COURT FILE NO.: CV-17-576146-00CP

DATE: 2022-04-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHEN MARCINKIEWICZ and ROBIN SURCESS

Plaintiffs

• and –

GENERAL MOTORS OF CANADA COMPANY, GENERAL MOTORS LLC, GREG GARDNER MOTORS LTD., ROBERT BOSCH GMBH, ROBERT BOSCH LLC, and ROBERT BOSCH INC.

Defendants

Daniel E.H. Bach, Stefani Cuberovic, D. Aylin Manduric, David Sterns, Jean-Marc Leclerc, and Mohsen Seddigh, for the Plaintiffs

Cheryl M. Woodin, Michael C. Smith, and Ethan Z. Schiff for the Defendants General Motors of Canada Company and General Motors LLC

Robert Kwinter and Nicole Henderson for the Defendants Robert Bosch GmbH, Robert Bosch LLC and Robert Bosch Inc.

Robert B. Bell and Rebecca Shoom for the Defendant Greg Gardner Motors Ltd.

Proceeding under the Class Proceedings Act, 1992

HEARD: February 9 and 10, 2022

PERELL, J.

REASONS FOR DECISION

Contents

A. Preamble Alert 3

B. Introduction. 3

C. Procedural Background. 4

D. The Defendants’ Arguments. 8

1. General Motors’ Argument 8

2. Bosch’s Argument 8

3. Greg Gardner Motors Ltd.’s Argument 9

E. Evidentiary Background. 9

F. Facts. 10

1. The Parties. 10

2. Emissions Controls. 11

3. Emissions and the Diesel Engines in GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze Vehicles 12

4. Mr. Smithers’ Expert Evidence on Emissions. 13

5. The New Vehicle Limited Warranty. 14

6. The General Motors Representations. 15

7. The Bosch Representations. 15

8. Expert’s Evidence on Compensable Harm.. 16

9. Parallel U.S. Proceedings. 16

G. Certification: General Principles. 17

H. The Cause of Action and the Common Issues Criteria Ensemble. 18

Introduction. 18

1. General Principles: Cause of Action Criterion. 18

2. General Principles: Common Issues Criterion. 19

3. The Regulatory Compliance Conundrum.. 20

4. The Compensable Harm Problem.. 23

5. The Precedential Case Law Arguments. 24

6. Negligent Misrepresentation. 25

7. Breach of Consumer Protection Legislation. 28

8. Breach of Warranties. 29

9. Breach of the Canadian Environmental Protection Act, 1999. 31

10. Breach of the Competition Act 31

11. Unlawful Means Civil Conspiracy. 31

12. Unjust Enrichment 31

I. Identifiable Class Criterion. 32

J. Preferable Procedure Criterion. 33

K. Representative Plaintiff Criterion. 34

L. Representative Defendant Class Actions. 34

M. Conclusion. 37

A. Preamble Alert

[1] This proposed products liability misrepresentation class action is about an automobile part designed to be a Liar. It is about a “Defeat Device.” At the heart of this proposed class action is a semantic paradox of the nature of the “Liar’s Paradox,” which was formulated by the Greek philosopher Eubulides.

[2] A succinct version of the paradox asks the Liar to answer the question: “Do you lie when you say you are lying?” Thomas Aquinas’ version of the “Liar’s Paradox” in De fallaciis is: “The Liar speaks the truth in saying that he speaks falsely. Therefore, he speaks the truth. It does not follow. For to speak the truth is opposed to what it is to speak falsely and conversely.”

[3] Over the millennia, many philosophers, logicians, mathematicians, and advocates, including Aristotle, Seneca, Cicero, Thomas Aquinas, William of Ockham, Alfred Tarski, Rudolph Carnap, and Bertrand Russell have attempted to solve the “Liar’s Paradox” and its variants, (including the “Crocodile’s Dilemma” and the “Lawyer’s Paradox”).

[4] Readers beware, the ancient logician Philetas of Cos died an early death in frustration from his failure to solve the “Liar’s Paradox”.

B. Introduction

[5] Pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiffs Stephen Marcinkiewicz and Robin Surcess bring a proposed class action against three groups of defendants; namely: (a) General Motors of Canada Company and General Motors LLC (collectively “General Motors”); (b) Robert Bosch GmbH, Robert Bosch LLC, and Robert Bosch Inc. (collectively “Bosch”); and (c) Greg Gardner Motors Ltd.

[6] In this proposed class action, Greg Gardner Motors Ltd. is joined as a defendant to be a Representative Defendant for General Motors Dealers, who are alleged to be General Motors’ agents.

[7] The proposed class action is based on the admitted fact that General Motors manufactures vehicles with diesel engines that have the “Bosch EDC17,” an “Electronic Diesel Control Unit.” The Bosch EDC17 is an automobile part (a computer) that controls the operation of a diesel engine.

[8] The Plaintiffs allege that the Bosch EDC17 contains software that is a “Defeat Device.” A Defeat Device is a defined term under emissions control regulations in the United States and Canada. By definition, a Defeat Device is designed to circumvent government emissions tests of whether a vehicle complies with emissions standards.

[9] The Plaintiffs allege that although the General Motors’ vehicles have been certified by the regulators in the United States as passing the emissions tests and of complying with emissions standards; nevertheless, in real-world driving conditions, the diesel engines emit tremendous amounts of nitrogen oxide (NOx), a harmful pollutant, and the vehicles do not comply with emissions laws. The Plaintiffs allege that General Motors and Bosch conspired together to use Defeat Devices to deceptively obtain Certificates of Conformity. Therefore, the Plaintiffs submit that the Defendants, in their advertising and marketing of the vehicles, misrepresented that the vehicles were “clean diesel” vehicles.

[10] Moreover, the Plaintiffs make two case law arguments. First, they submit that the immediate case is a “Defeat Device” case and is similar to the other certified “Defeat Device” cases and should be certified for similar reasons. In the alternative, they submit that the immediate case is similar to other certified vehicle misrepresentation cases and should likewise be certified.

[11] The Defendants resist certification. In addition to submitting that the Plaintiffs’ certification motion should be dismissed as failing to satisfy the criteria for certification, General Motors, supported by the other Defendants, moves to have the Plaintiffs’ action dismissed because it is plain and obvious that the Plaintiffs do not have any legally viable causes of action.

[12] The Defendants assert that this class action is a figment of the imagination of Class Counsel that came to their mind because of the so-called “diesel-gate” scandal, where it was discovered in 2015 that a different vehicle manufacturer, Volkswagen, had installed Defeat Devices in their vehicles. The Defendants submit that unlike the other diesel emissions class actions, where the regulator announced the existence of Defeat Devices, between 2015 to 2022, there has been no regulatory action or finding indicating that General Motors’ diesel engines contain Defeat Devices and do not meet emissions standards. The Defendants assert that there has been no manifest finding of a misrepresentation upon which to ground a class action, and, rather, the vehicles have been certified as emissions-compliant. The Defendants, therefore, submit that the Plaintiffs’ action is a chimera because the regulators have certified the vehicles as passing emissions standards.

[13] Moreover, the Defendants assert that there is no basis in fact that any Class Member has suffered damages about the alleged tricking of the regulator.

[14] The Defendants also make a precedential case law argument. They argue that Maginnis v. FCA Canada Inc.,[^2] and MacKinnon v. Volkswagen,[^3] which are Defeat Device cases where certification was denied, should be followed in the immediate case.

[15] By and large, I agree with the Defendants’ submissions. There are fatal logical, doctrinal, and evidentiary problems with the Plaintiffs’ various causes of action. None of the certification criteria are satisfied.

[16] For the reasons that follow. I dismiss both the certification motion and the Plaintiffs’ action. I dismiss the motion to have Greg Gardner Motors appointed a Representative Defendant for a class of General Motors Dealers.

C. Procedural Background

[17] In May 2017, the Plaintiffs commenced their proposed class action.

[18] The Plaintiffs’ proposed Class Counsel are Siskinds LLP and Sotos LLP.

[19] On September 16, 2020, the Plaintiffs delivered a Second Fresh as Amended Statement of Claim.

[20] In their Statement of Claim and in their motion for certification:

a. The Plaintiffs bring this proposed class proceeding on behalf of current and former purchasers and lessees of model year 2011 – 2016 GMC Sierra 2500HD and 3500HD vehicles and Chevrolet Silverado 2500HD and 3500HD vehicles equipped with the Duramax engine, and model year 2014 – 2015 Chevrolet Cruze vehicles equipped with the Turbo engine.

b. The Plaintiffs advance the following causes of action:

General Motors

General Motors’ Dealers

Bosch

Negligent Misrepresentation

X

X

X

Breach of Consumer Protection Legislation

X

X

X

Breach of Good Faith under Civil Code of Québec[^4]

X

X

X

Breach of Warranties

X

X

Breach of the Canadian Environmental Protection Act, 1999;[^5]

X

Breach of the Competition Act,[^6]

X

X

X

Unlawful Means Civil Conspiracy

X

X

Unjust Enrichment

X

X

X

c. The Plaintiffs propose the following common issues:

Defeat Devices

1. Do some or all of the Vehicles presently contain one or more Defeat Devices (as defined in the pleading), or did some or all of the Vehicles previously contain such Defeat Devices?

Negligent misrepresentation

2. Did the Defendants, or any of them, make some or all of the Representations described in the Claim? If so, which Representations, when and how?

3. Did the Defendants, or any of them, know that the Representations were false when they were made? Alternatively, were the Defendants, or any of them, reckless as to whether the Representations were false when they were made?

4. Were the Representations negligently made by the Defendants, or any of them? More specifically:

A. Did the Defendants, or any of them, owe a duty of care to the Plaintiffs and Plaintiff Class Members?

B. If so, did the Defendants, or any of them, breach their duty? How?

C. In the circumstances of this case, can the reliance of the Plaintiffs and Plaintiff Class Members on the Representations be inferred?

Consumer Protection Act

5. Does the Consumer Protection Act,[^7] or the Equivalent Consumer Protection Statutes (as defined in the pleading, and collectively, the “Consumer Protection Legislation”) apply to the GM Defendants and/or the GM Dealers?

6. Does the Consumer Protection Legislation apply to the claims of the Plaintiffs and Plaintiff Class Members?

7. Did the GM Defendants and/or the GM Dealers make any false, misleading or deceptive representations within the meaning of the Consumer Protection Legislation? If so:

A. Were any such representations unconscionable?

B. Does liability require privity of contract between the parties? If so, is there privity of contract between the GM Defendants and/or the GM Dealers, and the Plaintiffs and Plaintiff Class Members?

Warranties

8. Did the GM Defendants and/or the GM Dealers breach any express or implied conditions or warranties of fitness, merchantability and quality of the Vehicles?

CEPA

9. Was the importation of the Vehicles into Canada unlawful, in contravention of the Canadian Environmental Protection Act, 1999, SC 1999, c 33?

Conspiracy

10. Are the GM Defendants and the Bosch Defendants liable for the tort of unlawful conduct conspiracy?

A. Did the GM Defendants and the Bosch Defendants unlawfully conspire with each other to make false, misleading or deceptive representations?

B. Was their unlawful conduct directed toward the Plaintiffs and Plaintiff Class Members?

C. Did the GM Defendants and the Bosch Defendants know, or ought they have known, in the circumstances that injury to the Plaintiffs and Plaintiff Class Members was likely to result?

D. Did the Plaintiffs and Plaintiff Class Members suffer injury?

Deceptive marketing

11. Did the Defendants, or any of them, contravene Part VI of the Competition Act, RSC 1985, c C-34?

Relief

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

13. If one or more of the above common issues are answered affirmatively:

A. Can and/or should the financing, lease or other agreements related to the Vehicles be rescinded?

B. 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 Plaintiff Class?

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

Disgorgement

14. In the alternative to damages, are the Defendants, or any of them, liable to account to the Plaintiffs and Plaintiff Class Members by disgorgement of the revenues generated as a result of their unlawful conduct? If so, in what amount?

Civil Code of Quebec

15. Did the Defendants breach their obligations under the Consumer Protection Act, CQLR, c P-40.1, the Environment Quality Act, CQLR, c Q-2 and the regulations made under it and the Civil Code of Québec?

A. Have the Defendants incorporated Defeat Devices into the Covered Vehicles that do not comply with the standards for air pollutant emissions?

B. Do the Vehicles suffer from a hidden defect?

C. Have the Defendants breached their legal warranty for good quality?

D. Did the Defendants make false and misleading representations that the Vehicles met the new standards for air pollutant emissions?

E. Did the Defendants otherwise commit fault or engage their civil liability?

F. Did the conduct of the Defendants result in losses to the Plaintiff Class Members and, if so, do such losses constitute injury to each of the Plaintiff Class Members?

G. Are Plaintiff Class Members entitled to claim damages for the moral and material damages arising from the foregoing?

D. The Defendants’ Arguments

1. General Motors’ Argument

[21] General Motors submits that the Plaintiffs’ action and their certification motion should be dismissed for the following reasons:

• The Statement of Claim fails to disclose any reasonable cause of action because, among other things, there is no tenable pleading of regulatory breach and consequent loss.

• There is no basis in fact that General Motors’ vehicles contain defeat devices manufactured by Bosch.

• There is no basis in fact that General Motors’ vehicles do not comply with emissions standards.

• There is no basis in fact that Class Members suffered compensable harm.

• There is no identifiable class because there is no basis in fact that a class of claimants with compensable claims exists.

• There are no common issues because there is no basis in fact that any certifiable common issues exist and no basis in fact for any issue that would be common to the class.

• A class proceeding is not the preferable procedure because, among other things, there is no basis in fact for a class of claimants suffering compensable harm.

• There is no representative plaintiff because neither of the plaintiffs have viable claims.

• The case at bar is indistinguishable from Maginnis v. FCA Canada Inc.,[^8] and MacKinnon v. Volkswagen,[^9] where similar proposed Defeat Device class actions against a car manufacturer and Bosch were dismissed.

2. Bosch’s Argument

[22] Bosch adopts and supports all of General Motors’ arguments.

[23] In addition, Bosch submits that the Plaintiffs’ action and their certification motion should be dismissed for the following reasons:

• The Plaintiffs’ pleading does not disclose any reasonable cause of action against Bosch.

• Bosch made no misrepresentations to the Class Members.

• Bosch is not a “supplier” who could be liable under consumer protection statutes.

• Bosch agrees with General Motors’ submission that Ontario’s Consumer Protection Act, 2001 requires privity of contract for an unfair practice claim and there is no privity of contract between Bosch and any Class Member.

• Bosch has no contractual relationship with the Class Members, and, therefore, a prerequisite of the alleged breach of duty of good faith under the Civil Code of Québec has not and could not be pleaded.

3. Greg Gardner Motors Ltd.’s Argument

[24] Greg Gardner Motors Ltd. adopts and supports all of General Motors’ arguments.

[25] In addition, Greg Gardner Motors submits that:

a. In so far as the Plaintiffs’ claims require the General Motors Dealers to be agents, that is not possible because the General Motors Dealers are independent contractors and are they are not agents.

b. The test for the appointment of a Representative Defendant is not satisfied.

E. Evidentiary Background

[26] In support of their motion for certification, the Plaintiffs, Stephen Marcinkiewicz and Robin Surcess, proffered the following evidence:

• the affidavit of Stephen Marcinkiewicz dated September 16, 2020. Mr. Marcinkiewicz purchased and owned a 2011 Chevrolet Silverado 2500HD and a 2015 Chevrolet Silverado 2500HD.

• the affidavit of M. Eva Markowski dated November 27, 2020. Ms. Markowski is a lawyer with Siskinds LLP, co-Class Counsel.

• the affidavits of Brandon Schaufele, dated September 9, 2020 and September 24, 2021. Dr. Schaufele is an Associate Professor in Business and Economics and Public Policy at the Ivey Business School at Western University. He and his colleague Adam Fremeth were retained by the Plaintiffs to provide an expert opinion, Methodology for Loss Quantification dated September 8, 2020. Dr. Schaufele delivered a Reply report, “Response to Hitt Reply Report” dated September 24, 2021. He was cross-examined on November 5, 2021.

• the affidavit of Juston Smithers dated October 7, 2020. Mr. Smithers is the CTO (Chief Technical Officer) of 44 Energy Technologies Incorporated. He and his colleague Brad Edgar were retained to provide an expert opinion for the Plaintiffs. Mr. Smithers prepared a report “GM Diesel Emissions Report” dated August 28, 2020. He was cross-examined on November 4, 2021.

• the affidavit of Robin Surcess dated November 11, 2020. Mr. Surcess is an environmentalist. He purchased a 2012 GMC Sierra Duramax Diesel from the defendant Greg Gardner Motors Ltd. He was cross-examined on October 21, 2021.

[27] In defence of the certification motion and in support of their motion to strike the Plaintiffs’ claim, General Motors proffered the following evidence:

• the affidavit of Andrew Barren dated July 30, 2021. Mr. Barren is a technical fellow in the Automotive Emissions Regulations Group at General Motors. He was cross-examined on October 20, 2021.

• the affidavit of Sakina Babwani dated July 30, 2021. Ms. Babwani is an associate lawyer at Bennett Jones LLP, the lawyers for General Motors.

• the affidavit of Lorin Moultrie Hitt dated July 30, 2021. Dr. Hitt is the Zhang Jindong Professor of Operations, Information and Decisions (OID) at the University of Pennsylvania, Wharton School. He was retained to deliver an expert report dated July 30, 2021. He was cross-examined on October 22, 2021.

[28] In defence of the certification motion and in support of the motion to strike the Plaintiffs’ Statement of Claim, Bosch proffered the following evidence:

[29] In defence of the certification motion and in support of the motion to strike the Plaintiffs’ Statement of Claim, Greg Gardner Motors Ltd. proffered the following evidence:

• the affidavit of Greg Gardner dated July 30, 2021. Mr. Gardner is the President of Greg Gardner Motors Ltd. He is an authorized Dealer for General Motors pursuant to a confidential written Dealer Agreement. He was cross-examined on October 25, 2021.

F. Facts

1. The Parties

[30] General Motors LLC designs and manufacturers motor vehicles. General Motors of Canada Company is a distributor of General Motors’ vehicles. GM Canada distributes vehicles to independent vehicle dealers, who are not GM Canada agents. GM LLC is not the parent company of GM Canada, but they are associated companies.

[31] General Motors manufactured and distributed through its automobile dealerships GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze vehicles that have diesel engines. These engines have received Certificates of Conformity with emissions standards pursuant to Title 40, chapter I, subchapter C, part 86 of the U.S. Code of Federal Regulations from the U.S. regulator, the Environment Protection Agency (“EPA”).

[32] To sell the Sierra, Silverado, and Cruze vehicles, General Motors’ dealerships entered into individual contracts with the purchasers of the vehicles.

[33] Greg Gardner Motors Ltd. is an authorized Dealer for General Motors pursuant to an independent contract. The dealership is located in Squamish, British Columbia. It is independent of other General Motors Dealers, which compete with one another in the marketplace to meet sales targets under their respective dealer agreements.

[34] During the class period, Mr. Surcess and Mr. Marcinkiewicz owned General Motors vehicles with the Bosch EDC17, an electronic control unit (ECU).

a. Mr. Surcess purchased his vehicle from Greg Gardner Motors.

b. Mr. Marcinkiewicz purchased a 2011 Chevrolet Silverado 2500HD and a 2015 Chevrolet Silverado 2500HD. He purchased his vehicles from an independent dealer unaffiliated with General Motors. He subsequently sold the vehicles. Mr. Marcinkiewicz refused to answer questions about the details of his purchase and sale of the vehicles.

[35] Mr. Surcess testified that the Vehicle he purchased “doesn’t provide [him] with the tailpipe emissions that [he] paid for.” Both Plaintiffs testified that the Defendants’ advertising caused them to believe that their vehicles were “clean” and “ecologically friendly” with “low emissions” and “environmentally responsible features.” They testified that they would not have purchased the vehicles had they known that they were equipped with Defeat Devices that suppressed the vehicles’ emissions control systems.

[36] There is no evidence that either Mr. Surcess or Mr. Marcinkiewicz viewed, read, or heard any of the misrepresentations they allege were made by the Defendants. During cross-examination, they refused to answer questions about whether they had reviewed the vehicles’ manuals and warranties at the time of purchase. They also refused questions about whether they had experienced problems renewing their vehicles licenses due to emissions testing. There is no evidence that the Plaintiffs respectively suffered any economic loss consequent upon their purchase and or sale of their vehicles.

2. Emissions Controls

[37] Vehicles sold in Canada must pass emissions tests. The United States and Canada have common emissions standards. Pursuant to s. 153 (3) of the Canadian Environmental Protection Act, 1999,[^10] and s. 19 of SOR/2003-2 (On-Road Vehicle and Engine Emission Regulations), a car manufacturer may elect to comply with U.S. or Canadian emission standards.

[38] Section 153 (3) of the Canadian Environmental Protection Act, 1999 states:

Certification by foreign agency

(3) Any vehicle, engine or equipment is deemed to conform to a prescribed standard if

(a) the regulations provide that an enactment of a foreign government corresponds to that standard; and

(b) a prescribed agency of that government has certified that the vehicle, engine or equipment conforms to the enactment as applied by the agency, unless the Minister determines otherwise.

[39] Section 19 of SOR/2003-2 states:

Vehicles or Engines Covered by an EPA Certificate

19. (1) Every vehicle or engine of a specific model year that is covered by an EPA certificate and bears the U.S. emission control information label referred to in paragraph 35(1)(d) may, if the company so chooses, conform to, instead of the standards set out in sections 11 to 17, the certification and in-use standards referred to in the EPA certificate.

(2) For the purposes of subsection 153(3) of the Act, the provisions of the CFR that are applicable to a vehicle or engine referred to in subsection (1) pursuant to the EPA certificate correspond to the certification and in-use standards referred to in subsection (1).

(3) For the purposes of subsection 153(3) of the Act, the EPA is the prescribed agency.

[40] General Motors chose to conform to the U.S. standards, rather than those standards set out in sections 11 to 17 of the Canadian On-Road Vehicle and Engine Emission Regulations. The American regulations are set out under Title 40, chapter I, subchapter C, part 86 of the U.S. Code of Federal Regulations.

[41] Under §86.1844-01(11) of the U.S. Code of Federal Regulations an applicant for a Certificate of Conformity with the regulations must disclose a list of all “auxiliary emission control devices” (“AECDs”) within the vehicle, including a narrative description of the functionality of each AECD and a justification for its implementation. An AECD is defined as “any element of design which senses temperature, vehicle speed, engine RPM, transmission gear, manifold vacuum, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission control system”.

[42] The American regulations define a “Defeat Device” as a type of AECD which reduces the effectiveness of the emission control system during testing.

[43] The Plaintiffs allege that Bosch’s EDC17 lets the vehicles detect when they are in regulatory testing conditions but suppress emissions controls outside of regulatory testing. As a result, the vehicles emit less NOx during emissions testing than during normal operations. However, during real-world driving conditions, the vehicle will emit NOx in excess of what is permitted by the emissions standards.

3. Emissions and the Diesel Engines in GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze Vehicles

[44] The GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze Vehicles are manufactured with diesel engines. Diesel engines: (a) provide fuel cost savings (improved fuel economy and lower fuel prices); (b) improve vehicle range between fill-ups; (c) improve engine performance (torque/acceleration and towing capacity); and (d) extend engine life.

[45] Bosch supplied General Motors the EDC17, an electronic control unit (ECU) for the diesel engines. The EDC17 is a small on-board computer. The EDC17 contains software that controls various systems in the vehicle, including fuel injection, exhaust gas recirculation, and manifold pressure regulation. The EDC17 software is calibrated and customized based on the specifications of the manufacturer. The software and calibration code used by one vehicle manufacturer is not the same as that used by another vehicle manufacturer, even if the EDC17 is used by both manufacturers.

[46] In the immediate case, the EPA performed standardized tests on the vehicles using a chassis dynamometer (a “Dyno”). The parameters of the standardized tests are set out in the U.S. Code of Federal Regulations and are performed in a laboratory setting.

[47] In the immediate case, all the vehicles apparently satisfied the standardized tests within the acceptable range of U.S. emissions standards. There has been no finding of noncompliance with any emissions standards or regulations with respect to any of General Motors’ diesel engines by any regulator in the world.

[48] In the immediate case all the General Motors vehicles distributed in Canada received emissions certificates, i.e., Certificates of Conformity, issued by the EPA under the U.S. Code of Federal Regulations. The Plaintiffs allege, however, that the vehicles received their Certificates only because of the use of illegal Defeat Devices.

[49] In the immediate case, all the vehicles had an emission control information label as prescribed by SOR/2003-2 (On-Road Vehicle and Engine Emission Regulations), s. 35(1)(d) enacted pursuant to the Canadian Environmental Protection Act, 1999.

[50] After a vehicle receives a Certificate, the manufacturer is required to perform testing on in-use vehicles and to report results to the EPA. The EPA has a surveillance program in which it selects customer-used vehicles for testing. These tests are to verify that in-use emissions performance of vehicles is at or below EPA standards.

[51] Environment and Climate Change Canada (“ECCC”) has performed “in-use” or “on-road” testing of some of the vehicles in the immediate case to verify emissions compliance. The ECCC closed its files with no adverse findings. In the immediate case, there has been no determination of non-compliance with respect to any of the vehicles.

[52] With respect to the GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze vehicles, there have been no recalls with respect to emissions controls. There have been no regulatory actions against any of the Defendants with respect to a Defeat Device in the vehicles.

4. Mr. Smithers’ Expert Evidence on Emissions

[53] Mr. Smithers is an engineer with expertise in diesel emissions. He was retained by the Plaintiffs as an expert to opine on whether General Motors’ diesel engines contained Defeat Devices. The Defendants did not proffer a rival engineering report.

[54] Mr. Smithers tested two vehicles. He tested a Chevrolet Cruze, which has a Turbo engine. He tested a 2013 Chevrolet Silverado with a 6.6L Duramax diesel engine.

[55] Using a dynamometer, Mr. Smithers’ test of the Cruze’s emissions revealed that the vehicle under laboratory conditions emitted NOx emissions of 78 mg/mile, which would exceed the omissions standards.

[56] Mr. Smithers’ tests of the Silverado revealed three instances where there were NOx emissions exceeding the emissions standards.

[57] Mr. Smithers’ expert opinion was that his tests strongly suggested the presence of Defeat Devices.

[58] For the purpose of the Plaintiffs’ motion for certification, Mr. Smithers’ assigned task was to establish some basis in fact that two or more Class Members had a claim based on there being Defeat Devices that tricked the regulator because in real-world driving conditions the Duramax and Turbo diesel engines emitted emissions that exceeded the emissions standards.

[59] In my opinion, Mr. Smithers failed in the task that he was assigned.

[60] There is a difference between whether something is the case, could be the case, and should be the case. In the immediate case, it was already known from the so-called “diesel gate” class actions in Canada, the United States, and around the world, that diesel engines could be manufactured with Defeat Devices to trick the regulator. Mr. Smithers’ report essentially confirmed what was already known, but he failed to show some basis in fact that two or more Class Members had a claim based on there being Defeat Devices that tricked the regulator.

[61] The regulator, whose authority includes identifying the presence of a Defeat Device and taking appropriate regulatory action, has not done so. Mr. Smithers’ opinion that the Duramax and Turbo diesel engines contained Defeat Devices, which is to say that the regulator was deceived in issuing a Certificate of Compliance, is unreliable.

[62] Mr. Smithers examined just one Duramax engine, for which he provided no information about its maintenance condition and just one Turbo engine which is an inadequate sample to draw any conclusions on a class-wide basis. Moreover, the Cruze vehicle he tested was not representative of the Cruze vehicles that had been tested by the EPA and that had received Certificates of Compliance and the Cruze he tested had a leak in the exhaust and needed to replace a NOx sensor. Further, there were possible explanations about the emissions performance of the tested vehicle that may have biased the test outcomes. Mr. Smithers’ evidence does not provide some basis in fact of any undefined “high” NOx output common to all the vehicles.

[63] Notwithstanding the Plaintiffs’ arguments that the some-basis-in-fact standard is very low and that the Defendants did not call a competing engineering expert, Mr. Smithers’ evidence did not meet the low some-basis-in-fact standard to show that there was some basis in fact that on a class-wide basis the Duramax and Turbo diesel engines did not satisfy the emissions standards of the Canadian Environmental Protection Act, 1999, which is to say that the EPA was tricked (or perhaps was just careless) in issuing a Certificate of Compliance for the vehicles.

[64] In the immediate case, it is understandable why the Defendants did not call an expert to attempt the Herculean task at a certification motion of proving that the EPA was not tricked. In the immediate case, although I suspect that the Defendants retained an expert to prepare the cross-examination of Mr. Smithers, it is understandable why the Defendants did not retain an expert to deliver a competing expert’s opinion. Why bother? Mr. Smithers failed to show that there was some basis in fact that on a class-wide basis, that the Duramax and Turbo diesel engines contained Defeat Devices that tricked the regulator and that in real-world driving conditions emitted emissions that exceeded the emissions standards.

[65] One can believe much of Mr. Smithers’ evidence in the sense that he showed some basis in fact for the possibility that the diesel engines could contain Defeat Devices. The testing results of the emissions of two vehicles were no doubt accurate, and I accept that he used reliable testing systems. However, his deductions from his tests that the vehicles did contain Defeat Devices are unreliable and he failed to show any basis in fact that on a class-wide basis, the Duramax and Turbo diesel engines did contain Defeat Devices that tricked the regulator and that in real-world driving conditions emitted emissions that exceeded the emissions standards.

[66] I could draw the inference from Mr. Smithers’ evidence that if there was a Defeat Device in the two vehicles he tested, it was not a successful Defeat Device because during laboratory testing the vehicles’ emissions exceeded the standards, which is hardly what the Plaintiffs wish to demonstrate in a Defeat Device case, which depends upon the regulator having been tricked.

5. The New Vehicle Limited Warranty

[67] GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze vehicles have a New Vehicle Limited Warranty, which warrants that the vehicle: “was designed, built and equipped so as to conform at the time of sale with the Emission Regulations under the Canadian Environmental Protection Act and [was] free from defects in material and workmanship which cause the vehicle to fail to conform with those regulations for a period of the coverage …”

[68] Depending on the vehicle and affected component, the duration of the applicable warranty for emissions systems varies from three to eight years and 60,000 kilometres to 130,000 kilometres. The warranty excludes coverage for economic loss and extra expense, as follows:

Any implied warranty or condition (including any implied warranty or condition of merchantability or fitness for a particular purpose) applicable to this vehicle is limited in duration to the duration of this written warranty. The performance of repairs and needed adjustments is the exclusive remedy under this written warranty or any implied warranty or condition. General Motors of Canada shall not be liable for incidental or consequential damages resulting from breach of this written warranty or any implied warranty or condition.

[69] In the immediate case, there is no evidence of anyone having made a claim under the warranty related to a Defeat Device, emissions performance, or otherwise – and having such claim denied. In cross-examination, the Plaintiffs refused to answer questions about whether they made warranty claims.

6. The General Motors Representations

[70] In its marketing materials General Motors made representations about the “clean diesel” technology in the Duramax and Turbo diesel engines in the GMC Sierra, Chevrolet Silverado, and Chevrolet Cruze vehicles. For example, General Motors represented that:

a. the Cruze “is powerful, efficient and clean” and its “turbo-diesel engine provides greater fuel economy than a comparably sized gasoline engine…”;

b. “Cruze Clean Turbo Diesel’s emissions will be below stringent U.S. environmental standards including Tier 2 Bin 5 emissions standards,” it maximizes both efficiency and performance [….with] fuel economy that’s unsurpassed by any other gasoline or diesel car in America” and “[r]educes emissions [and] it features the very latest clean diesel technology, which helps reduce emissions without sacrificing power”;

c. the “[c]leaner, more powerful Duramax Diesel Delivers 11 percent better highway fuel economy than previous model […and] increased torque and fuel economy…” and “lower emissions”; and

d. the Sierra was “…cleaner and faster with lower emissions and greater power than the previous model.”

7. The Bosch Representations

[71] The Bosch Defendants are alleged to have misrepresented the features of Bosch EDC17 by: (a) stating in a 2016 letter to CARB (California Air Resources Board) that diesel vehicles “are cleaner than ever before,” maximize “fuel efficiency” and reduce “CO2 and other emissions”; and (b) representing in a 2006 press release that Bosch EDC17 “controls every parameter that is important for effective, low-emission combustion” and “reducing nitrogen oxides” (i.e., NOx), leading to “even cleaner emissions.”

[72] Bosch does not sell the EDC17 directly to consumers. There is no contractual relationship between Bosch and the purchasers of the vehicles. In the immediate case, neither Plaintiff communicated with Bosch before purchasing their vehicles. Neither Plaintiff viewed Bosch’s promotional materials. At the time that they purchased their vehicles, neither Plaintiff was aware that their vehicle had a component part manufactured by Bosch.

8. Expert’s Evidence on Compensable Harm

[73] The Plaintiffs allege damages from: (a) reduced value of the vehicles; (b) increased fuel consumption; (c) possible repair or replacement of the diesel engines; and (d) paying a premium for a diesel engine over a gasoline engine.

[74] The Plaintiffs retained Dr. Schaufele to provide evidence about a methodology to calculate compensable harm. He was instructed to advise if a methodology could be developed to determine on a class-wide basis: (a) what impact the violation of emissions standards had on the market value of the Class Members’ vehicles? and (b) how much more Class Members paid for their diesel engine vehicles comparable to emissions-compliant automobiles in the Canadian marketplace?

[75] The Defendants retained Dr. Hitt to counter and critique Dr. Schaufele’s report and the proposed methodology to quantify the Class Members’ losses.

[76] For the present purposes of the certification motion now before the court, it is not necessary to describe and discuss Dr. Schaufele’s and Dr. Hitt’s evidence.

[77] The core claim in this proposed class action is for compensation for an economic loss in the value of the diesel engine vehicles that have a Defeat Device. It is well established that where the core claim of a class action is for damages, there must be: (a) some evidence of compensable loss; and (b) a plausible methodology to measure the loss on a class-wide basis.[^11] 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.[^12]

[78] For present purposes, I am prepared to assume without deciding that Dr. Schaufele has provided a plausible methodology to measure loss on a class-wide basis. I assume without deciding that there is some evidence of data for Dr. Schaufele’s methodology.

[79] With those assumptions, a critical issue in the immediate case is whether there is some evidence of compensable loss. Dr. Schaufele’s instructions were to assume that damages had occurred. It has been for a long time, and it continues to be a fundamental principle that for an action to be certified as a class proceeding there must be some evidence that two of more putative Class Members suffered compensable harm.[^13] That issue is and was outside the providence of Drs. Schaufele and Hitt.

9. Parallel U.S. Proceedings

[80] There are class action proceedings in the U.S. where claims similar to those in the immediate action are made against General Motors and Bosch. Mr. Smithers has testified in those proceedings.

[81] I do not regard the situation in the U.S. proceedings or Mr. Smithers’ involvement in those proceedings as pertinent to the issues in the immediate case. I have not read the U.S. decisions or case law that was included in the evidentiary record for this certification motion.

G. Certification: General Principles

[82] 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.

[83] 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.[^14] 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.[^15]

[84] 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.[^16] 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.[^17] In particular, there must be a basis in the evidence to establish the existence of common issues.[^18] 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.[^19]

[85] 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.[^20]

H. The Cause of Action and the Common Issues Criteria Ensemble

Introduction

[86] The Defendants assert that given the circumstance that there has been no regulatory action with respect to the alleged presence of the Defeat Devices in the diesel engines, the Plaintiffs have not pleaded the constituent elements of their various causes of action nor have the Plaintiffs showed some basis in fact for common issues associated with the various causes of action. Thus, given the nature of the Defendants’ arguments and the Plaintiffs’ response to them, it is both convenient and necessary to consider the cause of action criterion together with the common issues criterion and taken together use these criteria to analyze the Plaintiffs’ causes of action and whether they are certifiable.

[87] In this part of my Reasons for Decision:

a. I shall first describe the nature of the cause of action criterion.

b. Second, I shall describe the nature of the common issues criterion.

c. Third, fourth, and fifth, I shall analyze, three overarching arguments from the Defendants that apply to all of the causes of actions. The analysis will be under the headings “The Deemed Regulatory Compliance Conundrum”, “the Compensable Harm Problem” and “The Precedential Case Law Arguments.”

d. Then in sections six through twelve of this part, I will analyze each of the causes of action advanced by the Plaintiffs beginning with the predominantly important cause of action, which is the products liability negligent misrepresentation claim.

1. General Principles: Cause of Action Criterion

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

[89] The "plain and obvious" test for disclosing a cause of action from Hunt v. Carey Canada,[^21] 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.[^22]

[90] 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.[^23]

[91] 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.[^24]

[92] 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,[^25] and the court's power to strike a claim is exercised only in the clearest cases.[^26] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^27] 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.[^28]

2. General Principles: Common Issues Criterion

[93] The second 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.[^29]

[94] 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.[^30]

[95] 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.[^31] 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.[^32] 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.[^33]

[96] The common issue criterion presents a low bar.[^34] 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.[^35] Even a significant level of individuality does not preclude a finding of commonality.[^36]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.[^37]

[97] 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.[^38] The plaintiff must establish some basis in fact for the existence of the common issues in the sense that there is some factual basis for the claims made to which the common issues are connected.[^39]

3. The Regulatory Compliance Conundrum

[98] In the immediate case, sometimes Class Counsel submits that the case is a products liability “Defeat Device case” about the EPA being tricked, and accordingly, the immediate case should be certified just as the other Defeat Device cases have been certified. However, when Defendant’s Counsel attacks the Defeat Device case - as such - Class Counsel switches to arguing that the case is just a conventional products liability case, where a product’s attributes have been misrepresented and, accordingly, the case should be certified just as other conventional misrepresentation products liability cases have been certified.

[99] Since it is in pursuit of access to justice, the Plaintiffs can be forgiven for playing “Cause of Action Whack-a-Mole.” However, in this part of my reasons, I explain, why both the Plaintiffs’ “Defeat Device” case and also their conventional misrepresentation case are successfully whacked by the Defendants.

[100] The major and fundamental premise of the Plaintiffs’ “Defeat Device” case is that the regulator, in this case, the EPA, has been tricked into issuing Certificates of Compliance for the Duramax and Turbo diesel engines. For the Defeat Device case, the existence of a regulatory breach (the trick) is fundamental to the negligent misrepresentation, breach of warranty, breach of the Competition Act, breach of the Canadian Environmental Protection Act, 1999, unlawful means civil conspiracy, and unjust enrichment causes of action.

[101] The existential problem, however, for the Plaintiffs is that there is no basis in fact for concluding that the major premise of the Defeat Device case is true. In the immediate case, unlike the certified “diesel-gate” cases, there has been no investigation, no recall, no announcement from the regulator, no administrative or criminal prosecutions, no fines, no penalties, no actions taken by the regulator other than issuing Certificates of Compliance, which statutorily deem that there has been compliance with the emissions standards.

[102] In other words, for the Plaintiffs it is an existential paradox how causes of action can be sensibly fashioned when the claims are premised on the EPA’s emissions standards being contravened when the EPA has taken no regulatory action and rather has issued Certificates of Compliance that deem General Motors’ vehicles comply with emissions standards.

[103] The Defendants seize on the inconsistencies and contradictions of how the Plaintiffs have pleaded the Defeat Device case to argue that the Plaintiffs have failed to plead a reasonable cause of action.

a. In its factum responding to the Plaintiffs’ certification motion, General Motors argues at paragraph 96, as follows:

96. There is no basis in fact for any proposed common issues relating to misrepresentation because the claims require the plaintiffs to demonstrate that the Vehicles do not comply with the Emission Regulations. As there is no tenable pleading to establish such a regulatory breach (because the plaintiffs plead that the Vehicles are EPA-certified), neither is there a basis in fact that such regulatory breach exists because the evidence establishes that the Vehicles are EPA-certified. […]

b. In its sur-reply factum at paragraph 3, General Motors notes the paradoxical nature of the Plaintiffs’ proposed class action, as follows:

3. The plaintiffs’ predicament is of their own making, having elected to premise the Claim on a regulatory breach pursuant to a statutory scheme that deems regulatory compliance through EPA certification. The plaintiffs’ complaint about the validity of the Certificates is with the EPA (which is demonstrated by various U.S. plaintiffs’ counsel’s efforts to present their position to the EPA). The plaintiffs’ remedies do not include a civil action alleging regulatory breach when the Vehicles are deemed to comply with regulations. The Claim is a paradox and cannot succeed.

c. In its factum responding to the Plaintiffs’ certification motion, Bosch argues at paragraph 24 as follows:

24. As explained in the GM Defendants’ factum, all these causes of action are premised on there being a breach of emissions regulatory requirements, yet the statement of claim admits that the Vehicles are EPA certified (which as a matter of law means they also meet Canadian regulatory requirements). Further, each of these causes of action requires compensable damages, and the statement of claim pleads no material facts in support of its bald allegations that putative class members have suffered harm.

[104] The essence of the Defeat Device cases that have been certified is that the regulator discovered that there is a Defeat Device in the Defendant’s vehicle. In contrast to those cases, the essence of the Plaintiffs’ various causes of action in the immediate case is that the regulator ought to have discovered that there is a Defeat Device in the Duramax and Turbo diesel engines.

[105] Further, and, in any event, insofar as Greg Gardner Motors is concerned, even if the immediate case was a Design Defect case, there is not a scintilla of evidence that any General Motors Dealer had any involvement whatsoever in the development or placement of any Defeat Device.

[106] To rebut the Defendants’ argument that this is not a certifiable Defeat Device case. The Plaintiffs rely on Mr. Smithers’ opinion. However, Mr. Smithers’ evidence does not go much farther than proving that regulators can be tricked by Defeat Devices. But that’s not news, and Mr. Smithers’ evidence does not show that there is some basis in fact for thinking that the regulator was deceived in the immediate case. Such evidence as exists on the record is to the contrary.

[107] While there is some basis in fact that the EPA is capable of finding Defeat Devices, there is no basis in fact that it ought to have found a Defeat Device in the immediate case. The some-basis-in-fact standard is very low, and it is even lower in circumstances where the plaintiff can genuinely say that the misconduct took place covertly or clandestinely, but the some-basis-in-fact standard is not subterranean.[^40]

[108] In the immediate case, investigating for Defeat Devices was part of the authority of the regulator, and the EPA had expertise and experience in uncovering Defeat Devices. However, from the diesel-gate scandal, which began in the fall of 2015, until to date, there has been no regulatory action. It is to descend into paradox to simultaneously assert that the action or non-action of the regulator have nothing to do with a Defeat Device case and to advance a methodology to calculate damages based on the hypothetical of the regulator having acted or ought to having acted.[^41] I repeat that Mr. Smithers’ evidence is insufficient to establish on a class wide basis that all of the Class Members’ vehicles ought not to have received Certificates of Compliance.

[109] The problems for the Plaintiffs are not solved if: (a) the presence of a Defeat Device, (b) the presence of a Certificate of Compliance, and (c) any role for the regulator were removed from the legal analysis. The removal of these elements changes the Defeat Device case into a products liability misrepresentation case for economic losses.

[110] However, in the situation of a conventional misrepresentation products liability action, if the proposed class action was advanced based on the allegation that on a class-wide basis, the Defendants represented that the General Motors’ Duramax and the Turbo diesel engines meet emissions standards but that on a class-wide basis the vehicles did not meet the emissions standards, the claim still would not be certifiable.

[111] Viewed as a conventional misrepresentation case, the immediate case is not certifiable because: (a) there are no class-wide representations; (b) no representations at all were made by the General Motors Dealers; (c) Bosch made no representations to Class Members on a class-wide basis or at all; (d) there is no basis in fact that on a class-wide basis the Duramax and the Turbo diesel engines did not meet emissions standards; and (e) there has yet to occur demonstrable damages on a class-wide basis.

[112] In any event, the Defendants press all their arguments against the Defeat Device case and the conventional misrepresentation case further. They argue that not only as an issue of fact but as an issue of law regulatory compliance is deemed to have occurred in the immediate case because of the language of s. 153 (3) of the Canadian Environmental Protection Act, 1999 which states that “any engine is deemed to conform to a prescribed standard if a prescribed agency has certified that the engine conforms to the standard as applied by the agency.” Thus, the Defendants argue that as a matter of law, there is no regulatory breach and no misrepresentation.

[113] In my opinion, it is not necessary to press the point that far and make it a legal issue whether the immediate case is a misguided or premature Defect Device case or a conventional misrepresentation case, particularly because it is at that point that the analysis transitions even deeper into the “Liar’s Paradox” of proving whether the liar lied.

[114] In the immediate case, it is sufficient to say that the Plaintiffs’ causes of action that depend upon a showing of regulatory non-compliance or alternatively upon a showing of a misrepresentation (and that would be all of the pleaded causes of action) are not certifiable because there is no basis in fact that there has been regulatory non-compliance or a misrepresentation. There is also no basis in fact for concluding that any Class Members suffered compensable harm.

[115] One final observation needs to be made about the Plaintiffs’ “Regulatory Compliance Conundrum.” The Plaintiffs’ predicament has nothing to do with any notion that the regulator has the exclusive jurisdiction to determine whether there has been regulatory compliance. I agree with the Plaintiffs’ argument that there is no “pre-emption” argument that would oust the court’s jurisdiction to determine whether there has been an actionable misrepresentation. In the immediate case, there is nothing objectionable about the Plaintiffs using their civil causes of action to in effect enforce regulatory standards. However, in the immediate case, I am exercising the court’s class action jurisdiction, and in my opinion, the Plaintiffs have not satisfied the certification criteria of showing a reasonable cause of action or some basis in fact for the other certification criteria.

4. The Compensable Harm Problem

[116] As alluded to above, there is an alternative reason to dismiss the Plaintiffs’ certification motion and their action altogether.

[117] The remedial goal of the Plaintiffs’ proposed class action is for compensation for the harms suffered by the Class Members from purchasing a General Motors vehicle with a Duramax or Turbo diesel engines. For all of the Plaintiffs’ causes of action with the exception of some of the provincial consumer protection statutory claims, compensable harm is a constituent element of the cause of action.

[118] In any event, for all the causes of action, compensation for the harms suffered from purchasing the vehicles is the access to justice goal of the proposed class action. As noted above, the Plaintiffs proffer the expert evidence of Dr. Schaufele to opine that there is a methodology to assess the quantum of those pure economic losses. Unfortunately for the Plaintiffs, Dr. Schaufele’s theories remain speculative because the Plaintiffs have a compensable harm problem.

[119] The problem, once again, is that where the regulator has done nothing to impugn the integrity of the Certificate of Conformity, there is no basis in fact that any Class Member suffered a compensable harm associated with a Defeat Device. There is no basis in fact for concluding that there has been a diminution in value or a misspent premium paid to purchase the vehicles and, therefore, on a class wide basis, there is no compensable harm. Assuming the existence of a loss will not satisfy the criteria for a class proceeding.[^42]

[120] This absence of a regulatory action immediately distinguishes the case at bar from the certified Defeat Device or negligent misrepresentation cases about diesel engines,[^43] where there was tangible regulatory action and some basis in fact for the regulatory action stigmatizing the vehicles and diminishing their monetary value.

[121] As noted above, it continues to be a fundamental principle that for an action to be certified as a class proceeding there must be some evidence that two of more putative Class Members suffered compensable harm.[^44] Applying that principle to the facts of the immediate case, the Plaintiffs’ action should be dismissed and not certified.

[122] I note parenthetically that even if the regulator had undertaken regulatory action or even if the regulator were later to take regulatory action because of an operative Defeat Device in the Duramax and Turbo diesel engines, there would be large swaths of the class who would have suffered no compensable loss because they had bought and sold their vehicles without the stigma of a regulatory ruling that might depreciate the value of the car.

5. The Precedential Case Law Arguments

[123] As noted in the introduction of these Reasons for Decision both parties make precedential case law arguments.

[124] First, the Plaintiffs submit that the immediate case is a “Defeat Device” case and is similar to the other certified “Defeat Device” cases and should be certified for similar reasons.[^45] In the alternative, they submit that the immediate case is similar to other certified vehicle misrepresentation cases and should likewise be certified.[^46]

[125] For their part, the Defendants submit that I am bound to follow Justice Belobaba’s decision in Maginnis v. FCA Canada Inc.,[^47] which was affirmed as authoritative by the Divisional Court. The Defendants submit that I should also follow Justice Belobaba’s decision in MacKinnon v. Volkswagen.[^48]

[126] I do not propose to spend much time discussing the parties’ competing precedential case law arguments. As with all genres of class actions, because one example of the genre is certified or not certified does not create a categorical determination of future cases of the same genre. The future case will be determined on their particular facts in accordance with the state of development of the legal principles. I repeat what Justice Belobaba stated in Maginnis v. FCA Canada Inc. at paragraph 27:

27. The “diesel-gate” scandal involving some of the world’s largest automobile companies and auto parts suppliers was egregious and deserves strong condemnation. The resulting criminal prosecutions, fines and penalties in the hundreds of millions of dollars and nation-wide class actions to recover for widespread losses - are completely justified. But this doesn’t mean that every proposed class action that relates to the “diesel-gate” scandal will be automatically certified. The plaintiffs must still satisfy the requirements set out in the CPA and provide, at the very least, some evidence of compensable loss.

[127] What I will say is that the Plaintiffs in the immediate case were confronted with the most difficult challenges of any of the Defeat Device cases to date. The Plaintiffs in the immediate case were confronted with far more difficult challenges than those confronted by the Plaintiffs in Maginnis v. FCA Canada Inc. and in MacKinnon v. Volkswagen precisely because there was more regulatory action in those cases and much less doubt that the diesel engines contained operative Defeat Devices that had to be dealt with. In some diesel-gate cases there was patent trickery in the sense that the regulator had discovered it and responded. The trickery in the immediate case is latent if it exists at all. And the immediate case viewed as a misrepresentation case has similar difficulties in establishing a class-wide false statement and in establishing class-wide commonality in the communication of any falsehood.

6. Negligent Misrepresentation

[128] The above discussion under the titles “The Regulatory Compliance Conundrum”, “The Compensable Harm Problem”, and “The Precedential Case Law Arguments” are dispositive. The Plaintiffs’ action should not be certified; rather, it should be dismissed.

[129] That said, in fairness to the arguments of the parties and given the likelihood of an appeal, I shall complete the s. 5(1)(a) (cause of action) and 5(1)(c) (common issues) analysis of the Plaintiffs’ various causes of action. Later in these Reasons for Decision, I shall consider the remaining certification criteria. In this part, I shall discuss the Plaintiffs’ Negligent Misrepresentation Claim.

[130] The constituent elements of a negligent misrepresentation claim are: (1) duty of care based on a special relationship between the plaintiff and the defendant; (2) an untrue, inaccurate, or misleading representation; (3) the defendant making the representation negligently; (4) the plaintiff having reasonably relied on the misrepresentation; and, (5) the plaintiff suffering damages as a consequence of relying on the misrepresentation.[^49]

[131] For reasons that will become apparent later, for the analysis that follows it is also necessary to keep in mind that negligent misrepresentation is not an intentional tort. The intentional tort associated with misrepresentations is fraudulent misrepresentation. The constituent elements of fraudulent misrepresentation are: (1) a false statement by the defendant; (2) the defendant knowing that the statement is false or being indifferent to its truth or falsity; (3) the defendant having an intent to deceive the plaintiff; (4) the false statement being material and the plaintiff having been induced to act; and, (5) the plaintiff suffering damages.[^50]

[132] The Defendants drop a cluster bomb of objections to the certification of a negligent misrepresentation cause of action in the immediate case. General Motors’ cross-motion to strike the Plaintiffs’ Statement of Claim for failure to show a reasonable cause of action, which motion is supported by the other Defendants, aims at dismembering the Plaintiffs’ negligent misrepresentation cause of action. General Motors submits that it is plain and obvious that:

a. The constituent elements of the negligent misrepresentation claim cannot be established based on the material facts pleaded.

b. The constituent elements of a negligent misrepresentation claim have been pleaded incoherently, inconsistently, and the pleadings mistakenly conflate elements of a negligent misrepresentation claim with a fraudulent misrepresentation claim.

c. The constituent element of a false statement has not been established and cannot be established given that there has been no regulatory action and there are Certificates of Compliance. There is the paradox that the Plaintiffs’ predominant complaint is a misrepresentation about regulatory compliance but that misrepresentation was made by the EPA which it is alleged was tricked by the Defeat Device.

d. The constituent element of a false statement has not been established and cannot be established given that the statements about a “clean” diesel engine are mere puffery and not actionable misrepresentations.

e. The constituent element of reasonable reliance cannot be established commonly across the class.

f. The constituent element of compensable damages has not been established and cannot be established given that there has been no regulatory action.

g. There is no basis in fact that the material facts for a negligent misrepresentation exist. There is no basis in fact that General Motors’ vehicles contain defeat devices manufactured by Bosch. There is no basis in fact that General Motors’ vehicles do not comply with emissions standards.

h. There is no basis in fact that there is a common issue associated with the negligent misrepresentation claim.

[133] In my opinion, there is merit to all of the Defendants’ challenges to the negligent misrepresentation claim. This conclusion is again fatal to the Plaintiffs’ action, at the heart of which is a misrepresentation claim. The pith and substance of the Plaintiffs’ class action is that this is a Defeat Device case, which is to say that General Motors, its Dealers who are pled to be agents, and Bosch lied to the regulator. But in the light of the Defendants’ arguments, it emerges that the Plaintiffs’ Statement of Claim in its essence is a speculative pleading that lying possibly occurred.

[134] The Plaintiffs plead themselves into a knot by conflating fraudulent misrepresentation, which is the tort designed to deal with tricksters and liars, with negligent misrepresentation, which is the tort designed to deal with careless persons (not trickers or liars) who are a relationship for which there is duty of care. In their Statement of Claim, the Plaintiffs allege intentional misconduct in the Defendants making false statements. However, that is an incomplete pleading that pleads some of the constituent elements of fraud and some of the constituent elements of negligent misrepresentation. The resulting knot is a claim in negligent misrepresentation that is not viable because it is inconsistent with the material facts and a fraudulent misrepresentation claim is not properly pleaded.

[135] From an evidentiary perspective of showing some basis in fact that there are common issues associated with a Defeat Device misrepresentation case, Mr. Smithers’ evidence in this regard and Mr. Surcess’ and Mr. Marcinkiewicz’s personal anecdotal evidence is insufficient to show some basis in fact for a Defeat Device Case of the nature of the cases that have been certified.

[136] Beyond the matter of whether the reliance element of the tort of negligent misrepresentation is an issue that can be decided in common (which I would find not to be the case), if the Defendants made actionable false statements. there is a want of commonality in the making of those representations. The want of commonality of the misrepresentations, if any, means that the negligent misrepresentation cause of action is not certifiable.[^51]

[137] In addition to the Plaintiffs’ difficulties in pleading a common false statement, many of the pleaded allegations of false statements appear to be what is known as a “puff.” Puffs are “flourishing descriptions”, part of the sales pitch that the parties would understand not to be legally binding. Halsbury’s Law of England, puts it this way: “Mere praise by a man of his own goods, inventions, projects, undertakings, or other marketable commodities or rights, if confined to indiscriminate puffing and pushing, and not related to particulars, is not a representation.”[^52] Puffs are not promises and as representations, they are not given any legal significance. Puffs do not establish the basis for any remedy. Puffs are statements that a contracting party can be expected not to take seriously. Evans v. General Motors of Canada Co,[^53] and Williams v Canon Canada Inc.,[^54] are examples of class action certification decisions that held that the alleged misrepresentations were puffery.

[138] Dealing specifically with the negligent misrepresentation case against Bosch, the materials facts pleaded or capable of being pleaded as against Bosch do not constitute a viable negligent misrepresentation cause of action. Bosch’s statements appear to be no more than puffery. Moreover, most of the alleged representations in the Plaintiffs’ record do not relate to the General Motors vehicles and the putative Class Members were not the audience for those statements alleged to have been made by Bosch.

[139] Moreover, even if a Class Member chanced upon something Bosch said in its communications to a different audience and even if that communication could be interpreted to be about something relevant to this Defeat Device case, there is no basis in fact that the communication was common to the putative Class Members.

[140] Assuming I were to appoint Greg Gardner Motors a Representative Defendant and dealing specifically with the negligent misrepresentation case against the General Motors Dealers, there are no material facts pleaded or that are capable of being pleaded against the proposed class of General Motors Dealers for whom Greg Gardner Motors is conscripted to a Representative Defendant that would make them liable for negligent misrepresentation.

[141] There is no basis in fact for certifying a misrepresentation action against the General Motors Dealers. There is no evidence of any representations made by Greg Gardner Motors or by any other General Motors Dealer. Even if such evidence did exist, any representations would be individual, varied as between each individual General Motors Dealer and the vehicle’s purchaser.

[142] In short, three is no certifiable negligent misrepresentation case. It follows that any of the other causes of action that depend upon a common false statement are not certifiable.

7. Breach of Consumer Protection Legislation

[143] I turn now to the Plaintiffs’ claim based on consumer protection legislation including the claims under the Civil Code of Québec. There are, once again, existential problems associated with these statutory causes of action.

[144] The Plaintiffs allege that the Defendants engaged in unfair practices by making misrepresentations, contrary to Part III of Ontario’s Consumer Protection Act, 2002[^55] and “Equivalent Consumer Protection Legislation.[^56]” The Plaintiffs seek a waiver of the notice requirements and request damages including exemplary or punitive damages.

[145] In my opinion, the Plaintiffs’ consumer protection claims are not certifiable. These claims have more legal holes than a Canadian side street has potholes after a hard winter; visualize:

a. In so far as any of these claims depend upon an actionable misrepresentation, there is no legally viable misrepresentation claim.

b. To the extent that any of the consumer protection statutes require damages as a constituent element for liability, there is no basis in fact that any Class Members have suffered any compensable harm.

c. There is no cause of action for unfair practices in Nova Scotia’s consumer protection legislation.

d. Under the consumer protection statutes of British Columbia, Alberta, Saskatchewan, Ontario, and Newfoundland and Labrador), a consumer may bring a civil action against any “supplier” that engaged in or acquiesced in an unfair practice that caused damage or loss. The Plaintiffs, however, have not pleaded material facts to support the allegation that Bosch was a supplier or how it acquiesced in an unfair practice.

e. Although privity of contract is not required in British Columbia, Saskatchewan, and Manitoba, privity of contract is normally required for a consumer protection claim, and in the immediate case, there is no privity between General Motors and any Class Members or between Bosch and any Class Members. I shall expand on this point below.

f. The Plaintiffs allege breach of the duty of good faith under the Civil Code of Québec; however, that claim cannot be made in the absence of a contractual relationship with putative class members and there do not appear to be contract claims against General Motors or Bosch.

g. In so far as the claims to be class-wide require the General Motors Dealers to be agents, this is not possible because the General Motors Dealers are independent contractors and are not agents.

h. The Defendants have a strong argument (which for present purposes I shall not detail) that the pleading of the so-called Equivalent Consumer Protection Statutes is very deficient because the statutes are not equivalences and while there are overlapping features there are also substantial differences.

i. Richardson v. Samsung Electronics Canada Inc.,[^57] which was affirmed by the Divisional Court, Williams v. Canon Canada Inc,[^58] which was affirmed by the Divisional Court, and Singer v. Schering-Plough,[^59] are authority that consumers who do not have a contractual relationship with the supplier do not have a claim for unfair practices under Ontario’s Consumer Protection Act, 2001. Until this line of cases is expressly overturned by the Court of Appeal, they are binding decisions. I, therefore, do not follow the lower court decisions that assert that the point remains unsettled.[^60]

[146] I conclude that the statutory consumer protection causes of action are not certifiable.

8. Breach of Warranties

[147] The Plaintiffs allege that General Motors and the General Motors Dealers breached the implied and express warranties under the New Vehicle Limited Warranty and under Ontario’s Sale of Goods Act [^61]and under Equivalent Sale of Goods Legislation of other provinces and territories[^62] that that the Vehicles were free from material defects and fit for their intended use.

[148] It is plain and obvious that the breach of warranty claims are untenable, as pleaded, and that no purpose would be served by granting leave to amend to properly plead these claims.

[149] With respect to the New Vehicle Limited Warranty, it is a promise to repair or replace parts subject to certain conditions. However, the warranties only provide coverage for defects in materials or workmanship. It is plain and obvious that the warranties do not cover defects in the performance of the vehicles nor for defects in designing a vehicle with a Defeat Device. Moreover, the New Vehicle Limited Warranty excludes claims for incidental or consequential damages or for economic loss. The warranty makes clear that claims for diminution in value are prohibited by the warranty. Case law establishes a contract term will not be implied if it is inconsistent or otherwise conflicts with an express provision in the contract.[^63]

[150] No particulars of a defect in materials or workmanship have been pleaded in the immediate case. There is no basis in fact that any warranty claims based on the speculative presence of a Defeat Device have been made by any Class Member, including the Representative Plaintiffs who refused to answer questions about whether they made claims under warranty.

[151] With respect to the Sale of Goods Act claims, there is no privity of contract between Class Members and General Motors and privity is a necessary element for a claim under the Sale of Goods Act.[^64] There is no basis in fact that the General Motors dealerships are General Motors agents.[^65] In so far as the claims to be class-wide require the General Motors Dealers to be agents, this is not possible because the General Motors Dealers are independent contractors and are not agents.

[152] In the immediate case, the material facts do not support a tenable claim for breach of the implied warranty as to fitness, which is a narrow statutory warranty that is available when the goods are substantially defective in their performance that they are virtually unusable for their intended purpose.[^66]

[153] In the immediate case, the material facts do not support a breach of the statutory warranty as to merchantability, which is another narrowly prescribed statutory warranty.[^67]

[154] The material facts as pleaded or as they could be pleaded do not support a class-wide breach of either statutory warranty.

[155] I conclude that the breach of warranty claims are not certifiable.

9. Breach of the Canadian Environmental Protection Act, 1999

[156] The Plaintiffs allege that General Motors breached s. 40 of the Canadian Environmental Protection Act, 1999.

[157] This claim is essentially derivative of and dependent upon the material facts of the other causes of action. For the above reasons, this claim is not certifiable.

10. Breach of the Competition Act

[158] The Plaintiffs allege that the Defendants breached the statutory cause of action of s. 52 of the Competition Act.[^68] This claim is essentially derivative of and dependent upon the material facts of the other causes of action. For the above reasons, this claim is not certifiable.

11. Unlawful Means Civil Conspiracy

[159] The Class Members Unlawful Means Civil Conspiracy cause of action requires some unlawful act and for the putative Class Members to have suffered damages; i.e., a compensable loss. For the above reasons, the Plaintiffs have neither. This derivative claim is also not certifiable.

12. Unjust Enrichment

[160] 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.[^69]

[161] In Moore v Sweet,[^70] the Supreme Court of Canada stated that for an unjust enrichment, it must be shown that something of value – a tangible ‘benefit’ – passed from the plaintiff to the defendant.[^71] There is no viable unjust enrichment claim pleaded against General Motors because there has been no transfer of money, goods, or valuable services from the Class Members to General Motors apart from the few Class Members who did business directly with General Motors and with respect to those Class Members there was a juristic reason for the transfer of wealth,[^72] and thus no basis for an unjust enrichment claim.

[162] Further, for example, there is no transfer of wealth directly or indirectly from a Class Member who purchases a vehicle from a vendor who is not a General Motors Dealer.

[163] I appreciate that in Pro-Sys Consultants Ltd. v. Microsoft Corporation,[^73] the Supreme Court of Canada did not close the door on a transfer of wealth that was indirect between the plaintiff and the defendant as providing the basis for an unjust enrichment claim. There, however, is no direct or indirect transfer of wealth in the immediate case because it does not seem possible to determine what portion of the Class Member’s wealth that was allegedly unjustly taken reached its way to General Motors or Bosch. As a matter of the existence of a common issue, in the immediate case, it is inconceivable how an unjust enrichment claim could be fashioned against General Motors or Bosch on a class-wide basis. The unjust enrichment claim is not certifiable.

I. Identifiable Class Criterion

[164] 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.[^74]

[165] 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.[^75] 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.[^76] 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.[^77] 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.[^78] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[^79]

[166] In the immediate case, it is arguable that the Plaintiffs’ proposed class definition may be overbroad. For example, given that some Class Members would not have purchased their vehicles from General Motors or from a General Motors Dealer (Mr. Marcinkiewicz is an example), it is arguable that they should be excluded from class membership.

[167] There are other arguable situations of overbreadth for putative Class Members who have sold, returned, or totaled their vehicles such as lessees that simply return their vehicles at end-of-lease or owners that do not sell their vehicles and use them for their useful life.

[168] These largely technical objections, however, could be addressed by refining the class definition appropriately. The Plaintiffs’ proposed class definition thus could be made to satisfy the technical requirements of the identifiable class criterion.

[169] However, because for the reasons expressed above, the Plaintiffs fail to satisfy the cause of action criterion and the common issues criterion, and there is no pleaded basis or evidentiary basis in fact of regulatory breach and compensable harm, there is not a class of two or more people with common claims.

[170] The identifiable class criterion is not satisfied because there is no connection between the putative Class Members and a viable or certifiable cause of action.

J. Preferable Procedure Criterion

[171] 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.[^80]

[172] In AIC Limited v. Fischer,[^81] 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.[^82] 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.[^83] 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.[^84]

[173] It is axiomatic that if the cause of action and or the common issues criterion are not satisfied, the preferable procedure criterion is not satisfied.[^85] That precisely is the situation in the immediate case. The case at bar does not satisfy the preferable procedure criterion.

K. Representative Plaintiff Criterion

[174] 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.[^86]

[175] Having regard to my conclusions about the other certification criterion and to my ultimate conclusion that their action should be dismissed, it is not necessary to discuss whether Mr. Surcess and Mr. Marcinkiewicz satisfy the representative plaintiff criterion.

L. Representative Defendant Class Actions

[176] Given my conclusions that the Plaintiffs fail in their motion to certify their action as a class proceeding, it follows that they also fail to have Greg Gardner Motors appointed a Representative Defendant. It is, therefore, strictly speaking not necessary to address what would have happened if the Plaintiffs’ action would have been certified. However, once again, in fairness to the arguments of the parties and because there may be an appeal, I shall address this issue.

[177] Assuming that the Plaintiffs’ action had been certified, I would not have appointed Greg Gardner Motors a Representative Defendant and make a decision.

[178] Section 4 of the Class Proceedings Act, 1992 permits any party to a proceeding against two or more defendants to make a motion for an order certifying the proceeding as a class proceeding and appointing a representative defendant. Pursuant to s. 5 (1) of the Act, the criteria for a defendant class action is the same as the criteria for a class action with a representative plaintiff.

[179] On the assumption in the immediate case that the Plaintiffs had been successful in certifying their action, it would follow that the first three criteria for certification (cause of action, identifiable class, and common issues) would be satisfied in the pursuit of having Greg Gardner Motors appointed a Representative Defendant. However, in my opinion, the preferable procedure and the Representative Defendant criteria would not be satisfied.

[180] In 1982, the Ontario Law Reform Commission in its Report on Class Actions,[^87] devoted 3 pages of its 880-page report to the topic of defendant class actions. The Commission said that a defendant class action was the reverse of a plaintiff class action.

[181] At the time of the Commission’s report both plaintiff and defendant representative actions existed as governed then by Rule 75 of the Ontario Rules of Practice, which was about representative actions. Rule 75 had roots in the practice of common law and equitable courts in England about representative actions. The Commission noted that there were essentially two types of defendant representative proceedings; namely: first, actions against unincorporated associations and second, actions against a group who had no existing relationship but who together committed some wrong. The Commission then in one paragraph mentioned the practice in the United States and then concluded its discussion on Defendant class proceedings as follows:

Defendant class actions raise many issues similar to those encountered in plaintiff class actions. This is apparent from a review of the case law under Rule 23 [of the American Federal Rules of Civil Procedure]. Among the issues that have arisen are the following: the adequacy of a member of the class to represent the class; the need for notice to members of the class regarding the action; the costs of the class action and the representative defendant’s responsibility for these costs; the right of members of the class to remove themselves from the class by “opting out”; the determination of individual issues once the common issues have been resolved; and settlement. However, while many of these issues are common to both plaintiff and defendant class actions, the solutions required in the defendant class context may be quite different and, in our view, merit separate study.

[182] As far as I am aware, there has been no study of defendant class proceedings that followed the Commission’s 1982 report.

[183] It took some time, but the Commission’s recommendations about introducing a new class action regime in Ontario led to a draft bill that was studied by an advisory committee appointed by the Attorney General. The draft bill contained what is now s.4 of the Class Proceedings Act, 1992.

[184] The complete analysis of the matter of defendant class actions found in the 1992 Report of the Attorney General’s Advisory Committee on Class Action Reform states:

Discussion

The Committee anticipates the need for defendant class proceedings and developed this provision to ensure that such proceedings were available and mirrored plaintiff’s class proceedings.

[185] Writing in 2003, William E. McNally and Barbara E. Cotton, in “Guiding Principles Regarding the Constitution of a Representative Defendant and a Defendant Class in a Class Actions Proceeding”[^88] discuss the legal history of representative actions against defendants and focus on the second type of proceeding that was noted by the Ontario Law Reform Commission.

[186] McNally and Cotton set out their conclusions as to the guidance provided by the case law at pages 117-18 of their article as follows:

3. Guiding Principles

Although the defendant class action has a significant history in the United States, the Canadian jurisprudence dealing with representative defendant class actions seems to draw from the early English authority to establish the following guiding principles:

(1) In assessing whether a representative defendant and a defendant class action should be constituted, the court should primarily ascertain whether the proposed class of defendants has any common interest.

(2) Further, where there is a possibility of different defences, a class action binding prospective defendants is inappropriate.

(3) In assessing whether a representative defendant and a defendant class action should be constituted, the court should primarily ascertain whether the representative defendant would likely defend the action in a vigorous manner. This is most frequently expressed as a requirement that the court ascertain whether the representative defendant could be said to “fairly and honestly try the right.”

(4) The guidance in John v. Rees and Others [[1914] 2 K.B. 930 (C.A.)] that the constitution of a representative action is primarily for the benefit of the convenient administration of justice is overarching. It is a fundamental tenet that guides the courts.

(5) An objective of a named defendant to acting in a representative capacity is to be given only token weight if the court is satisfied that the defendant will vigorously defend.

[187] I observe that these principles are supported by the case law analyzed and that there is nothing in the guiding principles identified by McNally and Cotton that is inconsistent with the letter or the spirit of the Class Proceedings Act, 1992.

[188] Applying the guiding principles to the circumstances of the immediate case:

a. In my opinion, while all of the General Motors Dealers have a common interest in not being sued by their customers, the defences of the General Motors Dealers will be idiosyncratic defences. Constituting a defendant class would violate the long established guiding principle that where there is a possibility of different defences, a class action binding prospective defendants is inappropriate.

b. In my opinion, while all of the General Motors Dealers have a common interest in not being sued by their clientele, they may not have a common interest in asserting their individual defences and may be discomfited by having to take sides in a dispute that is really between the customer and General Motors, which manufactured the vehicle with the alleged Defeat Device. Thus, the first guiding principle may also be violated.

c. In my opinion, while in accordance with the fifth guiding principle, I would give token weight to Greg Gardner Motors’ reluctance to be the Representative Defendant, I think it unlikely that it will defend the Plaintiffs’ action in a vigorous manner, which contravenes the third guiding principle. I agree with Greg Gardner Motors’ arguments that it has a conflict of interest and a lack of enthusiasm (and likely an absence of the wherewithal to pay for a defence) that makes an ill-suited representative.

d. In my opinion, there was very little, if any, convenience for the administration of justice in certifying a defendant class in the immediate case. It may be anticipated that many if not most of the General Motors Dealers will opt out of the class proceeding. For those that stay in they may be unhappy with relying on their business competitor Greg Gardner Motors acting as their champion. And in any event, the joinder of a Defendant Class would make an already very complex action even more difficult for the court to manage, particularly because there is a high probability that there will be individual issues trials as against the General Motors Dealers in any event. Appointing Greg Gardner Motors as a representative defendant is not the preferable procedure.

[189] I have had experience with Defendant Class Actions including one that involved General Motors as the Plaintiff and its retired employees as the defendant class.[^89] Defendant class actions, are - in appropriate cases - of great service to access to justice and to the administration of justice. In my opinion, however, the case at bar is not an appropriate one for a defendant class proceeding.

M. Conclusion

[190] For the above reasons, I dismiss the Plaintiffs’ certification motion. I grant General Motors’ motion to strike the Plaintiffs’ Statement of Claim. I do not grant leave to amend. I dismiss the Plaintiffs’ action.

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

Perell, J.

Released: April 7, 2022

[^1]: S.O. 1992, c. 6.

[^2]: 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897.

[^3]: 2021 ONSC 5941.

[^4]: C.Q.L.R. c. CCQ-1991, art. 1375.

[^5]: S.C. 1999, c. 33.

[^6]: R.S.C 1985, c. C-34.

[^7]: 2002, S.O. 2002, c 30, Sch A.

[^8]: 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897.

[^9]: 2021 ONSC 5941.

[^10]: S.C. 1999, c. 33.

[^11]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 118.

[^12]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 118.

[^13]: MacKinnon v. Volkswagen, 2021 ONSC 5941; Maginnis v. FCA Canada Inc 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897; Setoguchi v. Uber B.V., 2021 ABQB 18; Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19; Richardson v. Samsung Electronics Canada Inc., 2018 ONSC 6130, aff’d 2019 ONSC 6845 (Div. Ct.); Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42.

[^14]: Hollick v. Toronto (City), 2001 SCC 68 at para. 16.

[^15]: 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.

[^16]: 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) 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).

[^17]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445.

[^18]: Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 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.).

[^19]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110.

[^20]: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102.

[^21]: 90 (SCC), [1990] 2 S.C.R. 959.

[^22]: 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.

[^23]: Cloud v. Canada (Attorney General) (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), 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), 5597 (ON SCDC), 21 O.R. (3d) 453 at p. 469 (Div. Ct.).

[^24]: Deluca v. Canada (AG), 2016 ONSC 3865; Losier v. Mackay, Mackay & Peters Ltd., 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.

[^25]: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).

[^26]: Temelini v. Ontario Provincial Police (Commissioner) (1990), 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).

[^27]: Johnson v. Adamson (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.

[^28]: Silver v. Imax Corp., 72334 (ON SC), [2009] O.J. No. 5585 (S.C.J.) at para. 20; Silver v. DDJ Canadian High Yield Fund, 21058 (ON SC), [2006] O.J. No. 2503 (S.C.J.).

[^29]: Hollick v. Toronto (City), 2001 SCC 68 at para. 18.

[^30]: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40.

[^31]: Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3, 6 (Div. Ct.).

[^32]: 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.).

[^33]: 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.

[^34]: 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 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), 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), 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.).

[^35]: Cloud v. Canada (Attorney General), (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), 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[^36]: 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.

[^37]: 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.

[^38]: Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185; Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.).

[^39]: Simpson v. Facebook, Inc. 2022 ONSC 1284 at para. 25 (Div. Ct.); Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140.

[^40]: Price v. Smith & Wesson Corp., 2021 ONSC 2021 at para. 27, Kuiper v. Cook (Canada) Inc., 2018 ONSC 6487 at para. 134, rev'd but not on this point, Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 at para. 27 (Div. Ct.).

[^41]: See for example the Statement of Claim paragraph 101 with its hypothetical: “If GM Canada recalls the vehicles and degrades their engine performance and fuel efficiency in order to make the Vehicles compliant with EPA standards, Plaintiff Class Members will be required to spend additional sums on fuel and will not obtain the performance characteristics of their vehicles when purchased.”

[^42]: Irving Paper Ltd v Atofina Chemicals Inc, 2010 ONSC 2705 at paras. 49, 51, 53; 2038724 Ontario Ltd v. Quizno’s Canada Restaurant Corp. (2009), 23374 (ON SCDC), 96 OR (3d) 252 at para 94 (Div. Ct), Chadha v Bayer Inc (2003), 35843 (ON CA), 63 OR (3d) 22 at paras. 30-31 (C.A.), leave to appeal to SCC ref’d 2003] SCCA No 106.

[^43]: Rebuck v. Ford Motor Company, 2018 ONSC 7405; Kalra v. Mercedes Benz, 2017 ONSC 3795; Quenneville v. Volkswagen, 2016 ONSC 7959.

[^44]: MacKinnon v. Volkswagen, 2021 ONSC 5941; Maginnis v. FCA Canada Inc 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897; Setoguchi v. Uber B.V., 2021 ABQB 18; Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19 Richardson v. Samsung Electronics Canada Inc., 2018 ONSC 6130, aff’d 2019 ONSC 42 (Div. Ct.); Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42.

[^45]: Rebuck v. Ford Motor Company, 2018 ONSC 7405; Kalra v. Mercedes Benz, 2017 ONSC 3795; Quenneville v. Volkswagen, 2016 ONSC 7959.

[^46]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647; Panacci v. Volkswagen, 2018 ONSC 6312; N&C Transportation Ltd. v. Navistar International Corporation, 2016 BCSC 2129.

[^47]: 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897.

[^48]: 2021 ONSC 5941.

[^49]: Queen v. Cognos, 146 (SCC), [1993] 1 S.C.R. 87

[^50]: Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8; Fiorillo v. Krispy Kreme Doughnuts, Inc. (2010), 29902 (ON SC), 98 O.R. (3d) 103 at paras. 66-67 (S.C.J.); Parna v. G. & S. Properties Ltd. (1970), 25 (SCC), 15 D.L.R. (3d) 336 at p. 344 (S.C.C.); Derry v. Peek (1889), 14 App. Cas. 925 (H.L.).

[^51]: Williams v. Mutual Life Assurance Co. of Canada, 22704 (ON SC), [2000] O.J. No. 3821 (S.C.J.), aff'd. 62770 (ON SCDC), [2001] O.J. No. 4952 (Div. Ct.), aff'd. sub nom Kumar v. Mutual Life Assurance Co., 48334 (ON CA), [2003] O.J. No. 1160 (C.A.), leave to appeal ref'd. [2003] S.C.C.A. No. 283.

[^52]: Halsbury’s Laws of England, 4th ed., vol. 31, p. 623, para. 1017, quoted in Andronyk v. Williams (1985), 774 (MB CA), 21 D.L.R. (4th) 557 at p. 197 (Man. C.A.).

[^53]: 2019 SKQB 98.

[^54]: 2011 ONSC 6571 aff’d 2012 ONSC 3692 (Div. Ct.).

[^55]: S.O. 2002, c. 30.

[^56]: Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (British Columbia); Fair Trading Act, R.S.A. 200, c. F-2 and Consumer Protection Act, 2000, c. C-26.3 (Alberta); Consumer Protection Act, S.S. 1996, c. C-30.1 and Consumer Protection and Business Practices Act, S.S. 2014, c. C-30.2 (Saskatchewan); Business Practices Act,, C.C.S.M., c. B120 (Manitoba); Consumer Protection Act, C.Q.L.R., c. P-40.1 (Québec); Consumer Protection Act, R.S.N.S.1989, c. 92 (Nova Scotia); Business Practices Act, R.S.P.E.I. 1988, c. B-7 (P.E.I.); Consumer Protection and Business Practices Act, S.N.L 2009, c. C-31.2 (Newfoundland and Labrador).

[^57]: 2018 ONSC 6130, aff’d 2019 ONSC 6845 (Div. Ct.).

[^58]: 2011 ONSC 6571, aff’d 2012 ONSC 3692 (Div. Ct.).

[^59]: 2010 ONSC 42.

[^60]: Drynan v. Bausch Health Companies Inc., 2021 ONSC 7423; Rebuck v. Ford Motor Company, 2018 ONSC 7405; Kalra v. Mercedes Benz, 2017 ONSC 3795.

[^61]: R.S.O. 1990, c. S.1.

[^62]: Sales of Goods Act, R.S.B.C., c. 410 (British Columbia); Sales of Goods Act, R.S.A. 2000, c. S-2 (Alberta); Sales of Goods Act, R.S.S. 1978, c. S-1, Consumer Protection Act, S.S. 1996, c. C-30.1 and Consumer Protection and Business Practices Act, S.S. 2013, c. C-30.2 (Saskatchewan); Sale of Goods Act, C.C.S.M. c. S.10 (Manitoba) Sales of Goods Act, R.S.N.B. 2016, c. 110 and Law Reform Act, R.S.N.B. 2011, c. 184; (New Brunswick); Sales of Goods Act, R.S.N.S. 1989, c. 408 (Nova Scotia); Sales of Goods Act, R.S.P.E.I. 1988, c. S-1 (P.E.I.); Sales of Goods Act, R.S.N.L. 1990, c. S-6 (Newfoundland & Labrador); Sales of Goods Act, R.S.Y. 2002, c. 198 and Consumers Protection Act, R.S.Y 2002, c. 40 (Yukon); Sales of Goods Act, R.S.N.W.T. 1988, c. S-2 and Consumer Protection Act, R.S.N.W.T. 1988, c. C-17; (N.W.T.).

[^63]: Arora v. Whirlpool Canada LP, 2013 ONCA 657, aff’g 2012 ONSC 4642; G. Ford Homes Ltd. v. Draft Masonry (York) Co. (1983), 1719 (ON CA), 43 O.R. (2d) 401 (C.A.); Fort Frances (Town) v. Boise Cascade Canada Ltd., 47 (SCC), [1983] 1 S.C.R. 171; M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 677 (SCC), [1999] 1 S.C.R. 619.

[^64]: Arora v. Whirlpool Canada LP, 2013 ONCA 657 at paras 28, 31-32, aff’g 2012 ONSC 4642.

[^65]: David v Loblaw, 2021 ONSC 7331 at para. 40; Carter v. Ford Motor Company of Canada, 2021 ONSC 4138 at para. 29; Williams v Canon Canada Inc, .2011 ONSC 6571 at paras. 217-220, aff’d 2012 ONSC 3692 (Div. Ct.).

[^66]: Cyr v. R.V. Warehouse Inc., 2015 ONSC 3285 at para. 25; Moving Store Franchise Systems Inc. v. Norseman Plastics Ltd. (2004), 130 ACWS (3d) 1114 at paras 31-35 (S.C.J.); Satin Finish Hardwood Flooring Ltd. v. Sico Inc. [1999] O.J. No. 909 (Gen. Div.), aff’d [2001] O.J. No. 2413 (C.A.).

[^67]: Tregunno v. Aldershot Distributing Co-operative Co, 93 (ON CA), [1943] O.R. 795 (*)

[^68]: R.S.C 1985, c. C-34.

[^69]: 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, 21 (SCC), [1992] 3 S.C.R. 762 at p. 784; Pettkus v. Becker, 22 (SCC), [1980] 2 S.C.R. 834 at p. 848.

[^70]: 2018 SCC 52 at para. 41.

[^71]: See also Apotex Inc. v. Eli Lilley and Company, 2015 ONCA 305 at paras 39-46.

[^72]: Carter v. Ford Motor Company of Canada, 2021 ONSC 4138Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19

[^73]: 2013 SCC 57.

[^74]: Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.).

[^75]: Pearson v. Inco Ltd. (2006), 913 (ON CA), 78 O.R. (3d) 641 at para. 57 (C.A.), rev'g 34446 (ON SCDC), [2004] O.J. No. 317 (Div. Ct.), which had aff'd [2002] O.J. No. 2764 (S.C.J.).

[^76]: Robinson v. Medtronic Inc., 56746 (ON SC), [2009] O.J. No. 4366 at paras. 121-146 (S.C.J.).

[^77]: Frohlinger v. Nortel Networks Corporation, 696 (ON SC), [2007] O.J. No. 148 at para. 22 (S.C.J.).

[^78]: 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.

[^79]: Silver v. Imax Corp., 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., 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), 40373 (ON SC), 78 O.R. (3d) 98 (S.C.J.), leave to appeal ref’d 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.)

[^80]: 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.

[^81]: 2013 SCC 69 at paras. 24-38.

[^82]: Cloud v. Canada (Attorney General) (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), 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[^83]: Markson v. MBNA Canada Bank, 2007 ONCA 334; Hollick v. Toronto (City), 2001 SCC 68.

[^84]: 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.

[^85]: Batten v. Boehringer Ingelheim (Canada) Ltd, 2017 ONSC 53, aff’d 2017 ONSC 6098 (Div. Ct.), leave to appeal to C.A. ref’d (2018), 292 ACWS (3d) 490; O’Brien v. Bard Canada, 2015 ONSC 2470.

[^86]: Drady v. Canada (Minister of Health), 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.).

[^87]: (Ontario, Ministry of the Attorney General, 1982), vol. 1, pp. 41-44

[^88]: (2003), 27 Advocates’ Quarterly 114.

[^89]: Kidd v. Canada Life, 2010 ONSC 1097, 2010 ONSC1097 and 2011 ONSC 6324 and 2012 ONSC 740 and 2013 ONSC 1868 and 2014 ONSC 457 and 2015 ONSC 1287; General Motors of Canada Limited v. Abrams, 2011 ONSC 5338; Berry v. Pulley, 2011 ONSC 1378 and 2011 ONSC 2325 and 2011 ONSC 3135.