Dr. Peter Frise

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

This is a class action certification motion concerning allegedly defective N20 engines in BMW vehicles.

The plaintiffs sought to certify a class of owners/lessees of BMW vehicles with these engines, alleging design and/or manufacturing defects causing sudden loss of power.

The court analyzed the five certification criteria under the Class Proceedings Act, 1992.

While a cause of action in negligence was found, it was significantly narrowed to exclude claims for pure economic loss, limiting recovery to repair costs for actual damage or to avert imminent damage.

The proposed class definition was also narrowed to include only those who incurred such repair expenses by the judgment date.

One of the two proposed representative plaintiffs was deemed unsuitable as she had no recoverable loss.

The motion for certification was granted, but with substantial limitations on the scope of the class and the recoverable damages, and with only one representative plaintiff.