CITATION: Pinon v. City of Ottawa, 2021 ONSC 6172
DIVISIONAL COURT FILE NO.: DC-21-2635 DATE: 20210920
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Aston, Swinton, and McCarthy JJ.
BETWEEN:
Marcel Pinon
Plaintiff/Appellant
– and –
City of Ottawa
Defendant/Respondent
COUNSEL:
Anthony Tibbs, Evatt Merchant and Iqbal S. Brar, for the Appellant
Ranjan K. Agarwal, Ashley Peterson, Michael Eizenga and Alexander C. Payne, for the Respondent
HEARD at Ottawa (by video conference): September 13, 2021
REASONS
Aston J.
Introduction and Background
[1] This appeal is the latest instalment in the litigation arising out of the horrific bus accident at Westboro Station on January 11, 2019.
[2] On January 21, 2021 MacLeod R.S.J. (the Certification Judge) dismissed a motion to certify this case as a class proceeding. The plaintiff appeals that decision to this court under s.30(1) of the Class Proceedings Act, 1992, S.O. 1992, c.6[^1] (the CPA). The plaintiff also seeks leave to appeal the related decision of the Certification Judge ordering the plaintiff to pay $182,000 for costs.
[3] Section 5(1) of the CPA reads:
5 (1) The court shall…certify a class proceeding on a motion if
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff who,
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceedings, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members
[4] Section 5(1)(d) of the CPA is the key provision of the certification test in this case. It establishes as a precondition to certification that "a class proceeding would be the preferable procedure for the resolution of the common issues". The Certification Judge correctly summarized the legal test from the jurisprudence interpreting s.5(1)(d) at paragraph 10 of his reasons:
Finally, even if all of the objective factors in s. 5 of the Act are established, the inquiry under s. 5(1)(d) is a matter of broad discretion. As already mentioned, the court must be satisfied that the proposed class proceeding would be a fair, efficient and manageable method of advancing the claim and that the class proceeding would be preferable to other reasonably available means of resolving the claims of the proposed class members. [citations omitted]
[5] The Statement of Claim in this case is at the heart of the issues now before the court. Although claims for damages by multiple parties stem from a city bus crashing into a transit station, the Statement of Claim does not address the negligence of the bus driver, the vicarious liability of the City as her employer or the statutory liability of the City as the owner of the bus. Instead the Statement of Claim focuses on claims against the City based upon systemic negligence – such as the design, construction and maintenance of the transit roadway; flaws in the procurement process and design for double decker buses; training, certification and oversight of bus drivers; policies and procedures for safety management; an inadequate emergency response after the crash and even a breach of the Consumer Protection Act, 2002, S.O. 2002, c.30 for failing to adequately advise passengers of the risk of using the Ottawa public transit system
[6] The Certification Judge ultimately concluded the case, as currently pleaded, is not the preferable procedure for the resolution of common issues. He denied certification on that basis. He found that the "structure" of the case was problematic and that the proposed representative plaintiff's evidence in support of certification "failed to explain why it would be in the best interest of the proposed class to proceed with an action that seems to focus only on difficult systemic claims while ignoring the low hanging fruit" – the defendant's admitted liability as the owner and operator of the bus.[^2] The plaintiff did not lead any evidence "to explain why completely ignoring compensation that is readily available to pursue other grounds of potential negligence would be in the best interests of the proposed class".[^3]
Standard of Review
[7] On an appeal from a certification motion (a) pure questions of law are subject to a correctness standard of review; (b) questions of fact or mixed fact and law are subject to the deferential standard of "palpable and overriding" error; and (c) substantial deference is owed on decisions under the CPA because of the special expertise of class action judges. Decisions about the preferable procedure criterion under s. 5(1)(d) are entitled to "special deference" because those decisions involve broad discretion and the weighing of multiple factors.[^4]
Grounds for Appeal
[8] The appellant submits that the Certification Judge erred in a number of different ways:
a. by finding that the "identifiable class" criterion in s. 5(1)(a) of the CPA was not met;
b. by imposing a requirement that the plaintiff prove that a class proceeding would be "the best" vehicle, not just a "preferable" vehicle;
c. by determining that the plaintiff is not at liberty to frame his causes of action as he chooses;
d. by assuming or concluding that class members necessarily have to choose between pursuing individual claims or alternatively compensation in the class proceeding (the res judicata and issue estoppel submission);
e. by determining that the proposed representative plaintiff was unsuitable;
f. by weighing the merits of the claim or its possible outcome.
[9] I reject each of these grounds for appeal for the reasons that follow.
Did the Certification Judge err in finding that the "identifiable class" criterion was not met? Or that the proposed litigation plan was flawed?
[10] The appellant submits that the Certification Judge made errors related to subsections 5(1)(b) and 5(1)(e)(i) of the CPA, but those subsections were not in issue. The defendant did not dispute that there was an identifiable class. It did not challenge the plaintiff as someone who would not fairly and adequately represent the interests of the class. More to the point, the Certification Judge did not refuse certification on the basis of ss. 5(1)(b) or (e).
Did the Certification Judge err in imposing a stricter "preferability" requirement than s.5(1)(d) demands?
[11] At paragraph 41 of his reasons the Certification Judge wrote: "There is nothing in the evidence to demonstrate that a class proceeding is the best vehicle to deter future negligence or to enhance public safety". The appellant latches on to the words "best vehicle" to support a submission that the Certification Judge applied an incorrect legal test – the proper test being whether it is "preferable", not whether it is "best".
[12] The use of the words "best vehicle" must be read in the context of the reasons as a whole. It is clear that the Certification Judge articulated the proper test of "preferable procedure" in paragraphs 7 and 9 of his reasons. In the application of that test to the particulars of this case the Certification Judge addressed in detail the shortcomings of the proposed class proceeding. On a fair reading of the totality of the reasons it is apparent the Certification Judge identified specific problems with the proposed proceeding and weighed the alternatives for proposed class members in arriving at the conclusion that a class proceeding was not preferable.
[13] The Certification Judge did not derogate from the proper test. Furthermore, the "best vehicle" reference in paragraph 41 is in the more specific and more limited context of whether it would deter future negligence or enhance public safety. The Certification Judge was quite right in asserting there was no evidence that it would.
Did the Certification Judge err by interfering with the plaintiff's right to frame the proposed class action as he sees fit?
[14] Plaintiffs have a right to strategically frame their pleadings as they wish. They may choose not to sue potential defendants. They may choose not to advance possible theories of liability. The Certification Judge acknowledged that right in paragraph 35 of his reasons. However, the right to frame an action as one wishes does not insulate a representative plaintiff from scrutiny of his decision under s.5 of the CPA. The representative plaintiff still has to satisfy all the eligibility criteria, including the "preferability" hurdle. In this case the donut metaphor found at paragraph 20 of the reasons aptly describes the odd structure of the proposed litigation as framed by the Statement of Claim. The Certification Judge did not refuse to permit the plaintiff to plead the case as he wished. The Certification Judge simply addressed the consequences of the plaintiff's choice in the context of the preferability analysis. The hole in the donut is not the failure to name the bus driver as a defendant. It is the unexplained omission of available and obvious claims against the City as the bus driver's employer and as the owner of the bus.
[15] The Certification Judge did not allude to any need to add any additional defendant. He did not assume the plaintiff's causes of action based on systemic negligence were without any merit, even though there was no independent expert opinion evidence to show some basis in fact for those claims. The Certification Judge identified the practical consequences for class members of the plaintiff's strategic choice and the inability of the plaintiff to address the associated concerns and problems identified.
[16] It is not insignificant that the disposition of the motion allows the plaintiff to amend his pleading and bring a new certification motion on better evidence. Some of the commentary in the reasons relates to that context.
Did the Certification Judge err in his conclusion that principles of stare decisis and issue estoppel necessarily require class members to elect between the class action and their individual remedies?
[17] There are precedents for class members participating in overlapping or complementary class actions. However, the plaintiff does not cite any authority for the proposition that class members can pursue damages by way of individual tort claims, or statutory claims such as accident benefits under the Insurance Act, R.S.O. 1990 c. I.8 while remaining in the class action for the same loss or injury. Paragraph 36 of the reasons does not reflect any error of law and the potential for harm to class members is a legitimate factor to consider in determining whether the class proceeding is a preferable procedure.
Did the Certification Judge err in his opinion that Marcel Pinon was not suitable as a representative plaintiff?
[18] The motion was not decided on the basis of s.5(1)(e) of the Act. This submission is moot. Moreover, it was not inappropriate for the Certification Judge to express his reservations about Mr. Pinon in the context of allowing the plaintiff to bring a fresh motion with an amended pleading and better evidence.
Did the Certification Judge err in weighing the merits of the proceeding or the likely outcome of the proposed claim?
[19] The appellant points to comments the Certification Judge made in paragraphs 30 and 33 of his reasons as an indication that he improperly considered the merits of the underlying claims. The impugned comments do not support that characterization. The musings of the Certification Judge do not constitute findings of fact or an error of law. The comments may be germane to the decision allowing the plaintiff to return to court with an amended proposal for a class proceeding but they were not the rationale for refusing certification at this juncture.
Conclusion Respecting Certification
[20] I do not accept any of the grounds advanced by the appellant as a basis to set aside the order refusing certification. The appellant has not identified a palpable and overriding error in the facts as found, nor any error of law. The discretionary nature of the exercise under s.5(1)(d) of the CPA necessitates deference on appellate review. Beyond that, I venture to add that the reasons of the Certification Judge are clear and compelling. I would dismiss the appeal.
Costs of the Certification Motion
[21] Leave to appeal the costs order is required under Rule 61.03(7) of the Rules of Civil Procedure. Leave to appeal costs is only granted if the appellant establishes "strong grounds upon which the judge erred in exercising [their] discretion" and is granted sparingly (Smith v. McKinnon, 2017 ONSC 4638 (Div. Ct.), at para. 13).
[22] The only challenge to the costs decision in this case is that the Certification Judge "failed to consider any evidence" about the public interest nature of the litigation. However, the statement "I am not persuaded that this particular litigation was in the public interest" follows the statement "I will not repeat the rationale set out in my reasons for dismissing the motion". It is evident the Certification Judge incorporated his factual findings on the motion into his consideration of the public interest factor. There was no failure to consider the evidence, and therefore no basis upon which to grant leave to appeal the costs order below.
Costs of this Appeal
[23] The respondent is presumptively entitled to costs of the appeal. Having regard to the costs outline filed and the oral submissions on the appeal I would fix those costs at $25,000 inclusive of H.S.T. and disbursements.
Conclusion
[24] The appeal of the Order of January 21, 2021 refusing certification of the action as a class proceeding is dismissed. Leave to appeal the related costs decision of April 1, 2021 is denied. The plaintiff is to pay costs of this appeal, including the request for leave to appeal costs, fixed at $25,000 inclusive of H.S.T. and disbursements.
Aston J.
I agree
Swinton J.
I agree
McCarthy J.
Date of Release: September 20, 2021
CITATION: Pinon v. City of Ottawa, 2021 ONSC 6172
DIVISIONAL COURT FILE NO.: DC-21-2635 DATE: 20210920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton and McCarthy JJ.
BETWEEN:
Marcel Pinon
Plaintiff/Appellant
– and –
City of Ottawa
Defendant/Respondent
REASONS
Aston J.
Date of Release: September 20, 2021
[^1]: Appeals under this section are now to the Court of Appeal, but the appeal is properly before this court under the transitional provisions of s.39(1). [^2]: Para. 23 of the Reasons of the Certification Judge [^3]: Para. 21 of the Reasons of the Certification Judge [^4]: See R.G. v. Hospital for Sick Children, 2018 ONSC 7058 (Div. Ct.) paras. 4-9; Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 (C.A.) at para. 43 and Maginnis v. FCA Canada Inc., 2021 ONSC 3897 (Div. Ct.), at paras. 17-18.