In Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685, released on Sept. 13, Justice Julie Thorburn held that hearing the appeal along with appeals of orders denying certification and dismissing the action against certain parties would promote the timely and cost-effective resolution of the disputes.
The responding parties Daniel Carcillo, Garrett Taylor and Stephen Quirk — three former major junior hockey players — have alleged that Canadian major junior hockey has been plagued by rampant hazing, bullying and abuse of young and vulnerable players by coaches and senior players, as well as league and team staff.
In June 2020, they commenced a proposed class action against the 78 moving parties — 60 hockey clubs, their owners and operators and various hockey leagues, including the Canadian Hockey League (CHL). They alleged that the leagues and teams inculcate a culture of silence that discourages victims of abuse from coming forward.
They sought certification of the action as a class action on behalf of all former and current players who claim to have suffered abuse while playing in the Canadian Hockey League since the founding of the CHL in 1975.
The moving parties had opposed the certification motion and brought a motion to dismiss the action against certain parties for want of representative plaintiffs.
A motion judge refused to certify the proceeding and dismissed the action against certain parties on the basis that the representative plaintiffs did not have claims against them.
The motion judge did, however, permit the action to continue as one or more proceedings between different parties pursuant to s. 7(2) of the Class Proceedings Act.
Under s. 7(2) of the act, if the court refuses to certify a proceeding as a class proceeding, it may permit the proceeding to continue as one or more proceedings between different parties.
The motion judge proposed that the litigation proceed by way of an “opt-in joinder action” for 60 actions corresponding with the 60 teams.
In October 2023, the motion judge approved the s. 7 plan and issued a transition order establishing deadlines for certain steps to be taken, including the appointment of an administrator for the plan and the giving of notice to those who could become plaintiffs in the individual actions.
The judge also held that any limitation periods relating to individual claims were to recommence running as of 365 days after the date of approval of the s. 7 plan.
The responding parties sought to appeal the certification order, the transition order and the order dismissing the action against certain defendants.
In January 2024, the moving parties brought a motion to quash the appeal of the transition order, arguing that it was interlocutory as it allowed the claims of the responding parties to continue, albeit in a different form.
They argued that since the order was interlocutory, jurisdiction over the appeal properly lay with the Divisional Court.
The responding parties argued that the Court of Appeal had jurisdiction over the appeal as the transition order had both final and interlocutory aspects, and only the final aspects orders were being appealed.
They highlighted that the transition order directed them to abandon their appeal of the certification order if no party appeals the transition order, and also set out the recommencement of limitations periods related to individual claims on a particular date.
They also submitted that the transition order dismisses the responding parties’ proceeding under the Class Proceedings Act, by a certain date prescribed under the s. 7 plan.
The responding parties also argued that the appeal was significantly interrelated with the appeals of the other two orders in the proceeding as they all concerned the preferable proceeding for the responding parties’ claims.
They further noted that if the other two appeals were granted, the transition order would have to be vacated, as a class proceeding and the s. 7 plan cannot coexist.
The court accepted that there was a significant interrelationship between the appeal of the transition order and the other two appeals.
“The appeal of the Transition Order must, therefore, be determined in a way that does not interfere with the legal questions to be resolved in the two appeals presently before this Court,” wrote Justice Thorburn.
The court observed that ordinarily, where an appeal lies to the Divisional Court and leave is required from that court, the appellant must first obtain leave from the Divisional Court before seeking to combine the appeal that rests with the Divisional Court with an appeal that rests with the Court of Appeal.
However, Justice Thorburn noted that s. 6(2) of the Courts of Justice Act provides that the Court of Appeal has jurisdiction to hear and determine an appeal that lies with the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies with and is taken to the Court of Appeal.
The judge noted that the focus of the appeal was on aspects of the transition order that were closely interrelated with the certification and dismissal appeals,
“[H]earing this appeal with the appeals of the Certification and Dismissal orders would promote, not take away from, the time and cost-effective resolution of disputes,” the judge wrote.
The judge held that the significant interrelationship between the three appeals was such that leave would have inevitably been given, and thus the fact that the responding parties did not obtain leave should not bar the Court of Appeal from hearing the appeal.
The court denied the motion to quash the appeal.
James Sayce of Koskie Minsky LLP, who acted as counsel for the responding parties, said that the motion was “appropriately dismissed” and that the responding parties were looking forward to arguing the appeal on the merits in the coming months
Vlad Calina and Caitlin Leach of Koskie Minsky LLP also acted as counsel for the responding parties.
Counsel for the moving parties were Gannon Beaulne, Ethan Schiff, Nina Butz and Marshall Torgov of Bennett Jones LLP. They were not immediately available for comment.
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