by Amber Sharma, 2L
In Carcillo v Canadian Hockey League, 2023 ONSC 886, the Ontario Superior Court of Justice refused to certify a class action commenced on behalf of approximately 15,000 class members against 78 separate defendants located in nine different provinces. The motion judge took the opportunity to examine section 7(2) of Ontario’s Class Proceedings Act, 1992 (“CPA”) which authorizes the court to permit a proceeding to continue as one or more proceedings between different parties where certification is refused. In doing so, Justice Perell considered what alternative processes to a class action are available under Canadian law that could address collective harms in circumstances where certification would be inappropriate.
The question of how to manage such a high volume of individual claims following a refusal to certify an action as a class proceeding proved difficult. Besides class actions and the ability to join claims in one proceeding, there are few tools available for large scale cases. This is contrasted with the Multidistrict Litigation (“MDL”) tool available in the United States. This blog examines the potential of section 7 of the CPA to provide an adequate process that achieves many of the same goals as class proceedings: access to justice, behavior modification and judicial economy.
Carcillo v Canadian Hockey League et al
On June 18, 2020, three former major junior hockey players brought an action against 78 defendants – the Canadian Hockey League (“CHL”), three hockey league corporations that operate the Ontario Hockey League (“OHL”), Western Hockey League (“WHL”) and the Quebec Major Junior Hockey League (“QMJHL”), and the 74 entities that represent the 60 amateur hockey teams that play in those leagues. The plaintiffs alleged that young players in these leagues have suffered systemic abuse spanning over 50 years, including widespread and ritualized hazing, racism, homophobia, and sexual and physical abuse.
In February 2023, Justice Perell dismissed the plaintiffs’ motion to have the case certified as a class action, finding that there was insufficient commonality to satisfy the certification test, and that the proposed action would not be manageable. He held that the plaintiffs’ collective theory of liability was untenable, since a team could not be held responsible for another team’s actions unless it was directly involved. In addition, since the representative plaintiffs were members of only five teams, the other 55 teams were successful in having the plaintiffs’ action dismissed against them pursuant to the Ragoonanan principle, which holds that in a proposed class action, there must be a representative plaintiff with a claim against each defendant.
Following these decisions, the plaintiffs brought a motion pursuant to section 7 of the CPA to transition the proposed action to an alternate process. Rather than dismissing the case entirely and requiring each potential plaintiff to litigate individually—a cost-prohibitive approach that would undermine judicial economy. Instead, section 7 provides a mechanism for designing alternative procedures. The motions judge granted the plaintiff’s motion and ordered that the action be converted into up to 60 opt-in “joinder” actions.
A joinder action is where two or more individuals who are represented by the same lawyer join as plaintiffs in the same proceeding, where they assert claims that arise out of the same occurrence, or the claims give rise to common questions of fact or law. In Carcillo, each joinder action was to be prosecuted by plaintiffs alleging abuse suffered against a specific team, the regional league that the team plays in, and the CHL.
Justice Perell included provisions that would affect the determination of the joinder actions. Most notably, he set out a notice plan that would inform the class about the dismissal of certification and the new option to opt-in to an applicable joinder action. It also outlined the opt-in procedure for the joinder actions, including signing the court approved Contingency Agreement retaining lawyers for one of the joinder actions, and providing the lawyers with the particulars of their claim so that they can be placed into the appropriate lawsuit. From an access to justice perspective, ensuring this critical information is disseminated in a comprehensible way is very important since it differs quite significantly from the traditional class action model. The most significant difference, in Ontario specifically, being that joinders are opt-in actions, meaning affected individuals are not automatically included if they meet an established definition in the way that they would be if the action was certified to proceed as a class action. To date, the section 7 Order in Carcillo has not yet been implemented.
While Justice Perell’s decision in Carcillo demonstrates that section 7 of the CPA can be a valuable mechanism for achieving access to justice in mass cases through a process akin to class actions, it is not without its challenges. In examining the procedural logistics problems in transitioning the Carcillo action from a proposed class action into a different adjudicative dispute resolution system, Justice Perell emphasized that section 7 is not a universal cure for all the problems of access to justice. There are jurisdictional limits to the procedural powers of the court under the CPA, the Rules of Civil Procedure, and the court’s inherent, common law, and equity jurisdiction. There are also jurisdictional limitations, as he held that both parties overreached in their aspirations for procedural innovations in the section 7 plan that are beyond the court’s jurisdiction.
Another Example: Barker v. Barker
In his decision, Justice Perell analyzed other cases that have demonstrated the utility of the section 7 procedure, most notably Barker v Barker, 2020 ONSC 3746 and 2021 ONSC 158, var’d 2022 ONCA 567. Barker involved patients who were psychologically and physically abused after involuntary admission to the Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario between 1966 and 1983. Patients suffering from severe psychiatric illnesses were involuntarily admitted to the maximum-security facility. The admissions came from various sources, including Warrants of Remand from the courts, penitentiaries, and reformatories, and others were involuntarily committed under the applicable version of the Mental Health Act at the time.
The plaintiffs’ certification motion was dismissed because, although there were causes of actions and common issues, the plaintiffs failed to demonstrate that a resolution of issues would advance the proceedings. In 2006, pursuant to section 7 of the CPA, the plaintiffs moved for an order permitting the action to continue as a joinder action with approximately 30 individual co-plaintiffs. The motion was granted, and the action continued as a joinder action. Justice Perell succeeded Justice Cullity in case managing Barker, and granted summary judgment, but his decision was reversed by the Court of Appeal and Justice Morgan assumed the role of case management. Justice Morgan successfully led the case towards a conclusion, assessing damages for the 28 plaintiffs who opted into the joinder action, thus achieving all three fundamental goals of a class action: access to justice, behaviour modification and judicial economy. Barker shows that the section 7 procedure can therefore provide an alternative to a class proceeding.
Multidistrict Litigation
As an interesting comparator, it is helpful to review the MDL process in the U.S. which governs management of mass claims that are not pursued as a class action. The U.S. has recognized that distinct procedures are needed for different types of mass claims. When multiple actions with common questions arise in different judicial districts, MDL allows for the transfer of those actions to one judicial district under a single judge. A motion for the transfer of actions will only be granted where:
- One or more common questions of fact are pending in different districts;
- Transfer would serve the convenience of the parties and witnesses; and
- Transfer will promote the just and efficient conduct of such actions.[1]
After resolving the common issues, the cases return to their original districts for the determination of individual issues. Today, mass torts in the U.S. are typically handled through MDLs rather than class actions, as cases with predominant individual issues, like causation and damages, fail to meet the US Federal Rule 23’s requirement that common questions outweigh individual ones. Moreover, the streamlined structure of MDLs consolidates similar cases, reduces duplication and inconsistency while minimizing the need for parties to independently design processes or resolve procedural uncertainties. In Canada, unless federal legislation that provides a similar process to MDLs is enacted, a section 7 Order will be the most comparable option.
Conclusion
Looking to the future, Carcillo serves as a valuable decision for courts and litigants to consider alternative, innovative procedures to resolve mass tort claims when individual actions are not feasible, and class certification is denied. By leveraging the flexibility provided under section 7 of the CPA, courts can create bespoke processes that are sensitive to the specific circumstances of the cases before them. Unless Canadian jurisdictions implement a system akin to the U.S. MDL framework, the section 7 Order stands as the closest functional equivalent. Despite its limitations, it could potentially provide a flexible tool for managing non-class action mass torts, bridging a critical gap in our legal system.
[1] Suzanne Chiodo, “Safety in Numbers or Lost in the Crowd? Litigation of Mass Claims and Access to Justice in Ontario” (2023) 39 Windsor Y B Access Just at 48-77.
