A multi-million dollar lawsuit filed by victims of the OC Transpo bus-Via rail crash could be in the works soon, the Sun has learned.
Lawyers in Toronto have spoken with a potential representative plaintiff “who wants to issue a class action on behalf of all of the victims involved in both the bus and the train, and we’re just trying to figure out how best to handle it,” said Darcy Merkur, partner at Thomson Rogers.
“We’d like to speak with as many of them as possible” to gauge if there’s widespread support, he added.
The Sept. 18 accident killed six people, including the bus driver, injuring dozens after the double-decker bus plowed through the guard rails, slamming into the side of the train at Fallowfield station.
The Ottawa resident who contacted the firm was a Via passenger who “suffered some injuries,” and is “extremely distraught over what happened,” Merkur said.
He estimates proceeding with a class action — filed on behalf of everyone — will result in a claim in excess of $20 million, while a group action, representing families of those killed and the seriously injured, would be at least $10 million.
Complications arise since an automobile is involved.
“Even though it’s a bus, the motor vehicle laws kick in,” meaning before any survivors have the right to sue for pain and suffering, injuries “have to qualify as both permanent and serious, and they face a $30,000 statutory deductible, so there’s some insurance hurdles in place for the people with modest injuries on the train or on the bus, for that matter,” he said.
Cases of fatalities though are exempt from deductibles.
Liability appears to rest with the owners of the bus – OC Transpo and the city of Ottawa — and the insurers of the bus from a tort perspective, said Merkur.
For benefit claims, “everyone involved has the right to claim accident benefits from their own car insurers, if they have one,” he said.
If not, “they can go to the bus insurer.”
This means the families of those killed can file for death and funeral payments.
Personal injury claims typically take three to five years to resolve.
For families of the six victims killed though, proceedings would probably last months, depending on the will of the other parties to cooperate.
City staff declined to comment.