The Inbetweeners—Mass Torts That Do Not Meet the Certification Criteria

Written By Ethan Schiff and Marshall Torgov

What Canadian process is available for mass torts when a class action cannot be certified? That is one question addressed by the Ontario Superior Court of Justice in Carcillo v Canadian Hockey League (Carcillo).

In that proceeding, the motions judge declined to certify a class action brought by major junior hockey players who allege various abuses over nearly 50 years against the Canadian Hockey League corporation, three hockey league corporations and the 74 entities representing the 60 teams playing in those leagues.

Following the dismissal of certification, the plaintiffs brought a motion pursuant to, among others, section 7 of the Class Proceedings Act, 1992 (the Act), requesting that the motions judge transition the proposed class action to an alternative process. The motions judge granted the motion and ordered that the proposed class action be converted into up to 60 opt-in joinder actions (the Section 7 Order), each to be prosecuted by plaintiffs alleging abuse suffered against one team, the applicable regional league in which that team plays and the CHL.

The Section 7 Order has not been implemented. The plaintiffs have appealed both the order dismissing certification and the Section 7 Order. Those appeals remain outstanding, but—looking forward—Carcillo provides a precedent for judges and parties to fashion alternative procedures to determine mass tort claims when neither a class proceeding nor individual litigation are preferable.

The Dismissal of Certification and Granting the Section 7 Order

In February 2023, the motions judge dismissed certification. Among other things, he held that the proposed class action suffered from want of collective liability of the defendants because players have no claim against the teams and the leagues for whom they did not play. The motions judge separately concluded that there was insufficient commonality to satisfy the certification test. In his words:

the proposed class action would not be manageable and no conceivable litigation plan and certainly not the boilerplate litigation plan of Class Counsel could make this proposed class action manageable. The court would be asked to manage: (a) the individual defences of 78 defendants in 13 different jurisdictions; (b) hundreds of inevitable third party claims against the actual perpetrators, pedophiles, sadists, and sociopaths who apparently saw nothing wrong in torturing their teammates; (c) events of "abuse" that are a myriad of sins and a myriad of torts; (d) events over a 50-year period; (e) choice of law issues with respect to the common law, civil law, and possibly American law; and (f) limitation period defences; etc.

The motions judge, however, concluded that joinder of claims based on similar experiences for a single team would be a more appropriate and feasible means to achieve access to justice.

Beginning in August 2023, the motions judge presided over five hearings for the plaintiffs’ motion for the Section 7 Order. The plaintiffs initially proposed a claims-style process that included determination of claims by referring them to non-judicial adjudicators, to be confirmed by a judge. The motions judge rejected that proposal noting, among other things, limitations on the court’s jurisdiction to order “procedural innovations”.

The Section 7 Order Plan

The motions judge instead approved a tailored process to transition the proposed class action into up to 60 opt-in joinder actions, each against one team, the league applicable to that team and the CHL. The Section 7 Order also includes provisions affecting the process for the determination of the joinder actions, including to create efficiencies. Among others, the Section 7 Order provides for the following:

1. notice to the class members of the dismissal of certification and the ability to opt into a joinder action applicable to them (the notice is to include both direct notice through contact information within the defendants’ possession and indirect notice by posting on websites and social media, and is to be paid by the defendants);
2. process by which the plaintiffs may opt into a joinder action, including requirements for plaintiffs to provide information to class counsel necessary to place them into the correct joinder action;
3. requirements for filing confidential pleadings, to include redactions for identifying information until the close of the pleadings period;
4. requirements for plaintiffs to deliver specialized offers to settle;
5. processes for managing third party claims;
6. case management of all opt-in joinder actions by a single judge; and
7. specific contemplation of use of bellwether trials.

Looking Forward

As noted, the plaintiffs have appealed the Section 7 Order. However, the Carcillo case provides a precedent for future Canadian courts to implement similar processes, but it remains unclear if other courts will make similar orders or if plaintiffs will pursue such orders. To date, no additional cases have been published applying section 7 of the Act to create a comparable process. Until and if Canadian jurisdictions establish a process analogous to the U.S. multidistrict litigation, the Section 7 Order provides the closest thing to a Canadian non-class action mass tort blueprint.

Bennett Jones acts for the defendants.

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