Court File and Parties
COURT FILE NO.: CV-16-549639-00CP DATE: 2018/11/07 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MATTHEW ROBERT QUENNEVILLE, LUCIAN TAURO, MICHAEL JOSEPH PARE, THERESE H. GADOURY, AMY FITZGERALD, RENEE JAMES, AL-NOOR WISSANJI, JACK MASTROMATTEI, JAY MacDONALD and JUDITH ANNE BECKETT Plaintiffs – and – ROBERT BOSCH GmbH Defendant
COUNSEL: James Sayce and Robert Alfieri for the Plaintiffs Nicole Henderson for the Defendant Cheryl Woodin for Volkswagen Group Canada Inc., Volkswagen Group of America, Inc., Audi Canada Inc., Audi AG, Audi of America Inc., VW Credit Canada, Inc. and Volkswagen AG Glenn Zakaib for Porsche Cars Canada Ltd., Porsche Financial Services Canada, and Porsche Cars North America Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: October 30, 2018
PERELL, J.
REASONS FOR DECISION
[1] On July 16, 2018, pursuant to Class Proceedings Act, 1992, this action was certified as a class action against Robert Bosch GmbH (“Bosch”). [2]
[2] Under the Class Proceedings Act, 1992, subject to court order, Class Counsel must give notice of the certification of the action to the Class Members, and although the Plaintiffs and Bosch have not settled the form of the notice or the manner of giving notice, Class Counsel now seeks an order: (a) appointing RicePoint Administration Inc. ("RicePoint") as administrator for the purpose of disseminating the notice; and (b) allowing RicePoint to use an email address database that it is using in administering settlements in two related class actions; i.e. Quenneville v Volkswagen Group Canada, Inc. and Beckett v. Porsche.
[3] The defendants in the related class actions, who are non-parties in the immediate action, are: (a) Volkswagen Group Canada Inc., Volkswagen Group of America, Inc., Audi Canada Inc., Audi AG, Audi of America Inc., VW Credit Canada, Inc. and Volkswagen AG (collectively “VW”); and, (b) Porsche Cars Canada Ltd., Porsche Financial Services Canada, and Porsche Cars North America Inc. (collectively “Porsche”).
[4] VW and Porsche are car manufacturers, and among their products are diesel vehicles with 2.0 litre and 3.0 litre engines. In the related class actions, VW and Porsche settled a conspiracy claim that they had deceived government regulators and their own customers by selling diesel vehicles that had a deceptive emissions control device. The deceptive device was manufactured by Bosch, and in this separately commenced class action, it is alleged that Bosch is a co-conspirator with VW and Porsche.
[5] In the related class actions against VW and Porsche, the claims were settled without prejudice to the claims brought in this action against Bosch. The VW and Porsch actions settled in two phases, one phase involving the 2.0L vehicles and the other involving the 3.0L vehicles.
[6] In the related actions, RicePoint was appointed administrator, and it put together a mailing list of settlement claimants and possible settlement claimants. It compiled the mailing list primarily from VW’s and Porsche’s customer sales record information, but there was also personal contact information provided to RicePoint by Class Counsel and by Class Members some of whom initiated contact using the website established for the settlement.
[7] Under the settlement agreements, VW, Porsche, and RicePoint are required to safeguard any personal information and to use it solely for the purpose of evaluating and paying claims. Further, the settlement agreements provide that all information relating to the claims program is confidential and proprietary and shall not be disclosed, except in accordance with the terms of this settlement and as required by legal process.
[8] VW and Porsche do not oppose sharing the database, but VW and Porsche mildly question the timing of the release of the database, and, more importantly, they are concerned that since personal information is contained in the database, neither RicePoint or they contravene the relevant privacy protections of the Personal Information Protection and Electronic Documents Act, which state:
Definitions
2 (1) The definitions in this subsection apply in this Part.
personal information means information about an identifiable individual;
Collection without knowledge or consent
7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if
(e) the collection is made for the purpose of making a disclosure
(i) under subparagraph (3)(c.1)(i) or (d)(ii), or
(ii) that is required by law.
Use without knowledge or consent
(2) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may, without the knowledge or consent of the individual, use personal information only if
(d) it was collected under paragraph (1)(a), (b) or (e).
Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;
[9] Bosch does not necessarily oppose the use of the mailing lists compiled for the settlements of the related class actions, but in light of an imminent mediation to be conducted by the Honourable Stephen Goudge, it submits that it is premature to determine whether the already compiled mailing list should be used.
[10] There is some traction to Bosch’s argument, because the manner of giving notice is closely connected to the purpose for which the notice is being given and the manner of notice is dependent upon the particular circumstances of the case.
[11] With a mediation pending, the circumstances of the immediate case are in a state of uncertainty. If, for example, the mediation were to prove successful and the action against Bosch were to settle, I have no doubt that I would authorize the use of the already compiled mailing list to advise Class Members of their mutually exclusive rights: (a) to opt out of the action to pursue individual actions, or (b) to not opt out in order to oppose the approval of the settlement or to participate in the settlement if its approved.
[12] However, if, for the example, the pending mediation is unsuccessful, then the chief purpose of the notice would be just to advise class members of their right to opt out and to pursue their own claims against Bosch. In the immediate case, however, it is highly unlikely that a Class Member would opt out, and, thus, it is arguable that the manner of notice need not be as intense or as direct as email correspondence. It is, in any event, arguable that it is premature to decide the manner of notice now until the subject matter of the notice is resolved.
[13] With regard to these two examples, it may be said that, generally speaking, in class actions in which it is highly unlikely that class members will opt out (because individual claims would be prohibitively expensive), the most important notice is not the notice of certification, nor the notice of a settlement approval hearing, where objections are rare, but the notice to encourage class members to take up an approved settlement.
[14] Thus, there is some traction to Bosch’s argument that it is premature to decide the manner of notice. The question then because whether in the particular circumstances of the immediate case, there is enough traction to the prematurity argument that the court should defer making a decision about the matter of the use of the email mailing list.
[15] In my opinion, Bosch’s prematurity argument is not weighty enough to defer making a decision. Knowing what I know about this action, it seems inevitable that use will and should be made of the email address already compiled by RicePoint.
[16] I, therefore, grant the Plaintiffs’ motion.
[17] Because there will be a formal court order, RicePoint, VW, and Porsche will not be violating PIPEDA.
[18] PIPEDA provides exceptions to allow organizations to disclose personal information in various circumstances. Section 7(3)(c) allows an organization to disclose personal information without the knowledge or consent of the individual if the disclosure is required to comply with an order made by a court with jurisdiction to compel the production of information. In Royal Bank of Canada v. Trang, 2016 SCC 50, at para. 25, the Supreme Court of Canada noted that the purpose of this provision is to ensure legally required disclosures are not affected by PIPEDA.
[19] In Airia Brands Inc. v. Air Canada, 2016 ONSC 1371, the Court held that an order pursuant to the Class Proceedings Act, 1992 to distribute notice falls within the exceptions under PIPEDA.
[20] Order accordingly with costs in the cause.
Perell, J. Released: November 7, 2018
Footnotes
[1] S.O. 1992, c. 6.
[2] Quenneville v. Robert Bosch GmbH, 2018 ONSC 4378
[3] S.C. 2000, c 5.
[5] 2016 ONSC 1371