Koskie Minsky LLP shall by [insert notice date] (72 days from the approval of the Section 7 Plan) issue the Press Release set out in Schedule IV in English and in French through Canada Newswire.

4.6 The Defendants shall pay the reasonable costs of the Notice Plan.

5.0 Opt-In Procedure

5.1 If a Player choses to retain Koskie Minsky LLP to sue the Defendants, the must by [insert opt-in date] (180 days from the approval of the Section 7 Plan):

(a) sign the court approved contingent fee retainer agreement retaining Koskie Minsky LLP as his lawyer for one or more of the 60 joinder actions against the Defendants;

(b) complete a questionnaire to be prepared by Koskie Minsky LLP that is subject to lawyer and client and litigation privilege when completed.

5.3 A Player may not after [insert opt-in date] (180 days from the approval of the Section 7 Plan) opt-in.

5.4 The questionnaire shall contain questions:

(a) to confirm that the Player is a putative Class Member;

(b) to confirm that the Player was a victim of the “abuse”;

(c) that require the Player to describe the incidents or incidents of the “abuse” including place(s), times, dates, participants; witnesses, events, etc.;

(d) that require the Player to describe the personal physical and mental harm suffered as a result of the “abuse”;

(e) that require the Player to specify the relief that he would be seeking as a co-plaintiff in one or more of the 60 joinder actions against the Defendants;

(f) that require the Player to describing the monetary or financial harm he suffered as a result of the “abuse”, and

(c) that require the Player to provide such further and other information as required by Koskie Minsky to join the Player as a co-plaintiff in one or more of the 60 joinder actions against the Defendants.

5.5 If the Player chooses to retain Koskie Minsky LLP to sue the Defendants, he agrees by [insert intake interview date (within 270 days of the approval of the Section 7 Plan) to attend an intake interview with Koskie Minsky LLP, which interview may be conducted in person or remotely by video or telephone conference.

6.0 Commencement of the Running of Limitation Periods

6.1 The dismissal of the Certification Motion shall come into effect 365 days after the approval of the Section 7 Plan.

7.0 Commencement of Actions

7.1 By [insert commencement date] (365 days after the approval of the Section 7 Plan), Koskie Minsky LLP, shall commence in the Ontario Superior Court of Justice in Toronto, up to 60 joinder actions against the teams of the WHL, OHL, and QMJHL, the CHL, WHL, OHL, and QMJHL as co-defendants.

7.2 The Statements of Claim shall name Toronto as the place of trial without prejudice to the court upon motion changing the venue to another place of trial in Ontario.

7.3 The actions shall be commenced for the putative Class Member who have retained Koskie Minsky pursuant to the court approved contingency fee retainer agreements.

7.4 The up to 60 joinder actions shall each by governed by the Rules of Civil Procedure and the Section 7 Plan.

7.5 The up to 60 joinder actions shall be commenced by Statement of Claim. The Statement of Claims shall attach as schedules the individual claims of each Player joined as a co-Plaintiff.

7.6 The Players are domitus litus and the Statements of Claim and the attached schedules may be pled in accordance with the privileged instructions of the Players as to the material facts and there is no obligation on the Players to disclose witnesses or participants in the events described although they are at liberty to do so.

7.7. Without leave of the court, in the Statements of Claims, the Players may plead only the causes of action that were pleaded for the Certification motion save and except the cause of action for (a) breach of fiduciary duty.

7.8 The Statements of Claim in the up to 60 joinder actions shall be sealed in the court’s file.

7.9 Koskie Minsky LLP shall file in the open court file copies of the Statement of Claim substituting pseudonyms for the Players in the style of cause and in the schedules attached to the Statement of Claim.

7.10 The Lawyers who appeared at the Certification Motion as counsel for the Defendants shall admit service of the Statements of Claim, which shall be served along with a Specialized Rule 49 Offer for each Player.

7.11 The Defendants may not challenge the jurisdiction of the Ontario court on the grounds of absence of jurisdiction simplicter.

7.12 The Defendants may not challenge the jurisdiction of the Ontario court on the grounds of forum non conveniens.

7.13 The Defendants may not challenge the joinder of plaintiffs to the 60 joinder actions, the joinder of defendants, or the joinder of causes of action.

7.14 The Defendants many not bring any motions for particulars or to challenge the Statements of Claims or the attached Schedules for pleading irregularities.

8.0 Statements of Defence and Third Party Claims

8.1 Using the pseudonyms style of cause, the Defendants shall deliver their respective Statements of Defence and any Third Party Claims within thirty days of service of the Statements of Claim.

9.0 Case Management

9.1 After the close of pleadings, the up to 60 joinder actions shall be case managed by a single judge appointed by the Regional Senior Judge in Toronto.

10.0 Privacy, Confidentiality, Privilege, and Disclosure of Information

10.1 Nothing in this plan abrogates the normal rules of privilege including lawyer and client privilege, litigation privilege, and settlement privilege.

10.2 It is a principle of the Section 7 plan that as between the parties there shall be full disclosure of relevant information in accordance with the Rules of Civil Procedure and that the open court principle applies to hearings in open court at which time subject to confidentiality or privacy orders to the contrary, the sealed Statements of Claim will be unsealed.

10.3 After the close of pleadings, the parties may apply for confidentiality and privacy orders pursuant to the Rules of Civil Procedure as they may be advised.

11.0 Affidavits of Documents

11.1 Within 60 days after the close of pleadings, each Player shall serve his or her Affidavit of Documents unless his claim has settled pursuant to the Rule 49 Offer or otherwise.

11.2 Within 60 days after the close of pleadings, each co-Defendant shall serve his or her Affidavit of Documents.

11.3 The parties’ respective affidavits of documents shall not be filed in the court file.

12.0 Examinations for Discovery

12.1 Subject to the provisions of this section of the Section 7 Plan, the parties shall settle a Discovery Plan in accordance with the Rules of Civil Procedure.

12.2 The evidentiary record from the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion shall be deemed to be examinations for discovery in all of the up to 60 joinder actions.

12.3 The deemed undertaking rule and the common law implied undertaking rule shall not apply in all of the up to 60 joinder actions.

13.0 Specialized Rule 49 Offers

13.1 Koskie Minsky LLP shall deliver with the Statements of Claim in the up to 60 joinder actions a specialized Rule 49 Offer to reflect the exigencies of the particular action.

13.2 In any event, the Specialized Rule 49 Offers will augment the schedules to the Statement of Claim with a list of documents or affidavits that support and quantify the Players’ claims.

Schedule I – Koskie Minsky LLP, Contingency Fee Retainer Agreement [to be drafted]

Schedule II – Short Form Notice [to be drafted]

Schedule III – Webpage Notice [to be drafted]

Schedule IV – Koskie Minsky LLP Press Release [to be drafted]

J. Explanation and Analysis of the Draft Section 7 Plan

[74] The design of the Draft Section 7 Plan is to solve the procedural logistics challenge of transitioning a proposed class action into an altered form.

[75] In regard to procedural systems design, the Certification Motion, Jurisdiction Motion, the Ragoonanan Motion, has already determined who are the parties, what are the causes of action, where the actions shall be determined (Ontario’s Superior Court of Justice), and that there shall be up to 60 joinder actions.

[76] The procedural logistics problems that remain to be solved by a Section 7 Plan are to convert a class action contingency fee retainer for the Representative Plaintiffs and the Players with Koskie Minsky LLP, into a joinder of actions retainer and to populate and plead and commence the Players’ actions.

[77] The draft Section 7 Plan is designed:

a. to give the Players notice of their litigation choices as a result of the outcome of the Certification Motion, the Jurisdiction Motion, the Ragoonanan Motion and the Section 7 Motion;

b. to inform the Players of how to participate in what would be a continuation of the dismissed Certification Motion in an altered form;

c. to establish lawyer and client relationships between the Players who wish to pursue claims and Koskie Minsky LLP;

d. to provide Koskie Minsky LLP with the information necessary to commence up to 60 joinder actions in which the plaintiffs will be dominus litus in the normal way;

e. to have the up to 60 joinder actions commenced and served within one year from the approval of the Section 7 Plan and to have the Statements of Claim delivered with Specialized Rule 49 Offers;

f. to have the Statements of Defence, the pleadings closed, and within 60 days of the close of pleadings have affidavits of documents exchanged so that all of the up to 60 joinder actions can be submitted to case management by a judge appointed by the Regional Senior Judge in Toronto;

g. to protect the up to 60 joinder actions from any interlocutory motions until the actions are submitted to case management, after which the prosecution and the defence of the actions will be overseen by a case management judge, with the exception of a few already prescribed procedures, (i.e., the use of the evidentiary record from the Certification Motion, the Jurisdiction Motion and the Ragoonanan Motion, the waiving of the deemed undertaking and the implied undertaking rule).

[78] It is to be noted that under the heading “Commencement of the Running of Limitation Periods,” the Draft Section 7 Plan provides that The dismissal of the Certification Motion shall come into effect 365 days (1 year) after the approval of the Section 7 Plan. The explanation for this provision is that in accordance with s. 28 (1) (a) of the Class Proceedings Act, 1992 “any limitation period applicable to a cause of action asserted in a proceeding under this Act is suspended in favour of a class member on the commencement of the proceeding and … resumes running against the class member when, (a) the court refuses to certify the proceeding as a class proceeding; …”.

[79] In other words, with the dismissal of the Certification Motion, (but for the fact that the Plaintiffs have appealed that dismissal), limitation periods would resume running. This would create a problem because in the immediate case, it will take a year to constitute the up to 60 joinder actions and it is only when those actions are actually commenced that the resumption of limitation periods should recommence.

[80] As a gesture of good faith and cooperation, the Defendants have offered to continue the suspension of limitation periods until the end of the notice period in their Section 7 Plan. This is a nice gesture, but it is inadequate in the circumstances. The resumption of the running of limitation periods should be commensurate with the commencement of the 60 joinder actions.

[81] Before moving on to discuss other matters, with respect to limitation periods, it should be noted that if the Plaintiffs and the Defendants are both satisfied with the Section 7 Plan approved by the court, neither party should appeal the Section 7 Plan’s approval and the Plaintiffs should forthwith abandon their appeal of the Certification Motion and the Ragoonanan motion decisions. The proposed class action will have been successfully transitioned into up to 60 joinder actions.

[82] If the Plaintiffs are satisfied but the Defendants are not satisfied with the approved Section 7 Plan, then the Defendants should appeal the Section 7 approval order and the Plaintiffs should revive their appeals and the Court of Appeal will undoubtedly sort it all out.

[83] Returning to the explanation of the Draft Section 7 Plan, it is to be noted that up until the time that the up to 60 joinder actions are submitted to case management, there is no need for sealing orders or confidentiality orders. The court file will seal the unredacted Statements of Claim and their schedules that have been served on the Defendants. A copy of the Statements of Claim for the public with pseudonyms for the Players will be available. Using the pseudonyms style of cause, the Defendants shall deliver their Statements of Defence. Affidavits of documents and transcripts need not be filed until needed. The anonymity of the Players continues until there are court hearings. The parties may then apply for sealing orders and confidentiality orders as they may be advised.

[84] It is to be noted that save for the use of pseudonyms in the pleadings that are in the open court file, the open court principle remains extant and the Draft Section 7 Plan expressly states that it is a principle that as between the parties there shall be full disclosure of relevant information in accordance with the Rules of Civil Procedure. The open court principle applies to hearings in open court at which time subject to confidentiality or privacy orders to the contrary, the sealed Statements of Claim will be unsealed.

[85] It may be noted that the Draft Section 7 Plan does not address the Plaintiffs’ request for pre-pre discovery disclosure of insurance policies. This was much discussed at the Phase 1 hearing.

[86] Koskie Minsky LLP explained this request as necessary and justified because the Players should not have the bear the enormous personal and emotional harms entailed in prosecuting claims about the “abuse” only to be disappointed by a judgment proof Defendant. Koskie Minsky LPP were also candid in revealing that the firm needed this information to assess whether they should assume the risks or a contingency fee retainer.

[87] To date, the Defendants have provided Koskie Minsky with a great deal of information about their insurance policies. Koskie Minsky LLP’s own investigations have determined that Hockey Canada purchased insurance to indemnify the CHL and its Teams for the widespread sexual and physical abuse alleged by former players. However, these insurance policies appear to only cover some types of misconduct by certain actors for certain time periods. Koskie Minsky LLP’s investigations have also determined that Hockey Canada is suing its insurers about the insurance coverage for the Section 7 Plan. Further, Koskie Minsky LLP’s investigations have revealed that Hockey Canada has significant reserve funds or self-insurance earmarked for claims such as those advanced in the immediate case; however, Hockey Canada will not confirm nor deny whether these funds are accessible by the putative Class Members.

[88] The Defendants’ position to this request about more insurance information was that they have already provided all the insurance information including information about Hockey Canada’s insurance policies for which the Defendants were named insureds and the only outstanding information was information about Hockey Canada’s funds earmarked for claims not covered by insurance. As for that information, it was the Defendants’ position that it was premature to provide the information but they would not oppose providing whatever Hockey Canada information they had in their power, possession, and control.

[89] Hockey Canada’s position was that it was not a party to this litigation and no third party disclosure motion had been brought. Further, it submitted that if such a motion had been brought, there was no basis for require it to disclose its reserve fund information and most particularly it was not an insurer.

[90] In my opinion, there was no need for the Draft Section 7 Plan to respond to the Plaintiffs’ request for pre-pre discovery disclosure of insurance policies, which should be dealt with in the normal course after the up to 60 joinder actions are submitted to case management. The rationale for my opinion is that before the commencement of an action, lawyers acting under contingency fee retainers have to make their own assessment of the insolvency risks associated with a possibly judgment proof defendant and to advise their clients accordingly. This is essentially a lawyer and client matter about which the court and the Rules of Civil Procedure have no role.

[91] The Rules of Civil Procedure do provide for the disclosure of insurance information; however, that procedure becomes available during the examination for discovery stage. Rules 31.06 (4) and (5) state:

Insurance Policies

(4) A party may on an examination for discovery obtain disclosure of,

(a) the existence and contents of any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in the action or to indemnify or reimburse a party for money paid in satisfaction of all or part of the judgment; and

(b) the amount of money available under the policy, and any conditions affecting its availability.

(5) No information concerning the insurance policy is admissible in evidence unless it is relevant to an issue in the action.

[92] In my opinion, rules 31.06 (4) and (5) are adequate and there need not be pre-pre discovery of insurance policy information in the immediate case.

[93] In the immediate case, I gathered from the Certification Motion that the CHL, WHL, the OHL, and the QMJHL and their member teams are a big business with considerable revenue streams. It is possible that one or more of the teams might not have insurance coverage and also be judgment proof, but that is once again a matter for Koskie Minsky LLP to exercise its own due diligence and to advise the Players about whether the risk of a judgment proof outcome means that commencing and prosecuting an action is not worth the time and resources required.

[94] In this last regard, it should be noted that there may be less than 60 joinder actions that are commenced under the Draft Section 7 Plan and one of the reasons for not commencing an action is that a target team is judgment proof. Another reason for not commencing an action is that it yet to be determined that each and every team is culpable. The Certification Motion settled that there is no collective liability, and it is possible that a team treated the Players in a civilized way and is not culpable for misconduct. It is in the realm of the lawyer and client relationship to assess litigation risk.

[95] The point to emphasize is that the Draft Section 7 Plan is designed to not interfere with the lawyer and client relationship. It provides an opportunity for Koskie Minsky LLP to recruit clients and to provide them with the legal advice necessary to give instructions for up to 60 joinder actions against the Defendants. It will be for the Players and Koskie Minsky LLP to determine the appropriate number of legally and practically viable actions. The Draft Section 7 plan incorporates a retainer agreement, a questionnaire, and an intake interview as part of the recruitment process. This information is protected by lawyer and client privilege and litigation privilege and while the contingency fee agreement will require court approval it is not for the court to intervene in lawyer and client matters.

[96] Moving on to the next matter to discuss, which is another matter that is not addressed in the Draft Section 7 Plan, it is the Plaintiffs’ request for information about former owners and about defunct teams. In their proposed class action, the Plaintiffs did not sue: (a) previous owners of the 60 teams or John Doe corporations to stand in for any such previous owners; or (b) the owners of now defunct teams that existed during the class period but no longer exist.

[97] Upon analysis, this matter is conceptually similar to the last matter. Koskie Minsky, LLP submit that they need information about prior ownership, the transfer of franchises, and about defunct teams to advise a Player whether or not his claim against the team he played for is available against one of the 60 teams currently named.

[98] In other words, if the Player was on the roster of one of the 60 teams at a time when its ownership was different, Koskie Minsky LLP submits that it needs information to determine whether the successor owners, who are currently named as Defendants, assumed the liability of the former owners of the team.

[99] This is a matter that once again is a matter for Koskie Minsky’s due diligence and advice to the client. Similarly, if the information provided to Koskie Minsky LLP is that the player was on the roster of a defunct team, it will be Koskie Minsky LLP’s responsibility to advise the Player as may be appropriate. The Draft Rule 7 Motion is not the time to determine whether it is appropriate to add defendants to the list of 78 Defendants already sued.

[100] For present purposes, this is enough said about the contribution of Phase 1 to the creation of a Section 7 Plan.

K. Conclusion

[101] The Section 7 Motion shall proceed to Phase 2.

[102] No formal Order need be taken out for Phase 1.

[103] I commend the parties and their lawyers and thank them for their ongoing contribution to solving a very challenging a problem of procedural logistics for the administration of justice.

Perell, J.

Released: September 1, 2023

Schedule A: Abuse of Players in the Canadian Hockey League- Individual Issues Protocol

1. General

1.1 This Protocol governs the procedures for the determination of the claims of individuals who were subjected to or affected by physical and sexual abuse, bullying, harassment, hazing, and tortious conduct while playing in the Canadian Hockey League (including its Member Leagues, the Ontario Hockey League, Western Hockey League, and Québec Major Junior Hockey League).

1.2 This Protocol may be amended by further order of the Court.

1.3 In this Protocol:

(a) "Court" means the Ontario Superior Court of Justice;

(b) "CHL" means the Canadian Hockey League;

(c) "QMJHL" means the Quebec Major Junior Hockey League;

(d) "OHL" means the Ontario Hockey League;

(e) "WHL" means the Western Hockey League;

(f) "Member Leagues" means the QMJHL, OHL, and WHL;

(g) "the Carcillo action" means the action in Court File CV-20-642705-00CP;

(h) "IIP Judge" means the case management judge for the Carcillo Action;

(i) "IIP Counsel" means Koskie Minsky LLP, in their role as Counsel responsible for administering the Individual Issues Protocol on behalf of all Claimants;

(j) "CHL Counsel" means the lawyers representing the defendants in the Carcillo Action with respect to issues relating to the administration of the IIP Process;

(k) "Player" means any individual who plays, has played, or who attended a training camp or other activities as a prospective player, for any Team within the CHL at any time from 1975 to the present;

(l) "Phase A" refers to the Notice, Claims and Common Discovery period, described in parts 10 to 16, below;

(m) "Phase B" refers to the Claims Mediation and Settlement period, described in parts 17 to 20, below;

(n) "Phase C" refers to the Claims Determination period, described in parts 21-32, below; and

(o) "League and Team Damages" refers to the proportion of the damages owed to a Player that are attributable to the proportionate degree of fault as between only the Team, the Member League, and the CHL, and does not include any damages that are found to be attributable only to any other party.

1.4 Nothing in this Protocol precludes the parties from settling any claim proceeding under this Protocol at any point. Rule 49 applies to any settlement offer made under this Protocol.

1.5 Nothing in this Protocol precludes the parties from moving before the IIP Judge for an amendment to the protocol. The parties may consent to procedural modifications to the protocol.

1.6 Where there is disagreement on the interpretation or application of this Protocol requiring directions of the Court, a case management conference will be convened with the IIP Judge to determine the most expeditious and efficient manner to resolve the dispute.

2. Eligibility

2.1 Any claim made by a Player in relation to physical and sexual abuse, bullying, harassment, hazing, and tortious conduct that affected the Player while playing in the CHL, and that took place between 1975 and the present, is eligible for consideration under this Protocol.

2.2 Only those claims made prior to the Claims Deadline, as defined in part 11.1, below, will be eligible to participate in Phase B (Claims Mediation and Settlement).

2.3 Late claims (claims made after the Claims Deadline) may be included in Phase C (Claims Determination) on the consent of the parties or, absent the consent of the parties, on motion to the IIP Judge.

3. Confidentiality

3.1 Any information provided, created or obtained in the course of carrying out this protocol, whether written or oral, will be kept confidential by the defendants and their counsel, the Claimants and their counsel, the Administrator and the Claims Adjudicator(s) and will not be shared or used for any purpose other than this protocol, unless required provided for or required by law.

3.2 Other than documents filed without seal pursuant to Phase C (Claims Determination), any party, including – without limitation – any defendant, Claims Adjudicator or the Administrator, or their counsel, shall treat all information and records received in relation to this protocol confidentially, and must execute an undertaking regarding confidentiality.

3.3 In the case of a defendant, each individual who will have access to confidential information or records must also execute an undertaking regarding confidentiality.

3.4 A defendant, Claims Adjudicator or the Administrator shall disclose information and records received in relation to this protocol only as required to carry out the protocol, and only after requiring the individual to whom information will be disclosed to execute an undertaking regarding confidentiality.

3.5 Claimant information, including material in printed and/or electronic format, shall be stored in a secure manner to ensure that only authorized persons who have signed the undertaking regarding confidentiality may access the information.

3.6 Nothing in this part prevents any Claimant from disclosing their own story.

4. Available Relief

4.1 Each Claimant will indicate, upon initiating a claim, the forms of relief that they seek in their claim.

4.2 A Claimant may:

(a) Claim for monetary compensation;

(b) Request an apology from the Claimants' Team, Member League, the CHL;

(c) Opt to participate in the External Reviewer process, as described at part 8, below.

5. Administrator

5.1 "Administrator" means [TBD]

5.2 The Administrator shall distribute the Notice and the Claims Form approved by the Court in accordance with this Protocol, as set out in part 10, below.

5.3 The Administrator shall provide services for the intake and indexing of claims, as described in parts 12 and 13, below.

5.4 The Administrator shall comply with the Personal Information Protection and Electronic Documents Act, S.C. 2000 c. 5.

5.5 The Administrator shall be paid for their services by the defendants.

6. Claims Adjudicators

6.1 In this Protocol, "Claims Adjudicators" or "Adjudicator Roster" means the group of legal professionals agreed to by the parties or appointed by the Court under this Protocol to adjudicate Track 1 and 2 claims.

6.2 Four months prior to the Claims Deadline, as defined at part 11.1, below, IIP Counsel and CHL Counsel will constitute the Adjudicator Roster by agreement, failing which the Court shall appoint the Adjudicator Roster from lists of candidates submitted by ICP Counsel and CHL Counsel.

6.3 If ICP Counsel and CHL Counsel cannot agree as to the number or identities of Claims Adjudicators, each of ICP Counsel and CHL Counsel will submit a number and list of proposed Claims Adjudicators, with brief written submissions, to the Court, and the Court will appoint the Adjudicator Roster.

6.4 The costs of the Claims Adjudicator process, including the fees of the Claims Adjudicators, will be paid by the defendants.

7. Wellness Supports for Claimants

7.1 Wellness Supports will be made available to each Claimant or potential Claimant, from the start of the Notice, Claims and Common Discovery Period until the Claimants' claim has been determined.

7.2 The Wellness Supports provided to Players will be paid for by the defendants.

7.3 The Wellness Supports made available to Claimants will include access to a trained individual capable of providing appropriate psychosocial support to Claimants ("the Support Person").

7.4 The Support Person will not be affiliated with any current or former Team, Member League, or the CHL.

7.5 The Support Person will respond promptly to all contacts from Claimants and will be available to meet with Claimants by phone or video call.

7.6 All meetings, calls and communications between a Claimant and the Support Person will be confidential. No information provided to the Support Person by a Claimant will be shared with any other party or individual unless such disclosure is at the explicit request of the Claimant or is necessary to prevent harm to the Claimant or others.

8. External Reviewer

8.1 An External Reviewer will be appointed by the Court at the time this Protocol is ordered.

8.2 The External Reviewer will be a current or former judge, or well-respected legal professional.

8.3 The External Reviewer will collect, consider, and report on the experience of Players who participate in the Protocol, and the phenomenon of pervasive abuse in the CHL, as means to provide restorative justice.

8.4 Each Claimant will have the following options:

(a) Sharing no information with the External Reviewer;

(b) Sharing their story with the External Reviewer on an anonymous basis; and

(c) Sharing their story with the External Reviewer without anonymization, but with an indication of whether or not they wish to be anonymous in the External Reviewer's public report.

8.5 Those Claimants who share their story with the External Reviewer without anonymization will indicate, in providing their story, whether they would be willing to meet with the External Reviewer.

8.6 For each Claimant who chooses to share their story with the External Reviewer, ICP Counsel will provide the External Reviewer with the Claim Synopsis, described at part 17, below.

8.7 Each Claimant may additionally choose to prepare and share with the External Reviewer a personal written account describing their experiences playing in the CHL, and the impact these experiences have had on their life.

8.8 After the Claims Period is complete, the External Reviewer will prepare a public report reflecting on any abuse that has occurred in the CHL, why such abuse has been pervasive, and any recommendations for reform. This report will be based on:

(a) Written stories of individual Claimants who have chosen to share their stories with the External Reviewer;

(b) Meetings held with Claimants at which the Support Person may also be present;

(c) Meetings with and written submissions from individuals associated with the CHL, the Member Leagues, and the Teams, as requested by the External Reviewer;

(d) Meetings with any other stakeholders that the External Reviewer believes may have relevant information;

(e) The Reasons of Perell J. on the certification motion, the Independent Review Panel Report, and the Players First Report; and

(f) Current and past League and Team policies.

8.9 The External Reviewer's Report will not be admissible as evidence for any of the claims and will not contain any legal findings.

8.10 The costs of the External Review process will be paid for by the defendants.

9. Judicial Mediator

9.1 The Court will appoint a sitting judge of the Ontario Superior Court of Justice to act as Judicial Mediator for this protocol.

9.2 The Judicial Mediator may, on consent:

(a) Mediate any issues that arise from or in relation to the IIP; or

(b) Mediate individual claims, or groups of claims, under the IIP.

Phase A: Notice, Claims and Common Discovery Period

10. Notice and Notice Plan

10.1 In this Protocol, "Notice" means the Short Form Notice and the CHL Abuse Website, as defined in the Notice and Dissemination Plan, providing players with notice of the individual issues and claims process under this Protocol, substantially in the forms approved by this Court.

10.2 The Administrator shall translate the English Notice into French.

10.3 Notice will be disseminated by the Administrator, by IIP Counsel, and by the defendants in accordance with the Notice and Dissemination Plan, as approved by the Court.

10.4 The Notice will include a toll-free phone number that accepts phone calls or SMS messages, an email address, mailing address, and website address through which Players can contact the Administrator or IIP Counsel to initiate a claim.

10.5 The reasonable cost of the Notice and the Notice Program shall be paid by the defendants.

10.6 The date the Notice is first transmitted, posted, or otherwise disseminated to Players by the Administrator shall be the "Notice Date".

11. Claims Period

11.1 The Claims Deadline will be twelve months after the Notice Date. Players will have until the Claims Deadline to initiate a claim.

11.2 The period between the Notice Date and the Claims Deadline will be referred to as the Claims Period.

11.3 A Claim will be deemed to have been initiated on the date that the Claimant first contacts the Administrator, regardless of the form through which they do so.

12. Initiation of Claims

12.1 For each Claim initiated, the Administrator will record the date that the Claim was initiated and will assign the Claim a Unique Claim Identification Number ["UCI"].

12.2 Each Claimant will, upon initiating a claim, indicated whether they intend to be represented by:

(a) IIP Counsel; or

(b) Other counsel identified by the claimant.

12.3 Each Claimant who opts to be represented by counsel will, upon initiating a claim, consent to the Administrator sharing their information with the counsel of their choice.

12.4 The Administrator, upon being advised of the Claimant's choice of representation will:

(a) If the Claimant wishes to be represented by IIP Counsel, provide IIP Counsel with the information they have received from the Claimant, the date on which the Claim was initiated, and the Claimant's UCI;

b) If the Claimant wishes to be represented by other counsel, or wishes to self-represent, provide the counsel identified and/or the Claimant with:

(i) The information described in part 12.4(a), above;

(ii) A copy of this IIP; and

(iii) A list of the information required for the Claims Index, and the format in which this information should be provided.

13. Claims Index

13.1 An index of Claims (the "Claims Index") will be created by the Administrator on a rolling basis during the Claims Period.

13.2 For each Claim, the Claims Index will include:

(a) The Claimant's UCI;

(b) The date on which the Claimant's claim was initiated;

(c) The Member Leagues and Teams against which the Claimant has claims;

(d) The time period in relation to which the Claimant has claims;

(e) A brief description (of 50 words or less) of the experiences of the Claimant on

which their Claim is based;

(f) Whether the Claimant requests an apology, monetary compensation, or both; and

(g) The name and contact details of the counsel retained by the Claimant, if any.

13.3 Counsel to any Claimant will provide this information to the Administrator within 60 days of the initiation of a claim, and no later than 30 days after the Claims Deadline.

13.4 Sixty days after the Notice Date, and every 60 days thereafter, the Administrator will distribute a copy of the Claims Index, containing information for the Claims received to that date, to IIP Counsel, CHL Counsel, and any other Claimant's or Defending Counsel.

13.5 The Claims Index will include all Claims made to the date on which the Claims Index is provided.

13.6 The Claims Index will not contain any identifying information about any Claimant.

13.7 The Claims Index will be for counsel eyes only and will only be provided on the condition that all counsel undertake to take no steps, and to ensure no defendant or Claimant takes any steps, to identify any Claimant based on the information provided in the Claims Index.

13.8 The Administrator will provide a Claims Index listing all Claims made before the Claims deadline to all counsel within 45 days of the Claims Deadline.

13.9 Counsel for a claimant will inform the Administrator, and the Administrator will record in the Claims Index, each time that a claim is settled, and the value for which the Claim was settled.

13.10 No Claims will be removed from the Claims Index.

14. Identification of Defendants and Defending Counsel

14.1 For the purposes of this Protocol, "Defending Counsel" refers to the counsel responsible for defending each individual Claim.

14.2 For each claim, CHL Counsel will inform the Claimant's counsel of the names, and contact details of the Defending Counsel for each claim and will identify who Defending Counsel represents.

14.3 CHL Counsel will also provide this information to the Administrator to be added to the Claims Index.

14.4 This information must be provided as soon as possible for each Claim, and no later than 30 days after receiving the final Claims Index.

14.5 Defending Counsel, once identified, will assume primary carriage of the Claim and will undertake any task assigned to either CHL Counsel or Defending Counsel, below.

15. Common Discovery

15.1 Common Discovery will proceed throughout the Claims Period, in accordance with the Common Discovery Order approved by the Court at the same time as this Protocol.

15.2 CHL Counsel will be responsible for ensuring that the Common Discovery Order is complied with.

15.3 CHL Counsel will report to the Court every 60 days, from the date on which the Common Discovery Order is made, to update the Court on its progress in fulfilling the Common Discovery Order.

15.4 Documents produced pursuant to the Common Discovery Order will be produced in a digital form accessible to IIP Counsel, to which any other counsel representing a Claimant will also be given access.

15.5 Part 3 of this protocol (Confidentiality) applies to documents produced pursuant to the Common Discovery Order.

16. Team Transfer Information

16.1 To permit counsel to advise a Claimant during Phase B (Claims Mediation and Settlement), CHL Counsel and Defending Counsel will provide Team Transfer information.

16.2 Within 60 days of this Protocol being ordered, CHL Counsel will provide the following information to IIP Counsel, in a manner that will be made accessible to all Claimants' counsel:

(a) The names of the current owners (whether they be individuals, partnerships or corporations) of each Team in the CHL;

(b) For each Team, the date on which the current owners took ownership of that Team;

(c) The previous franchise names used by each Team during its history, including under previous ownership; and

(d) The name, location, ownership, and dates of existence of any Team whose membership in the CHL was terminated and was not transferred to new ownership.

16.3 Each time that a Claim is made in relation to events on a Team that occurred prior to that Team's current owners taking ownership, CHL Counsel or Defending Counsel will provide, in a digital form accessible to all Claimant's Counsel, the following:

(a) The names and contact details of former owners, and the dates on which the former owners took ownership, going back to the date that the Claimant played for the Team; and

b) Any and all documents involved in the transfer of Team ownership.

16.4 Requests for Team Transfer information will be made at the same time as, or after a Claim is included in the Claims Index by the Administrator.

16.5 CHL Counsel will have 60 days to provide Team Transfer information after it is requested.

16.6 All requests for Team Transfer Information must be satisfied within 90 days of the Claims Deadline.

Phase B: Claims Mediation and Settlement

17. Claims Summaries

17.1 Counsel for each Claimant will prepare and provide to Defending Counsel a Claim Synopsis for each Claimant.

17.2 Each Claim Synopsis will include:

(a) The Claimant's Name and UCI Number;

(b) Details of the Teams, Leagues and years in which the Claimant played;

(c) A "will say" statement describing the Claimants' experiences in the CHL, and the impact those experiences have had on the Claimant;

(d) The causes of action that the Claimant expects to pursue; and

(e) A list of the documents or further affidavits that the Claimant believes they can provide in support of their claim, without prejudice to the Claimant's ability to provide further documents in Phase C.

17.3 Claim Summaries will be provided on a rolling basis as claims are made, and all claim summaries will be provided within 90 days of the Claims Deadline.

18. Insurance Information

18.1 To permit counsel to advise Claimants during Phase B (Claims Mediation and Settlement), CHL Counsel or Defending Counsel will provide counsel for each Claimant with the Insurance Information relevant to their Claim, within 60 days of receiving the Claim Synopsis.

18.2 For each Claimant, CHL Counsel or Defending Counsel will provide the following information:

(a) The details of any insurance policy that may respond to the Claim and a copy of the policy, if it has not already been produced in a manner accessible to the Claimant's counsel;

(b) The sums currently available under the responsive policy and how much has been paid out of the policy including on defence costs;

(c) The insurer's position on coverage, including whether the insurer has committed to coverage, taken an off-coverage position, or reserved their rights;

(d) If the insurer takes an off-coverage position, the reasons for the insurer's position and whether the insurer and the insured are in agreement; and

(e) If the insurer has taken an off-coverage position, or if no insurance policy is responsive to the Claim:

(i) Hockey Canada's position on whether it will commit to covering the claim; and

(ii) If Hockey Canada will not cover the claim, the reasons for its refusal.

18.3 CHL Counsel or Defending Counsel will report to IIP Counsel and Claimant's Counsel, every 60 days from the provision of the first Insurance Information until this protocol is exhausted, on the erosion, to that date, through fees paid to counsel in the Carcillo action or under this process, of the limits of the policies identified as responsive to the Claims.

19. Early Testing of Claims for the Purpose of Settlement

19.1 Where, after reviewing a Claim Synopsis, Defending Counsel may be prepared to engage in reasonable settlement discussions, a limited testing of the Claim will be permitted.

19.2 Where Defending Counsel wishes to test a claim for the purpose of potential settlement, they can request, through a Claimant's counsel, to review the evidence described in the Claims Synopsis, and/or to interview the Claimant. Defending Counsel will have 30 days, after receiving the Claim Synopsis, to make such a request.

19.3 A Claimant may refuse a request to review documents or attend an interview, and such refusal will have no bearing on the determination of the Claim in Phase C.

19.4 Where the Claimant agrees to an interview, the interview:

(a) Must be conducted within 60 days of the Claimant's confirmation;

(b) Will be conducted by Defending Counsel in the presence of the Claimant's counsel and the Support Person;

(c) Will not be longer than 2 hours, unless the parties agree to extend it;

(d) Will not be recorded;

(e) Will be held on a without prejudice basis, and may not be used – in any form or for any reason – in the determination of any Claim in Phase C;

(f) Will be conducted in a trauma-informed manner; and

(g) Can be terminated by the Claimant at any time.

19.5 Where documents are requested, the Claimant will have 30 days to provide the documents to Defending Counsel.

20. Early Settlement Offers

20.1 Any early settlement offers will be made by the latest of the following dates:

(a) If no interview or documents are requested, 30 days after the Claim Synopsis is provided to Defending Counsel;

(b) If the Claimant declines to provide an interview or documents, 30 days after that decision is communicated to defendants' counsel;

(c) If an interview is conducted, 30 days after the interview; and

(d) If documents are requested, 30 days after the documents are provided.

20.2 Any early settlement offer must be valid for a period of at least 30 days.

20.3 Where a Claimant has requested an apology, any early settlement offer provided must specify whether such an apology will be forthcoming, from whom the apology will emanate, and any conditions under which the apology will be made.

20.4 Where an early settlement offer is accepted, the Administrator will be informed and will record this information in the Claims Index.

Phase C: Claims Determination

21. Selection of Tracks by Claimants

21.1 Each Claimant who wishes to proceed with the determination of their claim shall select a Track for the determination of their claim.

(a) Track 1 and 2 claims will be heard by a Claims Adjudicator from the Adjudicator Roster.

(i) Track 1 claims are for non-pecuniary League and Team Damages only and will be determined on a paper record without a hearing. Damages awarded for a Track 1 claims will not exceed $100,000. Costs in Track 1 will be capped at $12,000, unless a Rule 49 offer to settle has been made to which cost consequences apply.

(ii) Track 2 claims are for any League and Team Damages and will be determined at a hearing.

(b) Track 3 claims will proceed by summary judgment, with the modifications set out below.

21.2 Counsel for the Claimant, or the Claimant, will advise the Administrator of the Track selected by the Claimant.

21.3 The Administrator will add the Track chosen by the Claimant to the Claims Index and will provide a copy of the Index, with this information listed for each Claim, to counsel for each Claimant.

22. Filing of Joinder Actions

22.1 Claimants will be grouped by the Team on which the majority of the abuse that they experienced occurred, at the discretion of IIP Counsel or counsel for the Claimant.

22.2 Up to two joinder actions will be commenced per Team:

(a) For each Team for which at least two Claimants have opted for Track 1 or 2, a joinder action will be commenced.

(b) For each Team for which at least two Claimants have opted for Track 3, a Track 3 joinder action will be commenced.

22.3 Where there is only one Track 1 or 2 Claimant, or only one Track 3 Claimant, for a Team, an individual action will be commenced. The adjudication procedures, described below, will apply to these actions.

22.4 Each action under this Protocol will be filed in Toronto. No defendant or Claimant will move to transfer any action under this Protocol.

22.5 All Track 1 and 2 actions will proceed in sealed court files in accordance with s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Track 3 claimants may apply in the regular course to seal all or part of their court file.

22.6 Each action will name, as defendants, the Team, Member League, and the CHL, and any additional Teams against which a Claimant in that action has claims.

22.7 Track 1 and 2 Actions will be commenced within 6 months of the Claims Deadline.

22.8 Defending Counsel will accept service of the action on behalf of the defendants that they represent.

22.9 No motion, other than motions contemplated in this Protocol, may be brought on an action under this Protocol without leave of the court.

23. Lifting of the Implied Undertaking Rule

23.1 The Deemed Undertaking Rule (rule 30.1) will not apply between actions commenced under this Protocol.

23.2 Evidence obtained in one action commenced under this Protocol may be proffered in any other action commenced under this Protocol, provided that it is relevant and material to the action in which it is proffered.

Procedure and Protections for Track 1 and 2 Claims

24. Allocation of Adjudicators to Track 1 and 2 Claims

24.1 Each individual Track 1 and 2 Claim will be referred to a Claims Adjudicator for determination in accordance with this Protocol.

24.2 Track 1 and 2 Claims will be determined out of court.

24.3 Track 1 and 2 Claims will be allocated to Claims Adjudicators in a manner that promotes efficiency and consistency in determinations.

24.4 To the greatest extent possible, the same Claims Adjudicator or Adjudicators will consider all of the Track 1 and 2 Claims from one Member League.

25. Lead Adjudicator Opinion

25.1 An individual Claims Adjudicator will be appointed, from the Adjudicator Roster, by the IIP Judge to act as Lead Adjudicator.

25.2 The opinions expressed by the Lead Adjudicator in their reports will guide other Claims Adjudicators in considering similar issues to those considered by the Lead Adjudicator. Claims Adjudicators should provide reasons for departing from these opinions.

26. Common Documents Package

26.1 To reduce duplication of efforts, IIP Counsel and CHL Counsel will endeavour to agree on a Common Documents Package for all claims.

26.2 The Common Documents Package, if one is agreed upon, will be provided to all Claimants' counsel, and will form part of the record before a Claims Adjudicator on each Track 1 and 2 Claim.

26.3 The admissibility of, and weight to be given to, evidence contained in any Common Documents Package will be for each Claims Adjudicator to decide.

27. Cross-Examination with Support Person Present

27.1 On Track 1 and 2 Claims, a Claimant may request that their cross-examination be conducted in the presence of the Support Person.

27.2 The Support Person will provide support before, during and after the cross-examination, and may speak with the Claimant about their evidence during any breaks in the cross-examination.

28. Track 1 Claims

28.1 Only non-pecuniary League and Team Damages of up to $100,000 will be available in Track 1.

28.2 There will be no examinations for discovery in Track 1.

28.3 The process for litigating a Track 1 claim will be as follows:

(a) The Claimant will provide, to the Claim Adjudicator and the defendants, a personal affidavit.

(b) The Claimant may also provide, at the same time, up to four additional affidavits in support of their claim.

(c) Within 60 days of receiving the Claimant's affidavits, the Defendants may provide, to the Claim Adjudicator and the Claimant, up to 5 affidavits.

(d) Within 30 days of receiving the Defendants' affidavits, if any, the Claimant may provide reply affidavits.

(e) Upon the last of these affidavits being provided, each of the affiants may be cross-examined:

(i) Orally, for a duration of no more than 2 hours, unless the parties agree to extend it; or

(ii) By written interrogatories of equivalent length to that permitted orally.

(f) All cross-examinations will be conducted, and all written interrogatories responded to, within 90 days upon request.

(g) The Claimant will provide written submissions of no more than 30 pages:

(i) If no cross-examinations are requested, within 60 days of the final affidavit being provided;

(ii) If cross-examinations are requested, within 60 days of the transcript being delivered for the final cross-examination.

(h) Within 45 days of receiving the Claimant's written submissions, the Defendants may provide one set of written submissions of no more than 30 pages.

(i) Within 20 days of receiving the Defendants' written submissions, the Claimant may provide a short 5-page reply.

28.4 No other evidence, other than any Common Documents Package, can be provided on a Track 1 Claim. However, where relevant, the Adjudicator may consider an affidavit or a cross-examination provided or conducted on another Track 1 or Track 2 Claim.

28.5 After receiving the Defendants' written submissions, the Claims Adjudicator shall prepare a report addressing the points described at part 30.1, below, and shall endeavour to do so within 90 days.

28.6 On a Track 1 Claim, an Adjudicator may not award costs of more than $12,000.

29. Track 2 Claims

29.1 Only League and Team Damages will be available in Track 2.

29.2 IIP Counsel and CHL Counsel will agree upon a roster of joint experts in the following areas for use in all Track 2 Claims:

(a) Psychology/Psychiatry;

(b) Cost of Future/Past Healthcare;

(c) Vocational; and

(d) Accounting.

29.3 The cost of the joint experts will be borne by the Defendants in each Track 2 claim until a final decision is made with respect to costs and disbursements.

29.4 The process for making a Track 2 claim will be as follows:

(a) Affidavits of Documents:

(i) The Claimant will provide an affidavit of documents.

(ii) Within 60 days of receiving the Claimant's affidavit of documents, each Defendant will provide an affidavit of documents;

(b) Examinations for Discovery:

(i) Within 90 days of the exchange of affidavits of documents, examinations for discovery will take place.

(ii) No party shall, in conducting oral examinations, exceed a total of three hours of examination, regardless of the number of parties or other persons to be examined.

(c) Fact Evidence:

(i) Within 120 days of the completion of examinations for discovery, the joint experts shall deliver their reports to the parties.

(ii) Within 45 days of the completion of the joint expert reports, the Claimant shall provide a personal affidavit in support of their claim, and any additional affidavits.

(iii) Within 45 days of receiving the Claimant's affidavits, the Defendants may provide responding affidavits.

(iv) Within 30 days of receiving the Defendants' responding affidavits, the Claimant may provide reply affidavits.

(d) Upon the last of these affidavits being provided, each of the affiants may be cross-examined:

(i) Orally, for a duration of no more than 4 hours, unless the parties agree to extend it; or

(ii) By written interrogatories of equivalent length to that permitted orally.

(e) All cross-examinations will be conducted within 60 days upon request.

(f) The Claimant will provide written submissions of no more than 40 pages:

(i) If no cross-examinations are requested, within 45 days of the final affidavit.

(ii) If cross-examinations are requested, within 45 days of the final cross-examination transcript being delivered.

(g) Within 30 days of receiving the Claimant's written submissions, the Defendants may provide written submissions of no more than 40 pages.

(h) Within 15 days of receiving the Defendant's written submissions, the Claimant may provide reply submissions of no more than 10 pages.

29.5 Within 15 days of receiving the final written submissions, the Claims Adjudicator will convene an oral hearing of no more than one day.

29.6 The Claims Adjudicator shall, following the oral hearing, prepare a report addressing the points described at part 30.1, below, and shall endeavour to release the report within 90 days.

30. Adjudicator Reports and Confirmation Motions

30.1 Upon determining a Track 1 or Track 2 claim, the Claims Adjudicator will issue a report stating:

(a) The events that the Claims Adjudicator is satisfied, on a balance of a probabilities, took place;

(b) The harms that the Claims Adjudicator is satisfied, on a balance of probabilities, were suffered by the Claimant as a result of these events;

(c) The defendants that the Claims Adjudicator finds liable for these harms, and why;

(d) The apportionment of liability as between defendants, and to any non-parties, if applicable;

(e) The damages that the Claims Adjudicator recommends awarding to the Claimant; and (f) Any award of costs that the Claims Adjudicator deems appropriate.

30.2 Claimants' Counsel will bring motions to confirm the Claims Adjudicators' reports, which motions may be brought individually or in batches.

30.3 IIP Counsel, Claimant's Counsel, Defending Counsel or CHL Counsel may make submissions on a confirmation motion.

31. Track 3 Claims

31.1 Track 3 Claims shall be determined by summary judgment motions pursuant to the Rules of Civil Procedure, with the alterations described below.

31.2 One or more summary judgment motions will be brought to determine the claims in each Track 3 joinder action, at the discretion of Claimant's Counsel.

31.3 For each Claimant on a Track 3 Claim, the Statement of Claim will provide, to the best of the Claimant's knowledge, information identifying the individuals who directly perpetrated the abuse at issue in their claim. These individuals:

(a) May be named, additionally to the Claimants' Team, Member League and the CHL, as defendants on the Statement of Claim; or

(b) May be the subject of a Third Party Claim brought by the Defendants within the timeframe set out below.

31.4 The process for determining Track 3 Claims will be as follows:

(a) Within 30 days of receiving a Statement of Claim for a Track 3 joinder action, the Defendants shall deliver their Statement of Defence and any Third Party Claim, pursuant to part 31.3(b), above.

(b) The Claimants shall deliver their reply:

(i) Within 30 days after receiving the Statement of Defence, if no Third Party Claim has been made;

(ii) Within 45 days after receiving the Statement of Defence, if a Third Party Claim has been served in Ontario;

(iii) Within 60 days after receiving the Statement of Defence, if a Third Party Claim has been served elsewhere in Canada or in the United States; or

(iv) Within 90 days after receiving the Statement of Defence, if a Third Party Claim has been served anywhere else.

(c) Within 120 days after delivering their reply, the Claimants shall deliver a notice of motion for summary judgment, and their supporting affidavits for the motion.

(d) Within 120 days after receiving the Claimants' motion and supporting affidavits, the Defendants and any Third Party may deliver affidavits in response to the summary judgment motion.

(e) Within 60 days after delivery of the Defendants and Third Party's responding materials, any party may deliver reply affidavits.

(f) No less than 30 days after the delivery of the Defendants and Third Party's responding materials, the Claimants shall bring a motion to fix a timetable for the balance of the summary judgment motion.

32. Discontinuance of the Class Proceeding: Carcillo v. Canadian Hockey League et al

32.1 Pursuant to s. 28 of the Class Proceedings Act, as it stood when the Carcillo action was filed, the limitation period for claims under this Protocol was suspended on June 18, 2020.

32.2 Pursuant to s. 28 of the Class Proceedings Act, as it stood when the Carcillo action was filed, the limitation period for claims under this Protocol will remain suspended until the class proceeding is discontinued.

32.3 When IIP Counsel is satisfied that all joinder actions contemplated by this Protocol have been issued, IIP Counsel will bring a motion to discontinue the class action.

32.4 If IIP Counsel fails to do so, CHL Counsel may bring a motion to discontinue the class action.

32.5 The Dismissal Order of Perell J., on the Ragoonanan motion brought by the defendants in the Carcillo action will remain suspended until the class proceeding is discontinued, unless the IIP Judge orders otherwise.

Schedule “B”: Abuse of Players in the Canadian Hockey League IIP- Notice and Dissemination Plan

1. General

1.1 This Notice and Dissemination Plan governs the procedure for notifying Players (as defined below) who played in the Canadian Hockey League (including its Member Leagues, the Ontario Hockey League, Western Hockey League, and Quebec Major Junior Hockey League) of the Individual Issues Protocol ("IIP") and the opportunity to opt-in to make a claim under the IIP.

1.2 In this Notice and Dissemination Plan:

(a) "Administrator" means a company to be determined by the parties providing

administration services;

(b) "CHL" means the Canadian Hockey League;

(c) "QMJHL" means the Quebec Major Junior Hockey League;

(d) "OHL" means the Ontario Hockey League;

(e) "WHL" means the Western Hockey League;

(f) "Member Leagues" means the QMJHL, OHL, and WHL;

(g) "Teams" means the major junior hockey teams of the Member Leagues;

(h) "the Carcillo action" means the proposed class action, Carcillo v. Canadian Hockey League, CV-20-00642705-00CP;

(i) "IIP Judge" means the case management judge for the Carcillo Action;

(j) "IIP Counsel" means Koskie Minsky LLP, in their role as Counsel responsible for administering the Individual Issues Protocol on behalf of all Claimants;

(k) "CHL Counsel" means the lawyers representing the defendants in the Carcillo Action with respect to issues relating to the administration of the IIP Process;

(l) "Player" means any individual who plays, has played, or who attended a training camp or other activities as a prospective player, for any Team within the CHL at any time from 1975 to the present;

(m) "Notice Date" means the date on which the Administrator sends an email to Players, as contemplated in part 3.2(d); and

(n) "Claims Period" means the 12-month period between the Notice Date and the deadline for making a claim.

2. Form of Notice

2.1 Notice of the IIP will be provided to Players:

(a) In the short form set out in Appendix A, as distributed in accordance with this plan; and,

(b) In the form of a website ("the CHL Abuse Website"), as described in part 4, below, and Appendix B, a link to which will be distributed in accordance with this plan.

3. Distribution of Short Form Notice

3.1 The Short Form Notice will be distributed by the Administrator, IIP Counsel, CHL Counsel and the Defendants, as described below.

3.2 The Short Form Notice shall be distributed to Players by email, as follows:

a) Each defendant Team, Member League, and the CHL shall provide the Administrator with the email address of every current and former Player for whom the Team or League has this information within 30 days of this Notice and Dissemination Plan being ordered.

(b) CHL Counsel shall ensure that every defendant Team and League fulfils the obligation set out in part 3.2(a), above.

(c) IIP Counsel shall provide the Administrator with the email address of every current and former Player who has contacted IIP Counsel regarding abuse in the CHL, within 30 days of this Notice and Dissemination Plan being ordered.

(d) When parts 3.2(a) to 3.2(c) have been complied with, the Administrator shall send to each Player for whom an email address has been provided the Short Form Notice, in both English and French.

3.3 The Administrator shall send the Short Form Notice and the French language translation to any Player who requests it after the Notice Date.

3.4 The defendants and CHL Counsel shall provide a copy of the Short Form Notice to any individual who contacts them during the Claims Period regarding abuse of Players.

3.5 On the Notice Date, or within 7 days thereafter, IIP Counsel shall issue a press release, in English and French through Canada Newswire, announcing the claims process and including within it the Short Form Notice.

3.6 The Administrator and IIP Counsel shall post the Short Form Notice and its French language translation on their websites on, or within 7 days after, the Notice Date.

3.7 Each defendant that maintains a website or websites shall post the Short Form Notice and its French language translation on their websites.

(a) This posting must be made in a prominent, easily accessible section of the defendants' websites, and – if the websites contain a section relating to player support – shall be posted in that section.

(b) This posting must be made on, or within 14 days after, the Notice Date.

3.8 Within 14 days of the Notice Date, each defendant Team shall post, and re-post as necessary, paper copies of the Short Form Notice in the arena in which that Team plays:

(a) In a prominent location by or close to each entrance/exit used by the public in attending hockey games; and

(b) In a prominent location in each locker room used by any Player.

3.9 The defendants are responsible for ensuring that all paper copies of the Short Form Notice are replaced if removed, defaced or damaged.

4. The CHL Abuse Website

4.1 The Administrator, with input from IIP Counsel and CHL Counsel, will create a website ("the CHL Abuse Website").

4.2 The CHL Abuse Website will become public on the Notice Date, shortly prior to or simultaneously with the sending of the email contemplated in part 3.2(d).

4.3 The CHL Abuse Website will be maintained until the IIP is exhausted or the External Reviewer publishes their report, whichever occurs later, and for at least 5 years thereafter.

4.4 The CHL Abuse Website will include the pages and content set out in Appendix B, and any additional content that the parties agree to include, or that the IIP Judge orders be included.

4.5 The CHL Abuse Website will include a professionally produced video, to be produced at the expense of the defendants.

4.6 The CHL Abuse Website will include a pop-up warning, when first accessed from a particular device and internet browser, regarding the nature of the details of abuse described therein.

4.7 The CHL Abuse Website will include a prominent "Exit Website" button on every page, allowing individuals to navigate away from the CHL Abuse Website.

4.8 The CHL Abuse Website will be available in both English and French.

(a) The Administrator will translate each page of the website into French.

(b) Prominent buttons in the header of the website, included on every page, will allow visitors to the website to switch between the English and French versions.

4.9 Once complete, the External Reviewer's public report, as described in part 8 of the Individual Issues Protocol, will be posted on the CHL Abuse Website.

5. Dissemination of Link to the CHL Abuse Website

5.1 In addition to the distribution of the Short Form Notice, the link directing Players to the CHL Abuse Website will be disseminated with the following text:

(a) "Did you play in the Canadian Hockey League at any time since 1975? If you suffered abuse in the Canadian Hockey League, you can claim compensation. Your claim can be kept confidential. Visit [CHL Abuse Website] to learn more and make a claim;" or

(b) "Did you play in the Canadian Hockey League at any time since 1975? If you suffered abuse in the Canadian Hockey League, you can claim compensation. Your claim can be kept confidential. Click here to learn more and make a claim."

5.2 The Administrator shall post advertisements, using the text set out in part 5.1, above, and containing a link to the CHL Abuse Website, in the following ways, to be maintained through the Claims Period:

(a) Internet banner notices on Google Display Network, Facebook, and advertisements on social media applications, including but not limited to Instagram and Twitter; and

(b) Advertisements on website dedicated to sports reporting, including but not limited to thehockeynews.com, hockeyfeed.com, sportsnet.ca; and theathletic.com.

5.3 Each defendant that maintains a social media account, including but not limited to an account on Facebook, Instagram, or Twitter, shall post the text set out in part 5.1, above, including a link to the CHL Abuse Website, on each social media account at least 4 times during the Claims Period, with each post no less than 30 days apart.

Appendix A: Short Form Notice

DID YOU PLAY IN THE CANADIAN HOCKEY LEAGUE?

If you were abused while playing in the CHL, you can claim compensation through a confidential process now.

Since 1975, hockey players have experienced bullying, hazing and abuse while playing on teams in the Canadian Hockey League. A claims process has been created to allow these players to claim compensation.

Am I eligible to make a claim?

You are eligible to make a claim if:

(1) You played for, or participated in training or tryouts for, a team in the CHL, including any team in the OHL, WHL, or QMJHL, at any time since 1975; and

(2) You experienced bullying, hazing or abuse while playing in the CHL.

What can I claim?

You can make a claim for compensation for the abuse that you experienced. If successful, you will receive money to compensate you for the harms that you suffered because of that abuse. You will also be able to share your story on an anonymous basis with a third-party reviewer, who will compile a public report on abuse in the CHL.

How will my claim be determined?

You will choose how your claim is determined from three possible tracks. The simplest of those tracks is confidential, does not involve a court hearing, and will allow you to claim up to $100,000. However, you may be entitled to much more money.

What do I have to do to make a claim?

This is an opt-in claims process. To start a claim using this process, visit [CHL Abuse Website] or contact Koskie Minsky LLP or the Administrator by [Claims deadline], using the information below. Koskie Minsky LLP Administrator

[Telephone]

[Email]

[Telephone]

[Email]

For more information visit: [CHL Abuse Website]

Appendix B: Contents of the CHL Abuse Website Home Page

This page will contain:

(a) A professionally-produced video featuring former players;

(b) A short introductory paragraph; and

(c) An adapted form of the Short Form Notice, with links to other pages in the website where appropriate.

Abuse in the CHL

This page will include buttons to download Perell J.'s Certification Reasons, the Independent Review Panel Report, the Affidavits of Players filed on the Certification Motion, in addition to the various types of abuse that this process aims to compensate.

The Claims Process

This page will contain a button to download a full copy of the Individual Issues Protocol, in addition to text providing a plain language description of each of the Phases and Tracks of the Protocol.

Wellness Support

This page will contain:

(d) Information on contacting the Support Person, as described in the IIP.

(e) Links to other external online supports, not to include resources of any kind created by the defendants.

Make a Claim

This page will contain a short webform through which Players can provide the information required to initiate a claim.

FAQs

This page will include a list of questions, that can be expanded to view the answers.

Schedule C - Common Discovery Order

Court File No.: CV-20-642705-00CP

ONTARIO

SUPERIOR COURT OF JUSTICE

THE HONOURABLE MR. JUSTICE PERELL

-DAY THE – DAY OF – 2023

-style of cause-

COMMON DISCOVERY ORDER

THIS MOTION, made by the Plaintiffs for the approval of an Individual Issues Protocol ("IIP") and an order addressing the process for and scope of common production of documents pursuant to that IIP was heard this day;

ON READING the Notice of Motion of the Plaintiffs, the affidavit of Catherine MacDonald dated June 5, 2015 and the exhibits thereto, the Affidavits of Dr. Wolfe and Dr. Jaffe, affirmed June 2, 2023 and the exhibits thereto, the Motion Records, Transcripts, and Factums filed in the motions heard November 14-17, 2022, the and on hearing the submissions of the lawyers for the Plaintiffs and the Defendants, and such other counsel as were present and listed on the counsel slip:

1. THIS COURT ORDERS that the Defendants produce to the Plaintiffs the following documents (collectively, "Common Discovery Documents"):

(a) Any survey, poll, questionnaire, sampling or investigation commissioned, prepared, or distributed by the Canadian Hockey League ("CHL"), the Ontario Hockey League ("OHL"), the Western Hockey League ("WHL"), or the Quebec Major Junior Hockey League ("QMJHL") since the commencement, relating to the experience of any Player[^19] who experienced Abuse[^20] while playing in the CHL between May 8, 1975 and the present, and the results thereof;

(b) Any minutes, record, narrative, proceedings, Synopsis, or notes of:

(i) any CHL Executive Council meeting at which Abuse was discussed, discussed, debated, considered, reviewed, examined or explored between May 8, 1975 and the present;

(ii) any CHL Board meeting at which Abuse was discussed, discussed, debated, considered, reviewed, examined or explored between May 8, 1975 and the present;

(iii) any other meeting of any other committee, board, cabinet, chamber, panel, or task force of the CHL at which Abuse was discussed, discussed, debated, considered, reviewed, examined or explored between May 8, 1975 and the present;

(iv) any OHL, WHL and/or QMJHL Board of Governors meeting at which Abuse was discussed, discussed, debated, considered, reviewed, examined or explored between May 8, 1975 and the present;

(v) any other meeting of any other committee, board, cabinet, chamber, panel, or task force of the OHL, WHL and/or QMJHL at which Abuse was discussed, discussed, debated, considered, reviewed, examined or explored between May 8, 1975 and the present;

(vi) to the extent not captured by any of subparagraphs (b)(i) to b(v), any ad hoc committee of the CHL, OHL, QMJHL, and/or WHL at which Abuse was discussed, discussed, debated, considered, reviewed, examined or explored May 8, 1975 and the present;

(c) Any policy, procedure, memorandum, opinion, blueprint, code or guideline prepared by the CHL, OHL, WHL, or QMJHL relating to Abuse or the prevention of Abuse used between May 8, 1975 and the present;

(d) Any constitution, charter, cannon, laws or regulations governing the CHL, OHL, WHL, QMJHL, whether these organizations were identified by that name or any other name including the Canadian Major Junior Hockey League used at any time between May 8, 1975 and the present;

(e) Any relevant document relating to a decision to discipline, punishment, sanction or correction (collectively, "Sanctions") of any Team[^21] or Player relating to Abuse by:

(i) the CHL;

(ii) the OHL;

(iii) the WHL; and

(iv) the QMJHL.

regardless of whether the Sanction was formal or informal, or whether the decision was made to impose Sanctions or not to impose any Sanctions, made between May 8, 1975 and the present;

(f) All relevant documents in the power, possession or control of the CHL, the OHL, the WHL, and/or the QMJHL effecting or otherwise relating to any direct or indirect sale, conveyance, transfer, assignment or other disposition (voluntary or involuntary, by operation of law or otherwise, and whether or not for consideration) (each, a "Transfer") between May 8, 1975 and the present, of:

(i) any interest in all or a portion of the assets of any Team, except for Transfers of assets which do not comprise a significant portion of the assets of any Team conducted in the normal course of business of such Team(s);

(ii) any interest in all or a portion of the shares, units, or other ownership interests in any Team. For clarity, any issuance or cancellation of any shares, units or other ownership interests in a Team which results in any change in the ownership of the Team shall be considered a "Transfer" subject to this section;

(g) All relevant documents effecting or otherwise relating to a change in Control[^22] of any entity with a direct or indirect ownership interest in any Team or which Controlled any Team between May 8, 1975 and the present in the power, possession or control of the CHL, the OHL, the WHL, and/or the QMJHL; and

(h) All relevant documents in the power, possession or control of the CHL, the OHL, the WHL, and/or the QMJHL effecting or otherwise relating to the amalgamation, merger, reorganization, restructuring, dissolution, liquidation, wind-up, termination, cancellation, insolvency or bankruptcy of any Team between May 8, 1975 and the present.

2. THIS COURT ORDERS that the Defendants shall produce the following specified list of documents in their power, possession or control (the "Hockey Canada CHL Insurance Documents"):

(a) Hockey Canada, “History of the National Equity Fund” referenced at footnote 544 of the Final Report, Hockey Canada Governance Review of the Honourable Thomas Cromwell, C.C., dated October 31, 2022 ("Final Cromwell Report");

(b) Hockey Canada, Board of Directors, Minutes of Meeting (held on 1-3 December 1989) referenced at footnote 559 to 560 of the Final Cromwell Report;

(c) Note 9 to the Hockey Canada, “Financial Statements” (year end 30 June 2000) referenced in footnote 425 of the Interim Report, Hockey Canada Governance Review of the Honourable Thomas Cromwell, C.C., dated October 31, 2022 ("Interim Cromwell Report");

(d) Application made to the Court of Queen’s Bench of Alberta by the Trustees of the Legacy Trust (25 January 2019) referenced at paragraph 574 and 577 of the Final Cromwell Report;

(e) Hockey Canada presentation from the 2018 Spring Congress to its Members referenced at footnote 580 of the Final Cromwell Report;

(f) Canada Hockey Association, “Trust Agreement” (1 June 1999) (the "Trust Agreement") referenced in footnote 426 to 428 of the Interim Cromwell Report and footnote 573 and 575 of the Final Cromwell Report, and any prior or subsequent iterations of the same document, including any document modifying the Trust Agreement;

(g) Canadian Hockey Association, “Tail Coverage Agreement” (24 May 1999) referenced in footnote 429 of the Interim Cromwell Report and footnote 576 of the Final Cromwell Report, and any prior or subsequent iterations of the same document;

(h) Email to BFL Canada from AIG (11 May 2022) referenced in footnote 621 of the Final Cromwell Report; and

(i) Any other document related to moneys available to Hockey Canada (or its predecessor the Canadian Hockey Association) used to reduce insurance costs for the benefit of CHL, OHL, WHL, and/or QMJHL, or their Players.

3. THIS COURT ORDERS that, in accordance with the Abuse of Players in the Canadian Hockey League Individual Issues Protocol dated, ­­­_______, 2023 the Defendants shall produce the Common Discovery Documents on a rolling basis, as soon as a document is available for production. Production of all documents shall be made by no later than _________ (the "Outside Date").

Appendix A

OHL - Current Teams

WHL – Current Teams

QMJHL – Current Teams

Barrie Colts,

Erie Otters,

Flint Firebirds

Guelph Storm,

Hamilton Bulldogs,

Kingston Frontenacs,

Kitchener Rangers,

London Knights,

Mississauga Steelheads,

Niagara IceDogs,

Northbay Battalion,

Oshawa Generals,

Ottawa 67's,

Owen Sound Attack,

Peterborough Petes,

Saginaw Spirit,

Sarnia Sting,

Soo Greyhounds,

Sudbury Wolves,

Windsor Spitfires

Kamloops Blazers,

Kelowna Rockets,

Prince George Cougars,

Vancouver Giants,

Victoria Royals,

Calgary Hitmen,

Edmonton Oil Kings,

Lethbridge Hurricanes,

Medicine Hat Tigers,

Red Deer Rebels,

Swift Current Broncos,

Brandon Wheat Kings,

Moose Jaw Warriors,

Prince Albert Raiders,

Regina Pats,

Saskatoon Blades,

Winnipeg ICE

Everett Silvertips,

Portland Winterhawks,

Seattle Thunderbirds,

Spokane Chiefs,

Tri-City Americans

Acadie-Bathurst Titan,

Baie-Comeau Drakkar,

Blainville- Boisbrand Armada,

Cape Breton Eagles,

Charlottetown Islanders,

Chicoutimi Sagueneens,

Drummondville Voltigeurs,

Gatineau Olympiques,

Halifax Mooseheads,

Moncton Wildcats,

Quebec Remparts,

Rimouski Oceanic,

Rouyn-Noranda Huskies,

Saint John Sea Dogs,

Shawinigan Cataractes,

Sherbrooke Phoenix,

Val-D'Or Foreurs,

Victoriaville Tigres

OHL - Former Teams

WHL – Former Teams

QMJHL – Former Teams

Cornwall Royals,

Newmarket Royals,

Niagara Falls Flyers,

North Bay Centennials,

Brantford Alexanders,

Hamilton Steelhawks,

Niagara Falls Thunder,

Guelph Platers,

Toronto Marlboros,

Dukes of Hamilton,

Detroit Junior Red Wings,

Detroit Whalers,

Plymouth Whalers,

Brampton Battalion,

Mississauga IceDogs,

Toronto St. Michael's Majors,

Belleville Bulls

Billings Bighorns

Calgary Centennials

Calgary Wranglers

Chilliwack Bruins

Edmonton Ice

Edmonton Oil Kings

Estevan Bruins

Great Falls Americans

Kamloops Chiefs

Kamloops Junior Oilers

Kelowna Wings

Lethbridge Broncos

Moose Jaw Canucks

Nanaimo Islanders

New Westminster Bruins

Seattle Breakers

Spokane Flyers

Tacoma Rockets

Vancouver Nats

Victoria Cougars

Winnipeg Monarchs

Winnipeg Warriors

Beauport Harfangs

Cape Breton Screaming Eagles

Hull Hawks

Hull Festivals

Hull Olympiques

Laval National

Laval Saints

Laval Voisins

Laval Titan

Laval Titan Collège Français

Longueuil Chevaliers

Montreal Bleu Blanc Rouge

Montreal Junior Canadiens

Montreal Junior Hockey Club

Montreal Juniors

Montreal Rocket

Plattsburgh Pioneers

Rosemount National

Saint-Hyacinthe Laser

Saint-Jean Castors

Saint-Jean Lynx

Saint-Jérôme Alouettes

Shawinigan Bruins

Shawinigan Dynamos

Sherbrooke Castors

Sherbrooke Faucons

Sorel Éperviers

St. John's Fog Devils

Verdun Éperviers

Verdun Juniors

Verdun Junior Canadiens

Granby Bisons

Granby Prédateurs

Trois-Rivières Draveurs

Trois-Rivières Ducs

Schedule D: Defendants’ Joinder Actions Protocol

1. Background and Purpose

1.1 This Joinder Actions Protocol (“Protocol”) arises from the Decision of Justice Perell dated February 3, 2023 (2023 ONSC 886) in the Ontario Superior Court of Justice action styled Carcillo v Canadian Hockey League, Court File No. CV-20-642705-00CP (defined as the “Carcillo Action” below) (the “Decision”).

1.2 In the Decision, the Court granted a motion by certain defendants to dismiss the Carcillo Action as against 55 Teams under the Ragoonanan principle and dismissed a motion by the plaintiffs to certify the proceeding as a class action (as the capitalized terms are defined below). The Court also directed that the Carcillo Action plaintiffs could bring a motion to establish an individual issues protocol for transitioning the proposed class action to opt-in joinder actions under the Rules of Civil Procedure, as permitted under section 7(2) of the Class Proceedings Act, 1992. In particular, the Court in the Decision:

(a) determined that “joinder could be made for those putative Class Members who self-identify and opt-in to advance a claim against a particular team and its co-defendants” and “joinder of cases based on similar experiences among claimants is a more appropriate and feasible means to achieve access to justice”; and

(b) stated that it “shall be making an order pursuant to s. 7 of the Class Proceedings Act, 1992” approving a process governing “individual (discreet/separate) joinder actions”, in effect “designing an opt-in joinder action for 60 actions where a group of co-plaintiffs will sue three co-defendants comprised of (a) a specific team, (b) that specific team’s league (WHL, OHL, or QMJHL), and (c) the CHL”.

1.3 Accordingly, this Protocol responds to the Carcillo Action plaintiffs’ proposed protocol to bring the process to be ordered under section 7 of the Class Proceedings Act, 1992 in line with the Decision and the Rules of Civil Procedure.

1.4 As provided below, joinder actions under this Protocol will proceed with reference to one or more of the Rules of Civil Procedure, the simplified procedure, and the Rules of the Small Claims Court as appropriate.

1.5 This Protocol adopts the existing framework provided under the Rules of Civil Procedure for resolving any procedural and substantive issues that may arise in the litigation that it governs. Those issues will be decided in context, on a proper evidentiary record, in an appropriately streamlined and coordinated way if possible, if and when those issues arise. In particular, this Protocol creates a framework for determining:

(i) the composition and boundaries of any joinder actions under the Rules of Civil Procedure;

(ii) the possibility of early resolution of claims;

(iii) the scope of documentary disclosure and any common discovery across actions;

(iv) the availability of procedural and other non-dispositive relief (e.g. sealing orders); a

(v) the availability of summary judgment motions to resolve part or all of an action. This Protocol does not abrogate or modify any procedural or substantive rights or protections under the Rules of Civil Procedure, at common law, or otherwise. Timelines identified in this Protocol are intended to be flexible and subject to the control and direction of the Case Management Judge (as that term is defined below).

1.6 This Protocol encourages settlements by identifying non-exhaustive settlement processes and opportunities, but it in no way constrains when and what settlement steps may occur. For clarity, nothing in this Protocol precludes or requires the settlement of part or all of any action under this Protocol at any time.

1.7 This Protocol may be amended by order of the Court. The parties may move to amend the Protocol before the Case Management Judge. The parties may consent to amendments to the Protocol, subject to the approval of the Case Management Judge.

1.8 The principles set out in section 1 of this Protocol form part of this Protocol and should inform its interpretation and execution.

2. Definitions

2.1 In this Protocol:

(a) “Administrator” means the third-party company appointed by the Court to perform administration duties assigned to the Administrator under this Protocol;

(b) “Carcillo Action” means the proceeding in the Ontario Superior Court of Justice bearing Court File No. CV-20-642705-00CP;

(c) “Case Management Judge” means any judge of the Court who is assigned case management authority over the Carcillo Action or one or more actions started under this Protocol (or both);

(d) “CHL” means the Canadian Hockey League;

(e) “Carcillo Defence Counsel” means counsel to the Carcillo Action defendants;

(f) “Court” means the Ontario Superior Court of Justice;

(g) “Defendants” mean the Carcillo Action defendants;

(h) “Koskie Minsky” means Koskie Minsky LLP in its capacity as counsel to the plaintiffs in the Carcillo Action;

(i) “Member Leagues” means the OHL, QMJHL, and WHL (collectively, and each individually, a “Member League”);

(j) “Notice Date” means the date that is 60 days after the individual issues protocol motion decision is released, by which time the Administrator and the parties to the Carcillo Action must first transmit the Notice to Players;

(k) “OHL” means the Ontario Hockey League;

(l) “Opt-In Deadline” means the date that is 60 days after the Questionnaire Deadline, by which time Players who wish to participate in this Protocol must opt into this Protocol in writing;

(m) “Opt-In Period” means the period between the Notice Date and Opt-In Deadline;

(n) “Intake Questionnaire” means the standard-form questionnaire (the form of which will be agreed by the Carcillo Action parties or ordered by the Court before the Notice Date) that must be completed by all Players who wish to participate in and start litigation under this Protocol;

(o) “Players” means all former and current players who played in the Member Leagues of the CHL between May 8, 1975 and the Opt-In Deadline (collectively, and each individually, a “Player”);

(p) “QMJHL” means the Québec Major Junior Hockey League;

(q) “Questionnaire Deadline” means the date that is 90 days after the Notice Date, by which time Players who wish to participate in and start litigation under this Protocol must submit Intake Questionnaires to the Administrator;

(r) “Teams” means the major junior hockey teams playing in the Member Leagues on which the Players played (collectively, and each individually, a “Team”);

(s) “Underlying Conduct” means any act or other conduct (including, without limitation, sexual assault, physical assault, hazing, bullying, harassment, and other similar conduct) perpetrated by any person (including, without limitation, players, coaches, staff, servants, employees, and agents of any of the Teams, Member Leagues, and CHL) against a Player and any act, error, or omission relating to such conduct by the Teams, Member Leagues, and CHL; and

(t) “WHL” means the Western Hockey League.

3. Case Management

3.1 It is intended that case management will be a tool for achieving the purposes of this Protocol. The judge of the Court who has case management authority over the Carcillo Action will continue to have that authority so long as and to the extent that the Class Proceedings Act, 1992 continues to apply. Once actions are commenced under this Protocol, all such proceedings will be assigned to case management under rule 77.05 of the Rules of Civil Procedure.

3.2 This Protocol shall be construed in a manner consistent with rule 1.04 of the Rules of Civil Procedure. If the parties disagree about the interpretation or application of this Protocol, any party may seek direction from the Case Management Judge at a case management conference.

4. Eligibility and Participation

4.1 Any claim by a Player related to Underlying Conduct alleged to have caused damages is eligible to be included in this Protocol.

4.2 To participate in this Protocol, Players must submit an Intake Questionnaire by the Questionnaire Deadline. A Player who did not submit an Intake Questionnaire cannot participate in this Protocol.

5. Administrator

5.1 The Administrator will distribute the Notice (defined below) as described in this Protocol, including the Notice Plan attached as Schedule “A” and Intake Questionnaire.

5.2 The Administrator will create and maintain the CHL Litigation Website (“Website”) described in the Notice Plan attached as Schedule “A”.

5.3 The Administrator will provide the services described in this Protocol related to the intake of Intake Questionnaires submitted by Players and creating, maintaining, and delivering the Opt-In Compilation (defined below).

5.4 Subject to section 6.2 below, the Defendants and Koskie Minsky will bear the reasonable cost of the Administrator’s services on a 50/50 basis.

6. Notice Plan

6.1 The Notice Plan attached as Schedule “A” to this Protocol governs the procedure for notifying Players of this Protocol (“Notice”). Specifically, the Notice distributed pursuant to the Notice Plan addresses: (i) the Court’s dismissal of the plaintiffs’ certification motion in the Carcillo Action; (ii) the Court’s invocation of section 7 of the Class Proceedings Act, 1992 to permit the Carcillo Action to continue as one or more proceedings between different parties; (iii) the resulting Protocol for commencing and resolving individual claims through individual actions and opt-in joinder actions, when appropriate; and (iv) any other information necessary to appropriately inform the potential plaintiffs of their options at the time the Notice is disseminated.

6.2 The Defendants will bear the reasonable cost of the Notice Plan as approved by the Court.

7. Opt-in Process

7.1 The Intake Questionnaire will be submitted by Players who wish to participate in this Protocol to the Administrator. The information requested in the Intake Questionnaire will serve objectives of the Protocol by identifying those parties obligated to respond to specific claims which will streamline litigation steps and allow early consideration of resolution of individual cases.

7.2 The Intake Questionnaire will require each responding Player to provide the following information:

(a) the Player’s full legal name;

(b) the Player’s birthdate;

(c) the Player’s address and other contact information;

(d) the Team(s) on which the Player played, the year(s) in which the Player played for the identified Team(s), and the Member League(s) in which the identified Team(s) played at the time;

(e) against which of the Team(s), Member League(s), CHL, and other individuals or entities the Player intends to claim relief;

(f) a description of the incidents of the Underlying Conduct that the Player alleges experiencing while on the identified Team(s), including timeframe and location(s), along with the consequences or damages the Player alleges suffering as a result of those incidents;

(g) the name(s) of the perpetrator(s) of the alleged Underlying Conduct and the relationship between the perpetrator(s) and Player (e.g. teammate, coach, Team staff, or Member League staff);

(h) whether and when the Player reported the Underlying Conduct to the identified Team(s), Member League(s), or CHL;

(i) the Player’s selection of counsel (whether Koskie Minsky or other counsel), if known at the time, and the name and contact details of counsel, or alternatively the Player’s choice to self-represent; and

(j) any other relevant information as determined by the Player.

7.3 Information provided in Intake Questionnaires will not limit the allegations that may be advanced by a Player in any individual action or joinder action.

7.4 Players (whether directly or through counsel) will submit Intake Questionnaires to the Administrator by the Questionnaire Deadline through the Website (described in the Notice Plan attached as Schedule “A”) or by email or regular mail.

7.5 The Administrator will provide Koskie Minsky with electronic copies of the Intake Questionnaires received from Players on a rolling basis every 15 days starting on the Notice Date, and all Intake Questionnaires received by the Questionnaire Deadline within 15 days after the Questionnaire Deadline.

7.6 All Players who submit a complete Intake Questionnaire by the Questionnaire Deadline will then have until the Opt-In Deadline[^23] to opt into this Protocol by advising the Administrator in writing (whether directly or through counsel) by the Opt-In Deadline that they wish to commence litigation under and are opting into this Protocol, and who (if anyone) they have retained as their counsel.[^24] Any Players who submit an Intake Questionnaire but do not opt into this Protocol by the Opt-In Deadline (as described in this paragraph) will not be subject to this Protocol, and their identities and Intake Questionnaires will not be disclosed to the Defendants.

7.7 The Administrator will create and maintain a document containing the information provided by Players who submitted complete Intake Questionnaires and opted into this Protocol (“Opt-In Compilation”). The Opt-In Compilation will include, in a single organized document, all details provided by the Players in their Intake Questionnaires, including the date the Intake Questionnaire was submitted. The Opt-In Compilation will also confirm that the Player has opted into this Protocol, the date the opt-in was communicated to the Administrator, and the Player’s selection of counsel (whether Koskie Minsky or other counsel), and the name and contact details of that counsel, or choice to self-represent.

7.8 The Administrator will provide Carcillo Defence Counsel with a complete copy of the Opt-In Compilation within 30 days of the Opt-In Deadline.

7.9 Further to sections 1.6 and 10 of this Protocol, after receiving a copy of the Opt-In Compilation, the Defendants may engage in early settlement discussions with Players listed in the Opt-In Compilation, including before any individual or joinder actions are commenced.

8. Confidentiality

8.1 Subject to section 8.2 below, the Administrator, Koskie Minsky, Carcillo Defence Counsel, the Defendants, and any insurers (and their counsel) will treat all information obtained through the opt-in process (i.e. the information in the Intake Questionnaires and Opt-In Compilation) as confidential. Any Intake Questionnaire completed by a Player who does not choose to opt into the Protocol will not be shared with the Defendants by the Administrator.

8.2 In accordance with the open courts principle, after actions are filed with the Court under this Protocol, any information provided by those Players to the Administrator will no longer be confidential, but any party may seek confidentiality protections to the extent available under and in accordance with the Rules of Civil Procedure or otherwise at law, including sealing orders and the initialization of party names. Nothing in this Protocol constitutes any pre-determination that confidentiality protections are appropriate in a given action.

8.3 When confidentiality protections are sought, a streamlined process will be available under which similar motions may be brought and heard together on at least 30 days’ notice to the Case Management Judge. This provision is not an acknowledgment that confidentiality protections can be decided on a global basis. Rather, each claimant must meet the legal test applicable to the protection sought in the circumstances of the claim.

8.4 Except as provided in this Protocol, the Administrator will keep confidential any information provided, created, or obtained while carrying out this Protocol and will not share or use it for any purpose other than the administration of the Protocol, unless required by law. The parties are not responsible for the confidentiality obligations of the Administrator under this section.

9. Starting Actions

9.1 Each action commenced under this Protocol may be commenced in the Ontario Superior Court of Justice in Toronto, without prejudice to the right of any defendant to argue that another jurisdiction, forum, venue, or court is more appropriate.[^25]

9.2 Any individual or joinder actions under this Protocol alleging claims in the aggregate up to $35,000 will be determined with reference to the streamlined procedures for discovery and evidence taking under the Rules of the Small Claims Court as appropriate and as negotiated by the parties or directed by the Case Management Judge.

9.3 Any individual or joinder actions under this Protocol alleging claims in the aggregate above $35,000 but where no individual claim is above $200,000 will be presumptively subject to the simplified procedure under the Rules of Civil Procedure. However, further streamlined procedures for discovery and evidence taking than contemplated under rule 76 may be negotiated by the parties or directed by the Case Management Judge.

9.4 Except as provided in sections 9.2 and 9.3 of this Protocol, for all individual or joinder actions under this Protocol and in all respects, the ordinary Rules of Civil Procedure will apply.

9.5 Within 60 days of the Opt-In Deadline, Koskie Minsky will provide Carcillo Defence Counsel with a list of proposed individual actions and actions proposed to be joined, if any (“Proposed Actions List”).

9.6 The Proposed Actions List will identify for each action:

(a) the plaintiffs (and their counsel, if any) and defendants proposed to be included;

(b) the Underlying Conduct and causes of action proposed to be alleged;

(c) the quantum of damages sought by each plaintiff;

(d) whether it will proceed under the Rules of the Small Claims Court, the simplified procedure, or the Rules of Civil Procedure; and

(e) whether the action is proposed to be an individual action or a joinder action.

9.7 If an action in the Proposed Actions List is proposed to be a joinder action, Koskie Minsky (and any other plaintiffs’ counsel proposing a joinder action) will identify the grounds for joinder under the Rules of Civil Procedure.

9.8 Within 60 days of receiving the Proposed Actions List, Carcillo Defence Counsel will provide Koskie Minsky (and any other plaintiffs’ counsel proposing a joinder action):

(a) the names and contact information of the counsel who will be representing each of the defendants proposed to be named in each proposed action; and

(b) each defendant’s position on whether the proposed actions may proceed as individual actions or joinder actions as proposed by Koskie Minsky (and any other plaintiffs’ counsel proposing a joinder action), and if joinder is disputed, the reasons for disputing joinder.

9.9 Within 90 days of receiving the response to the Proposed Actions List, Koskie Minsky, self-represented Players, and any other plaintiffs’ counsel will issue and serve statements of claim for all individual and joinder actions under this Protocol.

9.10 Within 60 days of service of the statements of claim, the applicable defendants may bring one or more motions to the Case Management Judge for relief from joinder under rule 5.05 of the Rules of Civil Procedure in respect of any actions the joinder of which is disputed. A case conference will be held before any such motions to resolve or narrow areas of dispute if possible. Nothing in this Protocol constitutes a pre-determination that joinder is appropriate or alters the application of rule 5.05 of the Rules of Civil Procedure (and any other applicable rules) or the burdens thereunder.

10. Settlement and Mediation

10.1 Further to section 1.4 of this Protocol, any party may at any time engage in settlement discussions with one or more other parties related to any individual or joinder action (or individual claim within a joinder action) under this Protocol, including, subject to section 10.2, by engaging a mediator from the Mediator Roster (defined below).

10.2 While mandatory mediation is to take place within 180 days after the first defence has been filed according to the Rules of Civil Procedure, under this Protocol it is anticipated that the parties may negotiate an accelerated schedule (even prior to the commencement of claims) for certain matters that are particularly conducive to mediation or early resolution, under the direction of the Case Management Judge.

10.3 Koskie Minsky and the Defendants will agree on a non-exclusive roster of mediators (“Mediator Roster”) by the Opt-In Deadline.

10.4 The parties seeking mediation may select a mediator from the Mediator Roster, or may agree to engage a different mediator.

10.5 Unless otherwise agreed, the mediator’s costs will be borne equally by the parties engaged in the mediation.

10.6 A mediator, once selected, may on the consent of the parties entering mediation:

(a) mediate any issues that arise from or in relation to the Protocol; and

(b) mediate individual actions, groups of individual actions, joinder actions, or groups of joinder actions under this Protocol.

11. Discovery

11.1 Within 60 days after the close of pleadings, or any longer period to which the parties may agree, the parties will meet and confer about a Discovery Plan for each individual and joinder action under this Protocol. The parties may agree to a Discovery Plan that applies to multiple individual or joinder actions or a Common Discovery Plan. If the parties cannot agree, the Discovery Plan will be determined at a case conference or, if necessary, on a motion to set the Discovery Plan, including the details of any common discovery.

11.2 In any action under this Protocol, the Deemed Undertaking under rule 30.1 of the Rules of Civil Procedure presumptively applies. However, once actions have been commenced, the parties acknowledge that it may be appropriate to waive the Deemed Undertaking, including to facilitate any common discovery and avoid repetitive steps across some or all actions under this Protocol. In the context of conferring about a Discovery Plan under section 11.1 above, the parties will specifically discuss the potential for and scope of any common discovery and waiver of the Deemed Undertaking, and any party may bring a motion under rule 30.1.01(8) of the Rules of Civil Procedure to the Case Management Judge to lift the Deemed Undertaking.

12. Support During Examinations

12.1 Players may seek the consent of the defendant(s) named in the relevant individual or joinder action under this Protocol to have a non-party attend their examination for discovery or out-of-court cross-examination to provide mental health and wellness support. If one or more defendants do not consent to the attendance of the non-party, the Player may obtain a case management conference with the Case Management Judge to determine whether such non-party should be permitted to attend, and the scope and other terms, including costs, related to that attendance, without the need to bring a formal motion.

13. Dispositive and Other Motions

13.1 Nothing in this Protocol prevents any party from bringing any motions under the Rules of Civil Procedure or the Rules of the Small Claims Court, as applicable, including, but not limited to, jurisdictional challenges, choice of law motions, motions to strike, and summary judgment motions.

14. Restarting Limitation Periods

14.1 Any limitation periods suspended by operation of section 28 of the Class Proceedings Act, 1992 (as it stood when the Carcillo Action was filed) will remain suspended under that provision until:

(i) for Players who do not opt into this Protocol by the Opt-In Deadline, the day after the Opt-In Deadline; and

(ii) for all other Players, the day after the deadline for commencing litigation under this Protocol. Koskie Minsky will formally abandon the appeal of Justice Perell’s decision before the Notice Date, which will have the effect of restarting any limitation periods suspended by operation of section 28(2) of the Class Proceedings Act, 1992 (as it stood when the Carcillo Action was filed). Nothing in this Protocol extends or modifies any applicable limitation period under Ontario law for the period before the Carcillo Action was filed, or extends or modifies the application of limitation periods under foreign law.

SCHEDULE “A”

NOTICE PLAN

1. OVERVIEW

1.1 This Notice Plan governs the procedure for notifying Players of the Protocol. Specifically, the Notice Plan addresses:

(i) the Court’s dismissal of the plaintiffs’ certification motion in the Carcillo Action;

(ii) the Court’s invocation of section 7 of the Class Proceedings Act, 1992 to permit the Carcillo Action to continue as one or more proceedings between different parties;

(iii) the resulting Protocol for commencing and resolving individual claims through opt-in joinder actions, when appropriate;

(iv) any other information necessary to appropriately inform the potential plaintiffs of their options at the time the Notice is disseminated.

1.2 Capitalized terms used in this Notice Plan but not defined in it will have the meanings ascribed to them in the Protocol.

2. FORM OF NOTICE

2.1 Notice of the Protocol will be provided to Players through the following methods:

(a) in the short form set out in Appendix 1 (“Short Form Notice”), in both English and French; and

(b) in the form of a link to the Website with the domain name: https://chllitigation.com/ (“Website Link”).

2.2 The Short Form Notice will include the Website Link.

2.3 The Website will include content as set out in Appendix 2, and any additional content that Carcillo Defence Counsel and Koskie Minsky agree to include, or that the Case Management Judge orders to be included.

2.4 The Website will be created and maintained by the Administrator.

2.5 The Website will become public on the Notice Date.

2.6 The Website will be available in both English and French.

3. DISTRIBUTION OF NOTICE

Distribution by Email

3.1 The Short Form Notice will be distributed by the Administrator:

(a) to all Players for whom the CHL, Member Leagues, and Teams have a valid email address; and

(b) to all Players for whom Koskie Minsky has a valid email address.

3.2 Koskie Minsky, the CHL, Member Leagues, and Teams will provide the Administrator with the Players’ email addresses in their possession no less than 7 days before the Notice Date.

3.3 The Short Form Notice will be distributed by email to Players on the Notice Date.

3.4 The Administrator will provide the Short Form Notice by email to any Player that requests a copy after the Notice Date.

3.5 Koskie Minsky, the CHL, Member Leagues, and Teams will provide to any Player who requests a copy of the Short Form Notice after the Notice Date either the Short Form Notice by email or the Administrator’s contact information so that the Player may request a copy from the Administrator.

Distribution by Press Release

3.6 On the Notice Date, each of Koskie Minsky and Carcillo Defence Counsel will jointly issue a press release, in English and French, through Canada Newswire.

3.7 The content of the press release will be as agreed by Koskie Minsky and Carcillo Defence Counsel or ordered by the Court. The press release will include the Website Link.

Distribution by Websites

3.8 On the Notice Date, Koskie Minsky will post the Short Form Notice, in both English and French, on its website.

3.9 On the Notice Date, the CHL and Member Leagues will post the Short Form Notice, in both English and French, on their websites. The Short Form Notice will be posted on a section of the respective websites relating to player support or resources, and a link to those respective sections will be placed on the home page of the respective websites.

3.10 On the Notice Date, each Team that maintains a website will post the Short Form Notice, in both English and French, on its website. The Short Form Notice will be posted on a section of the website relating to player support or resources or, if no such section exists, the Website Link will be posted on the home page.

APPENDIX 1

SHORT FORM NOTICE

NOTICE RESPECTING PROCEEDINGS RELATING TO ALLEGED ABUSE IN MAJOR JUNIOR HOCKEY LEAGUES IN CANADA AND THEIR TEAMS IN CANADA AND THE UNITED STATES

Who should read this Notice?

THIS NOTICE is directed to persons who:

(a) play or have played in the Ontario Hockey League (OHL), Québec Major Junior Hockey League (QMJHL) or Western Hockey League (WHL) at any time since May 8, 1975; and

(b) experienced wrongful conduct (including, without limitation, sexual assault, physical assault, hazing, bullying or harassment) while playing in the OHL, QMJHL or WHL perpetrated by, without limitation, players, coaches, staff, servants, employees, or agents of the Canadian Hockey League (CHL), OHL, QMJHL, WHL, or any of their teams.

Why is this Notice being published?

In 2020, a proposed class action was commenced in the Ontario Superior Court of Justice (Court) against the CHL, OHL, QMJHL, WHL and their 60 teams on behalf of a proposed class of current and former players who experienced wrongful conduct while playing in the OHL, QMJHL or WHL.

Following a hearing in November 2022, the Court refused to certify the action and allow it to proceed as a class action. Instead, the Court approved an individual issues protocol (Protocol) to enable everyone to whom this notice applies to participate in a Court-approved and managed process to commence an action regarding any wrongful conduct experienced and a process for adjudicating those actions. The Court approved this Notice and its publication as part of the Protocol.

What should I do to find out more?

This is an opt-in process. The first step is to respond by visiting [Website Link] or contacting the plaintiffs’ lawyer, Koskie Minsky LLP, using the contact information below. You will be asked questions about when and where you played and what you experienced. This initial response will be completely confidential.

Koskie Minsky LLP

[Telephone]

[Email]

After this initial response, you will receive advice from the plaintiffs’ lawyer (or your lawyer) about the adjudication process available, how to commence an action and what is involved. Then, and only then, will you be asked to authorize the commencement of an action. Your action may be considered at the same time as the actions of others in similar circumstances. If you do not choose to commence an action, you will not be further involved, and your identity and initial response will remain confidential.

What is the deadline to respond?

The deadline for responding to this notice is [OPT-IN DEADLINE].

APPENDIX 2

CONTENTS OF WEBSITE

1. GENERAL

1.1 The Website will include a prominent “Exit Website” button on every page, allowing users to navigate away from the Website easily and at any time.

2. HOME PAGE

2.1 The home page of the Website will contain:

(a) an overview paragraph describing:

(i) the Court’s dismissal of the plaintiffs’ certification motion in the Carcillo Action and invocation of section 7 of the Class Proceedings Act, 1992;

(ii) the Court’s approval of the Protocol, which governs the procedures for the commencement and resolution of claims by Players;

(iii) the purpose of the Protocol; and

(iv) the eligibility of Players for participation in the Protocol; and

(b) the Short Form Notice.

3. JOINDER ACTION PROTOCOL PAGE

3.1 The Joinder Action Protocol page of the Website will contain a button to download a full copy of the Protocol.

4. COURT DOCUMENTS PAGE

4.1 The court documents page of the Website will contain buttons to download documents submitted to the Court by Koskie Minsky and Carcillo Defence Counsel, as well as Judgments and Orders made by the Court.

4.2 When a user accesses this page, a trigger warning will be put beside any document containing explicit descriptions of wrongful conduct. The trigger warning will have the following text: “This document contains explicit descriptions of wrongful conduct, which may include physical and sexual assault.”

5. TIMELINE AND UPDATES PAGE

5.1 The timeline and updates page of the Website will include a timeline outlining the key milestones of the Protocol, such as the Notice Date, Opt-In Period, and Opt-In Deadline. This page will also include updates on any new developments or information related to the Protocol.

6. HOW TO PARTICIPATE PAGE

6.1 The how to participate page of the Website will provide instructions on how Players can bring a claim under the Protocol. This page will include a button to download the Intake Questionnaire, and will include a portal for the submission of Intake Questionnaires.

6.2 This page will specify any deadlines for participation and emphasize the importance of timely action.

7. FREQUENTLY ASKED QUESTIONS (FAQ) PAGE

7.1 The FAQ page of the Website will answer anticipated common questions, including: eligibility, the litigation process, potential outcomes, legal fees, and privacy concerns.

8. CONTACT INFORMATION PAGE

8.1 The contact information page of the Website will display contact information for Koskie Minsky, and will include a contact form to allow visitors to submit inquiries directly from the Website.

8.2 This page will also display contact information for the Administrator for the submission of Intake Questionnaires.

COURT FILE NO.: CV-20-00642705-00CP

DATE: 2023/09/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL CARCILLO and GARRETT TAYLOR

Plaintiffs

• and -

CANADIAN HOCKEY LEAGUE et al

Defendants

REASONS FOR DECISION

PERELL J.

Released: September 1, 2023

[^1]: [S.O. 1992, c. 6](https://www.canlii.org/en/on/laws/stat