Executive Summary: Key Legal and Evidentiary Issues

• The appellants (Hockey Organizations) challenged a case management judge's refusal to allow cross-examinations on affidavits filed in support of certification of a proposed class proceeding involving concussion-related injuries.

• Central to the dispute is whether the junior hockey leagues fostered a "culture" of fighting and violence that put players at risk for chronic traumatic encephalopathy (CTE).

• Appellants argued cross-examination was necessary to probe evidentiary gaps regarding commonality and the "some basis in fact" standard for certification across 60+ teams, three leagues, and 51 years.

• Whether the case management judge applied the correct legal test for cross-examination at the pre-certification stage, or adopted an overly restrictive or deferential approach, was a key issue on appeal.

• Potential delay to the already protracted litigation was raised by the judge as a factor in denying leave to cross-examine, which the appellants contended was partly caused by the court's own delay.

• The Court of Appeal held the judge's discretionary decision was entitled to heightened deference given her role as case management judge over six years and found no legal error warranting appellate intervention.

Background and parties involved

This case arises from a putative class proceeding brought by James Johnathon McEwan, a former junior hockey player, as the representative plaintiff on behalf of players who allegedly suffered concussion-type injuries from fights during hockey games. The defendants are the Canadian Hockey League (CHL), the Western Hockey League (WHL), the Ontario Hockey League (OHL), the Quebec Major Junior Hockey League (QMJHL), and Hockey Canada (collectively, the "Hockey Organizations"). The proposed class covers every player who played in these three leagues under the CHL umbrella from August 21, 1974, until a date to be fixed by the court.

The plaintiff's allegations

McEwan's claim alleges that the Hockey Organizations knew or ought to have known that they were putting players at risk for chronic traumatic encephalopathy (CTE) from concussions related to hockey fights. A central allegation is that the Leagues created a "culture" of fighting and violence, particularly with respect to "enforcers"—players who were rewarded for instigating and engaging in fights—including the plaintiff himself. In May 2021, the plaintiff delivered the certification record, supported by affidavits from former players and two experts.

The defendants' response and the cross-examination application

In March 2023, the Hockey Organizations filed their response to the certification application, supported by 14 affidavits. They argued these affidavits provided a complete answer to McEwan's claim by demonstrating: the CHL did not have a culture of fighting and violence; very few players would qualify as enforcers; and players showing signs of concussions were not allowed to continue playing. The appellants then applied for leave to cross-examine four players and one of the two experts—Dr. Skye Arthur-Banning, a professor of Amateur Sport Management at Clemson University, South Carolina—on their affidavits. The case management judge dismissed the application.

The appeal and grounds raised

The Hockey Organizations appealed to the British Columbia Court of Appeal, arguing the judge erred by misapprehending their arguments, misapplying the test for cross-examination in a pre-certification class proceeding, giving excessive deference to the trial court regarding the type of evidence that may be weighed at certification, and finding that cross-examination would cause undue delay. They contended cross-examination was necessary to fill gaps in the plaintiff's evidence to assess whether the allegations of a fighting culture, deficient medical care, and deficient education on fighting, violence, and neurological injuries were sufficiently common across all players, all teams, and all Leagues to meet the commonality and preferable procedure criteria for certification.

The appellants' reliance on the Carcillo decisions

The appellants drew a parallel to the Ontario courts' reasoning in Carcillo v. Canadian Hockey League, 2023 ONSC 886, affirmed in Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652 (only affirmed with respect to the analysis of the preferable procedure criterion). Those decisions concerned a proposed class action involving alleged hazing in different hockey leagues where certification was denied, relying in part on the absence of a single culture among the leagues or a systemic wrong by the leagues. The certification judge in that case held that the action was "about at least 65 cultures" and presupposed that "all the Defendants systemically share the same virulent culture of Canadian amateur hockey." The appellants argued that McEwan's case raised identical concerns regarding the breadth of the proposed class.

The Court of Appeal's analysis on the merits

Justice Winteringham, writing for the unanimous Court of Appeal, addressed each ground of appeal. On the first ground—whether the judge misapprehended the appellants' submissions—the Court found the judge was "fully engaged and responsive" to the appellants' arguments about why cross-examination was relevant to certification issues and simply did not accept them. On the second ground, regarding the "some basis in fact" standard, the Court agreed with the respondent that the judge was not required to expressly label or articulate the commonality analysis as a "one-step" or "two-step" analysis. The judge's conclusion that the proposed cross-examination would not assist the Court at certification was described as "thoroughly reasoned and entitled to deference." On the standard of deference applied to evidence, the Court found the judge performed the necessary gatekeeping function, having already assessed Dr. Arthur-Banning's report during a prior strike application and found it "has a baseline reliability" and was relevant to certification. As for the legal test applied, the Court determined the judge correctly set out and applied the legal framework governing leave to cross-examine and did not narrow her analysis as the appellants alleged.

The delay issue

Regarding delay, the Court acknowledged the appellants' contention that the judge raised the issue of her own volition and contrary to the parties' submissions. The appellants argued in their factum that the delay only arose because the judge took seven months to release her decision. However, the Court held that delay is a recognized relevant factor in applications for leave to cross-examine affiants prior to certification hearings. As the case management judge who had been managing the proceeding and knew its history, she was in the best position to assess whether the proceeding would be delayed by an order permitting cross-examination. The Court found she did not fall into error when she included delay, among her other comprehensive reasons, as a basis for denying leave to cross-examine the affiants.

Ruling and outcome

The Court of Appeal unanimously dismissed the appeal. Justices Dickson and Brundrett concurred with Justice Winteringham's reasons. The Court held that the case management judge's conclusions were "well within the range of reasonable outcomes in the exercise of her discretion," that she applied the correct legal principles, carefully reviewed the record including the 14 responding affidavits filed by the appellants, and exercised her discretion in the context of a proposed class proceeding she had been managing for some time. The appeal resulted in a victory for the respondent, James Johnathon McEwan. No specific monetary amount was awarded or ordered in this decision, as the appeal concerned a pre-certification procedural matter—namely, the refusal to permit cross-examinations—rather than a substantive determination on the merits or damages.