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, which carried 46 crew members and 55 paying passengers, ran aground and eventually sank. Most of the passengers were evacuated from the ship onto lifeboats and life rafts.

Section 37(1) of the Marine Liability Act, SC 2001, c 6 (MLA) provides that arts 1-22 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (Athens Convention 1974), set out in Sch 2, Pt 1, have the force of law in Canada. Article 3.1 of the Athens Convention 1974 provides that the carrier is liable for the damage suffered as a result of personal injury to a passenger and the loss of or damage to luggage if the incident is due to the fault or neglect of the carrier or its servants acting within the scope of their employment. Article 3.3 presumes fault or neglect, subject to proof to the contrary, if the injury or loss arises from, among other things, the shipwreck or collision of the ship.

Articles 7 and 8 of the Athens Convention 1974 provide monetary limits on the liability of the carrier and its servants stated in 'units of account', the value of which is based on Special Drawing Rights as defined by the International Monetary Fund and the rate varies from time to time. Article 11 entitles a servant of a carrier to claim the benefit of the limitation of liability to which the carrier is entitled if it acted within the scope of its authority. Article 13 deprives carriers and servants of the benefit of the limits of liability provided by arts 7, 8 and 11 if it is proven that the damage resulted from an act or omission 'done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result'.

Alexander Steven Kotai and Maria Giovanna Kotai brought an action for class proceeding certification under the Class Proceedings Act, RSBC 1996, c 50 (Kotai action) (CMI1055).

Lawrence Papineau and his wife, Nancy Laughing-Papineau, commenced separate actions (Papineau action and Laughing-Papineau action).

Two of the passengers, Gerald Foisy and Shirley Rosette, were never found and subsequently presumed dead. They were in a common law relationship at the time of their death. The dependants of these passengers claimed for compensation. Section 6 of the MLA provides that if a person is injured under circumstances that entitle the person to recover damages, or dies under circumstances that would have entitled the person to recover damages if not deceased, the dependents of the person are entitled to recover their loss resulting from that injury. The loss can include compensation for loss of guidance, care and companionship. Gerald Foisy's children, Brittni Lee Foisy and Morgan Taylor Foisy, brought an action for compensation on behalf of their father (Foisy action). Shirley Rosette's children, Brandon Rosette and Brent Rosette, also alleged dependants of Gerald Foisy, brought an action for compensation on behalf of their mother (Rosette action).

BC Ferries made the following applications:

1. The Rosette, Foisy, Papineau, Laughing-Papineau and Kotai actions be tried at the same time in respect of the issues of liability, including those issues certified as common issues in the Kotai action;
2. The trial of the actions in respect of the issues of liability be heard on a date separate from and in advance of the issue of damages and any other remaining issues in the actions;
3. The Foisy and Rosette actions be tried at the same time in respect of the issue of damages and any other remaining issues; and
4. The trial of the actions be heard without a jury and the Foisy action be struck out.

Held: Applications dismissed.

The Foisy and Rosette action had common issues: (1) whether the carrier was entitled to the limits of liability based on art 13 of the Athens Convention 1974; (2) on punitive damages; (3) on calculation of the quantum of damages; (4) on alleged dependents of Mr Foisy; and (5) the applicability of art 12 on the limits of liability on the aggregate of the amount recoverable.

However, there was no basis for ordering that the quantum issues in the Kotai, Papineau and Laughing-Papineau actions be heard at the same time as the Foisy and Rosette actions. The factual issues were not common and there would be no savings of time or money. The wording in art 13 of the Athens Convention 1974 was somewhat different from art 4 of the LLMC 1976 as it lacked the word 'personal' modifying 'act or omission' and whether this difference in wording created a different test would have to be decided at trial. The application to have all actions tried at the same time was dismissed. In any case, art 13 was, as a matter of construction, independent of the particular facts of the case and not a principal issue in this case.

The first seven common issues in the Kotai action were certified and determined as follows:

1. Were the defendants liable to the members of the class pursuant to the MLA? This was admitted on a class-wide basis.
2. Could the defendants limit their liability pursuant to the MLA? Yes.
3. What was the scope of a dependant's entitlement to compensation under the MLA? This issue remained alive to the extent that the claims of the individual defendants had to be quantified.
4. Were the members of the class entitled to punitive damages? No.
5. If the class was entitled to punitive damages, what was the quantum of such damages, and was the class entitled to an award of such damages on an aggregate basis pursuant to section 20 of the Class-Proceedings Act? No longer applicable.
6. What was the scope of recovery under the MLA in respect of psychological injuries? Recovery would be in accordance with provincial law.
7. 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 her last voyage? No longer relevant.

The common issues 8-10 were concerned with what happened after the ship ran aground on Gil Island and were relevant only to the quantum of damages as they might deal with evidence relating to the nature of the injury suffered, including psychological injury. Issues 8-10 of the certified common issues in the Kotai action related to what happened after the ship ran aground. These factual matters were of no consequence in the Foisy and Rosette actions.

The Papineau and Laughing-Papineau Actions were brought against BC Ferries only. The issues in these two actions were akin to those in the Kotai action. However, these actions were concerned solely with the quantum of damages and the plaintiffs were neither seeking punitive damages, nor damages outside the limits of liability provided by the Athens Convention 1974.

The application to strike the jury notice was dismissed. The issue on limitation of liability was not too complex for a jury to decide.

The application to sever issues was dismissed. The same jury must hear and determine all issues in those two actions.