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Torts - Negligence - Systemic. 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. . 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, while finding that the representative plaintiff-appellants had made out the s.5(1)(c) 'common issues' requirement, the court summarizes applicable 'common issues' law - particularly as it relates to cases of systemic negligence:(1) Governing Principles
[39] Section 5(1)(b) [SS: should be "(c)"] of the Class Proceedings Act requires that certification promote efficiency by ensuring that “allowing the suit to proceed as a [class proceeding] will avoid duplication of fact-finding or legal analysis”: Pioneer Corp, at para. 104. An issue is considered common where (1) it does not inevitably break down into individual issues, and (2) it represents a substantial and necessary component of each class member’s claim, such that resolving it would meaningfully advance those claims: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, 112 O.R. (3d) 346, at para. 81, leave to appeal refused, [2012] S.C.C.A. No. 326; Canada v. Greenwood, 2021 FCA 186, [2021] 4 F.C.R. 635, at para. 180, leave to appeal refused, [2021] S.C.C.A. No. 377.
[40] The common issues threshold is intentionally low. As this court explained in Cloud v. Canada (Attorney General), proposed issues may qualify even if they form only “a very limited aspect of the liability question,” and even where many individual issues will remain: at paras. 52-53. They need not predominate over individual questions, nor must they completely determine each class member’s claim: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 39.
[41] The evidentiary standard — “some basis in fact” — reflects this low bar. This standard requires only minimal evidence showing that the proposed common issues exist and could be addressed class-wide. The appellants need not demonstrate a prima facie case or establish the likelihood of trial success, and the court cannot weigh the evidence or evaluate the merits at certification: Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, 173 O.R. (3d) 682, at paras. 67–77, leave to appeal refused, [2024] S.C.C.A. No. 406.
[42] Specific guidance exists for institutional abuse class actions alleging systemic negligence. In both Rumley v. British Columbia and Cloud, the courts held that questions about duty of care, standard of care, and breach could meaningfully advance class members’ claims even though individualized trials on causation and damages would still be necessary. They further held that whether institutions should have adopted abuse-prevention policies could be determined class-wide without devolving into individualized inquiries: Rumley, at para. 30; Cloud, at paras. 58, 66, 69. Courts must apply these precedents consistently and treat like cases alike: Black v. Owen, 2017 ONCA 397, 173 O.R. (3d) 334, at paras. 41–42, 46; Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 18.
[43] On appeal, extricable questions of law are reviewed for correctness. In the absence of such errors, a motion judge’s decision is reviewed for palpable and overriding error: Pioneer Corp., at para. 94; Pearson v. Inco Ltd. (2006), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 (C.A.), at para. 43, leave to appeal refused, [2006] S.C.C.A. No. 1; Fulawka, at paras. 76–77. References to “errors in principle” in some cases are simply a subset of legal error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.
(2) Application: The Motion Judge Applied an Overly Stringent Test
[44] Although the motion judge accurately summarized the governing principles, he applied them incorrectly in three key ways: (1) he imposed an improperly high bar, (2) he exceeded the limits of the “some basis in fact” standard, and (3) he disregarded binding guidance from Rumley and Cloud. These legal errors justify appellate correction: Housen, at para. 27; Black, at paras. 36, 41. I would not, however, determine whether the appellants meet the correct commonality test because it would not affect the result.
[45] First, the motion judge erred in applying a high threshold. He reasoned that because liability could not be determined without individual trials, the proposed common issues (1) would not significantly advance the litigation, and (2) would inevitably fracture into individual issues. Both conclusions are legally incorrect. As Cloud makes clear, common issues need not establish liability or eliminate individual trials; they need only advance claims in some meaningful way. Moreover, issues are only disqualified if they are inherently dependent on individual circumstances, not simply because individualized inquiries may follow them: Fulawka, at para. 81; Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501, 116 O.R. (3d) 321, at para. 68, leave to appeal refused, [2013] S.C.C.A. No. 323. It is unnecessary to decide whether the proposed common issues meet these correct thresholds for the reasons I have explained.
[46] Second, the motion judge overstepped the evidentiary limits of certification. In finding that “[n]o one system exists here,” he effectively decided a merits question. That was not his role. The correct inquiry was whether the appellants had offered “some minimal evidence” to support their allegations of systemic negligence: Lilleyman, at para. 74. He did not address why the evidence adduced by the appellants – that each regional league has its own safety policies, the CHL has conducted national reviews, and those reviews repeatedly urged adoption of comprehensive abuse-prevention polices – failed to meet this low threshold. I need not resolve this question either because it would not affect the result.
[47] Third, the motion judge failed to engage with the precedents in Rumley and Cloud. He neither explained why the systemic issues in this case differed from those in which courts had previously certified duty, standard, and breach as common issues, nor reconciled his conclusion with the binding authority that institutional abuse-prevention policy questions can be resolved class-wide because they “affect all class members irrespective of their personal circumstances”: Cavanaugh, at para. 22. As well, he did not address why the solutions employed in Rumley and Cloud – creating subclasses or limiting liability to certain periods – would be inadequate to address his concerns about changes in the standard of care over time: Rumley, at paras. 31-33; Cloud, at para. 59.
[48] The motion judge also did not address Rumley and Cloud’s guidance concerning the availability and quantum of punitive damages. Both cases held that those were proper common issues: Rumley, at para. 34; Cloud, at paras. 70, 72. I note that, as Rumley and Cloud demonstrate, the question of whether punitive damages are available for systemic misconduct can sometimes be resolved without reference to the extent of harm suffered by each individual: Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138, 22 C.P.C. (7th) 33, leave to appeal refused, 2012 ONSC 3436 (Div. Ct.). Any concern about quantifying punitive damages before compensatory damages can usually be addressed by sequencing trials so that punitive damages are assessed after compensatory damages have been determined: Robinson v. Rochester Financial Ltd., 2010 ONSC 463, 89 C.P.C. (6th) 91, at paras. 57–61, leave to appeal refused, 2010 ONSC 1899, 262 O.A.C. 148 (Div. Ct.).
[49] To be clear, I would not decide whether the proposed class action is sufficiently similar to Rumley and Cloud so as to establish commonality. That is an arguable question in light of the differences between those cases and this proposed class action which I address later in this judgment. My point is merely that the motion judge should have meaningfully engaged with those precedents and explained which distinguishing features justified a different result in this case. . Canada (Attorney General) v. Nasogaluak
In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal considers the law of systemic negligence, here in a government negligence context where policy versus operational concerns were involved:[28] As this Court stated in Greenwood (at para. 153), "“the required elements that a plaintiff must establish are the same in all negligence claims, regardless of whether or not they are pursued on a systemic basis.”" The Court in Greenwood went on to list these required elements as the Supreme Court set them out in Saadati v. Moorhead, 2017 SCC 28 at para. 13:Liability in negligence law is conditioned upon the claimant showing (i) that the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (ii) that the defendant breached that duty by failing to observe the applicable standard of care; (iii) that the claimant sustained damage; and (iv) that such damage was caused, in fact and in law, by the defendant’s breach. ....
[33] Here, the motion judge devoted most of her discussion of whether a reasonable cause of action was pleaded in systemic negligence to the question of whether what was pleaded was a breach of a duty of care in policy-making or in the operation of the RCMP in the Territories. She concluded (at paragraph 34 of her reasons) that the material facts pleaded here made it "“clear it is operation and not policy at issue,”" and that Mr. Nasogaluak was therefore free to allege negligence. In coming to this conclusion, she described the allegations of systemic negligence as directed not to a true policy decision but to "“the lack of following policy—thus making it operational,”" and drew support from paragraph 51 of the amended statement of claim, which reads as follows:Class members had the reasonable expectation that Canada would operate its RCMP Detachments in the Territories in a manner that was substantially similar to the care, control and supervision provided to non-Aboriginal Persons in custody of the RCMP during the Class Period. [34] The motion judge went on to consider whether the operational negligence she concluded was pleaded could be the proper subject of a systemic negligence claim. In determining that it could, she relied on the Supreme Court’s decision in Rumley v. British Columbia, 2001 SCC 69 and that of the Ontario Court of Appeal in Francis v. Ontario, 2021 ONCA 197.
[35] In Rumley, which dealt with a claim by current and former students abused at a residential school for deaf and blind children, the Court (at para. 30) described the systemic negligence claim as alleging a "“failure to have in place management and operations procedures that would reasonably have prevented the abuse,”" and stated that "“[t]hese [were] actions (or omissions) whose reasonability can be determined without reference to the circumstances of any individual class member.”" At paragraph 33 of her reasons, the motion judge described this position as "“precisely in line with what the Plaintiff is alleging is the case here.”"
[36] In Francis, where the Court of Appeal upheld a claim of systemic negligence relating to Ontario’s placement of inmates in administrative segregation, the Court stated (at para. 103) that if it was accepted that actions were taken that made injury to an inmate reasonably foreseeable on an individual basis, there was "“no principled reason why that could not be the case on a class basis.”" At paragraph 39 of her reasons, the motion judge stated that she saw "“strong similarities”" between this case and Francis. She also (at paragraph 36) described as "“well established”" the proposition that governments owe a duty of care to individuals arrested, detained, or otherwise in their custody. This appears to be a reference to a line of cases that includes the Supreme Court’s decision in MacLean v. R., 1972 CanLII 124 (SCC), [1973] S.C.R. 2, referred to further below. . Levac v. James
In Levac v. James (Ont CA, 2023) the Court of Appeal briefly characterizes 'systemic negligence':[47] Ms. Levac also emphasizes that this class action alleges systemic negligence, which is not specific to any one victim, but rather to a class of victims as a group, relying on Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at paras. 30-34. The theory of negligence in such cases is that the impugned acts or omissions of the defendant are negligent because they resulted in a system that was inadequate to protect the class from harm: White v. Canada (Attorney General), 2002 BCSC 1164, 4 B.C.L.R. (4th) 161, at para. 48.
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