Court File No.

/N° du dossier du greffe: CV-22-00676272-0000

Court File No.:

ONTARIO
SUPERIOR COURT OF JUSTICE
Electronically issued
: 03-Feb-2022
Délivré par voie
B Eélectronique
T W E E N:
Toronto

MARCUS DIDIANO, GREG DIDIANO, JOSIE DIDIANO,

ADAM DIDIANO and DYLAN DIDIANO

Plaintiffs

- and -

JOSHUA DRESSLER, NICK TUZZOLINO, AARON WALLACE, JOHN JARACZ,

NIAGARA FRONTIER HOCKEY CLUB operating as BUFFALO JUNIOR SABRES,
USA HOCKEY, INC., ONTARIO JUNIOR A HOCKEY LEAGUE operating as
ONTARIO JUNIOR HOCKEY LEAGUE, ONTARIO HOCKEY ASSOCIATION,
ONTARIO HOCKEY FEDERATION and HOCKEY CANADA

Defendants

STATEMENT OF CLAIM

TO THE DEFENDANT(S):

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the

plaintiffs. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario Lawyer acting

for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil
Procedure, serve it on the plaintiffs’ lawyer or, where the plaintiffs do not have a lawyer, serve it
on the plaintiffs and file it, with proof of service, in this court office, WITHIN TWENTY DAYS
after this Statement of Claim is served on you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of
America, the period for serving and filing your Statement of Defence is forty days. If you are
served outside Canada and the United States of America, the period is sixty days.

Instead of serving and filing a Statement of Defence, you may serve and file a Notice of
Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to
ten more days within which to serve and file your Statement of Defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN

AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHIS NOTICE TO YOU. If
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you wish to defend this proceeding but are unable to pay legal fees, Legal Aid may be available to
you by contacting a local Legal Aid office.

TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it

has not been set down for trial or terminated by any means within five years after the action was
commenced unless otherwise ordered by the court.

Date: Issued by: __________________________

Registrar

Address of Court Office:

330 University Avenue
Toronto, Ontario, M5G 1R8

TO: JOSHUA DRESSLER

40 Park Meadow Drive
West Seneca, NY USA 14224

AND
TO: NICK TUZZOLINO
100 Washington Street
Buffalo, NY USA 14203

AND
TO: AARON WALLACE
Address to be Determined
Buffalo, NY USA

AND
TO: JOHN JARACZ
Address to be Determined
Buffalo, NY USA

AND
TO: ONTARIO JUNIOR A HOCKEY LEAGUE
Po Box 38090 Castlewood Stn.
Toronto, ON M5N 3A8

AND
TO: ONTARIO HOCKEY ASSOCIATION
1425 Bishop Street, Unit 2
Cambridge, ON N1R 6J9

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AND
TO: ONTARIO HOCKEY FEDERATION
400 Sheldon Drive, Unit 9
Cambridge, ON N1T 2H9

AND
TO: HOCKEY CANADA
RA Centre
2451 Riverside Drive
Ottawa, ON K1H 7X7

AND
TO: NIAGARA FRONTIER HOCKEY CLUB O/A BUFFALO JUNIOR SABRES
100 Washington Street
Buffalo, NY USA 14203

AND
TO: USA HOCKEY INC.
1775 Bob Johnson Drive
Colorado Springs, CO 80906-4090

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CLAIM

1. The plaintiffs claim:

(a) general and special damages in the amount of $18,000,000.00;

(b) damages pursuant to the Family Law Act, R.SO. 1990, c.F.3 in the amount of
$1,500,000.00;
(c) aggravated and/or punitive damages in the amount of $500,000.00;
(d) pre-judgment and post-judgment interest pursuant to the Courts of Justice Act,
R.S.O. 1990, Chapter C. 43, as amended;
(e) costs of this action on a substantial indemnity basis, together with applicable
Harmonized Sales Tax payable pursuant to the provisions of the Excise Tax Act,
R.S.C. 1990, c. E-15, as amended; and
(f) such further and other relief as this Honourable Court may deem just.

THE PARTIES

2. The plaintiff, Marcus Didiano (hereinafter “Marcus”), resides in the City of Toronto, in
the Province of Ontario, and was at all material times a playing member of the Milton Menace
Hockey Club, a team competing in the Ontario Junior Hockey League.

3. The plaintiffs, Josie Didiano and Greg Didiano, are Marcus’ mother and father,
respectively. The plaintiffs, Adam Didiano and Dylan Didiano, are Marcus’ brothers. These
plaintiffs make their claims pursuant to s.61 of the Family Law Act, R.S.O. 1990 c.F.3, as amended.

4. The defendant, the Ontario Junior A Hockey League, operating as the Ontario Junior
Hockey League (“the OJHL”), is a Junior A hockey league operating in the Province of Ontario.
It is incorporated pursuant to the laws of Ontario and at all material times was comprised of twenty
two (22) separate and independent teams, each of which operated in the Province of Ontario, with
the sole exception being the Buffalo Junior Sabres. The OJHL was responsible for implementing
and enforcing policies, procedures and training applicable to all of its own employees as well as
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its member teams and their players, coaches and employees, to ensure the safety and well-being of
players involved in OJHL activities.

5. The defendant, the Ontario Hockey Association (“the OHA”), is an association of amateur
hockey leagues and is the governing body for most senior and junior hockey leagues operating in
the Province of Ontario. It is incorporated pursuant to the laws of Ontario and at all material times
was comprised of four different leagues including 116 separate and independent teams, each of
which operated in the Province of Ontario, with the sole exception being the Buffalo Junior Sabres.
The OHA is, and was at all material times, the governing body of the OJHL. The OHA was
responsible for implementing and enforcing policies, procedures and training applicable to all of
its own employees as well as its member leagues and their member teams, players, coaches and
employees, to ensure the safety and well-being of players involved in OHA governed activities.

6. The defendant, the Ontario Hockey Federation (“the OHF”), is a provincial organization
which governs hockey organizations and leagues in the Province of Ontario, including the OHA
and the OJHL. It is incorporated pursuant to the laws of Ontario and at all material times was
comprised of dozens of hockey leagues and associations including hundreds of separate and
independent teams, all of which operated in the Province of Ontario, with the sole exception being
the Buffalo Junior Sabres. The OHF was responsible for implementing and enforcing policies,
procedures and training applicable to all of its own employees as well as its member leagues and
associations and their member teams, players, coaches and employees, to ensure the safety and
well-being of players involved in OHF governed activities.

7. The defendant, Hockey Canada, is a federal organization which governs hockey

organizations and leagues throughout Canada, including the OHA, the OHF and the OJHL. It is
incorporated pursuant to the laws of Canada and at all material times was comprised of dozens of
hockey leagues and associations including thousands of separate and independent teams and
hundreds of thousands of players. Hockey Canada was at all material times responsible for
implementing and enforcing policies, procedures and training applicable to all of its own
employees as well as its member leagues and associations and their member teams, players,
coaches and employees, to ensure the safety and well-being of players involved in Hockey Canada
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governed activities.

8. The defendant, Joshua Dressler (“Dressler”), is a resident of the Town of West Seneca in
the State of New York, in the United States of America, and was at all material times a playing
member of the Buffalo Junior Sabres Hockey Club, a team competing in the OJHL. As a member
of the Buffalo Junior Sabres Hockey Club, Dressler was required to, and did, regularly play in
Ontario. Half the games played by Dressler during the 2019 to 2020 season were played in Ontario
and all of the games played that season were against Ontario based teams competing in the OJHL.

9. The defendant, Nick Tuzzolino (“Tuzzolino”), is a resident of the City of Buffalo, or one
of its surrounding communities, in the State of New York, in the United States of America, and
was at all material times the general manager and coach of the Buffalo Junior Sabres Hockey Club,
a team competing in the OJHL. As the coach of the Buffalo Junior Sabres Hockey Club, Tuzzolino
was required to, and did, regularly coach in Ontario. Half the Junior Sabres games coached by
Tuzzolino during the 2019 to 2020 season were played in Ontario and all of the games coached by
Tuzzolino that season were against Ontario based teams competing in the OJHL.

10. The defendants, Aaron Wallace (“Wallace”) and John Jaracz (“Jaracz”), were referees
assigned to officiate an OJHL game on February 17, 2020, at the KeyBank Centre in the City of
Buffalo, New York. Wallace and Jarancz were, at all material times, employees or agents of one
or more of the other defendants, for whom those defendants are vicariously liable.

11. The defendant, Niagara Frontier Junior Hockey Club Inc., operating as Buffalo Junior
Sabres (“the Junior Sabres”), is a company incorporated pursuant to the laws of the State of New
York in the United States of America and carries on business in the City of Buffalo, New York, as
a junior hockey club competing in the OJHL. Half of the Junior Sabres’ games during the 2019 to
2020 season were played in Ontario and all of the games played that season were against Ontario
based teams competing in the OJHL.

12. The defendant, USA Hockey, Inc. (“USA Hockey”) is a corporation incorporated pursuant
to the laws of the United States of America and/or the State of Colorado, is the national governing

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body for ice hockey in the United States of America, including the Junior Sabres. USA Hockey
was at all material times responsible for implementing and enforcing policies, procedures and
training applicable to all of its own employees as well as its member leagues and associations and
their member teams, players, coaches and employees, to ensure the safety and well-being of players
involved in USA Hockey governed activities.

13. The Junior Sabres, USA Hockey, Hockey Canada, the OJHL, OHA and OHF, or some of
those defendants, entered into an agreement pursuant to which the Junior Sabres were, at all
material times, permitted to play and compete in the OJHL. The specific terms and conditions of
that agreement have not been provided to the plaintiffs, but those terms include provision for the
Junior Sabres to carry on business in Ontario and to be governed by the rules, policies and practices
of the OJHL, OHA, OHF and Hockey Canada at all times. The agreement also includes express
or implied terms requiring any claims for bodily injury arising out of OJHL games played in
Buffalo to be litigated in Ontario and governed by the laws of Ontario.

14. This statement of claim is being served on Dressler, Tuzzolino, Jaracz, Wallace, the Junior
Sabres and USA Hockey outside Ontario pursuant to rule 17.02(p) as they are and were, at all
material times and in the context of this action, persons regularly carrying on business in Ontario
by virtue of their membership and participation in the OJHL, including games held in Ontario.

THE INCIDENT

15. On February 17, 2020, the Buffalo Junior Sabres hosted an OJHL game against the Milton
Menace Hockey Club. Marcus was playing for the Milton team and Dressler was playing for the
Buffalo Junior Sabres. With less than a minute left to play Marcus had control of the puck and
was skating toward the back of the Buffalo goal when Dressler charged him from behind and
illegally slammed Marcus head first into the boards, in contravention of Rule 6.4 of the Hockey
Canada Playing Rules (“the Rules”) against checking from behind. Marcus sustained serious,
permanent, life-changing injuries as set out below.

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16. Rule 6.4 of the Rules states:

A Minor penalty and a Game Misconduct penalty or a Major penalty and a Game Misconduct
penalty, at the discretion of the Referee, based on the degree of violence of the impact
(emphasis in original), shall be assessed any player who intentionally pushes, body-checks,
cross-checks while in motion or otherwise hits an opposing player from behind, anywhere
on the ice.
If a player is injured, a Major penalty and a Game Misconduct penalty must be assessed. A
Match penalty could also be assessed under this rule.

17. Further, the Rules incorporate “Additional Guidelines to All Officials” with respect to Rule
6.4, which include:

There are sufficient rules in the Hockey Canada Playing Rules to cover most situations that
may lead to spinal injuries. Referees should be aware of the tragic consequences of such
injuries and strictly enforce the rules in situations such as the following:
1. Where a player along the boards, with their head down looking for the puck or
“digging the puck out,” is hit from behind and driven head first into the boards with the
head and neck in a flexed position.

18. Marcus was skating along the boards with the puck when Dressler body-checked him from
behind and drove him headfirst into the boards with his head and neck in a flexed position. Though
the play by Dressler was a clear, egregious violation of the Rules, which required the assessment
of a major penalty and a game misconduct against Dressler, he was not penalized by Jaracz or
Wallace.

19. Subsequently, the OJHL investigated the incident and suspended Dressler for eight games.

20. At the time Dressler was 6 feet 3 inches tall and weighed 205 pounds. Marcus was 5 feet

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9 inches tall and weighed 157 pounds. Milton was ahead five goals to one and Marcus had scored
two of Milton’s goals. On his previous shift on the ice, with less than two minutes left in the game,
Dressler had cross-checked and punched three different Milton players after the whistle had blown
to end play, attempting to start a fight. Though he committed a number of infractions of the Rules
at that time, he was not penalized by Jaracz or Wallace.

21. The plaintiffs plead that Marcus’ injuries were caused as a result of the negligence and
conduct of the defendants, or any one of them, the particulars of which include:

A. As against Dressler, for whose conduct the Junior Sabres are responsible at law:

(a) he negligently, or intentionally, charged Marcus from behind and slammed Marcus
into the rink boards without regard for Marcus’ safety and in violation of the Rules,
when he knew or ought to have known that doing so would cause serious injury to
Marcus;
(b) he negligently, or intentionally, hit Marcus when Marcus was defenceless and
unable to protect himself;
(c) he negligently, or intentionally, hit Marcus when Marcus was not able to see him
or prepare for the hit;
(d) he violated the Rules as established by the OJHL, OHA, OHF and Hockey Canada;
(e) he failed to stop before hitting Marcus from behind as required pursuant to the
rules of the game;
(f) he became frustrated at his team’s loss of the game and intentionally targeted
Marcus, who had scored two goals, for retribution;
(g) he ingested drugs or steroids or hormones prior to the game which he knew or
ought to have known would affect his ability to make decisions and which caused
him to act in a violent manner;
(h) he failed to make reasonable efforts to keep Marcus safe in all the circumstances;
and
(i) such further particulars as might become evident throughout the course of this
litigation.
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B. As against Tuzzolino, for whose conduct the Junior Sabres are responsible at law:

(a) he failed to instruct Dressler as to appropriate conduct during a hockey game;

(b) he failed to instruct Dressler as to the Rules;
(c) he failed to exercise control over Dressler during the game and particularly during
the last few minutes thereof, when Dressler became violent;
(d) he permitted Dressler to return to the ice surface after Dressler attempted to fight
other Milton players, when the outcome of the game had been determined;
(e) he failed to respond appropriately to Dressler’s attack on the other Milton players
on his previous shift;
(f) he failed to recognize and respond to circumstances which a reasonable junior
hockey coach would know might lead to recklessness and injury;
(g) he negligently, or intentionally, encouraged and urged Dressler to attempt to
intimidate or injure Milton players, including Marcus, by returning Dressler to the
ice with less than one minute to play in the game;
(h) he encouraged a culture of intimidation and violence among Junior Sabres players;
(i) he permitted or encouraged Dressler to ingest drugs or steroids or hormones which
he knew or ought to have known would affect Dressler’s ability to make decisions
and which caused Dressler to act in a violent manner;
(j) he instructed Dessler to stop Milton players, and Marcus in particular, from scoring
another goal by any means possible;
(k) he failed to make reasonable efforts to keep players, including Marcus, safe in all
the circumstances; and
(l) such further particulars as might become evident throughout the course of this
litigation.

C. As against Wallace and Jaracz, jointly or severally, for whose conduct the OJHL, OHA,
OHF, Hockey Canada and/or USA Hockey are responsible at law:

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(a) they failed to enforce the Rules, as was required of them, both before Marcus was
injured and at the time he was injured;
(b) they permitted the Junior Sabres players, in particular Dressler, to commit infractions
of the Rules without penalty, leading Dressler to expect to be able commit further
violations without penalty, which he did;
(c) they ignored the escalating level of intimidation and violence in the game as it
became impossible for the Junior Sabres to win, and failed to warn or sanction the
players and coaches or to stop the game;
(d) at the time Marcus was injured their judgment was impaired by drugs or alcohol such
that they were not able to perform the duties required of them as referees;
(e) they failed to make reasonable efforts to keep players, including Marcus, safe in all
the circumstances; and
(f) such further particulars as might become evident throughout the course of this
litigation.

D. As against the Junior Sabres:

(a) they failed to ensure that their coaches and staff, including Tuzzolino, maintained
and fostered a respectful, safe culture;
(b) they permitted the Junior Sabres players, in particular Dressler, to commit infractions
of the Rules without sanction, thereby encouraging such behaviour;
(g) they encouraged a culture of intimidation and violence among players, coaches and
staff;
(h) they failed to incorporate policies instituted by the league and governing bodies
which were intended to keep the game as safe as possible for all players, including
Marcus;
(i) they failed to make reasonable efforts to keep players, including Marcus, safe in all
the circumstances; and
(j) such further particulars as might become evident throughout the course of this
litigation.
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E. As against the OJHL, OHA, OHF, Hockey Canada and USA Hockey, jointly and severally:

(a) they failed to institute policies and procedures to ensure players, including Marcus,
were reasonably safe while playing in their organizations;
(b) they failed to ensure policies and procedures designed to protect players were
followed by the other defendants;
(c) they failed to supervise and regulate coaches and players, including Tuzzolino and
Dressler, to ensure that player safety remained a priority at all times;
(d) they failed to supervise and regulate referees, including Wallace and Jaracz, to ensure
that player safety remained a priority at all times;
(e) they failed to make reasonable efforts to keep players, including Marcus, safe in all
the circumstances; and
(f) such further particulars as might become evident throughout the course of this
litigation.

INJURIES AND DAMAGES

22. As a result of the illegal and egregious hit by Dressler, Marcus sustained severe injuries
including but not limited to: a spinal fracture of the anterior inferior aspect of the C4 vertebral
body; interspinous ligament injury at C4-C5, C2-C3 and C3-C4; focal discontinuity of the
ligamentum flavum at C4-C5; left L2 tranverse process fracture; left L3 transverse process
fracture; left L4 transverse process fracture with 7 millimetre displacement. Marcus also sustained
serious and permanent soft tissue injury resulting in chronic pain and significant functional
limitations.

23. Marcus’ injuries have been treated conservatively to date. His C4 vertebral fracture has
not completely healed and there is an area of non-union almost two years post incident. Marcus
continues to suffer chronic pain in his cervical spine, shoulders and low back. In the future surgical
repair may become necessary. Marcus has been advised that he cannot return to contact sports

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including skiing, snowboarding and, most importantly, hockey.

24. In addition to his physical injuries, Marcus has suffered emotional and psychological injury
including depression and anxiety. He experiences chronic low mood, lack of motivation, inability
to focus and concentrate, social isolation and an overwhelming loss of enjoyment of life.

25. As a result of his injuries, Marcus has been required to undergo extensive medical
treatment, including x-rays, CT scans, MRI scans, physiotherapy treatment, rehabilitative
treatment and medical consultations, including a period of in-patient treatment at St. Michael’s
Hospital. He has been put to medical, hospital, healthcare, treatment, rehabilitation and other out-
of-pocket expenses, which will continue into the future. Those losses are claimed as damages in
this action.

26. It was Marcus’ intention to play hockey at college so that he could continue in the sport
and obtain an education. He had plans to play hockey professionally in Europe or North America
where he would be well paid to play the sport after college. As a result of his injuries Marcus is
no longer able to pursue these plans.

27. In addition to the losses related to Marcus’ inability to continue his plans to play hockey,
his injuries have left him with significant physical limitations which will limit his ability to work
and will result in a substantial loss of income or loss of income earning capacity or loss of
competitive advantage in the employment market. Those losses are claimed as damages in this
action.

28. Marcus is, and will continue to be, unable to perform caregiving, household and home
maintenance tasks to the extent that he was able to before his injuries were sustained and he will
require assistance in the future to complete those tasks. He will incur expenses for that assistance,
for which he is entitled to full compensation from the defendants.

29. The plaintiffs, Josie Didiano, Greg Didiano, Adam Didiano and Dylan Didiano, claim
damages for the loss of guidance, care, and companionship they each would have received from
Marcus had he not sustained the injuries. In addition they seek compensation for expenses incurred
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on Marcus’ behalf and for his benefit, for travel expenses incurred to visit Marcus while he was in
treatment and as an allowance for nursing, housekeeping and other services provided by them to
Marcus. These claims are made pursuant to section 61 of the Family Law Act, R.S.O. 1990, c.
F.3, as amended.

30. The plaintiffs plead and rely upon the provisions of the following statutes and regulations:

(a) Negligence Act, R.S.O. 1990 c. N.1, as amended;

(b) Occupier’s Liability Act, R.S.O. 1990, as amended;
(c) Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; and
(d) Family Law Act, R.S.O. 1990, c. F.3, as amended.

31. The plaintiffs propose that this action be tried at the City of Toronto.

Date: CONTE JASWAL LAWYERS

711 Brock Street South
Whitby, ON L1N 4L3

Jane Conte (LSO# 46049L)

Don Harvey (LSO # 39477K)
Peter Esfandiari (LSO #61480L)

Tel: (416) 544-0008

Fax: (416) 544-9777
Email: [email protected]
[email protected]
[email protected]

Lawyers for the plaintiffs

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DIDIANO et al. - and - DRESSLER et al.

Plaintiffs Defendants
Court File No.:

ONTARIO
SUPERIOR COURT OF JUSTICE

Proceeding commenced at Toronto

STATEMENT OF CLAIM

CONTE JASWAL LAWYERS

711 Brock Street South
Whitby, ON L1M 4L3

Jane Conte (LSO# 46049L)

Don Harvey (LSO #39477K)

Tel.: (416) 544-0008

Fax: (416) 544-9777
Email: [email protected]
[email protected]
[email protected]

Lawyers for the plaintiffs

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