Court File and Parties

COURT FILE NO.: CV-19-78997-CP DATE: 2024 10 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: Adam Huff as agent for Counsel for the Plaintiff Jonathan de Vries, for the Defendant

HEARD: July 24, 2024

Decision and Reasons

The Motion and the Issue

[1] This hearing related to this action (originally a proposed class proceeding arising out of the Westboro bus crash) and four new individual actions. [1] There is a Motion by the Plaintiff to amend the claim and to continue it as an individual action and a Cross-Motion by the City to refuse the Motion and also to declare that the four new actions are statute barred.

[2] By way of background, certification was refused after a Motion heard in 2020 and for reasons released in January of 2021. [2] It was the finding of the Court that the structure of the original action, focusing on systemic negligence rather than driver’s negligence, was not in the best interests of the proposed class and was unsuitable for certification. The question is whether the proposed individual claims are new causes of action or whether, despite the original attempt to plead around the scheme for automobile accidents in the Insurance Act, they are nevertheless claims that were supported by the facts pleaded in the original Statement of Claim.

[3] The question is germane because the limitation period does not run against members of a proposed class during the pendency of the proposed proceeding until the determination of the certification motion and the disposition of any appeals. [3]

The Facts

[4] The Westboro bus crash took place on January 11, 2019 and the Pinon action was commenced as a proposed class proceeding that same year. The Certification Motion was heard in late 2020 and the decision refusing certification was released in January of 2021. The decision was under appeal to the Divisional Court, Court of Appeal and Supreme Court of Canada. Leave to appeal was finally refused on March 9, 2023. So, this was a proposed class proceeding from January 17, 2019 until March 9, 2023. Pursuant to s. 28 of the Class Proceedings Act (“CPA”), the limitation period was therefore suspended and did not run against members of the proposed classes during the period of time between these two dates. [4]

[5] The question which must be determined is what claims were protected by s. 28 and are preserved despite the usual two year requirement in the Limitations Act. [5] If the proposed claims are causes of action that were not included in the original pleading, they are statute barred. If they were included, then the Class Proceedings Act protects them. The point of s. 28 is to ensure that unnamed members of a proposed plaintiff class who may have relied upon the class proceeding to prosecute potential claims are not unfairly prevented from bringing individual actions if the class proceeding is not certified.

[6] The oddity of this action as originally framed, and the principal reason that certification was refused, was the Plaintiff’s attempt to sue Ottawa only for causes of action that did not trigger the provisions of the Insurance Act relating to automobile accidents. [6] In other words, the action was structured only to sue Ottawa in its capacity as a non-protected Defendant. For example, the Plaintiff did not sue the driver herself for negligence. The Plaintiff did not frame its claim against the City in statutory liability as the owner of a motor vehicle. Rather, the Plaintiff sought to pursue the City primarily for systemic negligence such as road design, bus station design, vehicle design and road repair.

Analysis & Decision

[7] The law is clear that if a party seeks to amend the statement of claim to add causes of action that are based on facts that were not pleaded, the proposed causes of action will be treated as a new pleading and will be subject to prescription under the Limitations Act. [7] On the other hand, if the original statement of claim contained all of the necessary facts to ground the proposed claim, it will be allowed. [8] This because it is not necessary under our pleading rules to assert the specific basis for liability but only to set out the facts the party intends to prove.

[8] Although the pleading rules have been amended and refined from time to time, Ontario retains the system of fact based pleading developed at the end of the 19th Century. Under our rules, a party must plead the material facts on which it intends to rely (but not the evidence to prove those facts). The Rules of Civil Procedure go on to state that “conclusions of law” may be pleaded but only if the facts necessary to support such conclusions have been pleaded. [9] In other words, it is not necessary to actually name the cause of action and it is permissible to rely on various bases of liability provided they are supported by the pleaded facts. [10]

[9] The Defendant expresses some outrage that despite the Plaintiff’s attempt to certify a class proceeding for only the non automobile accident aspects of his claim, and despite having maintained his right to do so all the way to the Supreme Court of Canada, the Plaintiff now argues that the claims he seeks to assert are included in the original claim. No doubt this is frustrating, but pursuing certification in this manner does not create issue estoppel. [11] I cannot conclude on the evidence that the attempt to proceed with the proposed individual actions amounts to abuse of process.

[10] It is important to remember that a class proceeding is a procedural device to permit what could otherwise be myriad individual actions to be pursued collectively. The determination that a class proceeding is not an appropriate vehicle is not a determination on the merits. In addition, a plaintiff in seeking certification of certain common issues, does not give up the right to include individual claims. Moreover, a Court approving certification of common issues may modify the proposed class definitions or the proposed common issues and may determine that certain claims asserted by a plaintiff are outside of the common issues. When certification is refused, the Act specifically contemplates steps to preserve the individual rights of action of the nominal plaintiff and the members of the putative class. [12]

[11] In the case at bar, the Plaintiff pleaded that the driver failed to adequately control the bus. He pleaded that the driver lacked the skills, confidence, training or capacity to adequately respond to the conditions presented on January 11, 2019. He pleaded that the City was vicariously liable for the driver’s errors. In addition to vicarious liability, he pleaded that the City was directly negligent in a number of ways including inadequate training, certification, oversight and monitoring of the driver. These are material facts sufficient to support a claim for negligent operation of the vehicle. Moreover, the pleading of vicarious liability while evidently focused on common law vicarious liability in its capacity as employer, is sufficient to include statutory liability for the actions of the operator under the Insurance Act. I conclude that the original pleading does contain sufficient facts to assert claims of operator negligence against the City in addition to the claims for direct negligence and systemic negligence. It follows that these claims are protected from the running of the limitation period by s. 28 of the CPA.

[12] Pursuant to s. 7 of the Act and Rule 26.01 the amendments are allowed and the new claims may issue. The proposed claims of the class members were preserved pursuant to s. 28 of the CPA. The Plaintiffs also wish to pursue the claims for negligent station design, transit design and bus design and the claim for punitive damages. This may complicate the litigation and increase the expense, but those claims were in the original pleading. At the pleading stage, the Court is not concerned with whether or not the claim will succeed but only if it is a proper pleading. This course of action may not serve the Plaintiffs well and may expose them to costs but that is not an issue to be considered by the Court at this stage in the litigation.

Conclusion

[13] The Motion to amend is granted. As agreed between the parties, it also follows that the individual claims may be pursued.

Costs

[14] There may have been offers to settle and other matters relevant to costs. I invite the parties to agree on the disposition of costs but they may otherwise make submissions on costs within the next 30 days.

October 21, 2024

Mr. Justice C. MacLeod