Nissan Canada Inc. v. Mueller
reach trial, as opposed to being simply a procedural complication for claims that are
not truly common. It also helps the judge determine if a class proceeding is in fact a
Application of Evidentiary Threshold
 The question here, then, is whether the judge made a palpable and overriding
error in finding that there was sufficient evidence to support the common issues
related to whether there was an engine defect. For ease of reference, I will repeat
the judge’s findings:
 On the issue of the existence of an engine defect:
a) Did the class vehicles contain a design, development, or
manufacturing defect (the “Defect”) affecting the timing chain
tensioning system or its components that could cause or
contribute to increased rates of premature timing chain failure,
engine failure, engine damage, transmission failure, sudden
loss of power, or other engine problems when driven as
b) If the answer to (a) is “yes”, when did or should the defendants
have known of the defect?
c) Did the Defect in the Class Vehicles cause, contribute, or
increase the risk of and engine damage, personal injury, or
 As noted above, there is some evidence of the existence of a defect.
 In my opinion, the resolution of these questions are common to the
class. If the matter proceeds to a hearing on the issue of the existence of a
defect, the answer will, I expect, be “yes” or “no”. If the answer is “no”, then
all claims are dismissed. If the answer is “yes”, then the remaining issues (to
the extent they apply to the class) will become common.
 Because the timing of Nissan’s knowledge may inform the claims in
relation to consumer protection legislation and misrepresentation, question
“b” would then become common to all members, or a subclass of purchasers
of new vehicles.
 Question “c” is simply an extension of the effect of the alleged defect
to the class in terms of damages.
 These questions are certified as common issues.
 I would note that question (c) as framed by the judge did not just relate to
damages, but also to recoverability in tort for negligent design and manufacture.