Court File and Parties
COURT FILE NO.: CV-16-543763-00CP DATE: 20211119
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFF MAILLOUX Plaintiff
- and -
TAKATA CORPORATION, TK HOLDINGS INC., and NISSAN CANADA INC. Defendants
Counsel: Sabrina Lombardi for the Plaintiff Heather Meredith for Takata Corporation and TK Holdings Inc. Joshua Henderson for Nissan Canada Inc.
HEARD: November 19, 2021
REASONS FOR DECISION
PERELL, J.
[1] In this class action under the Class Proceedings Act, 1992,[^1] pursuant to rules 1.04(1) and (2), 6.01(1), 23.01(1), 26.01, 26.02, 26.03(1), and 37 of the Rules of Civil Procedure[^2] and s. 10 and 12 of the Class Proceedings Act, 1992, the plaintiff seeks an order that the stay against Takata Corporation, issued on June 13, 2016 be lifted and that the action be dismissed with prejudice and without costs as against Takata Corporation and TK Holdings Inc.
[2] The plaintiff also seeks and Order granting leave to amend the title of proceedings as follows:
Court File No.: CV-16-543763-00CP
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEFF MAILLOUX
Plaintiff
-and -
NISSAN CANADA INC.
Defendant
Proceeding under the Class Proceedings Act, 1992
[3] The grounds for the motion are as follows:
a. This class action concerns defective Airbag Inflators in certain vehicles of the defendant Nissan Canada Inc. The airbags have been subject to numerous Transport Canada recalls.
b. The action was commenced by Jeff Mailloux on April 10, 2015. The Statement of Claim was amended on March 29, 2016, June 17, 2016 and July 7, 2016, as the Third Amended Fresh as Amended Statement of Claim.
c. The action was stayed as against Takata Corporation on June 13, 2016.
d. On June 25, 2017, TK Holdings Inc., among others (collectively, the "Chapter 11 Debtors"), commenced Chapter 11 proceedings in the United States Bankruptcy Court for the District of Delaware.
e. On June 26, 2017, Takata Corporation, among others (collectively the "Japanese Debtors"), initiated civil rehabilitation proceedings with the 20th Department of the Civil Division of the Tokyo District Court under the Civil Rehabilitation Act of Japan.
f. On June 28, 2017, an Initial Recognition Order and Supplemental Order was issued in the Ontario Superior Court of Justice (Commercial List) pursuant to Part IV of the Companies' Creditors Arrangement Act recognizing and enforcing, among other things, the US Chapter 11 proceedings and granting a stay of proceedings against the Chapter 11 Debtors.
g. On September 1, 2017, an order was issued by the Ontario Superior Court of Justice (Commercial List) pursuant to Part IV of the Companies' Creditors Arrangement Act amending the Canadian Recognition Orders to extend recognition and the stay of proceedings to the Japanese Debtors.
h. On March 14, 2018, Justice Hainey issued an order (the "Chapter 11 Confirmation Recognition Order") pursuant to the Companies' Creditors Arrangement Act[^3] recognizing and giving full force and effect in all provinces and territories of Canada the Order of the United States Bankruptcy Court for the District of Delaware dated February 21, 2018 confirming the Fifth Amended Joint Chapter 11 Plan of Reorganization of TK Holdings Inc. and its Affiliated Debtors (the "Chapter 11 Plan").
i. The Chapter 11 Plan became effective on April 10, 2018.
j. On May 17, 2018, Justice Hainey issued an order (the "Japanese Sale Approval Recognition Order") pursuant to the Companies' Creditors Arrangement Act recognizing and giving full force and effect in all provinces and territories of Canada to the sale approval issued by the 20th Department of the Civil Division of the Tokyo District Court on February 26, 2018.
k. On May 23, 2018, the civil rehabilitation plan of Takata Corporation (the "Japanese Plan") was approved by a large majority of creditors (93% by number and 96% by amount) and confirmed by the Japanese Court. The confirmation order became valid and binding on June 15, 2018.
l. Under the Chapter 11 Plan, all claimants are "permanently enjoined" from "commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or other proceeding of any kind (including any proceeding in a judicial, arbitral, administrative, or other forum) against or affecting, directly or indirectly, a Debtor, which includes TK Holdings Inc.
m. Furthermore, Takata Corporation was a "Released Party" under the Chapter 11 Plan and "deemed conclusively, absolutely, unconditionally, irrevocably and forever released and discharged, to the maximum extent permitted by law."
n. In the Chapter 11 Confirmation Recognition Order, Justice Hainey ordered that "the compromises, arrangements, releases, discharges and injunctions contained and referenced in, and the sale and transfer of the Purchased Assets to the Plan Sponsor in accordance with the terms described and set forth in the Confirmation Order and the Chapter 11 Plan are hereby sanctioned, approved, recognized and given full force and effect in all provinces and territories of Canada in accordance with and subject to the terms of the Confirmation Order and the Chapter 11 Plan."
o. Given the releases in the Chapter 11 Plan and the Japanese Plan, the plaintiff has determined not to continue to proceed with this litigation as against TK Holdings Inc. and Takata Corporation. The litigation will continue only as against the Subject Vehicles' manufacturer, namely Nissan Canada Inc.
p. Similar dismissals in other Takata Airbag litigation against other vehicle manufacturers, were issued by this Court on February 25, 2019, March 28, 2019 and March 12, 2021.
q. Takata Corporation and TK Holdings Inc. take no position on this motion, and the defendant Nissan Canada Inc. does not oppose.
[4] Order to go as asked. I have signed the Order.
Perell, J.
Released: November 19, 2021.
[^1]: S.O. 1992, c. 6.
[^2]: R.R.O. 1990, Reg. 194.
[^3]: R.S.C. 1985, c. C-36.