Court File and Parties

Court File No.: CV-16-543763-00CP Date: 2023-11-30 Ontario Superior Court of Justice

Between: Jeff Mailloux, Plaintiff And: Nissan Canada Inc., Defendant Proceeding under the Class Proceedings Act, 1992

Counsel: Harvey T. Strosberg, KC, Justin Smith, Michael J. Peerless and Sabrina Lombardi for the Plaintiff John Nicholl, George Karayannides, and Mark Mandelker for the Defendant

Heard: In writing

Perell, J.

Reasons for Decision

[1] In this proposed class action pursuant to the Class Proceedings Act, 1992, [1] the Plaintiff Jeff Mailloux sues Nissan Canada Inc.

[2] Because of a much changed litigation landscape, Class Counsel and Mr. Mailloux bring a motion pursuant to s. 29 of the Act for leave to discontinue the proposed class action with prejudice and without costs. Nissan consents to the motion.

[3] For the reasons that follow, the motion is granted.

[4] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal, or settlement of a proceeding commenced under the Act. Section 29 states:

Discontinuance, abandonment and settlement

29. (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.

Settlement without court approval not binding

(2) A settlement of a class proceeding is not binding unless approved by the court.

Effect of settlement

(3) A settlement of a class proceeding that is approved by the court binds all class members.

Notice: dismissal, discontinuance, abandonment or settlement

(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,

(a) an account of the conduct of the proceeding;

(b) a statement of the result of the proceeding; and

(c) a description of any plan for distributing settlement funds.

[5] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced. [2]

[6] On April 10, 2015, Mr. Mailloux commenced his proposed class action. His lawyers and proposed Class Counsel are Strosberg Sasso Sutts LLP and McKenzie Lake Lawyers LLP. These firms are the lead counsel and part of a consortium that was assembled to prosecute the claim against Nissan and co-Defendants Takata Corporation and TK Holdings Inc.

[7] On January 12, 2016, carriage was granted to: Strosberg Sasso Sutts LLP; McKenzie Lake Lawyers LLP; Kim Orr Spencer McPhee Barristers; Merchant Law Group; Consumer Law Group; and Rochon Genova LLP, which together comprised a Consortium of proposed class counsel.

[8] The Carriage Order also stayed four cases pending the outcome of this action. The four stayed actions have since been dismissed. [3]

[9] The proposed class action was a products liability claim for pure economic losses. The claim concerned the design, manufacture, and installation of defective Takata airbag inflators in Nissan’s vehicles. The vehicles had been the subject of numerous Transport Canada recalls.

[10] The proposed class was all persons resident in Canada, except “Excluded Persons”, who own, owned, lease or leased one of the subject vehicles.

[11] Nissan delivered its Statement of Defence on August 26, 2016.

[12] This action was dismissed against Takata Corporation and TK Holdings Inc., on November 19, 2021 because of its bankruptcy and insolvency.

[13] In the years after the action was commenced, the law with respect to the compensation available for pure economic loss from the negligent supply of faulty goods came under review. The law changed. One result was that the litigation risk associated with the action greatly increased. The prospects of a substantial economic recovery for the class members was greatly diminished.

[14] The Supreme Court of Canada clarified the law delimiting the recoveries for pure economic losses for dangerous defective products, establishing that: (a) apart from a few exceptions, tort law leaves pure economic losses to be addressed by the law of contract; (b) there is no right to compensation for a threat of injury unless the product defect presents an imminent threat; (c) the scope of recovery is limited to mitigating or averting the danger presented by the defective product; and, (d) to the extent that it is feasible for the plaintiff to simply discard the defective product, the danger to the plaintiff’s economic rights as well as the basis for recovery fall away. [4]

[15] As a result of these changes in recoverable compensation for negligence resulting from dangerous goods, the prospect of a substantial award for class members has been significantly reduced.

[16] When the action was first commenced, a substantial award appeared possible. However, in light of the changes to this area of the law and the diminished prospects for economic value in this proposed class action, the consortium is no longer prepared to take on the risks of prosecuting Mr. Mailloux’s proposed class action.

[17] Mr. Mailloux has instructed counsel to discontinue this action.

[18] I am satisfied that Mr. Mailloux’s action was commenced for a proper purpose and the test for a discontinuance has been satisfied in the immediate case.

[19] The putative class members are not prejudiced by the discontinuance and the proposed notice to them is adequate in all the circumstances.

[20] Pursuant to s 28(1) of the Class Proceedings Act, 1992, the limitation periods applicable to the causes of action asserted in this proposed class action have been suspended in favour of the proposed Class since the commencement of this Action and will remain suspended until this Action is discontinued; therefore, any putative Class Members who wish to commence an individual action is not prejudiced by the elapsed time in this present action. [5]

[21] There exists a great deal of litigation risk associated with this particular proposed class action such that, in any event, success would be far from guaranteed at the certification motion and/or on the merits of the action in the future.

[22] No useful purpose would be served by refusing leave to discontinue the proposed class action. [6]

[23] I am satisfied that the proposed notice and notice plan is satisfactory for the circumstances of the immediate case. I approve the following notice:

Notice of Discontinuance of Ontario Superior Court of Justice Court File No. CV-16-543763-00CP Against Nissan Canada Inc.

A lawsuit was commenced in April of 2015 against NISSAN CANADA INC. in the Ontario Superior Court of Justice. The lawsuit was commenced as a proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6, alleging claims pursuant to the common law and certain consumer protection statutes.

The lawsuit advanced a proposed class defined as all persons resident in Canada, except Excluded Persons, who own, owned, lease or leased one of the Vehicles. The Vehicles at issue include the following:

MAKE	MODEL	MODEL YEARS: INCLUSIVE
NISSAN	MICRA	2015
	PATHFINDER	2002 2003 2004
	SENTRA	2002 2003 2004 2005 2006
	MAXIMA	2001 2002 2003
	X-TRAIL	2004 2005 2006
INFINITI	FX35	2003
	FX45	2003
	I35	2001 2002 2003
	QX4	2002 2003
	QX56	2013
	QX80	2014

The plaintiff claimed damages arising from alleged negligence, breach of warranties, and unjust enrichment due to alleged safety defects in Takata airbag inflators covered by twenty-five Transport Canada Recalls in Vehicles manufactured by the defendant.

The lawsuit on behalf of the proposed class is being discontinued. A discontinuance of the lawsuit means that it is not going forward or being pursued.

Discontinuance of the claims means that any applicable limitation periods in respect of these claims, which may have been suspended, will begin running again, and will ultimately expire (if they have not already done so).

Should you have any questions, please contact Strosberg Sasso Sutts LLP at 1-800-229-5323, ext. 289.

[24] For the above reasons, I grant the relief requested. Order accordingly.

Perell, J. Released: November 30, 2023