On June 23, 2012, part of the upper parking structure of the Algo Centre Mall in Elliot Lake Ontario collapsed causing, as alleged in the Plaintiffs’ claim, personal injury and property damage.

On July 6, 2012, Roy O’Connor LLP launched a class action lawsuit on behalf of the Representative Plaintiffs. The lawsuit claims $120 million in damages from a number of defendants including the Mall’s current and former owners, construction and engineering professionals and levels of government. The Plaintiffs allege that the Defendants’ are responsible for the Collapse and should be required to compensate the Class Members for their losses.

The class action has not yet gone to trial. The trial will generally determine what happened and who is to blame for the Collapse. The Court has not made any rulings on the liability of the Defendants.

Update – October 15, 2o22 

This update should be read in conjunction with the January 21, 2022 update set out below.

As set out in our update of January 21, 2022, we obtained an order from the court entitling the Plaintiffs  to use the Belanger Inquiry evidence against the Defendants.  Some Defendants tried to appeal that order but on April 29, 2022 we were successful in having those efforts to appeal dismissed by the Divisional Court.  With the order allowing the use of the Inquiry evidence now final, we have been preparing extensive extracts from the large volume of the evidence and transcripts from the Inquiry.  These extensive extracts will be used, as set out below,  to support a motion for summary judgment against the Defendants.   That judgment should indicate which Defendants are liable for what percentage of the losses sustained by the class.  We will be asking the Court to schedule the hearing of the motion for judgment in the next 5 months. Please do understand that it  will take time for all parties – including more than 10 defendants – to synthesize the Inquiry evidence (now that we have the right to use it) and take other steps to get the case ready for that summary judgment motion.

Update – January 21, 2022

This update should be read in conjunction with the January 6, 2022 update set out below.

On January 21, 2022 the Defendants Eastwood Mall, Bob Nazarian, the Corporation of the City of Elliot Lake, Algoma Central Properties and NorDev brought a motion for leave to appeal (i.e. permission to appeal) to the Divisional Court from the January 6, 2022 direction of the Class Action Case Management Judge allowing the Belanger materials to be used in this class action. The Defendants motion is to be heard in writing and will be opposed by the Plaintiffs. While it may take some time for the Divisional Court to rule in the Defendants’ motion, the results of the motion will be posted on this website as soon as they are released by the Divisional Court.

January 6, 2022 – Update

NOTE: As always, this update should be read in conjunction with the other updates below.  This information or status update is intended to be available to class members and is not intended to waive any privilege.  As Class Counsel (counsel to the class members), we have to be careful about maintaining privilege over our communications and we need to verify that any confidential or privileged information or advice is disclosed only to class members.   With that in mind, what is set out below is information that has been generally disclosed to, or otherwise known to, the Court at some point during various case conferences.  Please contact us if you have specific questions.

Mediation – As discussed in our July 2021 Update, we have, at the direction of the Class Action Case Management Judge with oversite of this case, been continuing to work through the mediation process for some time.  We expect that process to continue into the spring of  2022.  There has been no settlement reached to date.  There is no guarantee that the  Defendants will agree to a settlement in the next several months.  If, however, a such a settlement is reached, such a settlement could see compensation paid to class members faster than if we are required to proceed to a judicial determination of the defendants’ liability.

Judicial Determination of the Common Issues – As the mediation may not, as in any class action, result in a settlement, we are continuing to take steps toward having the Court determine the certified common issues. Those determinations will answer questions as to whether any of the defendants breached any of  the  duties  owed  to the class and, if so, in what proportion or percentage each defendant (that breached it duties) is responsible for the collapse and resulting damages.

The latest step in that process was the hearing of a motion we (Class Counsel) before the Class Action Case Management judge to allow evidence obtained at the Belanger Inquiry to be used in this class action as well. In a decision released on January 6, 2022, the judge ruled in favour of the Plaintiffs and directed that the Inquiry materials were, subject to specific objections that may be made as to their admissibility, presumptively receivable on a summary judgment motion or at trial. This direction should simplify the gathering and presentation of evidence necessary for the resolution of the common issues.   As set out below, the Plaintiffs will likely be bringing a motion for summary judgment on the common issues.  A summary judgment motion on the common issues is just that – a motion to seek judgment on the common issues in a summary way.   A motion for summary judgment can often be advanced and heard in a period of time less than it would take for a trial, but if the motion is successful the common issues will be decided (as they would otherwise be in a trial).  We hope to have that motion heard later this year, in part subject to court availability.

July 2021 – Update

This update should be read in conjunction with the May 2020 update below.  This information or status update is intended to be available to class members but is not intended to waive any privilege.  As Class Counsel (counsel to the class members), we have to be careful about maintaining privilege over our communications and we need to verify that any confidential or privileged information or advice is disclosed only to class members.   With that in mind, what is set out below is information that has been generally disclosed to the Court at some point during various case conferences.  Please contact us if you have specific questions.

We have been working diligently on this case.  The discussions and meetings for purposes of the mediation efforts continued last year (after May 2020) but were slowed by the Covid 19 pandemic (like many things).  The mediation process has taken much longer than anyone expected and we can understand why class members (those who have not contacted our firm for information) may be concerned about the process.

The parties are currently awaiting a confidential response or update from the mediator (a retired judge from the Ontario Court of Appeal).  At the same time, and given that the further mediation sessions directed by the Court in January 2020 may not generate a settlement and are likely coming to an end, we intend to take steps toward securing a formal Court resolution of the common issues (the common issues being the questions about which defendants are to be held legally responsible for the collapse).  Those steps will likely include (as we have advised Justice Belobaba) a motion by us to seek to use the transcripts and documents from the Belanger Inquiry as evidence at a trial or on a summary judgment motion.

If Justice Belobaba confirms that we can use the Inquiry transcripts and documents as evidence in this case (which seems sensible and efficient), we have indicated that we will likely take steps to attempt to schedule a summary judgment motion before His Honour.   Summary judgment motions can at times get a resolution of questions sooner than a trial with live witnesses would allow.  If judgment is granted against some or any defendants, the case could then move into a damages phase where individual claims should be settled or otherwise determined by the Court.

We should also note that, if the parties reach an agreement on a proposed settlement at any stage, the proposed settlement will have be evaluated by the Court at a public hearing.  If the Court finds that the proposed settlement is fair, reasonable and in the best interests of the class members it will be approved. Class members would be given the opportunity to comment on any such proposed settlement and a formal, court-approved notice would be sent to all class members well before any such approval hearing.

Again, if you have any questions or would like an update at any other time, please do contact us as noted below.

May 2020 – Update 

With the knowledge of the Court (Justice Belobaba), a former Judge of the Ontario Court of Appeal has been actively conducting a mediation in this case for several years (a mediation is designed to allow a third party mediator to attempt to facilitate the potential settlement of a proceeding).  In January of 2020,  Justice Belobaba specifically directed that additional mediation sessions should continue before the mediator in the upcoming months.  Those sessions are continuing.

If a proposed settlement is reached, the terms of the settlement will be put before Justice Belobaba and His Honour will determine if the terms are fair, reasonable and in the best interests of the Class Members.   If a proposed settlement is reached, all Class Members will receive a Court-approved public notice summarizing the terms of the proposed settlement, advising of the date and location of the settlement approval hearing, and providing instructions on how Class Members can submit comments on the settlement for review by the Court.

Class Members can contact us with questions about this class action as set out below.

Summary of the Lawsuit  

The lawsuit claims $120 million in general, special (i.e. out-of-pocket expenses) , punitive and Family Law Act damages from Eastwood Mall Inc., Bob Nazarian, the Corporation of the City of Elliot Lake, M.R. Wright and Associates, R.G.H. Wood, G.J. Saunders, the Province of Ontario, Algoma Central Properties Inc., Coreslab Structures Inc., John Kadlec, James Keywan, Non-Profit Retirement Residences of Elliot Lake Inc. and 1425164 Ontario Ltd. (carrying on business as NorDev), (collectively referred to as the “Defendants”).

The lawsuit alleges that the Defendants were variously negligent in, among other things, the design, construction, maintenance and/or inspection of the Algo Centre Mall and that as result of their actions and/or omissions, the Mall collapsed. The Plaintiffs allege that as a result of the Defendants’ negligence the Class Members suffered losses of life, personal injuries and financial damages.

Action Certified as a Class Proceeding

The certification motion was heard in Toronto on November 12^th, 2013 before the Honourable Mr. Justice Belobaba. In Reasons for Decision released on February 13, 2014 this action was certified as a class proceeding.

The class action has not yet gone to trial. The trial will generally determine what happened and who is to blame for the Collapse. The Court has not made any rulings on the liability of the Defendants.

• To view or download a copy of the court-approved notice of certification please click here.

• To  view or download a copy of the judge’s reasons for certification please click here.

• To view or download a copy of the Divisional Court’s decision dismissing Ontario’s motion for leave to appeal please click here.

• To view or download a copy of the Plaintiffs’ press release regarding certification please click here.

 

The court-ordered deadline for excluding yourself from this class action expired on Monday June 23, 2014.

Class Counsel  

The law firms of Roy O’Connor LLP, Feifel Broadbent Gualazzi and Aubé Law Office have been approved by the Ontario Superior Court of Justice to act for the Class Members.

More Information

For more information about this action please contact James Katsuras at:

Email: jk@royoconnor.ca

Tel: 416-362-1989
Fax: 416-362-6204

Elliot Lake Inquiry

Roy O’Connor LLP acted as counsel to ELMAC at the Elliot Lake Inquiry. More information about the Inquiry can be found on the Inquiry’s website at the following link: Elliot Lake Inquiry.