COURT FILE NO.: 09-CV-375819CP

DATE: 20140911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RIGOBERTO CARILLO

Plaintiff

– and –

VINEN ATLANTIC S.A., AIDERBROOK MANAGEMENT INC., EUGENE HAROLD, ANNA PROKOP and TORONTO HYDRO-ELECTRIC SYSTEM LIMITED

Defendants

Gary R. Will, Einav Shlomovitz, and Justin S. Linden, for the Plaintiff

Kelly Friedman and Alexi N. Wood, for the Defendant Toronto Hydro-Electric System Limited

Chris Afonso, for the Defendants Vinen Atlantic S.A, Aiderbrook Management Inc., Eugene Harold and Anna Prokop

HEARD: September 10, 2014

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] On April 2, 2009, the Plaintiff, Rigoberto Carillo commenced a proposed class action pursuant to the Class Proceedings Act, 1992, S.O. 1992 on behalf of the residents of a four-storey, 82-unit apartment building at 2369 Lakeshore Boulevard West in the City of Toronto. The residents had suffered damages as a result of a fire that occurred two weeks earlier on March 19, 2009.

[2] Mr. Carillo sued Vinen Atlantic S.A., the owner of the building, Aiderbrook Management Inc., a management company, Eugene Harold, the building superintendent, Anna Prokop, the property manager, and Toronto Hydro-Electrical Systems Limited (“Toronto Hydro”).

[3] Mr. Carillo no longer lives at the apartment building, and Adam Turner is his replacement as proposed Representative Plaintiff. On consent or unopposed, I ordered Mr. Turner’s substitution as plaintiff for Mr. Carillo.

[4] Vinen Atlantic S.A., Aiderbrook Management Inc., Mr. Harold, and Ms. Prokop consent to the certification of Mr. Turner’s action as a class proceeding. Mr. Harold and Ms. Prokop are to be let out of the action.

[5] Toronto Hydro opposes certification on a variety of grounds, but its main argument is that there is no properly pleaded negligence claim against it and, therefore, the first criterion, the cause of action criterion, has not been satisfied. With an exception for the preferable procedure criterion, it also disputes the other criteria. However, save for an adjustment to the class definition and the proposed common issues, its arguments are without merit.

[6] For the reasons that follow, I disagree that there is no properly pleaded cause of action. Much as was in case in the similar apartment fire class action case, Blair v. Toronto Community Housing Corp., 2011 ONSC 4395, [2011] O.J. No. 3347 (S.C.J.), the other criteria for certification are also satisfied.

[7] Therefore, for the reasons that follow, I certify this action as a class proceeding.

B. FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties, the Fire at 2369 Lakeshore Boulevard West, and its Aftermath

[8] The property municipally known as 2369 Lakeshore Boulevard West, Toronto is a four-storey 82-unit apartment complex. As noted above, it is owned by Vinen Atlantic S.A., and it is managed by Aiderbrook Management Inc. Mr. Harold is the building superintendent, and Ms. Prokop is the property manager.

[9] Toronto Hydro is the electricity distribution corporation for the City of Toronto. It is statutorily obliged to connect a building that lies along any of its distribution lines if requested. As described further below, Toronto Hydro installed smart meters in the electrical rooms of the apartment building at 2369 Lakeshore Boulevard West, Toronto.

[10] On March 19, 2009, there was a fire at the apartment building. The fire appears to have started in the electrical room on the third floor of the building.

[11] At the time of the fire, Mr. Turner shared apartment 106 with Bernadette Johnstone. They had lived there for about four years.

[12] Sometime before the fire, five suites (317, 319, 321, 417 and 419) were being used as marijuana grow houses by persons presently not identified as members of the proposed class. It is currently unclear whether the five suites were occupied by residents or just used by these unidentified persons as a place to grow marijuana. It also seems that the marijuana growers may have tampered with the building’s electrical wiring.

[13] The March 19, 2009 fire was a serious fire, and the residents of the building were forced to evacuate. The residents were unable to return for a considerable time. There was fire damage to their goods and premises, and some residents of the apartment suffered smoke inhalation and personal injuries.

[14] A review of the evidentiary record reveals that there is some basis in fact that the cause of the fire may have been: (a) the failure of a high resistance connection between a smart meter and a meter base; (b) the failure to interdict the marijuana growing operations; and, or (c) the failure to maintain safe electrical systems.

[15] An investigation conducted by the Electrical Safety Authority into the cause of the fire indicated that the origin of the fire was likely electrical. The major fire occurred in the third floor electrical room, which was the electrical feed for 25 apartment units including five suites (317, 319, 321, 417 and 419) identified as grow houses. The wiring to these units had been altered. Loading of grow-op light ballasts was initially suspected as cause of fire. The investigators concluded, however, that the fire was not the result of the grow-ops’ modified wiring and that it may have been a coincidental electrical failure or intentional arson related to grow-op operators.

[16] The investigators noted that insurance company forensic investigators identified an internal failure in a meter socket connected to the feeder for Apt. 114 on first floor as a possible cause of the fire.

[17] On April 2, 2009, Mr. Carillo commenced a proposed class action. He, and now Mr. Turner, plead that the fire at 2369 Lakeshore Boulevard West was caused by the Defendants’ negligence.

[18] Mr. Turner brings the proposed class action claim for the following class: “All persons other than the defendants and their employees, who resided at the Premises on March 19, 2009.”

[19] The Statement of Claim was amended on March 15, 2010 to add Toronto Hydro as a defendant. The Amended Statement of Claim alleges that the fire was caused by Toronto Hydro’s failure to properly install, maintain, and monitor its equipment or that it installed defective equipment.

[20] The Amended Statement of Claim pleads the following allegations of negligence against Toronto Hydro:

(a) It failed to properly or adequately inspect, maintain, and / or monitor electrical equipment, including smart meters and meter bases, in the electrical room of the Premises;

(b) It installed defective smart meters and meter bases at the Premises;

(d) It allowed the Premises to be left in a dangerous condition, and in particular, it failed to ensure that the smart meter and meter bases were operating safely;

(e) It hired incompetent employees or contractors for the installation of the smart meters and / or failed to properly train, instruct or supervise them in installation procedures;

(f) It failed to comply with governmental bylaws and regulations, including but not limited to compliance with applicable electrical, fire and building codes;

(g) It failed to install and / or maintain a proper or adequate fire prevention system at the Premises;

(h) It had experienced problems with smart meters or meter bases prior to the Fire but failed to take any steps to prevent similar problems at the Premises;

(i) It failed to adequately respond to complaints about a “burning smell” and electrical problems at the Premises in the days, weeks and months leading up the fire [sic];

(j) It failed to employ, train and instruct adequately or at all, competent officers, agents and / or employees;

(k) It allowed dangerous and illegal activities to be carried on in the premises; and

(l) It failed to respond to reports of conditions consistent with fire and / or electrical failure.

[21] In a separate action (Court File No. CV-11-422491), Vinen Atlantic S.A. and Aiderbrook Property Management Inc. have sued Toronto Hydro. Toronto Hydro has defended that action, which advances claims of negligence similar to those raised in the immediate case.

2. The Role and Regulation of Toronto Hydro

[22] Toronto Hydro is the licenced electricity distributor for the City of Toronto.

[23] The electricity industry in Ontario is governed by an elaborate statutory framework. The conduct of electricity distributors, including Toronto Hydro, is prescribed by the Electricity Act, 1998, S.O. 1998, c.15, Sched. A, and the Ontario Energy Board Act, 1998, S.O. 1998, c.15, Sched. B. Toronto Hydro and other distributors are also governed by orders, licences, handbooks and codes issued by the Ontario Energy Board.

[24] By Ontario Order in Council 1411/2004 dated June 23, 2004, the Lieutenant Governor in Council approved a Minister’s Directive requiring the Ontario Energy Board to develop and implement a plan to deploy a smart metering program throughout the province.

[25] In 2006, the Energy Conservation Responsibility Act, 2006, S.O. 2006, c. 3, amended the Electricity Act. The amended Act provided that the local distribution companies, like Toronto Hydro, would be responsible for installing smart meters throughout the province. Section 53.16 of the Electricity Act was added to that legislation to provide as follows:

53.16(1) When a distributor or any person licensed by the Board to do so installs a smart meter, metering equipment, systems and technology and any associated equipment, systems and technologies or replaces an existing meter, the distributor or person shall use a meter, metering equipment, systems and technology and associated equipment, systems and technologies of a type, class or kind prescribed by regulation or that meets the criteria or requirements prescribed by regulation or mandated by a code issued by the Board or by an order of the Board for the classes of property or classes of consumers prescribed by regulation or required by the Board.

(2) A regulation, code or order referred to in subsection (1) may require that a distributor or other person take certain actions and may require that the actions be taken within a specified time.

(3) A regulation referred to in subsection (1) may provide the Board with exclusive authority to approve or authorize the meters, the metering equipment, systems and technology and associated equipment, systems and technologies after a prescribed date.

[26] As contemplated by this new section of the Electricity Act, the following regulation was passed:

Definition

In this Regulation,

“Functional Specifications” means the document entitled “Functional Specification for Advanced Metering Infrastructure – Version 2” dated July 5, 2007 and available at the Ministry of Energy, 4th Floor, Hearst Block, 900 Bay Street, Toronto, Ontario or on the Internet through the website of the Ministry.

Adoption of criteria and requirements

For residential and small general service consumers, the prescribed criteria and requirements for meters, metering equipment, systems and technology and any associated equipment, systems and technologies are the criteria and requirements specified in the Functional Specifications.

[27] On February 3, 2005, by Order of that date, the Ontario Energy Board approved Toronto Hydro’s Conservation and Demand Management Plans, which included its plans for the installation of smart meters. The Board varied its Order by Decision and Order dated June 28, 2006.

[28] With respect to Board Orders, s. 25 of the Ontario Energy Board Act, provides a statutory defence to Toronto Hydro. Section 25 states:

An order of the Board is a good and sufficient defence to any proceeding brought or taken against any person so far as the act or omission which is subject to the proceeding is in accordance with the order.

[29] There is no issue that Toronto Hydro installed smart meters at 2369 Lakeshore Boulevard West.

[30] There is also no issue that Toronto Hydro only has a contractual relationship with “customers” and that none of the residents at 2369 Lakeshore Boulevard West were customers; rather, they were end-users or consumers.

[31] Pursuant to its licence, Toronto Hydro is required to comply with the Ontario Energy Board’s Distribution System Code. The Distribution System Code defines a “customer” as a “person that has contracted for or intends to contract for connection of a building or an embedded generation facility.” Under the Code, a “consumer” is defined as a “person who uses, for the person’s own consumption, electricity that the person did not generate.”

[32] The Distribution System Code states that a distributor may have liability to customers only as follows:

2.2.1 A distributor shall only be liable to a customer and a customer shall only be liable to a distributor for any damages which arise directly out of the willful misconduct or negligence:

Of the distributor in providing distribution services to the customer;
Of the customer in being connected to the distributor’s distribution system; or
Of the distributor or customer in meeting their respective obligations under this Code, their licences and any other applicable law.

2.2.2 Despite section 2.2.1; neither the distributor nor the customer shall be liable under any circumstances whatsoever for any loss of profits or revenues, business interruption losses, loss of contract or loss of goodwill, or for any indirect, consequential, incidental or special damages, including but not limited to punitive or exemplary damages, whether any of the said liability, loss or damages arise in contract, tort or otherwise.

C. DISCUSSION AND ANALYSIS

Introduction to Certification

[33] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims of the Class Members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan.

[34] For an action to be certified as a class proceeding, there must be a cause of action shared by an identifiable class from which common issues arise that can be resolved in a fair, efficient, and manageable way that will advance the proceeding and achieve access to justice, judicial economy, and the modification of behaviour of wrongdoers: Sauer v. Canada (Attorney General), 2008 43774 (ON SC), [2008] O.J. No. 3419 (S.C.J.) at para. 14, leave to appeal to Div. Ct. refused, 2009 2924 (ON SCDC), [2009] O.J. No. 402 (Div. Ct.).

[35] On a certification motion, the question is not whether the plaintiff's claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 16.

[36] The test for certification is to be applied in a purposive and generous manner, to give effect to the important goals of class actions -- providing access to justice for litigants; promoting the efficient use of judicial resources; and sanctioning wrongdoers to encourage behaviour modification: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 at paras. 26 to 29; Hollick v. Toronto (City), supra at paras. 15 and 16.

[37] The purpose of a certification motion is to determine how the litigation is to proceed and not to address the merits of the plaintiff's claim; there is to be no preliminary review of the merits of the claim: Hollick v. Toronto (City), supra at paras. 28 and 29.

1. Cause of Action Criterion

[38] The first criterion for certification is that the plaintiff's pleading discloses a cause of action. The "plain and obvious" test for disclosing a cause of action from Hunt v. Carey Canada, 1990 90 (SCC), [1990] 2 S.C.R. 959 is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.

[39] Thus, to satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect or it is plain and obvious that it could not succeed: Anderson v. Wilson (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673 (C.A.) at p. 679, leave to appeal to S.C.C. ref'd, [1999] S.C.C.A. No. 476; 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) at para. 19, leave to appeal granted, 2003 36393 (ON SCDC), 64 O.R. (3d) 42 (S.C.J.), aff'd (2004), 2004 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.).

[40] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed: Hollick v. Toronto (City), supra at para. 25; Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.) at para. 41, leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50 , rev'g (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Abdool v. Anaheim Management Ltd. (1995), 1995 5597 (ON SCDC), 21 O.R. (3d) 453 (Div. Ct.) at p. 469.

[41] Toronto Hydro argues that the proposed class members are not customers of Toronto Hydro; they are end-use consumers. It submits that Toronto Hydro does not owe a duty of care to the proposed class members for any of the acts or omissions alleged in the Statement of Claim.

[42] Further Toronto Hydro argues that: (1) Mr. Turner has failed to plead the basic elements of a negligence claim; (2) there is no duty of care; the acts or omissions alleged are not acts or omissions for which Toronto Hydro was responsible or over which Toronto Hydro had any control; (3) the claim must be made to the Ontario Energy Board; and (4) the allegations are impermissibly vague, by failing to plead a specific act or omission on the part of Toronto Hydro.

[43] The constituent elements of a negligence claim are well known. The elements of a claim in negligence are: (1) the defendant owes the plaintiff a duty of care; (2) the defendant's behaviour breached the standard of care; (3) the plaintiff suffered compensable damages; (4) the damages were caused in fact by the defendant's breach; and, (5) the damages are not too remote in law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R 114 at para. 3.

[44] In its factum, Toronto Hydro advanced the argument that there was no duty of care between an electricity distributor and a consumer and that the only duty was between the distributor and its customers. This argument, however, was not advanced during oral argument and Toronto Hydro’s argument essentially was that although it is possible for a consumer to plead a tenable negligence action against Toronto Hydro, Mr. Turner failed to plead the material facts for a negligence claim and, therefore, the cause of action criterion has not been satisfied.

[45] I disagree. In my opinion, Mr. Turner has adequately pleaded the material facts for a viable negligence claim. Whether he will be able to prove those material facts remains to be seen but there is no doubt that he has pleaded the material facts for a conventional claim against a public authority for operational negligence.

[46] Upon analysis, most of Toronto Hydro’s attack on the pleading is really an argument that Mr. Turner’s negligence claim wanted for particulars. For present purposes, whether Toronto Hydro would succeed on a motion for particulars, I need not say, but I can say the current pleading does not want for material facts for the constituent elements of a cause of action in negligence.

[47] Upon analysis, the balance of Toronto Hydro’s attack on the pleading is really an argument that Mr. Turner will be unable to resist a motion for summary judgment because he will be unable to prove a breach of a duty of care or because Toronto Hydro has a statutory defence arising from s. 25 of the Ontario Energy Board Act or from the limitation of liability provisions of the Distribution System Code. These arguments, whatever their merits, do not negate the fact that Mr. Turner has pleaded a negligence claim that is adequate to put Toronto Hydro to its defence.

[48] I conclude that Mr. Turner has satisfied the cause of action criterion for certification.

2. Identifiable Class Criterion

[49] I turn now to the second criterion for certification of a class action, the identifiable class criterion.

[50] The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice: Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.).

[51] In defining class membership, there must be a rational relationship between the class, the causes of action, and the common issues, and the class must not be unnecessarily broad or over-inclusive: Pearson v. Inco Ltd. (2006), 2006 913 (ON CA), 78 O.R. (3d) 641 (C.A.) at para. 57, rev'g 2004 34446 (ON SCDC), [2004] O.J. No. 317 (Div. Ct.), which had aff'd [2002] O.J. No. 2764 (S.C.J.).

[52] The class definition proposed by Mr. Turner is: “All persons other than the defendants and their employees, who resided at the Premises on March 19, 2009.”

[53] Toronto Hydro submits that this definition does not satisfy the cause of action criterion for certification because it is over-inclusive by including amongst the Class Members, residents who might have caused the fire by tampering with the wiring during the course of using their premises for a grow-op and also by including other residents who knew or ought to have known that there was a fire hazard and taken some steps to prevent it.

[54] Mr. Turner and Class Counsel would not oppose excluding Class Members who tampered with the electrical wiring or otherwise adversely affected the apartment building’s electrical system by their marijuana grow-op, but they say that it remains to be determined whether the activities of these residents of the apartment had anything to do with the cause of the fire.

[55] In my opinion, the class definition does require modest amendment to exclude any residents who operated a marijuana grow-op in their apartments. If these residents were included in the Class, they would have a conflict with other Class Members that could not be resolved by creating a subclass. The Class is advancing an argument that the Defendants are negligent because they failed to prevent the operation of the grow-ops, which operation was the cause of the fire. In other words, the residents of the apartments with grow-ops in their apartments are potential but unnamed defendants. Defendants and potential defendants should not be members of the Class.

[56] Toronto Hydro submits that the exclusions should also include neighbouring residents who knew or ought to have known about the grow-ops. I disagree, these Class Members have no conflict about the common issues.

[57] Accordingly, the second criterion for certification is satisfied with the following class definition:

All persons who resided at 2369 Lakeshore Boulevard West, Toronto on March 19, 2009 other than: (a) the defendants and their employees, and (b) the adult residents of suites 317, 319, 321, 417 and 419.

3. Common Issues Criterion

[58] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each Class Member's claim and its resolution must be necessary to the resolution of each Class Member's claim: Hollick v. Toronto (City), supra at para. 18.

[59] With regard to the common issues, "success for one member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent." That is, the answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class: Shopping Centres Inc. v. Dutton, supra at para. 40; Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540 at para. 32; Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 at paras. 145-46 and 160; McCracken v. Canadian National Railway Co., supra, at para. 183.

[60] An issue is not a common issue if its resolution is dependent upon individual findings of fact that would have to be made for each class member: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 (Div. Ct.) at paras. 3, 6.

[61] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries: Nadolny v. Peel (Region), [2009] O.J. No. 4006 (S.C.J.) at paras. 50-52; Collette v. Great Pacific Management Co., 2003 BCSC 332, [2003] B.C.J. No. 529 (B.C.S.C.) at para. 51, varied on other grounds (2004) 2004 BCCA 110, 42 B.L.R. (3d) 161 (B.C.C.A.); McKenna v. Gammon Gold Inc., 2010 ONSC 1591, [2010] O.J. No. 1057 (S.C.J.) at para. 126, leave to appeal granted 2010 ONSC 4068, [2010] O.J. No. 3183 (Div. Ct.), varied 2011 ONSC 3882 (Div. Ct.).

[62] The common issue criterion presents a low bar: Carom v. Bre-X Minerals Ltd. (2000), 2000 16886 (ON CA), 51 O.R. (3d) 236 (C.A.) at para. 42; Cloud v. Canada (Attorney General) (2004), O.R. (3d) 401 (C.A.) at para. 52; 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), aff’d 2010 ONCA 466, [2010] O.J. No. 2683 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 348.

[63] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution: Cloud v. Canada (Attorney General) supra, at para. 53.

[64] Mr. Turner proposes the following common issues:

(a) Did the Defendant Vinen Atlantic S.A. and Aiderbrook Management Inc. as landlords and/or owners within the meaning of the Residential Tenancies Act owe a duty of care to the Class in relation to the design, construction, maintenance and repair of 2369 Lakeshore Boulevard West?

(b) If the answer is “yes” to question a., what was the appropriate standard of care of the Defendants Vinen Atlantic S.A. and Aiderbrook Management Inc.? Did the Defendants Vinen Atlantic S.A. and Aiderbrook Management Inc., or either of them, breach that standard of care, and if so, when and how?

(c) With respect to the fire that occurred on March 19, 2009, did the Defendants Vinen Atlantic S.A. and Aiderbrook Management Inc., or either of them, breach their contractual obligations in the lease to maintain the building in a good state of repair?

(d) With respect to the fire that occurred on March 19, 2009, did the Defendants Vinen Atlantic S.A. and Aiderbrook Management Inc., or either of them, breach their statutory obligations to maintain the building in a good state of repair?

(e) Did the Defendants Eugene Harold and Anna Prokop, or either of them, owe a duty of care to the Class in relation to the maintenance and repair of 2369 Lakeshore Boulevard West?

(f) If the answer is “yes” to question e., what was the appropriate standard of care of the Defendants Eugene Harold and Anna Prokop? Did the Defendants Eugene Harold and Anna Prokop, or either of them, breach the standard of care, and if so, when and how?

(g) Are the Defendants Vinen Atlantic S.A. and Aiderbrook Management Inc., or either of them, vicariously liable for the conduct of Eugene Harold and/or Anna Prokop?

(h) Did the Defendant Toronto Hydro-Electric System Limited owe a duty of care to the Class in relation any work, maintenance, or repair it performed at 2369 Lakeshore Boulevard West?

(i) If the answer is “yes’ to question (h), what was the appropriate standard of care of the Defendant Toronto Hydro-Electric System Limited? Did the Defendant Toronto Hydro-Electric System Limited breach the standard of care, and if so, when and how?

(j) Can the damages of the Class be determined, in part, on an aggregate basis? If yes, what amount should the defendant pay, to whom and why?

(k) Whether the Defendants should pay pre-judgment and post-judgment interest, and, if so, at what annual interest rate?

(l) Whether the Defendant should pay the costs of administering and distributing any monetary judgment and/or costs of determining eligibility and/or the individual issues and if so, who should pay what costs, why and in what amount?

[65] In my opinion, all of the questions with the exceptions of (j), the aggregate damages question, and (l), the question of costs for individual issues trials, satisfy the test for common issues.

[66] I will not certify questions (j) and (l), but I conclude that the balance of the questions satisfy the common issues criterion.

4. Preferable Procedure Criterion

[67] Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the Class Members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute: Markson v. MBNA Canada Bank (2007), 2007 ONCA 334, 85 O.R. (3d) 321 (C.A.) at para. 69, leave to appeal to S.C.C. ref'd, [2007] S.C.C.A. No. 346; Hollick v. Toronto (City), supra.

[68] Relevant to the preferable procedure analysis are the factors listed in s. 6 of the Class Proceedings Act, 1992, which states:

The court shall not refuse to certify a proceeding as a class proceeding solely on any of the following grounds:
The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues.
The relief claimed relates to separate contracts involving different Class Members.
Different remedies are sought for different Class Members.
The number of Class Members or the identity of each Class Member is not known.
The class includes a subclass whose members have claims or defences that raise common issues not shared by all Class Members.

[69] For a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims: Cloud v. Canada (Attorney General), supra at paras. 73-75, leave to appeal to S.C.C. ref'd, [2005] S.C.C.A. No. 50.

[70] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues: Markson v. MBNA Canada Bank (2007), 2007 ONCA 334, 85 O.R. (3d) 321 (C.A.) at para. 69, leave to appeal to S.C.C. ref'd, [2007] S.C.C.A. No. 346; Hollick v. Toronto (City), supra.

[71] In considering the preferable procedure criterion, the court should consider: (a) the nature of the proposed common issue(s); (b) the individual issues which would remain after determination of the common issue(s); (c) the factors listed in the Act; (d) the complexity and manageability of the proposed action as a whole; (e) alternative procedures for dealing with the claims asserted; (f) the extent to which certification furthers the objectives underlying the Act; and (g) the rights of the plaintiff(s) and defendant(s): Chadha v. Bayer Inc. (2001), 2001 28369 (ON SCDC), 54 O.R. (3d) 520 (Div. Ct.) at para. 16, aff'd (2003), 2003 35843 (ON CA), 63 O.R. (3d) 22 (C.A.), leave to appeal to S.C.C. ref'd, [2003] S.C.C.A. No. 106.

[72] Assuming that the other criteria were satisfied, Toronto Hydro did not argue that a class proceeding was not the preferable procedure for the advancement of the Class Members’ claims. This was the correct position. Mr. Turner’s action satisfies the fourth criterion for certification.

5. Representative Plaintiff Criterion

[73] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan.

[74] The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant: Drady v. Canada (Minister of Health), 2007 27970 (ON SC), [2007] O.J. No. 2812 (S.C.J.) at paras. 36-45; Attis v. Canada (Minister of Health), [2003] O.J. No. 344 (S.C.J.) at para. 40, aff'd [2003] O.J. No. 4708 (C.A.).

[75] Provided that the representative plaintiff has his or her own cause of action, the representative plaintiff can assert a cause of action against a defendant on behalf of other class members that he or she does not assert personally, provided that the causes of action all share a common issue of law or of fact: Boulanger v. Johnson & Johnson Corp., [2002] O.J. No. 1075 (S.C.J.) at para. 22, leave to appeal granted, [2002] O.J. No. 2135 (S.C.J.), varied (2003), 2003 45096 (ON SCDC), 64 O.R. (3d) 208 (Div. Ct.) at paras. 41, 48, varied 2003 52154 (ON CA), [2003] O.J. No. 2218 (C.A.); Matoni v. C.B.S. Interactive Multimedia Inc., 2008 1539 (ON SC), [2008] O.J. No. 197 (S.C.J.), at paras. 71-77; Voutour v. Pfizer Canada Inc., [2008] O.J. No. 3070 (S.C.J.); LeFrancois v. Guidant Corp., [2008] O.J. No. 1397 (S.C.J.) at para. 55.

[76] Whether the representative plaintiff can provide adequate representation depends on such factors as: his or her motivation to prosecute the claim; his or her ability to bear the costs of the litigation; and the competence of his or her counsel to prosecute the claim: Western Canadian Shopping Centres Inc. v. Dutton, supra at para. 41.

[77] Without challenging the competence and capability of Mr. Turner’s choice for Class Counsel, Toronto Hydro challenged Mr. Turner as an appropriate Representative Plaintiff. I reject this challenge. With the assistance of Class Counsel, Mr. Turner has the qualifications to represent the Class without conflict of interest.

[78] Toronto Hydro also challenged the adequacy of Mr. Turner’s litigation plan, but I was not persuaded that the plan, which is always a work in progress, did not satisfy the requirements of the fifth criterion for certification.

[79] I conclude that the fifth criterion for certification is satisfied.

D. CONCLUSION

[80] For the above reasons, I grant the certification motion.

[81] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Turner’s submissions within 20 days of the release of these Reasons for Decision followed by Toronto Hydro’s submissions within a further 20 days.

Perell, J.

Released: September 11, 2014

COURT FILE NO.: 09-CV-375819CP