Much attention has rightly focused on the lawsuit brought by the presently anonymous woman who sued Hockey Canada, the Canadian Hockey League[1] and eight unnamed players of the 2018 Canadian Junior National Team. As is now public information, this claim was issued in May of 2022 and was settled the following month for the sum of $3.5 million.

It is peculiar that the alleged male players were named as pseudonyms. Ordinarily, it is the plaintiff who seeks anonymity, indeed as was done in this case. A court order is required to use this procedure and overcome the presumption of openness. The test of this application is as follows:

(1) is there is a serious issue to be tried; (2) is there the likelihood of irreparable harm; and, (3) which position does the balance of convenience favour.

The allegations made in the court filing, if true, are certainly outrageous.[2]

The claim contains the following assertions, again, none of which had been proven in court.[3]

1. The plaintiff met….“John Doe #1″ at a bar, and after he and his teammates bought drinks for her, she became intoxicated and “engaged in sexual acts” with Doe #1 in his hotel room. Without her consent, Doe #1 then invited the seven other players into the room, the claim reads, where they participated in “some or all” of a list of acts, including slapping her, spitting on her, ejaculating on and inside of her, and engaging in vaginal and oral sex with her.
2. Hockey Canada….“condoned a culture and environment that glorified the degradation and sexual exploitation of young women;” failed to report the defendants to police; and failed to remove the defendants from their teams or “impose any sanction,” once it learned of their conduct.

The Globe and Mail reported that Hockey Canada agreed to settle the case, without contacting any of the players. The paper has also stated that HC is not aware of the identity of the alleged offending players.

It is difficult to understand, for many reasons, why HC would agree to settle the claim without knowing who the alleged wrongdoers are. This is over and above any issue as to the liability of HC for the events in question, presuming that these allegations are with merit.

Liability of The Players

1. There is no doubt that, absent consent, that the players in question are responsible for these assertions, once proven, in both civil and criminal contexts.
2. Consent must be real. An intoxicated woman cannot give real consent to the alleged conduct. The apparent text messages following the evening in question between one player and the young lady cannot be seen as proof of true and legitimate consent. Consent must be given in advance, not retroactively. Consent must be fulsome. Did the plaintiff consent to being gang raped and abused? Hard to imagine. All this said, the text messages may be relevant to credibility issues and considered in that context.
3. The players in the normal course of the lawsuit, had it proceeded, clearly would have been third partied by HC in which case they could individually have defended the main claim and/or the third party action.

Liability of Hockey Canada

1. It apparently is alleged that HC sponsored an event on the evening in question. It was following this function that certain players headed out to a bar, where player #1 encountered the plaintiff.
2. It is difficult to imagine that hosting this event can give rise to liability. In exceptional circumstances, should all or one of the players have displayed obvious intoxication at the event, perhaps this may lead to an argument of “host” liability, akin to the context of a party host allowing a drunken guest to drive home. It does not appear that this allegation is made in the claim.
3. To get to that point, HC would need, at the very least, to know the names of the alleged wrongdoers.
4. HC has stated, however, that it has no idea of who the offenders were.
5. The allegations made in the claim appear, at the most favourable reading, may be questioned as to whether they show liability on the part of HC. The culture issue requires considerable proof of past similar transgressions. Contrary to the allegations in the claim, there is no legal obligation upon HC to report suggested offensive conduct to the police, notwithstanding that it maintains it did do so. Similarly, HC has no obligation to impose discipline through the member leagues and teams. Even if it did have such a duty, this would not lead to liability. It did not cause harm to the plaintiff for such an alleged failure to report to the police nor by failing to impose sanctions as disciplinary conduct. These allegations relate to subsequent conduct.
6. In short, HC is unlikely to have legal responsibility for the alleged unsavoury conduct of the players.

Third Party Indemnity

• Any corporation facing such a claim as this would immediately be expected to advise the players to retain independent counsel. The interests of HC and the players are not harmonious. In fact, such positions are in vivid conflict to one another. There has been no suggestion to date that it did so, indeed, it is not aware, even as of today, of the names of the alleged offenders.
• Further, HC or any similarly positioned company facing such a claim, would most certainly consider a third party claim against the players for indemnity or contribution. That is, if there is liability on HC, which would be disputed in the case, then HC may seek financial indemnity from the players in question, should it be found liable. There has been no mention of such a position. It is unimaginable that HC obtained such an agreement as it maintains it has, even as of today, no knowledge of what players were involved.
• All these “John Does” went on to play professional hockey. They were expected to do so at the time. In 2022, it is evident that each enjoyed financial success. Why on earth were these players not sued for indemnity or contribution? This is far from normal.

The Settlement

The reported settlement was $3.5 million which is far beyond the expected range of compensation to be awarded by a Canadian trial court, even based on these horrendous allegations.

Consider these prior awards:

Case	Court	Summary	Award
Corfield v Shaw	BC Supreme Court 2011	9 separate sexual assaults	$60,000 compensatory damages. Lost income claim of $22,500
Strong v Kisbee (Estate Trustee)	Ontario Court of Appeal 2000	Counterclaim in assault was based on the employee’s allegations that she was raped by the plaintiff.	$100,000 in compensatory damages
Zando v Ali	OCA 2018	sexual assault, unwanted sexual intercourse	$175,000 in compensatory damages; and $25,000 punitive damages, as awarded at trial upheld on appeal. $325,000 in costs
M.B. v Deluxe Windows and Mickey Weig	OCA 2012	Assault and Battery. The plaintiff suffered from depression, anxiety, fatigue, lost sexual desire and was suicidal due to the conduct in question. Experts from both sides confirmed that the plaintiff suffered from post- traumatic stress disorder and major depressive disorder.	300,000 and aggravated damages of $25,000.

In short, no reported cases have made awards anywhere close to the $3.5 million offered by HC. HC agreed to settle this claim, without knowing the names of the offenders and without any consideration given to an indemnity claim.

Conclusion

HC acted quickly, which may be not a bad thing. That said, it certainly should have determined who was responsible for this conduct and sued him or them by third party proceeding.

The sum offered as compensation is not consistent with prior awards. It is overly generous. Yes, every case is different and each plaintiff’s claim, presuming liability, must be assessed on its own facts and medical and other evidence. That said, it appears curious as to why it rushed to settle the case and why it declined to determine the offenders and seek indemnity from them.

It may well be it was anxious to resolve this case secretively for the purpose of shielding the hockey world from such notoriety. It is all hard to imagine.

As a result of this news, there has been a flurry of activity, including appearances of HC executives before a committee of the House of Commons. HC has hired a former Supreme Court judge, Thomas Cromwell to review its governance. The International Ice Hockey Federation states it will continue to monitor HC’s actions. Fascinating news but it will lead to nowhere.

This issue has also led to apparently new information provided to HC about a further and earlier sexual assault involving the World Junior team in Halifax. It is reported that the police in Halifax have reopened an investigation.

To date, the sum of $3.5 million has apparently been paid to the plaintiff, while the players have had zero repercussions.

There are reports about re-opening the criminal investigation which may or may not lead to convictions. Lawyers for the players, as reported by the Globe, state that text messages and two videos were provided to the police in London in 2018. This investigation concluded with no charges laid in 2019.

The civil claim brought by the victim unquestionably should have been defended by and paid by the players.

The public uproar over the conduct of HC in dealing with this claim is more than valid. HC’s conduct should be condemned. It acted precipitously in a misguided manner. Whose interests was it protecting? It professes to have the interests of the injured woman to lead its conduct. This seems highly debatable. It is more than likely HC was hoping to settle this case and hide it from prying eyes. Its executives should take the high road and resign immediately.

Updated May 2023

London police have announced that they are renewing their criminal investigation. Not a lightning fast response, but yet it is happening. The story is here.

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[1] This is the term given collectively to the Ontario Junior Hockey League, the Quebec Major Junior League and the Western Canada Hockey League. This is significant as certain players on the team had played U.S. College hockey and were hence not apparently included in the claim.

[2] This writer has yet to review the claim. It is a public document and will be available at the Superior Court House in London, Ontario.

[3] From the Globe and Mail July 19, 2022