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Does the Stanley Cup belong to the NHL or the Canadian people? “If the Stanley Cup is not a charitable purpose trust, then the trust fails and the property reverts to the grantor, and outside the control of the NHL. As Lord Stanley was Governor General when he gave the cup, the cup may revert back to the Office of the Governor General.”

By Tim Gilbert

May 27 2005 issue

Some of the legal questions raised in the application may mean the Stanley Cup truly belongs to the people of Canada instead of the NHL. Photo by Ron Bull/Toronto Star
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Like millions of other Canadians, I once dreamed that I would be fighting for the Stanley Cup. But I always thought that I would be wearing goalie pads, not a gown.
How does Canada’s arguably most recognized symbol outside of the maple leaf end up in court?

Our firm responded to a question for help from the “Wednesday Nighters” – a group of self-described geriatric amateur hockey players – who asked us, on behalf of all Canadians, “Who owns the Stanley Cup and what are the terms of its competition?”

On April 13, we filed an application seeking direction from the Ontario Superior Court of Justice to satisfy these questions, once and for all.

The story of the Stanley Cup dates back to 1892 when Lord Stanley, then Governor General of Canada, a big sports fan himself, thought it would be a good idea to award a trophy to the “champion hockey team in the Dominion.”

“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” Stanley said. “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.”

The Governor General directed an aide, Captain Colville, to go to Regent Street in London, England and purchase a silver bowl with an ebony base. Captain Colville carried out his task and spent 10 Guineas to purchase what has become the Holy Grail of hockey.

Lord Stanley also appointed trustees to oversee the terms of each year’s competition for the Stanley Cup. In the early days only amateur teams played for the cup. Over the years this changed and by 1910 only professional teams vied for this trophy.

In 1947 the then trustees signed an agreement with the National Hockey League delegating to the NHL the right to award the cup. The NHL jealously guards the use of the name and image of the cup, which they have registered as trade-marks.

The awarding of the cup has taken place yearly since 1893 with one exception — 1919 when an outbreak of influenza left teams incapable of playing the series.

On Feb. 16, the NHL cancelled the season. Many people, including a group of fans called “Free Stanley” based in Edmonton, felt strongly that someone should play for the Stanley Cup. Armed with a legal opinion from Edmonton lawyer Roderick Payne to the effect that the 1947 agreement with the NHL was invalid, they encouraged fans to write the trustees seeking to play for the cup.

One Wednesday night in Toronto, the “Wednesday Nighters” decided to take up the challenge. Gard Shelley, a lawyer and member of the group, wrote the trustees asking for the right to play for the Stanley Cup. He received a response from the Hockey Hall of Fame – not the trustees – quoting Brian O’Neill, one of the trustees, as follows: “The Stanley Cup belongs to the National Hockey League and once the NHL resumes play, that’s when it will be presented.”

This didn’t seem right to  Shelley and the other Wednesday Nighters, one of whom is David Burt, another lawyer. They went in search of an Ontario lawyer that would work to wrest the Stanley Cup from the NHL and return it to its rightful place, in the control of the trustees. Their search ended at our firm – Gilbert’s LLP – a litigation boutique located in another historical landmark — the Flatiron Building in Toronto.

Shelley and David Burt then launched an application under the Charities Accounting Act seeking a declaration that the Stanley Cup is held in trust for the benefit of hockey and that terms require the trustees to award the cup annually, including of course this year.

The application is focused on who owns the cup and on what terms. The applicants argue that Lord Stanley created a charitable purpose trust. The applicants have been assisted by trust law expert, David Paciocco of the University of Ottawa, Paul Kitchen, a hockey historian, and Public History, North America’s largest history research firm.

The NHL is represented by Jeff Galway of Blakes, Cassels & Graydon LLP and the trustees are represented by David Bell of Marin, Evans & Bell.

The application raises interesting issues for the NHL. If the Stanley Cup is not a charitable purpose trust, then the trust fails and the property reverts to the grantor, and outside the control of the NHL. As Lord Stanley was Governor General when he gave the cup, the cup may revert back to the Office of the Governor General. In this way the cup may truly belong to the people of Canada.

What effect this will have on the NHL’s rights surrounding the cup, including the trade-marks, will be the next question.

Face-off of these issues is scheduled for July 18.

Tim Gilbert is the founder and a partner at Gilbert’s LLP, a boutique firm located in the Flatiron Building in downtown Toronto. Although hockey is one of Tim’s personal passions, the focus of Gilbert’s LLP is complex litigation and strategic advice, particularly in the context of the pharmaceutical industry.

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