QUEEN’S BENCH FOR SASKATCHEWAN  
Citation: 2022 SKQB 69  
Date:  
2022 03 16  
Docket:  
Judicial Centre:  
QBG 1756 of 2015  
Regina  
BETWEEN:  
CORINNE KANE,  
PLAINTIFF  
- and -  
FCA US LLC and FCA CANADA INC.,  
DEFENDANTS  
Counsel:  
E.F.A. Merchant, Q.C., and Anthony A. Tibbs  
for the plaintiff  
Jason W. Mohrbutter, Glenn M. Zakaib,  
R. Bevan Brooksbank and Sunny Kim  
for the defendants  
___________________________________________________________________________  
FIAT  
ELSON J.  
March 16, 2022  
___________________________________________________________________________  
Introduction  
[1]  
The proposed representative plaintiff, Corinne Kane, issued this putative  
class action in 2015. In it, she alleges that the defendants, FCA US LLC [FCA US] and  
FCA Canada Inc. [FCA Canada], collectively described as [FCA] designed,  
manufactured and distributed vehicles with certain safety defects, all of which were  
identified in regulatory proceedings in the United States and Canada.  
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[2]  
At the outset, it is noteworthy that the plaintiff relies heavily on the  
issuance of notices of defect with respect to the vehicles in question, commonly known  
as recall notices or recalls. The plaintiff’s claim, as well as her evidence, suggests there  
were 24 recall notices [Recalls] affecting more than 900,000 vehicles in Canada. For  
several Recalls, there are no material facts pleaded and no evidence led that any  
proposed class members experienced problems or sustained damage from the defects  
described in those Recalls. Instead, the Recalls, themselves, stand as the only support  
for both the viability of the asserted causes of action and the evidence-based  
certification criteria.  
[3]  
The plaintiff now applies for certification on behalf of the proposed class,  
consisting of owners of the vehicles that were the subject of the Recalls. FCA opposes  
the application for a variety of reasons. At the same time, it brings an application for  
summary judgment to dismiss the action, whether certified or not.  
Regulatory Framework for a Motor Vehicle Recall  
[4]  
Given the importance that the plaintiff attaches to the existence of the  
Recalls in this case, it may be helpful to review the regulatory framework for recalls,  
particularly as the framework applies to defect notices for motor vehicles. In this way,  
the discussion about the plaintiff’s claim, the pleaded causes of action and the  
certification requirements will have appropriate context.  
[5]  
Recalls of manufactured, processed and packaged products have become  
a fact of life in Canada and many other jurisdictions worldwide. In Canada, recalls (also  
known as “campaigns”) have served as a means by which industries and regulatory  
agencies try to ensure compliance with required or expected standards. A wide range  
of products and manufactured items may become subject of a recall. Aside from motor  
vehicles, recalls can apply to tires, food, pharmaceuticals and medical devices, to name  
- 3 -  
a few. The required or expected standards may pertain to potential safety or  
environmental problems. They may also pertain simply to whether there are  
performance or consumer satisfaction issues.  
[6]  
In Canada, the required standards, particularly related to potential safety  
and environmental concerns, are governed by the relevant statutes and regulations. The  
administration and oversight of a particular regulatory process is carried out by the  
appropriate government ministry or agency. For example, Health Canada oversees  
issues related to food, pharmaceuticals and medical devices while Environmental and  
Climate Change Canada oversees issues of an environmental nature, such as emissions  
standards. In the context of the present case, Transport Canada oversees issues related  
to products used for the transportation of goods and people.  
[7]  
Transport Canada’s oversight of defects and related concerns in motor  
vehicles is conducted under the authority of the Motor Vehicle Safety Act, SC 1993,  
c 16 [MVSA]. The recall or “notice of defect” requirements are set out in s. 10 of the  
MVSA, which reads as follows:  
10(1) A company that applies a national safety mark to any vehicle  
or equipment, sells any vehicle or equipment to which a national safety  
mark has been applied or imports any vehicle or equipment of a class  
for which standards are prescribed shall, as provided for in the  
regulations, give notice of any defect in the design, manufacture or  
functioning of the vehicle or equipment that affects or is likely to  
affect the safety of any person to  
(a) the Minister, on becoming aware of the defect; and  
(b) the current owner and any other prescribed person, within the  
period provided for in the regulations.  
(2) A company is not required to give notice of a defect  
(a) for which notice has already been given by another company  
that manufactured, sold or imported the vehicle or equipment; or  
(b) for which a notice of non-compliance has been given under  
section 10.1.  
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(2.1) If the Minister determines that a defect has not been corrected  
in an adequate number of vehicles or equipment for which notice was  
given under subsection (1), the Minister may, by order, require the  
company to provide, in accordance with any conditions specified in  
the order, a subsequent notice to those persons who have not had the  
defect corrected. In making this determination, the Minister shall take  
into consideration, among other things,  
(a) the nature of the defect;  
(b) the safety risk arising from it; and  
(c) the total number of vehicles or equipment affected.  
(3) If the Minister is satisfied that the current owner of a vehicle or  
equipment cannot reasonably be determined by a company,  
(a) the company shall give notice in any other manner that is  
acceptable to the Minister; or  
(b) the Minister may exempt the company from the requirement  
to give notice to the current owner.  
(4) The Minister may, by order, require any company that applies a  
national safety mark to any vehicle or equipment, sells any vehicle or  
equipment to which a national safety mark has been applied or imports  
any vehicle or equipment of a class for which standards are prescribed  
to give notice of a defect in the manner specified in the order, if the  
Minister considers that it is in the interest of safety.  
(4.1) The Statutory Instruments Act [RSC 1985, c S-22] does not  
apply to an order made under subsection (2.1) or (4).  
(5)  
Forthwith on receiving any notice under subsection (1), the  
Minister shall forward full particulars of the notice to the minister or  
other officer responsible for motor vehicle administration in each  
province.  
[8]  
The procedural requirements for giving a notice of defect are set out in  
s. 15 of the Motor Vehicle Safety Regulations, CRC, c 1038 (1978) [MVSR]. For the  
purposes of this fiat, it is not necessary to recite s. 15 of the MVSR in full. It is sufficient  
simply to note the requirements for: (1) the contents of a notice; (2) timelines for the  
notice to be given to current owners and prescribed persons (60 days); and (3) the  
specific form of the notice. As for the form of notice, it is notable that s. 15(8) of the  
MVSR stipulates that the words “SAFETY” and “RECALL” must be clearly visible.  
- 5 -  
[9]  
While there is a time limit for the notice, there is no time limit for the  
vehicle manufacturer to remedy a defect. If a remedy is not available within 60 days of  
the notice of defect, the vehicle manufacturer is obliged to issue an interim notice  
which, among other things, informs the recipient that a further notice will be sent when  
a remedy is available. When the remedy becomes available, the final notice is given,  
including instructions on how the remedy can be carried out.  
[10]  
Transport Canada maintains information about recalls on its Motor  
Vehicles Safety Recalls Database [Database], available to the public through the  
agency’s website. In maintaining this information, Transport Canada makes it clear that  
a safety recall may identify an entire vehicle model and model year even when only a  
particular part is implicated. This qualification is explained on the website through the  
following disclaimer:  
Please note that not all vehicles in a certain make, model and model  
year group are subject to a given safety related recall. This is because  
the problem may have been corrected in production before the vehicle  
in question was manufactured, or, the vehicle may have a different  
engine/powertrain configuration/optional equipment, or it may have  
been manufactured in a different plant, as examples. Not all vehicles  
within a specified Vehicle Identification Number (VIN) range may be  
involved. Thus the description of the problem detailed on the Motor  
Vehicle Safety Recalls Database generally starts with the words: “On  
certain vehicles…” It is recommended that owners contact the  
manufacturer or their local dealer to verify whether or not their vehicle  
is involved in a specific recall.  
[11]  
It is also important to note that not all recalls in the Database are “safety  
recalls”. Some are described as “service campaigns”. Service campaigns are voluntary  
notifications typically initiated by the manufacturer to address concerns that have come  
to its attention, but which are not safety related. Based on evidence presented in these  
applications, I understood that Transport Canada typically permits service campaigns  
to be included in the Database with a recall number. Presumably, this is done to aid  
public awareness of all issues raised by the manufacturer. In the case of FCA Canada,  
- 6 -  
it describes its service campaigns as a “customer satisfaction notifications” [CSN].  
The Claim: Third Amended Statement of Claim  
[12]  
The plaintiff in this action originally issued her statement of claim out of  
this Court on July 30, 2015. She has since amended her claim on three occasions, such  
that it is now her third amended statement of claim. For the sake of brevity, I will simply  
refer to it as the “claim”.  
[13]  
The plaintiff advances this claim on behalf of the proposed class [Class],  
consisting of all persons, corporations and other entities that own, lease or otherwise  
possess one or more vehicles designed, manufactured and distributed by FCA [Class  
Vehicles]. The Class Vehicles are identified in the claim as follows:  
1993-1998; 2002-2008; 2011-2014 model years Jeep Grand  
Cherokee;  
2014-2015 model years Jeep Cherokee;  
2009; 2011-2014 model years Dodge Durango;  
2005-2006; 2008-2012 model years Dodge Ram;  
2008-2012 model years Dodge Ram 1500;  
2008-2014 model years Dodge Ram 2500;  
2008-2014 model years Dodge Ram 3500;  
2008-2015 model years Dodge Ram 4500;  
2008-2015 model years Dodge Ram 5500;  
- 7 -  
2009 model year Chrysler Aspen;  
2006; 2009-2010 model years Dodge Dakota;  
2002-2007 model years Jeep Liberty;  
2008-2010 model years Chrysler Town and Country;  
2008-2010 model years Dodge Grand Caravan;  
2009-2010 model years Dodge Journey;  
2006-2008 model years Jeep Commander;  
2008 model year Dodge Magnum;  
2015 model year Chrysler 200;  
2008; 2011-2014 model years Chrysler 300;  
2011-2015 model years Dodge Challenger;  
2008; 2011-2015 model years Dodge Charger; and  
2003-2004; 2013-2014 model years Dodge Viper.  
The claim’s premise begins with a description of proceedings conducted  
[14]  
and/or overseen by the US National Highway Traffic Safety Administration [NHTSA].  
According to the claim, these proceedings pertained to 23 recall notices for safety  
defects in vehicles designed, manufactured and distributed by FCA US. The claim  
further asserts that the NHTSA imposed a fine of US$105 million against FCA US for  
having failed to adequately remedy defective vehicles within a reasonable time. The  
plaintiff also pleads that FCA US admitted to the failure and further admitted that they  
- 8 -  
failed to notify vehicle owners of the existence of any defects in a timely and  
appropriate manner. Notably, there is nothing in the claim to describe how the FCA US  
admission impacted circumstances in Canada.  
[15]  
Following the pleaded reference to the NHTSA proceedings, the  
plaintiff’s claim asserts that FCA filed 24 Recalls with Transport Canada related to the  
same safety defects. These Recalls pertained to the Class Vehicles. There are 11  
generically described safety defects identified in the claim. A description of the alleged  
safety defects, and the vehicles to which they are said to pertain, appear in the next  
several paragraphs.  
[16]  
Ignition Switch Defect The plaintiff alleges that five Recalls identified  
three ignition switch defects. The Recalls were #2011-096 on March 2, 2011; #2014-  
404 on September 18, 2014; #2015-250 on June 14, 2015; #2014-261 on July 2, 2014  
and #2014-312 on July 23, 2014. The Class Vehicles affected included: the 2008  
Chrysler 300, 2008 Dodge Charger, 2008 Dodge Magnum, 2008-2010 Chrysler Town  
and Country, 2008-2010 Dodge Grand Caravan, 2009-2010 Dodge Journey, 2006-2008  
Jeep Commander and 2005-2008 Jeep Grand Cherokee.  
[17]  
Based on these Recalls, the claim asserts three ignition switch defects.  
One alleged defect involves a potential slip of the ignition key from the “run” to the  
“accessory” positions while the vehicle is moving, which is said to disable the power  
steering, power brakes, air bags and seat belt pre-tensioners. The second alleged defect  
involves a failure of the ignition key to return fully to the run position from the start  
position when the key is released after the vehicle is started. This is said to affect various  
electrical functions and increase the potential of the engine stalling. The third alleged  
defect involves an inadvertent slip of the ignition key from the “on” to the “accessory”  
positions while driving. This is said to result in the engine shutting off which, in turn,  
affects power steering, brakes and other features, such as air bags.  
- 9 -  
[18]  
Braking Defects The plaintiff alleges that two Recalls identified two  
braking defects. The Recalls were #2014-112 on April 2, 2014 and #2015-069 on  
February 17, 2015. The Class Vehicles affected included: the 2015 Chrysler 200, 2011-  
2014 Dodge Durango, and 2011-2014 Jeep Grand Cherokee.  
[19]  
Based on these Recalls, the claim asserts two specific braking defects.  
One defect is said to result in the possibilityof the parking pawl to fail, which, when  
coupled with the non-use of the parking brake, allows the vehicle to roll away after the  
brake pedal is released.  
[20]  
As for the other defect, the claim alleges that the shell of the brake booster  
“may corrode”. This could result in water getting inside and possibly freezing. In turn,  
this would result in increased stopping distances and inadequate braking.  
[21]  
Alternator Defect The plaintiff alleges that one Recall identified faulty  
alternators. That recall was #2014-446 on October 9, 2014. The Class Vehicles affected  
included: the 2011-2014 Chrysler 300, 2011-2014 Dodge Challenger, 2011-2014  
Dodge Charger, 2011-2014 Dodge Durango and 2012-2014 Jeep Grand Cherokee.  
[22]  
As for the nature of the fault or defect in the alternators, the claim simply  
says that the alternators were “faulty”, resulting in engine stalling and loss of power. It  
also says that the fault can increase the “risk of causing a fire.”  
[23]  
Rear Axle Pinion Nut Defect The plaintiff alleges that two Recalls  
identified one rear axle pinion nut defect. The Recalls were #2013-044 on February 6,  
2013 and #2014-582 on December 19, 2014. The Class Vehicles affected included: the  
2009 Chrysler Aspen, 2009-2010 Dodge Dakota, 2009 Dodge Durango, 2005, 2009-  
2010 Dodge Ram, 2011-2012 Dodge Ram 1500.  
[24]  
The claim asserts one defect related to rear axle pinion nuts coming loose  
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or detaching completely. This is said to cause the rear wheels to lock and loss of vehicle  
control, increasing danger to drivers and pedestrians.  
[25]  
Fuel Tank Defect The plaintiff alleges that four Recalls identified one  
fuel tank defect. The Recalls were #2014-449 on October 29, 2014; #2015-086 on  
February 26, 2015; #2015-085 on February 26, 2015; and #2013-220 on June 26, 2013.  
The Class Vehicles affected included: the 2010-2014 Dodge Ram, 2010-2014 Dodge  
Ram 2500, 2010-2014 Dodge Ram 3500, 2010-2014 Dodge Ram 4500, 2010-2014  
Dodge Ram 5500; 2015 Dodge Challenger, 2015 Dodge Charger, 2012-2013 Dodge  
Durango, 2012-2013 Jeep Grand Cherokee, 1993-1998 Jeep Grand Cherokee and 2002-  
2007 Jeep Liberty.  
[26]  
The claim asserts one defect related to the location of the fuel tank.  
Specifically, the plaintiff alleges that, in certain Class Vehicles, FCA installed the fuel  
tank behind the rear axle as opposed to the “safe zone” which is to the front of the rear  
axle. This is said to create a greater likelihood of the fuel tank rupturing in a collision  
from the rear which, in turn, increases the likelihood of fire.  
[27]  
The plaintiff also alleges that FCA wrongfully and inadequately installed  
trailer hitches on certain of the Class Vehicles in a failed effort to remedy the design  
defect. She goes on to assert that FCA “egregiously understated” the seriousness of the  
defect by characterizing one of the Recalls as a “voluntary customer satisfaction  
campaign”.  
[28]  
Tie Rod Defect The plaintiff alleges that two Recalls identified one tie  
rod defect. The two Recalls were #2013-396 and #2013-397, both on November 7,  
2013. The Class Vehicles affected included: the 2008-2012 Dodge Ram, 2008-2012  
Dodge Ram 4500, 2008-2012 Dodge Ram 5500, 2008-2012 Dodge Ram 1500 and  
2008-2012 Dodge Ram 2500.  
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[29]  
The claim asserts a tie rod defect but does not plead any particulars of the  
defect. The plaintiff simply pleads that the defect can lead to a total loss of vehicle  
control.  
[30]  
Mirror Wiring Defect The plaintiff alleges that one Recall identified a  
mirror wiring defect. The Recall was #2014-275 on July 3, 2014. The Class Vehicles  
affected included: the 2011-2014 Dodge Durango and 2011-2014 Jeep Grand  
Cherokee.  
[31]  
The claim asserts one mirror wiring defect in the sun visor vanity mirrors.  
Beyond this, no particulars are given about the defect other than that it could cause a  
fire.  
[32]  
Clutch Interlock Switch Defect The plaintiff alleges that one recall  
identified a clutch interlock switch defect. The Recall was #2014-583 on December 19,  
2014. The Class Vehicles affected included: the 2006 Dodge Dakota and 2006 Dodge  
Ram.  
[33]  
The claim asserts a clutch interlock switch defect but does not plead any  
particulars of the defect. The plaintiff simply pleads that the defect can lead to  
unintended vehicle movement.  
[34]  
Airbag Defect The plaintiff alleges four Recalls identified an airbag  
defect. The Recalls were #2012-378 on November 9, 2012; #2013-046 on February 7,  
2013; #2015-039 on January 28, 2015 and #2015-040 also on January 28, 2015. The  
Class Vehicles affected included: the 2002-2004 Jeep Grand Cherokee, 2002-2003 Jeep  
Liberty and 2003-2004 Dodge Viper.  
[35]  
The claim asserts an airbag defect but does not describe particulars of the  
defect other than the allegation that it causes airbags to deploy suddenly and for no  
- 12 -  
reason, leading to serious injury and damage.  
[36]  
Door Switch Defect The plaintiff alleges that one Recall identified a  
door switch defect. This Recall was on March 25, 2015. The only Class Vehicle affected  
was the 2013-2014 Dodge Viper.  
[37]  
The claim asserts a door switch defect but does not assert any particulars  
of the defect other than to say that it causes failure in the door closing mechanism. It is  
said that this can result in doors opening unexpectedly.  
[38]  
Tire Defect The plaintiff pleads that the tire defect resulted in one Recall  
on May 14, 2015. The Class Vehicles affected included: the 2014-2015 Dodge Ram  
4500 and 2014-2015 Dodge Ram 5500.  
[39]  
The claim asserts a tire defect but describes no particulars of that defect  
other than to say that the installed tires were inadequate and could result in failure.  
[40]  
For each of the 11 pleaded defects, the claim alleges the potential for  
physical injury or death or property damage because of the defect. In describing this  
potential, the plaintiff employs such phrases as “increasing the risk of injury or death”;  
“significantly increasing the likelihood of serious injury or death”; “could cause a fire”;  
“can lead to unintended vehicle movement”; “can lead to serious injury and damage”;  
or “increasing risk of crash, injury and property damage”. In addition to the potential  
for physical injury or property damage, the claim asserts that the defects, as identified  
in the Recalls, result in “negative stigma” associated with the affected vehicles. This is  
said to result in decreased resale value.  
[41]  
The essence of the plaintiff’s allegations on these defects is captured in  
the portion of the claim described as the overviewof the Recalls. There, at paragraphs  
71 and 72 of the claim, the plaintiff pleads the following:  
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71. The defects in the Class Vehicles render them dangerous to  
operate, and subjects owners, passengers, and third parties, to an  
increased risk of an accident leading to personal injury and death.  
72. Each of the models of Class Vehicles have a common but not  
identical number of the same defects and all Class Members share  
danger and loss of value of their Class Vehicle due to the defects  
of their Class Vehicle.  
[42]  
As will become apparent later in this fiat, it is significant that the plaintiff  
does not plead the assertion, or material facts to support the assertion, that the defects  
represented a real, substantial and imminentdanger of physical injury or property  
damage.  
[43]  
In terms of remedy, the plaintiff pleads that each Class member is  
justified in claiming at least one or more of the following:  
a. termination of the sale or lease of the Class Vehicle in question and  
reimbursement of the purchase price or lease amounts paid, including  
taxes, licence and registration fees, security deposit and down  
payment; or, alternatively, damages for the diminished value of the  
Class Vehicle;  
b. damages for the costs associated with the defect or repairs to the  
Class Vehicles;  
c. damages for loss of use and enjoyment of their Class Vehicles;  
d. damages for trouble, inconvenience and loss of time;  
e. damages for anxiety and fear; and  
f. punitive and/or exemplary damages.  
[44]  
The causes of action pleaded in the claim include:  
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a. negligence in the design, manufacture and marketing of the Class  
Vehicles, the particulars of which are:  
i. failure to properly and adequately design, develop and test the  
Class Vehicles;  
ii. failure to notify Class Members and safety authorities of the  
defective Class Vehicles as well as failure to properly and  
adequately warn of the dangers attended upon use of the Class  
Vehicles;  
iii. failure to utilize other feasible and safer design alternatives in their  
design of the Class Vehicles;  
b. breach of express and implied warranties that the Class Vehicles  
were safe for use;  
c. violation of s. 52 of the Competition Act, RSC 1985, c C-34, by the  
use of false and misleading representations or omissions of material  
fact in connection with the marketing, promotion and sale of the  
defective Class Vehicles;  
d. violation of federal and provincial consumer protection legislation,  
including The Consumer Protection and Business Practices Act,  
SS 2013, c C-30.2; and  
e. unjust enrichment in that FCA retained funds paid by the Class  
Members, such that the purchase price for each Class Vehicle should  
be disgorged and distributed to Class Members on a Class wide  
aggregate basis.  
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[45]  
In the certification application, the plaintiff asks the Court to certify 17  
questions as common issues. Paraphrased somewhat from the wording in her  
application, these questions are as follows:  
1. Do some or all of the proposed Class Vehicles contain the defects as  
outlined in the Recalls? If so, which ones?  
2. If the answer to Issue No. 1 is “yes”, when did or should the defendants  
have known of the defect?  
3. Are there defects in the proposed Class Vehicles as outlined in the Recalls  
that affect or are likely to affect the safety of any person?  
4. Did the defendants provide adequate warnings as to the fitness of the  
proposed Class Vehicles?  
5. Did the defendants knowingly, recklessly or negligently breach a duty to  
warn the plaintiff and other Class Members of the risks associated with  
the proposed Class Vehicles?  
6. Did the defendants knowingly, recklessly or negligently breach a duty of  
care in their manner of handling the Recalls?  
7. Did the defendants knowingly, recklessly or negligently breach any  
statutory obligations in their manner of handling the Recalls?  
8. Did the defendants breach a duty of care owed to the plaintiff and other  
Class Members and, if so, when and how?  
9. Did the defendants breach a duty of care owed to Class Members by  
designing, developing or manufacturing proposed Class Vehicles with  
the defect?  
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10. Did the defendants breach express or implied warranties by selling the  
proposed Class Vehicles with the defect?  
11. Did the defendant’s breach statutory warranties pursuant to s. 16 or s. 19  
of The Consumer Protection and Business Practices Act or similar  
legislation in other provinces or territories by selling proposed Class  
Vehicles with the defect?  
12. Did the defendants breach s. 52 of the Competition Act by selling  
proposed Class Vehicles with the defect?  
13. Whether the defendants have been unjustly enriched by the receipt of  
revenues from the proposed Class Vehicles?  
14. Whether the Class Members suffered a corresponding deprivation by  
paying for the proposed Class Vehicles?  
15. Whether there is any juristic reason justifying retention by the defendants,  
of some or all of the revenues from the sale of the proposed Class  
Vehicles?  
16. Whether the defendants should be required to disgorge the revenues they  
received from the sale of the proposed Class Vehicles to the plaintiff and  
other Class Members and, if so, how much and should this disgorgement  
be made in the aggregate or how should this disgorgement be distributed  
among Class Members?  
17. If one or more of the above common issues are answered affirmatively,  
can the amount of damages payable by the defendants be determined on  
an aggregate basis? If so, in what amount and who should pay such  
damages to the Class Members?  
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Evidence  
[46]  
Under this heading, I will describe the evidence received by the Court  
with respect to both the certification application and the defence application for  
summary judgment. While each application provides a somewhat different context for  
the Court’s consideration of the evidence, I am satisfied that little purpose would be  
served in a separate description of the evidence for each application.  
[47]  
In all, the Court received 11 affidavits, eight affidavits presented on  
behalf of the plaintiff and three affidavits presented on behalf of FCA Canada. Five  
members of the proposed Class deposed to their experience with their vehicles. These  
members include the plaintiff, Travis Brassington, Wade Ramsum, Laura Medeiros and  
Brad Winder.  
[48]  
In addition to these proposed Class Members, the plaintiff also presented  
affidavit evidence from Michael Peerless and Stephen D. Kertzman, who deposed two  
affidavits. Mr. Peerless is an Ontario lawyer serving as co-counsel for the plaintiff.  
Mr. Kertzman is a chartered business valuator from Toronto. He was retained by the  
plaintiff’s counsel to present an opinion about the losses claimed to have been  
experienced by members of the proposed Class and the consistency, or commonality,  
of the loss.  
[49]  
Before turning to the defence evidence, I think it important to note that,  
outside of the actual Recalls, the plaintiff presented no independent evidence about the  
nature or quality of the defects referenced in the Recalls. In particular, the plaintiff  
presented no expert evidence about: (1) the severity of the risks associated with the  
defects; (2) the standard of care expected of a vehicle manufacturer in the design of  
motor vehicles; or (3) the manner in which a defect could result in damage to the vehicle  
or other operational problems that is likely to cause property damage or personal injury.  
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[50]  
The three affidavits presented by FCA Canada were deposed by Stuart  
Shaw (two affidavits) and H. Christopher Nobes. Mr. Shaw is the Manager of Vehicle  
Safety and Regulatory Compliance for FCA Canada. Mr. Nobes is a chartered business  
valuator and chartered professional accountant. FCA retained him to provide an opinion  
or critique of the loss analysis presented on behalf of the plaintiff.  
Michael J. Peerless  
[51]  
Mr. Peerless is a partner in the London, Ontario firm of McKenzie Lake  
Lawyers LLP. His firm is working with another Ontario law firm and the plaintiff’s  
counsel in pursuing this proposed class action. A similar proceeding in Ontario has been  
stayed pending the outcome of these applications.  
[52]  
In his affidavit, Mr. Peerless identified the Recalls the plaintiff relies on  
in her claim. With two exceptions, the affidavit’s description of the Recalls is  
reasonably consistent with the claim’s allegations. A notable exception relates to the  
Recall for the alleged fuel tank defect. Contrary to the claim’s allegations, which  
pertained to the location of the fuel tank relative to the rear axle, three of the Recalls  
identified in Mr. Peerless’s affidavit did not address that issue. Rather, they pertained  
to a fuel heater issue for diesel powered engines, a fuel pump issue and a defect in the  
fuel rail crossover hose.  
[53]  
Another arguable exception is the Recall for the alleged tire defect.  
Contrary to the suggested allegation in the claim, this Recall did not identify a defect  
in the tires, per se. Rather, the Recall stated that the speed rating for the installed tires  
was less than the maximum speed configured for the vehicles configured with a 6.4L  
gasoline engine.  
[54]  
Aside from identifying the specific Recalls, Mr. Peerless also referenced  
the NHTSA proceedings in the United States and the consent order, dated July 24, 2015,  
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in which FCA US admitted its failure to remedy defects in a timely manner. Mr.  
Peerless also deposed to his understanding that a class action has been commenced in  
California, which sought relief regarding the tie rod defect in the Dodge Ram vehicles.  
That action was settled on March 23, 2017.  
[55]  
A copy of the consent order was exhibited to Mr. Peerless’s affidavit.  
Although Mr. Peerless does not comment on the specific terms of the consent order,  
there are two noteworthy features in the document. The first is that the consent order  
does not specifically address fault or responsibility for any defect. Rather, the consent  
order solely pertains to the assertion that FCA US had not complied with the  
administrative processes and timelines established by the NHTSA. At this point I pause  
to note that there is no similar circumstance in Canada. Specifically, there is no evidence  
that Transport Canada raised any concern about FCA Canada having failed to meet any  
of its timelines.  
[56]  
The second noteworthy feature is that the consent order says nothing  
about the responsibilities of FCA Canada. Indeed, as defence counsel is quick to point  
out, FCA Canada is not a party to the consent order and had no obligation to do anything  
under its terms. Moreover, there is no evidence that the consent order informed any  
expectations Transport Canada may have had of FCA Canada.  
Stephen D. Kertzman  
[57]  
In his affidavit evidence, Mr. Kertzman presented opinion evidence as to  
possible methodologies for determining whether proposed Class Members experienced  
financial loss from the safety defects identified in the Recalls, as well as the impact of  
that loss on a class wide basis. Although Mr. Kertzman acknowledged the need for  
other means of determining damages related to personal injury, he confined his opinion  
to methodologies for measuring the depreciation of the resale value of the Class  
- 20 -  
Vehicles. He identified this concept as “Resale Value Loss”.  
[58]  
For reasons that will become evident from my analysis of the first  
certification criterion, I find it is not necessary for me to review Mr. Kertzman’s opinion  
in detail. At this stage, it is simply sufficient to note his opinion that Resale Value Loss  
could be estimated for the Class Vehicles and that such losses could be calculated on a  
class wide basis.  
Evidence of the Five Proposed Class Members  
[59]  
The plaintiff resides in Swift Current, Saskatchewan. In her affidavit, she  
deposed that she purchased a 2007 Jeep Liberty in 2011. The exhibited bill of sale  
indicates that the before-tax purchase price of the vehicle was $6,095. It also disclosed  
an odometer reading of 56,080 km at the time of sale.  
[60]  
The plaintiff deposed that she became aware of a Recall for her vehicle  
in August 2014. The Recall pertained to the location of the fuel tank. Based on the  
affidavit of Mr. Peerless, this would be Recall #2013-220 issued by Transport Canada  
on June 26, 2013. After becoming aware of the Recall, the plaintiff took her vehicle in  
for repairs. As I understand her evidence, the repair consisted of the installation of a  
trailer hitch on the back of her vehicle. The plaintiff deposed that the mechanic who  
installed the hitch told her that it could not be used for towing and that it was only  
installed to prevent serious damage to the gas tank and a possible fire.  
[61]  
According to the plaintiff, she was extremely concerned about the  
circumstances of the Recall and the subsequent repairs. She specifically deposed to her  
worry about resale value of her vehicle and the “stigma” associated with a recall for a  
“serious safety defect”. On August 4, 2015, she traded in her vehicle. Although she  
describes the trade in as a “loss”, the exhibited trade-in invoice describes a trade-in  
value of $6,700. It is also noteworthy that the vehicle she purchased in 2015 was a 2011  
- 21 -  
Jeep Liberty.  
[62]  
Before leaving the description of the plaintiff’s evidence, it should be  
noted that, in the cross-examination of Mr. Kertzman, he acknowledged that the Recall  
in respect of the plaintiff’s vehicle was not a safety recall. Rather, it is recorded in the  
Database as a voluntary service campaign or, as labelled by FCA Canada, a CSN.  
[63]  
The second proposed Class member, Mr. Brassington, resides in  
Cochrane, Alberta. He deposed that, in March 2009, he purchased a 2008 Jeep Grand  
Cherokee in Edmonton for a purchase price of $41,799.50. Mr. Brassington received  
two Recalls with respect to his vehicle. One Recall, relating to a drive controller, is not  
considered part of this action. The second Recall related to the ignition switch of his  
vehicle. Based on Mr. Peerless’s affidavit, this would have been Recall #2014-404,  
issued on September 18, 2014. He became aware of the Recall in November 2014 and  
the issue was eventually repaired in December 2015. Mr. Brassington deposed that he  
had been told the delay in addressing the issue resulted from FCA Canada not having a  
“suitable engineering fix” until late 2015.  
[64]  
Mr. Brassington deposed to his dissatisfaction with the way FCA Canada  
handled both Recalls. He also expressed concern about the “negative stigma” associated  
with Recalls. It is noteworthy that Mr. Brassington does not depose to having sold his  
vehicle since the repairs were done. Even so, he expresses concern about the potential  
loss in resale value.  
[65]  
The third proposed Class member, Mr. Ramsum, resides in Calgary,  
Alberta. He deposed that, in October 2009, he purchased a 2009 Dodge Ram 3500 in  
Calgary for a purchase price of $59,055. In 2011, the vehicle demonstrated “front end  
shaking” and a “lot of play”. He took the vehicle in for repair on three occasions. In his  
view, the first two repairs were ineffective. The third repair, which Mr. Ramsum paid  
- 22 -  
for, seems to have improved the situation, but not entirely. Mr. Ramsum deposed that  
he does not know when the severity of the problem will resurface.  
[66]  
In his affidavit, Mr. Ramsum did not reference any specific Recall. That  
said, in counsel’s certification brief, it is argued that this vehicle was subject to Recall  
#2013-397, which pertained to the tie rod defect. According to Mr. Peerless’s affidavit,  
this Recall was issued on November 7, 2013.  
[67]  
The fourth proposed Class member, Ms. Medeiros, resides in Kingston,  
Ontario. She deposed that, in August 2003, she purchased a 2003 Jeep Liberty in  
Kingston for the before-tax purchase price of $32,409. Although she did not describe  
any problems she experienced with the vehicle, Ms. Medeiros said that, in 2016, she  
became aware of an issue with the location of the fuel tank. This was brought to her  
attention by the dealership, following which a retrofit tow kit was installed in June of  
that year. She deposed to her understanding that this installation was designed to  
prevent the fuel tank from exploding if the vehicle became involved in a rear end  
collision. In her affidavit, Ms. Medeiros expressed the view that this was a poor solution  
to a serious problem. She believes that she is still left with a dangerous vehicle.  
[68]  
Although Ms. Medeiros does not specifically reference a Recall in her  
affidavit, Mr. Peerless’s affidavit would suggest that her vehicle was subject to the same  
recall as the plaintiff’s vehicle, namely, Recall #2013-220 issued on June 26, 2013.  
[69]  
The fifth proposed Class member, Mr. Winder, resides in Hay Lakes,  
Alberta. He deposed that, in May 2015, he purchased a 2010 Dodge Ram 3500 in  
St. Albert, Alberta for a purchase price of $22,000. He deposed to his belief, based on  
advice from the plaintiff’s counsel, that his vehicle was subject to Recall #2013-397,  
which related to the tie rod defect. This is the same Recall that pertained to  
Mr. Ramsum’s vehicle, which was issued on November 7, 2013. Mr. Winder deposed  
- 23 -  
that he began having issues with his vehicle in September 2015. At that time, he began  
experiencing something he described as a “death wobble”. He said that, when this  
occurs, it feels as if the front tires are trying to go in opposite directions simultaneously.  
He also said that the steering wheel would shake violently to the point that the truck  
would become uncontrollable.  
[70]  
Although Mr. Winder took his vehicle for an assessment at an Alberta  
dealership, he decided to perform the repairs, himself. He is a certified automotive  
mechanic with his own shop and hoist. Since the repair, the wobble is still present,  
although not as severe as it once was. The repair cost Mr. Winder some time and money  
for the parts which were required.  
[71]  
There is no evidence of any proposed Class member experiencing  
specific problems with the other Recall related defects described in the claim, namely,  
the braking defects, alternator defect, rear axle pinion nut defect, mirror wiring defect,  
clutch interlock defect, airbag defect, door switch defect or tire defect. Moreover, there  
is no evidence of any personal injury or property damage caused by or associated with  
any Recall related defect.  
H. Christopher Nobes  
[72]  
Mr. Nobes deposed that he was asked to opine on the methodologies  
identified by Mr. Kertzman in measuring Resale Value Loss. As in the case of my  
description of Mr. Kertzman’s opinion, I do not intend to review Mr. Nobes’ analysis  
in any detail. Suffice it to say that he regarded three of Mr. Kertzman’s methodologies  
as unworkable and unreliable in identifying diminished value of the Class Vehicles that  
would be attributable to the Recalls.  
- 24 -  
Stuart Shaw  
[73]  
In his affidavits, Mr. Shaw deposed to several subjects. They included:  
(1) the absence of any connection between FCA Canada and FCA US; (2) the recall  
process in Canada, which I have already addressed early on in this fiat; (3) the  
circumstances of the Recalls, including the vehicles involved and the outcome of each  
Recall; (4) circumstances relating to the vehicles owned by the five proposed Class  
Members who deposed affidavits; and (5) Mr. Shaw’s opinion on the data considered  
by Mr. Kertzman. Under this heading, I believe it necessary only to review the first and  
third of these subjects.  
[74]  
Regarding the connection between the two named defendants, Mr. Shaw  
deposed that FCA Canada is a subsidiary of FCA Ontario Holdings Limited, which, in  
turn, is a subsidiary of FCA US. Despite the intercorporate connection, he states that  
there is no operational connection. In this regard, Mr. Shaw deposed that FCA US has  
never conducted business in Canada, has no offices in Canada and did not participate  
in any of the Canadian Recalls.  
[75]  
With respect to the Recalls, Mr. Shaw reviewed the circumstances of each  
of them in considerable detail. That detail need not be restated here. Having said this, I  
will summarize his evidence and do so in the context of each of the alleged defects.  
[76]  
Ignition Switch Defects: Mr. Shaw deposed that the five Recalls for these  
defects pertained to three unique vehicle populations and addressed two unrelated  
issues. In all but one of the five Recalls, final notices were mailed out, some with  
interim notices and some without. In the one case where the final notice was not mailed,  
the Recall was superseded before the final notice was mailed. Three Recalls were  
resolved in less than a year and the other two within 15 months. The last Recall resolved  
on October 15, 2015. According to Mr. Shaw, some of the issues related to the defects  
- 25 -  
were attributable to a third-party supplier.  
[77] Braking Defect: Mr. Shaw deposed that the two Recalls for this defect  
addressed two unrelated issues in two unique vehicle populations. Final notices were  
mailed within three months and two months of the respective Recalls. One of the  
Recalls arose from parts manufactured by a third-party supplier.  
[78]  
Alternator Defect: Mr. Shaw deposed that the one Recall for this defect  
eventually required replacement of the alternator assembly. An interim notice was  
mailed within two months of the recall and a final notice was mailed within five months.  
FCA Canada determined that the problem was attributable to a design issue with the  
third-party supplier.  
[79]  
Rear Axle Pinion Nut Defect: Mr. Shaw deposed that the two Recalls for  
this defect addressed issues in two unique vehicle populations. In each case, interim  
notices were mailed approximately two months after the Recalls and final notices were  
mailed within eight months and seven months, respectively. In one case, it was felt  
necessary to mail a further notice 14 months later.  
[80]  
Fuel Tank Defect: Mr. Shaw deposed that the Recalls described in the  
plaintiff’s claim were not safety defects related to fuel tanks. Recall #2014-449  
pertained to a diesel fuel heater electrical connector. An interim notice was mailed  
within two months of the Recall and the final notice was mailed within seven months.  
Recall #2015-086 pertained to a fuel rail crossover hose. A final notice on this issue  
was mailed within two months of the Recall. Recall #2015-085 pertained to a fuel pump  
relay designed by a third-party supplier. An interim notice was issued within two  
months of the Recall, followed by a final notice mailed less than four months later.  
[81]  
Mr. Shaw pointed out that the alleged fuel tank defect, as described in the  
plaintiff’s claim, was unrelated to the safety defects in the above described Recalls.  
- 26 -  
Further, he deposed that this issue was not regarded as a safety defect and FCA Canada  
was not required to submit a notice to Transport Canada. Rather, it was addressed  
through a CSN. A remedy for the issue described in the CSN was available in August  
2014 and a follow-up notice was mailed in October 2015.  
[82]  
Tie Rod Defect: Mr. Shaw deposed that the two Recalls for this defect  
addressed one issue related to the potential misalignment within the steering linkage.  
In the case of one Recall, an interim notice was mailed approximately six weeks after  
the Recall and a final notice was mailed approximately a year and a half after that. In  
the case of the other Recall, the final notice was mailed approximately six weeks after  
the Recall, with a follow-up notice mailed approximately 20 months later.  
[83]  
Mirror Wiring Defect: Mr. Shaw deposed that the one Recall for this  
defect pertained to the reassembly of the sun visor following a service repair. This  
caused the excess wire length to be damaged which posed the risk of a short. The final  
notice was mailed approximately two months after the Recall.  
[84]  
Clutch Interlock Switch Defect: Mr. Shaw deposed that the one Recall  
for this defect addressed an issue with the part manufactured by a third-party supplier.  
As I understand Mr. Shaw’s evidence, this issue pertained only to Class Vehicles with  
manual transmission. Specifically, he said that defect could allow a driver to start the  
engine without depressing the clutch pedal, which could result in unintended vehicle  
movement. An interim notice was mailed within two months of the Recall and a final  
notice issued approximately six weeks later.  
[85]  
Airbag Defect: Mr. Shaw deposed that the four Recalls for this defect  
addressed two unrelated issues affecting two unique vehicle populations for two of the  
Recalls within two months of their respective issue. The final notice was not issued  
until three years later. As I read Mr. Shaw’s affidavit, the delay appears to have been  
- 27 -  
attributable to an initial remedy having been superseded by the third Recall, thereby  
requiring a different remedy. The fourth Recall, pertaining to a separate airbag issue,  
was resolved through a final notice mailed less than two months after the Recall.  
[86]  
Door Switch Defect: Mr. Shaw deposed that the one Recall for this defect  
pertained to the potential for moisture to intrude inside the door and causing a short in  
the door switch. This increased the risk of the door opening at low speed. An interim  
notice was mailed approximately three months after the Recall, with the final notice  
mailed five weeks later.  
[87]  
Tire Defect: Mr. Shaw deposed that the one Recall for this defect  
pertained simply to the programmed maximum speed limit exceeding the maximum  
tire speed rating. He also deposed that the remedy was to program the powertrain  
control module with a revised maximum speed limit. The final notice was mailed  
approximately a month after the Recall.  
[88]  
In summarizing the Recalls, Mr. Shaw noted that, if the plaintiff’s action  
is certified, it would encompass a total of 130 different combinations of models and  
model years of FCA vehicles. He further deposed that he was not aware of any  
connection or commonality among the defects identified in the Recalls.  
Law and Analysis Certification  
The Class Actions Act s. 6(1)  
[89]  
The requirements for certification of a class action are well known. In  
Saskatchewan, they are set out in s. 6(1) of The Class Actions Act, SS 2001, c C-12.01  
[CAA], which reads as follows:  
6(1) Subject to subsections (2) and (3), the court shall certify an action  
as a class action on an application pursuant to section 4 or 5 if the court  
is satisfied that:  
- 28 -  
(a) the pleadings disclose a cause of action;  
(b) there is an identifiable class;  
(c) the claims of the class members raise common issues, whether  
or not the common issues predominate over other issues affecting  
individual members;  
(d) a class action would be the preferable procedure for the  
resolution of the common issues; and  
(e) there is a person willing to be appointed as a representative  
plaintiff who:  
(i) would fairly and adequately represent the interests of the  
class;  
(ii) has produced a plan for the class action that sets out a  
workable method of advancing the action on behalf of the  
class and of notifying class members of the action; and  
(iii) does not have, on the common issues, an interest that is  
in conflict with the interests of other class members.  
[90]  
As articulated in numerous authorities, a certification contest is not a test  
of the action’s merits. Rather, the requirements are to be considered in the context of  
the three accepted goals of class proceedings (judicial economy, access to justice and  
behaviour modification). The certification requirements provide a framework that  
allows for the meaningful realization of the three goals on a class basis. Within this  
framework the designated judge is to assess whether the action is appropriately  
prosecuted as a class action. See Hollick v Toronto (City), 2001 SCC 68 at para 16,  
[2001] 3 SCR 158 [Hollick].  
[91]  
The focus on the form of a proposed class action defines and informs the  
plaintiff’s burden to establish the certification requirements. Because certification is not  
a test of the merits, the burden is not unduly onerous, an observation discussed in  
Hollick at para 25. The plaintiff need only show “some basis in fact” to establish the  
four evidence-based requirements in s. 6(1)(b) - (e). Of course, the cause of action  
- 29 -  
requirement in s. 6(1)(a) is not evidenced-based. It will be met if it is not “plain and  
obvious” that the claim fails to disclose a cause of action.  
[92]  
In the aftermath of Hollick, the “some basis in fact” standard for the  
assessment of the evidence-based requirements has been a source of considerable  
argument and debate. The controlling authority on the application of that standard is  
the Supreme Court of Canada judgment in Pro-Sys Consultants Ltd. v Microsoft  
Corporation, 2013 SCC 57, [2013] 3 SCR 477 [Pro-Sys]. In Pro-Sys, the Court rejected  
the defence submission that “some basis in fact” was synonymous with proof on the  
balance of probabilities. In doing so, Rothstein J. revisited the discussion in Hollick and  
characterized the “some basis in fact” standard as a “meaningful screening device”.  
While not synonymous with proof on the balance of probabilities, Rothstein J.  
articulated the view that something more than “symbolic scrutiny” is required.  
Specifically, Rothstein J. said the following at paras. 103-104:  
103 it has been well over a decade since Hollick was decided, and  
it is worth reaffirming the importance of certification as a meaningful  
screening device. The standard for assessing evidence at certification  
does not give rise to “a determination of the merits of the proceeding”  
(CPA, s. 5(7) [Class Proceedings Act, RSBC 1996, c 50]); nor does it  
involve such a superficial level of analysis into the sufficiency of the  
evidence that it would amount to nothing more than symbolic scrutiny.  
104 In any event, in my respectful opinion, there is limited utility in  
attempting to define “some basis in fact” in the abstract. Each case  
must be decided on its own facts. There must be sufficient facts to  
satisfy the applications judge that the conditions for certification have  
been met to a degree that should allow the matter to proceed on a class  
basis without foundering at the merits stage by reason of the  
requirements of s. 4(1) of the CPA not having been met.  
[93]  
The analysis in Pro-Sys has been considered in several Saskatchewan  
authorities. These include such relatively recent cases as Pederson v Saskatchewan  
(Minister of Social Services), 2016 SKCA 142 at paras 28-29, 408 DLR (4th) 661  
[Pederson]; G.C. v Merck Canada Inc., 2019 SKQB 42 at para 33; MacInnis v Bayer  
- 30 -  
Inc. 2020 SKQB 307 at para 104; and Kish v Facebook Canada Ltd., 2021 SKQB 198  
at para 12.  
[94]  
In discussing the certification requirements and their application to the  
matter before the Court, I do not intend to address them in the order they appear in  
s. 6(1) of the CAA. Given the nature and character of this claim, I think it preferable to  
begin the discussion with the two most significant requirements. In my view, they are  
the disclosed cause of action and common issues requirements, respectively set out in  
ss. 6(1)(a) and (c) of the CAA.  
Cause of Action s. 6(1)(a)  
Relevant principles  
[95]  
The certification requirement in s. 6(1)(a) of the CAA is the only element  
for which evidence is neither helpful nor admissible. It is strictly a pleadings-based  
stipulation, grounded on whether the plaintiff’s claim, as worded, discloses a cause of  
action.  
[96]  
With the 2015 amendments to the CAA, and some clarifying comments  
in Pederson, it is now well settled that the test engaged by s. 6(1)(a) is the so-called  
“plain and obvious test”. This is the longstanding test primarily employed in  
applications to strike pleadings for failing to disclose a reasonable claim or defence,  
under what is now Rule 7-9(2)(a) of The Queen’s Bench Rules. Simply stated, the test  
requires the chambers judge to determine whether the alleged facts, if proven to be true,  
are sufficient to establish the elements of the asserted cause of action. See Venture  
Construction Inc. v Saskatchewan (Ministry of Highways and Infrastructure), 2015  
SKQB 70 at para 7, [2015] 10 WWR 467 [Venture] and Reisinger v J.C. Akin Architect  
Ltd., 2017 SKCA 11 at para 20, 411 DLR (4th) 687.  
- 31 -  
[97]  
In Venture, this Court summarized the five essential principles to be  
considered in a Rule 7-9(2)(a) application:  
a. the claim should be struck where, assuming the plaintiff proves  
everything alleged in the claim there is no reasonable chance of  
success;  
b. the jurisdiction to strike a claim should only be exercised in plain and  
obvious cases where the matter is beyond doubt;  
c. the Court may consider only the claim, particulars furnished pursuant  
to a demand and any document referred to in the claim upon which  
the plaintiff must rely to establish its case;  
d. the Court can strike all, or a portion of the claim;  
e. the plaintiff must state sufficient facts to establish the requisite legal  
elements for a cause of action.  
[98]  
While properly particularized pleadings are obviously important, it must  
be understood that, in the context of s. 6(1)(a), a claim’s technical failings will rarely  
defeat certification. This understanding is reflected in a number of authorities, including  
Sorotski v CNH Global N.V., 2007 SKCA 104, [2008] 1 WWR 386, where the Court  
concluded that a case management judge should read a statement of claim “with a view  
to accommodating inadequacies arising due to ‘drafting deficiencies’”. Similarly, in  
Evans v General Motors of Canada Co., 2019 SKQB 98, [2019] 10 WWR 725 [Evans],  
a decision of Barrington Foote J.A. (ex officio), the Court accepted that a cause of action  
may be disclosed despite the presence of “serious technical flaws”.  
- 32 -  
Application to the Pleaded Causes of Action  
[99]  
Under this heading I will separately address each of the causes of action  
pleaded in the plaintiff’s claim.  
Negligence  
[100]  
The plea in negligence is set out in paras. 77-80 of the claim, and reads  
as follows:  
77. The Defendants have a duty to design, manufacture, and market  
vehicles that are reasonably safe for their intended uses, and to  
provide true and accurate information to the public to prevent  
undue risks arising from the foreseeable use of its products.  
78. The Defendants were negligent, and breached the duty they  
owed to the Plaintiff and Class.  
79. The following acts and omissions by the Defendants were  
negligent:  
(a) Failure to properly and adequately design, develop, and  
test Class Vehicles;  
(b) The failure to notify the Class Members and safety  
authorities of the defective vehicles; failure to properly  
and adequately warn of the dangers attendant upon use of  
Class Vehicles.  
(c) Prior to and during the design, manufacturing, marketing,  
and sale of the subject vehicles and thereafter, the  
Defendants knew, or in the exercise of reasonable care  
should have known, that other feasible and safer design  
alternatives were available to them which would have  
significantly reduced the risk posed to Class Members by  
the Class Vehicles. The Defendants negligently failed to  
utilize such other and feasible safer designs in their design  
of the Class Vehicles.  
80. As a result of the foregoing, the Plaintiff and the Class have  
suffered economic damages in an amount to be proven at trial,  
members of the Class have suffered personal injury, and  
members of the Class have been endangered.  
[101]  
When considering the plaintiff’s claim in negligence, it must include  
- 33 -  
material facts pertaining to the tort’s five essential elements. They are: (1) a duty of  
care owed by the defendant to the plaintiff; (2) a failure by the defendant to meet the  
standard of care required by the duty; (3) compensable damages sustained by the  
plaintiff; (4) the compensable damages were caused in fact by the defendant’s breach;  
and (5) the compensable damages are not too remote in law.  
[102]  
At the outset, I do not have concerns about the plea in negligence related  
to the first two essential elements. The duty of care said to have been owed by a  
manufacturer can be reasonably inferred from the pleaded material facts. Further, I do  
not quarrel with the plaintiff’s submission that, by pleading the Recalls, she has pleaded  
material facts to support the conclusion that FCA breached the requisite standard of  
care. While the Recalls, by themselves, do not amount to proof of substandard conduct,  
I am satisfied that, given the legal framework in the MVSA and the MVSR, pleading  
their existence is probably sufficient to disclose a cause of action, albeit barely so.  
[103]  
The elements relating to compensable damages present a more significant  
problem. This is because the claim in negligence, whether pleaded as negligent design,  
failure to warn or failure to consider safer design alternatives, asserts entitlement to  
“economic damagesand damages for personal injury. While damages for negligently  
caused personal injury and property loss are clearly compensable, the claim for  
“economic damages” is more problematic. As pleaded, the economic damages are said  
to take the form of repair/replacement costs and diminished resale value of some Class  
Vehicles. In the legal vernacular, these are claims for pure economic loss, which  
conceptually differ from claims in negligence premised on actual personal injury and/or  
damage to property.  
[104]  
The most recent pronouncement from the Supreme Court of Canada on  
claims in negligence for pure economic loss is the judgment in 1688782 Ontario Inc. v  
Maple Leaf Foods Inc., 2020 SCC 35, 450 DLR (4th) 181 [Maple Leaf]. Maple Leaf is  
- 34 -  
the latest in an evolution of judgments on pure economic loss, following earlier  
decisions in Rivtow Marine Ltd. v Washington Iron Works, [1974] SCR 1189; Winnipeg  
Condominium Corporation No. 36 v Bird Construction Co., [1995] 1 SCR 85  
[Winnipeg Condominium]; Martel Building Ltd. v Canada., 2000 SCC 60, [2000] 2  
SCR 860; and Deloitte & Touche v Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2  
SCR 855 [Livent].  
[105]  
An understanding of the decision in Maple Leaf is assisted by a brief  
review of the facts. The plaintiffs commenced a proposed class action on behalf of  
restaurant franchisees over a listeria outbreak at the defendant’s factory. Under their  
franchise agreements, the franchisees were obliged to acquire specific meat products  
from the defendant. These acquisitions did not occur through a direct contractual  
relationship. Rather, orders were placed with a distributor who would, in turn, order  
from the defendant. The listeria outbreak forced the defendant to recall the products,  
causing the franchisees to experience shortages for six to eight weeks. In the proposed  
class action, the franchisees sought compensation for lost past and future sales, past and  
future profits, capital value of their franchises and goodwill.  
[106]  
The defendant brought a motion for summary judgment, positing that it  
did not owe the franchisees a duty of care. At first instance, the motion failed. It was  
subsequently reversed by the Ontario Court of Appeal.  
[107]  
In a 5-4 split decision, the Supreme Court of Canada dismissed the appeal.  
Two central issues factored in the Court’s decision. First, the majority judgment, jointly  
penned by Brown and Martin JJ, found that the defendant did not owe a duty of care in  
tort to the plaintiffs. In this regard, the Court reaffirmed its earlier view, expressed in  
such authorities as Livent, that the existence of a duty of care depends on the existence  
of a sufficiently relevant proximate relationship between the parties and the  
foreseeability of injury. Both the majority and dissenting judgments agreed that the  
- 35 -  
proximity of the relationship remained a “controlling concept” and a “foundation of the  
modern law of negligence” (para. 21). While the dissenting justices were prepared to  
accept the existence of a duty of care, the majority did not. On the facts of the case in  
Maple Leaf, the majority expressed a degree of discomfort about permitting a party to  
use tort law to circumvent the kind of multipartite allocation of risk that existed in the  
arrangements between the defendant, the franchisor and the franchisees.  
[108]  
The second issue that factored in Maple Leaf surrounded the Court’s  
decision to revisit the liability analysis for the negligent supply of shoddy goods and  
structures. Its earlier analysis is reflected in Winnipeg Condominium, where the Court  
found that the builder of a condominium property owed a duty of care to a subsequent  
purchaser for defective exterior cladding. The cladding had broken off and fallen nine  
storeys. As the majority in Maple Leaf observed at para. 43, the duty of care analysis in  
that case, articulated by La Forest J., premised itself on the presence of danger in the  
form of reasonable foreseeability of injury to persons or property:  
43  
On that question, and for the Court, La Forest J. recognized a  
duty of care based on the reasonable foreseeability of injury to “other  
persons and property in the community” (para. 21). In doing so, he  
posited that the presence of danger was the linchpin of the analysis.  
As he emphasized, the building structure in this case was “not merely  
shoddy; it was dangerous” (para. 12 (emphasis added)). Further, he  
added that “the degree of danger to persons and other property”  
created by the negligent construction is “a cornerstone” of the analysis  
that must be undertaken in determining whether the cost of repair is  
recoverable in tort (ibid. (emphasis added)). As opposed to merely  
substandard construction, only those defects that posed “a real and  
substantial danger to the occupants of the building” and had “the  
capacity to cause serious damage to other persons and property in the  
community” were actionable (para. 21). Returning to this point later  
in his reasons, he reiterated:  
[T]he facts of the present case ... fall squarely within the category  
of what I would define as a “real and substantial danger”. It is clear  
from the available facts that the masonry work ... was in a  
sufficiently poor state to constitute a real and substantial danger to  
inhabitants of the building and to passers-by. The piece of  
cladding that fell from the building was a storey high, was made  
- 36 -  
of 4” thick Tyndall stone, and dropped nine storeys. Had this  
cladding landed on a person or on other property, it would  
unquestionably have caused serious injury or damage. [Emphasis  
added; para. 38.]  
Given the “reasonable likelihood that a defect in a building will cause  
injury to its inhabitants ... if it poses a real and substantial danger”, the  
Court held that a builder owed a duty to take reasonable care in the  
design or construction of building structures to avoid creating a real  
and substantial danger to health and safety (para. 36).  
[109]  
Following this observation, the majority in Maple Leaf went on to address  
the nature of the plaintiff’s endangered right that will inform the existence of a duty of  
care a right measured in proportion to the threat of harm. Aside from the real and  
substantial character of the threat, the measure also includes an “imminent” threat. In  
this regard, the majority wrote the following at paras. 44-46:  
44  
At first glance, the liability rule in Winnipeg Condominium  
Corp. No. 36 may appear curious, since it appears as though liability  
is imposed not in respect of damage that has occurred to the plaintiff’s  
rights, but in respect of a real and substantial danger thereto. As a  
general principle, there is no liability for negligence “in the air”, for  
“[t]here is no right to be free from the prospect of damage” but “only  
a right not to suffer damage that results from exposure to unreasonable  
risk” (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para.  
33 (emphasis in original); Clements (Litigation Guardian of) v.  
Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 16; Ratych v.  
Bloomer, [1990] 1 S.C.R. 940, at p. 964).  
45  
We maintain, however, that, properly understood, the liability  
rule in Winnipeg Condominium Corp. No. 36 is consonant with that  
principle. In that case, the Court was clear about the source of the right  
to which the duty of care corresponds: the plaintiff’s rights in person  
or property (paras. 21, 36 and 42). Where a design or construction  
defect poses a real and substantial danger that is, what Fraser C.J.A.  
and Côté J.A. described in Blacklaws v. 470433 Alberta Ltd., 2000  
ABCA 175 (Alta. C.A.), at para. 62, as “imminent risk” of “physical  
harm to the plaintiffs or their chattels” or property — and the danger  
“would unquestionably have caused serious injury or damage” if  
realized, given the “reasonable likelihood that a defect ... will cause  
injury to its inhabitants”, it makes little difference whether the plaintiff  
recovers for an injury actually suffered or for expenditures incurred in  
preventing the injury from occurring (Winnipeg Condominium Corp.  
No. 36, at paras. 36 and 38; see also Morrison Steamship Co. v.  
- 37 -  
“Greystoke Castle” (The) (1946), [1947] A.C. 265 (U.K. H.L.), at p.  
280; Murphy v. Brentwood District Council (1990), [1991] 1 A.C. 398  
(U.K. H.L.), at p. 488, per Lord Oliver of Aylmerton). Thus, the  
economic loss incurred to avert the danger “is analogized to physical  
injury to the plaintiff’s person or property” (P. Benson, “The Basis for  
Excluding Liability for Economic Loss in Tort Law”, in D. G. Owen,  
ed., Philosophical Foundations of Tort Law (1995), 427, at p. 429).  
The point is that 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” (ibid, at p. 440; see also Aktieselskabet Cuzco v.  
Sucarseco, 294 U.S. 394 (U.S. Sup. Ct. 1935), at p. 404).  
46  
As we see it, then, recovery for the economic loss sustained in  
Winnipeg Condominium Corp. No. 36 was founded upon the idea that,  
in the eyes of the law, the defendant negligently interfered with rights  
in person or property. We see this as having been La Forest J.’s point  
in Winnipeg Condominium Corp. No. 36 where he explained:  
If a contractor can be held liable in tort where he or she constructs  
a building negligently and, as a result of that negligence, the  
building causes damage to persons or property, it follows that the  
contractor should also be held liable in cases where the dangerous  
defect is discovered and the owner of the building wishes to  
mitigate the danger .... In both cases, the duty in tort serves to  
protect the bodily integrity and property interests of the  
inhabitants of the building. [Emphasis added; para. 36.]  
In our view, this normative basis for the duty’s recognition — that it  
protects a right to be free from injury to one’s person or property —  
also delimits its scope. This is because this basis vanishes where the  
defect presents no imminent threat.  
[Emphasis added]  
[110]  
Application of the above analysis to product liability claims for pure  
economic loss is obvious. An illustration of this is well reflected in Carter v Ford Motor  
Company of Canada, 2021 ONSC 4138 [Carter]. In Carter, the plaintiffs alleged that  
the defendant manufactured certain vehicles with defective water pumps, which had  
resulted, and could result, in catastrophic damage to the engine. The claim further  
alleged that the damage could lead to dangerous situations for drivers and passengers.  
Although the plaintiffs claimed that the defect presented a “real and substantial danger”,  
they did not plead that it presented an imminent danger. The claim also included pleas  
- 38 -  
for remedies based on negligent manufacturing, failure to warn, as well as claims  
sounding in contract, unjust enrichment and disgorgement.  
[111]  
The Court certified the claim but only for negligent design. It refused to  
certify the other causes of action. In his consideration of the claim in negligence,  
Perell J. grouped the proposed class members in three groups relative to the nature of  
their product liability claims. Personal injury claimants consisted of proposed class  
members who experienced water pump failure and suffered a resulting personal injury.  
Property damage claimants consisted of proposed class members who experienced  
water pump failure which resulted in damage to the subject vehicle. The third group,  
described as Group “C” or the “risk of personal or property damage claimants”,  
consisted of proposed class members who had not experienced water pump failure but  
had become aware of dangers inherent in the use of their vehicles because of the defect.  
[112]  
After observing that the plaintiffs had properly pleaded negligent design,  
but not negligent manufacturing, Perell J. went on to address the state of the law arising  
from the judgment in Maple Leaf. Before discussing the details of the analysis in Maple  
Leaf, he began by discussing the impact of that analysis on the circumstances of the  
case before him. This discussion, at paras. 98-100, reads as follows (footnotes omitted):  
98  
As discussed further below, 1688782 Ontario Inc. v. Maple  
Leaf Foods Inc., holds that defects in goods that do not present  
imminent threats are not compensable under tort law and are properly  
only the subject of contract law. In my opinion, Ford Motor Co. is  
correct that the pure economic products liability claims for Group “C”  
fail to disclose a cause of action because the Plaintiffs do not and  
cannot plead material facts capable of establishing a real and  
substantial danger to the putative Class Members. In the immediate  
case, the pure economic loss claim is not legally tenable, and it is  
precluded by the current state of the law. An implication of this  
conclusion is that the putative Class Members who constitute Group  
“C” must be excluded from the class definition.  
99  
Pure economic loss is economic loss that is unconnected to  
injury to the plaintiff’s person, or to physical damage to property. The  
- 39 -  
putative Class Members of Group “C” have an allegedly shoddy  
product. However, the established case law is that there is no recovery  
in negligence for a shoddy product other than for the cost of repairing  
a shoddy and dangerous product that presents an imminent real and  
substantial danger. The putative Class Members in Group “C,” which  
would appear to be the largest sized component of the class, have not  
yet suffered any personal or property loss, and their only claim is  
therefore a pure economic loss claim.  
100 For Group “C” claimants, the Plaintiffs are confronted with the  
problems of what in law counts for a product that presents an imminent  
real and substantial danger. The Plaintiffs are confronted with the  
ironical problem that they appear to be seeking compensation for  
repairing an allegedly dangerous product by replacing it with the same  
product, and this is ironic because the case law establishes that the  
public policy for allowing a pure economic loss claim in negligence  
and not leaving the parties to their contractual remedies is to take the  
dangerous product out of circulation not to continue its use by  
purchasing the same product. The Plaintiffs are confronted with the  
problem that apart from claiming the pure economic loss of repairing  
an allegedly defective and dangerous product, they are precluded from  
other economic losses such as the diminution in value of their vehicle,  
which would, in any event, be a difficult claim to prove since the  
vehicles will have depreciated in value over many years of purposeful  
non-defective use.  
Perell J. then summarized the analysis from Maple Leaf at para 103:  
103  
In their explanation of the law, Justice Brown and Martin  
explain that the liability rule from Winnipeg Condominium Corp No.  
36 v. Bird Construction Co., 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. In other words, it is a predicate for recovery for the pure  
economic loss that the goods present an imminent real and substantial  
danger to health and safety.  
[Emphasis added]  
[113]  
I am persuaded that the analysis in Carter applies here. In her assertion  
that Class Members were endangered, the plaintiff has simply pleaded the existence of  
- 40 -  
danger, without any averment as to the nature or quality of the danger. Importantly, she  
does not plead any material facts to support a “real and substantial” danger. More  
importantly, she pleads nothing to suggest the “imminent threat” of danger. While  
pleading the existence of the Recalls is barely sufficient to disclose a plea of  
substandard care, it is not sufficient, by itself, to support a plea of imminent real and  
substantial danger. Put another way, pleading the Recalls simply to support the  
existence of potentially dangerous defects, says nothing about the nature, quality or  
imminence of the danger.  
[114]  
Accordingly, while I find that the claim barely discloses a cause of action  
for negligence, it can only be certified to the extent the negligence can be said to have  
caused proposed Class Members to suffer a personal injury. Unlike the situation in  
Carter, this claim does not allege, or even hint, that any Class Members experienced  
property damage arising from an identified defect.  
[115]  
Accordingly, I find that the claim discloses a cause of action in  
negligence, but only to the extent that such negligence caused personal injury.  
Breach of Express and Implied Warranty  
[116]  
The plea that there was a breach of an express or implied warranty is set  
out in paras. 81-82 of the claim, and reads as follows:  
81. By marketing, advertising, distributing, and selling defective  
products, while misrepresenting or failing to report the dangers  
of such products to the public, the Defendants created and  
breached both express and implied warranties that the Class  
Vehicles were safe for use as public transportation, when in fact,  
they were not.  
82. As a result of the foregoing, the Plaintiff and the Class have  
suffered economic damages in an amount to be proven at trial,  
members of the Class have suffered personal injury, and  
members of the Class have been endangered.  
- 41 -  
[117]  
It is noteworthy that this excerpt from the claim does not plead any  
material facts to identify the basis in law for an express or implied warranty claim. It is  
trite law that, other than a manufacturer’s warranty, the existence of an express or  
implied warranty can only exist by statute or contract. In the present case, there are no  
pleaded material facts to establish the existence of any express or implied warranty. It  
necessarily follows that no cause of action is disclosed.  
[118]  
Before leaving this alleged cause of action, I should note that the  
plaintiff’s argument on this point relied on two Ontario decisions, Panacci v  
Volkswagen, 2018 ONSC 6312 and Romeo v Ford Motor Co., 2018 ONSC 6772.  
Reliance on these authorities is misplaced. In both cases, the plaintiffs had pleaded and  
relied on the manufacturer’s new vehicle warranty, which were expressly referenced in  
both decisions. That is not the circumstance in the application before this Court.  
Violations of the Competition Act  
[119]  
The plaintiff pleads that FCA breached s. 52 of the Competition Act,  
thereby giving rise to a cause of action. This part of the claim is set out in paras. 83-85,  
which read as follows:  
83. At all times relevant, the Defendants violated section 52 of the  
Competition Act, R.S., 1985, c. C-34, by the use of false and  
misleading representations or omissions of material fact in  
connection with the marketing, promotion and sale of the  
defective Class Vehicles. The Defendants communicated the  
purported benefits of vehicles they knew were defective, with  
the intent that consumers, like the Plaintiff, would purchase a  
defective vehicle.  
84. As a result of violating the Competition Act, the Defendants  
caused the Plaintiff to purchase a Jeep Liberty, and caused other  
members of the Class to purchase vehicles from FCA which are  
subject to the same and other dangerous defects.  
85. As a result of the foregoing, the Plaintiff and the Class have  
suffered economic damages in an amount to be proven at trial,  
- 42 -  
members of the Class have suffered personal injury, and  
members of the Class have been endangered.  
[120]  
The plaintiff’s claim for a cause of action under the Competition Act  
engages two provisions of the statute, ss. 36 and 52. While s. 52 sets out specific  
obligations of a representor, violations of those obligations can only amount to a cause  
of action by the operation of s. 36. The relevant parts of ss. 36 and 52 read as follows:  
Recovery of damages  
36 (1) Any person who has suffered loss or damage as a result of  
(a) conduct that is contrary to any provision of Part VI, or  
(b) the failure of any person to comply with an order of the  
Tribunal or another court under this Act,  
may, in any court of competent jurisdiction, sue for and recover from  
the person who engaged in the conduct or failed to comply with the  
order an amount equal to the loss or damage proved to have been  
suffered by him, together with any additional amount that the court  
may allow not exceeding the full cost to him of any investigation in  
connection with the matter and of proceedings under this section.  
False or misleading representations  
52 (1) No person shall, for the purpose of promoting, directly or  
indirectly, the supply or use of a product or for the purpose of  
promoting, directly or indirectly, any business interest, by any means  
whatever, knowingly or recklessly make a representation to the public  
that is false or misleading in a material respect.  
Proof of certain matters not required  
(1.1) For greater certainty, in establishing that subsection (1) was  
contravened, it is not necessary to prove that  
(a) any person was deceived or misled;  
(b) any member of the public to whom the representation was  
made was within Canada; or  
(c) the representation was made in a place to which the public had  
access.  
[121]  
The application of ss. 52(1) and (1.1) in combination with s. 36(1) was  
- 43 -  
addressed in Singer v Schering-Plough Canada Inc., 2010 ONSC 42, 87 CPC (6th) 276.  
In discussing the application of the provisions, Strathy J. (as he then was) emphasized  
that, while reliance on the subject representation is not an essential element of a  
violation of s. 52(1), causation remains a central requirement. Stated more directly, a  
plaintiff must plead and prove a causal connection between the breach and discernible  
loss sustained by the plaintiff. A theoretical or abstract loss is insufficient. In this regard,  
Strathy J. wrote the following at paras. 107-108:  
107 As I have noted, s. 52(1) does not create a cause of action. The  
cause of action, or right of action, is created by s. 36. The plain  
language of that section makes it clear, as the defendants assert, that  
the plaintiff must show both a breach of s. 52 and loss or damage  
suffered by him or her as a result of that breach. That can only be done  
if there is a causal connection between the breach (the materially false  
or misleading representation to the public) and the damages suffered  
by the plaintiff. A consumer of sunscreen products cannot recover  
damages, in the abstract, simply by proving that the manufacturer  
made a false and misleading representation to the public. The failure  
of the plaintiff to plead a causal link is fatal to this claim.  
108  
Section 52(1.1) only removes the requirement of proving  
reliance for the purpose of establishing the contravention of s. 52(1).  
The separate cause of action, created by s. 36 in Part IV of the  
Competition Act, contains its own requirement that the plaintiff must  
have suffered loss or damage “as a result” of the defendant’s conduct  
contrary to Part VI. It is not enough to plead the conclusory statement  
that the plaintiff suffered damages as a result of the defendant’s  
conduct. The plaintiff must plead a causal connection between the  
breach of the statute and his damages. In my view, this can only be  
done by pleading that the misrepresentation caused him to do  
something i.e., that he relied on it to his detriment.  
[122]  
In the context of product liability cases, a discernible loss can include  
circumstances where plaintiffs plead that they acquired a product with less value than  
they expected to acquire. This was the case in Rebuck v Ford Motor Company, 2018  
ONSC 7405 [Rebuck], where Morgan J. certified a cause of action under the  
Competition Act based on the allegation that the defendant misrepresented the fuel  
efficiency ratings of certain of its vehicles. At para. 35, Morgan J. concluded that the  
- 44 -  
plaintiff had properly pleaded loss in the sense that he acquired less value than expected  
“—to spend more on gas than he thought he would spend when he purchased the  
Vehicle”.  
[123]  
The alleged misrepresentation in Rebuck involved an alleged act of  
commission, namely, the active communication of inaccurate information. In the  
context of class actions, such a misrepresentation is often described as a “common  
express misrepresentation”. Different considerations apply where a plaintiff alleges that  
an act of omission, such as the failure to disclose allegedly material information,  
amounts to an implied misrepresentation. One of the first authorities to address this  
point is the decision of Strathy J. in Williams v Canon Canada Inc., 2011 ONSC 6571  
[Williams]. In Williams, the Court held, at para. 227, that the failure to disclose an  
alleged defect or “design deficiency” in a camera did not amount to a misrepresentation  
of the kind addressed by s. 52. In this regard, Strathy J. wrote the following:  
227  
Section 52 requires that there be a “representation.” The failure to  
disclose the alleged defect cannot be a “representation.” Nor would it be a  
“representation” if one could infer from the warranty that Canon knew of  
no inherent defects in the Cameras an inference that cannot reasonably  
be drawn in any event. Finally, what the plaintiffs claim is a “slogan” —  
“You always get your shot” — which is not pleaded with any particularity,  
is nothing more than puffery and not an actionable representation:  
see Telus Communications Co. v. Bell Mobility Inc., 2007 BCSC  
518 (B.C. S.C. [In Chambers]) at para. 19 (“on the most powerful network  
in Western Canada”); Stone v. Galaxy Motors Inc., [1991] B.C.J. No.  
334 (B.C. S.C.) (“best car on the lot”). I am simply unable to find that any  
of the pleaded misrepresentations is capable of sustaining a cause of  
action.  
[124]  
Williams was followed in Arora v Whirlpool Canada LP, 2012 ONSC  
4642, 24 CPC (7th) 68, aff’d 2013 ONCA 657, 44 CPC (7th) 223, leave to appeal denied  
2014 CarswellOnt 3031, 473 NR 387 (note). In that case, the claim for a proposed class  
action alleged defects in the self-cleaning mechanism of washing machines  
manufactured by the defendant. The claim alleged that the defects resulted in the growth  
- 45 -  
of mold, mildew and bacteria on inaccessible parts inside the machines. The plaintiffs  
asserted a breach of s. 52(1), arguing that the defendant’s failure to advise consumers  
of the defect amounted to a misrepresentation by omission. Perell J. rejected the  
argument and found it plain and obvious there could be no cause of action under s. 52.  
Relying in part on the decision in Williams, Perell J. concluded that the manufacturer  
“was not under an obligation to disparage its own product and disclose the alleged  
design defect” (para. 197). When this conclusion was affirmed by the Ontario Court of  
Appeal, Hoy J.A. expressly adopted the comments of Strathy J. in Williams. He also  
noted that, unlike certain other statutes, the Competition Act did not impose a general  
duty of disclosure. In this regard, he said the following at para. 50:  
50  
I agree that where, as here, there is no common express  
representation pleaded which could convert an omission into a  
misrepresentation by implication, and there is no duty to disclose, it is  
plain and obvious that a claim for breach of s. 52 cannot  
succeed. Section 52 of the Competition Act does prohibit "material"  
false or misleading representations. However, unlike statutes such as  
provincial securities legislation, which require the provision of "full,  
true and plain disclosure of all material facts" (see e.g. Securities Act,  
R.S.O. 1990, c. S-5, s. 56(1)), the Competition Act does not impose a  
general duty of disclosure.  
[125]  
In the present case the plaintiff does not plead anything close to a  
common express misrepresentation. Aside from the improper reliance on “omissions of  
material fact”, the other references to misrepresentations are deliberately vague and  
non-specific. In the context of the claim, read as a whole, I am satisfied that these  
references can only be construed as asserting misrepresentations based on failure to  
disclose the issues raised in the Recalls. This is insufficient to disclose a cause of action  
and I so find.  
Violations of Consumer Protection Legislation  
[126]  
The plea that FCA breached consumer protection legislation, thereby  
- 46 -  
giving rise to a cause of action, is set out in paras. 86-91 but only with respect to  
residents of Saskatchewan. These allegations read as follows:  
86. Pursuant to s. 21(1) of The Consumer Protection and Business  
Practices Act, SS 2014, c C-30.2 (“The CPA”), FCA is deemed  
to give the Plaintiff and Class Members residing in  
Saskatchewan the same statutory warranties respecting the  
Class Vehicles as a retail seller is deemed to have given  
pursuant to s. 19(b) to (h) of The CPA.  
87. s. 19(d) of The CPA imposes statutory warranties on FCA to  
ensure that the Class Vehicles are of acceptable quality.  
88. s. 19(e) of The CPA imposes statutory warranties on FCA to  
ensure that the Class Vehicles are fit for their intended purposes  
as motor vehicles.  
89. s.19(g) of The CPA imposes statutory warranties on FCA to  
ensure that the Class Vehicles and all its components are to be  
durable for a reasonable period.  
90. FCA breached statutory warranties contrary to s. 19(d)-(e) and  
(g) of The CPA by selling Class Vehicles with defects subject to  
Recall, which are:  
(a) of unacceptable quality;  
(b) are unfit for their intended purposes as motor vehicles; and  
(c) containing defective components are not durable for a  
reasonable period.  
91. Pursuant to s. 28(1) of The CPA, Class Members who are  
Saskatchewan residents are entitled to make a claim for  
damages against FCA for breach of statutory warranties.  
[127]  
In Saskatchewan, the applicable consumer protection legislation is the  
CPBPA. It should first be noted that, under the definitions in the CPBPA, FCA Canada  
would be a “manufacturer” within the applicable definition. As the plaintiff’s claim  
suggests, this has significance in the application of the statutory warranties under s. 19  
of the statute. In this regard, ss. 19 and 21 of the CPBPA read as follows:  
- 47 -  
Statutory warranties  
19 If a consumer product is sold by a retail seller, the following  
warranties are deemed to be given by the retail seller to the consumer:  
(a) that the retail seller has a right to sell the consumer product;  
(b) that:  
(i) at the time of delivery to the consumer, the consumer  
product is and will remain free from any security interest, lien,  
charge or encumbrance not expressly disclosed or actually  
known to the consumer before the sale is made; and  
(ii) the consumer will enjoy quiet possession of the consumer  
product except to the extent that it may be disturbed by any  
person entitled to any security interest, lien, charge or  
encumbrance disclosed or actually known to the consumer  
before the sale is made;  
(c) if the sale of the consumer product is a sale by description, that  
the consumer product corresponds with the description;  
(d) that the consumer product supplied under the contract is of  
acceptable quality, except that this warranty is deemed not to be  
given:  
(i) respecting defects specifically drawn to the consumer’s  
attention before the contract is made; or  
(ii) if the consumer examines the consumer product before the  
contract is made, respecting defects that the examination  
ought to have revealed;  
(e) if the consumer expressly or by implication makes known to  
the retail seller any particular purpose for which the consumer  
product is being bought, that the consumer product supplied under  
the contract is reasonably fit for that purpose, whether or not that  
is a purpose for which the consumer product is commonly  
supplied, except that this warranty is deemed not to be given if the  
circumstances show that:  
(i) the consumer does not rely on the retail seller’s skill or  
judgment; or  
(ii) it is unreasonable for the consumer to rely on the retail  
seller’s skill or judgment;  
(f) if the sale of the consumer product is a sale by sample:  
- 48 -  
(i) that the bulk of the consumer product corresponds in  
quality with the sample;  
(ii) that the consumer is to have a reasonable opportunity to  
compare the bulk of the consumer product with the sample;  
(iii) that the consumer product is free from any defect that  
renders it not of acceptable quality and that would not be  
apparent on reasonable examination of the sample;  
(g) that the consumer product and all its components are to be  
durable for a reasonable period, having regard to all the relevant  
circumstances of the sale, including:  
(i) the description and nature of the consumer product;  
(ii) the purchase price;  
(iii) the express warranties of the retail seller or manufacturer;  
and  
(iv) the necessary maintenance the consumer product  
normally requires and the manner in which it has been used;  
(h) if the consumer product normally requires repairs, that spare  
parts and repair facilities will be reasonably available for a  
reasonable period after the date of sale of the consumer product.  
Manufacturers deemed to give statutory warranties  
21(1) For the purposes of subsection (2), “retail seller” includes those  
persons who are excluded from the definition of retail seller in clause  
10(1)(k).  
(2) Subject to subsection (3), the manufacturer of consumer products  
is deemed to give to consumers of those consumer products the same  
statutory warranties respecting those consumer products as the retail  
seller is deemed to have given pursuant to clauses 19(b) to (h).  
(3) A manufacturer of consumer products is liable only for the  
manufacturer’s own breach of the statutory warranties or of any  
express or additional written warranties that the manufacturer has  
given to consumers and, without limiting the generality of the  
foregoing, the application of subsection (2) is subject to the following:  
(a) no provision of clause 19(b) applies respecting any security  
interest that is not created by the manufacturer or any lien, charge  
or encumbrance not arising as the result of any act or default on  
the manufacturer’s part;  
- 49 -  
(b) no manufacturer is bound by any description applied by the  
retail seller to the consumer products without the authority or  
consent of the manufacturer;  
(c) for the purposes of clause 19(d), the consumer is deemed to  
have notice of a defect if disclosure of the defect was made  
directly or indirectly to the retail seller and was intended by the  
manufacturer to reach the consumer and in the normal course of  
events could reasonably be expected by the manufacturer to reach  
the consumer;  
(d) no provision of clause 19(e) applies if, without the consent of  
the manufacturer, any consumer product:  
(i) is sold by a retail seller to a consumer as being fit for a  
purpose that is not the ordinary purpose of the product; or  
(ii) at the time of sale, is in a state, age or condition that makes  
it unreasonable for the consumer to conclude that the  
consumer product is fit for the purpose for which it is  
commonly supplied.  
[128]  
These provisions were considered in Evans. There the plaintiffs alleged  
that a particular vehicle model had a defect that resulted in the leak of coolant which,  
in turn, resulted in other issues, including performance problems. Barrington-Foote J.A.  
concluded that, by the operation of ss. 19 and 21 of the CPBPA, a cause of action existed  
and that it had been properly pleaded. In describing the combined operation of ss. 19  
and 21 of the CPBPA, Barrington-Foote J.A. wrote the following at para. 47:  
[47]  
The statement of claim also alleges the defendants breached  
statutory warranties pursuant to s. 19, as the Cruze had the defect. That  
section deems that certain warranties are given by retail sellers.  
Although the statement of claim does not allege that GM is a retail  
seller, s. 21 provides that a manufacturer of consumer products is  
deemed to give the warranties specified in s. 19(b)-(h). Those  
warranties include a warranty the consumer product is of acceptable  
quality and, if the consumer makes known the purpose for which the  
consumer product is being bought, that it is fit for that purpose. There  
is also a warranty that “the consumer product and all its components  
are to be durable for a reasonable period”. In my view, the statement  
of claim discloses a cause of action for breach of warranties of  
acceptable quality and fitness for the purpose imposed by s. 19 of  
the CPBPA.  
- 50 -  
It is noteworthy that, in Evans, Barrington-Foote J.A. was not satisfied that the claim  
established causes of action under consumer protection legislation in other provinces.  
Accordingly, he granted the plaintiff leave to amend the statement of claim to identify  
the breaches of consumer protection legislation in other jurisdictions.  
[129]  
The most obvious difference between the application in Evans and the  
application before this Court is the number of alleged defects and the number of  
vehicles affected. A common issues trial pertaining to only one defect for one particular  
model of vehicle would clearly be much easier to conduct. That said, the issue here  
does not pertain to the difficulty and the conduct of such a trial. Rather, the issue here  
is simply whether the statement of claim, as pleaded, discloses a cause of action under  
the statutory warranty provisions of the CPBPA. As cumbersome as it may be to  
conduct a common issues trial based on this cause of action, I am satisfied that the cause  
of action is, at the very least, disclosed in the pleading, but only for claims in  
Saskatchewan.  
[130]  
While I find there is a disclosed cause of action under the CPBPA, I think  
it important to note that the remedies for a breach of the relevant warranties are set out  
in s. 28 of the legislation. These statutory remedies, which are in addition to other  
remedies to which a consumer may be entitled, depend on whether the breach is  
remediable and of a substantial character. Where a breach is remediable and not of a  
substantial character, the responsible party is required to “make good the breach free of  
charge”. If this is not done within a reasonable time, the consumer is entitled to recover  
all reasonable costs incurred in having the breach remedied elsewhere. Further, the  
consumer is also entitled to recover damages for reasonably foreseeable losses arising  
from the breach.  
[131]  
Conversely, where the breach is of a substantial character or is not  
remediable, the consumer is entitled to reject the consumer product and recover the  
- 51 -  
purchase price from the responsible party. In addition, the consumer may also recover  
damages for reasonably foreseeable losses arising from the breach.  
[132]  
As for claims under similar legislation in other provinces, it is not  
sufficiently pleaded in the claim. Accordingly, and following the approach in Evans,  
leave is granted to amend the claim to address application of the legislation in other  
jurisdictions.  
Unjust Enrichment  
[133]  
The plea alleging unjust enrichment is set out in paras. 99-101 of the  
claim, and reads as follows:  
99. The Plaintiff and Class unknowingly conferred a benefit upon  
the Defendants by paying for a vehicle which was in fact,  
unreasonably defective and dangerous for use as a vehicle.  
100. The circumstances, as described in this Statement of Claim are  
such that allowing the Defendants to retain the money paid by  
the Plaintiff and Class would be inequitable.  
101. The Defendants have been unjustly enriched at the expense of  
the Plaintiff and the Class and, as a matter of equity, the  
Defendants should be required to make them whole by  
disgorging the purchase price of each vehicle which should be  
ordered disgorged and distributed on a Class wide aggregate  
basis.  
[134]  
In the class action jurisprudence, involving product liability claims,  
courts have certified causes of action for unjust enrichment. The decisions of this Court  
in such authorities as Evans and Thorpe v Honda Canada Inc., 2011 SKQB 72, 373  
Sask R 71, are examples of such findings. In my view, these authorities have now been  
overtaken by the Supreme Court of Canada judgment in Atlantic Lottery Corporation  
Inc. v Babstock 2020 SCC 19, 447 DLR (4th) 543 [Atlantic Lottery]. I am persuaded  
that Atlantic Lottery, along with a very recent decision of the Alberta Court of Appeal,  
has shone a new light on the concept of restitution for unjust enrichment one that  
- 52 -  
fundamentally alters its application to class actions for product liability cases. I will  
explain.  
[135]  
In Atlantic Lottery, the Supreme Court of Canada recognized the  
existence of two forms of gain-based remedies, namely, “restitution” and  
“disgorgement”. In doing so, the Court noted, at paras. 23-24, the substantive  
distinction between the two. According to the majority judgment, written by Brown J.,  
restitution applies in “circumstances where a benefit moves from a plaintiff to a  
defendant, and the defendant is compelled to restore that benefit”. Conversely,  
disgorgement refers to “awards that are calculated exclusively by reference to the  
defendant’s wrongful gain”, irrespective of damage suffered by the plaintiff (para. 23).  
Articulated more directly at para. 24, Brown J. wrote the following:  
24 In sum, then, restitution for unjust enrichment and disgorgement  
for wrongdoing are two types of gain-based remediesEach is  
distinct from the other: disgorgement requires only that the defendant  
gained a benefit (with no proof of deprivation to the plaintiff required),  
while restitution is awarded in response to the causative event of  
unjust enrichment…where there is correspondence between the  
defendant’s gain and the plaintiff’s deprivation … .  
[136]  
The Court expressly rejected the notion that disgorgement amounted to  
an independent cause of action. Rather, it held that disgorgement should be viewed as  
an alternative remedy for certain forms of wrongful conduct. Where the alleged  
wrongful conduct amounts to negligence, Brown J. concluded that disgorgement  
without proof of damage is inconsistent with such an allegation. The inconsistency is  
reflected in the fact that proof of damage is, as already discussed, an essential element  
of liability in negligence. At paras. 32-33, Brown J. described this inconsistency as  
follows:  
32 I acknowledge that disgorgement is available for some forms of  
wrongdoing without proof of damage (for example, breach of  
fiduciary duty). But it is a far leap to find that disgorgement without  
proof of damage is available as a general proposition in response to a  
defendant’s negligent conduct. Determining the appropriate remedy  
- 53 -  
for negligence, where liability for negligence has not already been  
established, is futile and even nonsensical since doing so allows “the  
remedy tail [to] wag the liability dog” (Haida Nation v. British  
Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511,  
at para. 55). This observation applies with no less force to the plaintiff  
who seeks disgorgement, since the availability of gain-based relief lies  
in “aligning the remedy with the injustice it corrects” (E. J. Weinrib,  
“Restitutionary Damages as Corrective Justice” (2000), 1 Theor. Inq.  
L. 1, at p. 23 (emphasis added)).  
33  
It is therefore important to consider what it is that makes a  
defendant’s negligent conduct wrongful. As this Court has  
maintained, “[a] defendant in an action in negligence is not a  
wrongdoer at large: he is a wrongdoer only in respect of the damage  
which he actually causes to the plaintiff” (Clements (Litigation  
Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para.  
16). There is no right to be free from the prospect of damage; there is  
only a right not to suffer damage that results from exposure to  
unreasonable risk (E. J. Weinrib, The Idea of Private Law (rev. ed.  
2012), at pp. 153 and 157-58; R. Stevens, Torts and Rights (2007), at  
pp. 44-45 and 99). In other words, negligence “in the air” — the mere  
creation of risk is not wrongful conduct. Granting disgorgement for  
negligence without proof of damage would result in a remedy “arising  
out of legal nothingness” (Weber, at p. 424). It would be a radical and  
uncharted development, “[giving] birth to a new tort over night”  
(Barton, Hines and Therien, at p. 147).  
[137]  
The potential impact of Atlantic Lottery on class actions for product  
liability became clear in Spring v Goodyear Canada Inc., 2021 ABCA 182, 459 DLR  
(4th) 315 [Spring]. The claim in Spring centred on a 2012 recall notice pertaining to six  
types of tires that the defendant manufactured at one of its plants within a defined  
period. The recall warned that the defect could result in tread separation. Although the  
representative plaintiff received the notice, he subsequently learned that his tires were  
manufactured outside the recall period. Three days later, one of his tires failed.  
[138]  
In the claim issued on behalf of the proposed class, the representative  
plaintiff’s allegations went well beyond the recalled tires. Instead, the plaintiff alleged  
potential manufacturing defects in 51 types of tires. The case management judge  
certified the claim as a class action, finding that it disclosed causes of action for  
- 54 -  
negligence in the design and manufacture of the tires, breach of the duty to warn of the  
dangerous product, unjust enrichment and waiver of tort.  
[139]  
In a per curiam judgment of the Alberta Court of Appeal, the certification  
order was set aside. There were two central reasons for the Court’s decision. One of the  
reasons articulated by the Court pertained to the issue of commonality, a matter I will  
address later in this fiat.  
[140]  
The other central reason pertained to the claim for unjust enrichment. In  
this regard, the Court noted that the plaintiff sought both restitution for unjust  
enrichment and disgorgement of the defendant’s profits. After referencing the  
distinction between restitution and disgorgement, as discussed in Atlantic Lottery, the  
Court held that the allegations of negligent manufacture or design, if proved, could not  
support the three essential elements of an unjust enrichment claim, namely (1)  
enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3)  
the absence of any juristic reason for the enrichment. Addressing the deprivation  
element, the Court held that the class members acquisition of a set of tires negated any  
suggestion they were deprived. As for the absence of juristic reason for the defendant’s  
enrichment from the sale of the tires, the Court found that such a notion was inconsistent  
with the acquisition of a benefit pursuant to a valid contract. The Court’s reasons in this  
respect are articulated in paras. 51-52:  
51  
Even though there was no direct contractual link between  
Goodyear and the class members, there is no principled reason to limit  
the “juristic reason” for benefits to those derived from a direct contract  
between the plaintiff and the defendant. Just as products liability tort  
law accepts that there is a duty owing from the manufacturer to the  
ultimate consumer despite the absence of a direct contract, so the  
benefit obtained by the manufacturer is the same despite the absence  
of that contractual link. If the ultimate consumer gets the product he  
or she paid for, the manufacturer’s duty in tort has been satisfied. The  
whole premise of manufacturer’s products liability is that if a  
manufacturer delivers a defective product to the end consumer, the  
manufacturer is liable. It is inconsistent to say that if the manufacturer  
- 55 -  
delivers a properly manufactured product to the end consumer, there  
is no juristic reason for the manufacturer’s gain. There is a juristic  
reason for the benefit (profit) that accrues to the manufacturer:  
Williams v Canon Canada [2011 ONSC 6571] at para. 232.  
52  
The claim for restitution can provide no incremental benefit to  
members of the class:  
(a) Class members who received a set of tires that did not fail,  
notwithstanding any latent defect, would have suffered no  
detriment. Mere “risk” is not a legally recognized detriment.  
(b) Class members who received a set of tires that prematurely  
became unusable because they suffered tread separation would  
be entitled to the residual replacement value of those tires.  
(c) Class members, like the representative plaintiff, who  
suffered personal injury or property damage as a result of tread  
separation would have a claim for damages, including a claim  
for the replacement cost of the tires.  
If the class members can prove negligent manufacture or design of  
their tires, they will have an adequate remedy in tort. As pointed out  
in Atlantic Lottery at para. 68, a class action to pursue a “hollow cause  
of action” would not further the goals of class actions: judicial  
economy, behavior modification, and access to justice. Resolving  
questions of law by striking claims that have no reasonable chance of  
success is consistent with the objective of “timely and affordable  
access to the civil justice system”: Atlantic Lottery at para. 18.  
[141]  
As for disgorgement, the Court was not satisfied that the representative  
plaintiff’s pleadings established any legal ground for the remedy, rooted either in  
negligence or breach of contract. Moreover, if available on either basis, the remedy  
would be limited to the value of each class member’s tires.  
[142]  
In the present case, it must first be noted that the remedy sought for unjust  
enrichment is “disgorgement of the purchase price of each vehicle”, followed by  
distribution of the disgorged amounts on a Class wide aggregate basis. The plaintiff  
does not seek restitution as part of the unjust enrichment claim. This is clearly  
inconsistent with the decision in Atlantic Lottery. If there is merit to any claim of unjust  
enrichment, the only meaningful remedy is restitution, not disgorgement of any  
- 56 -  
amounts received by FCA.  
[143] Secondly, and more importantly, the plaintiff’s pleaded allegations do not  
disclose the required elements of an unjust enrichment claim. Following the analysis  
articulated in Spring, the proposed class members could not be said to have sustained a  
deprivation when they purchased a class vehicle. Instead of the tires acquired in Spring,  
the class members received vehicles. The fact that one or more of the vehicles may have  
had safety defects, for which another remedy may be available, does not create the kind  
of deprivation contemplated in a claim for unjust enrichment. Moreover, any  
enrichment FCA may have contractually received from the sale of a class vehicle,  
whether defective or not, cannot be said to have occurred in the absence of juristic  
reason.  
[144]  
For the same reasons identified in Spring, I am satisfied that the plaintiff’s  
action for unjust enrichment is doomed to fail and cannot be certified.  
Common Issues s. 6(1)(c)  
Relevant principles  
[145]  
Section 6(1)(c) of the CAA requires that the claims of the class members  
raise common issues. As disjunctively defined in s. 2 of the CAA, “common issues” are  
either: (a) common but not necessarily identical issues of fact; or (b) common but not  
necessarily identical issues of law that arise from common but not necessarily identical  
facts. From this definition, it is also notable that s. 6(1)(c) includes the stipulation that  
such common issues need not predominate over issues which are particular to  
individual class members.  
[146]  
Canadian courts have long understood that the common issues  
requirement is at the heart of class action certification proceedings. The most recent  
- 57 -  
reaffirmation of this understanding by the Supreme Court of Canada is in Pro-Sys.  
There, at para. 106, Rothstein J. described the commonality requirement as the “central  
notion of a class proceeding”. In the same passage, he went on to recognize the wisdom  
of common litigation concerns being resolved in a central proceeding as opposed to “an  
inefficient multitude of repetitive proceedings”.  
[147]  
When considering the common issues criterion, case management judges  
have frequently observed the general propositions which Strathy J. (as he then was)  
summarized in Singer v Schering-Plough Canada Inc., 2010 ONSC 42, 87 CPC (6th)  
276 [Singer]. These non-exhaustive propositions, drawn from the then leading  
authorities, have been directly or indirectly adopted by appellate courts across Canada,  
including the Saskatchewan Court of Appeal in Pederson. As recited from para. 140 of  
Singer, the summary reads as follows (citations omitted):  
140  
The following general propositions, which are by no means  
exhaustive, are supported by the authorities:  
A: The underlying foundation of a common issue is whether  
its resolution will avoid duplication of fact-finding or legal  
analysis: …  
B: The common issue criterion is not a high legal hurdle, and  
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: …  
C: There must be a basis in the evidence before the court to  
establish the existence of common issues: As Cullity J.  
stated in Dumoulin v. Ontario [[2005] O.J. No. 3961], at para.  
27, the plaintiff is required to establish “a sufficient evidential  
basis for the existence of the common issues” in the sense that  
there is some factual basis for the claims made by the plaintiff  
and to which the common issues relate.  
D: In considering whether there are common issues, the court  
must have in mind the proposed identifiable class. There must  
be a rational relationship between the class identified by the  
Plaintiff and the proposed common issues: …  
E: The proposed common issue must be a substantial  
- 58 -  
ingredient of each class member’s claim and its resolution  
must be necessary to the resolution of that claim: …  
F: 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 for (or against)  
the class: …  
G: With regard to the common issues, “success for one  
member must mean success for all. All members of the class  
must benefit from the successful prosecution of the action,  
although not necessarily to the same extent.” That is, 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: …  
H: A common issue cannot be dependent upon individual  
findings of fact that have to be made with respect to each  
individual claimant: …  
I: Where questions relating to causation or damages are  
proposed as common issues, the plaintiff must demonstrate  
(with supporting evidence) that there is a workable  
methodology for determining such issues on a class-wide  
basis: …  
J: Common issues should not be framed in overly broad terms:  
“It would not serve the ends of either fairness or efficiency to  
certify an action on the basis of issues that are common only  
when stated in the most general terms. Inevitably such an  
action would ultimately break down into individual  
proceedings. That the suit had initially been certified as a class  
action could only make the proceeding less fair and less  
efficient”: …  
[148]  
To establish the common issues criterion, the plaintiff must meet a two-  
part evidentiary test. The test requires some basis in fact to show: (1) that the proposed  
common issues actually exist; and (2) that they can be answered across the entire class.  
It is only in this way that the Court can assess whether the resolution of the issue will  
advance the litigation as a class action. See Kuiper v Cook (Canada) Inc., 2018 ONSC  
6487 at paras 98-99.  
[149]  
Typically, the two-part evidentiary test will be met where the  
- 59 -  
representative plaintiff shows some basis in fact for the existence of a “credible or  
plausible methodology” by which a proposed common issue can be tried. See Pro-Sys  
Consultants Ltd. v Infineon Technologies AG, 2009 BCCA 503, 312 DLR (4th) 419. As  
I read the authorities, such a methodology is expected to show two things. First, it  
should involve evidence of “a plausible claim that is capable of being pursued”; see  
Miller v Merck Frosst Canada Ltd., 2013 BCSC 544 at para 166, 100 CCLT (3d) 208,  
aff’d 2015 BCCA 353, 81 BCLR (5th) 33. Secondly, the methodology should offer a  
realistic prospect of establishing the basis for loss or damage on a class-wide basis. See  
Pro-Sys at para 118 (in SCC). While not mandatory, it is common for a case  
management judge to receive expert opinion to assist in assessing the value of any such  
methodology.  
[150]  
In the present case, FCA Canada has focused much of its submission on  
the principle that a proposed common issue should not be framed in overly broad terms.  
This principle is premised on the concern that a vague and generally worded common  
issue will inevitably break down into unfair and inefficient individual proceedings. See  
Rumley v British Columbia, 2001 SCC 69 at para 29, [2001] 3 SCR 184.  
[151]  
In the context of proposed class actions for alleged defects in motor  
vehicles, FCA Canada commends the Court’s attention to a number of authorities where  
the claim focused on a single alleged defect, as opposed to the scenario of multiple  
defects in multiple models as reflected in the present claim. Included among the cited  
authorities are decisions in Ernewein v General Motors of Canada Ltd., 2005 BCCA  
540, 260 DLR (4th) 488 [Ernewein]; Poulin v Ford Motor Co. of Canada Ltd. (2006),  
35 CPC (6th) 264 (Ont Sup Ct); Reid v Ford Motor Co., 2003 BCSC 1632 [Reid]; Koubi  
v Mazda Canada Inc., 2012 BCCA 310, 352 DLR (4th) 245; Thorpe v Honda Canada,  
Inc., 2011 SKQB 72, 9 CPC (7th) 163; and Evans v General Motors of Canada Co.,  
2019 SKQB 98, [2019] 10 WWR 725.  
- 60 -  
[152]  
Two of these authorities deserve comment. In Ernewein, the proposed  
class action alleged that the defendant negligently designed certain pickup trucks by  
placing the fuel tanks outside the frame rails. The plaintiffs asserted that this amounted  
to a design defect that increased the risk of death or injury from side impact collisions.  
A lawyer in the firm representing the plaintiffs deposed an affidavit that exhibited a  
copy of a 1994 report from the then US Secretary of Transportation that contained  
conclusions said to have supported the plaintiffs’ assertions. At first instance, the  
certification judge correctly concluded that the exhibited report was not admissible  
evidence. Nonetheless, she went on to address commonality on the presumption that  
the information in the report was true.  
[153]  
On appeal, certification of the proposed action was set aside. The British  
Columbia Court of Appeal, speaking through Newbury J.A., concluded that there was  
no proper basis in fact for the proposition that the fuel tank design raised a question  
common to all the plaintiffs such that it would significantly advance the litigation. In  
doing so, the Court noted, among other things, that for a proposed question to be  
common its resolution must be applicable to all who are bound by it. The Court  
addressed the commonly held assumption that product liability claims are particularly  
suited to class action proceedings. In the view of Newbury J.A., this assumption is too  
simplistic, particularly in the formulation of common questions, which are to be  
determined contextually. In this regard, she wrote the following at para. 33:  
33 …. Since earlier cases such as Chace v. Crane Canada Inc., 44  
B.C.L.R. (3d) 264 (B.C. C.A.) and Campbell v. Flexwatt Corp., 44  
B.C.L.R. (3d) 343 (B.C. C.A.), experience has shown that not all  
product liability cases lend themselves to certification. In some, the  
complexities inherent in problems of proof of the applicable duty of  
care over a long period of time, changing manufacturing techniques,  
or multi-party involvement in the product delivery chain, have made  
the formulation of a common question problematic: see Bittner v.  
Louisiana-Pacific Corp. (1997), 43 B.C.L.R. (3d) 324 (B.C. S.C. [In  
Chambers]), Caputo, supra, and Gariepy v. Shell Oil Co. (2002), 23  
C.P.C. (5th) 360 (Ont. S.C.J.), aff’d (Ont. S.C.J.)). In each instance,  
- 61 -  
the question must be determined “contextually” — i.e., not on the  
basis of a blanket assumption regarding product liability cases but in  
light of all the evidence concerning the specific case before the court.  
In the case at bar, the plaintiffs failed to establish an evidentiary basis;  
i.e., to adduce admissible evidence, for the proposition that the  
determination of the real common issues whether the fuel system  
design(s) employed by the defendants breached the applicable  
standard(s) of care and created an unreasonable risk of harm to the  
plaintiffs would advance the litigation in a meaningful way. I  
conclude that the certification order must therefore be set aside.  
[154]  
The other decision that deserves comment is Reid. In that case, the  
proposed class action alleged that certain of the defendant’s vehicles were equipped  
with defective thick film ignition [TFI] modules which could cause the vehicles to stall  
without warning. Bearing in mind that the decision predated the judgment in Maple  
Leaf, one of the proposed common issues pertained to whether the TFI modules posed  
a real and substantial danger. The defendant, who had not yet filed its statement of  
defence, resisted certification of this issue on the basis that it was premature because of  
the argument that there were other factors which may have played a role in the failure  
rate of the TFI modules. Gerow J. disagreed. She was satisfied that, by narrowing the  
issue appropriately to questions surrounding the TFI modules, the plaintiff had  
presented a proper common issue, which was not overly broad. Although not expressly  
said in the decision, I am left with the impression that a claim based on more than one  
identifiable defect would have led to a different outcome.  
Analysis  
[155]  
I now turn back to the 17 common issues proposed by the plaintiff. In this  
discussion, it is probably helpful to repeat the list here. As advanced by the plaintiff and  
her counsel, the proposed common issues are as follows:  
1. Do some or all of the proposed Class Vehicles contain the defects as outlined  
in the Recalls? If so, which ones?  
- 62 -  
2. If the answer to Issue No. 1 is “yes”, when did or should the defendants  
have known of the defect?  
3. Are there defects in the proposed Class Vehicles as outlined in the Recalls  
that affect or are likely to affect the safety of any person?  
4. Did the defendants provide adequate warnings as to the fitness of the  
proposed Class Vehicles?  
5. Did the defendants knowingly, recklessly or negligently breach a duty to  
warn the plaintiff and other Class Members of the risks associated with  
the proposed Class Vehicles?  
6. Did the defendants knowingly, recklessly or negligently breach a duty of  
care in their manner of handling the Recalls?  
7. Did the defendants knowingly, recklessly or negligently breach any  
statutory obligations in their manner of handling the Recalls?  
8. Did the defendants breach a duty of care owed to the plaintiff and other  
Class Members and, if so, when and how?  
9. Did the defendants breach a duty of care owed to Class Members by  
designing, developing or manufacturing proposed Class Vehicles with  
the defect?  
10. Did the defendants breach express or implied warranties by selling the  
proposed Class Vehicles with the defect?  
11. Did the defendant’s breach statutory warranties pursuant to s. 16 or s. 19  
of The Consumer Protection and Business Practices Act or similar  
- 63 -  
legislation in other provinces or territories by selling proposed Class  
Vehicles with the defect?  
12. Did the defendants breach s. 52 of the Competition Act by selling  
proposed Class Vehicles with the defect?  
13. Whether the defendants have been unjustly enriched by the receipt of  
revenues from the proposed Class Vehicles?  
14. Whether the Class Members suffered a corresponding deprivation by  
paying for the proposed Class Vehicles?  
15. Whether there is any juristic reason justifying retention by the defendants,  
of some or all of the revenues from the sale of the proposed Class  
Vehicles?  
16. Whether the defendants should be required to disgorge the revenues they  
received from the sale of the proposed Class Vehicles to the plaintiff and  
other Class Members and, if so, how much and should this disgorgement  
be made in the aggregate or how should this disgorgement be distributed  
among Class Members?  
17. If one or more of the above common issues are answered affirmatively,  
can the amount of damages payable by the defendants be determined on  
an aggregate basis? If so, in what amount and who should pay such  
damages to the Class Members?  
[156]  
At the outset, it must be noted that the Court’s conclusion on the claims  
for breach of the Competition Act and unjust enrichment clearly preclude certification  
of proposed common issues 12 to 16. The Court has found that these are not plausible  
claims that can be pursued on the basis of the pleaded allegations.  
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[157]  
As for the remaining proposed common issues, I find they are framed in  
terms that are so broad they would inevitably prevent the litigation from being  
conducted, as a class action, in a fair and efficient manner. The only common thread  
running through these proposed common issues is that the Class Vehicles were subject  
to the Recalls. This common thread says nothing about the disparate nature and  
circumstances associated with the safety defects to which the Recalls pertain. It must  
be remembered that the Recalls covered 11 safety defects, involving 22 different Class  
Vehicles with different model years. In this context, it cannot be said that this common  
thread demonstrates any common issues that will help to resolve the claim.  
[158]  
It is difficult, if not impossible, to meaningfully connect the  
circumstances associated with one recalled defect to those of another. For example, a  
finding that negligent design led to a mirror wiring defect in a 2013 Jeep Grand  
Cherokee will not help in determining whether negligent design also led to tie rod  
defects in a 2012 Dodge Ram. Similarly, the circumstances associated with a possible  
failure to warn about braking defects in a 2015 Chrysler 200 says nothing about an  
alleged failure to warn about airbag defects in a 2003 Jeep Liberty. The comparison  
between defects becomes even more troublesome where the defect is singularly  
attributable to the actions of a third-party supplier.  
[159]  
Turning to another aspect of commonality, I note that the plaintiff also  
relied, at least in part, on the order of the NHTSA to support her contention on the  
proposed common issues. As I understood this submission, the plaintiff suggested that  
the consent order between the NHTSA and FCA US amounted to some basis in fact for  
commonality a submission with which FCA strenuously disagreed.  
[160]  
In my view, the plaintiff’s argument on this point is so absurd that it  
borders on the risible. As I observed in the recital of evidence, the consent order in the  
United States has no probative value for any of the certification requirements in this  
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action. The order did not assign any fault or make any liability findings for the presence  
of the defects noticed in the NHTSA recalls. While it is true that FCA US admitted fault  
for its failure to comply with the applicable timelines in effecting repairs, there is no  
similar assignment of blame or admission of fault for the Recalls in Canada. As such,  
the consent order has no significance to this action, either in the certification  
requirements or on the merits of the action itself.  
[161]  
In the result, I am not satisfied that any of the proposed common issues  
can be certified under s. 6(1)(c) of the CAA. In saying this, I accept that the Court has  
found that the plaintiff’s claim discloses two causes of action, namely, for negligence  
leading to personal injury and breach of the CPBPA. Based on these two causes of  
action, it is conceivable that proper common issues could be proposed, but only if they  
pertain to a single defect that caused personal injury or supported a claim for damages  
under s. 28 of the CPBPA, or an equivalent provision of another consumer protection  
statute. No such common issue has been proposed and I think it would be inappropriate  
for the Court, on its own accord, to propose one.  
Remaining Certification Requirements ss. 6(1)(b), (d) and (e)  
[162]  
In light of my finding that this proposed class action does not raise  
common issues, as required by s. 6(1)(c) of the CAA, it is clear that this action cannot  
be certified. As such, little purpose is served in a detailed analysis of the other  
certification requirements. Instead, I will address these requirements very briefly.  
Identifiable Class and Preferable Procedure  
[163]  
The lack of a common issue with reasonable breadth precludes  
certification of the class proposed by the plaintiff. That said, if a properly limited  
common issue had been put forward, such as an issue premised on one defect or one  
allegedly defective model of vehicle, I think an identifiable class could have been  
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found. Again, given the two certified causes of action, such a class would necessarily  
be limited to persons pursuing personal injury claims or compensable damages under  
s. 28 of the CPBPA or an equivalent provision of another consumer protection statute  
in another province.  
[164]  
I also acknowledge that the premises that would support an identifiable  
class, as described above, would also support a finding that a class action would be the  
preferable procedure for the resolution of properly articulated common issues. In this  
regard, I am mindful of the comments of Cromwell J. in AIC Limited v Fischer, 2013  
SCC 69, [2013] 3 SCR 949, and the series of questions engaged by such an inquiry,  
which he articulated in paras. 27-38. In a better framed action, with reasonably narrow  
common issues, I think the answers to these questions would likely favour a class action  
as the preferable procedure.  
Representative Plaintiff  
[165]  
At the outset, it must be noted that, even if one or more of the proposed  
common issues could be certified, the named plaintiff in this action could not be a  
member of any identifiable class. Setting aside the fact that the defect she identified  
was not the subject of a formal Recall, the evidence does not disclose that the defect led  
to a personal injury or to a loss that would be compensable under a provision similar to  
s. 28 of the CPBPA. Given the nature of the two certified causes of action, this would  
preclude the representative plaintiff from membership in an identifiable class.  
[166]  
While lack of membership in the identifiable class is not necessarily  
determinative of the issue, the circumstances of this case are such that it is clear the  
plaintiff would have no meaningful common interest with any other members of the  
class. As such, she could not continue as the action’s representative plaintiff.  
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Law and Analysis Summary Judgment  
Applicable Law  
[167]