Proposed plan to advance CHL abuse lawsuit unveiled by plaintiffs
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Attorneys for former Canadian Hockey League players pursuing a hazing, bullying, and abuse lawsuit against the CHL, its three major junior leagues, and its teams, have outlined a proposed path to justice for current and former players who want to join the case.
In a 560-page motion filed in Ontario Superior Court on June 5, James Sayce, a lawyer with the Toronto firm Koskie Minsky LLP, wrote that any players wanting to pursue a case must be assured that their identities will be kept confidential, unless they choose to share their story publicly.
Sayce’s motion comes four months after Justice Paul Perell declined to certify the lawsuit.
In his Feb. 3 decision, Perell wrote he’s convinced that abuse in junior hockey is widespread and has been for decades, and he applauded the bravery of former CHL players, including Dan Carcillo, Garrett Taylor, and Stephen Quirk, for sharing their stories in a public forum.
Even so, he said the case was not suitable to proceed as a class-action lawsuit.
“The immediate lawsuit is about egregious harms perpetrated on children and the persons or entities at fault should be punished, but even children know, and in their heart Messrs. Carcillo, Taylor, and Quirk in their noble pursuit of cleaning hockey must know, it is wrong and fundamentally unjust to punish teams for something that somebody else did,” Perell wrote.
Carcillo and Taylor filed a claim against the CHL in June 2020, alleging that the league, its teams, and their executives “perpetuated a toxic environment which condones violent, discriminatory, racist, sexualized, and homophobic conduct, including physical and sexual assault, on the underage players that they are obliged to protect.”
The lawsuit scandalized the hockey world. In subsequent months, 16 former CHL players filed affidavits detailing their alleged abuse. The oldest player to file an affidavit detailing abuse was 57-year-old Doug Smith, who played for the Ottawa 67’s in the Ontario Hockey League between 1979 and 1982. The youngest player was 27 and played in the OHL between 2009 and 2014.
It's unclear how many players will make a claim as the case moves forward. The plaintiffs have asked Perell to allow any CHL player since 1975 to join the litigation. Some 15,000 players have skated in the three leagues since then. Sayce declined to say how many players to this point have signed retainers.
“Any claim made by a player in relation to physical and sexual abuse, bullying, harassment, hazing, and tortious conduct that affected the player while playing in the CHL, and that took place between 1975 and the present, is eligible for consideration,” Sayce wrote in his June 5 motion, adding that all information provided by players in connection with the case must be kept confidential. "Nothing in this part prevents any claimant from disclosing their own story.”
Sayce proposes in the motion that all players who come forward should receive wellness support, including access to therapists who are not affiliated with any current or former CHL team or the league.
Promising confidentiality to all potential claimants is a must, London psychologists Drs. Peter Jaffe and David Wolfe wrote in affidavits filed as part of the plaintiffs’ motion.
“They are being asked to share painful and humiliating events that they may not have disclosed to their own family or friends,” Drs. Jaffe and Wolfe wrote in a joint statement. “These men may not have fully acknowledged what happened to themselves and actively repressed or tried to forget what happened… All the issues that men feel disclosing abuse will be amplified within a hockey culture that promotes qualities of toughness and silence. Many of these survivors will have been socialized in a manner that discourages sharing feelings or acknowledging vulnerabilities. These men would be asked to break years of silence about what happened in the locker room.”
The CHL and its teams can present Perell with a different plan for proceeding with the lawsuit and may still file an appeal over whether the Ontario judge has jurisdiction to hear claims made by players playing on teams in other provinces.
CHL president Dan MacKenzie declined to discuss the league’s legal strategy.
"The CHL believes that any player who may have experienced wrongful conduct at the hands of teammates or others in connection with their time playing major junior hockey deserves access to justice and that that there should be a procedure for determining the compensation and where responsibility should be assigned," MacKenzie wrote in an email to TSN.
"As a result of the dismissal of the plaintiffs' certification motion, the court has set hearing dates to determine what that procedure will be. We were pleased with the outcome of the certification motion and look forward to the court establishing the procedure going forward, but until that happens, we will not discuss this publicly."
Sayce suggests in his motion that players be allowed to choose between three distinct tracks if they want to become involved in the case, depending on how fast they want their case to be settled, how much money they believe they deserve, and whether they want to remain confidential throughout the process.
Under the plaintiffs’ proposal, players who choose “Track One” would face a cap of $100,000 in damages and would present their cases only via written testimony.
Players who opt for “Track Two” would not face limits in how much money they can demand in damages but would also face the possibility of being cross-examined by lawyers for the CHL and teams, according to the plaintiffs’ proposal. “Track Two” would also be confidential.
“Track Three” would offer players the opportunity to present their case in open court and to publicly name their abusers.
Sayce also laid out how the plaintiffs want the CHL and its teams to both privately and publicly advise players of their right to join the lawsuit.
They proposed to the judge emailing players this message: "Did you play in the Canadian Hockey League at any time since 1975? If you suffered abuse in the Canadian Hockey League, you can claim compensation. Your claim can be kept confidential. Click here to learn more and make a claim."
Players who click a link would be referred to a "CHL Abuse Website" maintained by the plaintiffs.
The plaintiffs also want the league and teams to be required to post monthly messages about the case on their Twitter and Instagram accounts and on other social media, as well as on their websites, and via posters in player locker rooms and in prominent public areas in team arenas.
In his motion, Sayce has also asked the court to direct the CHL and its teams to hand over the records of any meeting, briefing notes, written correspondence, and emails since 1975 in which abuse was discussed.
Sayce also has asked for all CHL, league and team documents since 1975 relating to player discipline for abuse in the three leagues, regardless of whether sanctions were formal or informal. He also has asked for all of the leagues’ documents related to the sale of OHL, Western Hockey League, and Quebec Major Junior Hockey League teams since 1975.