Court File No. CV -19- 0090-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN HELENE MARJE KNAPA YSWEET and ALLISON JESSICA NAKOGEE Plaintiffs and ONTARIO NORTHLAND TRANSPORTATION COMMISSION Defendant MOTION RECORD (Motion for Certification) Proceeding under the Class Proceedings Act, 1992 October 9, 2020 PETRONE & PARTNERS Barristers & Solicitors 76 Algoma Street North Thunder Bay ON P7 A 424 LoriKruse(S0691J) Gavin W. Freitag (34277V) Tel: (807) 344-9191 Fax: (807) 345-8391 Email: [email protected] CAMBRIDGE LLP 331-333 Adelaide Street West Suite 400 Toronto ON MSV 1RS R. Douglas EIJiott (2368SL) Tel: (416) 477-7007 Fax: (289) 293-0318 Lawyers for the Plaintiffs TO: LLOYD BURNS MCINNIS LLP Barristers & Solicitors 150 York Street Suite 200 Toronto, ON M5H 3S5 Adam L. Dunlop (55509E) Tel: (416) 360-6327 Fax: (416) 360-8809 Lawyers for the Defendant, Ontario Northland Transit Commission Court File No. CV-19- 0090-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN HELENE MARIE K.NAPAYSWEET and ALLISON JESSICA NAKOGEE Plaintiffs and ONTARIO NORTHLAND TRANSPORTATION COMMISSION Defendant INDEX Content Tab Notice of Motion dated October 9, 2020 ......................................................... Tab 1 Schedule "A" - "The Notice" .................................... ................................. Tab lA Schedule "B" - "The Short Fonn Notice" ...................................................... Tab I B Statement of Claim issued January 31, 2019 . ................................................... Tab 2 Affidavit of Helene Kanapaysweet sworn September 30, 2020 ............................... Tab 3 Affidavit of Allison Nakogee sworn September 30, 2020 .................................... Tab 4 1 Court File No. CV-19- 0090-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN HELENE MARIE KNAPA YSWEET and ALLISON JESSICA NAKOGEE Plaintiffs and ONTARIO NORTHLAND TRANSPORTATION COMMISSION Defendant NOTICE OF MOTION (Motion for Certification) THE PLAINTIFFS, Helene Marie Knapaysweet and Allison Jessica Nakogee, will make a Motion to the Honourable Mr. Justice W. Danial Newton (the assigned Case Management Judge for this matter), on .................................................. , at the Court House located at 125 Brodie Street North, Thunder Bay, ON P7C 0A3. PROPOSED METHOD OF HEARING: I. This motion is to be heard by video conference. THE MOTION IS FOR: 1. An Order certifying this action as a class proceeding. 2. An Order describing that the class is defined as all persons who were passengers on the 2 Polar Bear Express train operated by Ontario Northland Transportation Commission (the "Defendant" or "Ontario Northland") on May 30, 2018, when it derailed approximately 37 kilometers south of Moosonee, Ontario, excluding Ontario Northland's employees. 3. An Order appointing Helene Marie K.napaysweet and Allison Jessica Nakogee as the representative plaintiffs, nunc pro tune, of the class. 4. An Order approving the common issues in this proceeding as: a) Did Ontario Northland owe a duty of care to the Class Members when the Polar Bear Express derailed on May 30, 2018? b) If yes, what was the standard of care? Did Ontario Northland breach the aforementioned standard of care, and if yes, when and how? c) Was Ontario Northland in breach ofcontract to the Class Members when the Polar Bear Express derailed on May 30, 2018? If yes, when and how? d) Should Ontario Northland pay prejudgment and postjudgment interest? If yes, at what annual interest rate(s)? 5. An Order specifying that the relief sought by the Class as set out in the Statement of Claim is an aggregate assessment of monetary relief in the amount of $10 million for negligence and breach of contract plus interests, costs, disbursements and all applicable taxes. 6. An Order approving the opt out date that being (60 days from the date of the Certification Order), as well as the form and content of the notice of certification (the "Notice"), which is attached hereto as Schedule "A", and the content of the summary version of the Notice (the "Short 3 Form Notice"), attached hereto as "Schedule "B". 7. An Order specifying that the Class shall be notified of this action and the certification in accordance with the following program: a) Publishing the Short Form Notice once in the following newspapers: the Timmins Daily Press and Cochrane Times, within fifteen (15) days of the Certification Order; b) Posting ofthe Notice by Class Counsel on the following websites within fifteen (15) days of the Certification Order: (i). www.petronelaw.ca; and (ii). www.cambridgellp.ca c) Delivery of the Notice by Class Counsel by regular mail or email to all Class Members known to them within fifteen (15) days of the date of this Order; d) Delivery of the Notice by counsel for Ontario Northland to Girones Lawyers and Meunier Carrier Lawyers, counsel for certain passengers on the Polar Bear Express that derailed on May 30, 2018, via facsimile and email; e) Delivery of the Notice by regular mail and/or email by Class Counsel to Moose Cree First Nation band office (attention Chief and Council) located at 22 Jonathan Cheechoo Drive, P.O. Box 190, Moose Factory, Ontario, POL IW0, with a request to post the Notice publicly at the band office; f) Posting of the Notice by Ontario Northland at the Moosonee Train Station and 4 Cochrane Train Station; and g) Delivery of the Notice by regular mail and/or email by Class Counsel or Ontario Northland to any person who requests it. 8. An Order declaring that the notice program satisfies the requirements of section 17 of the Class Proceedings Act. 9. An Order requiring Ontario Northland to pay the reasonable costs associated with implementing this notice program. 10. An Order that within 30 days of the Certification Order, Class Counsel and Counsel for Ontario Northland shall report to the Court by affidavit confirming their compliance with their obligations under paragraph 7. 11. An Order specifying that a Class Member may only opt out of this class proceeding by sending a written election to Class Counsel by ordinary mail, fax, email and/or courier, to an address(es) to be specified by the Court, which election must be received or post marked on or before the opt out (which shall be 60 days from the Certification Order), and must be signed by the Class member or such Class Members' authorized representative, stating that the Class Member opts out of this class proceeding and also stating the Class Member's full name, address, email address, and telephone number . 12. An Order specifying that Class Counsel shall report to Ontario Northland and to the Court the names and addresses of the persons who have opted out of this class proceeding within fifteen ( 15) days following the opt out deadline; 5 13. Such further and other relief as counsel may request and this Honourable Court may permit. THE GROUNDS FOR THE MOTION ARE: I. The Court should certify this proceeding and appoint the Plaintiffs as representative plaintiffs because the criteria ofthe Class Proceedings Act, 1992, section 5(1) are met, specifically: a) The Statement of Claim discloses both negligence and breach of contract as the causes of actions; b) There is an identifiable class of two or more persons {passengers) that would be represented by the representative plaintiffs; c) The claims of the class members raise common issues; d) A class proceeding is the preferable procedure for the resolution of the common issues; e) The proposed representative plaintiffs will fairly and adequately represent the interests of the class f) The proposed representative plaintiffs, through class counsel, have produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class; g) The proposed representative plaintiffs, though class counsel, have produced a plan for notifying class members of the proceeding; and h) The proposed representative plaintiffs do not have, on the common issues for the class, any interest in conflict with the interests ofthe other class members. 2. It is reasonable that the Defendant pay the full cost of the notice program; 3. The names, addresses, telephone numbers, email addresses and fax numbers of some of 6 the Class Members are not known to the Plaintiffs or Class Counsel but are known, or presumed to be known, in part or in full, by the Defendant. 4. The Class Proceedings Act, 1992, SO 1992; 5. The Rules ofCivil Procedure; and 6. Such further and other grounds as counsel may advise and this Honourable Court may permit. THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing ofthe motion: 1. The Statement of Claim issued January 31, 2019; 2. The Affidavit of Helene Marie Knapaysweet sworn on September 30, 2020; 3. The Affidavit of Allison Jessica Nakogee sworn on September 30, 2020; and 4. Such further and other evidence as counsel may advise and this Honourable Court may permit. October 9, 2020 PETRONE & PARTNERS Barristers & Solicitors 76 Algoma Street North Thunder Bay ON P7A 424 Lori Kruse (50691J) Gavin W. Freitag (34277V) Tel: (807) 344-9191 Fax: (807) 345-8391 Email: lori(@petronelaw.ca CAMBRIDGE LLP 331-333 Adelaide Street West Suite 400 Toronto ON MSV IRS 7 R. Douglas Elliott (23685L) Tel; (416) 477-7007 Fax: (289) 293-0318 Lawyers for the Plaintiffs TO: LLOYD BURNS MCINNIS LLP Barristers & Solicitors 150 York Street Suite 200 Toronto, ON MSH 3S5 Adam L. Dunlop (55509E) Tel: (416) 360-6327 Fax: (416)360-8809 Lawyers for the Defendant, Ontario Northland Transit Commission ,.., •, ,, • I • •◄- •• ~J~ , ... _ .. 8 Schedule "A " NOTICE OF CERTIFICATION OF THE ONTARIO NORTHLAND TRANSPORTATION COMMISSION (POLAR BEAR EXPRESS) DERAILMENT CLASS ACTION This Notice may affect your rights. Please read carefully THE CLASS ACTION This action in the Ontario Superior Court of Justice arises out a train derailment which occurred approximately 37 kilometres south ofMoosonee on May 30, 2018 at approximately 5:45 p.m. The defendant is Ontario Northland Transportation Commission. This notice is directed to the CLASS MEMBERS, who are all persons who were passengers on the Polar Bear Express on May 30, 2018, when it derailed approximately 37 kilometers south of Moosonee, Ontario, excluding Ontario Northland Transportation Commission's employees.