Executive Summary: Key Legal and Evidentiary Issues

• Mark Kashetsky filed an application to authorize a nationwide class action against FCA Canada Inc. and FCA US LLC over alleged defects in certain Jeep plug-in hybrid electric vehicles.
• Two defects are alleged: a Loss of Power Defect causing unexpected loss of acceleration, and a FORM Related Defect that locks vehicles into Fuel and Oil Refresh Mode, disabling electric driving.
• FCA sought leave to file the affidavit of Anna Langlois, a product analysis engineer, to introduce evidence at the authorization stage of the class action proceedings.
• Central to the dispute was whether the proposed affidavit evidence was essential and indispensable under article 574 of the Code of Civil Procedure, or whether it improperly introduced contested merits-stage issues.
• Portions of the Langlois Affidavit were excluded because the underlying facts were already in the record or constituted opinion evidence on disputed issues.
• Authorized paragraphs of the affidavit address factual updates on the HCP software update, including completion rates and the status of the plaintiff's vehicle.

Facts of the case

Mark Kashetsky filed an application on July 4, 2025, seeking authorization to institute a nationwide class action before the Quebec Superior Court (Class Action Division) against FCA Canada Inc. and FCA US LLC (collectively, "FCA") on behalf of Canadian owners, lessees, and users of certain Jeep plug-in hybrid electric vehicles ("PHEVs"). The vehicles at issue — defined as the "Subject Vehicles" — are the 2022–2026 model year Jeep Grand Cherokee 4xe PHEV and the 2021–2026 model year Jeep Wrangler 4xe PHEV. Kashetsky alleges that these vehicles are affected by two serious, latent, and dangerous defects: (a) the Loss of Power Defect, wherein vehicles inexplicably and without warning switch out of electric-only or electric-assisted hybrid mode and temporarily lose acceleration power and torque; and (b) the FORM Related Defect, wherein vehicles automatically and frequently enter or become locked in Fuel and Oil Refresh Mode ("FORM") for extended periods, making electric or hybrid driving impossible. The plaintiff alleges that FCA knew of both defects, concealed them from consumers, failed to adequately remedy them, and continued to commercialize the affected vehicles in violation of Quebec consumer protection, civil liability, and human rights legislation.

On September 4, 2025, following the filing of the original application, FCA announced Recall 73C (Transport Canada Recall 2025/453), describing a software defect in the hybrid control processor that could cause loss of power to the wheels, increasing the risk of a crash. On December 15, 2025, Kashetsky amended his pleading to incorporate the Transport Canada Recall and a related recall issued by the U.S. National Highway Traffic Safety Administration ("NHTSA"), while further alleging that his vehicle had still not been repaired and that no remedy yet existed for the Loss of Power Defect. On behalf of the proposed class, the plaintiff seeks court-ordered recalls and free repairs, annulment or resiliation of sales and lease agreements with full reimbursement, compensatory damages for financial losses, moral damages for stress and anxiety, and punitive damages.

Procedural issue: the Langlois affidavit

FCA sought leave under article 574 of the Code of Civil Procedure ("C.C.P.") to file the affidavit of Anna Langlois, a product analysis engineer employed by FCA Canada Inc. The affidavit consists of twelve paragraphs and addresses the scope of the Transport Canada Recall, the existence and nature of the hybrid control processor software update ("HCP Update"), completion statistics for that update, and the status of the plaintiff's own vehicle. Kashetsky opposed the application on the grounds that the evidence was neither necessary nor indispensable, that portions of it were already in the record, and that filing it would improperly introduce contested merits-stage issues at the authorization stage.

Relevant legal framework

Article 574 C.C.P. provides that an application for authorization may only be contested orally, but that the court may allow relevant evidence to be submitted at the authorization hearing. The well-established criteria require that such evidence be essential, indispensable, and strictly limited to what is necessary to assess the authorization criteria under article 575 C.C.P. Evidence that is merely useful or confirmatory does not meet the threshold. Critically, the evidence must concern neutral and objective facts rather than contested issues that require weighing on the merits, and the authorization stage must not be transformed into a "trial before the trial." The burden of demonstrating relevance rests on the party seeking to adduce the evidence.

Court's reasoning and analysis

The court assessed each set of paragraphs in the Langlois Affidavit individually. With respect to paragraphs 3, 4, and 5 — which addressed the scope of the Transport Canada Recall and the specific vehicle models covered — the court found that the underlying facts were already part of the record through the TC Recall notice itself (Exhibit P-28), making the affidavit evidence redundant and therefore neither essential nor indispensable. FCA was not authorized to file those paragraphs.

Regarding paragraph 6, which stated that the HCP Update was "a complete fix to the issue raised in the Recall," the court found that characterizing the update as a "remedy" or a "complete fix" constituted opinion evidence rather than neutral, objective fact. The adequacy of the HCP Update as a fix for the Loss of Power Defect was a hotly contested issue — the plaintiff had filed evidence indicating that his vehicle continued to experience problems after January 6, 2026 — and allowing that characterization would have forced an adversarial merits-stage debate at the authorization hearing. Accordingly, the court directed that paragraph 6 be rewritten to remove the term "remedy" and the phrase "which is a complete fix to the issue raised in the Recall."

Paragraphs 7 to 10, by contrast, were found to be neutral and objective. They provided factual updates on the HCP Update process: that the update is free of charge and takes approximately 30 minutes; that as of February 4, 2026, approximately 572 out of 795 Subject Vehicles in Quebec (approximately 72%) had received the update; that Canada-wide, approximately 2,538 out of 3,476 Subject Vehicles (approximately 73%) had received it; and that the process was ongoing. These facts postdated the Amended Application for Authorization and served to supplement, rather than contradict, the allegations in that pleading. Paragraph 11 — stating that the plaintiff's own 2025 Jeep Grand Cherokee Altitude 4xe had received the HCP Update and was returned to him by the dealer on or around January 5, 2026 — was similarly found to be a neutral, objective statement of fact corroborated by Exhibit P-41.

On the question of cross-examination, the court authorized the plaintiff to examine Anna Langlois orally but limited that examination to the specific facts alleged in the authorized portions of the affidavit, for a maximum of 40 minutes. The court declined to allow examination on the FORM Related Defect or its relationship to the Loss of Power Defect, or on repairs carried out on the plaintiff's vehicle other than the HCP Update, concluding that doing so would effectively transform the examination into a pre-trial discovery proceeding, contrary to the summary nature of the authorization stage.

Ruling and overall outcome

The court granted FCA's application in part. FCA was authorized to file a revised affidavit from Anna Langlois within ten days of the judgment, subject to the withdrawal of paragraphs 3, 4, and 5, and the rewriting of paragraph 6 to remove the contested characterizations. Paragraphs 1, 2, and 7 to 12 were authorized to remain as filed. The plaintiff was authorized to examine Anna Langlois on the authorized affidavit for a maximum of 40 minutes, with that examination to take place within 31 days of the judgment. Neither party was awarded costs, as the judgment was rendered without costs.