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

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

PERELL, J.

REASONS FOR DECISION

A. Introduction. 2

B. Procedural Background. 3

C. Evidentiary Background. 9

D. Facts. 10

1. Ford Motor Company and the Vehicles. 10

2. The Evidence of the Plaintiffs and the Putative Class Members. 13

(a) Arthur Bellefeuille. 14

(b) Kimberley Carter and Keith Halliday. 14

(c) Deonarine Phagoo. 14

(d) Laurie-Neil Rupert 15

(e) Douglas Strankman. 15

(f) Aleksander Trzebski 15

3. The Evidence about the Design of the Water Pump System.. 15

(a) Christopher White. 16

(b) Gregory West 17

(c) Ted Stockton. 17

E. Methodology: The Test for Certification. 17

1. Introduction. 17

2. Certification: General Principles. 18

3. The Cause of Action Criterion. 19

4. Identifiable Class Criterion. 20

5. The Common Issues Criterion. 20

6. Preferable Procedure Criterion. 21

7. Representative Plaintiff Criterion. 22

F. Analysis of the Negligence Causes of Action. 22

G. The Contractual and Consumer Protection Causes of Action. 29

H. Unjust Enrichment 35

I. Disgorgement 36

J. Summary and Conclusion. 37

A. Introduction

[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] Kimberley Carter, Keith Halliday, and Deonarine Phagoo sue Ford Motor Company, Ford Motor Company of Canada Ltd., and Ford Credit Canada Limited, (collectively “Ford Motor Co.”) for $1.1 billion.

[2] The Plaintiffs allege that Ford Motor Co. designed, engineered, developed, researched, manufactured, marketed, distributed, sold, and leased motor vehicles in Canada containing a defective water pump. The Plaintiffs allege that the defective water pump is dangerous. They allege that the defect allowed the water pump to leak coolant into parts of the engine with the result that there was catastrophic damage to the engine and a dangerous situation for the drivers and passengers of the vehicles.

[3] The Plaintiffs move for certification of their action as a class action.

[4] Ford Motor Co. resisted the certification motion, and it asserted that none of the five certification criteria were satisfied.

[5] Ford Motor Co. also brought two cross-motions. In the first cross-motion, Ford moved for an Order that certain evidence be struck from the certification record. I granted that motion.[^2] In Ford’s second cross-motion, which replicated its challenge to the cause of action criterion for certification, Ford moved for:

(a) An order striking the Plaintiffs’ claims in negligence for failing to plead the required material facts, including failing to plead facts sufficient to distinguish allegations of liability as against each of the Defendants;

(b) An order striking the Plaintiffs’ claims in negligence on the basis that they fail to disclose a cause of action because they seek unrecoverable damages for diminution in value or other pure economic loss;

(c) An order striking the Plaintiffs’ claims for breach of express and implied warranties on the basis that they do not disclose a cause of action because (i) there has been no claim pursuant to an express warranty and (ii) the alleged implied warranty is precluded by the terms of the express warranty;

(d) An order striking the Plaintiffs’ claim for unjust enrichment as it is impermissibly founded on a claim in negligence;

(e) An order striking the Plaintiffs’ claims for breach of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched A and the Sale of Goods Act, R.S.O. 1990, c. S. 1, on the basis that, in the absence of privity, they do not disclose causes of action;

(f) An order striking the Plaintiffs’ claim for breach of the duty to act honestly and in good faith as it does not disclose an actionable wrong or reasonable cause of action;

(g) An order striking the Plaintiffs’ claim for restitutionary damages on the basis that no actionable wrong has been pled to support such damages.

[6] For the reasons that follow, with revisions to the class definition and to common issues, I certify a class action for negligence in design for a class of persons and corporations in Canada who while they owned or leased certain Ford Motor Co. vehicles had a water pump that failed and: (a) the vehicle sustained damage; or (b) the vehicle sustained damage and the Class Member suffered a personal injury.

[7] For the reasons that follow, I do not certify the Plaintiffs’ claims in negligence for negligent manufacturing, failure to warn, and for the cost of repairing a dangerous product that presents a real and substantial danger. For the reasons that follow, I do not certify the Plaintiffs’ claims sounding in contract or unjust enrichment, or for disgorgement.

B. Procedural Background

[8] On January 8, 2019, Ms. Carter and Mr. Halliday commenced a proposed class action against Ford Motor Co. The proposed Class Counsel is Koskie Minsky LLP.

[9] On April 17, 2020, Mr. Phagoo commenced a proposed class action against Ford. The proposed Class Counsel is Koskie Minsky LLP.

[10] On February 4, 2021, the Carter/Halliday action was consolidated with the Phagoo action and a Consolidated and Amended Statement of Claim was delivered.

[11] The Plaintiffs propose the following class definition:

"Class" or "Class Members" means all persons and corporations in Canada, except for Excluded Persons, who own, owned, lease or leased one of the Vehicles;

"Excluded Persons" means:

(i) the Defendants and their officers and directors;

(ii) the authorized motor vehicle dealers of the Defendants and the officers and directors of those dealers; and,

(iii) the heirs, successors and assigns of the persons described in subparagraphs (i) and (ii).

"Vehicles" means the following vehicles: 2007-2010 and 2015-present Ford Edge; 2011-2014 Ford Edge 285; 2011-present Ford Explorer; 2015-2017 Ford F-150 282; 2009-present Ford Flex; 2010-2012 Ford Fusion Sport; 2008-present Ford Taurus; 2008-2009 Ford Taurus X; 2007-2010 Lincoln MKX; 2007-2012 Lincoln MKZ; and 2008-2009 Mercury Sable.

[12] The Plaintiffs plead causes of action in (a) negligence; (b) breach of contract (warranty and duty of honesty and good faith performance); (c) breach of consumer protection statutes; and (d) unjust enrichment.

[13] The negligence allegations are pleaded in paragraphs 34-57 of the Consolidated and Amended Statement of Claim as follows:

The Defect

34. Every Vehicle contains the Defect. However, the Defect only manifests itself after each Vehicle reaches moderate mileage. The Defect in each Vehicle poses a safety risk to every occupant of each Vehicle and members of the public.

35. When the Defect manifests itself, coolant leaks from the water pump directly into other engine parts including the oil pan. Often times, the coolant mixes with the engine's oil. In many cases, this mixture of engine oil and coolant is carried throughout the engine leading to destruction of the engine. Catastrophic engine failure occurs regularly in the Vehicles. In other cases, the coolant interferes with and damages other engine components requiring expensive repair or replacement.

36. An internal chain-driven water pump, such as that contained in the Vehicles, is designed to last for the useful life of the engine, which, in modern vehicles, is well over 250,000 kilometres. Ford omitted the water pump from the maintenance schedules for the Vehicles, which indicate the Ford parts that need to be maintained, repaired or replaced within the first 250,000 kilometres. The Class relied on Ford’s representation that the water pump in the Class Vehicles does not require maintenance, repair or replacement before the vehicles are driven 250,000 kilometres or more.

37. The Defect is the result of defects in design, manufacturing materials and workmanship. By designing, manufacturing, assembling, inspecting, distributing, selling and leasing the Class Vehicles with the Water Pump Defect, Ford rendered the Vehicles defective and unsafe for their intended use and purpose.

38. The nature of the Defect's manifestation, leaking coolant into other engine parts and mixing with engine oil, comes with no warning. This causes immediate catastrophic engine failure, without the operator of the vehicle receiving any notice that the water pump failed and that the vehicle should be taken off the road.

39. The mixture of oil and coolant resulting from the Water Pump Defect has been described as a "chocolate milk" substance, which is devastating to an engine. Once this substance is spread throughout an engine, the engine will cease and replacement of the entire engine is required. This often occurs while the Vehicle is being driven.

40. Ford has provided no warning to the Plaintiffs and Class Members regarding the Water Pump Defect and associated safety risk. Instead, Ford publishes owner's manuals and maintenance schedules that do not disclose that the water pump should be repaired or replaced during the first 250,000 kilometres of the Class Vehicles' lives. Ford's maintenance schedules inform customers of the parts that are required to be maintained or replaced at certain intervals, up to 250,000 kilometres, however the water pump is omitted. As a result, Ford represents that the water pump is expected to last for the life of the engine, without the need for maintenance, repair or replacement. The Plaintiffs and Class Members relied on these representations that the Water Pump System does not need to be repaired, serviced or replaced during the life of the Vehicles.

Design Defects

41. The Defect is attributable, at least in part, to the fact that the Water Pump suffers from the following design defects:

(a) the elastomer bellows used in the mechanical seal in the Water Pump are perpetually immersed in coolant and susceptible to mechanical degradation by coolant chemical attack;

(b) the bearing seal in the Water Pump is not reinforced so it is not effective in preventing or mitigating coolant leaking into the bearing assembly if, and when, a fatigue crack develops in the elastomer bellows;

(c) the plastic impeller in the Water Pump is prone to breakage, particularly as compared to a more expensive metal impeller;

(d) the weep hole is prone to blockage by debris shed from a failing Water Pump; and,

(e) the Water Pump is contained within the engine block, rather than on the outside of the engine block, thereby maximizing engine damage when it fails.

42. The failure of the Water Pump is initiated by the failure of the elastomer bellows. The failure of the elastomer bellows sets off a chain of events culminating in complete failure of the Water Pump, where coolant leaks into the oil pan, mixes with the engine's oil, and causes severe engine damage.

43. There are a number of design alternatives that could and should have been employed by the Defendants, which would have been safer, including:

(a) using an elastomer material that is less susceptible to degradation by the engine coolant or shielding the elastomer bellows from exposure to the engine coolant;

(b) using a metal impeller in the Water Pump;

(c) reducing the dynamic loading on the elastomer bellows by modifying the impeller design, pump casing geometry and/or the mechanical drive system; and/or

(d) using a reinforced bearing seal that can prevent/mitigate leakage of coolant into the bearing assembly.

44. Another design alternative which would prevent engine coolant from mixing into the engine oil in the event of a water pump failure is to situate the water pump externally from the engine block. This design is commonly employed in modern vehicles. Such a design would have avoided catastrophic engine damage in the event of Water Pump failure. The Defendants used an external water pump in its vehicles before the class period and have employed an external water pump in newer model vehicles that have been manufactured and sold since the end of the Class Period.

Defendants' Knowledge of the Defect and the Safety Risk

45. The Defendants had knowledge and information with respect to the Defect. The Defendants intentionally, negligently and/or recklessly concealed the Defect from the Plaintiff and Class Members even though the Defendants knew or should have known of the Defect.

46. Knowledge and information were in the exclusive possession of the Defendants and their dealers and agents, including subcontractors and suppliers, and that information was not shared with the public or Class Members at any time.

47. As a result of pre-production and production testing and analysis, early consumer complaints made to the Defendants' network of exclusive dealers, warranty data compiled from dealers and the United States National Highway Traffic Safety Administration, repair order and parts data received from dealers, consumer complaints to dealers and testing performed in response to consumer complaints, the Defendants were aware (or should have been aware) of the premature failure of the Water Pump System in the vehicles. The Defendants knew, or should have known, that the Water Pump System Defect was not known or reasonably discoverable by the Plaintiff and Class Members before they purchased or leased Vehicles, or before the warranties on the Vehicles expired. The Defendants concealed the Defect and safety risk from the Plaintiff and Class Members.

48. The Defendants had actual knowledge that design, manufacturing, material and workmanship defects were causing Water Pump System failures in the Vehicles.

49. The Defendants knew that the Water Pump System failures posed a safety risk to the Plaintiff, Class Members and the public when the Vehicles were being used for their intended purpose. The Defendants knew of accidents and deaths that took place as a result of Water Pump System failures.

50. Notwithstanding the Defendants' exclusive knowledge of the Defect and its impacts, they did not disclose the defect to consumers at the time of purchase or lease of the Vehicles (or any time thereafter) and continued to sell Vehicles containing the Defect through to the present model year. The Defendants have intentionally, negligently, or recklessly concealed that the Water Pump System is defective, prone to premature failure and presents a safety risk, rather than disclosing this risk to consumers, including the Plaintiffs, the Class, and the public.

51. The Water Pump System is intended to last for the useful life of the engine without the need for repair or replacement and the Plaintiff and Class Members held this reasonable expectation. Thus, the failure of the Water Pump System in the Vehicles occurs prematurely and before any reasonable consumer would expect the failure to occur.

52. Ford has shifted costs associated with the Water Pump System Defect to the Class. The Defendants provide warranty coverage for Vehicles under one or more manufacturer’s warranties. Notwithstanding the fact that the Water Pump System should not fail in Vehicles for at least 250,000 kilometres and that the Defendants concealed the Water Pump System Defect, Ford has refused to repair or replace the water pump (and corresponding damaged engine parts) outside of the time periods covered by the manufacturer’s warranties.

NEGLIGENCE

53. The Defendants owed a duty of care to the Plaintiffs and the Class Members to ensure that the Vehicles were engineered, designed, developed, tested and manufactured free of dangerous defects. The Defendants also owed a duty of care to compensate the Plaintiff and Class Members for the cost of repairing the Defect, which presented a real and substantial danger. Moreover, the Defendants owed the Plaintiffs and the Class Members a duty to warn that the Vehicles contained a dangerous defect.

54. The Defendants knew or ought to have known and it was reasonably foreseeable that the Class Members would trust and rely on the Defendants' integrity in purchasing the Vehicles. The Defendants also knew or ought to have known and it was reasonably foreseeable that, if the Vehicles contained dangerous defects, the value of the Vehicles would diminish and the Vehicles could be subject to recalls, which would cause damages to the Class Members.

55. The reasonable standard of care expected in the circumstances required the Defendants to act fairly, reasonable, honestly, candidly and with due care in the course of engineering, designing, development, research, manufacture, marketing, distribution and sale of the Vehicles and importing, marketing and distributing them. The Defendants, through their employees, officers, directors and agents, failed to meet the reasonable standard of care and similarly failed to warn the Class Members.

56. The negligence of the Defendants resulted in damage to the Plaintiffs and the Class Members. Had the Defendants complied with the required standard of care, the Vehicles would have been sold free of dangerous defects.

57. As a result of the Defendants' failures, the Plaintiffs and Class Members suffered and will continue to suffer damages.

[14] In advancing the statutory claims, the Plaintiffs rely on Ontario’s Consumer Protection Act, 2002,[^3] and what they label “equivalent consumer protection statutes” from British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, and Newfoundland & Labrador; namely: (a) Business Practices and Consumer Protection Act, S.B.C. 2004 c.2; (b) the Fair Trading Act, R.S.A. 2000, c. F-2 [sic; the Consumer Protection Act, RSA 2000, c. C-26.3 has replaced the Fair Trading Act]; (c) the Consumer Protection and Business Practices Act, S.S. 2013, c. C-30.2; (d) the Business Practices Act, C.C.S.M., c. B120; (e) the Consumer Protection Act, C.Q.L.R., c. P-40.1; (f) and the Consumer Protection and Business Practices Act, S.N.L. 2009, c. C-31.1.

[15] The breach of contract and breach of duty of honesty and good faith performance are pleaded in paragraphs 58-64 and 77-79 of the Consolidated and Amended Statement of Claim as follows:

BREACH OF WARRANTY

58. The Defendants warranted to the Plaintiff and the Class Members that the Vehicles would be reasonably fit for the purposes of driving on roads in Canada and that the vehicles were free from defects.

59. Ford Motor Company of Canada, Ltd. provided the purchasers of the Vehicles with a written warranty that provides and represents, inter alia, that each Vehicle was designed, built and equipped so as to function adequately and properly for its intended use. In addition, an implied warranty applies to each transaction between the purchasers of the Vehicles and Ford Motor Company of Canada, Ltd. to the same effect, pursuant to the Consumer Protection Act, s. 9(2), the Equivalent Consumer Protection Statutes, and at common law.

60. Despite the foregoing warranties and representations, the Vehicles were sold or leased when they were negligently manufactured, designed, tested, assembled, built and equipped with the Defect in the Water Pump System and the Defendants concealed or failed to disclose the existence of the Defect to Class Members and the Plaintiffs.

61. The engines are warranted parts within the Vehicles. The Vehicles are therefore defective under the terms of the warranty and any similar or related extended warranties.

62. By failing to cure the defects within the warranty period, the Defendants breached the warranty.

63. Because of the Defect, the Vehicles are not reasonably fit or of a reasonably acceptable quality for the purposes of driving on roads in Canada.

64. Ford Motor Company of Canada, Ltd. has breached its contracts with the Plaintiffs and the Class Members and as a result the Plaintiffs and the Class Members have suffered damages.

BREACH OF DUTY TO ACT HONESTLY AND IN GOOD FAITH

77. The Defendants were obligated to comply with their own warranties granted in connection with the Vehicles. This obligation included ensuring that the Water Pump System contained no Defect.

78. The Defendants acted dishonestly and/or in bad faith by: (a) representing that the Water Pump System was fit for use and of merchantable quality and that it was under warranty; and (b) knowingly selling the Vehicles with the Defect and without an appropriate warranty to protect against the Defect over the Vehicles' reasonably expected lifespan. This was directly linked to the performance of the Defendants' warranty terms, which the Defendants neither intended nor designed to properly protect the Plaintiffs and Class Members against the Defect.

79. As a result of the Defendants' misconduct, there was no reason for the Plaintiffs and Class Members to be concerned with the Water Pump System and/or to seek an extended warranty because of the Defect (which was unknown to them at the time of purchase or lease).

[16] The Plaintiffs’ unjust enrichment claim is pleaded in paragraphs 65-68 of the Consolidated and Amended Statement of Claim as follows:

UNJUST ENRICHMENT

65. The Defendants caused the Plaintiff and the Class Members to pay for a dangerous product that they should not have purchased or, in the alternative, for which they should have paid less than they did.

66. As a result the Defendants were enriched by the payment or overpayment.

67. The Plaintiffs and Class Members suffered a deprivation equal to the Defendants' enrichment.

68. There is no juristic reason for the Defendants' enrichment and the Class Members' corresponding deprivation. The Class Members are entitled to restitution for the Defendants' unjust enrichment.

[17] The Plaintiffs propose the following common issues:

1. Were the Defendants, or any of them, negligent in the engineering, design, development, research, manufacture, marketing, distribution, and sale of the Vehicles? More specifically:

(A) Do the Defendants, or any of them, owe a duty of care to the Class?

(B) If so, what is the standard of care applicable to the Defendants, or any of them?

(C) Did the Defendants, or any of them, breach the applicable standard of care? If so, when and how?

2. Did the Defendants, or any of them, breach any express or implied conditions or warranties of fitness, merchantability and quality of the Vehicles?

3. Has the conduct of the Defendants resulted in an unjust enrichment to the Defendants, or any of them?

4. If one or more of the above common issues are answered affirmatively, can the amount of damages payable by the Defendants, or any of them, be determined on an aggregate basis? If so, in what amount and who should pay such damages to the class?

5. Should punitive and/or aggravated damages be awarded against the Defendants, or any of them? If so, in what amount?

6. By virtue of their wrongdoing via any of the common issues listed above, are the Defendants, or any of them, liable to account and disgorge to the Plaintiffs and Class Members, any part of the proceeds or profits realized on the sale of the Vehicles? If so, in what amount and for whose benefit is such a disgorgement to be made?

[18] On February 16, 2021, Ford Motor Co. delivered its Statement of Defence.

[19] On February 26, 2021, the Plaintiffs brought a motion to strike paragraphs 1, 10, 14, 16, 18, 22, 25, 30-32, 34-37, 42-45, 50-51, 53-60, 65, and 71-75 of Ford Motor Co.’s Statement of Defence. For the purposes of this certification motion, I adjourned the Plaintiff’s motion to strike Ford Motor Co.’s Statement of Defence.

C. Evidentiary Background

[20] The Plaintiffs supported their certification motion with the following evidence:

• the affidavit of Arthur Bellefeuille dated January 15, 2021. Mr. Bellefeuille is a putative Class Member. He previously owned a 2013 Ford Taurus. He was cross-examined.

• the affidavit of Kimberley Carter, sworn May 6, 2020. Ms. Carter is one of the Plaintiffs and the former partner of Mr. Halliday. Ms. Carter was cross-examined.

• the affidavit of Keith Halliday, sworn May 7, 2020. Mr. Halliday is one of the Plaintiffs and the former partner of Ms. Carter. Mr. Halliday was cross-examined.

• the affidavits of Catherine MacDonald dated July 31, 2020 and March 8, 2021. Ms. MacDonald is a legal assistant at Koskie Minsky LLP.

• the affidavit of Deonarine Phagoo dated May 4, 2020. Mr. Phagoo is one of the Plaintiffs. He was cross-examined.

• the affidavit of David Rosenfeld dated July 3, 2020. Mr. Rosenfeld is a partner of Koskie Minsky LLP.

• the affidavit of Laurie-Neil Rupert dated January 15, 2021. Mr. Rupert is a fleet manager in the locomotive industry that used to drive a 2010 Ford Edge, which had been purchased by his wife. He was cross-examined.

• the affidavit of Ted Stockton dated January 15, 2021. Mr. Stockton is the Vice President and Director of Economics Services of the Fontana Group, Inc. a consulting firm located it Tucson, Arizona. He has a BA in economics and a MS in applied economics. His corporation, Fontana, provides economic consulting services and expert evidence regarding the retail motor vehicle industry. Mr. Stockton was cross-examined.

• the affidavit of Douglas Strankman dated January 15, 2021. Mr. Strankman’s corporation owned a 2008 Ford Lincoln MKZ.

• the affidavit of Aleksander Trzebski dated January 15, 2021. Mr. Trzebski owned a 2011 Ford Edge Limited. He was cross-examined.

• the affidavits of Christopher White dated July 27, 2020, January 15, 2021, and March 1, 2021. Dr. White of East Kingston, New Hampshire is professor of Mechanical Engineering with a Ph.D. from Yale University. He is the Department Chair of the Mechanical Engineering Department of the University of New Hampshire. Dr. White was cross-examined.

[21] Ford resisted the certification motion with the following evidence:

• the affidavit of Gregory West dated December 15, 2020. Mr. West is a design analysis engineer at Ford. He has been a Ford employee for more than thirty years. His current position is Design Analysis Engineer at the Design Analysis Department located at Ford World Headquarters in Dearborn, Michigan.

D. Facts

1. Ford Motor Company and the Vehicles

[22] As is well known, Ford Motor Company was one of the founders of the modern automotive industry. It is a company incorporated in Delaware. Its principal executive offices are in Michigan. It is the parent company of Ford Motor Company of Canada, Ltd.

[23] Ford Motor Company of Canada, Ltd. is a company incorporated in Ontario whose head office is in Oakville, Ontario. It is a subsidiary of Ford Motor Company

[24] Ford Credit Canada Company is a company incorporated in Nova Scotia whose principal place of business is in Oakville, Ontario. It is another subsidiary of Ford Motor Co.

[25] Ford Credit Canada Company, mistakenly named as Ford Credit Canada Limited, offers financing for vehicle purchases, but it does not provide financing for leasing. Ford Credit Canada Company has no involvement with any of the issues raised in the plaintiffs' Consolidated and Amended Statement of Claim. There is no basis in fact for a claim against Ford Credit Canada Company, and I shall not certify any claim against it.

[26] Ford Motor Company and Ford Motor Company of Canada designed and manufactured vehicles that have a 3.5L or 3.7L cyclone engine with an internal water pump. The vehicles are designed and manufactured by Ford Motor Company and some are assembled by Ford Motor Company of Canada.

[27] In the previous fourteen years, 396,787 subject Ford Motor Co. vehicles have been manufactured and then sold or leased in Canada.

[28] There have been no product recalls initiated by Ford Motor Co. There have been no safety investigations or safety recalls initiated by Transport Canada or by NHTSA (National Highway Traffic Safety Administration) relating to the subject vehicles’ water pumps.

[29] Ford Motor Co. distributes the vehicles to independent franchised dealers. The dealers are not agents of Ford Motor Co.

[30] In some cases, Ford Motor Co. sells vehicles directly to large fleet or government customers. Theses customers are not consumers as defined by consumer protection legislation.

[31] Ford Motor Co. supplies the subject vehicles to independent franchised dealers. The dealers are the vendors and lessors of the vehicles. The vehicles are sold by the dealers with a New Vehicle Limited Warranty.

[32] For present purposes, the following terms of the warranty and its guidebook are pertinent:

Your Ford New Vehicle Limited Warranty

Ford Motor Company of Canada, Limited (Ford of Canada) warrants that its authorized dealers will repair, replace or adjust those parts on Ford cars and light trucks, that are found to be defective in materials or workmanship made or supplied by Ford for the coverage periods described in the Warranty Information section of this Warranty Guide.

WHAT IS COVERED?

Basic Coverage

Under your New Vehicle Limited Warranty, Basic Coverage begins at the original warranty start date and lasts for 36 months or 60,000 km (whichever occurs first). The complete vehicle is covered under this Basic Coverage, except components listed under the following warranties in this Warranty Guide, and those items listed under “What is Not Covered Under this New Vehicle Limited Warranty?” on page 11.

Powertrain Coverage

Under the New Vehicle Limited Warranty, the Powertrain Warranty Coverage covers certain components against defects in factory-supplied materials or workmanship for 5 years or 100,000 km (whichever occurs first) from the original warranty start date. (F-Super Duty equipped with a 6.7L diesel engine has a Unique Powertrain Coverage that extends beyond the 5 years or 100,000 km (whichever occurs first) Powertrain Coverage, see details below). The covered components listed under the Powertrain Warranty are:

Engine - All internal lubricated parts; cylinder block; cylinder heads; electrical fuel pump; electronic engine control unit; engine mounts; flywheel; injection pump; manifold (intake and exhaust); manifold bolts; oil pan; oil pump; seals and gaskets; thermostat; thermostat housing; timing chain cover; timing chain gears and belts; valve covers; water pump.

New Vehicle Warranty Limitations

The foregoing coverage described in the New Vehicle Limited Warranty are the only express warranties on the part of Ford of Canada and the selling dealer. You may have other rights which may vary by province.

The foregoing express warranties are in substitution for and exclude all other liabilities of any kind whether arising under statute, in tort, by implication of law or otherwise including, to the full extent as may be allowed by law, liability for any other representations respecting the vehicle, statutory warranties or implied warranties or conditions as to its merchantability or fitness.

Any implied warranty or condition as to merchantability or fitness is limited to the applicable warranty duration period as specified herein.

In no event shall Ford of Canada or the selling dealer be liable for the loss of or damage to the vehicle or its parts, loss of use of the vehicle, loss of time, inconvenience, commercial loss, or special consequential or other damages, or on any other claims relating to or arising from any defect in factory materials or workmanship found except as provided for herein.

The above provisions do not preclude the operation of any applicable provincial statute which in certain circumstances may not allow some of the limitations and exclusions described in these warranty coverages.

In the province of Saskatchewan the duration of the applicable statutory warranties of that province shall be concurrent with and not consecutive to the duration of the foregoing coverage of this Ford of Canada New Vehicle Limited Warranty.

Defects vs. Damage

Please note the distinction between “defects” and “damage” as used in the warranty. Defects are covered because we, the manufacturer, are responsible. This includes defects in Ford-supplied parts used in making warranty repairs as well as in the original parts of the vehicle. On the other hand, we have no control over damage caused by such things as modifications, collision, misuse and lack of maintenance. Therefore, damage is not covered under this warranty.

Does the New Vehicle Limited Warranty Apply to Your Vehicle?

Warranty Applies

The New Vehicle Limited Warranty described in this booklet applies to your vehicle if:

• It was originally sold or leased by a Ford of Canada dealer; and

• Is registered/licensed and operated in Canada or the United States.

If You Are a Subsequent Ford Owner...

If you are a subsequent Ford owner and the New Vehicle Limited Warranty has not yet expired, you are entitled to the unexpired portion of the warranty. Please send us the completed Owner Information Change Card found at the centre of this Warranty Guide (postage paid).

[33] The coverage provided in the New Vehicle Limited Warranty may be extended by an extended service plan.

[34] The subject vehicles contain what is known as the “cyclone” engine. An internal water pump system circulates coolant in the cyclone engine.

[35] The Plaintiffs allege that the water pump system has been negligently designed and manufactured. The Plaintiffs allege that Ford Motor Co. was negligent in failing to warn about the water pump system. The Plaintiffs allege that Ford has known since 2007 that the water pump system contains a defect.

[36] It was in 2007, that Ford began installing an internal water pump system instead of an external accessory belt-drive water pump system. The Plaintiffs allege that the defects of the water pump system cause the water pump system to leak coolant which may mix with lubricants circulating in the engine. The Plaintiffs allege that if coolant mixes with engine oil, then the operating parts of the engine may seize and become inoperative creating a situation of danger. The engine itself may be destroyed.

[37] The Plaintiffs allege that Ford Motor Co. refuses to compensate owners for repairing the vehicles. The Plaintiffs allege that Ford Motor Co. refuses offer a non-defective replacement for its defective and dangerous water pump. The Plaintiffs allege that the vehicles are a threat to public safety.

2. The Evidence of the Plaintiffs and the Putative Class Members

[38] The Plaintiffs and four Class Members testified that they or a member of their family or their business are current or former owners of vehicles manufactured by Ford Motor Co with a 3.5L or 3.7L cyclone engine with an internal water pump. They respectively testified about their unfortunate experiences with their vehicles.

[39] Before describing the evidence of the deponent Plaintiffs and Class Members, it shall be important to identify the following similarities and differences in their evidence:

a. All the deponents were owners of vehicles manufactured by Ford Motor Co. with the allegedly defective water pumps.

b. None of the deponents purchased their vehicles from Ford Motor Co. directly. Some of the vehicles were purchased by the deponents from independent dealers associated with Ford Motor Co. Some of the vehicles were purchased from used car dealers.

c. Six of the deponents (Bellefeuille, Carter/Halliday, Rupert, Strankman, Trzebski) purchased used cars. One of the deponents purchased a new car (Phagoo) from an independent Ford vehicle dealer. Two of the deponents, Rupert and Trzebski purchased a used car in a sale with a private owner.

d. The warranties and extended warranties provided to purchasers of the vehicle do not represent or warrant that the water pump has an effective lifespan in which it will not fail.

e. The vehicles of all of the deponents were damaged and all the deponents attribute the cause of the damage to the allegedly defective water pump system.

f. The age of the vehicles at the time of the alleged failure of the water pumps was: 7 years (Bellefeuille); 8 years (Carter/Halliday); 8 years (Phagoo); 8 years (Trzebski); 10 years (Rupert); and 13 years (Strankman).

g. The mileage on the vehicles at the time of the alleged failures of the water pumps was: 90,000 km (Trzebski); 169,500 km (Phagoo); 186,000 km (Carter/Halliday) 100,000 km (Bellefeuille); circa 184,000 km (Rupert); and 224,000 km (Strankman).

h. At the time when their vehicles were damaged from an alleged water pump failure, none of the deponents had warranties or their warranties had expired.

i. One of the deponents replaced the water pump (Rupert), four of the deponents replaced the engine and the water pump (Carter/Halliday, Phagoo, Strankman), and two of the deponents did not repair and instead disposed of the vehicle (Bellefeuille, Trzebski).

j. None of the deponents suffered personal injuries.

k. Six of the deponents (Bellefeuille, Carter/Halliday, Phagoo, Rupert, and Strankman) of the seven deponents continued to use the vehicles after the water pump system was replaced with a similar water pump system.

(a) Arthur Bellefeuille

[40] In 2017, Mr. Bellefeuille purchased a used 2013 Ford Taurus with 36,000 kilometres of mileage. He did not purchase an extended warranty. At the time, he owned and had been driving a 2011 Ford Taurus, which he gave to his daughter to use. In February 2019, a mechanic told Mr. Bellefeuille that the water pump in the 2013 Taurus was leaking and needed to be changed. The mileage at the time was 100,000 km. Rather than having the water pump repaired, he traded in the vehicle and purchased a 2018 Ford Taurus. All of these vehicles had the same water pump system that the Plaintiffs allege is defective. Mr. Bellefeuille and his daughter continue to drive their vehicles.

(b) Kimberley Carter and Keith Halliday

[41] Ms. Carter, who is a business manager, is a resident of Brampton, Ontario. She is the former partner of Mr. Halliday. He is an electricity linesman who is now a resident of Gibbons, Alberta. They were the co-owners of a 2011 Edge manufactured by Ford Motor Co., which was purchased in 2012 as a used car from the previous owner, Canadian Auto Recycling Ltd. They purchased extended warranty coverage to 180,000 km.

[42] On December 2, 2018, the Carter/Halliday vehicle had mileage of 186,000 kilometres. That day, Ms. Carter was at a Tim Horton’s drive-thru when the brakes and steering stopped functioning. She restarted the vehicle. The check engine light on the dashboard flashed. She drove the vehicle to a nearby parking lot and called Mr. Halliday. He told her it was safe to drive the few blocks to their home. The vehicle stopped before reaching its destination and then was towed to a Ford vehicle dealership. Ms. Carter and Mr. Halliday were told that the water pump system had destroyed the engine. They purchased a rebuilt engine for $8,585. The rebuilt engine uses the same water pump system. Mr. Halliday continues to use the vehicle in Alberta. The vehicle now has 218,000 kilometres of mileage.

(c) Deonarine Phagoo

[43] Mr. Phagoo, who is a chemical engineer, is a resident of Scarborough, Ontario. In 2010, he purchased a new 2011 Ford Explorer manufactured by Ford Motor Co. and sold by an independent Ford dealer. He did not purchase an extended warranty. On the evening of December 24, 2018, the vehicle had mileage of 169,500 kilometres. That evening, while Mr. Phagoo’s brother-in-law was driving the vehicle on Highway 401 to take Mr. Phagoo, his wife, and their three children to the airport for a holiday vacation, after about 10 kilometres of travel, the vehicle lost power and the accelerator stopped functioning. The driver pulled over to the left-hand shoulder, re-started the vehicle, and then crossed to the right-hand lane. Less than two kilometres later, the vehicle lost power and the engine was emitting steam. The driver pulled over to the right-hand shoulder. The driver again restarted the vehicle and then drove it approximately 30 kilometres to the nearest exit ramp. The engine stopped again. The vehicle rolled to a gas station at the end of the exit ramp. Mr. Phagoo's mechanic reported that the engine had been destroyed due to the defective water pump. Mr. Phagoo paid $4,200 for a used engine replacement. The used engine has a similar water pump. Mr. Phagoo continues to use the vehicle, which now has 212,000 kilometres of mileage.

(d) Laurie-Neil Rupert

[44] In 2017, Mr. Rupert’s wife purchased a used 2010 Ford Edge in a private sale. Mr. Rupert, who is an experienced mechanic, assisted his wife in making the purchase. The used vehicle had 150,000 kilometres of mileage. The vehicle was past its warranty, and the Ruperts did not purchase an extended warranty. Mr. Rupert ignored the recommendation to replace the coolant at 168,000 kilometres. In April 2019, the vehicle’s mileage was circa 184,000 km. In April 2019, while Mr. Rupert was driving, the engine light turned on, and the vehicle stalled. He restarted the vehicle and drove home. He examined the vehicle and decided to replace the water pump, which he did himself. The Ruperts kept driving the vehicle for 1.5 years and then they sold it.

(e) Douglas Strankman

[45] Mr. Strankman is a farmer in Blackfields, Alberta. He is an experienced mechanic, and as through his corporation, he owns a used 2008 Lincoln MKZ. He purchased the vehicle from a dealership. The vehicle originally had 12,000 kilometres of mileage and by 2020, the vehicle’s mileage was 224,000 kilometres. In January 2020, while driving to the Calgary International Airport, Mr. Strankman pulled over to the side of highway after the vehicle made a rattling noise. He determined that it was unsafe to drive the vehicle. The vehicle was towed to his home. He examined the engine and the water pump. He found oil and coolant sludge in the engine and debris in the water pump system. He was told by a foreman at his Ford dealership that water pump failures were common. Mr. Strankman replaced the engine in the vehicle with a used engine that had the same water pump system. He purchased the replacement for $3,500.

(f) Aleksander Trzebski

[46] In March 2018, Mr. Trzebski purchased a used 2011 Ford Edge with 80,000 kilometres of mileage from a private owner. There was no warranty, and he did not purchase an extended warranty. On February 2, 2019, he was driving the vehicle with his wife and new-born child. The mileage was 90,000 kilometres. The engine began to shake, and the engine light illuminated. He stopped the vehicle on a crowded ramp on a bridge in downtown Vancouver. He called a Ford dealership and a representative told him to drive the vehicle to the dealership, which he did not do. The vehicle was towed to the dealership. At the dealership, a mechanic advised him that the engine needed to be replaced at a cost of $9,000. Mr. Trzebski decided to sell the vehicle for scrap.

3. The Evidence about the Design of the Water Pump System

[47] In its motion record, the Plaintiffs supported their motion for certification with an opinion from Dr. White, who is a mechanical engineer. Ford Motor Co. responded with factual evidence from Gregory West, a design analysis engineer who reported about data from Ford Motor Co.’s warranty records. In their Reply Motion record, the Plaintiffs replied with additional reports from Dr. White and also with an opinion from Mr. Stockton, who is an economist.

(a) Christopher White

[48] Dr. White is a professor of mechanical engineering at the University of New Hampshire with expertise in automotive engineering and engine fluid dynamics. Dr. White filed expert reports dated July 23, 3020, January 13, 2021, and February 28, 2021.

[49] It was Dr. White’s opinion that water pumps placed internally, which is to say inside the engine block, are more dangerous than water pumps placed externally, because unlike externally located pumps, if the pump leaks fluid, the fluid will penetrate engine parts that may compromise the operation of the engine. He said that catastrophic and instantaneous engine failures can occur in an engine with an internal water pump because of the sensitive nature of the other engine parts within the engine block.

[50] Dr. White said that internal water pumps are “lifetime parts” which cannot be replaced or maintained during the lifespan of the vehicle, which he said is 250,000 kilometres. Although he conceded that many of the internal water pumps did not fail before 250,000 kilometres, it was Dr. White’s opinion that the water pumps were prone to fail before the lifespan of the vehicle and that Ford Motor Co. should have designed water pumps to last the lifetime of the vehicle.

[51] Dr. White identified the following alleged design defects: (a) the mechanical seal and elastomer bellows are immersed in coolant, making them susceptible to mechanical degradation by coolant chemical attack; (b) the bearing seal is not reinforced; (c) the plastic impeller is prone to breakage; and (d) the weep hole is prone to blockage by debris shed from the failing pump.

[52] Dr. White explained that a chain reaction from a defective internal water pump causes the catastrophic engine failure. Visualize: the mechanical seal of the internal water pump degrades over time and combined with the high dynamism of the operation of the elastomer bellows in the pump, leads to the formation of fatigue cracks in the bellows, which cracks allow for fluid leakage across the mechanical seal, which in turn causes the bearings of the water pump to fail. (The leak cannot be captured by the water pump’s small weep hole that can only guard against minor leaks.) If a water pump operates with failed bearings, then coolant will leak through the pump drive shaft and onto the oil pan, where the coolant mixes with the engine oil compromising the oil and eventually the engine will seize and self-destruct. Dr. White opined that although this failure mode may occur over time, it suddenly manifests to the driver who could have done nothing to stop it because the water pump is located in a place where inspection or maintenance is impossible.

[53] Dr. White provided five alternative designs that he said could be used to eradicate the defects; namely: (a) use material less susceptible to degradation; (b) shield the elastomer bellows to protect it from coolant immersion; (c) modify the elastomer by changing the impeller design, the pump casing geometry, or the mechanical drive system; (d) reinforce the bearing seal; and (e) use an external water pump.

[54] Although the evidence from the Plaintiffs’ deponents in the immediate case belied some of the assumptions and some of the conclusions of Dr. White, for the purposes of this certification motion, I accept his evidence as showing that there is some basis in fact for proving that the water pumps have a design defect that may lead to a destruction of the engine with attendant property damage and with the possibility of personal injuries.

[55] As an example of evidence that belied Dr. White’s opinion, he opined that the manifestation of the defect into catastrophic damage to the engine came suddenly without warning; however, the evidence from the deponents revealed that in some instances, the engine light flashed a warning and damage might have been averted if the driver did not continue driving the vehicle. Further, the evidence of the deponents revealed that in some instances, there was damage to the water pump but no catastrophic damage to the engine. Further still, the evidence of the deponents in the immediate case, revealed that in some instances, there may have been other explanations for why the water pump and or the engine failed.

(b) Gregory West

[56] Mr. West reviewed Ford of Canada’s warranty records with respect to water pump claims. He said that Ford Motor Co. had paid claims for 0.57% of the vehicles supplied by Ford Motor Co. My conclusion is that for the purposes of this certification motion, Mr. West’s evidence was neither helpful nor harmful to any party and in my opinion for present purposes nothing turns on Mr. West’s evidence about warranty claims.

(c) Ted Stockton

[57] Mr. Stockton is an economist with experience analyzing warranty claims data. As noted above, he was retained to reply to Gregory West’s evidence about Ford Motor Co.’s experience about water pump warranty claims. It was Mr. Stockton’s opinion that Mr. West’s evidence of an only 0.57% experience of successful warranty claims substantially underestimated the failure rates of the internal water pump systems, but the evidence did reveal that water pumps have an increasing propensity before the end of the lifetime of the vehicle.

[58] Assuming that water pumps should not fail before a vehicle has mileage of 250,000 kilometres, Mr. Stockton opined that the increased failure rates over time indicated a defect in the water pump.

[59] In cross-examination, Mr. Stockton stated that he cannot comment on failure rate significance and he cannot provide helpful analysis of failure rates without more data.

[60] My conclusion is that for the purposes of this certification motion, Mr. Stockton’s evidence was neither helpful nor harmful to any party and nothing turns on it.

E. Methodology: The Test for Certification

1. Introduction

[61] In the immediate case, the Plaintiffs plead three types of causes of action. Each of these genres has multiple branches. The Plaintiffs’ first and primary causes of action are products liability negligence claims with respect to the alleged defective water pump. The Plaintiffs’ second types of causes of action are breach of contracts claims with respect to alleged warranties with respect to the water pump. The Plaintiffs’ third type of cause of action is unjust enrichment with respect to not honouring the warranties or for not recalling and replacing the allegedly defective water pumps. The Plaintiffs also plead the remedy of disgorgement, which is not strictly speaking a cause of action.

[62] Typically, the analysis of the certification criterion proceeds sequentially beginning with an analysis of the cause of action criterion followed by an analysis of the other criterion one after the other in the order that is set out in s. 5 of the Class Proceedings, Act, 1992. However, in the immediate case, because of the multiplicity of doctrinally different causes of action and because of the Defendants’ arguments and the Plaintiffs’ counterarguments, it is necessary to determine severally and discretely which causes of action are certifiable in accordance with all of the certification criterion blended together.

[63] This methodology is required in part because Ford Motor Co. accepts that the proposed class definition is technically sound, but it argues that the definition is overinclusive because it includes Class Members: (a) who do not have a viable cause of action; or (b) for whom there is no basis in fact that a viable cause of action exists; or (c) for whom there is no commonality for the proposed common issues; (d) for whom a common issues trial would not be the preferable procedure to resolve their claims; or (e) for whom there is no Representative Plaintiff with a claim.

[64] To undertake this methodology for the immediate case, I shall explicate the general principles of the test for certification in this part of my Reasons for Decision and then analyze each discrete type of cause of action advanced by the Plaintiffs in the following separate parts of my Reasons for Decision.

2. Certification: General Principles

[65] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) 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 (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[66] On a certification motion, the question is not whether the plaintiff's claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[^4] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[^5]

[67] 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.[^6] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[^7] In particular, there must be a basis in the evidence to establish the existence of common issues.[^8] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions are common to all the class members.[^9]

[68] 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.[^10]

3. The Cause of Action Criterion

[69] The first criterion for certification is that the plaintiff's pleading discloses a cause of action.

[70] The "plain and obvious" test for disclosing a cause of action from Hunt v. Carey Canada,[^11] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.[^12]

[71] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[^13]

[72] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^14]

[73] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^15] and the court's power to strike a claim is exercised only in the clearest cases.[^16] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^17] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^18]

4. Identifiable Class Criterion

[74] The second certification criterion is the identifiable class criterion. The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice.[^19]

[75] In defining the persons who have a potential claim against the defendant, there must be a rational relationship between the class, the cause of action, and the common issues, and the class must not be unnecessarily broad or over-inclusive.[^20] An over-inclusive class definition binds persons who ought not to be bound by judgment or by settlement, be that judgment or settlement favourable or unfavourable.[^21] The rationale for avoiding over-inclusiveness is to ensure that litigation is confined to the parties joined by the claims and the common issues that arise.[^22] The class should not be defined wider than necessary, and where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.[^23] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[^24]

5. The Common Issues Criterion

[76] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member's claim and its resolution must be necessary to the resolution of each class member's claim.[^25]

[77] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[^26]

[78] An issue is not a common issue if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[^27] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[^28] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[^29]

[79] The common issue criterion presents a low bar.[^30] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[^31] Even a significant level of individuality does not preclude a finding of commonality.[^32]A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[^33]

[80] From a factual perspective, the Plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and, (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class Members and the proposed common issues.[^34]

6. Preferable Procedure Criterion

[81] Under the Class Proceedings Act, 1992, the fourth criterion for certification is the preferable procedure criterion. Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute.[^35]

[82] In AIC Limited v. Fischer,[^36] the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[^37] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues.[^38] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members' claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^39]

7. Representative Plaintiff Criterion

[83] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[^40]

F. Analysis of the Negligence Causes of Action

[84] The blended analysis may begin with the Plaintiffs’ claims in negligence.

[85] To recover for negligence, a plaintiff must prove all the elements of the tort of negligence: (1) that the defendant owes the plaintiff a duty of care; (2) that the defendant's behaviour breached the standard of care; (3) that the plaintiff suffered compensable damages; (4) that the damages were caused in fact by the defendant's breach; and, (5) that the damages are not too remote in law.[^41]

[86] In the immediate case, the third constituent element of negligence is particularly significant because the Plaintiffs advance a claim for pure economic losses and this type of damages is only available for tort claims in limited circumstances.

[87] There are four established genres of product liability causes of action in negligence.[^42] First, there is design negligence; manufacturers have a duty of care in designing the product to avoid safety risks and to make the product reasonably safe for its intended purposes.[^43] Second, there is manufacturing negligence; manufacturers have a duty of care to consumers to see that there are no defects in manufacture that are likely to give rise to injury in the ordinary course of use.[^44] Third, manufacturers have a duty of care to compensate consumers for the cost of repairing a dangerous product that presents a real and substantial danger.[^45] Fourth, there is a duty to warn; manufacturers have a duty of care to warn consumers of dangers inherent in the use of the product of which the manufacturer has knowledge or ought to have knowledge.[^46]

[88] In the immediate case, for the purposes of analyzing the certifiability of the Plaintiffs’ negligence causes of action, it is helpful and necessary to group putative Class Members in relation to the nature of their products liability negligence claims. More precisely, it is helpful and necessary for analytical purposes to allocate the putative Class Members, who are comprised of current or former owners and lessees of Ford vehicles that were equipped with the allegedly defective water pump, into the following analytical groups:

Group “A” - Putative Class Members who experienced the water pump failure and suffered a personal injury from a car accident. (Personal Injury Claimants).

Group “B” - Putative Class Members who experienced the water pump failure and whose vehicle was damaged from the water pump failure. (Property Damage Claimants).

Group “C” - Putative Class Members who have not experienced the water pump failure and are now aware that there are dangers inherent in the use of their vehicles because of an allegedly defective water pump. (Risk of Personal or Property Damage Claimants).

[89] As confirmed by the oral argument, Ford Motor Co.’s argument is the Plaintiffs have not pleaded facts that fit with any of the established genres of products liability claims. In its cross-motion and in resisting the Plaintiffs’ certification motion, Ford Motor Co. argues that the Plaintiffs’ products liability claim in negligence fails to disclose a cause of action because it does not (and cannot) plead material facts capable of establishing a real and substantial danger to the Plaintiffs. If correct, the ripple effect of Ford Motor Co.’s argument is that the class definition is overbroad and the other certification criterion for the negligence causes of action are not satisfied.

[90] The Plaintiffs disagreed with Ford Motor Co. and submitted that their claims are recognized products liability claims. Relying on numerous precedents where products liability claims have been certified against car manufacturers, the Plaintiffs asserted that their class action was a quintessential example of a certifiable products liability class action.[^47] Further, the Plaintiffs disavowed that they were advancing a novel products liability cause of action, and they disavowed that they were extending the boundaries of the negligence jurisprudence. They were adamant that their negligence claims satisfied the cause of action criterion and the other certification criterion based on the existing jurisprudence.

[91] To begin my own analysis, I shall start with the matter of whether the Plaintiffs have satisfied the cause of action criterion for their various products liability claims. As noted above, for the purposes of the cause of action criterion, the facts alleged in the Plaintiffs’ Consolidated and Amended Statement of Claim are assumed to be true and capable of proof, and based on that standard, in my opinion, the Plaintiffs have adequately pleaded only one of the four recognized genres of products liability negligence causes of action. In my opinion, the Plaintiffs satisfy the cause of action criterion just for their pleading of design negligence for putative Class Members who have actually suffered property damages to their vehicles with or without personal injuries.

[92] In my opinion, the Plaintiffs do not satisfy the cause of action criterion for a cause of action for negligence in manufacturing. The defects that the Plaintiffs identify are not defects in manufacture. In a point that is relevant to the discussion later about the scope of the alleged warranties, the Plaintiffs are incorrect in suggesting that there is a manufacturing defect in the material used to construct the water pumps. The material is not defective.

[93] In the immediate case, the material in the water pump is not alleged to have not met its own specifications; rather, the alleged negligence in the immediate case is in not choosing a material with different specifications that would make the water pump more durable. In the immediate case, there is no basis in fact that the material used in the water pump was itself defective. In the immediate case, it is the choice of a particular material that is alleged to be defective. The alleged negligence in the immediate case is about design choice.

[94] The Plaintiffs’ negligence in manufacturing claim cannot be differentiated from their design negligence claim. In other words, the Plaintiffs do not identify any defects in the manufacturing of the water pump apart from the defects in the design of the water pump. Design is about a manufacturer’s plan about how to build its product. This conclusion about negligence in manufacturing, however, is more technical than substantive because the Plaintiffs have adequately pleaded design negligence, and there is some basis in fact for a common issue about design negligence.

[95] In the immediate case, the certifiable design negligence claim is referable to analytical Group “A” (Personal Injury Claimants) and to Group “B” (Property Damage Claimants). In other words, in the immediate case, there is a claim for design negligence that satisfied all the certification criteria. The certifiable claim is for putative Class Members who may have suffered personal injuries or property damage associated with an actual water pump misadventure.

[96] These conclusions leave Group “C” (Risk of Personal or Property Damage Claimants), for analysis. In my opinion, the Plaintiffs do not satisfy the cause of action criterion, the common issues criterion, and the preferable procedure criterion for this group of Class Members.

[97] I agree with Ford Motor Co.’s argument that the Plaintiffs have not pleaded a reasonable cause of action in negligence for the cost of repairing a dangerous product. I agree with Ford Motor Co.’s argument that the Plaintiffs have not pleaded a reasonable cause of action for failure to warn about a dangerous product. I also agree Ford Motor Co.’s argument that even if the Plaintiffs had pleaded tenable products liability causes of action for the cost of repairing a dangerous product, the scope of the recovery would not encompass the diminution in value of the vehicle or consequential losses.

[98] As discussed further below, 1688782 Ontario Inc. v. Maple Leaf Foods Inc.,[^48] holds that defects in goods that do not present imminent threats are not compensable under tort law and are properly only the subject of contract law. In my opinion, Ford Motor Co. is correct that the pure economic products liability claims for Group “C” fail to disclose a cause of action because the Plaintiffs do not and cannot plead material facts capable of establishing a real and substantial danger to the putative Class Members. In the immediate case, the pure economic loss claim is not legally tenable, and it is precluded by the current state of the law. An implication of this conclusion is that the putative Class Members who constitute Group “C” must be excluded from the class definition.

[99] Pure economic loss is economic loss that is unconnected to injury to the plaintiff’s person, or to physical damage to property.[^49] The putative Class Members of Group “C” have an allegedly shoddy product. However, the established case law is that there is no recovery in negligence for a shoddy product other than for the cost of repairing a shoddy and dangerous product that presents an imminent real and substantial danger.[^50] The putative Class Members in Group “C,” which would appear to be the largest sized component of the class, have not yet suffered any personal or property loss, and their only claim is therefore a pure economic loss claim.

[100] For Group “C” claimants, the Plaintiffs are confronted with the problems of what in law counts for a product that presents an imminent real and substantial danger. The Plaintiffs are confronted with the ironical problem that they appear to be seeking compensation for repairing an allegedly dangerous product by replacing it with the same product, and this is ironic because the case law establishes that the public policy for allowing a pure economic loss claim in negligence and not leaving the parties to their contractual remedies is to take the dangerous product out of circulation not to continue its use by purchasing the same product. The Plaintiffs are confronted with the problem that apart from claiming the pure economic loss of repairing an allegedly defective and dangerous product, they are precluded from other economic losses such as the diminution in value of their vehicle, which would, in any event, be a difficult claim to prove since the vehicles will have depreciated in value over many years of purposeful non-defective use.

[101] The Supreme Court of Canada has formulated the law about pure economic loss claims for the negligent supply of shoddy goods in three cases. Recently (2020), in 1688782 Ontario Inc. v. Maple Leaf Foods Inc.,[^51] the Supreme Court explained Winnipeg Condominium Corp No 36 v. Bird Construction Co. (1995),[^52] which had adopted in part Justice Bora Laskin’s, as he then was, dissent in Rivtow Marine Ltd. v. Washington Iron Works (1974).[^53]

[102] In Maple Leaf Foods, in a majority decision written by Justice Brown and Martin,[^54] the Supreme Court dismissed a negligence claim in a proposed class action by Mr. Submarine franchisees, whose supply chain for sandwich meats was disrupted for several months when the defendant Maple Leaf Foods, the franchisor’s supplier, recalled its goods because of a listeria outbreak at its processing plant. The facts of Maple Leaf Foods are obviously far different from the immediate case. but Justices Brown’s and Martin’s explanation of the law reveals why the Plaintiffs in the immediate case do not have a reasonable cause of action for the putative Class Members in Group “C”.

[103] In their explanation of the law, Justice Brown and Martin explain that the liability rule from Winnipeg Condominium Corp No 36 v. Bird Construction Co., which would compensate a person for the cost of repairing goods was only rationalizable with the general legal principle that there is no compensation for damages that have not yet occurred by recognizing a legal right not to suffer damages from the exposure to an imminent threat to a person’s person or property. Justices Brown and Martin noted that the liability rule in Winnipeg Condominium protects a right to be free of a negligently caused real and substantial danger and does not provide a right to the continued use of goods. In other words, it is a predicate for recovery for the pure economic loss that the goods present an imminent real and substantial danger to health and safety.

[104] To quote Justices Brown and Martin at paragraph 45 of their judgement, “The point is that the law views the plaintiff as having sustained actual injury to its right in person or property because of the necessity of taking measures to put itself or its other property ‘outside the ambit of perceived danger’ …”. Justices Brown and Martin explained that the right to compensation for a threat of injury was delimited in availability and in the scope of recovery. There is no compensation if the defect presents no imminent threat. The scope of recovery is limited to mitigating or averting the danger, and where it is feasible for the plaintiff to simply discard the defective product, the danger to the plaintiff’s economic rights along with the basis for recovery falls away.

[105] Justices Brown and Martin explained that it will be rare that there will be recovery for a pure economic loss for consumer goods because more commonly the danger can be avoided by discarding the good. They explained that where there was no choice but to discard the good because it was not repairable the compensation would be limited to the expense of discarding the goods.

[106] Returning to the immediate case, the alleged defect in the design of the water pump does not present an imminent danger and there is no duty of care to warn a consumer that a manufacturer’s goods may be shoddy. The theory of the Plaintiffs’ negligence cause of action is that the water pumps at some indeterminate time in the future will degrade and present a danger. The Plaintiffs plead that “the Defect only manifests itself after each Vehicle reaches moderate mileage.” There is no imminent danger. Thus, for the putative Class Members that are in Group “C”, the Plaintiffs have not pleaded a reasonable cause of action.

[107] In other words, I agree with the submissions found in paragraphs 66 and 70 of Ford Motor Co.’s factum, which state:

66. [T]he essential element of imminent threat is nowhere to be found in the Claim. To the contrary, the Claim asserts that the Alleged Defects only cause Water Pump failure (and danger) after a Vehicle "reaches moderate mileage". The Claim itself pleads that the Halliday Vehicle failed after being driven 186,000 kilometres. Moreover, the plaintiffs are pursuing damages for a class of Vehicles that has been on the road for over 14 years and which the plaintiffs and certain of the Affiants continue to drive. There is no reason to think any danger is imminent to the plaintiffs (nor for the class whose Vehicles have achieved varied mileages).

67. Separately, the plaintiffs' claim in failure to warn, at its highest, asserts that the defendants owed a duty to warn purchasers that the Vehicles may have failures causing operational difficulties while driving. Whether as a result of a failure of the Water Pump or any other component, such possibilities are inherent in driving any automobile and obvious to any licensed driver. A manufacturer is not liable for failing to warn of obvious dangers.[^55]

[108] In reaching the above conclusion about dangerousness and the imminence of danger, I have not ignored the Plaintiffs’ reliance on cases where courts have certified products liability actions based on pleadings that allege that the defects make the goods dangerous or potentially dangerous such as: Barwin v. IKO[^56] (2012); Kalra v Mercedes Benz[^57] (2017); N&C Transportation Ltd. v. Navistar International Corporation[^58] (2016, aff’d 2018); Panacci v. Volkswagen[^59] (2018), and Mueller v Nissan Canada Inc. (2021).[^60] On the matter of dangerousness and its relationship to claims for pure economic losses, these cases, however, were all decided before 1688782 Ontario Inc. v. Maple Leaf Foods Inc. or do not mention the Supreme Court’s decision.

[109] In reaching the above conclusions about dangerousness and the imminence of danger, I also have not ignored my decision in Harris v. Bayerische Motoren Werke Aktiengesellschaft,[^61] or decisions like Bhangu v. Honda Canada Inc.,[^62] which are distinguishable with respect to whether the risk of engine failure caused by the alleged defect is imminent in the requisite sense or is a risk common to the class, given that the alleged defect is more about durability than inevitability. In this last regard, I note that a question of whether an alleged defect is common to the class begs or presupposes the matter of commonality and common issues cannot be dependent upon findings that have to be made at individual trials, nor can common issues be based on assumptions that circumvent the necessity for individual inquiries.[^63] Certification cannot be justified as an indirect tool to permit fishing expeditions and broad discovery of the members of a class in the hope that characteristics of commonality will emerge; only those cases where the existence of common issues is established at the certification stage ought to be certified, not those where commonality is indeterminable until after discovery.[^64]

[110] I also note that in reaching my conclusion that the Plaintiffs have not pleaded a claim within the parameters of 1688782 Ontario Inc. v. Maple Leaf Foods Inc., for Group “C” I do not rely on the Defendants’ argument about imminent danger found in paragraph 65 of their factum, which states:

65. The Claim figuratively catastrophizes the events associated with Water Pump failures, asserting conclusory statements, such as that they cause "significant danger and risk, causing collisions, injury and death". But the material facts pleaded (inability to accelerate and maintain speed and loss of power steering and power braking systems (i.e., still maintaining mechanical steering and braking) are not unreasonable risks; they are risks inherent in driving any automobile for which drivers are licensed. Exposure to such circumstances inherent in driving does not constitute an "imminent risk" or "real and substantial danger", particularly not beyond the normal danger associated with driving any automobile at any time. Consistent with the experiences of the plaintiffs (who suffered no injury to person or property from the Water Pump failures), it cannot be said that failure "would unquestionably have caused serious injury or damage". [footnotes omitted]

[111] While there may be merit to the spirit of the Defendants’ argument, to the extent that it reflects the policy of the law to not award compensation for injuries that are not actualized but only potential risks, I rather rely on the simpler argument that the theory of the Plaintiffs’ case does not plead the requisite element of an imminent danger. Rather, the Plaintiffs plead a non-imminent danger, a danger that may happen in the future. They plead a yet to be borne danger and one that may never be borne.

[112] I also rely on the simpler argument that even if the alleged defect in the water pump could be regarded as an imminent danger (perhaps based on the argument that pump and engine failure will eventually occur), the Plaintiffs are then faced with the problem that given the passage of time, for many putative Class Members it would be feasible and reasonable to simply discard the vehicle, rather than have it repaired, and, once again, a pure economic loss claim would not be tenable.

[113] Pausing here to summarize before continuing the analysis, it follows from the above analysis that the Plaintiffs satisfy the cause of action criterion for a design negligence claim and the identifiable class criterion for a class comprised of class of persons and corporations in Canada who while they owned or leased certain Ford Motor Co. vehicles had a water pump that failed and: (a) the vehicle sustained damage; or (b) the vehicle sustained damage and the Class Member suffered a personal injury.

[114] As to whether there is some basis in fact that these claims exist, I appreciate that in the immediate case that none of the deponents suffered personal injury, but there were close enough calls of accidents being adverted, and I conclude there is some basis in fact that there may be putative Class Members who have suffered a personal injury as a result of a water pump failure.

[115] To continue the analysis for the Group “A” and Group “B” claimants, it may be seen that with the deletion of the pure economic loss claimants, the immediate case becomes a normative products liability class action with normative common issues. It may further be seen that Mr. Halliday and Mr. Phagoo would satisfy the Representative Plaintiff criterion.

[116] It may be it was Mr. Halliday and not Ms. Carter who purchased their vehicle, but it is also possible that she was a joint-owner, so she also qualifies to be a Representative Plaintiff.

[117] To be more precise, applying the certification criterion tests, described above, for determining whether the Plaintiffs’ action satisfies the criteria for a design negligence products liability action, I conclude that the following common issues are certifiable for the putative Class Members of Groups “A” and “B”:

1. Were Ford Motor Company or Ford Motor Company of Canada negligent in the design of the water pump for Vehicles? More specifically:

(A) Does Ford Motor Company or Ford Motor Company of Canada owe a duty of care to the Class?

(B) If so, what is the standard of care?

(C) Did Ford Motor Company or Ford Motor Company of Canada breach the standard of care? If so, when and how?

2. Would the conduct of Ford Motor Company or Ford Motor Company of Canada justify punitive and/or aggravated damages to be awarded?

[118] It should be noted that I do not certify an aggregate damages common issue. In the immediate case, liability will ultimately have to be determined by individual issues trials to determine causation and quantum of damages. An aggregate damages common issue is not common to the class for the design negligence claim.

G. The Contractual and Consumer Protection Causes of Action

[119] To analyze the Plaintiffs’ Contractual and Consumer Protection Causes of Action, it is helpful and necessary to group the putative Class Members having regard to the nature of their claims. The following groups can be identified:

Group “1” – Putative Class Members with Express Warranty Claims.

Group “2” – Putative Class Members with Implied Warranty Claims.

Group “3” – Putative Class Members with Statutory Warranty Claims.

Group “4” – Putative Class Members with Duty of Honesty and Good Faith Performance Claims.

[120] For numerous reasons, Ford Motor Co. argues that the contractual and consumer protection causes of action are not certifiable. As I shall next explain, I agree that these claims are not certifiable.

[121] The analysis may begin with the preliminary observations that perhaps very many putative Class Members will not have contract claims or statutory claims because: (a) nothing has happened apart from a perceived risk that the putative Class Member’s vehicle’s water pump may fail after some indeterminate mileage less than 250,000 kilometres; (b) the putative Class made a warranty claim that was dealt with by Ford Motor Co.; (c) the putative Class Member purchased used cars after Ford Motor Co.’s contractual warranty or statutory liabilities, if any, were no longer applicable; and or (d) the Class Member may have no contractual claims (or negligence or unjust enrichment claims for that matter) because they disposed of their vehicles before there was any misadventure with the water pump. The pertinence of these observations will be explicated further below, but at the outset it may be noted that these observations support Ford Motor Co.’s argument that the proposed class definition is over-inclusive by including numerous putative Class Members who have no legal basis to assert a contractual claim against Ford Motor Co.

[122] As a preliminary observation, it also may be observed that for those putative Class Members who have a certifiable negligence claim, as described above, the contractual claims are largely redundant.

[123] Turning then to Group “1”, I agree with Ford Motor Co.’s argument that the Plaintiffs do not satisfy the cause of action and the common issues criterion for an express breach of warranty claim. I agree for three discrete reasons.

[124] First, as a matter of contract interpretation, it is plain and obvious that Ford Motor Co. did not warrant that the water pump would be free of the design defects alleged by the Plaintiffs.[^65]

[125] Ford Motor Co.’s New Vehicle Limited Warranty is aptly named. It is a limited warranty. It is plain and obvious what the express warranty promises, and what it does not promise is that the subject vehicles will be free of design defects. The limited warranty promises that Ford Motor Co. will be liable to pay for parts and to correct for defects in materials or workmanship and it disclaims consequential damages. It disclaims other warranties save for statutorily imposed warranties.

[126] The Plaintiffs argue that the express warranty applies because it is arguable that the water pump has defective materials. However, the submission is without merit. The Plaintiffs’ proposed class action is about a design defect. As noted above in the discussion of their negligence claims, the material used in the water pump is not defective; rather, the complaint is that the wrong type of material; i.e., not sufficiently durable material was chosen. There is no defect in the material as such.

[127] The second reason why the Group “1” putative Class Members do not have a breach of an express warranty claim is that if Ford Motor Co. did expressly warrant that the water pump would be free of the design defects alleged by the Plaintiffs, as a matter of contract interpretation, it is plain and obvious that it did not warrant that the water pump would be fee of the risk of the alleged designed defects. The express warranty covers actualities not potentialities. The implication of this reason is that those putative Class Members who did not actually experience a manifestation of the design defect have no express breach of warranty claim.

[128] The third reason why the Group “1” putative Class Members do not have a breach of an express warranty claim is that regardless of the interpretative scope of Ford Motor Co.’s express warranty, there is no basis in fact for concluding that there is a common issue with respect to whether Ford Motor Co breached its express warranty by not honouring it. If Ford Motor Co. did honour the warranty, then obviously the putative Class Member has no claim. If Ford Motor Co. did not honour the warranty, the putative Class Member has an individual issue to determine, not a common issue shared with other putative Class Members.

[129] Thus, I agree with Ford Motor Co.’s argument set out in paragraphs 73-75 of its factum, which states with footnotes omitted:

73. The breach of express warranty claim is unsustainable at law, and inconsistent with the defined scope of the warranty agreements. The warranty agreements are not contracts of sale, nor are they representations that the defendants will pre-emptively replace parts. They are agreements to repair or replace parts found to be defective by fault of Ford within defined conditions and for a limited time. There is no pleading that the plaintiffs (or anyone) asserted a request to repair or replace the Water Pumps under the [New Vehicle Limited Warranty] or an extended warranty within the defined conditions and coverage periods and was refused. Contrary to the organizing premise of the Claim, Ford of Canada has no obligation to pre-emptively repair or replace non-damaged parts under the terms of any warranty.

74. Additionally, the warranties only provide coverage for defects in "materials or workmanship", not design. The plaintiffs have not pleaded the existence of any such defects.

75. Unlike Panacci v Volkswagen (Panacci) (and like Kalra v Mercedes Benz, distinguished in Panacci), the warranties here explicitly limit owners' remedies to repair or replacement of the damaged part – all other claims are prohibited. The plaintiffs also rely on Mueller v Nissan Canada Inc. (Mueller), where the court certified a claim in express warranty based on the defendant manufacturer's admission that "in theory, it might have denied an express warranty claim if it determined that the damage was caused by inadequate maintenance or repair". This is not comparable to the plaintiffs' assertion that the defendants had an obligation under warranty to pre-emptively repair the Vehicles. Likewise, the Claim pleads no denials of express warranty claims, nor have the defendants made a comparable admission. Further, Mueller is not binding on this Court and the defendants submit the section 5(1)(a) analysis cannot be satisfied by pleadings of theoretical events (which in any event are not pleaded in this matter).

[130] For the above reasons, the members of Group “1” do not have a certifiable contract cause of action.

[131] Turning next to Group “2”, in my opinion, there is no certifiable claim for Group “2.” These claimants advance an implied warranty claim. However, I agree with Ford Motor Co.’s argument in paragraph 76 of its factum, that there is no implied warranty claim. Paragraph 76 states, footnotes omitted:

76. There are no material facts to ground a claim of breach of implied warranty at common law. […] [The] common law will not imply warranties inconsistent with express warranties. The express warranties exclude all other forms of liability and limit the scope of any implied warranties. The claim at common law for breach of implied warranty is accordingly determined by reference to the express warranty claim, which fails for the reasons above.

[132] To begin a more detailed analysis of the Group “2” claimants, I return to the preliminary observation above, that many putative Class Members will have no contractual relationship with Ford Motor Co. If there is no contractual relationship, then it is plain and obvious that these Class Members have no claim based on an implied warranty.

[133] The putative Class Members of Group “2” who, in theory, might qualify to rely on an implied warranty are confronted with an insurmountable obstacle. It is plain and obvious that these putative Class Members cannot imply a term inconsistent with the express terms of the underlying contract. A term will not be implied, if the term would be inconsistent with the existing wording of the contract; an implied term must fit with the existing contract.[^66] The implied warranties asserted in the immediate case for the Group “2” claimants do not fit with the provisions of the New Vehicle Limited Warranty.

[134] Further, even if the implied warranty claim satisfied the cause of action criterion, it would not satisfy the commonality requirement of the common issues criterion. Generally speaking, implied terms arise from the factual nexus of contract formation and given the diversity of the origins of class membership in the immediate case, any implied terms would be idiosyncratic. While there are exceptions where implied terms can be found to be common across a class, common issues relating to implied terms generally are not appropriate for certification where the existence of an implied term depends on an examination of the circumstances of the individual contract made with each Class Member.[^67]

[135] Thus, for Group “2” putative Class Members, the implied warranty claims are not certifiable.

[136] Turning to Group “3,” it is comprised of putative Class Members who advance claims for statutory warranties. Their claims would be based on breaches of warranties found in the provincial Sale of Goods Acts. In Ontario, the pertinent warranties are found in section 15 of the Sale of Goods Act,[^68] which states:

Implied conditions as to quality or fitness

15 Subject to this Act and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description that it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods will be reasonably fit for such purpose, but in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.

2. Where goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not), there is an implied condition that the goods will be of merchantable quality, but if the buyer has examined the goods, there is no implied condition as regards defects that such examination ought to have revealed.

3. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

4. An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.

[137] There are many problems for putative Class Members advancing a statutory warranty claim some of which are pointed out by Ford Motor Co. I agree with the Ford Motor Co.’s arguments that the claims of the Group “3” claimants are not certifiable, and I add my own reasons for concluding that these claims fail to satisfy the certification criterion.

[138] First, using Ontario’s Consumer Protection Act, 2002 as an example, the statutory warranty claims are only available to consumers. Many putative Class Members, however, are not consumers, and, thus, there is not a class-wide common issue, and although subclasses for qualified putative Class Members could be fashioned, the fragmentation of the putative Class Members adds fuel to the fire of an argument that questions whether the proposed class action is manageable if it contains breach of statutory warranties from across the country.

[139] Second, depending on the jurisdiction, for there to be an implied statutory warranty, there must be privity between the putative Class Member and Ford Motor Co. This pre-condition is not the case for Ontario’s Consumer Protection Act, which can in some circumstances operate without privity, but the problem is that for some Class Members outside of Ontario, there may be no basis to establish privity and the local provincial statute may require privity. In this regard, it should be recalled that some Class Members became owners by buying used vehicles after the New Vehicle Owners’ Warranty had long expired and there may be no other privity link to Ford Motor Co.

[140] Third, assuming that in the circumstances of the immediate case, for some Class Members, the implied warranties of the Sale of Goods Acts were available, it is apparent that there is no basis in fact for concluding that allegations of material fact in the Plaintiffs’ Consolidated and Amended Statement of Claim as pleaded would constitute a class-wide breach of the warranty.

[141] It is readily apparent that the case for a breach of the implied warranties that the goods will be reasonably fit for their purpose as automobiles and that the goods will be of merchantable quality are highly contentious individual issues. How can a vehicle be proven to be unmerchantable or unfit for its purpose when the alleged defect comes after the vehicle has been used for moderate to lengthy periods of time without a problem?

[142] I wish to be clear that I am not relying on Ford Motor Co.’s argument that it is plain and obvious that the allegations of material fact do not demonstrate a breach of the statutory warranties of the Sale of Goods Acts notwithstanding that Ford Motor Co. relies on a formidable list of precedents that reveal the narrowness of these warranties,[^69] the point I am making is just that in the circumstances of the immediate case, where unmerchantability and fitness for purpose is not clear, there is no basis in fact for a class-wide common issue about a breach of the statutory warranties.

[143] Fourth, putative Class Members who are consumers in Ontario are confronted with additional problems. In this regard, the Plaintiffs’ statutory claim under Ontario’s Consumer Protection Act, 2002 relies on s. 9 of the Act, which states:

Quality of services

9 (1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.

Quality of goods

(2) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.

Same

(3) Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.

Same

(4) If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.

[144] To rely on s. 9, a putative Class Member would have to be a consumer and Ford Motor Co. would have to be a “supplier” under a “consumer agreement,” which is defined to mean “an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment, …”.

[145] However, for many putative Class Members from Ontario, Ford Motor Co. was not their supplier under a consumer agreement. For example, putative Class Members who purchased vehicles privately or from used car dealers would not have been supplied by Ford Motor Co. These putative Class Members from Group “3” do not have a statutory cause of action against Ford Motor Co.

[146] In any event, and perhaps more to the point, s. 9 of Ontario’s Consumer Protection Act may not be applicable at all for putative Class Members who can be said to have Ford Motor Co. as their supplier. Unless I decline to follow Justice Strathy’ decision in Williams v. Canon Canada Inc.,[^70] the current law for the circumstances of the immediate case is that s. 9 of the Act does not create an implied warranty under the Sale of Goods Act for the vehicles owned or leased by the consumer putative Class Members from Ontario.

[147] As interpreted by Justice Strathy, as he then was, s. 9(2) does not apply in the circumstances of the immediate case because the consumer transaction in the immediate case would not be a sale of goods transaction but rather would be an agreement to provide services. In other words, the agreement between a Class Member and Ford Motor Co. is for Ford Motor Co. to provide repair services in accordance with the New Vehicle Limited Warranty. Accordingly, as was the case, in Williams v. Canon Canada Inc., there would be no implied warranty as to the fitness or merchantability of the consumer goods under the Sale of Goods Act.

[148] I was urged by the Plaintiffs to not follow Justice Strathy’s decision, because it was wrong. I am not persuaded, however, that it was wrong, and therefore, it follows that the claim for breach of Ontario’s Consumer Protection Act, 2002 does not satisfy the cause of action criterion for certification.

[149] Fifth, and this is a problem alluded to above, for putative Class Members advancing a statutory warranty claim, it is redundant to the negligence claims. Given the manageability problems associated with the contract claims, and the absence of commonality, I conclude that a class action is not the preferable procedure for these claims.

[150] For all of these reasons, I conclude that the contract claims of the putative Class Members of Group “3” are not certifiable. I have already concluded that there are no certifiable contract claims for Groups “1” and “2”.

[151] This brings the discussion and analysis to the Group “4” claimants, who are comprised of all putative Class Members. The Plaintiffs allege on behalf of the proposed class that Ford Motor Co. breached a duty of honesty and good faith performance of their contracts.

[152] Once again, there are the problems of establishing privity and an absence of commonality. Group “4” claimants would require privity with Ford Motor Co. and for many Class Members there is no basis for privity of contract. And, with respect to those claimants with privity, I agree with Ford Motor Co.’s argument that the breach of good faith claim does not present a reasonable cause of action, which is to say, the claim does not satisfy the first criterion for certification and is not certifiable.

[153] Assuming that Ford Motor Co. had contractual obligations to perform in the immediate case, and assuming the allegations in the Plaintiffs’ Consolidated and Amended Statement of Claim that Ford Motor Co. did not perform the obligations, good faith or dishonesty has nothing to do with its failure in performance.

[154] The duty of honesty and good faith associated with contract performance has the purpose of providing a remedy when a party to a contract lies, misleads, cheats, tricks, deceives in the manner of his or her performance of the contract,[^71] and there is none of that in the immediate case.

[155] It follows that the Group “4” claimants also do not have certifiable claims.

[156] I, therefore, conclude in the immediate case that the contractual claims are not certifiable. It obviously follows that there are no contract common issues to be certified.

H. Unjust Enrichment

[157] I turn now to the Plaintiffs’ unjust enrichment cause of action. The elements of a claim of unjust enrichment are: (1) the defendant being enriched; (2) a corresponding deprivation of the plaintiff; and, (3) no juristic reason for the defendant's enrichment at the expense of the plaintiff.[^72]

[158] Disgorgement, a remedy that provides compensation to the plaintiff measured by the defendant’s gain, is a remedy for unjust enrichment.[^73]

[159] It is plain and obvious that there is no cross-wide unjust enrichment claim in the immediate case, and indeed it is plain and obvious that there is no unjust enrichment claim even for a subclass.

[160] Many if not most of the putative Class Members cannot be said to have enriched Ford Motor Co. with whom they had no legal relationship. Many Class Members purchased a used vehicle after the expiry of any New Vehicle Limited Warranty. These putative Class Members’ purchase of the used vehicle did not enrich Ford Motor Co.

[161] If a putative Class Member did purchase a vehicle new or if they purchased the vehicle while the warranty was extant, there was no enrichment of Ford Motor Co. unless it was the vendor of the vehicle. If anybody was enriched it would be the vendor of the vehicle.

[162] In any event, in the immediate case, it is arguable that there is no basis for an unjust enrichment claim assuming a legal relationship between the putative Class Member and Ford Motor Co. The putative Class Members paid for a vehicle which was delivered to them and the contract of sale with or without warranties provides a juristic reason for the transfer of wealth.[^74]

[163] I conclude that there is no certifiable unjust enrichment claim in the immediate case.

I. Disgorgement

[164] The Plaintiffs also claim disgorgement based on Ford Motor Co.’s liability for alleged breaches of contract or based on Ford Motor Co.’s alleged design negligence. As I shall now explain, it is plain and obvious that the Plaintiffs’ claims for the disgorgement remedy are not certifiable.

[165] In Atlantic Lottery v. Babstock,[^75] Justice Brown for a majority of the Supreme Court[^76] held that disgorgement was not a standalone cause of action but was a remedy for certain types of wrongdoing including some types of tortious liability and rarely for breach of contract. Thus, disgorgement should be viewed as an alternative remedy for certain types of wrongful contract.[^77] To make out a claim for disgorgement, the plaintiff must establish actionable misconduct by the defendant.

[166] In the immediate case, as explained above, there is no viable claim for breach of contract or for unjust enrichment and, therefore, it is plain and obvious that disgorgement cannot be the subject matter of a common issue and is not a certifiable matter for these alleged wrongdoings.

[167] Moreover, even if there was a viable breach of contract claim, the Supreme Court in Atlantic Lottery v. Babstock confirmed that disgorgement is not generally available for breach of contract and is available only in extraordinary circumstances where other remedies are inadequate. There is nothing in the circumstances of the immediate case that would justify a disgorgement remedy. A gains-based remedy is not appropriate. As was the case for the majority in Atlantic Lottery v. Babstock, in the immediate case, there is no reasonable chance of achieving disgorgement damages for unjust enrichment or breach of contract.[^78]

[168] In the immediate case, while there is a viable claim for design negligence for those putative Class Members who suffered a personal injury or property damage, there is no viable disgorgement common issue that could be certified.

[169] This conclusion follows because the cause of action for negligence will not be proven at the common issues trial and a determination of remedy would be premature. In the immediate case for the negligence claims, the constituent elements of causation and the determination of damages would be left to be determined at individual issues trials. The availability of alternative remedies, like disgorgement, would necessarily also be left to be determined at the individual issues trials.

[170] There is a second related reason why disgorgement damages for the negligence in design case is not certifiable. The second reason is that the election to choose disgorgement as an alternative remedy is not a common issue and is an idiosyncratic matter for individual class members.

[171] For what it is worth, I also observe that assuming it was established at the common issues trial that Ford Motor Co. had breached its duty of care in designing the water pump and assuming an individual class member succeeded at the individual issues trial and proved that he or she had suffered property damages and a personal injury caused by the defective water pump, then it is unlikely that the successful Class Member would select the alternative remedy of disgorgement given that Ford Motor Co.’s gains from the transaction with the Class Member would be less than the recovery in damages.

[172] I, therefore, conclude that the remedy of disgorgement is not certifiable in the immediate case.

J. Summary and Conclusion

[173] The above analysis and discussion reveal that there is only one certifiable cause of action with attendant common issues.

[174] For the above reasons, the certification motion is granted for the design negligence claim in accordance with revisions to the class definition and to the common issues.

[175] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Plaintiffs’ submissions within thirty days of the release of these Reasons for Decision followed by Ford Motor Co.’s submissions within a further thirty days.

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]: Carter v. Ford Motor Company of Canada, 2021 ONSC 4137 [^3]: S.O. 2002, c. 30, Sched. A. [^4]: Hollick v. Toronto (City), 2001 SCC 68 at para. 16. [^5]: Hollick v. Toronto (City), 2001 SCC 68 at paras. 15 and 16; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 26 to 29. [^6]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at paras. 99-105; Taub v. Manufacturers Life Insurance Co., (1998) 1998 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.). [^7]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445. [^8]: Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 31177 (ON SC), [2009] O.J. No. 2531 at para. 21 (S.C.J.); Dumoulin v. Ontario, [2005] O.J. No. 3961 at para. 25 (S.C.J.). [^9]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110. [^10]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102. [^11]: 1990 90 (SCC), [1990] 2 S.C.R. 959. [^12]: Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337 at para. 57; Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572; Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68. [^13]: Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 at para. 41 (C.A.), leave to appeal to the S.C.C. refused, [2005] S.C.C.A. No. 50, rev'g, (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 25; Abdool v. Anaheim Management Ltd. (1995), 1995 5597 (ON SCDC), 21 O.R. (3d) 453 at p. 469 (Div. Ct.). [^14]: Deluca v. Canada (AG), 2016 ONSC 3865; Losier v. Mackay, Mackay & Peters Ltd., 2009 43651 (ON SC), [2009] O.J. No. 3463 at paras. 39-40 (S.C.J.), aff’d 2010 ONCA 613, leave to appeal ref’d [2010] SCCA 438; Grenon v. Canada Revenue Agency, 2016 ABQB 260 at para. 32; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 34. [^15]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.). [^16]: Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 7000 (ON CA), 73 O.R. (2d) 664 (C.A.). [^17]: Johnson v. Adamson (1981), 1981 1667 (ON CA), 34 O.R. (2d) 236 (C.A.), leave to appeal to the S.C.C. refused (1982), 35 O.R. (2d) 64n. [^18]: Silver v. Imax Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585 (S.C.J.) at para. 20; Silver v. DDJ Canadian High Yield Fund, 2006 21058 (ON SC), [2006] O.J. No. 2503 (S.C.J.). [^19]: Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.). [^20]: Pearson v. Inco Ltd. (2006), 2006 913 (ON CA), 78 O.R. (3d) 641 at para. 57 (C.A.), rev'g 2004 34446 (ON SCDC), [2004] O.J. No. 317 (Div. Ct.), which had aff'd [2002] O.J. No. 2764 (S.C.J.). [^21]: Robinson v. Medtronic Inc., 2009 56746 (ON SC), [2009] O.J. No. 4366 at paras. 121-146 (S.C.J.). [^22]: Frohlinger v. Nortel Networks Corporation, 2007 696 (ON SC), [2007] O.J. No. 148 at para. 22 (S.C.J.). [^23]: Fehringer v. Sun Media Corp., [2002] O.J. No. 4110 at paras. 12-13 (S.C.J.), aff’d [2003] O.J. No. 3918 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 21. [^24]: Silver v. Imax Corp., 2009 72334 (ON SC), [2009] O.J. No. 5585 at para. 103-107 (S.C.J.) at para. 103-107, leave to appeal to Div. Ct. refused 2011 ONSC 1035 (Div. Ct.); Boulanger v. Johnson & Johnson Corp., 2007 735 (ON SC), [2007] O.J. No. 179 at para. 22 (S.C.J.), leave to appeal ref’d [2007] O.J. No. 1991 (Div. Ct.); Ragoonanan v. Imperial Tobacco Inc. (2005), 2005 40373 (ON SC), 78 O.R. (3d) 98 (S.C.J.), leave to appeal ref’d 2008 19242 (ON SCDC), [2008] O.J. No. 1644 (Div. Ct.); Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 at para. 10 (Gen. Div.) [^25]: Hollick v. Toronto (City), 2001 SCC 68 at para. 18. [^26]: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40. [^27]: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3, 6 (Div. Ct.). [^28]: McKenna v. Gammon Gold Inc., 2010 ONSC 1591, [2010] O.J. No. 1057 at para. 126 (S.C.J.), leave to appeal granted 2010 ONSC 4068, [2010] O.J. No. 3183 (Div. Ct.), var’d 2011 ONSC 3882 (Div. Ct.); Nadolny v. Peel (Region), [2009] O.J. No. 4006 at paras. 50-52 (S.C.J.); Collette v. Great Pacific Management Co., 2003 BCSC 332, [2003] B.C.J. No. 529 at para. 51 (B.C.S.C.), var’d on other grounds (2004) 2004 BCCA 110, 42 B.L.R. (3d) 161 (B.C.C.A.). [^29]: Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d, 2017 ONSC 6098 (Div. Ct.), leave to appeal refused (28 February 2018) (C.A.); Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572 at para. 48; McCracken v. CNR, 2012 ONCA 445 at para. 183; Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 at paras. 145-46 and 160, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 512; Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 40. [^30]: 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), aff’d 2010 ONCA 466, [2010] O.J. No. 2683 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 348; Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 2000 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.). [^31]: Cloud v. Canada (Attorney General), (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.). [^32]: Hodge v. Neinstein, 2017 ONCA 494 at para. 114; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 112; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 54. [^33]: Harrington v. Dow Corning Corp., 2000 BCCA 605, [2000] B.C.J. No. 2237 (C.A.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 21. [^34]: Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.). [^35]: Markson v. MBNA Canada Bank, 2007 ONCA 334 at para. 69, leave to appeal to SCC ref’d [2007] S.C.C.A. No. 346; Hollick v. Toronto (City), 2001 SCC 68. [^36]: 2013 SCC 69 at paras. 24-38. [^37]: Cloud v. Canada (Attorney General) (2004), 2004 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.). [^38]: Markson v. MBNA Canada Bank, 2007 ONCA 334; Hollick v. Toronto (City), 2001 SCC 68. [^39]: Musicians’ Pension Fund of Canada (Trustee of) v. Kinross Gold Corp., 2014 ONCA 901; AIC Limited v. Fischer, 2013 SCC 69; Hollick v. Toronto (City), 2001 SCC 68. [^40]: Drady v. Canada (Minister of Health), 2007 27970 (ON SC), [2007] O.J. No. 2812 at paras. 36-45 (S.C.J.); Attis v. Canada (Minister of Health), [2003] O.J. No. 344 at para. 40 (S.C.J.), aff'd [2003] O.J. No. 4708 (C.A.). [^41]: 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 at para. 17; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3. [^42]: Vester v. Boston Scientific Ltd., 2015 ONSC 7950; Arora v. Whirlpool Canada LP, 2012 ONSC 4642 at paras. 264-67, aff’d 2013 ONCA 657, leave to appeal ref’d [2013] S.C.C.A. No. 498; Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095; Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634; Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff’d [1994] O.J. No. 50 (C.A.). [^43]: Vester v. Boston Scientific Ltd., 2015 ONSC 7950; Ragoonanan v. Imperial Tobacco Canada Ltd. (2000), 2000 22719 (ON SC), 51 O.R. (3d) 603 (S.C.J.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.); Nicholson v. John Deere Ltd. (1986), 1986 2502 (ON SC), 58 O.R. (2d) 53 (H.C.J.), aff’d [1989] O.J. No. 495 (C.A). [^44]: Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.). [^45]: Arora v. Whirlpool Canada LP, 2012 ONSC 4642 at paras. 264-67, aff’d 2013 ONCA 657, leave to appeal ref’d [2013] S.C.C.A. No. 498; Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85. [^46]: Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210; Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634; Lambert v. Lastoplex Chemicals Co., 1971 27 (SCC), [1972] S.C.R. 569. [^47]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967. [^48]: 2020 SCC 35. [^49]: 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 at para. 17; Martel Building Ltd. v. Canada, 2000 SCC 60 at para. 34. [^50]: 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35; Arora v. Whirlpool Canada LP, 2012 ONSC 4642, affd. 2013 ONCA 657; Winnipeg Condominium Corp No 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85.

Arora v. Whirlpool Canada LP, 2012 ONSC 4642, affd. 2013 ONCA 657 [^51]: 2020 SCC 35. [^52]: 1995 146 (SCC), [1995] 1 S.C.R. 85 [^53]: 1973 6 (SCC), [1974] S.C.R. 1189. [^54]: Abella, Moldaver, Côté, and Rowe, JJ. concurring with Justice Brown. Justice Karakatsanis wrote the dissent for herself and Wagner C.J., Martin and Kasirer JJ. [^55]: Deshane v Deere & Co. (1993), 1993 8678 (ON CA), 15 OR (3d) 225 at paras 58-63 (C.A.) as cited in Walford (Litigation Guardian of) v. Jacuzzi Canada Ltd, 2007 ONCA 729 at paras 30-31. [^56]: 2012 ONSC 3969. [^57]: 2017 ONSC 3795. [^58]: 2016 BCSC 2129 aff’d 2018 BCCA 312. [^59]: 2018 ONSC 6312. [^60]: 2021 BCSC 338. [^61]: 2019 ONSC 5967. [^62]: 2021 BCSC 794 [^63]: Singer v. Schering-Plough Canada Inc., 2010 ONSC 42, [2010] O.J. No. 113 (S.C.J); Nadolny v. Peel (Region), [2009] O.J. No. 4006 (S.C.J.) at paras. 50-52; Williams v. Mutual Life Assurance Co. of Canada (2000), 2000 22704 (ON SC), 51 O.R. (3d) 54 (S.C.J.) at para. 39, aff’d 2001 62770 (ON SCDC), [2001] O.J. No. 4952 (Div. Ct.), aff’d 2003 48334 (ON CA), [2003] O.J. No. 1160 and 1161 (C.A.); Fehringer v. Sun Media Corp., [2002] O.J. No. 4110 (S.C.J.), aff’d [2003] O.J. No. 3918 (Div. Ct.) [^64]: Nadolny v. Peel (Region), [2009] O.J. No. 4006 (S.C.J.) at para. 54; Risorto v. State Farm Mutual Automobile Insurance Co (2007), 33 CPC (6th) 373 at paras. 45, 78 (S.C.J.). [^65]: Arora v. Whirlpool Canada LP, 2012 ONSC 4642, aff’d 2013 ONCA 657, leave to appeal ref’d [2013] S.C.C.A. No. 498. [^66]: Arora v. Whirlpool Canada LP, 2012 ONSC 4642, aff’d 2013 ONCA 657, leave to appeal ref’d [2013] S.C.C.A. No. 498; M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 677 (SCC), [1999] 1 S.C.R. 619; Catre Industries Ltd. v. Alberta (1989), 1989 ABCA 243, 63 D.L.R. (4th) 74 (Alta. C.A.), leave to appeal to the S.C.C. refused 65 D.L.R. (4th) vii; Fort Frances (Town) v. Boise Cascade Can. Ltd.; Boise Cascade Can. Ltd. v. Ontario, 1983 47 (SCC), [1983] 1 S.C.R. 171; G. Ford Homes Ltd. v. Draft Masonry (York) Co. (1983), 1983 1719 (ON CA), 43 O.R. (2d) 401 (C.A.). [^67]: Boal v. International Capital Management Inc. 2021 ONSC 651 at para. 179; Nadolny v. Peel (Region), [2009] O.J. No. 4006 at para. 70 (S.C.J.); McLaine v.London Life Insurance Co. 2007 56527 (ON SCDC), [2007] O.J. No. 5035 at paras. 85-86, 91 (Div. Ct.). [^68]: R.S.O. 1990, c. S.1. [^69]: Cyr v R.V. Warehouse Inc., 2015 ONSC 3285; Moving Store Franchise Systems Inc v Norseman Plastics Ltd [2004] O.J. No. 1890 (S.C.J.); Satin Finish Hardwood Flooring Ltd. v. Sico Inc. [1999] O.R. 909 (Gen. Div.), affd [2001] O.J. No. 2413 (C.A.); McCann v. Sears Canada Ltd. [1998] O.J. No. 2664 (Gen Div.), aff'd [1999] O.J. No. 137 (Div. Ct); McMartin Machinery Ltd. v. Deron Forest Technik, [1990] B.C.J. No. 1305 (Co. Ct.); Tregunno v. Aldershot Distributing Co-operative Co., 1943 93 (ON CA), [1943] O.R. 795 (C.A.). [^70]: 2011 ONSC 6571. [^71]: CM Callow Inc v. Zollinger, 2020 SCC 45; Bhasin v. Hrynew, 2014 SCC 71. [^72]: Moore v. Sweet, 2018 SCC 52; Kerr v. Baranow, 2011 SCC 10; Garland v. Consumers' Gas Co., 2004 SCC 25 at para 30; Peel (Regional Municipality) v. Canada, 1992 21 (SCC), [1992] 3 S.C.R. 762 at p. 784; Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834 at p. 848. [^73]: Atlantic Lottery v. Babstock, 2020 SCC 19. [^74]: Atlantic Lottery v. Babstock, 2020 SCC 19. [^75]: 2020 SCC 19. [^76]: Justice Brown delivered the judgment for Abella, Moldaver, Côté, Brown and Rowe JJ. Karakatsanis, J. dissented in part for Wagner C.J. and Karakatsanis, Martin and Kasirer JJ. [^77]: Atlantic Lottery v. Babstock, 2020 SCC 19 at para. 27. [^78]: Justice Karakatsanis dissented in part because her opinion was there was a viable breach of contract claim and a possibility of disgorgement remedy.