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Associations - Liability. Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff appeal where class proceeding certification had been denied.
Here the court considers the liability of unincorporated associations, here in the class proceeding certification appeal context (where the standard is “some basis in fact”):(b) Team Liability for League-Level Wrongs
[31] Second, the appellants’ theory that the teams are liable for league-level failures because they govern the leagues directly or through appointed governors is also legally tenable.
[32] It is correct, as the motion judge noted, that members of an unincorporated association are not automatically liable for the wrongful acts of the association or of other members. They are only liable for their own actions or for those of their agents. This principle, established in London Association for Protection of Trade v. Greenlands, Limited, [1916] 2 A.C. 15 (H.L.), remains settled law: see also Toews v. Isaac, 1929 CanLII 255 (MB CA), [1929] 2 D.L.R. 719 (Man. C.A.); Body v. Murdoch, [1954] O.W.N. 658 (H.C.); G.S. v. Canada (Attorney General), 2001 SKQB 427, 211 Sask. R. 164.
[33] However, Greenlands does not foreclose liability for the teams in this case. On the contrary, it leaves open two distinct pathways: (1) personal liability of teams as governors for tortious governance decisions, and (2) vicarious liability of teams for the wrongful acts of governors acting as their agents.
[34] The first pathway — personal liability — has long been recognized. Governors of unincorporated associations can be liable for negligent or intentional decisions taken in their governance role: Barrett v. Harris (1921), 1921 CanLII 434 (ON SC), 51 O.L.R. 484 (S.C.), at p. 492 (approving Brown v. Lewis (1896), 12 T.L.R. 455); Orchard v. Tunney, 1957 CanLII 57 (SCC), [1957] S.C.R. 436; Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at paras. 32–45, 55. Such liability extends to conduct that harm outsiders, such as players, even if it may not always apply to harms suffered by members themselves: Dodd v. Cook, 1956 CanLII 133 (ON CA), [1956] O.R. 470 (C.A.), at p. 486.
[35] The second pathway — vicarious liability — is equally viable. A member of an unincorporated association can be held liable for the torts of a governor who acted as its agent. This principle has been affirmed in cases such as Kinver v. The Phoenix Lodge, I.O.O.F. (1885), 7 O.R. 377 (C.A.) at pp. 387–88; Lysko, at paras. 48–52; and The Hibernian Dance Club v. Murray, [1997] P.I.Q.R. P46 (C.A.) at p. P55. The Supreme Court in Orchard also acknowledged this theory, even though it found on the facts that the governors were not agents of the members. To rely on this pathway, the plaintiff must establish an agency relationship by showing that the member and governor agreed, either expressly or implicitly, for the governor to act on the member’s behalf and under its control such that the governor could affect the member’s legal position: 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2015 ONCA 580, 337 O.A.C. 85, at paras. 69-71; Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 1988 CanLII 194 (ON CA), 64 O.R. (2d) 65 (C.A.), at p. 73.
[36] Here, the appellants pleaded sufficient facts to engage both liability pathways. Regarding personal liability, they alleged that the OHL Constitution equates governors with the teams themselves, meaning the teams could be personally liable for negligent decisions made in their governance role. Regarding vicarious liability, they alleged that each regional constitution designates league governors as agents of their appointing teams, and that the CHL Constitution allows the regional leagues — themselves controlled by the teams — to appoint most of the CHL’s governors. They also alleged the necessary elements of an agency relationship – notwithstanding some drafting deficiencies, read generously the pleadings assert that the regional constitutions require each governor to act on behalf of and under the control of a team while making governance decisions that will affect the team’s legal position. If these allegations are true, then teams could indeed be vicariously liable for negligent league-level decisions made by their appointed governors.
[37] Taken together, these allegations are sufficient to satisfy the cause of action requirement. The appellants have pleaded a legally viable theory of unincorporated association liability. Whether the leagues are, in fact, unincorporated associations, whether governors acted as agents of the teams, and whether their governance decisions give rise to personal or vicarious liability are fact-intensive issues to be determined at trial: Glen Grove Suites, at para. 71; Lysko, at paras. 32-55. At this preliminary stage, the motion judge erred in striking them down.
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