Vera Toppings

In a proposed class action regarding a data breach, the plaintiffs brought a motion for an injunction to enjoin or supervise communications from the defendants to putative class members.

The defendants intended to send a notice to 51,000 affected individuals offering free credit monitoring.

The court dismissed the motion, finding no reason to intervene as the proposed notice did not affect the integrity of the class proceedings or compromise the putative class members' rights.

Two sets of appellants (manufacturers of optical disc drives) appealed the certification of a price-fixing class proceeding in British Columbia.

The majority held that the discoverability rule applies to extend the two-year limitation period in s. 36(4)(a)(i) of the Competition Act, that fraudulent concealment can toll a limitation period without requiring a special relationship between the parties, that umbrella purchasers (persons who bought from non-defendant manufacturers) have a cause of action under s. 36(1)(a), that s. 36(1) does not bar concurrent common law and equitable claims, and that a plaintiff's expert methodology need only establish that overcharges reached the indirect-purchaser level to certify loss as a common issue.

Côté J. dissented in part, finding that the discoverability rule does not apply to s. 36(4)(a)(i) and that umbrella purchasers have no cause of action under s. 36(1).

Both appeals were dismissed.

The plaintiffs in a certified competition law class action regarding price-fixing of lithium-ion batteries moved for approval of settlements with the LG Chem and Toshiba defendants, as well as for approval of class counsel fees.

The court found the settlements, which provided approximately $5.1 million from LG Chem and $264,000 from Toshiba, to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel's fee request of approximately $1.18 million, representing a 25% contingency fee, finding it reasonable given the risks undertaken and the results achieved.

The plaintiff in a certified class action concerning Mercedes-Benz BlueTEC diesel vehicles moved for further directions regarding the schedule for a partial summary judgment motion on liability issues.

The court had previously set a one-year timeline for this motion and directed immediate discovery.

Despite the defendants' resistance, alleging an "artificially accelerated" discovery schedule without providing supporting evidence, the court reaffirmed its earlier directions.

The judge emphasized the importance of expeditious determination in class actions and the case management judge's role in setting timelines, confirming the summary judgment motion for December 2019 and setting discovery completion by mid-November 2019. interesting_citations_summary: > This decision underscores the broad authority of a class action case management judge to manage proceedings, including setting firm schedules for summary judgment motions and discovery, as supported by *ALS Society v Windsor*.

It highlights that such motions on liability issues are often the pivotal "merits" hearing in complex product liability class actions.

The court also clarifies that parties challenging judicial directions on timelines must provide evidentiary support for their assertions, rather than mere resistance. final_judgement: > The plaintiff's motion for summary judgment on liability issues was confirmed to proceed the week of December 16, 2019.

Counsel were directed to continue "meet and confer" discussions to ensure all relevant discovery is completed by mid-November 2019.

The defendants could re-attend for further directions if insurmountable difficulties arose.

Costs submissions were invited if parties could not agree. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 3 judge_bias_respondent: 3 year: 2019 decision_number: 1591 file_number: "CV-16-550271-CP" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1591/2019onsc1591.html" cited_cases: legislation: - title: "Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12" url: "https://www.ontario.ca/laws/statute/92c06#s12" case_law: - title: "Kalra v. Mercedes Benz, 2017 ONSC 3795" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html" - title: "Trillium v. General Motors of Canada et al, 2012 ONSC 5960" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html" - title: "Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html" - title: "ALS Society v Windsor, 2015 ONCA 572" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html" keywords: - Class action - Motion for directions - Summary judgment - Discovery schedule - Case management - Product liability - Mercedes-Benz - BlueTEC diesel - Emission control areas_of_law: - Civil Procedure - Class Actions --- # Court File and Parties **COURT FILE NO.:** CV-16-550271-CP **DATE:** 20190315 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** YOGESH KALRA, Plaintiff / Moving Party **AND:** MERCEDES BENZ CANADA INC., DAIMLER AG, MERCEDES BENZ USA LLC and MERCEDES BENZ FINANCIAL SERVICES CANADA CORPORATION, Defendants / Responding Parties Proceeding under the Class Proceedings Act, 1992 **BEFORE:** Justice Edward P. Belobaba **COUNSEL:** Peter Griffin, Brian Kolenda, Kirk Baert and James Sayce for the Plaintiff Steven Rosenhek, Vera Toppings and Kimberly Potter for the Defendants **HEARD:** In writing ## Motion for Directions [1] The plaintiff moves for further directions in this class action.

The action was certified as a class proceeding in June 2017.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html). [2] The focus of the class action is the Mercedes-Benz line of BlueTEC diesel automobiles.

The allegation is that the BlueTEC vehicles contain a defect or a “defeat device” that turns off the emission control system when the ambient air temperature drops below 10 degrees Celsius (50 degrees Fahrenheit).

If this is true, this means that the defendants’ BlueTEC vehicles are emitting high (and illegal) levels of nitrogen oxide pollution for the majority of time that they are being driven on Canadian roads.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795, at para. 2](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html#par2).

The defendants deny any such defeat device and look forward to the adjudication of the certified common issues. [3] In February 2018, the defendants advised that they would be bringing a motion for partial summary judgment dismissing the claim as against three of the four defendants (i.e. the off-shore and financial services defendants) and dismissing three of the 14 certified common issues.

However, no further material was delivered in this regard. [4] In December 2018 the plaintiff delivered a draft partial summary judgment motion for the adjudication of the 10 of the 14 certified common issues that deal with liability. [5] At a case conference in December 2018, having resumed my role as case management judge, I directed that the plaintiff’s summary judgment motion be heard in one year’s time, specifically the week of December 16, 2019.

I also directed that the discovery process should commence immediately and if there were any disagreements in the ongoing “meet and confer” discussions about the timing or content of the discovery plan, counsel could re-attend before me. [6] At a case conference in January, 2019 I reminded counsel by way of a further direction that “the requisite discoveries needed to be completed in sufficient time so as not to disturb the December 16, 2019 motion date.” [7] I made these directions to ensure the “fair and expeditious determination” of the class action before me.

This is in accordance with [Section 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6](https://www.ontario.ca/laws/statute/92c06#s12).

In my experience as a class action judge, the real “merits” hearing in a document-heavy, product liability case such as this, is the partial summary judgment motion for the adjudication of the liability issues.

The liability issues are at the heart of the class action.

If the plaintiff fails on liability that ends the matter; if the plaintiff prevails on liability and the action is not settled, the aggregate or individual damages issues can then be addressed under ss. 24 or 25 of the CPA.

I have found that the liability issues can almost always be adjudicated summarily. [8] Given that it is the defendant in these document-heavy cases that typically holds a disproportionate amount of the evidence, I directed that some measure of discovery begin immediately.

The directed discovery must obviously be limited to productions and questions that are relevant to the issues on the summary judgment motion, that is, to the ten liability issues.

See [Trillium v. General Motors of Canada et al, 2012 ONSC 5960, at paras. 15-16](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html); [Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183, at para. 54](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html). [9] The direction that the summary judgment motion be heard in December, 2019 reflected my experience that this was generally more than enough time for the completion of the discovery task.

It was also based on the fact that that the defendants did not suggest otherwise or offer any evidence to the contrary. [10] The Court of Appeal made clear in [ALS Society v Windsor, 2015 ONCA 572](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html) that the directions made thus far are the kinds of directions that fall squarely within the job-description of the class action case management judge: The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when.

The case management judge may prohibit motions from being brought before certain steps have been accomplished and may make orders as to the sequencing of motions.

The case management judge is also entitled to determine the order in which some issues are addressed.

He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly.

See [ALS Society v Windsor, 2015 ONCA 572, at para. 71](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html#par71). [11] The defendants, however, continue to offer a level of resistance that, frankly, is difficult to understand.

They say that the one-year time post for the plaintiff’s summary judgment motion unjustifiably imposes “an artificially accelerated or abbreviated discovery schedule.” They say this even though they have provided no evidence in support of this assertion.

Absent such evidence (which may still be tendered by the defendants provided this is done on a timely basis) I can only re-affirm my earlier Direction, albeit revised as follows: ## Direction (i) The plaintiff’s motion for summary judgment on the liability issues shall proceed as scheduled the week of December 16, 2019; (ii) Counsel shall continue their “meet and confer” discussions about the delivery schedule in the discovery plan in good faith and in an effort to ensure that all relevant discovery is completed by the middle of November, 2019 so that the scheduled hearing date of December 16, 2019 is not compromised; (iii) If the defendants encounter any insurmountable difficulties in adhering to the time-posts set out herein, they may re-attend before me for further directions; (iv) If the parties cannot agree on an appropriate costs award for this motion in writing, I would be pleased to receive brief written submissions – from the plaintiff within 14 days and from the defendants within 14 days thereafter. --- Justice Edward P. Belobaba Date: March 15, 2019

The plaintiffs in a competition law class action regarding a price-fixing conspiracy for lithium ion batteries brought a motion for consent certification for settlement purposes and approval of a notice plan.

The plaintiffs reached a settlement with the LG Chem defendants for USD $3.9 million.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were met and granted the motion.

The appellants brought a class action against defendant manufacturers and suppliers alleging they conspired to fix the price of lithium-ion batteries sold in Canada between January 2000 and December 2011.

The conspiracy allegedly impacted all purchasers, including "umbrella purchasers" whose batteries originated from non-defendants, as the cartel's price increases caused non-conspirators to also raise prices.

The certification judge certified only a statutory claim under the Competition Act for non-umbrella purchasers.

The Divisional Court certified an unlawful means conspiracy claim but excluded umbrella purchasers, citing indeterminate liability concerns.

The Court of Appeal allowed the appeal, holding that the principle of indeterminate liability does not apply to either the statutory claim or the unlawful means conspiracy claim, and that umbrella purchasers should be included in the class with a subclass created for non-umbrella purchasers regarding aggregate damages quantification.

In a certified class action regarding emissions defeat devices, the parties disagreed on the scheduling of a partial summary judgment motion by the foreign defendants.

The plaintiff sought to delay the motion until after full discoveries, while the defendants sought an early determination to avoid the burden of full production.

The case management judge ordered that the motion proceed prior to discoveries, but directed that the foreign defendants provide expansive disclosure for the motion, which would subsequently form part of the discovery record.

The plaintiffs and defendants both sought leave to appeal an order certifying a class action regarding an alleged global price-fixing conspiracy in the lithium-ion battery industry.

The plaintiffs sought leave to appeal the denial of certification for claims relating to unlawful means conspiracy and umbrella purchasers.

The defendants sought leave to appeal the certification of the civil remedy claim under s. 36 of the Competition Act.

The Divisional Court granted the plaintiffs' motion for leave to appeal, finding conflicting decisions and that the issues merited appellate attention.

The defendants' motion for leave to appeal was denied, as they failed to establish conflicting decisions or reason to doubt the correctness of the certification order.

The representative plaintiff, Fanshawe College, sought to amend the class definition in a certified class proceeding alleging price-fixing of LCD panels.

Two amendments were proposed: a broad "all purchasers' amendment" to include all direct and indirect purchasers, and an "alternative amendment" to expand the list of named OEMs and distributors.

The court denied the "all purchasers' amendment" finding it an abuse of process as it attempted to re-litigate an issue previously abandoned and decided by the certification judge.

However, the court granted the "alternative amendment" as it was specifically contemplated by the certification judge and the claims were not found to be time-barred.

In a proposed price-fixing class action involving lithium ion batteries, both sides brought refusals motions arising from cross-examinations conducted in advance of certification.

The court held that questions probing how class counsel came to act for the proposed representative plaintiffs, and requests for a retailer plaintiff’s business documents, were not relevant to the certification criteria.

However, questions to the plaintiffs’ expert about whether inclusion of contract phone purchasers complicated pass-through analysis were relevant to testing the expert’s methodology and had to be answered.

Questions to defence witnesses about alleged meetings and documents referenced in a related U.S. proceeding were refused as going to the merits rather than certification.

The defendant brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside portions of an order granting the plaintiff leave to issue a writ of seizure and sale and notices of garnishment to enforce a judgment more than six years old.

The order had been obtained without notice.

The court held that the motions judge had discretion to proceed without notice given concerns that notice could allow the judgment debtor to rearrange assets.

Applying the test for leave under Rules 60.07(2) and 60.08(2), the court found the judgment creditor adequately explained the delay in enforcement and had not waived rights under the judgment.

The defendant failed to demonstrate detrimental reliance arising from the delay.

The motion to set aside the order was dismissed and the enforcement mechanisms remained in force.

In a supplementary endorsement addressing costs following a motion brought by a court-appointed forensic accountant seeking payment of additional fees, the court considered multiple claims for costs among parties and against the expert.

The motion seeking payment of an additional $288,000 beyond previously authorized funds had been dismissed.

The court reviewed the principles governing costs, including the limited circumstances in which costs may be awarded against non-parties under s.131 of the Courts of Justice Act and the court’s inherent jurisdiction.

The court concluded that the circumstances did not justify a costs award against the court-appointed expert or the Children’s Lawyer.

Claims for costs among the parties were largely rejected, with any potential claims reserved for determination by the trial judge.

A court-appointed forensic accountant brought a motion seeking payment of a final invoice for investigative work performed in complex estate and trust litigation following the death of a family patriarch.

The expert had previously estimated that completion of the mandate would cost approximately $100,000 but later submitted a substantially larger final invoice.

The court held that the expert bore the onus of justifying the amount and found the explanation for the dramatic increase unpersuasive.

In the circumstances, the expert was required to abide by the prior representation to the court and the motion for payment of the additional amount was dismissed.

Requests for production of the expert’s working papers were found premature, and a request by other professionals for reimbursement of costs was deferred to the next case management judge.

The court issued an endorsement to settle the terms of a certification order in a securities class action, following the certification of conspiracy claims.

The defendants sought to exclude 'early sellers' from the class definition and challenged the class period dates.

The court declined to exclude early sellers, finding it premature as the scope of those entitled to relief for conspiracy was uncertain.

The court also approved the class period dates as they aligned with the plaintiff's theory of the case.

Finally, the court approved the plaintiff as a suitable representative for both primary and secondary market purchasers regarding the conspiracy claim.

The appellant appealed a summary judgment dismissing his defamation action.

The action arose from a statement of defence in a wrongful dismissal suit alleging the appellant installed undisclosed surveillance cameras in employee living accommodations.

The motion judge found the respondents established the substantial truth of the allegations, noting the appellant failed to file responding affidavit material as required by Rule 20.02(2).

The Court of Appeal found sufficient evidence supported the motion judge's conclusion and dismissed the appeal.