The former owner of the Vancouver Canucks has been ordered to testify if he approved a career-ending sucker punch on Colorado Avalanche forward Steve Moore by forward Todd Bertuzzi.
Ontario Superior Court Case Management Master Ronald Dash released the decision on Monday, saying John McCaw Jr. must testify in front of a jury by live video conference.
Moore's lawyer, Tim Danson, asked the court to compel McCaw - who is based in Seattle - to testify in the case back on February 27. "Holding billionaire owners of NHL teams accountable for the corporate culture they set, and for what happens under their watch is a very important issue," said Danson in a statement on Monday.
It's been over 10 years since Bertuzzi's infamous hit, and Moore's multi-million-dollar lawsuit is set to go to trial on Sept. 8. Danson said last month that NHL commissioner Gary Bettman and deputy commissioner Bill Daly have already voluntarily agreed to testify.
McCaw's lawyer, Steven Frankel, argued last month that the court doesn't have jurisdiction to do that and suggested Danson is trying to do an "end run" around very specific court rules. Frankel said there is no evidence before the court that McCaw, who is not an individual defendant, even has relevant evidence to give.
A jury should be able to hear McCaw answer whether he knew Canucks players were gunning for retaliation against Moore for a hit weeks earlier on former Canucks' captain Markus Naslund that resulted in a concussion, Danson argued.
Bertuzzi has alleged the Canucks' then-coach Marc Crawford urged his players to make Moore "pay the price," while Crawford has claimed Bertuzzi disobeyed instructions to get off the ice before Moore was attacked.
Players were issuing public threats against Moore before the hit, Danson said, and what McCaw did or didn't do about it is "highly relevant to the question of negligence."
"There's no way that you can have the intensity of the public threats over three weeks going on unless the corporate culture set by Mr. McCaw allowed it, and he has to answer to that," Danson said.
Danson suggested that McCaw fostered a corporate culture that may have at least implicitly approved such an attack, including having as the president and general manager Brian Burke, who was "unapologetic about promoting violence in hockey."
"Were Burke and Crawford carrying out the wishes of McCaw?" Danson suggested. "Or given the 'wink'...when it came to getting Mr. Moore?"
McCaw no longer owns the Canucks, having sold his company Orca Bay, now known as Canucks Sports and Entertainment. But he maintains a "very significant financial interest" in the outcome of the lawsuit, as he is still on the hook for half of any liability found against the team, which Danson said was a condition of the sale.
"If he doesn't testify, if he doesn't come forward, our case is going to be significantly weakened," Danson said. "So he knows it's not in his best interest to testify because if he testifies, it will be....to the benefit of the plaintiffs."
Moore is suing Bertuzzi and the Canucks for $38 million for a 2004 on-ice hit that left Moore, then a Colorado Avalanche player, with a concussion and three fractured vertebrae.
Bertuzzi pleaded guilty to a criminal charge of assault causing bodily harm and was sentenced in 2006 to a year's probation and 80 hours of community service.
He also served a multi-game suspension from the NHL but has gone on to play for several other NHL teams, including currently as a forward for the Detroit Red Wings.