Court File and Parties
Court File No.: CV-20-00636062-00CP Date: 2022-08-16 Superior Court of Justice - Ontario
Re: Jessica Dawn Crevier and Gavin Krause, Plaintiffs – and – 1351895 Ontario Limited o/a Elmpark Manor Apartments and Ontario Corporation 256199 o/a Ronkay Management Inc., Defendants
Before: E.M. Morgan, J.
Counsel: Darryl Singer and Mathura Santhirasegaram, for the Plaintiffs Elizabeth Bowker and Avi Sharabi, for the Defendants
Heard: August 15, 2022
Certification Motion
Certification Motion
1The claim arises from a fire that occurred on November 15, 2019 in an apartment building located at 235 Gosford Boulevard, Toronto. The fire is alleged to have caused significant property damage and personal injuries and loss.
2The Statement of Claim asserts that the fire was a result of a faulty electric system in the building or a malfunctioning space heater that was provided by the Defendants due to a faulty heating system in the building.
3The Plaintiffs seek to certify the action under the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”). The parties have reached an agreement on certification such that this motion is proceeding on consent.
4To be clear, this is not a consent certification for the purposes of settlement. The Defendants will be defending the common issues trial and have already filed a Statement of Defense. However, the Defendants have conceded that the statutory criteria for certification have been met. This includes, inter alia, an agreement with respect to the common issues.
5I see no reason not to certify the action on the terms jointly requested by the parties. There is a recognizable cause of action in negligence and/or breach of the tenancy agreements and breach of quiet enjoyment and the right of reasonable use and enjoyment of the leased premises. There is also an identifiable class of tenants and others who were in the apartment building and who were impacted by the fire. More specifically, the parties have agreed to define the class as:
All persons in Canada (including their estates, executors or personal representatives) who on November 15, 2019, at the time of the Fire, regularly resided in and/or were visiting the Premises (the “Class Members”).
The Sub-Classes are defined as:
All persons in Canada who on November 15, 2019 were tenants of the Premises, pursuant to a lease agreement (the “Tenants Class”);
All persons in Canada who on November 15, 2019 were tenants of the Premises, pursuant to a lease agreement and who did not receive temporary accommodations from the Owner Defendant and who have not returned to live at the Premises (the “Tenants Class I”);
All persons in Canada who on November 15, 2019 were tenants of the Premises, pursuant to a lease agreement and who did not receive temporary accommodations from the Owner Defendant and who have resumed living at the Premises (the “Tenants Class ii”);
All persons in Canada who on November 15, 2019 were tenants of the Premises, pursuant to a lease agreement and who received temporary accommodations from the Owner Defendant and who have not returned to live at the Premises (the “Tenants Class iii”);
All persons in Canada who on November 15, 2019 were tenants of the Premises, pursuant to a lease agreement and who received temporary accommodations from the Owner Defendant and who have resumed living at the Premises (the “Tenants Class iv”);
All persons in Canada who on November 15, 2019 were regularly residing at the Premises, but not lessors (the “Residents Class”); and
All persons in Canada who on November 15, 2019 were visitors or guests at the Premises (the “Visitors Class”).
6The parties, through counsel, have negotiated a careful and thorough set of common issues. Given the commonality of the issues and the access to justice concerns which this claim would otherwise present if done on an individual basis, a class action is the preferable proceeding.
7Plaintiffs’ counsel have submitted a workable litigation plan and appear up to the task of representing the class and moving this action forward. The representative Plaintiff appears capable of instructing counsel and fulfilling her role without any conflict with the class members; further, the representative Plaintiff and class counsel have entered into a retainer agreement which includes an indemnification clause for the representative Plaintiff.
8Accordingly, all of the terms of section 5(1) of the CPA are satisfied.
Common Issues
9The agreed-upon common issues are:
Negligence
- Did the Defendants owe the Class Members a duty of care:
(a) to provide adequate heating at 235 Gosford Boulevard, Toronto, Ontario (the “Premises”)?
(b) to provide safe electrical systems for the Premises?
(c) to ensure that tenants/residents/occupants of the individual units in the Premises not use space heaters?
- If the answer to (1) (a), (b) or (c) is yes, what was the standard of care for each of:
(a) adequate heating,
(b) safe electrical systems, and
(c) ensuring that tenants/residents/occupants not use space heaters?
Did the Defendants breach the standard of care for any of Common Issues 2 (A), (B), or (C)?
If the answer to Issue 3 is Yes, did such a breach cause or contribute to the fire which occurred at the Premises on November 15, 2019 (the “Fire”), and if so, how?
Did the occupants of Unit 808 have a duty of care to properly use electrical and heating systems in their Unit, including not to over-load fuses or use space heaters?
Was an occupant’s use of a space heater in Unit 808 a breach of the standard of care expected of a reasonable tenant or occupant living in the Premises?
Did an occupant’s use of a space heater in Unit 808 cause or contribute to the Fire, and if so, how?
Was there any deficiency in the space heater used in Unit 808 that caused or contributed to the cause of the Fire?
Was the Fire caused by combustibles being placed too close to the space heater in Unit 808?
Contractual Issues
What are the terms of the contracts (leases) entered into between the Landlord and its tenants pertaining to (a) damages for property damage and alternative living expenses and (b) bodily injuries or personal injuries?
Do the terms of the contracts (leases) entered into between the Landlord and its tenants preclude the Class members and any other parties from recovering from the Defendants damages for
(a) property damage and alternative living expenses arising from the Fire, and
(b) damages for any bodily injuries or personal injuries arising from the Fire?
Did the Defendants have an obligation under the contracts (leases) to keep the heating and electrical systems in the Premises in a good state of repair?
If the answer to Common Issue 12 is “yes”, did the Defendants breach their obligations under the contracts (leases)?
Was an occupant’s use of a space heater in Unit 808 in breach of the tenants’ obligations under the contracts (lease?)?
Statutory Immunity
- Are the Defendants shielded from liability pursuant to Section 76 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4?
Post Fire Allegations
Even if the Defendants’ acts or omissions did not cause or contribute to the Fire, did the Defendants owe the Class Members a stand-alone duty of care to provide alternate accommodation following the Fire?
If the answer to Common Issue 16 is “yes” such that the Defendants did have a duty to provide alternate accommodation, of what type, for how long, at what cost and at whose cost?
Did the Defendants breach any standard of care established by the answer to Common Issue 17?
Did the Defendants have a duty following the Fire to secure the Premises and to take steps to prevent theft of the Class Members’ property?
If the answers to Common Issue 19 is “yes”, what was the standard of care?
Did the Defendants breach any standard of care established by the answer to Common Issue 20 regarding securing the Premises and taking steps to prevent theft of the Class Members’ property?
If the Defendants were not required to provide alternative accommodation at their expense, are the Defendants entitled to a credit or set-off for such expense against any damages they may owe in this Action?
Damages
Did the Class Members suffer compensable damages as a direct result of the Fire?
Can damages be determined on a class-wide, aggregate basis?
Was the negligence of Defendants so egregious as to justify an award of exemplary or punitive damages?
Disposition
10The claim is certified pursuant to section 5(1) of the CPA. The Plaintiffs are the representative Plaintiffs for the class. Plaintiffs’ counsel is appointed as class counsel.
11The class is defined as in paragraph 5 above. The common issues are as set out in paragraph 9 above.
12There will be an Order to go as submitted by Plaintiff’s counsel.
Costs
13The parties have agreed that there will be no costs ordered with respect to this consent certification motion.
Morgan J.
Date: August 16, 2022