Judge rejects approving CHL abuse lawsuit as class action, suggests alternate path forward

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Rather than approving a request from several former Canadian Hockey League players to certify a hazing, bullying and abuse lawsuit filed three years ago against the CHL, its three major junior hockey leagues, and its teams as a class action, an Ontario judge has proposed an alternate potential path to justice.

In a 103-page decision released late Friday, Ontario Superior Court Justice Paul Perell applauded the bravery of former CHL players, including Dan Carcillo, Garrett Taylor and Stephen Quirk, for sharing their stories in a public forum but 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. 

“An abused hockey player has only individual causes of action against his own team and his own leagues… The CHL, the [Western Hockey League], [Ontario Hockey League], and [Quebec Major Junior Hockey League] and the 60 teams are separate and independent legal entities with their own governance structures and constating documents.”

For instance, Perell wrote that Carcillo, who played in the OHL for the Sarnia Sting and Mississauga IceDogs, has a prospective claim against the CHL, the OHL, the Sting and the IceDogs, but not against the WHL, the QMJHL, or other major junior teams for which he did not play.

Perell also wrote he’s convinced that abuse in junior hockey is widespread and has been for decades.

“Bullying, harassment, hazing, and criminal conduct is pervasive amongst the teams of the WHL, the teams of the OHL, the teams of the QMJHL, and the teams of the CHL,” the judge wrote.

“Discrete wrongdoing by the defendants was pervasive, and to the shame of the perpetrators and their enablers discrete wrongdoing has been pervasive for decades…”

The judge also repeatedly referenced the findings of an independent panel that concluded in 2021 that bullying, discrimination, and harassment, as well as a “code of silence,” within major junior hockey had become a “cultural norm.”

Perell wrote that a CHL-commissioned survey that reported 12 per cent of players had been victims of maltreatment “obviously underreported” the prevalence of those incidents. The judge suggested players “had suppressed their memories or perhaps… did not wish to admit that they were both victims and perpetrators of abuse.”

If Perell had approved the case as a class action, 15,000 former and current CHL players would automatically have become plaintiffs in the case, except for those who asked to be excluded. Instead, the judge has suggested a “individual issues protocol.”

Perell wants the plaintiffs to come up with a plan within the next 120 days to notify all former and current CHL players that they have a potential claim against their former teams and leagues if they were victims of abuse when they played major junior hockey. Players that are interested in making a claim would then contact lawyers for the plaintiffs to report their own experiences of maltreatment.

It’s unclear whether the plaintiffs or defendants plan to appeal Perell’s decision. James Sayce, a lawyer for the plaintiffs, declined to comment.

"The CHL is committed to [the] health and safety of our players, and we take allegations and behaviour adverse to this commitment seriously,” CHL president Dan McKenzie wrote in a statement to TSN. “No one in the CHL system [including] players, coaches, staff should be able to act with impunity. Yesterday the court dismissed the certification motion in the proposed class action brought against the CHL, our member leagues and teams. We believe 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 there should be a procedure for determining the compensation and where responsibility should be assigned. However, we are pleased that the court accepted our view that a class action was not the appropriate action.”

Three lawyers who specialize in class actions and are not involved with the CHL case and who reviewed Perell’s ruling for TSN said the plaintiffs, defence, and Perell in coming months will likely agree on a rubric outlining prospective compensation amounts for various forms of abuse.

Alleged victims with claims that are determined to be less than an agreed-upon threshold would likely be eligible to go through a streamlined settlement process and not have to testify in person, the three lawyers said. Those whose claims are worth more would probably be required to be cross-examined, the lawyers said, adding that it’s possible that Perell would allow the claimants to pursue their cases anonymously.

“The CHL will be happy that they don’t have a class action but there is still huge potential exposure here,” said one of the lawyers who is not involved with the case. “Some claims, like those where a former player is called a homophobic or racial slur, might not be worth many thousands of dollars, but others could be extremely costly. How much is it worth if a player who arguably had the talent to make the NHL but was sexually tortured and had to quit hockey because of what happened to him? That could be worth big money.”

One lawyer said a historic B.C. case could be used to establish potential damages.

In 2011, B.C. Supreme Court judge Dev Dley awarded a then-35-year-old man $605,000 after he was sexually molested twice by his hockey coach when he was 13. Dley wrote in his judgement that the man, a former Toronto Maple Leafs prospect, suffered from depression and alcoholism after his abuse and that it had affected his chances to secure an NHL contract.

Perell’s proposed plan for the future of the CHL abuse case is based on a model used in previous Ontario lawsuits that were filed by federal inmates who argued they should be compensated for time spent in solitary confinement. In two such class-action cases, Ontario’s appeals court in 2020 endorsed $40 million in damages.

Perell also ruled that he has jurisdiction to hear claims involving all of the co-defendants, including CHL teams and leagues which are based outside of Ontario.

“The Defendants carry on business in Ontario,” he wrote. “And, in any event, Ontario has a real and substantial connection severally with each and every of the 60 hockey teams and the WHL, OHL, QMJHL, and CHL.”

In June 2020, Carcillo and Taylor filed a claim against the CHL 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.

Perell wrote: “The evidence establishes that some unknown number of … players in the WHL, OHL, or QMJHL were hazed, bullied, assaulted, threatened, stigmatized, mocked, demeaned, derided, ridiculed, slandered, and humiliated by their teammates team staff, agents, employees, and servants of the WHL, OHL, or QMJHL.”

The oldest player to file an affidavit detailing abuse was 57-year-old Doug Smith, who played for the Ottawa 67’s in the OHL between 1979 and 1982. The Los Angeles Kings selected Smith with the second-overall pick in the 1981 NHL entry draft. The youngest player was 27 and played in the OHL between 2009 and 2014.