COURT FILE NO.: CV-16-00543833-00CP
DATE: 2019/02/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John M. mcintosh
Plaintiff
- and -
TAKATA CORPORATION, TK HOLDINGS INC., TOYOTA MOTOR CORPORATION, TOYOTA MOTOR MANUFACTURING CANADA INC., and TOYOTA MOTOR MANUFACTURING, INDIANA, INC.
Defendants
Sabrina Lombardi for the Plaintiff
Trevor A. Courtis for the Defendants, Takata Corporation, and T.K. Holdings Inc.
Peter F.C. Howard and Samaneh Hosseini for the Defendants, Toyota Motor Corporation, Toyota Motor Manufacturing Canada Inc., and Toyota Motor Manufacturing, Indiana, Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: February 22, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Pursuant to the Class Proceedings Act, 1992[^1] John McIntosh sues Takata Corporation, TK Holdings Inc., Toyota Motor Corporation, Toyota Motor Manufacturing Canada Inc., and Toyota Motor Manufacturing, Indiana, Inc. (collectively “Toyota”).
[2] The action has been dismissed as against Takata Corporation and T.K. Holdings.
[3] Mr. McIntosh brings a motion: (a) for certification of the action against Toyota for settlement purposes; (b) for approval of the notice plan and the notice of the settlement approval hearing; (c) for the appointment of Settlement Notice and Claims Administrator; and (d) for the appointment of the Outreach Administrator.
B. Factual Background
[4] Takata Corporation and TK Holdings Inc. were automobile parts manufacturers and manufactured air-bags to be installed in vehicles. Six separate Transport Canada Recalls were issued regarding the Subject Vehicles manufactured by Toyota, the well-known car manufacturer, from a period of April 11, 2013 through March 2, 2016, impacting 1,077,744 vehicles across Canada.
[5] On November 7, 2014, Mr. McIntosh’s commenced an action against Takata Corporation, T.K. Holdings Inc., and Toyota, by way of Notice of Action. The Statement of Claim was filed on December 5, 2015. The Statement of Claim was subsequently amended with the most recent iteration of the pleading being the Second Amended Fresh as Amended Statement of Claim. Mr. McIntosh alleges that the Defendants were negligent in the engineering, designing, development, testing, and manufacturing of the Takata airbag inflators in the Vehicles.
[6] Class Counsel is comprised of several firms working cooperatively. Those firms include the following: Strosberg Sasso Sutts LLP, , McKenzie Lake Lawyers LLP, Rochon Genova LLP, Kim Spencer McPhee Barristers P.C., Merchant Law Group LLP, Garcha & Company and Consumer Law Group P.C.
[7] A related class proceeding was also commenced in Quebec. Counsel in the Quebec Action and Class Counsel are working cooperatively.
[8] Mr. McIntosh brings his action on behalf of the following Class:
All persons and entities resident in Canada, excluding Quebec Class Members, who own, owned, lease or leased a Subject Vehicle as listed in Exhibit F to the Settlement Agreement, as of the Takata Airbag Inflator Recall(s) dates, but shall not include: (a) Toyota, their affiliates and affiliates’ officers, and directors; their distributors and distributors’ officers, and directors; and Toyota Dealers and Toyota Dealers’ officers and directors; (b) Class Counsel; (c) counsel for Toyota; and (d) persons or entities who or which timely and properly exclude themselves from the Class.
[9] The proposed National Class Members includes all persons resident in Canada, other than residents of Quebec. Certification of the complementary class will be sought in Quebec.
[10] On February 21, 2019, the parties signed a Settlement Agreement to settle the claims of individuals across Canada who own, owned, lease or leased a Subject Vehicle as of the Takata Airbag Inflator Recall(s) dates. Pursuant to the Settlement, the subject vehicles will be equipped with replacement Airbags and the settlement will resolve all past, present, and future claims for the alleged Economic Loss of the National Class Members in any way arising out of or relating to the ownership, resale, purchase, acquisition and/or finance and/or lease of the Subject Vehicles.
[11] One of the key features of the Settlement Agreement is the extensive Outreach Program to be undertaken to directly contact all National Class Members who have not yet received the Recall Remedy, to advise them of the availability of the Recall Remedy, as well as direct them to information about the other Settlement benefits.
[12] For the purposes of the settlement, Mr. McIntosh proposes the following common issue:
Have the Plaintiff and National Class Members suffered Alleged Economic Loss arising from the design, manufacture, marketing, sale and distribution of vehicles that contain or contained Takata phase stabilized ammonium nitrate (“PSAN”) inflators in their driver or passenger front airbags that have been recalled or will be recalled or contain a desiccant and that may be subject to a recall by Transport Canada (i.e. the Subject Vehicles) and, if so, what Alleged Economic Loss has been sustained?
[13] Pursuant to the settlement, the parties have agreed on the form and content of the Notice to be given to Class Members and they have agreed on the plan for disseminating the Notice. The proposed Class Notice is made up of: (i) Direct Mail Notice; (ii) a Short Form Notice; and (iii) a Long Form Notice along with, among other things, newspaper publications and internet advertising.
[14] Under the Settlement Agreement, the parties agree to the appointment of Crawford Class Action Services as the Settlement Notice and Claims Administrator to, among other things, disseminate the Notice and to receive opt-out forms and/or written objections from any National Class Members opposed to the Settlement Agreement. Crawford Class Action Services has consented to this appointment.
[15] The costs and fees of the Settlement Notice and Claims Administrator are payable pursuant to the Settlement Agreement by the Defendants.
[16] The parties agree to the appointment of Stericycle as the Settlement Outreach Administrator to, among other things, implement and administer the Settlement Outreach Program. Stericycle has consented to this appointment and has extensive experience performing outreach services.
[17] The costs and fees of the Settlement Outreach Administrator are payable by the Defendants pursuant to the Settlement Agreement.
C. Analysis and Conclusion
[18] The court is required to certify the action as a class proceeding where the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (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.
[19] The fact that an action is certified on consent for settlement purposes does not dispense with the need to meet the certification criteria but they may be less rigorously applied in a settlement context.[^2]
[20] In the present case, I am satisfied that all of the criteria for certification have been satisfied and that the incidental relief should be granted.
[21] Accordingly, I grant Mr. McIntosh’s motion.
Perell, J.
Released: February 25, 2019
COURT FILE NO.: CV-16-00543833-00CP
DATE: 2019/02/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John mcintosh
Plaintiff
- and -
TAKATA CORPORATION, TK HOLDINGS INC., TOYOTA MOTOR CORPORATION, TOYOTA MOTOR MANUFACTURING CANADA INC., and TOYOTA MOTOR MANUFACTURING, INDIANA, INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: February 25, 2019
[^1]: S.O. 1992, c.6.
[^2]: Osmun v. Cadbury Adams Canada Inc., [2009] O.J. No. 5566 at para. 21 (S.C.J.).