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Class Proceeding - 'Litigation Plan'. 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. . Voltage Pictures, LLC v. Salna
In Voltage Pictures, LLC v. Salna (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the dismissal "(for the second time) [of] the appellants’ motion to certify this proposed reverse class proceeding".
Here the court illustrates the sometimes complex, almost court-'negotiated', achievement of an adequate 'litigation plan' in unusual cases like this:C. Did the Federal Court err in dismissing the application for certification because the litigation plan was unworkable?
[118] I turn now to the third issue and conclude that, even though the proposed litigation plan was unworkable due to its proposed use of the notice-and-notice regime, it was improper for the Federal Court to have refused certification for this reason considering that the Federal Court decided that the litigation plan could be amended. By providing the appellants leave to reapply for certification with an amended litigation plan, the Federal Court accepted that it was possible to make the requisite amendments.
[119] As the appellants point out, alternate arrangements could have been made to provide notice to the proposed class other than through the notice-and-notice regime in the Copyright Act. The most obvious alternate arrangement would have been for the appellants to have obtained Norwich orders for disclosure of the identities and contact information for proposed class members. This would have allowed for service upon them of notice of the class proceeding.
[120] This Court has held that an error of law made in evaluating a litigation plan is a ground for intervention: see Voltage FCA Certification Decision #1 at paras. 113–114. It has also held that it is an error of law to refuse certification based on inadequacies in a litigation plan that can be remedied. In Wenham v. Canada (Attorney General), 2018 FCA 199 [Wenham], this Court overturned a Federal Court decision that refused certification in part because of an inadequate litigation plan that failed to address how the proceeding would deal with the limitation period issue and the evidentiary record. Justice Stratas, writing for the Court, stated at paragraph 103 that:... the Federal Court overlooked that a litigation plan proposed in a certification motion is not cast in stone. Refusing to certify a litigation plan because of one alleged weakness is an error in law. A litigation plan is “a work in progress” and, in law, “whatever its flaws, it may be amended as the litigation proceeds”.
(citations omitted.) [121] Justice Stratas cited in support Cloud v. Canada (Attorney General) (2004), 247 D.L.R. (4th) 667, 2004 CanLII 45444 (Ont. C.A.), in which Justice Goudge, writing for that Court, rejected that a flawed litigation plan can bar certification, explaining as follows:[95] I do not agree that the appellants’ certification motion should fail on this basis. The litigation plan produced by the appellants is, like all litigation plans, something of a work in progress. It will undoubtedly have to be amended, particularly in light of the issues found to warrant a common trial. Any shortcomings due to its failure to provide for when limitations issues will be dealt with or how third-party claims are to be accommodated can be addressed under the supervision of the case management judge once the pleadings are complete. Most importantly, nothing in the litigation plan exposes weaknesses in the case as framed that undermine the conclusion that a class action is the preferable procedure. [122] To similar effect, the authors of Class Actions Law and Practice explain that "“[t]he judge and counsel can collaborate and develop a comprehensive plan by pre-trials, case management and actual trials in order to ensure the action proceeds efficiently”" (at § 3.179). This Court in Buffalo v. Samson Cree Nation, 2010 FCA 165, 405 N.R. 232 at paragraph 12 similarly accepted that:... in certification motions, and in the post-certification period, courts can be quite active and flexible because of the complex and dynamic nature of class proceedings: for example, they must always remain open to amendments to such matters as the class definition, the common issues and the representative plaintiff’s litigation plan, and they can play a key role in case management. [123] Often, it is preferable for the parties to first attempt to negotiate a proposed litigation plan prior to presenting it through the case management process: see McCrea v. Canada (Attorney General), 2015 FC 592 at paras. 445–446, rev’d on other grounds 2016 FCA 285; Sweet v. Canada, 2022 FC 1228 at para. 201. For example in Papassay v. Ontario, 2017 ONSC 2023, a decision cited by this Court in Wenham at paragraph 103, the Ontario Superior Court of Justice noted that, faced with a flawed litigation plan, courts should "“await negotiations between the parties over notification and other aspects of the litigation plan”" and, if the parties cannot agree, "“they may return to court for directions”" (Papassay at paras. 106–107).
[124] Moreover, even where a litigation plan is approved but new circumstances arise, the Federal Court may modify it as part of its management of proceedings: see e.g. Brake v. Canada (Attorney General), 2019 FCA 274, [2020] 2 F.C.R. 638 [Brake] at paras. 102–103, citing Federal Courts Rules, Rule 3. As such, the adequacy of a litigation plan should be viewed "“through the lens of the case management tools available to a judge post-certification”" (Jiang v. Vancouver City Savings Credit Union, 2019 BCCA 149 at para. 62, leave to appeal to SCC refused, 38738 (14 November 2019)).
[125] I thus conclude that it was improper for the Federal Court to have refused certification based on the appellants’ proposed use of the notice-and-notice regime. Instead, the Court ought to have certified the proceeding or adjourned the certification motion to allow the parties to negotiate the notice issue and, thereafter, to have allowed the appellants to present an amended plan. If needed, the Court could have explored with the appellants whether they were willing to provide notice to proposed class members in a different fashion. Only if the appellants indicated they were unwilling or unable to do so, would it have been open to the Federal Court to have dismissed the motion for certification or decertified the action. To be clear, the Federal Court possesses discretion in outlining the timing and expectations of a new litigation plan, including by conditionally certifying or adjourning prior to rendering its decision on certification. Nevertheless, it was not open to it in this case to simply refuse certification due to a flawed litigation plan when it at the same time recognized that amendments to the plan were possible.
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