Efforts to seek justice on behalf of hockey players subjected to horrific abuse when playing for teams across Canada have taken another turn as lawyers seeking to represent the affected players have decided to appeal to the Ontario Court of Appeal.
Troubling Allegations and Named Defendants.
The allegations set out in the proposed Class Action Proceeding are troubling. The Claim alleges that that players were subjected to widespread hazing, racism, homophobia, as well as physical and sexual abuse. The Claim is against the Canadian Hockey League, its branches in Ontario, Western Canada and Quebec, and various individual teams that operated in those leagues.
The claim was filed in 2020, and after a number of delays, the certification motion was argued before Mr. Justice Perell in the Ontario Superior Court in November 2020. The Judge rendered his decision on February 3, 2023. Although he found that the evidence did show that the players were “tortured, forcibly confined, shaved, stripped, drugged, intoxicated, physically and sexually assaulted; raped, gang raped, forced to physically and sexually assault other teammates,” the judge still dismissed the players’ attempt to certify the proposed class action.
This is not to say that the judge didn’t have sympathy for the victims in this matter. However, he dismissed the case because he found that the case failed to meet the necessary criteria as required by the Ontario Class Proceedings Act.
The Judge found, for instance, that the three representative players had only played for five of the named teams during their careers, and the claim could not proceed against the remaining 55 teams for which they had not played. Justice Perell also rejected the idea that all of the defendants could be collectively liable for all the claims. He felt an individual team could not be jointly and severally liable for wrongdoing committed by another team (absent some evidence linking the teams to the wrongful conduct).
In essence, he felt the scope of the litigation (all Provinces, hundreds of claims, 78 different defendants, over a 50 year period) could not be managed within the confines of a single action. So while he commended the representative plaintiffs for their honesty and courage, he nevertheless ruled that the Action could not proceed.
Instead of a Class Action, Justice Perell and the parties tried to work out an Individual Issues Protocol which would basically allow groups of claimants (with say claims against a common club and league) to proceed. On October 30, 2023, the Judge approved the Individual Issues Protocol.
However, after considering the Protocol, lawyers for the alleged victims of the abuse determined that the mandated Protocol did not provide for “efficient access to justice” and simply wasn’t viable. In other words, the plan imposed by the Court would have made justice too risky and expensive for many of the victims.
As a result, in November 2023, they opted to proceed with an appeal of the dismissal of the certification motion. In their notice of appeal, the plaintiffs argue that the judge erred in finding that a class against all the defendants was not necessary, preferable, involving common issues, and should be permitted given that the class was based on the “old” pre-2020 version of the Class Proceedings Act.
Implications for Future Class Proceedings.
The Appeal will consider questions of significant importance for future proposed Class Proceedings in Ontario. Hundreds if not thousands of young hockey players appear to have been subjected to heinous treatment at the hands of those they trusted and expected to take care of them.
However, the fact is that unless this case is allowed to proceed as a Class Action, many of these victims will be denied access to justice. Given the immense human suffering and tragedy which is at the heart of this case, the rule of law and public confidence in our justice system would be enhanced if the Court of Appeal adopts a pragmatic and principled approach and allows this case to proceed.