In Maginnis and Magnaye v. FCA Canada et al, 2020 ONSC 5462, the court refused to certify a class proceeding for the reason that there was no evidence that the plaintiffs had actually been harmed. A defendant was repairing the allegedly defective vehicles at issue and there was no evidence that the plaintiffs would have any harm to compensate after the repairs were implemented.
The plaintiffs sought certification of a class of owners and lessees of certain diesel-engine vehicles. The plaintiffs alleged that the vehicles had emissions defeat devices (i.e., an emissions control system that would make the vehicle appear compliant with emission regulations when it was not). At least two other emissions defeat device class actions had been certified in Ontario.
The crux of the plaintiffs' claim was that they would not have purchased the vehicles had they been aware of the alleged emissions defeat device. However, one of the defendants was repairing the vehicles at no cost; thereby making them emissions-compliant. The defendants argued that certification should be refused because there was no evidence that the plaintiffs suffered compensable harm. The court agreed that without harm to compensate, a class action would be a waste of resources and thus inappropriate.
The plaintiffs argued that they suffered two forms of compensable harm: (i) they paid a "premium price" for "clean diesel" and instead got "dirty diesel" and (ii) the vehicles' fuel economy and performance deteriorated after the repairs.
Certification was refused because there was no evidence of either. First, there was no evidence that anyone paid a premium price—the evidence suggested that a rebate may have offset any higher cost (at least for the proposed representative plaintiffs). Further, there was no evidence that (after the repairs) the trade-in value for the vehicles would be lower. And the plaintiffs could not be compensated for any breaches of environmental protections caused by the alleged defeat device—that was a matter for regulators.
As for the allegation that fuel economy or performance deteriorated after the repairs, the plaintiffs led no evidence to contradict evidence (from US proceedings) that the repair did not change the vehicles' key attributes. The plaintiffs provided only an expert methodology to test whether there was any evidence of an adverse impact one fuel economy and performance. The court found that insufficient to establish compensable harm.
The court concluded that the certification motion could be dismissed under ss. 5(1)(b) or (e) of the test for certification in the Class Proceedings Act, but preferred to dismiss it under s. 5(1)(d) because a class action was not preferable in a case with no evidence of harm.
Originally published by McCarthy Tetrault, October 2020
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