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Complex Individual Damages Assessment Complicates Resolution Of Class Action

Last Remaining Class Member Awarded Damages Nearly 10 Years after Liability Resolved

On July 16, 2018, Justice Edwards of the Ontario Superior Court of Justice issued his decision in Davies v. The Corporation of the Municipality of Clarington, bringing an end to an 18-year-old class action, nearly ten years after liability had been resolved.

This case arises from a November 23, 1999 VIA Rail train derailment on a trip from Toronto to Montreal, resulting in injuries to over 100 passengers.  In early 2000, a class action was commenced on behalf of the injured passengers.  The class action was certified on August 30, 2000.  Approximately seven years later, in 2007, liability was resolved following a common issues trial. By the end of 2007, the claims of all but one of the 84 class members had been settled.

For an additional ten years, the quantum of damages for the last remaining class member, Christopher Zuber, remained outstanding. This was the focus of a 107 day trial heard over the period of November 17, 2014 to May 2, 2017 – one of the longest personal injury damages trials in Ontario. Counsel greatly diverged in their respective assessments of Mr. Zuber's claim. The Plaintiff sought damages in excess of $60,000,000; while the Defendants assessed the claim at $30,000. In his decision, Justice Edwards awarded Mr. Zuber a net recovery of $50,000.

This case provides an illustration of how complexities in individual damages assessments can delay class members' awards long after determination of the common issues.