How a settlement was finally reached in 14-year mall collapse lawsuit

Nearly 14 years after the roof caved in at Elliot Lake's shopping mall — killing two women and injuring 19 others — the tragedy is back in the headlines.

A proposed settlement has finally been reached in a class-action lawsuit that was launched shortly after the collapse.

If approved by a judge at a hearing scheduled for April 10, the settlement will see a long list of defendants pay a combined $10-million in compensation to approximately 250 claimants.

The class members include people who were injured in the collapse, business owners who leased space in the mall, and employees who lost their jobs.

Joining us on tonight's episode of Village Media's Closer Look podcast is David O'Connor, one of the lawyers acting for the plaintiffs in the class-action suit.

You can read more about the proposed settlement HERE.

Transcript

SPEAKER_02 0:38

Those chilling voices you just heard date back nearly 14 years to a tragic Saturday afternoon in Elliott Lake, Ontario. On June 23rd, 2012, a portion of the Algo Center Mall's rooftop parking deck suddenly caved in, sending thousands of pounds of concrete, steel, and other debris crashing into the plaza below. Two women, Lucy Alwyn and Dolores Perizzolo, were killed in the collapse, while 19 others were injured. All these years later, the Elliott Lake tragedy is back in the headlines amid news that a proposed$10 million settlement has been reached in a long-standing class action lawsuit. Welcome back to Closer Look with Michael Friscolanti, our editor-in-chief. I'm Scott Sexmith. Okay, uh Frisco, let's get into this because when this happened, you were a senior writer at McLean. So maybe take us back to that day and how uh your coverage unfolded.

SPEAKER_00 1:31

Yeah, a lot of memories have flooded back because I covered this case not only the weekend of the collapse and the the days after, but also the in the years after, because as we're gonna get into today, there was a massive public inquiry, there were multiple lawsuits, there was a criminal investigation, there was all kinds of tentacles that happened after this collapse happened. But yeah, just to give you a kind of a brief overview, um, just so everybody knows, we're gonna speak to one of the class action lawyers presenting the plaintiffs today. So but before we get to that, I think it's just good to go over some of the background. Um and honestly, Scott, I've been I've just been rereading things like crazy. I mean, the the the public inquiry report is 1,300 pages, and the executive summaries, I think a hundred pages. I ran through that again, went through a bunch of my old coverage. But but any anyways, if you remember, the rescue operation really captivated the country for a few days because there's this terrible collapse, and we know that two people are trapped, and there were our initial numbers were really high, but then we found out soon enough it was two people. I was in Toronto at the time and I actually booted up to Elliott Lake uh and and got there, I believe, on the set the day after the collapse. Um and the reason it got so much attention at the time, too, was because they spent a couple days searching. There was a special unit from Toronto that came up, a heavy heavy urban search and rescue team. Right. And there was all kinds of, you know, frantic efforts to get to these people that were trapped in there. Um and the gist of it was there were sets of escalators that came down from the rooftop parking lot, and pieces of concrete slabs had landed on these escalators, and they were kind of precariously hanging there, supported by steel beam. So you can imagine the engineers who work for the uh the Ministry of Labor, there was a Ministry of Labor engineer, there was a an engineer with the heavy urban search rescue team. They're constantly looking at these beams, how doing their calculations, is it gonna give way? Because if it gave way, that stuff would have all slid onto the rescuers below. And they're not gonna allow, they're not gonna let people be in there. Of course not. So after a couple days, the search was all of a sudden called off. And it and it the way it was worded by the leader at the time as the public inquiry found was it it really was like, it's over, we're going home, you're gonna have to get someone else in here to recover what we think are the dead bodies. It was just it went over awful in Lake. And of course the people were furious that evening. They were still threatening to storm them all themselves, and it actually took political intervention from Premier Dalton McGuinty at the time, who actually kind of phoned and said, Is there anything more we can do? In the end, they brought a huge crane in, removed all that debris they were concerned about that was hanging from the escalator, and were able to go in through the the the the front door and retrieve what ended up being two bodies. One of the, you know, from the rescue perspective, um one of the questions that we'll never know for sure was if Lucy Alwyn was still alive for a little while. They know that Dolores Perizzolo was killed immediately. In fact, I spoke to a firefighter at the time shortly after this all happened, who found her and actually was able to take a pulse and she was buried under some rubble, but she was had passed away. And so, you know, mercifully she had died instantly, I think. And that's what they concluded. But there was a lot of debate about whether Lucy had survived up to 39 hours. There were different signs of life. There was, they were using sniffer dogs, they were using devices. And we'll just never know that answer. So in the aftermath of all that, they called uh the province called a public inquiry. I think people were so angry they wanted to know what happened with this rescue. But more than that, I remember being there and everyone talking about the rescue efforts, but also people saying we knew this was gonna happen. This mall was a disaster for 30 years, it leaked for 30 years, people had had you know sounded the alarm bells that this was a structural disaster waiting to happen. It was like everyone knew at one point. Trevor Burrus, everyone knew that. It was kind of like a and it was a I hate to say it, but people said it to me. It was like a running joke. Well, one day a car is gonna go through the rooftop parking lot, and that that is kind of exactly what happened. What we know now, and only we know now, because there was such an exhaustive public inquiry, and I did cover it for McLean's, and I wrote so much about it, and I've just been re- you know, rereading things just to refresh my memories. It's been 14 years. Exactly, yeah. Um but rarely do you have a catastrophe like this that's investigated so thoroughly where there's a public inquiry. It was a$20 million public commission. There were hearings, there was evidence given, there was uh Justice Paul Belanger was the head of the inquiry, he had a team of lawyers working for him. It was like a it was like a trial, but not a trial. The goal of a public inquiry is to find facts and make recommendations. Right. It's not to lay blame, it's not to, you know, decide who's liable, um, things like that. Uh so it's not saying this person's to blame. But in the course of finding the facts, the commissioner was, you know, had some harsh words for a lot of people. Um what we know for sure, and everyone knew from the beginning, was that all that water that it was not properly waterproofed, this roof, so it leaked for 30 years, and eventually it it so thoroughly corroded and rusted out some of the steel beams that basically a welded connection gave way and all these everything came crashing down. So that was it took five minutes for engineers to discover that's what happened. Of course, yeah. The why was the big question, right? Right. And I'll read this. This is was one of the final quotes from the commission uh from Justice Belanger. Although it was rust that defeated the structure of the Algo Mall, the real story behind the collapse is one of human, not material failure. Many of those whose calling or occupation touched the mall displayed failings, its designers and builders, its owners, some architects and engineers, as well as the municipal and provincial officials charged with the duty of protecting the public. Some of these failings were minor, some were not. They ranged from apathy, neglect, and indifference through mediocrity, ineptitude, and incompetence to outright greed, offication, and duplicity. Occasional voices alarm blew by deaf and callous ears, warning signs went unseen by eyes likely averted for fear of jeopardizing the continuing existence of the mall, the social and economic hub of Elliott Lake. I remember reading those words, I remember Justice Belange saying them at the post uh inquiry press conference. It's hugely powerful. Another line that I think is important for people to understand, he wrote this. Based on any fair and objective analysis of the history of the Algo Mall as it unfolded during the Commission's hearings, it is difficult to resist the conclusion that if any one of the owners, engineers, or officials who were involved with the mall over its 33 years of existence had insisted enough, this building will fail if it isn't fixed, two lives would not have been senselessly and tragically lost. It was very clear that this mall was kind of doomed from the beginning. It was poorly designed, it wasn't properly waterproofed, and owner after owner did the bare minimum to keep it you know, keep it keep it going. Just a band-aid. Just a band-aid, right? Do the do the bare minimum. There were so many engineers that went through. There were some that made very detailed reports about how this is this the structural the structure of this mall could be compromised if it's not properly fixed, and others that just kind of did the bait the basics and didn't go anything near that. There were a few times, you know, again the public inquiry report's 1,300 pages, but there were a few times where, you know, there were some email chains that are just shocking. There was one in 2006 involving the new chief administrative officer and one city counselor, and the counselor wrote, The thing that I am really worried about is the possibility of the roof caving in with cars parked up there. Right? And the commissioner was pretty harsh on the city, talking about how basically his conclusion was Elliott Lake had transitioned from a mining town to a retirement living community, and the mall was so central to the recruitment process to get people to move to Elliott Lake. And that any idea that we would shut down the mall or put the mall in jeopardy, no one's gonna do that. So he used the term blind eye. People turned a blind eye in the city. There was the city, there was plenty of evidence that the city's city officials, politicians knew that the roof leaked and nothing was done. Nobody wanted to do anything. There's one point, and this is relevant to today's discussion about the class action lawsuit. Um the class action suit, the representative plaintiffs were Jack and Elaine Quinney, and they owned a restaurant or they ran a restaurant in the mall, a place called Hungry Jack's. And a year before the collapse, um, she came to work. I think it was May 2011, so this would have been 13 months before the collapse. And two large chunks of concrete had fallen from the roof into her kitchen at the restaurant. Oh my goodness. Almost like baseball bat size, like a large icicle. Yeah, right. And they warned the city, uh, she well, she called the mall's owner, he did nothing. Um, she complained to the city, and not again, the the report, uh the inquiry concluded that nothing was done. And basically there's a there's a moment in the report where I get emotional even just thinking about it. It's it's powerful what happened. And and uh a city, a sitting city counselor at the time who's since passed away, went to the building commissioner at the time and said, Hey, look look look what's going on here. And as quoted in the report, the city building official said, Well, what do you want me to do? I'll close down the mall, and nothing was done about it, right? And this is 13 months before the thing falls down. Unacceptable, right? And and again, we could we could sp we could spend hours out with Elliott Lake. But the other fateful moment, of course, and I think a lot of people know this, is there was uh an engineering firm from Sault Ste. Marie that had done some structural analysis of the mall in the years before, and the current owner at the time it fell down, was trying to get some refinancing, and uh part of that refinancing was to fix the roof, as he alleged, and as the commissioner didn't really believe. And uh he had part of that was he had to get a structural assessment. So he hired M. R. Right and Associates, which was was based in Sault Samri at the time, and Bob Wood was the uh engineer. Um we now know that he had actually been stripped of his engineering license at the time because of an under unrelated project where he had conducted had where there's some misconduct. So the professional engineers of Ontario had stripped him of his license. But he was still technically able to do inspections as long as another engineer stamped the inspection. So I'm giving you the Coles Notes version, Scott, but what happened was April 12th, it's still remembered, April 12th, 2012. So this is uh you know, six weeks before the mall fell down. He drives from Sault Ste. Marie to Elliott Lake. He's there from 9 a.m. to 2:30 p.m., does no actual physical inspection of the mall, it's all visual, talks about how the mall uh you know seems structurally sound to him. Uh he goes back to the his engineering firm, and again, this is all in the public and career report. His coworker, who was an engineer, they had a discussion about it. He stamped the report, and then when he gave the report to the mall's owner, the mall's owner actually asked for some changes in the report, which he did without telling his colleague who stamped the report, saying that if one of the things was he changed the word ongoing leakage to just leakage, and then he changed there was a photo of one of those yellow bladders that kind of became famous in the ceiling of the mall, was collecting all the water and hosing it uh to buckets. Um, one of those photos was removed. Uh and six weeks later the mall fell down. Um and Bob Wood actually, just to finish that thought off, he was the only person ever criminally charged in this case. Um the OPP charged him with criminal negligence causing death. The allegation being that any reasonable engineer who looked at this mall and did any rational inspection would have said this sounded the alarm bells. And that's what an O uh an engineering firm hired by the OPP concluded. And um he was charged, he was found not guilty, he was acquitted. The judge did not believe that it reached the uh the threshold of criminal negligence. Right. So he was let off. Um, which left leaves us with all these lawsuits that have been filed, which is one of the other things, right? I'm just gonna go through my notes, Scott, because I feel like I'm forgetting something. But uh again, I've just been rereading everything and understanding everything that happened. It's it's it's all fresh in my head, but not fresh in my head. Trevor Burrus, Jr. How much time did you spend covering uh this tragedy? Trevor Burrus It would have been at least two years, maybe three, I would say. I uh you know I was very blessed. I I was a senior writer at McLean's, and I just worked with the most amazing team of editors. I hope some of them are listening. They none of them are, I'm sure. But uh they they had so much patience and so much desire to tell the stories properly. And get it right. And get it right and spend time talking to people, and it was just a different opportunity. McLean's is the can is the national news magazine, and we had the opportunity to do that. Part of it was me also being stubborn because I thought the story was so important. I wanted to keep pushing it. So there were times when they didn't always agree, but then they still in the end were happy with the story and it ended up in the magazine. Right. But I did a uh a big investigative piece before the public inquiry, sort of outlining outlining a lot of this stuff by talking to different people. Uh and then the public inquiry began, and there was a big story that I did about, you know, kind of tracking down everyone who was in the mall at that time based on documents that had been filed in the inquiry, based on my own interviews, and kind of piecing together that moment. Um and it's it's it's amazing that only two people were killed. That's a terrible thing to say. But if you look at the surveillance photos, there are people like who bought a lottery ticket, for example, walked away and the mall fell down. Yeah. There's a woman, I remember speaking to an older woman who's in the food court, who's about to go buy a lottery ticket. She looked at her, she remembered forgot she didn't have money, opened her purse, and because she stopped for that extra split second, the mall fell the roof fell beside her and not on her. Um the two people walking into the mall, right? The surveillance footage uh of the collapse actually shows two people on the rooftop parking lot walking toward the stairs and in the door. Yeah. And when I tracked them down, they literally were on the last step that was hit as that stuff fell down onto the escalator in the stairs, hit her leg, hit some debris in the head, and her husband to be basically pulled her up and they were able to escape. And the the tragic thing, too, is there was a car. This was a beautiful summer day, right? There was no there was no rain, there was nothing to forecast. And so the last car that drove over this welded connection was, as the commission concluded, kind of the straw that broke the camel's back. It was the last thing it could handle, and then it gave way. Um and like I said, there was uh a lot of lawsuits filed too. Um the families of Lucy Alwyn and Dolores Petrizzolo filed um uh lawsuit, I believe it was an$11 million lawsuit against multiple defendants. It was settled out of court. Um, and then there were two other um lawsuits, one filed by Foodland, which is one of the anchor tenants, and their ownership. And then this class action lawsuit, which was filed on behalf of, you know, people who were injured in the mall, people who were worked at the mall, lost their wages, business owners, so anyone who fits into this class, about 300 people, I think, potential class members. And to be honest, Scott, I thought that the case had finished years ago. Because, you know, career moves on, life moves on, other things. Yep. I'm at Village Media now, I'm not covered, not covering this day-to-day. And when I saw the headlines the other day that this if they've reached a$10 million proposed settlement, I was genuinely shocked. I had no idea that that that they were still going on. And brought it all back. It kind of brought it all back. It gave me a chance to sort of uh catch up with everything. And uh I reached out to David O'Connor, who's one of the lead lawyers uh representing the plaintiffs. He's representing them, I think, from the beginning. So he's been at this for 14 years as well. Yeah. And he's agreed to come on the show today and sort of explain sort of how, you know, why it took this long um and what it means for the people who are members of this class.

SPEAKER_02 16:25

It took a split second for the parking deck at the Algo Center Mall to collapse, but the aftermath has lingered for 14 years. Two beloved members of the community were killed, many others were injured, one engineer was criminally charged, then acquitted, and a class action lawsuit has slowly inched its way through the court. Until now, a proposed$10 million settlement has been reached pending the approval of a judge. Joining us tonight is one of the plaintiff's lead lawyers on the file, David O'Connor, a founding partner of the Toronto firm Roy O'Connor. Uh, David, welcome to a closer look. We appreciate your time tonight. Thank you very much. Happy to be here. Uh, David, I know this is a uh loaded question to start with, but in a general sense, why did it take nearly 14 years to reach this point?

SPEAKER_03 17:10

So just to back up for a second, we're gonna be filing and posting on our website some affidavit material explaining how the case ends up here today. But let me give you a summary of that. Mediation started uh after the case was certified in 2014. That mediation went on for uh three to four years. The judge overseeing the action in Toronto basically directed us to continue that mediation. The mediation was before a retired Court of Appeal judge, Stephen Gouge, very experienced, very knowledgeable. Uh we ended up uh in about 2022 at a point where we had the judge's estimate of what uh the damages might be. Uh unfortunately, at that point, Justice Gouge uh fully retired. He couldn't complete the process. We had to find a mediator who sort of came on board later in 2023, got a settlement offer in 2024, finalized it uh this year, or sorry, 2025. And so it it sounds very long. It is indeed the longest mediation that I've ever been involved in. But if you look at the details, there's a lot of explanation for it. Um having said that, I'm sure to class members, the residents of Elliott Lake, this just looks like an inconceivably long period of time.

SPEAKER_00 18:26

Uh David, just a little background, just so we're clear, there's actually two lawsuits that are settling here, or proposed set to be settled here, which is the$10 million or the class action lawsuit, as well as the food land claim filed by the people who ran the grocery store at the mall as well. That's right.

SPEAKER_03 18:41

The food land claim uh will be settling. It's not subject to court approval. If the judge approves the$10 million for the class action, uh my understanding is that the food land claim will be settled as well.

SPEAKER_00 18:52

All right. I want to get in specifics of the settlement and who's eligible, but before we do, just basically the the post that you put on your website announcing the proposed settlement called it a reasonable compromise and warned that if it's not approved, the parties could end up litigating this case for years to come. Why is this a reasonable compromise, do you think, David?

SPEAKER_03 19:09

Aaron Powell The mediator uh retired Court of Appeal judge uh Stephen Gouge uh for years reviewed the damages of the class members who'd come forward to us, which probably number in excess of 200, 220 businesses, employees, injured people. Uh having reviewed that as a judge, the judge arrived at uh$11.7 million as his estimate of what the damages were in total. At the same time, I can tell you that Justice Gouge also indicated that if a settlement offer was made in the$10 million or$10.5 million range, we should accept it. And so and in the background, we had for years done our own evaluation of the claims. And so we knew and understand even today that$10 million is a reasonable compromise on the amount. Moreover, it's reasonable because class members have been waiting a very long time to get any compensation at all. And uh some would say justice delayed is justice denied, and it made more sense to us and courts take into account timing on class action settlements to get money now rather than fighting for five or six or seven more years against defendants and making people wait in the hope that we might get a little bit more money. Um unfortunately that's a risk that that we didn't feel was reasonable in the circumstances, and but the representative plaintiffs at Quinties also agreed that uh ten million dollars now was reasonable.

SPEAKER_02 20:42

David, so who is eligible for this settlement?

SPEAKER_03 20:45

So the the in class actions there's a class definition. The definition includes uh the businesses in the mall, the the employees of in in those businesses who lost wages, as well as any individuals who were in the mall and were harmed physically or psychologically. Um there are some nuances to that, but that's basically what it is, and we understand the number is probably in the range of between 275 and 300 businesses and individuals.

SPEAKER_00 21:15

And so if the settlement is approved, David, there will be a separate process to kind of uh assess each of these claims on its own to see where it fits and what percentage they would get.

SPEAKER_03 21:24

That's right. Uh the we would uh be able as as lawyers to evaluate each of the claims as we have indeed as part of the lengthy mediation process. The problem is that we owe each class member the same duty to represent them. And so if we were forced to assign a value to each class member's claim, the possibility that any class member could think we weren't fighting hard enough for them would be obvious and would create what what lawyers know would be a conflict. And so we've we've asked in the distribution plan for a third party adjudicator to be approved by the court who will review the claims and determine a reasonable value for each of the claims.

SPEAKER_00 22:00

Yeah, that makes sense. Uh I I assume some of these people have passed away, too, David. A lot of these people I interviewed at the time I remember were pretty elderly. Were there would their families be eligible for compensation?

SPEAKER_03 22:09

Yes. Estates are eligible to claim the compensation that would have been available to the individual. Okay.

SPEAKER_02 22:13

How long does that process take once once everything is settled, and then you you look at at each individual? How long is that process from the time that there's actually money in hand?

SPEAKER_03 22:22

Well, it's difficult to answer. And I would say that uh months would be the hope, say three to six months, and and and that may seem long again to people, although maybe not as long as the the last 13 plus years. Uh the difficulty is, particularly for personal injuries, people may have to get more medical records. And and not surprising to anyone in Ontario or Canada, it can take some time just to get medical records, let alone get an opinion from your doctor. And I'm not blaming doctors for being critical of them, it's just the system. Right.

SPEAKER_00 22:54

You mentioned Jack and Elaine Quinney, just so everyone knows, they were the class representatives on this lawsuit. They owned Hungry Jacks in the mall. Uh, and if I remember right from the public inquiry, a year before this collapse, pieces of concrete actually fell into their restaurants. This has been a long, this has been many years that this and they were they've complained at the time. I guess my question is, how are they doing, David? Are they pleased with this settlement?

SPEAKER_03 23:16

Um they about a year and a half ago, they moved to Thunder Bay to be closer to some family. Uh I think they are very pleased with the settlement. Um, like everyone else, they've been waiting a long time and and they have had their own struggles. In fact, Elaine was physically and emotionally injured in the collapse. She was actually at Hun Hungry Jack's call it 20 feet away from the food court, um, and was was struck by debris, uh, still has lingering problems from that. Uh Jack himself had a heart transplant, subsequently a kidney transplant. Um they've had, you know, their own financial issues because Hungry Jack's was their income. Um but through all of that, they've they've quite conscientiously and energetically acted as representative plaintiffs. Um and they are, I think, pleased that there is a substantial amount of money that can be distributed to people, and certainly pleased that it can be done sooner rather than later.

SPEAKER_02 24:15

David, what has the uh reaction uh been from other class members?

SPEAKER_03 24:19

So we we get some uh contact from class members because in fact the notice directs questions to us. And most of the questions we've received, frankly, are how do I or how could I attend the settlement approval hearing on April the 10th, Zoom hearing? We don't we haven't really received any critical comments from class members at our firm. Now, I can tell you that um I've noticed on certain media sites that people have put comments after some of the stories that were posted, uh, some of which involve people saying things like, it's taken too long, it's not enough money, the lawyers are the only ones who are getting money. Those are um, and I'm not belittling them because they're they're genuine thoughts by people, particularly people who aren't involved in litigation all the time, but they are very common in class actions. That is, people look up and say, Well, whatever the amount is, it should be more. The problem is they really don't have a basis on which to judge what the total amount should be. Uh, and people think, for example, if they've been injured, whatever amount a court would give them will never be enough because most people would pay money to avoid an injury, and they pay a lot more than the court would ever award them. Um, and as for the you know, the lawyers being the only ones that are are making money, I could tell you that um we will probably have in excess of four million dollars in legal fees, about two hundred thousand in disbursements into this case, and we're gonna get about two point four five million. So, to the extent that the class members think that they're gonna have to take some sort of reduction or compromise, I I join them by saying, you know, we're doing the same thing. And and just sorry, you go ahead.

SPEAKER_00 25:58

No, you go ahead. Finish that thought. Sorry, David.

SPEAKER_03 26:00

Well, I was just gonna say, and people uh look at a 25% contingency as as somehow being large. Um, the reality is that these contingency arrangements, that is, we only get paid if we win and we take a percentage, are there to allow people to get access to justice without paying for it. So we have cases where we've done these things, spent years and lost, and we get nothing. And the design is the design of the what what some judges have called an entrepreneurial system or approach, is that the lawyers who take the risk and put in the time and pay disbursements should get a pretty good premium at the end of the day. Uh, not only are we not getting a premium, we're we're not even getting straight time covered, and I'm not complaining. Um that's the reality and the risk we take in these type of arrangements, but it it it is the system that provides the benefit to people that gives them access to court.

SPEAKER_00 26:49

I appreciate that because I was gonna ask you about the legal fees. But basically, just as you said, 25% of this$10 million settlement does go to legal fees, but as you mentioned, it's actually far less than what you've actually are you've actually paid way more than that.

unknown 27:01

Trevor Burrus, Jr.

SPEAKER_00 27:01

Well, it we didn't pay anyone.

SPEAKER_03 27:03

It's that it's it's the time that we would have billed on some other file that we spent on this file that won't recover. And again, I I'm I am not complaining about that at all. That's that's the nature of the risky litigation that we act in. Trevor Burrus, Jr.: That's right.

SPEAKER_00 27:15

All right, I do have to go over the numbers real quickly, David, because this is a big question people have too. So it's a$10 million proposed settlement. People want to know who's paying for it. According to the documents filed in CORD, the city of Elliott Lake would pay the most into this settlement,$3.5 million. Algoma Central Properties, which built the mall and owned it for 20 years, would pay$2 million. Eastwood Mall and Bob Nazarian, who was the last owner the day it collapsed, would pay$1.745 million. Retirement Living and its uh for-profit arm, Nordev, would pay a million dollars each. They actually owned the mall between, if I remember right, 2000 and 1999 and 2005. Um MR Writing Associates and Bob Wood, who were the Sault Ste. Marie Engineering firm that last inspected the mall, would pay$730,000. The Ontario government, i.e., the Ministry of Labor, would pay$400,000. Course Lab Structures, which provided the the slabs that were on the top of the roof deck, would pay uh$225,000. And James Kiwan, who was the original architect and who has since passed away, I assume it'd be his estate or his insurance would pay$175,000. People might assume things when they see that breakdown, David. What does that mean that one will pay$3.5 million, one would pay$175,000? How do you come to those numbers?

SPEAKER_03 28:25

I I can say that it's a bit of a black box for us because when Justice Gouge retired, Chief Justice Warren Winkler took over. And uh he's a force in mediation. He uh spoke to the defendants independently of us and and basically cut conducted a mediation towards the defendants and came up with the 10.775 joint offer to settle the class action and the food land claim. Uh we weren't aware of the breakdown until it was put into the settlement agreement. Um I can tell you that the settlement agreement itself specifies that all the defendants deny liability. The the um the splits and and how uh Chief Justice Winkler arranged it are are essentially unknown to us. But but I can certainly tell you that while uh people assume that civil lawsuits achieve justice uh for everyone, the reality is that almost every civil lawsuit uh just results in a monetary award, money being exchanged. And from our perspective as counsel to the class members, we would rather get more money regardless who's paying. So to some extent, um, and I don't mean this to be flippant or casual, um, we were focused on the total, certainly not focused on who was contributing what.

SPEAKER_00 29:52

So that we assume, I don't know, you know I don't even know if you can speak to this, but we assume there are a lot of closed-door discussions with the mediator talking about why someone might have to pay more or less.

SPEAKER_03 30:00

I I would assume sorry, in most mediations and most settlements, there is at least some analysis of of both the liability exposure and the damage exposure. Uh I I could sort of assume certain things. I I just don't know what happened. And there's also at times um influence in settlements like this where there's multiple parties by virtue of the fact of what insurance money is left available. And and that can also play a factor in in who contributes what makes sense. I don't know for this particular case, however.

SPEAKER_00 30:32

And do you know if they're all covered by insurance? You know if some of these plaintiffs will be on the hook for this money on their own? Uh I actually don't know that.

SPEAKER_03 30:40

Um, and it's not something that we got into. It it wouldn't have been relevant for purposes of of arguing the case in court. Um so I'd have to apologize and decline to tell you the answer to that one.

SPEAKER_00 30:51

That's okay. Yeah. Would that be something that would eventually come out as part of the settlement uh hearing and as part of the approval hearing, or will could that be something we would just never know?

SPEAKER_03 30:58

It it'll be something you'll never know. It's it's not a requirement that a defendant who's contributing to a settlement disclose whether it's out of their own corporate or personal pocket, or rather alternatively out of an insurance pocket.

SPEAKER_00 31:10

Okay. Uh again, we appreciate your time. I know you have to go. Um In terms of closure, David, we often hear this term, you know, we finally get some closure. Do we feel that we've reached that point in this case, or is there ever really going to be closure with this tragedy?

SPEAKER_03 31:21

Um my The lawyer in me uh says this is closure of the class action. Uh but I, as we discussed earlier, I think that the evaluation of the claims and the distribution is gonna go on for months.

unknown 31:36

Yeah.

SPEAKER_03 31:37

So it won't quite be closed even if the judge approves it on April the 10th. From a human perspective, and I'm no expert on that uh or psychology, but in my experience, when something as personal, as important and tragic as this was occurs, no court settlement that really closes that. It it may be a chapter in the book of the collapse, but I fear, like some of the psychological issues, that that this collapse will resonate and haunt a number of people for many years.

SPEAKER_00 32:12

Absolutely. Real quickly, David, is there a message you'd have to any class members who might be listening to this podcast tonight?

SPEAKER_03 32:18

Uh my message would be attend the certification hearing, or sorry, the settlement approval hearing on April the 10th. Before that, read the material we're going to post on our website, have a look at it. And and I would urge you to read that material and accept some of the evidence in contrast to the sort of uh quite natural, quite understandable reaction of not enough, took too long, um the lawyers are getting too much. I mean, I we've tried to we'll try to explain that in the material. Uh it's hard to get that message across, but I'd urge people to to try to absorb our material. And lastly, I would say with all due respect to everyone, this is a very reasonable settlement, and I would urge people to support it rather than find a reason to complain.

SPEAKER_02 33:07

Uh David, before we let you go uh this evening, any points that we didn't cover that uh perhaps we should have?

SPEAKER_03 33:12

No, I I think you've covered basically everything. I mean, I I the only thing I would add is that um I really do think that Jack and Elaine Quinty have have been strong soldiers for this case for a long time. I mean I can't imagine in a relatively small town, and I'm not saying that Elliott Lake is tiny, but you know, if you show up at the Tim Hortons every day and you're the face of the class action, everyone is going to expect you to answer for what has or has not happened over the last six months, six years, thirteen years. And the difficulty that the Quinties had is the same difficulty we had. We can't reveal settlement privileged information publicly. We can't put it on our website. If people called, we answered their questions. But we can't disclose information publicly without destroying the settlement privilege and probably driving the defendants away from the settlement table. And we certainly didn't want to do that. The Quinties were alive to that. And so they didn't have detailed answers they could give in public in the Tim Hortons or at the Rex Hall or at the supermarket. And so they faced a lot of questions and likely uh understandably a lot of criticism, and they did it while having their own psychological issues and their own financial issues, and I have a lot of respect for what they've done.

SPEAKER_02 34:27

All right. There's David O'Connor, a founding partner of the Toronto law firm, Roy O'Connor. David, uh, we truly appreciate your time this evening. Thank you, Jets. Well, I guess the uh good news after waiting uh 14 years, uh April 10th, and then maybe only a few more months after that.

SPEAKER_00 34:46

Aaron Powell Yeah, it's interesting too that Dave was able to shed some light on what they had decided on or what the mediator or the retired uh Court of Appeal justice had said. Like this is the most you're probably gonna get is$11.7 million dollars. Right. Right. And he was able actually to get the defend the defendants to agree on this amount. And it says very clearly in their posting online that this is if we this is not accepted, we could be taking years and years more to litigate this. With no guarantee of how much money you'd get at the end, right. And uh so, like I said at the top of the show, I was even surprised this was still going on. I'm sure there'll be a lot of relief. I can tell you I met so many people who were elderly in 2012 who were in the mall. Or so, you know, and I know in fact I know some of the people I interviewed have passed away, so their families will be able to apply for compensation. Um He's right about closure, right? Closure, I don't believe, is something that ever really comes. You don't fully get closure on anything. Trevor Burrus, Jr. I think you just move past things. Trevor Burrus, Jr. You move past things and you and y it works out the best way that you can. Um but I'm sure this money will mean a lot to people who suffered in different ways in them all. So uh I can tell you I'll be watching the hearing on April 10th, and I'll let you know how it goes.

SPEAKER_02 35:54

All right. That's uh it for us this evening. Closerlook at villagemedia.ca is our email address. And uh don't forget you can sign up anytime to get uh new content sent to you uh on a regular basis. Closerlookpodcast.ca. Derek Turner at the helm this evening of uh tonight's show. As always, Michael Friscolati, our editor in chief. And I'm Scott Sexmith. Thanks for your time this evening. We'll do it again tomorrow night, seven o'clock, right here on Closer Look. Frisco and Scott's wardrobe, provided in part by Moore's Sault Ste. Marie.