5 Westboro bus crash lawsuits against city can proceed after class action refused
City expressed 'some outrage' at change in tactics, judge says, but city says it respects decision
A proposed class action lawsuit against the City of Ottawa that failed to get certification after years of appeals can now proceed as an individual case, along with four new claims related to a fatal bus crash in 2019, a Superior Court judge has ruled.
It's coming up on six years since a double-decker OC Transpo bus slammed into the awning of a shelter at Westboro station on Jan. 11, 2019, killing three people and injuring dozens of others.
So far, the city and its insurers have paid out a combined $29.4 million on 24 settlements related to the crash. There are 11 remaining claims, the city said Wednesday.
The statute of limitations to file suit passed years ago, but last week Justice Calum MacLeod ruled that five individual lawsuits can go ahead despite the passage of time. That's because their allegations were included in the original proposed class action — and because the statute clock was stopped for more than four years as it made its way through the courts on appeal.
Marcel Pinon was the lead plaintiff in the proposed $60-million class action, notice of which was filed just six days after the crash.
He was sitting on the main floor of the double-decker bus when it crashed and was thrown from his seat, according to the claim. It alleges he suffered physical and psychological injuries including increased anxiety and difficulty sleeping.
Certification first refused in 2021
Certification of the proposed class action was first refused in January 2021. Pinon and Merchant Law Group — the firm handling the case — appealed the decision at Divisional Court, then the Court of Appeal for Ontario and finally the Supreme Court, which dismissed the case for good in March 2023.
The main reason the class action was refused was the "oddity" of suing the city specifically for alleged systemic negligence, including road design, bus station design, vehicle design and road repair, according to MacLeod's decision, dated Oct. 21.
The plaintiffs and counsel weren't pursuing the more typical automobile accident aspects of the case, including the city's liability as the owner of the bus that crashed, or Aissatou Diallo's liability as the driver of the bus.
Now, they're changing course.
The city "expresses some outrage" that they're pursuing operator and direct negligence after steadfastly pursuing the systemic negligence angle all the way to the Supreme Court, MacLeod wrote.
"No doubt this is frustrating," but it doesn't prevent the plaintiffs from relitigating. Nor is there evidence of an abuse of process, MacLeod added.
4 new suits seek $4M
The four new lawsuits were filed last year.
Julie Carswell is suing the city for $1.25 million. She was sitting on the right-hand side of the upper deck, directly behind her friend who was in the front row, according to her claim.
Carswell was thrown from her seat by the crash. When she looked up, everyone in the front row had disappeared, including her friend. As she helped move people away from the hole at the front of the bus, she looked out and saw her friend and other victims on the ground. (Her friend survived, but still had not returned to work as of July 2023.)
Two days later, Carswell was diagnosed with a concussion, whiplash and symptoms of trauma and PTSD, according to her claim. She had applied for a promotion, but when she returned to work and started training for the new job, she realized she could no longer do it because it was too triggering. She accepted a demotion instead, her claim states.
In a statement of defence, the city admits the crash was caused by negligent operation of the bus, but denies all other allegations of negligence, fault, breach of duty and liability.
The city denies that Carswell sustained injuries or damages, and that her injury claims "are excessive, exaggerated," or were caused or contributed to by a pre-existing condition or injury.
WATCH / Reporter Kristy Nease breaks down the story:
City respects court's decision
Kael Grant, Sylvia Collins, Tin Bui and their families are suing for $900,000 each.
Like Carswell, Grant was seated on the right-hand side of the upper deck. He suffered a serious knee injury that is expected to cause permanent pain despite ongoing treatment, according to his claim.
Grant was also diagnosed with PTSD. He, his spouse and children claim that his high anxiety and pain have affected his ability to parent and to advance in his career.
Bui was also on the bus, but his claim doesn't specify where. He suffered a serious ankle injury that he still needs treatment for, and which his doctors say will be lifelong, according to the claim. He was later diagnosed with depression and suffers debilitating anxiety attacks and flashbacks that affect his ability to parent and advance at work, the claim states.
Collins was standing on the ground floor near the driver when the crash happened. She suffered a serious knee injury and had to walk with a cane until December 2020, according to her claim.
"Given her proximity to the front of the bus, [she] had a clear view of the events leading to the accident and the traumatic aftermath, including the ejection and death of those who lost their life after having been thrown from the bus," Collins's claim states.
She was diagnosed with PTSD and was unable to take proper care of herself, according to the claim, resulting in a throat infection that required a week-long stint in intensive care followed by months of bed rest.
The city has not yet filed its statements of defence in the Grant, Collins, Bui and Pinon lawsuits.
In an emailed statement, interim city solicitor Stuart Huxley said the city respects MacLeod's decision allowing the suits to move forward, and can't comment further because the matters are ongoing.
Merchant Law Group did not respond to requests for comment.
ABOUT THE AUTHOR
