Bywater v. Toronto Transit Commission, (1998) 83 O.T.C. 1 (GD)

• Judge: Winkler, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 25, 1998
• Jurisdiction: Ontario
• Citations: (1998), 83 O.T.C. 1 (GD)

Bywater v. TTC (1998), 83 O.T.C. 1 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. DE.007

Sarah Bywater (plaintiff) v. Toronto Transit Commission (defendant)

(Court File No.: 97-CV-129694)

Indexed As: Bywater v. Toronto Transit Commission

Ontario Court of Justice

General Division

Winkler, J.

December 2, 1998 and January 12, 1999.

Summary:

In 1997, a fire occurred in a tunnel of the Toronto Transit Commission (TTC) subway system. Smoke from the fire entered the two adjacent subway stations and spread as well to other areas of the subway system. 1200 to 1400 people were caused to evacuate the subway system because of the incident. Approximately 110 of these people were treated for smoke inhalation. One of the individuals treated was the plaintiff, who commenced an action for damages against the TTC. The plaintiff applied to have the action certified as a class action on behalf of all of the persons who suffered injuries resulting from the fire. The plaintiff claimed, on behalf of the class, $30,000,000 damages. The plaintiff also sought partial summary judgment based on the TTC's admission of liability for the cause of the fire and requested that damages be assessed on a global basis.

The Ontario Court (General Division) certified the action. The court also granted partial summary judgment. However, the court stated that this was not an appropriate case for a global (or aggregate) assessment of damages. The action advanced claims for personal injury, property damages and claims under the Family Law Act. These claims could not "reasonably be determined without proof by individual class members" as required by s. 24(1)(c) of the Class Proceedings Act.

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - For damages - See paragraphs 1 to 37.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - General principles - See paragraphs 7 to 30.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - See paragraphs 7 to 30.

Practice - Topic 5717

Judgments and orders - Summary judgments - For part of claim - See paragraphs 35 and 36.

Cases Noticed:

Anderson et al. v. Wilson et al. (1998), 107 O.A.C. 274; 37 O.R.(3d) 235 (Div. Ct.), refd to. [para. 11].

Westminer Canada Holdings Ltd. et al. v. Coughlan et al. (1990), 41 O.A.C. 377; 75 O.R.(2d) 405 (Div. Ct.), refd to. [para. 14].

Thoday v. Thoday, [1964] 1 All E.R. 341 (C.A.), refd to. [para. 14].

Abdool v. Anaheim Management Ltd. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 15].

Campbell et al. v. Flexwatt Corp. et al. (1998), 98 B.C.A.C. 22; 161 W.A.C. 22; 15 C.P.C.(4th) 1 (C.A.), refd to. [para. 21].

Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R.(3d) 331 (Gen. Div.), refd to. [para. 24].

Ford Motor Co. of Canada Ltd. v. Municipal Employees Retirement Board (Ont.) (1997) 104 O.A.C. 179; 36 O.R.(3d) 384 (C.A.), refd to. [para. 35].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 1 [para. 12]; sect. 5(1) [para. 7]; sect. 6 [para. 23]; sect. 24(1) [para. 17].

Authors and Works Noticed:

Cochrane, Michael, Class Actions: A Guide to the Class Proceedings Act (1992), p. 28 [para. 25].

Manual for Complex Litigation (3rd Ed. 1995), p. 217 [para. 11].

Newberg, H.B., Class Actions (3rd Ed. 1992), p. 6-61 [para. 11].

Counsel:

Michael McGowan and Dorothy Fong, for the plaintiff;

Brian M. Leck and Gary Peacock, for the defendant.

This application was heard on November 25, 1998 before Winkler, J., of the Ontario Court (General Division), who delivered the following decisions on December 2, 1998, and January 12, 1999.