COURT FIL COURT JUDICIAL CENTRE PLAINTIFFS NUMBER DEFENDANTS. 1401-11912 COURT OF QUEEN'S BENCH OF ALBERTA, CALGARY LUKAS WALTER, TRAVIS MCEVOY, and KYLE O’CONNOR as REPRESENTATIVE PLAINTIFES WESTERN HOCKEY LEAGUE, McCRIMMON, HOLDINGS, LTD. AND 32155 MANITOBA LTD., A PARTNERSHIP ¢.0.b, as BRANDON WHEAT KINGS, BRANDON WHEAT KINGS LIMITED PARTNERSHIP, 1056648 ONTARIO INC., CALGARY FLAMES LIMITED PARTNERSHIP, CALGARY SPORTS AND ENTERTAINMENT CORPORATION, REXALL SPORTS. CORP., EDMONTON MAJOR JUNIOR HOCKEY CORPORATION, F) S BY CORP., EHT, INC., KAMLOOPS BLAZERS HOCKEY CLUB, INC., KAMLOOPS BLAZERS HOLDINGS LTD., KELOWNA. ROCKETS HOCKEY ENTERPRISES LTD., HURRICANES HOCKEY LIMITED PARTNERSHIP, PRINCE ALBERT RAIDERS HOCKEY CLUB INC., BRODSKY WEST HOLDINGS LTD., EDGEPRO SPORTS & ENTERTAINMENT LTD., REBELS SPORTS LTD., QUEEN CITY SPORTS & ENTERTAINMENT GROUP LTD., BRAKEN HOLDINGS LTD., SASKATOON BLADES HOCKEY CLUB LTD., VANCOUVER JUNIOR, HOCKEY LIMITED PARTNERSHIP, VANCOUVER JUNIOR HOCKEY PARTNERSHIP, LTD., WEST COAST. HOCKEY ENTERPRISES LTD., WEST COAST HOCKEY LLP, MEDICINE HAT TIGERS HOCKEY CLUB LTD, 1091956 ALTA LTD., PORTLAND WINTER HAWKS, INC,, BRETT SPORTS & ENTERTAINMENT, INC., HAT TRICK, INC, dba, SPOKANE CHIEFS HOCKEY CLUB, THUNDERBIRD HOCKEY ENTERPRISES, LLC, TOP SHELF ENTERTAINMENT, INC., SWIFT CURRENT TIER 1 FRANCHISE INC., SWIFT CURRENT BRONCO HOCKEY CLUB INC., KOOTENAY ICE HOCKEY CLUB LTD., MOOSE JAW TIER | HOCKEY INC. d.b.a. MOOSE, JAW WARRIORS, MOOSE JAW WARRIORS TIER 1 HOCKEY, INC., LETHBRIDGE HURRICANES HOCKEY CLUB, and CANADIAN HOCKEY LEAGUEDOCUMENT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT REPLY BRIEF OF LAW Brought under the Class Proceedings Act, S.A. 2003, ¢. C~ 16.5 CHARNEY LAWYERS PC 151 Bloor St. W., Suite 602 ‘Toronto, ON MSS 184 Theodore P. Chamey / Tina Q. Yang Brendan O’Grady / Glenn Brandys Phone: 416.964.7950 Fax: 416.964.7416 GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1100 ‘Toronto, ON MSG 2G8 Steven Barrett / Joshua Mandryk Phone: 416-977-6070 Fax: 416-591-7333 ‘Counsel to the plaintiffs SUTTS, STROSBERG LLP Lawyers 600-251 Goyeau Street Windsor, ON N9A 6V4 William V. Sasso Phone: 519-561-6222 Fax: 519-561-6203 Counsel to Charney Lawyers PC & Goldblatt Partners LLPTable of Contents PARTI- OVERVIEW, PARTH- THELAW... A. CAUSES OF ACTION: CPA, 8, 5(1)(@).-0o 5 (Statutory amendments do not preclude claims in British Columbia, Saskatchewan, or Washington. 5 Gi) Macaraeg does not preclude contractual claims in British Columbia. 8 (ii) Other causes of action...sesn B. IDENTIFIABLE CLASS: CPA, s. 5(1}(b).. C. THE COMMON ISSUES: CPA, 8. 5(1)(0)...-00 @ Amateurism. D. JURISDICTION... (@ The agreement with counsel settled jurisdiction... (ii) The defendants attomned to the jurisdiction of Albert... (iii) The Alberta Court holds proper jurisdiction. (iv)The Alberta Court should not decline jurisdiction based on forum non conveniens.. (v) Response to additional defence arguments fos declining jurisdiction (vi) Ryan Hancock is a qualified expert Witness ...snessn E, PREFERABLE PROCEDURE: CPA, 8. 5(1)(Q) vnssnnnnsee F. REPRESENTATIVE PLAINTIFF: CPA, s. 5(1)(e)..... (There are no conflicting interests within the class... (i) In the alternative, the defendants’ evidence does not establish that minimum ‘wage will result in widespread financial harm.PART I - OVERVIEW 1. The defendants characterize the certification motion as an important screening mechanism for eliminating inappropriate claims. The plaintiffs submit that the statutory criteria for certification are intended to establish a low threshold — as some courts have stated, it is a “very low and easy to satisfy standard” — with the courts performing an important, but preliminary, gatekeeping role. The court must not be concerned with the merits of the action, and need only satisfy itself that the action satisfies the basic elements of a class proceeding — namely, that there is an identifiable class, represented by a suitable plaintiff, who has asserted a tenable cause of aetion and common claims for which there is no other clearly preferable procedure, 2, In the facts section of the responding brief of law, the defendants make extensive reference to concepts such as player development, player education benefits, the nature of “amateur” athleties, and alleged in loco parentis relationships, yet, on a careful reading of the defendants’ legal argument, none of the arguments against certification rest on those concepts. 3. In this context, the defendants’ observation that the plaintiffs elected to cross-examine on only one of the defence’s 30-plus affidavits is easily addressed, The defendants’ affidavit evidence, as summarized in their responding brief, speaks almost entirely to the merits of the action, which are not to be examined at certification, and fails to establish a lack of commonality amongst the class, As a result, no purpose would be served by eross-examination, 4. After filing more than 30 responding affidavits, bringing multiple applications to suppress or strike evidence, and oross-examining six of the plaintiffs’ affiants, the defendants ultimately have not taken serio ir brief of law) with the questions that are at the heart of a certification application.5. The defendants have not challenged whether the plaintiffs have met their onus to demonstrate some basis in fact for all of the elements of the certification test. 6. With respect to the key element of commonality, defendants have not challenged the plaintiffs” position that there exists more than sufficient commonality amongst the putative class members to resolve the proposed common issues, nor has it been suggested that the plaintifiis have failed to mect their burden of establishing some basis in fact for each of the proposed common issues. The proposed common issues and the existence of a rational connection between the common issues and the proposed class definition has also not met with any legitimate objection. 7. The defendants’ objections to certification appear to fall into three discrete categories which, to the extent not addressed previously, are dealt with in this reply. The objections are largely focused on: purported defects in the plaintifis’ pleading, including the contractual claims a against the clubs located in jurisdictions where recent legislative amendments may affect some putative class members’ claims, and with regard to the availability of a civil action in British Columbia, pursuant to the Court of Appeal’s decision in Macaraeg v. E Care Contact Centres Lid.; a vequest that this Court decline to exercise its jurisdiction with respect to the U.S.- based defendants; and, an alleged but unfounded conflict within the proposed class. PART - THE LAW A. CAUSES OF ACTION: CPA, s. 5(1)(a) (@ Statutory amendments do not preclude claims in British Columbia, Saskatchewan, or Washington 8. The defendants have cited three legislative amendments — in Saskatchewan, British Columbia, and Washington — which they submit demonstrate that it is plain and obvious that theplaintifis’ claim to employment status cannot succeed. This is not a true s. 5(1)(a) argument, but rather is a merits-based defence not suitable for resolution at the certification stage. 9. As set out in paragraph 283 of the plaintifis’ main brief, the meaning, scope and applicability of those three legislative amendments, none of which have ever been given judicial consideration, are clearly not “plain and obvious”. The interpretation to be accorded to each of the amendments raises common legal issues. Further, the applicability of the amendments depends on factual determinations that clearly cannot be made at the certification stage, but can be determined on the basis of an evidentiary record at a common issues trial 10. Even if the amendments were somehow held to “doom” the plaintiffs’ claims to failure in their respective jurisdictions, and for the petiod of their operation, their effect is not retroactive, or at the very least this is arguable, and thus claims arising prior to their enactment cannot be determined to be precluded 11. There is a strong statutory presumption in Canadian law that legislation does not apply retroactively or amount (o & declaration about the previous state of the law. This presumption can only be rebutted by a clear contrary expression of legislative intent.‘ These principles have been codified by law in most jurisdictions, including in Saskatchewan? and British Columbia Since the Saskatchewan- and British-Columbia-based defendants have chosen not to deliver statements of defence prior to certification, the legislative amendments have not been raised in the pleadings, much less any clear and contrary expression of legislative intent, nor is it the case that any such legislative intention has been expressed. * Sullivan on the Construction of Statutes (5* ed.) Ruth Sullivan, LexisNexis, pp. 668 and 677; Gustavson Drilling (1964) Ltd. y. MIR, [1977] 1 8.C.R.271 at p. 279; A.G. Que.) v. Expropriation Tribunal, [1986] { S.C.R. 732 at paras, 45-50; Rizzo & Rizzo Shoes Ltd. (Re), [1998] } S.C.R. 27 at para, 42 The Interpretation Act, 1995, 8.8., Ch I-11.2,s. 36. > See e.g. Interpretation Act, RS.B.C., Ch. 238, 8.37.12. In addition, under the laws of Washington, amendments to existing laws are given prospective application unless there is a clear legislative intent to apply the law retroactively or the statute is remedial,‘ The defendants’ only cited authority in support of their argument confirms this.° 13. Previous amendments to the Washington wage statute which have been intended to take retroactive effect have explicitly stated as such in their text. This suggests that, by contrast, there ‘was no legislative intent regarding retroactivity with regard to the subject amendment, 14, Since the text of the amendment is unambiguous with regard to a lack of retroactivity, the defendants have attempted to demonstrate the alleged remedial nature of the amendment by citing a news release issued by the Washington Department of Labour amouneing the discontinuance of its child labour investigation into Wester Hockey League (“WHL”) teams in the state, This is a piece of evidence that is inadmissible on a s. 5(1)(a) analysis. The existence of this evidence, and its significance, would have to be determined at trial (or, alternatively, in a summary judgement proceeding which the defendants have not commenced). 15, The defendants have also alleged that “the proximity of the amendment’s enactment to the controversy of the employment status of major junior hockey players indicates that the amendment applies retroactively as a remedial act”. At most, this is a defence to be advanced at trial. That said, the only authority cited for this proposition, Johnson v. Continental West, Inc., is easily differentiated on the facts. In that case, the Washington legislature enacted legislation which was intemally inconsistent, and then amended the legislation the following year to remedy * Report of Ryan A. Hancock, dated June 15, 2016 at 3, Supplementary Application Record, Vol. VIL, Tab 11 [Third Hancock Report) 5 Johnson y. Continental West, Ine, 99 Wn.2d $55, 663 P.2d 482 at 484-85 (1983), © Washington Senate Bill 6220 (1998), Appendix "F” to the Third Hancock Report, Supplementary Application Record, Vol. Vil, Tab LIF.the inconsistency.’ The word “controversy” was not used colloquially in Johnson, as the defendants are attempting to apply it, but rather referred to a genuine legal inconsistency. 16. It is therefore abundantly not “plain and obvious” that the legislative amendments mean that the plaintiffs claims have no hope of success. (i) Macaraeg does not preclude contractual claims in British Columbia 17. ‘The defendants argue that the s. 5(1)(a) requirement is not met under the laws of British Columbia, citing the British Columbia Court of Appeal’s decision in Macaraeg v. E Care Contact Centres Ltd* as authority for the proposition that disputes under provincial employment standards legislation must be brought to the Employment Standards Branch, not the courts. 18. To succeed in this argument, the defendants would have to show that it is “plain and obvious” that Macaraeg renders the plaintifis’ breach of contract claim under British Columbia law “doomed to failure”, This is far from being the case. To the contrary, Macaraeg does not present a barrier under s, 5(1)(@) for the following reasons: a. this case is distinguishable from Macaraeg, because there is a clear attempt here to waive the minimum standard; b. — Macaraeg’s applicability turns on factual determinations that cannot be made under s. 5(1)(a); c. Macaraeg is no longer good law in light of the Supreme Court of Canada’s decision in Bhasin v. Hrynew; and 2 Johnson v. Continental West, Inc, 99 Wn.2d 555, 663 P.2d 482 at $57-58 (1983). * 2008 BCCA 182,9 4. it is, at the very least, arguable that Macaraeg was wrongly decided, and specifically cannot be reconciled with key decisions of the Supreme Court of Canada, 19. In the alternative, even if Macaraeg somehow precluded a cause of action founded on breach of legally implied contractual terms in British Columbia, this would have no effect on the plaintiffs’ other causes of action in British Columbia, which have been adequately pleaded and which are amenable to resolution on a common basis. ishable on its facts (a) Macaraeg is disting. 20, ‘This case is distinguishable from Macaraeg in several respects, including in that, whereas the contract in Macaraeg was silent on the question of overtime, the contract in this case speaks to the question of compensation to the putative class members, 21. In Macaraeg, the British Columbia Court of Appeal accepted, based on Machtinger v. HOS Industries Ltd.,? that, where there is a conflict between employment standards legislation and a term of contract, the offending contractual (erm is invalidated and substituted for the employment standard or the common law standard, whichever is more favourable.'° This would flow directly from the “no waiver” provision of the Employment Standards Act, which provides that!! ‘The requirements of this Act and the regulations are minimum requirements and an agreement to waive any of those requirements, not being an agreement referred to in section 3 (2) or (4), has no effect. 22. ‘The British Columbia Court of Appeal, however, found that the courts did not have freestanding jurisdiction to enforce the minimum employment standards overtime provisions, in ° 11992] 1 SCR. 986, \° Macaraeg v. E Care Contact Centers Ld, 2008 BCCA 182 at para. 43. © Employment Standards Act, R.S.B.C. 1996, Ch. 113, 8.410 the absence of any reference whatsoever in the employment contract,” and in this regard, distinguished the case before it from the Alberta case of Beaulne ¥. Kaverit Steel & Crane ULC con the basis that, in Beaulne, the “the promise to pay overtime was a term of the employee’s contract.” Thus, the Court apparently did not regard the plaintiff's contract as an agreement to waive the requirements of the employment standards legislation, within the meaning of the “no waiver” provision, While the plaintiffs note that courts in other jurisdictions have taken a different approach (see section (d) below) and contend that there is no meaningful distinction between a contract that expressly conflicts with an employment standard and a contract that is silent with respect to an employment standard, it appears that this distinction informed the British Columbia Court of Appeal’s reasoning in Macaraeg. 23. By contrast, the contracts at issue in this case are not silent with respect to the main entitlement claimed, namely payment for services provided, The plaintiffs assert that the Standard Player Agreement (“SPA”) provides for wages, or compensation equivalent to wages. ‘One form of the compensation is currently cat as “reimbursement”, but is, in effect, treated as an allowance, Like the notice period in Machvinger, however, the amounts paid under the SPA fall well short of, and are in conflict with, the minimum wage standard, and thus clearly evinee an agreement to waive, or attempt to avoid, the minimum wage requirements of the British Columbia employment standards legislation. This is also clear from the changed depiction of the compensation in the SPA over time: the nature of the services provided by the players has not changed, but the manner which the defendants have described it has. Therefore, the allowances must be invalidated and replaced by the minimum standard, ie. the minimum wage. There is, as ” Macaraeg v. E Care Contact Conters Ltd, 2008 BCCA 182 at para. 2. " Ibid. at paras, 50-51,u a result, a contractual basis for the plaintiffs’ claim and, unlike the Court’s view in Macaraeg, it cannot be construed as a freestanding attempt to enforce an employment standard, 24, More generally, the SPA as a whole, to the extent that it seeks to miscast the plaintiffs as not being employees, must be viewed as an attempt to waive employment standards, To that extent, the SPA is deemed to be replaced by the minimum employment standards (or the common law where more favourable rights exist). 25. Thus, even accepting that Macaraeg is good law in British Columbia, itis, for the reasons set out above, distinguishable in principle and on its facts. Indeed, even on the principles articulated in Macaraeg would support the courts’ authority to void the amounts provided under the SPA to the class members, and to substitute and enforce the mandatory minimum wage provisions in British Columbia's minimum wage legislation, At the very least, it is not plain and obvious for the purposes of's. 5(1)(a) that there is no cause of action, (b) ‘The applicability of Macaraeg turns on factual determinations that cannot be made under s. 5(1)(a) 26. ‘The British Columbia Court of Appeal’s decision in Macaraeg was based on the premise that the civil enforceability of employment standards legislation tums on the adequacy of the statutory regime. It held that the plaintiff was not entitled to advance her statutory right to overtime through a civil proceeding because it found that British Columbia’s statutory regime ‘was comprehensive and adequate to her claim. 27. As set out in section (d) below, the plaintiffs take issue with the premise that the court’s jurisdiction to adjudicate legally implied contractual terms turns on the adequacy of the administrative enforcement regime. Nonetheless, without conceding this premise, the plaintiffs assert that the British Columbia Court of Appeal’s finding with respect to the adequacy of the12 administrative enforcement regime does not bind other courts in other cases. The question of adequacy must be determined on a case-by-case basis, as a regime may be adequate to one claim. and not to another. 28. In this regard, the plaintiffs do not accept that British Columbia’s administrative enforcement regime is adequate to their claims, Unlike the plaintiff in Macaraeg, the plaintifis in this case are advancing a class action on behalf of numerous putative class members, many of whom are governed by British Columbia’s employment standards legislation." As set out in the main factum, the plaintiffs’ position is that administrative proceedings would be grossly inefficient and impractical, and, in any event, would be unlikely to be pursued, particularly by ‘the young current players, because the absence of anonymity gives rise to feared reprisal and recriminations in the hockey community throughout and beyond their hockey careers. In this Court’s recent ruling on the defendants’ motion to strike affidavits, these very fears were found to be “genuine and reasonably based”! In Fulawka v. Bank of Nova Scotia, the Ontario Superior ‘ourt of Justice found that the federal enforcement regime did not adequately guard against similar concerns on the part of the bank employees concerned.'* 29, The plaintifs find support for the distinction being drawn in Dominguez v. Northland Properties Corporation, a 2012 decision in which the British Columbia Supreme Court certified a class action which included claims for breaches of British Columbia’s employment standards legislation. That court, in its preferable procedure analysis, distinguished Macaraeg on the basis that there were no other means of resolving the claims that were more practical or efficient than Defendants acknowledge that although the plaintifT in Macaraeg had advised the judge of her intention to seck certification, she hac not done so atthe time of the decision and Macaraeg thus did not consider the application of the Class Proceedings det. 'S Walter v. Western Hockey League, 2016 ABQB S88 at pera. 43, " Bulavwka v. Bank of Nova Scotia, (2010] 0.5. No. 716 (Sup. Ct. J.) at paras, 161-162, upheld [2010] 0.5, No, 2561 at paras, 135, 137 (Div. Ct), upheld 2012 ONCA 443 at paras. 168 and 170, leave to appeal red [2012] $.C.C.A. No. 326.1B the class proceeding.'” The same distinction is warranted here and indeed is stronger given the multijurisdictional nature of the proceeding, 30. The defendants argue that class actions are merely a procedural tool that cannot create jurisdiction where none exists. If, however, one accepts Macaraeg's premise, namely that the adequacy of the statutory enforcement procedures is what determines a court’s jurisdiction to enforce employment standards entitlements, then procedural considerations cannot be dismissed as irrelevant to the question of jurisdiction, If procedural considerations are relevant, then the procedural advantages conferred by class proceedings legislation cannot be ignored. 31. In summary, the question of adequacy cannot be resolved on this s. 5(1)(a) analysis. The factual determinations necessary to this determination require evidence about the adequacy of the statutory regime to the claims advanced in this case, which is not admissible under s. 5(1)(a). If contested, this matter must be decided at trial where the issue may be resolved on the basis of a full record. (©) Macaraeg is no longer good law 32. Whether or not Macaraeg was ever good law when it was decided, this is no longer the case in light of the Supreme Court of Canada’s recent ruling in Bhasin y. Hrynew, or, at the very least this issue is arguable and therefore the s. 5(1)(a) standard has been met 33. In Bhasin, the Supreme Court confirmed that there is an organizing principle of good faith that parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily. It thus recognized a new common law duty of honest performance, ” Domingues v. Northland Properties Corporation, 2012 BCSC 328 at paras, 221, 233-37.14 which requires the parties to be honest with each other in relation to the performance of their contractual obligations.'* 34. While the duty of good faith applies to all contracts, the Supreme Court noted its obvious and specific application to situations in which one party exercises discretionary power over the other, and described the employment relationship as one marked by power imbalance, in which the duty of good faith plays a critical role. In this regard, the Court explicitly drew a link between the duty of good faith and the law of terms implied by law, specifically citing its own previous decision in Machtinger:'? Good faith also plays a role inthe law of implied terms, particularly with respect to terms implied by Inw. Terms implied by law redress power imialances in certain classes of contacts such as ‘employment, landlord-essee, and insurance contracts: London Drugs Lid. v. Kuehne & Nagel International Ltd, [1992] 3 S.C.R. 299, at p. AST, per MeLachlin J. (as she then was); see also Machtinger». HOL Industries Ltd, {1992} | S.C.R. 986, per McLachlin J, concurring. 35. Bhasin thus dispels any doubt that the terms of employment standards legislation are implied by law into employment contracts, regardless of the intentions of the contracting parties, and ~ contrary to what the British Columbia Court of Appeal held in Macaraeg, without the benefit of Bhasin — regardless of the adequacy of any statutory enforcement regime. ‘This is simply what is required in order for an employer to meet its newly recognized duty of good faith in the employment context, An employer cannot be acting in good faith if it fails to meet its obligations under employment standards legislation, especially considering the extent to which the purpose of employment standards legislation aligns with the purpose of the duty of good faith. Both are concemed with redressing power imbalances in the employment relationship, 36. In summary, the British Columbia Court of Appeal’s decision in Macaraeg pre-dated the 2014 Supreme Court of Canada’s decision in Bhasin, and so was decided without the benefit of "8 Bhasin v. Hiynew, [2014] 3 S.CR. 494 at paras. 63, 65, 73-74. "id at paras. 44, 50, $4, 66,15 the Supreme Court’s reasons and approach. Regardless of whether or not Macaraeg was correctly decided at the time, Macaraeg can no longer be the law in light of Bhasin. At the very least, the Supreme Court's recognition of the duty of good faith, and its specific comments regarding the applicability of this duty to the employment relationship, leave the law of British Columbia unsettled on this point, (@ — Macaraeg is inconsistent with Supreme Court of Canada authorities 37. In Macaraeg, the British Columbia Court of Appeal overtumed the trial judge's det mination that rights granted by employment standards legislation are incorporated into employment contracts as a matter of law and enforceable in breach of contract.* It held that the enforceability of employment standards entitlements in court where the contract is entirely silent depends on whether the statute provides an adequate enforcement regime. Where the legislation does not aiford effective enforcement, the rights will be implied terms of the employment contract and enforced through an action for breach of contract. 38. The analysis and result in Macaraeg is incorrect, irrational, and fimdamentally at odds with the Supreme Court of Canada’s decisions in Machtinger and Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, which bind the courts of British Columbia 39. As Machtinger confirms, the underlying and overriding purpose of employment standards legislation is to counter the historic imbalance in bargaining power that characterizes the relationship between employers and employees. ‘This purpose is realized by establishing mandatory minimum standards for core terms and conditions of employment, including wages, overtime, vacation pay and holiday pay. These statutory provisions inform employment contracts ® Macaraeg v. E Care Contact Centers Ltd, 2006 BCSC 185116 in two related ways: (1) they function as the default contractual arrangement where the contract is silent, and (2) they nullify and displace any lesser arrangements.”" In other words, the essential legal effect of employment standards legislation is to imply employment standards protections into contracts of employment. By logic and necessity, these implied protections are enforceable in court, just like any other (lawful) contractual term, 40. The Supreme Court of Canada applied these principles in Machtinger when it considered the effect of an employment contract purporting to specify « notice period that was shorter than the employce’s entitlement under both employment standards legislation and common law. The Court held that the notice period negotiated by the parties was “null and void by operation of statute” because it was less favourable than the statutory minimum.” The court then read into the contract the common law notice period, which was more generous than the statutory minimum, because this was most consistent with the benefits-conferring and remedial objects of the employment standards statute.” There is, however, little doubt that, had the common law notice period not been more favourable to the claimant, the court would have implied the statutory notice period into the contract, 41. The plaintiffs submit that the holding in Machtinger, as recognized by courts in other jurisdictions, required the British Columbia Court of Appeal to find that the provisions of British, Columbia’s employment standards legislation were implied into the plaintiffs contract of employment and could be enforced as such. Instead, the British Columbia Court of Appeal erroneously disregarded Machtinger as irrelevant. It misinterpreted Machtinger as being “not 2" Machtinger v. Hoj Industries Ltd. [1992] 1 S.C.R. 986 st pp. 1002-03. 2 Fbid. at pp. 1000, 1001 per Iacobucci J, and p. 1007 per MeLachlin, J ® Ibid, at pp. 1004-05,7 concerned with the implication of statutory terms into contracts," finding that “the focus of the majority in Machtinger was on the intention of the parties,” and that “McLachlin J. [in her concurring opinion] did not decide the case based on the incorporation into a contract of rights conferred by statute.” To the contrary, the majority in Machtinger specifically rejected the view : “if the intention of that the parties’ intentions were relevant in the circumstances, stressing that the parties is to make an unlawful contract, no lawful contractual term can be derived from their intention.””” The majority expressly did not attempt to discern what the parties would have negotiated in lieu of the illegal notice period, but rather held that the unlawful notice period must be replaced either by the minimum statutory term or reasonable notice at common law, whichever was more favourable to the employee, Moreover, McLachlin J. (as she then was) explicitly held that the common law notice period was implied by law into the employment contract. For both the majority and the current Chief Justice, it is clear that, but for the more ‘generous right to reasonable notice at common law, the statutory minimum would have been implied by law into the employment contract and enforceable in court, Thus, the effect of Machtinger, as correctly noted by the trial judge in Macaraeg, is that, “whether the right to notice flows from the statute or common law, it is a right sustainable in a civil action for breach of contract.” 42. As noted above, Bhasin also confirms that the British Columbia Court of Appeal’s interpretation of Machtinger was wrong, ot at the very least unlikely to be upheld by the Supreme Court of Canada should the issue come before it today. Again, the Court of Appeal ® Macaraeg v. & Care Contact Centers Lid., 2008 BCCA 182 at para. 26. ® Ibid. at para. 53. % Ibie.at para, 61 » Machtinger v. Hoj Industries Ltd, [1992] 1 S.C.R. 986 at p. 1001. % Macaraeg v. E Care Comact Centers Ltd., 2006 BCSC 1851 at paras. 20-32.18 disregarded Machtinger because it misinterpreted the decision as not being concemed with therms implied by law. In Bhasin, the Supreme Court made express reference to McLachlin J.’s concurring opinion in Machtinger, and confirmed that McLachlin J. held that minimum standards terms of employment contracts are to be implied by law.” 43. The Court of Appeal in Macaraeg also erroneously disregarded the Supreme Court of Canada’s decision in Parry Sound. In that case, the Court held, applying the longstanding doctrine of illegality flowing from its earlier decision in McLeod v. Egan," “that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction.” While Parry Sound arose in the context of a collective agreement, enforceable by a grievance arbitrator, the Court's reasoning applies equally, if not more so, to an individual employment contract, enforceable in the courts, As the trial judge held in Macaraeg* While the Court was dealing with a collective agreement rather than an individual employment contract, the significance ofits analysis concerning the inclusion of statutory rights in employment contracts eannot be limited to employment relationships govemed by collective agreements. The approach ofthe majority of the Court in Parry Sound isthe same as that taken by MeLachlin J. in her concurring reasons in Machiinger: Employment rights of employees conferred by statute aro implied by law into employment agreements irespective of the parties’ subject 44, In Macaraeg, the British Columbia Court of Appeal misinterpreted Parry Sound as turning solely on s. 48(12){j) of Ontario’s Labour Relations Act, which expressly empowers an arbitrator to consider and apply employment statutes. To the contrary, the Supreme Court’s ® Bhasin v. Hrgmew, (2014) 3 S.CR. 494 at para 44 In Mekeod v. Egan, [1975] | 8.C.R. 517, the Supreme Court of Canada held that a management rights clause in a collective agreement could not be interpreted as permiting the employer require work in excess of 48 hours in a week, which was the maximum limit upon the working hours of an employee established by the applicable ‘employment standards statute. The Court held that “{a}ny provision of an agreement which purported to give to an ‘employer an unqualified right to require working hours in excess of those limits would be illegal” (at p. 523). *" Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003] 2 S.C.R. 157 at ara. 28, Macaraeg v. E Care Contact Centers Lta., 2006 BCSC 1851 at para, 55. See also Beaulne v. Kaverit Steel de Crane ULC, 2002 ABQB 787 at para. 76,19) determinations in Parry Sound were based on the principles that it had articulated and applied in McLeod — a case that was decided long before the enactment of s, 48(12)G).” The Supreme Court then went on to ask “did the enactment of s. 48(12)()) displace or otherwise restrict the principles established in McLeod?™ It ultimately reached the conclusion that the effect of s. 48(12)@) was to “affirm that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement” [emphasis added].?> 4. Applying the principles endorsed in Machtinger and Parry Sound, appellate and trial couris across the country have held that the essential legal effect of employment standards legislation is to create a statutory contract, the terms of which are enforceable as a breach of contract claim, unless the statute expressly or by necessary implication removes the right to proceed in court. As the Ontario Court of Appeal initially held in Stewart v. Park Manor Motors Ltd.” ‘The essontial effect of the Act ig to introduce a further contractual term into a contract of ‘employment by providing for the granting of an annual vacation or payment in lieu thereof as a stated rate, Thus that amenity becomes by force of the statute a term of the contract between the parties as fully and effectively as if it ad been included therein by their own agreement... ® Parry Sound (District) Soctat Services Administration Board v. O.P.S.E.U, Local 324, [2003] 2 8.C.R. 157 at pares. 24-29, 31-37, " Ibid. at para. 38, rbid. at para. 40, % Omarali . Just Energy, 2016 ONSC 4094 at para, 80; Stewart v, Park Manor Motors Ltd., [1968] | O.R. 234 (CA) at paras, 10-11 and p. 240; Kolodeiejski v. Auto Electric Service Ltd,, 1999 CanLII 12264 (S.K.C.A.) at paras 20.21; Beaulne v. Kaverit Steel and Crane ULC, 2002 ABQB 7817 at paras. 76, 86, 88; Cunningham v. Hillview Homes Lid., 2015 ABQB 304 at paras. 80, 83; Sharp v. Public Administrator, [1944] 3 D.L.R. 391 (Alta. 8.C.) at p. 394; Kumar v, Sharp Business Forms Inc,, 2001 Canl.{l 28301 (Ont. Sup. Ct.J.); Franklin y. University of Toronto, 2001 Can 28310 (Ont, Sup. Ct. J.) at paras. 24, 26; Pereira v, The Bank of Nova Scotia, 2007 CanLll 27759 (ONSC); Simpson v, Moffat Communications Ltd, [1983] B.C.J. No. 2089 (C.A.) at paras. 23, 27, See also the trial level decision in Macaraeg v, & Care Contaet Centers Ltd, 2006 BCSC 1851 at paras. 33-48, 59-61 and 78, which, ‘the plaintiffs submit, applied the correct legal principles which the Court of Appeal wrongly disregarded, © Stewart v. Park Manor Motors Ltd, [1968] 1 O.R. 234 (C.A.) at p. 239.20 46. Subsequently, in Kolodziejski v. Auto Electric Service Ltd., the Saskatchewan Court of Appeal confirmed that “the underlying basis of the employment standards legislation. .is to introduce further terms into employment contracts which can be enforced in the same manner as any other contractual term.” In Beaulne, the Alberta Court of Queen’s Bench put it this way:”? In construing @ contract of employment, as in the present case, the Court must construe the contract as informed by the prevailing law. The effect of the Code is that any imposition by the employer of a contractual term that overtime will vaguely be compensated by a pay increase is void. Further, the Code provisions that mandate overtime pay for hours worked beyond the statutory threshold, and that set the rate at which such overtime hours will be paid, are incorporated into the plaintiff's contract of employment...The effect of the employment standards lgislation was to introduce further terms into employment contracts which can be enforeed in the same manner as any contractual term... [emphasis added] 47, Rather than applying the applicable authorities concerning the legal effect of employment standards legislation, the British Columbia Court of Appeal only applied Orpen v. Roberts, a 1925 case which did not concern employment standards Jegislation, ‘The issue in Orpen was whether a common law right of action was given to a person prejudicially affected by a building erected in contravention of a municipal by-law. Unlike employment standards legislation, which by legal necessity creates a statutory contract, the municipal statute at issue in Orpen could not be presumed to create individual rights, let alone ones that are enforceable through a civil action. ‘The Supreme Court held that, only with clear legislative permission could this specific type of statutory entitlement be enforced by individuals in a civil action, It also held that the adequacy of the remedy provided under statute, among other considerations, could provide an indication of legislative intent.” 48, Because it applied Orpen instead of Machtinger and Parry Sound, the British Columbia Court of Appeal analyzed the employment standards issue before it incorrectly, and indeed backwards. Rather than beginning with the premise that the essential effect of employment % Kolodsigjskiv. Auto Electric Service Lid, 1999 CanL.Il 12264 (S.K.C.A.) at paras, 20-21. » Beaune v. Kavert Steel and Crane ULC; 2002 ABQB 787 at paras. 78, 86 " Orpen v. Roberts, [1925] $.C.R. 364.2 standards legislation is to create an enforceable statutory contract, which is enforceable by individuals in court in a breach of contract claim (absent a clear expression of contrary legislative intent), it embarked on an unnecessary and misguided search for farther legislative intention to create a civil cause of action in the form of an inadequate enforcement regime. It unreasonably held that “the implication of terms is an adjunct to the conclusion, based on a consideration of the legislation as a whole, that the Legislature intended the rights could be enforced by civil action, a conclusion that may be derived from the absence of an effective statutory enforcement regime.”“! In fact, the opposite is true: it is because employment standards entitlements are implied by law into the employment contract that they are prima facie enforceable through an action for breach of contract. 49. The British Columbia Court of Appeal also erred in its determination that the “adequacy” of British Columbia's enforcement regime was indicative of a legislative intention to preclude employees from enforcing their statutory contracts in court. The fact that an employment standards regime may provide remedies is equally consistent with a legislative intention to promote access to justice by affording employees a meaningful choice of fora, especially considering the admonition in Machtinger that “an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not" 50. Thus, having regard to binding Supreme Court of Canada authority, Macaraeg should not be considered the law in British Columbia, The British Columbia courts are no less bound by the Supreme Court of Canada’s decisions in Machtinger and Parry Sound than other courts across Canada are. Those cases establish that employment standards protections are enforceable through * Macaraeg v. E Care Contact Centers Ltd.,2008 BCCA 182 at para. 78. © Machtinger v. Hoj Industries Ltd, {1992] | S.C.R. 986 at p. 1003,22 civil breach of action claims, regardless of the intention of the contracting parties and regardless of the adequacy of the statutory enforcement regime. It is thus not “plain and obvious” that Macaraeg correcily states the law in British Columbia, At the very least, the conflicts between Macaraeg and binding authorities from the Supreme Court of Canade leave the law of British Columbia unsettled on this point. Jourt should not conelude that the defendants have 51. Based on all of the foregoing, this established the s. 5(1)(a) “doomed to fail” threshold with respect to the plaintiffs’ breach of contract claims in British Columbia, Even if Macaraeg applies, it is not plain and obvious that, both in principle and factually, it cannot or should not be distinguished, Moreover, its application depends on factual issues that cannot be resolved under s. 5(1)(a), and it is not plain and obvious that Macaraeg was correctly decided or that it still represents the law in British Columbia. 52. Finally, even if Macaraeg somehow precludes the plaintiffs’ contractual claim based on employment standards terms implied by law, it has no effect on the plaintiffs’ other causes of action, including breach of the contractual duly of good faith, conspiracy, negligence, unjust enrichment and waiver of tort, none of which were considered in Macaraeg. Indeed, in Macaraeg, the Court itself recognized that statutory rights could be enforced through recognized causes of action, It noted, for example, that “clearly there is a common law action for wrongful termination of an employment contract,” notwithstanding the termination liability provisions in the employment standards legislation." 53. This was the approach taken in Brigaitis y. JOT Solutions Lid.,*° a recent Ontario certification decision. In that case, the plaintiffs brought numerous claims arising out of a mass Dominguez v. Northland Properties Corporation, 2012 BCSC 328 at paras. 61, 161. * Macaraeg v. E Care Contact Centers Ltd, 2008 BCCA 182 at paras. 73, 95, 97. 2014 ONSC7,23 termination of employment, including wrongful dismissal, conspiracy, negligence, inducing breach of contract, breach of fiduciary duty, and numerous statutory claims. Some of the proposed class members had already pursued administrative claims for termination and severance pay under Ontario’s Employment Standards Act, and were thus precluded by s. 97 of that legislation from pursuing a wrongful dismissal action in court the same relief. The Court rejected the defendants’ submission that those employees should thereby also be excluded from the class definition and confined fo the statutory enforeement mechanism in all respects. The Court held that this group of employees maintained the right to pursue all the remaining civil claims, such as conspiracy, negligence etc., and that the substantive jurisdiction of the Superior Court over negligence, conspiracy ete, remained intact and could not be ousted by employment standards proceedings.** 54. A similar approach was also recently taken by the British Columbia Court of Appeal in Watson v. Bank of America Corporation, which was an appeal of a certification award relating to the legality of credit card fees, notwithstanding Macaraeg. The plaintiff brought statutory claims under the federal Competition Act,” as well as common law claims in conspiracy to injure, unjust enrichment and waiver of tort, Applying a Macaraeg analysis to the administrative scheme under the Competition Act, the Court held that the plaintiff's claim for simple restitution under that legislation was precluded and, thus, could not succeed. The Court determined, however, that it was not plain and obvious that the claims for unlawful means conspiracy and unjust enrichment (in relation to that tort) could not succeed, even though those claims were based on the same provisions of the Competition Act that could not be directly enforced in a civil case. In this regard, the Court found that the tort of unlawful means conspiracy wes not identical Brigaitis v. 1QT Solutions Lie, 2014 ONSC 7 at paras. 100-23. RSC, 1985, ¢. C34.24 to the statutory claim and that it afforded a broader range of damages and remedies than the statutory claim, including punitive damages. As such, the Court concluded that “it cannot be said that the scheme for civil redress in s. 36 of the Acris a replacement for an action in common law for unlawful means conspiracy.” In the result, the application for certification was remitted to the Supreme Court of British Columbia for fresh determination in accordance with the Court of Appeal’s decision." Gili) Other causes of action (a) Negligence 55, The defendants assert that the plaintiffs do not have a claim in negligence because it is “simply a claim that the defendants breached the applicable employment standards legislation”. This is clearly inaccurate, as the particulars of the plaintiffs’ negligence claim are pleaded in extensive detail, and extend much further than the defendants’ breach of the applicable employment standards legislation.” 56. The only case cited in support of the defendant’s assertion is Knight v. Imperial Tobacco Canada Ltd., a decision that speaks primarily to the necessity of a relationship of proximity in establishing a prima facie duty of care, and clearly has no application to the plaintiffs’ claim. (b) Conspiracy 57. The defendants challenge the cause of action of unlawful means conspitacy by asserting that one of the many facts pleaded in support of the plaintiffs’ claim is incorect ~ specifically, that the defendants knew that the Tax Court of Canada's decision in MeCrimmon Holdings Lid. * Waison v. Bank of America Corporation, 2015 BCCA 362 at paras. 33, 43, 55-61 “ Fresh as Amended Statement of Claim at paras, 118-28, particularly para. 126,25 v. M.N.R.*” provides that WHL players are employees. The defendants argue that the pleading is incorrect on this point because the decision was rendered pursuant to the Income Tax Act,’ and not pursuant to employment standards legislation and there are tax decisions to the contrary. 58. An objection to the accuracy or implications of a pleaded fact is not a basis to strike a cause of action. It is, rather, once again merely a defence that is to be advanced at tral 59, Moreover, the facts as pleaded are to be accepted as true unless patently ridiculous. The facts in support of the conspiracy plea, including the fact that the defendants considered the players to be employees, are hardly patently ridiculous. 60. Following the cross-examination of David Branch, President of the Canadian Hockey League (“CHL”), on January 24, 2017, the defendants produced a document issued by Mr. Branch to all Ontario Hockey League (“OHL”) clubs entitled, “Standard Players Agreement Update to Administrative Policies” which, in or about 2014, instructs clubs, among other things, “not to use any language in referring to the Players and their Clubs that would imply an employment relationship”, to ccase treating their players as employees by issuing T4s (or the U.S. equivalents) for players’ remuneration, to cease to take ot remit tax deductions from players’ remuneration, to update their accounting records to remove references from the general ledgers to players” allowance/salaries and to replace them with accounts called “Player Expense Reimbursement” which are no longer to be processed through the club payroll system, to require all players to execute a revised SPA, and to contact the league if the Canada Revenue Agency ® [2000] T.C.5. No. 823, * RSC. 1984, c. 1 (S" Supp,),26 makes inquiries into past payroll remittances, while emphasizing the need for a “consistent and coordinated approach”. 61. With respect to whether British-Columbia-based putative class members have a tenable cause of action in conspiracy, Macaraeg is of no assistance to the defendants, An action in common law conspiracy is available for breach of a statute regardless of whether or not there exists a direct action for breach of the statute.** 62, The British Columbia Court of Appeal in Macaraeg also recognized exceptions to its decision restricting statutorily based wage claims to the tribunal. Where claims for damages for lost wages are based on common law rights, the action may proceed. In Brigaitis, * the nominate tort for wages under Ontario employment standards legislation was precluded by the statute, yet the torts of conspiracy to withhold wages, inducing breach of contract to pay wages, and an oppression remedy were certified and allowed to proceed. (©) Waiver of tort 63, In submitting that the plaintiff has not properly pleaded a claim in waiver of tort, the defendants cite one case: O'Brien v. Brad Canada Inc., wherein Justice Perell declined to certify a cause of action in waiver of tort. Justice Perell’s reasons indicate that his decision was made solely on the basis of the facts of that case, which involved tort claims which were pleaded to be worth billions of dollars on a class-wide basis, making an election of waiver of tort fs’ claim. unreasonable.® This case has no application to the plain «standard Player Agreement — Update to Administrative Policies”, Advisements and Answers from the Cross- Examination of David Branch held January 24, 2017, Brief of Transcripts and Answers to Undertakings of Western Hockey League, Tab 6B. 5 Agribrands Purina Canada Inc. x. Kasamekas, 2011 ONCA 460 at 37 * Brigatisv, 1OT, Lid. 0. as IOT Solutions, 2014 ONSC 7, 5 O'Brien v Bard Canada Inc, 2015 ONSC 2470 at paras. 161-63.27 BIDET 'IFIABLE CLASS: CPA, s. 5(1)(b) 64, The defendants allege that the plaintiffs’ proposed class definition is overbroad in various aspects, all of which are related to merits-based assessments which can only be decided on full evidentiary records at the common issues trial. 65. A proper class definition must be set out in objective terms and cannot depend on the merits of the claim or the outcome of the litigation.” The plaintifis’ proposed class definition includes all individuals with potentially common claims against the defendants and there is no objective manner in which to further narrow the class definition. . THE COMMON ISSUES: CPA, s. 5(1)(6) 66. The defendants seek to deny the existence of the plaintiffs’ proposed common issues on the sole basis that the tests for employment status differ greatly by jurisdiction. In fact, as is made abundantly clear in the plaintiffs’ main brief, nothing could be further from the truth. The tests for employment status are virtually identical across the six jurisdictions in which the WHI operates, Not only is the relevant language similar in each employment standards statute, but most of the six jurisdictions rely on the same or similar common law jurisprudence regarding the definition of employee. 67. To the extent that any of the applicable legal tests vary by jurisdiction, the common issues judge remains fully capable of deciding the common issues across the entire proposed class because the putative class members are similarly, if not identically, situated, in every province and state, with respect to all indicia of employment and aspects of their relationship with the defendant teams and the WHL. Nor do the defendants deny that they acted in common 5 Western Canadian Shopping Centers Ine, v Dutton, [2001] 2 $.C.R. 534 at para, 38, See also Warner v Stith & Nephew Ine., 2016 ABCA 223 at para. 2728 and under the direction and control of the CHL and the WHL with respect to all material aspects of the claim, @ — Amateurism 68. The defendants’ brief seems to suggest at paragraphs 20-38 that WHI players ought properly to be considered amateur athletes and therefore cannot be considered employees of their clubs. There term “amateur athlete” is not a defined legal term, and there is no legal authority for this claim. Whether or not an individual is an employee simply depends on whether they satisfy the test for being in an employment relationship. 69. The Competition Act” is one of the few legal authorities which deals with the concept of amateurism, in expressly exempting “amateur sport” from its provisions. The business of the WHI, however, does not satisfy the definition of “amateur sport”, which is defined only to include “sport in which the participants receive no remuneration for their services as participants”. All CHL players receive remuneration in the form of room and board, not to ‘mention “fees”, “allowances”, “honoraria” and playoff “bonuses” under the pre-2013 SPA, and now disguised remuneration in the form of “reimbursements” under the post-2013 SPA. 70, Even if it were accepted that “amateur athlete” is a defined legal term, which the plaintiffs deny, the plaintiffs have clearly established some basis in fact that the issue of whether WHL players hold amateur athlete status, insofar as it relates fo the common issues, can be assessed on a class-wide basis. 71. All three proposed representative plaintiffs have given evidence regarding the commonality of their WHL experiences, as well as the commonality of the differences between the professional environment of the CHL versus the environment in the lower levels of junior * Competition Act, RS.C., 1985, ©. C34, 8.6.29 hockey. For example, Travis McEvoy played for most of a season with the Spruce Grove Saints of the Alberta Junior Hockey League, a Junior “A” league, where he received no remuneration or compensation. Travis observed that WHL players collectively face more intense demands, including longer practices and workouts, more games, and longer travel times.** In response, WHL players are much more disciplined and work harder at hockey than Junior “A” players. While Travis was playing in the WEIL, his clubs all exerted much greater control over him than his Junior “A” team did, Lukas Walter noted similar experiences when playing with the Junior “B” North Delta Devils.” 72, ‘The defendants’ evidence with regard to amateurism is also presented on a common basis ~all of the issues raised in paragraphs 20-38 are discussed on a league-wide basis. D. JURISDICTION 73, Tn May 2015, the parties, by their counsel, agreed to settle all jurisdictional issues pertaining to the WHL clubs. The parties agreed on Alberta as the proper forum for certification and, if certified, the trial, In their responding brief, the defendants now dispute the existence of the agreement and ask this Court to decline to exercise its jurisdiction. @ The agreement with counsel settled jurisdiction 74, Acclass action commenced in Ontario originally named the CHL, the three leagues and all sixty teams operating under its umbrella, with the intention of certifying one class action for all CHL players across all nine provinces and three states where CHL clubs are domiciled. % Affidavit of Tra XV, Tab 4. ® Ibid, at para. 59, Supplementary Application Record, Vol. XV, Tab 4, © Affidavit of Lukas Walter, sworn June 14, 2016, at paras, 106-16, Supplementary Application Record, Vol. V, Tab 4. ©" Defendants’ Brief of Law at paras. 151-54 MeEvoy, swom November 25, 2016, a para. $8, Supplementary Application Record, Vol30 However, following discussions between counsel, all parties by their counsel agreed to avoid the prospect of multiple jurisdiction motions and appeals, and as many as thirteen possible companion class actions, by instead prosecuting: (i) the claims against the CHL, WHL and its member clubs in Alberta; (ii) the claims against the CHL, OHL and its member clubs ia Ontacio; and (iii) the claims against the CHL, QMJHL and its member clubs in Quebec. 75. Ina letter dated May 27, 2015, defence counsel agreed to the jurisdiction of Alberta and thus settled the question of the appropriate jurisdiction for the WHI defendants as follows: AAs you are aware, the WHL player contracts provide that disputes must be litigated in the province or state in which the celevant team is located, We discussed during our cal the parties agreeing to litigate the claims against the WHLL teams in the Alberta Court of Queen's Bench notwithstanding the presence of this clause. We confirm our clients’ agreement to proceed in ‘this matter. © 76. It is worthwhile observing that the defendants expressly waive choice of law provisions in the SPA in order to settle the issue of jurisdiction, 77. The same letter provides the following reservation: Please be advised that while our clients agree to the above approach, they expressly reserve to certification and, if applicable, the merits and recognition/enforcement stages of the Alberta Action all issues which may arise under the applicable laws ofthe jurisdictions whose laws the plaintiff purports to apply that affect any decision at those stages of the action. 78. The defendants’ reservation must be viewed in the context in which it was made. It does not permit the defence to challenge jurisdiction, which was the precise issue settled by the ‘agreement, 79, Upon delivery of the defence expert’s report in January 2016 from David Dunn addressing issues of comity and enforceability of a Canadian court’s judgment in the U.S., ® Asidavit of Brendan O'Grady sworn June 15, 2016, at paras. 99-105, Supplementary Application Record, Vol. VIII, Tab 12 [First O'Grady Affidavit) © Bxhibit “JUD” to the First O'Grady Affidavit, Supplementary Application Record, Vol. VIII, Tab 12130. Tbid, Supplementary Application Record, Vol. VII, Tab 12310,31 plaintiff’ counsel inquired as to whether the defendants were renouneing the agreement which settled jurisdiction, Plaintiffs’ counsel wrote the following in an email dated February 3, 2016: In my letter I asked ifthe defendants were objecting to the Court assuming jurisdiction to certify and ultimately resolve the claims against tho teams in tho United States, In response, you have reproduced a passage from a letter being the same letter where you agreed. ‘that jurisdiction would not be contested for the US teams in the WHL if we proceeded against ‘those teams in Calgary or for the US teams in the OHIL if we proceeded against those teams in ‘Toronto. Yes you reserved all issues that may arise under applicable foreign laws that determine liabitity/commonality and I understand that, That is why we hired an expert on applicable local ‘employment laws. In contrast, your expert appears to have been asked to address jurisdiction= S justify a full blown attack on the very issue we settled Respectfully, your email does not actually answer my question. You just repeated a passage from a letter which could not possibly have been directed to jurisdictional eoncems as we had Just settled them. May I please have a direct answer to a direct question? It would be much appreciated. 80. Ina reply email dated February 4, 2016, °° defence counsel provided a convoluted answer as to whether the defendants were objecting to the Court assuming jurisdiction against the teams in the United States. 81. Plaintiffs’ counsel replied in an email of the same date, repeating the question as to whether the defendants intend to challenge jurisdiction. Plaintiffs’ counsel provided a copy of McNaughton Automotive Ltd. y. Co-Operators General Insurance Co.," where the Ontario declined to certify claims against certain foreign defendants, and asked if the defendants intended to seek the same relief in this action: ‘Thank you for expanding on the purpose of the Dunn report, I appreciate the report may be | relevant to some of the certification criteria, What I am really interested in, is whether you infend to rely on the Dunn report to ask the court to dectine jurisdiction. ‘There are a number of circumstances where a court may have jurisdiction simpliciter yet will decline jurisdiction, For instance see attached decision where Haines J dectined for reasons of comity to certify the extra provincial class because the language of the legislation which was the subject maiter of the ‘ation was not the same as the Ontario version of the Insurance Act. [_am seeking assurances © Rexhibit “LLLL? to the Affidavit of Brendan O°Grady, sworn June 15, 2016, Supplementary Application Record, Yol. VII, Tab I2LLLL, © thid., Supplementary Application Record, Vol. VII, Tab 12LLLL. © MeNaughton Automotive Lid. v. Co-OperatorsGeneral Insurance Co,, [2003] 0.J. No. 2914 (Sup. Ct. I).32, that the defendants will not be requesting the court to decline jurisdiction as @ ground for ‘opposing certification. hutps:/www.charneylawyers.com/Chamey/_cases/McNaughton%20d4.PDF 82, Counsel then arranged a conference call on February 9, 2016, the contents of which are recorded in a memorandum drafted by plaintiffs’ counsel. The undisputed evidence filed on this application indicates that the defendants gave assurances that jurisdiction had been settled by agreement: ‘The thrust of the conversation was Ms, Jackson assuring me that her clients had no intention to bring any Rule 21° motions to contest jurisdiction (motions to strike pleadings) nor do her clients ‘tend to object to the jurisdiction of the Alberta or Ontario Courts...In response I said it sounded. to me like a jurisdiction argument dressed up to appear like a preferable procedure argument.” Evidently, the concerns expressed by plaintiffs’ counsel were well-founded in light of the defendants’ current position at paras. 151-154 that this Court should decline jurisdiction 83. The agreement settling jurisdiction is a contract between the parties. Given the defendants’ position that the agreement does not preclude @ direct jurisdictional challenge, it must now be interpreted by this Court in light of the “factual matrix” in which it was executed “to deepen [the Court’s} understanding of the mutual and objective intentions of the parties as jective expressed in the words of the contract.” In particular, the court should consider “ evidence of the background facts at the time of the execution of the contract” including, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.””” Exhibit “MMMM” to the Affidavit of Brendan O'Grady, sworn June 15, 2016, Supplementary Application Record, Vol. VIM, Tab 12MMMM. © This refers to a motion for determination of any issuc before tral ® Exhibit "MMMM" to the Affidavit of Brendan O°Grady, swor June 15, 2016, Supplementary Application Record, Vol, VIM, Teb 12MMMM. 1 Sattva Capital Corp. v. Creston Moly Corp. {2014] 2 SCR. 633 at para, 57-8 ” Ibid.33 84, In effect, the defence are attempting to recast the agreement which settled jurisdiction as merely an agreement to settle jurisdiction simpliciter, while reserving arguments for declining, interpretation contrasts with the factual jurisdiction based on conflict of laws principles. This liction matrix in which the agreement was made. If the agreement was limited to settling juris simplicter, the defendants would not have expressly waived the choice of venue provisions in the SPA, and defence counsel would not have given express assurances that jurisdiction was settled 85, This Court should also consider the purpose of the agreement, which was to avoid bringing separate actions in each jurisdiction (including Washington and Oregon), numerous jurisdietion challenges and appeals ~ none of which would be achieved by an agreement that leaves jurisdiction seriously at issue. It is clear that the intentions of all parties was to settle ion in May 2015, and the Court should uphold the parties’ agreement to settle Jurisdi jurisdiction and not consider the defendants’ last minute arguments in favour of declining jurisdiction, ji) The defendants attorned to the jurisdiction of Alberta ~based defendants also attorned 86, In addition to the express agreement by counsel, the U. to the territorial jurisdiction of Alberta by defending the action, The Alberta Court of Appeal has found that a party can be deemed to “have accepted and acknowledged” the jurisdiction of the court by “taking actions that are inconsistent with a denial of that jurisdiction”. For example, a party “who secks relief from the court, or otherwise takes advantage of the procedures and on protections of the court will be deemed to have attomed to the jurisdiction of the court. Likewise, this Court has found “It has been well established that implicit submission to a ® Tyylinski-Branson v. Branson, 2010 ABCA 322 at para. 26. * ia.34 jurisdiction for purposes of giving that jurisdiction authority over a lawsuit occurs when a party defends a lawsuit on the merits.””* (ili) ‘The Alberta Court holds proper jurisdiction 87. _ In the altemative, even if the defendants had not agreed to jurisdiction or had not attomed to jurisdiction, this Court properly holds jurisdiction over the action against all parties. In Club Resorts Ltd. y. Van Breda,” the Supreme Court of Canada set out the current tests for whether a Court holds jurisdiction simpliciter based on the “presumptive connecting factors”, for rebutting jurisdiction simpliciter, and for declining jurisdiction based on forum non conveniens. Three of the authorities on which the defendants rely for declining to assume jurisdiction predate Van Breda and tum on obsolete tests that were modified by Van Breda. The defendants’ final authority omits any mention of Yan Breda, and was subsequently overturned by the Ontario Court of Appeal.”” The majority in that decision confirmed that Van Breda is the guiding test “to determine whether to take jurisdiction over foreign class members”,”* 88, Before commencing the Van Breda analysis, the Court must first recognize that ‘jurisdiction may also be based on traditional grounds, like the defendant's...consent to submit to the court's jurisdiction.” The Van Breda analysis “does not oust the traditional private international law bases for court jurisdiction.” The defendants expressly consented to Alberta's jurisdiction nearly two years prior to the certification hearing, and the Court should assume jurisdiction over all claims on that basis alone. * Bansal v Ferrara Pans Candy Co Inc, 2014 ABQB 384 at para. 16; Norex Petroleum Limited v. Chubb Insurance Company of Canada, 2008 ABQB 442 at para. 49-63. ® Club Resorts Lid. ». Van Breda, [2012] 1 S.C.R, 572 ” Excalibur Special Opportunities LP y. Schwartz Levitsky Feldman LLP, 2016 ONCA 916. * rbid. at para. 34. ® Club Resoris Lid. v, Yan Breda, (2012) | S.C.R, $72 at para. 79, " 1bid,35 89, The first step of the Van Breda analysis is to consider whether any of the enumerated “presumptive connecting factors” establish a real and substantial connection between the forum and the claims.®! The presumptive connecting factors are: a, the defendant carries on business in the province; b. the tort was committed in the province; contract connected with the dispute was made in the province; and d, the defendant is domiciled or resident in the province. Additional connecting factors may be recognized in the future, based on their similarity to the established factors. 90. ‘The connecting factors are designed to guide the Courts in assuming jurisdiction in a manner compliant with “the values of order, fairness and comity”. Their application should point to a relationship between the subject matter of the litigation and the forum “such that it ‘would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum.” This goes to the essence of comity of nations. When Canadian courts assume Jurisdiction over matters to which their jurisdiction has a real and substantial connection — ie. in compliance with the established norms of private intemational law ~ foreign Courts can be expected to recognize and enforce resultant Canadian judgments. 91. While the plaintiffS are only required to establish one of the factors, all four are made out in this action, as well as a novel fifth factor. * Club Resorts Lid. v, Van Breda, [2012] 1 S.C.R. S72 at para. 90. © Ibid, at paca. 91 © Ibid, a para. 90, © Ibid .at para. 92. "Ibid.36 a. All of the defendants carry on business in Alberta. The WHI is headquartered in Calgary. All of the clubs participate in competitive games in Alberta from which they draw revenue, including through broadcasting, sponsorships and the common revenue pools shared across the league, All of the clubs also act as Governors of the league and they participate in frequent meetings in Calgary where they oversee league-wide operations, ratify policies and bylaws and plan future events in furtherance of their business operations. The clubs’ business transactions transfer capital into Alberta when purchasing franchises from the WHL and contributing to the common scholarship fund, and draw capital from Alberta when receiving funds from the CHL-NHIL Agreement or broadcasting agreements through the WHL. The Supreme Court of Canada has similarly held that “a defendant can reasonably be brought within the embrace of a foreign jurisdiction's law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction,”** which is made out on the same facts. b. The tort of conspiracy was committed by all parties in Alberta, where the Clubs and WHL participated at Board of Governor meetings and agreed to withhold player wages, as set out in the Statement of Claim, The SPAs were made in Alberta where the Commissioner of the WHL individually approved and executed each contract as a party. d. The WHI and several clubs are domiciled in Alberta. All of the players from American-based teams have claims in conspiracy against every defendant (all * Beals v, Saldanha, (2003] 3 S.CR. 416 at para. 32.37 alleged conspirators are “necessary parties” to an action®’), as well as claims against the WHL pursuant to the common employer doctrine. Notably, a defendant being domiciled in Alberta is a particularly determinative answer to the question of jurisdiction because “a defendant may always be sued in a court of the jurisdiction in which he or she is domiciled or resident (in the case of a legal person, the location of its head office)."** 92, If the plaintiffs establish a real and substantial connection for any of their claims, then “the court must assume jurisdiction over all aspects of the case.” Otherwise the “principles of fairness and efficiency” would breached by requiring plaintiffs to prosecute related claims across multiple jurisdictions.” 93. ‘The Court should also consider a novel presumptive connecting factor, which is that a governing body which oversees all defendants and determines all of the policies, procedures, rules and regulations which form the subject-matter of the litigation is located in the jurisdiction, All of the impugned conduct in this action is directed fiom WHL headquarters in Calgary, including the decision to withhold wages from players and to redraft the SPA in an attempt to obscure the players’ legal status as employees. This case cannot be understood without appreciating the guiding role of the WHLL in orchestrating and enforcing the executive decisions at the heart of this action. 94, One illustrative example of how Icague-wide operations are controlled and dictated from league headquarters is found in a directive from Commissioner Branch, entitled, “Standard © Fairhurst v. De Beers Canada Ine.,2012 BCA 251, © Club Resorts Lid. v. Van Breda, [2012] | S.C.R. 572 at para, 86. © Ibid. at para, 99, ° Ibid.38 Players Agreement Updated to Administrative Policies”.”' The document instructs clubs, among other things, “not to use any language in referring to the Players and their Clubs that would imply an employment relationship,” to cease treating players as employees by issuing T4s (or the US equivalents) for players’ remuneration, to cease to take or remit tax deductions from players" remuneration, to update their accounting records to remove references to Players allowance/salavies and replace with an account called Player Expense Reimbursement which are not to be processed through the club payroll system, to require all players to execute a revised SPA, and to contact the league if the Canada Revenue Agency makes inquiries into past payroll remittances, while emphasizing the need for a “consistent and coordinated approach”. 95. Returning to the essential question of whether it “would be reasonable to expect that the 7”? the Court’s proper defendant would be called to answer legal proceedings in that forum, jurisdiction over this action comes into focus as the defendants’ failure to provide wages is completely traceable to decisions made at the home the WHL in Calgary. 96. The second step of the Van Breda analysis is to consider rebuttals of the presumptive connecting factors, If the defendant cannot rebut every presumptive connecting factor, then the Court holds proper jurisdiction. If the defendants fail to rebut any of the presumptive connecting factors, “the Court cannot decline to exercise its jurisdiction unless the defendant{s] invoke forum non conveniens.™* 97. The Court recognized in Van Breda that rebutting the presumption of jurisdiction based on a tort committed in the jurisdiction may be possible in cases “involving a multi-jurisdictional ®" «siandard Player Agreement — Update to Administrative Policies”, Advisements and Answers from the Cross Examination of David Branch held January 24, 2017, Brief of Transcripts and Answers to Undertakings of Westem. Hockey League, Tab 6B. ® Club Resorts Lid. v. Van Breda, [2012] 1 $.C.R. S72 at para, 99, Ibid. at para. 96, % rhid. at para. 10139 tort where only a relatively minor element of the tort has occurted in the province.” The inverse applies in this action involving @ multi-jurisdictional tort where a relatively major element of conspiracy occurred in Alberta (iv) The Alberta Court should not decline jurisdiction based on forum non conveniens 98. The final step of the Van Breda analysis allows the defendants to “identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action.” ‘The defendant must establish a real and substantive connection between the claims and the alternate forum though the presumptive connecting factors, which the plaintifls may then rebut, failing which the defendants must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate, based on the following non- exhaustive list of factors: a, the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; ”” b. __ the Jaw to be applied to issues in the proceeding; ** e the desirability of avoiding multiplicity of legal proceedings; ” d. the desirability of avoiding conflicting decisions in different courts; '°° e the enforcement of an eventual judgment;!"" £ the fair and efficient working of the Canadian legal system as a whole; '"? and % Club Resorts Ltd. v. Van Breda, 2012} 1 S.C.R. 572 at para. 96. % thid. at paca, 103. ° Tid. at para. 105. % Thi, © Ibid. Ibid. "Bid, "id40 loss of juridical advantage to the plaintiffs. ' 99. ‘The defendants’ heavy burden is to show that the foreign venue is “exceptionally” or “clearly more appropriate”, meaning the alternate venue will provide a “fairer and more efficient” resolution of the claims. The terms “exceptionally” and “clearly should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed." 100. The defendants appear to suggest that proceeding in the United States would be preferable for players on American-based clubs, however there is no indication as to whether their proposal contemplates one U.S.-wide class action, two state-wide class action, five club- based state class actions, or hundreds of individual actions. This ambiguity impairs any meaningful comparison of forums. 101. Most of the enumerated factors weigh in favour of Alberta being the more appropriate, fair and efficient venue and against invoking forum non conveniens: a. The “comparative convenience and expense for the parties to the proceeding and for their witnesses” to attend a US Court is far less preferable than attending this Court, The vast majority of putative class members who play or played for U.S.- based clubs are residents of Canada, The vast majority of defendants are resident in Canada. The WHL, CHL and all of the Canadian-based clubs would be included in any conspiracy claim brought in the United States, meaning the majority of defendants would sustain the inconvenience of foreign litigation. 9 Cub Resorts Lid, v, Van Breda, (2012] 1 $.CR. 572 at para. 111. See also Toews v First Choice Canada Inc (Signature Vacations), 2016 ABQB 130 at para 58. "1 Club Resorts Ltd, v. Van Breda, (2012} 1 $.CR. $72 at para. 109, "8 Ibid "© Ibid.41 b. There is a conceivable advantage to having American courts settle disputes under ‘American law, however this Court regularly applies foreign law and the experts for both parties have agreed on the applicable legislation, common law tests to determine the threshold issue of employment or trainee/intern, More on this factor is discussed below with regards to the defence’s expert witness, c. The plaintiffs are proposing one legal proceeding whereas the defendants are proposing as many as five additional U.S.-based class actions, if not hundreds of individual actions. Bifurcating this action would also require players who were traded between clubs across the border to encounter the prospect of two or more lawsuits. 4d. The plaintiffs are proposing one proceeding leading to one decision binding all WHL players, whereas the defendants are proposing two, three or possibly hundreds of decisions which would lead to inevitable inconsistencies. €. This Court can anticipate that its judgments will be enforced in the United States because Alberta has a real and substantial connection to the claims at issue. This, is rooted in the defendants’ attorning to this jurisdiction by express agreement and by defending the action, as well as the application of every presumptive connecting factor. Alberia’s assumption of jurisdiction would embody the 1°) that foreign courts look to when requisite “values of order, fairness and comity’ enforcing Canadian judgments. Moreover, @ successful claim in conspiracy creates joint and several liability among all parties so the judgment would be collectable from defendants in Canada, as well as against the US defendants who "Chub Resorts Lid. v. Van Breda, [2012] 1 $.C.R. $72 at para. 9242 are owed money from the WHL in Canada, and collectable against the sizable responsive insurance policies produced by the defendants. The global resolution of all claims arising from the WHL would exemplify the fair and efficient working of the Canadian legal system as a whole. This is also a case with a determined class who can be directly notified about certification and their opt-out options.'* & The defendants are attempting to exploit a juridical advantage to litigating the claims in the United States. The federal American legislation provides an opt-in rather than opt-out regime, which this Court has found to constitute a loss of juridical advantage because fewer class members will inevitably participate in the action." The American proceedings may also require one plaintiff per defendant, requiring additional representative plaintiffs to come forward despite the real ‘threat of retribution fiom the hockey establishment. Moreover, many of the proposed class members would be entirely precluded from accessing justice because the limitations period has been tolled in this action sinee October 2014 but has continued to rum in the United States, Furthermore, the defence’s expert on U.S. law has opined that under American class action law, resolution may only be possible through individual lawsuits, requiring each player to incur the cost of litigation out of pocket. Far from establishing an exceptionally and clearly more appropriate venue, the defence have suggested an altemative that will preclude many if not all of the class members from accessing justice. Excalibur Special Opportunities LP v. Schwartz Levitshy Feldman LLP, 2016 ONCA 916 at para. 41 © Turner v Bell Mobility Inc, 2015 ABQB 169 at para. 19.43 102. What is pethaps most determinative of the forum non conveniens analysis is the absence of any alternative forum asserting jurisdiction. ‘There are no parallel actions seeking justice for the class members from American-based clubs, and the limitations periods for many class members has expired sinee this action was filed. The defendants are not placing before this Court a choice between two venues. The choice is between seeking justice in Alberta and no justice whatsoever. 103. Similar facts were raised in the dissenting opinion in Excalibur Special Opportunities LP v Schwartz Levitsky Feldman LLP that were adopted on appeal:'"° Jn this case, the defendant has not identified another jurisdiction that is seeking to assert {jurisdiction over this action ... Thus, if this action is to be pursued, the choice in practical terms is Ontario or nowhere. (v) Response to additional defence arguments for declining jurisdiction 104. ‘The defence expert on American law, David Dunn, has opined that the U.S. Courts would not recognize this court’s judgment, Presumably this is meant to advance an attack by forum non conveniens because “the Court cannot decline to exercise its jurisdiction unless the defendant{s] invoke forum non conveniens.”" 105. Mr, Dunn’s conclusion is unpersuasive because his analysis omits any reference to the parties’ agreement to settle jurisdiction. The Supreme Court in Van Breda deseribed such agreements as one of two “traditional private international law bases for court jurisdiction.” His analysis does not reference the foundational norm of conflicts of law which recognizes judgments made from jurisdictions to which the defendants submitted, \° scalibur Special Opportunities LP v Schwartz Levitsky Feldman LLP, 2015 ONSC 1634 (Div. Ct.) rev'd 2016 ONCA 916. " Chub Resorts Lid. v. Van Breda, (2012) 1 $.C.R. $72 at para, 101 "Thi. at para, 79.44 106. Mr, Dunn’s conclusions also draw heavily on the choice of venue clause in the SPA." He makes no reference to how defence counsel’s provided in writing that the defendants “agree to litigate the claims against the WILL teams in the Alberta Court of Queen’s Bench notwithstanding the presence of this clause.”!"* Mr, Dunn does not provide authority for the impact of choice of venue provisions expressly waived by the defendants. 107. As an additional reason American Courts may decline to enforce this Court’s judgment, Mr, Dunn also points to how the U.S, Fair Labor Standards Act (FLSA) provides an opt-in procedure for collective actions. Only substantive not procedural American law is relevant to this Court’s analysis, as this action is guided by the Alberta Rules of Court (“Obviously the court must follow its own rules of procedure; it could not function otherwise.” ''°). Regardless, Mr. Dunn suggests that that class members will not be bound by this Court’s judgment under the FLSA because the legislation requires individuals to expressly agree to be bound when participating in collective actions, However the plaintiffs’ expert, Ryan Hancock, cites appellate authority fom the Second, Third, Seventh and Ninth District Courts (ie. where all WHL clubs are located) which demonstrate how opt-out class actions seeking claims under the FLSA and under comparable state legislation regularly proceed with the opt-out model and bind all class members.!!° 108, Mr. Dunn also suggests that this Court’s judgment would not be enforced because the representative plaintiffs did not play on five of the U.S.-based clubs, and therefore lack standing against the U.S,-based defendants to bring the action at all. On this point, Mr. Dunn ignores the "8 Report of David Dunn, dated December 18, 2015, at 58-59, Defendants? Responding Application Record, Vol. Il, Tab 15. "8 exhibit “JJJJ" to the First O'Grady Affidavit, Supplementary Application Record, Vol. VILL, Tab 12513. "S Tolofeon v. Jensen, [1994] 3 S.C.R. 1022 at 1049. NS Report of Ryan A. Hancock, dated July 30, 2015 at 4, Application Record, Vol. Il, Tab 6.45 conspiracy cause of action which provides every class member with a claim against every defendant, 109, Finally, Mr. Dunn suggests that that this Court’s judgment would not be enforced because there is no precedent of American courts enforcing a foreign court's decision that “determined any issue of U.S. federal or state law.” '? He refers to the relevant law as “unsettled,” and suggests that conflicts of laws principles would be violated by the enforcement in America of a foreign judgement settling an issue of American law.'"* He explains that he was unable to find any cases for or against this proposition,''” and the defence have similarly failed to provide Canadian authority for this proposition. 110. Mr, Hancock, at his cross-examination, disagreed that the issues in this action are somehow unsettled (he used defence counsel’s phrase of “a question of first impression”), The test for employment and the exceptions for trainees/interns have been regularly applied by ‘American courts, as is evidenced by the many cases cited by Mr. Dunn, The notion that these legal tests have not previously been applied to the factual matrix of this ease does not render the issues “unsettled” or “of first impression.” Otherwise, according to Mr. Dunn’s standards, nearly every lawsuit that involves the application of law to new facts must raise “unsettled” issues which should preclude this Court from applying foreign law to be enforced abroad. 111, In their Brief of Law, the defendants suggest that another reason for declining jurisdiction is that the players on American-hased clubs could not reasonably expect to have their rights ” Report of David Dunn, dated December 18, 2015, at 54, Defendants’ Responding Application Record, Vol. 1, Tab 15. 1 rhid., Defendants? Responding Application Record, Vol. Il, Tab 15. ® Thid., Defendants’ Responding Application Record, Vol. Il, Tab 15. Transcript of Cross-Examination of Ryan Hancock held January 6, 2017 at paras. 79-80, Brief of Transcripts and Answers to Undertakings of Western Hockey League, Tab 1. "© Pid at 1720, Brief of Transcripts and Answers to Undertakings of Wester Hockey League, Tab 1.46 determined in Alberta.'?! They overstate the influence of this consideration. The Supreme Court of Canada has directed the law away from “a system of private international law based solely on ‘the expectations of the parties”! which is would “not bear the hallmarks of a rational system of law”. Furthermore, as mentioned, every player could reasonably expect his rights to be determined in Calgary where the WHL is headquartered, where all of the subject policies and procedures were issued, where the SPA is finally executed and approved, where every player participates in some games, and because most of the players are Canadian and do not reside in Washington or Oregon for more than six months out of the year and retum to Canada after completing career in the WHL. (vi) Ryan Hancock is a qualified expert witness 112. The defendants suggest that Mr. Hancock is not a qualified expert on U.S. wage and hour law. They highlight select evidence in purporting to apply the test from 2. v. Mohan that defines an expert witness as one who is “shown to have acquired a special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify." 113, The defence concede that Mr. Hancock is an expert in U.S. employment law. They suggest that his expertise is limited to one subset of employment law, employment discrimination, but not the relevant subset of wage and hour law. Mr. Hancock clearly meets the ‘Mohan standard as a qualified expert in U.S, employment law, including the subset area of wage and hour law. "1 Defendants’ Brief of Law at para. 153. "2 Cub Resorts Lid. v, Van Breda, (2012] | S.CR. 572.at para, 38 8 Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at 1049, "Defendants? Brief of Law at para. 148, "5 Ry, Mohan, (1994}2 S.C.R, 9 at para. 3147 114, In Wedig v, Gaukel,!*® the Ontario Court of Appeal admitted expert opinion evidence concerning Florida family law proffered by an attomey licensed in the state of Florida, There was no additional evidence as to that expert’s experiences or additional qualifications, nor even a curricula vitae, The Court of Appeal held that as a matter of law “the fact of his status as an attorney licensed to practise in Florida was sufficient to justify the admission of his evidence.” 115, Mr. Hancock is an attorney licensed by the United States District Court (Federal Court) for the Eastern District of Pennsylvania, the Supreme Court of Pennsylvania, and the New York State Bar. He therefore meets the minimum threshold of admissibility set out in Wedig v. Gaukel. ‘Mr. Hancock has not been admitted to any of the specific federal or state courts which preside over the U.S.-based WHL clubs, however if this renders his evidence inadmissible then it does the same for the defence’s expert witness who also has not been admitted to those courts. Mr. Heancock’s standing with the Pennsylvania Federal Court however allows him to bring a procedural pro hac vice motion to obtain at any time standing to appear before the Federal Courts in Washington or Oregon. 116, In any event, Mr, Hancock’s experience and qualifications set him well above this minimum threshold of admissibility. His curricula vitae was enclosed with his First Report, dated March 31, 2015. He graduated from law school in 2003 and, after clerking for a trial judge, has continuously worked as an employment attorney in Pennsylvania and New York, He has held the position of “Of Counsel” at Willig Williams & Davidson LLP since October 2014 where he “counsels and represents clients in matters relating to ...employee benefits, wage and hour concems, and employment agreements, including contract, negotiation, non-compete °° Wedig v. Gaukel, 2007 ONCA 521 "iid, at para, 3