Court File and Parties

Court File No.: CV-16-00543767-00CP Date: 2019/05/15 Ontario Superior Court of Justice

Between: RICK A. DES-ROSIERS and STEPHEN KOMINAR Plaintiffs

• and - TAKATA CORPORATION, TK HOLDINGS INC., HONDA MOTOR CO. LTD., HONDA OF AMERICA MANUFACTURING, INC. and HONDA CANADA Defendants

Counsel: Sabrina Lombardi for the Plaintiffs David Kent, Teresa Dufort, and Calie Adamson for the Defendants Honda Motor Co. Ltd., Honda of America Manufacturing, Inc. and Honda Canada

Proceeding under the Class Proceedings Act, 1992

Heard: May 14, 2019

Perell, J.

Reasons for Decision

[1] Pursuant to the Class Proceedings Act, 1992, Rick A. Des-Rosiers and Stephen Kominar sue Takata Corporation, TK Holdings Inc., Honda Motor Co. Ltd., Honda of America Manufacturing, Inc. and Honda Canada (collectively “Honda”).

[2] The action arose after Transport Canada issued approximately fifteen recall notices with respect to certain vehicles (the “Subject Vehicles”) manufactured and sold by Honda that had defective airbags. Approximately 1.52 million vehicles across Canada were recalled. The Plaintiffs allege that Honda was negligent in installing and selling vehicles with a defective Takata PSAN inflator.

[3] The action has been dismissed as against Takata Corporation and T.K. Holdings.

[4] With the consent of Honda, the Plaintiffs bring a motion for an Order: (a) approving the certification of this action for the purpose of settlement; (b) appointing Rick A. Des-Rosiers and Stephen Kominar as the representative plaintiffs for the Class Members; (c) approving the form, content and method of dissemination of the Notice of Certification; and (d) approving the Opt Out and objection procedures and deadlines.

[5] On November 7, 2014, followed by a Statement of Claim issued on December 5, 2014, the Plaintiffs commenced this action. Class Counsel is comprised of several firms. Those firms include the following: Strosberg Sasso Sutts LLP, McKenzie Lake Lawyers LLP, Rochon Genova LLP, Kim Spencer McPhee P.C., Merchant Law Group LLP, Garcha & Company and Consumer Law Group P.C.

[6] Related class proceeding was also commenced in Quebec, Saskatchewan, and British Columbia. Counsel in all of the actions are working co-operatively. Separate approvals of the settlement will be sought in Quebec and Recognition and Enforcement orders will be sought in Saskatchewan and British Columbia.

[7] The Plaintiffs bring this action on behalf of the following Class:

All persons resident in Canada, including Automotive Recyclers, who: (a) owned or leased a Subject Vehicle on the Final Approval Date; or (b) formerly owned or leased a Subject Vehicle, but after being notified of a Recall and before the Final Approval Date, ceased to do so.

[8] The proposed Class Members include all persons resident in Canada, other than residents of Quebec. Certification of a complementary class will be sought in Quebec, ensuring consistency across Canada and amongst Class Members.

[9] On January 14, 2019, the parties signed a Settlement Agreement. The Agreement was amended on May 3, 2019. The purpose of the settlement is to resolve the litigation relating to the faulty Takata PSAN airbag inflators. The Parties intend that the Settlement Agreement will resolve all past, present, and future claims for of 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, but excluding any claims for bodily injury and its sequelae arising from the deployment of an inflator in a Subject Vehicle that is subject to a Recall.

[10] For the purposes of the settlement, the Plaintiffs propose the following common issue: “whether some or all of the Subject Vehicles contain a Takata PSAN Inflator that is subject of a Recall.”

[11] As part of the Settlement Agreement, the Parties have agreed to the form and content of the Notice and the manner of distribution. The notice will be distributed through a combination of (a) Direct Mailed Notice (regular mail and email); (b) Settlement website; (c) Dealer Bulletin; (d) Press Release and (e) Settlement phone number (toll-free).

[12] The Direct Notice outlines that a Settlement has been reached in this certified class action, and that subject to Court Approval of that Settlement, Class Members may be entitled to make claims for compensation and other benefits. The Direct Notice also advises Class Members of their right to object/participate in the Settlement Approval Hearings, their right to opt-out and where they can obtain further information regarding these matters (i.e. the Honda Administrator, the Settlement Website and the Long-Form Notice).

[13] The Long Form Notice outlines the following for Class Members: (a) a description of the nature of the action and the history of the litigation; (b) the certification/authorization of the Class for settlement purposes; (c) the details of the Settlement Agreement including information on the identity of Class Members and how the proposed Settlement will provide relief to Class Members; (d) how to get information about, and forms for, making claims for out-of-pocket expense reimbursements; (e) a description of the Class Members' rights to Opt-Out of the Settlement, including the Opt-Out Deadline, and the right to Object to the Settlement, including the Objection Deadline and the procedure for exercising this right; and (f) the date and location of the settlement approval hearings.

[14] The Notice, and Notice Plan are separate from an Outreach Program, which predates the Settlement and that will be continued pursuant to the Settlement. Unlike the Notice, the Outreach Program deals with alerting Class Members to the Recalls, and the Recall Remedy, and is designed to address the safety issues associated with the Takata PSAN Inflators.

[15] 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.

[16] 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. [Osmun v. Cadbury Adams Canada Inc., [2009] O.J. No. 5566 at para. 21 (S.C.J.)].

[17] 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.

[18] Accordingly, I grant the Plaintiffs’ motion.

Perell, J.

Released: May 15, 2019

Footnotes

[2] The Statement of Claim was amended on January 12, 2016 and again on March 31, 2016.