[CLERK OF THE COURT] FILED OCT 28 2016 Court of Queen’s Bench of Alberta CAGARYATSERT Citation: Waiter v Western Hockey League, 2016 ABQB 608 Date: Docket: 1401 11912 Registry: Calgary ‘Between: Lukas Walter as Representative Plaintift PlaintiffRespondent sand Western Hockey League, MeCrimmon Holdings td, and 32188 Manitoba Ltd, a Partnership carrying on business as Brandon Wheat Kings, 1056648 Ontarlo Inc. Rexall Sports Corp., EHT Ine, Kamloops Blazers Hockey Club, Inc. Kelowna Rockets Hockey Enterprises Lid, Hurricanes Hockey Limited Partnership, Priae Albert Raiders Hockey ‘Club inc, Brodsky West Holdings Ld, Rebels Sports Ltd, Queen City Sports & Entertainment Group Ltd, Saskatoon Blades Hockey Club Ltd, Vancouver Junior Hockey Limited Partmership, West Coast Hockey Enterprises Lid. Medicine Hat Tigers Hockey Club Ltd. Portland Winter Hawks Ine, Brett Sports & Entertainment In, ‘Thunderbird Hockey Enterprises LLC, Top Shelf Entertainment, Inc, Swift Current Tier | Franchise Inc, Kootenay Ice Hockey Club Lid, Moose Jaw Tier One Hockey Ine., DEA Moosejaw Warriors, Lethbridge Hurricanes Hockey Club and Canadian Hockey League Defendants/Applicants ‘Memorandum of Decision of the Honourable Mr. Justice RJ. Hi [1] The Plaintiff in this matter has given notice that it will seek to certify these proceedings ‘pursuant tothe Class Proceedings Act, SA 2003, C-16.5. The Plaintiff fled two Yolumes ofPage: 2 ‘material and evidence in support of Cenification and then a futher three volume Supplementary Record, The Respondents filed a four volume recordin response. The response included affidavits from: (@ David Branch, Commissioner ofthe Ontario Hockey League (OHL) and the Canadian Hockey League (CHL), who, among othe things, provides evidence on the expected financial impact on the OHIL and CHL ofa determination thatthe player are entted to wages under the employment standards legislation applicable othe jurisdiction in which their teams are located, (©) Ron Robison, the Commissioner of the Wester Hockey League (WHL), who, among other things, provides evidence onthe expected financial impact on the ‘WHL of determining tat the players are entitled to wages under the employment standards legislation aplcable othe jurisdiction in which the tams were located; (©) Sixalfidavitsffom owners and/or governors of teams in the CHL who, among ‘other things, provide information relating othe provincial circumstances oftheir teams and provide evidence on the financial impact on ther teams of determining thatthe players are ented to wages under the employment standards legislation applicable tothe jurisdiction in which they are based. [2] _Theaction in Alberta is agsins the CHL, the WHL, andthe owners ofthe WHL teams. ‘The ONL is nota defendant, nor are tte OHL teams. [3] There is amimor action being conducted in Ontario which names as defendants the CHL, the OHL, and the owners ofthe OH teams. [4]. The partes have seen fit to file identical records in each of this action and the Ontario ‘ction, dealing with upcoming certfiation applications in each action. Presumably, they do so ‘because of commonality of issues in ech ofthe actions, and because the CHL is « Defendant in cach action, However, itis important thatthe Court note the diferent defendants and different hockey leagues in each action {5} _ Inthis action the Plaintiff, Lukas Walter, was a hockey player for the Tr City Americans, ‘who play out of Kennewick, Washington, and are owned by Top Shelf Entertainment Inc. Only ‘Top Shelf Entertainment Inc. ha filec a Statement of Defence. Nowhere in that Statement of Defence does that Defendant maintain tat it cannot afford to pey the players for their services beyond a stipend, or tha the Financial effect of such a finding would be deleterious tothe team or dengue [6] Yeta great deal of focus in the Defendants affidavits, refered to above, i in respect of such an alleged deleterious financial effect. Ican only conclude, therefore that ths is an important aspect of the Defendants’ response to the Certification application upcoming (7) The Plintif says that, asthe Defendants have pu forth this position, stating asa fact that the teams and the leagues cannot afford a finding that they are subject to employment standards legislation, they must now produce the documents relevant to those assertions. [8]_ While those documents could be requested during cross examination of the affiets on thei affidavits, the Plaintiff anticipates that the documents would not be provided by the afiants without court order, and so this application saves a costly litigation step. The Plintif alo saysPage:3 ‘that financial records and information should be provided by all the Defendant team owners, not _just the teams with whom the affiants are associated. [9] The Plaintiff seeks an Order requiring: (@)_Allcurrent member clubs ofthe WHL to produce ther financial statements and tax retums for every year from 2011 to present; (®) _Allcurrent nember clubs ofthe OHL to produce their financial statements and ‘ax returns for every year from 201 to present; (©) Ron Robison, commissioner of the WHL, to produce: i, All revenue-sharing agreements to which the WHL isa party; ‘All agreements pursuant to which the WHL generates revenue; ‘The source documentation forthe statistical conclusions made in his affidavit, (@ David Branch, president of the CHL and Commissioner ofthe OHL, to produce: i, All revenue-sharing agreements to which the CHL or OHL isa party; ji. All agreements pursuant to which the CHL or OHL ears revenue; and [10] The Respondent axgues that what is sought is document discovery before the Certification application; something wtich is only granted either ona focused and limited bass fr records ‘that are shown to be relevant tothe issues on Certification (Dine v Biomet Inc,201S ONSC 1911, 2015 1 No 1857 at para 7); or something not to be ordered as a matter of course, but only in ‘exceptional circumstances where, for example, they were necessary to supplement the record before the court atthe Cenifiction hearing (Bartram (Litigation guardian of) v Glaxosmithkline ‘Ine, 2011 BOCA $39, 346 DLR (Ath) 361, at para 18). [11] The Defendants say that, if production of the requested documents is ordered, it should only apply to the documents ofthe affiants’ teams. [12] The Defendants sey thatthe teams ofthe OHL are not Defendants in the order would not apply to them. [13] _The Defendants sey this application is premature and disclosure should only be ordered if the affiants refuse to produce requested documents when cross-examined on their affidavit. [14] And the Defendarts say that the application is too broad. [15] 10 not consider this application to be premature. It short circuits the necessity fora sham examination on affidavits before the application is brought, and conserves court time and litigation expense. [16]. The Defendants obviously consider that this evidence of financial difficulties is key to their opposition to the cetfication of this action asa classaction. Having placed the clubs" and ‘the leagues’ financial viability squarely into issue, the CHL, the WHL andthe elubs must produce their financial decuments as potentially proving their positon, or placing their evidence into dispute. The Defendants’ evidence has rendered these records relevant to the issues on CCrifcaton, and necessery to supplement their affidavit evidence, i action and soPage: 4 [17] _ If limited the financial production to those teams where owners or managers were affiant, it would allow the Defendants to chery pick which teams provide financial statements and which do not. Yet all ofthe WHL teams are Defendants in the action, and the assertion is ‘that teams and/or the WHL would fail or suffer considerably, Therefore the financial records of all ofthe WHL teams have been rendered relevant and producibe by this ase {18} agree thatthe CHL teams are not Defendants herein and would not, therefore, be subject to an order for document production in this ation, except as third partis. [19]_ However, the Defendants have chosen to file affidavits from OHL team representatives arguing the same deleterious effets for them, and hence a deleterious effect for the CHL. ~ an ‘umbrella league for the combined WHL, OHL and Quebec Major Junior Hockey League (QMIHL). 20] _ Ifthe Defendants intend to use and rely upon affidavits from OHL team representatives in this Alberta ction, then all OHL teams must also provide the requested financial information. Ifthe Defendants choots to withdraw affidavits fom OHL. team representatives in this Alberta action, then no such document production from the OHL teams shal be necessary or ordered {21] _ Tuning to Mr. Robison, Commissioner forthe WHL, the document request by the reasonable and relevant, and is ordered. [22]__Asto Mr. Branca, the requested documentation isto be produced forthe CHL, but net in ‘elation to the OHL. [23] _Inconclusion, al ofthe relief sought inthis application is granted, subject to the following: Mr, Branch aed not provide the information requested ofthe OHL; all OHL teans ‘must produce the requested documentation, unless the Defendants withdraw from their reply record the affidavits of affiants associated with OHL teams (including any intended rebuttal). f, however, the Defendants wish to rely on such OHL based evidence, the OHL teams must also produce the documents requested. [24] During the heating ofthis matter we had some discusion ofthe implied undertakingof the panties and thee counsel with respect to the uses to which documents discovered could be put, With the consent o” Plaintiff's counsel, ordered tat, ifthe parties could not agree, they ‘could address me with respect othe implied undertaking, the use of the documents produced, and the appropriateness ofa sealing order. [25] Cost ofthis appication are reserved to be determined atthe Certification Hearing, Heard on the 14* day of October, 2016. Dated atthe City of Calgary, Alberta this 28" day of October, 2016, Ru. Hall SCOBA.Appearaneé ‘Theodore P. Charney and Tina Q. Yang, Chamey Lawyers forthe PlaintifRespondent Patricia DS. Iackson, Crawford Smith and Rachael Saab, Torys LLP ‘forthe Defendants/Applicants