COURT FILE NO.: CV-16-543764-00CP

DATE: 20220930

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GARY COLES

Plaintiff

• and -

FCA CANADA INC., fkn as CHRYSLER CANADA INC.

Defendant

Harvey Strosberg, Q.C., Justin Smith, and Joshua Aziza for the Plaintiff

Glenn Zakaib, David Elman, and John Hunter for the Defendant

HEARD: August 15 and 16, 2022.

PERELL, J.

REASONS FOR DECISION

A. Introduction. 2

B. Particulars of the Proposed Class Action against Chrysler Canada. 3

C. Procedural and Evidentiary Background in the Action against Chrysler Canada. 4

D. Recalls. 6

E. Airbags. 6

F. The Recalls. 7

G. Factors with Respect to the Chrysler Canada Recalls. 12

H. The Story of the Proposed Representative Plaintiff. 13

I. The Six Airbag Class Actions. 13

J. Certification: General Principles. 16

K. The Cause of Action Criterion (s. 5 (1)(a)) 17

1. Cause of Action Criterion: General Principles. 17

2. Cause of Action Criterion: Analysis and Discussion. 18

L. Identifiable Class Criterion (s. 5 (1) (b)) 19

1. Identifiable Class Criterion: General Principles. 19

2. Identifiable Class Criterion: Discussion and Analysis. 20

M. Common Issues Criterion (s. 5 (1)(c)) 21

1. Common Issues Criterion: General Principles. 21

2. Common Issues Criterion: Discussion and Analysis. 22

N. Preferable Procedure Criterion (s. 5 (1)(d) 23

1. Preferable Procedure Criterion: General Principles. 23

2. Preferable Procedure Criterion: Discussion and Analysis. 24

O. Representative Plaintiff Criterion (s. 5 (1)(e)) 26

1. Representative Plaintiff Criterion: General Principles. 26

2. Representative Plaintiff Criterion: Discussion and Analysis. 26

P. Conclusion. 26

A. Introduction

1Pursuant to the Class Proceedings Act, 1992,¹ Gary Coles brings a proposed class action against car manufacturer, Chrysler Canada Inc., now known as FCA Canada Inc. The proposed class action is one of a group of six national actions commenced against 12 groups of car manufacturers; namely: BMW, Chrysler, Ford, General Motors, Honda, Mazda, Mercedes-Benz, Mitsubishi, Nissan, Subaru, Toyota, and Volkswagen.

2The six actions have been brought by a Consortium of Class Counsel after a recall of defective and dangerous automobile parts supplied by Takata Corporation and TK Holdings, collectively “Takata”. The six actions, which I have been case managing, are being pursued by the Consortium with the primary objective of protecting Class Members from a safety risk. What’s the risk? When deployed by a motor vehicle collision, Takata airbags may explode like a grenade spewing shrapnel, killing or maiming the occupants of a vehicle.

3Because of bankruptcy, Takata is no longer a party to any of the six actions. In this proposed class action, Mr. Coles sues Chrysler Canada, the Canadian manufacturer and distributor of vehicles under the Chrysler, Jeep, Dodge, Ram, Alfa Romeo, and Fiat brands. Having abandoned a claim of unjust enrichment, Mr. Coles’ sole cause of action is a negligence action for pure economic losses associated with an imminently dangerous product that must be removed from use unless it’s repaired. Among other things, Mr. Coles alleges that Chrysler Canada’s recall of Takata’s beta-airbags has been inadequate and should be administered by the Consortium.

4As the discussion below will reveal, the recall of Takata’s airbags is the crux, hub and nub, nuts and bolts, and pith and substance, of this proposed class action. Who controls the recall is what this proposed class action is actually all about.

5The Consortium wants to control the recall for the protection and the benefit of the putative Class Members. However, largely based on the circumstance that Chrysler Canada has recalled and has gone about replacing Takata’s beta-airbags free of charge, Chrysler Canada disputes that the cause of action criterion has been satisfied.

6Based on the existence of the current recall, Chrysler Canada disputes that the certification criteria have been satisfied except for the Representative Plaintiff criterion. Chrysler Canada submits that it has not been demonstrated that its recall program is inadequate, and it submits that Mr. Coles’ proposed class action does not serve any of the purposes of a class action. Chrysler Canada asks that certification be denied.

7As I shall explain in more detail below, but for the preferable procedure criterion, Mr. Coles’ action would be certifiable as a products liability action for pure economic losses for an imminently dangerous product.

8However, the preferable procedure criterion is not satisfied, and therefore, Mr. Coles’ action is not certifiable as a class action.

B. Particulars of the Proposed Class Action against Chrysler Canada

9The plaintiff, Gary Coles, is a resident of the Town of Tecumseh, Ontario. He is a former employee of Chrysler Canada. He commenced his action on May 12, 2015.

10Proposed Class Counsel come from a national Consortium of law firms. The firms are: (a) the Consumer Law Group PC; (b) Garcha and Co.; (c) Kim Orr Barristers PC; (d) McKenzie Lake Lawyers LLP; (e) Merchant Law Group LLP; (f) Rochon Genova LLP; and (g) Strosberg Sasso Sutts LLP. From this Consortium, the proposed co-lead Class Counsel for the action against Chrysler Canada are Strosberg Sasso Sutts LLP and McKenzie Lake Lawyers LLP.

11Chrysler Canada is a Canadian corporation with its head office in Windsor, Ontario. It is the sole distributor in Canada of vehicles under the Chrysler, Jeep, Dodge, Ram, and Fiat brands.

12Takata, which is no longer a defendant to Mr. Coles’ action because of its bankruptcy, manufactured two types of airbags labelled alpha and beta. The alpha-airbags had a design defect and a manufacturing defect. The beta-airbags had a design defect.

13Chrysler Canada manufactured vehicles that contained the beta family of Takata airbags, and Chrysler Canada imported into Canada vehicles that had been manufactured by its American parent corporation that contained the beta family of Takata airbags. Chrysler Canada sold the vehicles containing the beta-airbags through retailers, outlets, and authorized dealerships throughout Canada, including Ontario.

14Chrysler Canada’s lawyer of record is Borden Ladner Gervais LLP.

15The proposed class definition is:

All persons in Canada, who own, owned, leased or lease one of the Vehicles, except Excluded Persons.

“Excluded Persons” means the Defendant and their officers, directors, any persons employed in Chrysler Canada’s research department, and their respective heirs, successors and assigns.

“Recalls” means the following Transport Canada Recalls:

DATE	TRANSPORT CANADA RECALL#
January 6, 20152	2015-003
March 3, 20153	2015-093 2015-094
May 27, 2015	2015-228 2015-229
July 13, 2015	2015-305
August 27, 2015	2015-381
April 13, 2016	2016-161 2016-162
May 27, 2016	2016-265
December 29, 2016	2016-658
March 10, 2017	2017-131
January 11, 2018	2018-027
January 11, 2019	2019-016

“Vehicles” means those vehicles manufactured by Chrysler Canada and Chrysler USA which are subject to the Recalls, all other motor vehicles manufactured in Canada by Chrysler Canada which contained a Takata Airbag and remained in Canada and all other motor vehicles manufactured in the USA containing a Takata Airbag and shipped to Chrysler Canada for resale in Canada.

16The proposed common issues are:

(a) What is the defect in the Takata Airbags? Does this defect affect the safety of vehicle occupants and Class Members? If so, how?

(b) Do some or all of the Vehicles contain, or did they contain, the defective Takata Airbags? If so, which ones?

(c) Did the defendant owe a duty of care to the Class?

(d) What is the standard of care applicable to the defendant?

(e) Did the defendant breach the applicable standard of care? How?

(f) [deleted: aggregate damages]

(g) [unjust enrichment/disgorgement: deleted]

(h) [unjust enrichment/disgorgement: deleted]

(i) Should punitive and/or aggravated damages be awarded against the defendant?

C. Procedural and Evidentiary Background in the Action against Chrysler Canada

17On May 12, 2015, with the issuance of a Statement of Claim, Mr. Coles commenced this action against Takata Corporation, TK Holdings Inc., Fiat Chrysler Automobiles N.V., Fiat Chrysler Automobiles A/K/A FCA US LLC, F/K/A Chrysler Group LLC and FCA Canada Inc. f/k/a Chrysler Canada Inc. Subsequently the foreign defendants were removed from the Canadian proceeding.

18On January 7, 2016, Mr. Coles delivered the second iteration of his Statement of Claim.

19On March 31, 2016, Mr. Coles delivered the third iteration of his Statement of Claim.

20On June 13, 2016, the action was stayed against Takata, and by Order on June 24, 2016, Fiat Chrysler Automobiles N.V. and FCA US LLC were removed as parties to the action. Mr. Coles delivered the fourth iteration of his Statement of Claim.

21On July 7, 2016, Mr. Coles delivered the fifth iteration of his Statement of Claim.

22On August 16, 2016, Chrysler Canada delivered its Statement of Defence.

23On June 16, 2017, Takata filed for bankruptcy protection in the United States.

24On June 28, 2017, Takata filed for bankruptcy protection in Canada.

25On March 12, 2021, Mr. Coles obtained an Order lifting the stay of proceeding against Takata and the action was dismissed as against Takata, and the style of cause was amended accordingly.

26On April 16, 2021, Mr. Coles delivered the sixth iteration of his Statement of Claim.

27On May 12, 2021, Chrysler Canada delivered its Statement of Defence to the sixth iteration of the Statement of Claim.

28On August 13, 2021, Mr. Coles brought his certification motion. The motion was supported by the following evidentiary record:

a. Affidavit of Harold R. Blomquist dated July 30, 2021. Dr. Blomquist of Gilbert Arizona is a Ph.D. chemist with over 40 years’ experience formulating chemicals suitable for ammunition, rocket propulsion, and airbag gas generation. He obtained his Ph.D. in Chemistry from Duke University. He is currently the president of HRB Research. He is the technical expert for the Office of Defect Investigation, which is a department of the United States National Highway Traffic Safety Administration (“NHTSA”). It was not disputed that Dr. Blomquist has the preeminent expertise in the science and engineering associated with automobile airbags.

b. Affidavit of the Plaintiff Gary Coles dated August 13, 2021.

c. Affidavit of Scott Robinson dated August 13, 2021. Mr. Robinson is a lawyer with Strosberg Sasso Sutts LLP, co-counsel for Mr. Coles.

29On January 14, 2022, Chrysler Canada filed its responding motion record to the certification motion. Chrysler Canada relied on the following evidentiary record:

a. Affidavit of Sunny Kim dated January 13, 2022. Mr. Kim is a lawyer with Borden Ladner Gervais LLP, counsel for Chrysler Canada.

b. Affidavit of Stuart Shaw dated January 14, 2022. Mr. Shaw is the Manager, Technical Safety and Regulatory Compliance at Chrysler Canada.

30There were no cross-examinations of the affiants for either party.

31The certification motion was argued on August 15 and 16, 2022 and judgment was reserved.

D. Recalls

32Motor vehicle recalls are governed in Canada by Transport Canada under the Motor Vehicle Safety Act.⁴ Motor vehicle recalls are governed in the United States by NHTSA.

33Safety recall information is available through the Transport Canada website, which can be searched by vehicle model and model year. Transport Canada has a dedicated webpage in relation to the Takata airbag inflator recalls. Vehicle-specific information can also be obtained from the vehicle manufacturer and through the “Mopar” website. Mopar is the parts, service, and customer care division of Chrysler Canada.

34Pursuant to the Motor Vehicle Safety Act, a car manufacturer must provide a Notice of Defect (“NoD”) to Transport Canada of any defect in the design, manufacture, or functioning of a vehicle that affects or is likely to affect the safety of any person. In the United States, the manufacturer submits a Defect Information Report (“DIR”) to NHTSA.

35Within 60 days of issuance of a NoD, the manufacturer is required to notify vehicle owners of the safety defect, regardless of the availability of a remedy for the defect. In the first instance, it is the car manufacturer that decides whether to undertake a safety recall. Authorization for Chrysler Canada to undertake a safety recall comes from the North American head office of the Chrysler enterprise. The authorization comes from the FCA North American Vehicle Regulations Committee, the “VR Committee”.

36To notify vehicle owners of a safety defect, Chrysler Canada uses the affected vehicles’ Vehicle Identification Numbers (“VINs”) and the affected owners’ names and addresses are retrieved from Chrysler Canada’s information systems. The type of notice sent to owners by Chrysler Canada depends upon the availability of a remedy at the time of mailing.

a. If a remedy is available within 60 days of the issuance of a NoD, the notice describes the defect and the safety risk associated with the safety recall and provides instructions on how to receive the remedy.

b. If a remedy is not available within 60 days of the issuance of a NoD, Chrysler Canada sends an interim notice that describes the defect and safety risk associated with the safety recall, indicates that a remedy is not yet available, and advises a further notice will be sent once a remedy can be provided. When the remedy is available, a follow-up Notice is distributed that provides instructions on how to receive the remedy.

E. Airbags

37Airbags consist of three main component parts: (i) the inflator, (ii) the cushion material, and (iii) the module that houses the inflator and the cushion material. When the airbag is triggered to deploy, a propellant found in the inflator is ignited to undergo a chemical reaction. The chemical reaction produces a gas that exits the inflator to fill the airbag, which deploys out of the steering wheel, dashboard, or doors of the vehicle, and then the airbag deflates. The whole process happens within milliseconds of a car crash.

38A propellant for airbags is NH₄NO_3, “ammonium nitrate”. It exists as a solid crystal. The solid crystal can change with temperature and can transform into a gas. Ammonium nitrate is used as a nitrogen fertilizer in agriculture. It is used as a component of explosives in bombs and missiles. If properly prepared, ammonium nitrate is suitable for use as propellant in an airbag inflator.

39Ammonium nitrate has an affinity to moisture and a tendency to change crystal phases with moisture and as temperature changes. This tendency needs to be mitigated. One of the crystal phase changes of the NH₄NO₃ occurs at approximately 32°C and the change alters the chemical-burning characteristics of the NH₄NO_3, possibly causing an explosion; i.e., ammonium nitrate can shift from burning to exploding in certain conditions. Unless desiccated (kept dry) and depending on climate, ammonium nitrate crystals may deteriorate and an explosion instead of a controlled creation of gas may occur. When an airbag deploys with an explosion, the excessive pressure can cause the inflator housing to rupture, and spew shrapnel.

40Car manufacturers, included Chrysler Canada, provided Takata with the specifications for the airbags in accordance with industry standards for airbag installations. Takata designed, manufactured, and supplied the airbags purportedly to those specifications. All the Takata airbags were designed using ammonium nitrate crystals (NH₄NO₃₎, but Takata failed to account for ammonium nitrate’s affinity to moisture and depending on climate temperatures its susceptibility to change.

41Beginning in the 1990s, Takata designed airbags using a phase-stabilized ammonium nitrate (“PSAN”) as a propellant. The manufacturing processes are proprietary to Takata. In June 2000, Takata developed two non-desiccated PSAN inflators, referred to as alpha and beta.

42Takata conducted design verification (“DV”) tests and process validation (“PV”) tests to confirm that its airbags met the car manufacturer’s performance and durability specifications. Unknown to the car manufacturers, Takata’s PV test reports included substituted or altered test results. Takata provided fraudulent test results. The car manufacturers did not know that some Takata airbags, the alpha-airbags, had manufacturing defects and that all the Takata airbags, the alpha-airbags and the beta-airbags, had a design defect.

43What was not generally known and what ultimately led to a defect in the Takata airbags, was how to properly mitigate ammonium nitrate’s affinity for moisture. To be used as a propellant in an airbag inflator, the ammonium nitrate must be prepared, and maintained, moisture free. If the propellant combustion is not controlled and there is high pressure within the inflator that exceeds the structural strength of the inflator housing, the steel housing ruptures propelling one or more steel fragments outwards with potentially lethal force.

44Although no injuries have occurred in Canada to date, the defect in the Takata airbags has caused at least twenty-five fatalities and numerous injuries worldwide. It was Dr. Blomquist’s opinion that: the rupture risk became unacceptable after 14.5 years; the rupture risk could not be ignored in Canada’s climate; and many airbags in Class Members’ vehicles were “ticking time bombs”. It was his opinion that given the danger presented by the defect that every vehicle manufacturer in Canada should immediately recall and replace the Takata inflators.

F. The Recalls

45Between 2003 and 2016, Chrysler Canada placed Takata’s beta-airbags in its vehicles. No alpha-airbags were used. It was later determined that alpha-airbags posed a very high risk of rupture, up to 50% risk. In contrast, the risk presented by a beta-airbag is much lower, an up to 1% risk of rupture.

46Between August 2013 and April 2014, the United States National Highway Traffic Safety Administration (“NHTSA”) was notified of three instances of Takata airbag ruptures in vehicles experiencing long-term exposure to hot and humid climate conditions in Florida and Puerto Rico.

47On June 11, 2014, Takata told NHTSA it would support regional field action to address potential inflator issues. Takata advised that it suspected that exceptionally high levels of absolute humidity in conjunction with some manufacturing processing issues could influence the stability of the airbag inflators. Four high-risk areas were identified; namely: Florida, Hawaii, Puerto Rico and the United States Virgin Islands.

48On June 24, 2014, before making a defect notice determination, Chrysler Canada’s VR Committee initiated “Regional Field Act P40” to replace Takata beta-airbags in Florida, Hawaii, Puerto Rico and the U.S. Virgin Islands, the high-risk areas identified by Takata.

49On October 22, 2014, NHTSA issued a customer advisory urging owners of 7.8 million vehicles in the U.S., including 300,000 Chrysler vehicles, to act to replace defective Takata Airbags.

50On November 10, 2014, Takata submitted a Defect Information Report (“DIR”) to NHTSA stating that certain passenger airbags built between April 13, 2000 and July 31, 2002 could contain a safety defect associated with high absolute humidity. Eight high-risk areas were identified; namely: American Samoa, Florida, Guam, Gulf Coast, Hawaii, Puerto Rico, Saipan, and the U.S. Virgin Islands.

51On November 18, 2014, NHTSA demanded that five vehicle manufacturers with affected driver side frontal Takata Airbags expand their regional field actions and conduct nationwide recall actions. BMW, Chrysler USA, Ford, Honda, and Mazda initiated national service campaigns or safety improvement campaigns on vehicles with driver side frontal Takata Airbags.

52On December 9, 2014, Chrysler’s VR Committee directed Voluntary Safety Recall P78 and on December 18, 2014, the VR Committee directed Voluntary Safety Recall P81 to replace Takata beta-airbags in vehicles in: American Samoa, Florida, Guam, Gulf Coast, Hawaii, Puerto Rico, Saipan, the U.S. Virgin Islands and in the southern U.S. region.

53On February 24, 2015, NHTSA ordered an engineering analysis (EA15001) of the Takata airbags. NHTSA retained Dr. Blomquist to provide an expert opinion on the cause of the defect in Takata airbags.

54On May 18, 2015, Takata filed four DIRs with NHTSA. Takata admitted that certain types of its airbag inflators contained a defect that constituted an unreasonable risk of injury. The same day, NHTSA issued a Consent Order requiring Takata to cooperate in future regulatory actions in an ongoing investigation.

55Between May 18, 2015 and June 24, 2015, Chrysler USA and various other vehicle manufacturers filed DIRs with NHTSA for vehicles containing Takata airbags covered by Takata’s DIRs.

56On May 21, 2015, FCA’s VR Committee directed Voluntary Safety Recalls R25 and R26 to replace driver and passenger Takata beta-airbags worldwide.

57(The Coles action against Takata and Chrysler Canada was commenced on May 21, 2015.)

58On May 27, 2015, Chrysler Canada began recalling some vehicles to replace the Takata airbags.

59On November 3, 2015, NHTSA issued a Consent Order requiring Takata to phase out the manufacturing and distribution of Non-Desiccated PSAN Inflators. The Consent Order set a schedule for recalling of all PSAN-based inflators. (The Consent Order was amended on May 3, 2016, to limit the recall to Non-Desiccated PSAN Inflators.)

60On January 25, 2016, Takata submitted a DIR to the NHTSA declaring a defect for Takata beta-airbags sold in the United States, up to and including the 2014 model year.

61On March 3, 2016, Takata provided Chrysler with a list of vehicles built with defective beta-airbags and on March 15, 2016, Chrysler’s VR Committee directed a Voluntary Safety Recall on all vehicles in the United States.

62On May 4, 2016, NHTSA released a report from Dr. Blomquist. NHTSA issued a press release noting that ruptures of Takata airbags had been tied to ten deaths and more than 100 injuries in the U.S. NHTSA announced the expansion and acceleration of the Takata airbag recalls. The expansions were planned to proceed in phases until December 2019. The target of the recall was all Takata ammonium nitrate-based propellant driver and passenger frontal airbag inflators without a desiccant (a chemical drying agent). After receiving Dr. Blomquist’s May 2016 report, NHTSA ordered automobile manufacturers to recall all Takata airbags in the United States.

63On May 16, 2016, in accordance with the Amended Consent Order, Takata submitted a DIR to NHTSA identifying a defect in non-desiccated PSAN Inflators, not already under recall. The affected vehicles included model years up to and including 2004, 2008 or 2011, depending on the geographic location of the vehicle within the U.S.

64On May 17, 2016, FCA’s VR Committee directed Voluntary Safety Recall S43 for Takata PAB PSPI and PSPI 1.1 inflators up to and including 2008, 2009 or 2012 model year, depending on the geographic location of the vehicle within the United States. For Canada, the VR Committee directed the recall for all vehicles, up to and including 2012 model year, regardless of geographic location.

65On December 7, 2016, three senior Takata executives were criminally charged with having defrauded the auto manufacturing industry to purchase airbag systems through false and fraudulent reports about the airbags.

66On December 20, 2016, Chrysler’s VR Committee directed a Voluntary Safety Recall to replace inflators in additional vehicles, which had inadvertently been omitted in the original R25 recall. The Committee also directed the expansion of the S43 recall to include additional beta-airbags.

67On January 3, 2017, in accordance with the Amended Consent Order, Takata submitted a DIR to the NHTSA, declaring a defect in certain non-desiccated PSAN Inflators, not already under recall. The vehicle population included model years up to and including 2008, 2009 or 2012, depending on the geographic location of the vehicle within the United States. No actions were required by Chrysler’s VR Committee because all affected vehicles had been voluntarily recalled seven months earlier.

68On January 13, 2017 Takata was charged with having devised a scheme to defraud the auto manufacturing industry through materially false, fraudulent and misleading reports and other information that concealed the truth about the airbags. Takata pleaded guilty. It was ordered to pay a $25 million fine.

69A year later, on January 4, 2018, Chrysler’s VR Committee authorized Voluntary Safety Recall U03 for Takata inflators up to and including 2009, 2010 and 2013 model year, depending on the geographic location of the vehicle within the United States. In Canada, the recall applied to 2013 model year vehicles only since all older vehicles had been voluntarily recalled 19 months earlier in the S43 recall.

70Another year later, on January 2, 2019, in accordance with the Amended Consent Order, Takata submitted a DIR to the NHTSA, declaring a defect in all remaining non-desiccated PSAN inflators, not already under recall and Chrysler’s VR Committee directed a Voluntary Safety Recall V01 for all remaining unrecalled vehicles. In Canada, the recall applied to 2014 model year or newer vehicles since all older vehicles were already under the S43 and U03 recalls.

71By January 11, 2019, Chrysler Canada had recalled over one million Takata Airbags affecting 663,048 vehicles.

72Another year later, on January 2, 2020, in accordance with the Amended Consent Order, Takata submitted a DIR to the NHTSA, declaring a defect in all non-desiccated PSAN inflators installed in vehicles as an interim remedy for prior Takata recalls. No actions were required by Chrysler’s VR Committee because its vehicles did not utilize non-desiccated PSAN Inflators.

73In his affidavit, Mr. Shaw attached charts, excerpts below, that set out all the VR Committee’s safety recall notices with the corresponding Transport Canada Recall Number and with the particulars of the recall including the number of recalled inflators.⁵

FCA Recall Number	Transport Canada Recall Number	Interim and Final Notices to Owners	Quantity of replacements
R25	2015-228	July 24, 2015 March 11, 2016	387,801
R26	2015-229	August 10, 2015 August 19, 2016	37,314
R37	2015-305	August 3, 2015 November 20, 2015	8,425
R49	2015-381	August 31, 2015 October 21, 2016	4,113
S14	2016-161 2017-131	June 3, 2016 April 4, 2017	5,247
S15	2016-162	June 3, 2016 February 16, 2017	184
S43	2016-265	July 26, 2016 March 30, 2017 May 1, 2017	489,132
S92	2016-658	January 27, 2017	1,166
U03	2018-027	February 22, 2018	29,056
V01	2019-016	March 1, 2019	79,206
Total Airbags recalled.			[1,047,044]

74The Transport Canada Recalls had “Recall Details.” Using the 2015-228 Notice as an example, the Recall Details stated:

Recall Details: On certain vehicles, the driver frontal airbag inflator could produce excessive internal pressure during airbag deployment. Increased pressure may cause the inflator to rupture, which could allow fragments to be propelled toward vehicle occupants increasing risk of injury. This could also damage the airbag module, which could prevent proper deployment. Failure of the airbag to fully deploy during a crash (which deployment is warranted) could increase the risk of personal injury to the seat occupant. […]

75The most recent Recall Notice (2019-016, March 1, 2019) from Transport Canada stated:

Recall Details

Issue: On certain vehicles, long-term exposure to high absolute humidity and temperature, combined with high temperature cycling, may eventually degrade the propellant contained in the passenger-front airbag. This could cause the airbag to deploy with more force than normal. If the airbag inflator ruptures, fragments could be propelled toward vehicle occupants or cause damage to the airbag assembly, preventing its proper function.

Safety Risk: If the vehicle is involved in a crash requiring an airbag deployment, the airbag inflator could rupture and create a risk of injury.

Corrective Action: Owners will be notified by mail and instructed to take their vehicle to a dealer to have the passenger-front airbag inflator replaced.

Note: The Canadian climate results in the propellant degrading slowly. This recall is being conducted as a precaution to address future risk. It is expected that all airbag inflators will be replaced before their function could be affected.

76The most recent Recall Notice from Transport Canada followed the following Recall Notice from Chrysler Canada:

URGENT VEHICLE RECALL

Your vehicle has a safety recall

FCA

FIAT CHRYSLER AUTOMOBILES

SAFETY RECALL V01

PASSENGER AIRBAG INFLATOR

Dear Vehicle Owner:

This Notice is sent to you in accordance with the Canada Motor Vehicle Safety Act.

FCA HAS DECIDED THAT A DEFECT, WHICH RELATES TO MOTOR VEHICLE SAFETY, EXISTS IN CERTAIN 2014-2015 CHRYSLER 300, 2014 DODGE CHALLENGER, 2014-2015 DODGE CHARGER AND 2014 2016 JEEP WRANGLER VEHICLES.

Your vehicle must be repaired because:

The front passenger airbag inflator (PAB) on your vehicle may contain propellant that degraded after prolonged exposure to high absolute humidity, high temperatures and high temperature cycling. Activation of an inflator with degraded propellant, in a vehicle crash where the PAB is designed to deploy, may result in an inflator explosion. An inflator explosion may cause metal fragments to pass through the air bag and into the vehicle interior at high speed, which may result in injury or death to vehicle occupants. We apologize for any inconvenience and thank you for your attention to this very important matter.

FCA Canada Inc.

National Service and Parts Manager

What You Must Do to Ensure Your Safety:

Contact an authorized FCA Canada dealer to schedule a service appointment.

What Your Dealer Will Do:

FCA Will repair your vehicle free of charge. To do this, your dealer will replace the PAB inflator.

FRQUENTLY ASKED QUESTIONS

WHERE CAN I FIND MORE INFORMATION ON THIS RECALL OR ANY OTHER RECALL AFFECTING MY VEHICLE?

HOW DO I UPDATE MY NAME AND ADDRESS OR IF I NO LONGER OWN THIS VEHICLE?

Contact the Customer Name & Address Call Centre at 1-800-373-1474 to update your information.

WHAT IF I ALREADY PAID TO HAVE THIS REPAIR COMPLETED?

If you have already experienced this specific condition and have paid to have it repaired, you will still be required to have the campaign performed by an authorized FCA Canada dealer at no charge to you. Once completed, please send your original receipts and/or adequate proof of payment along with the campaign invoice to the following address for further review of possible reimbursement: FCA Canada Customer Care Centre, P.O. Box 1621, Windsor, ON N9A 4H6.

G. Factors with Respect to the Chrysler Canada Recalls

77From a factual perspective, Chrysler Canada recalls, which are the subject at the heart of Mr. Coles’ proposed class action, must be placed within the context of what was happening around the world as a result of the Takata airbag manufacturing and design fiasco, and it is also necessary to keep in mind that Chrysler Canada and its American counterpart only purchased Takata’s beta-airbags. In these regards, the following points should be kept in mind, particularly with respect to the discussion below of the cause of action and the preferable procedure criteria.

78The Takata recalls involved at least 12 major automobile manufacturers and not just Chrysler Canada. Multi-millions of airbags were defectively manufactured and/or defectively designed and had to be recalled and replaced.

79The Takata alpha-airbags precipitated the worldwide avalanche of recalls, and the alpha-airbags involved a manufacturing defect in addition to a design defect. The alpha-airbags are substantially more dangerous in relation to the risk of harm occurring than the beta-airbags.

80The enormous number of airbags involved exceeded the availability of replacements and decisions had to be made to prioritize the recall campaigns to respond to the greatest risks. The regulators in the United States determined that priority should be given to the areas of high heat and humidity conditions.

81There were numerous supply chain issues and obtaining enough replacements was challenging and delayed. Chrysler Canada and its American parent engaged multiple suppliers including Takata, TRW, Daicel, and Key Safety Systems, which in 2018 acquired Takata’s assets.

82Notwithstanding the supply issues, before Class Counsel brought the certification motion, Chrysler Canada had issued recalls for over one million Takata Airbags affecting 663,048 vehicles. However, that is not to say that over one million Takata Airbags have been replaced. The number of replacements was not disclosed for this certification motion.

H. The Story of the Proposed Representative Plaintiff

83On June 28, 2006, Mr. Coles purchased a new Chrysler 300, which he still owns and drives.

84On May 27, 2015, Chrysler Canada announced a safety recall of some Takata airbags including Mr. Coles’ vehicle (Transport Canada Recall 2015-228).

85In June or July 2015, Mr. Coles contacted Chrysler Canada to determine whether his Chrysler 300 contained a Takata Airbag requiring replacement. He was told that it did, and on August 10, 2015, Mr. Coles received a Chrysler Canada safety recall letter. Mr. Coles immediately called Windsor Chrysler, a Chrysler dealership in Windsor, Ontario, but he was advised that it did not have sufficient airbag replacements for the replacement.

86In April 2016, Windsor Chrysler called Mr. Coles to advise that airbag replacements had been delivered and, on April 11, 2016, Windsor Chrysler replaced the driver side Takata Airbag in Mr. Coles’ Chrysler 300.

87In August 2016, Mr. Coles received another Chrysler Canada safety recall letter about a safety defect in the passenger side Takata Airbag.

88On September 14, 2017, Windsor Chrysler replaced the passenger side Takata Airbag in Mr. Coles’ Vehicle.

I. The Six Airbag Class Actions

89Takata was a co-Defendant in six proposed products liability class actions under the Class Proceedings Act, 1992: (1) Mailloux v. Takata Corporation, CV-16-543763-00CP; (2) Coles v. Takata Corporation, CV-16-543764-00CP; (3) D’Haene v. Takata Corporation, CV-16-543766-00CP; (4) Des-Rosiers v. Takata Corporation, CV-16-543767-00CP; (5) McIntosh v. Takata Corporation, CV-16-543833-00CP; and (6) Stevenson v. Mazda Motor Corp., CV-18-00607848-00CP.

90Spread out over the six actions with some added during the course of the proceedings, Takata’s co-Defendants are: BMW, Chrysler, Ford, General Motors, Honda, Mazda, Mercedes-Benz, Mitsubishi, Nissan, Subaru, Toyota, and Volkswagen. In their respective actions, the Plaintiffs pled that the airbag inflator installed in the Class Members’ vehicles had one or two dangerous and life-threatening defects. The defects are a result of the design and manufacturing negligence of Takata. The Plaintiffs allege, however, that the car manufacturers concealed their knowledge of the defect and also are liable for negligence. The claims in the action are for pure economic losses. The actions do not resolve or foreclose claims for property damage or personal injuries from an airbag explosion.

91Because of the discussion below of the preferable procedure criterion, which is the critical criterion in the immediate case, it shall be important to place Mr. Coles’ action against Chrysler Canada in the context of the six national actions commenced against the 12 manufacturers. It is part of the history of Mr. Coles’ class action that the Consortium had an overall strategy that staged, triaged, and ordered the six actions. The staging of the six actions was complicated by the circumstance of the bankruptcy proceedings against Takata. The strategy did not involve simultaneously prosecuting all six proceedings. What follows in this section of my Reasons for Decision is an outline of the highlights of the six class actions.

92On November 7, 2014, John M. McIntosh commenced an airbag class action against Takata and Toyota, and Rick A. Des-Rosiers and Stephen Kominar commenced an airbag class action Takata and Honda.

93On April 10, 2015, Jeff Mailloux commenced an airbag class action against Takata and Nissan.

94On April 11, 2015, Donald D’Haene and Keith Sanford commenced an airbag action against Takata, BMW, Ford, General Motors, Mazda, Mercedes-Benz, Mitsubishi, Subaru, and Volkswagen.

95On May 12, 2015, Mr. Coles commenced this action against Takata and Chrysler Canada amongst other Chrysler corporations.

96By April 7, 2016, a national Consortium to prosecute the airbag actions had been formed.

97On July 16, 2016, I granted a motion brought by Takata in the McIntosh, Des-Rosiers, Mailloux, D’Haene, and Coles actions to strike six paragraphs from the respective Statements of Claim for contravention of the Apology Act, 2009.⁶

98On June 16, 2017, Takata filed for bankruptcy protection in the United States and on June 25, 2017, Takata commenced Chapter 11 proceedings in the United States Bankruptcy Court for the District of Delaware. On June 28, 2017, an Initial Recognition Order was issued in Ontario pursuant to Part IV of the Companies’ Creditors Arrangement Act⁷ recognizing and enforcing, among other things, the U.S. Chapter 11 proceedings and granting a stay of proceedings against Takata, the Chapter 11 Debtors.

99In July 2017, the Consortium began negotiations to resolve some of the actions with some of the car manufacturers.

100On March 14, 2018, Justice Hainey issued an order pursuant to the Companies' Creditors Arrangement Act, recognizing and giving full force and effect to the Order of the United States Bankruptcy Court for the District of Delaware dated February 21, 2018. The Order confirmed the Fifth Amended Joint Chapter 11 Plan of Reorganization of TK Holdings Inc. and its Affiliated Debtors. Under the Chapter 11 Plan, Takata, a "Released Party", was "deemed conclusively, absolutely, unconditionally, irrevocably and forever released and discharged, to the maximum extent permitted by law." The Chapter 11 Plan became effective on April 10, 2018. The car manufacturers, which had claims over against Takata, were left to pursue those claims in the Chapter 11 Plan proceedings.

101On October 30, 2018, to facilitate the implementation of a settlement, Mazda and Subaru were removed from the D’Haene action, and Arlene Stevenson and Mira Melien sued them in a new action, the Stevenson action.

102On February 21, 2019, the parties signed settlement agreements to settle the claims against Mazda, Subaru, and Toyota in the McIntosh and Stevenson actions.

103On February 25, 2019, I certified the McIntosh action against Toyota⁸ and the Stevenson action against Mazda and Subaru⁹ for settlement purposes.

104On February 25, 2019, March 28, 2019, and April 8, 2019, in light of the Chapter 11 Plan, dismissals against Takata were granted in the class actions against BMW, Ford, General Motors, Honda, Mazda, Mercedes-Benz, Mitsubishi, Subaru, and Toyota.

105On May 15, 2019, I certified the action against Honda, the Des-Rosiers action, for settlement purposes.¹⁰

106On February 12, 2020, I approved the settlements against Toyota, Mazda, and Subaru in the McIntosh and Stevenson actions.¹¹ The settlement with Mazda, Subaru, and Toyota involved economic losses only and personal injury and property damage claims were not released.

a. The settlement involved: (a) a Recall Remedy; (b) an Outreach Program; (c) reimbursement for out-of-pocket expenses; and (d) a Customer Support Program.

b. The purpose of the Outreach Program was to accelerate the replacement completion rate in Canada.

c. The eligible expenses for reimbursement were associated with the recall and included subject to certain qualifications: (a) rental car or other alternate transportation expenses; (b) towing charges to a dealership; (c) childcare expenses; (d) costs associated with repairing the airbags; and, (e) reasonable lost wages resulting from lost time from work, directly associated with the drop-off/pick-up of the vehicles to/from a dealership for performance of the Recall Remedy.

d. The Customer Support Program provides prospective coverage for repairs and adjustments needed to correct defects, if any, in the materials or workmanship of the replacement inflators.

e. Mazda, Subaru, and Toyota were responsible for paying the costs of the Settlement Administrator (Crawford Class Action Services), and they agreed to also pay Class Counsel fees and expenses, up to $5,850,000.

107On December 22, 2020, I approved the settlement in the action against Honda.¹² The settlement with Honda was similar to the settlement with Mazda, Subaru, and Toyota and also included an Automotive Recycler Program for the recovery of scrap inflators.

108On March 12, 2021, I approved the dismissal of Mr. Coles’ action as against Takata.¹³

109On August 13, 2021, Mr. Coles served his certification motion record in the action against Chrysler Canada, and on August 16, 2021, I set the timetable for the certification motion.

110On November 11, 2021, in light of the Chapter 11 Plan, I approved the dismissal of the Mailloux action against Takata in the action against Nissan.¹⁴

111In the D’Haene action, Mercedes-Benz, Mitsubishi. and General Motors are moving to have the action dismissed for delay pursuant to s. 29.1 of the Class Proceedings Act, 1992. The motion is scheduled for October 7, 2022.

112At present, the McIntosh, Des-Rosiers, and Stevenson actions have been settled and the Mailloux, D’Haene, and Coles actions have not been resolved.

J. Certification: General Principles

113The 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.

114On 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.¹⁵ 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.¹⁶

115For 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.¹⁷ 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.¹⁸ In particular, there must be a basis in the evidence to establish the existence of common issues.¹⁹ 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.²⁰

116The 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.²¹

117Although it has recently garnered renewed attention, 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 or more putative Class Members suffered compensable harm.²²

K. The Cause of Action Criterion (s. 5 (1)(a))

1. Cause of Action Criterion: General Principles

118The first criterion for certification is that the plaintiff’s pleading discloses a cause of action.

119The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada,²³ 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, 1992.²⁴

120In 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.²⁵

121Bare 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.²⁶

122Matters 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,²⁷ and the court’s power to strike a claim is exercised only in the clearest cases.²⁸ The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.²⁹ 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.³⁰

2. Cause of Action Criterion: Analysis and Discussion

123In the most recent iteration of his Statement of Claim, Mr. Coles pleads causes of action in negligence and for unjust enrichment. At the certification motion, he abandoned the claim for unjust enrichment.

124I disagree with Chrysler Canada’s argument that Mr. Coles’ products liability negligence action does not satisfy the cause of action criterion.

125Although I do agree with Chrysler Canada’s arguments that a products liability action is not invariably certified and that each class action requires its own analysis, Mr. Coles has successfully pleaded the general elements of a negligence cause of action, and he has also pleaded sufficient particular material facts of the various genres of products liability causes of action for which Chrysler Canada had no particular difficulty pleading a defence.

126The elements of a claim in negligence, which are found in Mr. Coles’ Statement of Claim, are: (1) the defendant owes the plaintiff a duty of care; (2) the defendant’s behaviour breached the standard of care; (3) the plaintiff suffered compensable damages; (4) the damages were caused in fact by the defendant’s breach; and, (5) the damages are not too remote in law.³¹

127There are four established genres of product liability causes of action.³² Mr. Coles pleads sufficient particulars of all four types of product liability negligence in his Statement of Claim. First, there is design negligence; manufacturers have a duty of care in designing the product to avoid safety risks and to make the product reasonably safe for its intended purposes.³³ Second, there is manufacturing negligence; manufacturers have a duty of care to consumers to see that there are no defects in manufacture that are likely to give rise to injury in the ordinary course of use.³⁴ Third, manufacturers have a duty of care to compensate consumers for the cost of repairing a dangerous product that presents a real and substantial danger.³⁵ Fourth, there is a duty to warn; manufacturers have a duty of care to warn consumers of dangers inherent in the use of the product of which the manufacturer has knowledge or ought to have knowledge.³⁶

128Chrysler Canada’s challenge to the cause of action criterion seems to be founded on the circumstances that: (a) it was Takata that negligently designed the defective airbags that all the manufacturers installed as an automobile part; (b) Chrysler responded with an extensive recall and outreach program for vehicle owners to have their Takata airbag inflators replaced; and (c) Chrysler continues to offer replacement at no cost to vehicle owners.

129These circumstances, which may establish the material facts for a defence, however, do not entail that Mr. Coles has not pleaded a reasonable cause of action and that his Statement of Claim does not satisfy the cause of action criterion. A manufacturer is responsible for its product, including components produced by others and installed in the manufacturer’s product. A manufacturer has a duty of care in the manufacture of its product including all its component parts including those parts supplied by sub-manufacturers.³⁷

130The Defendant, as the manufacturer of the Vehicles, owes a duty of care to the Plaintiff and the Class Members to take reasonable care, by inspection or otherwise, to see that component parts can properly be used to put its product in a condition in which it can be safely used or consumed in the contemplated manner by the ultimate user or consumer. The Plaintiff has adequately pleaded a claim against Chrysler Canada for negligent manufacture.

131Had Mr. Coles’ action been certified, it would have made for an interesting examination of whether there are limits to the liability of a manufacturer who outsources the design or the manufacturing of its products component parts but that is a matter for the merits of the action and not a matter that stands in the way of certification.

132I conclude that the cause of action criterion is satisfied.

L. Identifiable Class Criterion (s. 5 (1) (b))

1. Identifiable Class Criterion: General Principles

133The 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.³⁸

134In 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.³⁹ 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.⁴⁰ 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.⁴¹ A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.⁴²

135The class must also not be unnecessarily narrow or under-inclusive. A 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.⁴³

2. Identifiable Class Criterion: Discussion and Analysis

136There are problems with the proposed class definition, but the problems would appear to be technical problems that could be solved.

137The current class definition is overinclusive. Former owners and former lessees who did not have their vehicles’ airbags replaced have no claims for damages.

138As I shall explain below in the context of the discussion of the preferable procedure criterion, the right to claim damages for a pure economic loss for a tort claim is prescribed by the need to have the dangerous good removed from being used until it is repaired. Former owners and former lessees who did not have their vehicles airbags replaced have no such need since they are no longer using the Chrysler Canada vehicles. Put bluntly, the problem of vehicles needing to be recalled to have their airbags replaced is not the problem of former owners and former lessees who did not have their airbags replaced before they sold or returned the leased vehicle. The language of the class definition needs to be changed to exclude these former owners and former lessees.

139I disagree with Chrysler Canada’s argument that former owners and former lessees who had their airbags replaced and current owners and current lessees who still are using a vehicle but who have had their vehicle’s airbags replaced should be excluded from the class. At the time the Coles action was commenced, these owners and lessees of Chrysler Canada vehicles had a perfected pure economic loss tort cause of action. These owners and lessees would have a claim for the expense of having the airbags replaced. The quantum of an individual owner or lessee’s claim might be nil if he or she participated in the recall program, but the claim nevertheless would have been a perfected claim. It is now trite law that not every putative class member must have a successful claim in order to be included as a member of the class.

140I conclude that the identifiable class criterion could be satisfied.

M. Common Issues Criterion (s. 5 (1)(c))

1. Common Issues Criterion: General Principles

141The third 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.⁴⁴

142The 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.⁴⁵

143An 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.⁴⁶ 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.⁴⁷ 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.⁴⁸

144The common issue criterion presents a low bar.⁴⁹ 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.⁵⁰ Even a significant level of individuality does not preclude a finding of commonality.⁵¹ 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.⁵²

145From 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.⁵³ 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.⁵⁴

2. Common Issues Criterion: Discussion and Analysis

146The substance of Chrysler Canada’s flaccid argument that there are no common issues for Mr. Coles’ economic loss products liability claim is that he has not met the burden to establish some basis in fact for a compensable loss. This argument might not be glib and weak if Mr. Coles’ pure economic loss claim was for a shoddy but non-dangerous product. But Takata’s airbags have been shown to cause death and injuries, and it is immaterial (and also good luck) that so far there have been no tragic misadventures in Canada.

147Dr. Blomquist’s unimpeached opinion is that all the airbags should be recalled including the ones in Canada because they present a serious danger. Chrysler Canada’s recall notices specify that the airbags are dangerous, and Chrysler Canada has been engaged in what it submits is concerted and ongoing efforts to replace the airbags at no expense precisely because they are dangerous.

148It is risible to submit that there is no basis in fact for common issues based on the recall of the Takata airbags not having demonstrated compensable damages. As I shall explain below in the context of the preferable procedure criterion, the damages for pure economic losses in tort are demonstrable simply because the goods are shown to be dangerous, and they need to be removed from use until they are repaired if it is possible to do so, or they need to be discarded because repairs are not possible. In either event, the consumer has suffered a compensable loss in tort for a pure economic loss once the need to deal with the dangerous product has manifested itself.

149Chrysler Canada’s reliance on MacKinnon v. Volkswagen⁵⁵ and Maginnis v. FCA Canada Inc.⁵⁶ is misplaced. The cases do stand for the proposition that for an action to be certified as a class proceeding, there must be some evidence that two or more putative Class Members suffered compensable harm, but, as discussed further below, the Supreme Court of Canada’s decisions in Atlantic Lottery Corp. Inc. v. Babstock,⁵⁷ and 1688782 Ontario Inc. v. Maple Leaf Foods Inc.,⁵⁸ demonstrate that there is recovery for the pure economic loss of: (a) the expense or having a dangerous product removed from use and repaired; or (b) the expense of having to discard the dangerous product from use. In the immediate case, there is some basis in fact that hundreds of thousands of Chrysler Canada vehicle owners or lessees had a perfected action for a pure economic tort loss.

150I appreciate that the beta-airbags, which are the airbags that are in Chrysler Canada’s vehicles, are substantially less risky than the alpha-airbags, but the beta-airbags have the same design defect, and they are the same ticking time bomb. To its credit, before this class action, Chrysler never took the position that the airbags do not need to be recalled because they were not imminently dangerous. Chrysler Canada has been directed by Chrysler’s VR Committee to treat the Canadian vehicles no different than the American ones.

151The proposed common issues for the negligence claim are normative for class actions and are certifiable with the exception of the punitive and/or aggravated damages question. For the reasons I expressed in Palmer v. Teva Canada Ltd.,⁵⁹ I would not in the immediate case certify the punitive damages question, but my order would be without prejudice to Mr. Coles moving after examinations for discovery to have the common issues amended to add a question about punitive damages. This motion could be brought before or at the common issues trial.

152I conclude that the common issues criterion is satisfied.

N. Preferable Procedure Criterion (s. 5 (1)(d)

1. Preferable Procedure Criterion: General Principles

153Under 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.⁶⁰

154In AIC Limited v. Fischer,⁶¹ 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.⁶² 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.⁶³ 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.⁶⁴

155The recent amendments to the Class Proceedings Act, 1992 have introduced a “superiority” and a “predominance” qualification to the preferable procedure criterion. Section 5 (1.1) of the amended Act states:

(1.1) In the case of a motion under section 2, a class proceeding is the preferable procedure for the resolution of common issues under clause (1) (d) only if, at a minimum,

(a) it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and

(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members.

156Pursuant to the transition provisions of the amended Act, s. 5 (1.1) does not apply to Mr. Coles’ action. That said, as the discussion below will reveal s. 5 (1.1) is prescient of the circumstances of the immediate case where Mr. Coles’ proposed class action is not superior to Chrysler Canada’s existing recall program authorized by the VR Committee.

2. Preferable Procedure Criterion: Discussion and Analysis

157Mr. Coles’ proposed class action does not satisfy the preferable procedure criterion because a class action is not preferable to any alternative method of resolving the claims. Chrysler Canada’s existing recall campaign is preferable to a class action.

158Viewed in isolation from the five other class actions, Mr. Coles’ proposed class action against Chrysler Canada has dawdled and the Coles action has made no meaningful progress for its intended purpose of getting the dangerous airbags replaced before a class member dies or is dismembered.

159The Coles action was commenced in May 2015. The certification motion was argued in August 2022. If the action were certified, a common issues trial is likely two to four years away given the action’s complexity and the availability of long trial dates. This is dawdling plain and simple, and it is no longer possible to make Mr. Coles’ proposed class action preferable to the existing recall program.

160Viewed in the context of the five other class actions, Class Counsel argues that the Consortium did not dawdle in advancing the Mailloux, D’Haene, and Coles actions while concerted and enormous efforts were being made to very advantageously settle the McIntosh, Des-Rosiers, and Stevenson actions. That argument, however, is an explanation for the delay, but it is not an excuse for it. The Consortium overreached. It bit off more than it could chew, and with the passage of time, it is no longer possible to make Mr. Coles’ proposed class action preferable to the existing recall program.

161This is not to say that it would not be preferable for the Coles action to resolve itself as the McIntosh, Des-Rosiers, and Stevenson actions have been resolved. Those actions were very favourably settled for the Class Members; however, a settlement is not a preferable procedure alternative because a settlement cannot be forced.

162Chrysler Canada is not prepared to do more than it is doing, and it now appears that what it is doing is preferable to what Class Members could achieve by a class action. Without regard to s. 5 (1.1) of the amended Class Proceedings Act, 1992, a class action is not the preferable procedure.

163Although s. 5 (1.1) of the amended Act does not apply, the circumstances are such that if it did apply, the preferable procedure criterion would not be satisfied.

164The preferability comparables or alternatives in the immediate case are between a class action judgment and Chrysler Canada’s existing recall program. Because of changes or clarifications in the law about compensable losses in pure economic loss claims for dangerous goods, the settlements in McIntosh, Des-Rosiers, and Stevenson now appear to be overachievements from what can be achieved if the Coles action were prosecuted.

165The 2020 decisions of the Supreme Court of Canada in Atlantic Lottery Corp. Inc. v. Babstock,⁶⁵ and 1688782 Ontario Inc. v. Maple Leaf Foods Inc.,⁶⁶ demonstrate that the legal policy of the law of negligence is that with a few exceptions that can be justified on public policy grounds, tort law leaves pure economic losses to be addressed by the law of contract. There is no breach of contract claim in the immediate case. The Class Members do have a pure economic loss tort claim with respect to damage that has occurred in respect of removing the real and substantial danger presented by the Takata airbags.

166In Atlantic Lottery Corp. Inc. v. Babstock, in their explanation of the law, Justices Brown and Martin explain that the rule from Winnipeg Condominium Corp No 36 v. Bird Construction Co.,⁶⁷ which would compensate a person for the cost of repairing goods was only rationalizable with the general legal principle that there is no compensation for damages that have not yet occurred by recognizing a legal right not to suffer damages from the exposure to an imminent threat to a person’s person or property. Justices Brown and Martin noted that the liability rule in Winnipeg Condominium protects a right to be free of a negligently caused real and substantial danger and does not provide a right to the continued use of goods.

167Justices Brown and Martin explained that the right to compensation for a threat of injury was delimited in availability and in the scope of recovery. There is no compensation if the product defect presents no imminent threat. The scope of recovery is limited to mitigating or averting the danger, and where it is feasible for the plaintiff to simply discard the defective product, the danger to the plaintiff’s economic rights along with the basis for recovery falls away. The law views the plaintiff as having sustained actual injury to its right in person or property because of the necessity of taking measures to put itself or its other property outside the ambit of perceived danger.⁶⁸

168For present purposes, the law takeaway from Atlantic Lottery Corp. Inc. v. Babstock, and 1688782 Ontario Inc. v. Maple Leaf Foods Inc., is that the settlements in McIntosh, Des-Rosiers, and Stevenson were overachievements from what is likely recoverable in Mr. Coles’ proposed class action and what is recoverable in Mr. Coles’ proposed class action is not preferable to the existing recall program being administered by Chrysler Canada.

169Honda, Mazda, Subaru, and Toyota consented to additional economic loss compensation being provided to their customers, but under the current law, Chrysler Canada cannot be forced to provide those additional benefits and Chrysler has proceeded to provide a free of charge replacement of the beta-airbags, which would appear to cover off its responsibility to pay compensatory damages for its liability for manufacturing and distributing vehicles with a dangerous automotive part.

170Because of delay and because of a clarification of the law delimiting the recoveries for pure economic losses for dangerous products the purposes of a class action are no longer served by this class action, which is not the preferable procedure to obtain access to justice, behaviour modification, or judicial economy. I conclude that the preferable procedure criterion is not satisfied in the immediate case. It follows that the class action is not certifiable.

O. Representative Plaintiff Criterion (s. 5 (1)(e))

1. Representative Plaintiff Criterion: General Principles

171The 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.⁶⁹

2. Representative Plaintiff Criterion: Discussion and Analysis

172Chrysler Canada did not dispute that the Representative Plaintiff criterion is satisfied in the immediate case, and I agree.

P. Conclusion

173For the above reasons, I dismiss Mr. Coles’ certification motion.

174If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Chrysler Canada’s submissions within twenty days from the release of these Reasons for Decision, followed by Mr. Coles’ submissions within a further twenty days. I advise the parties that my present inclination is to make no order as to costs against Mr. Coles.

Perell, J.

Footnotes

1. 1S.O. 1992, c.6.
2. 2Chrysler Canada pleads that Transport Canada Recall 2015-003 was superseded by Recall 2015-228.
3. 3Chrysler Canada pleads that Transport Canada Recalls 2015-093 and 2015-094 were superseded by 2015-229.
4. 4S.C. 1993 c. 16.
5. 5Chrysler Canada pleads that Transport Canada Recall 2015-003 was superseded by Recall 2015-228 and Transport Canada Recalls 2015-093 and 2015-094 were superseded by 2015-229.
6. 6S.O. 2009, c. 3; Coles v. Takata Corporation, 2016 ONSC 4885.
7. 7R.S.C. 1985, c. C-36.
8. 8McIntosh v. Takata Corp., 2019 ONSC 1317.
9. 9Stevenson v. Mazda Motor Corp., 2019 ONSC 1323.
10. 10Des-Rosiers v. Takata Corp., 2019 ONSC 2932.
11. 11McIntosh v. Takata Corporation, 2020 ONSC 968.
12. 12Des-Rosiers v. Takata Corporation, 2020 ONSC 8043.
13. 13Coles v. Takata Corporation, 2021 ONSC 1875.
14. 14Mailloux v. Takata Corporation, 2021 ONSC 7654.
15. 15Hollick v. Toronto (City), 2001 SCC 68 at para. 16.
16. 16Hollick 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.
17. 17Hollick 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) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).
18. 18Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445.
19. 19Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 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.).
20. 20Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110.
21. 21Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102.
22. 22Palmer v. Teva Canada Ltd., 2022 ONSC 4690; Marcinkiewicz v. General Motors of Canada Co., 2022 ONSC 2180; MacKinnon v. Volkswagen, 2021 ONSC 5941; Maginnis v. FCA Canada Inc., 2020 ONSC 5462,aff’d 2021 ONSC 3897(Div. Ct.), leave to appeal dismissed April 8, 2022 (Ont. C.A.); 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.
23. 231990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.
24. 24Wright 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.
25. 25Cloud v. Canada (Attorney General) (2004), 2004 CanLII 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), 2003 CanLII 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), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 at p. 469 (Div. Ct.).
26. 26Deluca v. Canada (AG), 2016 ONSC 3865; Losier v. Mackay, Mackay & Peters Ltd., 2009 CanLII 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.
27. 27Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).
28. 28Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).
29. 29Johnson v. Adamson (1981), 1981 CanLII 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.
30. 30Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585 (S.C.J.) at para. 20; Silver v. DDJ Canadian High Yield Fund, 2006 CanLII 21058 (ON SC), [2006] O.J. No. 2503 (S.C.J.).
31. 31Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3.
32. 32Palmer v. Teva Canada Ltd., 2022 ONSC 4690; Carter v. Ford Motor Company of Canada, 2021 ONSC 4138; Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2020 ONSC 1647; Vester v. Boston Scientific Ltd., 2015 ONSC 7950; Arora v. Whirlpool Canada LP, 2012 ONSC 4642 at paras. 264-67, aff’d 2013 ONCA 657, leave to appeal ref’d [2013] S.C.C.A. No. 498; Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095; Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634; Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff’d [1994] O.J. No. 50 (C.A.).
33. 33Vester v. Boston Scientific Ltd., 2015 ONSC 7950; Ragoonanan v. Imperial Tobacco Canada Ltd. (2000), 2000 CanLII 22719 (ON SC), 51 O.R. (3d) 603 (S.C.J.); Rentway Canada Ltd. v. Laidlaw Transport Ltd., [1989] O.J. No. 786 (H.C.J.), aff'd [1994] O.J. No. 50 (C.A.); Nicholson v. John Deere Ltd. (1986), 1986 CanLII 2502 (ON SC), 58 O.R. (2d) 53 (H.C.J.), aff’d [1989] O.J. No. 495 (C.A).
34. 34Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.).
35. 35Arora v. Whirlpool Canada LP, 2012 ONSC 4642 at paras. 264-67, aff’d 2013 ONCA 657, leave to appeal ref’d [2013] S.C.C.A. No. 498; Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., 1995 CanLII 146 (SCC), [1995] 1 S.C.R. 85.
36. 36Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660 Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210; Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634; Lambert v. Lastoplex Chemicals Co., 1971 CanLII 27 (SCC), [1972] S.C.R. 569.
37. 37Burr v. Tecumseh, 2022 ONSC 412at para 173; Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155at para. 334; Pennock v. Aerostar International, Inc., 2012 BCSC 1422at para 52; Houweling Nurseries Oxnard, Inc. v. Saskatoon Boiler Mfg. Co. Ltd., 2011 SKQB 112at para 110; Farro v. Nutone Electrical Ltd., 1990 CanLII 6775 (ON CA), [1990] O.J. No. 492 (C.A.)
38. 38Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.).
39. 39Pearson v. Inco Ltd. (2006), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 at para. 57 (CA), rev'g 2004 CanLII 34446 (ON SCDC), [2004] O.J. No. 317 (Div. Ct.), which had aff'd [2002] O.J. No. 2764 (SCJ).
40. 40Robinson v. Medtronic Inc., 2009 CanLII 56746 (ON SC), [2009] O.J. No. 4366 at paras. 121-146 (SCJ).
41. 41Frohlinger v. Nortel Networks Corporation, 2007 CanLII 696 (ON SC), [2007] O.J. No. 148 at para. 22 (SCJ).
42. 42Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585 at para. 103-107 (SCJ) at para. 103-107, leave to appeal to Div. Ct. refused 2011 ONSC 1035 (Div. Ct.); Boulanger v. Johnson & Johnson Corp., 2007 CanLII 735 (ON SC), [2007] O.J. No. 179 at para. 22 (SCJ), leave to appeal ref’d [2007] O.J. No. 1991 (Div. Ct.); Ragoonanan v. Imperial Tobacco Inc. (2005), 2005 CanLII 40373 (ON SC), 78 O.R. (3d) 98 (S.C.J.), leave to appeal ref’d 2008 CanLII 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.).
43. 43Fehringer v. Sun Media Corp., [2002] O.J. No. 4110 at paras. 12-13 (SCJ), aff’d [2003] O.J. No. 3918 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 21.
44. 44Hollick v. Toronto (City), 2001 SCC 68 at para. 18.
45. 45Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40.
46. 46Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3, 6 (Div. Ct.).
47. 47McKenna 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.).
48. 48Batten 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.
49. 49203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 CanLII 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), 2004 CanLII 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), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 2000 CanLII 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.).
50. 50Cloud v. Canada (Attorney General), (2004), 2004 CanLII 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), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).
51. 51Hodge 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.
52. 52Harrington 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.
53. 53Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185; Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.).
54. 54Simpson 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.
55. 552021 ONSC 5941.
56. 562020 ONSC 5462,aff’d 2021 ONSC 3897(Div. Ct.), leave to appeal dismissed April 8, 2022 (Ont. C.A.).
57. 572020 SCC 19.
58. 582020 SCC 35.
59. 592022 ONSC 4690.
60. 60Markson 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.
61. 612013 SCC 69 at paras. 24-38.
62. 62Cloud v. Canada (Attorney General) (2004), 2004 CanLII 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), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).
63. 63Markson v. MBNA Canada Bank, 2007 ONCA 334; Hollick v. Toronto (City), 2001 SCC 68.
64. 64Musicians’ 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.
65. 652020 SCC 19.
66. 662020 SCC 35.
67. 671995 CanLII 146 (SCC), [1995] 1 S.C.R. 85.
68. 68Carter v. Ford Motor Company of Canada, 2021 ONSC 4138at para 104, citing 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35.
69. 69Drady v. Canada (Minister of Health), 2007 CanLII 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.).