The former owner of the Vancouver Canucks should be forced to answer, in front of a jury, if he approved a career-ending sucker punch on Steve Moore, a lawyer for the former NHL player argued in court Thursday.
It's now 10 years after Todd Bertuzzi's infamous hit, and Moore's multi-million-dollar lawsuit is finally approaching a trial. Moore's lawyer, Tim Danson, is asking the Ontario Superior Court to compel John McCaw Jr., who is based in Seattle, to testify in Toronto.
"He just goes on with his life with the incredible privileges of being a billionaire...while Steve Moore tries to recover from a shattered life," Danson said in court Thursday.
"For him to say, 'I'm not going to come and testify in any capacity' is regrettable. It's regrettable and it defies principles of fairness and justice. For him to simply hide behind his U.S. citizenship and residency given the nature of all of these facts should not be accepted and it's not something the public would accept."
NHL commissioner Gary Bettman and deputy commissioner Bill Daly have voluntarily agreed to testify, Danson said.
Master Ronald Dash, who is hearing the motion, said he would not order McCaw to testify in person at the trial, slated to begin in September, but is considering Danson's alternate request that McCaw testify via video conference.
McCaw's lawyer, Steven Frankel, argued that the court doesn't have jurisdiction to do that and suggested Danson is trying to an "end run" around very specific court rules. Frankel said there is no evidence before the court that McCaw, who is not an individual defendant, even has relevant evidence to give.
A jury should be able to hear McCaw answer whether he knew Canucks players were gunning for retaliation against Moore for a hit weeks earlier on former Canucks' captain Markus Naslund that resulted in a concussion, Danson argued.
Bertuzzi has alleged the Canucks' then-coach Marc Crawford urged his players to make Moore "pay the price," while Crawford has claimed Bertuzzi disobeyed instructions to get off the ice before Moore was attacked.
Players were issuing public threats against Moore before the hit, Danson said, and what McCaw did or didn't do about it is "highly relevant to the question of negligence."
"There's no way that you can have the intensity of the public threats over three weeks going on unless the corporate culture set by Mr. McCaw allowed it, and he has to answer to that," Danson said.
Danson suggested that McCaw fostered a corporate culture that may have at least implicitly approved such an attack, including having as the president and general manager Brian Burke, who was "unapologetic about promoting violence in hockey."
"Were Burke and Crawford carrying out the wishes of McCaw?" Danson suggested. "Or given the 'wink'...when it came to getting Mr. Moore?"
McCaw no longer owns the Canucks, having sold his company Orca Bay, now known as Canucks Sports and Entertainment. But he maintains a "very significant financial interest" in the outcome of the lawsuit, as he is still on the hook for half of any liability found against the team, which Danson said was a condition of the sale.
"If he doesn't testify, if he doesn't come forward, our case is going to be significantly weakened," Danson said. "So he knows it's not in his best interest to testify because if he testifies, it will be....to the benefit of the plaintiffs."
Moore is suing Bertuzzi and the Canucks for $38 million for a 2004 on-ice hit that left Moore, then a Colorado Avalanche player, with a concussion and three fractured vertebrae.
Bertuzzi pleaded guilty to a criminal charge of assault causing bodily harm and was sentenced in 2006 to a year's probation and 80 hours of community service. He also served a multi-game suspension from the NHL.