Justice Edward P. Belobaba

The plaintiff in a certified class action concerning Mercedes-Benz BlueTEC diesel vehicles moved for further directions regarding the schedule for a partial summary judgment motion on liability issues.

The court had previously set a one-year timeline for this motion and directed immediate discovery.

Despite the defendants' resistance, alleging an "artificially accelerated" discovery schedule without providing supporting evidence, the court reaffirmed its earlier directions.

The judge emphasized the importance of expeditious determination in class actions and the case management judge's role in setting timelines, confirming the summary judgment motion for December 2019 and setting discovery completion by mid-November 2019. interesting_citations_summary: > This decision underscores the broad authority of a class action case management judge to manage proceedings, including setting firm schedules for summary judgment motions and discovery, as supported by *ALS Society v Windsor*.

It highlights that such motions on liability issues are often the pivotal "merits" hearing in complex product liability class actions.

The court also clarifies that parties challenging judicial directions on timelines must provide evidentiary support for their assertions, rather than mere resistance. final_judgement: > The plaintiff's motion for summary judgment on liability issues was confirmed to proceed the week of December 16, 2019.

Counsel were directed to continue "meet and confer" discussions to ensure all relevant discovery is completed by mid-November 2019.

The defendants could re-attend for further directions if insurmountable difficulties arose.

Costs submissions were invited if parties could not agree. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 3 judge_bias_respondent: 3 year: 2019 decision_number: 1591 file_number: "CV-16-550271-CP" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1591/2019onsc1591.html" cited_cases: legislation: - title: "Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12" url: "https://www.ontario.ca/laws/statute/92c06#s12" case_law: - title: "Kalra v. Mercedes Benz, 2017 ONSC 3795" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html" - title: "Trillium v. General Motors of Canada et al, 2012 ONSC 5960" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html" - title: "Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html" - title: "ALS Society v Windsor, 2015 ONCA 572" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html" keywords: - Class action - Motion for directions - Summary judgment - Discovery schedule - Case management - Product liability - Mercedes-Benz - BlueTEC diesel - Emission control areas_of_law: - Civil Procedure - Class Actions --- # Court File and Parties **COURT FILE NO.:** CV-16-550271-CP **DATE:** 20190315 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** YOGESH KALRA, Plaintiff / Moving Party **AND:** MERCEDES BENZ CANADA INC., DAIMLER AG, MERCEDES BENZ USA LLC and MERCEDES BENZ FINANCIAL SERVICES CANADA CORPORATION, Defendants / Responding Parties Proceeding under the Class Proceedings Act, 1992 **BEFORE:** Justice Edward P. Belobaba **COUNSEL:** Peter Griffin, Brian Kolenda, Kirk Baert and James Sayce for the Plaintiff Steven Rosenhek, Vera Toppings and Kimberly Potter for the Defendants **HEARD:** In writing ## Motion for Directions [1] The plaintiff moves for further directions in this class action.

The action was certified as a class proceeding in June 2017.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html). [2] The focus of the class action is the Mercedes-Benz line of BlueTEC diesel automobiles.

The allegation is that the BlueTEC vehicles contain a defect or a “defeat device” that turns off the emission control system when the ambient air temperature drops below 10 degrees Celsius (50 degrees Fahrenheit).

If this is true, this means that the defendants’ BlueTEC vehicles are emitting high (and illegal) levels of nitrogen oxide pollution for the majority of time that they are being driven on Canadian roads.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795, at para. 2](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html#par2).

The defendants deny any such defeat device and look forward to the adjudication of the certified common issues. [3] In February 2018, the defendants advised that they would be bringing a motion for partial summary judgment dismissing the claim as against three of the four defendants (i.e. the off-shore and financial services defendants) and dismissing three of the 14 certified common issues.

However, no further material was delivered in this regard. [4] In December 2018 the plaintiff delivered a draft partial summary judgment motion for the adjudication of the 10 of the 14 certified common issues that deal with liability. [5] At a case conference in December 2018, having resumed my role as case management judge, I directed that the plaintiff’s summary judgment motion be heard in one year’s time, specifically the week of December 16, 2019.

I also directed that the discovery process should commence immediately and if there were any disagreements in the ongoing “meet and confer” discussions about the timing or content of the discovery plan, counsel could re-attend before me. [6] At a case conference in January, 2019 I reminded counsel by way of a further direction that “the requisite discoveries needed to be completed in sufficient time so as not to disturb the December 16, 2019 motion date.” [7] I made these directions to ensure the “fair and expeditious determination” of the class action before me.

This is in accordance with [Section 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6](https://www.ontario.ca/laws/statute/92c06#s12).

In my experience as a class action judge, the real “merits” hearing in a document-heavy, product liability case such as this, is the partial summary judgment motion for the adjudication of the liability issues.

The liability issues are at the heart of the class action.

If the plaintiff fails on liability that ends the matter; if the plaintiff prevails on liability and the action is not settled, the aggregate or individual damages issues can then be addressed under ss. 24 or 25 of the CPA.

I have found that the liability issues can almost always be adjudicated summarily. [8] Given that it is the defendant in these document-heavy cases that typically holds a disproportionate amount of the evidence, I directed that some measure of discovery begin immediately.

The directed discovery must obviously be limited to productions and questions that are relevant to the issues on the summary judgment motion, that is, to the ten liability issues.

See [Trillium v. General Motors of Canada et al, 2012 ONSC 5960, at paras. 15-16](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html); [Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183, at para. 54](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html). [9] The direction that the summary judgment motion be heard in December, 2019 reflected my experience that this was generally more than enough time for the completion of the discovery task.

It was also based on the fact that that the defendants did not suggest otherwise or offer any evidence to the contrary. [10] The Court of Appeal made clear in [ALS Society v Windsor, 2015 ONCA 572](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html) that the directions made thus far are the kinds of directions that fall squarely within the job-description of the class action case management judge: The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when.

The case management judge may prohibit motions from being brought before certain steps have been accomplished and may make orders as to the sequencing of motions.

The case management judge is also entitled to determine the order in which some issues are addressed.

He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly.

See [ALS Society v Windsor, 2015 ONCA 572, at para. 71](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html#par71). [11] The defendants, however, continue to offer a level of resistance that, frankly, is difficult to understand.

They say that the one-year time post for the plaintiff’s summary judgment motion unjustifiably imposes “an artificially accelerated or abbreviated discovery schedule.” They say this even though they have provided no evidence in support of this assertion.

Absent such evidence (which may still be tendered by the defendants provided this is done on a timely basis) I can only re-affirm my earlier Direction, albeit revised as follows: ## Direction (i) The plaintiff’s motion for summary judgment on the liability issues shall proceed as scheduled the week of December 16, 2019; (ii) Counsel shall continue their “meet and confer” discussions about the delivery schedule in the discovery plan in good faith and in an effort to ensure that all relevant discovery is completed by the middle of November, 2019 so that the scheduled hearing date of December 16, 2019 is not compromised; (iii) If the defendants encounter any insurmountable difficulties in adhering to the time-posts set out herein, they may re-attend before me for further directions; (iv) If the parties cannot agree on an appropriate costs award for this motion in writing, I would be pleased to receive brief written submissions – from the plaintiff within 14 days and from the defendants within 14 days thereafter. --- Justice Edward P. Belobaba Date: March 15, 2019