Court File and Parties

COURT FILE NO.: CV-16-549639-00CP DATE: 2018/11/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MATTHEW ROBERT QUENNEVILLE, LUCIAN TAURO, MICHAEL JOSEPH PARE, THERESE H. GADOURY, AMY FITZGERALD, RENEE JAMES, AL-NOOR WISSANJI, JACK MASTROMATTEI, JAY MacDONALD and JUDITH ANNE BECKETT Plaintiffs – and – ROBERT BOSCH GmbH Defendant

Counsel: James Sayce and Robert Alfieri for the Plaintiffs Nicole Henderson for the Defendant Cheryl Woodin for Volkswagen Group Canada, Inc., Volkswagen Aktiengesellschaft, Volkswagen Group of America, Inc., Audi Canada Inc., Audi Aktiengesellschaft, Audi of America Inc. and VW Credit Canada, Inc.

Proceeding under the Class Proceedings Act, 1992

HEARD: October 30, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In this class action under the Class Proceedings Act, 1992 , [1] the Plaintiffs sue Robert Bosch GmbH (“Bosch”). I shall refer to this action as the “Bosch Action.”

[2] In the Bosch Action, the Plaintiffs seek pre-discovery production of three million documents from Volkswagen Group Canada, Inc., Volkswagen Aktiengesellschaft, Volkswagen Group of America, Inc., Audi Canada Inc., Audi Aktiengesellschaft, Audi of America Inc., and VW Credit Canada, Inc. (collectively “VW”).

[3] The Plaintiffs successfully sued VW in another class action, which I shall refer to as the “VW Action”. The VW Action was settled pursuant to two settlement approval orders.

[4] Bosch, and VW, who is the non-party in the Bosch Action, oppose the Plaintiffs’ motion for the production of documents from VW.

[5] Bosch submits that the criteria for discovery from a non-party pursuant to rule 30.10(1) of the Rules of Civil Procedure are not satisfied, and, therefore, the motion should be dismissed.

[6] VW submits that the motion should be dismissed because: (1) the criteria of rule 30.10(1) of the Rules of Civil Procedure are not satisfied; (2) the production and use of the documents would breach the deemed undertaking of rule 30.1.01(3); and (3) the production of the documents would contravene a protective Order that was made by Justice Firestone in the VW Action.

[7] For the reasons that follow, I dismiss the Plaintiffs’ motion without prejudice to it being brought again, if at all, after the examinations for discovery of Bosch.

[8] I shall explain this outcome in three parts. First, I shall set out the law associated with the discovery of documents from a non-party. Second, I shall describe the usual facts of the immediate case along with some commentary, including the observation that the Plaintiffs by bringing this motion are ipso facto (by that very fact or act) breaching the deemed undertaking under Rule 30.1.01. Third, in the discussion and analysis, I shall apply the law to the unusual factual circumstances of the immediate case.

B. Production of Documents from a Non-Party

[9] In Ontario, under the Rules of Civil Procedure, which pursuant to s. 35 of the Class Proceedings Act, 1992 , also apply to class proceedings, documentary discovery as of right is limited to parties to the proceeding.

[10] However, information from non-parties may also be obtained: (a) pursuant to the court’s authority to grant a Norwich order; (b) pursuant to rule 31.10, which empowers the court to order an examination of a non-party; or (c) pursuant to rule 30.10, where necessary, the court may, on motion by a party, order production for inspection of a relevant non-privileged document that is in the possession, control or power of a person who is not a party.

[11] Rule 30.10(1) provides:

PRODUCTION FROM NON-PARTIES WITH LEAVE

Order for inspection

30.10(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[12] The case law establishes that the disclosure and production of a document from a non-party is a matter of fairness and necessity. On a motion for production from a non-party, the court determines whether it would be unfair to require the moving party to proceed to trial without a document in the possession of the non-party, and balances the interests of the moving party against the interests of the non-party, which interests include concerns about privacy, inconvenience , and exposure to liability. [2]

[13] Although production can be ordered from a non-party, it is not routinely sought and the threshold for granting it is high. [3] An order under rule 30.10 should not be made as a matter of course and should only be made in exceptional circumstances. [4]

[14] In making the determination of whether to order a non-party to produce a document, the court may consider the following factors: (1) the importance of the document to the issues in the litigation; (2) whether production at the discovery stage as opposed to production at trial is necessary to avoid unfairness to the moving party; (3) whether the examination of the opposing party with respect to the issues to which the documents are relevant would be adequate to obtain the information in the document; (4) the availability of the document or its information from another source that is accessible to the moving party; (6) the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation; and (6) the position of the non-party with respect to production. [5]

C. Facts

[15] In September 2015, [6] in class action, the Plaintiffs [7] represented by a consortium of eight law firms (“Class Counsel”) sued VW for installing deceptive emissions measurement devices in diesel engine automobiles sold in Canada. The devices installed in the diesel engine vehicles deceived government regulators about the carbon emissions of the vehicles, which, in truth, grossly exceeded the legal limits for emissions. The software for the devices were supplied to VW by Bosch. Bosch was, however, not named as a party to the VW Action.

[16] Six months later, on March 29, 2016, the Plaintiffs brought the action now before the court against VW’s alleged co-conspirator, Bosch. The Plaintiffs alleged that Bosch partnered with VW to perpetrate the fraud on consumers, the regulators, and the public.

[17] The class definition in the Bosch Action is the same as in the VW Action. The pleading in Bosch Action is similar to the pleading in the VW Action. In the Bosch Action, it is alleged that Bosch designed the software for VW that deceived government regulators. It is alleged that Bosch allowed VW to market diesel automobiles as clean, when in fact, the vehicles emitted harmful emissions at dozens of times over the authorized limit.

[18] I pause here to note that there is no explanation why Class Counsel decided to commence a separate action against Bosch as opposed to having Bosch joined as a co-defendant to the VW Action. In the United States, there were also numerous class actions against VW and Bosch with respect to the sale of vehicles with deceptive emissions control systems, and in those actions VW and Bosch were co-defendants. The U.S. actions were consolidated into a single multi-district litigation pursuant to U.S. rules of civil procedure that facilitate multi-jurisdictional actions. (I shall refer to the U.S. litigation against VW and Bosch as the Multi-District Litigation.)

[19] As will become clearer from the discussion below, whatever the reason for the decision, Class Counsel’s decision to sue Bosch in a separate action rather than as a co-defendant in the VW Action is the source of the problems in the Bosch Action.

[20] Returning to the factual narrative, on February 25, 2016, in the Multi-District Litigation, Judge Charles F. Breyer made a protective order to govern the production of documents. Pursuant to that order, VW produced approximately 3 million documents (15 million pages) to the Steering Committee prosecuting the Multi-District Litigation. I shall refer to these documents as the Protective Order Documents. Bosch also produced documents in the Multi-District Litigation.

[21] Three months later, in Ontario, on May 19, 2016, Justice Firestone made a protective order in the VW Action. Pursuant to Justice Firestone’s order, in the VW Action, VW produced the three million Protective Order Documents to Class Counsel.

[22] It should be noted that the Ontario Protective Order made by Justice Firestone was on consent and a matter of negotiation between the parties. The Order stated:

[…] ON READING the consent of the plaintiffs and Moving Parties (collectively the “Parties” and each a “Party”, including their respective Counsel (as defined below) to the form of this Order (the “Order”),

AND WHEREAS the MDL Protective Order is attached as Schedule “A” to this Order;

AND WHEREAS the purpose of this Order is to protect materials to be kept confidential and/or privileged that was provided pursuant to the MDL Protective Order;

AND WHEREAS the Parties agree that the information provided pursuant to the MDL Protective Order can only be disclosed within the Ontario Action to the Parties, subject to the terms and conditions stated herein;

3. THIS COURT FURTHER ORDERS the even after the final disposition of the Ontario Action, the confidentiality obligations imposed by this Order shall remain in effect and bind anyone who has agreed to be bound by this Order, until the Producing Party indicates agreement otherwise in writing or a court order directs otherwise. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defences in this action, with or without prejudice; or (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including time limits for filing any motions or applications for extension of time pursuant to applicable law.

4. THIS COURT FURTHER ORDERS that this Order shall be binding on all Parties and any other persons who become bound by this Order.

5. THIS COURT FURTHER ORDERS that the Protected Material, in whole or in part, shall not form any part of the public record in this action, unless consented to in writing by Producing Party, or by order of this Court.

6. THIS COURT FURTHER ORDERS that a Party may use protected materials in this action only for prosecuting, defending, or attempting to settle this action, including any appeal(s). Any Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. Protected material must be stored and maintained at a location and in a secure manner that ensures that access to the persons authorized under this Order.

7. THIS COURT FURTHER ORDERS unless otherwise ordered by the court or permitted in writing by the Producing Party, a Receiving Party may disclose Protected Material designated as “CONFIDENTIAL-MDL 2676” (as described in and designated pursuant to the MDL Protective Order) only to:

(a) Parties included in the definition of Receiving Party at paragraph 1(f) above;

(b) experts retained by Counsel in connection with this action to whom disclosure is reasonably necessary for this action;

(e) such other persons as the Producing Party authorizes in writing, or as this Honourable Court shall determine.

13. THIS COURT FURTHER ORDERS that, within 90 days after the final disposition of this action (as defined in paragraph 3 above), any Receiving Party, including its employees, consultants, and experts, shall assemble and return to the Producing Party, or destroy, all Protected Material, including all copies thereof (but not including copies containing notes or other solicitor’s work product that may have been placed (thereon by Counsel). ….

14. THIS COURT FURTHER ORDERS that a Party, entity or person covered by this Order may apply to the court on notice to all Parties to vary this Order, and nothing in this order shall be deemed to prejudice their rights to seek such variation.

[23] The Protective Order Documents were made available through secure, encrypted hard drives containing approximately 2.9 terabytes of data. The Protective Order Documents consist of documents in the possession, custody or control of VW. They do not include any documents collected from Bosch. Some documents include proprietary business information, as well as Foreign Private Data ( i.e. , documents reasonably believed to be subject to foreign data protection laws or other privacy obligations). Approximately 300,000 documents are designated as “HIGHLY CONFIDENTIAL, including information about product design or development, non-public technical research, pricing and business strategy, financial statements, sales data, product margin data, cost and expense data, and/or profit and loss data, and information relating to specific customers or classes of customers.

[24] Pausing again to comment, it should be noted that Justice Firestone’s Protective Order focuses on the VW Action and does not address the circumstance that Bosch was a non-party to the VW Action. Justice Firestone’s Order provides that the parties to it agree that the information provided pursuant to the MDL Protective Order can only be disclosed within the VW Action. The Order provides that a Party to the VW Action may use the protected materials only for prosecuting, defending, or attempting to settle the VW Action. The Protective Order does not address the use of VW’s documents in the Bosch Action.

[25] There is no explanation as to why the parties did not put their mind to the circumstance that at the time they were negotiating the terms of the Protective Order in Ontario, the Bosch Action was a separate action in Ontario. Further, it must be noted that inasmuch as Class Counsel were lawyers of record in both the VW Action and in the Bosch Action, practically speaking, in the Bosch Action, they were receiving production from VW - a non-party to that action pursuant to a Protective Order made in the VW Action. Unless VW’s consent or waiver can be inferred, in receiving VW’s documents for the purposes of the VW Action Class Counsel were simultaneously receiving documents for the purposes of the Bosch Action and ipso facto breaching the Protective Order, which provided that the documents can only be disclosed within and for the purposes of the VW Action. Moreover, unless VW’s consent or waiver can be inferred, Class Counsel was simultaneously breaching the deemed undertaking in the VW Action, by which Class Counsel undertook not to use VW’s documents other than in the VW Action. VW, however, denies that it consented to the use of its documents for the Bosch Action and it opposes Class Counsel’s after-the-fact request for relief from the deemed undertaking.

[26] The deemed undertaking rule, Rule 30.1.01, states:

DEEMED UNDERTAKING

Application

30.1.01(1) This Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(b) information obtained from evidence referred to in clause (a).

Deemed Undertaking

30.1.01(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

Exceptions

30.1.01(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.

Order that Undertaking does Not Apply

30.1.01(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

[27] Given the integrity of Class Counsel, I believe that Class Counsel’s breach of the Protective Order and Class Counsel’s breach of the deeded undertaking, if any, was inadvertent, but it may have been a breach none the less, because Class Counsel had contractually and procedurally undertaken not to use information from discovery in the VW Action other than for the VW Action.

[28] Class Counsel’s breaches were also unfortunate and unnecessary, because the production of the Protective Order Documents and the deemed undertaking would have not have posed problems had Bosch been joined as a co-defendant to the VW Action. Moreover, the deemed undertaking would not have been a problem if a wiser Class Counsel had thought to apply for an order under subrule 30.1.01(8) that the deemed undertaking does not apply before and not after the fact. The desirability of such an Order at the time of Justice Firestone’s Order seems not have dawned on the mind of Class Counsel.

[29] Returning briefly to the factual narrative before making another comment, on December 15, 2016, the Plaintiffs in the VW Action signed a partial settlement agreement with respect to the claims of the owners of vehicles with 2.0 litre diesel engines. Bosch was expressly not released in the settlement, and there is nothing in the Settlement Agreement that implicitly or expressly indicated that the separate Bosch Action was not going to proceed. More significantly, there was also no obligation under the Settlement Agreement for VW to co-operate in the prosecution of the outstanding action against Bosch.

[30] In arriving at the settlement for the 2.0 litre vehicle owners, apart from not releasing the Class Members claims against Bosch, I do not know what Class Counsel or VW was thinking about the Bosch Action, but, once again, there is no evidence that the parties turned their mind to the matter of what use, if any, could be made in the Bosch Action of the documents that had been produced pursuant to Justice Firestone’s Protective Order. The Settlement Agreement does not include any obligation on VW to co-operate in the prosecution of the Bosch Action, which was carved out of the releases granted under the Settlement Agreement.

[31] I pause again to comment that had Bosch been a party to the VW Action, as it was in the comparable litigation, in the United States, then one might have expected a co-operation agreement as a term of the settlement. Co-operation agreements are a very common feature of class action settlements. The Plaintiffs, however, did not bargain for co-operation from VW, nor did the Plaintiffs bargain for a variation of their responsibilities under Justice Firestone’s Protective Order.

[32] Returning again to the factual narrative, the Plaintiffs moved to implement the 2.0 litre engine settlement with VW, and on December 20, 2016, on consent, Justice Belobaba certified the VW Action as a class action for settlement purposes [8] . In 2017, he approved the settlement for the owners of vehicles with 2.0 litre diesel engines. [9]

[33] After the partial settlement in the VW Action, the Plaintiffs amended their pleading in the Bosch Action to claim against Bosch for only its discrete apportioned liability; the Plaintiffs pleaded:

The Plaintiffs’ claim, and the claim of each Class Member, is limited to the amount of the Plaintiffs' or other Class Member's damages that would be apportioned to the Defendants in accordance with the relative degree of fault that is attributable to the Defendants’ negligence, their role in the conspiracy and their contribution to the breach of CEPA. The Plaintiffs' claim is against the Defendants for those damages that are attributable to its proportionate degree of fault, and they do not seek, on their own behalf or on behalf of the Class, any damages that are found to be attributable to the fault or negligence of any other person or entity or for which the Defendants could claim contribution or indemnity whether in common law, equity, contract or otherwise.

[34] On January 9, 2018, the Plaintiffs in the VW Action signed a second settlement agreement with respect to the claims of the owners of vehicles with 3.0 litre diesel engines. Once again, there was no obligation under this Settlement Agreement for VW to co-operate in the prosecution of the outstanding action against Bosch.

[35] On April 5, 2018, the 3.0 litre engine settlement in the VW Action was approved. [10]

[36] Save for administration, the VW Action was not disposed of, and, as noted above, under the Ontario Protective Order made by Justice Firestone, Class Counsel were required to return or destroy all copies of the Protective Order Documents. After being prompted by counsel for VW, Class Counsel destroyed all copies of the Protective Order Documents, save one copy. That one copy was preserved on nine or ten hard disc drives. The disc drives were returned to VW's counsel, who agreed to hold them in escrow pending the determination of this motion.

[37] On July 16, 2018, on consent, the Bosch Action was certified as a class action. [11]

[38] No motion has been brought to vary the Justice Firestone’s Protective Order. Class Counsel said that it would be impractical to do so given that the action had been disposed of. I see no impracticality, but nothing turns on this point because, practically speaking, this motion under Rule 30.10 is a motion that entails varying Justice Firestone’s Order.

[39] Although a Statement of Defence has not yet been delivered, Bosch denies liability and intends to defend the Bosch Action. The pleadings not having closed, there has been no discovery in the Bosch Action.

D. Discussion and Analysis

[40] With this legal and factual background, I can quickly say that there is no merit to the Plaintiff’s motion under Rule 30.10(1). Indeed, given the probably inadvertent breach of the deemed undertaking rule by Class Counsel, it is chutzpah on steroids for the Plaintiffs to bring the motion.

[41] Whatever may be the procedure in other jurisdictions that allow depositions before trial from non-parties, Ontario has taken a different course. Orders under rule 30.10(1) are meant to be rare and they have strict criteria. In the immediate case, a motion under rule 30.10(1) is stillborn.

[42] I have no doubt that some of the three million VW documents are relevant and material to the Bosch Action, but I also have no doubt that undoubtedly the larger portion of the VW documents have nothing to do with Bosch’s role, if any, in the alleged conspiracy and their disclosure in the Bosch Action would be an egregious intrusion on the confidentiality and the commercial and proprietary interests of VW.

[43] Although Class Counsel has already seen the three million documents, they have made no attempt to tailor or refine their request to documents that are relevant to a material issue in the Bosch Action, but, rather, they blithely assert that all the documents are material and relevant. All the documents may have been relevant in the case against VW, but that does not make all of them relevant to the case against Bosch.

[44] Class Counsel have not yet made any attempt to obtain documents relevant to the Bosch Action in the normal procedural course of the Bosch Action or by other means. There is no reason at this juncture to believe that Class Counsel will be unable to obtain the documents or the informational equivalent to those documents.

[45] There is no reason at this juncture to circumvent and abrogate the design of the Rules of Civil Procedure that require the Plaintiffs to undertake discovery of the parties before intruding on the privacy and other rights of non-parties. There is no basis for Class Counsel to assert that the production of three million documents is necessary to avoid unfairness at trial, because it remains to be determined whether they need any part of the three million documents because the documents or their information equivalent have not been forthcoming through the normal staging of an action.

[46] Notwithstanding the gnashing of teeth that “denying Class Counsel access to these documents would be unfair in the extreme,” there is no unfairness in requiring the Plaintiffs to comply with the Rules of Civil Procedure .

[47] Yes, I appreciate that it would be very convenient, very expedient, and much-much easier for the Plaintiffs and Class Counsel to not have to follow the Rules of Civil Procedure, but they should have had the foresight to have foreseen the difficulties they assumed by not joining Bosch as a co-defendant to the VW Action or they should have had the foresight to have dealt with those difficulties at the time of Justice Firestone’s Order or at the time of either of the settlement agreements, when the need for VW’s cooperation could have been addressed.

[48] By the design of Class Counsel, VW is an outsider to the Bosch Action. It must be emphasized that VW is a non-party to the Bosch Action and fully entitled to the protections provided to the third parties by the Rules of Civil Procedure . As an insider to the VW Action, VW had a contractual and procedural expectation that the Protective Order Documents would be used by Class Action just for the VW Action. The Protective Order Documents contain commercially sensitive, confidential, proprietary, and regulated information that VW protected by a consent Protective Order that it bargained for and which information was also protected by the deemed undertaking rule.

[49] There is nothing capricious or unfair in VW insisting that Class Counsel comply with the Rules of Civil Procedure and Justice Firestone’s Protective Order or that the Plaintiffs comply with the terms of the Settlement Agreements which agreements do not impose any obligation on VW to co-operate in the prosecution of an action in which they may be a witness, but they are not a party.

[50] Ignoring the fact that Class Counsel are probably in breach of the deemed undertaking, there is no reason to think that it would be unfair to require Class Counsel, who could have avoided the problems they now confront by joining Bosch to the VW Action, to proceed in the normal fashion and to lay the proper foundation for a rule 30.10(1) motion, which is based on unfairness and necessity. A rule 30.10(1) order cannot be justified based just on the coincidence of convenience.

[51] Class Counsel submit that VW will suffer no prejudice from the court making a rule 30.10(1) order at this juncture. This is also not correct. I agree with what VW’s submissions at paragraphs 50-52 in its factum, which state:

50. The plaintiffs’ assertion at paragraph 34 of their factum that VW “will face no prejudice” by producing the documents since “it has settled the claims against it and its liability is released” is incorrect. Despite the settlements in the VW Action, there is a continuing proposed class action against VW in Canada (commenced by part of this same counsel group) for customers who sold their diesel vehicle before the emissions issue was publicly disclosed. There are also countless proceedings pending against VW worldwide, including those related to the diesel emissions issue, the CO2 emissions allegations, antitrust allegations, and regulatory investigations.

51. If produced in the Bosch Action, VW’s monitoring of the Protected Documents’ use through to trial will be required to prevent disclosures. This is not sufficiently safeguarded through a confidentiality order. VW’s interest in protecting the confidentiality of its information cannot be fulfilled by any of the parties.

52. In addition, the apportionment of liability between VW and Bosch is an issue for trial in the Bosch Action. The production in this action of the Protected Documents, which include internal VW documents, that could be used to make findings of apportionment of liability would require intervenor status for VW, yet a further cost and prejudice since the VW Action was settled with class counsel without any cooperation obligations by VW.

[52] At this juncture of the Bosch Action, it is known that VW is a non-party to the Bosch Action and it is insisting on the rights it bargained for and that are available to it under the Rules of Civil Procedure, but at this juncture of the Bosch Action: (a) it has not yet been determined what documents within the three million documents are materially relevant to the Bosch Action; (b) it is not yet determinable whether production now as opposed to production at trial is necessary to avoid unfairness to the Plaintiffs; (c) it is not determinable whether the normal prosecution of the action through the discovery of Bosch is inadequate to obtain the information the Plaintiffs’ need; and, (d) it is unknown whether any materially relevant documents VW documents or their information equivalents are only available from VW. Simply put, it is premature for the Plaintiffs’ to bring a rule 30.10(1) motion, and the motion should be dismissed.

[53] In dismissing the motion, it is necessary to point out that the dismissal is without prejudice to the Plaintiffs bringing the motion later, and the dismissal is without prejudice to whatever defences VW may have to the renewed motion. For present purposes, my conclusion is limited to concluding that the Plaintiffs do not meet the criteria for a rule 30.10(1) motion at this time.

E. Conclusion

[54] For the above reasons, the Plaintiffs’ motion is dismissed. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Bosch and Volkswagen’s submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further twenty days.

Perell, J.

Released: November 14, 2018

Footnotes

[1] Class Proceedings Act, 1992, S.O. 1992, c. 6. [2] Labourers’ Pension Fund of Central and Eastern Canada (Trustees of) v. Royal Bank of Canada, 2017 ONSC 87; Farkas v. Niagara (Regional Municipality) Police Service, 2015 ONSC 5532; Fairview Donut Inc. v. TDL Group Corp., 2011 ONSC 247 at paras. 10-11; Tetefsky v. General Motors Corp., 2010 ONSC 1675 at paras. 41-42, affd [2011] O.J. No. 1390 (C.A.); Lowe v. Motolanez (1996), 30 O.R. (3d) 408 at p. 413 (C.A.). [3] Olendzki v. W.A. Baker Trucking Ltd., [2006] O.J. No. 256 (S.C.J.). [4] Morse Shoe (Canada) Ltd. v. Zellers Inc., [1997] O.J. No. 1524 at para. 19 (C.A.). [5] Labourers’ Pension Fund of Central and Eastern Canada (Trustees of) v. Royal Bank of Canada, 2017 ONSC 87; Farkas v. Niagara (Regional Municipality) Police Service, 2015 ONSC 5532; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2015 ONCA 60; Morse Shoe (Canada) Ltd. v. Zellers Inc., [1997] O.J. No. 1524 (C.A.); Ontario (Attorney General) v. Ballard Estate (1994), 26 O.R. (3d) 189 (C.A.). [6] September 22, 2015 (Windsor), September 23, 2015 (Toronto), and September 29, 2015 (Toronto). [7] Matthew Robert Quenneville, Lucian Tauro, Michael Joseph Pare, Therese H. Gadoury, Amy Fitzgerald, Renee James, Al-Noor Wissanji, Jack Mastromattei, Jay MacDonald and Judith Anne Beckett. [8] Quenneville v. Volkswagen Group Canada Inc., 2016 ONSC 7959. [9] Quenneville v. Volkswagen Group Canada Inc., 2017 ONSC 2448; Quenneville v. Volkswagen, 2017 ONSC 3594. [10] Quenneville v. Volkswagen Group Canada, Inc., 2018 ONSC 2516. [11] Quenneville v. Robert Bosch GmbH, 2018 ONSC 4378.