The Queen of the North was a ferry operated by British Columbia Ferry Services Inc (BC Ferries). On 22 March 2006, the Queen of the North ran aground and eventually sank. Some of the passengers were injured during the evacuation. Two passengers were never found and were subsequently presumed dead. Actions against the defendants were commenced on behalf of their estates or personal representatives. A separate action was also commenced on behalf of two surviving passengers.

BC Ferries accepted liability for the incident but did not pay out on Mr and Mrs Kotai’s non-vehicle property claim of USD 90,829 in full, because it exceeded the USD 16,700 limit on liability prescribed by art 8 of the Athens Convention 1974. For the other two passengers, BC Ferries did not pay out on their claim based on a watch valued at USD 20,000 and legal documents, because it said that it was not liable for this loss under art 5.

The surviving passengers also made claims for: (1) non-pecuniary damages in respect of physical injuries; (2) non-pecuniary damages in respect of emotional or psychological distress resulting from the trauma of the event; (3) pecuniary damages for wage loss arising out of the emotional or psychological distress; and (4) aggravated and punitive damages.

The plaintiffs sought certification of this action as a class proceeding under the Class Proceedings Act, RSBC 1996, c 50 (CPA), with Mrs Kotai acting as the representative plaintiff of the class.

Held: Application adjourned.

There was a deficiency with the application. The CPA provides that the Court must not certify an action as a class proceeding when there needs to be another representative plaintiff for a subclass whose members have different interests than the proposed representative plaintiff. The application was adjourned to enable this deficiency to be addressed.

There was a cause of action against the defendants under art 3 of the Athens Convention 1974. BC Ferries had admitted liability. There was at least one identifiable class of two or more persons. They were:

1. Passengers on board the Queen of the North during its last voyage; and
2. The estates of passengers on board the Queen of the North during its last voyage.

Mr and Mrs Kotai and possibly other passengers should form a separate subclass when dealing with the appropriateness of Mrs Kotai as representative plaintiff.

There were common issues of law and fact. The issues of law were:

1. Are the defendants liable to the members of the class pursuant to the Marine Liability Act, SC 2001, c 6 (MLA), Sch 2, Pt 1?
2. Can the defendants limit their liability pursuant to the MLA, Sch 2, Pt 1?
3. Are the members of the class entitled to punitive damages?
4. If the class is entitled to punitive damages, what is the quantum of such damages, and is the class entitled to an award of such damages on an aggregate basis?

Section 37(1) of the MLA provides that arts 1-22 of the Athens Convention 1974, set out in Pt 1 of Sch 2 to the MLA, have the force of law in Canada. Under the Athens Convention 1974, the defendants were entitled to limit their liability unless the damage resulted from an act or omission done with intent to cause such damage (not alleged) or recklessly and with knowledge that such damage would probably result (alleged against the individual crew members, but not against BC Ferries: see arts 11 and 13). Hence, they dealt with the same subject matter.

The issues of fact were:

1. What were the circumstances surrounding the navigation of the Queen of the North during the period it sailed from Sainty Point to Gil Island during its last voyage?
2. What were the circumstances surrounding the evacuation of the Queen of the North after it struck Gil Island?
3. What were the circumstances surrounding the sinking of the Queen of the North?
4. What were the circumstances surrounding the rescue and relocation of passengers on the last voyage of the Queen of the North?

A class proceeding was the preferable procedure for a fair and efficient resolution of the common issues. It was preferable to have four or five actions rather than 15 or 20 actions. A class proceeding involving a class or classes of 50 persons would still represent a fair and more efficient resolution of the issues than 50 separate actions.

Mrs Kotai was unsuitable as the representative plaintiff. Mrs Kotai had a potential conflict of interest with class members who might not want to pursue a claim for punitive damages or claims for aggravated damages. The entire class was related to the limits of liability stipulated by art 8 of the Athens Convention 1974 and Mr and Mrs Kotai were the only passengers whose non-vehicle property claim exceeded the limit on liability. Accordingly, she might not represent the interests of all class members fairly in deciding whether the limits on liability should be challenged.

There was also a potential conflict of interest between the passengers of the Queen of the North and their dependants as a result of the limit on liability under the Athens Convention 1974, which might apply to each passenger and their dependants on a combined basis. There ought to be a different representative plaintiff to represent the interests of the dependants.

There should be subclasses consisting of: (a) Mr and Mrs Kotai and any other passengers (or their estates) who wished to challenge the limits on liability; and (b) the remaining passengers (or their estates). Mrs Kotai could be the representative plaintiff for the former subclass, but another suitable person would have to agree to be the representative plaintiff for the latter subclass.