Court File and Parties
DIVISIONAL COURT FILE NO.: 548/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, HERMAN AND POMERANCE JJ.
BETWEEN:
JAMES WILLIAMS, KATHLEEN SCHATZ and RAFAEL LIPNER Appellants
– and –
CANON CANADA INC. and CANON INC. Respondents
Henry Juroviesky and Mario Middonti, for the Appellants
Paul J. Martin and Sarah J. Armstrong, for the Respondents
HEARD AT Toronto: June 21, 2012
Oral Reasons for Judgment
POMERANCE J. (ORALLY)
1This is an appeal of the decision of Strathy J. declining to certify a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6. The action was proposed on behalf of a class of owners of cameras manufactured by the defendant, Canon Inc. and distributed in Canada by Canon Canada Inc. (Canon). It alleged that the cameras have a common design defect which causes them to display an error message (the “E18 message”) and become inoperative.
2Strathy J., in a lengthy and comprehensive ruling, found that the plaintiffs had failed to satisfy the requisite criteria for certification under s. 5(1) of the Class Proceedings Act, 1992, which provides as follows:
5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff or defendant who,
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
3The appellants have raised issues in relation to each of the statutory requirements set out in s. 5 of the Act. We have determined that the issues arising under s. 5(1)(c) — the common issues requirement — are dispositive of the appeal.
THE RULING ON THE COMMON ISSUES REQUIREMENT
4On the agreement of counsel, the essence of the common issue was framed by the following question:
Did the Canon cameras (cameras) listed in paragraph 1(c) of the amended, amended, amended fresh as amended statement of claim contain a defect in design that renders the cameras prone to manifesting the E18 error?
5The motions judge ruled that there was no basis in fact for the allegation of a common design defect in either cameras of the plaintiffs or the cameras identified more generally in the class. The plaintiffs put forward two experts to give evidence on this point. The evidence of both witnesses was struck because the evidence did not satisfy the Mohan criteria for receipt of expert evidence (R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9). The appellants do not appeal the decision striking the evidence of Mr. Joffe, only that of Mr. Atkins. The motions court judge struck the evidence of Christopher Atkins on the basis that he was not a properly qualified expert.
6On appeal, it is alleged that the motions judge erred in striking the evidence of Mr. Atkins and, further, in finding no basis in fact for the common issue. Applying the standard of review of correctness, we find that the experienced motions judge did not err in his treatment of these issues. Mr. Atkins did not have the qualifications necessary to voice an opinion about camera design in general, or optical lenses in particular. Once Mr. Atkins’ evidence was struck, there was no remaining evidence capable of satisfying the threshold under s. 5(1)(c) of the Act. Even if Mr. Atkins’ evidence had not been struck, the nature of the evidence was such that it would not have provided a basis in fact for the common issue. For these reasons, the appeal cannot succeed.
THE QUALIFICATIONS OF CHRISTOPHER ATKINS
7Mr. Atkins was proffered by the plaintiffs as a “consumer product failure expert”. His qualifications were described by the motions judge in paragraphs 106-08 of his reasons:
[106] Turning to Mr. Atkins’ qualifications:
he was 32 years old at the time he gave his opinion;
he obtained a Bachelor of Applied Science degree in Mechanical Engineering in 2001 and obtained his P.Eng. designation in 2007;
he had no particular experience or expertise in cameras and had never designed or repaired a camera;
he is not a member of any relevant professional association other than the Association of Professional Engineers;
he has not published, taught or taken courses on the subject of camera design, construction or repair;
he has no relevant practical experience or training in the field of cameras in general or digital cameras in particular;
he has never testified as an expert witness on any subject, let alone camera design, construction or repair.
[107] Prior to joining Walters Forensic Engineering (“Walters”) in 2007, Mr. Atkins was employed by Canadian Tire from 2001 to 2007 in the quality engineering area and was involved in developing specifications for and inspecting, testing and conducting design modifications of consumer products, such as bicycles, lawn mowers, weed trimmers and hand tools. His work with Walters, though it involved some consumer products, seems to have been focused on accident reconstruction, automotive systems and human factors.
[108] Mr. Atkins admitted that he did not have expertise in camera design to enable him to give an opinion about what specific design features would have to be incorporated in the Cameras to prevent the occurrence of the E18 Error message.
8The plaintiffs acknowledge that the motions judge accurately described Mr. Atkins’ education, experience and background.
9In finding that Mr. Atkins was not qualified to state the proffered opinion, the motions judge stated at paras. 109-11 of his reasons:
[109] The plaintiffs seek to qualify Mr. Atkins as a “consumer product failure expert.” His main qualification, prior to becoming a consultant, seems to be his work at Canadian Tire. To conclude that Mr. Atkins is a “product failure expert” and is therefore qualified to express opinions on the failure of a digital camera because he has experience in inspecting, testing and developing specifications for lawnmowers, bicycles and weed whackers is a leap of faith that is not supported by any evidence. I cannot conclude that his work experience with power tools, lawnmowers and the like qualifies him to give an opinion about the alleged failure of what he himself describes as an “intricate and highly complicated” optical unit of a camera, which has its own internal computer mechanism, or about the design features that should have been installed in the camera to prevent a failure, the cause of which he does not even identify. Never having examined a camera other than the Canon cameras he bought over the internet and having had no training or experience in camera inspection, repair and design, he can have no way of knowing what is, or is not, appropriate design.
[110] Like Mr. Joffe, Mr. Atkins’ expertise is entirely self-conferred. There is no independent evidence that he is qualified to give an opinion on digital camera design or failure. He has no experience whatsoever with camera products and has done nothing to acquire any expertise.
[111] In my view, Mr. Atkins is not qualified to give the opinion that he purports to give. His opinion is, therefore, inadmissible.
10The plaintiffs allege various errors. First, they allege that the motions judge erred in applying an unduly stringent standard of scrutiny to the evidence of Mr. Atkins. The plaintiffs submit that, while the case of Mohan governs receipt of expert opinion, the rigours of the test should be relaxed when applied at a certification stage rather than a trial or other hearing on the merits. The plaintiffs rely on Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., Ltd., 2009 65376 (ON SC) and Griffin v. Dell Canada Inc. (2009), 2009 3557 (ON SC), 72 C.P.C. (6th) 158 (Ont. S.C.) as supporting this proposition. However, those cases are distinguishable in that the courts were concerned with the weight to be attached to expert opinion, rather than its admissibility. This was made clear by Lax J. in Griffin, at para. 76:
The court’s “gatekeeper” role in respect to expert evidence was clearly articulated by the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.) and urged upon trial judges in subsequent decisions. This role applies equally to judges hearing motions for certification: Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540, 260 D.L.R. (4th) 488 (B.C. C.A.). However, where expert evidence is produced on a motion for certification, the nature and amount of investigation and testing required to provide a basis for a preliminary opinion will not be as extensive as would be required for an opinion to be given at trial. It follows that some lesser level of scrutiny is applied to the opinions offered, if they are otherwise admissible: Stewart v. General Motors of Canada Ltd., [2007] O.J. No. 2319 (Ont. S.C.J.) at para. 19. [Emphasis added.]
11In this case, the issue is not weight, but admissibility. Before a witness can offer an expert opinion, he or she must be “shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.” (see Mohan, at p. 25). This is a vital pre-condition to admissibility. Even at the certification stage, there is no principled reason to relax the requirement that only a qualified expert can give opinion evidence. Absent a properly qualified witness, there is no expert opinion and therefore no basis for receiving the evidence.
12We find that the motions judge was correct in his articulation of the legal test, as exemplified in paras. 65-67 of his reasons.
[65] While the evidentiary burden on a certification motion is the low, “basis in fact” test, that burden must be discharged by admissible evidence. The evidence tendered on a certification motion must meet the usual criteria for admissibility: Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63, [2011] O.J. No. 17, 2011 ONSC 63 at para. 13; Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540, (2005), 260 D.L.R. (4th) 488, 2005 BCCA 540 at para.31, leave to appeal to SCC dismissed, [2005] S.C.C.A. No. 545.
[66] This applies to all forms of evidence, including expert evidence: Schick v. Boehringer Ingelheim (Canada) Ltd. at para. 14. In Stewart v. General Motors of Canada Ltd., [2007] O.J. No. 2319, 158 A.C.W.S. (3d) 193 (S.C.J.), Cullity J. observed at para. 19:
I accept, also, [counsel’s] submission that the fact that only a minimum evidential foundation need be provided for each of the statutory requirements for certification - other than that in section 5(1)(a) - does not mean that the standards for admissibility can properly be ignored, or are to be relaxed for this purpose. However, insistence that the general rules of admissibility are applicable to expert evidence filed on motions for certification does not entail that the nature and amount of investigation and testing required to provide a basis for preliminary opinions for the purpose of such motions will necessarily be as extensive as would be required for an opinion to be given at trial.
[67] This means that expert evidence tendered on a certification motion must meet the test for admissibility but, once found admissible, the quality of evidence required to establish a “basis in fact” is not the same as would be required for proof “on a balance of probabilities” at a trial on the merits.
13The plaintiffs also allege that the motions judge erred in failing to appreciate that Mr. Atkins’ opinion concerned the optical lens of the camera, rather than the camera as a whole. We find that the motions judge did not misapprehend the nature or purport of the opinion. The plaintiffs’ position is that the optical lens should be viewed as something of a “stand-alone” unit that operates independently of the camera. It is said that, even if Mr. Atkins had no expertise in cameras as a whole, he was equipped to offer an opinion about the optical lens of a camera. However this argument is based on the dubious assumption that the operation of the optical lens can be understood without reference to the camera in which it functions, an assumption that is not supported by the record in this case. According to Henrique Teixeira, a defence expert who was not cross-examined by the plaintiffs, the E18 message is displayed when the optical lens unit interacts with a computer within the camera. If the computer detects that the lens barrel has not extended or retracted within a specified period of time, it shuts down and displays the E18 message in order to prevent damage to the optical unit. Given this evidence, which stood uncontradicted, it is doubtful that the optical lens can be viewed independently of the camera.
14In any event, Mr. Atkins himself acknowledged that he did not have expertise in the design of cameras or their lens mechanisms. During cross-examination, he was asked about his opinion that the camera was defective because the lens mechanism did not possess preventative measures to guard against the entry of minimal amounts of dust or debris. There followed this exchange:
Q. You don’t list what any of these preventative measures could be, right?
A. No.
Q. In fact, you don’t have the requisite expertise to be able to opine on that, correct?
A. On camera design, no.
15Finally, contrary to the assertions of the plaintiffs, Mr. Atkins did not restrict himself to the optical lens unit when stating his opinion. He overstepped this boundary when he asserted in his report that the optical lens “is below standard in its durability and functionality being overly sensitive, prone to failure, and not fit for normal use of a digital camera”. There was nothing in Mr. Atkins’ education, experience or background that qualified him to opine on acceptable standards of durability or operability of cameras. Mr. Atkins’ experience with consumer products involved items such as lawn mowers, bicycles and weed trimmers. It is self-evident that these items are fundamentally different than cameras, and must have different capacities to withstand sand, dust and debris. Expertise is contextual. As held by the motions judge, there was no reason to believe that the witness’ experience with power tools and lawnmowers would generalize to more sensitive devices such as digital cameras.
16The plaintiffs argued that there was no need for Mr. Atkins to have prior experience with cameras, relying on the decision in Tavernese v. Economical Mutual Insurance, 2009 28405 (ON SC). In Tavernese, two mechanical engineers were allowed to give expert opinion about the mechanism of a door to a safe that had been broken into. Neither expert had specialized knowledge about safes per se. In allowing the evidence, Lauwers J. held at para. 24 that:
Mechanical engineering is about the properties of various materials and the application of forces and loads to them. It studies the failure of various types of materials and structures under stress. A mechanical engineer qualified by a professional designation and forensic experience is capable of giving evidence on the issues in this case after study of the safe, as was undertaken by both experts. Both experts testified that the safe in question was a simple mechanical structure and special technical expertise was not required for them to determine the way in which the door was removed from the safe.
17By way of contrast, in this case, the optical lens of the camera was described by Mr. Atkins himself as being “intricate and highly complicated”. Unlike the safe in Tavernese, it was not a simple mechanical structure.
18The plaintiffs also relied upon Griffin. In that case, an engineer gave evidence about computer defects outlined in the statement of claim. The expert had no prior experience with computers and was not a computer or electrical engineer. He did, however, have other relevant experience — “many years of engineering experience that involves design, manufacturing and maintenance of electronic components for process machinery and electronic devices and failure analysis of major systems and printed circuits, including component, wiring and solder failures.” (see Griffin, at para. 81). Lax J. found that the experience of the witness was relevant and transferable to the issue of the computer defects alleged in that case.
19Tavernese and Griffin turned on their particular facts, just as this case does. Those cases do not, in their reasoning or result, cast doubt upon the correctness of the ruling in this case. On the evidence before him, it was open to the motions judge to conclude that neither Mr. Atkins’ academic credentials nor his experience gave him specialized knowledge about camera design or defects. We see no error in the ruling of the motions judge striking this evidence.
NO OTHER BASIS IN FACT FOR THE COMMON ISSUE
20In oral argument, the plaintiffs submitted that, even without the evidence of Mr. Atkins, there was some basis in fact for the common issue. The plaintiffs referred to repair statistics cited by Mr. Teixiera, the defence expert. Mr. Teixiera asserted that between January 2000 and April 2009, the total number of cameras of the models referred to by the plaintiffs sold were 977,085. Of those, 88,615 (9.07%) were repaired. 5,829 (.60%) of the cameras were repaired because they displayed the E18 error message code. Only 5,380 (.55% of total sold) needed repair for some reason other than customer misuse or abuse.
21The plaintiffs asserted that these repair statistics, standing alone, are capable of establishing a common design defect. We do not agree. Cameras may be repaired for any number of reasons, just as there are many reasons for the E18 message to be displayed. One cannot infer a design defect from the fact of repair. This is all the more so given the defence evidence that the E18 message is an intended feature of the device designed to protect the camera lens in situations that could cause damage. We note as an aside, that in this case the repair statistics may well support the contrary conclusion given that the vast number of camera repairs were for reasons other than the E18 message. In oral argument, the plaintiffs counsel advised that the plaintiffs do not rely upon the E18 message displayed on the cameras of the representative plaintiffs. There is accordingly, no other evidence capable of providing a basis in fact for the common issue.
WOULD THE TEST HAVE BEEN MET BY THE EVIDENCE OF MR. ATKINS?
22In his reasons, the motions judge noted that, even if he had considered Mr. Atkins’ evidence, he would still have found no basis in fact for the alleged common design error. We agree with this conclusion. At its highest, Mr. Atkins’ evidence was that there might be a design defect in the cameras, just as there might be any number of other reasons for the E18 message. Mr. Atkins’ evidence was that the E18 message “was consistent with” a design deficiency in the optical unit of the camera, but that it was also “consistent with” any number of other explanations. This evidence was far too speculative to ground a basis in fact for the common issue.
23The test under s. 5(1)(c), while low, must be sufficiently robust to screen out abusive or unmeritorious fishing expeditions. The gatekeeping function of the court would be effectively neutered if a plaintiff could satisfy its evidentiary burden based merely on a speculative assertion. Counsel for the plaintiffs submitted that the burden imposed by under s. 5(1)(c) is merely to present a basis for asking a question. That, in our view, cannot be enough. It is true that common issues are often expressed as questions. However, in order to justify certification, the plaintiffs must raise a legitimate possibility that the question or questions could be answered in their favour. This does not involve an examination of the merits of the claim (see Hollick v. Toronto (City of), 2001 SCC 68, [2001] 3 S.C.R. 158, at paras. 16, 25). It simply requires that there be some factual basis — in the form of admissible evidence — to support the allegation. In the present case, that translated into a requirement that the plaintiffs adduce some evidence that there is at least some probability of a design defect in the cameras. In oral submissions, counsel for the plaintiffs conceded that its burden at the certification stage is to show that there is at least a triable issue.
24Similarly, the plaintiffs have failed to establish the requisite degree of commonality for certification under s. 5(1)(c). Mr. Atkins asserted that, having examined the optical lens units of some cameras, he believed that all of the models in the class had the same or similar design. However, in cross examination, this assertion was exposed as an untested assumption. As explained by the motions judge in paras. 265-67:
[265] Mr. Atkins, based on an inspection of the 11 “exemplar” cameras (7 of which were in the PowerShot product line but not amongst the Cameras included in the class proceeding), purported to say that “Based on the variety of cameras that we inspected, it is our opinion that all Canon PowerShot optical units likely share a reasonably common design and functionality.” This comes from a witness who had no prior experience in camera inspection, no experience in camera design and who had not even examined the optical units of the plaintiffs’ cameras. On cross-examination, Mr. Atkins admitted that this conclusion was an assumption on his part and the only way he could know it would be by examining every single model. He also acknowledged that while the display of the E18 Error could be “consistent” with a design deficiency, it could also be consistent with other causes, such as impact damage or debris within the camera.
[266] In re-examination of Mr. Atkins, plaintiffs’ counsel asked him, on the assumption that he examined eleven cameras out of a PowerShot line of 136 cameras, whether he had on a statistical basis, a particular level of confidence in his conclusion that the eleven cameras were representative of the PowerShot line and that the optical units of the cameras were “reasonably identical in design ...” The witness replied that he had a “very high level of confidence” in his conclusion.
[267] There are two problems with this conclusion. The first is that, not being an expert in the field and never having seen the optical units in the plaintiffs’ cameras, the witness was in no position to judge whether the design of one optical unit was the same as any other units, let alone whether they were similar to the design of the optical units in the plaintiffs’ cameras. Second, statistics and probabilities have nothing to do with the determination of whether the design of one camera is the same as the design of another. The witness properly admitted on cross-examination that the only way to be sure was to examine the cameras themselves. [Footnotes omitted.]
25For all of these reasons, we find that the motions judge did not err in ruling that the plaintiffs failed to satisfy s. 5(1)(c) of the Act. This conclusion is determinative of the appeal and it is unnecessary for us to consider s. 5(1)(a), (b), (d), or (e).
26The appeal is therefore dismissed.
ASTON J.
COSTS
27For oral reasons delivered by Pomerance J. and recorded, the appeal is dismissed. I will go on to provide brief reasons on behalf of the panel with respect to costs later today.
28I have endorsed the Appeal Book and Compendium on behalf of the panel: “For oral reasons delivered by Pomerance J. (recorded), this appeal is dismissed with costs fixed at $40,000.00 all inclusive.”
COSTS REASONS
29This case does not raise issues that would invite the application of s. 31(1) of the Class Proceedings Act, 1992. When considering the factors under Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the reasonable expectations of the unsuccessful appellants as a factor, proposed plaintiffs in class action proceedings must understand they are engaged in high stakes litigation which will be aggressively defended at the certification stage. We note that the claim for partial indemnity costs is mainly at rates that are less than half of full indemnity.
Original signed “Justice Pomerance”
POMERANCE J.
Original signed “Justice Pomerance” per
ASTON J.
Original signed “Justice Pomerance” per
HERMAN J.
Date of Reasons for Judgment: June 21, 2012
Date of Release: July 3, 2012
CITATION: Williams v. Canon Canada Inc., 2012 ONSC 3692
DIVISIONAL COURT FILE NO.: 548/11
DATE: 20120621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, HERMAN AND POMERANCE JJ.
BETWEEN:
JAMES WILLIAMS, KATHLEEN SCHATZ and RAFAEL LIPNER Appellants
– and –
CANON CANADA INC. and CANON INC. Respondents
ORAL REASONS FOR JUDGMENT
POMERANCE J.
Date of Reasons for Judgment: June 21, 2012
Date of Release: July 3, 2012
