COURT FILE NO.: CV-17-582746-CP
DATE: 20210923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STUART MACKINNON
Plaintiff
- and -
VOLKSWAGEN GROUP CANADA, INC., VOLKSWAGEN AKTIENGESELLSCHAFT, VOLKSWAGEN GROUP OF AMERICA, INC., AUDI CANADA, INC., AUDI AKTIENGESELLSCHAFT, AUDI OF AMERICA INC. and VW CREDIT CANADA, INC.
Defendants
Proceeding under the Class Proceedings Act, 1992
BEFORE: Justice Edward Belobaba
COUNSEL: David F. O’Connor and J. Adam Dewar for the Plaintiff
Cheryl M. Woodin and Ilan Ishai for the Defendants
HEARD: March 23 and August 25, 2021 via Zoom video
MOTION FOR CERTIFICATION
[1] This motion for the certification of a proposed class action is dismissed.
[2] The dismissal rests on the following well-established proposition: where the core claim is for damages, there must be some evidence of compensable loss and a plausible methodology to measure this loss on a class-wide basis.[^1] The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case in question and there must be some evidence of the availability of the data to which the methodology is to be applied.[^2]
[3] Here, the plaintiff presented an abundance of theory and an array of hypotheses but nothing in the way of actual evidence of either a compensable loss or a plausible methodology for measuring such loss on a class-wide basis. Although highly creative, this proposed class action was also fatally flawed and thus the motion for certification is dismissed with costs.
Background
[4] Stuart Mackinnon is a retired special education teacher who lives in Vancouver. He is a member of the Green Party and is passionate about environmental protection and pollution control. In 2010, he leased a new diesel-engine 2011 Volkswagen Jetta, in large part based on the “clean diesel” promise. Mr. Mackinnon knew he was paying a premium of several thousand dollars for leasing a diesel-powered vehicle (as opposed to a gasoline-powered vehicle). He understood that in addition to the promise of “clean diesel”, he was also getting several other diesel-engine-related benefits such as improved fuel economy, increased torque and longer engine life. But for Mr. Mackinnon it was the low emissions or “clean diesel” feature that was most important.
[5] Shortly before his four-year lease expired in 2014, Mr. Mackinnon returned the vehicle without incident or complaint. When he returned the leased vehicle, there was no suggestion of any compensable loss or injury.
[6] On September 18, 2015 — about a year after the plaintiff returned his leased vehicle — American regulatory authorities announced that Volkswagen had been installing “defeat devices” in its diesel vehicles since 2009 to cheat on government emissions tests and violate clean air laws.[^3] During regular on-road use, the vehicles emitted nitrogen oxides (NOx) at levels that were 25 to 40 times higher than the allowed legal limit.
[7] The “defeat device” scandal rocked the automotive world and resulted in high-level prosecutions, guilty pleas and billion-dollar fines. In the days following the announcement, VW’s reputation and brand value plummeted, affecting not only the pricing of company securities but all VW vehicles both diesel and gasoline-powered.
[8] The owners and lessees of VW diesel-engine TDI vehicles[^4] commenced numerous class actions to recover the post-disclosure drop in the value of their automobiles. The class actions in the U.S. and Canada were soon settled for billions of dollars with VW agreeing to a relatively generous buy-back and damages program. I approved the $2.1 billion Canadian settlement with reasons released in April 2017.[^5]
[9] Several months later, in September 2017, the plaintiff filed this proposed class action. Although he had returned his leased Jetta without any complaint about any economic loss or overpayment, the news about VW’s “defeat device” upset him. As he explained in his affidavit:
Given my feelings about the environment I felt deceived by Volkswagen and was extremely disappointed to learn that I had been driving a car that produced excessive and illegal pollution levels. I would never have leased my Jetta TDI if 1 had known that it did not comply with all relevant environmental regulations. I would have leased a less expensive gasoline powered vehicle.
I … saw media reports and reports on the internet about a proposed settlement for people in Canada that had purchased or leased 2.0 L diesel powered Volkswagen Vehicles. I was disappointed when I subsequently discovered that, as the term of my lease had expired before September 18, 2015, I was not included in the proposed class action settlement. It seemed very unfair to me that people in my situation would not receive benefits under existing settlements.
[10] This proposed class action was therefore filed on behalf of the VW and Audi owners and lessees who had sold or returned their diesel vehicles (containing the fraudulent “defeat device”) before the September 18, 2015 announcement. The proposed class action attempts to recover the pre-disclosure losses sustained by these class members.
[11] It is important to note that no safety or health-related claims are being advanced and that no provincial or federal regulatory authority has taken any action in relation to VW or Audi diesel vehicles that were sold or returned pre-disclosure, that is before the September 18, 2015 announcement.
[12] The damages claim is straightforward: the putative class members allegedly paid for a clean diesel or low emissions benefit that they never received. The claim is founded on several causes of action: negligent misrepresentation, negligence itself, conspiracy, breach of warranty, breach of provincial consumer protection legislation, breach of federal misleading advertising legislation and unjust enrichment.
[13] The proposed common issues begin with a series of questions (such as “What is a defeat device?”) that have already been answered in the earlier “defeat device” cases and thus would not be certified here because they would not advance the litigation. Only the loss-related common issues dealing with the causes of action just listed would advance this damages action — and, these, as the Supreme Court of Canada noted in Pro-Sys Consultants,[^6] require some evidence of actual loss and a plausible methodology for class-wide measurement.
The issue
[14] This motion for certification therefore turns on a threshold issue: whether there is any evidence of a compensable loss and if so, whether a plausible methodology has been provided that can measure this loss on a class-wide basis.[^7]
[15] If there was some evidence of economic loss and of a plausible methodology for class-wide measurement, I would probably have certified this proposed class action as a class proceeding including the loss-related common issues. The loss-related issues as proposed by the plaintiff follow a familiar template that was approved by this court when it certified the VW 2.0 litre class action for settlement purposes[^8] and more recently when it certified a similar “defeat device” class action in Kalra v. Mercedes Benz.[^9]
[16] However, given that the core claim is for damages and given the absence of any evidence of economic loss and a related methodology for class-wide measurement, several things follow. First, even though the cause of action requirement as set out in s. 5(1)(a) of the Class Proceedings Act[^10] does not pose a problem, the other four requirements most certainly do. Absent any evidence of economic loss and the related methodology for loss-related claims, the plaintiff is unable to satisfy any of the “some basis in fact” requirements as set out in ss. 5(1)(b) to (e):
- there is no evidence of an identifiable class of two or more persons;
- the only proposed common issues that will advance the litigation are the damages or loss-related common issues but there is no evidence of an economic loss or of a methodology that could measure this loss on a class-wide basis;
- absent any loss-related common issues that would advance the litigation, a class proceeding would not be a preferable procedure;
- absent a stake in the proceeding, the plaintiff would not be a suitable representative plaintiff.
[17] That’s why this motion for certification turns on the compensable loss point and a related methodology to measure this loss on a class-wide basis.
The alleged loss
[18] There is no doubt that the pre-disclosure owners and lessees of the impugned VW and Audi vehicles paid a diesel-engine premium, in some cases, of several thousand dollars more than what they would have paid for the gasoline-engine equivalent. There is also no doubt that the pre-disclosure owners and lessees had received many of the diesel-related benefits when they sold or returned their vehicle — such as improved fuel economy, increased torque and longer engine life. However, it is also clear that they did not receive the promised low emission or clean diesel benefit.
[19] The question, however, is whether there is any evidence that the pre-disclosure plaintiff paid anything extra for the clean diesel feature. That is, can the low emissions or clean diesel feature that was not provided as promised be isolated and quantified in monetary terms for the purposes of this proposed class action? And, if so, has the plaintiff presented a plausible methodology for measuring this loss on a class-wide basis?
[20] This was not a problem in the post-disclosure context where, as I explain below, there was a measurable drop in vehicle value after the September 18, 2015 announcement. But it is certainly a challenge in the pre-disclosure context — particularly when there is no obvious or hard evidence such as the presence of a “clean diesel” line item in the sales invoice or leasing agreement showing that the customer paid something extra for the low emissions feature.
[21] Class counsel examined a VW representative on this very point. Mr. Luigi Fiorino, the Director of TDI Operations at Volkswagen Group Canada, provided affidavit and cross-examination evidence that the clean diesel feature was not assigned any value in the MSRP pricing for TDI vehicles. Mr. Fiorino testified as follows during his cross-examination:
Q. And what I am asking is, that higher TDI vehicle price, was that in any way, from your discussions with the product planning department, influenced by, or supported by, the fact that these were environmentally friendly vehicles?
A. No.
Q. In the context of your discussions with the product planning department, or anyone else in the context of preparing the affidavit … was there any discussion of whether emissions of any sort might be part of a valuable diesel engine benefit for consumers?
A. Yes, we asked the question, and the answer to the question is no, that was not considered.
Q. As part of the pricing?
A. As part of the pricing or benefit to consumers.
[22] Hence, a very challenging economic loss case for class counsel and for this court.
[23] Fortunately, I was assisted by the expert reports filed by Mr. Edward Stockton for the plaintiff and Professor Lorin Hitt for the defendants. Both are internationally recognized authorities in the marketing and pricing of consumer products, automobiles in particular. Both have provided expert economic evidence in other class proceedings.
[24] I was also assisted by the reasoning in a recently released U.S. District Court decision that is directly on point. The very case before me today — a proposed class action on behalf of pre-disclosure VW owners and lessees — was considered and dismissed in the U.S. by a federal judge in the Northern District of California.[^11] As it happens, both of the experts herein, Mr. Stockton and Professor Hitt, also filed expert reports in the U.S. proceeding.
[25] Although I am obviously not bound by U.S. judicial decisions, I found the District Court’s insights and analysis in this parallel and almost identical American proceeding to be very helpful.
The parallel American proceeding
[26] The parallel “pre-disclosure” American litigation was case-managed by Judge Charles Breyer, an experienced federal class action judge who had also managed the earlier VW post-disclosure class proceeding, bringing it to a successful multi-billion-dollar settlement.
[27] In two preliminary procedural decisions in the pre-disclosure action, the first released on October 3, 2018 and the second on November 12, 2020, Judge Breyer made three points of interest to me:
(i) It is certainly “possible” that pre-disclosure owners and lessees overpaid for the promised clean diesel feature that they clearly did not receive;
(ii) But the starting point is to provide some “proof of damage” by isolating the overpayment as well as a methodology that “can be used to calculate damages on a class-wide basis” – and this must be done before one can consider the various depreciation analyses presented by the plaintiff relating to excess or unrecovered depreciation, time value of money etc.;
(iii) Despite being specifically directed by the court to do so, the plaintiffs and their experts failed to identify this all-important “starting point” and isolate the alleged low emissions premium. Absent proof of injury, the plaintiff lacked standing, the court lacked jurisdiction and the proposed class action was dismissed.[^12]
[28] I recognize that the class action procedure in the U.S. differs in several important respects from that in the various provinces in Canada. I therefore accept class counsel’s admonition that American decisions, even those that are directly on point, should be approached with some degree of caution. However, the value for me of Judge Breyer’s decision is in his overall approach and analysis, which, as it turns out, is the approach and analysis that, under our law, applies here as well.
Discussion
[29] The proposed class action failed in the U.S. because the pre-disclosure plaintiff could not isolate the alleged clean diesel premium and thus could not provide any evidence of economic loss. Judge Breyer directed class counsel to file a separate statement “explaining how they intend to prove the portion of the “clean diesel” premium that was for a low-emission vehicle”.[^13] Class counsel either misinterpreted the court’s direction or were otherwise unable to do so.
[30] The same thing happened here.
[31] When this hearing began, class counsel was content to advance the theories set out in the first two reports filed Mr. Stockton, their damages expert. Both reports presented interesting depreciation-based analyses for the calculation of the plaintiff’s loss but did so without identifying a “starting point.” Neither of the reports attempted to show or isolate any alleged overpayment for the clean diesel feature. In his second report, Mr. Stockton suggested that if this evidence were needed, it would be “possible” to determine the premium paid for the clean diesel benefit together with a methodology for class-wide measurement:
To the extent that the Court does find it appropriate to limit Class members' recovery to the premium that consumers paid to acquire the low-NOx/Clean Diesel feature, it would be possible to do so. Feasible methods exist to estimate this premium on a class-wide basis.
[32] I took Mr. Stockton at his word and adjourned the certification hearing to provide the plaintiff with an opportunity to file such evidence. I confirmed the reason for the adjournment with the following Direction:
Counsel, I write to clarify and formalize my direction: Today's hearing was adjourned at my behest under 5(4) to allow P to file an additional Expert Report that actually isolates and quantifies the alleged price premium of the Clean Diesel feature and provides the required methodology re class-wide loss (D's expert to respond to this Report or not, as D wishes).
[33] Mr. Stockton in due course filed the requested additional report. However, the additional report did not respond to my Direction. Mr. Stockton did not isolate or quantify a price premium for the clean diesel feature — he simply assumed that this premium was $1000 and went on from there with his depreciation analysis; and, in any event, provided no methodology for class-wide measurement.
[34] When the hearing reconvened, class counsel explained that they had advised Mr. Stockton to assume that the clean diesel premium was $1000 because, in their view, this is the very finding that this court made when it approved the VW post-disclosure settlement.[^14]
[35] However, this is not what I said in the post-disclosure settlement decision. In order to satisfy myself that the proposed post-disclosure settlement was fair and reasonable, I compared the relatively generous settlement amounts to what class members would recover if they rejected the settlement and continued with the litigation. I considered the market’s reaction to the “defeat device” scandal and noted that the average drop in resale value a month or so after the announcement (based on the Canadian Black Book or CBB values) was about $1000. I set out the comparative information in a chart and said this:
As set out in the chart below, the CBB wholesale value of his car on the day before the Announcement was $18,450 … The CBB wholesale value in November, 2015, shortly after the Announcement, was $17,450. That is, the core “loss” caused by the Announcement was only $1000.[^15]
[36] The observation that “the core loss caused by the Announcement was only $1000” was not an observation or finding that the post-disclosure market was pricing the clean diesel benefit at $1000. It was simply an observation or finding that this was the average drop in value in the resale market shortly after the VW fraud was made public.
[37] As noted earlier, the market’s reaction to the disclosure of the “defeat device” and the allegation of high-level corporate fraud was massive and wide-ranging. In the days following the announcement, VW’s reputation and brand value plummeted, affecting not only the pricing of company securities which dropped precipitously, but all VW vehicles, both diesel and gasoline-powered.
[38] The drop in the value of VW’s image and products reflected much more than customer disappointment in not getting the promised clean diesel benefit. It also reflected and incorporated at least two other factors: (i) “brand effects” — caused by the public backlash to the disclosure of a fraud and that resulted in a wide-spread loss of confidence and trust in all VW vehicles, both diesel and gasoline; and (ii) a regulatory uncertainty that specifically affected post-disclosure VW diesel owners and lessees and further depressed vehicle prices.
[39] The point about “brand effects” was also noted by Judge Breyer in the parallel American proceeding.[^16] I discuss this in more detail below.
[40] The other significant factor that impacted the post-disclosure drop in value, regulatory uncertainty, was recognized by the plaintiff himself in his amended statement of claim:
Because the emissions testing regime in the Provinces relies on the integrity of vehicles' EPA testing and EPA Certificates as a baseline, the Class Members face the prospect that Canada's Provinces and Territories may change their testing regulations so that the Vehicles will fail unless the on-road emissions are once again brought back into compliance with the Emissions Standards. This uncertainty further depresses the value and resale market for the Vehicles.
[41] In short, the $1000 drop in value, noted in the settlement approval decision, was not a measure of the clean diesel or low emissions feature. The $1000 drop in value would still have to be differentiated and that portion of the $1000 drop in value that reflected the failure to provide the promised clean diesel benefit would still have to be isolated (if this could be done). And, of course, the required methodology to measure this alleged loss on a class-wide basis would also have to be provided.
[42] Recall again that the required methodology “cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case in question and there must be some evidence of the availability of the data to which the methodology is to be applied.”[^17] (Emphasis added.)
[43] Hence, the need for the adjournment and this court’s Direction, as noted above, asking “P to file an additional Expert Report that actually isolates and quantifies the alleged price premium of the Clean Diesel feature and provides the required methodology re class-wide loss.”
[44] I was, frankly, expecting an additional report that would do as directed and isolate the clean diesel premium. If the $1000 drop in value number was used, it had to be discounted or reduced to properly account for brand effects and other post-disclosure factors. I also expected a plausible methodology that could measure this loss on a class-wide basis.
[45] Mr. Stockton’s additional report did not do this. Instead, based on the guidance provided by class counsel, it simply assumed that the $1000 post-disclosure drop in value was the market’s discrete valuation of the clean diesel feature and could thus be used for pre-disclosure pricing purposes — without regard for brand effects or regulatory uncertainty or any other post-disclosure market factors. And, it didn’t provide the required methodology for class-wide measurement.
[46] Mr. Stockton referred to the “brand effects” problem and responded in two ways: (i) it was “inappropriate” to remove the so-called brand effects from the $1000 drop in value number because “at least similar effects would have existed at the time of the original sale;” and (ii) if it were necessary to do so, he could provide a further analysis that would exclude the brand effects “by removing other competitors from the analysis and focusing only on VW-related vehicles.”
[47] I discussed all of this with counsel when we reconvened to review Mr. Stockton’s additional report and complete the certification hearing. Class counsel’s position was that “precise quantification or calculation of the dollar and cent amount of damage is not required at certification.” I agree. However, the problem here was not any lack of precision in the calculation of the alleged loss but the lack of evidence of any loss to begin with and also the lack of a methodology for measuring that loss on a class-wide basis.
[48] I asked class counsel if they needed another adjournment under s. 5(4) of the CPA to try (again) to provide some evidence of economic loss — some evidence that would isolate the alleged overpayment for the clean diesel feature by the pre-disclosure plaintiff and provide the required methodology to measure this loss on a class-wide basis. None of the theories or models presented by their expert were relevant or helpful because they lacked this all-important starting point — some evidence (consisting of evidence grounded in facts) that the affected owners or lessees paid extra for a clean diesel or low emissions benefit that was promised but not provided.
[49] To my surprise, class counsel did not seek another adjournment. They acknowledged the court’s concerns about using the post-disclosure $1000 drop in value number without further adjustments or reductions for brand effects and other market factors as discussed above. But, in their submission, the $1000 drop in value was itself a sufficient and appropriate stand-alone measure of the clean diesel premium — because any (negative) brand effects or regulatory uncertainties that materialized in the post-disclosure market were mirrored dollar for dollar in the (positive) attributes that were priced into the pre-disclosure vehicle when it was first acquired or leased. Class counsel echoed Mr. Stockton’s comment that it was “inappropriate” to remove so-called brand effects from the $1000 drop in value number because “at least similar effects would have existed at the time of the original sale.”
[50] Class counsel provided no basis for these bald assertions and, needless to say, I was not persuaded. It remains beyond dispute that the post-disclosure brand effects when the VW fraud was announced were real and extensive. They impacted the pricing not only of VW securities (the share prices dropped by almost one-third) but of all VW automobiles, both diesel and gasoline. And the plaintiff himself pleaded that regulatory uncertainty also depressed post-disclosure pricing. These “post-disclosure” effects cannot be ignored or baldly assumed to have been somehow baked into pre-disclosure pricing. The latter point just doesn’t make sense, logically or otherwise.
[51] This is not a matter of weighing conflicting expert evidence, something that should not be done on a certification motion. Rather, it is asking whether the assumption that post-disclosure brand (and other market) effects were already built into pre-disclosure pricing can stand up to even a lay reader. And as the Divisional Court noted in Quizno’s Canada:[^18]
It is neither necessary nor desirable to engage in a weighing of this conflicting evidence on a certification motion. The plaintiffs on a certification motion will meet the test of providing some basis in fact for the issue of determination of loss to the extent that they present a proposed methodology by a qualified person whose assumptions stand up to the lay reader.[^19]
[52] In my view, Judge Breyer’s observations on this point better accord with those of the “lay reader”. As the American judge made clear, the post-disclosure drop in value cannot be used to calculate initial overpayment in the pre-disclosure context because the market’s post-disclosure reaction/drop in value included brand effects that did not exist when class members disposed of their vehicles in the pre-disclosure market before the fraud was made public:
Mr. Stockton’s [analysis] examines the decline in market prices for class vehicles after the emissions fraud was revealed to calculate the magnitude of overpayment at the time of initial purchase … It principally relies on the effects of disclosure, including brand effects, even though Plaintiffs resold their cars before disclosure. The pertinent market value does not rely on the public’s reaction to news that vehicles were fraudulent. Customers still in possession of their fraudulent vehicles at the time of disclosure were harmed by that reaction. Plaintiffs were not.[^20]
[53] And even if it were otherwise, the alleged overpayment for the clean diesel feature was not differentiated and isolated.
[54] So, I find myself in this position: after one adjournment and the rejection of an offered second adjournment, the plaintiff has still provided no evidence of economic loss or of a plausible methodology that could measure this loss on a class-wide basis.
[55] It follows that this motion for certification must be dismissed.
Epilogue
[56] The “some basis in fact” requirement is easily satisfied in the vast majority of proposed class actions. There is almost always some evidence of economic loss.[^21] The challenge here was to find such evidence in a pre-disclosure context when the fraud hadn’t been revealed, the market hadn’t yet responded and the required starting point showing some evidence of economic loss was difficult, if not impossible, to establish.
[57] Had the plaintiff been able to establish the required starting point — some evidence that would isolate the value of the clean diesel feature — then Mr. Stockton’s “excess depreciation” and related analyses, and in particular, his “off the lot” depreciation analysis, if based on this starting point, could arguably have established the existence of some economic loss. And, once this was established, one could then go on to add “indirect damages” such as the time value of money, financing costs, insurance and taxes.
[58] But in the absence of any evidence of a clean diesel premium, the proffered analyses of an alleged overpayment for owners (via a depreciation analysis) or lessees (via increased leasing charges) were beside the point and irrelevant.
[59] This was Judge Breyer’s conclusion in the American proceeding:
Without a reliably calculated emissions premium, Plaintiff’s depreciation analysis is useless because it lacks a starting point from which to calculate a decline in value for low emissions.
[60] It is my conclusion here as well.
[61] It is also important to reiterate that even if the plaintiff had succeeded in providing some evidence of economic loss, he failed in any event to provide the required methodology to measure this loss on a class-wide basis.
[62] One final point. The defendants and their expert, Professor Hitt, provided the court with a number of additional reasons why the plaintiff’s approach and analyses were unworkable and unreliable and should not be accepted. Their submissions were compelling and will no doubt be advanced again if this matter proceeds further. Here, however, it is sufficient to base the decision to dismiss on the reasons set out above.
Disposition
[63] The motion for certification is dismissed.
[64] If the parties cannot agree on costs, I would be pleased to receive brief written submissions from the defendants within 21 days and from the plaintiff within 21 days thereafter.
[65] I am obliged to counsel on both sides for their assistance and for the quality of their written and oral advocacy.
Signed: Justice Edward Belobaba
Notwithstanding Rule 59.05, this Judgment [Order] is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Judgment [Order] need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Judgment [Order] may nonetheless submit a formal Judgment [Order] for original signing, entry and filing when the Court returns to regular operations.
Date: September 23, 2021
[^1]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 118. [^2]: Ibid. [^3]: The U.S. Environmental Protection Agency disclosed the existence of the “defeat device” in VW 2.0 litre (engine size) vehicles on September 18, 2015 and in 3.0 litre vehicles on November 2, 2015. [^4]: TDI stands for “turbo direct injection” and is a short-form brand moniker that is often used to describe the affected VW and Audi diesel vehicles. [^5]: Quenneville v. Volkswagen, 2017 ONSC 2448. [^6]: Supra, note 1. [^7]: Ibid. [^8]: Quenneville v. Volkswagen, 2016 ONSC 7959. [^9]: Kalra v. Mercedes Benz, 2017 ONSC 3795. [^10]: Class Proceedings Act 1992, S.O. 1992, c. 6. [^11]: In re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672 CRB (JSC) (N.D. Cal., Oct. 3, 2018 and Nov. 12, 2020). [^12]: Ibid., (Nov. 12, 2020) at 1, 3, 13 and 16. [^13]: Ibid., (Oct. 3, 2018) at 51. [^14]: Supra, note 5. [^15]: Supra, note 5, at para. 19. [^16]: Supra, note 11, (Nov. 12, 2020) at 14-15. [^17]: Supra, note 1. [^18]: 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corporation, 2009 CanLII 23374 (Div. Ct.). [^19]: Ibid., at para. 102. [^20]: Supra, note 11, (Nov. 12, 2020) at 14-15. [^21]: But every now and again, certification is denied for lack of evidence: see, for example, Maginnis and Magnaye v. FCA Canada et al, 2020 ONSC 5462, aff’d 2021 ONSC 3897 (Div. Ct.).