that “no fuel consumption rating is ever going to be able to tell you what the actual fuel
consumption is going to be for all vehicles and all conditions.” It depends completely on “how I
drive my car.”
The plaintiff’s evidence is that he did not expect to achieve the 36 mpg/highway driving
estimate as set out on the EnerGuide Label but he did expect “maybe … 30, maybe 27”.
 In any event, he was not pleased with a fuel consumption of 23 mpg in highway driving.
He arranged to have the vehicle inspected by Ford dealerships, first in Florida, then in Ontario. In
each case, he was told there was “nothing wrong with the vehicle.”
 The plaintiff retained legal counsel who reviewed the test methods used by the Defendants
to generate the fuel consumption data printed on the EnerGuide Labels. Class counsel discovered
that Ford continued to use a 2-Cycle Test (a laboratory-controlled city test and a laboratory-
controlled highway test) for its 2013 and 2014 Canadian vehicles while using a more accurate 5-
Cycle Test for its American vehicles.
 The 5-Cycle Test, adopted by the American EPA in 2008, had added three new test cycles
in addition to the city and highway test: the cold temperature operation test, the hi-speed/quick-
acceleration test, and the air conditioning test. The federal Department of Natural Resources
(“NRCan”) took several more years to adopt the 5-Cycle Test and finally did so, effective 2015,
concluding that it was “more representative of typical driving conditions and styles" and would
"better approximate real-world driving conditions and behaviours".
 In a notice-letter dated September 1, 2015, class counsel advised Ford Canada that unless
the plaintiff’s concern about fuel consumption was satisfactorily resolved within 30 days, a class
action would be filed alleging unfair practices under provincial consumer protection legislation.
The primary complaint was that Ford knew that the 5-Cycle Test was a more accurate
representation of real-world driving behaviour but continued to use the 2-Cycle Test that
understated actual fuel consumption by some 15 per cent.
 Ford Canada responded on October 11, 2015 making three points: one, the data in the
EnerGuide Label was generated using Government of Canada approved and required test
methods; two, the overall purpose was to provide a fair and reliable method to compare the
relative fuel consumption of different vehicles and not to predict actual fuel consumption; and
three, that “no test” could simulate “all possible combinations of conditions that may be
experienced by your client.” More specifically, as Ford Canada explained:
The following are a few of the factors that can affect the fuel consumption of
your client's vehicle: driving style and behaviour, acceleration, braking, speed,
temperature, weather, tire pressure, type of drive system, and powered
accessories installed on the vehicle.
 Ford Canada concluded its letter by noting that “tips on driving and maintenance that will
help your client achieve optimal fuel consumption” were set out in the 2014 Fuel Consumption
Guide, that the 5-Cycle Test would take effect with the 2015 model year, and that “your client's
vehicle is operating within normal parameters and fuel consumption will vary for the reasons
described above.” The plaintiff’s complaint was obviously not resolved to his satisfaction.