Court File and Parties
COURT FILE NO.: CV-16-544545-00CP
DATE: 2021-12-10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BARRY REBUCK, Plaintiff
– AND –
FORD MOTOR COMPANY and FORD MOTOR COMPANY OF CANADA, LIMITED and YONGE-STEELES FORD LINCOLN SALES LIMITED, Defendants
BEFORE: E.M. Morgan J.
COUNSEL: Irving Marks, David Taub, Michael Peerless, and Joey Jamil, for the Plaintiff
Hugh DesBrisay, Jill Lawrie, and Jadeney Wong, for the Defendants
HEARD: December 10, 2021
Case Conference
[1] This class action was certified in September 2018 and is now ready for a common issues trial. Both sides have brought summary judgment motions. The problem is that the case is, although very interesting, a rather complicated one.
[2] The Plaintiff claims damages on behalf of all persons in Canada who purchased or leased new 2013 and 2014 model year Ford vehicles – somewhere between 500,000 and 600,000 vehicles altogether. The claim is for $1.5 billion. It alleges that false, misleading or deceptive representations were made by the Defendants which understated the fuel consumption of the vehicles contrary to the Competition Act and the Consumer Protection Act (and its equivalents across the country).
[3] There are in total nearly two dozen expert witnesses and a significant amount of technical data, economic analysis, and multijurisdictional considerations involved in the case. It is all a bit much to be decided on the basis of a motion with an enormous paper record. Some judges may desire a short hearing and others may prefer a lengthier exposure to witnesses giving viva voce evidence, but it does not serve the ends of justice to proceed by way of what has become known as a “trial in a box” and, in effect, let a judge wade through all of it on their own: Basaraba v. Bridal Image Inc., 2021 ONSC 8038, at para 26; RNC Corp. v. Johnstone, 2020 ONSC 7751, at para 2.
[4] The parties have now put forward a well thought-out proposal for a hybrid trial, using the affidavit evidence they had prepared for the summary judgment motions and, in addition, calling the key witnesses to testify. It is proposed as a 4-week trial, which seems to me to be long enough to allow a trial judge to hear and absorb the most important expert and other evidence, but short enough to satisfy the goal of judicial economy. Of course, this proposed schedule will be subject to adjustment by the trial judge, who may have their own ideas about the time needed for each witness, etc.
[5] I commend all counsel for their cooperation with each other and for putting in this organizational effort.
[6] Since I was the certification judge, I will not be the trial judge. The Court will make arrangements to have one of my colleagues preside over the trial. I have been advised that one of my colleagues on the class action list may have time available in the upcoming months. I will leave the task of scheduling the trial to the trial judge, who will be in touch with counsel.
Date: December 10, 2021
Morgan J.