Court File and Parties
COURT FILE NO.: CV-16-549639-00CP DATE: 20180716
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 for the Plaintiffs Nicole Henderson for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: July 16, 2018
PERELL, J.
Reasons for Decision
[1] This is a motion on consent for certification of this action as a class proceeding under the Class Proceedings Act, 1992 [^1].
[2] In September 2015 [^2], in a proposed class action under the Class Proceedings Act, 1992 [^3], the Plaintiffs [^4] sued 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 “Volkswagen”) for installing emissions measurement software in diesel engine automobiles sold in Canada in an alleged conspiracy to violate emissions standards.
[3] On March 29, 2016, the Plaintiffs brought the action now before the court against Volkswagen’s alleged co-conspirator, Robert Bosch GmbH (“Bosch”).
[4] This class proceeding alleges that Bosch was partnered with Volkswagen, Audi, and Porsche. It is alleged that Bosch designed the illegal software that deceived government regulators and allowed the car manufacturers to market diesel automobiles as clean, when in fact, the vehicles emitted harmful chemicals at dozens of times over the statutory limit.
[5] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.
[6] That the cause of action criterion is satisfied in the case at bar was determined in 2017 as a result of a Rule 21 motion brought by Bosch [^5].
[7] I am satisfied that the remaining four certification criteria are satisfied.
[8] Accordingly, I order as follows.
Order
The action is certified as a class proceeding pursuant to the Class Proceedings Act, 1992.
The class is defined as:
All persons in Canada, except for the Excluded Persons, who own, owned, lease or leased one of the Vehicles.
"Vehicles" means the following diesel powered vehicles:
(a) On September 15, 2015:
MODEL MODEL YEARS: INCLUSIVE Volkswagen Jetta 2009-2015 Volkswagen Jetta Wagon 2009 Volkswagen Golf 2010-2013, 2015 Volkswagen Passat 2012-2015 Volkswagen Beetle 2013-2015 Volkswagen Golf Wagon 2010-2014 Volkswagen Golf Sportswagon 2015 Audi A3 2010-2013, 2015 and,
(b) on November 2, 2015:
MODEL MODEL YEARS: INCLUSIVE Audi A6, A7, A8, A8L and Q5 2016 Porsche Cayenne 2015 Volkswagen Touareg 2014 and,
(c) on November 19, 2015:
MODEL MODEL YEARS: INCLUSIVE Audi A6, A7, A8, A8L, Q5, Q7 2009-2015 Porsche Cayenne 2013-2014, 2016 VW Touareg 2009-2013, 2015-2016 "Excluded Persons" means:
(i) the Defendants and their officers and directors; (ii) the Defendants in Quenneville v. Volkswagen, Court File No. CV-15537029-CP and their officers and directors; (iii) Audi, VW and Porsche authorized motor vehicle dealers and the officers and directors of those dealers; and, (iv) the heirs, successors and assigns of the persons described in subparagraphs (i) and (ii); and, (v) putative class members in the parallel Quebec action against the Defendants styled Equiterre c. Robert Bosch LLC et Robert Bosch GMBH bearing Quebec Superior Court File No 500-06-000840-179.
The causes of action asserted against the Defendants are predominant purpose conspiracy, unlawful means conspiracy and waiver of tort.
The common issues are:
(a) Do some or all of the Vehicles contain a Defeat Device? If so, which ones? (b) Did the Defendants conspire with Volkswagen in connection with the alleged Defeat Devices, either: (i) For the predominant purpose of injuring class members; or (ii) to act unlawfully in a manner directed towards class members, in circumstances where the defendants knew or ought to have known that injury to class members was likely to result? (c) If the answer to question (b) is yes, over what period of time did the conspiracy take place? (d) Does the Defendants' conduct merit an award of punitive damages? (e) If one or more of the above common issues are answered affirmatively, can the amount of damages payable by the defendants be determined on an aggregate basis? (f) What is the Defendants' several proportion of liability to class members? (g) To what extent have members of the class already been compensated in respect of the several liabilities of the defendants, through the settlement of the parallel class action against Volkswagen? (h) By virtue of waiver of tort, are Class Members entitled to claim an accounting and/or a disgorgement of revenues on a restitutionary basis from the Defendants?
If the answer to common issue (d) is "yes", the question of whether an award of punitive damages should be made against the Defendants and, if so, in what amount, shall be considered after the Court's determination of the individual issues.
If the answer to common issue (h) is "yes", the question of in what amount and for whose benefit is such an accounting and/or disgorgement to be made, shall be considered after the Court's determination of the common issues.
Matthew Robert Quenneville, Luciano Tauro, Michael Joseph Pare, Therese H. Gadoury, Amy Fitzgerald, Renee James, Al-Noor Wissanji, Jack Mastromattei, Jay MacDonald and Judith Anne Beckett are appointed as the representative plaintiffs for the Class.
Koskie Minsky LLP, Siskinds LLP, Camp Fiorante Mogerman LLP, Branch McMaster LLP, McKenzie Lake LLP, Strosberg, Sutts, Sasso LLP, Roy O'Connor LLP and Rochon Genova LLP are appointed class counsel.
The notice to Class Members that this proceeding has been certified as a class proceeding and who shall bear the costs of such notice shall be dealt with by a future order of the Court.
No other proceeding may be commenced in Ontario in respect of the subject matter of this action as against the Defendants Robert Bosch LLC and Robert Bosch GMBH without leave of this court.
Robert Bosch LLC is hereby added as a defendant to this class proceeding and style of cause is hereby amended accordingly.
The issue of costs of the certification motion shall be dealt with by further order of the court.
Perell, J. Released: July 16, 2018