Dolden Wallace Folick's Class Action Newsletter - March 2023 - Dolden Wallace Folick LLPDolden Wallace Folick LLP

March 2, 2023

Dolden Wallace Folick’s Class Action Newsletter – March 2023

Carcillo v. CHL: Ontario Judge Rules Certification to be Offside

By Christine Galea and David Girard, Dolden Wallace Folick Toronto/Calgary
Email: [email protected] and [email protected]

In Carcillo v. Canadian Hockey League, 2023 ONSC 886 (“Carcillo”), certification of a proposed hazing and abuse class action against the Canadian Hockey League (the “CHL”) and its member leagues and teams was denied by The Honourable Mr. Justice Perell on February 3, 2023.

Background

The representative plaintiffs in Carcillo commenced an Ontario action against 60 junior amateur hockey teams owned by 78 defendants, situated in a number of provinces across Canada (4 in the USA). The teams are members of 3 Canadian hockey leagues, the Western Hockey League (“WHL”), the Ontario Hockey League (“OHL”) and the Quebec Major Junior Hockey League (“QMJHL”). These leagues, as well as the CHL, were also named defendants in the action.

The representative plaintiffs alleged they experienced hazing, bullying, harassment and assaults perpetrated by older hockey players, coaches and others affiliated with the teams they played for during their time in Canadian major junior hockey. They sought certification of a class period going back to 1975 (almost 50 years) and estimated a class size of 15,000.

Importantly, the claim in Carcillo was advanced as a collective liability claim against the CHL and its leagues and teams for systemic and collective breaches of the pleaded causes of action (negligence, fiduciary duty, vicarious liability and Quebec causes of action).

Rather than certifying a class proceeding, Justice Perell suggested the plaintiffs advance their claims through opt-in joinder actions (one action for each team). Effectively, if pursued by the representative plaintiffs, each group of co-plaintiffs would have the option of suing three co-defendants comprised of (a) the specific team they played for; (b) that specific team’s league (WHL, OHL or QMJHL); and (c) the CHL. This would result in up to 60 separate joinder actions.

Certification Requirements Were Not Met

The cause of action criterion for certification was not met in Carcillo. Justice Perell rejected the fundamental premise of the claim that all teams, leagues and the CHL are jointly and severely liable for each other’s wrongdoing regardless of whether any of them participated in the wrongdoing. Rather than a collective claim against all defendants, an abused player only has a legally viable claim against the team he played for, the league of that team and the CHL. In the absence of any concerted wrongdoing, there would simply be no justification in making all other teams and leagues responsible for the torts committed by a player’s team and league.

Similarly, none of the proposed common issues were certifiable, in large part because the case was framed as causes of action against a collective. Given that the abuse events occurred at different times, at different places, by different perpetrators, in a myriad of ways spanning a 50 year period, each and every putative class member would need to testify to his personal experience. Therefore, a common issues trial about the standard of care would not advance the litigation very far.

The preferable procedure criterion was also not satisfied. The proposed class action would not be manageable because the court would be asked to manage: a) individual defences of 78 defendants in 13 jurisdictions; b) hundreds of third party claims against the actual perpetrators; c) events of abuse and a myriad of torts; d) events over a 50-year period; e) choice of law issues; and f) limitation period defences.

Finally, the suitable representative requirement for certification was not met because of the Ragoonanan problem, as discussed below, and an unworkable litigation plan.

Cross-Motions of the Defendants

The defendants brought two cross-motions: 1) a Ragoonanan motion to strike and; 2) a jurisdiction simpliciter motion.

The Ragoonanan principle arises in multi-defendant class actions and requires that there be a named representative plaintiff with a personal cause of action against each defendant.

Justice Perell granted the defendants’ Ragoonanan motion to strike because the representative plaintiffs had no personal or direct cause of action against each defendant. They were only associated with the 5 defendant teams they played hockey with and the corresponding 3 defendant leagues. As such, there was an absence of any representative plaintiffs for the other 55 defendant teams.

The jurisdiction simpliciter motion, brought by the non-Ontario defendants, was dismissed. All of these defendants carried on business in Ontario and otherwise had a real and substantial connection with Ontario; each had a contract connected to a dispute in Ontario and the business they conducted in Ontario was sufficient to render the alleged tort as having been committed in Ontario even if the abuse occurred elsewhere.

Takeaways

Carcillo is an important decision for parties opposing certification in proposed class actions. Unlike many of the certified institutional abuse class actions involving a single institution or system of wrongdoing, Carcillo addresses certification for collective liability of multiple and discrete defendant entities.

In such cases, alleging systemic wrongdoing, including the idea of a toxic culture within a sport as a whole, as a pathway to joint liability, will not on its own meet the cause of action criterion for certification of any collective liability. There must be a collective or concerted effort amongst the defendants in furtherance of the alleged wrongdoing for discrete defendant entities to be responsible for the torts committed by other discrete defendants. A plaintiff will otherwise only potentially satisfy the cause of action criterion against the defendants as separate entities – without attributing any collective liability.

In terms of the practical and procedural significance of the decision, if the plaintiffs pursue the suggested opt-in joinder actions there could be more than 60 trials in Carcillo. If the culture and norms of a team differed from one temporal period to the next temporal period, this may lead to additional separate trials amongst players on the same team. It is also possible, and likely, that there will be less than 60 actions commenced if no former players come forward to advance claims against certain teams. This might be the case as many former players may not want to be at the forefront of a legal proceeding as a named plaintiff or to be exposed to an adverse costs award if the claim is unsuccessful.

Carcillo also re-confirms that the Ragoonanan principle remains good law in Ontario (whereas it is not generally followed in other Canadian provinces).