|
Class Actions (Ont) - Certification - 'Representative Party' [CPA 5(1)(e)]. North v. Bayerische Motoren Werke AG
In North v. Bayerische Motoren Werke AG (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal from a class proceeding certification decision, where the central issue was "the type of losses recoverable at law in a negligence action involving an allegedly defective product".
The court finds that lack of a representative plaintiff is fatal to class certification, here where an appeal ruling stripped the plaintiffs of any cause of action:[99] The lack of any suitable representative plaintiff is fatal to the certification of the action. As this court has recognized, a representative plaintiff is not a mere nominee: Stone v. Wellington County Board of Education (1999), 1999 CanLII 1886 (ON CA), 120 O.A.C. 296 (Ont. C.A.), at para. 10. Although Stone was not a certification decision, the court’s comments, at para. 10, about the continuation of an action absent a representative plaintiff are equally apt in this context, where it is plain and obvious that neither Ms. North nor Mr. Rego have a valid cause of action:Where a representative plaintiff, for reasons personal to that plaintiff, is definitively shown as having no claim because of the expiry of a limitation period, he or she cannot be said to be a member of the proposed class. The continuation of the action in those circumstances would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as a class member, not simply a nominee with no stake in the potential outcome. [100] Finally, I would note that the plaintiffs did not suggest that should we accept BMW’s argument on this point, and find that there is not a suitable representative plaintiff, that they should be granted an opportunity to substitute a new representative plaintiff.
|
