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In Carcillo v. Ontario Major Junior Hockey League, the Court of Appeal for Ontario dismissed an appeal from a decision refusing certification of a class action against Canada's major junior hockey leagues for alleged systemic negligence. Claims alleging that system negligence resulted in abuse of minors and young adults cry out for justice, but the courts have maintained that without a plan to address the complexities of the claim, certification is not appropriate.
Certification decision
In June 2020, the Plaintiffs sued the Canadian Hockey League, its three regional leagues (OHL, WHL, QMJHL), and all 60 teams in the leagues alleging systemic negligence for failing to prevent institutional abuse over nearly 50 years. The motion judge denied certification, holding that the claim did not disclose a cause of action against teams for which the named plaintiffs had not played, or against teams for decisions made by the leagues. The motion judge also held that a class action was not the preferable procedure because, among other things, liability would not be determined by resolution of the common issues, and that there was not a workable litigation plan.
Appeal decision
Cause of action: The Court of Appeal held it was not plain and obvious that: (1) teams could not be liable for league-wide failures via collective liability; (2) the leagues could not be treated as unincorporated associations; and (3) teams could not be liable for their acts or the acts of their representatives in connection with league-level wrongs. The cause of action threshold was therefore met.1
Common issues: The Court of Appeal held that common issues do not need to resolve liability without individual trials. The common issues need only advance the litigation in a meaningful way. The Court of Appeal did not decide whether the common issues requirement was met in light of its finding that the preferable procedure test was not met.2 (Note that this action was commenced before amendments to the preferable procedure criterion came into force on October 1, 2020.)
Preferable procedure: The Court of Appeal held that the unprecedented scale and complexity of the claim (78 individual defences, 13 jurisdictions, hundreds of third-party claims, highly diverse allegations of abuse, a 50-year time period, etc.) rendered the case unmanageable. The litigation plan lacked sufficient, practical detail on managing multiple defendants and defences across jurisdictions, limitation issues, and conflicts of laws. A late proposal on appeal to drastically reduce defendants might have improved manageability, but it was raised too late and would prejudice the defence, and thus was not permitted.3
Analysis
A. A brief look at why Carcillo failed when Rumley and Cloud were certified The Court of Appeal's analysis in Carcillo provides useful guidance as to the characteristics of systemic negligence claims that should not be certified.
The seminal case for certification of systemic negligence claims is Rumley v. British Columbia, a 2001 decision of the Supreme Court of Canada. In Rumley, the Supreme Court endorsed a framing of systemic negligence as the "failure to have in place management and operations procedures that would reasonably have prevented the abuse."4 The Supreme Court commented on the natural amenability of systemic negligence claims for certification, as such claims consider actions and omissions "whose reasonability can be determined without reference to the circumstances of any individual class member."5 In doing so, the Supreme Court signalled that large systemic negligence cases are viable candidates for certification. Rumley was the first of many systemic negligence cases to be certified, including Cloud v. Canada (Attorney General)6, a decision of the Court of Appeal for Ontario in respect of the operation of a residential school.
Unlike Rumley and Cloud, the Plaintiffs in Carcillo foundered on the preferable procedure criterion under Ontario's Class Proceedings Act (the "CPA"). The Court of Appeal deferred to the motion judge's finding that the claim was unmanageable and recognized the difficulty of adjudicating "individual defenses of 78 defendants spread across 13 jurisdictions," as well as the distinction between other class action cases involving a single institutional defendant asserting control over several entities. In contrast, the systemic negligence claims in Cloud and Rumley involved only four defendants and one defendant, respectively, and centered on a single institution.
Although a collective theory of liability may be a good conceptual "fit" to address systemic occurrences of abuse that have materialized across different entities under a single institutional umbrella, overlooking differences in the proximity of different defendant entities with respect to the members of the proposed class risks undermining the workability of the class proceeding.
Carcillo also signals a stricter interpretation of the s. 5.1(e)(ii) requirement for a litigation plan. In Cloud, the Court of Appeal appeared to take a more flexible approach to this requirement, noting that litigation plans can be a "work in progress," the limitations of which could be addressed by the case management judge.7 However, in Carcillo the Court of Appeal was critical of the appellants' failure to file a litigation plan that addressed the sheer size and complexity of the proposed class action. The shortcomings identified by the Court of Appeal emphasize that a litigation plan for complex systemic negligence claims must be more than boilerplate, and must address the tough issues that arise in complex claims.
B. What are the features of a non-certifiable action for systemic negligence?
- Pleadings against multiple entities with no locus of
central control.
When dozens of distinct legal entities are alleged to share liability, the burden on the plaintiff to demonstrate commonality and manageability intensifies. The farther a given plaintiff sits from the policy-making entity, and the greater number of intervening actors, the more frail the chain of causation moving from the institutional policy to the alleged harm – potentially running afoul of the Ragoonanan principle that for each defendant listed, the representative plaintiff must have a direct claim or legal relationship with that particular defendant. In particular, there will be greater difficulty in establishing vicarious or collective liability where there is a legally recognized separateness or fracturing of the governance structure, such as between corporate entities each with no significant controlling interest or policy making power in a subsidiary body.
- Differences in the operation of an institutional
policy.
Systemic negligence claims must generally be premised on a single policy or code of conduct. If different actors perform different steps of a general policy, or if a policy is not acted on uniformly by the bodies responsible for its implementation, issues related to breach may become individualized and fail to establish a "predominance" of common issues, as is now the standard.
- Not workable as a class proceeding.
Where a claim is complex, a plaintiff's failure to acknowledge and grapple with the complexity in the litigation plan will doom a certification motion. This is especially important where the proposed class includes persons in different provinces, with different applicable laws, and different alleged experiences. In some cases, certification will not be appropriate because complexity truly does overwhelm the class action process. In some such cases, an order under section 7 of the CPA may be preferred to certification. Indeed, this was the decision of the motion judge in Carcillo, who approved a section 7 plan permitting the proposed class action to transition into up to 60 individual joinder actions.8
Conclusion
The Court of Appeal's decision in Carcillo demonstrates that, while class actions can be excellent vehicles for claims that exhibit true commonality, where the claim is truly a "monster of complexity," certification should be denied.
Footnotes
1 Carcillo v. Ontario Major Junior Hockey League 2025 ONCA 652, at paras 29-37.
2 Carcillo, at paras 44-49.
3 Carcillo, at paras 57-63.
4 Rumley, at paras 18, 30 (citing the reasons of Mackenzie J.A. from the decision on appeal from the Court of Appeal for British Columbia: L.R. v. British Columbia, 1999 BCCA 689 (CanLI), at pp.8-9).
5 Rumley, at para 30.
6 Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ON CA).
7 Cloud, at para 95.
8 Carcillo v. Canadian Hockey League, 2023 ONSC 886 (CanLII), at paras 447-448.
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