Last week’s announcement that junior hockey players would be dealt out of any chance of qualifying for minimum wage protection came to many as a bolt out of the blue. It only surfaced in a government press release that quoted the president and majority owner of the Halifax Mooseheads welcoming the change.

So what is this? Nova Scotia elite junior hockey players not eligible for minimum wage? No apparent advance public notice? No apparent sign at all that government was considering this or had been asked to? Did the government come up with this idea to change the law itself? If so, why?

According to a government spokesperson cited in Metro, the Nova Scotia government was specifically approached by the Canadian Hockey League, along with local team owners, “to discuss the issue of CHL athletes and their status under the Labour Standards Code.” The spokesperson was apparently not more particular—local team owners could include either or both of the Mooseheads or Screaming Eagles

There seems to be much more to the background of this story than the government press release addressed or early stories following it reported.

In late 2014, a young, former CHL player whose team had failed to provide him a full, post-hockey academic scholarship he believed he was entitled to, started a class action against top tier junior hockey in this country. Two actions are now underway, one, before the Supreme Court of Ontario and another in Alberta’s Court of Queen Bench.

click to enlarge Blair Mitchell is a senior lawyer in Nova Scotia and partner with Mitchell & Ferguson Associates in Halifax. He’s active in civil and administrative law, human rights, professional discipline, privacy and Freedom of Information litigation along with employment and labour law.

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The actions claim minimum wage entitlement for CHL players. The defendants, among others, include the CHL’s Western Hockey League, the Ontario League and our own, QMJHL, and their teams or former teams across the country and into Maine and Washington in the United States. While the teams now provide allowances and other benefits, including scholarships, the number of hours the players devote to conditioning, playing, practising, doing public appearances and travel, means that the minimum wage claim is significant.

Like many other laws, the Nova Scotia Labour Standards Code, which covers minimum wage, allows for changes in important areas, including who is or is not covered by minimum wage law itself, to be changed by regulations issued by the Provincial Cabinet. For this issue at least, there is no requirement for the change to go through the Legislature at all.

To make changes that come way by regulations from the Cabinet has the side effect that that they can bypass the press scrutiny and potential publicity that often goes with the passage of full fledged, “statute” laws through the Legislature. Shifts in the law made by regulation are likely to be even that much farther from public scrutiny when they are made when the legislature is not sitting. Like now.

Interestingly, the Nova Scotia change came after similar changes in two other provinces, Alberta and Saskatchewan and one in the state of Washington. The two Canadian changes apparently came, like Nova Scotia, without much, if any, discernible advance notice.

Washington’s change, however, was a little more spectacular. That state actually commenced a high profile minimum wage investigation into whether junior players with its own four Western Hockey League teams were “employees” for the sake of their own legislation. Beyond that, its state assistant attorney general had decided there was a chance they were and recommended that the investigation continue.

Not long after, following the representations of their junior hockey industry, the state changed the law. Unlike Nova Scotia, Washingtonians were a bit more direct—they passed a bill in the legislature. That bill specifically exempted 16 to 21-year-old ice hockey players from the protection of the law. And it went through their legislature’s process, with attendant scrutiny. Importantly, Washington’s investigations also demonstrated that the claim, now asserted in these law suits and now potentially coming to reality in their upcoming actions, could well have teeth.

But one of the important conditions of public accountability in Nova Scotia is that people who are, in the government’s words, “communicating with” MLA’s, ministers and civil servants “in an effort to influence a decision” are “lobbying.” People who want to influence government in this way must register as a Lobbyist to show that they are trying to influence, and on whose behalf.

The Nova Scotia’s Lobbyist Registry is on line and lists some 925 separate registrations. There’s none apparent to show anyone trying to cause the cabinet to make any such change. It might be missed or it might be unclear. But no one is registered for the Canadian Hockey League or the Mooseheads or the Screaming Eagles.

It is certainly perhaps possible that one might raise the issue of changing law in some context not covered by “lobbying,” but the government spokesperson’s comments on July 4 on exactly that point suggests that the requirements of the province’s Lobbying Registration Act be very closely considered.

There is at least one more set of facts which might play into this: in 2015, TSN reported that mid-to-large market CHL teams were selling for in the range of $8 million dollars. Hockey News reported that at about the same time, the Quebec Ramparts had been sold to Quebecor for $25 million.

Whether or not the players’ class actions will be successful remains to be seen, but in the provinces of Saskatchewan and Alberta and in Nova Scotia’s own quiet side door way, this change has important implications for them.

And maybe—also—how law should be made.

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