Court File and Parties
COURT FILE NO.: CV-19-00616397-00CP DATE: 2020/04/22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BEVERLEY ARBUTHNOT, ANGELE CHAREST AND DEBORAH PLESTER, on behalf of themselves and all others similarly situated Plaintiffs
- and -
WHIRLPOOL CANADA LP, WHIRLPOOL CORPORATION, and WHIRLPOOL PROPERTIES, INC. Defendant
Jia Wang for the Plaintiffs
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] This is a proposed class action under the Class Proceedings Act, 1992 [1]. The Plaintiffs, Beverley Arbuthnot, Angele Charest, and Deborah Plester bring a motion for leave to discontinue their action against Whirlpool Canada LP, Whirlpool Corporation, and Whirlpool Properties Inc.
[2] In order to bring their proposed class action, the Plaintiffs signed a contingency fee retainer agreement with Hodder, Wang LLP. The firm’s retainer was contingent on the Plaintiffs obtaining After-the-Event insurance coverage.
[3] The Plaintiffs commenced the action on March 18, 2019 to protect the putative Class Members’ claims from being statute-barred and then set about to obtain After-the-Event insurance coverage.
[4] The existence of the action was known only to the Plaintiffs. No announcement was made of the action. There was no communication with the putative Class Members. The action was never listed in the National Class Actions Database of the Canadian Bar Association.
[5] On September 10, 2019, I granted an Order extending the time for service of the Statement of Claim to March 18, 2020, to allow time for the Plaintiffs to obtain funding, including applying to the Class Proceedings Fund.
[6] In March 2020, the Plaintiffs served the Statement of Claim on the Defendants.
[7] On March 16, 2020, Whirlpool Canada LP, served a Notice of Intent to Defend.
[8] The Plaintiffs have been unable to secure insurance or funding from the Class Proceedings Fund. They have exhausted all other avenues for third-party funding. Consequently, the pre-condition of the law firm’s contingency fee agreement with the Plaintiffs cannot be fulfilled.
[9] It is a requirement of the class proceedings regime that the Representative Plaintiffs be represented by Class Counsel.
[10] The Plaintiffs have instructed their counsel to discontinue the proceeding. The Defendants consent to the motion for discontinuance of the proposed class action, without costs.
[11] The parties have consented to the following notice being distributed to putative Class Members:
NOTICE OF DISCONTINUANCE OF PROPOSED CLASS ACTION AGAINST WHIRLPOOL REGARDING AQUALIFT OVENS
Please Read this Notice Carefully. It May Affect Your Legal Rights.
By Order of the Ontario Superior Court of Justice, persons resident in Canada who have purchased an oven designed, manufactured, and sold by Whirlpool Canada LP, Whirlpool Corporation, and Whirlpool Properties, Inc. (collectively the “Whirlpool Defendants”) with its proprietary “AquaLift® Self-Cleaning Technology” (“AquaLift Oven”) are advised that:
In May 2019, a proposed class proceeding was commenced in Ontario alleging that the Whirlpool Defendants have designed, manufactured, advertised, marketed, and sold a line of gas and electric stoves, ranges, and ovens with its proprietary “AquaLift® Self-Cleaning Technology” (“AquaLift Ovens”) using marketing that is false, deceptive, and misleading to reasonable consumers. The plaintiffs allege that this false advertising resulted in damage to purchasers of AquaLift Ovens, contrary to provincial consumer protection legislations, the Competition Act, and the Trade-marks Act.
In March 2020, the plaintiffs and their legal counsel (“Hodder, Wang LLP”) decided that the class action will no longer be pursued. They filed motion materials with the Ontario Superior Court of Justice to obtain approval of the discontinuance. The discontinuance was approved by the Court and took effect on [date of filing of discontinuance].
This discontinuance relates to the Whirlpool AquaLift Oven class action only. It does not relate to any of Whirlpool’s other oven products.
YOU SHOULD TAKE NOTICE THAT THE limitation period for bringing a claim, if there is any time left within it, started to run again on [date of filing of discontinuance]. On the expiry of a limitation period a right to sue may be extinguished.
TAKE NOTICE THAT because the limitation period for bringing a claim has started to run again, if you wish to pursue a court claim against Whirlpool in relation to an AquaLift Oven, you should issue a Notice of Action or Statement of Claim forthwith, if you have not already done so.
If you have any questions about the discontinuance or the recommencement of the running of the limitation period, please contact Hodder, Wang LLP at:
HODDER, WANG LLP [address, phone number]
It is recommended that you obtain legal advice from Hodder, Wang LLP or a lawyer of your choice.
PUBLICATION OF THIS NOTICE HAS BEEN AUTHORIZED BY THE ONTARIO SUPERIOR COURT OF JUSTICE.
[12] Hodder, Wang LLP intends to distribute the Notice of Discontinuance by (a) posting it on the firm website; and (b) providing it to any person who requests it.
[13] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, or settlement of a class action. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding; (b) a statement of the result of the proceeding; and (c) a description of any plan for distributing settlement funds.
[14] A motion for discontinuance should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose, whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced, or whether the plaintiff, the putative Class Members, or the defendant will be prejudiced. [2]
[15] In the immediate case, there is no prospect of the putative Class Members, who are oblivious of the action even having been started, being prejudiced. There is no sense in which any putative Class Members can be said to have been relying upon this action.
[16] I, therefore, grant the Plaintiffs’ motion.
[17] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order. The form of the Order is set out as Schedule “A” to these Reasons for Decision.
[18] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.
Perell, J.
Released: April 22, 2020
Order
Court File No. CV-19-00616397-00CP ONTARIO SUPERIOR COURT OF JUSTICE
THE HONOURABLE MR. JUSTICE PERELL ---, THE --- DAY OF APRIL 2020
BETWEEN:
BEVERLEY ARBUTHNOT, ANGELE CHAREST AND DEBORAH PLESTER, on behalf of themselves and all others similarly situated Plaintiffs
- and –
WHIRLPOOL CANADA LP, WHIRLPOOL CORPORATION, and WHIRLPOOL PROPERTIES, INC. Defendants
Proceeding under the Class Proceedings Act, 1992
ORDER
THIS MOTION, made by the plaintiffs was read this day at Toronto.
ON READING the plaintiffs’ notice of motion, the affidavit of J. Gardner Hodder, sworn April 3, 2020, and the consent of the counsels,
THIS COURT ORDERS that leave to discontinue the within proposed class action is granted.
THIS COURT ORDERS that Hodder, Wang LLP distribute a Notice of Intent to Discontinue the proposed class action, in the form of Schedule “A” annexed hereto, to any person who requests it.
Schedule “A” [Notice as set out above]
Footnotes
[1] S.O. 1990, c. 6. [2] Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 71 O.R. (3d) 451 (C.A.).