ONTARIO SUPERIOR COURT OF JUSTICE. - and -

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1 ONTARIO SUPERIOR COURT OF JUSTICE Court File No. CV B E T W E E N: SAMUEL BERG - and - Plaintiff CANADIAN HOCKEY LEAGUE, ONTARIO MAJOR JUNIOR HOCKEY LEAGUE, ONTARIO HOCKEY LEAGUE, WESTERN HOCKEY LEAGUE, QUEBEC MAJOR JUNIOR HOCKEY LEAGUE INC., WINDSOR SPITFIRES INC., LONDON KNIGHTS HOCKEY INC., BARRIE COLTS JUNIOR HOCKEY LTD., BELLEVILLE SPORTS AND ENTERTAINMENT CORP., ERIE HOCKEY CLUB LIMITED, GUELPH STORM LIMITED, KINGSTON FRONTENAC HOCKEY LTD., ONTARIO INC., NIAGARA ICEDOGS HOCKEY CLUB INC., BRAMPTON BATTALION HOCKEY CLUB LTD., GENERALS HOCKEY INC., OTTAWA 67'S LIMITED PARTNERSHIP, THE OWEN SOUND ATTACK INC., PETERBOROUGH PETES LIMITED., COMPUWARE SPORTS CORPORATION, SAGINAW HOCKEY CLUB, L.L.C., ONTARIO INC c.o.b. as SARNIA STING, SOO GREYHOUNDS INC., McCRIMMON HOLDINGS, LTD. AND MANITOBA LTD., A PARTNERSHIP c.o.b. as BRANDON WHEAT KINGS., ONTARIO INC., REXALL SPORTS CORP., EHT, INC., KAMLOOPS BLAZERS HOCKEY CLUB, INC., KELOWNA ROCKETS HOCKEY ENTERPRISES LTD., HURRICANES HOCKEY LIMITED PARTNERSHIP, PRINCE ALBERT RAIDERS HOCKEY CLUB INC., BRODSKY WEST HOLDINGS LTD., REBELS SPORTS LTD., QUEEN CITY SPORTS & ENTERTAINMENT GROUP LTD., SASKATOON BLADES HOCKEY CLUB LTD., VANCOUVER JUNIOR HOCKEY LIMITED PARTNERSHIP, CANADA INC., CLUB DE HOCKEY JUNIOR MAJEUR DE BAIE-COMEAU INC., CLUB DE HOCKEY DRUMMOND INC., CAPE BRETON MAJOR JUNIOR HOCKEY CLUB LIMITED, LES OLYMPIQUES DE GATINEAU INC., HALIFAX MOOSEHEADS HOCKEY CLUB INC., CLUB HOCKEY LES REMPARTS DE QUEBEC INC., LE CLUB DE HOCKEY JUNIOR ARMADA INC., MONCTON WILDCATS HOCKEY CLUB LIMITED, LE CLUB DE HOCKEY L'OCEANIC DE RIMOUSKI INC., LES HUSKIES DE ROUYN-NORANDA INC., CANADA INC. c.o.b. as CHARLOTTETOWN ISLANDERS, LES TIGRES DE VICTORIAVILLE (1991) INC., SAINT JOHN MAJOR JUNIOR HOCKEY CLUB LIMITED, CLUB DE HOCKEY SHAWINIGAN INC., CLUB DE HOCKEY JUNIOR MAJEUR VAL D'OR INC., WEST COAST HOCKEY ENTERPRISES LTD., MEDICINE HAT TIGERS HOCKEY CLUB LTD., PORTLAND WINTER HAWKS, INC., BRETT SPORTS & ENTERTAINMENT, INC., THUNDERBIRD HOCKEY ENTERPRISES, LLC, TOP SHELF ENTERTAINMENT, INC., SWIFT CURRENT TIER 1 FRANCHISE INC., CANADA INC., LEWISTON MAINEIACS HOCKEY CLUB, INC., KITCHENER RANGERS JR A HOCKEY CLUB, SUDBURY WOLVES HOCKEY CLUB LTD., GROUPE SAGS 7-96 INC., MOOSE JAW TIER ONE HOCKEY INC. DBA MOOSE JAW WARRIORS, KOOTENAY ICE HOCKEY CLUB LTD., LETHBRIDGE HURRICANES HOCKEY CLUB, and LE TITAN ACADIE BATHURST (2013) INC./THE ACADIE BATHURST TITAN (2013) INC. Defendants

2 - 2 - Proceeding under the Class Proceedings Act, 1992, S.O. 1992, C.6 STATEMENT OF DEFENCE OF CANADIAN HOCKEY LEAGUE, ONTARIO MAJOR JUNIOR HOCKEY LEAGUE AND NIAGARA ICEDOGS HOCKEY CLUB INC. 1. This is the statement of defence of the defendants Canadian Hockey League ( CHL ), Ontario Major Junior Hockey League ( OHL ) (referred to herein collectively as the Leagues ) and Niagara IceDogs Hockey Club Inc. (referred to herein as the Niagara IceDogs or the Team ) to the individual claim of the plaintiff Samuel Berg. 2. Except as expressly admitted in this statement of defence, the defendants deny all allegations made in the Amended Consolidated Fresh Statement of Claim (the Statement of Claim ). The defendants specifically deny that the plaintiff is entitled to any of the relief that he claims. Overview 3. The CHL is the world s premier developmental hockey league. It is composed of three constituent leagues, including the OHL. The Niagara IceDogs is one of 20 teams that competes and participates in the OHL. 4. The defendants goals are to provide hockey training and development opportunities to talented adolescents; to foster their educational successes and opportunities so that players such as the plaintiff have career paths outside of hockey; to supervise and take care of them while they are living away from home; and to guide their character development as they grow into adulthood. 5. The defendants deny the fundamental premise of the plaintiff s claim that he was in an employment relationship when he trained and played with the Team. The Team s relationship with the plaintiff was not, and was never intended to be, an employment relationship. The Team s relationship with the plaintiff included a relationship of guidance, supervision, development and education. The plaintiff was an amateur athlete when he played and trained with the Team. 6. The defendants deny the allegations in the Statement of Claim that they concealed, mischaracterized, or misclassified the plaintiff s relationship with the Team. Contrary to the allegations in the Statement of Claim, there is no basis for any of the plaintiff s claims against the

3 - 3 - defendants, all of which depend on the plaintiff s characterization of his and the Team s relationship as one of employment. 7. Because the plaintiff was not in an employment relationship when he played with the Team, the defendants acknowledge that he did not receive hourly wages, overtime pay, holiday pay, or vacation pay, nor was he entitled to any such remuneration. The plaintiff did, however, receive benefits of significant value from the Team. These benefits outweighed the benefits that the Team received from the plaintiff. The Parties The CHL 8. The CHL is a non-profit corporation governed under the laws of Ontario. 9. The CHL is the governing body for major junior hockey in Canada. Major junior hockey is the premier, or top tier, level of amateur hockey in Canada for adolescent players 16 to 20 years of age. 10. The CHL is composed of three constituent leagues: the defendant OHL, the Quebec Major Junior Hockey League, and the Western Hockey League. 11. The CHL is affiliated with Hockey Canada, the national governing body for amateur hockey in Canada. Hockey Canada considers the CHL to be an amateur league and the CHL teams to offer the highest level of non-professional hockey competition in Canada, administrated as a development program under the auspices of Hockey Canada. 12. The CHL supplies more players to the National Hockey League ( NHL ) and Canadian Interuniversity Sport ( CIS ) than any other league in the world. The OHL 13. The OHL is a non-profit corporation organized under the laws of Ontario. 14. The OHL consists of major junior hockey teams based in Ontario, Michigan and Pennsylvania. The Niagara IceDogs is one of 20 teams that competes in the OHL.

4 - 4 - The Niagara IceDogs 15. The Niagara IceDogs is a corporation that is incorporated under the laws of Ontario. The Team is located in St. Catharines, Ontario. 16. The Niagara IceDogs is one of 20 teams that compete in the Ontario Hockey League ( OHL or the League ). 17. Along with the other teams that participate in the CHL and OHL, the Team provides the highest level of training and competition for amateur hockey players who show talent and promise in a multi-faceted development program that includes premier opportunities in education, supervision and character building. Samuel Berg 18. The plaintiff, Sam Berg, is a former player with the Niagara IceDogs. He played a total of eight games with the Team from September 2013 to December While participating in the Team s development program, Sam was an amateur hockey player. Sam s Limited Tenure with the Team 20. Sam only played a total of eight games with the Team from September 2013 to December Sam then quit the Team. Therefore, Sam s experiences with the Team and the Leagues are limited. Sam s Standard Player Agreement 21. Sam signed a Standard Player Agreement ( SPA ) in August 2013, when he decided to play with the Niagara IceDogs. He was 16 years old at the time. The SPA was also signed by the Team s General Manager and Sam s parents, Bill and Wendy Berg. 22. The Leagues were not parties to the SPA. However, as set out in more detail below, the SPA had to be approved by the OHL Commissioner.

5 The SPA was not a contract of employment. The defendants deny that the SPA concealed or misclassified the true nature of Sam s legal relationship with the Team. Rather, the SPA was an agreement setting out his and the Team s respective commitments to one another. In entering into the SPA, there was a mutual understanding that Sam was an amateur athlete in need of supports that are not provided to professional athletes. 24. Through the SPA, the Team committed to providing Sam with a multi-faceted development program, focused on hockey training, education, supervision and character development. The Team promised to provide him with premier hockey development opportunities in a safe and healthy environment, as well as an education development program with the supports necessary for him to maintain the educational opportunities of his choosing. In addition, the Team agreed to make available to Sam: first class, highly advanced hockey coaching, training and competitive playing experience; top of the line hockey and training equipment; supervision, guardianship, safe housing and healthy meals; education and educational supports; post-secondary scholarship benefits; leadership and community development opportunities; and medical and dental insurance coverage. 25. The Team also committed to promoting Sam s safety and well-being while he played with the Team. The Team promised to provide Sam with guidance and care and to protect his interests. In recognition of these commitments, Sam promised to play hockey exclusively with the Team. 26. Sam also agreed to meet certain minimum standards in relation to his health and fitness, his participation in League or Team sponsored events, and his conduct on and off the ice. He agreed to abide by the Team s rules relating to curfew, the use of tobacco, drugs and alcohol,

6 - 6 - attendance at school, and community service and training. These commitments were designed to promote his safety and well-being while he participated in the League. 27. Sam s commitments in this regard did not amount to an agreement to provide employment services in exchange for remuneration. Sam was an amateur athlete when he played and trained with the Team. The mutual commitments made through the SPA were reflective of all of the aspects of the relationship that existed between the Team and Sam which included a relationship of guidance, supervision, development and education. 28. Contrary to the allegations in the Statement of Claim, the terms of Sam s SPA were not controlled by or dictated by the CHL. Instead, Sam s SPA contained some standard terms set by the OHL and other terms that he negotiated and agreed to with the Team. For example, Sam negotiated a term with the Team whereby he would receive an additional travel allowance of $200 per month. This provision was not standard in all SPAs, but was a term negotiated by Sam and the Team. Further, as set out in more detail below, Sam negotiated for a more advantageous scholarship package than was otherwise standard. Scholarship Benefit 29. In the OHL, at a minimum, each player is eligible for a one-year scholarship covering tuition, text books and compulsory fees for each season played. The dollar value of the scholarship is based on the cost to attend the university closest to a player s parents residential address (though players can use their scholarship toward any undergraduate degree, diploma or trade certificate at any recognized post-secondary institution of their choice and are reimbursed for actual expenses incurred). 30. The OHL Scholarship Program provides players with a comprehensive scholarship for post-secondary schooling. The purpose of the program is to ensure that players in all of the OHL teams have a meaningful opportunity to attend post-secondary school after they graduate from the League. The Team was responsible for providing Sam s benefits under the OHL Scholarship Program. 31. Sam s SPA provided for an enhanced scholarship benefit. Sam was eligible for a fouryear scholarship upon playing in one OHL exhibition or regular season game, regardless of

7 - 7 - whether he became injured, failed to demonstrate sufficient skill and ability to deserve a position as a player with the Team or was expelled or suspended by the OHL; provided he did not default under the Agreement, including by refusing to play or refusing to obey by the rules of the CHL or the Team concerning training and the conduct of players. As set out in more detail, below, Sam ultimately defaulted by quitting the Team. 32. In addition to providing Sam with a scholarship benefit, the SPA also provided that the Team would pay for his current education expenses while playing with the Team, including tuition fees, book expenses and the costs of tutoring for high school or post-secondary courses of his choosing. Approval of Sam s SPA 33. Sam s SPA was signed and approved by the Commissioner of the OHL. Contrary to plaintiff s allegations, the purpose for this approval was to ensure that the OHL maintains consistency with respect to the minimum level of supports and benefits that the teams in the League provide to players. This consistency is designed to maintain a competitive balance across the League to ensure a premier hockey development opportunity for all players regardless of the team with which they play. The SPA must be approved by the Commissioner of the OHL to have continuing effect. 34. In December 2013, the Team and the League informed Sam and his parents that Schedule C of his SPA needed to be amended prior to League approval. Specifically, that Schedule C required two changes: (a) (b) the inclusion of pursuant to the deletion of Clauses 8.4, 12(c) and 12(d) of the OHL Standard Player Agreement at Clause 2 of Schedule C; and the removal of the world irrevocable. 35. These changes were needed to ensure that Sam could still collect his scholarship benefit in the event of injury while playing for the Team, suspension, or failure to demonstrate sufficient skill and ability to deserve a position as a player with the Team.

8 The revised SPA was signed by Sam, his parents and the Team on December 31, 2013 and was subsequently approved by the League on January 17, Contrary to the allegations at paragraph 41 of the Statement of Claim, the League did not unilaterally revise Schedule C of Sam s SPA in January 2014 to reduce his scholarship benefit package from four years to half a year. As discussed in more detail below, the fact that Sam defaulted by quitting the Team was the basis of denial for further scholarship payments. 38. Also contrary to the allegations at paragraph 41 of the Statement of Claim, Sam was not injured prior to the revision of his SPA. As discussed in more detail below, the defendant denies that Sam ever suffered any injury. Alternatively, if Sam did suffer an injury, the injury occurred in January 2014, after his SPA had already been signed by Sam and the Team and sent to the League for approval on December 31, Sam s Practice and Game Schedule with the Team 39. The allegations in the Statement of Claim misstate the number of hours that Sam was required to spend practicing and playing hockey with the Team. During his approximately four months with the team, Sam was required to spend on average six days a week practicing or playing hockey. On average, on the days that Sam spent practicing or playing hockey, he was required to spend between two and a half to five hours a day on hockey development. 40. On game days, Sam was required to spend about two and a half hours playing hockey, two hours of preparation, stretching, warming up or skating and approximately half an hour of postgame cool down time. On non-game days, Sam, was required to spend about an hour and a half practicing with the Team and was occasionally also required to participate in a Team workout or stretch that lasted about an hour. 41. The Team plays 68 regular season games each season. As pleaded above, Sam only played in eight of these games during the season. Sam played four games at the Team s home arena in St. Catharines and four games away from St. Catharines. The four away games were in Kingston, Ottawa, Windsor and Guelph. Games played away from the Team s home arena in St. Catharines would require additional travel time. However, the Team would not play away games every week, and therefore did not travel every week.

9 As part of the benefits that the Team made available to Sam, he and his teammates were given access to the Team s training and workout facilities. Sam was not required by the Team to attend at the workout facilities outside of the Team-scheduled workouts, but players nonetheless often choose to spend much of their free time taking advantage of those facilities to further their own development. 43. Contrary to the allegations in paragraphs 33 and 34 of the Statement of Claim, on average, during his approximately four months with the team, the total time that Sam was required to devote to Team-related practices, games, events or other commitments amounted to between 20 to 25 hours per week. Sam s total travel time during his entire tenure with the Team was approximately 22 hours. The Team denies that Sam ever spent up to 12 hours a day or up to 44 hours per week on Team commitments, as he alleges. Sam s Community Involvement with the Team 44. In addition to hockey activities, the Team s players take part in occasional community activities. 45. These events are designed to assist and engage the community and to promote players development as contributing members of society. An important part of the Team s development program is character development. Among the ways the Team delivers on this promise is by organizing community events to develop players leadership skills and foster their sense of community stewardship. 46. These activities are voluntary, and not every player participates. Participation in community activities does not amount to more than three or four hours a month. 47. Because of his short time with the Team, Sam never participated in any community events with the Team. Academic Opportunities Provided to Sam by the Team 48. The Team provided its high school players with tutoring and academic counselling, if needed. The Team paid for any education expenses, including tuition fees, book expenses and the costs of tutoring for its players in high school.

10 Because of his short time with the Team, Sam did not take full advantage of these academic opportunities while playing with the Team. 50. Had he remained with the Team following graduation from high school, Sam would have had access to funding for any post-secondary courses of his choosing, tutoring and other forms of academic assistance Sam may have required while with the Team. Other Benefits Provided to Sam by the Team 51. As pleaded above, Sam only played eight games with the Team and was with the Team for only a few months. Therefore, his experience cannot be considered complete or representative of the typical player. 52. In addition to the opportunities provided to Sam above, the Team also provided several other benefits to their players throughout the year. These are benefits that would have been available to Sam throughout the year if he had played with the Team for a longer period of time. 53. The Team developed close relationships with their players families to ensure each player was receiving the appropriate hockey and personal developmental experience, catered to their individual and specific needs. 54. The Team matched players with billet families. Billet families are selected by the teams and the players families as appropriate caregivers for the players while they are away from home. All billet families go through background checks and must meet minimum criteria, such as providing a stable family environment, appropriate supervision and support, access to computers, and private bedrooms. Sam lived at home with his own parents and therefore did not take part in the billeting program. 55. Beyond the monthly stipend the Team provided to its players billets for groceries and personal amenities, the Team provided Sam and all of their players with reimbursements for certain personal expenses. Contrary to the plaintiff s claim, no taxes or payroll deductions were ever taken from the players reimbursements. The Team has never issued a T4 and has never taken and payroll deductions or withholdings from the players. This reimbursement was not consideration for Sam s employment services. Instead, the League determined that creating a standard reimbursement

11 amount for players, as set out in the SPAs, would facilitate the teams payment of players meal and training expenses that were not otherwise covered by the teams or billet families. 56. The Team purchased all of Sam s hockey equipment for him. The cost to the Team of purchasing Sam s equipment was approximately $6, On top of the medical and dental insurance that the Team provided to Sam, the Team paid for the provision of top-end medical supports for Sam and all of their players while he trained with the Team. In addition to medical doctors and dentists who provided care and referral services to the players, the Team had team trainers on staff to assist Sam with his hockey training and development. The Team made available special rehabilitation services in the event that Sam had been injured while training or playing hockey with the Team. 58. Finally, the Team provided Sam and his teammates with character development. Beyond the community events the Team organized for the players to encourage their personal growth, leadership abilities and connections with the St. Catharines community, the Team organized development programs for Sam and his teammates ranging from the Project Shutout Hunger initiative to the anti-bullying campaign spearheaded by the Team throughout the larger community. Sam s Departure from the Team 59. Sam began the season playing for the Team in September He was not one of the more skilled players on the Team, and therefore did not receive large amounts of playing time. 60. At Sam s request, the Team attempted to trade Sam to another OHL team where he would possibly receive more playing time. However, when there was no interest from other teams, Sam informed the Team that he would rather leave the OHL and join the United States Hockey League ( USHL ). 61. The Team worked with the USHL to release Sam from the OHL to the USHL. However, after the release agreement had been agreed upon, Sam informed the USHL that he would not be joining them and was no longer playing hockey.

12 A few weeks later, in November 2013, the Team discovered that Sam had joined the St. Catharines Falcons of the Greater Ontario Junior Hockey League ( GOJHL ), a Junior B team that played at a less competitive level than the Team. The Team was not involved in Sam s joining the St. Catharines Falcons. 63. In December 2013, the Team learned that, at Sam s request once again, the Falcons had traded him to another GOJHL team, the Thorold Blackhawks. 64. While with Thorold, Sam played four games. During his fourth game with Thorold on January 2, 2014, Sam received a major penalty and was subsequently suspended for one game. The Team learned that after this game, Sam quit playing for Thorold. Sam did not play hockey for any team after his final game with Thorold. 65. There is no record of any alleged injury sustained by Sam prior to his quitting hockey. Alternatively, if Sam did sustain any injury, it occurred after he, his parents and the Team signed the revised SPA, and while playing with Thorold. 66. In August 2014, the Team invited Sam to attend their 2014 training camp. Sam did not reply and did not attend the training camp. 67. Sam s actions, as set out above, indicated that he had quit the Team. 68. By quitting the Team, Sam forfeited his scholarship benefit under the terms of his SPA. Quitting the Team triggered clause 12.1(a) and (b) of his SPA, Schedule A. These clauses read: 12.1 The Club may terminate the present agreement (subject to paragraph 12.2) upon notice to the Player in any of the following cases: a) if the Player defaults or refuses or neglects to provide the services agreed upon in this agreement; b) If the Player defaults, or refuses or neglects to obey the rules established by the OHL or the Club concerning training and the conduct of Players; No Breach of a Contract of Employment: No Employment Relationship 69. Sam s claim for breach of contract of employment should be dismissed. Sam was not, and was not intended to be, an employee of the Team, and he was not engaged in any activity that

13 constituted compensable work. Sam s SPA was accordingly not a contract of employment and the Team was under no obligation to compensate him hourly wages, overtime pay, holiday pay, or vacation pay under any employment standards legislation. 70. The defendants deny that the facts set out in paragraph 82 of the Statement of Claim establish that Sam was an employee of the Team. The defendants deny that any misclassification of his actual relationship with the Team occurred. Sam s actual relationship with the Team included a relationship of guidance, supervision, development and education. Sam was an amateur athlete when he played and trained with the Team. 71. Relationship of guidance, supervision, development and education. The Team s coaching staff, trainers and management, supervised Sam s daily routine while he trained with the Team. For example, the Team s staff provided guidance with respect to Sam s nutrition and daily meals, his hockey training and studies. 72. The Team s staff provided him with care, support, education and encouragement. 73. Amateur athletic relationship. Sam was an amateur hockey player during his time with the Team. He was not entitled to be compensated for playing hockey. Instead, the focus of Sam s relationship with the Niagara IceDogs was on his own training and development. 74. The defendants deny the allegation that the Team s exercise of control over Sam amounted to an employment relationship. Rather, the elements of control pleaded in the Statement of Claim are features of an amateur athletic relationship. Alternative to Employment Relationship: Trainee or Intern Relationship 75. In the alternative to Sam s claim that he was in an employment relationship with the Team, the defendants plead that he was a trainee or intern within the meaning of the Employment Standards Act, 2000, S.O. 2000, c Sam s training was similar to that which would have been provided to him in an educational environment. Training with the Team was provided to Sam for his own benefit in order to develop his hockey skills, as well as, to give him growth opportunities in education and character development. The benefits Sam derived from his time with the Team outweigh the benefits the

14 Team received. In fact, at certain times, the Team s operations may have been impeded by Sam s training. In providing Sam with training, the Team did not derive any immediate advantages. 77. While Sam played with the Team, he did not displace any regular employees, but instead trained under the close supervision of the Team s training and coaching staff. The trainers and coaches directed his training and experience. 78. Although training with the Team provided Sam with the most competitive amateur hockey experience in North America and the greatest odds of being selected by an NHL team, Sam was not entitled to a job with the Team or with any professional hockey league at the conclusion of his training. 79. The parties to the SPA acknowledged his non-employee status at the outset of his training. The Team and Sam acknowledged and agreed that Sam was not in an employment relationship with the Team. No Liability for the Common Law Claims 80. The balance of Sam s claims are common law claims that depend upon a finding that he was in an employment relationship with the Team. The defendants deny the existence of such a relationship. There is accordingly no basis for any of the plaintiff s common law claims in breach of contract, breach of contractual duties of honesty, good faith and fair dealing, negligence, conspiracy, unjust enrichment, or waiver of tort. There is also no basis for the plaintiff s claim of officers or directors liability. No Breach of Contractual Duties of Honesty, Good Faith and Fair Dealing 81. The Leagues were not parties to the SPA. There is no privity of contract with the Leagues. Therefore, there can be no liability on the part of the Leagues for breach of contractual duties. 82. The Team was a party to the SPA and specifically denies liability for breaching any contractual duties of honesty, good faith or fair dealing. 83. The Team and Sam entered into an SPA that clearly sets out both parties respective commitments to one another. The SPA complies with all relevant laws and accurately characterizes

15 the relationship between Sam and the Team as a relationship of guidance, supervision, development and education, indicative of an amateur athletic relationship, or in the alternative, an intern or trainee relationship. The SPA does not misclassify the plaintiff. 84. Schedule C of Sam s SPA allowed for the plaintiff and Team to negotiate certain permissible benefits. The parents of every player must sign the SPA along with their son, regardless of their son s age, just as Sam s parents signed his SPA. Sam was represented by an agent and was able to obtain legal advice before signing the SPA. There was no imbalance in bargaining power. No Conspiracy 85. The defendants deny all allegations of conspiracy and any liability that flows from these allegations. 86. The defendants did not act in concert to demand or require that the plaintiff sign the SPA, knowing that the SPA constituted an unlawful agreement in violation of the Ontario Employment Standards Act, The SPA is not unlawful and the relationship between the plaintiff and the Team is not one of employment. No Negligence 87. The defendants deny that they were negligent. They have not breached any applicable duty or standard of care owed to Sam. No Unjust Enrichment or Waiver of Tort 88. The defendants deny that they have been unjustly enriched, and the plaintiff has suffered a deprivation, as a result of the failure to pay Sam wages and benefits. 89. As pleaded above, the plaintiff did not enter into an employment relationship with the Team. The Team is thus not required to pay employment wages and benefits. 90. The defendants deny that they have committed any unlawful acts by which they have been unjustly enriched. There is no basis for the claim for unjust enrichment or waiver of tort.

16 No Officers and Directors Liability 91. The Team s officers and directors are not parties to this action. 92. In any event, the Team denies that its officers and directors have any liability for unpaid wages owing to Sam. No such wages are owing. Sam was not an employee of the Team. No Entitlement to Tuition Costs 93. The Team denies that Sam is entitled to any tuition costs or scholarship benefit. 94. As pleaded above, Sam quit playing for the Team after eight games. Sam quit playing hockey altogether in January When Sam was sent an invitation to re-join the Team in August 2014, he did not reply, further supporting that he had quit the Team. 95. When Sam quit the Team, he triggered clauses 12.1(a) and (b) of his SPA, Schedule A. These clauses allowed the Team to terminate his SPA if he defaults, refuses or neglects to provide the services agreed upon in this agreement. 96. Therefore, Sam was no longer entitled to any of the benefits provided by the Team or the League through his SPA, including the four year scholarship benefit. 97. Notwithstanding this fact, and prior to the start of this litigation, Sam was provided with a one year scholarship benefit on a gratuitous basis. No Entitlement to Damages or Other Relief 98. The defendants deny that Sam is entitled to any of the relief sought in the Statement of Claim, or any other relief. 99. The defendants specifically deny that Sam is entitled to punitive, aggravated or exemplary damages. Certification 100. The defendants deny that this case is appropriate for class certification.

17 In the alternative, the defendants reserve the right to amend this statement of defence if certification is granted. Dismissal of Claim 102. The defendants ask that this action be dismissed with costs. May 19, 2016 Torys LLP 79 Wellington St. W., Suite 3000 Box 270, TD Centre Toronto, ON M5K 1N2 Fax: Patricia D.S. Jackson (LSUC #: 18466S) Tel: Lisa Talbot (LSUC #: 44672I) Tel: Irfan Kara (LSUC #: 65945J) Tel: Lawyers for the Defendants TO: CHARNEY LAWYERS 151 Bloor Street West Suite 602 Toronto, Ontario M5S 1P7 Fax: Theodore P. Charney Samantha D. Schreiber Tel: Lawyers for the Plaintiff

18 SAM BERG v. CANADIAN HOCKEY LEAGUE. et al. Plaintiff Defendants Court File No. CV ONTARIO SUPERIOR COURT OF JUSTICE Proceeding commenced at TORONTO STATEMENT OF DEFENCE Torys LLP 79 Wellington St. W., Suite 3000 Box 270, TD Centre Toronto, ON M5K 1N2 Fax: Patricia D.S. Jackson (LSUC #: 18466S) Tel: Lisa Talbot (LSUC #: 44672I) Tel: Irfan Kara (LSUC #: 65945J) Tel: Lawyers for the Defendants