CHL limited scope of survey on harassment and abuse, Kennedy testified

When an independent review panel hired by the Canadian Hockey League was drafting a survey about the prevalence of off-ice misconduct in major junior hockey, CHL officials denied a request to ask respondents about historical incidents and stipulated that the survey not include questions about sexual and physical abuse, panel member Sheldon Kennedy has testified.

Kennedy, a former NHL player and abuse survivor, made the claims during an Aug. 25, 2022, deposition in connection with a proposed class-action abuse lawsuit filed against the CHL and its three leagues.

CHL president Dan MacKenzie responded to Kennedy’s testimony in an email to TSN on Monday, writing that the organization never prohibited any questions from being asked, and defending the CHL’s decision to limit the scope of the survey. MacKenzie wrote that leaders of Canada’s three major-junior leagues wanted the panel to explore issues faced by active players, not explore historical incidents. 

In a report that was presented to the CHL on Nov. 5, 2020, but not made public by the organization until Jan. 21, 2022, the panel wrote that off-ice misconduct had become a “cultural norm” in the league and that a “code of silence” exists that prevented players from disclosing their experiences.

The panel, comprised of Kennedy, former New Brunswick premier Camille Theriault, and former national team women’s hockey coach and general manager Daniele Sauvageau, concluded some players didn’t report incidents because they feared jeopardizing their careers, didn't believe anything would be done, and believed bullying is a normal part of hockey.

The panel wrote the survey's findings “supports there being a cultural issue that requires fixing in the CHL.” The CHL described the panel’s findings as “informative.”

After the panel was hired in June 2020 to explore the prevalence of harassment, bullying and discrimination in major-junior hockey, its members asked for a survey to be commissioned. 

The CHL hired the Montreal-based marketing firm Leger to canvas current and former CHL players, their parents, coaches, general managers and other officials about their experiences in the Western Hockey League, the Ontario Hockey League and the Quebec Major Junior Hockey League.

Kennedy testified the CHL stipulated that Leger’s survey not include specific questions about sexual or physical abuse. The CHL also said that respondents should not be asked about any events prior to 2016 because that was when its current policies regarding off-ice misconduct had been introduced, Kennedy testified.

“The panel did ask to go further,” Kennedy said during his deposition. “We thought we needed to go back further to be able to…put together the best report possible in this space. We needed to look at the history. We did put together what we thought was the best we could with what we had, and that was four years of evidence and programming.”

“…We came in with the mindset of understanding the truth and presenting a move forward plan for the league. We did not come into this with the mindset of let’s ruin hockey. Our goal was let’s do the best we can to help hockey move forward and… we kept coming back to the place that there’s no way we can move forward unless we know exactly where we are.”

A transcript of Kennedy’s deposition was among thousands of pages of interview transcripts, affidavits, league and team records and other documents filed in Ontario Superior Court in Toronto on Sept. 28 in connection with a proposed class-action lawsuit filed by former CHL players, including Dan Carcillo and Garrett Taylor, in July 2020.

In an effort to have their lawsuit certified as a class action, lawyers for the plaintiffs are trying to establish that there are systemic issues of harassment, bullying and discrimination within the CHL. Hearings for lawyers to make verbal arguments about certification are scheduled to take place Nov. 14-18 in Toronto.

MacKenzie wrote in his email to TSN that the CHL's objective was to have the panel assess the current situation in the leagues, not to address historic issues raised in the lawsuit.

“The leagues had integrated changes to their policies over the years and at different times before the panel was launched, so going back beyond the four-year window could have produced varied and potentially inconsistent results that would not have helped us understand the current situation,” MacKenzie wrote.

MacKenzie also called the claim that the CHL prohibited survey questions about sexual and physical abuse “a misunderstanding.”

“The CHL expressed concerns to the panel that we didn't want to interfere in the class action process at all,” MacKenzie wrote in his email. “We hadn't even hired our class action lawyers yet...  However, the CHL had no input into the questions asked by the panel in the Leger study. The panel was given full authority to conduct their review and construct the survey.”

Kennedy testified that Sauvageau discussed the scope of the survey with a lawyer for Leger and it was decided to exclude questions specifically about sexual and physical abuse from the survey to avoid “any conflict with the class action that was obviously in play.”

The CHL received the findings of Theriault, Kennedy and Sauvageau on Nov. 5, 2020. A year later, in November 2021, a lawyer for the plaintiffs asked a judge to force the CHL to hand over the report. The same month, the CHL hired Toronto lawyer Rachel Turnpenney to review its current policies and programs. The CHL made both the panel’s and Turnpenney’s reports public in January.

Kennedy testified that he and the other panelists hadn’t heard from the CHL since presenting their report.

During his deposition, Kennedy was asked about the cultural problems of the WHL in the 1980s.

“It was the same type of problems that we learned about through the process of putting the report together,” Kennedy testified. “It was a fear of speaking out. And the hierarchical structure that to me was the consistent piece from the time I played that was still there when we did this report in 2020… we learned through the process the [culture] was still there, and that’s the culture of silence and fear to speak out, to speak out and have a voice.”

While the CHL did make the panel’s report public in January, the league informed Kennedy, Theriault, and Sauvageau as recently as in March that they were not allowed to speak with media about their findings, citing confidentiality clauses in their contracts.

The newly public records also detail specifics of abuse complaints filed by major-junior players and highlight Theriault’s concerns in November 2021 that the CHL might be burying the panel’s report.

During a June 3, 2022, deposition, MacKenzie discussed the web survey conducted by Leger of more than 650 CHL members – 31 general managers, 59 coaches, 98 staff members, 259 players, and 212 families.

According to the Leger survey, which was attached to the panel's report, 45 per cent of players surveyed said they had heard of cases of bullying or harassment in the CHL that were not reported in the media. Twelve per cent of players said they had been victims of bullying or harassment.

“My issue is with the 12 per cent,” MacKenzie testified. “Listen, 12 per cent is too many; I've said that multiple times now. So, I think we need to get 12 per cent down and we got to get it down to zero, and that's what we're focused on. So, you know, it's too high. But it’s not high enough to be systemic.”

OHL commissioner David Branch, who MacKenzie replaced as CHL president in 2019, said he “almost” sees problems that are systemic.

“When does initiation go over to hazing?” Branch said during an Aug. 17, 2020, meeting with the panel. “I almost see that as being systemic, and one of the reasons behind that is that I know when I have sat down with players, when having a discussion to investigate [and] review allegations, it is amazing the number of times I have a young guy say ‘Oh, Mr. Branch, that was nothing. You should have seen what I had to do when I played Junior B or midget.’… I just think that we have work to do still in the whole system to try to eradicate hazing... It is occurring in today's environment.”

Branch said he believed hazing still happens because it has been passed down through generations of players. 

“Why does [this] happen?” he said in the meeting. “Some I believe is because the coach says, ‘When I played, I had to go through it,’ and that type of thing. And then players who are the leader of the team say, ‘Hey, we're going to have a rookie party here. I know it's against the league's rules, but I had to go through it.’ … Do I believe it is still happening today? Yes…”

Emails filed in court show that Theriault, the panel chair, had concerns last November, a few weeks after former NHL player Kyle Beach went public with his story of alleged abuse, that the panel’s report had not yet been disclosed to the public.

“It’s been nearly a year this week that the [panel] presented our final report to the CHL,” Theriault wrote in a Nov. 1, 2021, email to MacKenzie. “As of yet I have not seen [anything] from the league on it. As I sit here watching what is happening on this front whether in the [QMJHL] or the NHL I am saddened by the lack of public response from your league on our recommendations.  

“I wonder if it's because of lack of interest or that you have been [muzzled] by your owners or if our exercise was just a way for you to protect yourself from different litigations. Having said all of that, I hope you're well and hoping that someday your league will have the courage to release the report to the public.”

Two days later, Theriault emailed Kennedy and Sauvageau and copied MacKenzie on the message.

“Dan called last night and [is] uncomfortable about my email,” Theriault wrote in a Nov. 3, 2021, email. “Worried that I would go public. The three takeaways from call. Says there (sic) trying to implement some of recommendations but going slow pace. Worried about litigation. When I told him that I [thought] it was not going public because some owners and coaches were fighting it to protect themselves and not there players he did not say no. For me one word keeps coming back. SYSTEMIC.”

MacKenzie responded to the three panelists in an email the same day.

“I suspect I was not the intended recipient of this email,” MacKenzie wrote. “As we received the report in the middle of the pandemic and its effects were really difficult for our teams and leagues, that has affected our timing a bit. Any reference to litigation was just intended to acknowledge that the report was commissioned in part due to an ongoing class action litigation and that is moving at a certain pace that we need to also be aware of.

“I want to assure you that any characterization that this is being withheld are untrue. It is our expectation that we will be releasing the report by the end of the year along with more information on what we are doing to build on our current programs in the area of player safety.”

MacKenzie and Theriault also had conflicting accounts of their discussions on Dec. 6, 2020, about whether active CHL players were at risk of harassment, bullying and abuse.

“Thanks for the time to catch up,” MacKenzie emailed Theriault the next day. “It was good to hear that you don't believe abuse is currently happening across the leagues and teams on a large-scale basis.”

MacKenzie was asked about the phone call during his deposition.

“…the basis for the call was whether or not there was an issue that needed to be addressed as soon as possible because players were at risk and that this was a widespread issue across the CHL, and his response to me was no,” MacKenzie testified. “I think the way I phrased it was, ‘Camille, are players today at risk, like at risk of harm?’ and he said absolutely not.”

Theriault was asked about the conversation

“Do you think you said that?” a lawyer asked him.

“I would be very surprised,” Theriault said during his Sept. 23, 2022, deposition.

“First of all, the word ‘abuse’ is not one that we had used during the three months. I had just spent the last three months working with two other persons that I have high confidence in and we had all agreed to sign a report that we've gone through a bit. We talked about being systemic, we talked about maltreatment, and there would be no way for me to know that there was not abuse across the leagues and teams on a large-scale basis…”

“So it's your view that Mr. MacKenzie is recalling statements that you did not make?” a lawyer asked Theriault.

“I certainly didn't make those kinds of statements,” Theriault answered.

While the panel presented the CHL with 13 findings and 13 recommendations, MacKenzie said in a June 3, 2022, deposition that the panel “didn't really give us… actionable feedback on what could be done.”

Lawyers for the plaintiffs also filed the transcript of Dave Lorentz’s deposition June 7, 2022. 

Lorentz, a high school principal and Peterborough Petes board member, testified about playing for the Petes from 1987-1990 and his experience as a rookie participating in an “initiation” called “the hot box.”

Lorentz testified that he and three or four other rookie players were asked by their older teammates to strip naked and get into the bathroom at the back of the team bus during a road trip at the beginning of the season. He said it was not humiliating because “30 per cent of my time playing in the OHL, you’re naked in front of your teammates.”

“I don’t know who or how it was mentioned, but they said, ‘This is what we do, it’s been done in the past,’ and I participated,” Lorentz testified.

The naked players in the bathroom had their clothes tied up into a ball and they had to untie the ball and get dressed to leave the bathroom, he testified.

“When I participated in the hot box, it took us less than five minutes to untie our clothes and come out,” Lorentz said. “The longest I ever witnessed rookies in the hot box was 20 to 30 minutes… Once we got in there, we opened the window to let some air in and when you close the door, the light came on, so we sort of had a plan. And it was a fun task that we did.”

Lorentz testified that one rookie player named Dan Brown refused to participate in the hot box but that he still made the Petes team.

Lorentz testified that while he wouldn’t have had a problem with his son participating in the hot box with an OHL team, he would not allow teachers at his high school to direct new students to do it.