Thorpe v. Honda Canada Inc., 2011 SKQB 72

• Judge: Popescul, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 11, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 72;(2011), 373 Sask.R. 71 (QB)

Thorpe v. Honda Can. Inc. (2011), 373 Sask.R. 71 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.039

Kathleen Thorpe (plaintiff) v. Honda Canada Inc. (respondent)

(2009 Q.B.G. No. 644; 2011 SKQB 72)

Indexed As: Thorpe v. Honda Canada Inc.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Popescul, J.

February 14, 2011 and March 11, 2011.

Summary:

Thorpe sued Honda Canada, Inc., alleging that 2006 and 2007 model year Honda Civic automobiles (except Si and Hybrid) were manufactured with "a geometry-related rear suspension defect that caused and continued to cause irregular and premature tire wear". She applied to have the proceeding certified as a multi-jurisdictional class action under the Class Actions Act and have herself appointed representative plaintiff.

The Saskatchewan Court of Queen's Bench allowed the application.

Editor's Note: Prior preliminary motions in this action are reported at 352 Sask.R. 78, 352 Sask.R. 89 and 357 Sask.R. 1.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The plaintiff brought a proposed class action against the defendant automaker alleging negligent design and manufacture of certain 2006 and 2007 vehicle models - The defendant argued that ss. 6.1(1) and 6.1(2) of the Class Actions Act, S.S. 2001 (Act), were ultra vires the provincial legislature because the "opt-out" regime reflected in them purported to permit the inclusion of proposed class members who did not live in Saskatchewan, had no real and substantial connection to Saskatchewan and had not attorned to the jurisdiction of the Saskatchewan courts - The defendant argued that the impugned provisions exceeded the territorial limits of the provincial powers in ss. 92(13), 92(14) and 92(16) of the Constitution Act, 1867 and were constitutionally invalid - The Saskatchewan Court of Queen's Bench disagreed - The "jurisdiction" to certify multi-jurisdictional class actions came not from the Act but from the power existing in superior courts at the time a province joined Confederation - The court derived its power from the courts' plenary authority which, unlike the legislatures' authority, was continued, not created, by the Constitution Act, 1867, specifically s. 129 - The purpose and effect of s. 6.1 of the Act was not to extend jurisdiction to the courts that would not otherwise have existed, but rather to promote efficient litigation by limiting the overlapping of class action litigation - The court had unquestionable jurisdiction to adjudicate upon the issues as between the representative plaintiff and the defendant by virtue of the fact that the representative plaintiff resided in the province and her cause of action arose there - Given that the court had jurisdiction over the litigation, it could also assume jurisdiction over the other Canadian non-resident class members by applying the Act and the Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, and by relying upon the overreaching authority conferred upon superior courts by s. 129 of the Constitution Act, 1867 - See paragraphs 111 to 141.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See Conflict of Laws - Topic 603 ].

Courts - Topic 2081

Jurisdiction - Extent of - General - [See Conflict of Laws - Topic 603 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - Section 6(1)(b) of the Class Actions Act (Sask.) provided that a party seeking to have an action certified had to satisfy the court that there was an identifying class - The Saskatchewan Court of Queen's Bench extracted the following principles from Canadian jurisprudence: "(i) the class should be clearly defined; (ii) the class definition shall state objective criteria by which members of the class can be identified ...; (iii) the class definition should be rationally connected to the common issues ...; (iv) the class should be defined without elements that require a determination of the merits of the claim ...; (v) there must be a rational connection between the proposed class definition, the proposed causes of action and the proposed common issue ...; (vi) the class must not be unnecessarily broad ...; (vii) it is not required that the class be defined such that it would be necessary that every class member would, by definition, be entitled to damages should the common issues be resolved against the defendant ...; (viii) the class should not be arbitrarily under-inclusive or over-inclusive ...; (ix) on a motion to certify or on an appeal, the court may modify the definition of the class or the common issues if the court is of the view that such modification is required to accord with the Act ...; and (x) a solution to the dilemma that a class definition must not be overly broad, yet not restricted by an impermissible reference to merit, is the use of the 'claims made' limiter ... ." - See paragraphs 43 and 44.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiff brought a proposed class action against the defendant automaker alleging negligent design and manufacture of certain 2006 and 2007 vehicle models, resulting in rapid or uneven tire wear - The defendant claimed that the proposed class definition was deficient in that: (1) it was unnecessarily broad in that it inevitably included persons who had no claim against the defendant because they had not experienced any problems with rapid or uneven tire wear; and (2) it would include owners or lessees who had already received compensation from the defendant or who had had the alleged defect corrected, affording those persons a windfall - The Saskatchewan Court of Queen's Bench held that the defendant's first complaint was easily overcome by using a "claims made" limiter (inserting into the class definition a phrase that restricted the class to only those who claimed to have suffered damage by the defect) - As for the second complaint, the fact that some persons included in the class might ultimately be unsuccessful even though the common issues were resolved against the defendant was not, in and of itself, proof that the class definition was improper - See paragraphs 45 to 60.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The Saskatchewan Court of Queen's Bench presented an overview of the objectives of the Class Actions Act (Sask.) - See paragraphs 26 to 32 - The court stated that "As directed by s. 6(1) of the Act, the Court 'shall' certify an action as a class action if the Court is satisfied that the criteria are met. Essentially the jurisprudence directs that the courts should be finding ways to grant appropriate certification applications, rather than finding excuses why they ought not be certified." - See paragraph 31.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The plaintiff brought a proposed class action against the defendant automaker alleging negligent design and manufacture of certain 2006 and 2007 vehicle models - The Saskatchewan Court of Queen's Bench stated that the test for determining whether a plaintiff's pleadings disclosed a cause of action, as required by s. 6(1)(a) of the Class Actions Act, was the "plausible basis test" developed by the Court of Appeal: "Assuming the facts pleaded are true, has the representative plaintiff persuaded the court that there exists a plausible basis for supposing the defendant could be liable for the claims of the class?" - The court held that the plaintiff's pleadings clearly disclosed a cause of action as required by s. 6(1)(a) - Whether or not an alternative averment objected to by the defendant should be excised from the claim was not for the court to determine at this time - The court's function on a certification application was not to meticulously analyse and prejudge each and every word, phrase or averment contained in the claim, but to determine, on an overarching basis, whether the claim as drafted asserted a plausible cause of action - See paragraphs 33 to 42.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The Saskatchewan Court of Queen's Bench discussed the test for determining whether a class action would be the preferable procedure for the resolution of the common issues in a class action - The court referred to extensive caselaw - See paragraphs 77 and 78.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - Section 6(1)(c) of the Class Actions Act (Sask.) required, as a condition for certification, that the class members' claims had to "raise common issues, whether or not the common issues predominate over other issues affecting individual members" - The Saskatchewan Court of Queen's Bench stated that the following core principles emerged from caselaw: "(i) In order to be considered a common issue, it must be a substantial ingredient of each class member's claim and its resolution must be necessary for the resolution of each class member's claim. (ii) It is not required that all, or even a majority, of the issues of law or facts of the class members be identical, similar or related; the question is whether the members' claims raise some questions of law or fact that are sufficiently similar or sufficiently related to justify a class action. (iii) An issue can be a common issue if it is an issue of fact or law that is common to all claims and its resolution would advance the litigation for (or against) a class. (iv) It is not necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member's claim. (v) The common issues component of the proposed plaintiff's application will be determined in accordance with the core principles." - See paragraph 63.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The plaintiff brought a proposed class action against the defendant automaker alleging negligent design and manufacture of certain 2006 and 2007 vehicle models - The defendant argued, inter alia, that a class action was not the preferable procedure because (i) the individual issues would predominate over the common issues; (ii) its consumer service program, together with the small claims procedure, would provide a better option than a class action; and (iii) the cost of the notices to class members would be so high so as to make the process not feasible - The Saskatchewan Court of Queen's Bench rejected the defendant's arguments - See paragraphs 79 to 101.

Practice - Topic 209.22

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - Non-resident class members (incl. jurisdiction) - [See Conflict of Laws - Topic 603 ].

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See second Practice - Topic 209.3 ].

Cases Noticed:

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 26].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, appld. [para. 27].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201; 2006 SCC 19, refd to. [para. 28].

Hoffman et al. v. Monsanto Canada Inc. et al., [2004] 4 W.W.R. 632; 233 Sask.R. 112; 2003 SKQB 174, refd to. [para. 30].

Hoffman et al. v. Monsanto Canada Inc. et al. (2007), 293 Sask.R. 89; 397 W.A.C. 89; 283 D.L.R.(4th) 190; 2007 SKCA 47, leave to appeal refused (2007), 383 N.R. 399; 324 Sask.R. 318; 451 W.A.C. 318 (S.C.C.), refd to. [para. 33].

Schroeder et al. v. DJO Canada Inc. et al., [2010] 10 W.W.R. 324; 356 Sask.R. 162; 2010 SKQB 125, refd to. [para. 33].

Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100 Man.R.(2d) 241; 91 W.A.C. 241, refd to. [para. 37].

Sorotski v. CNH Global NV et al., [2008] 1 W.W.R. 386; 304 Sask.R. 83; 413 W.A.C. 83; 2007 SKCA 104, folld. [para. 41].

Chartrand v. General Motors Corp. et al., [2008] B.C.T.C. Uned. G02; 84 M.V.R.(5th) 57; 2008 BCSC 1781, refd to. [para. 41].

Reid v. Ford Motor Co. et al., [2003] B.C.T.C. 1632; 2003 BCSC 1632, refd to. [para. 41].

Hoffman et al. v. Monsanto Canada Inc. et al., [2005] 7 W.W.R. 665; 264 Sask.R. 1; 2005 SKQB 225, refd to. [para. 44].

Paramount Pictures (Canada) Inc. v. Dillon et al., [2006] O.T.C. 528; 29 C.P.C.(6th) 13 (Sup. Ct.), refd to. [para. 44].

Zicherman v. Equitable Life Insurance Co. of Canada - see Williams v. Mutual Life Assurance Co. of Canada.

Williams v. Mutual Life Assurance Co. of Canada et. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112, additional reasons (2003), 226 D.L.R.(4th) 131 (C.A.), refd to. [para. 44].

Wilkins v. Rogers Communications Inc. et al., [2008] O.T.C. Uned. N56; 66 C.P.C.(6th) 251 (Sup. Ct.), refd to. [para. 44].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al., [2009] 5 W.W.R. 228; 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, refd to. [para. 44].

Wheadon v. Bayer Inc. - see Pardy et al. v. Bayer Inc.

Pardy et al. v. Bayer Inc. (2004), 237 Nfld. & P.E.I.R. 179; 703 A.P.R. 179; 2004 NLSCTD 72, affd. (2005), 246 Nfld. & P.E.I.R. 157; 731 A.P.R. 157; 2005 NLCA 20, refd to. [para. 55].

Walls et al. v. Bayer Inc., [2006] 4 W.W.R. 720; 189 Man.R.(2d) 262; 2005 MBQB 3, affd. (2005), 195 Man.R.(2d) 293; 351 W.A.C. 293; 257 D.L.R.(4th) 435; 2005 MBCA 93, refd to. [para. 55].

Attis et al. v. Canada (Minister of Health) et al., [2007] O.T.C. Uned. 770; 46 C.P.C.(6th) 129 (Sup. Ct.), refd to. [para. 56].

Bendall v. McGhan Medical Corp. (1993), 14 O.R.(3d) 734 (Gen. Div.), refd to. [para. 74].

Harrington v. Dow Corning Corp. et al., [1997] B.C.T.C. Uned. 229; 29 B.C.L.R.(3d) 88 (S.C.), affd. (2000), 144 B.C.A.C. 51; 236 W.A.C. 51; 193 D.L.R.(4th) 67; 2000 BCCA 605, leave to appeal refused (2001), 276 N.R. 200; 162 B.C.A.C. 320; 264 W.A.C. 320 (S.C.C.), folld. [para. 74].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 78].

Baxter et al. v. Canada (Attorney General) et al., [2006] O.T.C. 1346; 83 O.R.(3d) 481 (Sup. Ct.), refd to. [para. 78].

Knight v. Imperial Tobacco Canada Ltd. et al. (2006), 225 B.C.A.C. 291; 371 W.A.C. 291; 267 D.L.R.(4th) 579; 2006 BCCA 235, refd to. [para. 78].

Lavier v. MyTravel Canada Holidays Inc. et al. (2009), 248 O.A.C. 378 (Div. Ct.), reving. [2008] O.T.C. Uned. D83; 59 C.P.C.(6th) 57 (Sup. Ct.), refd to. [para. 78].

Williams v. Mutual Life Assurance Co. of Canada et., [2000] O.T.C. 751; 51 O.R.(3d) 54 (Sup. Ct.), affd. (2001), 152 O.A.C. 344; 17 C.P.C.(5th) 103 (Div. Ct.), affd. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112, additional reasons (2003), 226 D.L.R.(4th) 131 (C.A.), refd to. [para. 78].

Brimner et al. v. Via Rail Canada Inc. et al. (2000), 47 O.R.(3d) 793 (Div. Ct.), reving. (1999), 47 O.R.(3d) 798 (Sup. Ct.), refd to. [para. 78].

Schweyer v. Laidlaw Carriers Inc. et al., [2000] O.T.C. Uned. 73; 44 C.P.C.(4th) 236 (Sup. Ct.), refd to. [para. 78].

Wilson v. Servier Canada Inc. et al., [2000] O.T.C. 884; 50 O.R.(3d) 219 (Sup. Ct.), leave to appeal denied (2000), 143 O.A.C. 279; 52 O.R.(3d) 20 (Div. Ct.), leave to appeal refused (2001), 276 N.R. 197; 154 O.A.C. 198 (S.C.C.), folld. [para. 78].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 78].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 78].

Gregg v. Freightliner Ltd. et al., [2003] B.C.T.C. 241; 35 C.C.P.B. 31; 2003 BCSC 241, refd to. [para. 78].

Chadha v. Bayer Inc. et al. (2001), 147 O.A.C. 223; 54 O.R.(3d) 520 (Div. Ct.), reving. (1999), 107 O.T.C. 36; 45 O.R.(3d) 29 (Sup. Ct.), affd. (2003), 168 O.A.C. 143; 63 O.R.(3d) 22 (C.A.), leave to appeal refused (2003), 320 N.R. 399; 191 O.A.C. 397 (S.C.C.), refd to. [para. 78].

Price et al. v. Panasonic Canada Inc., [2002] O.T.C. 426; 22 C.P.C.(5th) 382 (Sup. Ct.), refd to. [para. 78].

Heward et al. v. Eli Lilly & Co. et al., [2007] O.T.C. 251; 39 C.P.C.(6th) 153 (Sup. Ct.), leave to appeal granted [2007] O.T.C. 1530; 45 C.P.C.(6th) 309 (Sup. Ct.), affd. (2008), 239 O.A.C. 273; 295 D.L.R.(4th) 175 (Div. Ct.), refd to. [para. 78].

Rosedale Motors Inc. v. Petro-Canada Inc. (1998), 87 O.T.C. 180; 42 O.R.(3d) 76 (Sup. Ct.), revd. in part [2001] O.J. No. 5368 (Div. Ct.), refd to. [para. 78].

Steele v. Toyota Canada Inc. et al., [2008] B.C.T.C. Uned. 691; 295 D.L.R.(4th) 653; 2008 BCSC 1063, dist. [para. 81].

Carom et al. v. Bre-X Minerals Ltd. et al. (1999), 99 O.T.C. 335; 43 O.R.(3d) 441 (Gen. Div.), refd to. [para. 116].

McCutcheon v. Cash Store Inc. et al., [2006] O.T.C. 424; 80 O.R.(3d) 644 (Sup. Ct.), refd to. [para. 117].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al. (2008), 314 Sask.R. 90; 435 W.A.C. 90; 2008 SKCA 125, refd to. [para. 117].

Ward v. Canada (Attorney General) et al. (2007), 220 Man.R.(2d) 224; 407 W.A.C. 224; 286 D.L.R.(4th) 684; 2007 MBCA 123, affing. [2006] 12 W.W.R. 150; 207 Man.R.(2d) 311; 2006 MBQB 212, refd to. [para. 117].

Ring et al. v. Canada (Attorney General) et al. (2007), 272 Nfld. & P.E.I.R. 348; 830 A.P.R. 348; 2007 NLTD 213, refd to. [para. 117].

Frey et al. v. BCE Inc. et al. (2006), 282 Sask.R. 29; 2006 SKQB 330, refd to. [para. 117].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, folld. [para. 129].

Hunt v. Lac d'Amiante du Québec ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 129].

Beals v. Saldanha et al., [2003] 3 S.C.R. 416; 314 N.R. 209; 182 O.A.C. 201; 2003 SCC 72, refd to. [para. 129].

Hunter v. Hunter, [2006] 5 W.W.R. 141; 269 Sask.R. 223; 357 W.A.C. 223; 2005 SKCA 76, refd to. [para. 130].

Webb v. K-Mart Canada Ltd. et al. (1999), 107 O.T.C. 373; 45 O.R.(3d) 389 (Sup. Ct.), folld. [para. 137].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 6.1(1), sect. 6.1(2) [para. 112].

Authors and Works Noticed:

Cochrane, Michael G., Class Actions - A Guide to the Class Proceedings Act, 1992 (1993), p. 27 [para. 78].

Counsel:

E.F. Anthony Merchant, Q.C., and Casey R. Churko, for the plaintiff;

James S. Ehmann, Q.C., Anthony Cornacchia and Keith D. Kilback, for the respondent;

Graeme G. Mitchell, Q.C., for the Government of Saskatchewan.

This application was heard by Popescul, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment and amended judgment on February 14 and March 11, 2011, respectively.