Plaintiffs generally have great flexibility in how they choose to frame their causes of action without court interference. If a plaintiff chooses to structure their litigation in an unconventional manner, they alone bear the risk of an unfavourable outcome. However, as the Divisional Court recently confirmed in Pinon v Ottawa (City), 2021 ONSC 6172 in the context of class action litigation it is appropriate for the court to consider how pleadings are framed when deciding the preferable procedure criterion under s 5(1)(d) of the Class Proceedings Act, 1992.[1]
Background
The plaintiff was a passenger on a City of Ottawa double-decker bus on January 11, 2019, when it slid off the roadway and collided into Westboro Station. Part of the upper deck of the bus was torn off when it hit the roof of the station, killing three passengers and resulting in injuries and trauma to other passengers and individuals at the station. The plaintiff sued the City of Ottawa on his own behalf and on behalf of other injured or traumatized individuals and their families.
The plaintiff based his claim on the alleged systemic negligence of the City in the design, construction and maintenance of roadways and stations; the procurement process and design of the double decker buses; the training, certification and oversight of bus drivers; the safety management policies and procedures; and the emergency response after the collision. The plaintiff also claimed breach of the Consumer Protection Act, 2002[2] for failing to warn passengers of the risks of using the public transit system. The plaintiff did not name the bus driver as a defendant nor did he claim against the city for vicarious liability as the employer of the bus driver.
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