Court File and Parties

COURT FILE NO.: CV-13-480876-00CP DATE: 20180713 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Byron Gracey Plaintiff Vincent Genova for the Plaintiff

– and –

1093823 Ontario Limited Defendant Chris T.J. Blom for the Defendant 1093823 Ontario Limited

– and –

Regional Municipality of Niagara and Margaret Parks Swimming Schools Limited Third Parties Elizabeth Bowker and Nicola Brankley for the Third Party the Regional Municipality of Niagara

Proceeding under the Class Proceedings Act, 1992

HEARD: July 13, 2018

PERELL, J.

Reasons for Decision [1]

[ 1 ] This is a motion on consent for certification of the action as a class proceeding under the Class Proceedings Act, 1992. [2]

[ 2 ] In this proposed class action, the Plaintiff, Byron Gracey, seeks compensation for persons who became ill with Giardiasis as a result of direct or indirect contact with the Ramada Beacon Harbourside Hotel pool between September 16, 2012 and January 8, 2013. There are also derivative claims pursuant to the Family Law Act. [3]

[ 3 ] The Defendant, 1093823 Ontario Limited, operates the Ramada Jordon Beacon Harbourside Inn at 2793 Beacon Boulevard in the Town of Lincoln, Ontario.

[ 4 ] Mr. Gracey resides in St. Catharines, Ontario. He is a technologist at Niagara College.

[ 5 ] In late 2012, Amy, Mr. Gracey’s wife, took their daughter Eleanor to swimming lessons at the Beacon pool. The lessons were offered by Margaret Parks Swimming School.

[ 6 ] On January 25, 2013, Regional Municipality of Niagara declared that there had been an outbreak of Giardiasis, and it identified the Beacon pool as the source of the outbreak.

[ 7 ] In February 2013 Byron, Amy and Eleanor tested positive for the Giardia parasite. It is estimated that approximately 150 other persons were infected.

[ 8 ] On May 22, 2013, Mr. Gracey commenced a proposed class action against 1093823 Ontario Limited for negligence. In particular, he alleges that it failed to comply with Regulation 565 of the Health Protection and Promotion Act. [4]

[ 9 ] Mr. Gracey seeks general, special and punitive damages of $45 million on behalf of the putative class, which is defined as follows:

Class I: All persons in Canada and the United States who were exposed to the Giardia parasite in the Beacon swimming pool during the Class Period.

Class II: All persons in Canada and the United States who were indirectly exposed to Giardia through direct contact with an infected Class I Member.

Family Law Class: All persons who, on account of a personal relationship to a Class I or II Member are entitled to assert a derivative claim for damages pursuant to section 61(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), as amended, and comparable provincial, territorial or state legislation (“Family Class Members”).

[ 10 ] The proposed common issues are as follows:

a. Did the Defendant owe a duty of care to the Class Members? If “yes” what was that standard of care?

b. Was that standard of care breached?

c. If the answer to the above is “yes” are the Class Members entitled to an award of special and general damages?

d. Does the conduct of the Defendant warrant an award of punitive damages?

e. Should the Defendant pay pre-judgment interest to the Class and, if so, at what annual rate?

f. Should the Defendant pay the costs of administering and distributing any monetary judgment and/or the costs of determining eligibility and/or the individual issues? If so, in what amount?

g. Assuming that the Defendant is required to pay damages, interest and/or costs to the Class Members as a result of the above-noted Common Issues, is the Defendant entitled to indemnify, in whole or in part, from the Third Parties, and if so, to what extent?

[ 11 ] The Defendant, 1093823 Ontario Limited, brought third party proceedings against Regional Municipality of Niagara and Margaret Parks Swimming Schools Limited.

[ 12 ] The Defendant and Third Parties consent to certification.

[ 13 ] 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 or defences 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 or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.

[ 14 ] I am satisfied that all the criteria for certification are satisfied in the immediate case.

[ 15 ] The certification motion is granted.

Perell, J.

Released: July 13, 2018

[1] This reasons were corrected on July 19, 2018 to accurately reflect the common issues that had been agreed to by the parties.

[2] S.O. 1992, c. 6.

[3] R.S.O. 1990, c. F.3, s. 61(1).

[4] R.R.O. 1990 c. H.7