Court File and Parties
COURT FILE NO.: CV-19-612148-00CP
DATE: 20210608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMBERLEY CARTER, KEITH HALLIDAY and DEONARINE PHAGOO
Plaintiffs
- and -
FORD MOTOR COMPANY OF CANADA, LTD., FORD CREDIT CANADA LIMITED and FORD MOTOR COMPANY
Defendants
Counsel:
James Sayce and Aryan Ziaie for the Plaintiffs
Cheryl Woodin, Ilan Ishai and Ethan Z. Schiff for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: May 12, 2021
REASONS FOR DECISION
PERELL, J.
[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] Kimberley Carter, Keith Halliday, and Deonarine Phagoo sue Ford Motor Company of Canada Ltd., Ford Credit Canada Limited and Ford Motor Company (collective “Ford Motor Co.”).
[2] The Plaintiffs allege that Ford Motor Co. designed, engineered, developed, researched, manufactured, marketed, distributed, sold, and leased motor vehicles in Ontario and the rest of Canada containing a defective water pump system. The Plaintiffs allege that the defective water pump system was dangerous. They allege that the defect caused the water pump to leak coolant into other engine parts with the result that there was catastrophic damage to the engine of the vehicles.
[3] The Plaintiffs move for certification of their action as a class action. Ford Motor Co. resists the certification motion, and it brings a preliminary motion for an Order that certain evidence be struck from the certification record. More precisely, Ford Motor Co. seeks an order striking: (a) paragraphs 12 through 20 of the affidavit of David Rosenfeld dated July 3, 2020; and (b) Exhibits E through M of the Rosenfeld Affidavit.
[4] For the reasons that follow, I grant the motion.
[5] The background to Ford Motor Co.’s motion is that Mr. Rosenfeld is a lawyer at Koskie Minsky LLP, the Plaintiffs’ proposed Class Counsel. In his affidavit, Mr. Rosenfeld attaches as exhibits complaints retrieved from the online complaints database of U.S. National Highway Traffic Safety Administration (“NHTSA”). Mr. Rosenfeld deposes that he was advised by Tanya Sambi, an Articling Student at his firm that she retrieved these documents on April 21, 2020.
[6] Ford Motor Co. submits that online complaints are unverified and unreliable hearsay pulled from the internet and is inadmissible hearsay because: (a) the individuals who posted the statements are not identifiable; (b) there is no evidence or assertion that any of the complaints have been investigated or corroborated by NHTSA; (c) there is no way of knowing whether each NHTSA ID Number is for a separate person; (d) there is no way of knowing whether the individuals are owners, lessees or drivers of the vehicles described, or someone else entirely; (e) the self-reported locations of all the complainants are either in the U.S. or “Unknown” – and none are identified as being in Canada; (f) some of the postings are written in third person, detailing what the individual making the complaint has been told by someone else; (g) many of the postings contain statements that are argumentative, inflammatory, and/or expressions of opinion; (h) some of the postings reference the existence of the parallel proposed class action in the U.S. related to the water pumps; (i) many of the postings contain statements that are more prejudicial than probative; and (j) the plaintiffs do not independently verify, corroborate or otherwise seek to support the statements of these unknown third parties.
[7] Both in oral argument and in their factum, the Plaintiffs mounted a subdued response to Ford Motor Co.’s motion to strike. The Plaintiffs submitted that they do not rely on the NHTSA complaints for the truth of their contents but only for the singular purpose of establishing some basis in fact that Ford Motor Co. knew of the alleged defect of the water pump. The Plaintiffs asserted that if the evidence was struck, it would make no difference to the certification motion, and thus they submitted that the complaints could only be struck if their prejudicial effect outweighs their probative value, which they submitted would not be the case given the very limited use being made of the evidence.
[8] 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.
[9] While a certification motion has a unique 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.[^2] 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.[^3]
[10] 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.[^4]
[11] 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.[^5]
[12] In the immediate case, the evidence is hearsay and not admissible. If, as submitted by the Plaintiffs, the evidence is being admitted for the proffered purpose of imputing knowledge of the design defect that is the subject matter of the class proceeding, the probative value of the evidence is negligible or at its highest miniscule and this probative value is very much overborne by its prejudicial effect including all the deleterious tendencies listed above.
[13] Further, having regard to the use actually made of the evidence in the Plaintiffs’ factum, it does not appear that it was being used for the proffered singular purpose but was actually being used as evidence and argument about the dangerousness of the alleged defect, which are matters for non-hearsay argument and proper evidence.
[14] I agree with Ford Motor Co’s arguments that the evidence should be struck. Order accordingly, with costs to the defendants payable in any event of the cause of the certification motion.
Perell, J.
Released: June 8, 2021
COURT FILE NO.: CV-19-612148-00CP
DATE: 20210608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMBERLEY CARTER, KEITH HALLIDAY and DEONARINE PHAGOO
Plaintiffs
- and -
FORD MOTOR COMPANY OF CANADA, LTD., FORD CREDIT CANADA LIMITED and FORD MOTOR COMPANY
Defendants
REASONS FOR DECISION
PERELL J.
Released: June 8, 2021
[^1]: S.O. 1992, c. 6.
[^2]: 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.
[^3]: Williams v. Canon Canada Inc., 2011 ONSC 6571 at para. 68, aff’d 2012 ONSC 3692 (Div. Ct.)
[^4]: R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Potvin, [1989] 1 S.C.R. 525.
[^5]: 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.