A proposed class action in Alberta raises the issue of whether Western Hockey League (“WHL”) players are employees and should be paid a salary in accordance with employment standards legislation.[1] Two decisions decided in that proposed class action consider interesting issues regarding the admissibility of certain interview evidence (the “Admissibility Decision”)[2] and the plaintiff’s entitlement to financial disclosure prior to certification (the “Financial Disclosure Decision”).[3]

Background

The proposed representative plaintiff, Lukas Walter, is a former WHL player for the Tri-City Americans. The WHL and its umbrella organization, the Canadian Hockey League (“CHL”) are both named as defendants in the proposed class action, as are the owners of the individual WHL and CHL teams. Currently, the WHL and CHL consider that their players are student-athletes. As such, many players receive a stipend rather than a salary.[4] The plaintiff argues that they are legally employees, and that the WHL and CHL teams are in breach of employment standards legislation by not paying their players a salary.

The plaintiff has applied to certify the action in the Alberta Court of Queen’s Bench under the Class Proceedings Act, SA 2003, c C-16.5. Two preliminary decisions were recently released by Justice Hall: the first decision, released on October 20, 2016, relates to the admissibility of affidavit evidence that allegedly included inadmissible opinion, hearsay, or was inadmissible for other reasons.[5] The second decision, released on October 28, 2016, relates to disclosure of financial materials.[6]

The Admissibility Decision

The admissibility of an affidavit and a declaration were challenged on various grounds, including that they contained inadmissible opinion evidence, hearsay, and did not disclose the source of information relied upon where the affidavit was based on information and belief. In both cases, the evidence included interviews with persons who were, at the time of the interviews, current or former CHL players.

The first affidavit included the affiant’s Master of Arts thesis entitled “A Struggle Against the Odds: Understanding the Lived Experiences of Canadian Hockey League (CHL) Players”. In the course of preparing her thesis, the first affiant interviewed eleven unidentified CHL players. However, the Court found that this evidence was inadmissible as being argumentative opinion given by a non-expert. Further, the Court found that the questions posed to the players in the Master’s thesis demonstrated bias and were inconsistent and unfocused, therefore they could not be deemed to be “survey” questions.

The declaration made by the second witness received more favourable treatment by the Court. The declarant had a Ph.D. in industrial/organizational psychology and had extensive experience studying aspects of wage and hour compliance. His evidence was adduced for the purpose of comparing the similarity of variability between different putative class members. The survey questions were logically structured to allow the expert to opine on the degree of similarity of players’ experiences in the CHL. The issue of anonymity was not determinative; although the identities of the players were unknown to the expert, the Court found that the players’ fear of recrimination was genuine and reasonably based. As such, even though the interviews were conducted on an anonymous basis, the declaration was held to be admissible.

The Financial Disclosure Decision

Although none of the defendants had pleaded in their Statements of Defence that they could not afford to pay the players as employees, much of their affidavit evidence emphasized this point. The plaintiff brought an application for disclosure of all relevant financial statements before cross-examining on the affidavits because it was anticipated that the request would not be granted in any event. The defendants argued that the application was premature, as the plaintiffs were seeking document discovery prior to Certification. The Court disagreed with the defendants, noting that it “short circuits the necessity for a sham examination on affidavits before the application is brought, and conserves court time and litigation expense.”[7]

The Court found that the defendants, through their filed affidavits, had raised the issue of the league’s financial viability and the effect that paying wages to its players may have on such viability. The Court ordered production of financial statements and tax returns for all WHL teams, all WHL revenue-sharing agreements and other WHL revenue-generating agreements and the source documents for any statistical conclusions made in affidavits. Although the defendants argued that they should not have to produce financial documentation for those WHL teams that had not provided affidavits, the Court found that this would “allow the Defendants to cherry pick which teams provide financial statements and which do not.”[8]

The Ontario Hockey League (“OHL”) was not listed as a defendant; however, affidavits from OHL teams had been filed. The Court ordered production for the OHL teams as well, unless the defendants chose to withdraw those affidavits.[9] Given the parallel proceedings in Ontario, the defendants may strategically choose to withdraw those affidavits.

Conclusion

The first decision in Walter v Western Hockey League supports the proposition that survey evidence can be admissible in class proceedings, even if it contains hearsay and is derived from anonymous survey respondents, provided that the questions are crafted in an impartial manner and are relevant to the issue of commonality between putative class members. The second decision demonstrates that a defence raised primarily through affidavits may leave the defendant vulnerable to relatively onerous requests for information and documents.