Skip to main content

And so, today, almost exactly on schedule, the battle for the 2005 Stanley Cup begins.

Only there will be no ice, no Don Cherry -- and no bumping of the national news.

Instead, the news will begin on time and will include coverage of a different game that will be played out in court for the right to challenge for the most recognizable trophy in the world of sports.

This morning in Ontario Superior Court, a 42-year-old Toronto lawyer named Tim Gilbert will file a claim against the National Hockey League and the trustees of the Stanley Cup.

"Stanley Cup season is about to begin," says David Paciocco, a University of Ottawa law professor and expert on trusts who helped Gilbert prepare the case.

If successful, the court action initiated today could force the trustees to free up the Stanley Cup for competition at a time when the NHL has shut down and the famous trophy had been expected to remain shelved in Toronto's Hockey Hall of Fame.

Governor-General Adrienne Clarkson -- whose predecessor, Lord Stanley, entrusted the trophy to the people of Canada 113 years ago -- has suggested that the Cup should be played for in this year of the owners' lockout. Clarkson suggested this one time women's teams might compete for it, and had hoped the NHL might agree in good faith.

This time, the demand is through the courts, with the two applicants -- Gard Shelley and David Burt, both in their mid-50s, both trained as lawyers, both successful Toronto business executives and both avid hockey fans -- trusting in the law to order up what good faith failed to deliver.

"Gard and I are sort of John Does in this," Burt says. "Neither of us wants to be the story."

Still, they are very much part of the story, as both belong to the Wednesday Nighters, a pick-up league of Upper Canada College "old boys." These recreational hockey players decided in February, after NHL commissioner Gary Bettman officially cancelled the 2004-05 season, to challenge for the Cup. What was initially postgame beer talk soon evolved into a legal question that has attracted the interest of a number of lawyers and legal experts.

Gilbert has three lawyers working on the case -- himself, David Donnelly and Sana Halwani -- but numerous others are offering advice from all over Canada, including Ottawa's Paciocco and Edmonton lawyer Roderick C. Payne, who was initially drawn into the controversy over control of the Cup by the Free Stanley Internet movement and did an earlier analysis of the issue.

"It started off as an amusing idea," Burt says, "but as we studied the material, it evolved into an interesting legal issue."

Burt believes it is far more than just a legal issue. In a personal affidavit he will file this morning in Superior Court, he has written: "Like most Canadians, I believe the Cup is a symbol, not only of hockey, but also of Canadian culture. I am truly saddened by the fact that the awarding of the Cup is now treated as captive to purely commercial interests, and is totally dependant on the resolution of a private collective bargaining process, which may take years to resolve."

Both Burt and Shelley say they are operating on behalf of all hockey fans in taking legal action. The Wednesday Nighters initially offered to play for it themselves -- light jerseys against dark -- but eventually came to the conclusion that serious, competitive teams should play for it.

(Some 50 teams -- including those at the highest senior levels -- have apparently expressed interest.)

"We're just a bunch of geriatrics who can barely skate," Shelley says. "So let's be serious about this."

The Wednesday Nighters, however, are very serious indeed about the legal challenge. They are well connected and well heeled, and the applicants are prepared to deal with the possibility that the court might hear their case, rule against them and award costs to the respondents.

In Gilbert's mind, the legal action amounts to "a wake-up call for the National Hockey League."

He wants the court to determine, through the Charities Accounting Act, the exact duties and obligations of the two trustees: former head of the Hockey Hall of Fame Ian (Scotty) Morrison and former NHL official Brian O'Neill.

As well, the case could decide whether the Stanley Cup could be simply handed over to the NHL in a 1947 agreement between the league and the trustees of the day.

"How," Gilbert asks, "can they say they own something that they didn't create?"

The Stanley Cup, which cost Lord Stanley the equivalent of $48.67 back in 1892, is now said by sports marketing experts to be worth millions to the NHL in branding value.

The trustees say the Cup is under control of the NHL and will, therefore, not be played for in 2005 since there is no NHL season.

"The Stanley Cup belongs to the National Hockey League," O'Neill told The Globe and Mail's Eric Duhatschek after the season was cancelled, "and once the NHL resumes play, that's when it will be presented."

Until then, Morrison added, the trophy "just stays in the Hall of Fame and I guess we just skip ahead and leave the panel empty."

Both cited the 1947 agreement as proof that the Cup cannot be freed up from the league, a contention with which recognized hockey historians such as Ottawa's Paul Kitchen have taken issue.

The 1947 agreement says matters would change if the league dissolved, but another clause speaks of "other termination of the National Hockey League" -- and the court proceedings will argue that the lockout is precisely this.

Gilbert will hope to convince a judge that the current trustees, O'Neill and Morrison, are "still under a fiduciary duty under the Trust to award the Cup to a hockey team this year." If the two trustees will not choose to do so at their discretion, then the applicants intend to ask the court to order them to perform their duties and "award the Cup to a champion hockey team before the start of the 2005-06 NHL hockey season."

Shelley argues that it would be in the best interest of both the trustees and the league to act first, before any court decision, and free up the Cup for 2005.

"There is a huge opportunity here," Shelley says, "for the NHL to reacquire some lost will. Can you imagine how popular such a generous act would be?"

When Lord Stanley announced his plans for the trophy on March 18, 1892, he said: "I have for some time 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 of Canada."

Part of Gilbert's argument will lie in the Governor-General's stipulation that it be competed for annually, but part will also involve the trust Stanley established when he gave the trophy to the people of Canada.

"It's quite clear that when Lord Stanley set up this trust, he had in mind the promotion of the game of hockey," Paciocco says. "It's also quite clear that he never contemplated that it would be played for by a professional league and become the exclusive domain of that league."

As for the trustee situation, Paciocco says, plainly, "If you give over control [to the NHL] you're not living up to your obligations as trustee."

Burt's affidavit will offer a number of alternatives to the trustees should the court determine that Morrison and O'Neill are obliged to open the Stanley Cup, once again, to "challenge."

Not the Wednesday Nighters, although that would make for spectacular television.

"We don't even have goalies," Shelley says.

Burt's ideas include a tournament open to all -- but virtually impossible to organize and certainly difficult to finance.

Another suggestion involves a select tournament that might include the senior hockey winners of the Allan Cup, the junior team that takes the Memorial Cup and the Canadian university champion. The winner from a round robin would be the 2005 Stanley Cup champion.

"We're doing this for the fans of hockey," Shelley says.

"For the love of the game."

Follow related authors and topics

Authors and topics you follow will be added to your personal news feed in Following.

Interact with The Globe