Kelowna enforcer case against hockey leagues to move to next stage

Enforcer suit inches forward

Photo: Kelowna Rockets

James McEwan back in 2010.

A class action lawsuit brought forth by a Kelowna man claiming the Canadian Hockey League put players at risk for concussion-related injuries and fostered a culture of fighting is one step closer to its day in court.

James Johnathon McEwan played an enforcer’s role during four WHL seasons and engaged in dozens of fights. In 2019, he launched a notice of class action on behalf of other players, claiming junior hockey leagues failed to enforce protocols for handling concussions. It’s been years since that filing but a decision from the B.C. Court of Appeal published Tuesday indicates some momentum.

The highest court in the province dismissed an application by the Canadian Hockey League seeking permission to cross-examine several witnesses that have offered evidence before a certification hearing of the proposed class action suit.

Certification is a court process that determines whether a lawsuit can proceed as a class action.

The league argued further questioning was needed of the four former players and one expert whose affidavits supported the class action. Lawyers on behalf of the leagues said they wanted to test the evidence and show the proposed class was too broad and lacked common issues, according to the decision.

The case management judge initially refused the request, finding the proposed cross-examinations would mainly address credibility and the weight of evidence. These, the judge said, were matters for trial, not certification and could delay the proceedings.

That decision was challenged, but the Court of Appeal upheld it, citing, among other things, deference to the judge who had managed the complex case for years, as well as no legal error, misapprehension of arguments, or improper application of the test for cross-examination.

The appeals court also found that delay was a relevant factor.

The case will proceed toward the certification stage without the requested cross-examinations.

The CHL is an umbrella organization for the three major junior hockey leagues in North America that are also named. They include the Western Hockey League, Ontario Hockey League and Quebec Major Junior Hockey League. Players in the leagues are between 16 and 20 years old.

McEwan, who was born and raised in Kelowna, played in the WHL between 2004 and 2008, beginning at age 17 with the Seattle Thunderbirds. He played for the Kelowna Rockets from 2006 to 2008 and was team captain during the 2007-2008 season. During his time in the CHL he was involved in countless fights, and he claims the coaches and managers of the teams he played for “encouraged, praised, and rewarded” him for fighting.

McEwan says he turned to alcohol and pain medications to cope with his symptoms. He says he would never have engaged in so many fights during his time in the league if he had been aware of the long-term side effects.

He never made it to the NHL, but played in the East Coast Hockey League and American Hockey League after leaving Kelowna in 2008, before he retired in 2014.

McEwan says he's met many other former players who have “ongoing issues” as a result of their fighting.