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

DATE: 20230203

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, Ashley Paterson, Gannon Beaulne, Nina Butz for the Defendants.

• Tim Pinos, Kate Byers, Hardeep Dhaliwal, Crawford Smith, Nadia Campion, Carter Liebzeit and Katelyn Johnstone for 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: November 14-17, 2022

Contents

A. Introduction. 4

B. Overview: Construction of an Individual Issues Protocol 7

C. Collectives and Culture. 10

D. Procedural and Evidentiary Background. 12

E. Facts: The Plaintiffs and the Class Members. 18

1. The Plaintiffs and the Class Member Affiants. 18

2. Class Size. 21

F. Facts: The Defendants. 21

1. The Leagues and their Teams. 22

2. The WHL.. 24

3. The OHL.. 26

4. The QMJHL.. 29

5. The CHL.. 33

6. The Defendants’ Player Safety Programs and Procedures. 41

G. The Jurisdiction Motion. 45

1. Legal Background: Subject Matter Jurisdiction. 46

2. Consent Based Jurisdiction. 50

3. Carrying on Business in Ontario. 50

4. A Contract Connected to the Dispute in Ontario. 52

5. A Tort Committed in Ontario. 55

H. Certification: General Principles. 55

I. Cause of Action Criterion: General Principles. 56

J. Cause of Action Criterion. 58

1. Breach of Fiduciary Duty. 60

2. Systemic Negligence. 62

3. Vicarious Liability. 64

4. The Québec Causes of Action. 65

5. The Collective Liability Causes of Action: Part I. 66

6. The Collective Liability Causes of Action: Part II. 72

7. The Collective Liability Causes of Action: Part III. 76

8. American Law.. 77

K. Identifiable Class Criterion. 78

1. General Principles. 78

2. Discussion and Analysis – Identifiable Class Criterion. 79

L. Common Issues Criterion. 80

1. General Principles. 80

2. Discussion and Analysis – Common Issues Criterion. 81

3. Common Issues and the Theory of the Plaintiffs’ Case. 82

4. The Proposed Common Issue with respect to Aggregate Damages. 83

5. The Proposed Common Issue with respect to Punitive Damages. 84

M. Preferable Procedure Criterion. 84

1. General Principles. 84

2. Discussion and Analysis – Preferable Procedure Criterion. 85

(a) Class Actions v. Individual Actions. 85

(b) The Advantages and the Disadvantages of Systemic Negligence Class Actions. 89

(c) The Preferable Procedure and Third Party Claims. 94

N. Representative Plaintiff Criterion. 97

1. General Principles – Representative Plaintiff Criterion. 97

2. Discussion and Analysis: The Ragoonanan Motion and the Representative Plaintiff Criterion 97

(a) The Ragoonanan Motion. 97

(b) The Plaintiffs as Representative Plaintiffs. 97

O. The Section 7 Order 98

P. Conclusion. 102

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Daniel Carcillo, Garrett Taylor, and Stephen Quirk sue 78 Defendants that organize the best game you can name, the “good ol’ Hockey game.” Daniel Carcillo, Garrett Taylor, and Stephen Quirk sue 60 amateur hockey teams that compete at the highest level of junior amateur hockey in Canada. The 60 hockey teams, which are owned by 78 Defendants, are situated in every Canadian province, except Newfoundland and Labrador, and also in four American states. The 60 amateur hockey teams, along with college leagues, and foreign leagues, are the source of talent for the professional hockey leagues, including the National Hockey League (“NHL”), which is not a defendant to the lawsuit. Daniel Carcillo, Garrett Taylor, and Stephen Quirk also sue 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 60 hockey teams are the members of these three Canadian amateur hockey leagues. Messrs. Carcillo, Taylor, and Quirk also sue 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.

[2] Messrs. Carcillo, Taylor, and Quirk’s lawsuit is a proposed class action pursuant to the Class Proceedings Act, 1992.[^1] The proposed Representative Plaintiffs sue on behalf of a class 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."

[3] The Fresh as Amended Statement of Claim defines 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.

[4] Messrs. Carcillo, Taylor, and Quirk make 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.

[5] Messrs. Carcillo, Taylor, and Quirk sue 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 advance 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.

[6] Messrs. Carcillo, Taylor, and Quirk move for certification of their action as a class action (the “Certification Motion”).

[7] The CHL, WHL, OHL, and QMJHL and the 60 teams oppose the Certification Motion, and the Defendants submit that none of the five certification criteria are satisfied. The Defendants submit that the Certification Motion should be dismissed.

[8] In addition to opposing the Certification Motion, the Defendants bring two motions to dismantle it.

[9] In addition to opposing certification, there is the Defendants’ “Jurisdiction Motion”. The WHL, QMJHL, and their forty teams (but not the CHL, OHL, and their twenty OHL teams) seek to permanently stay Messrs. Carcillo, Taylor, and Quirk’s action as against them because they submit that this court does not have jurisdiction simpliciter to decide the dispute.

[10] In addition to opposing certification, there is the Defendants’ “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 seek 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.

[11] However, although the 60 teams (74 defendants), the CHL, WHL, OHL, and QMJHL (four defendants) assert that the Plaintiffs, and the putative Class Members’ proposed class action should be dismantled and dismissed and that the Certification Motion should be dismissed, they also say that the putative Class Members who experienced the “abuse” deserve access to justice in criminal proceedings or in individual actions against the perpetrators of the “abuse”. The Defendants submit that a class proceeding is not the preferable procedure to bring the perpetrators to justice.

[12] On a Certification Motion, a court has four choices: (a) certify the class action; (b) certify with qualifications, conditions, or modifications; (b) refuse to certify; and; (d) pursuant to s. 7 of the Class Proceedings Act, 1992 refuse to certify the action but permit the action to continue as one or more proceedings between different parties. In the immediate case, for the reasons that follow:

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 the other 55 teams of the CHL. The Ragoonanan Motion is granted. However, the dismissal Order is suspended pending the determination of a motion for approval of an Individual Issues Protocol.

c. The Certification Motion is dismissed.

i. The cause of action for breach of fiduciary duty does not satisfy the cause of action criterion.

ii. There are no collective causes of action against the Defendants and therefore the Plaintiffs’ class action – as proposed – does not satisfy the cause of action criterion. (The cause of action criterion would or could have been satisfied as against the 60 teams and the WHL, OHL, QMJHL, and CHL -severally- for systemic negligence, vicarious liability, and breach of the Québec causes of action, but there are no collective causes of action.)

iii. Had the proposed class action otherwise been certifiable, the identifiable class criterion would or could have been satisfied.

iv. The Plaintiffs’ class action – as proposed – does not satisfy the common issues criterion and the preferable procedure criterion. (These criteria would also not or could not be satisfied if the Plaintiffs’ class action was recast as against the 60 teams and the WHL, OHL, QMJHL – severally – for systemic negligence, vicarious liability, and breach of the Québec causes of action.)

v. The Ragoonanan Motion is granted. The Plaintiffs are satisfactory Representative Plaintiffs only with respect to actions against five teams and the leagues to which those teams are members.

vi. The Representative Plaintiff criterion is not satisfied. The Plaintiffs have not produced a workable litigation plan and it is not feasible that a workable plan could be produced.

d. Therefore, the Certification motion must be dismissed. However, the Order dismissing the Certification Motion is suspended pending the determination of a motion for approval of an Individual Issues Protocol.

e. Pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992, it is 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, failing which Messrs. Carcillo, Taylor, and Quirk’s proposed class action shall be dismissed.

f. Pursuant to sections 7, 12, and 25 of the Class Proceedings Act, 1992, it is 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; 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.

B. Overview: Construction of an Individual Issues Protocol

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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. Quoting from their factum, Messrs. Carcillo, Taylor, and Quirk say:

A collective finding of systemic liability, followed by an individual claims process, is the only realistic avenue to accountability and access to justice in this context. The Supreme Court of Canada and the Court of Appeal for Ontario have repeatedly endorsed systemic class proceedings to address similar failures in oversight, management, and governance. This systemic problem requires a systemic solution for major junior hockey to survive, and for the thousands of abuse victims to finally get justice. […] Individual actions cannot create the behaviour modification necessary to protect current and future players from the Abuse. A class proceeding is needed. […] The Representative Plaintiffs have stepped forward at great personal cost, to hold a system accountable that has abused them terribly. […] Each of them has come forward on behalf of the thousands of Class Members who cannot easily advocate for themselves; and they do it to change a hockey culture that has endured for decades and permitted horrible abuses. If there were another realistic way to get justice for the class, they would have pursued it. But there is no other, preferable procedure: this class action is the only vehicle to justice.

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

The plaintiffs, and any other players who may have experienced criminal or tortious conduct at the hands of teammates or others in connection with their time playing major junior hockey, deserve access to justice. But this proposed class action, as framed and under any framing, is neither a practically desirable nor a legally viable means of giving it to them. Nor is it fair to the defendants. […] The defendants do not deny that some players have experienced serious misconduct and suffered potentially compensable harm over the last forty-seven years. Those players deserve a rational process for evaluating claims in their inextricable context, determining who is responsible and to what extent (including the perpetrators), and receiving compensation if appropriate. For the reasons described in this factum, this proposed class action cannot be that process.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] 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.

[29] 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.

[30] 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.

[31] 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.

[32] 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,[^3] and the Individual Issues Protocol will then provide a means for the putative Class Members to have access to justice.

C. Collectives and Culture

[33] Because of the nature of the Plaintiffs’ essential argument, before beginning the determination of the Jurisdiction Motion, the Ragoonanan Motion, and the Certification Motion, it is necessary to have some understanding of the interrelationship between collectives (groups) and culture.

[34] Messrs. Carcillo, Taylor, and Quirk submit that the Defendants - as a collective - are liable for a - toxic culture - of hazing, bullying, harassment, and assaults that injured the putative Class Members. They describe in considerable detail and at considerable length a culture of violence, tyranny, submission. and silence. The evidence proves their description, and from this evidence the essential argument of Messrs. Carcillo, Taylor, and Quirk is that the WHL, OHL, QMJHL, CHL, and 60 hockey teams are a collective that injured the putative Class Members. In the immediate case, it is the essential argument of the Plaintiffs that each and every Defendant is liable for the plight of the good ol’ hockey game and that a class action is necessary to restore the good name of the best game that you can name.[^4]

[35] I have seven observations about collectives and culture that are important to understanding the arguments of the parties and to the resolution of the motions in the immediate case.

[36] The first observation is that culture is a very complex and profound idea studied by anthropology, archaeology, history, law, philosophy, political science, psychology, and sociology. Culture may be defined as the social organizing system that simultaneously establishes the group’s identity and the identities of the members of the group. There are cultures associated with race, colour, ethnicity, nationality, origin, language, religion, ideology, gender, sexual orientation, marital status, family status, age, profession, occupation, employment, class, social-economic background, and wealth.

[37] The immediate proposed class action is about at least 65 cultures. It is at least about the respective cultures of the Defendants WHL, OHL, QMJHL, and CHL (four cultures) and the 60 cultures of the Defendant hockey teams. The 65^th culture is the culture of Canadian amateur hockey, the “good ol’ Hockey game.” The Plaintiffs’ action presupposes that all the Defendants systemically share the same virulent culture of Canadian amateur hockey.

[38] The second observation is that culture is based on a collective shared consciousness. Culture is a system of shared aims, art, attire, beliefs, ceremonies, crafts, customs, dependencies, diet, dislikes, feasts, festivals, gestures, habits, hierarchies, hobbies, language, law, lifestyles, likes, manners, music, myths, norms, relationships, roles, rights of passage, rituals, stories, symbols, traditions, values, and writings. Culture shapes the society of the group (the collective) through these shared activities, interests, affinities, meanings, and teachings. It is through this shared consciousness of thoughts and deeds that the group’s identity and the identities of the members of the group are established.

[39] As the Plaintiffs would have it, the immediate case is about the shared consciousness and behaviours of groups that have, to borrow the language of the QMJHL’s mission statement, the purpose of developing players for professional hockey while supporting them throughout their academic endeavours to mold them into responsible and educated citizens. All the Defendants have this professed purpose. The essential argument of Messrs. Carcillo, Taylor, and Quirk is that the Defendants are a collective (a group of members) that has horribly failed in its mission and their shared systemic virulent culture has caused harm to the players.

[40] The third observation about collectives and culture that is important to understanding the parties’ arguments and to the resolution of the motions in the immediate case is to note that in some instances, it is the existence of the common culture that brings together the members of the group, but in other instances, the members of the group come together, and the group then develops a culture.

[41] The immediate case is a complex situation in which the members of the group systemically develop their own culture as individual hockey teams, and then the teams came together and systemically developed a culture for their league (WHL, OHL, and QMJHL), and then the leagues systemically developed a culture for the CHL, and all of this occurs within the existing culture of the “good ol' Hockey game”.

[42] The fourth observation about collectives and culture that is important to the parties’ arguments and to resolution of the motions in the immediate case, is to note that cultures are inculcated and subject to vacillating change over time. The members of a culture are educated, nurtured, and assimilated into the values and practices of the culture. Cultures are passed on from generation to generation, but what is passed on may have changed or may change in the future. From a social science perspective, cultures are variable and dynamic.

[43] The immediate case is a complex situation in which a court of law (one of the social sciences that studies culture) is asked to examine the systemic cultures of the Defendants over a 50-year time span from a legal perspective.

[44] The fifth observation about collectives and cultures that is important to the parties’ arguments and to resolution of the motions in the immediate case is that a culture defines the identity of the group and simultaneously defines the identity of the members of the group; however, there is a risk of stereotypical thinking by automatically or unconsciously attributing all the aspects of the culture to all of the members of the culture. Each individual member of a culture does not necessarily share all of the aspects of the culture and each individual member of a culture has individual autonomy of thought and deed. Judges are being trained in cultural competence which is a set of skills to mitigate stereotypical thinking, unconscious bias, impartiality, and racism.

[45] While the individual members of a culture may have personal autonomy and may not necessarily share all of the aspects of the culture, in the immediate case, it is the Plaintiffs’ essential argument that the Defendants as a collective do share a systemic virulent culture and have done so for over a 50-year time span.

[46] The sixth observation about collectives and culture that is important to the parties’ arguments and to resolution of the motions in the immediate case is to note that cultures are not inherently good or bad. Culturism is a part of the Canadian national mosaic. Indeed, multiculturism is the aspiration of s. 27 of the Canadian Charter of Rights and Freedoms,[^5] which provides that the Charter should be interpreted in a way that is consistent with the preservation and enhancement of the multicultural heritage of Canadians.

[47] The immediate case is about an allegedly despicable reptilian culture of toxic masculinity. In the immediate case, cultural competence, however, entails not jumping to stereotypical decisions about the Plaintiffs or the Defendants. Stereotyping negates individuality and is a type of prejudgment.

[48] Most importantly, from the social science that is the law, there is no guilt purely by association; the autonomy of each of the Defendants must be respected and each of the Defendants must be judged for their individual acts and deeds.

[49] Although there could be guilt (negligence or breach of fiduciary duty) for not disassociating from a virulent culture, there is no guilt by simply associating with members of a virulent culture. As Justice Cory noted in R. v. R.D.S.:[^6] “[J]udges must strive to ensure that no word or action during the course of the trial or in delivering judgment might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations.”

[50] The seventh observation, which is the legal corollary to the sixth observation about collectives and culture that is important to the resolution of the parties’ arguments in the immediate case is that although from a sociological perspective, the members of a collective can have a shared culture, however, from a legal perspective, it does not follow that the individual members of that group are liable for the wrongdoings of the other members of the cultural group. Under Canadian criminal and civil law, with a few exceptions, criminality or civil liability is based on personal fault; i.e., upon personally perpetrating or participating in the misdeeds.

D. Procedural and Evidentiary Background

[51] On June 18, 2020, Carcillo and Taylor delivered their Statement of Claim, which was subsequently amended several times to, among other things, add Mr. Quirk as a plaintiff.

[52] On March 25, 2020, Messrs. Carcillo and Taylor delivered a Fresh as Amended Statement of Claim.

[53] On December 4, 2020, Messrs. Carcillo and Taylor moved for certification. The Certification Motion was supported by the following evidence:

• Affidavit dated August 4, 2020 of Jeff Andrews. Mr. Andrews was a player for: North Bay Centennials (now Saginaw Spirit) (OHL) (1992-1994); Oshawa Generals (OHL) (1994-1995).

• Affidavit dated August 11, 2020 of Cory Bricknell. Mr. Bricknell was a player for: Newmarket Royals (now Sarnia Sting) (OHL) (1992-1993); Niagara Falls Thunder (now Erie Otters) (OHL) 1993-1995. He was cross-examined.

• Affidavits dated August 27, 2020 and November 26, 2021 of Daniel Carcillo. Mr. Carcillo was a player for: Sarnia Sting (OHL) (2002-2004); Mississauga IceDogs (OHL) (now Niagara IceDogs) (2004-2005). He is a proposed Representative Plaintiff. He was cross-examined.

• Affidavit dated August 4, 2020 of Gene Chiarello. Mr. Chiarello was a player for: London Knights (OHL) (1996-2000). He was cross-examined.

• Affidavit dated July 29, 2020 of Jason Clarke. Mr. Clarke was a player for: Niagara Falls Thunder (now Erie Otters) (OHL) (1990-1993). He was cross-examined.

• Affidavit dated July 17, 2020 of Chris Festarini. Mr. Festarini was a player for: Erie Otters (OHL) and the Niagara IceDogs (OHL) (2009-2014).

• Affidavit dated October 9, 2020 of Dan Fritsche. Mr. Fritsche was a player for: Sarnia Sting (OHL) (2001-2004); London Knights (OHL) (2004-2005). He was cross-examined.

• Affidavits dated August 11, 2020 and November 26, 2021 of Brad Hammet. Mr. Hammet was a player for: Billings Bighorns (WHL), Nanaimo Islanders (WHL), New Westminster Bruins (now Tri-City Americans) (WHL) (1981-1984).

• Affidavit dated July 9, 2020 of Mark Howery. Mr. Howery was a player for: Calgary Wranglers training camps (WHL) (1981-1982); Medicine Hat Tigers training camp (WHL) (1983); Winnipeg Warriors (now Moose Jaw Warriors) (WHL) (1983-1984).

• Affidavit dated July 30, 2020 of Dirk Jellio. Mr. Jellio was a player for: Sarnia Sting (OHL) (2002-2003); Saginaw Spirit (OHL) (2003). He was cross-examined.

• Affidavits dated December 2, 2020 and November 29, 2021 of Dr. Jay Johnson. Dr. Johnson is a Professor in the Faculty of Kinesiology and Recreation Management at the University of Manitoba. He has undertaken extensive research pertaining to “hazing” focusing on the high school and post-secondary contexts of fraternities, sororities, and an array of sports (basketball, soccer, volleyball, badminton, football, swimming, track and field, wrestling, hockey, and rugby). He was cross-examined.

• Transcript of the examination pursuant to Rule 39.03 of Sheldon Kennedy. Mr. Kennedy played junior hockey for the Moose Jaw Warriors and the Swift Current Broncos of the WHL. He played professional hockey with Adirondack Red Wings and the St. John Flames of the AHL (American Hockey League) and with the Detroit Red Wings, the Calgary Flames, and Boston Bruins of the NHL. He is another victim of the “abuse” described by the Plaintiffs’ and their witnesses. He is the co-founder of the Respect Group Inc. which provides training to help people involved in amateur sport to prevent bullying, harassment, and abuse.

• Affidavit dated August 4, 2020 of Fred Ledlin. Mr. Ledlin was a player for: Victoria Cougars (now Prince George Cougars) training camp (WHL) (1980); Kamloops Junior Oilers (now Kamloops Blazers) (WHL) (1981); Seattle Breakers (now Seattle Thunderbirds) (WHL) (1981-1983); Portland Winterhawks (WHL) (1983); Medicine Hat Tigers (WHL) (1983-1984); Winnipeg Warriors (now Moose Jaw Warriors) (WHL) (1984).

• Affidavits dated November 29, 2021, January 27, 2022, and May 20, 2022 of Catherine MacDonald. Ms. MacDonald is a legal assistant with the law firm Koskie Minsky LLP, counsel for the Plaintiffs and the proposed Class Counsel.

• Affidavit dated July 10, 2020 of Ryan Munce. Mr. Munce was a player for: Sarnia Sting (OHL) (2002-2005).

• Affidavit dated August 4, 2020 of David Pszenyczny. Mr. Pszenyczny was a player for: Sarnia Sting (OHL) (2001-2004); Mississauga IceDogs (now Niagara IceDogs) (OHL) (2004-2005); Barrie Colts (OHL) (2005-2006).

• Affidavit dated July 10, 2020 of Doug Smith. Mr. Smith was a player for: Ottawa 67’s (OHL) (1979-1982).

• Affidavit dated July 28, 2020 of John Strait. Mr. Strait was a player for: Lethbridge Broncos (now Swift Current Broncos) (WHL) (1978-1979); Seattle Breakers (now Seattle Thunderbirds) (WHL) (1979-1980); Brandon Wheat Kings (WHL) (1979-1980); Billings Bighorns (now Tri-City Americans) (WHL) (1979-1980); Spokane Flyers (nonoperational) (WHL) (1980-1981); New Westminster Bruins (now Tri-City Americans) (WHL) (1980-1981); and Sudbury Wolves (OHL) (1980-1981).

• Affidavit dated November 23, 2020 of Garrett Taylor. Mr. Taylor was a player for: Lethbridge Hurricanes (WHL) (2008-2009); Prince Albert Raiders (WHL) (2009-2010). He is a proposed Representative Plaintiff. He was cross-examined.

• Transcript of the examination pursuant to Rule 39.03 of Camille Theriault pursuant to Rule 39.03. Mr. Theriault was the Premier of New Brunswick in 1998 and 1999. Subsequently, he was chair of the Canadian Transportation Accident Investigation and Safety Board, and CEO of the Mouvement des caisses populaires acadiennes.

• Affidavit dated March 17, 2021 of Stephen Quirk. Mr. Quirk was a player for: Moncton Alpines (now Moncton Wildcats) (QMJHL) (1995-1997); Halifax Mooseheads (QMJHL) (1997-1998). He is a proposed Representative Plaintiff. He was cross-examined.

[54] The Defendants opposed the Certification Motion, and they supported their resistance to certification and their motions to have the action dismissed for want of jurisdiction simpliciter (the Jurisdiction Motion) or for want of representative plaintiffs (the Ragoonanan Motion) with the following evidence:

• Affidavit dated October 29, 2021 of Scott Abbott. Mr. Abbott was the owner and Governor of North Bay Battalion (OHL) (1996 to date). He was cross-examined.

• Affidavits dated November 12, 2015 and October 28, 2021 of Brett Bartman. Mr. Bartman was a player for: Spokane Chiefs (WHL) (2007-2010) He was cross-examined.

• Affidavit dated November 1, 2021 of David Branch. Mr. Branch was the President of the CHL from 1996-2019. He has been the Commissioner of the OHL from 1979 to date. He was cross-examined.

• Affidavit dated October 29, 2021 of Gord Broda. Mr. Broda was President and Governor, Prince Albert Raiders (WHL) from 2014 to date. He was cross-examined.

• Affidavit dated November 1, 2021 of Eric Calder. Mr. Calder was a player for: Cornwall Royals (QMJHL, OHL) (1980-83). He was cross-examined.

• Affidavit dated October 29, 2021 of Jeff Chynoweth. Mr. Chynoweth was the General Manager, Calgary Hitmen (WHL) from 2017 to date. He has been an employee of the WHL since 1986. He was cross-examined.

• Affidavit dated November 1, 2021 of Eric Chouinard. Mr. Chouinard was a player for: Québec Ramparts, (QMJHL) (1986-2000). He has been Director of Player Safety, for the QMJHL form 2019 to present. He was cross-examined.

• Affidavit dated November 1, 2021 of Gilles Courteau. Mr. Courteau was President (1986 to date) and Commissioner (2000 to date) of the QMJHL. He was cross-examined.

• Affidavit dated October 31, 2021 of Ryan Daniels. Mr. Daniels was a player for Saginaw Spirit (OHL) and Peterborough Petes (OHL), (2005- 2009). He was cross-examined.

• Affidavit dated June 6, 2022 Dr. Paul Dennis. Dr. Dennis is a retired sports psychology professor at the University of Toronto and York University. Among other roles, he served as an assistant coach and head coach in the OHL for four seasons from 1984 to 1989, and as a player development and mental skills coach for the Toronto Maple Leafs from 1989 to 2009. He currently serves as the head of the OHL’s Performance Development Program. He was cross-examined.

• Affidavit dated November 1, 2021 of Ben Fanelli. He was a player for: Kitchener Rangers (OHL) (2009-2014), where he was an assistant captain and a captain. While with the Rangers and also at Wilfrid Laurier University completing his B.A., he also coached for the University of Waterloo men’s hockey team. He is the founder of the EMPWR Foundation, a charity created to advance the recovery of head injuries in sport. He is currently the Development Coordinator for the Kitchener Minor Hockey Association and a mentor for the Kitchener Rangers. He was cross-examined.

• Affidavit dated May 25, 2022 of Brett Hartman. Mr. Hartman played in the WHL with the Spokane Chiefs (2007-2010). He attended the University of Calgary where he played on the men’s hockey team for four years and graduated with a BA in kinesiology. After graduation, he played professional hockey in France for one year. He returned to work as a strength and conditioning coach at the Edge School, Southern Alberta Institute of Technology, and Peak Power Sport Development. Since 2017, he has worked as a fire fighter in Alberta. He was cross-examined.

• Affidavit dated October 29, 2021 of Cam Hope. Mr. Hope was General Manager (2012-2020) and President (2014-2020) Victoria Royals (WHL). He was cross-examined.

• Affidavit dated November 1, 2021 of Dave Lorenz. Mr. Lorenz was a player for: Peterborough Petes (OHL) (1987-1990) and Vice President (2013 to date) of Peterborough Petes, He was cross-examined.

• Affidavits dated December 30, 2020, October 29, 2021, and March 4, 2022 of Dan MacKenzie. Mr. MacKenzie was President of CHL from 2019 to date. He was cross-examined.

• Affidavit dated November 10, 2022 of Tara Pirog. Ms. Pirog is a legal assistant at Bennett Jones LLP, lawyers for the Defendants.

• Affidavit dated October 28, 2021 of Kruise Reddick. Mr. Reddick was a player for: Tri-City Americans (WHL). He was cross-examined.

• Affidavit dated October 29, 2021 of Ron Robinson. Mr. Robinson was Commissioner of WHL (2000 to date). He was cross-examined.

• Affidavit dated October 29, 2021 of Robert Smith. Mr. Smith was a player for: Ottawa 67s, (OHL) (1975-1978); Owner (2003 to Present). Head Coach (2010-2011) of Halifax Mooseheads (QMJHL). He was cross-examined.

• Affidavit of dated October 28, 2021 of Chad Taylor. Mr. Taylor was Governor (2009 to date) and President (2013 to date) of Halifax Mooseheads (QMJHL). He was cross-examined.

• Affidavit dated October 28, 2021 of Bob Tory. Mr. Tory was General Manager and Co-Owner, Tri-City Americans (WHL) (2000 to Present).

[55] On January 4, 2021, at a case management conference, I directed the Ragoonanan Motion and the Jurisdiction Motion to be heard at the same time as the Certification Motion.

[56] On April 14, 2022, Messrs. Carcillo, Taylor, and Quirk delivered a Fresh as Amended Statement of Claim. In that pleading they claim the following relief:

The plaintiffs claim for:

(a) an order certifying this action as a class proceeding and appointing the Plaintiffs as the representative plaintiffs;

(b) a declaration that the Defendants are liable for damages flowing from their breach of common law duties to the Plaintiffs and Class in relation to the operation, management, administration, supervision and/or control of the Leagues and Teams;

(c) a declaration that the Defendants are liable for damages flowing from their breach of fiduciary duty to the Plaintiffs and Class in relation to the operation, management, administration, supervision and/or control of the Leagues and Teams;

(d) damages for negligence, breach of fiduciary duty, assault, intentional infliction of emotional distress, false imprisonment, and battery in an amount that this Honourable Court deems appropriate;

(e) a declaration that the Leagues or, in addition or in the alternative, the Teams, are vicariously liable for the Abuse perpetrated by the Leagues' and the Teams' staff, employees, agents and players;

(f) a declaration that the Defendants committed actionable faults in failing to prevent the Abuse pursuant to the Québec Civil Code and that the Defendants are liable for such faults;

(g) a declaration that the Defendants have breached sections 1, 10.1, and 39 of the Québec Charter of Human Rights and Freedoms;

(h) damages for loss of guidance, care and companionship pursuant to the Family Law Act, R.S.O. 1990, c. F.3;

(i) aggravated and punitive damages in an amount that this Honourable Court deems appropriate;

(j) prejudgment and postjudgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43;

(k) costs of the action on a substantial indemnity basis or in an amount that provides full indemnity to the Plaintiffs;

(l) the costs of notice and of administering the plan of distribution of the recovery in this action, plus applicable taxes, pursuant to s. 26 of the Class Proceedings Act, 1992, S.O. 1992, c. 6; and,

(m) such further and other relief as this Honourable Court may deem just.

[57] The Plaintiffs propose the following common issues:

1. What is the nature of the organizations operating as and within Canadian Major Junior Hockey?

2. Did the Defendants, or any of them, owe a duty of care to the Class in the management, operation and oversight of Canadian Major Junior Hockey?

3. If the answer to 2 is yes, what is the applicable standard of care?

4. If the answer to 2 is yes, did the Defendants, or any of them, breach the standard of care?

5. Did the Defendants, or any of them, owe a fiduciary duty to the Class in the management, operation and oversight of Canadian Major Junior Hockey?

6. If the answer to 5 is yes, did the Defendants, or any of them, breach that fiduciary duty to the Class?

7. Which of the Defendants, if any of them, would be vicariously liable for any underlying non-systemic torts committed by staff, coaches and players at Canadian Major Junior Hockey activities?

8. Did the Defendants, or any of them, commit actionable faults in failing to prevent the Abuse pursuant to the Québec Civil Code? If so, are the Defendants liable for such faults?

9. Did the Defendants, or any of them, breach sections 1, 10, 10.1 or 39 of the Québec Charter of Human Rights and Freedoms?

10. If the answer to any of the common issues 1) through 9) is “yes”, can the Court make an aggregate assessment of some or all of the damages suffered by some or all Class Members?

11. If the answer to any of the common issues 1 through 10 is “yes”, were the Defendants guilty of conduct that justifies an award of punitive and/or exemplary damages including damages pursuant to s. 49 of the Québec Charter of Human Rights and Freedoms?

12. If the answer to common issue 11 is “yes”, what amount of punitive and/or exemplary damages ought to be awarded?

E. Facts: The Plaintiffs and the Class Members

1. The Plaintiffs and the Class Member Affiants

[58] Messrs. Carcillo, Taylor, and Quirk are former players with claims against five of the 60 teams comprising major junior hockey today. Collectively, Messrs. Carcillo, Taylor, and Quirk have claims against: the Lethbridge Hurricanes of the WHL, the Prince Albert Raiders of the WHL, the Sarnia Sting of the OHL, the Moncton Wildcats of the QMJHL, and the Halifax Mooseheads of the QMJHL.

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