Executive Summary: Key Legal and Evidentiary Issues

• Addresses whether the defendants should be granted leave to cross-examine a key affiant in advance of a class certification hearing.
   
• Considers the admissibility of expert opinion evidence proffered by an automotive technician lacking design and engineering credentials.
   
• Examines each element of the certification test under the Class Proceedings Act, including cause of action, common issues, and preferable procedure.
   
• Explores whether an aggregate damages award can be certified absent a class-wide baseline of loss.
   
• Assesses whether the plaintiff's litigation plan adequately addresses the individual damages inquiries that would remain after a common issues trial.
   
• Determines whether a proposed class proceeding remains the preferable procedure once individual issues are accounted for.
   

Facts of the case

Samantha Crawford commenced a proposed class action against FCA Canada Inc. and FCA US LLC, alleging that seven models of vehicles sold or leased in Canada between 2013 and 2020 were prone to three defects related to their 2.4L "Tigershark" engines: an Oil Consumption Defect causing excessive oil burn-off, an Oil Level Defect causing the engine to stall when oil dropped below a certain level, and an Oil Indicator Defect preventing the dashboard warning light from illuminating when oil was too low. The defendants acknowledged that some vehicles with the original engine design consumed oil excessively under certain driving conditions and implemented a repair campaign consisting of three customer satisfaction notices, two involving a software recalibration and one involving an oil consumption test followed by an engine long block replacement for vehicles that failed. In support of certification, the plaintiff relied on her own affidavit, an affidavit from putative class member Stacey McGregor, and two affidavits from Jeff Hall, an automotive technical consultant, attaching expert reports addressing the alleged defects. The defendants responded with affidavits from Product Analysis Engineer Anna Langlois and mechanical engineer James Smith. Before the certification hearing took place, the defendants applied separately for leave to cross-examine Mr. Hall on his affidavits, arguing that he lacked the credentials to offer the opinions in his reports and had not conducted adequate research or investigation.

Policy and legislative provisions at issue

The cross-examination application turned on the discretionary test applied by British Columbia courts under Rule 22-1(4)(a) of the Supreme Court Civil Rules, requiring a conflict in the evidence germane to certification before leave will be granted, together with consideration of relevance, utility, availability of the information by other means, and the risk of delay or cost. The certification application engaged s. 4(1) of the Class Proceedings Act, which requires that the pleadings disclose a cause of action, that there be an identifiable class, that the claims raise common issues, that a class proceeding be the preferable procedure, and that there be a suitable representative plaintiff with a workable litigation plan. Section 5(5) of the Act, requiring affidavits to disclose all material facts known to the deponent, was raised in connection with the weight to be given to the defendants' evidence. The plaintiff also pleaded causes of action in negligence, negligent misrepresentation, breach of implied warranty under the Sale of Goods Act and at common law, and breach of the Competition Act, the Business Practices and Consumer Protection Act, and parallel consumer protection legislation in other provinces.

Reasoning and analysis

On the cross-examination application, Justice Milman found that although the defendants had brought their request after the agreed deadline for cross-examinations, it was not unreasonable for them to have waited until they received Mr. Hall's reply affidavit before deciding whether cross-examination was necessary, so the application was considered on its merits. He concluded that the matters the defendants wished to explore, namely Mr. Hall's qualifications and the adequacy of his investigation, could already be argued from the face of the affidavits, and that the defendants had not shown the cross-examination would yield further relevant information. Given the risk that granting leave would delay the certification schedule, he dismissed the application. On the certification application, the court first addressed the admissibility of Mr. Hall's reports, concluding that his opinions on engineering design and manufacturing flaws exceeded his expertise as a mechanic and that several passages lacked transparency as to their factual sources, rendering identified paragraphs of both reports inadmissible, while other portions describing engine components and their function were properly admitted. Turning to the certification criteria, the court held that the causes of action in negligence, misrepresentation, implied warranty, and consumer protection legislation were adequately pleaded, relying heavily on the Court of Appeal's reasoning in Nissan Canada Inc. v. Mueller, and that the existence of an identifiable class was not contested. On common issues, the court accepted that the Oil Consumption Defect could be assessed on a class-wide basis given evidence linking it to insufficient sealing of the piston rings, and certified most of the proposed common issues, including those addressing the standard of care, failure to warn, and punitive damages. It declined to certify a common issue on the Oil Level Defect, finding no independent evidence of its existence beyond Mr. Hall's inadmissible opinions, and similarly declined to certify a common issue on the Oil Indicator Defect beyond Ms. McGregor's own individual experience. The court also refused to certify an aggregate damages issue, finding no evidentiary basis for a class-wide baseline of loss given the varying repair outcomes across the 91,898 affected vehicles. The court further found that the plaintiff's litigation plan did not adequately provide for the numerous individual inquiries that would be needed to assess damages after a common issues trial, and that, as a result, individual issues would overwhelm the litigation, defeating the preferable procedure requirement.

Ruling and overall outcome

Justice Milman dismissed the defendants' application for leave to cross-examine Mr. Hall, with each side bearing its own costs, as he was not satisfied that the circumstances required under s. 37 of the Class Proceedings Act to justify a costs award had been established. On the certification application, he found that the plaintiff had satisfied the requirements for cause of action, identifiable class, and common issues, but had failed to establish that a class proceeding was the preferable procedure or that her litigation plan adequately addressed the individual issues that would remain following a common issues trial. Certification was accordingly refused, though the plaintiff was granted leave to renew the application on different terms if she could remedy the shortcomings identified in the litigation plan and the aggregate damages methodology. No monetary award was made in either decision, as both were procedural rulings rather than merits determinations, and the successful parties were the plaintiff on the cross-examination application and the defendants on the certification application, subject to the plaintiff's preserved right to reapply.