Court File and Parties

COURT FILE NO.: CV-16-544545-00CP DATE: 20181220 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BARRY REBUCK, Plaintiff – AND – FORD MOTOR COMPANY and FORD MOTOR COMPANY OF CANADA, LIMITED and YONGE-STEELES FORD LINCOLN SALES LIMITED, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Irving Marks, David Taub, Michael Peerless, and Matthew Baer, for the Plaintiff Hugh DesBrisay and Jill Lawrie, for the Defendants

HEARD: September 26, 2018

CERTIFICATION – REASONS FOR DECISION

I. The certification motion

[1] In this action, the Plaintiff, Barry Rebuck, claims damages on behalf of all persons in Canada who purchased or leased new 2013 and 2014 model year Ford vehicles (the “Vehicles”). The claim is for $1.5 billion against the Defendants, Ford Motor Company (“Ford USA”), Ford Motor Company of Canada, Limited (“Ford Canada”) (together, “Ford”) and Yonge Steeles Ford Lincoln Sales Limited (“Yonge-Steeles Ford”).

[2] The Statement of Claim alleges false, misleading or deceptive representations made by the Defendants which understated the fuel consumption of the Vehicles in violation of the Competition Act, RSC 1985, c. C-34 and the Consumer Protection Act, 2002, SO 2002, c. 30, Sch. A. Evidence in the record establishes that 277,637 of the Vehicles were sold in 2013 and 285,004 were sold in 2014.

[3] The Plaintiff moves for certification of the action and appointment of himself as class representative under s. 2(2) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”).

II. The alleged misrepresentations

[4] Natural Resources Canada (“NRC”) annually releases a consumer guide to fuel efficiency that provides prospective buyers and others in the automobile market with fuel consumption information about specific new models of passenger cars, vans, pickup trucks, and SUVs. In publishing the guide, NRC depends on automobile manufacturers such as Ford to employ standardized testing procedures on their own vehicles and to report the fuel consumption results. Those results then appear not only in the NRC annual guide, but on the government of Canada’s “EnerGuide” label for rating energy consumption and fuel efficiency which is affixed to new vehicles.

[5] EnerGuide labels are mandatory for certain consumer products as specified in the Energy Efficiency Regulations, SOR/94-651. That said, there does not exist any statutory authority in Canada for affixing EnerGuide labels on vehicles in Canada. The labelling of new vehicles for retail sale or lease in Canada is done on a voluntary basis as between vehicle manufacturers and the government of Canada. Ford is a participant in this voluntary labelling. The EnerGuide label announces a fuel consumption rating for every vehicle to which it is affixed, which rating is based on the ratings published in the annual NRC guides.

[6] The methodology for testing fuel consumption has changed over time. Prior to 2015, fuel consumption ratings were based on two test cycles; that is, they were based on a city test simulating urban driving, and a highway test simulating open highway and rural road driving (the “2-Cycle Test”).

[7] NRC’s 2013 Fuel Consumption Guide indicated that commencing two years hence, in 2015, there would be a new test methodology for determining fuel consumption ratings. The stated purpose of the new test was to more accurately simulate “real world driving conditions and behaviours”.

[8] The new version of the test was designed to include three additional test cycles. These were meant to account for the use of air conditioning, the operation of the vehicle in cold temperatures, and the operation of the vehicle at higher speeds and with rapid acceleration and braking (the “5-Cycle Testing”). The 5-Cycle Test was new to Canada but was not an altogether new test; in fact, since 2008 it had been the test that was in use in the United States by the Environmental Protection Agency.

[9] According to NRC’s 2013 Guide, the 5-Cycle Test would predictably result in higher fuel consumption ratings in comparison with the 2-Cycle Test. As a result of this change in testing methodology, NRC indicated that fuel consumption ratings for most vehicles would show an approximately 15% increase over the previous year’s ratings.

[10] NRC’s 2014 Guide reiterated that the change in testing was being implemented the following year. It referred to the 5-Cycle Test as an “improved testing procedure” and made the claim that this new testing method would be “more representative of typical driving conditions and styles”. The 2014 Guide also reconfirmed the increase in fuel consumption ratings that would accompany the newly implemented testing method. It stated that the 5-Cycle Test would produce ratings that were “10 to 20% higher” than under the 2-Cycle Test. NRC touted the new methodology in the 2014 Guide, stating that the 5-Cycle Test took into account “additional factors that better approximate everyday driving”.

[11] In 2015, for the first time in Canada, vehicle manufacturers such as Ford employed the 5-Cycle Test to determine the fuel consumption ratings of their new automobiles and other vehicles. Those ratings were published by NRC in the 2015 Guide. The 2015 Guide states that the 5-Cycle Test has been adopted because it is “more representative of typical driving conditions and styles”. These representations played to consumers’ desire for fuel efficiency, which translated for the consumer into value and convenience.

[12] For 2013 and 2014, the Defendants used fuel consumption ratings for the Vehicles based on the 2-Cycle Test in their multimedia advertisements and sales brochures. The ratings also appeared on the Ford website and, since they were reported to NRC by Ford, on the EnerGuide labels affixed to the Vehicles sold and leased in Canada.

[13] The Plaintiff has pleaded that he and all potential class members were given the 2-Cycle Test ratings even though the Defendants knew that there were significant discrepancies between the fuel consumption ratings produced by the 2-Cycle and 5-Cycle Tests. Specifically, the Plaintiff alleges that the Defendants were fully aware and recklessly disregarded the fact that the 2-Cycle Test results did not accurately reflect the Vehicles’ actual, expected fuel consumption. Thus, the Plaintiff states that the Defendants knowingly or recklessly failed to disclose that the Vehicles could not achieve the represented fuel consumption ratings under normal, real world driving conditions.

[14] The Statement of Claim goes on to allege that such representations were specifically made to sell Ford vehicles, and that Ford was aware that the faulty information would be disseminated to consumers deciding to purchase or lease the Vehicles. It likewise states that the representations of fuel consumption published in the 2015 Guide were false, misleading, or deceptive. The wrongfulness of these representations as published in Ford’s promotional materials, in NRC guides, and reproduced on the EnerGuide labels, are particularized in the Plaintiff’s pleading:

The Defendants promoted understated fuel consumption ratings that were far better than what the public would actually experience using the Vehicles under normal, real world driving usage;

The Defendants failed to disclose material facts regarding the nature of the represented fuel consumption ratings, omitting that such ratings were based upon the 2-Cycle Testing Method; an outmoded testing method that fails to provide actual, expected fuel consumption levels under normal, real world driving conditions and, as a result, produces fuel consumption ratings that are misleading and lower than the fuel consumption ratings under the 5-Cycle Testing Method; and

The Defendants failed to disclose the Vehicles’ 5-Cycle Testing Method ratings, the existence or availability thereof, or the imminent transition to the more representative 5-Cycle Testing Method for determining fuel consumption ratings in Canada.

[15] In Ford’s promotional materials for the Vehicles, a footnote to the fuel consumption ratings stated: “Fuel consumption ratings based on Government of Canada approved test methods. Actual fuel consumption will vary”. In addition, the Vehicles’ EnerGuide labels stated, “These estimates are based on the Government of Canada’s approved criteria and testing methods. The actual fuel consumption of this vehicle may vary. Refer to the Fuel Consumption Guide”. The Vehicles’ EnerGuide labels also stated, “Ask your dealer for the FUEL CONSUMPTION GUIDE or call 1-800-387-2000.”

[16] The Plaintiff contends that in promoting the Vehicles in this way, the Defendants gave the impression to the consuming public that the represented fuel consumption ratings were certified by the government of Canada and that they met regulatory standards. This effectively lent credibility to ratings that in fact were produced in a voluntary reporting arrangement between vehicle manufacturers and the government of Canada. The Plaintiff also alleges that the Vehicles’ actual fuel consumption was not expected to be less than the reported 2-Cycle Test results, but that, in fact, it was expected to be higher based on the results that the 5-Cycle Test would have produced.

[17] The Statement of Claim therefore asserts that the Defendants’ statements of qualification were inadequate, and that they did not sufficiently bring the misleading nature of the fuel consumption ratings to the attention of prospective buyers and lessees. Furthermore, the Plaintiff claims that it was not a sufficient response to the dissemination of false information for the Defendants to rely on the EnerGuide labels to refer consumers to NRC’s Guide for more accurate information about the Vehicles. The Plaintiff contends that the consumer public ought not be required to reference some outside explanatory materials in order to correct patently incorrect representations on promotional materials disseminated by the Defendants and affixed to the Vehicles themselves.

[18] The Plaintiff pleads that the price that potential class members paid in purchasing or leasing the Vehicles was in excess of the value that they received due to the discrepancy between the fuel consumption levels of the Vehicles as represented by the Defendants and the actual, expected fuel consumption levels under real world driving conditions. Accordingly, the Plaintiff claims damages on behalf of the class based on the excess annual fuel costs incurred, and to be incurred, by class members as a result of this discrepancy.

[19] Ford’s records apparently show that it sold or leased in Canada somewhere in the range of 269,800 of the 2013 model year Vehicles and 276,700 of the 2014 model year Vehicles. The Plaintiff contends that the Vehicles’ fuel consumption ratings under the 5-Cycle Test exceeded the Vehicles’ fuel consumption ratings under the 2-Cycle Test by an average of roughly 15%. Plaintiffs’ counsel submits that as a result, all potential class members have experienced, and will continue to experience, 15% higher average annual fuel consumption than was represented at the time they acquired the vehicles, leading to a commensurate 15% average increase in annual fuel costs throughout the term of ownership or lease of the Vehicles.

[20] The Plaintiff proposes producing an expert report on damages by Farley Cohen, a Toronto-based chartered accountant specializing in business valuation, damages quantification, and forensic accounting. For this motion, Mr. Cohen has provided an opinion as to the methodology to be employed in assessing damages on behalf of the class. He concludes that the alleged losses can be calculated on an aggregate basis using an “additional fuel expense” methodology. He indicates that he would approach this by taking: (a) the additional fuel costs the proposed class has incurred to a current date based on actual fuel prices, and (b) the discounted present value of estimated future costs expected to be incurred over the remaining term of ownership or lease.

[21] Mr. Cohen’s approach is, of course, designed to facilitate the calculation of damages on a class-wide basis. Plaintiff’s counsel submit that Mr. Cohen’s methodology would also facilitate a distribution of damages on a model-by-model basis to individual class members based on the model Vehicle that individual purchased or leased.

[22] The Defendants have produced an affidavit by a damages expert of their own, Mark Berkman. He takes issue with Mr. Cohen’s methodology. According to Mr. Berkman, the approach advocated by Mr. Cohen is flawed in that it incorrectly assumes a direct correspondence between increased costs in fuel consumption and the purchase or lease price of the Vehicles.

[23] Mr. Berkman also contends that Mr. Cohen overlooks a number of other variables that factor into purchase and leasing decisions for new automobiles. While Mr. Cohen emphasizes the fuel consumption concerns of automobile shoppers, Mr. Berkman downplays these concerns and characterizes them as playing a far smaller role in the average consumer’s automobile acquisition decision.

III. Requirements for certification

[24] The by now well-known requirements for certifying an action as a class action are set out in section 5(1) of the CPA, as follows:

a. the pleadings disclose a cause of action;

b. there is an identifiable class of two or more persons that would be represented by the representative plaintiff;

c. the claims 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 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.

[25] It is worth reiterating that certification cannot be analyzed in a vacuum. As Winkler CJO observed in McCracken v. Canadian National Railway (2012), 2012 ONCA 445, 111 OR (3d) 745, at para 75 (Ont. CA), “[t]here is a requirement that, for all but the cause of action criterion, an evidentiary foundation is needed to support a certification order.”

[26] Having said that, the record need not be one that actually proves the Plaintiff’s case. The existence of conflicting evidence is not a bar to certification, as the ‘some basis in fact’ standard applicable at certification “does not require that the court resolve conflicting facts and evidence at the certification stage”: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, [2013] 3 SCR 477, at para 102. This includes conflicts over the methodology pursued by prospective expert witnesses and differences in perspective on the impact of promotional materials, etc. “The certification motion is not the place for resolving that [evidentiary] controversy”: Pearson v Inco Ltd. (2005), 78 OR (3d) 641, at para 76 (Ont CA).

a) Viable cause of action

[27] The Supreme Court of Canada has indicated that the test for a viable cause of action is a low one at the certification stage. In essence, a plaintiff satisfies this requirement unless, assuming all facts pleaded to be true, it is “plain and obvious that the plaintiff’s claim cannot succeed”: Pro-Sys, at para 63.

[28] The Plaintiff has pleaded that the Defendants’ inaccurate representations about fuel consumption for the Vehicles were made to the public through the advertisements, sales brochures, the Ford website, NRC’s annual Guide, and on the EnerGuide Labels. The Statement of Claim brings these alleged misrepresentations under two statutory causes of action: sections 14 and 17 of the Consumer Protection Act (and equivalent consumer protection legislation in other provinces) and sections 36 and 52(1) of the Competition Act.

[29] Turning first to the Consumer Protection Act, the Statement of Claim indicates that the Defendants’ impugned representations were made by the Defendants regarding the understated fuel consumption of the Vehicles. The claim likewise alleges that class members suffered damages as a result of those unfair practices and representations. Unlike at common law, reliance is not a necessary factor to plead or to establish liability or damages under the relevant sections of the Consumer Protection Act: Ramdath v George Brown College of Applied Arts and Technology, 2015 ONCA 921, at para 39.

[30] This court has previously certified class actions under provincial consumer protection legislation: see, e.g. Kalra v. Mercedes Benz, 2017 ONSC 3795, at paras 31-32. Furthermore, this court and Divisional Court have on numerous occasions certified national class actions where there is a parallel cause of action in other provinces: see, e.g. Corless v Bell Mobility Inc., 2015 ONSC 7682 at paras. 65 and 70 (Div Ct); Barwin v IKO Industries Ltd, 2013 ONSC 3054, at para. 52 (Div Ct). The availability of remedies will potentially turn on who bought or leased a Vehicle in which province. Belobaba J. has observed that to this end, “[s]ub-classes will no doubt be needed as this litigation proceeds. But at this stage, I cannot conclude that the consumer protection cause of action for eligible class members has no reasonable prospect of success”: Kalra, at para 33.

[31] Strathy J. (as he then was) noted at first instance in Ramdath, 2012 ONSC 6173, at para 69, aff'd 2013 ONCA 468, that, “ [a] determination of whether a representation was untrue, inaccurate or misleading must be made on an objective basis.” While counsel for the Defendants takes issue with this, I have little difficulty on the basis of the record before me in concluding that the impugned representations were, objectively speaking, inaccurate and misleading. Anyone who saw them would reasonably conclude that the predicted fuel consumption was as represented on the basis of the 2-Cycle Test rather than on the more accurate 5-Cycle Test.

[32] The Statement of Claim also alleges that the Defendants knowingly or recklessly made false or misleading representations regarding the fuel consumption of the Vehicles for the purpose of promoting their supply or use contrary to s. 52(1) of the Competition Act. As Defendants’ counsel point out, a civil claim under s. 36 of the Competition Act requires that the Plaintiff must show both that the Defendants breached s. 52 and that he suffered damages as a result of that breach. This double-barreled requirement “can only be done if there is a causal connection between the breach…and the damages suffered by the plaintiff”: Singer v Schering-Plough, 2010 ONSC 42, at para 107.

[33] Although causation has not been dispensed with, reliance in the usual sense of a common law negligent misrepresentation claim is not a necessary ingredient to establish a civil cause of action under s. 36 of the Competition Act for breach of s. 52: Magill v Expedia Canada Corp, 2010 ONSC 5247, at para 107. For example, in Pro-Sys, at paras 71, 113, a claim under s. 36 was permitted to proceed and for damages to be calculated on an aggregate rather than an individualized basis. This could not happen under a common law tort claim of negligent misrepresentation with its strict reliance-as-inducement rule: Hedley Byrne & Co Ltd v Heller & Partners Ltd. [1964] AC 465, 502-4.

[34] This approach suggests that the causal connection between the Defendants’ alleged misrepresentations and the Plaintiff’s alleged loss is sufficiently pleaded here. That is, the Plaintiff claims that misrepresenting the fuel consumption of the Vehicles has caused buyers and lessees of the Vehicles to spend more on fuel consumption than they were expecting.

[35] The Plaintiff need not plead that the misrepresentations induced him to buy his car; that type of detrimental reliance would be a necessary ingredient for a claim based on the common law of negligent misrepresentation. Rather, under s. 36 of the Competition Act what the Plaintiff must plead is that the misrepresentations caused him to acquire less value than he expected to acquire – i.e. to spend more on gas than he thought he would spend when he purchased the Vehicle.

[36] Framed in this way, causation is an issue that is common to all purchasers and lessees of the Vehicles. The facts as pleaded match the requirements of the statutory causes of action that are pleaded.

[37] The record before me satisfies the requirements of section 5(1)(a) of the CPA.

(b) Identifiable class

[38] Counsel for the Plaintiff proposes a class definition composed of all persons who purchased or leased a new 2013 or 2014 model year Ford vehicle in Canada.

[39] This definition of the class is objectively defined, readily identifiable, and rationally connected to each of the proposed Common Issues. Ford has access to the names and addresses of the original purchasers and lessees of the Vehicles. This will ensure that class members can be contacted for notice purposes. In addition, sales volumes of the Vehicles by province and across the country are available, as are the details and any terms of lease.

[40] The record before me satisfies the requirements of section 5(1)(b) of the CPA.

(c) Common issues

[41] Counsel for the Plaintiff has set out the proposed common issues as follows (collectively, the “Common Issues”):

Consumer Protection Act

(1) Did the Defendants, or any one of them, contravene sections 14 and 17 of the Consumer Protection Act, and parallel provisions of the provincial Consumer Protection Legislation by making any false, misleading or deceptive representations?

(2) If so, can the Plaintiff rely on the waiver of notice provisions of section 101 of the Consumer Protection Act (and parallel provisions of the consumer protection legislation in other provinces)?

(3) If a consumer must demonstrate contractual privity to avail themselves of Part III of the Consumer Protection Act, are dealers, and/or third party sellers designated by the Defendants to sell the Vehicles, agents of the Defendants? If so, can privity be established through such agency?

Competition Act

(4) Did the Defendants contravene section 52 of the Competition Act?

Damages

(5) Should exemplary, punitive, and/or aggravated damages be awarded against the Defendants?

(6) Are the Class members entitled to damages under section 36(1) of the Competition Act, section 18(2) of the Consumer Protection Act, and the parallel provisions of the consumer protection legislation in other provinces, and, if so, can the amount of damages payable by the Defendants be determined on an aggregate basis and in what amount?

[42] The Supreme Court of Canada observed in Pro-Sys, at para 106, that, “ In order to establish commonality…the factual evidence required at this stage goes only to establishing whether [the common issues] are common to all the class members.” According to the Court of Appeal, this “ represents a conscious attempt by the Ontario legislature to avoid setting the bar for certification too high”: Carom v Bre-X Minerals Ltd., [2000] OJ No. 4014, at para 40.

[43] Commonality of issues lies at the very heart of the class proceeding certification analysis and so, of course, the Common Issues must be established on the record as having “some basis in fact”: Hollick v Metropolitan Toronto, 2001 SCC 68, [2001] 3 SCR 158, at para 25. That said, the commonality requirement must not become an excessively strenuous hurdle for plaintiffs to overcome:

When examining the existence of common issues it is important to understand that the common issues do not have to be issues which are determinative of liability; they need only be issues of fact or law that move the litigation forward. The resolution of a common issue does not have to be, in and of itself, sufficient to support relief. To require every common issue to be determinative of liability for every plaintiff and every defendant would make class proceedings with more than one defendant virtually impossible.

Campbell v Flexwatt Corp. (1997), 15 CPC (4th) 1, 18 (BC CA).

[44] Accordingly, commonality is all about judicial economy. The question to be asked in addressing the commonality requirement is whether the case going forward as a class action will allow the court to do away with duplication in either the fact-finding process or in its legal analysis: Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46, [2001] 2 SCR 534, at para. 39.

[45] Unlike claims in which the cause of action is framed in common law negligent misrepresentation, the causes of action here raise statutory breaches that do not require proof of individual reliance. The impugned representations by the Defendants were made to the public at large on a nationwide basis, and are therefore obviously common to a class composed of purchasers and lessees. The factual evidence establishing the dissemination of these representations in multimedia advertisements, sales brochures, the Ford website, and on the EnerGuide Labels is certainly common to all members of the proposed class.

[46] I am conscious of the submission by Defendants’ counsel that the evidence brought forward by the Plaintiff at this stage must support the specific allegation being made, and that it is not sufficient that the allegations be based on a form of more generalized evidence: Martin v Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744, at para 263. Counsel for the Defendants submits that in the present case the evidence does not establish truly common issues because each consumer in the automobile market comes at the promotional and other impugned materials from their own individual point of view.

[47] To say this is to seek a level of detailed commonality that is not called for under s. 5(1)(c) of the CPA. As my colleague Belobaba J. has stated, “putative class members may not all have the exact same claims and remedies available to them, but this is not a bar to certification. Even a significant level of difference among the class members does not preclude a finding of commonality”: Kalra, at para 39. The test “‘does not require that the court resolve conflicting facts and evidence at the certification stage’, which the court is ill equipped to do at that stage”: Hodge v Neinstein, 2017 ONCA 494, at para 113, quoting Pro-Sys, at para 102. The Supreme Court of Canada has held that where purchasers “raise essentially the same claims requiring resolution of the same facts” the possibility that there are detailed differences between them “does not necessarily defeat the [purchasers'] right to proceed as a class. If material differences emerge, the court can deal with them when the time comes”: Western Canadian Shopping Centres, at para 54.

[48] Counsel for the Defendants also emphasize case law from British Columbia indicating that allegations of misrepresentation against a manufacturer and retailer of a product may lack commonality in that they depend on evidence of how the representations were conveyed to each consumer: see Marshall v United furniture Warehouse Limited Partnership, 2013 BCSC 2050, aff’d 2015 BCCA 252, leave to appeal denied [2015] SCC No 326. That, however, is not an issue of significance here. Plaintiff’s counsel point out that the British Columbia Court of Appeal has recently confirmed that this kind of individualized evidence is not required where the representations at issue are in written form and are not oral representations made to individual purchasers: N&C Transportation Ltd. v Navistar International Corporation, 2018 BCCA 312, at para 140.

[49] The record before me shows that the representations that form the heart of the Plaintiff’s claim were made in Ford’s nationally disseminated promotional materials, NRC guides, and EnerGuide labels. In the absence of allegations of oral misrepresentations, or of specific oral communications to consumers at the point of sale, no substantial question of individualized evidence arises in terms of whether and how the impugned information was conveyed.

[50] I am also cognizant of the Defendants’ position that the impugned representations were not truly misrepresentations, or were not actionable as such, but rather arose from an industry-wide fuel consumption rating system promoted by the federal government. This point, although interesting, is out of place in the current motion. It goes to the merits, not to the commonality, of the case among the potential class members. Numerous courts have said on numerous occasions that a certification motion is neither a trial nor a request for summary judgment. Rather, “[c]lass certification is a procedural motion which concerns the form of an action, not its merits. Contentious factual and legal issues between the parties cannot be resolved on a class certification motion”: Wheadon v. Bayer Inc., 2004 NLSCTD 72, [2004] NJ No 147 (NLSC) at paras. 91-92, aff’d sub nom. Bayer Inc. v Pardy) 2005 NLCA 20, [2005] NJ No 122 (NL CA), leave to appeal refused [2005] SCC No 211.

[51] Proposed Common Issues #1 and #4 relate to alleged breaches of consumer protection and competition statutes. These issues need to be established for all purchasers and lessees of the Vehicles. They are central to the litigation and do not require any individualized evidence from class members. The proposed Common Issues focus on the Defendants’ knowledge and conduct and appropriately advance the litigation. They are the statutory equivalents to issues of standard of care and are routinely certified in class actions: Bouchanskaia v Bayer Inc., 2003 BCSC 1306, [2003] BCJ No 1969, at paras 113 (BCSC); Wilson v Servier Canada Inc. (2000), 50 OR (3d) 219, at paras 53-56 (SCJ), leave to appeal refused (2000), , 52 OR (3d) 20 (Div Ct), leave to appeal refused [2001] SCC No 28380.

[52] Proposed Common Issues #2 and #3 are essentially legal issues. Question #2 is directed at interpreting and applying section 18(3) of the Consumer Protection Act, which requires that notice be given within one year after entering into the relevant agreement if the consumer seeks recovery, and provides courts with the ability to waive this notice requirement. Question #3 is directed at determining whether privity is required to establish liability under the statutory provisions relied upon by the Plaintiff and, if so, how Ford’s agents and dealers fit into the privity analysis. It is also directed at determining whether the Defendants are liable for misrepresentations by their agents or dealers in disseminating advertisements and websites.

[53] I am satisfied that resolution of these issues will advance the action on behalf of all class members. They are common to all purchasers and lessees of the Vehicles and there is nothing individualized about the analysis that they demand.

[54] Proposed Common Issue #5 seeks to determine whether the Defendants are liable for exemplary, punitive, or aggravated damages. Again, this issue focuses on the conduct of the Defendants alone. It does not demand any individualized evidence relating to particular class members, and can be decided on behalf of the entire proposed class.

[55] Proposed Common Issue #6 seeks a determination of the availability of damages and, more specifically, whether aggregate damages are applicable under the circumstances of this case. Generally speaking, determination of the entitlement to damages is a common, not individual, issue. In terms of an aggregate assessment of damages, in order for this to be certified as a common issue I need only find that there is, on the basis of facts in the record, a reasonable possibility that an aggregate assessment may be made with respect to “at least part of the compensatory damages” claimed: Good v Toronto Police Services Board, 2016 ONCA 250, at paras 81-82.

[56] The Plaintiff has put forward the expert evidence of Mr. Cohen demonstrating that there is a methodology for calculating damages on an aggregate basis. Plaintiff’s counsel submits that, in fact, the methodology proposed by Mr. Cohen was the basis on which class actions have been settled and approved by the court in previous cases: see Grieve v Hyundai, 2014 ONSC 1731, at para 6. In addition, Plaintiff’s counsel points out that Mr. Cohen’s proposed methodology is the very same method used by NRC to produce the estimated annual fuel costs that appear on the Vehicles’ EnerGuide Labels.

[57] As indicated earlier in these reasons, I am aware that the Defendants have produced an expert that takes issue with the Plaintiff’s expert’s approach. That response convinces me that there may be a debate among experts, but it does not counter the fact that the Plaintiff has produced evidence, which I accept, that there is an approach to damages that can be worked out as a common issue. Needless to say, the fact that I accept Mr. Cohen’s methodology for the purposes of this certification motion does not pre-judge any determination regarding the merits of that approach that may have to be made down the road.

[58] The Supreme Court has made it clear to motion courts hearing certification requests that “resolving conflicts between the experts is an issue for the trial judge and not one that should be engaged in at certification”: Pro-Sys, at para 118. In fact, it is safe to say that, “The plaintiff's obligation to provide a plausible methodology will often prompt a rebuttal from the defendant's expert”: Kalra, at para 49.

[59] The methodology proposed by Mr. Cohen is reasonable on its face and meets the standard demanded at the certification stage. I see no grounds for disputing or second-guessing it here, and would leave the Defendants’ challenge to the merits of Plaintiff’s expert’s methodology to be advanced at trial.

[60] The record before me satisfies the requirements of section 5(1)(c) of the CPA.

(d) Preferable procedure

[61] In Carom v Bre-X Ltd, [1999] OJ No 1662, at para 257, Winkler J. (as he then was) outlined the analysis in which courts engage in determining whether a class action is the preferable procedure under section 5(1)(d) of the CPA:

A class proceeding is the preferable procedure where it presents a fair, efficient and manageable method of determining the common issues which arise from the claims of multiple plaintiffs and where such determination will advance the proceeding in accordance with the goals of judicial economy, access to justice and the modification of behaviour of wrongdoers.

[62] It is by now well established that a class action can be certified even where the common issues do not predominate over issues requiring individualized evidence and analysis: Cloud v Canada (Attorney General), [2004] OJ No 4924, at paras 69, 75 (Ont CA); Hollick, at para. 30. Accordingly, once it is determined that there are common issues whose resolution will appropriately advance the litigation, a class proceeding is likely to be the preferable procedure.

[63] A common issues trial often addresses only part of a claim. It does not run counter to certification for there to be individual issues that may have to be resolved as a subsequent step. As the Court of Appeal has noted, “… the court has the means to conduct cost-effective and timely determinations of individual issues following the common issues trial. As a result, the fact that damages may not be amenable to aggregate assessment at the conclusion of a common issues trial is not fatal to certification of a class proceeding… Absent this possibility, the purposes of the CPA would be seriously eroded”: Cassano v The Toronto-Dominion Bank, 2007 ONCA 781, [2007] OJ No 4406, at paras 62-3 (Ont CA).

[64] Although the claim is for $1.5 billion, the Plaintiff’s own loss, like that of most of the individual class members, appears to be somewhere in the order of $2,000. It is obvious that there are serious issues of access to justice and judicial economy that make a class proceeding preferable over thousands of individual proceedings. In these circumstances, it would be for the Defendants to “support the contention that another procedure is to be preferred with an evidentiary foundation”: 1176560 Ontario Ltd. v Great Atlantic & Pacific Co. of Canada Ltd., 2002 CarswellOnt 4272, at para 27 (SCJ). I see no such support here, nor do I see any reason for saying that a class proceeding is not the preferable way to go.

[65] The record before me satisfies the requirements of section 5(1)(d) of the CPA.

(e) Representative plaintiff

[66] I see no serious challenge here to the Plaintiff’s ability to fairly and adequately represent the class or to fulfill the role demanded of him in instructing counsel and pursuing the action diligently. He fits squarely within the definition of the class, has no conflict of interest, appears to fully understand the issues and the responsibility he is taking on, and has retained experienced counsel to represent the class.

[67] Counsel for the Plaintiff have provided a litigation plan for the action. This is required to provide “a framework within which the case may proceed and to demonstrate that the representative plaintiff and class counsel have a clear grasp of the complexities involved in the case which are apparent at the time of certification and a plan to address them”: Fakhri v Alfalfa’s Canada Inc., 2003 BCSC 1717, [2003] BCJ No 2618, at para 77 (BCSC).

[68] A litigation plan is not, of course, writ in stone and does not bind the trial judge or any subsequent court that might wish that it be varied or deviated from: Healey v Lakeridge, [2006] OJ No 5621, at paras 2-4 (SCJ). It cannot perfectly predict every turn that the litigation process will take in the future, and needs to be treated as a flexible instrument.

[69] Having said that, the litigation plan contained in the Plaintiff’s motion record proposes an efficient procedure for the balance of the litigation. I find that it assists me in determining that the action is manageable and that the goals of the CPA will be served by certification of the action as a class proceeding: Andersen v St. Jude Medical Inc., [2003] OJ No 3556, at paras 71-75 (SCJ).

[70] The record before me satisfies the requirements of section 5(1)(e) of the CPA.

IV. Disposition

[71] The action is hereby certified as a class proceeding with Mr. Rebuck as representative Plaintiff. Counsel for the Plaintiff shall act as class counsel.

[72] The class members are defined as all persons who purchased or leased a new 2013 or 2014 model year Ford vehicle in Canada. The Common Issues are as set out in paragraph 41 above.

[73] The Plaintiff’s litigation plan is a workable method of advancing the proceeding on behalf of the class members. Class members shall be notified of the certification Order in accordance with the provisions of the litigation plan.

[74] Counsel should be in touch with my assistant to schedule a follow-up case conference. At that point counsel can discuss with me the schedule for the balance of the proceedings and any other administrative issues regarding notice, opt-out dates for class members, etc.

V. Costs

[75] Costs of this motion may be addressed in written submissions by counsel.

[76] I would ask counsel for the Plaintiff to provide me with brief (3 pages maximum) submissions, together with a Costs Outline, within three weeks of today’s date. I would ask counsel for the Defendants to provide me with equally brief responding submissions within two weeks thereafter. These submissions may be sent by email to my assistant.

Date: December 20, 2018 Morgan J.