Certification on Thin Ice: The Court of Appeal for Ontario’s Guidance in Carcillo v. Ontario Major Junior Hockey League

On September 22, 2025, the Court of Appeal for Ontario upheld the Ontario Superior Court’s decision to dismiss certification in Carcillo v. Ontario Major Junior Hockey League.[1] The case arose from allegations of decades of abuse within Canada’s major junior hockey leagues. Despite upholding dismissal of certification, the Court noted important oversights by the motion judge and provided guidance with respect to when the cause of action, common issues, and preferability criteria under the Class Proceedings Act are met.[2] The Court also considered the law concerning class actions grounded in claims of systemic negligence and institutional abuse, and underscored the importance of a detailed litigation plan at certification, especially in the context of complex class actions.

The Court of Appeal’s decision reaffirms that pleadings should be read generously at the certification stage, systemic negligence cases are amenable to certification, and common issues should be assessed under a low threshold, allowing institutional duties and punitive damages to be resolved on a class-wide basis. At the same time, the case highlights how certification can ultimately turn on manageability, with an inadequate litigation plan proving fatal in complex, multi-defendant actions.

Background        

In Carcillo, three former players initiated the proposed class action in 2020 against the Canadian Hockey League (“CHL”), its three major junior leagues, and all 60 member teams. They alleged that over a 50-year span, thousands of young players were subjected to systemic abuse, including physical and sexual assaults, hazing, and emotional abuse. The Plaintiffs in Carcillo advanced claims in systemic negligence, vicarious liability, and breach of fiduciary duty, and sought to certify a national class of approximately 15,000 players.

The Superior Court refused to certify the action, citing unmanageability and an inadequate litigation plan. The motion judge held that there were no common issues across the putative class since there was no single, uniform system of conduct and establishing liability would require individualized trials. He also concluded that a class action was not the preferable procedure given the extraordinary scope and complexity of the action, which rendered it unmanageable.

On appeal, the appellant Plaintiffs argued that the motion judge erred in his assessment of the cause of action, common issues, and preferability criteria under the Class Proceedings Act.

The Court of Appeal’s Findings

Cause of Action

The Court of Appeal held that the Plaintiffs had pleaded a viable cause of action in systemic negligence against the CHL and regional leagues, and that their claims against the teams were not “plain and obvious[ly]” doomed.[3] The Court re-iterated that pleadings must be read generously at the certification stage, and held that the motion judge erred in applying “too rigorous a standard”.

The Plaintiffs presented two propositions for collective liability, which were both rejected by the motion judge. The Court of Appeal held that both propositions are legally tenable based on the pleaded facts, which should have been assumed true at this stage:

1.      Unincorporated Association Theory: The leagues could be treated as unincorporated associations comprised of their member teams. In law, unincorporated associations exist where members bind themselves to pursue a shared purpose under agreed rules. The Court noted that the National Hockey League, National Football League, and Canadian Football League have previously been recognized as unincorporated associations. Further, the existence of league corporate entities does not preclude the possibility that an association co-exists alongside.[4]

2.      Governance and Vicarious Liability: Teams could be personally liable for negligent decisions taken through their appointed governors, or vicariously liable if those governors acted as their agents. The Court noted that the pleadings alleged facts sufficient to support both personal and vicarious liability pathways.[5]

Overall, the Court concluded that the Plaintiffs’ allegations were sufficient to satisfy the cause of action requirement at this stage.

Common Issues

The Court of Appeal found that the motion judge had also imposed an unduly stringent standard in rejecting commonality. The proper threshold, the Court emphasized, remains intentionally low. A common issue need only meaningfully advance the litigation; it need not resolve liability or eliminate individual trials.[6]

The Court further stressed that the motion judge failed to follow guidance from Rumley and Cloud, binding precedents for systemic abuse class actions. Questions about whether institutions owe duties of care, whether they breached those duties, and whether they should have adopted abuse-prevention policies can be answered on a class-wide basis, even if individual trials remain necessary to establish causation and damages.[7] The Court also confirmed that, as demonstrated in Rumley and Cloud, the question of whether punitive damages are available for systemic misconduct can be treated as a common issue in systemic negligence claims. The motion judge erred in overlooking these well-established principles.[8]

Although the Court did not ultimately rule on whether the proposed common issues in Carcillo met this test (because the case failed on preferability), its reasoning provides important reassurance that the law of commonality for systemic negligence has not shifted and “[c]ourts must apply these precedents consistently and treat like cases alike”.[9]

Preferability

The decisive issue was preferability. The Court upheld the motion judge’s finding that the proceeding was unmanageable, a determination that is owed “special deference” on appeal.[10]

The motion judge had identified several features rendering the action unworkable:

• individual defences of 78 defendants spread across 13 jurisdictions;
• hundreds of likely third-party claims;
• highly diverse allegations of abuse, encompassing many different torts;
• events spanning a 50-year period;
• complex conflicts-of-law issues involving common law, civil law, and potentially U.S. law; and
• numerous limitation period defences.

The Court of Appeal accepted that these challenges would likely overwhelm the proceeding, causing it to “collapse under its own weight, frustrating the objectives of access to justice, judicial economy, and behaviour modification”.[11]

Central to this finding was the Plaintiffs’ litigation plan, which the Court described as “boilerplate – a document that failed to engage with the unique challenges of this case”.[12] In certification motions, the Court stressed, the litigation plan is the mechanism that translates theory into practice.[13] A plan that avoids the real difficulties of a case will undermine preferability.

Importantly, the Plaintiffs’ attempt to considerably narrow the case on appeal (i.e., to drop 74 team defendants and one of the junior hockey league defendants) was rejected. Appellate courts, the Court explained, will not permit fundamental changes and attempts to reframe a case on appeal, which deprives them of the motion judge’s findings and prejudices defendants.[14]

Despite upholding the motion judge’s ruling on preferability, the Court went further and addressed several broader errors in the motion judge’s analysis. First, it reaffirmed that class actions have unique power to overcome social and psychological barriers, especially in institutional abuse cases where representative plaintiffs can “blaze a trail” for others.[15] Second, it made clear that institutional abuse cases like Rumley, Cloud, and Cavanaugh remain binding authority, and while such cases can be distinguished factually, lower courts cannot ignore their precedential force.[16] Third, it confirmed that the absence of aggregate damages is not fatal to certification, since damages can be assessed individually through existing tools under the Class Proceedings Act.[17] Finally, it noted the limitations of joinder actions and cautioned that joinder is rarely a realistic substitute when thousands of claimants are involved, because it increases costs, delays, and the risk of multiplicity.[18]

Legal Significance of Carcillo

• Reaffirming Systemic Negligence: The Court confirmed that systemic negligence class actions remain viable, and courts must apply a generous reading of pleadings at certification.
• Clarifying Commonality: By correcting the motion judge’s overly strict approach, the Court reaffirmed the intentionally low threshold for the common issues threshold. Questions of institutional duties, standards of care, abuse-prevention policies, and punitive damages are all capable of class-wide resolution. This provides plaintiffs with a strong basis to continue advancing systemic questions, even where individualized trials will follow.
• Centrality of Manageability: This case demonstrates how manageability can be dispositive. A proceeding that risks overwhelming the court system will not be certified, regardless of compelling arguments for access to justice.
• Productivity of Litigation Plan: The litigation plan is critical to manageability of the action and certification can hinge on the workability of the plaintiff’s proposed plan. Plans must be detailed, concrete, and tailored to the specific litigation, especially in complex, multi-defendant cases.

Practical Implications for Class Action Lawyers

The Court of Appeal’s decision in Carcillo provides practical lessons for class counsel. First, it highlights the importance of strategic case design from the outset. Overly broad “mega-claims” involving dozens of defendants and decades of conduct may not survive certification; narrower, more targeted proceedings are more manageable and stand a stronger chance of success. Second, the decision emphasizes the litigation plan as a central advocacy tool. Counsel must treat it not as boilerplate but as a specific roadmap that demonstrates how the case will be managed in practice. A persuasive plan should address a case’s particular scale and challenges, showing the court step by step that the proceeding can be tried fairly and efficiently. Finally, the Court’s rejection of the Plaintiffs’ attempt to extensively narrow the case on appeal underscores the need to get the framing right at first instance.

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