Sports Law Update: McEwan v Canadian Hockey League 2022 BCSC 1104

Articles | Mon 26th Sep, 2022

Introduction

Amateur sport ought to be a positive and safe experience. It should not cause physical harm beyond unavoidable hazards. The Whyte review, released earlier this year (see here for a summary), indicated that British Gymnastics fell well short of these principles. These allegations are not limited to the United Kingdom. In Canada, the former captain of the Kelowna Rockets’, Mr. James McEwan, has commenced litigation against the Canadian Hockey League for allegedly promoting violence and fighting among underage players. He alleges that he suffered concussions as a result of this fight, and in doing so, has begun to experience depression, anxiety, mood swings, memory loss, confusion, angry outbursts and suicidal thoughts.

In the recent judgment of McEwan v Canadian Hockey League 2022 BCSC 1104, the Defendant applied, inter alia, to challenge the admissibility of an expert opinion on amateur sports management adduced by the Claimant. The principles of admissibility of expert evidence under Canadian law are similar to that under CPR 35.1. Accordingly, this article shall address the facts, the judgment and finally useful points of comment for English practitioners.

Factual Background

The Claimant alleged that the Defendant had perpetuated an environment which ‘permitted, condoned and encouraged…fighting and violence in the game among the underage players that they are obliged to protect”. It was alleged that the Defendant had created a culture which sanctioned assault and had the power to end this culture. Accordingly, it was alleged that the long-term brain injuries they suffered as a result of the on-ice fights was caused by the negligence of the Defendant.

The Claimant sought to rely on the report of Dr. Arthur Banning, a professor at Clemston University specialising in amateur sports management. The report identified several professional standards and best practices for reducing facial injuries, including forcing players to wear face masks and imposing penalties relating to the misuse of sticks. Specifically, he opined that the Defendant failed to alter their stance on fighting in affiliated leagues, thus allowing for greater potential for athlete injuries. The Defendant challenged several aspects of Dr. Banning’s report. The three main challenges to the report were as follows:

1. He was not a properly qualified expert.
2. The report attempted to opine on the duty of care, which was outside of his expertise.
3. The report was unreliable because it was not based on a recognised discipline.

Judgment

The Supreme Court of British Columbia dismissed the defendants’ objections to the admissibility of the expert report. The Honourable Madam Justice Sharma gave judgment.

Lack of proper qualifications

The Defendant alleged that Dr. Banning was not a properly qualified expert because his expertise related to recreation management. Further, they averred that he lacked qualifications and specific publications in best practice and professional standards for injury prevention.

The Supreme Court disagreed with the Defendant. Dr. Banning had a PhD focused on youth sports, a Master of Science with a focus on sports medicine and a Bachelor of Science in Physical Education. He had taught sports management for over 15 years, as well as conducting and disseminating research relevant to sports management in youth development. While his lack of specific publications may affect the weight attached to his opinion, it did not disqualify him as an expert.

Opining on the Duty of Care

The Defendant submitted that the report was unnecessary because it attempted to opine on the duty of care, which was the role of the court. This was given short shrift by the Supreme Court. Dr. Banning was merely providing literature and an opinion regarding the relevant standard of care which was outside the scope of an ordinary person.

The report was not based on a recognised discipline

The Defendant submitted that Dr. Banning’s report was based on a discipline which had no meaningful quality assurance standards. This was also rejected by the Supreme Court. Dr. Banning’s report merely described existing literature addressing a possible relationship between various sports management regimes and injury prevention. Past practices (rules, politics, and education) may be helpful to a judge to determine the appropriate standard of care and did not constitute a ‘novel science’.

Comment

There are two points of interest which English personal injury practitioners can take from this Canadian judgment. First, practitioners must be careful to distinguish between challenging the admissibility of expert evidence, and challenging the weight attached to such opinion. The Supreme Court identified that the two questions should not be elided. The mere fact that an expert has not published a journal article on the specific issue does not detract from their standing as an expert in their field.

Second, it is a persuasive authority on the value of sports management as expert evidence in such assault claims. The study of sports management involves a consideration of policies and practices to minimise injuries in amateur sports leagues. The Supreme Court identified that the consideration of these issues as expert evidence is linked to the nature and scope of the duty and standard of care of organisations that operate such leagues. Accordingly, this authority is highly relevant to an English practitioner involved in allegations of assault, bullying and harassment in sport.