Executive Summary: Key Legal and Evidentiary Issues

• Defendants sought leave under Rule 22-1(4)(a) to cross-examine Jeff Hall, an automotive technician who affirmed two affidavits supporting the plaintiff's certification application for a class action involving alleged vehicle defects.

• Central to the dispute was whether the plaintiff's witness possessed requisite credentials and conducted adequate research, investigation, or analysis to provide admissible expert opinion evidence.

• Courts are generally reluctant to grant leave for cross-examination prior to certification, requiring a conflict in evidence germane to certification before exercising discretion.

• The parties disagreed on whether the commonality inquiry under s. 4(1)(c) of the Class Proceedings Act should proceed in one or two steps.

• Timeliness was raised as an issue, as the application was filed after the agreed-upon deadline for cross-examinations had passed.

• The court ultimately dismissed the application, finding the defendants failed to demonstrate how cross-examination would yield relevant information beyond what was already available on the face of the affidavits.

Background of the dispute

Samantha Crawford commenced this proposed class action on August 3, 2022, against FCA Canada Inc. and FCA US LLC. The amended notice of civil claim alleges that a number of motor vehicles manufactured by the defendants between the years 2013 and 2020 were prone to various defects. Foremost among them is the tendency of affected vehicles to burn or consume inordinate amounts of engine oil. Additional defects include the "Oil Level Defect," which caused the engine to shut down when the oil level dropped below a certain level, and the "Oil Indicator Defect," a defect preventing the warning light on the dash from illuminating even when the oil level was too low.

The defendants' remedial measures

The defendants acknowledged that they recognised there was a problem with oil consumption and sought to address it with a software calibration. They also acknowledged that in a few cases, the software update could reduce the affected vehicles' fuel efficiency, but maintained that they addressed the problem by replacing the engine long block at no charge to the vehicle owners. The plaintiff alleges that those fixes did not entirely resolve the oil consumption defect or the associated reduction in fuel efficiency.

Certification proceedings and scheduling

At the certification hearing currently scheduled to take place over five days from May 11-15, 2026, the plaintiff seeks an order certifying a national class comprised of everyone in Canada who either owned or leased one or more of the affected vehicles, with 44 proposed common issues. The plaintiff delivered her unfiled certification application and supporting affidavits to the defendants on October 6, 2023. On April 3, 2025, the parties agreed on a schedule setting deadlines for the exchange of materials leading to the certification hearing, with plaintiff's counsel advising that the plaintiff would not agree to any cross-examinations in advance of the certification hearing.

The cross-examination application

On December 23, 2025, defendants' counsel informed plaintiff's counsel that they planned to seek leave to examine Mr. Hall only. The defendants filed the application on January 6, 2026. They argued that Mr. Hall's first affidavit is central to the plaintiff's case for certification because he provides the only evidence adduced by the plaintiff to prove the existence of the Oil Indicator Defect and Oil Level Defect and that the defendants' fixes failed to remedy the oil consumption problem and reduced fuel efficiency. The defendants contended that cross-examination would assist the court in assessing the admissibility of Mr. Hall's affidavits, or at least the weight that his opinions ought to receive.

The legal framework for cross-examination

The applicable test for granting leave to cross-examine considers several factors: whether there are material facts in issue; whether the cross-examination is relevant to an issue that may affect the outcome of the substantive application; whether it will serve a useful purpose in terms of eliciting evidence that would assist in determining the issue on the application; whether the information sought is available by other means; and whether cross-examination will lead to unreasonable delay or unreasonable cost. Courts have held that cross-examination is permitted where it is first established that there is a conflict in evidence on a point germane to certification, and leave to permit cross-examination is an order that courts are generally reluctant to make and is rarely granted prior to certification.

The plaintiff's position

The plaintiff argued there was no conflict in the evidence that is germane to the issues that will be decided at the certification hearing. She disputed the defendants' characterisation of the evidentiary burden that the plaintiff must meet to succeed on the certification application, asserting they were seeking to introduce a merits-based element to the certification test, contrary to numerous authorities. The plaintiff cited authorities establishing that a plaintiff in a product liability case need not adduce evidence of negligence in order to satisfy the commonality element of the certification test, and that the plaintiff must show some basis in fact that the issues are common to all class members, not some basis in fact that the acts alleged actually occurred.

The court's analysis and ruling

Justice Milman found that while the application was brought late, well after the agreed-upon deadline for cross-examinations had already passed, it was not unreasonable for the defendants to wait until after they had received the reply evidence before deciding if they wished to pursue cross-examinations. However, on the substantive issue, the court agreed with the plaintiff that the arguments that the defendants wish to raise at the certification hearing about Mr. Hall's lack of qualifications and his failure to conduct the appropriate investigations, research and analysis, can all be made with the information already available to them on the face of the affidavits. The defendants had not explained how the proposed cross-examination would be likely to yield any other relevant information to assist the court in deciding the issues that will be addressed at the certification hearing. The court also noted that the proposed cross-examination might delay the certification schedule, given the deadlines that have been agreed upon for the exchange of written submissions in February and March 2026. Consequently, the application was dismissed. Both parties sought costs against the other, but the court determined the parties will bear their own costs, finding no circumstances set out in s. 37 of the CPA present so as to justify an award of costs in favour of the plaintiff at this time. No monetary award was ordered or granted in this interlocutory decision.