Ontario Civil

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Impossible to certify class action against American defendants

Plaintiffs B and P were two former junior hockey players, who played in defendant league based in both Ontario and two U.S. states. B and P claimed that league and its defendant member clubs had violated employment law, by not paying them at least minimum wage. B and P proposed class action, on behalf of three classes of players based in Ontario, Michigan and Pennsylvania. League and clubs claimed that B and P were not proper representative plaintiffs. League and clubs claimed that common issues could not be found between Canadian and American-based players, due to operation of American state law. B and P moved for certification of action as class action. Motion granted in part. Class action certified on issues of breach of employment standards and unjust enrichment. Action not certified against American clubs. B and P certified as representative plaintiffs. Criteria for class action was met for all pleaded causes of action. Issues of American law would make it impossible for common issues to be litigated, for all proposed plaintiffs. Preferable procedure would be for American-based plaintiffs to litigate matter in corresponding state courts. Identifiable class was certified as Ontario-based plaintiffs, between 2012 season and date of certification motion.

Berg v. Canadian Hockey League (2017), 2017 CarswellOnt 6227, 2017 ONSC 2608, Perell J. (Ont. S.C.J.).

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