Court File and Parties
COURT FILE NO.: CV-16-559393-00CP DATE: 20181221 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN PANACCI Plaintiff
- and -
VOLKSWAGEN AKTIENGESELLSCHAFT, VOLKWAGEN GROUP CANADA INC., AUDI AKTIENGESELLSCHAFT, VW CREDIT CANADA INC., and AUDI CANADA INC. Defendants
Proceeding under the Class Proceedings Act, 1992
BEFORE: Justice Edward P. Belobaba
COUNSEL: Peter Griffin, Kirk Baert, Brian Kolenda, and James Sayce for the Plaintiff T.O. Buckley and John Hunter for the Defendants
HEARD: October 23, 2018
Certification Motion
[1] The timing chain mechanism plays a critical role in the operation of the modern automobile engine. If the timing chain malfunctions and the timing “skips”, the consequences can be dire – engine failure, loss of power and control, risk of serious injury or worse. If the malfunction in the timing chain system can be attributed to a common design or manufacturing problem, there may be the basis – as here – for a class action.
Background
[2] The plaintiff, Shawn Panacci, lives in Richmond Hill, Ontario. In 2011, he purchased a new VW Golf from a VW dealership. Five years later, in 2016, he began to experience serious mechanical problems in the operation of the vehicle - the car wouldn’t start or, if it started, the engine stalled and lost power while the plaintiff was driving. The VW service representative attributed the cause to slippage in the timing chain and the vehicle was repaired at a significant cost.
[3] Within days of the first repair, however, and while the plaintiff was driving, the engine failed again. This time, according to the VW repairman, the engine failure was “catastrophic” and the entire engine had to be replaced.
[4] The plaintiff believes that the problem in the design or manufacture of the vehicle’s timing system is a dangerous and wide-spread defect that can result in catastrophic engine failures with consequent financial losses, injuries or death. In August 2016, the plaintiff retained legal counsel and this action was commenced a month later.
[5] The plaintiff moves for an order certifying this action as a class proceeding pursuant to the Class Proceedings Act, [1] (the “CPA”) against the major players in the supply chain: Volkswagen Aktiengesellschaft and its wholly-owned subsidiary Audi Aktiengesellschaft (the designers and manufacturers of the VW and Audi vehicles in question), Volkswagen Group Canada Inc. and Audi Canada Inc. (the distributors in Canada) and VW Credit Canada Inc. (the leasing facility) - together, the “VW Defendants” or simply “VW”.
[6] The plaintiff claims that the alleged defective timing chain system can be found in the hundreds of thousands of VW vehicles that have EA888-type engines and were sold or leased in Canada between 2007 and 2013. More specifically, the plaintiff says the affected category of vehicles includes the following VW (and Audi) branded automobiles, all of which contain the EA888 engine:
- the 2008-2010 and 2012 Volkswagen Beetle; the 2009-2013 Volkswagen CC; the 2008-2012 Volkswagen EOS; the 2008-2012 Volkswagen Golf; the 2008-2012 Volkswagen GTI; the 2008-2012 Volkswagen Jetta; the 2008-2012 Volkswagen Passat; the 2008-2011 Volkswagen R32; the 2008-2010 Volkswagen Rabbit; the 2009-2012 Volkswagen Routan; the 2008-2012 Volkswagen Tiguan; the 2008-2013 Volkswagen Touareg; and the 2011 Volkswagen Touareg Hybrid;
- the 2008-2012 Audi A3; the 2008-2012 Audi A4; the 2008-2012 Audi A5; the 2010-2012 Audi A6; the 2012 Audi A7; the 2008-2012 Audi TT; the 2010-2012 Audi Q3; the 2009-2012 Audi Q5; and the 2012 Audi Q7 (“the Vehicles”).
[7] The focus of the complaint is the tensioner component in the timing chain system. As already noted, the tensioner plays a key role in the timing chain system which in turn is essential to the proper operation of the modern four-stroke “interference” engine.
[8] Each of the Vehicles in question contains the EA888 four-cylinder turbocharged gasoline engine. The EA888 is a “piston engine” which requires an interaction of cylinders and pistons. The cylinder is a circular cavity in which a piston moves up and down. Combustion occurs when a fuel-air mixture is introduced into the cylinder. The combustion causes the pistons to move up and down.
[9] The EA888 engine uses a metal timing chain that connects the crankshaft to the exhaust and intake camshafts. These shafts must be properly aligned, or “timed” with respect to each other as they rotate to ensure proper engine function. The valves of the EA888 engine, when in the fully open position, extend into an area which is intermittently shared with a piston. The pistons may only extend into a camshaft when a valve is fully closed. The camshaft must perfectly time the valve operation to avoid a powerful collision between a piston and a valve. When an engine “skips timing”, valves and pistons are powered into one another. If this happens, the damage to the engine and the attendant consequences, as already noted, can be catastrophic.
[10] The plaintiff in this action, which was filed several months after a similar class action was commenced in the U.S., alleges negligence, breach of warranty, unjust enrichment and waiver of tort. The plaintiff also makes a claim for punitive damages.
[11] At the time of hearing this motion, the defendants had not filed a statement of defence. Nor had they conducted any cross-examinations.
Post-hearing Developments
[12] Several weeks after I heard this motion for certification and before I began writing this decision, counsel for the defendants advised the court by letter that the U.S. class action had settled. As part of the American settlement, the VW defendants have agreed to provide a warranty extension to cover timing chain tensioner problems and reimburse past repair costs according to a pre-determined schedule.
[13] Counsel for the defendants in this action made clear in their letter to the court, as set out below, that the warranty extension for Canadian customers will “mirror the one already being offered in the United States” and that “the warranty extension and customer goodwill program will not require any customer to release any claim they may have against any of the defendants in these proceedings”:
We write to advise you that our clients have advised us that they will also implement in Canada an extended warranty program for vehicles with an EA888 engine that may be affected by issues relating to timing chain and timing chain tensioners. This warranty extension will mirror the one already being offered in the United States. In addition, our clients will extend a customer goodwill program to reimburse customers for all or a portion of their past repair costs related to the timing chain system as more fully elaborated in the attached program summary.
The warranty extension provided to Canadian customers will extend warranty coverage of affected vehicles' timing chain and timing change tensioner for a period of 10 years or 160,000 kilometres from the date the vehicle was placed into service, whichever occurs first. The warranty extension will be subject to the terms and conditions of the applicable New Vehicle Limited Warranty.
The warranty extension will also cover a percentage of the costs of repair or replacement of a damaged or failed engine caused directly by a failure of the vehicle's timing chain or timing chain tensioner, subject to time/mileage percentage limits and other exclusions.
Our clients are implementing this extended warranty and customer goodwill program for the purpose of customer satisfaction and to ensure there is no disparity between North American consumers. The warranty extension and customer goodwill program will not require any customer to release any claim they may have against any of the defendants in these proceedings.
[14] In a follow-up letter several days later, counsel for the defendants advised the court that they would consent to certification for settlement purposes. Counsel for the plaintiff resisted the suggestion that the motion before me should be transformed into a motion for certification for settlement purposes and insisted that I release my decision on the motion for certification as originally argued. In a telephone conference call, counsel for the plaintiffs repeated their request that I simply carry on and release my certification decision.
[15] I must accede to the plaintiff’s request. The only motion before me is the motion for certification. It is my understanding that the settlement of the U.S. action has now been judicially approved. In any event, I will decide the certification motion as initially presented and leave it to counsel to circle back if and when a Canadian-side settlement has been achieved.
Decision
[16] For the reasons that follow, the requirements set out in s. 5(1) of the CPA are satisfied and the motion for certification is granted, albeit with several adjustments as explained below.
[17] I begin by noting that there is more than some basis in fact for class-wide commonality. This evidentiary finding will expedite the certification analysis that will follow shortly.
The Commonality of the Alleged Defect
[18] As already noted, the timing chain tensioner is integral to the proper timing of the EA888 engine. The tensioner keeps the timing chain “tense” which prevents the timing chain from “skipping timing”.
[19] To establish the commonality of the alleged defect in the timing chain system, the plaintiff relies primarily on VW technical service bulletins that were provided to the VW dealerships and also on uncontroverted expert evidence.
[20] The VW technical service bulletin that provides ample evidence of class-wide commonality is dated July 23, 2012. This service bulletin describes the service “Condition” as “Rattling Noises after Start, Engine Doesn’t Start, Timing Chain Slipped.” Under the heading of Technical Background, the service bulletin says this:
Timing chain tension may be incorrect due to tensioner. As a result, the timing chain can skip and causing (sic) contact between the pistons and valves.
[21] This technical service bulletin notes that it applies to “all” models in the years “2008-2013”. This bulletin alone provides some evidence that the alleged timing system defect has class-wide commonality.
[22] The plaintiff also points to the uncontroverted expert opinions of Randall King, a mechanical design engineer specializing in the automotive sector, and Donald Jeffers, an automotive engineer specializing in forensic engineering. King and Jeffers obtained failed tensioners from the Vehicles and inspected the components.
[23] Dr. King has opined that “the tensioner contains a defect in its design and/or manufacture, in that it is likely that a considerable number of vehicles with this tensioner will experience early failures before the design life of the part”.
[24] In Mr. Jeffers’ opinion, the defect(s) alleged in the timing chain tensioner would likely affect EA888-equipped Vehicles in a common fashion, without requiring individual inquiries of the prospective class members, and further that the alleged defect(s) would put all EA888-equipped Vehicles at risk of engine malfunction with consequences ranging from monetary cost and inconvenience to personal safety issues.
[25] Volkswagen redesigned the timing chain tensioner in all Vehicles sometime after 2012. Hence, the proposed class action covers the time period from January 1, 2007 to December 31, 2012.
The Certification Analysis
(1) Causes of Action – Section 5(1)(a)
[26] There is no dispute about the applicable law. The test under s. 5(1)(a) of the CPA is the same as the test on a motion to strike for no reasonable cause of action: assuming the facts pleaded to be true, is it plain and obvious that the claim has no reasonable prospect of success?
[27] The plaintiff pleads four causes of action: negligence, breach of express and implied warranty, unjust enrichment and waiver of tort. I will consider each of these in turn.
[28] Negligence. The pleadings allege defects in the design and manufacture of the impugned timing chain mechanism and, in my view, disclose a cause of action in negligence.
[29] Ontario courts require most negligence claims seeking damages for economic loss to satisfy a "dangerous good" requirement. [2] This requirement has been pled and is satisfied in this case. The pleadings and the expert evidence on the motion assert that because of the pleaded defect, the Vehicles pose a risk of personal injury or death to Vehicle occupants and others on Canadian roads.
[30] I cannot conclude that the negligence claim has no chance of success and is doomed to fail.
[31] Breach of express and implied warranties. The pleadings also disclose a cause of action for breach of certain express and implied warranties. Causes of action in breach of warranty and breach of contract have repeatedly cleared the 5(1)(a) threshold in Ontario courts. [3]
[32] I note that in Kalra v. Mercedes Benz, [4] I concluded that the claim for breach of express and implied warranties did not meet the section 5(1)(a) threshold. However, in Kalra, the warranty explicitly limited the customer’s remedies to the repair or replacement of the impugned emission control system at the defendant’s expense. The warranty made clear that claims for diminution in value were prohibited by the warranty. [5] However, the applicable warranty in this matter arguably contains no such carve-out. As a result, I am inclined to agree with counsel for the plaintiff that the breach of warranty claims are not doomed to fail.
[33] Unjust enrichment. The defendants raise a number of issues: first, that unjust enrichment is not available in cases where the alleged transfer of value from the plaintiff to the defendant is indirect (i.e. from plaintiff to vendor to defendant manufacturer); and secondly, that there is a valid juristic reason for any enrichment, namely the contract of sale between the buyers and sellers.
[34] The Supreme Court dealt with both of these points in Pro-Sys v. Microsoft. [6] The Court noted that it was not plain and obvious that a claim in unjust enrichment can only be made out where the relationship between the plaintiff and the defendant is direct. [7] The Court also noted that where there are allegations that the contracts of sale unlawfully restricted the scope of warranty coverage (for example, because consumer purchases were protected by provincial consumer protection laws), “[t]he question whether the contracts are illegal and void should not be resolved at [the certification] stage of the proceedings.” [8]
[35] I find that the unjust enrichment claim is properly pleaded and clears the very low s. 5(1)(a) hurdle.
[36] Waiver of tort. In the alternative to damages in tort, the plaintiff pleads “waiver of tort” and claims an accounting, or other such restitutionary remedy, for the disgorgement of the revenues generated by the defendants as a result of the Vehicle sales. The Supreme Court, again in Pro-Sys, has held that waiver of tort may be pled as a claim or as a stand-alone remedy in a class proceeding. [9] And further, the Supreme Court has held that questions “about the consequences of identifying waiver of tort as an independent cause of action … should not be determined at the pleadings stage." [10]
[37] In short, each of the four causes of action as pleaded - negligence, breach of express and implied warranty, unjust enrichment and waiver of tort - clear the s. 5(1)(a) hurdle. None of them has no chance of success or is doomed to fail. Whether or to what extent these causes of action can support an analogous common issue is a separate question which will be addressed in due course below.
(2) Identifiable Class – Section 5(1)(b)
[38] The next hurdle, section 5(1)(b) of the CPA, requires an identifiable class of two or more persons. Here the proposed class is defined as “All persons in Canada who own, owned, lease or leased any Volkswagen and Audi-branded vehicle that was equipped with the EA888 engine between January 1, 2007 and December 31, 2012” except for certain Excluded Persons. [11]
[39] The class is objectively defined, reasonably identifiable and rationally connected to the proposed common issues. The class is not overly broad. The fact that not every class member will be successful does not matter. It is enough that every class member shares a common interest in having the common issues determined. [12]
[40] Given that the proposed class includes both owned and leased Vehicles that were purchased for commercial or consumer purposes, sub-classes may be needed as this action progresses.
[41] In any event, at the certification stage there is some basis in fact for the “identifiable class” requirement.
(3) Common Issues - Section 5(1)(c)
[42] Section 5(1)(c) of the CPA requires that the claims of class members raise common issues of fact or law that will move the litigation forward. For an issue to be a common issue, it must be a necessary and substantial ingredient to the resolution of each class member’s claim. There can still be significant individual issues after the determination of the common issues. [13] As the Court of Appeal re affirmed in Hodge v. Neinstein, [14] "[e]ven a significant level of difference among the class members does not preclude a finding of commonality. If material differences do emerge, the court can deal with them at that time." [15] The underlying commonality question is whether allowing a proceeding to continue as a class proceeding will avoid duplication of fact-finding or legal analysis. [16]
[43] I have already set out the general evidence of class-wide commonality as provided by the defendants’ technical service reports and the plaintiff’s expert opinions – recall above beginning at paragraph 19. The common issues, to the extent that they are otherwise certified, are significant components of each class member's claim and their resolution is likely to advance the litigation in a meaningful fashion.
[44] The six proposed common issues (“PCIs”) are attached in the Appendix. I have changed the numbering as initially suggested by the plaintiff in order to set out a more logical sequence. I will now consider each of the PCIs in turn.
[45] PCI (1) – Breach of a duty of care. Whether the defendant owed and breached a duty of care is a threshold question common to all class members. It does not depend on the evidence of individual class members. Determining a duty of care requires a review of the evidence at bar and the duties established by law. The issues of duty and breach “are a substantial and necessary factual link in the chain of proof leading to liability for every member of the class.” [17]
[46] The duty and breach issues are certified as a common issue.
[47] PCI (2) – Breach of express and implied warranties. PCI (2) asks whether any express or implied warranties were breached by the defendants.
[48] The plaintiff relies on one version of the New Vehicle Limited Warranty and the Powertrain Limited Warranty but there is no suggestion that other versions differ in any way. The defendants do not argue any lack of commonality in the warranty documents that apply to said Vehicles. Indeed, just before this decision was released, the defendants advised the court that, in essence, they would consent to PCI (2).
[49] As already noted, given the need to differentiate between commercial and non-commercial (i.e. consumer) class members vis-à-vis the application of the non-waivable implied warranties provided under provincial consumer protection law, there may well be a need for sub-classes. But this is a matter that can be addressed in due course as this action proceeds.
[50] At this point, it is sufficient to note that PCI (2) should be certified as a common issue.
[51] PCI (3) – Unjust enrichment. PCI (3) asks whether the conduct of Defendants resulted in unjust enrichment.
[52] The plaintiff is right to say that at least until the Supreme Court’s decision in Pro-Sys v. Microsoft, [18] unjust enrichment as a proposed common issue has been certified without too much thought. In Pro-Sys, however, the Supreme Court reminded class action judges about the need to show “proof of loss” on a class-wide basis if the proposed common issue is loss-related or has a loss-related component. The plaintiff must provide a plausible expert methodology that is capable of measuring the loss sustained by the class members on a class-wide basis. It is not necessary that the methodology establish the actual loss sustained, just that a sufficiently credible or plausible methodology is capable of doing so. [19] The expert methodology must offer a realistic prospect of establishing loss on a class-wide basis. [20]
[53] Loss or deprivation is a constituent element of the unjust enrichment claim. [21] If, as here, the plaintiff proposes a common issue asking about unjust enrichment, he is obliged to provide a plausible expert methodology that is capable of measuring the deprivation sustained by the class members on a class-wide basis. He has not done so.
[54] PCI (3) is not certified as a common issue.
[55] PCI (4) – Waiver of tort. PCI (4) asks about the defendants’ liability on the basis of waiver of tort, and if so the amount of this monetary liability.
[56] The plaintiff wisely revised PCI (1) to limit the so-called negligence question to duty of care and breach of a duty of care. PCI (1) does not ask about the damages or loss sustained (an element of the negligence claim) because the plaintiff did not provide the class-wide proof of loss methodology required by Pro-Sys.
[57] PCI (1), relating to the negligence question, thus stops short of establishing liability. Given that liability in tort will not be established when PCI (1) is answered, PCI (4) that purports to ask about “waiver of tort” is not certifiable. As Perell J. noted in Wise v Abbott Laboratories, [22] there must be “a predicate wrongdoing”, that is, a finding of liability, to support a claim of waiver of tort. Given the limited reach of PCI (1), there is no predicate finding of liability in tort. The academic commentary is also clear that the “sine qua non” of the waiver of tort remedy is a prerequisite finding that a tort (which must include some proof of loss) has been committed. [23]
[58] PCI (4) is not certified as common issue.
[59] PCI (5) – Aggregate damages. PCI (5) asks if one or more of the common issues are answered affirmatively, can the amount of damages payable by the defendants be determined on an aggregate basis, and if so, in what amount?
[60] Section 24 of the CPA permits the court to determine the aggregate or part of the defendant's monetary liability to class members where it can reasonably be determined without proof by individual class members. However, aggregate damages cannot be used to establish proof of loss where proof of loss is an essential element of proving liability. [24]
[61] The only PCI that can establish liability and, at least in theory, attract an aggregate damages approach is PCI (2) that asks about the breach of express or implied warranties. But damages incurred in the context of this particular breach cannot be reasonably determined without individualized assessments. As the plaintiff’s own expert Mr. Jeffers explained, the impact of a “defective” timing chain tensioner can range from nothing more than engine noise to total engine failure:
The extent of risk ranges from a loose and noisy timing chain, to bent valves and with piston-valve interference, to total engine mechanical failure…
[62] In other words, class members that own or have leased one of the Vehicles in question may have very different loss-incurred scenarios - from no damage to complete engine replacement or worse. The plaintiff provided expert economic evidence setting out a variety of theories to measure such aggregate loss. However, I must agree with the defendants that this expert economic evidence does not take into account the individual nature of damages that may be suffered by class members or the fact that the nature and extent of actual damage sustained may vary considerably and will require individualized assessments.
[63] If I am wrong about the need for individualized assessments, I would still in my discretion defer the aggregate damages question to the judge that decides the common issues. As the Supreme Court noted in Pro‑Sys:
The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made. The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge. [Emphasis added.] [25]
[64] This is an approach that makes good sense on the facts herein. PCI (4) is not certified as a common issue.
[65] PCI (6) – The availability and amount of punitive damages. The availability of punitive damages is a determination about the defendant’s conduct that can be made without evidence from individual class members. [26] However, as the Supreme Court made clear in Whiten, [27] punitive damages are only awarded if compensatory damages are insufficient to punish the defendant. [28] Here, the amount of the punitive damages award, if such an award is made, cannot be quantified until the completion of the individual assessments.
[66] Thus the first part of PCI (6) that asks about the availability of punitive damages is certified, but not the second part that asks about the amount.
(4) Preferable Procedure – S. 5(1)(d)
[67] Section 5(1)(d) of the CPA requires the plaintiff to provide some basis in fact that a class proceeding is the “preferable procedure for the resolution of the common issues”. The plaintiff must provide some evidence that: (1) a class proceeding would be a fair, efficient and manageable method of advancing the claim, and (2) that it would be preferable to any other reasonably available means of resolving the class members’ claims. The preferability analysis must be conducted through the lens of the three principal goals of class actions, access to justice, judicial economy and behavior modification. [29]
[68] I agree with the plaintiff that there is no other preferable manner in which the claims of the class members can be resolved. The only alternative to a class action to determine the proposed common issues would be tens of thousands of duplicative individual actions. Certification of a class proceeding in this case would advance the three goals of class actions: access to justice, judicial economy and behaviour modification. [30]
[69] The preferability requirement is satisfied.
(5) Suitable Representative Plaintiff – Section 5(1)(e)
[70] The final requirement for certification is a representative plaintiff who would adequately and fairly represent the interests of the class, and who does not have a conflict of interest with respect to the common issues.
[71] The proposed representative plaintiff, Shawn Panacci, owned one of the Vehicles until the alleged defect destroyed his engine. He has sworn to vigorously prosecute the action in favour of the class. He has filed evidence to confirm that he understands the nature of the proceedings and can provide instruction to counsel. He has also demonstrated his commitment to prosecuting this action by keeping himself informed of the steps in litigation and helping prepare affidavits and other materials.
[72] Mr. Panacci has no conflicts of interest with any of the other class members. He has produced a litigation plan that sets out a workable method of advancing the proceeding on behalf of the class. Some changes will have to be made as and when sub-classes are added but at this stage the litigation plan is adequate.
Disposition
[73] The motion for certification is granted. The four causes of action as pleaded are approved; as are the class definition and the representative plaintiff. However, only three of the six proposed common issues are certified: duty of care and breach of a duty of care, breach of express and implied warranties, and the availability of punitive damages.
[74] Counsel shall prepare a draft order in the form contemplated by s. 8 of the CPA.
[75] If the parties are unable to agree on costs, I would be pleased to receive brief written submissions from the plaintiff within 21 days and from the defendants within 21 days thereafter.
[76] I am obliged to counsel for their assistance.
Justice Edward P. Belobaba
Date: December 21, 2018
Appendix
Proposed Amended Common Issues
[PCIs (1), (2) and the first part of (6) are certified; PCIs (3), (4), (5) and the last part of (6) as italicized and underlined are not certified.]
(1) With respect to the engineering, design, development, research, manufacture, marketing, distribution and sale of the Vehicles: (i) Do the defendants, or any of them, owe a duty of care to the Class? (ii) If so, what is the standard of care applicable to the defendants, or any of them? (iii) Did the defendants, or any of them, breach the applicable standard of care? If so, when and how?
(2) Did the defendants, or any of them, breach any express or implied conditions or warranties of fitness, merchantability and quality of the Vehicles?
(3) Has the conduct of the defendants resulted in an unjust enrichment to the defendants, or any of them?
(4) By virtue of waiver of tort, are the defendants, or any of them, liable to account to any of the plaintiff and class members on a restitutionary basis, for any part of the proceeds of the sale of the Vehicles? If so, in what amount and for whose benefit is such an accounting to be made?
(5) If one or more of the above common issues are answered affirmatively, can the amount of damages payable by the defendants, or any of them, be determined on an aggregate basis? If so, in what amount and who should pay such damages to the class?
(6) Should punitive and/or aggravated damages be awarded against the defendants, or any of them? If so, in what amount?
[1] Class Proceedings Act, 1992, S.O. 1992, c. 6. [2] Arora v. Whirlpool Canada LP, 2013 ONCA 657 at paras. 52. [3] See, for example, Griffin v. Dell Canada Inc., 2009 ONSC 3557, [2009] O.J. No. 418 (S.C.J.) at para. 58. [4] Kalra v. Mercedes Benz, 2017 ONSC 3795. [5] Ibid. at paras. 24-27. [6] Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57. [7] Ibid., at para. 87. [8] Ibid., at para. 88. [9] Ibid., at paras. 93-97. [10] Ibid. at para. 97. [11] “Excluded Persons” are defined as (i) the defendants and their officers and directors; (ii) the authorized motor vehicle dealers of the defendants and the officers and directors of those dealers; and, (iii) the heirs, successors and assigns of the persons described in the subparagraphs (i) and (ii). [12] Ontario v. Mayotte, 2010 ONSC 3765 at para. 66; and see Crisante v. DePuy Orthopaedics Inc., 2013 ONSC 5186 at para. 37: "[t]he requirement that the class be objectively defined may sometimes result in a class that includes individuals who may ultimately not have a claim against the defendants. This is not fatal to certification.” Also see Frohlinger v. Nortel Networks Corp., 2007 ONSC 696, [2007] O.J. No. 148 (S.C.J.) at para. 28, per Justice Winkler (as he was then): "[i]t must be remembered that the CPA is a procedural statute meant to provide a mechanism for the resolution of mass claims. As such, certification is a procedural step in the litigation and not a substantive determination. The statute must be interpreted liberally and a rigid approach to class definition based on concerns about over-inclusiveness may well defeat its purposes." [13] Hollick v. Toronto (City), 2001 SCC 68 at para. 18. [14] Hodge v. Neinstein, 2017 ONCA 494. [15] Ibid. at para. 114. [16] Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, at para. 39; Pro-Sys, supra, note 6, at para. 108. It is also important to remember that s. 6 of the CPA provides that the court "shall not refuse to certify a proceeding as a class proceeding" by reason of "a claim for damages that would require individual assessments." [17] Jones v. Zimmer GMBH, 2013 BCCA 21 at para. 36. [18] See for example, Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 at paras. 44-46; Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444 at para. 75. [19] Pro-Sys, supra, note 6, at para. 115. [20] Ibid. at para. 118. Also see Kalra, supra, note 4, at para. 48. [21] Ewert v. Nippon Yusen, 2017 BCSC 2357, per Myers J. (who had decided Pro-Sys at first instance) at para. 9. [22] Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 at para 400. [23] Goff and Jones, The Law of Restitution, (6th ed.) at 775; Maddaugh and McCamus, The Law of Restitution, (Loose-leaf ed.) at 24.1. [24] Pro-Sys, supra, note 6, at paras. 128 and 135. [25] Ibid. at para. 134. [26] Rumley v. British Columbia, 2001 SCC 69 at para. 34. [27] Whiten v. Pilot Insurance Co., 2002 SCC 18. [28] Ibid. at para. 94. [29] Hollick, supra, note 13, at para. 2; Hodge, supra, note 14, at para. 148. [30] Hollick, supra, note 13, at para. 27.