CITATION: Rebuck v. Ford Motor Company, 2022 ONSC 2396  
COURT FILE: CV-16-544545-CP  
DATE: 20220615  
ONTARIO  
SUPERIOR COURT OF JUSTICE  
B E T W E E N:  
BARRY REBUCK  
Plaintiff  
- and -  
FORD MOTOR COMPANY and FORD MOTOR COMPANY OF CANADA,  
LIMITED and YONGE-STEELES FORD LINCOLN SALES LIMITED  
Defendants  
Proceeding under the Class Proceedings Act, 1992  
Justice Edward Belobaba  
BEFORE:  
COUNSEL: Irving Marks, David Taub, Michael J. Peerless, Matthew Baer, Joey Jamil and  
Emily Assini for the Plaintiff  
Hugh M. DesBrisay, Jill M. Lawrie, Catherine Beagan Flood and Jadeney Wong  
for the Ford Defendants  
HEARD:  
April 12, 13 and 14 by Zoom video with follow-up written submissions.  
Cross-motions for Summary Judgment  
[1]  
(“Defendants”) is before the court for an adjudication on the merits.  
This certified class action1 alleging misleading advertising by the Ford defendants2  
[2]  
The case involves the federal government’s EnerGuide program. The court must decide  
whether Ford Canada’s fuel consumption estimates as set out on the EnerGuide labels affixed to  
their new vehicles, model years 2013 and 2014, and repeated in their marketing material, were  
1 The action was certified as a class proceeding by Justice Morgan: see [2018] O.J. No. 6709.  
2 The claim against the dealership defendant, Yonge-Steeles Ford, has been discontinued.  
2
false or misleading under the federal Competition Act3 and certain provincial consumer protection  
statutes.4  
[3]  
Six common issues were certified initially. Class counsel, however, have narrowed their  
focus to three, renumbered as follows:  
(i)  
Did the Defendants contravene section 52 of the Competition Act (which prohibits  
false or misleading advertising)?  
(ii)  
Did the Defendants contravene sections 14 and 17 of the Consumer Protection Act,5  
and parallel provisions of provincial consumer protection legislation, by making  
false, misleading or deceptive representations?  
(iii) Are the class members entitled to damages under section 36(1) of the Competition  
Act, section 18(2) of the Consumer Protection Act and the parallel provisions of the  
consumer protection legislation in other provinces and, if so, can the damages  
payable by the defendants be determined on an aggregate basis and in what amount?  
[4]  
Both sides bring motions for summary judgment — the plaintiff urging that the common  
issues be decided in his favour and the Defendants that the class action be dismissed in its entirety.  
Both sides agree, as do I, that summary judgment is a fair and appropriate method of adjudication  
because the issues in dispute can be resolved on the filed documentation and affidavit and  
transcript evidence. I am satisfied that the merits can be decided summarily. There are no issues  
requiring a trial.6  
Background  
[5]  
When Barry Rebuck leased his new 2014 Ford Edge SUV, he reviewed the information on  
the EnerGuide Label that had been affixed by Ford Canada to the vehicle’s window. He noted that  
the vehicle’s fuel consumption was estimated to be 24 miles per gallon in city driving and 36 miles  
per gallon in highway driving. The estimated annual fuel cost was $2600.  
[6]  
Set out below is a duplicate of the EnerGuide Label used in 2014. The copy below is more  
legible than the plaintiff’s actual EnerGuide Label, portions of which over the years have become  
3 Competition Act, R.S.C. 1985, c. C-34, as am.  
4 Because of privity of contract issues (here only the manufacturer is being sued, not the dealer/retailer) class counsel  
have limited their statutory consumer protection claims to seven provinces — Ontario, British Columbia, Alberta,  
Saskatchewan, Manitoba, P.E.I. and Quebec — where privity of contract is arguably not required.  
5 Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A.  
6
The parties initially intended to proceed by way of cross-motions for summary judgment. The certification judge,  
however, concluded that the matter should be decided by way of a “hybrid trial” and made the required direction,  
leaving the final decision to the trial judge. I was appointed to hear the hybrid trial. After discussions with counsel, it  
was agreed that the matter would proceed primarily as a motion for summary judgment, leaving open the possibility  
for viva voce evidence if such was needed. As it turned out, no viva voce evidence was needed. The matter therefore  
proceeded by way of cross-motions for summary judgment just as counsel initially intended.  
3
blurred and difficult to read. The only difference in the Label below is in the fuel consumption  
numbers and the “estimated annual fuel cost.” Recall that the estimates printed on the EnerGuide  
Label for the plaintiff’s 2014 Ford Edge were 24 mpg/city and 36 mpg/highway. The estimated  
annual fuel cost was $2600. Otherwise, this was what the plaintiff read when he leased his 2014  
Ford Edge:  
[7]  
In addition to the city and highway mpg estimates, the EnerGuide Label also displayed the  
federal government’s “EnerGuide” and “Canada” marks and advised in both English and French  
that:  
The estimates are based on the Government of Canada’s approved criteria and testing  
methods;  
The actual fuel consumption of this vehicle may vary;  
One should “Refer to the Fuel Consumption Guide”;  
One can obtain a copy of the FUEL CONSUMPTION GUIDE from the dealer or by calling  
1-800-387-2000.  
[8]  
Fuel efficiency was important to the plaintiff because he and his wife drove to Florida every  
December for their winter vacation. It was on the first drive south with the new vehicle, in  
December 2014, that the plaintiff noticed that the on-board fuel consumption display was showing  
only 23 mpg while highway driving “which was far worse than the 36 miles per gallon as set out  
on the EnerGuide Label.”  
[9]  
The plaintiff understood that fuel consumption would vary widely from individual to  
individual depending on a range of factors, including one’s driving behaviour. The plaintiff agreed  
that “how you drive a car and what's inside the car and what the road conditions are and what the  
weather is like, all impacts on fuel efficiency that you are going to get.” He also understood that  
4
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.”  
[10]  
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”.  
[11] 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.”  
[12] 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.  
[13] 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".  
[14] 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.  
[15] 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.  
[16] 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.  
5
[17] In early 2016, the plaintiff filed this class action on behalf of the 600,000 persons in Canada  
who had purchased or leased a new 2013 and 2014 Ford vehicle. The class action alleges breaches  
of the misleading advertising provisions in the federal Competition Act and provincial consumer  
protection laws. The class seeks damages of $1.5 billion as compensation for the alleged 15 per  
cent overpayment in fuel charges incurred over the course of the ownership or lease of their  
vehicles.  
[18] The Ford defendants responded with a long list of detailed submissions in a 340-page  
factum whose record-setting length apparently escaped judicial attention. The Defendants made  
two basic points: first, the design and content of the EnerGuide Label, including the use of the 2-  
Cycle Test method in 2013 and 2014, were explicitly required by the federal government;  
secondly, and in any event, there was nothing false or misleading in the EnerGuide Label’s  
representations, whether under the Competition Act or provincial consumer protection law.  
[19] Before turning to the three common issues that are before me for decision, I set out a more  
detailed understanding of the federal government’s EnerGuide Label and the switch from 2-Cycle  
to 5-Cycle testing.  
The EnerGuide Label  
[20] Most Canadians are familiar with the federal government’s EnerGuide Label program. The  
energy consumption information helps consumers compare energy efficiencies when purchasing  
large household appliances and many other high-energy-use products. The EnerGuide Label  
program is primarily the responsibility of NRCan and its Office of Energy Efficiency and is based  
on the broad powers provided under the Department of Natural Resources Act7 and the Energy  
Efficiency Act.8 For most products, EnerGuide labelling is required by federal regulation. Not so  
for the automobile industry. The attachment of the EnerGuide Label to new vehicles was achieved  
via voluntary agreements based on Ministerial powers provided under the legislation just noted.9  
[21]  
The MOUs. In 1995 and 1996 respectively, NRCan entered into a Memoranda of  
Understanding (“MOU”) with the Motor Vehicle Manufacturers’ Association (“MVMA”),10  
which included Ford Canada, and the Association of International Automobile Manufacturers of  
Canada. In each case, the Memorandum of Understanding (“MOU”) extended the use of  
EnerGuide Labels and fuel consumption reporting requirements to the sale or lease of new  
vehicles.11 In doing so, the federal government had two objectives: to help consumers compare the  
fuel consumption of different vehicle brands and models before making a purchase or lease  
7 S.C. 1994, c. 41.  
8 S.C. 1992, c 36.  
9 Ibid., s. 21(c) provides that “The Minister may, for the purpose of promoting the efficient use of energy … (c) enter  
into agreements with any person…”.  
10 Now known as the Canadian Vehicle Manufacturers’ Association  
11  
More precisely, to all new “light duty vehicles” which would include all automobiles and some smaller trucks.  
However, it is sufficient for my purposes here to simply say “new vehicles”.  
6
decision and to encourage fuel-efficient driving. As a result of the two MOUs, all vehicle  
manufacturers in Canada, through their respective associations, agreed to work closely with  
NRCan to help reduce greenhouse gas emissions.  
[22] The MOU entered into by the MVMA contained an explicit commitment to encourage its  
members, including Ford Canada, to:  
submit data to NRCan on the fuel consumption ratings of new vehicles on a consistent  
and complete basis;  
work with NRCan on the development of effective consumer information programs;  
provide information on vehicle fuel consumption to dealers for prospective new  
vehicle purchasers; and  
work with their dealer networks to improve retention of NRCan’s fuel consumption  
labels attached to new vehicles while on their lots and in their showrooms.  
[23] Ford Canada understood and accepted that the MOU imposed binding obligations and that  
compliance with NRCan’s directives and guidelines was mandatory. A retired senior Ford Canada  
manager, who had been directly involved in the negotiation and implementation of the MVMA  
MOU, provided this uncontroverted evidence:  
Given that Ford of Canada had made commitments under the MVMA MOU and  
given that the government was adamant that all industry participants comply with  
the requirements of the NRCan Program, … our approach to compliance with the  
requirements of the NRCan Program was the same as our approach to compliance  
with federal regulations, such as the 2010 Passenger Regulations. … we were  
scrupulous in ensuring that we followed NRCan’s directives and Guidelines.  
[24] Even though the automobile manufacturer’s initial decision to enter into an MOU was  
voluntary, I am satisfied on the evidence that the signatories, including individual members such  
as Ford Canada, reasonably believed that NRCan’s directives and guidelines were mandatory.  
[25] The 2012 Guidelines,12 which also applied to the 2013 and 2014 model years herein,  
prescribed the design and content of the EnerGuide Labels that had to be affixed by the automobile  
manufacturer to its new vehicles — such as shape, colour and dimensions; the specific placement  
of the EnerGuide and Government of Canada marks and logos; and the display of the fuel  
consumption ratings as determined by the 2-Cycle Test.  
[26] The Guidelines complemented the regulated testing and reporting requirements imposed  
on motor vehicle manufacturers under the Passenger Automobile and Light Truck Greenhouse  
12  
Government of Canada, Guidelines for Determination and Submission of Fuel Consumption Data for Fuel  
Consumption Labelling (2012).  
7
Gas Emission Regulations13 and the On-Road Vehicle and Engine Emission Regulations14 that had  
been promulgated under the Canadian Environmental Protection Act, 1999.15  
[27]  
The Guidelines required that the following statements appear on the EnerGuide Labels:  
The city and highway fuel consumption estimates using the 2-Cycle Test;  
The phrase “Estimated annual fuel cost” and the estimated dollar amount using a  
prescribed formula;  
The statement “These estimates are based on the Government of Canada’s approved  
criteria and testing methods. The actual fuel consumption of this vehicle may vary.  
Refer to the Fuel Consumption Guide;” and  
The statement “Ask your dealer for the FUEL CONSUMPTION GUIDE or call 1-800-  
387-2000”.  
[28] The Guidelines made clear that there was little room for deviation from the prescribed  
requirements. For example, the vehicle manufacturer could not refer to any other fuel consumption  
information on the face of the EnerGuide Label. Only the 2-Cycle Test data could be used in  
Canada. U.S. data (based on the 5-Cycle Test) could not be used, even in marketing material.  
[29] The Fuel Consumption Guides. NRCan published annual Fuel Consumption Guides  
(“FCGs”) that were available without charge at the dealership, via a 1-800 call or on-line. The  
FCGs provided about 15 pages of explanatory information and another 25 pages of tables listing  
individual vehicle attributes and test results. The FCGs also provided detailed information about  
the testing methods, how the ratings should be used, the factors that affect fuel consumption and  
NRCan’s plans to change the test method and adopt the 5-Cycle Test beginning in 2015.  
[30] The FCGs explained that “no test can simulate all possible combinations of conditions that  
may be experienced by drivers” and that the ratings only provided a reliable basis for comparison:  
It would be difficult to drive every model of new vehicle on the road to measure  
fuel consumption, and almost impossible to consistently duplicate on-road testing  
results because many variables can affect a vehicle’s performance. Instead, a  
controlled laboratory testing method is followed to ensure that all vehicles are  
tested under identical conditions and that the results are consistent and repeatable.  
…
13 SOR/2010-201.  
14 SOR/2003-2.  
15 S.C. 1999, c. 33.  
8
The ratings provide a reliable comparison of the fuel consumption of different  
vehicles. However, your vehicle’s fuel consumption will vary from the published  
ratings, depending on how, where and when you drive.  
[31] The repeated message in the FCGs (for anyone who took the time to review their contents)  
was that the fuel-efficiency ratings on the EnerGuide Label were provided for comparison  
purposes/vehicle rankings and to encourage fuel-efficient driving behaviour — not to predict  
actual fuel consumption.  
The switch from 2-Cycle to 5-Cycle testing  
[32] As already noted, the EPA adopted the 5-Cycle Test in 2008. NRCan did not do so until  
2015. The possible adoption of the 5-Cycle Test method was first discussed with the Canadian  
vehicle manufacturers in 2011 but was not formally announced by the federal government until  
the end of 2013, to take effect with the 2015 model year.  
[33] The time lag in the adoption of the 5-Cycle Test in Canada can be attributed to an important  
policy difference that separated NRCan and its American counterpart. Both NRCan and the EPA  
agreed that fuel consumption ratings based on a 2-Cycle Test provided a reliable comparison tool  
and also that the comparative fuel-efficiency rankings would remain the same whether one used  
the 2-Cycle or 5-Cycle Test. The important policy difference (made clear in the inter-governmental  
documentation that is before the court) was this — NRCan wanted to use the fuel-consumption  
information set out on its EnerGuide Label to encourage fuel-efficient driving (smooth  
acceleration and braking, compliance with speed limits etc). The EPA, on the other hand, was more  
willing to provide fuel-consumption data that reflected “real world” driving behaviour which often  
included rapid acceleration and braking, speeding, etc.  
[34] In any event, NRCan concluded in due course that it was time to align its test methods with  
those in the U.S. The 2013 and 2014 FCGs recognized that the 5-Cycle Test was “more  
representative of typical driving conditions and styles" and would "better approximate real world  
driving conditions and behaviours". The 2013 and 2014 FCGs also noted that the change-over to  
the 5-Cycle Test would increase the fuel consumption data — by “about 15 per cent” (2013 FCG)  
or “10 to 20 per cent” (2014 FCG).  
Analysis  
[35] I begin with this observation. The focus of attention of counsel and the court throughout  
the course of the hearing was the EnerGuide Label and included little to no discussion of the  
allegation that the Defendants repeated the Label’s fuel-consumption data in their sales brochures  
and marketing material. This made sense. Extending the focus to include what was said in the  
marketing material would have been problematic. The plaintiff says nothing in his evidence about  
sales brochures or marketing material or about the fuel consumption representations that were set  
out therein.  
[36] There is no suggestion from the plaintiff or any other class member that they considered or  
even noticed any such marketing material when they purchased or leased their new vehicle, let  
alone that they suffered any loss or damage “as a result” of anything that was said therein. Without  
9
such supporting evidence, any allegation or claim about the Defendants’ representations in its  
marketing material would have gone nowhere. Hence, the focus on the EnerGuide Label.  
[37] The plaintiff makes two arguments in this regard that can be summarized as follows.  
[38] The first is that the fuel ratings on the EnerGuide Label were false and misleading. And  
worse, stating that they were using “government-approved test methods”, the Defendants  
conveyed the impression that the fuel consumption ratings were certified by the Government of  
Canada and that their accuracy could be trusted because the government stood behind them.  
[39] The second argument goes beyond the face of the Label and alleges deceptive non-  
disclosure. The plaintiff submits that the Defendants failed to disclose (i) that the ratings were  
provided for comparison purposes and not to predict actual fuel consumption; (ii) that the fuel  
consumption ratings, based on a 2-Cycle Test and not the more representative 5-Cycle Test used  
in the U.S., understated fuel consumption under real-world driving conditions by at least 15  
percent; and (iii) that the ratings printed on the EnerGuide Label could only be achieved with fuel-  
efficient driving and not normal “real world” driving.  
[40] The plaintiff goes on to argue that if the Defendants were indeed precluded from  
unilaterally making any changes to the EnerGuide Label itself, they should at least have attached  
a second sheet of paper or Second Label (my words) to the vehicle’s window that disclosed these  
three important omissions. By failing to attach this Second Label containing these disclosures, the  
Defendants misled and deceived class members.  
[41] I note that class counsel in their submissions did not always differentiate between the two  
lines of argument, facial impression and non-disclosure. This was a distinction that developed over  
the course of the hearing. Also, class counsel did not always differentiate between the evidence  
that supported the two lines of argument, noting correctly that “there is significant overlap in the  
factual issues regarding the representations.” It was generally understood that the same evidence  
would be used to support the allegations under s. 52(1) of the Competition Act and those under  
provincial consumer protection law.  
[42] I now turn to the certified common issues.  
Common Issue No. 1: Did the Ford defendants contravene section 52 of the  
Competition Act?  
[43] Section 52(1) provides as follows:  
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.  
[44] Section 36(1) allows any person who has suffered loss or damage “as a result” of a breach  
of s. 52(1) to sue for and recover damages for such breach. Even though s. 52(1) is a criminal  
10  
provision, if damages are being sought in a civil proceeding under s. 36(1), the plaintiff only has  
to establish the s. 52(1) breach on a balance of probabilities.16  
[45] Note that s. 52(1), drafted as a criminal provision, only applies where a person knowingly  
or recklessly makes a false or misleading representation. There is no general duty to disclose.17  
That is, the failure to disclose a material fact which can amount to a false or misleading  
representation under provincial consumer protection law (discussed below) is not a breach of s.  
52(1) of the Competition Act.  
[46] The s. 52(1) issue is thus limited to whether the plaintiff can establish on a balance of  
probabilities that the Defendants knowingly or recklessly made false or misleading representations  
by affixing the NRCan-required EnerGuide Label to the windows of its new 2013 and 2014  
vehicles.  
[47] In my view, the plaintiff has not established a breach of s. 52(1). I say this for two reasons.  
[48] First, the Defendants’ compliance with federal government guidelines (that prescribed the  
design and content of the EnerGuide Label and the required fuel-consumption test method) cannot  
fairly or reasonably amount to a breach of federal competition law. Not only would this be contrary  
to fair play and common sense, it would also contravene a long-standing principle of statutory  
interpretation — namely, that there is a particularly strong presumption of consistency within the  
federal government18 and, where federal statutes can be interpreted so as not to interfere with each  
other, that interpretation is to be preferred.19  
[49] As the Supreme Court noted in Oldman River,20 even as between a federal statute (here, s.  
52(1) of the Competition Act) and a federal subordinate measure (here, NRCan’s 2012 Guidelines)  
“there is a presumption that the legislature did not intend to make or empower the making of  
contradictory enactments.”21 In other words, there is a presumption that the federal government  
did not intend to criminalize or otherwise impugn its own EnerGuide Labels.  
[50] The application of this principle of statutory interpretation (the presumption of consistency)  
is, in my view, sufficient to dispose of Common Issue No. 1. Counsel for the Defendants also  
16  
See Janelle Pharmacy Ltd. et al v. Blue Cross of Canada, 2003 NSSC 179 at paras. 95-97, and Maritime Travel  
Inc. v. Go Travel Direct.Com Inc., 2008 NSSC 163 at para. 16. Because the allegation relates to a criminal provision,  
some judges have suggested that the plaintiff must establish “a degree of probability that is commensurate with the  
occasion” (that is, something more than just 51 per cent): see, for example, Bater v. Bater [1950] 2 ALL E.R. 458 at  
459, per Lord Denning. For reasons that will become evident, I am content to use the conventional probability standard  
without any further gloss.  
17 Arora v. Whirlpool Canada LP, 2013 ONCA 657, at para. 50.  
18 Thibodeau v. Air Canada, 2014 SCC 67, at paras 93-97.  
19 Garland v. Consumers' Gas Co., 2004 SCC 25, at para. 76.  
20 Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3.  
21 Ibid., at 38.  
11  
advanced a compelling submission based on a related principle of statutory interpretation known  
as the “regulated conduct doctrine” or RCD.22 Given the “presumption of consistency,” there is no  
need, in my view, to consider the application of RCD.  
[51] I agree, however, with counsel for the Defendants that whether the courts are applying the  
presumption of consistency or RCD, the “through-line”, as counsel put it, is that the courts are  
loathe to impose civil liability, much less criminality, when a defendant has fully complied with a  
statutorily-authorized regulatory regime.23  
[52] If I am wrong on the statutory interpretation point, I set out a second reason.  
[53] The second reason why, in my view, a breach of s. 52(1) has not been established on a  
balance of probabilities is the lack of evidentiary basis for the “general impression” analysis that  
is advanced by class counsel.  
[54] S. 52(4) of the Competition Act provides that:  
[T]he general impression conveyed by a representation as well as its literal  
meaning shall be taken into account in determining whether or not the  
representation is false or misleading in a material respect.  
[55] There is no dispute that the fuel-efficiency data that was generated by the Defendants,  
submitted to NRCan and recorded by the Defendants on the EnerGuide Label were calculated in  
accordance with the 2-Cycle Test method as approved and required by the federal government.  
There can be no dispute that each of the statements and representations set out on said Label was  
literally true.  
[56] What about the “general impression” that was conveyed by the EnerGuide Label? In many  
misleading advertising cases, evidence of “general impression”, although primarily provided by  
the plaintiff, is often augmented with consumer focus group or survey evidence or by appropriate  
experts. In this way, in cases such as here where the alleged facial misrepresentation is not  
inherently obvious, the court can consider and possibly benefit from these additional consumer  
survey or expert perspectives.  
[57] Unfortunately, for reasons unknown, class counsel filed just one affidavit on point, that of  
the plaintiff. Recall that the plaintiff’s sole complaint was that the fuel consumption of the 2014  
Ford Edge in highway driving was only 23 miles per gallon “which was far worse than the 36  
miles per gallon as set out on the EnerGuide Label.”  
22  
The regulated conduct defence insulates a defendant from liability (typically for breach of the Competition Act) for  
conduct that is directed or authorized by a federal or provincial regulatory scheme. See Hughes v. Liquor Control  
Board of Ontario, 2019 ONCA 305 for a recent discussion of this interpretive principle and the leading caselaw.  
23  
Also see this court’s use of a broad “public interest” analysis in Kopyto v. The Law Society of Upper Canada, 2012  
ONSC 4050, aff’d 2012 ONCA 833.  
12  
[58] Both sides agree that the plaintiff has the onus of establishing a false or misleading general  
impression. What general impression was advanced by class counsel?  
[59] One possible “general impression” that could have been advanced, if supported with  
evidence, is that the EnerGuide Label created the expectation that every driver would actually  
achieve the estimated 24 mpg/city and 36 mpg/highway. Class counsel could also have noted that  
by referring to “government-approved test methods”, the Defendants were conveying the  
impression that the fuel consumption ratings were certified by the Government of Canada and their  
accuracy could be trusted because the federal government stood behind them.  
[60] But this particular impression (that the ratings on the EnerGuide Label showed the actual  
mileage that would be achieved by all drivers) was retracted by the plaintiff. In his answers to  
undertakings and written interrogatories, the plaintiff conceded that class members would not have  
had an expectation based on the Label ratings that they would experience fuel consumption equal  
to these ratings. Indeed, as already noted, the plaintiff understood that fuel consumption varies  
widely and depends on a range of factors, including one’s driving behaviour:  
I understand, you know, how you drive a car and what's inside the car and what  
the road conditions are and what the weather is like, all impacts on the fuel  
efficiency that you are going to get … 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.  
[61] It is interesting to note that some drivers were able to achieve the EnerGuide Label ratings  
with fuel-efficient driving. NRCan’s representation in its 2013 and 2014 FCG that the fuel  
consumption ratings “may be achieved with a properly maintained vehicle driven with fuel  
efficiency in mind” is in fact supported by numerous independent studies that were summarized  
in an expert report filed by the Defendants and, as well, by a number of individual-driver affidavits,  
also filed by the Defendants.  
[62]  
In any event, the suggestion that the general impression conveyed by the EnerGuide Label  
to the average car-buyer was that they would achieve a level of fuel consumption equal to the  
ratings set out on the Label was retracted by the plaintiff. The plaintiff himself did not expect this,  
noting that fuel consumption varies widely and depends almost completely on driving behaviour.  
Nor did most drivers. This point was made by one of plaintiff’s experts, Mr. Duleep, who agreed  
that the fact that actual fuel consumption will vary depending on how, where and when a vehicle  
is driven is “well known … to most vehicle owners.” (Emphasis added).  
[63]  
The only “general impression” submission that was advanced by class counsel was set out  
by the plaintiff in an answer to a written interrogatory — that although fuel consumption would  
vary, it would vary “with an equal probability of coming in a range equal as to above or below  
depending on driving conditions” and that the “fuel consumption estimate [sic] should represent  
the median experience.”  
[64]  
In other words, the general impression conveyed by the EnerGuide Label ratings, argued  
class counsel, was that the city and highway mpg ratings were intended and understood as median  
ratings and that every driver would have an equal chance of achieving a fuel consumption that was  
above or below these medians. But here again, there is no basis for this suggested general  
13  
impression. I agree with counsel for the Defendants that there is nothing on the face of the  
EnerGuide Label or in any evidence in the record from the plaintiff or any other class member that  
supports this “median” interpretation.  
[65] Indeed, the plaintiff’s evidence undermines this suggested class-wide expectation. Recall  
that the plaintiff admitted that he expected some variance from the EnerGuide Label ratings and  
fuel cost estimates based on his individual driving style. But the variance he expected was not that  
he would achieve or exceed the Label value 50 per cent of the time. The plaintiff’s evidence —  
that he expected to achieve “maybe 27 mpg” in highway driving — indicates that as far as he was  
concerned, he would have been content with a fuel consumption number all the time that was as  
much as 25 per cent higher than the 36 mpg estimate on the EnerGuide Label. That is, the plaintiff  
himself would have accepted a fuel consumption number that was actually higher than the 15 per  
cent/ 10 to 20 per cent increase associated with the “undisclosed” 5-Cycle Test.  
[66] To repeat, the only general impression argument advanced by class counsel is the “median”  
submission as just described. But there is nothing on the face of the Label and no evidence from  
any class member, including the plaintiff himself, that supports this “median” submission.  
[67] I am therefore obliged to conclude that class counsel have not established any general  
impression conveyed by the EnerGuide Label that was false or misleading. Nor have they  
established that by complying with NRCan’s mandatory directions and guidelines, the Defendants  
were “knowingly or recklessly” disseminating false or misleading information.  
[68]  
In my view, class counsel’s only plausible submission is limited to non-disclosure — that  
the Defendants knew and failed to disclose that the fuel consumption data on the EnerGuide Label  
was based on a 2-Cycle test method that did not reflect real-world driving and understated fuel  
consumption by some 15 per cent. And, therefore, the Defendants should have attached a Second  
Label correcting this non-disclosure. However, as already noted, civil liability for non-disclosure,  
imposed routinely in common law breach of contract cases24 and explicitly available under  
provincial consumer protection statutes,25 does not fall within the reach of s. 52(1) of the  
Competition Act.26  
[69]  
I therefore conclude that the Defendants have not contravened s. 52(1) of the Competition  
Act. This conclusion is based on the statutory presumption of consistency and on a finding that the  
“median” general impression submission advanced by class counsel is not supported with any  
evidence.  
[70] My answer to Common Issue No. 1 is “no”.  
24 C.M. Callow Inc. v. Zollinger, 2020 SCC 45, at paras. 89 and 91.  
25 Discussed in detail below.  
26  
If I am wrong on this point, then my analysis of the non-disclosure submission under the provincial consumer  
protection law that follows below under Common Issue No. 2 would also apply to s. 52(1) and Common Issue No. 1.  
14  
Common Issue No. 2: Did the Ford defendants contravene sections 14 and 17 of the  
Consumer Protection Act and parallel provisions of provincial consumer protection  
legislation by making false, misleading or deceptive representations?  
[71] As I have already noted, the plaintiff has confined his provincial consumer protection claim  
to seven jurisdictions: Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, P.E.I. and  
Quebec.27 The consumer protection legislation in each of these provinces, particularly in relation  
to the misleading advertising issue, is broadly the same and generally reflects the language in the  
Ontario statute.  
[72] Sections 14(1) of the Ontario Consumer Protection Act28 provides that “It is an unfair  
practice for a person to make a false, misleading or deceptive representation.” Various examples  
are then listed including “A representation that the goods or services have … performance  
characteristics … benefits or qualities that they do not have.” Section 17(1) and (2) reaffirm the  
“unfair practice” point and s. 18(2) provides for remedies, including damages.  
[73] Here again, the plaintiff advances two lines of argument, one with respect to the impression  
conveyed by the EnerGuide Label (the submissions advanced above under Common Issue No. 1  
are generally repeated) and the second with respect to non-disclosure.  
[74] The “impression” submissions failed under the federal competition law claim above and  
they fail as well under the provincial consumer protection claims — and for the same reasons. The  
plaintiff has not established on a balance of probabilities that any of the representations on the face  
of the EnerGuide Label or that the overall impression conveyed by the Label was false, misleading  
or deceptive, even under the most generous reading of the provincial “unfair practice” provisions.  
[75] The only plausible argument, as already noted, is misrepresentation by non-disclosure. The  
provincial consumer protection legislation explicitly extends “false, misleading or deceptive” to  
include non-disclosure. For example, s. 14(2)14 of the Ontario statute says this:  
Without limiting the generality of what constitutes a false, misleading or deceptive  
representation, the following are included as false, misleading or deceptive  
representations:  
(14) … failing to state a material fact if such … failure deceives or tends to  
deceive.  
[76]  
This is where the non-disclosure (and Second Label) submission comes in. As class  
counsel put it in a post-hearing written submission:  
Once Ford made the Representations [in the EnerGuide Label] it ought to have  
disclosed additional information to make its Representations not misleading nor  
false (e.g., a one-page informational sheet regarding the differences between 2-  
27 Supra, note 4.  
28 Supra, note 5.  
15  
Cycle and 5-Cycle testing, the transition to 5 Cycle testing and the expected 15%  
average increase in the ratings).  
[77] Counsel for the Defendants tried to neutralize the non-disclosure submissions by referring  
to several well-known presumptions in the interpretation of intersecting federal and provincial  
laws: (i) it is presumed that Parliament intends its laws to co-exist with provincial laws;29 (ii) it is  
presumed that provinces intend their laws to co-exist with federal law;30 and (iii) courts must make  
every effort to interpret valid federal and provincial laws in a manner that does not conflict.31  
[78] Counsel for the Defendants also advanced, in the alternative, an argument based on the  
federal paramountcy doctrine — that a judicial finding that the federally-required EnerGuide Label  
was false or misleading under provincial consumer protection law because it failed to disclose  
certain material facts would result in an “operational conflict” and the frustration of a federal  
purpose such that the offending provisions of the provincial consumer protection laws would have  
to be rendered inoperative.  
[79]  
In my view, the statutory presumption and federal paramountcy submissions do not apply  
in the non-disclosure context on the facts herein. I say this for the following reason.  
[80]  
Even though it is true that the 2012 Guidelines precluded the Defendants from unilaterally  
making any changes or alterations to the federally-prescribed EnerGuide Label, there was nothing  
in the Guidelines that prevented the Defendants from affixing a Second Label that simply disclosed  
the three omissions alleged by class counsel:  
(i) that the ratings on the EnerGuide Label were provided for comparison purposes  
and not to predict actual fuel consumption;  
(ii) that the fuel consumption ratings, based on a 2-Cycle Test and not the more  
representative 5-Cycle Test used in the U.S., understated fuel consumption under  
real-world driving conditions by some 15 percent; and  
(iii) that the ratings on the EnerGuide Label could only be achieved with fuel-  
efficient driving and not normal “real world” driving.  
[81] I agree with class counsel that affixing this Second Label, which simply restated what was  
already made clear in the FCG, would not have contravened any presumptions of federal-  
provincial statutory interpretation; nor would it have raised any concerns about operational conflict  
or any issues relating to federal paramountcy.  
[82] The only question, as I see it, is whether in all the circumstances and on the evidence before  
the court, the Defendants, and in particular Ford Canada, were legally obliged to attach a Second  
Label disclosing the three alleged omissions. That is, whether the Defendants knew or ought to  
29 Alberta (Attorney General) v. Moloney, 2015 SCC 51, at para 27.  
30 Fawcett v Fawcett, 2018 ONCA 150, at para 34.  
31 Canadian Western Bank v. Alberta, 2007 SCC 22, at paras 37.  
16  
have known that the EnerGuide Label was deficient because it failed to disclose certain material  
facts (the three above-listed “omissions”), that such failure “deceived or tended to deceive” the  
car-buying customer and thus further disclosure was required.  
[83] This is a determination that must be based on what was said on the Label itself, and if other  
documents such as the FCG were referred to and actually consulted, what was said in the FCG.  
[84] Consider the three alleged omissions and my initial rebuttals:  
(i)  
That the ratings on the EnerGuide Label were provided for comparison purposes  
and not to predict actual fuel consumption;  
The EnerGuide Label referred the car-buyer to the FCG not once but twice, and the  
second time in block letters. The 2013 and 2014 FCG made clear that the ratings  
were being provided for comparison purposes only and not to predict actual fuel  
consumption.  
I also note that the Label described the fuel consumption ratings as “estimates” and  
noted that “the actual fuel consumption of this vehicle may vary”. Most drivers,  
including the plaintiff and certainly the automobile manufacturer, understood that  
fuel consumption varied widely and depended largely on one’s driving style.  
The plaintiff also agreed that what was important was that the ratings be based on  
the same testing methods and conditions for all vehicles — because that way,  
consumers could compare the fuel efficiency rating of one vehicle against another.  
(ii)  
That the fuel consumption ratings, based on a 2-Cycle Test, and not the more  
representative 5-Cycle Test used in the U.S., understated fuel consumption under  
real-world driving conditions by at least 15 percent;  
This information was also provided in the FCG. And, as already noted, the  
EnerGuide Label referred the reader to the FCG not once but twice, and the second  
time in block letters.  
I also note that whether one used the 2-Cycle or 5-Cycle Test, the vehicle rankings  
remained the same. As for the “15 per cent” understatement, recall again that the  
plaintiff expected the fuel consumption understatement for highway driving to be  
as much as 25 per cent.  
(iii) That the ratings on the EnerGuide Label could only be achieved with fuel-efficient  
driving and not normal “real world” driving.  
Here again, this point was made clear in the FCG.  
I also note the evidence filed by the Defendants that most drivers understood that  
fuel consumption varied widely and depended largely on one’s driving style and  
that many drivers were actually able to achieve the actual EnerGuide Label ratings  
with fuel-efficient driving.  
17  
[85] These rebuttals, however, are not determinative. The Defendant’s obligation to affix the  
suggested Second Label is an inquiry that requires a deeper analysis. The primary focus of this  
inquiry is the sufficiency of the recommendation on the EnerGuide Label that the car-buyer refer  
to the FCG. Did car-buyers actually do so?  
[86] In my view, the most persuasive evidence impacting the Defendants in the context of the  
non-disclosure analysis would be evidence about the average car buyer’s actual utilization of the  
FCG and what Ford knew or should have known about such use or non-use. For example, if class  
counsel had presented credible evidence that despite the Label’s references to the FCG, the vast  
majority of reasonable car buyers simply relied on the EnerGuide Label and never or very rarely  
consulted the FCG and that Ford knew that this was the case, then this evidence would have been  
highly relevant in the determination of Ford’s disclosure obligations.  
[87]  
Of course, had there been such evidence (that few if any car buyers bothered to refer to  
the FCG and this was known at Ford) it probably would have been known at NRCan as well. If  
so, it would mean that a federal government department for some reason was directing vehicle  
manufacturers to mislead Canadian car buyers. Not a credible proposition — at least not in the  
context of fuel consumption ratings and EnerGuide Labels.  
[88] In any event, no such evidence was presented by class counsel — probably because none  
could be found. The reality is that the purchase or lease of a new car, for almost every consumer,  
is a significant financial decision that typically involves careful thought and often, considerable  
research. The uncontroverted evidence filed by the Defendants’ experts shows that the Google  
search ranking for the FCG on-line was “high” and that car buyers for whom fuel consumption  
was important would “likely” have consulted the FCG, just as NRCan would have expected. And,  
again, there is no evidence that Ford had any reason to believe otherwise.  
[89] I am therefore not persuaded on the evidence before me that Ford should have concluded  
that the references to the FCG on a federally-prescribed EnerGuide Label were deceptively  
deficient and required the additional disclosures suggested by class counsel. There is simply no  
supporting evidence for this Second Label submission.  
[90] My answer to Common Issue No. 2 is “no”.  
Common Issue No. 3: Are the class members entitled to damages under section 36(1)  
of the Competition Act, section 18(2) of the Consumer Protection Act, and the parallel  
provisions of the consumer protection legislation in other provinces and, if so, can the  
amount of damages payable by the Defendants be determined on an aggregate basis  
and in what amount?  
[91] Given my answers above to Common Issues Nos. 1 and 2, it follows that class members  
are not entitled to damages under section 36(1) of the Competition Act, section 18(2) of the  
Consumer Protection Act or the parallel provisions in the other named provinces. The answer to  
the first part of Common Issue No. 3 is “no”.  
[92]  
There is, therefore, no need to consider the second part of the question about aggregate  
damages.  
18  
[93] I will, however, offer this additional comment because of the obvious time and effort that  
counsel on both sides expended on the damages question. In my view, even if the plaintiff had  
prevailed on liability (the first two issues), he probably would not have prevailed on the damages  
issue. The hurdles awaiting the plaintiff in the second part of Common Issue No. 3 were formidable  
— privity of contract problems, detrimental reliance issues, limitation periods, mitigation  
obligations and the obvious need for individualized assessments. These damages issues, however,  
were not reached in this decision.  
[94] In sum, this is a class action that was burdened with both legal and evidentiary challenges  
but failed primarily because of the latter — a complete absence of evidence for any of the  
plaintiff’s key allegations.  
Disposition  
[95] Common Issues Nos. 1 and 2, and the first part of No. 3, are answered in favour of the  
Defendants.  
[96] The plaintiff’s motion for summary judgment is dismissed.  
[97] The defendants’ cross-motion for summary judgment (dismissing the class action in its  
entirety) is granted.  
[98] If the parties are unable to agree on a fair and reasonable costs award, I will be pleased to  
receive brief written submissions — from the defendants within 21 days and from the plaintiff  
within 21 days thereafter. If counsel require more time to come to an agreement about the  
appropriate costs award, they should advise accordingly.  
[99] I am grateful to counsel on both sides for their assistance.  
Signed: Justice Edward Belobaba  
Date: June 15, 2022  


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