McEwan v Canadian Hockey League

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

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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

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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

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[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

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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

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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

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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. 89–90. 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. 22–24; 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. 19–22, 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 137–138 (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.

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[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

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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. 38–39. 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. 127–8, 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. 72–76.

[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. 30–36). 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 plaintiff’s 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. 102–103.

[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 Players’ state 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. 57–60).

[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

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[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 player’s 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 ‘Terma’ which 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. 140–141).

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. 140–141).

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