Planes, Trains & Automobiles

Class Actions in the Transportation Industry in Canada


I get gassy from gotchy defence-bar article titles like “Not Auto-matic: Certification in the Transportation Industry in Canada” .  Instead, I'll tributize John Hughes' classic cinematic masterpiece, Planes, Trains, and Automobiles (1987).  In a script that’s peppered with the people’s philosophy of Hollywood (“...the finest line a man will walk is between success at work and success at home.” / "I’m not changing. ... I like me.  My wife likes me.  My customers like me.  Cause I’m the real article.  What you see is what you get.”), Del and Neal, played by the late John Candy and Steve Martin (in his best performance since King Tut) went through a handful of transportation-related headaches to get home for the holidays. Some of their woes parallel incidents in reported transportation class actions in Canada: competition for taxis; bumped airline passenger ticketing; a car erupting into flames; cramped transportation conditions. Sound familiar?

This industry involves machines whose primary purpose is to transport people and things.  The cases below are categorized by mode: aeronautics, automotive, railway, and further sub-categorized by the type of claim.  They possess common categorical characteristics, including:

They should be presumptively certifiable, using a rebutable categorical approach that the Supreme Court of Canada has applied to other areas of law (duty of care, fiduciary relations, territorial jurisdiction, hearsay evidence, vicarious liability, the list goes on).  On my count (but depending on how you count – are parallel class actions one case or many, for example), transportation cases occupy at least 91 of the approximately 772 reported class actions in common law Canada.  That's a big chunk, more than enough reading to give you litigation indigestion.  You could even add the Thyssenkrupp elevator case here and make it 92.  I have been personally involved in some of the cases below, but I have confined my review here to what’s been reported.  The primary purpose of this review is to provide a Reader’s Digest condensed statement of the facts to lay the foundation for a categorical approach to this industry.  I've analyzed the themes - national class, predominance, some basis in fact, etc. - elsewhere.  But I couldn’t resist the occasional peanut gallery commentary. 

 I.  PLANES

This category engages the Carriage by Air Act, RSC 1985, c C-26, which incorporates the Warsaw Convention and the Montreal Convention, including their limitations of liability and unique limitation periods.  They provide passengers with the exclusive cause of action and sole remedy against the carrier.  Under Article 17 of the Montreal Convention, air carriers must compensate passengers for damages for “bodily injury” caused by an “accident”.  But “bodily injury” excludes pure psychological injury unconnected to physical injury.  In O’Mara v. Air Canada (May 8), 2013 ONSC 2931, in the course of striking claims for punitive damages and for compensatory damages relating to purely psychological injury, Perell J. reviewed categories of cases that may or may not be precluded by the conventions.   See Maggisano v. Skyservice Airlines Inc., 2010 ONSC 6203 (Perell J.), ¶8-11. 

(1) delays
In Koo v. Canadian Airlines International Ltd., on behalf of “bumped” passengers, namely, persons who, within six years of the claim filing date, “held tickets purchased in Canada for a Canadian Airlines flight and who were involuntarily denied boarding on that flight, due to more passengers holding purchased tickets on that flight than there were available seats” and who did not execute a release of a claim for compensation, Mars Yue Kung Koo and Serge Gingras sued Canadian Airlines International Ltd. for damages, including a refund of the cost of the airline ticket, in breach of contract.  The defendant engaged in a deliberate and widespread practice of selling more tickets for passenger flights then there were available seats on the aircrafts so class members were “bumped”, that is, not allowed to board flights for which they had been issued tickets, and they experienced inconvenience and anxiety, out-of-pocket expenses, and consequential damages as a result.

In Walton v. Mytravel Canada Holdings Inc., on behalf of 215 passengers who boarded a Skyservice Boeing 757 200 aircraft, Flight 361, at approximately 4:10 p.m. on January 21, 2004, in Punta Cana with destination to Regina and Saskatoon, three passengers sued MyTravel Canada Holdings Inc., Skyservice Airlines Inc., Signature Vacations Ltd, the pilot and the customer service manager of Flight 361 for damages in negligence (all defendants), breach of contract (MyTravel and Signature), and unlawful confinement (against the pilot).  As a result of “several evolving mechanical difficulties”, the airplane spent an hour and a half on the hot and humid Punta Cana runway without water or air conditioning, and class members experienced uncomfortable conditions on the airplane.  Dovell J. dismissed the motion because the 1999 Montreal Convention, incorporated into Canadian law by the Carriage by Air Act, RSC 1985, c C-26, which governed the international flight, permitted claims only for bodily injury, whereas class members claimed only mental distress and anxiety.

(2) disasters
What happened to the beautiful blonde when she backed into the airplane propeller:  “dis-assed-her”.  The trigging causes of the disasters here are similarly titillating: commerical jets running out of gas; a pilot mistaking a planet for a plane.  But the consequences for passengers are real and tragic.

In Abdulrahim v. Air France, on behalf of 297 passengers of Air France 358 on August 2, 2005, who resided primarily in Canada and France, and more than 436 of their family members residing in about 20 countries, Hussein Abdulrahim and Fadi Abedrabbo sued Air France, the captain and first officer of the plane, the airport operator, the manufacturers of the A340 aircraft and the emergency evacuation system and slides for the aircraft, and the provider of air traffic control and navigation services at the airport, for damages.  On landing at the Pearson International Airport, the aircraft overshot the runway, crashed into the Etobicoke Creek ravine, and burst into flames.  Class members were injured, though there were no deaths.  Abdulrahim is significant for Strathy J.’s statement that those who opted out of a class action could be forced to be brought into a common liability trial (2010 ONSC 5542), though he rejected that option on the facts of the case.

In Maggisano v. Skyservice Airlines Inc., on behalf of more than 300 passengers on Skyservice Flight No. 560 which departed from Toronto en route to Punta Cana, Dominican Republic and their relatives entitled to claim pursuant to s 61 of the Family Law Act, RSO 1990, c F-3, Linda Maggisano sued Skyservice Airlines Inc. for damages under the Carriage by Air Act, RSC 1985, c C-26 (Montreal Convention).  On May 22, 2005, on landing in Punta Cana, a Boeing 767 aircraft, operating as SkyService Flight 560, violently landed nose first into the runway and bounced several times before coming to a stop.  The oxygen masks deployed, luggage fell from the overhead bins, and the television monitors fell from their attach points.  The aircraft sustained major structural damage.  The landing g-forces subjected all of the passengers to violent whiplash motions.  The defendant breached the standard of care required by Article 21 of the Montreal Convention.

In Nunes / Ricardo v. Air Transat A.T. Inc., on behalf of 290 passengers of Air Transat Flight 236 (and their families), in four actions, seven plaintiffs represented by two counsel groups, sued the aircraft operator, the pilots, and the manufacturers of the aircraft and its engines for damages and punitive damages in breach of contract and negligence, under Articles 17 and 24 of the Warsaw Convention and the Family Law Act, RSO 1990, c F.3, s 61, and for spoliation (the cockpit voice recorder which continuously recorded conversations between the captain and copilot was erased) and vicarious liability.  On August 24, 2001, the Airbus A330 ran out of fuel, lost power in each of its engines, and made an emergency landing in the Azores.  As a result, class members suffered personal injury, including nervous shock, emotional distress, and post-traumatic stress disorder. 

In Mara v. Air Canada, on behalf of 95 passengers of Air Canada flight AC878 from Toronto to Zurich, Switzerland, Ashlyn O’Mara sued Air Canada and John Doe’s #1 and 2 in negligence and under the Warsaw and Montreal Conventions for compensatory damages, aggravated damages, and punitive damages.  A pilot mistook the planet Venus for another aircraft and sharply altered the course of the plane’s direction of travel.  That propelled passengers to the ceiling of the aircraft and caused personal items to project throughout the interior of the aircraft.  Some suffered personal injury as a result.  An Air Canada representative falsely told class members that the incident was caused by unexpected turbulence.  Air Canada sought and obtained releases from some class members in exchange for modest compensation before the Transportion Safety Board of Canada reported on the true cause of the episode.    

(3) employees
In Berry v. Pulley, on behalf of 171 Air Ontario pilots who were members of the Canadian Airline Pilots Association (“CALPA”) on March 28, 1995, five plaintiffs sued representatives of seven defendant classes of 1,617 Air Canada pilots who were members of CALPA on March 28, 1995 for damages in breach of contract (based on the CALPA constitution – dismissed on summary judgment), conspiracy, breach of fiduciary duty, interference with economic interests/relations, and in negligent misrepresentation.  After Air Canada acquired Air Ontario, the unions merged, giving rise to an issue of how the seniority lists and rights associated therewith were to be merged.  After a binding arbitration was conducted, on March 28, 1995 Michel Picher released a decision on how to integrate the seniority lists.  Air Canada pilots rejected the arbitration award and failed to take the required steps to implement it, and indeed, 1,269 Air Canada pilots signed a “notarized Pilot Solidarity document” that rejected the Picher Award.  The Air Line Pilots Association that succeeded CALPA in 1997 was brought in as a third party.  Berry v. Pulley proceeded to a common issues trial.

(4) environmental contamination
In Sutherland v. Canada (Attorney General), on behalf of persons who, as of November 4, 1996, owned residential property, including townhomes, condominiums, and detached and semidetached homes, in Richmond or Vancouver, and whose property was exposed to an increase in noise as a result of the use of the Third Runway at the Vancouver International Airport, Wilfred Gary and Sherryl Sara Stewart Sutherland sued the owner and operator of the airport for damages in nuisance.  On November 4, 1996, the Vancouver International Airport’s North Runway opened.  The landing and taking off of airplanes caused “excessive, deafening and distrubing noise and vibrations” in nearby residential areas.  After certification was denied, the litigation continued as a joinder of 147 litigants respecting 95 properties.

In Wamboldt v. Northstar Aerospace (Canada) Inc., on behalf of owners of 721 properties in the “Class Area” as of August 23, 2005, Derek Ashley Wamboldt, Craig Denby, Assad Kamal, Mark Phelan, and Linda Watson sued Northstar Aerospace (Canada) Inc. and Northstar Aerospace, Inc. for compensation to remove trichloroethylene and chromium and for reduction in property values in negligence, nuisance, and strict liability under Rylands v. Fletcher.  The defendants allowed trichloroethylene and chromium to seep into the groundwater and migrate from their Bishop Street property to the surrounding neighbourhood.

(5) fees and taxes
In a symmetrical world, governments tax, and businesses fee.  Things get lopsided when governments fee, and businesses tax.  And then there's sur-charges.  A "sur" charge is like a "white" lie.  Call it a Mr. Charge, a Mrs. Charge, or a Sir Charge.  A lie's a lie, and a charge's a charge.  There is a twilight zone between what they teach at commerce colleges and what they teach at law schools.  Marketing faculties teach students how to trick people by inventing phony fees and to pat themselves on the back when they do.  There are fee recovery class actions in other industries, like the "system access fees" on cell phone bills. The limits to false fees are endless - imagine an ergonomical seat surcharge on a domestic flight, or an elevator lift fee on a hotel bill. You know they're coming - and it will be up to a court, including through the contractual doctrine of consideration, to put an end to these bogus charges.  A ghosty voice is speaking to a sophomore in a business college right now like Shoeless Joe to Kevin Costner in Field of Dreams, except it's saying -- "If you surcharge it, they will pay; if you hide it, they won't know".  I expect class actions seeking to recover these phony fees to expand as quickly as business grads can dream them up.

A conspiracy to fix prices for airfreight shipping services gave rise to litigation in Ontario and British Columbia.  These cases led to a remarkable US $5.5 million notice program in 142 countries:

In Prince v. ACE Aviation Holdings Inc., Teri Prince and Matthew Walach sued ACE Aviation Holdings Inc. and Air Canada for an accounting, damages, declarations, and restitution for negligent misrepresentation.  Air Canada charged the plaintiffs United States transportation taxes on Air Canada flight purchases for flights from Canada to the United States, from the United States to Canada, and, for U.S. residents, for travel exclusively within Canada.  Conway J. allowed only the claims respecting purchases in Canada to proceed in the Canadian court.

In Unlu v. Air Canada, in two actions, on behalf of “people in British Columbia who, when purchasing an airline travel ticket, were improperly charged a "tax" by the Defendant which was not in fact a third-party tax but was a charge collected by the Defendant and retained for its own use”, Bulent Unlu sued Air Canada and Deutsche Lufthansa Aktiengesellschaft for a declaration, disgorgement, an injunction, refund, and a restoration order under the Business Practices and Consumer Protection Act, SBC 2004, c 2 and in unjust enrichment.  The defendants included an international fuel surcharge coded as “YQ” within the “XT” or tax portion of his electronic airline tickets, and thereby engaged in a deceptive act or practice.  The defendants falsely represented that the “YQ” charge was a tax charged and collected by the Airlines on behalf of a third-party government body, rather than a surcharge collected for the Airlines themselves.

 II.  TRAINS

Many complain of the bane of trains. Both underground and on the plains.

Alternative claims procedures factor into many of these cases, as the defendants attempt to settle claims before certification using their own procedures.

(1) construction disruption
In Curactive Organic Skin Care Ltd. v. Ontario, on behalf of businesses located on St. Clair Avenue West in Toronto, Curactive Organic Skin Care Ltd. sued the province, the city, and the Toronto Transit Commission for damages in abuse of power, negligence, gross negligence, and nuisance.  The city and the TTC began to replace the subway with a light rail transit system, and in the process, also undertook construction of an enhanced streetscape, the upgrading of water and natural gas mains, and the burial of hydro wires along St. Clair West.  The project initially stalled because there was public resistance to the project and because public consultation was poor.  The provincial Ministry of the Environment insisted on further consultation with the public.  The TTC and the City prematurely and carelessly recommenced construction as public debate about the project continued.  The project was not properly supervised.  It was mismanaged and uncoordinated.  The contracting and subcontracting process was badly mishandled.  There was confusion and there were cost overruns and substantial delays and ongoing disruptions of access to and from the affected community.  More than 200 businesses failed during the delayed construction.  Notwithstanding the various categories of loss claimed, the court dismissed the action as a claim for “injurious affection” that had to be brought under the Expropriations Act

In Gautam v. Canada Line Rapid Transit Inc., on behalf of 62 persons who owned property in Cambie Village, and 215 persons who operated a business from leased premises therein, Gary Gautam, 557856 B.C. Ltd., and George and Jane King sued the Canada Line Rapid Transit Inc., Intransit BC Limited Partnership, Intransit British Columbia G.P. Ltd., and SNC-Lavalin Inc. in injurious affection, nuisance, and waiver of tort.  The defendants were involved in building the Canada Line rapid transit system that connected Vancouver with Richmond and the Vancouver International Airport.  At issue was whether the defendants were wrong to use the “cut and cover” rather than the “bored tunnel” method of construction.  “Cut and cover” construction involved digging a trench, installing a tunnel in the trench, backfilling the trench, and restoring the street surface.  It caused disruption of vehicle and pedestrian traffic in a way that the “bored tunnel” method would not have. 

(2) disasters
In Quinte v. Eastwood Mall, 2014 ONSC 249, Belobaba J. stated that “Cases arising from a mass, single event disaster – for example, a plane crash, train derailment...are text-book examples of the type of cases ideally suited to being litigated as class actions.”   The contested certification score is 2-2.  Go figure. 

In Brimner v. VIA Rail Canada Inc. on behalf of 174 passengers and their family members per s. 61 of the Family Law Act, Shelley Brimner, Robert Christmas, Ray Hebert, and Barbara Myers sued VIA Rail Canada Inc. for aggravated, exemplary, general, punitive, and special damages in breach of contract and negligence and Canadian National Railway Company in negligence.  On April 23, 1999, VIA Rail Train 74 derailed at or near Thamesville, Ontario.  VIA proposed a dispute resolution process under which it would pay each passenger $1000 for a release, or if passengers wanted more, then after they and their families particularized their claims, VIA would settle or resolve the claim through binding arbitration, but punitive damages were not available.

In Bywater v. Toronto Transit Commission, on behalf of all persons (except TTC employees and emergency personnel), who were exposed to smoke in TTC vehicles or on TTC premises from a fire at or near the Donlands subway station, and all of their living parents, grandparents, children, grandchildren, siblings, and spouses within the meaning of s. 61 of the Family Law Act, (or their estates), Sarah Bywater sued Toronto Transit Commission for damages in breach of contract and negligence.  On August 6, 1997, at 7:15 p.m., there was a fire on the subway line that started in a rubber band pile in the tunnel.  Thick black smoke filled the platform and mezzanine levels at the Donlands station and passengers on two trains were evacuated at Greenwood and Pape stations.  The defendant admitted liability for the cause of the fire, but common issues were certified anyway.

In Brooks v. Canadian Pacific Railway, on behalf of 175 residents, property owners, lessees of property and employees of businesses who were evacuated from a designated area in Estevan, Saskatchewan for 44 hours as a result of a derailment, William Brooks, Sam Kinert, Rob Peter, Glenn Stepp, Lorraine Supple, Bill Wiechert, and Jane and John Does sued Canadian Pacific Railway Limited and Canadian Pacific Railway Company for purely economic loss in assault, contractual illegality, negligence, and strict liability.  On August 8, 2004, six cars from a Canadian Pacific Railway train derailed in Estevan.  Five of the cars carried anhydrous ammonia.  The defendant set up a claims centre and paid the claims of those who signed a final release form.  As there was no escape of hazardous or polluting materials, no personal injury or property damage, and as she categorized the injuries as “purely economic loss”, Dawson J. found no cause of action, a conclusion that underlay her remaining certification analyses.

An August 3, 2005, a railway accident that caused oil to spill into Lake Wabamum, causing damage to land witin a 5 km radius of the shore of the lake, gave rise to two class actions:

In Lundy v. VIA Rail Canada Inc., after VIA Rail Train 92 derailed in Burlington, Ontario on route to Toronto on February 26, 2012, Sandra Lundy, Allison Kaczmarek, and Marc Couroux, sued Via Rail Canada Inc. and Canadian National Railway Company.  Lundy addressed the governance and regulation of pre-certification communications with putative class members, including those known to be represented by lawyers, and including communications for the purposes of settlement and obtaining releases.  Perell J. ordered that the defendants disclose the releases it obtained from class members to counsel for the plaintiffs, and ordered that the defendants could communicate with class members if they provided counsel for the plaintiffs copies of correspondence seven days before distribution, but could not communicate to putative class members known to be clients of the lawyer of record.  

(3) employees
In MacDougall v. Ontario Northland Transportation Commission, in two proceedings, on behalf of beneficiaries of the Ontario Northland Transportation Commission’s employee pension plan (excluding unionized current employees), and those who retired between November 14, 2004 and January 1, 2005 pursuant to the early retirement package and who received or were receiving the 1999 enhanced benefits and who ceased making contributions pursuant to the 2000 contribution holiday, four plan members and an active employee sued the Commission and six unions that had bargaining rights for active Commission employees for the appointment of an independent Trustee and Review Committee, declarations, an injunction, relief under the Variation of Trusts Act, RSO 1990, c V1 and the Trustee Act, RSO 1990, c T23, removal of the Commission as trustee, and restitution in breach of fiduciary duty and breach of trust (including the duty to act in an evenhanded manner to existing retirees and active employees).  The Commission, which maintained and operated rail lines, bus services, and telecommunications services in Northern Ontario, was established by the Ontario Northland Transportation Act, RSO 1990, c O32, but its defined benefit contributory pension plan was established by Order-in-Council in 1939.  It never had a written trust agreement or trust instrument, but from 1982, the Commission unilaterally and repeatedly amended the 1939 Plan Document, Regulations of the Pension Board of the Temiskaming and Northern Ontario Railway Commission, including to allocate the right to any surplus upon wind up, but also to provide different levels of enhanced benefits for active employees at some times, and existing, early, and future retirees at other times.  The Commission ceased to fund and contribute to the pension as required and used pension plan assets to pay for its own obligations and operational expenses.  The plaintiffs sought to preserve the right to enhanced benefits that resulted from the amendments.

In McCracken v. Canadian National Railway, on behalf of current and former non-unionized CN employees who were first line supervisors on or after July 5, 2002, Michael Ian McCracken sued Canadian National Railway Company for damages, declarations, disgorgement, injunctions, and punitive damages in breach of contract (express and implied terms and duty of good faith), negligence (was struck), and unjust enrichment.  From July 5, 2002, the defendant uniformly, deliberately, improperly, negligently, and illegally classified its “first line supervisors” as managerial employees under s 167(s) of the Canada Labour Code, RS 1985, c L-2, and thereby denied them eligibility for “overtime” wages to which they were entitled for hours they were “required or permitted to work” in excess of their “standard hours of work” under ss. 166, 174, and 247. McCracken was the first contested misclassification overtime class action in Canada, and was the third of a trilogy of unpaid overtime class actions that was decided by the Court of Appeal (Fresco and Fulawka are the others).  In declining to certify the class action in the face of the plaintiff’s submission that “misclassification cases” are inherently amenable to class certification, the Ontario Court of Appeal effectively affirmed that certification must be examined based upon the specific record before the court rather than on the category of claim presented.

In Toronto Transit Commission v. Signorile, the Toronto Transit Commissionn (“TTC”) as applicant, and representatives of current and former employees of the TTC who were insured under one or more of specific insurance policies on a demutualization date as respondents, battled over demutualization proceeds.  From January 1, 1988 to December 31, 1997, the TTC made group life insurance coverage available to its eligible employees and retirees as a policyholder of three group life insurance policies with Clarica Life Insurance Company, subsequently (Sun Life Assurance Company of Canada).  In the late 1990s, the insurer converted from a mutual insurance company to a corporation with share capital, effective December 29, 1997.  As part of the demutualization, TTC’s ownership interest in the insurer as a policyholder was converted into 80,988 shares of the demutualized company.  TTC sold the shares, and the proceeds of sale with dividends and interest were $5.6 million as of October 3, 2013.  

In Ruddell v. BC Rail Ltd., on behalf of retired and deferred vested members of the BC Rail Ltd. pension plan as of or after July 1, 1998 and before December 31, 2004, and their spouses, beneficiaries, and estates, Frederick Albert Ruddell sued BC Rail Ltd. for an accounting, damages, or periodic cash distributions, in breach of fiduciary duty.  Between July 1, 1998 and December 31, 2004, as a result of an actuarial surplus, the defendant gave itself and active members a contribution holiday without granting a correlative benefit to the retired members.

(4) environmental contamination
In Bellefeuille v. Canadian Pacific Railway, on behalf of 150 former and current owners or occupiers of 96 properties and business owners in the area who were economically affected by the acts of CPR in October 2000, including owners and occupiers of land that may not have been contaminated, James and Lillian Bellefeuille sued Canadian Pacific Railway Limited and Canadian Pacific Railway Company for damages, including costs to cleanup property, in negligence, negligent misrepresentation, nuisance, and strict liability.  Between 1950 and 1981, there were leaks and spills of diesel fuel on CPR’s locomotive fuelling and maintenance facility in Cartier, Ontario that contaminated the water and soil of surrounding property with petroleum hydrocarbons.  In October 2000, CPR issued a press release announcing that diesel fuel releases were affecting the groundwater, and that it would no longer provide potable water to properties of its employees through its water treatment and distribution system as it had done since 1943.  Class members experienced property damage, diminution of property values, and injury to health.  It was commenced in 2004 as an action and converted in 2008 to a class action.  Between September, 2004 and March 2005, 55 other individual actions were commenced relating to separate pieces of property.

In DeFazio v. Ontario (Ministry of Labor), on behalf of everyone who accessed the Sheppard Station or were exposed to others who did, Frank and Assunta Defazio and Mike Cramarossa sued the province, the Toronto Transit Commission, and Pinchin Environmental Consultants Ltd. for damages for lost income, stress and anxiety, fear of disease, physical illness, and for exemplary and punitive damages.  The plaintiffs claimed they were exposed to asbestos during construction of the Sheppard-Yonge subway station.

In Roberts v. Canadian Pacific Railway, on behalf of persons who, since March 31, 2002, owned or resided on property located at least in part within 500 metres of railway tracks operated by the defendants and running from Sparwood, British Columbia, to Roberts Bank, British Columbia, Catherine Anna Roberts sued Canadian Pacific Railway Company and Canadian National Railway Company for damages and an injunction in negligence, nuisance, and strict liability under the rule in Rylands v. Fletcher.  The defendants carried coal on their trains throughout British Columbia.  Coal dust escaped from the trains and landed on the properties of class members.  Class members experienced annoyance, discomfort, and loss of enjoyment of property.

In Windsor v. Canadian National Railway, on behalf of those who, from January 7, 2003, owned land within a specified area of Ogden in Calgary, David and Agnes Windsor sued Canadian Pacific Railway Limited for an injunction, general and special damages, and punitive and exemplary damages in negligence, nuisance, strict liability, and trespass.  From the mid-1950’s to the mid-1980’s, the defendant used trichloroethylene (“TCE”) as an engine and railway rolling stock degreaser at its Ogden maintenance and repair facility.  The TCE seeped into the groundwater under the Ogden shops, and migrated into the community.  It evaporated into the air and seeped into the homes and commercial buildings of the properties of class members, causing diminution of property values, reduction of rental values, and damages for specific modifications to the properties to remediate contamination.  There were parallel individual actions for personal injuries allegedly caused by TCE.

(5) fees
The Canadian Transportation Agency’s Decision No. 67-R-2008 gave rise to two reported class actions:

 III.  AUTOMOBILES

(1) disasters
There has not yet been a Canadian personal injury class action against those responsible for the operation of a vehicle involved a single incident collision, like a highway pile-up or a bus crash.  But collisions have led to class actions against insurance companies and governments.

In George v. Newfoundland and Labrador, on behalf of persons or their estates who, between January 5, 2001 and the opt-out date, were hospitalized or killed by a collision with a moose or near collision with a moose (how can you miss a moose!?), while operating or occupying a motor vehicle on a highway in the island portion of Newfoundland and Labrador outside the boundaries of Gros Morne and Terra Nova National Parks, all living children, parents and partners (as those terms are defined in the Fatal Accidents Act) and spouses of such persons or estates who suffered a loss of care, guidance and companionship, Hugh George and Ben Bellows sued Her Majesty the Queen in Right of Newfoundland and Labrador in strict liability, public nuisance, and negligence.  The defendant failed to implement mitigative measures that would have reduced the risk of serious injury in moose vehicle collisions by 51% or more.  It was certified by consent. 

Automobile collisions trigger insurance claims. This first batch of collision cases deals with recovery of deductibles.  In an industry wide practice, insurers took title to the salvage of motor vehicles that were damaged beyond economical repair and paid insureds the actual cash value less the amount of the deductible designated in each insured’s policy.  Separate actions were filed for each defendant, resulting in a complex matrix of reported decisions.

In the second batch of collision cases, insurers replaced original equipment manufacturer (“OEM”) parts with non-OEM parts in breach of the ‘like kind and quality’ statutory condition. 

Comparing the deductible and OEM cases, first, each engaged national class issues.  One ‘struck the national class’ in the presence of materially different provincial laws.  The other refused to strike where the statutory clauses were commonly worded.  Punitand Risorto involved claims arising from commonly-worded provisions in different pieces of provincial legislation, whereas McNaughten engaged materially different provincial laws.  The court in each engaged the Muscutt factors as an analytical tool.  Second, within the OEM cases, Hague certified, while Risorto did not, based upon different evidentiary records.  The same expert’s evidence was accepted in one, but rejected in the other.

(2) employees
Between 2007 and 2009, there was a “financial crisis” and “auto bailout”.  So long as they agreed to restructure their operations, General Motors of Canada Limited (“GMCL”) received $10.6 billion in federal and provincial aid, and Chrysler Canada Inc. received at least $1.2 billion in federal aid. 

The resulting restructuring arrangements triggered at least three class actions against GMCL: Abrams; O’Neill; and Trillium:

‚Äčand at least one class action against Chrysler:

In Chapman v. Benefit Plan Administrators Ltd., on behalf of active members, terminated, full and partly vested members, retired members and beneficiaries or annuitants in receipt of monthly benefits, of the Eastern Canada Car Carrier’s Pension Plan, a defined benefit pension plan, except those serving as trustees between January 1, 2000 and March 13, 2006, Brian Chapman sued the Eastern Canada Car Carrier’s pension plan trustees, administrative agent, and actuaries (and their employers vicariously) for damages in negligence and breach of trust.  Between January 1, 2000 and March 13, 2006, the trustees consented to granting early retirement benefits to plan members at a time when the plan had ongoing solvency issues and could not afford the benefits.  The plan became underfunded, and the trustees announced in August 2007 that they would reduce service credits and benefits for active, deferred, and retired members of the plan effective January 1, 2008. The plaintiffs sought to recover a portion of the benefit reductions attributable to the defendants’ negligence and breach of trust.  Accrued benefits and service benefits were reduced for active members.  The allegations of breach of trust included consenting to the payment of early retirement benefits, failing to review the actuarial valuations of Mr. Cooper that contained inaccurate assumptions, and failing to cause actuarial valuations to be filed with the Office of the Superintendent of Financial Institutions Canada.  The allegations of negligence included advising the benefit plan administrators and the trustees from 2000-06 that it was reasonable to continue the practice of granting early-retirement benefits, failing to advise them that it would be prudent to discontinue the practice, and failing to properly quantify the solvency liabilities of the plan.

In Schweyer v. Laidlaw Carriers Inc., on behalf of 30 of 43 employee transport truck drivers of Laidlaw Carriers Inc. who were members of the Laidlaw Group Retirement Savings Plan and Deferred Profit Sharing Plan linked to the value of Laidlaw’s shares, and who in 1988, accepted an offer of early retirement (excluded were 13 employees whose claims were already resolved), Kenneth R. Schweyer sued Laidlaw Carriers Inc. and the Plan’s administrator in breach of contract and misrepresentation.  In the course of converting them from employees to independent contractors, in 1988, including at an April 6 meeting that was not attended by all class members, Laidlaw offered class members an early retirement package that promised that their shares would be valued on April 30, 1988, being the last day of the month preceding the month in which they submitted their notices of acceptance of early retirement.  After April 30, 1988, the price of Laidlaw shares began to fall, and Laidlaw refused to honour that valuation date.  Laidlaw sent a letter dated June 28, 1998 that contained a misrepresentation, and that induced 26 class members to withdraw their notices of acceptance of the early retirement package offer.

In Vernon v. General Motors of Canada Ltd., on behalf of those who retired early from General Motors pursuant to a 1993 Memorandum of Understanding, Jack Vernon sued General Motors of Canada Limited and executive members of his union, the CAW-Canada, for damages and punitive damages in breach of contract, breach of fiduciary duty, misrepresentation, and negligence.  In 1993, late in the term of its collective agreement, GM sought to reduce its unionized workforce in Oshawa from 3,800 to 2,000 by encouraging aging employees to retire early.

GM denied the extra $35,000 to those who retired earlier under the Memorandum of Understanding.  The CAW refused to pursue grievance procedures for the $35,000, the plaintiff’s subsequent application to the Ontario Labour Relations Board was dismissed, and he did not seek judicial review thereof.  Weber v. Ontario Hyrdo, [1995] 2 SCR 929 precluded access to the courts.

(3) franchisees
In Rosedale Motors Inc. v. Petro-Canada Inc., on behalf of persons "situate" in Ontario who entered into agreements to purchase and operate Petro-Canada Certiguard franchises, or their assignees, Rosedale Motors Inc. sued Petro-Canada Inc. for compensatory and punitive damages (including lost profits), rescission, and repayment of all royalties and franchise fees in breach of collateral warranty, breach of contract, misrepresentation (deliberate, negligent), breach of fiduciary duty, and unconscionability.  To induce prospective franchisees, orally at dealer conventions and in individual meetings, and in written glossy brochures, form letters, and Certiguard policy manuals, the defendant falsely represented that the Centriguard franchise was adequately researched and would be highly profitable and that the franchise system would be adequately promoted, advertised, and internally supported.  The defendant concealed the contents of an Andersen Report study that it commissioned to study the operation of the Certiguard system.

In Mont-Bleu Ford Inc. v. Ford Motor Co. of Canada, on behalf of 165 Ford Dealers, who were parties to the Dealer Sales and Services Agreement, and whose principal place of business was within 15 kilometres' driving distance of a Lincoln Mercury dealer, Mont-Bleu Ford Inc., Ottawa Motor Sales (1987) Limited, Thorncrest Sherway Inc., and Venture Ford Sales Limited sued Ford Motor Company of Canada, Limited for a declaration in breach of contract.  The defendant allowed Lincoln and Mercury dealers to sell the Taurus, Crown Victoria, Mustang, and Thunderbird automobiles when it had given the exclusive rights to such sales to Ford Dealers.

In Landsbridge Auto Corp. v. Midas Canada Inc, on behalf of 70 class members that owned approximately 148 Midas branded shops and carried on business as Midas franchisees from July 11, 2003 to May 31, 2007, Landsbridge Auto Corp. and 405341 Ontario Limited sued Midas Canada Inc. and Midas International Corporation for damages and restitution for breach of the common law duty to exercise rights under the franchise agreements honestly, fairly, and in good faith, breach of the statutory duty of fair dealing in s. 3 of the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3 ("AWA"), and in unjust enrichment. In 2003, Midas changed the franchise system. They outsourced parts distribution to a third-party, yet continued to charge a royalty/advertising fee of 10%. Moreover, they negotiated and received rebates and allowances or other consideration from the third-party suppliers. Midas also funded its warranty obligations through rebates provided by the third-party suppliers.  Midas later required franchisees to execute releases of the claims certified in the class action as a condition of renewing or transferring its rights under the franchise agreements, but Cullity J. (upheld by the ONCA) held them to be unenforceable and void under ss. 4(4) and 11 of the AWA.

See Trillium Motor World Inc. v. General Motors of Canada Ltd. above.

(4) parts
(a) parts - defects
Plaintiffs have advanced claims for defective car parts:  locking systems (tools required in Benning, tools not required in Koubi; spring clips of parking brakes (Chartrand), springs in door latch mechanisms (Poulin); distributor mounted TFI Modules (Reid); paint (Robson); rear control arms and suspension mechanism (Thorpe); odometers (Butler).

In Benning v. Volkswagen Canada Inc., on behalf of British Columbians who owned or leased 26,416 Volkswagen Jetta 1999-2005 sedans or 1999-2006 wagons which were purchased or leased from Volkswagen dealers in British Columbia, and who had not had their vehicle broken into or had their lock system repaired or replaced, Chandandeep Singh Benning sued Volkswagen entities and numerous local Volkswagen dealers for the cost of replacing their locks in breach of statute [ss. 18(a)-(b) of the Sale of Goods Act, RSBC 1996, c 410].  The door locking mechanism / system was asserted to be defective and thereby unfit for deterring a specific method of breaking into automobiles.  In Benning, certification was denied on the basis that the plaintiff had not shown that the particular method that had been used to break into his vehicle had been used to break into any other vehicle.  So a finding that the lock was not suitable to prevent the break-in of the plaintiff’s car would not advance a finding that it was unsuitable for deterring other types of break-ins in other cars.  The correctness of this decision, consisting of 11 paragraphs of “Findings”, is doubtful, given that the bulk of the proposed class were those who did not have a break-in at all, and thus, the method of break-in was immaterial, and given that the plaintiff had provided “some basis in fact”, in the form of opinions by two metalurgical engineers explaining how the locks were defective.

In Butler v. Honda Canada Inc., on behalf of 1,128,257 persons who, while resident in Canada, purchased or leased 2000 Honda and Acura (purchased or leased in Canada on or after November 14), 2001-06 Honda and Acura, 2007 Honda Fit automobiles, Geoffrey Butler sued Honda Canada Inc. for damages in negligence.  Odometers overstated the mileage of the vehicles.  As a result, class members had to pay out-of-pocket for excess mileage lease charges and for repairs and service that mileage based warranties may have covered.  There was parallel litigation in the United States. 

In Chartrand v. General Motors Corp., on behalf of all owners or subsequent owners of 1999-2002, 1500 series pickups and utilities originally equipped with an automatic transmission and a PBR 210x30 Drum-in-Hat parking brake system utilizing a high force spring clip retainer, and who registered their vehicle in British Columbia, Jannifer Chartrand sued General Motors for damages in negligence and unjust enrichment. She alleged that such vehicles had a defective high-force spring clip which caused premature wear and failure of the parking brake.  In Chartrand, Martinson J. was not persuaded that anyone but the plaintiff had complained about the defect or was willing to participate in the class action. That sole factor essentially determined the negative outcome on the certification motion: (¶53-55, 67).  The defence strategy was to establish that ‘there’s no complaints, and no reason to complain’.  She also looked unfavourably on the recruitment of “placeholder plaintiffs”, and entrepreneurial lawyers with undisclosed partnerships with American lawyers.

In Ernewein v. General Motors of Canada Ltd., on behalf of 28,302 British Columbia owners of 28 models of trucks made over the course of 19 years that had fuel tanks mounted on the outside of the rails, Barry Ernewein and Reynolds John Bonneau sued General Motors in negligent design and manufacture, for failure to warn of the defective design, and under the Trade Practice Act, RSBC 1996, c 457, for the cost of replacing the fuel tanks.  The fuel tanks were placed on the outside of each vehicle’s frame rails, thereby rendering them susceptible to puncture and rupture during side-impact collisions and, consequently, at risk of post-collision fires.  The defendants presented evidence that the class vehicles incorporated many unique fuel system designs and that it was not possible to generalize as to how they would perform in particular crashes.

In Hamilton v. Toyota Motor Sales, USA, Inc., in three class actions in Ontario, and in parallel litigation in Nova Scotia, Quebec, and Saskatchewan, on behalf of current or previous Canadian resident owners or lessors of Toyota and Lexus vehicles equipped or installed with an Electronic Throttle Control System distributed for sale or lease in Canada, with exclusions, Steven Hamilton, Edward Selmani, and Claire Valliere sued Toyota for damages.  The class was alleged to have suffered economic loss from the design, manufacture, marketing, sale, and distribution of Toyota and Lexus vehicles equipped with Electronic Throttle Control.  The plaintiffs asserted that there were defects in the Electronic Throttle Control System with Intelligence (“ETCS-i”) that caused Toyota and Lexus vehicles to unintentionally accelerate.

In Koubi v. Mazda Canada Inc., on behalf of those who bought or leased a 2004-07 model year Mazda3 with a particular door lock mechanism that was manufactured between October 2003 and December 31, 2006 (17,909 class vehicles sold), Alisha Hollen Koubi sued Mazda Canada Inc. and its 20 authorized British Columbia dealers for restitutionary damages and disgorgement of profits, in waiver of tort based on breaches of s. 18(a)-(b) of the Sale of Goods Act, RSBC 1996, c 410 and ss. 4-5 of the Business Practices and Consumer Protection Act, SBC 2004, c 2. In the Mazda3 class vehicles, there was a defect in the door lock mechanism that permitted entry without the use of either a tool or a key in a manner that left dents in the driver’s side door of the vehicles. From January of 2007, Mazda Canada provided a reinforcement plate to address the defect, installed the reinforcement at no charge, and offered a rebate towards the purchase and installation of a shock sensor system, but not all owners had benefitted from that program. In Koubi, the British Columbia Court of Appeal held that breaches of the BPCPA and the SGA cannot provide the foundation for a claim in waiver of tort.

In Naken v. General Motors of Canada Ltd., a Rule 75 class action before Ontario had comprehensive legislation, on behalf of approximately 4,602 purchasers of new 1971 or 1972 Firenza motor vehicles in Ontario and who at the date of the writ had not sold or otherwise disposed of the vehicle, Helen Naken, Stephen Cranson, William J. Pearce, and Roberto Bandiera sued General Motors of Canada Ltd. and Vauxhall Motors Limited for $1,000 (loss in resale value) in breach of warranty. The Firenzas were not of merchantable quality, were not fit for use as motor vehicles, and were not “durable, tough, and reliable”, although no specific defect was described in the reported decisions. The printed material from the manufacturer’s advertising campaign was argued to have created privity with class members. Naken is unique in terms of creating overlap between the cause of action and the suitability for class certification test – ‘certification’ was assessed on the pleadings alone and on the ‘plain and obvious’ standard. In Naken, there is reference to the previous bar by Fletcher-Moulton L.J. in Markt & Co., Ltd. v. Knight Steamship Co., Ltd., [1910] 2 K.B. 1021, that claims for damages only may not be brought by way of representative actions. Though the legislation has removed that bar to certification, the spirit of that argument still survives in the submissions of the defendants under class proceedings legislation in Canada.

In Poulin v. Ford Motor Co. of Canada Ltd., on behalf of those who owned or leased a 1997-2000 F-150 pickup truck, 2001 F-150 four door crew cab pickup truck, 1997-2000 Expedition, and 1998-2000 Lincoln Navigator manufactured that were manufactured between November 1, 1995 and April of 2000 (317,215 vehicles sold and delivered in Canada), Maurice Poulin sued Ford, Magna Donnelly Corporation (Magna-Donnelly), and Intier Automotive Closures, Inc. (Intier) in negligence for the cost of repairing defective springs in door latch mechanisms that Ford installed in the class vehicles. The cost of repair was approximately $1,000 for 2-door vehicles and $2,000 for 4-doors. But if left unrepaired, the defect could cause doors to open in rollovers and side impact collisions and the occupants to be ejected from the vehicle. Certification failed as there were different door latch mechanisms on the affected vehicles, and, following Ernewein, it was not possible to extrapolate from one vehicle to another. The Court’s decision not to certify should be assessed based upon the prejudicial view towards the fact that an American law firm, Motley Rice, underwrote the litigation costs. The court also employed the dubious test of “desirous of having their common complaint...determined through a class-action” which adds words to 4(1)(b).  The court assessed costs against the plaintiff’s lawyers.  There were no complaints within Ford’s records or at Transport Canada.

In Reid v. Ford Motor Company, on behalf of British Columbia residents who owned or leased 1983-95 Ford, Lincoln, and Mercury automobiles with distributor mounted Thick Film Ignition Modules (“TFI Modules” control electric currents through ignition coils in order to make sparks to initiate combustion), Barbara Reid sued Ford entities for the costs of replacing and repairing the defective TFI Module in negligent design and manufacture, failure to warn, and for deceptive trade practices under the Trade Practice Act, RSBC 1996, c 457 (“TPA”).  A claim for waiver of tort for Ford’s profits and savings, seen as a restitutionary remedy for unjust enrichment based upon negligence or a breach of a failure to warn, was not permitted to advance.  Because the TFI Modules were placed on the distributors, they overheated and had a high propensity to fail and cause vehicles to suddenly stall and brakes and steering to fail in a variety of dangerous situations, including in heavy traffic and on hills.  There were complaints to Transport Canada.  There were also American lawyers involved.  Although there were different TFI Modules during the class period, they were mounted on the distributor throughout and thus they shared a common defect.  Both Reid and Poulin were treated as dangerous defect cases for the negligence claims.  The wrongdoing that grounded a “deceptive act or practice” claim under the TPA was the defendants’ failure to disclose the TFI defect.

In Robson v. Chrysler Canada Ltd., in two separate actions, Frank and Karen Robson and Daryl Oshanek sued Chrysler Canada Ltd. and Daimler-Chrysler Corp. and General Motors of Canada Limited and General Motors Corp. for a declaration that the defendants engaged in depective trade practices contrary to s. 18 of the Trade Practice Act, RSBC 1996, c 457 (“TPA”) and damages under s. 22 of the TPA.  Between 1986 and 1997, the defendants knowingly used a defective process to apply paint to vehicles that did not permit the paint to properly adhere to the vehicles, and resulted in delamination and deterioration of the paint finish.  The plaintiffs claimed damages for depreciation and the cost of repainting their vehicles.  On the “good arguable case” standard for assuming jurisdiction (which examined the jurisdictional facts in the pleading and evidence for and against those jurisdictional facts, but which slipped into the merits of the claim and whether a cause of action was made out – [the “good arguable case” standard was “eclipsed” in Stanway, 2009 BCCA 592 (affirmed in Fairhurst, 2012 BCCA 217)] - the British Columbia Court of Appeal retained jurisdiction for British Columbia courts over the claim involving an American defendant even if the deceptive acts or practices did not take place within the province, and the Court held that it was premature to conclude that mere silence constituting a failure to disclose a material fact could not be a deceptive act or practice under the TPA. 

In Stewart v. General Motors of Canada Ltd., on behalf of consumers, resident in Canada (excluding Quebec), who owned or leased at least one of approximately 1,000,000 1995-2003 (and some 2004) model year Chevrolet, Pontiac, Buick and Oldsmobile vehicles that had specified types of engines, were factory-equipped with a certain type of coolant and, in some vehicles, with nylon/silicone intake manifold gaskets and who incurred expense from a repair made within the earlier of 7 years from the initial delivery date of the vehicle and 240,000 kilometres of use before October 14, 2008, Kenneth Stewart and Darlene Simpson sued General Motors of Canada Limited and General Motors Corporation for damages and restitutionary remedies in negligence, for unfair practices under the Consumer Protection Act, 2002, SO 2002, c 30, Sch “A” and equivalent legislation in other provinces, and for breach of s. 52 of the Competition Act, RSC 1985, c C-34.  Intake manifold gaskets in cars and trucks designed, manufactured, and marketed by the defendants prematurely degraded and did not properly maintain a seal to the engine.  Nylon should not have been used.  That caused fluid to leak, consequential damage to the engines, and danger to occupants of the vehicles.  Class members paid for costly repairs.  There were parallel class actions in the United States and across Canada, and they settled on parallel terms.

In Thorpe v. Honda Canada Inc., on behalf of those who owned or leased 2006 or 2007 model year Honda Civic (except Si and Hybrid) automobiles in Canada and who claim to have suffered damages as a result of irregular and premature tire wear caused by a geometry-related rear suspension defect, Kathleen Thorpe sued Honda Canada Inc. for damages in negligence.  The rear control arms and suspension mechanism was defective and dangerous and caused expense to correct premature tire wear.  As with the earlier case of Punit, ‘national class jurisdictional issues’ were deferred to a later stage: in Thorpe, to certification; and in Punit, “at any time up to and including [certification].”  At certification, Thorpe certified a national class.

(b) parts - no defects
In Axiom Plastics Inc. v. E.I. Dupont Canada Co., a case of vertical not horizontal price-fixing, on behalf of Canadians who, between January 2000 and the date of certification, purchased engineering resins (engineering resins are used to manufacture plastic auto parts) for an automotive application from E.I. DuPont Canada Company, its predecessors (“DuPont”), or one of its three authorized Canadian distributors, and who were required by a customer to use the resins in the application, Axiom Plastics Inc. sued DuPont for damages under s. 36 of the Competition Act(ss. 45(1) and 61), in conspiracy, and in unjust enrichment.  DuPont manufactured engineering resins that other manufacturers used to make auto parts.  DuPont sold the resins directly at a “list price” to some and indirectly through distributors to others.  Under the “Credit Upon Proof of Sale” arrangements between DuPont and its distributors that was at the center of the certified common issues, if the distributors’ customers or their appointed 100-200 “moulders” acquired the resins from the distributors for less than the “list price”, DuPont Canada credited the distributors in the amount of the difference between the “list price”, as adjusted by a 4-8% discount, and the amount that the distributors sold the resins to their customers or “moulders” at.  DuPont also prevented class members from purchasing the engineering resins from brokers who had acquired the engineering resins outside of Canada on the “grey market”.  The result was that, during the class period, distributors were required to sell at not less than the “list price” unless DuPont agreed otherwise.  DuPont Canada thereby conspired with its authorized distributors to unreasonably enhance the prices of engineering resins charged to class members.

Price fixing in the market for ethylene propylene diene monomer (“EPDM”), a synthetic rubber used in the auto industry and in products such as radiators, pond liners, garden and appliance hoses, gave rise to two reported class actions.  There are few details about the causes of action advanced, relief sought, and class proposed in the two reported interlocutory decisions in R.N. Parton and Stone Paradise, but from the English language partial settlement notice in an Appendix to Fluet c. Bayer Inc. (July 11), 2005 CarswellQue 7498, the class actions were advanced on behalf of persons in Canada who purchased EPDM or EPDM Products in Canada between January 1, 1997 and December 31, 2001, except the Defendants or their affiliates and subsidiaries and entities in which they had a controlling interest.

In Urlin Rent-A-Car Ltd. v. Champion Laboratories, Urlin Rent-A-Car Ltd. sued Champion Laboratories Inc., Honeywell International Inc, Wix Filtration Products, Affina Group Inc., Cummins Filtration Inc., Cummins Filtration International Corp., Cummins Inc., The Donaldson Company, Baldwin Filters Inc., ArvinMeriotr Inc., ArvinMeritor Filters Operating Company LLC (f/k/a Purolator Products NA LLC, ArvinMeritor Holding Company (f/k/a Purolator Products Company LLC) and ArvinMeritor Canada.  The defendants conspired to fix the prices for oil and air filters sold as replacement filters for automobiles, trucks, and other vehicles (after market filters) in Canada.  There were parallel actions in Quebec and the United States.

(5) sales
In Fournier v. Mercedes-Benz Canada Inc., on behalf of Canadians who imported Mercedes-Benz, BMW, and Mini vehicles into Canada from the United States, three importers sued Mercedes-Benz Canada Inc., Mercedes-Benz USA LLC, and BMW Canada Inc., for damages in civil conspiracy, breach of s. 17 of the Consumer Protection Act, 2002, SO 2002, c 30, Sched. A., breach of ss. 45(1) and 52(1) of the Competition Act, RSC 1985 c C-34, intentional interference with economic interests, unjust enrichment, and waiver of tort. When the Canadian dollar reached par with the American dollar, luxury vehicles suddenly became cheaper in the United States than in Canada – Canadians paid less to purchase and import a vehicle from the United States than they would have paid to buy directly in Canada, so they bought there, and Canadian dealers suffered from a loss of sales. In August of 2006, at the request of Mercedes, and in November of 2007, at the request of BMW, Transport Canada revised its Admissibility List for vehicles imported from the United States to state that the manufacturers had not provided admissibility information at Transport Canada, that modifications to their vehicles to meet Canadian Standards had to be performed by an authorized Mercedes or BMW dealer, and that a Letter of Admissibility was required to import the vehicles. As a result of changes to the Admissibility List, Mercedes and BMW withheld admissibility and recall information until the importers paid fees for the information and effected unnecessary vehicle modifications that were required to be made by Mercedes and BMW dealers. The defendants maintained artificially high prices for the modification and certification of imported vehicles. On July 4, 2008, the Admissibility List in respect of the vehicles removed the objectionable statements. In essence, Mercedes and BMW prevented importers from bringing the vehicles into Canada unless they paid fees for modifications to their vehicles and for Letters of Admissibility that were not required by the applicable regulatory regime. The illegality lay in pressuring the government agency to insert false statements in the Admissibility List, denying Canadian importers access to recall information, and preventing importers from using whomever they wished to perform vehicle modifications.

In Payne v. Eagle Ridge Pontiac GMC Ltd., on behalf of those who were issued 148 “Cashable Vouchers”, purporting to be issued by Consumers Trust (who went bankrupt in December 2005), and who received such document from Eagle Ridge Buick GMC Ltd. respecting sales of 256 vehicles between October 6 and November 26, 2003, Barbara Irene Payne sued Eagle Ridge Pontiac GMC Ltd, The Consumers Trust, and 10 John Does for damages in negligent misrepresentation.  Eagle Ridge made statements in an October 8, 2003 Tri-City News newspaper advertisement that suggested that Eagle Ridge (and not Consumers Trust) was offering the opportunity to claim and receive up to $30,000 cash back by way of a Cashable Voucher.  Payne is an example of a common issues trial being held in a misrepresentation case where the misrepresentation was contained in a single documentary source, and then the trial judge observed that there would be an individual issues resolutions process following the common issues trial.

In Steele v. Toyota Canada Inc., on behalf of about 40,000 persons who leased or purchased a new Toyota vehicle in British Columbia between June 12, 2002 and June 30, 2004, Michael Steele, Shawn Allen Munro, and Gary Weishaar sued Toyota Canada Inc. and 33 British Columbia dealers for damages, a constructive trust, and disgorgement in civil conspiracy, interference with economic relations, misrepresentation, unjust enrichment, waiver of tort, and under s. 36 of the Competition Act, RSC 1985, c C-34 [ss. 52(1) (misrepresentation) and 61(1) (price maintenance)]. From March of 2000, the defendants implemented and operated the Access Program throughout Canada, whereby dealers submitted votes each month to Toyota on the prices of vehicles, which Toyota then averaged as the Access Price for each local market. There was a variety of wrongdoings associated with the Program:

Between June 2002 and June 2004, the defendants implemented and operated the Access Program in British Columbia, the result of which was that purchasers and lessees were deprived of a chance to negotiate lower prices for their vehicles. A contentious issue was whether the plaintiffs could prove that the Access Program caused loss to class members on a class wide basis.  Without the benefit of Infineon(BCCA), the British Columbia Supreme Court denied certification on the basis that loss was an element of each cause of action, that could not be established on a class wide basis, and because numerous individual differences would have to be proven in a trial for each of the 40,000 purchasers.  The British Columbia Court of Appeal found that some of the causes of action advanced did not require loss, and that there was some basis in fact that it could be proven on a class wide basis. In addition to following Infineon, Steele is significant for at least two reasons.  First, in Steele, the British Columbia Court of Appeal recognized waiver of tort as a potential cause of action on behalf of direct purchasers against dealers and on behalf of indirect purchasers against Toyota Canada Inc. Second, it was certified by the British Columbia Court of Appeal but not by the Quebec Court of Appeal.

In Tetefsky v. General Motors Corp., five plaintiffs sued General Motors, Honda, Chrysler, Nissan, and Ford and the Canadian Automobile Dealers Association. The defendants conspired to unreasonably enhance the price of motor vehicles and unduly lessen competition in the manufacture, sale, or supply of motor vehicles in North America. The reported cases dealt with non-party documentary production and provided no particulars about the nature of the causes of action advanced and the allegations made.

(6) servicing
In Dean v. Mister Transmission (International) Ltd., on behalf of all consumers who, between June 29, 2001 and the date of certification order publication, in Ontario, paid to Mr. Transmission or the franchisees a fee or charge for removing and dismantling transmissions in motor vehicles, determining any necessary repairs, and then reassembling and reinstalling the transmission, in connection with work or repairs that were authorized by the consumer and carried out by Mr. Transmission or the franchisees, Douglas Dean sued Mr. Transmission entities for a constructive trust and declarations in conspiracy and unjust enrichment and for violations of the Motor Vehicle Repair Act, RSO 1990, c M. 43, ss. 3(2)-(3) and the Consumer Protection Act, 2002, SO 2002 c 30, s 57(2)-(3). In essence, the plaintiff complained that the defendants charged “Inspection Service” fees for work required to perform an estimate of the cost of repairs, contrary to the legislation’s prohibition against charging for estimates where the work is later carried out. The plaintiff sought to have the inspection service fees returned.

(7) services
In Robinson v. Saskatoon (City), on behalf of Saskatoon cab owners and operators who paid fees to taxi license holders for use of their license, three cab drivers sued the City of Saskatoon in negligence and 41 named license holders (“Industry Defendants”) in unjust enrichment and for unlawful interference with trade for damages in excess of $18 million and for an order that cab licenses be issued to class members instead of non-operators. The plaintiffs asserted that the City negligently interpreted and administered its licensing bylaw (Bylaw No. 6066), and that the Industry Defendants obtained and used taxicab licences contrary to the bylaw. The plaintiffs interpreted the bylaw as disallowing license transfers, but the City permitted transfers anyway, including by those who did not own or drive a cab. As a result, class members had to pay license lease payments to the Industry Defendants at rates that were multiples higher than what the Industry Defendants were initially charged by the City. In essence, the plaintiffs’ case was that the Industry Defendants scalped licenses that they obtained from the City's unlawful administration of a bylaw.  

IV. BOATS

If you got this far, you've done ferry, ferry well and deserve a big boat bonus.

In Kotai v. “Queen of the North” (The), on behalf of passengers of the “Queen of the North” during her last voyage and their “Dependants”, Alexander Steven Kotai, Maria Giovanna Kotai, Barney Norman Dudoward, and Robert Peter Smith sued The Owner and all Others Interested in the Ship “Queen of the North”, British Columbia Ferry Services Inc., Colin Henthorne (Captain), Karl Lilgert (4th Officer), and Karen Briker (deckhand) for damages under the Marine Liability Act, SC 2001, c 6. B ritish Columbia Ferry Services Inc. owned and operated the “Queen of the North” ferry which, on March 22, 2006, with 46 crew members and 55 paying passengers on board, ran aground on Gil Island, was evacuated, and subsequently sank on route from Prince Rupert to Port Hardy. It failed to make a necessary course change at Sainty Point. Two passengers were never found and were presumed to be dead, and class members experienced physical injuries, emotional or psychological distress, and consequent wage loss. Some class members had unpaid claims that exceeded the limits of liability established under the Marine Liability Act, SC 2001, c 6.

APPENDIX

CERTIFICATION RECORD (Contested)

15 YES;  18 NO

YES

Axiom Plastics Inc. v. E.I. Dupont Canada Co.: (Aug. 27, 2007), 87 O.R. (3d) 352 (Hoy J.);  (May 16, 2008), 90 O.R. (3d) 782 (Div. Ct., Kiteley J.)

Berry v. Pulley: (March 13, 2001) 197 D.L.R. (4th) 317 (Ont. S.C.J., Cumming J.);  (June 9, 2007), 47 C.P.C. (6th) 365 (Cullity J.)

Brimner v. VIA Rail Canada Inc.: (July 17, 2000), 50 O.R. (3d) 114 (S.C.J., Brockenshire J.);  (Jan. 31), [2001] O.J. No. 458 (Div. Ct., Thomson J.);  (Sept. 17, 2001), 151 O.A.C. 133 (Div. Ct., Carnwath, Matlow, Juriansz JJ.)

Bywater v. Toronto Transit Commission: (Dec. 2, 1998), 27 C.P.C. (4th) 172 (Ont. Gen. Div., Winkler J.) & (Jan. 12, 1999), 30 C.P.C. (4th) 131 (Ont. Gen. Div., Winkler J.)

Chapman v. Benefit Plan Administrators Ltd.: (June 27), 2013 ONSC 3318 (Conway J.)

Dean v. Mister Transmission (Inter.) Ltd.: (Nov. 4, 2008), 66 C.P.C. (6th) 287 (Ont. S.C.J.) (Gray J.)

Gautam v. Canada Line Rapid Transit Inc.: (Feb. 5), 2010 BCSC 163 (Pitfield J.);  (June 15), 2011 BCCA 275 (Finch C.J.B.C., Hall, Bennett JJ.A.)

Landsbridge Auto Corp. / 405341 Ontario Limited v. Midas Canada Inc.: (March 26, 2009), 73 C.P.C. (6th) 10 (Ont. S.C.J., Cullity J.)

Nunes v. Air Transat A.T. Inc. (Feb. 28), [2003] O.J. No. 2006 (S.C.J. Cullity J.)

 Reid v. Ford Motor Co.: (Oct. 29), 2003 BCSC 1632 (Gerow J.) & (May 3rd), 2006 BCSC 712 (Gerow J.)

Schweyer v. Laidlaw Carriers Inc.: (Feb. 22, 2000), 44 C.P.C. (4th) 236 (Cumming J.)

Steele v. Toyota Canada Inc.: (Aug. 6), 2008 BCSC 1063 (Ehrcke J.);  (March 7), 2011 BCCA 98 (Rowles, Groberman, Hinkson JJ.A.); (Nov. 3), 2011 CarswellBC 2854 (SCC - Cromwell, Fish, LeBel JJ.)

Thorpe v. Honda Canada Inc.: (Feb. 14), 2011 SKQB 72 (Popescul J.) & (March 11), 2011 SKQB 72 (Popescul J.)

Trillium Motor World Inc. v. General Motors of Canada Ltd.: (March 1), 2011 ONSC 1300 (Belobaba J.);  (June 22), 2011 ONSC 3939 (Div. Ct. – Low J.);  (Jan. 12), 2012 ONSC 463 (Div. Ct. - Aston, Sanderson, Lauwers JJ.)

Windsor v. Canadian Pacific Railway: (May 17), 2006 ABQB 348 (Rooke J.);  (Sept. 25), 2007 ABCA 294 (Berger, Martin, Slatter JJ.) 

NO

Benning v. Volkswagen Canada Inc. (Aug. 22), 2006 BCSC 1292 (Gropper J.)

Brooks v. Canadian Pacific Railway (July 11), 2007 SKQB 247 (Dawson J.)

Chartrand v. General Motors Corp. (Dec. 23), 2008 BCSC 1781 (Martinson J.)

Cuff v. Canadian National Railway (Dec. 14), 2007 ABQB 761 (Belzil J.)

DeFazio v. Ontario (Ministry of Labour): (March 12, 2007), 38 C.P.C. (6) 223 (S.C.J., Hoy J.);  (Dec. 5), 2007 CarswellOnt 8034 (Div. Ct., Carnwath, Pierce, Hackland JJ.) & (Dec. 24, 2007), 232 O.A.C. 48 (Div. Ct., Carnwath, Pierce, Hackland JJ.)

Ernewein v. General Motors of Canada Ltd.: (Nov. 15), 2004 BCSC 1462 (Taylor J.);  (Nov. 3), 2005 BCCA 540 (Finch C.J.B.C., Newbury, Kirkpatrick, JJ.A.’s);  (March 23rd, 2006), 355 N.R. 197 (note) (SCC - Binnie, Charron, McLachlin C.J.C.)

Jackson v. Canadian National Railway: (Nov. 29), 2012 ABQB 652 (Martin J.);  (Dec. 18), 2013 ABCA 440 (O’Brien, Martin, O’Ferrall J.)

Koo v. Canadian Airlines International Ltd.: (Feb. 16), 2000 BCSC 281 (Allan J.)

Koubi v. Mazda Canada Inc.: [(May 6), 2010 BCSC 650 (Dardi J.) & (Jan. 20), 2011 BCSC 59 (Dardi J.);  (July 16), 2012 BCCA 310 (Frankel, Lowry, Neilson JJ.A.);  (Jan. 17, 2013), 446 N.R. 396 (note) (McLachlin C.J.C., Abella, Cromwell JJ.)

McCracken v. Canadian National Railway: [(Aug. 17), 2010 ONSC 4520 (Perell J.);   (June 26), 2012 ONCA 445 (Cronk, Laskin JJ., Winkler C.J.O.)

McNaughton Automotive Ltd. v. Co-operators General Insurance Co.: (Aug. 14, 2000), 50 O.R. (3d) 300 (Haines J.);  (Aug. 14, 2003), 66 O.R. (3d) 466, 47 C.P.C. (5th) 370 (Haines J.) & (Nov. 4, 2003), 49 C.P.C. (5th) 383 (Haines J.);  (Dec. 27, 2006), 40 C.P.C. (6th) 37 (Div. Ct. - Cunningham A.C.J., E. Macdonald, Swinton JJ.)

Naken v. General Motors of Canada Ltd.: (Dec. 5, 1975), 11 O.R. (2d) 389 (S.Ct. - Osler J.);  (March 30, 1976), 1 C.P.C. 51 (Ont. S.Ct. - Hughes J.);  (Oct. 13, 1977), 17 O.R. (2d) 193 (Div. Ct. - Griffiths, Rutherford, Steele JJ.);  (Oct. 12, 1978), 21 O.R. (2d) 780 (C.A. -Arnup, Dubin, Blair JJ.A.) & (Jan. 17, 1979), 92 D.L.R. (3d) 100 at 114 (C.A. - Arnup, Dubin, Blair JJ.A.);  (Feb. 8, 1983), [1983] 1 S.C.R. 72 (Laskin C.J.C., Dickson, Beetz,Estey and McIntyre JJ.)

Poulin v. Ford Motor Co. of Canada Ltd.-Ford du Canada Ltee: (Nov. 14, 2006), 35 C.P.C. (6th) 264 (Ont. S.C.J. - Mackenzie J.);  (Oct. 22, 2008), 65 C.P.C. (6th) 247 (Ont. S.C.J. - Div. Ct. - Cunningham A.C.J. and Carnwath, MacDougall JJ.)

Risorto v. State Farm Mutual Automobile Insurance Co. (Feb. 22, 2007), 38 C.P.C. (6th) 373 (Ont. S.C.J., Cullity J.)

Roberts v. Canadian Pacific Railway (Nov. 8), 2006 BCSC 1649 (Ross J.)

Segnitz v. Royal & Sun Alliance Insurance Co. of Canada (Oct. 29, 2003), 40 C.P.C. (5th) 391 (Ont. S.C.J., Haines J.)

Sutherland v. Canada (Attorney General): (Nov. 14, 1997), 15 C.P.C. (4th) 329 (B.C.S.C., Smith J.)

 Walton v. Mytravel Canada Holdings Inc. (May 16), 2006 SKQB 231 (Dovell J.)

APPROVED FEE$

Nunes v. Air Transat A.T. Inc. (June 20, 2005), 20 C.P.C. (6th) 93 (Ont. S.C.J., Cullity J.) ($N/A).

Chrysler Canada Inc. v. Gatens (Oct. 4), 2010 ONSC 5467 (Perell J.) (reasonable, no multiplier)

General Motors of Canada Ltd. v. Abrams (Sept. 13), 2011 ONSC 5338 (Perell J.) (reasonable)

Kotai v. “Queen of the North” (The) (Aug. 23), 2010 BCSC 1180 (Joyce J.) ($60,239.05)

Urlin Rent-A-Car v. Champion Laboratories (Jan. 24), 2014 ONSC 577 (Rady J.) ($66,500)

Schweyer v. Laidlaw Carriers Inc. (Dec. 16, 2009), 183 A.C.W.S. (3d) 649 (Perell J.) ($159,094.21)

Maggisano v. Skyservice Airlines Inc. (Dec. 22), 2010 ONSC 7169 (Perell J.) ($200,000)

Reid v. Ford Motor Co. (Sept. 29), 2006 BCSC 1454 (Gerow J.) ($300,000 to $500,000)

Butler v. Honda Canada Inc. (May 29), 2009 CarswellOnt 3142 (Leitch R.S.J.) ($650,000)

Toronto Transit Commission v. Signorile (Oct. 24), 2013 ONSC 6377 (Conway J.) (∼$688,116)

Wamboldt v. Northstar Aerospace (Canada) Inc. (June 18, 2009), 72 C.P.C. (6th) 386 (Perell J.) ($1,125,000)

McKay v. Air Canada (March 25), 2009 BCSC 392 (Hinkson J.) ($1,500,000 Canada-wide) / Nutech Brands Inc. v. Air Canada Cargo (Feb. 19, 2009), 78 C.P.C. (6th) 40 (Leitch R.S.J.) ($1,500,000 Canada-wide)]

Landsbridge Auto Corp. / 405341 Ontario Limited v. Midas Canada Inc. (Sept. 12), 2013 ONSC 5714 (Lax J.) ($2,125,000)

Stewart v. General Motors of Canada Ltd. (Nov. 4, 2008), 72 C.P.C. (6th) 361 (Ont. S.C.J. - Cullity J.) ($1,500,000 to $2,520,000)

Axiom Plastics Inc. v. E.I. Dupont Canada Co. (May 8), 2013 ONSC 2675 (Perell J.) ($2,700,000+)

Abdulrahim v. Air France (Jan. 21), 2011 ONSC 512 (Strathy J.) ($6,225,000)

Hamilton v. Toyota Motor Sales, USA, Inc. (Feb. 6), 2014 ONSC 785 (Perell J.) ($8,400,000)