Class action lawsuits have a benefit in certain cases. For example, in 2013, four chocolate producers in Canada agreed to pay more than $23 million in a class action that alleged price-fixing. The impact on the plaintiffs was similar and the class of claimants was easy to define.

Class actions for data breaches and privacy violations (where customers’ information is mistakenly shared) is another common type of class action claim. Similarly, car manufacturing defects are often the subject of class actions – there are class actions ongoing at this time related to moldy air conditioners in Mercedes vehicles, for example.

But class actions are not appropriate in all cases. In a decision released January 21, 2021, Justice MacLeod rejected a request to certify a class action arising out of the deadly OC Transpo bus crash that occurred at Westboro Station in Ottawa on January 11, 2019. The double decker bus collided with the station, shearing the roof off the bus, causing trauma and injury to many passengers and claiming three lives.

A class action is appropriate only if:

1) there is an identifiable class of plaintiffs

2) the claims raise common issues

3) a class proceeding would be the preferable procedure for resolution of the common issues.

Justice MacLeod noted in his decision that the action was not brought against the driver of the bus nor against the City as her employer. His Honour pointed out that pursuing an action against the City without claiming against the driver and without claiming the City to be vicariously responsible for the actions of its driver may put potential claimants at risk of recovering nothing, or only a portion of their losses.

Justice MacLeod correctly pointed out that every individual who suffered injury and the families of those who lost their lives have the right to access “no fault” accident benefits and also have the right to sue any “at fault” defendant (for example, the driver, OC Transpo and the City of Ottawa).

Justice MacLeod concluded that a class action would not be the preferable way to resolve these claims and also concluded that a class action is not necessary or in the interests of justice. There have been almost 30 individual lawsuits started on behalf of individual plaintiffs and the family members of those who died. The City has admitted liability in these cases and now those cases can move to an assessment of damages.

The Court expressed concern that the evidence on certification did not provide any real information about the proposed class. The evidence did not address the details and circumstances of potential claimants, aside from the one representative plaintiff named in the lawsuit.

In the end, the Court concluded that a class action is not the correct form of litigation for these cases. The claims of the individuals involved in the accident are unique and specific to them, and the claims of the family members of those who have died are also unique and specific to them. These claims should be pursued on an individual basis. Our office handled a number of the claims arising out of the OC Transpo/Via Rail crash of 2013. All claims proceeded on an individual basis.

All claimants involved in the class action or could have been involved in the class action now have to pursue individual claims if they wish to proceed. Legal counsel for those who do not have representation should be sought immediately.

By Laurie Tucker of Burn Tucker Lachaîne Personal Injury Lawyers

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