COURT FILE NO.: DC-06-0124 (Brampton)

DATE: 20081022

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: MAURICE POULIN

Plaintiff

(Appellant in Appeal)

• and –

FORD MOTOR COMPANY OF CANADA LIMITED/FORD DU CANADA LIMITEE, FORD MOTOR COMPANY, MAGNA DONNELLY CORPORATION (MAGNA DONNELLY) and INTIER AUTOMOTIVE CLOSURES, INC. (INTIER)

Defendants

(Respondents in Appeal)

BEFORE: CUNNINGHAM, A.C.J., CARNWATH & MACDOUGALL, JJ.

COUNSEL: Gary R. Will, Paul S. Miller and Christopher J.R. Morrison, for the Plaintiff/ (Appellant in Appeal)

James A. Hodgson and Jason Squire, for the Defendant/ (Respondent in Appeal) Ford Motor Company of Canada

Robert L. Armstrong, Dana B. Fuller and D. Michael Brown, for the Defendants/ ( Respondents in Appeal) Magna Donnelly Corporation and Intier Automotive Closures, Inc.

HEARD at Brampton: May 26 and 27, 2008

In the matter of an appeal under Section 30 (1) of the Class Proceedings Act, S.O. 1992, c.6

MACDOUGALL J.:

Nature of Proceeding

[1] Mr. Poulin appeals MacKenzie J.’s refusal to certify a proceeding as a class proceeding and appoint him as the representative plaintiff. Mackenzie J. refused certification because he found: there were no common issues; Mr. Poulin was not an appropriate representative plaintiff; and, a class proceeding was not the preferable procedure.

[2] Following the hearing, on May 26, 2008, the court dismissed the appeal with reasons to follow. These are the reasons.

[3] The proposed class action is a product liability class action that alleges a defect in the door latch for four models of certain Ford trucks manufactured between November 1995 and April 2000. Appellant’s counsel characterized the case as a "concealed defect case” in that class members were unaware of the alleged defect.

[4] Mr. Poulin requests that the order of MacKenzie J. be set aside, and an order issue certifying the within proceeding as a class proceeding with Mr. Poulin as representative plaintiff.

[5] Section 30 (1) of the Class Proceeding Act, S.O. 1992, C.7 (“C.P.A.”) permits a party to appeal to the Divisional Court from an order refusing to certify a proceeding.

[6] The Respondents Ford, Magna, and Intier submit the Plaintiff’s appeal should be dismissed. They assert that Mr. Poulin is “essentially seeking a re-hearing of the certification motion”.

BACKGROUND

[7] Mr. Poulin identifies the affected motor vehicles as all of the Ford F150, the Ford 150 Super Duty, the Ford Expedition, and the Lincoln Navigator vehicles, manufactured between November 1995 and April 2000. He alleges that the door latch in these vehicles has a defective weak spring negligently installed by the Defendant Ford. According to Mr. Poulin, the weak spring allows the door handles to come open during a rollover or side impact accident, creating the potential for an occupant to be ejected. The problem has been fixed in vehicles manufactured after 2000.

[8] Approximately 300,000 of these vehicles have been sold in Canada by independent dealers. The Statement of Claim seeks to bring this action on behalf of all owners and lessees of these vehicles in Canada.

[9] Magna manufactured in part, assembled and sold interior and exterior door handles for some of the Ford vehicles. Intier (now Magna Closures Inc.) supplied door latch system components to Ford for some of the Ford vehicles.

[10] Parallel litigation is taking place in the United States conducted by the U.S. law firm of Motley Rice. Motley Rice is acting as consultant to Will Barristers in this proposed class proceeding. Mr. Poulin’s legal counsel, Will Barristers, and Motley Rice have an agreement to share all fees approved for Plaintiff’s counsel in the class action (70 per cent to Will Barristers and 30 per cent to Motley Rice). Motley Rice has agreed to fund disbursements. Will Barristers needs Motley Rice’s approval to spend more than $2,500 on a disbursement, and Motley Rice is to receive a premium for funding disbursements.

[11] Mr. Poulin is the proposed representative plaintiff. He purchased a used 1997 Ford F150 from a dealership near Sudbury. He has driven the truck for over six years without incident. Mr. Poulin did not initiate this proceeding. He received a phone call in the summer of 2004 from an employee of a Sudbury law firm, enquiring whether he owned a 1997 Ford F150 truck, and was told that the door handles could be defective. He met with legal counsel that summer, and in August 2004, this action was commenced.

[12] Mr. Poulin continues to drive his truck. He has not had it serviced for any problem with the door latching system. The Respondents point out that Mr. Poulin would have had to pay approximately $1,000 to fix his vehicle, and he has chosen not to do so. In examination, Mr. Poulin agreed he would not have consulted a lawyer about his truck had he not been called by a lawyer. He has signed a contingency fee arrangement with Will Barristers whereby legal counsel is to receive 33 per cent of the recovery in this action. There is no indemnity to Mr. Poulin should there be an award of costs made against him.

LEGISLATION

[13] Section 5(1), of the CPA provides:

The court shall certify a class proceeding on a motion under Ss. 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 does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[14] In the certification motion, the motion judge was satisfied that: a) the pleadings did disclose a cause of action, and b) that Mr. Poulin had met the identifiable class requirement.

Standard of Review

[15] The Appellant does not ask this court to overturn any finding of facts of the motion judge. The appeal is based on legal errors of the motion judge. The question for this court is, did the motion judge err in law?

The Certification Motion

[16] The Plaintiff’s evidence on the certification motion consisted of an affidavit by F. Jekel, an attorney with the U.S. firm Motley Rice, transcripts of cross-examination of the Respondents’ affiants, and an affidavit by J. Young, consulting engineer. The Respondents relied on a transcript of examination of the Appellant under Rule 39 (no affidavit was filed by Mr. Poulin), the affidavits of R. Tait, consulting engineer, and D. Turnbull, executive officer of Magna, the affidavits of T. Williams, manager, vehicle safety for Ford of Canada, and P. Taylor, consulting engineer, and the transcripts of examination of the affiant, J. Young.

[17] The Respondents' evidence filed on the motion for certification on the proposed common issues, related to what the Respondents claimed were numerous differences among the door latch systems of the Ford vehicles that materially affect both regulatory compliance and vehicle safety.

Did the Motion Judge Err in Holding That There Were No Common Issues?

[18] Under s. 5(1)(c) of the CPA, the court shall only certify a class proceeding on a motion, if, among other things, the claims or defenses of the class members raise common issues.

[19] S. 1 of the CPA defines “common issues” as meaning:

(a) common but not necessarily identical issues of fact, or

(b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts.

[20] In the certification motion, the Appellant identified “the purported common issues”. For our purposes, they can be generally grouped as: (i) Duty of Care Issues, (ii) Standard of Care issues, and (iii) Damages Issues.

[21] (i) The Duty of Care Issues were further detailed as:

(1) Whether the Respondents owed a duty of care to the class members and whether they breached that duty of care; and,

(2) Whether the springs in the outside door handles utilized in the affected vehicles were defective and unreasonably safe.

[22] ii) The Standard of Care Issues were further detailed as:

(3) whether the “Dynamic Pulse” test could be utilized for compliance for the

involved vehicles manufactured prior to September 1, 1997;

(4) whether the “Dynamic Pulse” test method is equivalent to the SAE J839

calculation for the purpose of CMVSS 206;

(5) whether a violation of the requirement to meet 30gs renders the affected vehicle unsafe;

(6) whether the outside door handle springs were designed or manufactured to

keep doors closed on impact;

(7) whether the Respondents failed to give adequate warnings regarding the

defects and limitations of the affected vehicles; and,

(8) whether the affected vehicles breached their collateral warranties as to

fitness and safety and are fit for their ordinary and intended use.

[23] The Appellant conceded that the “collateral warranty” allegation and the “duty to warn” allegation were not tenable. The Appellant abandoned the assertion that items (7) and (8) above, were common issues.

[24] iii) The Damage Issues were further detailed as:

(9) whether Mr. Poulin and the members of the class are entitled to compensatory damages, and, if so, the quantum of such damages; and,

(10) whether the members of the class are entitled to punitive and exemplary damages and, if so, the quantum of such damages.

Analysis

[25] The motion judge correctly stated that the focus at the certification stage is on procedure, rather than on the merits. Before embarking on his “common issues” analysis, the motion judge adopted the comments of McLachlin C.J. in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, that an issue will be common only where its resolution is necessary to the resolution of each member’s claim. An issue will not be “common” in the requisite sense unless the issue is a “substantial…ingredient” of each of the class member’s claim. The common issues must be of such a nature that their resolution will “significantly advance the action”.

[26] The motion judge also adopted the comments of Nordheimer J. in Moyes v. Fortune Financial Corp. (2002), 61 O.R. (3d) 770 at 779-80. An important consideration is whether any individual issues that will remain for determination after the common issues are resolved are limited or whether what remains to be determined is sufficiently extensive that the determination of the common issues essentially marks the commencement, as opposed to the completion, of the liability inquiry.

The Duty of Care Issues

[27] The real crux of the Appellant’s case is whether it is “a common issue” that the springs in the outside door handles used in the affected vehicles were defective and unsafe. The Appellant contended that it is the spring component of the door latch mechanism that is defective and that that defective component is the basis for the alleged safety deficit and the non-compliance with the prescribed standards.

[28] Critical to this question was whether there were different door latch mechanisms on the affected vehicles. If so, as the Respondents argued, a Court would be required to examine the door latch systems and each of their various components before it could decide the merits of the Appellant’s claim.

[29] The Respondents submitted evidence which purported to demonstrate that the differences in the manufacturing design of the door latch systems necessitated individual investigation of alleged defects and, as a result, the findings with respect to a given vehicle within the affected vehicles could not be extrapolated or generalized to other vehicles, similar to the facts and findings in Ernewein v. General Motors Canada Limited, [2005] 260 D.L.R. (4th ) 488 (B.C.C.A.).

[30] In Ernewein, the plaintiff sought to certify a class action because the defendant had negligently designed and manufactured certain trucks by positioning the gasoline tanks “outside the rails” of the frame of the truck. In that case, the defendant presented evidence, which was accepted by the court, that because the subject vehicles had incorporated a number of unique fuel system designs, it was not possible to generalize on how such vehicles would perform in particular crashes. The court stated that the ability to generalize or extrapolate from one vehicle to another is crucial to the existence of the common issue. The motion judge had ruled the evidence proposed by the plaintiff was inadmissible. Since there was no evidence to counter the opinion of the respondent’s expert, the plaintiff failed to establish a common issue.

[31] Here, the Appellant’s position is that the differences between the door latch mechanisms would not impact upon the performances of the door latches (with the exception of the Navigator).

[32] The motion judge determined that, because of the different latch systems in the proposed class, the Appellant had not provided the required evidentiary basis to show that the springs in the different latch systems in the affected vehicles “were of no consequence”. Accordingly, a resolution of this issue relating to the plaintiff’s vehicle does not resolve the question of whether other Affected Vehicles, having a different door latch mechanism, have a defective or unsafe door latch mechanism.

[33] The Appellant submits the motion judge erred in determining that “the resolution of this issue would not lead to a class wide finding of liability” instead of considering whether the issue relating to the springs on their own “would substantially advance the class members’ case.”

[34] We disagree with the Appellant’s submission. The motion judge had correctly referred to the test in para. 57 where he stated: “…the issue is whether the resolution of the proposed common issues is going to move the litigation forward to a sufficient degree as to justify the certification of the action as a class proceeding.” In our view, it was open for the motion judge, on the evidence, to determine that it would not have been possible to “generalize or extrapolate from one plaintiff’s vehicle to another.” Therefore, a resolution of the issue relating to the Appellant’s vehicle did not resolve the question of whether other affected vehicles having a different door latch mechanism have a defective or unsafe door latch mechanism. The proposed common issue was, therefore, not common to the proposed class members.

[35] The Appellant further submits that the motion judge should have considered that, if there were actual differences between the performances of the various models as impacted by the spring, the different vehicle models could be made into subclasses.

[36] Section 6 of the CPA allows for a formation of subclasses and provides that the court shall not refuse the certify a proceeding as a class proceeding solely on the basis that subclasses would be required where there are common issues not shared by all class members.

[37] The Appellant did not raise the issue of subclasses with the motion judge. The Appellant had maintained the position up to and including the hearing of the motion for certification that a single class was sufficient and presented no evidence in support of the creation or identification of subclasses. As a result, the Respondents’ witnesses were never given the opportunity to give evidence on the suitability or identity of such subclasses. Also, the Appellant has not proposed or identified the persons who could act as representative plaintiffs in respect of such subclasses and has put forward no evidence as to the suitability of such persons as representative plaintiffs.

[38] There is no merit in the Appellant’s submission that the motion judge erred in law because he failed to take the initiative, in the absence of any appropriate evidentiary base, to create multiple subclasses.

Standard of Care Issues

[39] The Appellant argues that the appropriate tolerance for a door latch mechanism is a common issue for all class members. Consequently, the Appellant submits that a determination of the generalized standard of care will be common for all class members and the determination of this issue will substantially impact upon all class members’ claims.

[40] With respect to questions of regulatory compliance, the motion judge held at paragraph 67(6):

As the components of the door latch mechanism vary as between various brands within the Affected Vehicles and from year to year for those brands, the failure, if any, of the door latch mechanism in the Plaintiff’s vehicle to comply with the regulatory standard does not determine whether other class members whose brands of different door latch mechanisms also have an unsafe door latch mechanism. Accordingly, there is no substantial common ingredient among all members of the class in relation to this proposed common issue.

[41] We find no error in this conclusion.

[42] The Appellant also takes issue with the motion judge’s statement that any failure to comply with a safety standard does not create “a cause of action”. The Appellant is correct that for an issue to be considered a common issue, the issue does not have to constitute “a cause of action”. Having said that, the Appellant, however, on these proposed common issues is still faced with the observation of the motion judge referred to above that, as different vehicles have different door latch systems, whatever the “common law minimum tolerance is for door latches”, this would still not clarify the issue as it is not common to all members.

The Damages Issues

[43] The first Damages issue proposed as a common issue was whether the plaintiff and members of the class were entitled to compensatory damages and, if so, the nature and amount of such damages.

[44] As neither Mr. Poulin nor any member of the putative class had paid for the cost of repair of the allegedly defective door latch mechanisms, the Appellant was asserting that the plaintiff's "reasonable cause of action", was arguably within the pure economic loss exception resulting from “the negligent supply of shoddy or defective goods where there is a danger to safety.” See: Hughes v. Sunbeam Corp. (Canada) Ltd. (2002), 61 O.R. (3d) 433(C.A.)

[45] The motion judge found that compensatory damages and causation had not been pleaded by the plaintiff and that the failure to plead damages and causation was fatal to the plaintiff in satisfying the common issues test on this issue.

[46] I agree with the Appellant that the motion judge was incorrect in finding that the plaintiff failed to plead damages and causation. In para. 41 of the Amended Statement of Claim, the Appellant alleged that, “he and the members of the class should be compensated with the cost of installing new non-defective door latches forthwith”. The Appellant also made reference to defective door latches numerous times in the Amended Statement of Claim.

[47] In Para. 40 of the motion judge’s Reasons, he had earlier concluded that the plaintiff had demonstrated a cause of action in negligence for pure economic loss within the exception set out in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85. Accordingly, the Appellant did demonstrate that this damage issue was a common issue. However, given that the proposed common issues on liability were not accepted, the fact that the Appellant has demonstrated a common issue only on the issue of damages would not merit a certification of the action.

[48] The same end result would also apply to the second Damages issue proposed. This proposed common issue was whether the members of the class were entitled to punitive and exemplary damages, and, if so the quantum of such damages. The motion judge held that as the plaintiff failed to plead an independent actionable tort, the claims for punitive and exemplary damages could not stand alone as a common issue.

[49] In summary, therefore, on the “proposed common issues” analysis, we are satisfied that the motion judge reviewed and understood the evidence of the parties on the issue of commonality and properly held that the Appellant had failed to satisfy the required onus that there were, in fact, issues that were common to the members of the proposed class.

Preferable Procedure Requirement

[50] S. 5(1)(d) of the CPA provides that a class proceeding be the preferable procedure for the resolution of the common issues - not that a class action be the preferable procedure for the resolution of the class members’ claims.

[51] The motion judge, after setting out a summary of the jurisprudence on this issue, summarized the Appellant’s arguments supporting a conclusion that the three objectives of judicial economy, access to justice and behaviour modification were met. The Respondents contended that the proposed class proceeding was, “in effect, a request to this court to usurp the role of Transport Canada, …” and, “essentially an attempt by plaintiff’s counsel to use the civil courts to mandate a recall of the Ford vehicles based on alleged non-compliance with relevant automobile safety regulations”.

[52] In response, the Appellant pointed out that a complaint to Transport Canada cannot result in compensation for class members and Transport Canada cannot issue a recall of the affected vehicles. As a result, a complaint to Transport Canada does not provide a method for resolving the common issues.

[53] The MVSA sets out a regime for, among other things, compliance by companies who manufacture, sell, and import vehicles with prescribed standards for the investigation of safety defects; and, for punishment of corporations who contravene the MVSA. Transport Canada is responsible for regulating vehicle safety in Canada. Its mandate includes researching vehicle safety, accident investigation, and testing new vehicles for compliance with the CMVSS 206. It also investigates complaints received from the public.

[54] The motion judge distinguished the facts in Reid v. Ford Motor Co. 2003 BCSC 1632, [2003] B.C.J. No. 2489 (B.C.S.C.) where there was evidence of customer complaints to Transport Canada over many years without any appropriate response. In our case, Transport Canada reported that its database showed no complaints from owners of Ford vehicles respecting the door latch mechanisms of the affected vehicles. Ford’s records also showed no complaints arising out of defective operation of the door latch mechanism on any of the affected vehicles in any accident.

[55] In summary, therefore, the evidentiary record before the motion judge demonstrated that:

(i) neither Mr. Poulin nor any class member had made any repair of the

allegedly defective door latch mechanism;

(ii) neither Transport Canada nor Ford had received any complaints regarding

the door latches of the vehicles in question;

(iii) there was a serious question as to whether Mr. Poulin had demonstrated that

there was, in fact, a safety issue to resolve;

(iv) under the MVSA, Transport Canada has the requisite expertise and is much

better equipped than the courts to resolve issues relating to compliance with

motor vehicle safety regulations;

(v) although, the MVSA does not include a scheme for compensating motor

vehicle owners for losses suffered, neither Mr. Poulin nor any class member

has suffered any actionable loss;

(vi) enforcement proceedings by Transport Canada could result in a true

“recall” of the vehicles which would insure that money is spent on actual

repairs;

(vii) investigation of alleged non-compliance can be conducted by Transport

Canada expeditiously and at far less expense to Mr. Poulin and the

members of the class than through a complicated and potentially protracted

class action;

(viii) the MVSA provides for possible criminal sanctions against wrongdoers,

which could have at least as significant a deterrent effect as a punitive

damages award.

In my view, before the extensive process of a class proceeding is engaged, it ought to be clear to the court that there is a real and subsisting group of persons who are desirous of having their common complaint (assuming there to be a common complaint) determined through that process. The scale and complexity of the class-action process ought not to be invoked at the behest, and for the benefit, of a single complainant.

The Representative Plaintiff and Litigation Plan Requirement

[56] Under this requirement, as the motion judge stated at para.78 of his reasons, the plaintiff must establish that he can fairly and adequately represent the interests of the class, that he has produced a workable plan of advancing the claim on behalf of the class and has notified the class members of the proceeding, and does not have an interest in conflict with other members of the class.

[57] In Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, 2001 2 S.C.R. 534 at para. 41, McLachlin, C.J.C. described the qualities of a class representative as follows:

The motivation of the representative, the competence of the representative’s counsel, and the capacity of the representative to bear any costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally). The proposed representative need not be “typical” of the class, nor the “best” possible representative. The court should be satisfied, however, that the proposed representative will vigorously and capably prosecute the interests of the class.

[58] The motion judge found that the evidentiary record demonstrated a significant lack of involvement by the proposed representative plaintiff, Mr. Poulin. He had a general lack of understanding or was unaware of the primary evidence in support of the certification motion; he had no input into, nor had he even reviewed the primary evidence relied on; he was unaware of what constituted a litigation plan; and, he did not know about the financial arrangements between his Canadian counsel and Motley Rice.

[59] The motion judge understandably had serious reservations as to whether the proposed representative plaintiff, Mr. Poulin, had the capacity to properly instruct counsel on behalf of the members of the putative class. However, he reserved his decision on that issue until after he had considered whether Mr. Poulin had produced a workable plan to advance the claims on behalf of the class as required under s. 5(1)(e)(ii) of the CPA.

[60] The motion judge then set out in detail the requirements of a proper litigation plan and fairly acknowledged that a number of the criticisms raised by the Respondents could be addressed by way of an amendment to the plan. The motion judge, however, listed 7 specific criticisms made by the Respondents to the proffered litigation plan that the motion judge determined were “substantive and strike at the very core of the proposed litigation plan”. He then concluded that Mr. Poulin failed to meet the requirement of a proper litigation plan as required by the CPA.

[61] The criticisms of the proffered litigation plan were:

(1) The plan of proceeding did not contain any information in the proposed notification system enabling members of the class to opt out of the class proceeding if they wished to commence individual lawsuits.

(2) The plan of proceeding did not indicate who would pay costs associated with the notification program.

(3) There was no methodology in the plan of proceeding dealing with any extra-provincial members of the class.

(4) There was no identification in the plan of proceeding as to investigations that have been conducted to date or would be necessary in the future.

(5) The plan of proceeding did not seek to separate common issues from individual issues or to anticipate claims of any potential sub-classes.

(6) The plan failed to plan for steps following a common issues trial, including the determination of any individual issues in the distribution of damages.

(7) The plan or proceeding did not set out the manner in which the defendants' costs would be paid in the event the plaintiff was unsuccessful.

[62] A representative plaintiff must have a general understanding of the class action procedure and the nature of the lawsuit in order to instruct counsel. His responsibilities to other class members are akin to that of a fiduciary. The motion judge correctly identified factors that militated against Mr. Poulin acting as the representative plaintiff.

[63] We find that the motion judge, in his findings of fact with regard to Mr. Poulin’s suitability as a representative plaintiff, made no palpable or overriding error.

[64] As it appeared that the proposed representative plaintiff had only a limited and negligible role in the litigation, it was proper for the motion judge to consider carefully and in some detail, as he did, the role of plaintiff’s counsel and the role of the U.S. law firm, Motley Rice.

[65] The motion judge stated in paras. 88 and 89:

88 One of the requirements to be found in a representative plaintiff who can fairly and adequately represent the interests of the class is that the representative plaintiff must have competent counsel. In this context, competent counsel entails the court having supervisory jurisdiction over lawyers who seek to represent the interests of litigants.

89 As noted above, the plaintiff's Canadian counsel have entered into an arrangement described as a "co-counsel association agreement" with the U.S. law firm, Motley, Rice, to prosecute the action as a class proceeding. This agreement provides, among other terms, for Motley Rice to supply "litigation support" and "guidance" and to fund the litigation costs herein. The nature of the "litigation support" and "guidance" is such that Canadian counsel must obtain the prior consent of Motley, Rice before incurring and paying any disbursement exceeding $2,500. In addition, there is provision for a fees split between Canadian counsel and Motley, Rice after reimbursement of all litigation expenses incurred by Motley, Rice. The fees allocation is 70% to Canadian counsel and 30% to Motley, Rice.

[66] The fact that Will Barristers was required to obtain approval from Motley Rice (who was funding the disbursements for the action) for any disbursements over $2,500 was quite properly, as the motion judge found, a significant concern in the context of the Mr. Poulin’s capacity to be a representative for a class proceeding.

[67] The motion judge was of the view that U.S. counsel were “acting more as underwriters for the litigation” as opposed to acting as “consultants”. This became an important consideration in the context of the proposed representative’s capacity to bear any costs that could be ordered against the representative plaintiff, given that Mr. Poulin’s retainer agreement with his counsel did not provide for any indemnity to him with respect to costs.

[68] We find no error in the motion judge’s findings or in his analysis of the role of the U.S. law firm and its relationship with plaintiff’s counsel of record and his concern about “the court having supervisory jurisdiction over lawyers who seek to represent the interests of the litigants”.

[69] We agree there is good reason to characterize Mr. Poulin, as “an unwitting pawn in this action, which was contrived and commenced by plaintiff’s counsel and his U.S. colleagues”.

[70] While Mr. Poulin concedes that the litigation plan was defective as initially presented on the certification motion and would require amendment, he submits that the absence of an appropriate litigation plan should not, on its own, be a factor defeating certification. The court has the power to grant leave to Mr. Poulin to revise the litigation plan or, the motion judge could have granted conditional certification, conditional on the plaintiff filing an amended litigation plan. However, Mr. Poulin did not make that request at the certification motion.

[71] The motion judge found that the Appellant failed to satisfy the criteria: i) under s. 5(1) (d) of the Act that the claims of the class members raise common issues of fact or law; ii) under ss.(e) that a class proceeding would be the preferable procedure; and, iii) under ss.(e) that the proffered representative plaintiff was acceptable. In these circumstances, it would not have made sense for the motion judge to consider granting leave to Mr. Poulin to submit an amended litigation plan or to consider granting a conditional certification.

[72] The appeal is dismissed. Counsel have advised us subsequent to our ruling that they have resolved the issue of costs.

“Cunningham, ACJ”_

CUNNINGHAM A.C.J.

__________________”Carnwath J”

CARNWATH J.

_________________”MacDougall J”

MACDOUGALL J.

DATE: October 22, 2008