I previously blogged on an estate claiming damages from a terrorist attack involving the crash of Ukraine International Airline Flight PS 752 (“Ukraine Flight”). You can read that blog here.

 A recent Ontario Superior Court case had to decide who the litigation administrator should be to represent the estate of an individual that died on the Ukraine Flight in a class action.

A class proceeding was commenced and certified by the court with respect to the individuals who died in the Ukraine Flight. As part of the certification, the court set an opt-out deadline and approved certain opt-out forms for this purpose. Numerous family members and estates opted out of the class action, having chosen to be represented in individual actions by different counsel.

A common-law spouse of one of the individuals who died in the crash brought an action on behalf of the estate and delivered an opt-out form. The brother of the deceased sought to challenge the validity of the estate’s decision to opt-out of the class action and sought to appoint himself as the litigation administrator to bring the estate claim as part of the class action.

The court found the common-law spouse to be the appropriate person to be the litigation administrator.

First, the court found that section 12 of the Class Proceedings Act (the “CPA”) gave it the authority, on a motion, to make any order it considers appropriate respecting the conduct of a proceeding to ensure its fair and expeditious determination and, for this purpose, may impose such terms on the parties as it considers appropriate. The CPA further provides that any member of a class involved in a class proceeding may opt out of the proceeding in the manner and within the time specified in the certification order.

The Rules of Civil Procedure further allow the court to appoint a litigation administrator to represent an estate for the purpose of the proceeding, therefore the court has the power to decide which proposed competing litigation administrator should be appointed.

The court’s analysis focused on comparing the common-law spouse’s relationship with the deceased and the brother’s relationship with the deceased because the common-law spouse did not have a priority to be appointed the litigation administrator. The court found that, through affidavit evidence, the common-law spouse’s relationship to the deceased was much closer than the brother’s. The court relied on the photographs and text messages that were presented by the common-law spouse. Additionally, there was no evidence to support the assertion that the brother had a close connection with the deceased.

The court validated the common-law spouse’s action and the opt-out form. This case reminds us that in determining litigation administrators, no relationship has priority over another and the court will make a decision based on the evidence before them.

Thank you for reading.