Buis v. Keurig Canada Inc., 2022 ONSC 3652

COURT FILE NO.: CV-22-88299-CP

DATE: 2022/06/20

SUPERIOR COURT OF JUSTICE – ONTARIO

Action pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6

RE: Nancy Buis, Plaintiff

AND:

Keurig Canada Inc., Defendant

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Jeff Orenstein & Andrea Grass, for the plaintiff

Sandra Forbes & Chenyang Li, for the defendant

HEARD: June 17, 2022

CASE CONFERENCE ORDER AND DIRECTION

1This is a proposed class proceeding against Keurig Canada Inc. It was commenced on January 10, 2022, and I am the class proceeding judge assigned to the action. This case conference was sought by counsel for the plaintiff to establish a timetable for the certification motion pursuant to s. 29.1 of the Act.

2Since that request, the landscape has changed somewhat because the following additional proposed class proceedings have come to light. Defence counsel advises me that the particulars of the other actions are as follows:

Action number S-220208 (Dolo v. Keurig Dr. Pepper Inc. et. al.) commenced in the Supreme Court of British Columbia on January 14, 2022

Action number T-557-22 (Finch v. Keurig Canada Inc.) commenced in the Federal Court on March 10, 2022

Action number CV-22-678262-CP (Gordon v. Keurig Canada Inc. et. al) commenced in this court on March 11, 2022, in Toronto.

3I am advised that my colleague, Justice Akbarali, has been assigned as the class proceedings judge in the Toronto action (Gordon) but there have been no further steps in that action. The status of the other two actions is not known to me at present.

4It is perhaps worth noting, that the head office of Keurig Canada Inc. is in Mississauga, Ontario and the British Columbia action was commenced by Ontario lawyers with their offices in Vaughan, Ontario. The Toronto action and the Federal Court action were both commenced by Ontario lawyers with their offices in Toronto.

5Plaintiff’s counsel (Mr. Orenstein) advises that he has reached out to the counsel in the other actions with a view to a potential agreement on how to proceed. If an agreement is not reached, then a carriage motion will be required pursuant to s. 13.1 of the Ontario statute. Presumably stay motions would then have to be argued in the Federal Court and in British Columbia unless it is appropriate to proceed with parallel actions in the different jurisdictions.

6The proposed class proceedings concern alleged misrepresentation about the extent to which Keurig K-Cups could be recycled. They take place against the backdrop of a regulatory proceeding by the Competition Bureau and an agreement entered into between the defendant and the Bureau. That agreement provides for remedial measures but not compensation for purchasers of Keurig machines. The class proceedings seek monetary remedies.

7Under these circumstances, it would not be reasonable to fix a date for the certification motion although Mr. Orenstein advises that he is ready to serve his motion record. The first step will be to determine carriage of the Ontario actions and then to determine whether duplicate actions should proceed in different jurisdictions or not.

8Mr. Orenstein indicates that he is prepared to bring a carriage motion but will have to consult with counsel in the Toronto action about dates.

9The court orders and directs as follows:

a. The plaintiff may serve its record for certification returnable on “a date to be fixed by the court”. The parties or the court may establish a timetable for the completion of all necessary exchange of material, cross examination on affidavits or other steps leading up to the hearing of the certification motion. This order shall be deemed to comply with s. 29.1 (c) of the Act.

b. A carriage motion is to be brought in this action within the next 60 days. The time under s. 13.1 (3) of the Act is extended accordingly. Counsel may request a further case conference with me to fix a date for the motion or if counsel can agree on dates and a timetable, they may approach the trial coordinator in Ottawa for a motion date.

c. Counsel shall advise this court if any steps are taken in the actions in the Federal Court or in British Columbia or if any orders are made in those jurisdictions. Counsel will also advise if any other parallel proceedings are commenced or if an agreement is reached between class counsel as to how to proceed.

d. The court will send a copy of this endorsement to the class proceedings judge in Toronto. The class proceedings judges in Toronto and Ottawa may confer with respect to scheduling or other administrative matters if either of them consider it advisable to do so.

e. This order is effective without further formality.

Regional Senior Justice C. MacLeod