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.
CERTIFICATION
On (date), Justice Newton certified this action as a class proceeding. The Court has not determined the merits of the action. The certification order is posted at, www.petronelaw.ca and www.cambridgellp.ca.
DO NOTHING IF YOU WISH TO PARTICIPATE
Class Members are automatically included in the class action and need not do anything at this time if they wish to participate. They will be bound by the judgment in the action whether favourable or not.
OPT OUT ONLY IF YOU WISH TO BE EXCLUDED
If you are a Class Member, as described above, but wish to be excluded and not bound by any future Order made in this class action, you must send a signed statement indicating that you wish to be excluded from this class action, containing your name, email address, address, and telephone number, by prepaid mail, fax or email to
PETRONE & PARTNERS Barristers & Solicitors 76 Algoma Street North Thunder Bay ON P7A 4Z4 9
Lori Kruse (50691J) Gavin W. Freitag (34277V) Tel: (807) 344-9191 Fax: (807) 345-8391 Email: lori(@pctronelaw.ca
If your election is to opt out is not received or post marked by 5:00 p.m. eastern time on [DATE] you will be bound by all Orders made in this action.
If a Class Member cannot personally make an election to opt out, the person making the election for the Class Member must provide their personal information, together with a copy of the document that permits the person to act on the Class Member's behalf, such as a will, Certificate of Appointment (death) or Power of Attorney (incapacity).
No person may opt out a minor or mentally incapable person without permission of the court after notice to The Children's Lawyer and/or the Public Guardian and Trustee, as appropriate.
A person who opts out cannot participate in the class action, will not be bound by any future order made in the class action, and will not be eligible for any recovery in the class action but may be eligible to pursue an individual claim.
DO NOT OPT OUT IF YOU WISH TO PARTICIPATE IN THE CLASS ACTION.
If you do not opt out of the class action on or before 5:00 p.m. eastern time on [DA TE] you will be a Class Mem her.
CLASS COUNSEL FEES AND DISBURSEMENTS
The plaintiffs and Class Counsel signed a retainer agreement providing for the payment to Class Counsel of fees, disbursements and applicable taxes, to be paid out of the recovery in the class action as follows (the "Retainer Agreement"):
(insert terms of retainer agreement here)
The Retainer Agreement, which must be approved by the Court to be effective, provides for a contingency fee of 15% if the class action is settled without a contested certification, and 35% in all other circumstances other than a non-contested certification and settlement. If the class action is successful, legal fees will be deducted from your recovery.
After the class action is resolved, there may be individual issues that remain outstanding. If a Class Member wishes to retain a lawyer to assist with these issues, the Class Member may be required to pay additional fees, in addition to the amounts set out above. 10
NO COST TO CLASS MEMBERS
No member of the Class will be responsible for paying the legal costs of the Defendant if the action were unsuccessful.
If the action is not successful, the members of the Plaintiff Class will not be responsible for any legal costs nor will they have any other financial obligations. Class Counsel is solely responsible for incurring those costs and risks.
INFORMATION
This Notice was approved by the Ontario Superior Court of Justice. The court offices will be unable to answer any questions about the matters in this notice. Pleases direct questions for Class Counsel to:
PETRONE & PARTNERS Barristers & Solicitors 76 Algoma Street North Thunder Bay ON P7 A 424
Lori Kruse (50691J) Gavin W. Freitag (34277V) Tel: (807) 344-9191 Fax: (807) 345-8391 Email: [email protected]
INTERPRETATION
This Notice is a summary of some of the tenns of the Certification Order. If there is a conflict between the provisions of this Notice and the terms of the Certification Order, the Certification Order prevails.
11
NOTICE OF CERTIFIED CLASS PROCEEDING
Regarding: Ontario Northland Transportation Commission Proceedings Under the Class Proceedings Act, 1992 Claim File No. CV-19-0090-00CP (Thunder Bay) Passenger Train (Polar Bear Express) Derailment- May 30, 2018
If you were a passenger on board the Polar Bear Express which departed Moosonee, Ontario, en route to Cochrane, Ontario on May 30, 2018 and derailed at approximately 37 kilometers south of Moosonee, at approximately 5:45 p.m., you may be eligible for compensation.
A class action law suit has been commenced to pursue compensation for passengers (excluding Ontario Northland employees) impacted by this derailment.
The class action law suit has been certified and is proceeding to a mediation aimed at negotiating a settlement. A case management Judge with the Superior Court of Justice has been appointed to oversee this class action. ·
If you were a passenger, your rights may be affected by the class action and the proposed settlement track.
Please contact us for more information:
Petrone & Partners 76 North Algoma Street Thunder Bay, ON P7A 424
Lori Kruse Tel: (807) 344-9191 Fax: (807) 345-8391 Email: [email protected]
PLEASE NOTE THAT all passengers are automatically INCLUDED in the class action. If you DO NOT want to be part of the class action, you must opt out by sending a signed statement by prepaid mail, fax or email to class counsel (name and contact listed above) containing your name, address, email address, and telephone number, and indicating that you wish to opt out and be excluded from this class action,
If you opt out, you will NOT be included in any negotiated settlement and will not receive a payment from this class action. You will have to pursue your own action at your own cost.
For more information about opting out, please contact class counsel (name and contact listed above}
+.
Court File No. CV-19- 00 qO ... Ooc,p ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN
(Court Seal)
HELENE MARIE KNAPAYSWEET and ALLISON JESSICA NAKOGEE Plaintiffs
STATEMENT OF CLAIM
TO THE DEFENDANT(S): A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The Claim made against you is set out In the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiff's lawyer or, where the Plaintiff does not have a lawyer, serve it on the Plaintiff, and file It, with proof of service, in this court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario.
If you are served In another province or territory of Canada or In the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your Statement of Defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has nofceen setaown for trial or terminated.by any means witfil -five years after ttie actlo_n___ _ was commenced unless otherwise ordered by the cou
JAN 3 1 2019 Date: ------Address of court office: .__.~ior C urt of Justice rodie Street North Thunder Bay ON P7C OA3
TO: Ontario Northland Transportation Commission 555 Oak Street East North Bay, ON P1B 8L3 CLAIM
DEFINED TERMS
1. The following terms and definitions apply throughout this statement of claim:
(a) "Helene" means Helene Marie Knapaysweet;
(b) "Allison" means Allison Jessica Nakogee;
(c) "CJA" means the Court of Justice Act, R.S.O. 1990, c. C.43, as amended;
(d) 11Class" and "Class Member" means all persons who were passengers on
the Polar Bear Express (a passenger train operated by Ontario Northland
Transportation Commission via the Ontario Northland Railway system)
which, on May 30, 2018, departed from Moosonee, Ontario, en route to
Cochrane, Ontario, and which derailed at approximately 5:45 p.m.
approximately 37 kilometers south of Moosonee, Ontario;
(e) "ONTC" is the Ontario Northland Transportation Commission which ls a
transportation agency established by the Province of Ontario (Her Majesty
the Queen as Represented by the Minister of Northern Development and
Mines) to provide transportation services known as the Ontario Northland
Railway In Northern Ontario which includes the Polar Bear Express;
(f) "ONR" means the Ontario Northland Railway system operated by the
ONTC in Northern Ontario which includes the Polar Bear Express;
(g) "HMQ" means Her Majesty the Queen as Represented by the Minister of
Northern Development and Mines responsible for the establishment of the ONTC and the administration of the Ontario Northland Commission Act,
R.S.O. 1990, c. 0. 32;
(h) "CPA" means Class Proceedings Act, 1992, S.O. 1992, C. 6;
(i) "Excluding Persons" means employees of ONR who were passengers on
the Polar Bear Express: and
0) "Polar Bear Expreas" means the ONR train known as the Polar Bear
Express, which departed from Moosonee, Ontario, at or about 5:00 p.m. on
May 30, 2018, en route to Cochrane, Ontario, and which derailed at
approximately 5:45 p.m. approximately 37 kilometers south of Moosonee.
RELIEF CLAIMED:
2. Helene and Allison claim on their own behalf and on behalf of the other Class
Members:
(a) An order pursuant to the CPA certifying this action as a class proceeding
and appointing Helene and Allison as the representative Plaintiffs of the
Class:
(b) A declaration that the Defendant, ONTC, was negligent and is liable in
damages;
(c) A declaration that the Defendant, ONTC, was in breach of contract and is
liable in damages to the representative Plaintiffs and the other Class
Members; .• ..
(d) General damages in the amount of $10 million for negligence and breach
of contract, or such other sum as this court finds appropriate at the trial of
the common issues; ------. - (e) Pre-judgment interest and post-judgment Interest, compounded, or
pursuant to ss. 128 and 129 of the CJA,·
(f) Costs of this action on a substantial indemnity basis or in an amount that
provides full Indemnity plus, the costs of distribution of an award under s.
24 or 25 of the CPA, Including the costs of notice associated with the
distribution and the fees payable to a person administering the distribution
pursuant to s. 26(9) of the CPA;
(g) An order directing a reference or giving such other directions as may be
necessary to determine Issues not determined in the trial of the common
issues; and
(h) Such further and other relief as to this Honourable Court seems just.
BACKGROUND:
3. Helene resides on the Fort Albany First Nation in the Province of Ontario. On May
30, 2018, Helen was a passenger aboard ONR's Polar Bear Express when it left
the tracks (derailed) at approximately 5:45 p.m. approximately 37km outside of
Moosonee, Ontario. 4. Allison resides in Moose Factory in the Province of Ontario. On May 30, 2018,
Allison was a passenger aboard ONR's Polar Bear Express when it left the tracks
(derailed) at approximately 5:45 p.m. approximately 37 km outside of Moosonee, Ontario.
5. The ONTC is a transportation agency established by the Province of Ontario
(HMQ) with its Chair of the Commission located in Timmins, Ontario. At all material
times, the ONTC provided transportation services to Northern Ontario via the ONR
system which included the operation of the Polar Bear Express. At all material
times, the ONTC was vicariously responsible for the acts and omissions of its ONR employees.
6. The ONTC's transportation services provided via the ONR system included
ownership, operation and maintenance of trains (including the Polar Bear Express)
and railways and branch lines including that which runs between Moosonee,
Ontario, and Cochrane, Ontario. At all material times, the ONTC was responsible
for operation and maintenance of both the Polar Bear Express train and the
underlying railway tracks upon which the Polar Bear Express travelled.
THE INCIDENT:
7. On May 30, 2018, the Polar Bear Express departed from Moosonee, Ontario,
destined for Cochrane, Ontario. -7-
8. Approximately 37 kms south of Moosonee, at approximately 5:45 pm, the Polar
Bear Express abruptly left the track causing five cars (consisting of three
passenger cars, the dining car and a baggage car) to leave the rails and turn onto
their side. Helene and Allison were two of a total of 73 passengers (not Inclusive
of the ONR employees) on the Polar Bear Express when H deralted.
LIABILITY:
9. The Plaintiffs plead that the Defendant was negligent and In breach of Its contract
with Helen, Allfson and each Class Member. ONTC was, in law, responsible for
the acts and omissions of its employees and agents, including those responsible
for the operation and maintenance of the Polar Bear Express and the railway track
between Moosonee and Cochrane.
10. The Plaintiffs claim that the derailment and resulting damages were caused by the
negligence of ONTC and the ONR employees, servants or agents, for whose
negligence ONTC is in law responsible, the particulars of which are as follows:
(a) hiring incompetent employees, servants or agents;
(b) operating the Polar Bear Express at an excessive rate of speed under
circumstances that required a lower rate of speed;
(c) falling to adequately Inspect the Polar Bear Express and the railway track
condition prior to the attempted passage from Moosonee station to
Cochrane, Ontario; (d) failing to properly monitor the railway track conditions whlle operating the
Polar Bear Express;
(e) failing to inform themselves of any existing conditions and all memos, notes.
or directives of repair or other work being performed (or to be performed)
on the railway track between Moosonee and Cochrane;
(f) failing to acknowledge, monitor and/or adhere to any existing conditions of
the railway track and any notes. memoranda, directives or radio control
instructions regarding the railway track conditions;
(g) failing to communicate or properly communicate with the railroad traffic
controller the circumstances and/or condition of the subject railway track;
(h) failing to abide by The Canadian Railway Operating Rules;
(i) falling to adequately educate and instruct Its workers In the proper and safe
mode of operating, inspecting, maintaining and/or repairing the Polar Bear
Express and the ONR railway track;
(j) failing to establish an adequate system of operation, inspection,
maintenance and/or repair of the Polar Bear Express and the ONR railway
track;
(k) permitting or allowing the Polar Bear Express to run with Insufficient on
board personnel to monitor and direct the safe and proper operation of the
Polar Bear Express;
(I) failing to adequately inspect the railway tracks;
(m) failing to train or supervise its employees to adequately inspect the Polar
Bear Express and railway tracks; (n) falling to communicate to the railroad traffic controller, the Polar Bear
Express or to anyone else that there was a slow order In place at the
location of the accident;
(o) falling to adhere to the slow order directive in place at the location of the
accident;
(p} failing to place flags or other warning devices at proper positions along the
railway track to notify and warn the Polar Bear Express and other trains that
there was a slow order on the railway track;
(q) exhibiting a marked departure from the standard of conduct expected of
operators of the Polar Bear Express and the railway track system;
(r) falling to instruct others about a slow order on the subject railway track;
(s) failing to slow the Polar Bear Express when a slow order was in place along
the subject railway track;
(t) falling to repair the railway track between Moosonee and Cochrane;
(u) failing to ensure that the railway track between Moosonee and Cochrane
were In good condition and safe for passage by the Polar Bear Express;
(v) allowing the Polar Bear Express to proceed over railway tracks when it knew
or ought to have known that the track was in poor condition, In need of
repair, dangerous or otherwise not In a safe condition for use for the Polar
Bear Express;
{w) allowing the Polar Bear Express to proceed through the slow order location
at an excessive rate of speed; -10.
(x) failing to establish, maintain and implement proper emergency response
services for a derailment incident, such as this; and
(y) falling to establish and maintain a proper communication system In the
Moosonee and Cochrane corridor to ensure that the train engineers, track
Inspection/ repair personnel and railroad traffic controller could openly and
readily communicate with each other as to existing train and track
conditions.
11. The relationship between ONTC and Helene, Allison and the other Class Members
was contractual In nature and required that ONTC exercise reasonable care and not
act negligently. Helene, Allison and the other Class Members plead that by reason of
the accident described above, ONTC is in breach of its contractual duties to them.
DAMAGES:
12. As a result of the aforesaid negligence and breach of contract by ONTC resulting
In the derailment, Helene, Allison and the other Class Members have suffered
personal injuries which include physical, psychological and emotional Injuries and
resultant damages.
13. Helen, Allison and the other Class Members remain under the care of their medical
care givers and specialists. The full extent of their injuries are not yet known. The
Plaintiffs continue to suffer from shock, anxiety, depression, emotional trauma, -11-
physical pain, Insomnia, weakness and diminished energy which continue to
present and will continue in the future. The Plaintiffs have been subjected to
extensive treatments (including physiotherapy, chir9P.tc:l~tlc treatments, massage,
counselling and other healing modalities) and, notwithstanding, continue to
experience difficulties resulting from their Injuries. The Plaintiffs have sustained
and will continue to sustain pain and suffering, loss of enjoyment of life and loss of
amenities.
14. Helen, Allison and the other Class Members state that they participated In various
leisure and recreational activities before the accident, most of which have been
curtailed and negatively Impacted as a result of the accident. In addition, their
capacity to perform routine activities of daily living have been substantially
impaired or interfered with following the accident.
15. As a further result of the accident and the ensuing injuries and symptoms
described herein, Helen, Allison and the other Class Members have undergone
and will continue to undergo in the future, hospitalization, therapy, rehabilitation
and other fonns of medical treatment and health care. The Plaintiffs have Incurred
and will likely continue to incur pecuniary losses including, but not limited to the
cost of future health care and the cost of necessary purchases or services, the full
particulars of which are not within their knowledge at this time. 16. Helen, Allison and the other Class Members are unable to perform household and
handyman chores for themselves to the extent that they were able to do so before
the accident and will require assistance In the future tg ggrm~lete such chores.
17. Helen, Allison and the other Class Members state that as a further result of the
negligence, breach of contract and omissions of the Defendant and ensuing
injuries suffered by each Plaintiff, they have incurred special damages which
include, but are not limited to the following:
{a) cost of medical expenses and reports; and
{b) additional expenses incident to medical treatment Including transportation
expenses, home care expenses and medical aid expenses.
The full particulars of this claim for special damages will be provided prior to the
trial of this action.
18. As a result of the derailment, Helene, Allison and the other Class Members have
incurred a loss of Income, which continue to date. Each Class Member's physical,
psychological and emotional ability to perform his or her job has been markedly
reduced and limited as a result of the accident and, in tum, his or her competitive
position in the labour market has been negatively impacted and lessened which
will result In future income losses, a loss of competitive advance, a Ioss of income
earning potential and a diminution of income earning capacity. ·13·
19. The Plaintiffs plead and rely upon:
(a) the CJA;
(b) the CPA;
(c) the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.), including any
regulations and amendments thereto;
(d) the Canadian Railway Operating Rules, including any amendments thereto;
(e) the Ontario Northland Transportation Commission Act, R.S.O. 1990, c. 0.
32, including any regulations and amendments thereto;
(f) the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, including any
regulations and amendments thereto; and
(g) the Crown Agency Act, R.S.O. 1999, c. C. 48, including any regulations and
amendments thereto.
20. The Plaintiffs propose that this action be tried in the City of Thunder Bay, in the
Province of Ontario.
January 31, 2019 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: [email protected] ..
-14-
Cambridge LLP 331-333 Adelaide Street West Suite 400 Toronto ON M5V 1R5
R. Douglas Elliot Tel: (416) 477-7007 Fax: (289) 293-0318
Lawyers for the Plaintiffs ..
HELEN KNAPAYSWEET et al V. ONTARIO NORTHLAND TRANSPORTATION COMMISSION Plaintiffs Defendant
Court File No. C\l_-19-o0~D -zxx..P
ONTARIO SUPERIOR COURT OF JUSTICE
PROCEEDING COMMENCED AT THUNDER BAY
STATEMENT OF CLAIM
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: [email protected]
Cambridge LLP 331-333 Adelaide Street West Suite400 Toronto ON M5V 1R5
R. Douglas Elliot Tel: (416) 477-7007 Fax: (289)293-0318
Lawyers for the Plaintiffs • Court File No. CV-19- 0090-00CP
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN
HELENE MARIE KNAPAYSWEET and ALLISON JESSICA NAKOGEE
Plaintiffs
and
ONTARIO NORTHLAND TRANSPORTATION COMMISSION
Defendant
AFFIDAVIT OF HELENE MARIE KNAP AYSWEET (Sworn September 30, 2020)
I, HELENE MARIE KNAPAYSWEET, a resident of the Fort Albany First Nation, in the
Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:
1. I am a Plaintiff in this action and I am named as a representative plaintiff in this action. I
have personal knowledge and information of the facts stated herein except where stated to
be based upon information and belief and where so stated, I believe the facts to be true.
2. This lawsuit results from a train derailment of the Defendant's passenger train (Polar Bear
Express) on May 30, 2018. I was one of the passengers on the train when it derailed and,
as a result, I was injured.
3. On May 30, 2018, the Polar Bear Express departed from Moosonee, Ontario, destined for
Cochrane, Ontario. 4. Approximately 37 kms south of Moosonee, at approximately 5:45 pm, the Polar Bear
Express abruptly left the track causing five cars (consisting of three passenger cars, the
dining car and a baggage car) to leave the rails and tum onto their side.
5. I understand from reading news reports following the train derailment that there were a
total of 73 passengers (not inclusive of the employees) on the Polar Bear Express when it
derailed.
6. I have claimed that the Defendant's negligence caused the train derailment. I have claimed
that as a result of the Defendant's negligence and breaches of contract, I have suffered
injuries, losses and damages.
7. The proposed class consists of all passengers who were on board the Polar Bear Express
on May 30, 2018 when it derailed.
8.. I believe that this fact scenario creates several common issues for the proposed class. Those
being:
(a) Whether the actions or omissions of the Defendant (and or its employees, agents or
servants) caused the Polar Bear Express to derail;
(b) Whether those actions or omissions were negligent;
(c) Whether as a result of that negligence, the Defendant is liable for the injuries, losses
and damages sustained by the passengers;
( d) Whether the Defendant breached its contract with each passenger by virtue of the
train derailment; (e) Whether as a result ofthat breach ofcontract, the Defendant is liable for the injuries,
losses and damages sustained by the passengers.
9. I am willing to act as a representative plaintiff ofthe class. I understand that the major steps
in a class action are generally as follows:
(a) Commencement of the action by issuance of the Statement of Claim;
(b) Motion for certification, which may be opposed, and may require further steps
including cross-examinations;
(c) Notice to the class of the certification and the right to opt-out;
(d) Discovery of documents;
(e) Questioning, including the potential for undertakings and further questioning upon
them;
(f) Pretrial conferences;
(g) Trial of the common issues;
(h) Determination of the individual issues, ifrequired;
(i) Distribution of proceeds of resolution by way of a Judgement or settlement;
G) Appeals; and
(k) Settlement.
10. I also understand that if I am appointed by the Court as a representative plaintiff, it is my
responsibility, among other things:
(a) To become familiar with the issues to be decided by the Court;
(b) To review the Statement of Claim and any amendments; ( c) To assist in the preparation and execution of an affidavit in support of the motion
for certification;
(d) To attend, if necessary, with counsel for cross-examination on my affidavit;
(e) To attend, if necessary, with counsel for an examination for discovery where I will
be asked questions;
(f) To assist, if necessary, in the preparation and execution on a list of documents or
records;
(g) To attend, if necessary, with counsel at a pretrial conference, mediation or trial and
give evidence regarding the case, as necessary;
(h) To receive briefings from class counsel;
(i) To express my opinion to class counsel and to the Court if offers of settlement are
made;
G) To express my opinion to class counsel and to the Court if settlement positions are
to be formulated; and
(k) To assist in the preparation of and execution of an affidavit in support of Court
Approval of any settlement.
11. As a representative plaintiff, I understand that I cannot settle my claim individually. I
understand that I must only entertain resolution proposals that are on behalf of all class
members.
12. To date, I have taken the following steps in this proceeding:
(a) I retained Lori Kruse and Gavin Freitag (Petrone & Partners) and R. Douglas Elliott
(Cambridge LLP) to act as class counsel. (b) I provided information for the preparation of the Statement of Claim and reviewed
the draft Statement of Claim; and
( c) I provided documentation and records relating to my claim;
13. If appointed as a representative plaintiff, I intend to take the following steps to fairly and
adequately represent the interests of the class members:
(a) To interact with other class members, receive their input and generally act as a
conduit for information for class counsel; and
(b) To instruct counsel.
14. I do not have any interests which are in conflict with the interests of any other class
member. I believe that I can fairly and adequately represent the interests of the class if
appointed as a representative plaintiff and I am committed to fulfilling those
responsibilities.
15. The class members ought to be readily identifiable as passengers known, or ought to be
known, to the Defendant.
16. I believe that a class proceeding would save a great deal of court time and cost. A class
proceeding would prevent the injustice of potentially having different outcomes on the
same issues. A class proceeding would ensure that all potential plaintiffs would be treated
consistently, with respect to an assessment of the damages caused by the actions of the
Defendant. As such, I believe that a class proceeding is the preferred procedure to deal with
this matter.
17. I am not aware of any other class or representative proceeding in this province or any other
province relating to all or part of the class proposed to be certified. I am not aware of any
fact important to the certification motion that has not been disclosed in this affidavit. I ii. I m.il.,• 1l11s .1ffiJ,1, 11 in Sllfl(l .:cnifo:auon. ,u1J ,111:h funhcr :iml uthcr rd1d as cb,s cu1111-..:l may ,.:c. ,m,I 1h1, I lunnur.,Mc Coun may 1><:n1111 fb'-1 N"-i o+ \11cleo ccnkt-ence.. fl. SWORN HEFOIH: ~n:./ 1hc \...l~~(r:1h.lJ':\C~<'\.~l.!.~.111 lln: ( IU\ 1111:C ,1fOnl:irit1 ' this J9.~J.1y 11f September. 10::!.ll k:- ii~\.,• .,__ \Y\tl-Vl"-- '\L,.._p,•-p«J~- IIF.LE:'\E MARIE K:°' ,\l-'A \'SWEt:T ~ he...- a{,denlP ·Lori Kru~e l+l'ocn~ 1 °'ta.o) Barrister & Solic\tor ( \ O(C\~O in ihurcw '6CLf) Court File No. CV-19- 0090-00CP ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN HELENE MARIE KNAP AYSWEET and ALLISON JESSICA NAKOGEE Plaintiffs and ONTARIO NORTHLAND TRANSPORTATION COMMISSION Defendant AFFIDAVIT OF ALLISON JESSICA NAKOGEE (Sworn September 30, 2020) I, ALLISON JESSICA NAKOGEE, a resident of the Moose Factory, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS: 1. I am a Plaintiff in this action and I am named as a representative plaintiff in this action. I have personal knowledge and information of the facts stated herein except where stated to be based upon information and belief and where so stated, I believe the facts to be true. 2. This lawsuit results from a train derailment of the Defendant's passenger train (Polar Bear Express) on May 30, 2018. I was one of the passengers on the train when it derailed and, as a result, I was injured. 3. On May 30, 2018, the Polar Bear Express departed from Moosonee, Ontario, destined for Cochrane, Ontario. 4. Approximately 37 kms south of Moosonee, at approximately 5:45 pm, the Polar Bear Express abruptly left the track causing five cars (consisting of three passenger cars, the dining car and a baggage car) to leave the rails and turn onto their side. 5. I understand from reading news reports following the train derailment that there were a total of 73 passengers (not inclusive of the employees) on the Polar Bear Express when it derailed. 6. I have claimed that the Defendant's negligence caused the train derailment. I have claimed that as a result of the Defendant's negligence and breaches of contract, I have suffered injuries, losses and damages. 7. The proposed class consists of all passengers who were on board the Polar Bear Express on May 30, 2018 when it derailed. 8. I believe that this fact scenario creates several common issues for the proposed class. Those being: a. Whether the actions or omissions of the Defendant (and or its employees, agents or servants) caused the Polar Bear Express to derail; b. Whether those actions or omissions were negligent; c. Whether as a result ofthat negligence, the Defendant is liable for the injuries, losses and damages sustained by the passengers; d. Whether the Defendant breached its contract with each passenger by virtue of the train derailment; e. Whether as a result ofthat breach of contract, the Defendant is liable for the injuries, losses and damages sustained by the passengers. 9. I am willing to act as a representative plaintiff ofthe class. I understand that the major steps in a class action are generally as follows: a. Commencement of the action by issuance of the Statement of Claim; b. Motion for certification, which may be opposed, and may require further steps including cross-examinations; c. Notice to the class of the certification and the right to opt-out; d. Discovery of documents; e. Questioning, including the potential for undertakings and further questioning upon them; f. Pretrial conferences; g. Trial of the common issues; h. Determination of the individual issues, ifrequired; i. Distribution of proceeds of resolution by way of a Judgement or settlement; j . Appeals; and k. Settlement. 10. I also understand that if I am appointed by the Court as a representative plaintiff, it is my responsibility, among other things: a. To become familiar with the issues to be decided by the Court; b. To review the Statement of Claim and any amendments; c. To assist in the preparation and execution of an affidavit in support of the motion for certification; d. To attend, if necessary, with counsel for cross-examination on my affidavit; e. To attend, if necessary, with counsel for an examination for discovery where I will be asked questions; f. To assist, if necessary, in the preparation and execution on a list of documents or records; g. To attend, if necessary, with counsel at a pretrial conference, mediation or trial and give evidence regarding the case, as necessary; h. To receive briefings from class counsel; i. To express my opinion to class counsel and to the Court if offers of settlement are made; J. To express my opinion to class counsel and to the Court if settlement positions are to be formulated; and k. To assist in the preparation of and execution of an affidavit in support of Court Approval of any settlement. 11. As a representative plaintiff, I understand that I cannot settle my claim individually. I understand that I must only entertain resolution proposals that are on behalf of all class members. 12. To date, I have taken the following steps in this proceeding: a. I retained Lori Kruse and Gavin Freitag (Petrone & Partners) and R. Douglas Elliott (Cambridge LLP) to act as class counsel b. I provided information for the preparation of the Statement of Claim and reviewed the draft Statement of Claim; and c. I provided documentation and records relating to my claim; 13. If appointed as a representative plaintiff, I intend to take the following steps to fairly and adequately represent the interests of the class members: a. To interact with other class members, receive their input and generally act as a conduit for information for class counsel; and b. To instruct counsel. 14. I do not have any interests which are in conflict with the interests of any other class member. I believe that I can fairly and adequately represent the interests of the class if appointed as a representative plaintiff and I am committed to fulfilling those responsibilities. 15. The class members ought to be readily identifiable as passengers known, or ought to be known, to the Defendant. 16. I believe thal a elm proceeding would .snve o grcnl Jeni of court lime and cosl, /\ class proceeding would pl'C\'enl the i1\ju,1icc of poh:nlirrlly hnving different oulcomc, on the same issues. A chw pmc1:cdi11g would ensure thul ull polcnliul r,lointifTs would be lrealed consislcolly, will1 n:spccl lo on 11ssc11smen1 ur Ilic dornogcs caused by the actions or Ilic Defendant. As such, I believe lhot o d11Ss proceeding is the preferred procedure lo deal wilh this molh.-r. 17. I 11m not aware of 1111y other elus or rcprcscnlnlive proceeding in this province or any other province relating lo all or part ofthe cln.'3 proposed 10 be certified. I am nol aware of any fact impor111111 lo the ccrti(ication motion lhal has not been disclosed in this affidavit. 18. I make this affidavit in support ofa motion for ccrtificalion of this action, to appoint myself as a rcprcscnllltivc plainti!T, in support of the relicf soughl in the motion for class certilicalion, and such further Bild other relief 115 class coumcl may sec, and this Honourable Court may pcnnil. SWORN DEFORE ME al the BrlHuy Kari., Weldobe-Blalrud, • Ccmmlee!oa• tto.. in the Pravt.-olo.n.do HQ.Q.~.fo.f~r..'4 ..., b' X-CtN l"lm Na&laa. Province o(Oolllrio ) Bzplne NOflllllbar 10, IOU this~.P-. day of September, 2020 ) > El-tttu Commissioner for Taking Affidavits (or as may be) HELEN KNAPA YSWEET et al v. ONTARJO NORTHLAND TRANSPORTATION COMMISSION Plaintiffs Defendants Court File No. CV-19- 0090-00CP ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT THUNDER BAY MOTION RECORD (MOTION FOR CERTIFICATION) Petrone & Partners Barristers & Solicitors 76 Algoma Street North Thunder Bay ON P7A 424 Lori Kruse (S0691J) Gavin W. Freitag (34277V) Tel: (807) 344-9191 Fax: (807) 345-8391 Email: k>ri~tronelaw.ca Cambridge LLP 331-333 Adelaide Street West Suite 400 Toronto ON M5V IRS R. Douglas Elliott (23685L) Tel: (416) 477-7007 Fax: (289) 293-0318 Lawyers for the Plaintiffs