IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
McEwan v. Canadian Hockey League,  
2022 BCSC 1104  
Date: 20220630  
Docket: S190264  
Registry: Vancouver  
Between:  
And  
James Johnathon McEwan, as Representative Plaintiff  
Plaintiff  
Canadian Hockey League/Ligue Canadienne De Hockey, Western Hockey  
League and, Canadian Hockey Association/ Association Canadienne De  
Hockey d.b.a. Hockey Canada  
Defendants  
Before: The Honourable Madam Justice Sharma  
Reasons for Judgment  
Counsel for the Plaintiff:  
E.L. Lennox  
N.C. Hartigan  
B.D. Ryan  
Counsel for the Defendants:  
A.L. Kreaden  
S. Dukesz  
H. Kellett, Articled Student  
Place and Date of Trial/Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
November 22, 2021  
Vancouver, B.C.  
June 30, 2022  
McEwan v. Canadian Hockey League  
Page 2  
Table of Contents  
Paragraph  
Range  
I. INTRODUCTION  
[1] - [4]  
II. FACTS  
[5] - [17]  
III. ADMISSIBILITY OF PLAYERS’ AFFIDAVITS  
A. The Players’ Affidavits  
[18] - [171]  
[19] - [24]  
B. Legal Principles  
[25] - [81]  
1. Relevant Legislation  
[26] - [28]  
2. Applicable Rules  
[29] - [32]  
3. Statements Made by Someone Other Than the Affiant  
a. Hearsay  
[33] - [55]  
[33] - [37]  
b. Unattributed Statements  
c. Admissions against Interest  
4. Inadmissible Opinion  
[38] - [52]  
[53] - [55]  
[56] - [61]  
5. Other Grounds of Inadmissibility  
C. Analysis  
[62] - [81]  
[82] - [171]  
[92] - [99]  
1. Statements Mischaracterized as Hearsay  
2. Statements by Others Encouraging Players to Fight  
a. Statements Made by Coaches or Other Staff  
b. Admissions  
[100] - [121]  
[110] - [110]  
[111] - [112]  
[113] - [121]  
[122] - [134]  
[128] - [128]  
[129] - [133]  
[134] - [134]  
[135] - [136]  
[137] - [139]  
[140] - [141]  
[142] - [146]  
[147] - [171]  
[172] - [216]  
[173] - [178]  
[179] - [184]  
[185] - [215]  
[186] - [199]  
c. Statements by Non-Representatives  
3. Opinion  
a. Mischaracterized as Opinion  
b. Admissible Lay Opinion  
c. Inadmissible Opinion  
4. Argumentative Statements  
5. Bald Assertion of Facts and Improper Descriptions  
6. Evidence Relevant to the Legislation  
7. Irrelevant Content  
8. Whole Paragraphs  
IV. IS THE EXPERT’S AFFIDAVIT ADMISSIBLE?  
A. The Report  
B. Legal Principles  
C. Analysis  
1. Properly Qualified Expert  
McEwan v. Canadian Hockey League  
Page 3  
2. Necessity  
3. Reliability  
[200] - [206]  
[207] - [211]  
[212] - [215]  
[216] - [216]  
[217] - [218]  
4. Probative Value  
D. Conclusions  
V. CONCLUSIONS  
VI. APPENDIX A  
McEwan v. Canadian Hockey League  
Page 4  
I.  
INTRODUCTION  
This is an application by the defendants to strike, in whole or in part, the  
[1]  
affidavits filed by the plaintiff, in support of his application for certification as a class  
proceeding on the basis that they are inadmissible.  
[2]  
The parties agreed that the defendants’ application challenging the  
admissibility of evidence could proceed before the certification application, but the  
plaintiff reserves the right to argue that I ought not to decide the issue in a  
preliminary manner. In addition, both parties agreed to postpone any appeals from  
this judgment until after the certification hearing. In light of the nature of the issues  
presented, and the parties’ positions, I am satisfied it is appropriate to hear and  
decide this application prior to certification.  
[3]  
The defendants challenge the plaintiff and three proposed class members’  
affidavits on several bases including that they contain hearsay, opinion, and  
argument.  
[4]  
They also challenge an expert opinion adduced by the plaintiff.  
[5]  
The action is grounded in negligence and breach of fiduciary duty. The  
plaintiff seeks damages for personal and physical injury, psychological injuries,  
special damages, cost of future care, and loss of income both past and future, and  
loss of housekeeping capacity.  
[6]  
The defendant Canadian Hockey League/Ligue Canadienne de Hockey and  
the defendant Canadian Hockey Association/Association Canadienne de Hockey,  
doing business as Hockey Canada (“CHL”) are federal corporations constituted  
under the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23. The CHL has  
offices in Calgary, Ottawa, and Toronto and operates regional centres in Ontario and  
Québec.  
   
McEwan v. Canadian Hockey League  
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[7] The CHL acts as an umbrella organization for the three major junior hockey  
leagues operating in North America. The leagues are for players 16 to 20 years of  
age. Those leagues are:  
a) the defendant Western Hockey League (“WHL”), which is incorporated  
under the laws of Canada and has an office in Calgary with member  
franchise clubs in Alberta, Manitoba, Saskatchewan, British Columbia, and  
the states of Washington and Oregon.  
b) the Ontario Hockey League (“OHL”); and  
c) the Quebec Major Junior Hockey League.  
[8]  
This proposed class action is brought by James McEwan on behalf of himself  
and the following proposed class of individuals: any person, or their estate, resident  
in Canada who played in the CHL from August 21, 1974, until a date to be fixed by  
this Court.  
[9]  
In addition to Mr. McEwan’s April 15, 2021 affidavit, the plaintiff relies on  
affidavits from proposed class members Myles Stoesz, Rhett Trombley, and Eric  
Rylands (collectively with Mr. McEwan, the “Players”).  
[10] In his written submission, the plaintiff describes his claim as follows:  
… The defendants … were negligent and breached their duty of care and  
their fiduciary duties to the class by, among other things, perpetuating an  
environment that permitted, condoned, and encouraged to fighting and  
violence in the game among the underage players that they are obliged to  
protect. The plaintiff alleges that the defendants' approach to fighting and  
violence in amateur sport is an outlier relative to other comparable amateur  
youth hockey leagues around the world who take a more proactive and  
preventative approach to reduce fighting and violence. The plaintiff alleges  
that the Defendants and their servants created a culture that sanctioned  
assault and that they had the power to end this culture.  
[11] The notice of civil claim also contains the following allegations:  
a) It had been known for decades that multiple blows to the head can lead to  
long-term brain injury including memory loss, dementia, depression and  
McEwan v. Canadian Hockey League  
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related symptoms. It can also lead to chronic traumatic encephalopathy  
(CTE), which is a catastrophic disease that was long associated only  
with boxing. CTE, until recently, could only be confirmed through autopsy.  
b) Scientific evidence has, for decades, linked brain trauma to long-term  
neurological problems, but this was not known by the players.  
c) Medical evidence show that symptoms can reappear hours or days after  
the injury.  
d) Once a person suffers a concussion, they are up to four times more likely  
to sustain a second one, and each successive concussion increases the  
seriousness of health risks and likelihood of future concussions.  
[12] It is alleged that at all material times, the defendants should have known or  
ought to have known that multiple incidents resulting in blows to the head would lead  
to long-term brain injury.  
[13] On September 9, 2021, the defendants filed the current application seeking to  
strike some of the affidavits relied upon by the plaintiff. Roughly, concurrently with  
that, the plaintiff has filed a preliminary application seeking the delivery of the  
defendants' response to civil claim.  
[14] The plaintiff delivered a certification record in early May 2021.  
[15] The defendants submit the Players’ affidavits suffer from multiple evidentiary  
deficiencies, which, taken together, are sufficient to have them struck in their  
entirety. The defendants allege that the affidavits contain improper hearsay, opinion  
evidence argument, and irrelevant evidence.  
[16] The plaintiff has filed two expert reports in support of the certification  
application. The first is from Dr. Virji-Babul, a physical therapist and neuroscientist at  
the University of British Columbia. The defendants do not challenge this affidavit.  
McEwan v. Canadian Hockey League  
Page 7  
[17] The second expert affidavit was completed by Dr. Skye Arthur-Banning who  
is a professor within the Department of Parks, Recreation and Tourism Management  
at Clemson University in Clemson, South Carolina. He teaches Amateur Sport  
Management. The defendants challenge Dr. Arthur-Banning's report on the basis  
that he lacks the requisite expertise and/or it cannot meet the threshold of necessity.  
The defendants also submit that it is not relevant nor reliable.  
II.  
ADMISSIBILITY OF PLAYERS’ AFFIDAVITS  
[18] Before turning to my analysis, I will briefly outline the content of the players’  
affidavits.  
A.  
The Players’ Affidavits  
[19] Mr. McEwan played for the CHL between 2004 and 2008. He started at age  
17, playing for the Seattle Thunderbirds. Two years later he played for the Kelowna  
Rockets and was the team captain. During his time in the CHL, Mr. McEwan was  
involved in over 70 fights. His position is that he would not have involved himself in  
so many fights had he been aware of what he asserts are the long-term side effects  
and health implications of concussive and sub-concussive impacts to the head.  
[20] Mr. McEwan deposed that fighting was not only condoned and tolerated, the  
coaches and managers of the teams he played for encouraged, praised, and  
rewarded him for fighting. He alleges that the defendants were negligent and  
breached their duties to players by, among other things, promoting and glorifying  
violence amongst players, including fighting.  
[21] With regard to his personal circumstances, Mr. McEwan deposed, among  
other things, the following:  
a) He started playing hockey at age six, and played every season throughout  
his youth. He progressed through minor hockey teams and had a desire to  
play for the National Hockey League (“NHL”). By age 15, he was devoting  
hundreds of hours a year to pursuing a career in hockey.  
   
McEwan v. Canadian Hockey League  
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b) He was first invited to try out for a spot on a Junior A team when he was  
16 years old. He believed he could stand out and get attention from the  
coaches by fighting another player.  
c) When he was 17, he was invited to try out for the Seattle Thunderbirds (a  
WHL team). He attended training camp and several exhibition and regular  
season games. He fought during those games, and was offered a spot on  
the team. He was trained and encouraged to be an “enforcer” on the team,  
a role he believed he fulfilled from that time forward. After two seasons  
with the Seattle Thunderbirds, he then played for the Kelowna Rockets as  
team captain. He left the WHL in 2008, but continued to try and reach the  
NHL, playing with the East Coast Hockey League and American Hockey  
League, finally retiring in 2014.  
d) In his second season with the Seattle Thunderbirds (2005-2006), he  
began experiencing persistent ringing in his ears. During and after fights,  
he often had vision distortions and dizzy spells and occasionally felt like  
he would faint. On one occasion, he lost consciousness in a parking lot  
after a fight.  
e) He continued to play after each fight and was not given medical attention.  
f) In his final years at the CHL, he began experiencing severe anxiety, mood  
swings, behavioural changes, and angry outbursts. He was in near  
constant physical pain and continued to have episodes of cloudiness and  
distorted vision.  
g) As a method of coping with those symptoms, he turned to pain  
medications and alcohol.  
[22] The other Players also describe their experiences in their affidavits.  
Mr. Stoesz deposed, among other things:  
a) He played in the CHL from 2003 to 2007.  
McEwan v. Canadian Hockey League  
Page 9  
b) He was invited to attend a training camp for a CHL team (Spokane Chiefs)  
when he was 15 years old. He got into three or four fights during that  
camp. He was too young to play on that team but was invited back the  
next year, and he “knew [he] was expected to fight”, which he did. He  
played in exhibition games and at the end of a tournament, was offered a  
place on the team. He stated he “literally fought [his] way onto that team”.  
c) He had to become an enforcer if he wanted a secure place on the team.  
d) He was injured during many fights. In each fight, he took many punches to  
his face and head, and often injured his hands, including being unable to  
play a few games because of his hand being too sore. He would feel dizzy  
and off balance, and recalled being told he had a concussion on two  
occasions. He was never told to get medical attention.  
e) He received boxing lesson as part of his training for the team. Some of the  
fights in which he was involved are posted on the internet, and he has  
watched those. He stated the referees stood back watching the players  
fight and take multiple punches, and not stepping in until they players fell  
to the ice.  
f) During his four years in the CHL, he accumulated over 800 penalty  
minutes.  
[23] Mr. Trombley deposed, among other things:  
a) He played in both the WHL and the OHL for three years, staring in 1991  
when he was 16 years old.  
b) As soon as he started playing in the CHL and throughout his career, he  
was an enforcer, which he says is “essentially a boxer on ice”.  
c) He fought between 80 and 100 times and accumulated nearly 500 penalty  
minutes as a result.  
McEwan v. Canadian Hockey League  
Page 10  
d) His hands would be so swollen from punching during a game that he  
would be unable to hold a pencil in school the next day. If he had a game  
that evening, he could not fit his hands into his gloves, so trainers would  
put his hands in buckets of ice to reduce the swelling.  
e) He would receive hard punches to the head and often had several days of  
feeling “completely spaced out”. He sustained other more serious injuries,  
including breaking his orbital bone. While he deposed he saw a team  
doctor after that event, he typically did not receive medical attention after  
fights.  
[24] Mr. Rylands deposed, among other things:  
a) He played in the OHL for four years, starting in 1993 when he was 16  
years old.  
b) He played for three different teams (the Kingston Frontenacs, the Soo  
Greyhounds, and the Ottawa 67’s) in the OHL and fulfilled the “role” as an  
enforcer and fighter.  
c) While at the training camp for the Kingston Frontenacs, he fought several  
times.  
d) He was called up to play for a higher-level team and would almost always  
fight during one of the shifts he played.  
e) In three years in the OHL, he accumulated 220 penalty minutes for  
fighting, which he estimates would be about 45 fights. He suffered  
significant injuries, including losing teeth and needing stitches. He  
experienced the following during and after fights: losing memory for hours,  
“seeing stars”, dizziness, ringing in his ears, and confusion.  
B.  
Legal Principles  
[25] The parties, for the most part, do not dispute the legal principles.  
 
McEwan v. Canadian Hockey League  
1. Relevant Legislation  
Page 11  
[26] Relevance is a crucial factor in assessing admissibility. Before turning to the  
rules applicable to the admissibility of evidence, it is important to identify the  
overarching legal regime to which the disputed evidence relates.  
[27] The Players’ affidavits are filed in support of an application for certification  
pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA]. Section 4 of the  
CPA addresses the requirements for certifying a proceeding as a class proceeding:  
4 (1) Subject to subsections (3) and (4), the court must certify a proceeding  
as a class proceeding on an application under section 2 or 3 if all of the  
following requirements are met:  
(a) the pleadings disclose a cause of action;  
(b) there is an identifiable class of 2 or more persons;  
(c) the claims of the class members raise common issues, whether or  
not those common issues predominate over issues affecting only  
individual members;  
(d) a class proceeding would be the preferable procedure for the fair  
and efficient resolution of the common issues;  
(e) there is a representative plaintiff who  
(i) would fairly and adequately represent the interests of the  
class,  
(ii) has produced a plan for the proceeding that sets out a  
workable method of advancing the proceeding on behalf of the  
class and of notifying class members of the proceeding, and  
(iii) does not have, on the common issues, an interest that is in  
conflict with the interests of other class members.  
(2) In determining whether a class proceeding would be the preferable  
procedure for the fair and efficient resolution of the common issues, the court  
must consider all relevant matters including the following:  
(a) whether questions of fact or law common to the members of the  
class predominate over any questions affecting only individual  
members;  
(b) whether a significant number of the members of the class have a  
valid interest in individually controlling the prosecution of separate  
actions;  
(c) whether the class proceeding would involve claims that are or  
have been the subject of any other proceedings;  
(d) whether other means of resolving the claims are less practical or  
less efficient;  
 
McEwan v. Canadian Hockey League  
(e) whether the administration of the class proceeding would create  
Page 12  
greater difficulties than those likely to be experienced if relief were  
sought by other means.  
[28] Section 5(1) requires the certification application to be supported by the  
applicant’s affidavit and s. 5(5) identifies mandatory content for that affidavit:  
5 (5) A person filing an affidavit under subsection (2) or (4) must  
(a) set out in the affidavit the material facts on which the person  
intends to rely at the hearing of the application,  
(b) swear that the person knows of no fact material to the application  
that has not been disclosed in the person's affidavit or in any affidavits  
previously filed in the proceeding, and  
(c) provide the person's best information on the number of members  
in the proposed class.  
2.  
Applicable Rules  
[29] The court has authority to exclude inadmissible evidence pursuant to its  
inherent jurisdiction and the common law. Also relevant is Rule 22-1(4) of the  
Supreme Court Civil Rules. It states that evidence in chambers applications must be  
given by affidavit.  
[30] Rule 22-2(12) states that an affiant must state only what he or she would be  
permitted to state in evidence at trial, but Rule 22-2(13) provides an exception:  
(13) An affidavit may contain statements as to the information and belief of  
the person swearing or affirming the affidavit, if  
(a) the source of the information and belief is given, and  
(b) the affidavit is made  
(i) in respect of an application that does not seek a final order,  
or  
(ii) by leave of the court under Rule 12-5(71)(a) or 22-1(4)(e).  
[31] The defendants focus on the court’s gate-keeping function with regard to  
admissibility of evidence, contending the court ought not to “shirk” responsibility for  
considering admissibility: Carter v. Ford Motor Company of Canada, 2021 ONSC  
4137 at para. 9. They also submit that there is no leniency with regard to the  
admissibility of evidence in class proceedings, meaning the ordinary criteria for  
 
McEwan v. Canadian Hockey League  
Page 13  
admissibility applies: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2008 BCSC  
1263 at para. 25.  
[32] These propositions are not controversial. Neither are the principles governing  
particular categories of inadmissible evidence, discussed later in this judgment. For  
the most part, the parties agreed on the applicable legal principles.  
3.  
Statements Made by Someone Other Than the Affiant  
a. Hearsay  
[33] It is well settled that the key determinant of the admissibility of an out-of-court  
statement is whether the party adducing that evidence intends to rely on the  
statement for the truth for its content. If so, it amounts to hearsay, and may be  
inadmissible.  
[34] However, if a party does not rely on the statement for its truth, but merely for  
the fact that the statement was made, it is admissible for that purpose: Pfizer  
Canada Inc. v. Teva Canada Limited, 2016 FCA 161 at paras. 8990. In that case,  
the statement does not, strictly speaking, constitute hearsay. In R. v. Khelawon,  
2006 SCC 57 at para. 36, Charron J. helpfully articulated the root of admissibility for  
such statements:  
36  
The purpose for which the out-of-court statement is tendered matters  
in defining what constitutes hearsay because it is only when the evidence is  
tendered to prove the truth of its contents that the need to test its reliability  
arises. Consider the following example. At an accused’s trial on a charge for  
impaired driving, a police officer testifies that he stopped the accused’s car  
because he received information from an unidentified caller that the car was  
driven by a person who had just left a local tavern in a “very drunk” condition.  
If the statement about the inebriated condition of the driver is introduced for  
the sole purpose of establishing the police officer’s grounds for stopping the  
vehicle, it does not matter whether the unidentified caller’s statement was  
accurate, exaggerated, or even false. Even if the statement is totally  
unfounded, that fact does not take away from the officer’s explanation of his  
actions. If, on the other hand, the statement is tendered as proof that the  
accused was in fact impaired, the trier of fact’s inability to test the reliability of  
the statement raises real concerns. Hence, only in the latter circumstance is  
the evidence about the caller’s statement defined as hearsay and subject to  
the general exclusionary rule.  
(See also R. v. Baltzer (1974), 27 C.C.C. (2d) 118 (N.S.C.A.).)  
   
McEwan v. Canadian Hockey League  
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[35] This reflects the Supreme Court of Canada’s endorsement first articulated in  
R. v. Khan, [1990] 2 S.C.R. 531, of the principled approach governing the  
assessment of hearsay, which focusses on necessity and reliability (cited in  
Khelawon at para. 42). Necessity in this context refers to the desire not to impede  
society's interest in getting at the truth by the exclusion of evidence. Reliability can  
be assessed by looking whether there are other sufficient guarantees of truthfulness  
to overcome the dangers arising from the difficulty of testing it.  
[36] Out-of-court statements may be admissible in order to demonstrate a  
person's state of mind, to further a narrative or to explain events that follow. In  
Fontaine v. Canada (Attorney General), 2015 BCSC 1597 at para. 39, the court  
found that out-of-court statements that provided background context and narrative to  
explain certain steps taken by the affiant did not offend the hearsay rule.  
[37] In addition, the traditional, well-established exceptions to the hearsay rule can  
also be relied upon for the admission of hearsay: Cambie Surgeries Corporation v.  
British Columbia (Attorney General), 2018 BCSC 514 at para. 26; R. v. Bradshaw,  
2017 SCC 35 at paras. 2224; Fresco v. Canadian Imperial Bank of Commerce  
(2009), 71 C.P.C. (6th) 97 at para. 8 (Ont. S.C.J.).  
b. Unattributed Statements  
[38] A large number of statements to which the defendants object contain  
references to coaches or trainers. The defendants say these statements are  
inadmissible because those personnel are not named and that contravenes R. 22-  
2(13).  
[39] In Albert v. Politano, 2013 BCCA 194 at paras. 1922, the Court of Appeal  
held that the “source” as used in R. 22-2(13) is equivalent to an “identified person”,  
citing Meier v. C.B.C. (1981), 28 B.C.L.R. 136 at 137138 (S.C.). The purpose of  
requiring affiants to identify the source, and confirm a belief in the information, is to  
avoid putting the reliability of the information beyond the reach of the opposing party.  
 
McEwan v. Canadian Hockey League  
Page 15  
[40] In my view, the specification by the affiants that certain statements were  
made by their coaches or trainers is sufficient to meet the “identified person”  
requirement. That is because the Players specify which teams they played on during  
the relevant seasons. There would be a small and finite number of people who acted  
as coaches or trainers. In my view, that does not put the reliability of their statements  
beyond the defendants’ reach.  
[41] Moreover, the plaintiffs emphasize that statements in an affidavit by someone  
other than the affiant, if not adduced for their truth but for a non-hearsay purpose,  
will be admissible: Tasci (Re), 2020 BCSC 1438 at para. 71. The defendants submit  
that does not obviate the need to identify the source of information even if the  
statement is not being tendered to prove its truth. The plaintiff contends that  
assertion is incorrect.  
[42] The defendants rely on L.M.U. v. R.L.U., 2004 BCSC 95, to support their  
position. I do not read the discussion in L.M.U. to go that far. Justice Bouck accepted  
that out-of-court statements adduced not for their truth, but for the fact they were  
made, can be admissible, but to do so, the affiant must identify how they are  
relevant: L.M.U. at para. 24.  
[43] The defendants also submit that Huebner v. PR Seniors Housing  
Management Ltd., D.B.A. Retirement Concepts, 2021 BCSC 837, is directly  
applicable to the facts before me. The defendants point to Murray J.’s ruling that  
certain statements made by proposed class members referred to unnamed staff was  
inadmissible hearsay (para. 108(5)).  
[44] The factual underpinning of that ruling differs significantly from the statements  
at issue here. That case was a proposed class action against care homes owned  
and operated by the defendants brought by residents who lived there (constituting  
one proposed class) and their family members (constituting a separate class). The  
claim alleged, among other things, neglect and abuse of the residents. The  
certification application was supported by over 20 affidavits, and the defendants  
McEwan v. Canadian Hockey League  
Page 16  
raised hundreds of objections to their content. The judgment addresses the  
objections to each portion of the affidavits.  
[45] Among other things, the passage addressed at para. 108(5) had both opinion  
and hearsay problems. The affiant claimed wearing the same socks for multiple days  
could contribute to developing a fungal infection (that was struck as being  
inadmissible opinion evidence), and that unnamed staff members dismissed the  
affiant’s concerns suggesting such infections were common (which was hearsay). It  
is unclear if the statements by the unnamed staff were being relied upon for their  
truth. Accordingly, that case is not helpful in resolving this particular issue.  
[46] The defendants also contend an affidavit’s preamble that an affiant believes  
the information in the affidavit to be true is insufficient to provide the foundation for  
the applicant's belief in an out-of-court statement: L.M.U. at paras. 3839. The  
problem with relying on the preamble alone, if statements are introduced not for their  
truth, is that the there is no identification of the relevant purpose of the statement’s  
admission. I do not understand the plaintiff to suggest the preamble was sufficient,  
on its own, to support the admissibility of any out-of-court statements.  
[47] In any event, the plaintiff points out that R. 22-2(12) confirms an affidavit may  
contain anything that the deponent could testify to at trial. Therefore, his position is  
that if an out-of-court statement is being offered not for its truth, it is prima facie  
admissible. That may state the rule too broadly. There must still be a relevant  
purpose for the admission of the statement into evidence, but that purpose can  
include adding to the context and narrative of the affiant’s other evidence: Fontaine  
at para. 39.  
[48] In my view, the defendants’ position that unattributed statements always  
violate R. 22-2(13), even if not proffered for the truth of their content, may be too  
broad. The key is to analyze the impugned statements within the affidavits to  
properly determine the purpose for which it is being proffered, and relate that to an  
issue identified in the pleadings.  
McEwan v. Canadian Hockey League  
Page 17  
[49] Most importantly, that enquiry must be done keeping in mind that the issue  
before the court at certification will be whether there is “some basis in fact” for  
establishing common issues trial. I agree with the plaintiff that this factor is critical to  
the analysis of the Players’ affidavits.  
[50] The court is not, at that stage, engaged in making determinations about the  
credibility or reliability of the evidence presented in the affidavits filed in support of  
certification. The plaintiff submits that is why he does not rely on any of the out-of-  
court statements for their truth. Instead, most of those statements add to a narrative  
that, in his view, constitutes a “basis in fact” to permit certification.  
[51] The plaintiff says the point is underscored by the acceptance in several  
decisions of affidavits to satisfy certification which contained unattributed out-of-court  
statements. For instance, in Miller v. Merck Frosst Canada Ltd., 2013 BCSC 544 at  
para. 1278, Punnett J. allowed affidavits containing hearsay or double hearsay  
statements sought to be admitted to establish some basis in fact for the existence of  
an identifiable class of two or more persons. In doing so, Punnett J. relied on  
Chalmers v. AMO Canada Company, 2009 BCSC 689, where the court specifically  
referred to s. 5 (5)(c) of the legislation which requires only that the “best information”  
be adduced regarding the size of the class. That information is almost always in the  
form of hearsay and does not prove the class size but is relevant to considering the  
procedural issues.  
[52] Similar comments are made in Griffin v. Dell Canada Inc. (2009), 72 C.P.C.  
(6th) 158 at para. 83 (Ont. S.C.J.), where common issues were certified on the basis  
of an exhibit containing information collected from more than 400 putative class  
members. The court held that the “persistence and remarkable similarity of the  
complaints … across such a large group of users” amount to some evidence  
satisfying the commonality requirement.  
c. Admissions against Interest  
[53] The plaintiffs also say several of the statements were made by  
representatives of the defendants and, therefore, they are binding admissions  
 
McEwan v. Canadian Hockey League  
Page 18  
against them under the party admissions exception to hearsay: Ontario v.  
Rothmans, 2011 ONSC 5356 at paras. 7276.  
[54] In Fontaine the court held that many of the statements objected to were made  
by the representatives of the opposing party and are, therefore, admissions and  
admissible on that basis. It was open to the opposing party to cross-examine or  
invoke conflicting evidence: para. 40. As the plaintiff points out, the incidents  
discussed in the affidavits relate to people who would have been coaches or similar  
staff, therefore if there are records, they would be in the defendants’ position. I agree  
that may provide a route of admission for such statements.  
[55] In any event, the plaintiff also argues that the statements may be admissible if  
they are sufficiently necessary and reliable under the principled approach to  
hearsay, an analysis that has to be undertaken by reading the statement in context.  
4.  
Inadmissible Opinion  
[56] The defendants submit numerous statements in the Players’ affidavits are  
inadmissible as opinion evidence. The plaintiff submits most of the statements to  
which the defendants object on this ground are fact rather than opinion, or are  
admissible as lay opinion evidence.  
[57] The parties do not dispute the applicable legal principles. Typically, only those  
qualified as experts can give opinion evidence. However, if certain conditions are  
met, witnesses who are not experts may provide what is called “lay opinion”  
evidence. The basis of admission was explained by Justice Grauer in American  
Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042 at paras. 14,  
16:  
[14]  
Generally, opinion evidence is inadmissible unless it is expert  
evidence. There are exceptions. Lay opinion evidence may be admissible  
under circumstances discussed at length in Part II of Chapter 12 in The Law  
of Evidence in Canada, where the learned authors state at paragraph 12.14:  
Courts now have greater freedom to receive lay witnesses’ opinions if:  
(1) the witness has personal knowledge of observed facts; (2) the  
witness is in a better position than the trier of fact to draw the  
inference; (3) the witness has the necessary experiential capacity to  
 
McEwan v. Canadian Hockey League  
draw the inference, that is, form the opinion; and (4) the opinion is a  
Page 19  
compendious mode of speaking and the witness could not as  
accurately, adequately and with a reasonable facility describe the  
facts she or he is testifying about. But as such evidence approaches  
the central issues that the courts must decide, one can still expect an  
insistence that the witnesses stick to the primary facts and refrain  
from giving their inferences. It is always a matter of degree. As the  
testimony shades towards a legal conclusion, resistance to  
admissibility develops.  
[16]  
In Graat, the Supreme Court of Canada ruled admissible lay  
opinion evidence about whether a person’s ability to drive was impaired by  
alcohol. The witnesses in question all had an opportunity for personal  
observation, and the opinion was based on perceived facts as to the manner  
of driving and the indicia of intoxication of the driver. These witnesses were in  
a better position than the trier of fact to determine the degree of impairment  
and could give the court real help. The court noted at pages 837-838:  
It is well established that a non-expert witness may give evidence that  
someone was intoxicated, just as he may give evidence of age,  
speed, identity or emotional state. This is because it may be difficult  
for the witness to narrate his factual observations individually.  
Drinking alcohol to the extent that one’s ability to drive is impaired is a  
degree of intoxication, and it is yet more difficult for a witness to  
narrate separately the individual facts that justify the inference, in  
either the witness or the trier of fact, that someone was intoxicated to  
some particular extent. If the witness is to be allowed to sum up  
concisely his observations by saying that someone was intoxicated, it  
is all the more necessary that he be permitted to aid the court further  
by saying that someone was intoxicated to a particular degree.  
Nor is this a case for the exclusion of non-expert testimony  
because the matter calls for a specialist. It has long been accepted in  
our law that intoxication is not such an exceptional condition as would  
require a medical expert to diagnose it. An ordinary witness may give  
evidence of his opinion as to whether a person is a drunk. This is not  
a matter where scientific, technical, or specialized testimony is  
necessary in order that the tribunal properly understands the relevant  
facts. Intoxication and impairment of driving ability are matters which  
the modern jury can intelligently resolve on the basis of common  
ordinary knowledge and experience. The guidance of an expert is  
unnecessary.  
[58] The defendants say this exception does not apply to any of the impugned  
passages of the Players’ affidavits for a number of reasons.  
[59] With regard to what the defendants say are the Players’ statements that they  
were trained, encouraged, and commended to be an enforcer, they submit those  
McEwan v. Canadian Hockey League  
Page 20  
allegations are not supported by concrete examples of explicit communications;  
therefore, there are insufficient grounds for those opinions.  
[60] The defendants also contend that the exception to allow lay opinion evidence  
is intended for situations where a witness must relay an inference because it is  
impossible for that witness to relay facts without also relaying the inference. The  
defendants say the Players’ opinions are unlike admissible lay opinion about the  
speed of a car, as described in R. v. Collins (2001), 160 C.C.C. (3d) 85 (Ont. C.A.),  
because they go beyond what the witnesses can speak to from their own personal  
knowledge.  
[61] For the most part, I disagree and find the statements to which the defendants  
object as being opinions are either not opinions or do satisfy the criteria of lay  
opinion.  
5.  
Other Grounds of Inadmissibility  
[62] The defendants also identify content of the affidavits which they say is  
inadmissible as being scandalous, frivolous and vexatious.  
[63] The defendants rely on R. 9-5(1)(b), which states the court may order to be  
struck or amended in whole or “any part of a pleading, petition or other document”  
on the ground that it is, among other things “(b) unnecessary, scandalous, frivolous  
or vexatious”.  
[64] It is not clear to me that it is helpful to the issues raised in this application to  
rely on R. 9-5(1)(b). Rule 9-5 is titled “Striking Pleadings”. Pleading is defined in  
Rule 1-1(1) to mean “a notice of civil claim, a response to civil claim, a reply, a  
counter-claim, a response to counterclaim, a third party notice or a response to third  
party notice”.  
[65] Affidavits are evidence and not pleadings. Although not stated explicitly, I  
assume that the defendants rely on affidavits being an “other document” to which R.  
9-5(1)(b) could apply. I also assume this position is supported by the following  
paragraph from the defendants’ written submissions:  
 
McEwan v. Canadian Hockey League  
Page 21  
[s]candalous, frivolous and vexatious evidence, legal conclusions, adjectival  
descriptions, bald allegations and conclusory statements, opinions regarding  
motive and argument, including a description of a person’s reactions to  
events, are all inadmissible evidence.  
[66] The defendants cite a number of cases to support that submission, but in my  
view, none go so far as to stand for the proposition that there is an independent  
ground of inadmissible affidavit evidence based solely on statements being, in the  
view of the opposing party, “scandalous, vexatious or frivolous”. It must be  
remembered that in each case the court’s comments must be read in the context of  
the particular issues before it, and the nature of the disputed evidence. The cases  
cited by the defendants largely articulate principles that are undisputed.  
[67] In British Columbia Investment Management Corp. v. Canada (Attorney  
General), 2016 BCSC 2554 at paras. 7, 10, the court states that affidavits should be  
confined to relevant facts within the affiant’s personal knowledge and should not  
include inadmissible hearsay, opinions, argument, or legal conclusions. There is  
nothing controversial about that ruling.  
[68] In Home Equity Development Incl. v. Crow, 2002 BCSC 546 at para. 30, the  
court was considering the admissibility of certain affidavits in the context of an action  
by the plaintiffs for defamation in which the defendants applied to have that action  
dismissed pursuant to the now-repealed Protection for Public Participation Act,  
S.B.C. 2001, c. 19. In that context, the court stated that “[p]ersonal opinions or a  
description of the deponent’s or another person’s reaction to events is inappropriate  
and is nothing more than argument in the guise of evidence”. This reflects the  
principle that argument is inadmissible in affidavits. Again, the plaintiff does not  
dispute that rule of evidence, but disagrees with what the defendants have identified  
as being argument in the affidavits.  
[69] Similarly, in 6180 Fraser Holdings Inc. v. Ali, 2012 BCSC 247 at para. 41, the  
court stated that “some of allegations made against various individuals in those  
affidavits are embarrassing and scandalous while having absolutely nothing to do  
with any of the issues”. In other words, the ground of inadmissibility was irrelevance.  
McEwan v. Canadian Hockey League  
Page 22  
This does not create, in my view, a different category of inadmissibility based on  
“scandalous” content.  
[70] In my view, none of the cases relied upon by the defendants stand for the  
broad, free-standing proposition that what one party characterizes as “scandalous,  
frivolous or vexatious” content in an affidavit, without more, is per se inadmissible.  
As noted above, the phrase “scandalous, frivolous or vexatious” in the context of R.  
9-5(1)(b) is most readily understood to apply to allegations in pleadings rather than  
deponents’ evidence.  
[71] Having reviewed the defendants’ table of objections and specifically, all those  
references to purported inadmissible content on the basis of the affiant’s  
“scandalous, frivolous or vexatious” statements, I do not give effect to that objection,  
and those statements will be assessed on the other grounds raised by the  
defendants.  
[72] In the alternative, if I am wrong about whether that can be an independent  
basis to exclude evidence, I do not find any of the impugned passages scandalous,  
frivolous or vexatious, although a few may be irrelevant.  
[73] Accordingly, I dismiss the objection to the following passages on the basis of  
their being scandalous, frivolous or vexatious:  
a) McEwan Affidavit:  
i. Para. 18: the underlined phrase in this sentence, “Rather, my coaches  
would only need to say my name or tap me on the shoulder, and I  
would head out onto the ice, looking for my target”.  
ii. Para. 30: describing how he testified for the World Association of Ice  
Hockey Players to take a stand against certain labour exemptions  
under the CHL “that pay players insufficiently low amounts and rejects  
them from accessing workers compensation and unemployment  
rights”.  
b) Stoesz Affidavit:  
McEwan v. Canadian Hockey League  
Page 23  
i. Para. 6: “I realize now that I had literally fought my way onto that  
team”.  
ii. Para. 9: “and now looking back, by joining this team I was molded into  
this rage-filled fighter.”  
iii. Para. 10: “My teammates nicknamed me “Terma” which was short for  
Terminator, an unstoppable fighting machine”. “Once I earned this title,  
there was no going back.”  
iv. Para. 21: the entire paragraph.  
c) Trombley Affidavit:  
i. Para. 3: He deposed he was an enforcer “which is essentially a boxer  
on ice”.  
ii. Para. 8: “I support the plaintiff’s application to have this action certified  
as I am concerned about the ongoing culture of fighting in the CHL  
when children are involved”.  
[74] There are also instances where the defendants suggest that a sentence is  
impermissible purely because it amounts to a bald allegation of fact”. I have some  
difficulty understanding why the assertion of a fact (bald or otherwise) can be an  
independent ground for inadmissibility. I do not give effect to that objection.  
[75] The defendants refer to a number of passages as being inadmissible because  
they are “improper descriptions of the affiant’s or someone else’s reaction to an  
event”, or “adjectival descriptions”. The only case which referred to those as grounds  
of inadmissibility is K.L.C. v. J.C., 2000 BCSC 798. At para. 9 the court stated:  
[9]  
Counsel for Mr. C. relies upon F.(J.K.) v. F.(J.D.) (1986), B.C.J.  
No. 672; Creber v. Franklin (1993), B.C.J. No. 890; and Webber v.  
Wallace (1994), B.C.J. No. 1894. All are decisions of our court. Shortly  
stated, in all these cases the court directed that portions of affidavits be  
expunged for various reasons. These reasons include: hearsay upon  
hearsay, or irrelevance (F.(J.K.) v. F.(J.D.)), inadmissible opinion, adjectival  
descriptions, or subjective descriptions of reactions (Creber), unidentified  
witnesses, opinions regarding motives, or argument (Webber).  
[Emphasis added.]  
McEwan v. Canadian Hockey League  
Page 24  
[76] The portions underlined are phrases relied upon by the defendants to  
challenge some of the Players’ statements. However, the court’s statements in  
K.L.C. must be understood in the context of the application. That judgment  
addressed an application in relation to a dispute about custody and access of the  
couple’s young children aged five and two. One parent was applying to strike  
portions of the other parent’s affidavit for the reasons listed in that passage.  
[77] While the rules of evidence are meant to be universal, it is not uncommon in  
cases involving parenting disputes for witnesses, including parents, to feel  
compelled to file affidavits with content of dubious relevance (see A.M.D. v. K.R.J.,  
2015 BCSC 946 at paras. 3036). The key, as always, is to ask whether the content  
actually relates to a material issue before the court.  
[78] That is what the court did in K.L.C., noting that in order to decide the issues of  
admissibility, it had to “review the specific allegations made in the affidavit … and  
assess their admissibility in light of the purpose as counsel characterizes it”  
(para. 10). The court went on to address specific paragraphs of the affidavits  
(para. 21), but that was in the context of issues defined by the best interest of the  
child.  
[79] Thus, I do not read the case as standing for the proposition that there is a  
free-standing basis to strike statements that contain “adjectival descriptions or  
subjective descriptions of reactions”.  
[80] Moreover, the phrase “adjectival descriptions” appears to have emanated  
from Creber v. Franklin, [1993] B.C.J. No. 890 (S.C.) at para. 19, but it is important  
to note that in that case the court held the challenged passages were irrelevant.  
[81] I come to the same conclusion regarding objections based on statements  
being any kind of improper description of any kind, and I dismiss all such objections.  
McEwan v. Canadian Hockey League  
C. Analysis  
Page 25  
[82] I am grateful to counsel for providing tables specifying the passages in the  
Players’ affidavits to which the defendants object, and identifying the basis for the  
parties’ position on those objections. Many passages are asserted to be  
inadmissible on multiple grounds.  
[83] Before analyzing those objections, I emphasize some important points. A  
crucial factor in determining whether a statement is admissible is to ascertain for  
what purpose it is being adduced. While not determinative, a party’s assertion that  
an out-of-court statement is not being proffered for the proof of the truth of its  
content cannot be ignored and should not lightly be discarded. If the stated purpose  
logically fits with the statement and that purpose does relate to an issue, it is difficult  
to conceive why a court would strike out that evidence as being hearsay on a  
preliminary motion. This is especially true when the statements are being analyzed  
before the other party’s evidence has been filed.  
[84] It is also important to keep in mind that admitting the evidence at this  
preliminary stage has no bearing on the weight it might eventually attract at trial.  
There are no findings of fact made at certification since the issue is whether the  
record reveals “some basis in fact” to find the action suitable as a class action.  
[85] It is also imperative to read the challenged statements in the proper context,  
which is why I have sometimes included statements surrounding impugned  
passages. Doing so ensures a better understanding of the evidence. Words  
contained within quotation marks denote content from the affidavit to which the  
defendants object.  
[86] Some explanation of how this judgment is structured is necessary.  
[87] My analysis of the impugned portions of the affidavits is divided into  
categories corresponding to the alleged ground of inadmissibility.  
[88] Many statements are challenged on multiple grounds, and, for the most part, I  
subject each passage to all grounds raised. However, generally, I have done so  
separately under the appropriate category. This results in significant amount of  
 
McEwan v. Canadian Hockey League  
Page 26  
duplication of the impugned passages, but I find it necessary to ensure that all the  
defendants’ objections were considered.  
[89] For most categories, I provide general reasoning that is applicable to the  
whole group of statements challenged on the same basis. Occasionally, I include  
with the impugned passage a few comments explaining my categorization of a  
passage and/or my conclusion as to its admissibility.  
[90] Additionally, for a few paragraphs, it was more convenient to analyze the  
entire paragraph in one section, rather than parse separate portions for analysis  
under more than one category.  
[91] Finally, I include, as an appendix to this judgment, a table summarizing those  
portions of the affidavits that I have found to be inadmissible with a brief explanation  
as to why, where necessary. I confirm any passage not included in that table is  
admitted into evidence.  
1.  
Statements Mischaracterized as Hearsay  
[92] I find many statements to which the defendants object as being inadmissible  
hearsay are statements of fact that the plaintiff does not rely on for their truth.  
However, there is also a group of statements that I find the defendants have mis-  
described. These statements are introduced by an affiant to explain how or why an  
event occurred; the statement itself is not material. The event connected to the  
statement is part of the affiant’s experience or observation and is admissible. The  
statement provides context to explain how or why the event occurred. These types  
of statements do not constitute hearsay because they are not introduced for the truth  
of the content of the statement.  
[93] An illustrative example is para. 11 of the McEwan Affidavit. He starts by  
stating that he “was disheartened by being cut from [his] first tryout for a Junior  
team”. He goes on to describe the next tryout. After describing “throwing fists” with a  
veteran player, Mr. McEwan deposed the fight got the coaches’ attention “and …  
they offered to allow me to go to play exhibition games.”  
 
McEwan v. Canadian Hockey League  
Page 27  
[94] The defendants argue the italicized words are inadmissible as hearsay (as  
well as on other grounds discussed later in this judgment). The defendants say  
Mr. McEwan cannot rely on what was said to him to prove that he was extended an  
offer to play exhibition games because the coaches noticed his participation in a  
fight. That objection assumes that the purpose of the italicized words is to support  
the plaintiffs claim that coaches rewarded Mr. McEwan for fighting, thereby  
contributing to the defendants’ encouragement or promotion of fighting, which forms  
one aspect of the plaintiff’s claim.  
[95] However, the plaintiff was explicit that he does not rely on those words for the  
truth of their content. While it is true that there must have been words spoken to  
make the offer to Mr. McEwan, what is relevant is the fact that the offer was made,  
not what words were spoken to make the offer.  
[96] In my view, the flaw with the defendants’ position is that they isolate the  
statements from the surrounding content in the affidavit. Mr. McEwan deposed that  
he did play in exhibition games. It cannot be seriously suggested that he could have  
done so without being asked. He mentions that he was invited to play as part of the  
narrative. He submits he does not rely on the invitation as a fact to buttress or  
support the truth of any out-of-court statement made by the coaches. The fact of the  
invitation is admissible as part of Mr. McEwan’s experience and observation.  
[97] It may be that the plaintiff will ask the court to draw certain inferences at trial  
because Mr. McEwan engaged in a fight and was then invited to play in exhibition  
games. However, the defendants will have the opportunity to urge the court not to  
draw that inference, regardless of whether they adduce directly contradictory  
evidence on that point. The court will have to determine the credibility and reliability  
of each piece of evidence and weigh those to determine what inferences, if any,  
should be drawn. In other words, the admission of the impugned words does not  
necessarily mean that the assumption underlying the defendants’ objection will be  
adopted by the court.  
McEwan v. Canadian Hockey League  
Page 28  
[98] Furthermore, the defendants’ position appears to rely on a  
mischaracterization of the court’s role at the certification hearing. The court will not  
be making findings of fact. Its task is to determine if there is “some basis in fact” to  
find the action is suitable as a class action. Therefore, a determination that  
something is admissible for the purposes of certification does not necessarily mean  
it is admissible in the same fashion for the trial: see s. 5(5) of the CPA and Pro-Sys  
Consultants at paras. 102103.  
[99] For all those reasons, I find the following statements do not constitute  
hearsay because they are statements of fact. They provide context to an event the  
affiants described:  
a) McEwan Affidavit:  
i. para. 11: “they offered to allow me to go to play exhibition games.”  
ii. Para. 12: “and was asked to leave after that”.  
iii. Para. 15: “During one of the games, I asked [a veteran on the other  
team who and been drafted to the NHL] to fight and he said no. After  
the shift, I saw him talking to the assistant coach and, during the next  
shift, he agreed, and we squared off and fought”.  
iv. Para 16: He deposed about fighting in the first few games he had been  
asked to play on a particular team, “and was offered a spot on the  
team by the general manager of the team and the coach”.  
b) Stoesz Affidavit, para. 11: At boxing lessons he was given as part of his  
training, he sparred with NHL players in “the ‘craft of fighting’ as they  
called it”.  
c) Rylands Affidavit, para. 9: After explaining he watched a video of a fight in  
which he was involved for which he had no memory at the time, he stated,  
“and it was not until one of my teammates called over an assistant coach  
because I was saying nonsensical things”.  
McEwan v. Canadian Hockey League  
Page 29  
2.  
Statements by Others Encouraging Players to Fight  
[100] The defendants submit numerous statements in the Players’ affidavits  
referring to encouragement and/or praise for fighting that came from coaches,  
trainers, fans or others are inadmissible hearsay (some are also challenged as being  
inadmissible opinion evidence, discussed later).  
[101] The plaintiff does not rely on any of these out-of-court statements for the truth  
of their content. Instead, he says such statements are being adduced to  
demonstrate the Players’ state of mind at the time of the events, to provide context  
and to further the narrative in their affidavits.  
[102] The defendants say the court must not blindly accept the plaintiff’s assertion  
about the purpose of introducing the impugned statements. While that is true, as  
noted earlier, the purpose for which evidence is adduced is key to determining its  
admissibility. No authority has been cited to support an approach that would reject a  
party’s position that out-of-court statements are not being introduced to prove their  
truth, without cogent reason.  
[103] In any event, for almost all such statements, I find the plaintiff’s position  
persuasive. The impugned statements do not purport to be quotations. Sentences  
such as “I … [was] constantly encouraged by … coaches … to fight” (see below,  
para. 110(a)) conveys that Mr. McEwan felt encouraged to fight. This is clearly a  
reference to his state of mind.  
[104] The defendants make the reasonable point that such statements necessarily  
imply the coaches said or did things to encourage Mr. McEwan to fight, meaning the  
statements are inadmissible hearsay. However, the analysis is more nuanced than  
that.  
[105] These statements all have a dual aspect. The defendants focus only on one  
aspect: implying that particular words were spoken or conduct displayed by coaches  
or others. However, the plaintiff relies on these statements not because of what they  
imply someone other than the affiant said or did, but for what the Players say they  
 
McEwan v. Canadian Hockey League  
Page 30  
thought or felt. The statements explain the Playersstate of mind, which they claim  
led them to engage in an activity (fighting). Part of the claim as pleaded is that the  
defendants’ failure to take sufficient steps to prevent fighting caused injuries for  
which the plaintiff (and class members) should be compensated. Whether that nexus  
can be drawn will be an issue at trial.  
[106] The plaintiff contends that for the purpose of certification, he does not have to  
show that it was true that coaches spoke encouraging words or displayed  
encouragement for fighting. The issue will be whether the plaintiff has established  
some basis in fact” that the proposed issues are common to the entire proposed  
class. The plaintiff’s position is that viewed in that light, whether it is true that  
coaches said or did things that encouraged fighting is not a necessarily ingredient to  
his ability to meet the test for certification. I agree. It bears pointing out that the  
necessary implication of this position is that the plaintiff will be unable to argue at the  
certification hearing that the statements themselves help prove to the court that it is  
true that coaches said or did things to encourage fighting.  
[107] The plaintiff also takes the position that the statements provide narrative  
context for the rest of the affidavits in which the Players describe facts about their  
time playing in the CHL. That narrative includes the number of fights in which they  
engaged, the penalty minutes assessed against them, as well as their movement  
amongst different teams. I agree that other portions of the affidavits would be difficult  
to follow without the context provided by these statements.  
[108] Somewhat similar in content, the defendants also object to the Players’  
statements describing what they believed to the role of “enforcers” on teams,  
including what was expected of enforcers. The defendants object to those types of  
statement primarily as being opinion evidence, which is discussed and analyzed  
later in this judgment.  
[109] However, to the extent such statements may be based on what others said or  
did, the defendants also assert they amount to hearsay. It is not clear to me that the  
Players’ statements about the role of enforcers fall into the category of out-of-court  
McEwan v. Canadian Hockey League  
Page 31  
statements made by others. For the most part, the Players do not specify that those  
statements are based on what others said. In any event, even if they did so, I would  
find those statements admissible as illustrating the affiant’s state of mind and  
providing context to the narrative.  
a. Statements Made by Coaches or Other Staff  
[110] The following statements are admissible for the reasons stated above:  
a) McEwan affidavit:  
i. Para. 3: “I and other players were constantly encouraged by our  
coaches and other members of the CHL to fight and to be aggressive  
while playing and it was often made clear to me that my spot in the  
CHL was tied to my ability to fight and be aggressive.”  
ii. Para. 11: “and it was enough to get the attention of the coaches - they  
offered to allow me to go to play exhibition games”, referring to a fight  
in which he was involved.  
iii. Para. 15: “I spoke with my Dad about [a conversation his dad had with  
a scout], and we knew that the coaches and management were looking  
for me to fight during the tryouts.”  
iv. Para. 17: “I was trained and encouraged by the coaches and  
management to be the team’s “enforcer.” The term enforcer is not an  
official title in hockey, but it is a position that everyone was (and still is)  
very familiar with. An enforcer’s primary job is to deter and respond to  
dirty or violent play by the opposition. When such play occurs, the  
enforcer is expected to respond aggressively, by fighting or checking  
the offender. Enforcers are expected to react particularly harshly to  
violence against start players or goalies. Additionally, enforcers are put  
out onto the ice to fight to try and change a [game’s] momentum and,  
also, will sometimes be put out at the end of a game by the losing team  
 
McEwan v. Canadian Hockey League  
Page 32  
when the results are inevitable to try and make a show of force to the  
other team. Every team in the WHL had at least one enforcer (and  
sometimes several) and, if an enforcer was put on the ice, the other  
team would respond by putting out theirs”.  
v. Para. 18: “I was commended for my fights by my coaches, teammates,  
and by management. After I’d win a fight, my coaches would praise me  
in the locker room and, if I lost, the coaches would explain how I could  
do better.” He stated by the end of his first season, he never had to be  
told to fight: “Rather, my coaches would only need to say my name or  
tap me on the shoulder, and I would head out onto the ice, looking for  
my target”.  
vi. Para. 23: Mr. McEwan deposed that at age 20 he continued to be an  
enforcer “and to be encouraged to fight by my coaches”.  
b) Stoesz Affidavit:  
i. Para. 4: Mr. Stoesz describes his first fight in hockey at a CHL training  
camp and continued, “I recall the coaches and the trainers cheering for  
me on the sidelines. Everyone was paying attention to me”.  
ii. Para. 7: “It was made clear to me that I wasn’t on the ice to play and  
score, I was there to fight. Fighting was encouraged by the coaches  
and trainers. One of my coaches told me that I had to fight and if I  
didn’t, I would end up sitting on the bench and not playing”.  
iii. Para. 8: “If I wanted to have a secure place on the roster, I had to  
become the “enforcer” for the team. The enforcer is not an official  
position like a goalie but is a known role that a player takes on and  
who is meant to be an agitator and an aggressor to the opposite team.  
The enforcer is meant to protect the players on his team. If there are  
cheap shots or if there is aggression against a teammate, particularly a  
star player, the enforcer is expected to respond aggressively. In my  
McEwan v. Canadian Hockey League  
Page 33  
experience, the enforcer was also used to make the game more  
exciting for the fans. There were times when I was sent on to fight  
because the game was slow, and the fans seemed bored. The coach  
would send me out to fight because it would get the fans to jump to  
their feet and cheer. When this happened, I felt like a rock star”.  
c) Trombley Affidavit:  
i. Para. 4: “The coaches and assistant coaches from the CHL teams  
reminded us constantly that if we didn’t perform, we would not be kept  
on and that there were many other guys who could take our spot in a  
second (and performance for me meant fighting).”  
ii. Para. 5: “Often the coaches would tell me during a game who they  
wanted me to fight”. Also, “and if the coach or assistant coach told me  
to go play left wing during a shift, I knew it was because they wanted  
me to fight and the player on the other team in that position”.  
d) Rylands Affidavit:  
i. Para. 7: “I was given players names by the coaches throughout the  
year of who I was to fight”.  
ii. Para. 8: “but again was told that I had my role (as an enforcer) and that  
that role did not need a great deal of ice time”.  
iii. Para. 9: He described an incident he viewed on a video but for which  
he no memory, and provides his observation of a portion of the video  
as follows, “and it [was] not until one of my teammates called over an  
assistant coach because I was saying nonsensical thing[s]”.  
b. Admissions  
[111] Admissions made by an opposing party are admissible as an exception to the  
hearsay rule; such statements may be admitted for their truth. I find, in the  
 
McEwan v. Canadian Hockey League  
Page 34  
alternative, if I am wrong that the statements above (in paras. 110) are not hearsay, I  
would find them admissible under the admissions exception to hearsay rule.  
[112] Again, this does not mean that the court will necessarily accept the Players’  
evidence that such statements were made or behaviour was displayed. Ultimately,  
that would depend upon looking at all the evidence adduced at trial that is relevant to  
that issue. Nor does their admission signify anything about what weight would be  
attached to the statements. Their admission only means they can be assessed,  
along with any other evidence, to determine whether such statements were made, or  
behaviour displayed.  
c. Statements by Non-Representatives  
[113] There are three passages objected to by the defendants as hearsay that are  
not statements made by representatives of the defendants. Therefore, they would  
not be admissible as exclusions to hearsay, although there may be a different basis  
for their admissibility.  
[114] The first passage is the second sentence in paragraph 29 of Mr. McEwan’s  
affidavit, “I have spoken with many former players that had similar experiences to  
me and suffered injuries”. I agree with the plaintiff that this statement is admissible  
pursuant to s. 5(5)(c) of the CPA because the Players must provide their “best  
information” as to the number of people in the class: see explanation below,  
paras. 140-141.  
[115] The second is a portion of paragraph 16 from Mr. Stoesz’s affidavit. For  
convenience I reproduce the entire paragraph:  
By my second season, I was a star in Spokane with a loyal following of fans  
because of my role as an enforcer. The rink was packed for my games and  
the crowd wanted me to fight. They would chant my name. My jersey was  
one of the bestsellers on the team. After games, I met with fans at the  
autograph session. They would talk about my fights. They would break it  
down punch by punch for me and provide me with their opinions. They knew  
who the fighters were on all the opposing teams and would ask me who I was  
fighting next or give me suggestions of who I should fight next. There was so  
much hype about my fights in Spokane. At the start of each game I would feel  
 
McEwan v. Canadian Hockey League  
Page 35  
pressure of the coaches, my team and couple hundred fans expecting me to  
fight.  
[116] The defendants object to the italicized portions as improper opinion, but I find  
that is a mischaracterization, and those sentences are admissible as facts: see  
below, para. 128(b)(viii). The defendants also object to the underlined portions on  
the basis they constitute hearsay. The plaintiff submits these statements are not  
adduced for the truth of their content, but to further the narrative and establish  
Mr. Stoesz’s state of mind.  
[117] I do find these statements admissible for that purpose. I accept that  
conversations with fans are relevant to Mr. Stoesz’s state of mind. These sentences  
are linked to and explain his observation that “[t]here was so much hype about my  
fights in Spokane”. Without the underlined portions, his observation about hype  
would be without appropriate context.  
[118] The third passage is statements contained in para. 15 of the McEwan’s  
affidavit. I reproduce the entire paragraph:  
At the beginning of the camp, one of the scouts for the team approached my Dad  
and pointed to one of the veterans of the team who was 19 years old (and who had  
been drafted for the St. Louis Blues in the NHL and was a notorious fighter in the  
league – fighting with him was often referred to as a “career ender”). The scout  
commented that there was one thing that I could do to make sure I secured a spot  
with the team. I spoke with my Dad about this, and we knew that the coaches and  
management were looking for me to fight during the tryouts. During one of the  
games, I asked him to fight and he said no. After the shift, I saw him talking to the  
assistant coach and, during the next shift, he agreed, and we squared off and fought.  
[119] The defendants object to everything after the first six words as being hearsay.  
They also object to the italicized words as being improper opinion. As explained  
elsewhere, I find the italicized words are admissible as facts going to Mr. McEwan’s  
state of mind and furthering the narrative; therefore, those words do not constitute  
either opinion or out-of-court statements: see above para. 110(a)(ii) and below,  
para. 128(a)(v).  
[120] I also find all words following the italicized words to be admissible as facts  
going to the narrative of the affidavit, and not constituting hearsay: see para. 99.  
McEwan v. Canadian Hockey League  
Page 36  
[121] However, I agree with the defendants that the underlined portions are  
inadmissible. These statements are things said not to Mr. McEwan, but to his father.  
Because the statements were not said to Mr. McEwan, they cannot be helpful in  
establishing his state of mind. As already noted, statements his father made to him  
(about what a scout may have said) are relevant to his state of mind and admissible  
for that purpose. It may be that his father was explicit in repeating what a scout said,  
but that does not make a recitation of what the scout said to his father admissible. In  
any event, those statements are unnecessary if their purpose is to establish the  
impact the conversation with his father had on Mr. McEwan’s state of mind.  
3.  
Opinion  
[122] The defendants challenge many statements on the basis that they are  
inadmissible opinions. Many are either the same or similar to statements objected to  
on the basis of being hearsay. Specifically, many statements revolve around  
encouragement or praise for fighting.  
[123] One example is the following sentence from Mr. McEwan’s affidavit  
(para. 18), “I was commended for my fights by my coaches, teammates, and by  
management”. The defendants start with the proposition that this statement, and  
others like it, are opinions, and to be admissible, they must satisfy the requirements  
for the admission of lay opinion set out above (see paras. 5760).  
[124] However, I do not agree with the defendants’ characterization of the  
sentence. The sentence is a statement of fact based on Mr. McEwan’s observation  
and experience. It is a statement describing his mental state.  
[125] I understand the defendants’ concern. These types of statements could imply  
that coaches and management said or did something to produce a feeling of being  
commended in Mr. McEwan. However, a player saying “I was commended for  
fighting” has two elements. One is the player’s statement of how he felt, which is a  
fact. The other aspect is whether someone spoke words or exhibited behaviour that  
commended the affiant, which is also a fact.  
 
McEwan v. Canadian Hockey League  
Page 37  
[126] At this stage, the purpose of the plaintiff’s adducing the first kind of fact is not  
for the purpose of proving the second kind. The plaintiff adduces the evidence to  
establish some basis in fact for the claim to proceed as a class action. Whether or  
not someone actually did say or do anything to praise fighting is not being decided at  
this stage. Similarly, it is not my task at this stage to test the credibility or reliability of  
a players feeling commended.  
[127] For those reasons, I do not agree that the statement is an opinion rather than  
fact. In the alternative, if my characterization is incorrect, I find the statements meet  
the criteria of lay opinion and would be admissible as such.  
a. Mischaracterized as Opinion  
[128] I find the following are admissible as statements of fact relating to the Players’  
state of mind, or as providing a coherent narrative. Accordingly, I disagree with the  
defendants’ characterization of the following statement as being inadmissible  
opinion. In the alternative, I find some passages are admissible as lay opinion.  
a) McEwan Affidavit:  
i. Para. 3: “I and other players were constantly encouraged by our  
coaches and other members of the CHL to fight and to be aggressive  
while playing and it was often made clear to me that my spot in the  
CHL was tied to my ability to fight and be aggressive.”  
ii. Para. 11: “and [participating in a fight in a particular game] was enough  
to get the attention of the coaches they offered to allow me to go to  
play exhibition games”.  
iii. Para 12: After describing that he was cut from a team, he continued, “I  
was not surprised though as it would have been rare for someone my  
age to have been given a spot especially because I had not been  
drafted”.  
 
McEwan v. Canadian Hockey League  
Page 38  
iv. Para. 14: “I already had a reputation of being a fighter and it became  
obvious very early during the tryouts that [his reputation as a fighter]  
was the skill that the coaches and managers of the team were the  
most interested in”.  
v. Para. 15: “and we knew that the coaches and management were  
looking for me to fight during the tryouts”.  
vi. Para. 18: “I was commended for my fights by my coaches, teammates,  
and by management. After I’d win a fight, my coaches would praise me  
in the locker room and, if I lost, the coaches would explain how I could  
do better.” Also, after stating he did not need to be told to fight, he  
deposed, “Rather, my coaches would only need to say my name or tap  
me on the shoulder, and I would head out onto the ice, looking for my  
target”.  
vii. Para. 20: In describing a fight he deposed he would try to inflict as  
much damages as possible “while the other player would do the same”  
and they would drop their helmets “and try to connect as many  
punches as possible before the fight finished”.  
viii.Para. 23: “and to be encouraged to fight by my coaches”.  
ix. Para. 28: “To this day, I still feel the effects of my years of fighting”.  
That sentence is followed by a list of physical and psychological  
symptoms. The defendants say Mr. McEwan draws a causative link  
between fighting and those symptoms. I agree he does so, but that  
reflects his state of mind and cannot be evidence that could be relied  
on for the legal test for causation. It represents a fact that he believes,  
and is admissible on that basis only. In part, it gives narrative context  
to his involvement in the litigation.  
b) Stoesz Affidavit:  
McEwan v. Canadian Hockey League  
i. Para. 3: “At the age of 15, I caught the eye of recruiters”.  
Page 39  
ii. Para. 4: “the CHL training camps are used by the coaches and trainers  
to assess the current team to see who will make the regular season  
roster. It is also a time to test out younger players to see if they have  
potential to play on the team in the future”. Also, “I recall the coaches  
and the trainers cheering for me on the sidelines. Everyone was paying  
attention to me”.  
iii. Para. 5 “At the last camp, I had shown that I was tough, so I knew I  
was expected to fight at this camp and I did. … but I felt like I was on  
fire and I knew that I needed to keep fighting so that I would be noticed  
and considered for a spot on the team”. He then describes his hands  
being swollen and having taken many hits to the head, “but I had made  
an impression” and that he “got a lot of attention from this fight”.  
iv. Para. 7: “It was made clear to me that I wasn’t on the ice to play and  
score, I was there to fight. Fighting was encouraged by the coaches  
and trainers.” Also, “I knew I needed to do what my coaches wanted to  
do so that I would get to play. I had to keep my coaches happy as they  
had the power to impact my reputation with the NHL scouts”.  
v. Para. 9: “and now looking back, by joining this team I was molded into  
this raged-filled fighter” who “intimidated” and fought with his own  
teammates.  
vi. Para. 10: “My teammates nicknamed me ‘Termawhich was short for  
Terminator, an unstoppable fighting machine. Once I earned this title,  
there was no going back. The other teams knew that I was there to  
fight and often at the beginning of the game everyone knew who I was  
going to fight. In some games, I would just have to look at the other  
player on the opposite team, and he knew that we were going to have  
a fight.”  
McEwan v. Canadian Hockey League  
Page 40  
vii. Para.15: “but the expectation was even if I was hit hard, I should get  
back up and be tough enough to keep playing”.  
viii.Para. 16: “By my second season, I was a star in Spokane with a loyal  
following of fans because of my role as an enforcer” and “the crowd  
wanted me to fight”. Also, “[t]here was so much hype built up about my  
fights in Spokane. At the start of each game I would feel the pressure  
of the coaches, my team and couple hundred fans expecting me to  
fight”.  
ix. Para. 17: “My role as an enforcer for the Spokane Chiefs paid off. … I  
knew the only reason I was drafted was for my skill as a fighter”.  
x. Para. 20: “I’ve reviewed the Amended Notice of Civil claim and I  
believe I meet the definition to be a class member. I also believe there  
are many more CHL players who meet the definition”.  
Mr. Stoesz is stating his belief to address his potential suitability as a  
representative plaintiff, so this is admissible for that purpose (see  
below, paras. 140141).  
xi. Para. 21: “I am sharing my experience as a player in the CHL for this  
case as I want to raise attention to the unnecessary injuries caused  
from fighting in the CHL”. And, “My time in Spokane was a daze of  
fights”.  
Mr. Stoesz is stating his belief to address his potential suitability as a  
representative plaintiff, so it is admissible for that purpose (see below,  
paras. 140141).  
c) Trombley Affidavit:  
i. Para. 4: “and knew that if I did not fight to stand out, there were many  
other guys my age with my skill level that would fight and would be  
given the spot”. And, “[f]rom that moment on, my role was set, and I  
McEwan v. Canadian Hockey League  
Page 41  
knew that if I did not fight, I would be sent down to a lower league”.  
Also, [t]he coaches and assistant coaches for the CHL teams  
reminded us constantly that if we didn’t perform, we would not be kept  
on and that there were many other guys who could take our spot in a  
second (and performance for me meant fighting).”  
ii. Para. 5: “I knew it was because they wanted me to fight and the player  
on the other team in that position”.  
iii. Para. 6: “I recall that fighting began to take a serious toll on my ability  
to be productive at school”. He described difficulty he sometimes the  
day after he fought because his hands were swollen. He deposed his  
hands were put in ice to reduce the swelling so his gloves would fit and  
then stated: “I would then inevitably have to fight again”.  
iv. Para. 8: He deposed he would have done anything to keep his position  
in the league “as it was the only way that I could one day play for the  
National Hockey League and fighting was what was required of me.”  
Also, “to this day, I suffer from ongoing memory issues and pain  
throughout my body including my hands, shoulder, and back”.  
Mr. Trombley’s statement as to the symptoms he suffers are clearly  
facts. While he may believe in his mind they were caused by fighting,  
they are not admissible to support the legal test of causation because  
that would offend the rule against opinion evidence from a non-expert.  
d) Rylands Affidavit:  
i. Para. 7: “It quickly became clear during that first year that I was being  
called up to play with the Frontenacs whenever they were playing a  
team that had a strong fighter and they needed me to come be an  
enforcer during the game.”  
McEwan v. Canadian Hockey League  
b. Admissible Lay Opinion  
[129] The defendants also challenge as inadmissible opinion a number of  
Page 42  
statements made by the Players about the role they believed they played on their  
teams as “enforcers”. The Players also describe their understanding of what an  
enforcer was, and what they say was a culture of fighting on the teams and in the  
leagues.  
[130] In my view, these statements meet the criteria for admission of lay opinion.  
The statements are within their personal knowledge and within their experiential  
capacity. The Players are clearly in a better position than the court to offer the  
opinion. I also agree they comply with the final requirement of being a “compendious  
mode of speaking”.  
[131] I repeat that at certification, the issue is whether those statements, together  
with the rest of the record, are sufficient to establish a basis in fact to proceed as a  
class action. The credibility, reliability, and weight attached to these opinions will be  
an issue at trial, not at certification.  
[132] In the alternative, if I am wrong that the statements satisfy the criteria for lay  
opinion, I would categorize them as statements of fact based on the Players’  
experience not being offered for their truth but to further the narrative, and together  
with other statements, describe their state of mind.  
[133] The following statements are admitted as lay opinion:  
a) McEwan Affidavit:  
i. Para. 3: “During my time playing in the CHL, I was groomed and  
trained to be what is called an enforcer a position that is almost  
entirely focused on fighting players from the opposing team during the  
games.”  
ii. Para. 17: “I was trained and encouraged by the coaches and  
management to be the team’s ‘enforcer’. The term enforcer is not an  
 
McEwan v. Canadian Hockey League  
Page 43  
official title in hockey, but it is a position that everyone was (and still is)  
very familiar with. An enforcer’s primary job is to deter and respond to  
dirty or violent play by the opposition. When such play occurs, the  
enforcer is expected to respond aggressively, by fighting or checking  
the offender. Enforcers are expected to react particularly harshly to  
violence against star players or goalies. Additionally, enforcers are put  
out onto the ice to fight to try and change a [game’s] momentum and,  
also, will sometimes be put out at the end of a game by the losing team  
when the results are inevitable to try and make a show of force to the  
other team. Every team in the WHL had at least one enforcer (and  
sometimes several) and, if an enforcer was put on the ice, the other  
team would respond by putting out theirs”.  
iii. Para. 19: “Each time I fought, I would receive a five-minute penalty and  
the CHL rules allowed (and still allow) for up to three fights a game”.  
b) Stoesz Affidavit:  
i. Para. 6: “I realize now that I had literally fought my way onto that  
team”.  
ii. Para. 8: “If I wanted to have a secure place on the roster, I had to  
become the “enforcer” for the team. The enforcer is not an official  
position like a goalie but is a known role that a player takes on and  
who is meant to be an agitator and an aggressor to the opposite team.  
The enforcer is meant to protect the players on his team. If there are  
cheap shots or if there is aggression against a teammate, particularly a  
star player, the enforcer is expected to respond aggressively. In my  
experience, the enforcer was also used to make the game more  
exciting for the fans. There were times when I was sent on to fight  
because the game was slow, and the fans seemed bored. The coach  
would send me out to fight because it would get the fans to jump to  
their feet and cheer. When this happened, I felt like a rock star”.  
McEwan v. Canadian Hockey League  
Page 44  
c) Trombley Affidavit:  
i. Para. 3: “I was an enforcer which is essentially a boxer on ice.  
Enforcers respond to and deter the opposition from engaging in dirty  
play by fighting. When an opponent is physical with a player or uses  
illegal tactics, an enforcer will usually drop the gloves and square off in  
a right with the guilty culprit or the other team’s enforcer. Additionally,  
enforcing and fighting is used as a form of entertainment for the fans.  
There are awards for best fights and fighting records are reported and  
followed by many of the fans.”  
ii. Para. 5: “and other times I simply knew because the culture was so  
entrenched in the leagues and players”.  
iii. Para. 8: “I support the plaintiff’s application to have this action certified  
as I am concerned about the ongoing culture of fighting in the CHL  
when children are involved”.  
d) Rylands Affidavit:  
i. Para. 4: He began fighting as it was clear to him “that fighting was  
seen as part of the game and that it would help my career and  
chances to one day play in the show”.  
c. Inadmissible Opinion  
[134] There are passages where I agree the Players go beyond making a factual  
statement and offer an opinion that does not meet the criteria for lay opinion. For  
that reason, I find portions of the following passages inadmissible as opinion  
evidence.  
a) McEwan Affidavit:  
i. Para. 3, first 3 words of the 4th sentence (“As a result”).  
 
McEwan v. Canadian Hockey League  
The statement makes a causative link between Mr. McEwan’s  
Page 45  
involvement in over 70 fights and injuries he suffers. In my view, the  
statement goes beyond seeking a common-sense inference that could  
be permitted under the lay opinion exception and, instead, calls for  
expertise. Those three words will be struck. However, the remaining  
words starting with “I suffered significant” all the way to the end of the  
sentence are admissible as statements of fact.  
ii. Para. 19: “rules around fighting (and most of the other aspects of the  
game) in the WHL mirrored those of the NHL which I was happy with at  
the time given that everyone (including the coaches) treated playing for  
the WHL as training for one day playing in the NHL. Attached as  
Exhibit “C” is a copy of an article in which the Vice President of Hockey  
Operations of the WHL notes that the WHL mirrors the rules of the  
NHL as much as possible and this is consistent with my understanding  
and experience.”  
The underlined portions express an opinion that requires expertise,  
and is inadmissible for that reason. If Exhibit “C” was attached only to  
buttress the underlined portion, it would be inadmissible on the same  
basis. However, it appears to be a statement by the defendants, and  
on that basis, I find it admissible as an exception to the hearsay rule.  
iii. Para. 29: “I slowly [realized] that the culture of extreme violence at  
such a young age was extremely detrimental to myself and other  
children and was not a necessary part of the game.” Also, “however,  
fighting (especially at such a young age) is not a necessary component  
to the art that I believe hockey is”.  
iv. Para. 30: Mr. McEwan describes testimony he gave for the World  
Association of Ice Hockey Players in relation to a labour relations  
issue, and explained that his view was “that [the CHL] pay players  
insufficiently low amounts and rejects them from accessing workers  
compensation and unemployment rights”.  
McEwan v. Canadian Hockey League  
Page 46  
The plaintiff submits Mr. McEwan is repeating what his view was for  
the purpose of demonstrating his suitability as a representative plaintiff,  
not for the purpose of proving his view is true. However, the fact that  
he testified to take a stand against certain labour policies is sufficient  
without including the portions included in the quotes, and for that  
reason, those portions are struck.  
v. Para. 32: “I believe that fighting should result in an automatic game  
misconduct, that players who continuously fight should have significant  
actions taken against them such as suspensions, and that referees  
should break up fights right away.”  
Mr. McEwan’s beliefs about rule changes are an opinion that falls into  
the same category of Dr. Arthur-Banning’s report. Mr. McEwan is not  
qualified as an expert. The statement might have qualified as lay  
opinion, but the plaintiff’s position is that the area requires expertise. It  
would therefore be incongruous with their position to permit  
Mr. McEwan’s statement to be admitted.  
vi. Para. 41: He deposed he met many former players “who fought and  
have ongoing issues as a result”. I agree the last three words are  
inadmissible opinion requiring expertise, for the same reason as stated  
in paragraph (i) above. Those words are inadmissible, but the rest of  
the sentence and the paragraph are admissible as statements of fact.  
b) Stoesz Affidavit, para. 10: “and now that I know the symptoms of  
concussion, I know [I] had many more”. Diagnosing a concussion requires  
expertise, which Mr. Stoesz does not have. The underlined portion is  
inadmissible opinion evidence.  
c) Trombley Affidavit, para. 8: “The entire culture of the CHL was designed  
around the normalization of fighting and I do not think this is appropriate  
when children are involved.”  
McEwan v. Canadian Hockey League  
4. Argumentative Statements  
Page 47  
[135] It is well established that affidavits should not include statements that purport  
to be facts in the guise of legal argument. The defendants submit many statements  
are inadmissible for that reason. I have already ruled some of those to be  
inadmissible as opinion evidence. However, in the alternative, I also agree the  
statements are inadmissible as being argumentative:  
a) McEwan Affidavit, para. 29: “I slowly [realized] that the culture of extreme  
violence at such a young age was extremely detrimental to myself and  
other children and was not a necessary part of the game.” Also, “however,  
fighting (especially at such a young age) is not a necessary component to  
the art that I believe hockey is”.  
b) Trombley Affidavit, para. 8: “The entire culture of the CHL was designed  
around the normalization of fighting and I do not think this is appropriate  
when children are involved.”  
[136] However, I find no other passage objected to by the defendants as argument  
to be inadmissible on that basis. All are either appropriate statements of fact, or fall  
into the category of lay opinion as already discussed.  
5.  
Bald Assertion of Facts and Improper Descriptions  
[137] The defendants submit a number of statements are inadmissible for  
containing “improper descriptions” (whether of their own reaction, or the reactions of  
others). They also allege certain passages are inadmissible as “bald statements of  
fact”, non-particularized statements of fact, or “adjectival” descriptions. In my view,  
that position is not supported by the case law. As noted, I have rejected the  
defendants’ position that those constitute independent grounds for inadmissibility:  
see above para. 74.  
[138] If I am wrong in that conclusion, I would find the references below are  
admissible statements of facts based on the Players’ experience (including state of  
mind) or observations (some may also be ruled admissible elsewhere in this  
   
McEwan v. Canadian Hockey League  
Page 48  
judgment). In my view, the following statements do fit within the narrative of the  
affidavits:  
a) McEwan Affidavit:  
i. Para. 11: “I was disheartened by being cut during my first tryout for a  
Junior team” and “[the fight] was enough to get the attention of the  
coaches – they offered to allow me to go to play exhibition games”.  
ii. Para. 12: “I was not surprised though as it would have been rare for  
someone my age to have been given a spot especially because I had  
not been drafted”.  
iii. Para. 14: “I already had a reputation of being a fighter and it became  
obvious very early during the tryouts that this was the skill that the  
coaches and managers of the team were the most interest in.”  
iv. Para. 17: “The term enforcer is not an official title in hockey, but it is a  
position that everyone was (and still is) very familiar with. An enforcer’s  
primary job is to deter and respond to dirty or violent play by the  
opposition. When such play occurs, the enforcer is expected to  
respond aggressively, by fighting or checking the offender. Enforcers  
are expected to react particularly harshly to violence against start  
players or goalies. Additionally, enforcers are put out onto the ice to  
fight to try and change a [game’s] momentum and, also, will sometimes  
be put out at the end of a game by the losing team when the results  
are inevitable to try and make a show of force to the other team. Every  
team in the WHL had at least one enforcers (and sometimes several)  
and, if an enforcer was put on the ice, the other team would respond  
by putting out theirs”.  
v. Para. 18: “After I’d win a fight, my coaches would praise me in the  
locker room”.  
McEwan v. Canadian Hockey League  
Page 49  
vi. Para. 23: After a particular fight, he “was given the title by fans for  
holding ‘the best fight’. I was also given the title of sixth most  
entertaining fighter with my longest fight lasting almost a minute”.  
b) Stoesz Affidavit:  
i. Para. 4: After describing his first fight, he deposed, “and it was  
exhilarating”.  
ii. Para. 6: “I felt incredible and invincible.”  
iii. Para. 7: “I thought this was strange” (being asked to play as an  
offensive player because he always played defence).  
iv. Para. 8: “If I wanted to have a secure place on the roster, I had to  
become the “enforcer” for the team. The enforcer is not an official  
position like a goalie but is a known role that a player takes on and  
who is meant to be an agitator and an aggressor to the opposite team.  
The enforcer is meant to protect the players on his team. If there are  
cheap shots or if there is aggression against a teammate, particularly a  
star player, the enforcer is expected to respond aggressively. In my  
experience, the enforcer was also used to make the game more  
exciting for the fans. There were times when I was sent on to fight  
because the game was slow, and the fans seemed bored. The coach  
would send me out to fight because it would get the fans to jump to  
their feet and cheer. When this happened, I felt like a rock star”.  
v. Para. 12: “I can barely watch [fights posted online in which he was  
involved] now as I find it incredibly upsetting and I feel sick to my  
stomach to see my younger self being punched in the face, pushed on  
the ice or seeing myself doing that to another player”.  
McEwan v. Canadian Hockey League  
Page 50  
vi. Para. 13: After describing a fight in which he injured his hand: “It was  
just one of the many inquires I suffered during fights while playing in  
the CHL”.  
vii. Para. 15: “I was injured during many fights, but the expectation was  
even if I was hit hard, I should get back up and be tough enough to  
keep playing”.  
viii.Para. 16: “By my second season, I was a star in Spokane with a loyal  
following of fans because of my role as an enforcer. … and the crowd  
wanted me to fight”.  
c) Trombley Affidavit:  
i. Para. 3: “I was an enforcer which is essentially a boxer on ice.  
Enforcers respond to and deter the opposition from engaging in dirty  
play by fighting. When an opponent is physical with a player or uses  
illegal tactics, an enforcer will usually drop the gloves and square off in  
a fight with the guilty culprit or the other team’s enforcer. Additionally,  
enforcing and fighting is used as a form of entertainment for the fans.  
There are awards for best fights and fighting records are reported and  
followed by many of the fans”. He then deposed that he “as with most  
enforcers” would typically fight two or three times a game.  
d) Rylands Affidavit:  
i. Para. 8: “I did not find this very fair as I felt that I had paid my dues and  
had protected players on the team by fighting”.  
[139] There is also a passage that the defendants identified as being “improper  
description”, which I have found inadmissible as opinion evidence: McEwan Affidavit,  
para. 19, portion of the third sentence beginning at “the rules around”: see above  
para. 134(a)(ii).  
McEwan v. Canadian Hockey League  
6. Evidence Relevant to the Legislation  
Page 51  
[140] I agree with the plaintiff that some of the evidence to which the defendants  
object (on various bases) is admissible because it is directly relevant to a particular  
section in the CPA. Often the statement also explains why the Players have filed the  
affidavit. However, the plaintiff does not adduce the statement as proof that the  
certification conditions are met, only to provide context.  
[141] Specifically, I agree with the plaintiff the following are admissible as being  
relevant to s. 5(5)(c) of the CPA because Players must provide their “best  
information” as to the number of people in the class:  
a) McEwan Affidavit:  
i. Para. 29: “I have spoken with many former players that had similar  
experiences to me and suffered injuries”.  
ii. Para. 41: He deposed he met many former players “who fought and  
have ongoing issues as a result”. I have found the last three words are  
inadmissible opinion requiring expertise, but the rest is admissible as  
statements of fact.  
b) Stoesz Affidavit:  
i. Para. 20: “I’ve reviewed the Amended Notice of Civil claim and I  
believe I meet the definition to be a class member. I also believe there  
are many more CHL players who meet the definition.”  
ii. Para. 22: “There are so many stories in the news now about players  
who were enforcers who are living with severe injuries”.  
7.  
Irrelevant Content  
[142] The defendants submit a number of passages are irrelevant to the issues  
and, therefore, inadmissible on that basis. I have already ruled some portions of  
those passages inadmissible as opinion evidence. However, if I am wrong about that  
characterization, I would find the following inadmissible as being irrelevant:  
a) McEwan Affidavit:  
   
McEwan v. Canadian Hockey League  
Page 52  
i. Para. 29: “I slowly [realized] that the culture of extreme violence at  
such a young age was extremely detrimental to myself and other  
children and was not a necessary part of the game.” Also, “however,  
fighting (especially at such a young age) is not a necessary component  
to the art that I believe hockey is”.  
ii. Para. 32: “I believe that fighting should result in an automatic game  
misconduct, that players who continuously fight should have significant  
actions taken against them such as suspensions, and that referees  
should breakup up fights right away”.  
[143] There are other passages, which the defendants submit are irrelevant that are  
challenged on other grounds. For all those (except those identified in the preceding  
paragraph), I have already dismissed the objections; I confirm I also find those  
passages relevant; they are admissible.  
[144] However, I find two other passages to be inadmissible as being irrelevant.  
[145] The first is the fourth sentence of paragraph 19 of Mr. McEwan’s affidavit, “In  
fact, I was told by my initial coach for Seattle that I did not need an agent as he and  
other coaches would work with me to get me drafted to the NHL”.  
[146] The second is paragraph 12 of Mr. Stoesz’s affidavit. While I have found this  
to be properly categorized as a statement of fact, as opposed to inadmissible  
opinion (see above, para. 138(b)(v)). I agree with the defendants that it is not  
relevant to any issue at certification. Therefore, I find it inadmissible:  
I can barely watch [fights posted online in which he was involved] now as I  
find it incredibly upsetting and I feel sick to my stomach to see my younger  
self being punched in the face, pushed on the ice or seeing myself doing that  
to another player.  
8.  
Whole Paragraphs  
[147] I find it convenient to analyze three paragraphs (or portions thereof) as a  
whole rather than segregating portions of them under different categories. I will  
 
McEwan v. Canadian Hockey League  
Page 53  
analyze each in turn. For convenience, I have numbered the sentences within the  
paragraphs.  
[148] The first is paragraph 21 of Mr. Stoesz’s affidavit:  
[1] I am sharing my experience as a player in the CHL for this case as I want  
to raise attention to the unnecessary injuries caused from fighting in the CHL.  
[2] I think the CHL needs to be held accountable to the current and former  
players for these injuries. [3] I want the CHL to acknowledge that what we  
had to do to play in the CHL as teenagers was not acceptable. [4] Looking  
back at my career in the CHL, I feel like I lost part of my youth. [5] My time in  
Spokane was a daze of fights. I’m scared about my future because I took  
repeated blows to my head. I’m in my early 30’s and I suffer from headaches  
and migraines and my right hand is disfigured with a mallet finger from  
punching.  
[149] The defendants object to all sentences as being improper opinion. They also  
object to the sentences 1, 2, and 3 as being irrelevant and argument.  
[150] The plaintiff argues the sentences are admissible as facts, or in the alterative,  
they satisfy the criteria for admission as lay opinion evidence.  
[151] I have already ruled that sentence 1 has been mischaracterized by the  
defendants as an opinion, and is admissible as a factual statement: see above  
para. 128(b)(xi). I also find it admissible as being relevant to s. 5 of the CPA: see  
above para. 140.  
[152] I agree the sentences 2 and 3 are inadmissible as either opinion or argument.  
[153] I do not find sentences 4 and 5 to be accurately characterized as opinion.  
Instead, I find they are admissible as facts based on Mr. Stoesz’s experience and  
demonstrating his state of mind.  
[154] The second is paragraph 22 of Mr. Stoesz’s affidavit:  
[1] I also want this unnecessary pressure to fight on the players coming up in  
the CHL to stop. [2] I love hockey and I have a young son. [3] If he wants to  
play hockey, I don’t want him to have to go through what I went through. [4]  
There are so many stories in the news now about players who were enforcers  
who are living with severe injuries. [5] I relate to these stories and I want to do  
my part and be proactive and protect young athletes from feeling that the only  
way to succeed is to fight on the ice.  
McEwan v. Canadian Hockey League  
Page 54  
[155] The defendants contend that sentence 4 is a “bald” allegation of fact. As  
already noted, I do not find this can be a ground for inadmissibility. Regardless of  
that conclusion, I find this sentence is admissible as being relevant to s. 5(5)(c) of  
the CPA.  
[156] The defendants object to sentences 1, 3, and 5 as improper opinion (as well  
as being argument). The plaintiff submits the paragraph is admissible as factual  
statements, or, in the alternative as lay opinion.  
[157] I do not agree that sentence 3 is an opinion, but if I am wrong, I would admit it  
as lay opinion.  
[158] While I agree the phrase “unnecessary pressure to fight” in sentence 1 does  
veer close to offering an opinion, when read in the context of the paragraph, and the  
affidavit as a whole, I accept this is a statement of fact based on Mr. Stoeszs  
experience. Expressing that he wants the unnecessary pressure (that he  
experienced) to stop is a statement of fact for the reasons explained above at  
paras. 124127.  
[159] I also find sentence 5 admissible for the same reasons. In the alternative, I  
would not accede to the defendants’ objection that those two sentences are  
inadmissible opinion, as I would find them to be admissible lay opinion.  
[160] Nor do I find any of those three sentences constitute argument; they contain  
Mr. Stoesz’s explanation for why he filed the affidavit.  
[161] The defendants also submit sentences 2, 3, and 5 are irrelevant. The plaintiff  
submits all are admissible as factual statements, and sentence 2 provides narrative  
context.  
[162] While sentences 2 and 3 may be tangential to the issues at certification, I find,  
when read together with the whole paragraph in the context of the affidavit, they  
further the narrative, and I am unable to say that are irrelevant. I find them  
admissible. I also find sentence 5 relevant as providing an explanation for his  
involvement in the law suit.  
[163] The third is paragraph 11 of Mr. Rylands’ affidavit:  
McEwan v. Canadian Hockey League  
Page 55  
[1] I swear this affidavit in support of the class action as I would like to see  
changes made to the way that the leagues deal with fighting when children  
are involved. [2] I continue to see the consequences of my fighting (I still have  
issues with pain in my hands, hip, and back) and looking back, do not believe  
that it was necessary when I was a teenager. [3] I also recall that the  
aggressive culture began changing me back then I have always been a  
thoughtful and passive person and during the years I played in the OHL, I  
found myself having a shorter fuse and would respond aggressively both on  
and off the ice. [4] I do not want that to happen to my son and while I love  
hockey and am excited to pass that love down to him, I think change is  
needed.  
[164] The defendants object to the entire paragraph as being improper opinion and  
containing “adjectival descriptions”. The plaintiff contends that the statements are  
admissible as facts, and in the alternative, they are based on Mr. Rylands’  
experience and admissible as lay opinion.  
[165] As noted, I do not find “adjectival descriptions” is a ground for inadmissibility; I  
do not give effect to that objection.  
[166] The first sentence is not an opinion, but a statement of a fact because it  
explains why he swore the affidavit. In any event, I find it admissible as being  
relevant to s. 5 of the CPA.  
[167] Although the phrase “I continue to see the consequences of my fighting”  
(sentence 2) does indicate he believes certain physical complaints were caused by  
fighting, this would not be admissible as proof of causation at the trial. It represents a  
fact from his perspective and is admissible as part of the narrative, explaining his  
involvement in the litigation, and his state of mind.  
[168] With regard to the portion of sentence 2 beginning “do not believe”, and the  
phrase “I think change is needed” in sentence 5, those are akin to his expressing an  
opinion. However, I find when read in the context of the paragraph, and the affidavit  
as a whole, they are statements of fact based on Mr. Rylandsexperience and/or  
speaking to his state of mind for the reasons expressed above at paras. 124127. In  
the alternative, I would admit them as lay opinions.  
McEwan v. Canadian Hockey League  
Page 56  
[169] I do not agree sentences 3 and 4 contain opinions; I agree with the plaintiff  
they are factual statements.  
[170] The defendants submit that sentence 1, the portion of the sentence 2  
beginning at “do not believe”, and sentence 4 are argument and irrelevant.  
[171] Sentence 1 is relevant to s. 5 of the CPA. While that part of sentence 2 and  
sentence 4 may be tangential to issues at certification, in the context of the entire  
paragraph and affidavit, I find they further the narrative, and I am unable to say they  
are irrelevant. Furthermore, I find none of the three sentences are argumentative.  
III.  
IS THE EXPERT’S AFFIDAVIT ADMISSIBLE?  
[172] The defendants challenge the expertise of Dr. Arthur-Banning and the content  
of his report.  
A.  
The Report  
[173] The report is appended to Dr. Arthur-Banning’s affidavit made February 23,  
2021, and is dated February 10, 2021. It is titled, “Professional Standards and Best  
Practices for an Amateur Sporting League such as the Canadian Hockey League  
with Respect to Injury Prevention”. The defendants do not allege any deficiencies in  
the procedural or formal requirements of the report.  
[174] Dr. Arthur-Banning describes his educational background at paragraph 1 of  
his affidavit (he also includes a 20-page curriculum vitae in an appendix to his  
report). He is currently a professor within the Department of Parks, Recreation and  
Tourism Management at Clemson University in Clemson, South Carolina, where he  
has been teaching Amateur Sport Management since 2005. He has a Ph.D. from the  
University of Utah in Amateur Sport Management, an M.Sc. (with Sports Medicine  
emphasis) from Oregon State University, and a Bachelor of Physical Education  
(Honours) from Brock University.  
[175] He describes his professional qualifications at page 6 of his report. He has  
studied amateur sports ethics, behaviour and programming for 15 years and has  
published over 40 peer-reviewed journal publications or book chapters related to  
   
McEwan v. Canadian Hockey League  
Page 57  
amateur sport. He is the co-author of “Recreational Sport Management: Program  
Design and Delivery”, a book published in 2015, which was developed to help  
readers understand how to design, deliver, and manage recreational sports  
programs regardless of setting. He has edited two other books relating to amateur  
sport.  
[176] The report itself has four sections. Section 1 has a summary of his  
qualifications and an executive summary of the report itself. Section 2 is a general  
summary of literature addressing professional standards and best practice for  
amateur youth sports organizations in protecting athlete safety. In reviewing this  
literature, Dr. Arthur-Banning states that the literature identifies three categories of  
responsible action related to injury reduction: education, policy, and rules. He also  
discusses the “hierarchy of responsibility” for protecting athlete safety which  
suggests governments bear the most responsibility, followed by sport organizations,  
coaches and teachers, parents, and finally, the athletes. He also references  
literature that suggests sports organization ought to have policies in place regarding  
management of concussion and to encourage good sportsmanship to reduce  
violence.  
[177] Section 3 is a summary of literature addressing professional standards and  
best practices for protecting athlete safety specific to hockey. In this section, he  
refers to a number of studies, including those done before and after implementation  
of rules forcing players to wear face masks, and imposing penalties related to  
misuse of sticks. Both rules were adopted for the purpose of reducing facial injuries.  
He suggests those rule changes resulted in a significant decrease in eye injuries.  
Similarly, he comments on a study which look at the efficacy of implementing a rule  
preventing checking from behind. He cites studies addressing issues relating to  
concussion, including those commenting on measures taken (or not taken) to  
address concussion and injuries from body checking. He also comments on studies  
that looked at fighting specific to various hockey organizations.  
[178] Section 4 contains his opinion about the responsibilities of the CHL for  
teenage players. Specifically, he opines the that the “CHL has repeatedly failed to  
McEwan v. Canadian Hockey League  
Page 58  
alter their stance on fighting in their affiliated leagues, thus allowing for greater  
potential for athlete injury”. He opines the following changes should be instituted:  
a) Aligning the rules for fighting to more closely align with other amateur  
sports organization with at least suspensions from that game and likely an  
additional game.  
b) Assuming that a player who engaged in a fight received a blow to the  
head leading to at least a suspicion of the possibility of a concussion, and  
allowing a trained medical professional to assess the athlete before he  
returns to play.  
c) Additional training for athletes, coaches, officials, administration, billet  
families, and biological families around concussion, the culture of violence,  
and how to play in a safe manner, including signs and symptoms of head  
injuries and concussion, dangers of second impact syndrome, and other  
issues.  
B.  
Legal Principles  
[179] The parties do not dispute the applicable legal principles. The leading case is  
White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The  
Court confirmed a two-stage test to determine the admissibility of expert opinion  
(paras. 2324).  
[180] At the first stage, the evidence must meet the threshold requirements of  
admissibility, comprised of the four factors set out in R. v. Mohan, [1994] 2 S.C.R. 9:  
(i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an  
exclusionary rule, and; (iv) a properly qualified expert (paras. 2025). In addition, in  
the case of an opinion based on novel or contested science or science used for a  
novel purpose, the reliability of the underlying science and necessity of the opinion is  
scrutinized (White Burgess at para. 23). Evidence that does not meet the threshold  
requirement is excluded.  
 
McEwan v. Canadian Hockey League  
Page 59  
[181] At the second stage, the court must exercise its discretionary gatekeeping  
function by excluding otherwise admissible expert evidence whose probative value is  
outweighed by its prejudicial effects on the trial process (para. 19).  
[182] Expert witnesses must be impartial, independent, and unbiased (para. 32).  
Their duty is owed to the court and not to the parties. Expert witnesses must be  
impartial in the sense that their evidence must reflect an objective assessment of the  
questions presented to them. They must be independent in the sense that their  
evidence must be the product of their independent judgment, uninfluenced by the  
party who retained them or the outcome of the litigation. They must be unbiased in  
the sense that they do not favour one party’s position over that of the other. The fact  
that an expert is retained, instructed, and paid by a party to the litigation does not, by  
itself, undermine the expert’s evidence (para. 32).  
[183] An expert’s lack of impartiality and/or independence is relevant not just to the  
weight to be given to the evidence under the second stage of the test, but also to its  
admissibility under the first stage of the test, to be addressed under the “qualified  
expert” element of the Mohan framework (paras. 45, 53). The question is whether  
the expert’s relationship with the parties or interest in the litigation results in the  
expert’s being unable or unwilling to carry out their duties to the court. This is a  
question of fact and degree (para. 50).  
[184] Absent a challenge to the expert’s independence and impartiality, the expert’s  
attestation or testimony recognizing and accepting their duties to the court will be  
sufficient to establish threshold impartiality and independence (para. 47). Once the  
expert attests or testifies on oath to this effect, the burden is on the party opposing  
the admission of the expert evidence to show that there is a realistic concern that the  
expert’s evidence should not be admitted because the expert is unable and/or  
unwilling to comply with that duty (para. 48).  
C.  
Analysis  
[185] The defendants submit the report should not be admitted into evidence  
because it fails to meet the threshold criteria. Their position is that Dr. Arthur-  
 
McEwan v. Canadian Hockey League  
Page 60  
Banning is not a qualified expert, and the report is unnecessary, unreliable, and  
irrelevant.  
1.  
Properly Qualified Expert  
[186] The element of a “properly qualified expert” under Mohan requires that the  
expert has acquired special or peculiar knowledge through study or experience in  
respect of the matters the expert undertakes to testify (para. 25). As stated above,  
the degree to which an expert is able and willing to fulfill their duties of impartiality  
and independence to the court may also be addressed under this element: White  
Burgess at para. 53.  
[187] The defendants argue Dr. Arthur-Banning’s report fails to meet this threshold  
criteria. They allege that he is not a properly qualified expert because his expertise  
relates to recreation management. They further submit that the requirement that an  
expert have acquired special or peculiar knowledge through study or experience is  
“particularly stringent in cases where … the evidence in the behavioral type science  
(as opposed to “hard” science”)”, citing R. v. Orr, 2015 BCCA 88 at para. 67.  
[188] With respect, the defendants have overstated the scope of the Court of  
Appeal’s comments in Orr. As noted at para. 78, the court may need to ask different  
questions when assessing expertise in behavioural sciences because they are not  
amenable to the same scrutiny as traditionalscientific evidence.  
[189] Moreover, the problematic aspects of the expert evidence adduced before the  
jury in Orr is not present here. The case involved allegations that the accused  
violated provisions of the Immigration and Refugee Act, S.C. 2001, c. 27, with  
respect to bringing a caregiver (a nanny) into Canada. The expert’s opinion related,  
in part, to an issue of the delay of the complainant’s report of alleged abuses to the  
authorities. The expert opined on the psychological factors which may lead to  
behaviour relevant to credibility, which the Court of Appeal noted had been accepted  
as an appropriate subject of expert opinion provided it went “beyond the ordinary  
experience of the trier of fact” (para. 66).  
 
McEwan v. Canadian Hockey League  
Page 61  
[190] However, the court found the expert was not qualified to give the opinion  
expressed at trial. In large part, that is because of a “flawed procedure” employed by  
the trial judge which led to the expert being qualified in a field in which Crown  
counsel had not sought to have the expert qualified (para. 47). The Crown initially  
proposed to qualify the expert in criminology and transnational crime in order to give  
opinion evidence on human trafficking and patterns of exploitation by human  
traffickers. Instead, the expert was qualified as an expert in “victimology”, which was  
only briefly canvassed in his testimony as to qualifications (para. 36). Also, although  
not decisive, that case involved a jury and the court’s gatekeeping role with respect  
to expert evidence is particularly important (para. 62).  
[191] In addition, the Court of Appeal questioned whether expertise was required at  
all since “ordinary, fair-minded members of Canadian juries are capable of weighing  
common motivations and basic human emotions such as fear of reprisal and  
dependence arising from poverty and vulnerability” (para. 73).  
[192] In my view, all of those factors are sufficient to distinguish the case from the  
issues before me.  
[193] The defendants allege Dr. Arthur-Banning does not have expertise with  
regard to professional standards and best practices applicable to amateur sports  
leagues with regard to injury prevention. They contend that “[i]t is not disputed that  
answering the question posed to Dr. Arthur-Banning requires medical expertise  
relating to … neurological injuries in hockey, concussions and concussion  
management”.  
[194] I agree with the plaintiff that the defendants have, in part, mischaracterized  
the nature and scope of the proposed opinion. The plaintiff emphasizes that the  
report is not tendered to provide medical expertise relating to neurological injuries in  
hockey. Instead, Dr. Arthur-Banning has been asked to consider professional  
standards and best practices to minimize injuries in an amateur youth sport league.  
The plaintiff submits the doctor has specialized knowledge and is qualified to testify  
about policies and practices concerning youth amateur sporting organizations.  
McEwan v. Canadian Hockey League  
Page 62  
[195] I agree. Dr. Arthur-Banning has a Ph.D. in Recreation and Tourism focused  
on youth sports, a Master of Science with a focus on sports medicine and a  
Bachelor’s Degree in Physical Education. The plaintiff submits that the doctor has  
achieved the relevant academic benchmarks in his discipline and that he continues  
to actively teach, research, and publish in his field. The plaintiff also points out that  
for the past 15 years, the doctor has been an associate professor in behavioural,  
social, and health sciences at Clemson University in South Carolina. He has also  
been teaching amateur sports management during that period. He conducts and  
disseminates research relevant to sport management in youth development and has  
been studying amateur sports, ethics, behaviour, and programming and published  
over 40 peer-reviewed journal publications on those topics. He has also published a  
book and sits on the Editorial Board of the Journal of Youth Sport.  
[196] The defendants argue that Dr. Arthur-Banning’s lack of “formal qualifications”  
and specific publications in best practices and professional standards for injury  
prevention demonstrate how he is not qualified. I disagree. His area of academic  
study, publication, and teaching focusses on amateur sport management. Studying  
sports management necessarily includes a consideration of polices and practices. I  
am satisfied that is clearly and logically linked to issues raised by the pleadings,  
mainly the nature and scope of the duty and standard of care of organizations that  
operate amateur sports leagues. It may be that his particular experience and  
publications (or lack thereof) affects the weight that might attach to his opinion, but it  
does not disqualify him as an expert.  
[197] I also agree with the plaintiff that the cases relied upon by the defendants to  
challenge Dr. Arthur-Banning’s qualification are distinguishable. Those cases are  
Stout v. Bayer Inc., 2017 SKQB 329, Williamson v. Johnson & Johnson, 2020 BCSC  
1746, and Kish v. Facebook Canada Ltd., 2021 SKQB 198. One difference between  
those cases and the fact before me are that those experts were cross-examined  
prior to the court's ruling. The plaintiff says without seeking to cross-examine the  
doctor, the defendants cannot rely on the same reasoning. While that is relevant to  
my analysis, I do not find it determinative.  
McEwan v. Canadian Hockey League  
Page 63  
[198] However, I do agree that the cases involve issues that do not arise here. In  
Williamson and Kish, the experts were found to be providing information outside  
their area of qualification, which is a different basis for excluding opinion evidence.  
For instance, in Kish, the plaintiff’s expert witness was asked for his opinion on  
information, privacy, and data collection. The court held that the expertwho had  
described his expertise as “related to identity theft and fraud”—did not have  
expertise in information systems and privacy (paras. 3940). The court also  
commented on the expert's combative demeanour (para. 43). In Williamson, the  
plaintiff’s expert witness testified about talc-based products and possible biological  
mechanisms of ovarian cancer (para. 54). The court held that the expert witness, as  
a nutritional epidemiologist, not qualified as a medical doctor, gynecologist,  
toxicologist, oncologist or pathologist, was not qualified to depose on those subjects  
(paras. 56, 70). In Stout