COURT FILE NO.: CV-20-00642705-00CP
DATE: 2023/09/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIEL CARCILLO. GARRETT TAYLOR, and STEPHEN QUIRK
Plaintiffs
- and -
ONTARIO MAJOR JUNIOR HOCKEY LEAGUE, CANADIAN HOCKEY LEAGUE, WESTERN HOCKEY LEAGUE, QUÉBEC MAJOR JUNIOR HOCKEY LEAGUE, BARRIE COLTS JUNIOR HOCKEY LTD., GUELPH STORM LTD., HAMILTON BULLDOGS FOUNDATION INC., KINGSTON FRONTENACS HOCKEY LTD., KITCHENER RANGERS JR. A. HOCKEY CLUB, LONDON KNIGHTS HOCKEY INC., MISSISSAUGA STEELHEADS HOCKEY CLUB INC., 2325224 ONTARIO INC. o/a MISSISSAUGA STEELHEADS, NIAGARA ICEDOGS HOCKEY CLUB INC., NORTHBAY BATTALION HOCKEY CLUB LTD., OSHAWA GENERALS HOCKEY ACADEMY LTD., OTTAWA 67'S LIMITED PARTNERSHIP c.o.b. OTTAWA 67's HOCKEY CLUB, THE OWEN SOUND ATTACK INC., PETERBOROUGH PETES LIMITED, 649643 ONTARIO INC. o/a 211 SSHC CANADA ULC o/a SARNIA STING HOCKEY CLUB, SOO GREYHOUNDS INC., SUDBURY WOLVES HOCKEY CLUB LTD., WINDSOR SPITFIRES INC., MCCRIMMON HOLDINGS, LTD., 32155 MANITOBA LTD., A PARTNERSHIP c.o.b. as BRANDON WHEAT KINGS, BRANDON WHEAT KINGS LIMITED PARTNERSHIP, CALGARY FLAMES LIMITED PARTNERSHIP, CALGARY SPORTS AND ENTERTAINMENT CORPORATION, EDMONTON MAJOR JUNIOR HOCKEY CORPORATION, KAMLOOPS BLAZERS HOCKEY CLUB, INC. KAMLOOPS BLAZERS HOLDINGS LTD., KELOWNA ROCKETS HOCKEY ENTERPRISES LTD., PRINCE ALBERT RAIDERS HOCKEY CLUB INC., EDGEPRO SPORTS & ENTERTAINMENT LTD., QUEEN CITY SPORTS & ENTERTAINMENT GROUP LTD., BRAKEN HOLDINGS LTD., REBELS SPORTS LTD., SASKATOON BLADES HOCKEY CLUB LTD., VANCOUVER JUNIOR HOCKEY LIMITED PARTNERSHIP and VANCOUVER JUNIOR HOCKEY PARTNERSHIP, LTD c.o.b. VANCOUVER GIANTS, WEST COAST HOCKEY LLP, WEST COAST HOCKEY ENTERPRISES LTD., o/a VICTORIA ROYALS, MEDICINE HAT TIGERS HOCKEY CLUB LTD., 1091956 ALTA LTD. o/a THE MEDICINE HAT TIGERS, SWIFT CURRENT TIER 1 FRANCHISE INC. and SWIFT CURRENT BRONCOS HOCKEY CLUB INC. o/a THE SWIFT CURRENT, ICE SPORTS & ENTERTAINMENT INC. o/a WINNIPEG ICE, MOOSE JAW TIER 1 HOCKEY INC. D.B.A. MOOSE JAW and MOOSE JAW WARRIORS TIER 1 HOCKEY, INC. WARRIORS o/a MOOSE JAW WARRIORS, LETHBRIDGE HURRICANES HOCKEY CLUB, 649643 ONTARIO INC. c.o.b. as SARNIA STING, KITCHENER RANGER JR A HOCKEY CLUB and KITCHENER RANGERS JR “A” HOCKEY CLUB, LE TITAN ACADIE BATHURST (2013) INC., CLUB DE HOCKEY JUNIOR MAJEUR DE BAIE-COMEAU INC. o/a DRAKKAR BAIE-COMEAU, CLUB DE HOCKEY DRUMMOND INC. o/a VOLTIGEURS DRUMMONDVILLE, CAPE BRETON MAJOR JUNIOR HOCKEY CLUB LIMITED o/a SCREAMING EAGLES CAPE BRETON, LES OLYMPIQUES DE GATINEAU INC., HALIFAX MOOSEHEADS HOCKEY CLUB INC., CLUB HOCKEY LES REMPARTS DE QUÉBEC INC., LE CLUB DE HOCKEY JUNIOR ARMADA INC., MONCTON WILDCATS HOCKEY CLUB LIMITED, LE CLUB DE HOCKEY L’OCÉANIC DE RIMOUSKI INC., LES HUSKIES DE ROUYNNORANDA INC., 8515182 CANADA INC. c.o.b. as CHARLOTTETOWN ISLANDERS, LES TIGRES DE VICTORIAVILLE (1991) INC., SAINT JOHN MAJOR JUNIOR HOCKEY CLUB LIMITED, CLUB DE HOCKEY SHAWINIGAN INC. o/a CATARACTES SHAWNIGAN, CLUB DE HOCKEY JUNIOR MAJEUR VAL D’OR INC. o/a VAL D'OR FOREURS, 7759983 CANADA INC. c.o.b. as CLUB DE HOCKEY LE PHOENIX, 9264-8849 QUÉBEC INC. c.o.b. as GROUPE SAGS 7-96 AND LES SAGUENÉENS, JAW HOCKEY ENTERPRISES LP c.o.b. ERIE OTTERS, IMS HOCKEY c.o.b. FLINT FIREBIRDS, SAGINAW HOCKEY CLUB, L.L.C., EHT, INC., WINTERHAWKS JUNIOR HOCKEY LLC, PORTLAND WINTER HAWKS INC., THUNDERBIRDS HOCKEY ENTERPRISES, L.L.C., BRETT SPORTS & ENTERTAINMENT, INC., HAT TRICK, INC., TRI-CITY AMERICANS HOCKEY LLC, and TOP SHELF ENTERTAINMENT, INC.
Defendants
Proceeding under the Class Proceedings Act, 1992
• James Sayce, Vlad Calina, and Caitlin Leach for the Plaintiffs.
• Michael Eizenga, Gannon Beaulne, Marshall Torgov, Nina Butz, and Ethan Schiff for the Defendants.
• Crawford Smith, Katelyn Johnstone, Nadia Campion, Timothy Pinos, Hardeep Dhaliwal for the Jaw Hockey Enterprises LP c.o.b. Erie Otters, IMS Hockey c.o.b. Flint Firebirds, Saginaw Hockey Club, L.L.C., EHT, Inc., John Doe Corp. A o/a Everett Silvertips Hockey Club, Winterhawks Junior Hockey LLC, Portland Winter Hawks Inc., Thunderbirds Hockey Enterprises, L.L.C., John Doe Corp. B o/a Seattle Thunderbirds, Brett Sports & Entertainment, Inc., Hat Trick, Inc., John Doe Corp. C o/a Spokane Chiefs, Tri-City Americans Hockey LLC and John Doe Corp. D o/a Tri-City Americans.
Hearing: September 13, 2023
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] These are Reasons for Decision for Phase 2 of a motion to settle a Rule 7 Order pursuant to the Class Proceedings Act, 1992.[^1] The factual and legal background for the motion are set out in the Reasons for Decision for Phase 1 reported as Carcillo v. Canadian Hockey League, 2023 ONSC 4983.[^2]
[2] At the conclusion of the hearing for Phase 1, I directed the parties: (a) to exchange revised drafts by September 5, 2023; (b) then to meet and consult about the revised drafts; and then (c) by September 12, 2023 to submit for the court’s consideration their respective revised drafts. The review of the revised drafts would be the subject matter of the Phase 2 hearing scheduled for September 13, 2023.
[3] I received revised drafts with written commentary from the Plaintiffs and from the Defendants. The drafts and several new procedural matters were discussed at the hearing of Phase 2.
B. Version 2 of the Draft Section 7 Plan
[4] Save for several provisions, which shall be the subject matter topics of Phase 3, I settled the form and content of the Draft Section 7 Plan as set out below. My own commentary follows about the revisions to the Plan. As before, these provisions are not finalized and I welcome the comments of the parties.
- style of cause –
Section 7 Plan
1.0 Recitals
1.1 Pursuant to the Class Proceedings Act, 1992, Daniel Carcillo, Garrett Taylor and Stephen Quirk brought a proposed class action (Court File CV-20-642705-00CP;) against 60 amateur hockey teams, the Western Hockey League (“WHL”), the Ontario Hockey League (“OHL”), the Québec Major Junior Hockey League (“QMJHL”), and the Canadian Hockey League (“CHL”).
1.2 The proposed class action was brought on behalf of the following putative Class Members, hereinafter referred to as “Players”:
All former and current players who claim to have suffered the “abuse” while playing in the CHL League between May 8, 1975 and the present.
1.3 The proposed class action had a class period commencing on May 8, 1975.
1.4 The Plaintiffs advanced four causes of action against the collective of the WHL, OHL, QMJHL, CHL, and their 60 teams, namely: (a) breach of fiduciary duty; (b) systemic negligence; (c) vicarious liability; and (d) breach of Québec causes of action.
1.5 The fundamental purposes of the Plaintiffs’ lawsuit were: (a) behaviour modification; i.e., ending a culture of “abuse”; and (b) access to justice; i.e., imposing a collective liability to pay compensation to the victims of the “abuse.”
1.6 The Fresh as Amended Statement of Claim defined the “abuse” as follows:
“Abuse” means, inter alia, physical, and sexual assault, hazing, bullying, physical and verbal harassment, sexual harassment, forced consumption of alcohol and illicit drugs, and the use of homophobic, sexualized and/or racist slurs directed against minors playing in the Leagues, perpetrated by players, coaches, staff, servants, employees, and agents of the Leagues, including players, coaches, staff, servants, employees, and agents of the teams, as further particularized herein.
1.7 The Plaintiffs moved for certification of their action as a class action, and the Defendants opposed certification, and brought a Jurisdiction Motion and a Ragoonanan Motion.
1.9 There was a four-day hearing of the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion, and the court ruled, among other things, that:
a. The Ontario Superior Court of Justice has jurisdiction simpliciter over all of the Defendants; therefore, the Jurisdiction Motion was dismissed.
b. There are no collective causes of action; therefore, the Plaintiffs cannot be Representative Plaintiffs for claims against 55 of the teams of the CHL ("the Ragoonanan Defendants"); therefore, the Ragoonanan Motion was granted.
c. The Certification Motion was dismissed because the Plaintiffs did not satisfy all of the certification criteria.
d. The Orders dismissing the Certification Motion and dismissing the action as against the Ragoonanan Defendants were suspended pending the determination of a motion for approval of a Notice, a Notice Plan, and a Section 7 Plan.
e. The Plaintiffs brought a motion for approval of the Notice, the Notice Plan, and a Section 7 Plan.
1.10 The purpose of the Section 7 Plan is to transition the proposed class action into up to 60 joinder actions to be commenced in Ontario in the Superior Court of Justice against the 60 defendant hockey teams, their defendant owners, the CHL, WHL, OHL, and QMJHL as co-defendants.
2.0 Approval of Section 7 Plan, the Notice, the Notice Plan, and the Contingency Fee Retainer Agreements.
2.1 The Court approves this Section 7 Plan, which includes a Notice and a Notice Plan.
2.2 The Court approves the Notices set out in this Section 7 Plan.
2.3 The Court approves the Notice Plan set out in this Section 7 Plan.
2.4 The Court approves the Players’ Contingency Fee Retainer Agreement set out in the Section 7 Plan as Schedule “I”.
2.5. The Section 7 Plan shall be governed by: (a) the Class Proceedings Act, 1992; (b) the Courts of Justice Act; (c) the Rules of Civil Procedure; and (c) the Superior Court of Justice’s inherent, common law, and equity jurisdiction.
2.6. On the motion of a party, the Section 7 Plan, other than 7.11 to 7.15, may be amended by further court order.
3.0 Notice
3.1 In accordance with the Notice Plan set out in the Section 7 Plan, the Administrator shall distribute to the Players the Notice set out in Schedule “II” to this Section 7 Plan.
3.2 In accordance with the Notice Plan set out in the Section 7 Plan, Koskie Minsky LLP and each of the Defendants shall post on their respective webpages, if any, the Notice set out in Schedule “III” to this Section 7 Plan.
3.3. In accordance with the Notice Plan set out in the Section 7 Plan, Koskie Minsky LLP shall release the Press Release set out in Schedule “IV” to this Section 7 Plan, which Press Release shall contain a link to the Notice set out in Schedule “II” to this Section 7 Plan.
3.4 In the Notices set out in Schedules II and III, the Players will be notified:
(a) that a proposed class action brought on their behalf was not certified.
(b) that had the proposed class action been certified, each Player would have had the two mutually exclusive choices of:
(i) opting-out of the class action, in which case the Player could sue the Defendants as a self-represented litigant or could sue the Defendants by retaining a lawyer of his own choosing; or
(ii) joining the class action (by not opting out), in which case the Playaer would have been represented by Koskie Minsky, LLP as Class Counsel.
(c) that since the proposed class action was not certified, the Player now has the three mutually exclusive choices of:
(i) [insert opt-in date] (180 days from the approval of the Section 7 Plan) electing to sue the Defendants in one or more of 60 actions to be commenced by Koskie Minsky LLP pursuant to court approved Contingent Fee Retainer Agreements and pursuant to a Section 7 Plan;
(ii) suing the Defendants as a self-represented litigant, in which case the Player should be alert to the resumption of the running of limitation periods on [insert s.28 termination date] (365 days from the approval of the Section 7 Plan); or
(iii) suing the Defendants by retaining a lawyer, in which case, the Player should be alert to the resumption of the running of limitation periods on [insert s.28 termination date] (365 days from the approval of the Section 7 Plan).
4.0 Notice Plan
4.0.1 Save as otherwise provided, the Notice Plan shall be administered by […] whose fees and expenses shall be paid by the Defendants, such fees and expenses not to exceed $ […].
4.1 Each of the Defendants shall by [insert contact information date] (36 days from the approval of the Section 7 Plan) provide Koskie Minsky LLP and the Administrator with a list of the Players’ mail addresses, email addresses, and telephone numbers for text messages within their possession, power, or control.
4.2 Koskie Minsky LLP shall compile and provide to the Administrator by [insert contact information date] (36 days from the approval of the Section 7 Plan) a list of the Players’ mail addresses, email addresses, and telephone numbers for text messages within its possession, power, or control.
4.3 The Administrator shall by [insert notice date] (72 days from the approval of the Section 7 Plan) disseminate by mail, email, and text messages the Short Form Notice attached as Schedule “II,” for mail and email, and, for text messages, the Notification attached as Schedule "IV," in English and in French.
4.4. Koskie Minsky LLP and the Defendants shall by [insert notice date] (45 days from the approval of the Section 7 Plan) post on their respective webpages, if any, the Short Form Notice set out in Schedule “II” in English and in French.
4.5 Koskie Minsky LLP shall by [insert notice date] (72 days from the approval of the Section 7 Plan) arrange for the issuance of the Press Release set out in Schedule “IV” in English and in French through Canada Newswire and United States Newswire.
4.6 Each of the Defendants with an active account on Facebook, Instagram, or Twitter/X, shall post on each such account, in the language most commonly used on that account, in both text and image formats, the Notification, attached as Schedule "IV", including a hyperlink, where possible, at least four times, no less than 14 days apart, prior to the opt-in date.
4.7 Administrator shall arrange for the distribution of the Notification through internet banner notices on Google Display Network, Facebook, and advertisements on other social media applications, including but not limited to Instagram and Twitter/X.
5.0 Opt-In Procedure
5.1 If a Player chooses to participate in this Section 7 Plan, he must, by the opt-in date, being [insert opt-in date] (270 days from the approval of the Section 7 Plan):
(a) sign the court approved Contingent Fee Retainer Agreement retaining Koskie Minsky LLP as his lawyer for one or more of the 60 actions against the Defendants;
(b) provide to Koskie Minsky LLP, in writing or otherwise, particulars of their claim, which particulars will remain subject to lawyer and client and litigation privilege.
5.3 A Player may not opt-in after the opt-in date, subject to section 5.6 below.
5.4 The particulars that Koskie Minsky LLP may require a Player to provide in order to be deemed to have opted-in include particulars:
(a) to confirm that the Player is a putative Class Member;
(b) to confirm that the Player was a victim of the “abuse”;
(c) that describe the incidents or incidents of the “abuse” including place(s), times, dates, participants; witnesses, events, etc.;
(d) that describe the personal physical and mental harm suffered as a result of the “abuse”;
(e) that specify the relief that he would be seeking as a co-plaintiff in one or more of the 60 actions against the Defendants;
(f) that describe the monetary or financial harm he suffered as a result of the “abuse”, and
(c) to provide such further and other information as required by Koskie Minsky to join the Player as a co-plaintiff in one or more of the 60 actions against the Defendants.
5.5 If the Player chooses to retain Koskie Minsky LLP to sue the Defendants, he agrees by the opt-in date to attend an intake interview with Koskie Minsky LLP, which interview may be conducted in person or remotely by video or telephone conference.
5.6. Players who seek to opt-in to this plan after the opt-in date, but before the commencement of actions, may participate in the plan at the discretion of Koskie Minsky LLP, provided that the requirements in Part 7 of this plan can be met for that player.
6.0 Commencement of the Running of Limitation Periods
6.1 The dismissal of the Certification Motion shall come into effect upon the approval of the Section 7 Plan.
6.2 The dismissal of the action as against the Ragoonanan Defendants shall come into effect 365 days after the approval of the Section 7 Plan.
6.3 Any dismissal or discontinuance of the proposed class action, sought by any party, shall, if granted, only come into effect 365 days after the approval of the Section 7 Plan.
7.0 Commencement of Actions
7.1 By [insert commencement date] (365 days after the approval of the Section 7 Plan), Koskie Minsky LLP, shall commence in the Ontario Superior Court of Justice in Toronto, up to 60 actions against the teams of the WHL, OHL, and QMJHL, and the CHL, WHL, OHL, and QMJHL as co-defendants ["the Actions"].
7.2 The Statements of Claim shall name Toronto as the place of trial without prejudice to the court upon motion of any party changing the venue to another place of trial in Ontario. No party shall bring a motion for a change of venue for any action prior to that action being ready to be set down for trial pursuant to Rule 48 of the Rules of Civil Procedure.
7.3 The Actions shall be commenced for the putative Class Member who have retained Koskie Minsky LLP pursuant to the court approved Contingency Fee Retainer Agreements.
7.4 The up to 60 actions shall each by governed by the Rules of Civil Procedure and the Section 7 Plan.
7.5 The up to 60 actions shall be commenced by Statement of Claim. The Statement of Claims shall attach as schedules the individual claims of each Player joined as a co-Plaintiff.
7.6 The Players are dominus litus and the Statements of Claim and the attached schedules may be pled in accordance with the privileged instructions of the Players as to the material facts and there is no obligation on the Players to disclose witnesses or participants in the events described although they are at liberty to do so.
7.7. Without leave of the court, in the Statements of Claims, the Players may plead only the causes of action that were pleaded for the Certification Motion save and except the cause of action for (a) breach of fiduciary duty.
7.8 The Statements of Claim in the up to 60 actions shall be sealed in the court’s file.
7.9 Koskie Minsky LLP shall file in the open court file copies of the Statement of Claim substituting pseudonyms for the Players in the style of cause and in the schedules attached to the Statement of Claim (the "Anonymized Claims"). Koskie Minsky LLP shall be permitted to redact any personally identifying information in the Anonymized Claims only, to preserve the Players' anonymity.
7.10 The Lawyers who appeared at the Certification Motion as counsel for the Defendants shall admit service of the Statements of Claim, which shall be served along with a Specialized Rule 49 Offer for each Player.
7.11 The Defendants may not at any stage in the Actions challenge the jurisdiction of the Ontario court on the grounds of absence of jurisdiction simpliciter.
7.12 The Defendants may not at any stage in the Actions challenge the jurisdiction of the Ontario court on the grounds of forum non conveniens.
7.13 The Defendants may not at any stage in the Actions challenge the joinder of plaintiffs to the 60 actions, the joinder of defendants, or the joinder of causes of action.
7.14 The Defendants may not at any stage in the Actions bring any motions for particulars or to challenge the Statements of Claims or the attached Schedules for pleading irregularities.
7.15 No party may bring any preliminary, interim, or interlocutory motion in any of the Actions until the pleadings are closed in that action.
7.16 Notwithstanding 7.15, any party may bring a motion for a confidentiality or sealing order pursuant to the Rules of Civil Procedure.
8.0 Statements of Defence and Third Party Claims
8.1 Using the pseudonyms style of cause, the Defendants shall deliver their respective Statements of Defence and any Third Party Claims within thirty days of service of the Statements of Claim or as the parties may otherwise agree or the court may order. The service, filing, and sealing of Statements of Defence and Third Party Claims shall be handled in the same manner as Statements of Claim.
8.2 The version of the Statements of Defence and Third Party Claims filed with the Court will be anonymized in accordance with 7.9.
9.0 Case Management
9.1 After the close of pleadings, the up to 60 actions shall be case managed by a single judge appointed by the Regional Senior Judge in Toronto.
10.0 Privacy, Confidentiality, Privilege, and Disclosure of Information
10.1 Nothing in this plan abrogates the normal rules of privilege including lawyer and client privilege, litigation privilege, and settlement privilege.
10.2 It is a principle of the Section 7 plan that as between the parties there shall be full disclosure of relevant information in accordance with the Rules of Civil Procedure and that the open court principle applies to hearings in open court at which time subject to confidentiality or privacy orders to the contrary, the sealed pleadings will be unsealed.
10.3 After the close of pleadings, the parties may apply for confidentiality and privacy orders pursuant to the Rules of Civil Procedure as they may be advised.
11.0 Affidavits of Documents
11.1 Within 60 days after the close of pleadings, each Player shall serve his or her Affidavit of Documents and the documents referenced therein unless his claim has settled pursuant to the Rule 49 Offer or otherwise.
11.2 Within 60 days after the close of pleadings, each co-Defendant shall serve his or her Affidavit of Documents and the documents referenced therein.
11.3 The parties’ respective affidavits of documents shall not be filed in the court file.
12.0 Examinations for Discovery
12.1 Subject to the provisions of this section of the Section 7 Plan, the parties shall settle a Discovery Plan in accordance with the Rules of Civil Procedure.
12.2 The evidentiary record from the Certification Motion, the Jurisdiction Motion, and the Ragoonanan Motion shall be deemed to be examinations for discovery in all of the up to 60 actions, as a supplement to the ordinary discovery process under the Rules of Civil Procedure in the up to 60 actions.
12.3 The deemed undertaking rule and the common law implied undertaking rule shall not apply in all of the up to 60 actions.
13.0 Specialized Rule 49 Offers
13.1 Koskie Minsky LLP shall deliver with the Statements of Claim in the up to 60 actions a specialized Rule 49 Offer to reflect the exigencies of the particular action.
13.2 In any event, the Specialized Rule 49 Offers will augment the schedules to the Statement of Claim with a list of documents or affidavits that support and quantify the Players’ claims.
14.0 Bellwether Trial
14.1 A bellwether trial will be an important ingredient in the effective and efficient resolution of the actions.
14.2 As soon as possible after the commencement of the Actions, the parties, with the assistance of the case management judge, will select an action or actions to proceed on an expedited basis to a bellwether trial to provide judicial guidance on:
a) The existence, and extent, of the CHL, Member League and Teams' duty of care to former players;
b) The standard of care and its evolution over time;
c) The vicarious liability of the CHL, Member Leagues and Teams for the abuse; and
d) The apportionment of damages, to the extent that the Defendants claim over.
14.3 The bellwether trial will proceed on an expedited time frame, to be determined in case management, which time frame will provide a template for the balance of the Actions.
Schedule “I” – Koskie Minsky LLP, Contingency Fee Retainer Agreement [to be drafted]
Schedule “II” – Short Form Notice
Schedule “III” – Web Page Notice
Schedule “IV” – Notification
C. Commentary
[5] By way of an explanation for the revisions to the Section 7 Plan, I have the following commentary.
[6] The revised draft plan corrects a number of typographical or semantic errors about which I have no comments except to thank the lawyers for their editing skills.
[7] The reference to the Family Class has been removed from s. 1.2 of the Plan. The deletion of this reference, however, does not preclude the assertion of family law claims in the up to 60 joinder actions.
[8] Section 2.6 has been amended to make it clear that the procedural directions found in sections 7.11 to 7.15 of the Plan are entrenched provisions that cannot be amended by further court order.
[9] Section 3.1 has been amended to provide that the Administrator shall distribute the notice set out in Schedule “II.”
[10] Section 4.0.1 has been added to have an Administrator appointed to implement the Notice Plan.
[11] Section 4.1 has been amended to refer to the Administrator.
[12] Section 4.2 has been amended to refer to the Administrator.
[13] Section 4.3 has been amended to require the Administrator to distribute the Short Form Notice (Schedule “II”) and a Notification (Schedule “IV”).
[14] Section 4.5 has been amended to add a Press Release to be issued through United States Newswire.
[15] Sections 4.6, 4.7, and 4.8 are new provisions designed to enhance the notice plan by requiring: (a) the Defendants with an active account on Facebook, Instagram, or Twitter/X to post the Notification (Schedule “IV”); and (b) the Administrator to arrange for distribution of Notification through internet banners and advertisements.
[16] In their revised draft Koskie Minsky proposed that there also be a television advertisement to be broadcast during the Memorial Cup. I have not included this proposal in the draft. It was vehemently opposed by the Defendants. I decided that the requirement that the Defendants post the Notice (Schedule “IV”), the text of which remains to be settled, on all of their Facebook, Instagram, and Twitter/X accounts was more than adequate for the purposes of alerting the Players of their opt-in rights. There was evidence that the penetration of notice varied across the country depending on what social media account was being used. Section 4.6 provides the optimum by using all three social media accounts if possible.
[17] Section 4.9 (formerly s. 4.6) has been revised to require the Defendants to pay Koskie Minksy LLP’s fees and disbursements for the Notice Plan fixed at a sum to be determined.
[18] The Opt-In procedure set out in sections 5.1 to 5.6 has been revised to substitute for a questionnaire a more flexible and informal way for Koskie Minsky to be instructed about the player’s claim and participation in the up to 60 joinder actions and for late opt-ins that would not interfere with the commencement date for the actions.
[19] Section 6.0 of the Section 7 Plan, which is designed to prevent the resumption of limitation periods until the up to 60 joinder actions have been commenced has been revised to accord with the amendments to s. 28 of the Class Proceedings Act, 1992.
[20] Section 7.2 has been amended to prohibit change of venue motions until the action is ready to be set down for trial.
[21] Section 7.9 has been enhanced to protect the privacy of the players in the anonymized public version of the Statement of Claim.
[22] Sections 7.11 to 7.14 have been revised to emphasize that jurisdiction simpliciter, forum conveniens, the joinder of parties, and joinder of causes of action cannot be relitigated.
[23] Section 7.15 is a new provision regulating interlocutory motions, which are prohibited until the pleadings are closed.
[24] Section 7.16 provides an exception to s. 7.15 for confidentiality or sealing orders before the close of pleadings.
[25] Section 8.1 has been amended to clarify the privacy provisions with respect to statements of defence and third party proceedings.
[26] Section 12.2 has been amended to clarify the use of the record from the Certification Motion does not displace but rather supplements the parties’ discovery rights and obligations.
[27] The Plaintiffs had requested a section to provide a deadline for scheduling and completing examinations for discovery. I have not included such a provision. The scheduling of discoveries is a matter best dealt with by a discovery plan and by the supervision of the case management judge.
[28] Section 14 is a new section providing for bellwether trials.
[29] It may be noted that the proposed revised draft Section 7 plan does not prescribe the scope of the third party proceedings. The scope of third party proceedings is a matter of substantive law not procedural law.[^3]
[30] As noted above, the parties are at liberty to make further refinements and suggestions. The major topics that remain outstanding for Phase 3 are the content of Schedules “I”, “II”, “III” and “IV”. Also to be discussed at Phase 3 is the matter of the reintroduction of an Administrator to the Section 7 Plan and the matter of who bears the costs of the Notice Plan.
D. Conclusion
[31] I once again commend the parties and their lawyers and thank them for their ongoing contribution to solving a very challenging problem of procedural logistics for the administration of justice.
Perell, J.
Released: September 13, 2023
COURT FILE NO.: CV-20-00642705-00CP
DATE: 2023/09/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIEL CARCILLO and GARRETT TAYLOR
Plaintiffs
- and -
CANADIAN HOCKEY LEAGUE et al
Defendants
REASONS FOR DECISION
PERELL J.
Released: September 13, 2023
[^1]: S.O. 1992, c. 6.
[^2]: By way of a postscript to my Reasons for Decision for Phase 1, I wish to make it clear that in the discussion of the insurance policies that may or may not be available for the 60 joinder actions, I made no substantive findings and merely set out the positions of the parties.
[^3]: As discussed during the Phase 2 hearing, the scope of the third party proceedings could be a matter of agreement between the parties, which is a matter beyond the procedural or substantive jurisdiction of the court. I suggest to the defendants that they might consider narrowing the targets of third party proceedings to genuine third parties; i.e., persons that would not already be parties to the up to 60 joinder actions. This is no more than a tentative aspirational suggestion and a reminder to the parties that they can augment the Rule 7 Plan by agreement. It remains entirely with the realm of the defendants to decide how to plead their defences and how to constitute the third party proceedings.