Judge won’t allow Red Hill class action against Hamilton to go ahead

A judge has declined to green light a class-action lawsuit against Hamilton over crashes on the Red Hill Valley Parkway - leaving dozens of collision victims to decide whether to try to sue the city individually.

The $250-million claim was filed in 2019 after the city revealed troubling friction tests on the east-end parkway were inexplicably buried for five years. Over that time, 200 serious crashes and four fatalities occurred on the roadway.

The city's admission spurred an ongoing judicial inquiry - and separately, a would-be class action on behalf of victims of nearly 1,500 crashes on the parkway since it opened in 2007. Representative plaintiffs included family members of Michael Sholer, who died in a crossover crash on the Red Hill in 2017, and Corinne Klassen, who was injured in a crash shortly after the parkway opened.

The untested claim alleged negligence in the design, construction and maintenance of the seven-kilometre parkway - and that the city hid" the damning report.

Justice David L. Edwards, who heard arguments in March for and against allowing the proposed class action to go ahead, dismissed the certification motion in a decision released Monday.

Edwards pointed in his conclusion to the inherent individual nature" of the causes of motor-vehicle collisions on the Red Hill as a reason why the explosive suit failed to meet the threshold to be certified as a class action.

The justice acknowledged that behaviour modification" of wrongdoers who have the potential to cause widespread damage" is one of the main advantages of class actions - but he also pointed out the ongoing, separate judicial inquiry into the parkway could achieve that goal.

If the allegations against the city are proven to be true, this is indeed a matter for significant public concern," Edwards wrote, before later adding: The judicial inquiry will no doubt bring as much - if not more - public scrutiny that could also flow from a class proceeding."

Rob Hooper, lead lawyer for the plaintiffs, confirmed we lost" in a brief email, but added he had only started reviewing the decision on Monday. We will meet as a team to determine whether there are grounds for an appeal."

The city confirmed it received and respects" the court decision.

We will continue to respond to any legal claims that may come forward and are committed to continuing our participation in the judicial inquiry, which is examining many of the questions Hamiltonians have around the construction and use of the parkway," said spokesperson Matthew Grant.

Whether the class-action certification decision is appealed or not, the city is unlikely to be off the hook for legal costs related to the slippery" Red Hill mystery.

The Spectator previously reported there were at least 22 individual parkway collision lawsuits against the city waiting in the wings for a decision on the class action.

Edwards noted those pending claims in his decision. The individual litigations will serve as financial incentive if there is indeed malfeasance or misfeasance on the part of the defendant," he wrote.

The Spectator was unable to tally the total amount claimed against the city for all individual Red Hill lawsuits before the courts, but based on documents reviewed so far it is likely to exceed $19 million.

Hooper has previously noted at least nine of his clients who joined the proposed class action also have reserved the right to pursue individual legal claims against Hamilton.

The class action decision comes in the middle of public hearings for a separate judicial inquiry headed by Superior Court Justice Herman Wilton-Siegel. That city-funded inquiry - which could cost as much as $20 million - is not meant to establish civil or criminal liability.

But Edwards wrote in his decision that individual lawsuits against the city will likely be aided" by inquiry findings.

Matthew Van Dongen is a transportation and environment reporter at The Spectator. mvandongen@thespec.com