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Class Proceedings (Ont) - Appeal - Remedies. Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff appeal where class proceeding certification had been denied.
Here the court characterizes as 'impermissable' an attempt by a plaintiff to fundamentally restructure their certification plans (in my view the principle established here applies to attempts to amend pleading in the course of an appeal in regular civil litigation), here in the course of an appeal:(3) The Appellants Cannot Fundamentally Change Their Case
[64] To address concerns of manageability, the appellants proposed on appeal to drop 74 team defendants and the QMJHL, leaving only the CHL, OHL, and WHL as defendants.[5]
[65] This attempt to fundamentally alter the case comes far too late.
[66] Contrary to the appellants’ submission, this proposal was not raised before the motion judge. The cited portion of their factum in the Superior Court argued that suing all 78 defendants was proper. Nor is it correct that appellate courts must accept such changes. Appellate courts have discretion to reject attempts to reframe a case on appeal: Hodge v. Neinstein, 2017 ONCA 494, 136 O.R. (3d) 81, at para. 194, leave to appeal refused, [2017] S.C.C.A. No. 341.[6]
[67] Recasting on appeal undermines the administration of justice. It deprives appellate courts of the motion judge’s expertise and factual findings, forcing appellate judges to make discretionary calls that are better handled at first instance: Hodge, at para. 188, citing Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248, 125 O.R. (3d) 447, at para. 45.
[68] Accordingly, fundamental changes on appeal are impermissible. Such changes prejudice defendants, who may have adopted different litigation strategies had the claim originally been framed differently. They also deny appellate courts the benefit of the motion judge’s analysis in precisely the circumstances where it is most needed: Keatley, at paras. 29, 41; Harrison v. Afexa Life Sciences Inc., 2018 BCCA 165, 9 B.C.L.R. (6th) 271, at paras. 47–48, leave to appeal refused, [2018] S.C.C.A. No. 264.
[69] Here, the proposed recasting is a radical shift, eliminating over 96% of the defendants. This is not comparable to the moderate adjustments permitted in other cases, such as refining a class definition or narrowing a damages theory: Keatley, at paras. 29, 43–44, citing Pearson and Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321, leave to appeal refused, [2007] S.C.C.A. No. 346. This late-breaking transformation is unfair to the respondents, who might have declined joint representation if the action had originally been limited to the leagues. Because the motion judge never considered this transformed case, it is not the role of the appellate court to make first-instance findings about its manageability or suitability for certification.
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