Court File No. 05-CV-287601PD3

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID BURT and GARD SHELLEY

Applicants

-and-

BRIAN O‘NEILL and IAN MORRISON Being Trustees of the Trust established by Lord Stanley on March 18, 1892 and THE

Respondents

AFFIDAVIT OF PAUL KITCHEN

I, Paul Kitchen of the City of Ottawa, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:

1. I am a hockey historian and have reviewed the literature and source documents pertaining to the history of the (the —Cup“). I have appended my resume as Exhibit —A“, which outlines my relevant experience.

2. I was a professional librarian for the National Library of from 1964 to 1975 and Executive Director for the Canadian Library Association from 1975 to 1985. I then started a consulting firm œ Paul Kitchen and Associates œ and offered parliamentary affairs consulting services from 1985 to 1998.

3. I have also been actively involved in the Society for International Hockey Research (—SIHR“): as a member from 1993 to the present, as President of the Society from 1996 to 2000, and as Chair of the Society's Origins of Hockey Committee from 2000 to the present. In - 2 -

addition, I have written numerous articles and made numerous presentations on hockey history. Most recently, I was a historical consultant to CBC-TV for People‘s History of Hockey. As such, I have knowledge of the matters to which I hereinafter depose and where that knowledge is based on information and/or belief, I have indicated the source of that knowledge and believe it to be true.

4. I have been asked to review the available literature and provide the Court with historical information on the original gift of the Stanley Cup, the terms of the Stanley Trust, the appointment of trustees, the evolution of the awarding of the Stanley Cup, any agreements reflecting the use of the Cup, any documents reflective of the actions of the trustees since 1947, and the actions of the trustees and the National Hockey League in 1947.

5. I have been provided with and have reviewed the affidavit of David Burt, sworn April 12, 2005, and various historical documents from the archives, and Library and Archives Canada, as well as some documents from my own collection, some provided by counsel and some by Fred Hosking, President of Public History Inc., a history research firm.

The Creation of the Stanley Cup Trust

6. Lord Stanley was appointed Governor General of Canada by Queen Victoria in 1888. Once he arrived in Ottawa, Lord Stanley, and his family, soon became devoted fans of the Ottawa club. The Stanleys were more than simply fans of the game. The Honourable Arthur Stanley, one of the Governor General‘s sons, helped to found the present Ontario Hockey Association. The Stanleys‘ involvement in the game of hockey is described in The Stanley Cup Story by Henry Roxborough, and copies of the relevant pages are attached as Exhibit —B“.

7. At that time, the game was in its infancy, with few leagues, disparate rules and no clear way to determine the champion of the Dominion. The state of the game at the time is described in The Stanley Cup Story by Henry Roxborough, and copies of the relevant pages are attached as Exhibit —C“.

8. On March 18, 1892, Lord Kilcoursie, an aide to Lord Stanley of Preston, the then Governor General of Canada, responded to the toast of the Governor General at a banquet in Ottawa by reading out a letter written by Lord Stanley. It stated: - 3 -

I have for some time past been thinking that it would be a good thing if there were a challenge cup which should be held from year to year by the champion hockey team in the Dominion.

There does not appear to be any such outward and visible sign of championship at present, and considering the general interest which the matches now elicit, and the importance of having the game played fairly and under rules generally recognized, I am willing to give a cup which shall be held from year to year by the winning team.

I am not quite certain that the present regulations governing the arrangement of matches give entire satisfaction and it would be worth considering whether they could not be arranged so that each team would play once at home and once at the place where their opponents hail from.

This letter was reproduced in an Ottawa Citizen article and an Ottawa Journal article, both from March 19, 1892, copies of which are attached as Exhibit —D“ and Exhibit —E“. This version of the words of Lord Stanley differs slightly from the version on the NHL website œ referred to by David Burt in his affidavit œ and I believe the Ottawa Citizen/Ottawa Journal version to be the accurate one. However, the differences between the two versions are not significant for the purposes of this application.

9. As was also recorded in the Ottawa Citizen article from March 19, 1892 (Exhibit —D“), Lord Stanley then contacted Captain Colville, his aide then in London, , and commissioned him to order a cup. As Lord Stanley‘s Military Secretary, Captain Colville was under the employ of the Governor General‘s Office.

10. Captain Colville was permitted to expend ten guineas on a gold-lined silver bowl, standing on an ebony base. In 1992, the Stanley Cup was authenticated by Robert C. Parks, a valuer, and his authentication is attached as Exhibit —F“. According to Mr. Parks, the bowl was made in Sheffield, England and purchased from G.H. Collis, a retailer on Regent Street, London. The bowl was inscribed with —From Stanley of Preston“ and —Dominion Hockey Challenge Cup“. I am advised by Mr. Hosking and believe that the name of the retailer who sold the silver bowl to Captain Colville was in fact G.R. Collis & Co.

11. Though I have not found a record of who actually paid for the Cup, it is likely that Captain Colville paid for it using funds from the Governor General‘s Office. Captain Colville was in England at the time. He was a public servant and would not have paid for the Cup personally. The Governor General‘s office more than likely had the means to reimburse public - 4 -

servants for expenditures made in the course of their duties. However, I am advised by Mr. Hosking and believe that he directed members of his staff at Public History Inc. to research the records of Lord Stanley, Lord Kilcoursie and Captain Colville to determine how the Cup was paid for, and their research did not disclose any record of the purchase of the Cup.

12. Apart from the issue of payment, I also note that the Cup was donated by Lord Stanley while he was Governor General of Canada. In addition, the inscriptions on the Cup and the fact that Lord Stanley left before the Cup was first awarded indicate that Lord Stanley donated the Cup in his capacity as Governor General, rather than as a private citizen. I do not believe that the Cup would have had the national importance of a —Dominion Hockey Challenge Cup“ if a private citizen had donated it.

13. Lord Stanley appointed the first two trustees of the Cup: Sheriff John Sweetland and Mr. Philip Dansken Ross, both of whom were Ottawa sportsmen. This appointment was recorded in an article from the Gazette on February 23, 1894, a copy of which is attached as Exhibit —G“.

14. Before Lord Stanley returned to England, he stipulated some conditions for the awarding of the Cup. These conditions are set out in the Montreal Gazette article of May 1, 1893 a copy of which is attached as Exhibit —H“. The conditions were:

(1) The winners to give bond for the return of the cup in good order, when required by the trustees for the purpose of being handed over to any other team who may in turn win.

(2) Each winning team to have at their own charge, engraved on a silver ring fitted on the cup for the purpose, the name of the team and the year won. (In the first instance the M.A.A.A. will find the cup already engraved for them.)

(3) The cup shall remain a challenge cup, and will not become the property of any team, even if won more than once.

(4) In case of any doubt as to the title of any club to claim the position of champions, the cup shall be held or awarded by the trustees as they may think right, their decision being absolute.

(5) Should either trustee resign or otherwise drop out, the remaining trustee shall nominate a substitute. - 5 -

15. Lord Stanley also asked the trustees to suggest some way to make the Cup open to all in the Dominion, rather than one specific hockey association. This request was recorded in the Montreal Gazette article of May 1, 1893 (Exhibit —H“), as are the suggestions they accordingly made.

16. The trustees also developed regulations or principles for dealing with challenges and matches. These were published for the first time in an Ottawa Journal article from January 6, 1903, a copy of which is attached as Exhibit —I“.

The Evolution of the Stanley Cup Trust

17. In the first few years of the Cup, amateur hockey teams challenged for the Cup. In fact, at the time that Lord Stanley donated the Cup, there were no professional hockey teams.

18. However, in 1907 the Eastern Canada Amateur Hockey Association, the premier senior league, formally began allowing professionals to participate. In 1909 the league became fully professional and dropped the word "Amateur" from its name. This shift from amateur to professional is outlined in The Trail of the Stanley Cup, by Charles L. Coleman, and copies of the relevant pages are attached as Exhibit —J“.

19. The ascendancy of professional hockey was noted by P.D. Ross, an original trustee, in a letter to Sir John Hanbury Williams, an aide to Earl Gray, the Governor General of Canada from 1904 to 1911. In that letter of January 15, 1909 œ a copy of which is attached as Exhibit —K“ œ Mr. Ross responded to a suggestion that Earl Gray should —donate a cup emblematic of the championship in amateur hockey in Canada.“ Mr. Ross stated as follows:

my idea is that the time is perhaps yet premature for the offer of such a trophy. Professionalism is at present dominant in the Canadian hockey world, and although there is a revolt against it, the amateur movement has not yet proved its strength. A cup given to amateur hockey at present would be overshadowed by the Stanley cup, and its position would not do justice to His Excellency‘s generosity.

Further, it is quite possible, and I think probable, that if amateur hockey makes headway and recovers anything like its old status, the trustees of the Stanley Cup would be willing to withdraw that trophy from professional competition.

20. One month after Ross stated his misgivings, Montreal businessman Sir Montagu Allan did, in fact, donate a new trophy exclusively for senior amateur competition. The donation of - 6 -

this cup was reported in a Montreal Gazette article from February 20, 1909 and reproduced on the Library and Archives Canada web site and copies of the relevant pages are attached as Exhibit —L“.

21. In 1910, a new professional league, the National Hockey Association (NHA), began play and from then through 1913 the NHA champion competed against the champions of other professional leagues for the Cup. In 1914, the Stanley Cup series became an annual competition between the top teams of the two leading professional leagues, the NHA and the Pacific Coast Hockey Association (PCHA). This annual east/west series ended in 1926 when the successor league to the PCHA, the Western Hockey League, dissolved. Since the National Hockey League, which replaced the NHA, was the only remaining premier professional league, it was no longer possible to have premier-level, inter-league competition for the Cup. Therefore, beginning in 1927 the Stanley Cup was awarded to the champion of the NHL. These events are outlined in Total Hockey: The Official Encyclopedia of the National Hockey League, edited by Dan Diamond, and copies of the relevant pages are attached as Exhibit —M“.

22. I am aware that Morey Holzman and Joseph Nieforth, in their book Deceptions and Doublecross: How the NHL conquered hockey, describe the following events, which I have not researched independently. In the autumn of 1926, Frank Calder, the President of the NHL at the time, convinced the heads of the four leading amateur leagues to assume minor pro status in return for the right to challenge for the Stanley Cup. Calder also convinced them to sign an agreement making him commissioner of hockey œ a role that then-trustee of the Stanley Cup William Foran had held for the previous ten years. According to Holzman and Nieforth, the purpose of this agreement was to undercut the power of the Stanley Cup trustees and to ensure that the winner of the NHL playoffs be automatically named the winner of the Stanley Cup, as Calder never intended to uphold his end of the bargain. Copies of the relevant pages of the book are attached as Exhibit —N“.

23. Since 1970, the Stanley Cup has been on display in the Hockey Hall of Fame. The National Hockey League uses a facsimile presentation cup for ceremonies and display at the Hockey Hall of Fame and elsewhere, as well as a replica Cup, which is displayed at the Hall when the presentation cup is travelling.

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The Relationship between the Stanley Cup Trustees and the NHL

24. On June 30, 1947, the relationship between the trustees of the Stanley Cup and the NHL was formalised in a Memorandum of Agreement signed by P.D. Ross and J. Cooper Smeaton, the Cup trustees, and C.S. Campbell, NHL President at the time. A copy of this Agreement is attached as Exhibit —O“ and was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives; I believe it to be authentic. The Agreement states, inter alia, that

• the right and title to the original trophy and the collars added down to 1926 are the property of the Trustees (from the preamble);

• the trustees delegate to the league —full authority to determine and amend the conditions of competition for the Stanley Cup, including the qualifications of challengers, the appointment of officials, the apportionment and distributions of all gate receipts, provided always that the winners of the trophy shall be the acknowledged World's Professional Hockey Champions“ (paragraph 1);

• the trustees agree not to —acknowledge or accept any challenge for the Stanley Cup unless such challenge is in conformity with [the NHL's full authority to determine the conditions of competition for the Stanley Cup]“ (paragraph 2);

• the trustees agree that the agreement would be in force —so long as the League continues to be the world‘s leading professional hockey league as determined by its playing calibre, and in the event of dissolution or other termination of the National Hockey League, the Stanley Cup shall revert to the custody of the trustees“ (paragraph 5); and

• —in the event of default in the appointment of a new trustee by the surviving trustee, the —Trustees“ hereby delegate and appoint the Governors of the International Hockey Hall of Fame in Kingston, Ontario, to name two Canadian trustees to carry on under the terms of the original trust, and in conformity with this agreement“ (paragraph 6). - 8 -

25. As early as 1961, the possibility of supplementary agreements was discussed by the Trustees and the NHL. For example, an amendment which would delegate to the Hockey Hall of Fame (CNE) the powers entrusted previously to the Governors of the International Hockey Hall of Fame in Kingston was suggested by C.S. Campbell in a letter to Cooper Smeaton and Mervyn Dutton, dated November 22, 1961. A copy of this letter is attached as Exhibit —P“ and was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives, and I believe it to be authentic. To my knowledge, no such supplementary agreement was entered into at that time.

26. After receiving this letter, it appears that Cooper Smeaton sought a legal opinion regarding the proposed amendment and the trusteeship of the Stanley Cup generally. This opinion was provided by Frank B. Common, Q.C., and a copy of a draft opinion œ dated March 15, 1965 œ is attached as Exhibit —Q“. This copy was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives, and I believe it to be authentic.

27. With respect to the trusteeship more generally, Mr. Common made, the following comments, amongst others (Exhibit —Q“):

it is apparent that the trustees in the performance of their duties have aviled [sic.] themselves of the co-operation of the National Hockey League and that the trustees have permitted the cup in more recent years to be awarded not to the champion hockey club in the Dominion but to the champion hockey club of the National Hockey League…

Although the provisions of the not presently available deed of gift appear to have been departed from to a material degree, it is not clear to me just how these past departures could be rectified, nor is it clear to me that any party or parties have suffered prejudice therefrom.

28. With respect to the proposed amendment, Mr. Common stated as follows (Exhibit —Q“):

It is not clear to me … that the trustees from a purely legal standpoint would be qualified or authorized to enter into the covenant in paragraph 6 of the agreement of 30th June, 1947 or into a like covenant in a new supplementary agreement delegating like powers to the Committee of the Hockey Hall of Fame (CNE) or to the Hockey Hall of Fame as such unless the latter were qualified to become and were appointed as a/or the new trustee of the Stanley Cup in the event of default in the appointment of a new trustee by the surviving trustee of the Stanley Cup.

29. This legal opinion was provided to C.S. Campbell of the NHL. Mr. Campbell acknowledged receipt of the opinion in a letter to Cooper Smeaton dated March 23, 1965. A - 9 -

copy of this letter is attached as Exhibit —R“ and was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives, and I believe it to be authentic.

30. A preliminary draft of a new agreement between the Trustees and the NHL was drafted by Mr. Common and forwarded to Cooper Smeaton. Reference to this draft is made in a letter to Cooper Smeaton from Mr. Common, dated November 23, 1966. A copy of this letter is attached as Exhibit —S“ and was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives, and I believe it to be authentic. To my knowledge, no such new agreement was entered into at that time.

31. I understand that an amendment to the agreement was made in 2000. I have not seen the amending agreement, but understand that it is minor.

The Trustees Lose Effective Control of the Stanley Cup

32. In a letter to Cooper Smeaton dated June 20, 1966, Mervyn Dutton expressed concern about the possible expansion of the NHL into Europe, and the impact of such an expansion on the Stanley Cup. A copy of this letter is attached as Exhibit —T“ and was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives, and I believe it to be authentic. In this letter, Mr. Dutton stated:

…since coming home and giving some thought to the intended expansion of the National Hockey League and while going through the 1965-66 national Hockey League guide on page 26 it stated in the second paragraph that it [the Cup] is under the exclusive control of the National Hockey League. I am a little concerned regarding the obligations in the event that there is a future expansion of the National League to include European teams and in the event that the and should discontinue to be a member of the National League. This does not appear to be probable but it is not impossible and I would like to have your reactions.

33. In 1973 and 2004, the NHL registered trademarks in the name —Stanley Cup“ and in the Stanley Cup design, claiming that the trademarks had been used in Canada in respect of —entertainment services through scheduled contests“ since at least as early as 1926. Trademark registrations from the Canadian Trade-Marks Database œ obtained on-line œ are attached as Exhibits —U“ to —W“.

34. The exclusive use of the term —Stanley Cup“ has been defended by the NHL. For example, the applicants‘ counsel has provided me with a 1995 British Columbia Court of Appeal - 1 0 -

case involving the NHL‘s attempt to prevent Pepsi Cola Ltd. from running a contest which involved the Stanley Cup Play-offs. A copy of this case is attached as Exhibit —X“.

35. By 1976, Mervyn Dutton expressed serious concerns about the lack of control that he and Cooper Smeaton had over the Cup. These concerns were contained in a letter Mr. Dutton wrote to Mr. Smeaton on July 20, 1977. A copy of this letter is attached as Exhibit —Y“ and was obtained by the applicants‘ counsel at the Hockey Hall of Fame archives, and I believe it to be authentic. In this letter Mr. Dutton states:

… I can see why Clarence [Campbell, NHL President] has not given much consideration to the Trusteeship as it gives the N.H.L. a pretty good hold on the Cup.

I cannot see that you and I have very much say in what happens. God knows we have not had much to do with it in the past and it would appear that we are not going to have much to do with it in the future. I am not going to worry any more and I don‘t think you should.

36. I am not aware of any court orders approving the actions of the trustees of the Cup regarding the agreements that the trustees entered into with the NHL, the use of the Cup, the passing of accounts, or any reports from the NHL concerning the apportionment and distribution of gate receipts1. More generally, I am not aware of any reports made by the NHL to the trustees on the NHL‘s registration and use of the Stanley Cup trademarks.

37. I swear this affidavit in support of this application and for no other or improper purpose.

SWORN BEFORE ME ) ) at the City of Ottawa, ) ) in the Province of Ontario, ) Paul Kitchen ) this 2nd day of May, 2005. ) ) ) ) A Commissioner for Taking Affidavits

1 The 1947 Agreement (Exhibit —O“) makes reference to —the apportionment and distribution of all gate receipts“ in paragraph 1.

DAVID BURT and GARD SHELLEY -and- BRIAN O‘NEILL and IAN MORRISON, et al. Applicants Respondents

Court File No. 05-CV-287601PD3

ONTARIO SUPERIOR COURT OF JUSTICE

PROCEEDING COMMENCED AT TORONTO

AFFIDAVIT OF PAUL KITCHEN

The Flatiron Building 49 Wellington Street East Toronto, Ontario M5E 1C9

Tim Gilbert (LSUC #30665U) Tel: (416) 703-1100 Fax: (416) 703-7422

Solicitors for the Applicants