Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2022 ONSC 6436

COURT FILE NO.: CV-14-497479-00CP

DATE: 20221116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER SCOTT HARRIS

Plaintiff

• and -

BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.

Defendants

Kathryn Podrebarac, Margaret L. Waddell and Flora Yu for the Plaintiff

Peter Pliszka, Kimberly E. Potter, Chad Pilkington, and Tina Cody for the Defendants

Proceeding under the Class Proceedings Act, 1992

HEARD: In writing

PERELL, J.

REASONS FOR DECISION

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure. [The Gettysburg Address by Abraham Lincoln]

[1] Nine years ago, pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiff, Peter Scott Harris, sued Bayerische Motoren Werke Aktiengesellschaft (“BMW-AG”), a German corporation, and BMW Canada Inc., a Canadian corporation (collectively “BMW”). Now we are engaged in a great procedural battle, testing whether that action or any action so conceived, and so dedicated, can long endure.

[2] The action has been certified as a class action pursuant to the Class Proceedings Act, 1992.[^2] As I explain in Reasons for Decision being simultaneously released with these Reasons, the action has been sidetracked by procedural distemper.[^3] I incorporate those Reasons into this decision. This Refusals Motion can be added to the list of motions suffering from Meta-Motion Distemper.

[3] The motion now before the court is a Refusals Motion. Mr. Harris seeks the following Order:

(a) An Order that Daniel Wortmann answer questions improperly refused at his examination as a witness on a pending motion, held August 11, 2022, as set out in [the UNANSWERED UNDERTAKING AND REFUSALS CHART OF DANIEL WORTMANN], by November 24, 2022;

(b) An Order that Gordon Farrish answer questions improperly refused at his examination as a witness on a pending motion, held August 10 and 17, 2022, as set out in [the REFUSALS CHART OF GORDON FARRISH] by November 24, 2022;

(c) Costs of this motion; and

(d) Such further and other relief as counsel may request and this Honourable Court may allow.

[4] This Refusals Motion is brought pursuant to my File Direction dated October 6, 2022 in the context of the Plaintiff’s “Phase 2 Motion” to: (1) impose a Discovery Plan, (2) compel BMW to produce further and better Affidavits of Documents, and (3) challenge certain of BMW’s claims of privilege. Answers are sought by November 24, 2022 to permit Mr. Harris sufficient time to review and rely on those answers in his Phase 2 factum, which is required to be delivered on December 1, 2022.

[5] The so-called Phase 2 motion, for which this refusals motion is ancillary, is scheduled to be heard on January 5, 2023.

[6] In the Phase 2 motion, Mr. Harris seeks the following Order:

1. An order imposing a discovery plan in the form attached as Schedule “A”, pursuant to Rule 29.1.05(2);

2. An order granting the Plaintiff leave to examine the Defendants Bayerische Motoren Werke Aktiengesellschaft (BMW-AG) for 35 hours and the Defendant BMW Canada Inc. for 14 hours, pursuant to Rule 31.05.1;

3. An order that the transcript from the cross-examination of the Plaintiff on the motion for certification shall form part of the Plaintiff’s examination for discovery, and that the Defendants shall not ask the same questions as those posed in the cross-examination transcript;

4. A declaration that the Plaintiff’s examination for discovery of the representative of BMW-AG shall be by video conference, using a court reporter and video conferencing facilities located in Toronto, and shall be deemed to be an examination inside Ontario such that attendance money and a letter of request are not required in the circumstances;

5. An order that the transcript from the cross-examination of Gordon Farrish on the motion for certification shall form part of BMW Canada’s examination for discovery, and that the Plaintiff shall not ask the same questions as those posed in the cross-examination transcript;

6. An order requiring the Defendants to serve further and better affidavits of documents in compliance with the Rules and the court-approved discovery plan within 30 days;

7. Costs of this motion, fixed and payable forthwith; and

8. Such further or other relief as counsel may request and this Honourable Court deems just.

[7] The Unanswered Undertakings and Refusals Chart of Mr. Wortmann is set out below. The chart includes the dispositions by the court, which I shall explain below.

UNANSWERED UNDERTAKING AND REFUSALS CHART OF DANIEL WORTMANN

Question No.

Page No

Undertaking

Answer or precise reason for not doing so

Disposition by Court

158

57-58

To make best efforts to provide a list of all department codes and the corresponding department names used by BMW AG and its authorized distributors of Class Cars that are contained in the documents that BMW AG has produced in its Affidavit of Documents.

Counsel for BMW AG agreed to “supplement” the information already provided to the plaintiff “if it doesn’t contain the information that [plaintiff] need[s]”, but to the extent those codes have changed, counsel undertook to provide them “on a best efforts basis, because it might or might not exist”.

1. Without prejudice to questions at examination for discovery, no further information need be provided in furtherance of undertaking.

REFUSALS

Issue & Relationship to pleadings in affidavit

Question No.

Page No.

Specific Question

Basis for Refusal

Disposition by Court

Questions regarding the process undertaken to compile the Defendants’ Affidavits of Documents

24-25

12

To advise who Mr. Wortmann spoke to, outside of legal counsel, before swearing the Affidavit of Documents.

Refused – Under consideration

2. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

196

71

To advise what search terms were used in BMW AG’s diligence search of its records.

Refused – Privileged.

3. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

323

115

To advise whether Mr. Wortmann agrees that he has an obligation to produce relevant documents even if they are publicly available records.

Refused – not relevant

4. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

Questions regarding missing relevant documents and missing categories of relevant documents

314

112

To advise whether BMW AG directly or indirectly owns BMW Canada Inc. and BMW North America Inc.

Refused – not relevant

5.Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

315

113

To advise which markets the class cars have been recalled, either in whole or in part, around the world.

Refused – not relevant

6. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

316

113

To advise if the class cars have been recalled, in whole or in part, in the US, Japan, Korea, and China.

Refused – not relevant

7. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

317

113-114

To advise whether BMW AG has produced recall notices issued in the various countries in which class cars have been recalled.

Refused – not relevant

8. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

318

114

To advise whether all communications between BMW AG and its distributors and regulators around the world regarding the alleged defects have been produced.

Disproportionate.

9. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

319

114

To advise whether an up-to-date list of all reports that BMW AG or its distributors around the world have received regarding the alleged defects have been produced.

Disproportionate.

10. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

322

115

To advise whether Mr. Wortmann agrees that all of the documents relating to BMW’s interaction with its regulators in which it has been alleged that BMW AG and/or its distributors have concealed defects from their regulators have not been produced in the Affidavit of Documents.

Refused – not relevant

11. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

Questions regarding missing custodians of relevant documents, and the Defendants’ corporate structure

242

85

To confirm whether the individual who is shown as being employed in the “corporate quality” as of 04-2007 aka “Dr. K” is not on the custodian list marked as Exhibit 2.

Refused – not relevant

12. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

249

88

To advise whether Mr. Wortmann agrees that the head of Mini plant would be aware of the power steering pumps and components that were being supplied to repair or replace class cars worldwide.

Refused – not relevant

13. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

311

110-111

To advise whether BMW AG directly or indirectly controls the corporations that are the distributors of the vehicles in the markets around the world.

Refused – not relevant

14. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

314

112

To advise which entities around the world that distribute class cars are owned directly or indirectly by BMW AG.

Refused – Not relevant. Disproportionate.

15. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

[8] The Refusals Chart of Mr. Farrish is set out below. The chart includes the dispositions by the court, which I shall explain below.

REFUSALS CHART OF GORDON FARRISH

Issue & Relationship to pleadings in affidavit

Question No.

Page No.

Specific Question

Basis for Refusal

Disposition by Court

Questions regarding the process undertaken to compile the Defendants’ Affidavits of Documents

207

69

To advise what types of documents were identified by BMW Canada as being relevant to search for the Affidavit of Documents.

Privileged.

1. Refusal justified on grounds of privilege

225

76

To advise what search terms were used to search for relevant documents in Mr. Farrish’s possession that are relevant to the litigation.

Privileged.

2. Refusal justified on grounds of privilege

32-33

16

To advise who Mr. Misura’s predecessor was in the role of after sales system specialist.

Refused - Not relevant

3. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

35

17

To advise who occupied the roles of after sales system specialist, quality and technical manager, or operations manager/customer care prior to Mr. Misura and Mr. Morello.

Refused - Not relevant

4. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

43

20

To provide an organization chart for BMW Canada’s departments.

Under consideration.

5. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

44

20

To advise whether BMW Canada generates organization charts.

Under consideration.

6. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

61

25-26

To advise whether Mr. Farrish received confirmation that PUMA had been searched before swearing the Affidavit of Documents.

Refused - Not relevant

7. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

97

35

To advise who is/has been responsible for inspecting vehicles for potential power steering defects on behalf of BMW Canada from 2002 to present

Refused – Not relevant

8. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

101-102

37

To produce a list of department codes for BMW Canada.

Refused

9. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

172

59

To inquire if Mr. Scarlett has inspected any vehicles that are part of the class cars and subject to the alleged defect.

Under consideration

10. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

173

59

If it is determined that Mr. Scarlett inspected class vehicles subject to the alleged defect, to produce any documents that he has in connection with his inspections of said vehicles.

Under consideration

11. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

174

59

To make inquiries to determine what individuals have inspected vehicles that are alleged to have suffered from a power steering defect that is the subject matter of the litigation from 2002 onwards.

Under consideration

12. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

235

82-83

To advise why Mr. Farrish copied Martin Rapaport on the e-mail which is document BMWCA00001319 [Exhibit 5].

Refused - Not relevant

13. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

156

70

To advise if BMW AG has disclosed in its affidavit of documents all the documents that Mr. Farrish is aware of that are relevant to matters in this litigation.

Refused - Not relevant

14. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

Questions regarding missing relevant documents and missing categories of relevant documents

36-37

17-18

To have Mr. Farrish identify where in BMW Canada’s affidavit of documents are the Siebel records referred to in column F of BMWCA0001478 [Exhibit 7]

Refused - Not relevant

15. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

41

23

Is there a product critical quality control monitoring process as described in the first two paragraphs of BMWCA0001305 [Exhibit 8]?

Refused - Not relevant

16. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

42

24

Identify where the initial reports and analyses that were sent to BMW AG’s corporate quality department for further analysis and action in respect of each of the entries in document BMWCA0001262 [Exhibit 3].

Refused - Not relevant

17. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

43

24-25

Identify reports and analyses that were purportedly sent by BMW Canada to BMW AG at any point in time.

Refused - Not relevant

18. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

43

26

To identify whether reports and analyses that were purportedly sent by BMW Canada to BMW AG (as referenced in BMWCA0001305 [Exhibit 8]) exist and, if they did exist but no longer do, to disclose why they aren’t listed in Schedule C.

Refused - Not relevant

19. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

56-57

31

Where in BMW Canada’s systems would the alleged defect relating to Mr. Tkach’s vehicle be logged?

Refused - Not relevant

20. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

58

32

To advise whether BMW Canada has an obligation, as a part its product safety critical quality monitoring process, to report every customer complaint (whether it is in litigation or not) to BMW AG.

Refused - Not relevant, Privileged.

21. Refusal justified on grounds of prematurity, materiality, relevance and proportionality to motions before the court

[9] As is apparent from these charts, there are 15 refusals attributable to Mr. Wortmann and 21 refusals attributable to Mr. Farrish. As is apparent from these charts, Mr. Harris submits that the questions that should have been answered fall into three categories of relevancy; namely: (a) questions regarding the process undertaken to compile the Defendants’ Affidavits of Documents; (b) questions regarding missing relevant documents and missing categories of relevant documents; and (c) questions regarding missing custodians of relevant documents, and the Defendants’ corporate structure.

[10] As is also apparent from these charts, the Refusals Motion is dismissed in its entirety. My explanation for dismissing the motion follows.

[11] The explanation may begin by setting out the rules of the Rules of Civil Procedure[^4] that are relevant to the Phase 2 motion and to this Refusals Motion.

a. The rules that are referred to in Mr. Harris’s Notice of Motion are rules 1.04 (1), 1.06, 1.08 (1) 3, 1.08 (8), 29.1.03, 29.1.05, 30.02, 30.03, 30.04 (6), 30.06, 30.08 (2), 30.1.01 (1)(a)(i), 30.1.01 (3), 31.03 (2), 31.05.1 (1) and (2), 31.06 (3), 34.01 (a), 34.07 (1), 34.08, and 34.09, and 39.03.

b. In its factum, BMW referred to rules 1.04 (1), 104(1.1), 29.2.02, 29.02.02, 29.2.03, 30.01, 30.02, 30.03. 30.04, 30.05, and 39.03.

c. I would add rules 29.1.01, 29.1.02, 29.2.01, 30.08 (1), 30.09, 30.1.01, 31.03 (1), 31.06 (1), 31.06 (2), and 37.10 (10).

[12] In order to understand my reasons for dismissing Mr. Harris’s motion in its entirety, it is necessary to understand the unusual, in the sense of peculiar and abnormal, procedural background to the Discovery Plan Motion (the Phase 2 motion scheduled for January 5, 2023).

[13] A comprehensive and detailed chronology of the procedural background to this Refusals Motion and to a motion by BMW that I heard on October 25, 2022 may be found in the Reasons for Decision that I have incorporated into these Reasons for Decision. For present purposes of this refusals motion, I highlight the following procedural events that are pertinent to the Refusals Motion:

1. On January 30, 2014, Mr. Harris (along with then co-plaintiffs John Tkach and Dylan Milmine) commenced a proposed class action against BMW by notice of action. The action is on behalf of all persons or entities in Canada who are or were owners or lessees of certain MINI Cooper vehicles. Mr. Harris alleges that the vehicles contain defective power steering components, which can cause loss of power steering, and/or a car fire.

2. On December 4, 2018, Mr. Harris delivered his Motion Record for Certification.

3. On March 4, 5, and 6, 2020 over six years after the commencement of the action, the certification motion was argued.

4. On April 2, 2020, I certified the action as a class action. The certified common issues are:

5. Were the Class Cars designed and manufactured by Bayerische Motoren Werke Aktiengesellschaft (BMW-AG) with one or more design or manufacturing defects that can cause the loss of power steering assist, engine component melting or smouldering, and/or a vehicle fire (a Defect)?

6. If the answer to Common Issue #1 is yes, is any such Defect dangerous and/or does any such Defect render the Class Cars unfit for their intended purpose?

7. If the answer to Common Issue #2 is yes, when did the Defendants know or ought they to have known of the dangerous Defect(s)?

8. Did BMW-AG owe a duty of care to the Class Members with respect to the design, manufacturing, and/or testing of the Class Cars?

9. If so, did BMW-AG breach the standard of care owed to Class Members in respect of the design, manufacturing, and/or testing of the Class Cars?

10. Did BMW-Canada, Inc. (BMW-Canada) owe a duty of care to the Class Members with respect to the distribution of the Class Cars?

11. If so, did BMW-Canada breach the standard of care owed to the Class Members by distributing the Class Cars containing a dangerous Defect?

12. Did the Defendants, or either one thereof, owe a duty of care to (i) warn the Class Members of the dangerous Defect(s), and/or (ii) to recall and repair the Class Cars?

13. If so, did either or both of the Defendants breach the relevant standard of care by failing to warn the Class Members of the dangerous Defect(s), and/or (ii) failing to recall and repair the Class Cars?

14. Can the Class Members assert a claim for pure economic loss, including the cost of repairs to the Class Cars, and diminution in value of the Class Cars?

15. If the answer to Common Issue #10 is yes, what is the cost to repair the Defect(s)?

16. Can the Class Members elect to waive the tort and seek disgorgement of the profits earned by the Defendants on the Class Cars? If so, what is the amount of such profit?

17. Does the conduct of the Defendants, or either one thereof, warrant an award of punitive damages? If so, in what amount?

18. On July 11, 2020, Class Counsel wrote to BMW’s Counsel regarding BMW’s document collection process and about Mr. Harris’s expectations regarding documentary production and disclosure. BMW’s Counsel did not reply to this correspondence.

19. On November 9, 2020, seven months after the release of the certification decision, Class Counsel delivered a draft Discovery Plan.

20. On August 27, 2021, after 15 follow-up requests, BMW’s Counsel delivered its responses to the draft Discovery Plan.

21. On October 28, 2021, BMW advised Class Counsel that it would be producing and disclosing documents pursuant to Germany’s Federal Data Protection Act and Germany’s Telecommunications Act, i.e., BMW-AG advised Class Counsel that it would produce its documents with redactions of personal data.

22. On November 17, 2021, Mr. Harris rejected BMW’s proposed revisions to the Discovery Plan. Mr. Harris indicated that he would bring a motion to settle the Discovery Plan.

23. On December 6, 2021, Mr. Harris served his motion to settle the Discovery Plan. The Motion Record was amended by Notice of Motion dated May 19, 2022. Mr. Harris’s Motion Record for the motion to settle the Discovery Plan comprised eight volumes (3,119 pages). The motion was supported by affidavit evidence from: (a) Gordon Farrish, who is the Senior Safety and Environmental Compliance Manager at BMW-Canada [His affidavit was from the certification motion.]; (b) Pamela Peters, who is a law clerk at Waddell Phillips Professional Corporation, co-Class Counsel; (c) Dr. Carlo Piltz, who was retained by Mr. Harris as an expert witness with respect to relevant matters of foreign privacy law; and (d) Tina Yang, who is a lawyer at Waddell Phillips Professional Corporation, co-Class Counsel.

24. On December 15, 2021, BMW retained Dr. Jürgen Hartung to provide an opinion about the application of the European Union’s General Data Protection Regulation and of Germany’s Federal Data Protection Act.

25. On January 14, 2022, BMW delivered its Motion Record for its motion seeking a declaratory order that BMW-AG produce its documents in this action in accordance with the “layered approach” described in Dr. Hartung’s affidavit and his expert’s report of the same date.

26. Also on January 14, 2022, BMW delivered its Responding Motion Record to Mr. Harris’s Discovery Plan Motion. The motion record contained the affidavit of Kimberly E. Potter. Ms. Potter is a partner of Fasken Martineau DuMoulin LLP, Counsel for BMW.

27. On January 18, 2022, there was a case management conference at Mr. Harris’s request. After the conference, by File Direction, I directed BMW to deliver its Affidavits of Documents by March 31, 2022, with redactions from BMW-AG as may be advised. The direction provided that whether any redactions were acceptable was a matter to be determined on a motion scheduled for August 10, 2022. That motion was eventually rescheduled for October 25, 2022.

28. Pausing here in the narrative of the procedural background, it most be noted that it was pursuant to my direction that documentary discovery get underway before the Discovery Plan was settled. This inversion of having documentary production begin before settling the Discovery Plan was my false hope of getting the class action back on track. I will return to this Alice in Wonderland feature of this action below. [“No, no! said the Queen. “Sentence first – verdict afterwards.”]

29. In April 2022, BMW delivered to Class Counsel a database of 15,838 documents with redactions of personal data purportedly in compliance with the European Union’s General Data Protection Regulation and with Germany’s Federal Data Protection Act.

30. On May 7, 2022, BMW-AG delivered an Affidavit of Documents from its senior in-house litigation counsel, Daniel Wortmann of Munich, Germany. The documents were redacted for personal data.

31. On May 7, 2022, BMW-Canada delivered an Affidavit of Documents from Gordon Farrish of Brampton, Ontario, the Senior Manager, Authority and Vehicle Regulatory Affairs.

32. On June 10, 2022, BMW delivered a Reply Motion Record to Mr. Harris’s Discovery Plan Motion. The motion record was comprised of: (a) an affidavit from Dr. Hartung responding to Dr. Piltz’s opinion; and (b) an affidavit from Anthony Benevides. Mr. Benevides is the Manager of E-Discovery Services at Fasken Martineau DuMoulin LLP, BMW’s Counsel in this action.

33. On June 21, 2022, there was a case management conference. At this conference, I cancelled the motion scheduled for August 10, 2022. I directed the parties to meet and confer about a new approach to resolve their disputes about the Discovery Plan.

34. On July 6, 2022, there was a case management conference. I made the following File Direction, which summarized the events of 2022:

35. The Plaintiffs have brought a motion to settle a discovery plan. The Defendants have brought what is in effect a cross-motion to determine the manner of documentary discovery in accordance with certain privacy restrictions imposed by German law.

36. On January 18, 2022, I set a timetable that would have resolved the motions by August 10, 2022.

37. After January 18, 2022, the parties began the process of delivering affidavits of documents and preparing for the August motion.

38. Then, matters became procedurally clogged. A series of case management conferences followed on May 9, 2022, June 21, 2022, and today, July 6, 2022 to address the exacerbating blockage.

39. The procedural constipation was a result of:

a. motion creep, because both parties kept changing their requests for relief in their competing motions;

b. delays, discrepancies, and difficulties in affidavit of documents’ documentary production, which delays, discrepancies, and difficulties were associated, amongst other things, with the motion creep and the Defendants’ changing plans about how to proceed within the privacy restrictions imposed by German law.

c. problems about whether a temporary or permanent confidentiality order was needed; and,

d. a problem about some inadvertent disclosure of documents in a form that may have contravened the German privacy legislation.

7. At the case management conference on June 21, 2022, it was painfully obvious that the original August deadline for the competing motions was not going to happen. I cancelled that date.

8. At the June 21, 2022, case management conference, I suggested to the parties that they meet and confer about either: (a) a new timetable for both motions, i.e., an omnibus motion; or (b) a new timetable to resolve the Defendants’ motion first.

9. At the June 21, 2022 case management conference, the parties agreed to hold October 25, 2022 for the hearing of the omnibus motion or the defendant’s motion.

10. The parties did meet and conferred. However, they did not agree.

11. The Plaintiff wishes to proceed by an omnibus motion, and the Plaintiff suggested the following timetable: […]

12. The Defendants wish to proceed by having their motion heard first. They submit that the hearing of their motion will likely greatly reduce the disputed issues about the competing discovery plans of the parties.

13. The Defendants proposed the following timetable for their motion: […]

14. At the case conference today, I discussed with the parties whether the omnibus motion could be completed in one day (the scheduled October 25, 2022). I also discussed an alternative approach, which I described as a bifurcated motion.

15. The idea of a bifurcated motion would be that:(a) October 25, 2022 would be utilized to resolve the Defendants’ original motion (i.e., without the motion creep), then (b) I would release Reasons for Decision and then (c) there would be another round of factums; and then (d) the bifurcated motion would be completed on January 5, 2023.

16. After hearing from the parties, I reserved my decision. […]

17. And, in the meantime, the parties were directed to proceed on a timetable that would involve the completion of the evidentiary record for both the omnibus motion and the bifurcated motion.

18. Having reviewed the parties’ materials submitted for the several case management conference and having given the matter some thought, I have decided that the bifurcated motion approach is the way to proceed.

19. On August 10 and 17, 2022, Mr. Farrish was cross-examined. He was asked 409 questions.

20. On August 11, 2022, Mr. Wortmann was cross-examined. He was asked 323 questions on his examination.

21. On October 25, 2022, BMW’s motion (the Phase 1 motion) came on for a hearing. I reserved judgment.

22. By November 8, 2022, I had received the parties’ motion materials for this - in writing - refusals motion.

23. Contemporaneous with the release of this decision on Mr. Harris’s Refusals Motion, I am releasing my decision on the motion I heard on October 25, 2022. In that decision, I dismiss or grant, it’s hard to tell which one it is, BMW’s motion on terms that BMW-AG comply with a modified rule 30.03 and Form 30B of the Rules of Civil Procedure.

[14] There are four points to emphasize from this abnormal and peculiar procedural background for the purposes of this Refusals Motion.

a. First, beginning in the summer of 2020 and continuing to the winter of 2023, Class Counsel and BMW’s Counsel have been unable to agree about a Discovery Plan. (Some of the reasons why the lawyers cannot agree about most anything are set out in the Reasons for Decision being released simultaneously with these Reasons.)

b. Second, had Class Counsel and BMW’s Counsel been able to agree about a Discovery Plan, then pursuant to rule 29.1.03 (3) of the Rules of Civil Procedure, they would have, amongst other things, come to an agreement about: (a) the scope of documentary discovery taking into account relevance, costs and the importance and complexity of the issues in the particular action; (b) dates for the service of each party’s affidavit of documents (Form 30A or 30B); and (c) information respecting the timing, costs and manner of the production of documents by the parties and any other persons.

c. Third, because ten months ago I had the false hope of getting an eight-year-old class action train to make some progress, I directed BMW to deliver its Affidavits of Documents by March 31, 2022 before settling the Discovery Plan. I had hoped that this old school solution where the parties just went ahead and swore affidavits of documents after the close of pleadings would allow the action to make progress and also provide some focus or context for the Discovery Plan motion.

d. Fourth, what is now before the court is a Refusals Motion, it is not the Discovery Motion, which has within it a motion for further and better affidavits. A Refusals Motion is a meta-motion, a motion about another motion.

[15] It is in these circumstances that Mr. Wortmann and Mr. Farrish refused to answer questions about: (a) how their Affidavits of Documents were processed; (b) missing relevant documents and missing categories of relevant documents; and (c) missing custodians of relevant documents, and (d) BMW’s corporate structure.

[16] In the charts above, I have set out the particular reasons why each of the questions posed to Mr. Wortmann and Mr. Farrish need be answered but there is an overriding reason why all of the questions need not be answered.

[17] The overriding reason is that in some sort of quantum physics of irrelevant questioning, Class Counsel is asking questions about the scope of BMW’s Affidavits of Documents without determining what atom it is splitting. Until the Discovery Plan is settled, Class Counsel’s questioning aims at a target that does not yet exist. It may be that some of Mr. Harris’s questions or concerns or objections or complaints about BMW’s Affidavits of Documents are material and relevant, but how is the court to determine whether BMW’s Affidavits of Documents hit the relevancy target before determining whether the target is bigger or smaller than a barn door?

[18] Since in accordance with rule 29.1.03 (3), the parties on consent have not determined the scope of documentary discovery taking into account relevance, costs and the importance and complexity of the issues in the particular action, the scope of the questions will be determined by the court on January 5, 2023 at the Discovery Plan motion.

[19] For the moment, it is both premature to ask questions about what is relevant and also presumptuous to ask questions about missing relevant documents and missing categories of relevant documents when the scope of documentary discovery and examinations for discovery remain to be determined taking into account relevance, costs and the importance and complexity of the issues in this particular action.

[20] The scope of documentary discovery is the essential topic of the motion scheduled for new year. With respect to the Discovery Plan Motion scheduled for January 5, 2023, I shall determine the scope of the documentary discovery, and I may - but I may not - decide whether BMW’s affidavit is already compliant with the scope of the Discovery Plan as it will then be determined to be.

[21] With the release of my contemporaneous decision, BMW-AG has already been directed to deliver a revised Affidavit of Documents. On the Discovery Plan Motion, I may - but I may not decide - whether BMW-AG’s revised Affidavit of Documents is compliant with the scope of the Discovery Plan as it will then be determined to be.

[22] I also agree with BMW’s argument that the questions Mr. Wortmann and Mr. Farrish refused to answer were: (a) irrelevant to the context of the Discovery Plan Motion and in some instances irrelevant to the pleaded issues for the common issues trial; (b) in the nature of an unofficial advance examination for discovery; (c) disproportionate; or (d) privileged information.

[23] It must not be lost sight of that this Refusals Motion is not the Discovery Plan Motion nor is it a motion about what may or may not be proper questions once the discovery plan is determined. This Refusals Motion is about the scope of the cross-examination of Mr. Wortmann and Mr. Farrish for the purposes of the Discovery Plan motion.

[24] The key determinant of the scope of cross-examinations on an affidavit is relevancy, but the relevancy is determined by reference to the matters in issue on the motion in respect of which the affidavit has been filed and by the matters put in issue by the deponent’s statements in the affidavit. The scope of the cross-examination for an application or motion only coincidentally will be commensurate with the scope of an examination for discovery.[^5]

[25] By and large, Mr. Wortmann and Mr. Farrish were questioned about matters that may or may not be proper questions later, but in my opinion, at the present time, they were justified in refusing to answer any of the questions for which Mr. Harris has moved for answers.

[26] Class Counsel asked Mr. Wortmann and Mr. Farrish questions about the search terms for the Affidavits of Documents. Apart from the peculiarity in the immediate case, that those search terms remain to be settled, a party’s position about search terms is a matter of litigation privilege.[^6] This is because “a party’s selection of search terms may disclose something about counsel’s approach or theory of the case, which has traditionally been subject to litigation privilege.”

[27] The selection of search terms remains to be determined and the position of the parties is not particularly pertinent. What is pertinent is the parties’ respective pleadings and in the immediate case, the common issues.

[28] In addition to these overriding reasons to dismiss Mr. Harris’s Refusals Motion, there are particular reasons for upholding BMW’s refusals. Those reasons are noted in the charts above.

[29] For the above reasons, Mr. Harris’s motion is dismissed.

[30] If the parties cannot agree about the matter of costs of this Refusals Motion, they may make submissions in writing beginning with BMW’s submissions within twenty days from the release of these reasons for decision, followed by Mr. Harris’s submissions within a further twenty days.

Perell, J.

Released: November 16, 2022

COURT FILE NO.: CV-14-497479-00CP

DATE: 20221116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER SCOTT HARRIS

Plaintiff

• and -

BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT and BMW CANADA INC.

Defendants

REASONS FOR DECISION

PERELL J.

Released: November 16, 2022

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

[^2]: S.O. 1992, c. 6.

[^3]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2022 ONSC 6435

[^4]: R.R.O. 1990, Reg. 194.

[^5]: Ontario v. Rothmans Inc., 2011 ONSC 2504 at para. 142.

[^6]: Falsetto v. Salvatore Fillipo Falsetto a.k.a. Sam Falsetto, 2021 ONSC 4168 (Master); Liquor Barn Income Fund v. Mather, 2011 BCSC 618 at paras. 82-87.