Court File and Parties
COURT FILE NO.: CV-19-78997-CP DATE: 2021/01/21
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
Proceeding under the Class Proceedings Act, 1992
RE: Marcel Pinon, Plaintiff AND: City of Ottawa, Defendant
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Evatt Merchant, Q.C., Anthony Tibbs & Nikolas Rohachuk, for the Plaintiff Terry R. Shillington, Michael A. Eizenga, Ranjan K. Agarwal & Alexander C. Payne, for the Defendant
HEARD: September 9th, 2020, additional written submissions on October 13, 2020
DECISION AND REASONS
[1] This is a proposed class proceeding arising from the deadly bus accident at Westboro Station on January 11, 2019. In the accident, a double decker bus owned and operated by City of Ottawa’s transit agency, OC Transpo, left the roadway and collided with the station. The roof of the station sheared through the upper level of the bus causing loss of life, injuries, and trauma to passengers on the bus and individuals present at the station.
[2] The plaintiff was a passenger on the bus at the time of the accident. He seeks to sue Ottawa on his own behalf, on behalf of other injured or traumatized individuals and on behalf of family members with derivative claims.
[3] The immediate question is whether it is appropriate to permit this action to proceed as a class proceeding by certifying it as such pursuant to the provisions of s. 5 of the Class Proceedings Act, 1992 as it read prior to recent amendments.[^1] I will refer to the statutory test in more detail but certification is essentially a procedural question. If there is an identifiable class of plaintiffs and common issues to be tried, the Court will certify a class proceeding if it appears that a collective action is the preferable method for resolving those issues.
[4] The purpose of a class proceeding is to provide access to justice in circumstances where numerous individuals have suffered harm and individual actions would be uneconomical or inefficient. [^2] The goals of class proceedings are judicial economy, access to justice and behaviour modification. The onus is on the moving party to demonstrate that a class proceeding is preferable to other methods of resolving those claims in all of the circumstances.[^3] In conducting that analysis and in exercising its discretion to certify, the court must be persuaded that the proposed class proceeding is fair, efficient and manageable.[^4]
[5] For reasons I will articulate I am not persuaded that this proposed action is suitable for certification. I am dismissing the motion on certain terms.
The Test for Certification
[6] As just mentioned, the test for certification is set out in s. 5 of the Act as it read prior to amendment. The wording of that section is as follows:
Certification
5 (1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 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 or defendant 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 proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members. 1992, c. 6, s. 5 (1).
[7] All of the factors set out in the section must be present to bring the proceeding within the statute. While some of those factors may be objectively established, the application of s. 5 (1) (d) calls for the exercise of discretion and preserves the inherent jurisdiction of the court to control its own process. Even if all of the objective criteria under s. 5(1) are met, the court must still be persuaded that the proposed class proceeding is preferable to other methods of resolution.
[8] In its seminal decision of Hollick v. Toronto, the Supreme Court of Canada articulated the rationale for permitting class proceedings in appropriate cases and conducted an analysis of the approach mandated by the Ontario legislation.[^5] Importantly, the legislation as written in 1992 does not include a preliminary merits showing. This means that it is not necessary for the plaintiff to show that it will likely succeed in proving its allegations. Despite this, the moving party must still provide evidence in support of certification. This includes sufficient evidence for the judge to be satisfied there is “some basis in fact” for the elements of the test set out in s. 5 of the Act.[^6]
[9] The “some basis in fact” test does not require showing an evidentiary basis for the existence of a cause of action under s. 5 (1) (a) of the Act.[^7]. The test under s. 5 (1) (a) of the Act is the same as a motion under Rule 21.01 (1) (a) and (b).[^8] The assessment of the other criteria for certification including the existence of common issues is different. Evidence directed at the merits may be necessary to show a basis in fact for the existence of common issues or how a common issues trial may be superior to individual actions.[^9]
[10] 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 judicial discretion.[^10] 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.[^11]
The Sufficiency of the Evidence
[11] The evidence led to support certification consisted primarily of a lengthy affidavit of the proposed representative plaintiff, Marcel Pinon. There were also affidavits from members of the proposed classes, Kathryn Rose and Eddie Rose, an affidavit of a psychiatrist dealing generally with how to assess post accident trauma, an affidavit of a lawyer for the defendant setting out certain known or admitted facts, transcripts of cross examination and an affidavit of a law clerk dealing with answers to undertakings.
[12] The defendants spent considerable time in argument challenging the sufficiency of the evidence. I will deal with this briefly. Obviously, the affidavit is admissible with respect to the plaintiff’s own experience in the accident and the events which followed. The defendants, however, challenge certain aspects of the affidavit as being inadmissible hearsay. Specifically, the plaintiff deposes that OC Transpo knew or ought to have known that there was a design flaw in the roof of the transit shelters because on a previous occasion a single decker bus had struck Lees Station and the roof of the station had peeled back the roof of the bus. The basis for the plaintiff’s knowledge of this accident is a newspaper article.
[13] Similarly, the plaintiff deposes that the upper level of OC Transpo’s double decker buses are not sufficiently robust to withstand a collision. The plaintiff deposes that OC Transpo knew this because of the Transportation Safety Board (TSB) inquiry into the Via Rail Collision that took place in Barrhaven. Apparently, the TSB recommended that the standard of construction should be improved, although Transport Canada did not act on that recommendation by changing the regulations. The basis for the plaintiff’s information and belief is a copy of the TSB report.
[14] Similarly, the plaintiff deposes based on media reports that it is his belief the driver of the bus had been involved in a previous bus accident and was not an experienced bus driver.
[15] I agree that this evidence is hearsay or even double hearsay and at best it hints at the existence of admissible evidence that could go to the merits. Importantly, however, the plaintiff is not required to prove his case on the merits at this stage and information and belief is admissible on a motion pursuant to Rule 39.01 (4). Obviously, the plaintiff cannot prove that a prior collision actually occurred simply from a newspaper article nor prove that driver training is deficient through media reports. He cannot prove that design standards for double decker busses are deficient simply by quoting a newspaper article or a TSB report, but it is not necessary that he do so for purposes of a certification motion.
[16] The plaintiff’s information and belief that evidence exists based on media reports or official reports may well be sufficient to meet the test of “some basis in fact”. Certainly, the city is not suggesting that the accidents reported in the media did not take place or that the TSB did not make such a recommendation. The evidence demonstrates that these assertions are not mere inventions by the plaintiff. More importantly, there is no requirement at this preliminary stage for the plaintiff to prove the merits of his claim. What he must show is that the claim he wishes to assert is appropriately structured as a class proceeding.
[17] I am prepared to admit the evidence of media reports and the TSB report as describing the type of evidence that might be available to support the allegations of negligent station design, negligent bus design, negligent training and foreseeability. While hardly robust or persuasive, this evidence is admissible not to prove the truth of the allegations but to demonstrate the nature of the evidence that could be adduced. This, in turn, is relevant to the existence of common issues and to the proposed litigation plan. But there are other evidentiary issues and structural problems with the proposed litigation which I will describe momentarily.
[18] A large part of the plaintiff’s affidavit consists of his opinions on numerous matters including his views on “frangible structures”, the “swiss cheese model”, systemic failures on the part of OC Transpo, factors contributing to the severity of the accident, and his views on driver training. I agree with the defendant that the plaintiff cannot be his own expert. Even if he is fully qualified in all of the areas in which he purports to give opinion evidence, he cannot be impartial. In addition, his affidavit is replete with assumptions and assertions. His opinions cannot be admitted as expert evidence and his assumptions and speculations would not meet even the low bar of “some basis in fact”. There is therefore no expert evidence at this stage demonstrating any systemic failure on the part of OC Transpo in designing its stations, its transit system or its transit vehicles.
[19] While I stress again that for certification purposes, the plaintiff is not required to demonstrate he will be successful at trial, he is required to provide the court with adequate evidence of the shape of the litigation, the issues to be tried and the nature of the anticipated evidence. It is necessary to understand that in order to assess what a common issues trial might look like and how a common issues trial might eliminate the need for duplicative individual liability and damages assessments.
[20] This is particularly necessary when the litigation proposed by this plaintiff is oddly structured. I will address the structure of the litigation in the context of the Ontario motor vehicle insurance regime in more detail. Suffice to say that the proposed action is structured like a donut in that it pleads around central liability issues and focuses on claims of systemic negligence instead. Neither the statement of claim nor the proposed common issues address the potential negligence of the driver herself, the vicarious liability of the city for such negligence nor the statutory liability of the city as the owner of the motor vehicle involved in the collision.
[21] This is significant because the plaintiff proposes to launch litigation that, in effect, would be a wide-ranging inquiry into the safety of double decker buses and the design of transit system features and procedures while avoiding areas where the city has or is prepared to admit liability. No evidence is advanced to explain why completely ignoring the compensation that is readily available to pursue other grounds of potential negligence would be in the best interests of the proposed class.
[22] In this context, it is a matter of concern that the plaintiff puts himself forward as an expert and has formed strong views about wide ranging systemic fault on the part of OC Transpo. A plaintiff is not required to be unbiased of course, but in considering whether this plaintiff can adequately represent the interests of the proposed class, the strong views of a self-proclaimed expert must give the court pause.
[23] The court must be persuaded that the representative plaintiff is an appropriate class representative and has no conflict of interest with the other members of the class. There is nothing in the affidavit to explain why it would be in the best interests of the proposed class to proceed with an action that seems to focus only on difficult systemic claims while ignoring low hanging fruit. As will be seen, the city has and will admit liability as the owner and operator of a motor vehicle involved in an accident.
[24] This evidence also does not provide me with any real information about the size of the proposed classes particularly in light of the significant number of individual actions that have already been commenced and the availability of no-fault compensation for victims of automobile accidents.
[25] The plaintiff deposes that there were approximately 90 passengers on the bus. He has no information about how many people may have been present in the station. He correctly states that there may be numerous individuals who suffered minor claims and losses and for whom pursuing individual compensation may not be economical but those are not the examples given in the proposed litigation plan. Nor is it clear how those people might benefit from pursuing this litigation rather than simply making the claims that are open to them.
The Nature of the Claim
[26] This action was started on January 17, 2019 in the immediate aftermath of the accident. The plaintiff alleges he was so traumatized by the events of the accident and its immediate aftermath that he was ultimately forced to take early retirement. Clearly, this allegation would support an individual action on behalf of the plaintiff. The issue on the certification motion, however, is whether the action as pleaded can support a class proceeding not only on behalf of the plaintiff himself but on behalf of the proposed class or classes of other individuals adversely affected by the accident.
[27] The statement of claim seeks declarations that the city was negligent in the design, construction and maintenance of the roadway, in the design, construction and maintenance of the station, in the procurement of a transit vehicle with design flaws, in the training, certification and oversight of the driver, in failure to implement adequate policies and procedures and in the design of operating procedures and safety management protocols. The plaintiff also asserts an inadequate response to handling of members of the class after the incident and pleads breach of the Consumer Protection Act for failing to adequately advise passengers of the risk of using the transit system. In addition to ordinary damages for members of the class, the statement of claim seeks punitive damages.
[28] The proposed class action is structured in a peculiar fashion. The driver of the bus is not named as a defendant nor is the city sued for vicarious liability as the employer of the driver or for its statutory liability as the owner of the vehicle. This is despite the fact that the statement of claim alleges that the bus was being operated at an unsafe speed while approaching the station, that it came into contact with snow or ice built up along the curb and the rock wall of the transitway and that the driver failed to adequately control the bus such that it crashed into the station.
[29] It is germane that this is a motor vehicle accident in which a public transit vehicle collided with a structure.[^12] This means that any person who suffered injury or loss because of the accident has access to “no fault” Statutory Accident Benefits[^13] and may also sue any “at fault” defendant for liability in tort. Under the system of automobile insurance peculiar to Ontario, however, certain heads of tort liability are significantly limited against “protected” defendants. Those defendants are owners and operators of motor vehicles, occupants of vehicles and individuals present at a motor vehicle accident.[^14] In short, protected defendants are defendants who are covered by motor vehicle insurance. The statutory scheme is aimed at stabilizing insurance rates and eliminating minor tort claims in exchange for more generous first party no-fault benefits.[^15]
[30] Not all defendants are “protected, and it is possible to be both protected and unprotected if sued in different capacities. City of Ottawa operates the OC Transpo system. As such it is the owner and operator of the bus and the employer of the driver. In those capacities, the city is a “protected” defendant. But the city is also the owner of the roadway (in this case, the transitway), the owner of the station and the entity responsible for design of the roads, design of the station, choice of vehicles, driver training and setting of safety policies. To the extent that tort liability would attach to the city in those capacities, it is possible that the city is also an “unprotected” defendant. Whether that is so or not is largely a question of statutory interpretation and particular circumstances.
[31] In many cases it is nonsensical to pursue a single tortfeasor for various heads of negligence if it is prepared to admit liability. This is because tort law is designed to compensate for actual losses suffered by individual plaintiffs. If there is only one defendant and the defendant has admitted liability, then the damages are not increased simply because the tortfeasor might also be negligent in other ways that contributed to the damage. But insurance law sometimes requires parsing a claim between concurrent causes of damage. In the Derkson case, for example, the Supreme Court of Canada held that there was concurrent causation between negligent clean up of a work site and negligent operation of a motor vehicle.[^16] Similarly, the distinction between “protected” and “unprotected” defendants in Ontario motor vehicle law and the fact that a defendant may be protected for some purposes and not others means that fault may be apportioned between the same tortfeasor acting in different capacities. Apportionment of fault between protected and unprotected defendants is mandated by the Insurance Act. [^17]
[32] In simplest terms, this means that if there is an element of fault or causation which attaches to the city in one of its unprotected roles, a proportionate share of damages may be awarded without regard to the limitations attaching to motor vehicle liability under the Insurance Act. For example, if the injuries sustained by a particular plaintiff are found to be 80% the result of driver error but 20% the result of faulty design of the bus station, it is possible that 80% of the damages would be subject to the statutory threshold and deductibles applicable to protected defendants and 20% of the damages would not.[^18] It would be wrong to suggest that such a conclusion is easily reached or automatic however because apportionment is not an exercise in assignment of moral blame, it is an exercise is assessing causation of damages actually suffered[^19].
[33] It is conceivable that the injuries suffered in this accident are largely or primarily the result of an accident caused by failure to remove snow and ice from the transitway. One might imagine a case in which an accident was caused by mechanical failure due to negligent repair of a vehicle. On the facts of this accident, however, it is almost inconceivable that negligence on the part of the driver is not at least a primary cause of the accident and the injuries. In point of fact the driver is facing numerous criminal charges, but the conclusion that operator negligence is likely to form a significant basis for liability requires only a cursory review of the evidence and does not require diving deeply into the merits.
[34] But for the driver colliding with the wall of the transitway or the station, no injuries would have occurred. It is virtually impossible that any court could find station design or bus construction by themselves to be the cause of the accident although they may have been contributing factors to the injuries suffered by certain plaintiffs. It follows that pursuing litigation against the city without pleading against it in its capacity as employer of the driver and owner of the vehicle is incomplete litigation that could result in this plaintiff and the members of the classes recovering nothing or recovering only a portion of their losses. Not to put to fine a point on it, this action appears to be designed to inflate the allegation that the city was negligent in the design of the transit system, stations and busses and to engage in what amounts to a public inquiry into the safety of double decker busses and the design of the transit system in Ottawa.
[35] Ordinarily in the adversarial system, the plaintiff would is at liberty to frame his causes of action as he sees fit and to structure the litigation in whatever manner he chooses. Subject to tools the defendant could deploy to strike out or dismiss claims that appear frivolous or vexatious or disclose no cause of action, the risk to the plaintiff in choosing to pursue only certain aspects of a potential claim in an individual action would be his alone. He would face the prospect of losing a case that might have been won on a different basis or recovering only a portion of his potential damages and he would run the risk of liability for costs.
[36] It is another thing entirely to permit the plaintiff to pursue exotic litigation on behalf of a class. It is the essence of a class proceeding that once it is certified it binds all members of the class who do not opt out. By the rules of stare decisis and issue estoppel, class members would be bound by the results of the litigation not only for the claims they did advance but any claims they could have advanced and chose not to. So, there is potential for real harm in permitting the plaintiff to certify this proceeding as currently structured. There might be real mischief in binding a class to a lawsuit which does not seek the primary relief to which class members are most probably entitled.
[37] I should say that the city concedes that there could be scope for a class proceeding asserting liability for a motor vehicle accident. It resists certification of an action pleading everything but. In addition, however, the city argues that a class proceeding is unnecessary.
The Availability of Other Remedies
[38] Subsequent to the accident, claims have been made against the city by various individuals and their families and there have been close to 30 individual court proceedings. In all such instances, the city has admitted responsibility for a motor vehicle accident. It could hardly do otherwise because if there is any fault on the part of the bus driver in a single vehicle collision, liability will attach to the transit system. [^20]
[39] As the city points out, because this a motor vehicle accident, every single person who was a passenger on the bus or was present at the accident has the ability to make a no fault claim under their own policies of motor vehicle insurance or if they are not covered by a policy they may do so to the city’s own insurer. Many people have done so.
[40] In addition, tort claims are available and such claims have been advanced in significant numbers. There is no evidence that there are significant numbers of individuals who do not have access to compensation by one of these means and who would be entitled to compensation by means of a class proceeding.
[41] As for the public benefit in examining factors that may have contributed to the accident or which might enhance passenger safety in the future, there was an investigation by the Ottawa Police Service and involvement by the Transportation Safety Board. There exists the possibility of an inquest and recommendations or directives from the Ontario Ministry of Transport. The city and its insurers are undoubtedly scrutinizing every aspect of the transit system with particular focus on the allegations and assertions already contained in the individual lawsuits. 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.
Conclusion and Decision
[42] It is very important that certification of class proceedings is in the public interest and consistent with the objectives of the legislation. Class proceedings are not to be used to needlessly inflate tragic accidents into public spectacles.
[43] As discussed above, I do not consider this particular pleading to be an appropriate vehicle for a class proceeding. Ever if that alone is not fatal to the motion, I am not satisfied on the evidence before me that a class proceeding is either necessary or in the interests of justice.
[44] The motion is dismissed.
[45] The plaintiff has several options. He may of course discontinue the action, but I would also permit him to proceed with an individual action pursuant to s. 7 (2) of the Act if he wishes. For that purpose, I would also permit him to amend the pleading.
[46] As a further alternative, if the plaintiff still wishes to attempt a class proceeding, I would allow him a limited period of time to amend the pleadings and bring a new motion on better evidence. There should be a limited window to take this step.
[47] The plaintiff shall have until April 23rd, 2021, to either elect to continue with an individual action and seek leave to amend his pleadings or to move to amend the pleadings and to renew the motion for certification. If he does neither then the action will be stayed on that date.
Costs
[48] There may have been offers to settle and other matters relevant to costs.
[49] I invite the parties to agree on the question of costs and they shall have until February 26th, 2021 to do so. If they cannot agree they may either make submissions in writing or they may seek a date for oral argument. In either case they are to obtain direction from my office about the content, length and form of their materials and a timetable for delivery.
January 21, 2021
Mr. Justice C. MacLeod
COURT FILE NO.: CV-19-78997-CP DATE: 2021/01/21
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Marcel Pinon, Plaintiff AND: City of Ottawa, Defendant
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Evatt Merchant, Q.C., Anthony Tibbs & Nikolas Rohachuk, for the Plaintiff Terry R. Shillington, Michael A. Eizenga, Ranjan K. Agarwal & Alexander C. Payne, for the Defendant
DECISION AND REASONS
Mr. Justice C. MacLeod
Released: January 21, 2021
[^1]: S.O. 1992, c. 6 as amended. Note that s. 5 was amended by S.O. 2020, c. 11, Sched. 4 and the amendments are now in force, but they do not apply to actions such as this one commenced before the effective date. See s. 39 (1) (a) of the Act. [^2]: See Western Canadian Shopping Centres v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, pp. 549 – 550. [^3]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158. [^4]: Caputo v. Imperial Tobacco Ltd., (2004) 2004 CanLII 24753 (ON SC), 236 D.L.R. (4th) 348, 44 C.P.C. (5th) 350 (Ont. S.C.) [^5]: Hollick. [^6]: Hollick, at paras. 21 – 25. [^7]: See McCracken v. Canadian National Railway Company, 2012 ONCA 445, 111 O.R. (3d) 745; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; [2013] 3 S.C.R. 477. [^8]: See Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, 111 O.R. (3d) 346 at para. 42. [^9]: See Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718 [^10]: See Caputo v. Imperial Tobacco Ltd., (2005) 2005 CanLII 63806 (ON SC), 74 O.R. (3d) 728 (Ont. S.C.) at para. 29; Pearson v. Inco Ltd., (2005) 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 (CA) at para. 43, Western Canadian Shopping Centres at paras. 41 - 42, [^11]: Pearson v. Inco Ltd para. 67; Fischer v. IG Investment Management Ltd., 2013 SCC 69, [2013] 3 S.C.R. 949. [^12]: See s. 268 (1.1) and s. 267.5 (6.1) of the Insurance Act, R.S.O. 1990, c. I.8, as amended. Where a transit vehicle collides with an object or another vehicle, the motor vehicle insurance regime applies. [^13]: Insurance Act, s. 286. [^14]: Insurance Act, ss. 267.1, 267.3, 267.5, amongst other provisions. [^15]: Tutton et al. v. Pickering (Town), (1999) 1999 CanLII 1452 (ON CA), 46 O.R. (3d) 503 (Ont. CA) [^16]: Derkson v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398. [^17]: S. 267.7; Derkson [^18]: Insurance Act, s. 267.7; Vollick v. Sheard, (2005) 2005 CanLII 13777 (ON CA), 75 O.R. (3d) 621; (Ont. CA) – the specific result in Vollick has been statutorily overruled as it relates to vicarious liability but the case stands for the proposition that “protected” defendants are only protected in the proportion that liability attaches to one of the protected roles. I use the 80/20 liability split as an example only. I should not be taken as making a finding of fact, suggesting the probability of such a liability split, or foreclosing any legal argument against that result. [^19]: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Atlantic Lottery Corp. v. Babstock, 2020 SCC 19. [^20]: See s. 192 of the Highway Traffic Act, RSO 1990, c. H8 as amended and the sections of the Insurance Act referred to above.