COURT FILE NO.: CV-14-497479-00CP
DATE: 2019/10/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SCOTT HARRIS
Plaintiff
- and -
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.
Defendants
Margaret L. Waddell and Tina Q. Yang for the Plaintiff
Peter J. Pliszka and Kimberly E. Potter for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: October 10, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiff, Peter Scott Harris, sues Bayerische Motoren Werke Aktiengesellschaft and BMW Canada Inc. (collectively “BMW”).
[2] BMW brings a motion for an order striking out paragraphs 19, 20, 21, 22, 23, 24, 70, and Exhibits "G", "H", "I", "J", "XX", and "YY" of the affidavit of John-Otto Phillips dated November 27, 2018. Mr. Phillips affidavit was filed as part of Mr. Harris’ motion record for the certification of his action as a class action.
[3] This motion to strike is being treated as a preliminary motion in the certification motion itself. After deciding this motion, I shall adjourn the certification motion and the parties will complete their cross-examinations in the run up to the certification motion, which is scheduled to be heard in March 2020.
[4] Before BMW’s motion was brought, Mr. Harris agreed to withdraw paragraph 70 and exhibits "XX" and "YY" of the Phillips affidavit without an admission that paragraph 70 or exhibits "XX" and "YY" were inadmissible hearsay. I, therefore, strike paragraph 70 and exhibits "XX" and "YY" from the certification motion record.
[5] For the reasons that follow, the balance of BMW’s motion is also granted, and I order that paragraphs 19, 20, 21, 22, 23, 24, 70, and Exhibits "G", "H", "I", "J", "XX", and "YY" of the affidavit of John-Otto Phillips be struck from the certification motion record.
B. Procedural Background
[6] On January 30, 2014, Mr. Harris commenced a proposed class action against BMW by notice of action. The action is on behalf of all persons or entities in Canada who are or were owners or lessees of certain MINI Cooper vehicles. Mr. Harris alleges that the vehicles contain defective power steering components, which can cause loss of power steering, and/or a car fire. The class definition is as follows:
All persons or entities in Canada who are or were owners or lessees of:
(i) a 2002, 2003, 2004, 2005 or 2006 model year MINI Cooper or MINI Cooper S; or
(ii) a 2005, 2006, 2007 or 2008 model year MINI Cooper Convertible or MINI Cooper S Convertible,
(collectively, the "Class Cars"), and their estates, executors, successors or assigns.
[7] On July 4, 2014, the Defendants filed a Statement of Defence. For reasons that will become apparent below, it shall be important to note that in its initial Statement of Defence, BMW pleaded that based on its own investigations there had been an extended warranty program introduced for the steering system and a voluntary recall program in the United States, and it pleaded communications about these warranty programs with Transport Canada and with the National Highway Traffic Safety Administration (“NHTSA”), the motor vehicle safety regulator in the United States.
[8] Mr. Harris did not file a Reply, and the action languished for four years until the summer of 2018.
[9] On August 29, 2018, Mr. Harris delivered a Fresh as Amended Statement of Claim. In the Fresh as Amended Statement of Claim, Mr. Harris asserts rights of action in negligent design, testing, manufacture, distribution, and sale, as well as a breach of the duty to warn of the dangerous power steering system defects.
[10] On December 4, 2018, Mr. Harris served his motion record for certification. The record includes an affidavit from John-Otto Phillips dated November 23, 2018. Mr. Phillips is an associate lawyer with Waddell Phillips Professional Corporation, which, together with Podrebarac Barristers Professional Corporation, are Mr. Harris’ lawyers and proposed Class Counsel.
[11] Also, on December 4, 2018, Mr. Harris delivered his motion record for certification. The plaintiffs proposed common issues include the following questions:
Were the Class Cars designed and manufactured by Bayerische Motoren Werke Aktiengesellschaft ("BMW AG") with one or more design or manufacturing defects that can cause the loss of power steering assist, engine component melting or smouldering, and/or a vehicle fire (the dangerous defect), and if so, is any such defect dangerous and/or does the defect render the Class Cars unfit for their intended purpose?
If the answer to Common Issue 1 is yes, when did the Defendants know or ought they to have known of the dangerous defect?
Did the Defendants, or either one thereof, owe a duty of care to (i) warn the class members of the dangerous defect, and/or (ii) to recall and repair the Class Cars?
If so, did either or both of the Defendants breach the relevant standard of care by (i) failing to warn the class members of the dangerous defect, and/or (ii) failing to recall and repair the Class Cars?
Does the conduct of the Defendants warrant an award of punitive damages? If so, in what amount?
[12] On June 3, 2019, BMW served a responding motion record for the certification motion. That record includes a Fresh as Amended Statement of Defence. The responding motion record includes the affidavit of Gordon Farrish. Mr. Farrish is the Senior Safety and Environmental Compliance Manager of BMW Canada.
[13] In its Amended Statement of Defence, BMW pleads that there was a possibility that some MINI Cooper vehicles, i.e., those falling within a circumscribed manufacturing date range, could potentially experience a loss of the power steering assist motion that would make the power steering unavailable. (In his class definition, Mr. Harris defines the affected vehicles more broadly).
[14] BMW pleads that a driver would be able to maintain steering control if the steering assist failed because the vehicle would revert to a manual steering mode. BMW denies that there is any fire risk or an unreasonable risk to safety.
[15] Mr. Harris has not yet delivered a Reply to the Fresh as Amended Statement of Defence.
[16] In September 2019, BMW brought the motion to strike that is now before the court. As noted above, I directed that this motion be treated as a preliminary motion in the certification motion, which is otherwise to be adjourned.
[17] In a motion argued concurrently with this motion, pursuant to rule 30.04 (2) of the Rules of Civil Procedure,[^2], Mr. Harris sought an order for the inspection of documents referred to in the Fresh as Amended Statement of Defence. I delivered separate Reasons for Decision with respect to the inspection motion.[^3]
C. Factual Background
[18] The following factual background is largely taken from the Fresh as Amended Statement of Claim and the Fresh as Amended Statement of Defence.
[19] Bayerische Motoren Werke Aktiengesellschaft is a corporation incorporated under the laws of the Federal Republic of Germany. Its subsidiary BMW Canada Inc. sells MINI Cooper brand vehicles in Canada, and its subsidiary BMW of North America, LLC ("BMW-NW”) sells MINI Cooper vehicles in the United States.
[20] Mr. Harris was the owner of a 2003 MINI Cooper vehicle. In October 2010, while driving the vehicle, its power steering malfunctioned, and the vehicle was difficult to steer. He became concerned about the vehicle's safety, and at his own expense, he replaced the power steering pump and cooling fan at his dealership.
[21] Around this time, BMW was investigating the matter of the functionality of the power assist function in certain MINI Cooper vehicles. In paragraph 15 of the Fresh as Amended Statement of Defence, BMW pleads:
- In 2011 and 2012, BMW Canada engaged in communications with Transport Canada, the safety regulator of motor vehicles in Canada, relating to the power steering assist function in certain MINI Cooper vehicles from 2002 to 2005 model years. The matter which BMW Canada investigated related to the potential for some vehicles to possibly lose the power steering assist function. BMW Canada became aware of this through its internal quality control analyses and processes. BMW had received a small number of consumer reports about the loss of power steering assist. Only one report involved an alleged accident related to the loss power steering assist, and the alleged incident was minor in nature. Moreover, none of the reports involved any injuries or fatalities associated with the loss of power steering assist.
[22] In 2012, following its investigation, BMW Canada gave notice of the power assist issue to the affected car owners and implemented an extended warranty on the power steering pump and the pump cooling fan of 12 years or 200,000 kilometers from first in-service date of the vehicle. The warranty was extended because BMW Canada had determined that that there was a possibility that some MINI Cooper vehicles, those falling within a circumscribed manufacturing date range, could potentially experience a loss of the power steering assist motion that would make the power steering unavailable.
[23] In paragraphs 18, 19, 26, and 27 of the Fresh as Amended Statement of Defence, BMW pleads:
- BMW Canada determined that this condition potentially existed in some, but not all 2002-2005 Mini Cooper Hatch and MINI Cooper Convertible vehicles assembled during the following date range:
2002-2005 MINI Cooper Hatch, assembled December 17, 2001-February 9, 2005
2005 MINI Cooper Convertible, assembled February 19, 2004-February 9, 2005.
As a result of this investigation, BMW Canada initiated a consumer notification and special extended warranty program. BMW Canada contacted the registered owners/lessees of the vehicles in the above noted range to inform them of this matter and to offer the owners/lessees of the vehicles a special extended warranty coverage of 12 years of 200,000 km, whichever occurs first, and extended warranty program
Similarly, contrary to the allegations in paragraphs 41 to 44 of the Fresh as Amended Statement of Claim, the Defendants provided reasonable, appropriate and timely notice of the potential condition to owners of the affected vehicles as well as to Transport Canada.
BMW Canada was engaged in close communication with Transport Canada in relation to the development of its consumer notification and extended warranty program. BMW Canada provided the relevant data and facts in its possession to Transport Canada. Transport Canada never opposed BMW Canada’s plan to initiate the consumer notification and extended special warranty program. […]
[24] Thus, BMW admits that it became aware of consumer complaints as part of its internal quality control analyses and processes. It pleads that it engaged in diligent and ongoing post-sale monitoring process and it provided reasonable, appropriate, and timely notice.
[25] In 2012, in the United States BMW-NA also implemented an extended warranty program. The warranty was extended because BMW-NA had determined that that there was a possibility that some MINI Cooper vehicles, those falling within a circumscribed manufacturing date range, could potentially experience a loss of the power steering assist motion that would make the power steering unavailable.
[26] In 2013, NHTSA found the extended warranty response to be adequate.
[27] In paragraph 31 of its Fresh as Amended Statement of Defence, BMW pleads that NHTSA changed its position in 2015. Paragraph 31 states:
- Subsequently in 2015, NHTSA changed its mind about that matter and requested that BMW-NA conduct a recall of the vehicles to which the extended warranty program applied. In deference to NHTSA’s clearly expressed wish, BMWNA issued a recall of the said vehicles.
[28] BMW pleads that it notified Transport Canada of BMW NA's voluntary recall in the United States, but Transport Canada did not require a recall in Canada.
[29] In paragraphs 17-24 of his affidavit for the certification motion, Mr. Phillips deposes about how Claire McGregor, a legal assistant at Waddell Phillips, did an Internet search and extracted information about complaints received in the United States by NHTSA on its Vehicle Owner Questionnaire Database. about the MINI Cooper vehicles. Mr. Phillips deposed as follows:
COMPLAINTS TO NHTSA ABOUT THE CLASS CARS
A legal assistant at Waddell Phillips, Claire McGregor, conducted searches of NHTSA' s database between August and November 2018. Ms. McGregor informs me that she completed searches for complaints, investigations, and recalls on NHTSA's website for the following vehicles: Model Year 2002-2006 MINI Cooper and MINI Cooper S and Model Year 2005-2008 MINI Cooper Convertibles (i.e. the Class Cars).
I am informed by Ms. McGregor that the search capabilities on NHTSA 's website allows one to sort reported complaints according to the part of the vehicle affected. Each publicly listed complaint on NHTSA's database provides information regarding the date the complaint was filed, the date of the incident, the component complained of, the VIN (if available). whether the complaint involved a crash, fire, injury, or death, and a summary of the complaint.
Ms. McGregor compiled a chart of all of the publicly available complaints reported on NHTSA's website concerning "steering'' component issues in the Class Cars. This chart was compiled by copy-typing and cutting and pasting the information in the complaint section. Attached hereto and marked as Exhibit G is a copy of a chart complied by· Ms. McGregor detailing the complaints of steering component failures in Class Cars provided in NHTSA 's publicly accessible database, current as of November 22, 2018.
The first complaint of steering-related issues from the publicly available information on NHTSA's website occurred on August 17, 2004. This concerned an incident on August 15, 2004, recorded on the first line of the chart in Exhibit G. in which the complainant reported that:
[I] WAS DRIVING DOWN A 2-LANE CURVY ROAD AT NIGHT, DRY WEATHER, 75 F. AT 30 MPH WHEN CAR BEGAN TO WHINE WHENEVER STEERING WHEEL WAS TURNED. AS I DECELERATED TO 10-15 MPH TO MAKE A 90 DEGREE RIGHT TURN AROUND A CURVE, THE STEERING WHEEL BECAME SUDDENLY EXTREMELY DIFFICULT TO TURN. ALMOST T-BONED A CAR TRAVELING IN THE OPPOSITE DIRECTION AROUND SAME CURVE. WAS ABLE TO GET THE CAR BACK IN MY LANE, AND GET IT HOME, BUT NOT WITHOUT A LOT OF EFFORT. CALLED BMW SERVICE, THEY ACKNOWLEDGED THEY'VE SERVICED A FEW MINIS WITH THE SAME PROBLEM AND WAS MOST LIKELY A POWER STEERING PUMP FAILURE. CAR WILL BE TOWED TODAY. “J B”
In addition, Ms. McGregor compiled a chart identifying all the complaints on NHTSA's database for the Class Cars where the component identified is "steering" and there is a correlated complaint of a "fire". There are 78 reports of fire, with the most recent reported on July 10, 2017. Attached hereto and marked as Exhibit H is a copy of a chart compiled by Ms. McGregor detailing complaints of fires in Class Cars correlated with identified steering component issues from NHTSA's website, current as of November 22, 2018.
NHTSA' s website database also indicates whether there was a complaint of a "crash" associated with the Class Cars. Ms. McGregor compiled a chart detailing complaints about Class Cars where a "crash" was indicated following a steering related issue. Attached hereto and marked as Exhibit I is a copy of a chart compiled by Ms. McGregor detailing complaints of a crash associated with Class Cars from NHTSA's website, current as of November 22, 2018.
The first line of the chart included as Exhibit I details the first incident of fire reported to NHTSA on August 1, 2007 linked to steering issues in the Class Cars:
PARKED VEHICLE OUTSIDE GROCERY STORE. RETURNED AFTER 5 MINUTES TO FIND SMOKE POURING FROM THE HOOD. OPENED HOOD TO DETERMINE CAUSE AND SMELT ELECTRICAL SMOKE, AND SAW FLAMES COMING FROM UNDER THE ENGINE. DOUSED FLAMES USING A FIRE EXTINGUISHER FROM STORE, AND DISCONNECTED BATTERY. INITIAL DEALER INVESTIGATION INDICATES THAT THE DAMAGE WAS TO THE POWER STEERING PUMP AND WIRING HARNESS. HAD I NOT STOPPED FOR GROCERIES, I WOULD HAVE BEEN UNLJKELY TO NOTICE THE SMOKE/FIRE EARLY ENOUGH TO PREVENT THE LOSS OF THE VEHICLE. INSURANCE AND DEALER ROOT CAUSE INVESTIGATION IS STILL PENDING, BUT AFTER SOME RESEARCH ON THE INTERNET (MOSTLY [….]) I FOUND AT LEAST 10 OTHER INSTANCES OF A FAULT IN THE POWER STEERING PUMP CAUSING FIRES. BMW IS OBVIOUSLY AWARE OF SOME OF THESE PROBLEMS, AS THEY MADE CHANGES TO THE POWER STEERING PUMP AND POWER STEERING FAN WIRING HARNESS IN 04 MODELS ON. IT SEEMS TO ME THAT THERE IS A SYSTEMATIC PROBLEM WITH THE POWER STEERING PUMP ON MINIS. NO FUSE BLEW, AND TO HAVE AN ELECTRICAL COMPONENT RU N TO THE POINT WHERE IS COMBUSTS, WITHOUT ANY FUSE OR THERMAL FUSE PROTECTION SEEMS A GROSS DESIGN DEFICIENCY TO ME. “NM”
- Ms. McGregor also compiled a chart providing a tally of all the publicly available complaints on NHTSA's database for the Class Cars where the malfunctioning component identified is "steering" and there is complaint of a "crash". The information in the chart is current as of November 22, 2018. Attached hereto and marked as Exhibit J is a copy of a chart created by Ms. McGregor, current as of November 22, 2018.
[30] In Mr. Phillips’ affidavit exhibits "G" through "J" are charts prepared by Ms. McGregor's detailing her findings, which were compiled by copying the information directly from the NHTSA website. There are almost 400 pages of charts. The NHTSA website is the source of the information, and Mr. Phillips attests that he believes it to be true that the charts accurately reflect the information gleaned from the NHTSA website.
[31] On this motion, the Defendants have filed an affidavit of Frank S. Borris, a former employee of NHTSA. Until 2016, Mr. Borris was the Director of the Office of Defects Investigation, and the Acting Associate Administrator, Enforcement of NHTSA. NHTSA is the principal national regulator responsible for monitoring vehicle safety issues in the United States. NHTSA permits members of the public to report problems experienced with their vehicles, which are then posted on the NHTSA website.
[32] Mr. Borris explained the operation of the Vehicle Owner Questionnaire Database as follows:
a. Anyone with a vehicle identification number for any motor vehicle of any make and model, and a valid email address, may electronically submit a complaint about a vehicle to the Database. NHTSA does not edit the wording of the complaint.
b. Given the volume of complaints and resource limitations, NHTSA, not all complaints are reviewed.
c. Of the complaints that are reviewed, fewer than 10% are escalated to a "Level 2" review, in which NHTSA personnel seek additional information from the person who submitted the complaint.
d. Fewer than 1% of the complaints posted in the Database may precipitate NHTSA taking investigative steps to verify the accuracy of the allegations in the complaint.
e. The publicly available database does not indicate whether a complaint has been reviewed, and if so, what was the result of the review.
f. The publicly available database does not indicate whether an investigated complaint has been found to be inaccurate or unfounded.
D. Discussion and Analysis
[33] Mr. Phillips’ affidavit was delivered in support of a certification motion. The criteria for certification are set out in s. 5 (1) of the Class Proceedings Act, 1992, which states:
- (l) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences 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 or defendant who, would fairly and adequately represent the interests of the class, 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 does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
[34] A certification motion is an interlocutory motion, and pursuant to rule 39.01 (4) hearsay evidence is admissible on a motion. Rule 39.01 (4) states:
39.01 (4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[35] A motion for certification has a peculiar onus or standard of proof. On a motion for certification, the proposed representative plaintiff must come forward with sufficient evidence to support certification, and the opposing party may respond with evidence of its own to challenge certification.[^4] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^5]
[36] The some basis in fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[^6]
[37] While a certification motion has a unique or standard of proof, it remains a normal interlocutory motion with respect to the admissibility of evidence, including hearsay evidence. While the evidentiary burden on a certification motion is the low, some basis in fact test, that burden must be discharged by admissible evidence; the evidence tendered on a certification motion must meet the usual criteria for admissibility.[^7] On a certification motion, the court has an important gate-keeping role with respect to the admissibility of evidence, and it is not appropriate or fair to shirk that responsibility by saying let it in, and the objections will go to weight rather than admissibility.[^8]
[38] Evidence may be excluded if its probative value is overborne by its prejudicial effect, including the tendencies: to yield irrational conclusions; to confuse, mislead, or distract the trier of fact's attention from the main issues; to unduly occupy the trier of fact's time; and to surprise the opponent unfairly and to impair a fair hearing.[^9]
[39] For documentary evidence to be admissible through an affidavit of a lawyer, the evidence must be probative of a material fact in issue, and that probative value must outweigh any prejudice to admitting the evidence.[^10]
[40] Rule 25.11 of the Rules of Civil Procedure provides a means to strike evidence from an affidavit proffered for a motion. Rule 25.11 states:
25.11. The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of process of the court.
[41] Turning to the immediate case, at the outset of the analysis, it should be noted that if Mr. Phillips’ evidence is hearsay, it is not simple hearsay; it is multiple-level hearsay.
[42] For example, in paragraph 20 of his affidavit, Mr. Phillip’s deposes what he heard Ms. McGregor say about what she heard the NHTSA's database say about what NM had posted about his own complaint and about what he heard said on other Internet databases by ten other complainants. By my reckoning, there is seven degrees of separation between those ten complainants and the court on the certification motion that is the audience of the evidence; viz; (1) ten complainants; (2) Internet web pages posting the ten complaints; (3) NM; (4) NHTSA' s database; (5) Ms. McGregor; (6) Mr. Phillips; and (7) the court.
[43] Mr. Harris’ primary response to BMW’s motion is that Mr. Phillips evidence is not hearsay at all. He submits that Mr. Phillips evidence has been adduced not for the truth of its contents, but rather it is non-hearsay evidence that complaints were made. He says that he does not rely on these consumer complaints as evidence that the power steering systems are in fact defective, but as evidence to show that there is some basis in fact for the proposed common issue of when BMW ought to have been put on notice of the defects in the steering. He says that the complaints are put before the court for the limited purpose that the statements were made at a particular time.
[44] Mr. Harris’ submission, however, is belied by the fact that there are almost 400 pages of detailed charts prepared by Ms. McGregor, who is not the deponent, describing the defects in the power steering of the MINI Cooper vehicles. Mr. Harris’ counsel had no answer why 400 pages of the contents of the complaints was necessary if the purpose of the evidence was no more than of proving that consumers complained about the steering of their vehicles at a particular time. The elaborate charts could serve no purpose other than as evidence of the truth of the contents of those complaints, and why add 400 pages to the evidentiary record only to submit that their content should be read but given no weight?
[45] It is insincere to submit that the evidence of the complaints was proffered as proof that there were complaints about the power steering but not for the proof of the truth of the contents of the complaints. If Mr. Harris’ submission was true about the use to be made of charts, then all that was needed was a deponent to depose that he or she searched the Internet and a search of the NHTSA database disclosed that consumers had posted complaints about the power steering on the database. There would be no need to compile and proffer elaborate charts of the contents of those complaints.
[46] In any event, even if Mr. Phillips’ evidence was submitted simply as proof that complaints were made, it remains inadmissible hearsay evidence at some multiple levels of hearsay that complaints were made. Given that Mr. Phillips did not hear the complaints - nor did, Ms. McGregor for that matter - there is only hearsay evidence that the complaints were made to the NHTSA and there is even more distant hearsay evidence about NM’s discoveries of complaints as a result of his search of the Internet. The point is that there are multiple levels of hearsay even if the point of the evidence is to prove the existence of complaints.
[47] Although Mr. Harris argued that the 400 pages of charts with complaints was included in the motion record just to prove some basis in fact for the proposed common issue of when BMW ought to have been put on notice of the defects in the steering, there was little need for this evidence. As foreshadowed above, in the immediate case, BMW had already pleaded: the existence of warranty programs in both Canada and the United States; a recall program in the United States; and communications with NHTSA and Transport Canada. The materiality, relevance, probative value, and prejudicial effect of the inclusion of the 400 pages of charts of complaints must be analyzed in the particular context of the immediate class action.
[48] My analysis is that paragraphs 19, 20, 21, 22, 23, and 24 and Exhibits "G", "H", "I", "J" of Mr. Phillips’ affidavit should be struck from the evidentiary record for the certification motion. This evidence is inadmissible hearsay and in the particular context of the immediate case, even if admissible, the probative value of the evidence is far exceeded by its prejudicial effect.
[49] In the immediate case, BMW relied on cases in which evidentiary rulings were made striking evidence on a certification motion on the basis that the evidence was inadmissible hearsay,[^11] and Mr. Harris relied on cases in which evidence was not struck because it was admissible as some basis in fact for the plaintiff’s claims and some basis in fact for the court to determine whether the criterion for certification have been satisfied.[^12]
[50] It is, however, not necessary to analyze or to reconcile these cases because evidentiary rulings must be made in the context of the particular pleadings and the particular material facts of each case. In Pro-Sys Consultants Ltd. v. Microsoft Corp.,[^13] Justice Rothstein observed that there is limited utility in attempting to define some basis in fact in the abstract and each case must be decided on its own facts. The cases relied on by the parties are uniform in applying the same principles of the law of evidence in the context of a particular class proceeding, but the cases are not precedents to be followed in the circumstances of a different case.
[51] Mr. Harris should deliver a revised motion record and the run-up to the certification motion should continue.
E. Conclusion
[52] For the above reasons, BMW’s motion is granted.
[53] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with BMW’s submissions within twenty days of the release of these Reasons for Decision followed by Mr. Harris’ submissions within a further twenty days.
Perell, J.
Released: October 16, 2019
COURT FILE NO.: CV-14-497479-00CP
DATE: 2019/10/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PETER SCOTT HARRIS
Plaintiff
- and -
BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: October 16, 2019
[^1]: S.O. 1992, c. 6. [^2]: R.R.O. 1990, Reg. 194. [^3]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5958. [^4]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 22. [^5]: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 at paras. 99-105; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Taub v. Manufacturers Life Insurance Co., (1998) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.). [^6]: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 at para. 102. [^7]: Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 (S.C.J.); Williams v. Canon Canada Inc., 2011 ONSC 6571, aff’d 2012 ONSC 3692 (Div. Ct.); Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63 at para.13. [^8]: Williams v. Canon Canada Inc., 2011 ONSC 6571 at para. 68, aff’d 2012 ONSC 3692 (Div. Ct.) [^9]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525. [^10]: O'Brien v. Bard Canada Inc., 2015 ONSC 2470 at para. 99; Patzer v. Hastings Entertainment Inc., 2011 BCCA 60 at paras. 19-21; Gray v. Insurance Corp. of British Columbia, 2010 BCCA 459. [^11]: O'Brien v. Bard Canada Inc., 2015 ONSC 2470; Williams v. Canon Canada Inc., 2011 ONSC 6571; Schick v, Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63; Thorpe v. Honda Canada, Inc., 2010 SKQB 39; Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON SC), [2009] O.J. No. 2531 (S.C.J.) [^12]: Waller v. Western Hockey League, 2016 ABQB 588; Doe v. HMQ, 2015 FC 236; Harrison v. XL Foods Inc., 2014 ABQB 72; Hellman v. Monsanto Canada Inc., 2003 SKQB 174. [^13]: 2013 SCC 57 at para. 111.