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Class Proceeding (Ont) - Certification - 'Preferrable Procedure' [CPA s.5(1)(d)]. 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, here where a class proceeding certification motion had been denied.
The court summarizes it's ruling in this systemic negligence case, which was grounded in the complexity of the case and the consequent unmanageability of the 'litigation plan' - essentially a s.5(1)(d) 'preferrability' concern:[3] The Superior Court rejected the motion, refusing to certify the proceeding as a class action. In his decision, the motion judge acknowledged the importance of ensuring access to justice for victims, the need to hold wrongdoers accountable, and the potential for class actions to pressure organizations into changing harmful practices. Nevertheless, he concluded that the proposed class action was unmanageable. He also found that the appellants’ counsel had failed to provide a litigation plan capable of addressing the scale and complexity of the case, which prevented the action from being a viable means of achieving the stated goals.
[4] I would dismiss the appeal. Even though the appellants’ objectives may well be admirable, their proposed class action is of an unprecedented scale and complexity, far greater than that of other systemic negligence class actions previously recognized. This reality made it essential for counsel to present a litigation plan capable of meeting those challenges. Because no such plan was offered, the motion judge was justified in finding the action unmanageable, and therefore not the preferable procedure. This finding is owed heightened deference: AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, at para. 65. Proceeding in this form would undermine, rather than advance, the objectives of access to justice, behavioural reform, and judicial efficiency. Furthermore, since the appellants did not suggest a narrower or more targeted class action as an alternative at the certification stage, they cannot now seek to fundamentally recast their case on appeal in order to avoid this conclusion.
[5] This decision should not be understood as ruling out the possibility that other class actions – narrower in scope and targeting individual teams, single leagues, or smaller groups of organizations – could be certified and managed effectively. Such cases must be assessed on their own merits. Indeed, Canadian courts have previously certified systemic negligence class actions involving institutional abuse, as seen in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 50; and Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.). These precedents remain authoritative, despite the motion judge’s critical observations about some of them.
B. Background
[7] Major junior hockey represents the highest level of junior hockey in Canada. Its teams recruit young athletes, typically between 16 and 20 years old, who leave their families and hometowns to compete in a highly demanding and competitive environment. These players aspire to advance to the National Hockey League (NHL), hoping that elite coaching, training, and exposure will allow them to reach their full potential. To participate, players sign agreements with their respective teams and are bound by league rules governing recruitment, drafting, trades, and player conduct.
[8] The major junior hockey system consists of 60 teams, organized into three regional leagues and one national league. Of these, 52 teams are based in Canada and 8 in the United States. Most operate as for-profit businesses, though some are municipally owned or not-for-profit organizations. Each team is a member of one of the three regional leagues: the Ontario Hockey League (OHL), the Western Hockey League (WHL), or the Québec Major Junior Hockey League (QMJHL). Collectively, these leagues form part of the Canadian Hockey League (CHL), the national body. Competition begins within each regional league, culminating in the champions of those leagues competing for the CHL’s annual nationwide championship. The regional leagues regulate their own teams, while the CHL sets overarching rules that apply to all three leagues and their member teams.
[9] Each league is led by a commissioner and governed by a Board of Directors. In the OHL and WHL, team-appointed representatives serve as governors. At the CHL level, governance is provided by nine governors: the three regional commissioners plus two additional nominees from each regional league. Although the leagues are incorporated as not-for-profit corporations, the appellants argue that they are, in effect, unincorporated associations consisting of the corporate entity itself, the participating teams, and, in the case of the CHL, the regional leagues as well.
[10] For decades, the regional leagues have implemented player safety policies and programs, and individual teams have likewise maintained their own rules and initiatives. The CHL’s constitution requires it not only to develop player safety programs and policies itself, but also to support the regional leagues in adopting and enforcing them.
[11] Despite these formal policies, there is evidence that serious abuse has long plagued major junior hockey. In 1997, following the high-profile conviction of a coach for sexually abusing a player, the CHL commissioned a report recommending the adoption of an abuse-prevention policy. Yet more than 25 years later, in 2023, the motion judge recognized evidence that a toxic culture of “bullying, harassment, hazing, and criminal conduct … has been pervasive for decades” and continues to this day. This evidence suggests that players had been subjected to horrific mistreatment by older teammates, as well as by team and league staff, including torture, forcible confinement, sexual assault, gang rape, and emotional abuse. The motion judge also noted that a more recent CHL-commissioned report confirmed that the league’s hierarchical structure and entrenched culture of silence discouraged victims from reporting abuse.
[12] In June 2020, the appellants commenced a proposed class action against all 60 teams, the three regional league corporations, and the CHL itself. They sought certification of a class encompassing approximately 15,000 Canadian major junior hockey players from 1975 to the present. They alleged institutional abuse. Their claims included systemic negligence, breach of fiduciary duty, vicarious liability, and related claims under Québec civil law. They alleged that the CHL and the regional leagues failed to adopt and enforce effective abuse-prevention policies, and that this systemic failure caused widespread harm. Relying on a theory of collective liability, the appellants argued that the teams should also be held accountable because they collectively governed the regional leagues and the CHL, which, they claimed, operated as unincorporated associations made up of their not-for-profit corporate entities and the teams.
[13] The motion judge denied certification in Carcillo v. Canadian Hockey League, 2023 ONSC 886. While he accepted that each representative plaintiff had viable claims against his own team or teams, the relevant regional league, and the CHL, he concluded that there was no cause of action against teams for which the plaintiffs had never played. He further held that no common issues existed across the proposed class, since there was no single, uniform system of conduct and establishing liability would require individualized trials. He also determined that the proposed class action was not the preferable procedure, given its extraordinary scope and complexity, which rendered it unmanageable. In addition, he offered broader commentary on the challenges, benefits, and drawbacks of systemic negligence class actions.
[14] After refusing certification, the motion judge suggested that the litigation proceed through joinder of multiple individual actions. Under this approach, each team’s current or former players would bring a separate lawsuit against that team, its regional league, and the CHL. Following several hearings, the motion judge issued an order approving a plan to implement this strategy: Carcillo v. Canadian Hockey League, 2023 ONSC 5798.
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[16] I would dismiss the appeal. The appellants have not demonstrated any reversible error on the third element: preferability. The motion judge’s determination that the proposed class action was unmanageable, and therefore not the preferable procedure, is entitled to deference. This conclusion is sufficient to dispose of the appeal, regardless of whether the appellants have identified errors on the other certification requirements. Moreover, since the appellants did not ask this court to revise or set aside the joinder plan order in the event their certification appeal failed, that order should remain undisturbed.
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F. Issue #3: The Preferable Procedure Requirement
[50] The appellants’ proposed class action nevertheless fails on the preferability requirement. The motion judge found — and I agree — that the action was unmanageable because of its unprecedented scope and complexity. His finding that such a proceeding would collapse under its own weight, frustrating the objectives of access to justice, judicial economy, and behaviour modification, is entitled to deference. The appellants cannot avoid this conclusion by attempting to fundamentally alter their case on appeal.
(1) Governing Principles
[51] Section 5(1)(d) of the Class Proceedings Act requires that the representative plaintiff demonstrate two things: (1) that a class proceeding would be manageable, efficient, and fair, and (2) that it would be preferable to any alternative procedure. Both conditions must be met. Accordingly, a proposed class proceeding that is unmanageable cannot be certified, even if no alternative procedure is demonstrably preferable: Fischer, at para. 48; Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572, 387 D.L.R. (4th) 603, at para. 62.
[52] The scope and complexity of a proposed proceeding are central to assessing manageability. As Winkler J. observed in Caputo v. Imperial Tobacco Ltd. (2004), 2004 CanLII 24753 (ON SC), 236 D.L.R. (4th) 348 (Ont. S.C.), at para. 69, the larger and more complex the case, the more difficult it becomes to manage efficiently and fairly. A class action should not be certified if its breadth and complexity are so overwhelming that it becomes unwieldy, unless individual litigation would pose the same difficulties: Fulawka, at para. 155; Amyotrophic, at para. 65.
[53] Determining whether a class action is manageable is a discretionary judgment that involves weighing multiple factors in light of judicial experience managing class proceedings and trials. Thus, it attracts “special deference” on appeal: Fischer, at para. 65, citing Pearson, at para. 43; see also Canada v. John Doe, 2016 FCA 191, 486 N.R. 223, at para. 29; Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307, 461 D.L.R. (4th) 524, at paras. 194–95, leave to appeal refused, [2021] S.C.C.A. No. 374. Absent legal error, palpable and overriding factual error, or a failure to exercise discretion judicially, appellate courts must not interfere. This last category, failure to exercise discretion judicially, permits intervention only if the decision was arbitrary, unreasonable, or so clearly wrong that it amounts to an injustice. Appellate courts cannot intervene merely because they might have weighed factors differently: Pearson, at para. 43; Soldier v. Canada (Attorney General), 2009 MBCA 12, 236 Man. R. (2d) 107, at para. 66; Canada (Attorney General) v. Fontaine, 2017 SCC 47, 2017 2 S.C.R. 205, at para. 36; Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, 475 D.L.R. (4th) 274, at para. 41.
[54] To aid courts in making these discretionary judgments, section 5(1)(e)(ii) of the Class Proceedings Act requires representative plaintiffs to file a litigation plan outlining how the class proceeding would be advanced in a workable, efficient, and fair manner. Especially in complex cases, this plan is critical: it allows the court to assess whether the proposed class action is truly manageable: Caputo, at para. 75. As this court observed in McCracken v. Canadian National Railway Company, 2012 ONCA 445, 111 O.R. (3d) 745, at paras. 145–146, the litigation plan is where the theoretical structure of the action meets practical reality.
[55] A workable litigation plan must be detailed, concrete, and tailored to the case. It should explain how common and individual issues will be resolved efficiently and fairly, in light of the case’s particular scale and challenges. As Nordheimer J. noted in Bellaire v. Independent Order of Foresters (2004), 2004 CanLII 95288 (ON SC), 5 C.P.C. (6th) 68 (Ont. S.C.), at para. 53, such plans should address a range of relevant factors.[3] In especially complex cases, more detail is required. Boilerplate or superficial plans that avoid grappling with foreseeable difficulties, or that simply list steps common to any lawsuit, are inadequate: McCracken, at paras. 145–146; Caputo, at paras. 76–79; Bellaire, at paras. 52–54.
[56] Because the litigation plan functions as a critical “check” on preferability, an unworkable plan can expose weaknesses in the proposed action that, if the plan cannot be remedied, will render the action unmanageable. Conversely, a well-crafted plan can demonstrate that potential difficulties are surmountable: McCracken, at para. 146; Cloud, at para. 95; Caputo, at para. 79; Robinson, at para. 73; Price v. Smith & Wesson Corporation, 2025 ONCA 452, 4 C.C.L.T. (5th) 184, at para. 136.
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(4) Addressing the Motion Judge’s Comments on Preferability
[70] Beyond finding the proposed class action unmanageable, the motion judge made broader observations about systemic negligence class actions and their disadvantages. Although these comments were unnecessary to his decision, I address them briefly to clarify the law.
[71] First, the motion judge failed to recognize the capacity of class actions to overcome social and psychological barriers that prevent victims from seeking justice. In institutional abuse cases, representative plaintiffs can “blaze a trail,” giving others the confidence to come forward despite fear of reprisal. These benefits are especially important in cases of sexual abuse, where victims are particularly vulnerable: Fischer, at paras. 27, 29; L’Oratoire Saint Joseph du Mont Royal v. J.J., 2019 SCC 35, [2019] 2 S.C.R. 831, at para. 8, citing Rumley, at para. 39. The motion judge discounted these benefits by noting that barriers such as costs liability and public disclosure remain at the individual stage. But those barriers heighten, rather than diminish, the need for representative leadership: V.L.M. v. Dominey Estate, 2023 ABCA 261, 486 D.L.R. (4th) 115, at para. 42.
[72] Second, Rumley remains binding precedent, despite the motion judge’s suggestion that it should not have been certified. Any reconsideration of its merits lies with the Supreme Court or the legislature, not with lower courts. The same is true for other institutional abuse precedents such as Cloud and Cavanaugh, which remain good law. While such cases can be distinguished factually — as the motion judge did when addressing manageability — their legal principles continue to govern.
[73] Third, the motion judge erred in stating that the unavailability of aggregate damages bars certification of systemic negligence class actions. There is no such rule. Although the possibility of aggregate damages may strengthen a case for certification, their absence does not defeat it. Many class actions, including Rumley, have proceeded without aggregate damages, with individual damages assessed in later proceedings by using the effective tools that the Class Proceedings Act provides for this very purpose: Cassano v. Toronto-Dominion Bank, 2007 ONCA 781, 87 O.R. (3d) 401, at paras. 60–63; Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642, at paras. 226–235.
[74] Fourth, the motion judge’s preference for joinder overlooked its practical limitations. Joinder is rarely suitable for thousands of claimants, as it often increases costs, delays, and complexity, and risks generating a multiplicity of proceedings. Thus, unless the class is small and claims are high-value, class actions typically remain the superior vehicle: Fantl v. Transamerica Life Canada, 2016 ONCA 633, 133 O.R. (3d) 422, at paras. 29-31, leave to appeal refused, [2016] S.C.C.A. No. 448; Kirk v. Executive Flight Centre Fuel Services, 2021 BCSC 987, 41 C.E.L.R. (4th) 287, at para. 44, aff’d 2023 BCCA 28, 476 D.L.R. (4th) 672; Bouchanskaia v. Bayer Inc., 2003 BCSC 1306, at paras. 147–49. . Stolove v. Waypoint Centre for Mental Health Care
In Stolove v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the dismissal of their motion to certify a class proceeding alleging systemic negligence in the operation and oversight of the maximum security forensic psychiatric hospital in Penetanguishene, Ontario that provides care for involuntary patients".
Here the court considers the 'preferrable procedure' element of the certification test [CPA s.5(1)(d)]:(4) Preferable procedure criterion
[35] The motion judge observed that if the claim did not raise common issues, it was axiomatic that a class proceeding could not be the preferable procedure for resolving the matters raised by the litigation.
[36] The motion judge nevertheless considered whether, in the event that he had erred in his analysis of commonality, a class proceeding would be an appropriate method of advancing the claims of the class members. He found that even on this hypothesis, a class proceeding would not be the preferable procedure. Rather, a joinder action of the involuntary forensic patients who have individual claims against the respondents would be preferable because such an action would immediately provide access to justice without the need to “run the gauntlet” of a certification motion. He noted that there was an already assembled “critical mass” of co-plaintiffs that would make the case attractive to an entrepreneurial lawyer. On this assumption, the motion judge found that a joinder action would provide as much if not more access to justice, behaviour modification and judicial economy as would a class proceeding that would inevitably require individual issues trials. He therefore concluded that a joinder action would be preferable to a class proceeding and found that the appellants had not satisfied this element of the certification criteria.
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(2) Since the motion judge correctly dismissed the application on grounds of commonality, it necessarily follows that a class proceeding does not satisfy the preferable procedure criterion
[72] As the motion judge pointed out, on the assumption that there are no certifiable common issues disclosed by the proposed class action, it is axiomatic that it does not satisfy the preferable procedure criterion. While the motion judge proceeded, in obiter, to also find that a joinder action was preferable to a class proceeding, this discussion was superfluous and unnecessary in the circumstances of the case. Moreover, the extent to which the motion judge had the benefit of submissions from the parties on the option of joinder is unclear. I therefore would express no view on the motion judge’s alternative analysis of joinder as a preferable procedure. . Lochan v. Binance Holdings Limited
In Lochan v. Binance Holdings Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal, here from "the certification of an action brought on behalf of Canadian investors who purchased cryptocurrency derivative products through an asset trading platform operated by the appellants".
The court considers the 'preferrable procedure' element of class action certification:[24] With respect to whether a class proceeding is the “preferable procedure”, the motion judge noted that the OSC has reported that more than half of Canadian cryptocurrency asset owners have less than $5,000 in the market. Consistent with this court’s decision in Fischer v. IG Investment Management Ltd., 2012 ONCA 47, 109 O.R. (3d) 498, at paras. 79-82, the principle of access to justice supports the conclusion that a large number of small individual claims is not preferable to a class proceeding.
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[55] At a practical level, more than half of Canadian crypto asset owners are small investors with less than $5,000 in the market: Lochan v. Binance Holdings Limited, 2023 ONSC 6714, at para. 15. How – and, more importantly, to what end – would these thousands of unsophisticated investors have undertaken the complex task of preparing a prospectus before selecting and clicking on their preferred Cryptocurrency Derivative on the Binance website? . Price v. Lundbeck
In Price v. Lundbeck (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal of a denial of a class action certification, here in a tort ('duty to warn') pharmaceutical case.
Here the court considers the 'preferrable procedure' element of certification in the class proceeding regime:[30] On the preferrable procedure requirement in s. 5(1)(d) of the Act, the Class Proceedings Judge stated the applicable legal principles, including as set out by Strathy C.J.O. in Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572, 387 D.L.R. (4th) 603. At para. 62, Strathy C.J.O. noted that “it is not enough for the plaintiffs to establish that there is no other procedure which is preferable to a class proceeding. The court must also be satisfied that a class proceeding would be fair, efficient and manageable.”
[31] The Class Proceedings Judge followed the Supreme Court of Canada decision in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158. In Hollick, at paras. 29-31, McLachlin C.J. held that even though the Act requires only that a class action be the preferrable procedure for the resolution of the common issues, the question of preferability “must take into account the importance of the common issues in relation to the claims as a whole”.
[32] As with the claim in Hollick, the Class Proceedings Judge found that even if the proposed common issues were found to advance the litigation (which he did not find), any such advance would be peripheral and minor. The individual issues would overwhelm any benefit. He also considered the proposed litigation plan, concluding as follows, at para. 211:The present case lacks a workable way forward. It will break down into potentially thousands of individual trials, all with every liability and damages issue to be proven, including general causation of the particular congenital malformation, since the class does not purport to certify such an issue.
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