Court File and Parties

COURT FILE NO.: CV-20-648610-00CP

DATE: 20210326

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Colin Loewenthal

AND:

Sirius XM Holdings, inc., Sirius XM Radio, Inc., Sirius XM Canada Holdings Inc., Sirius XM Canada Inc., Sirius XM Connected Vehicle Services Holdings Inc., Sirius XM Connected Vehicle Services Inc., SXM CVS Canada Inc., and Adswizz Inc.

BEFORE: J.T. Akbarali J.

COUNSEL: Glyn Hotz, Darrel Hotz, Jodi Rhiger, for the Plaintiff H. Michael Rosenberg, Natalie V. Kolos, for the Defendants

HEARD: March 26, 2021

ENDORSEMENT

Overview

[1] The plaintiff brings a motion to certify on consent a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended, against the defendants Sirius XM Canada Holdings Inc., Sirius XM Canada Inc., and Sirius XM CVS Canada Inc., for settlement purposes only.

Background

[2] In 2017, the plaintiff purchased a 2018 model year vehicle from a Subaru Canada dealership in Richmond, British Columbia. The vehicle was equipped with a Sirius XM satellite radio and included a prepaid three-month trial subscription to Sirius XM’s XM Select+ Package.

[3] The plaintiff alleges that Sirius XM Canada Inc. obtained his personal information, including his name, residential address, and email address.

[4] The plaintiff issued a notice of action to commence this proposed class proceeding on October 1, 2020. On November 2, 2020, the plaintiff filed a statement of claim in which he alleges that the defendants improperly and unlawfully collected, maintained, stored, lost, used, and disclosed personal information of persons who purchased, leased, or obtained servicing for a vehicle equipped with a satellite radio receiver or similar device.

[5] On December 1, 2020, I issued a timetabling endorsement that contemplated a sequencing motion to address whether Sirius XM Canada’s intended summary judgement motion should be heard prior to the certification motion.

[6] The plaintiff deposes that, after the commencement of the action, class counsel obtained information about the defendants’ practices and procedures that was not available to them before. The parties explored settlement and reached a settlement agreement which class counsel believes to be in the best interest of the class. A motion for court approval of the settlement is scheduled for June 18, 2021.

Certification

[7] Pursuant to s. 5(1) of the CPA, the court shall certify a class proceeding if: (a) the pleadings or the notice of application 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 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 who would fairly and adequately represent the interests of the class, has produced a workable plan for the proceeding, and does not have an interest in conflict with the interests of other class members.

[8] Where certification is sought for the purposes of settlement, all the criteria for certification must still be met, although compliance with the certification criteria is not as strictly required: Waheed v. Pfizer Canada Inc., 2011 ONSC 5057, at para. 36; Nutech Brands Inc. v. Air Canada, [2008 11643, at para. 9. The representative plaintiff must provide a certain minimum evidentiary basis for certification order: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 24.

Section 5(1)(a): The pleadings disclose a cause of action.

[9] Certification will not be denied under s. 5(1)(a) unless it is plain and obvious that the pleadings disclose no cause of action: Hollick, at para. 25.

[10] For the purposes of the settlement approval, the Canadian defendants do not dispute, and I accept, that the pleadings disclose a cause of action in negligence for which facts are sufficiently pleaded.

Section 5(1)(b): There is an identifiable class of two or more persons that would be represented by the representative plaintiff.

[11] In determining whether there is an identifiable class, the court asks whether the plaintiff has defined the class by reference to objective criteria such that a person can be identified to be a class member without reference to the merits of the action. The class must be bounded, and not of unlimited membership, or unnecessarily broad, and have some rational relationship with the common issues: Hollick, at para. 17, Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), at para. 45.

[12] For purposes of settlement, the plaintiff seeks to certify the following class:

Any person in Canada who purchased, leased, or obtained servicing for new or preowned vehicle equipped with satellite radio receiver or similar device whose Personal Information was collected, accessed, maintained, stored, lost, used, or disclosed directly or indirectly by one or more of the Defendants

[13] I am satisfied that the class is defined by reference to objective criteria, is bounded and bears a rational relationship with the common issue which I discuss below.

Section 5(1)(c): The claims raise common issues.

[14] The plaintiff proposes to certify the following common issue:

Did the Defendants owe the Plaintiffs and Class Members a duty of care in respect to the use of their Personal Information?

[15] For the purposes of settlement only, the Canadian defendants do not dispute that this issue is common to all class members and arises from the cause of action asserted in the statement of claim. Determining this issue in a class proceeding would avoid the need for each class member to prove it in individual trials. I agree that this criterion is satisfied.

Section 5(1)(d): Preferable Procedure

[16] In the context of the settlement, courts have recognized that a class proceeding is a fair, efficient, and manageable method for advancing the class members claims and is preferable to other procedures. As Perell J. held in Waheed, at para. 27, where there is a cause of action, an identifiable class, common issues, and a settlement, there is a strong basis to conclude that a class proceeding is the preferable procedure because certification would serve the primary purposes of the CPA: access to justice, behaviour modification, and judicial economy.

[17] The new s. 5(1.1) of the CPA sets out two further criteria for the court to consider when determining whether a class proceeding is the preferable procedure for resolution of common issues: superiority and predominance.

[18] I agree that, in the context of this settlement, a class proceeding is superior to all reasonably available means, both to determine the entitlement of the class members to release and to address the impugned conduct of the defendant.

[19] Moreover, in the context of this settlement, there are no questions affecting only individual class members. The proposed common issue is thus predominant.

[20] I conclude that a class proceeding is the preferable procedure in this case.

Section 5(1)(e): There is an adequate representative plaintiff.

[21] The evidence before me indicates that the proposed representative plaintiff, Mr. Loewenthal, understands his duties as a representative plaintiff and is capable of fulfilling them. He has played an active role in the action and will continue to do so. He has no known conflict of interest with other class members. He has proposed a reasonable notice program, using both direct and indirect notice, and has proposed a workable plan to move towards the approval of the settlement agreement.

Conclusion

[22] For the reasons set out above, I grant the plaintiff’s motion and certify this action as a class proceeding pursuant to the CPA against the Canadian domiciled defendants, Sirius XM Canada Holdings Inc., Sirius XM Canada Inc., and Sirius XM CVS Canada Inc., for settlement approval purposes only.

[23] Order to go in accordance with the draft I have signed.

J.T. Akbarali J.

Date: March 26, 2021