DANE ASHLEY BRUCE TRESS PLAINTIFF - v. -, 2023 SKKB 186

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 186 Date: 20 23 09 06 Docket: QBG-RG-00469-2018 Judicial Centre: Regina BETWEEN: DANE ASHLEY BRUCE TRESS PLAINTIFF - and - FCA US LLC and FCA CANADA INC. DEFENDANTS Counsel: E.F. Anthony Merchant, K.C., Anthony A. Tibbs and Iqbal S. Brar for the plaintiff Peter J. Pliszka, Zohaib I. Maladwala, Caroline P. Youdan, Antonio Di Domenico and Kenneth A. Ready, K.C. for the defendants FIAT TOCHOR J. September 6, 2023 I.

INTRODUCTION [ 1 ] Dane Tress, of Sparwood, British Columbia, seeks certification of his lawsuit against the manufacturer of his eco-friendly 2015 Dodge Ram truck. He states that, after he purchased it, he discovered it was fitted with a device that was designed to defeat regulatory emissions tests [Defeat Device]. This device allowed the vehicle to exceed emissions standards, until the vehicle was later repaired by the manufacturer. [ 2 ] Mr. Tress states he would not have purchased this vehicle if he knew about the Defeat Device.

He claims the existence of this device in his vehicle has caused him, and other owners of similar vehicles, to suffer economic losses. These losses include loss of resale or trade in value, decrease in fuel efficiency, and other inconveniences. [ 3 ] He filed his claim in 2018 and seeks damages from the defendants under a variety of headings, including: misrepresentation; negligence; breach of contract; and violation of regulatory standards.

He now applies for certification of his claim as a class action. [ 4 ] The defendants, FCA US LLC and FCA Canada Inc., collectively, [FCA], oppose the application for certification. [ 5 ] FCA states they recalled all vehicles fitted with Defeat Devices and repaired the vehicles with software adjustments that were approved by regulatory bodies. [ 6 ] FCA therefore argues there is no evidence of compensable harm to Mr.

Tress or any member of the proposed class. [ 7 ] Further, FCA argues none of the statutory requirements for certification set out in s. 6 of The Class Actions Act, SS 2001, c C-12.01 [ Act ] are met by Mr. Tress. In particular, it argues a class action is not a preferable procedure for this action and that Mr. Tress is not a proper representative plaintiff because he is not a resident of Saskatchewan. In addition, FCA argues there is no identifiable class, no cause of action, and no common issues. [ 8 ] For the reasons set out below, I conclude that a class action is not a preferable procedure for this action and

that Mr. Tress is not a proper representative plaintiff. [ 9 ] I therefore dismiss the application for certification. II. ISSUES TO BE DETERMINED [ 10 ] There are five requirements which must be satisfied before an action may be certified as a class action in Saskatchewan. These requirements are set out in s. 6(1) of the Act . The five requirements listed in s. 6(1) may be paraphrased into the following five issues: (

a) Do the pleadings disclose a cause of action? (

b) Is there an identifiable class? (

c) Do the claims of the class members raise common issues? (

d) Is a class action a preferable procedure? (

e) Is there a representative plaintiff who will fairly and adequately represent the class? [ 11 ] Before an action may be certified, each of these statutory requirements must be established. A failure to establish any one of these requirements will result in the dismissal of the application. As pointed out in Maginnis v FCA Canada Inc. , 2021 ONSC 3897 at para 33 [ Maginnis DIVCT ], a plaintiff is required to meet all the requirements for certification and a “[f]ailure to meet any of the requirements is fatal”. [ 12 ] For the purposes of this application, I address the following two issues: 1. Is a class action the preferable procedure (ss. 6(1)(

d) of the Act )? 2. Was Mr. Tress a resident of Saskatchewan when the action was commenced (ss. 6(1)(

e) of the Act )? [ 13 ] In light of my conclusion on these two issues, it is not necessary to address the remaining three requirements set out in ss. 6(1) (a), (

b) and (

c) of the Act . III. LEGAL FRAMEWORK FOR CERTIFICATION [ 14 ] The starting point for considering the legal framework for certification applications is found in s. 6 of the Act where five requirements for certification are set out: 6

(1) Subject to subsections (2) and (3), the court shall certify an action as a class action on an application pursuant to

section 4 or 5 if the court is satisfied that: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class; (

c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (

d) a class action would be the preferable procedure for the resolution of the common issues; and (

e) there is a person willing to be appointed as a representative plaintiff who: (

i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the class action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. [ 15 ] The objectives of class action legislation in Canada are explained in Hollick v Toronto (City) , 2001 SCC 68 at para 15 , [2001] 3 SCR 158 [ Hollick ].

There, McLachlin C.J. identifies three primary objectives: judicial economy; access to justice; and behaviour modification. She states: 15 The Act reflects an increasing recognition of the important advantages that the class action offers as a procedural tool. …class actions provide three important advantages over a multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis.

Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public… [ 16 ] In Hollick at para 15 , McLachlin C.J. also directs courts to take a purposive approach when interpreting class action legislation:

15… In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters. [ 17 ] See also: Bisaillon v Concordia University , 2006 SCC 19 at para 16 , [2006] 1 SCR 666. [ 18 ] A similar approach is emphasized by Popescul J. (as he then was) in Thorpe v Honda Canada, Inc. , 2011 SKQB 72 at para 31 , [2011] 8 WWR 529 [ Thorpe ]: [31] 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. [ 19 ] General interpretive guidance is also provided in Pederson v Saskatchewan (Minister of Social Services) , 2016 SKCA 142 at para 29 , 408 DLR (4 th ) 661 where the court outlined the essential nature of a certification hearing. There, Ottenbreit J.A. discusses the responsibility of a judge to act as a gatekeeper in what is essentially a procedural exercise: [29] I agree with this analysis.

Judges hearing certification applications must be mindful that the hearing operates as a meaningful screening device and there should be more than symbolic scrutiny of the evidence. Despite this, the issues are essentially procedural. A consideration of the merits of the claim is neither necessary nor warranted. The process does not allow for an extensive assessment of the complexities and challenges a plaintiff may face in establishing its case.

It is within these broad boundaries that the task of the hearing judge must be accomplished. [ 20 ] A helpful overview of the principles that inform consideration of the statutory requirements set out in the Act is found in Kish v Facebook Canada Ltd. and Facebook Canada Inc., 2021 SKQB 198 at paras 11-15 [ Kish ]. There, Keene J. identifies several principles which, for convenience, may be summarized as follows: (

a) the standard of proof for certification requires the class representative to show “some basis in fact” for each of the statutory requirements (other than the first requirement to disclose a cause of action): Hollick at para 25 ; Thorpe at para 30 ; (

b) the “some basis in fact” standard does not require that the court resolve conflicting facts and evidence at the certification stage: Pro-Sys Consultants Ltd. v Microsoft Corporation , 2013 SCC 57 at para 102 , [2013] 3 SCR 477; (

c) the evidentiary burden is not onerous; it requires only a “minimum evidentiary basis”: Hollick at paras 21, 24-25 ; (

d) although the evidentiary burden for certification hearings is low, that burden must still be discharged by admissible evidence: Wiegers v Apple, Inc. , 2020 SKQB 24 at para 82 ; Tluchak (Estate) v Bayer Inc. , 2018 SKQB 311 at paras 56-58 ; and Stout v Bayer Inc. , 2017 SKQB 329 at para 46 , 19 CPC (8 th ) 416; and (

e) the purpose of the certification stage is to determine whether the action can properly proceed as a class action; it is not a determination of the merits: Hollick at para 16 . [ 21 ] For similarly helpful summaries of the applicable principles, see: MacInnis v Bayer Inc ., 2020 SKQB 307 at paras 100-106 ; and Kane v FCA US LLC , 2022 SKQB 69 at paras 89-94 [ Kane ]. [ 22 ] I now turn to the issues in this application in accordance with the legislative objectives identified in Hollick and Thorpe and in accordance with the principles summarized in Kish and Kane . IV. ANALYSIS OF ISSUES 1. Is a Class Action the Preferable Procedure (ss. 6(1)(

d) of the Act )? Introduction [ 23 ] Before certification may be granted, ss. 6(1) (

d) of the Act requires a plaintiff to establish that a class action is a preferable procedure for the resolution of the common issues. FCA argues Mr. Tress failed to meet this statutory requirement because he did not provide evidence of compensable harm. [ 24 ] After reviewing the evidence and considering the parties’ submissions, I conclude Mr. Tress did not provide evidence of compensable harm. On this basis, I therefore conclude he has not met the statutory requirement set out in ss. 6(1) (

d) of the Act . The Requirement for Evidence of Compensable Harm [ 25 ] Evidence of compensable harm is a requirement for certification. As pointed out in Maginnis and Magnaye v FCA Canada , 2020 ONSC 5462 at para 41 [ Maginnis ]: [41] The need to show some evidence of compensable loss is a fundamental prerequisite for the certification of a class proceeding [Footnotes omitted]. Compensable loss claims are certainly possible even when a defective product has been repaired. But the loss claims must be presented with some thought, with the right plaintiffs and, of course, with at least some evidence… [Emphasis added] [ 26 ] See also Maginnis at para 11 and para 26(iii).

[ 27 ] This part of the ruling in Maginnis was upheld in Maginnis DIVCT at paras 23-26 and follows the majority ruling in A tlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para 68 , [2020] 2 SCR 420 [ Atlantic Lottery ]. See also Kish at para 88 . [ 28 ] In Maginnis the court addressed a nearly identical factual claim against the same defendants in Ontario and examined the requirement for evidence of compensable harm. [ 29 ] There, the plaintiffs sought certification of their claim against FCA US LLC and FCA Canada Inc. (the same defendants in the application made by Mr.

Tress) for damages because of the existence of Defeat Devices in vehicles they purchased. When they became aware of these devices, they filed a claim seeking damages for their payment of a “premium price” to purchase a “clean vehicle” and for the losses suffered because the vehicle’s fuel economy and performance deteriorated. [ 30 ] In Maginnis , the defendants led evidence that in 2019 the Defeat Device was repaired in two stages (

i) by an Approved Emission Modification [AEM] and (ii) then an Updated AEM. They also led evidence that the US Environmental Protection Agency and the California Air Resources Board later tested the defendants’ repairs and concluded that average fuel economy was “not expected to change”: Maginnis at para 31 . The defendants also filed evidence that these repairs were not expected to change any performance attributes of the subject vehicles: Maginnis at para 32 . [ 31 ] The certification application was dismissed because there was no evidence of compensable losses: Maginnis at para 36 .

The court concluded there was no evidence that a proposed class member paid a premium price for a “clean vehicle”: Maginnis at para 28 . He also concluded there was no evidence of reduced fuel economy or vehicle performance after the vehicle was repaired: Maginnis at para 35 . [ 32 ] Maginnis held a lack of evidence of compensable harm impacts at least three of the statutory requirements for certification: the requirement of an identifiable class ( ss. 6(1) (

b) of the Act ); the requirement for a suitable representative ( ss. 6(1) (

e) of the Act ); and the requirement for a preferable procedure (ss. 6(1)(

d) of the Act ). Of these three requirements, Maginnis at paras 37-38 , chose to dismiss the certification application because the preferability requirement was not met ( ss. 6(1) (

d) of the Act ), holding: [37] In that rare case where, as here, there is no evidence of compensable harm, a judge can dismiss the motion for certification in at least three ways. The judge can find that under s. 5(1)(

b) of the CPA as this court did in Singer [ Singer v Scherling Plough Canada Inc., 2010 ONSC 42 ], that that “there is no evidence of a class of two or more people seeking access to justice.” The judge can also find under s. 5(1)(

e) that the two plaintiffs herein are not suitable representatives because they have sustained no loss and have “no stake in the potential outcome.” [Footnotes omitted] [38] In my view, however, it is best to use s. 5(1)(

d) and “preferability” because this cuts to the core of why we have class actions in the first place. The “preferability” analysis requires the judge to consider the over-arching goals of access to justice, behaviour modification and judicial economy. [Emphasis added] [ 33 ] Mr. Tress argues Maginnis is wrongly decided on this point and others and submits that considering whether there is evidence of compensable harm is tantamount to the court creating a new, or sixth, requirement to the statutory requirements.

He argues it is improper for courts to impose this additional requirement upon plaintiffs seeking certification. [ 34 ] However, Maginnis was upheld by the Ontario Divisional Court Maginnis DIVCT at paras 31-32 . In particular, the court emphasized that consideration of compensable harm did not impose a new requirement. Instead, the court agreed this issue was relevant to several of the statutory requirements, including preferability: [31] The appellants also argue that the motions judge erred because he did not consider all the elements of s. 5(1), focusing only on s. 5(1)(d).

They also suggest that he imposed a new threshold requirement that the plaintiff must prove compensable loss at certification. [32] I disagree. The threshold issue was not a new requirement in addition to the criteria in s. 5(1) of the CPA . Rather, as the motions judge observed, the absence of evidence of any compensable loss was relevant to the application of s. 5(1)(b), identifiable class; (d), preferability ; and (e), suitable representative plaintiff.

The FCA respondents also argue that it is relevant to the common issues requirement in s. 5(1)(c). [Emphasis added] [ 35 ] The ruling in Maginnis was affirmed in Maginnis DIVCT ; leave to appeal to the Ontario Court of Appeal was dismissed on April 8, 2022 (Court File M52573); and leave to appeal to the Supreme Court of Canada was dismissed on June 8, 2023 (SCC No. 40204). [ 36 ] As pointed out by Mr.

Tress, the ruling in Maginnis does not automatically preclude the plaintiff from bringing a similar, or identical, application in Saskatchewan: Spicer v Abbott Laboratories , 2017 SKQB 271 at paras 83-87 , 13 CPC (8 th ) 407. Nor does the dismissal of the certification application in Maginnis automatically determine the result of the application in this case: see, for example, Kish at para 61 . This application must be determined on the basis of the evidence filed, and any factual determination made by the Ontario Superior Court in Maginnis must be confined to the facts before the court in that case. [ 37 ] In

summary, in light of authorities such as Maginnis , Maginnis DIVCT , and Atlantic Lottery , Mr. Tress must establish there is some evidence of compensable harm before the requirement in ss. 6(1) (

d) of the Act is met. Analysis of the Evidence filed by the Plaintiff

[ 38 ] Mr. Tress and four other affiants claim the existence of the Defeat Device in their vehicles caused them various losses. These losses may be roughly categorized into five different themes. These themes, and their evidentiary foundations, may be summarized as follows: (

a) Loss of fuel efficiency/less environmentally friendly - Affidavit of Dane Tress, August 22, 2018 at para. 8 [Tress] - Affidavit of Kyle Peak, July 6, 2018 at para. 3 [Peake] - Affidavit of Lloyd Lange, July 20, 2018 at para. 3 [Lange] - Affidavit of James Harvie, July 23, 2018 at paras. 6-7 [Harvie] (

b) Loss of sale or resale value - Tress, para. 8 - Lange, para. 5 - Peake, para. 5 - Harvie, para. 8 - Affidavit of John Gegeny, sworn July 27, 2018 at para. 5 [Gegeny] (

c) Loss of reliability or reduced quality of vehicle - Tress, at para. 11 - Lange, at para. 6 - Gegeny, at paras. 6 and 10 (

d) Paid a premium for eco-friendly vehicle - Peake, para. 3 (

e) Other inconveniences - Tress, para. 8 [ 39 ] I address each of these themes of claimed loss in turn. [ 40 ] The first general theme of loss contained in the plaintiff’s affidavits—the alleged loss of fuel efficiency and less environmentally friendly—is squarely addressed by FCA’s evidence of the repair of the Defeat Devices. [ 41 ] Mr. Tress’s claim was issued after regulatory proceedings were commenced against FCA in the United States in 2017.

The Environmental Protection Agency [EPA] and the California Air Resources Board [CARB] issued notices of violation against FCA alleging the Defeat Devices permitted unlawful emissions from certain vehicles. Mr. Tress filed his claim in the Court of Queen’s Bench in February 2018. [ 42 ] On January 10, 2019, FCA settled the regulatory proceedings with the EPA and CARB in the United States and agreed to fully address all regulatory concerns raised against it. One of the terms of the agreement required FCA to make a software adjustment (referred to as an “AEM”) to the subject vehicles.

This was offered to owners of US and Canadian vehicles on May 7-8, 2019. A second software adjustment (referred to as an “Updated AEM”) was approved in December 2019 and offered to vehicle owners in January 2020.

Both the AEM and Updated AEM were approved by the EPA and CARB—as part of the settlement of the regulatory proceedings—and the software adjustments were provided to vehicle owners free of charge. [ 43 ] The disclosure statements regarding both the AEM and the Updated AEM state that any alleged effects attributable to the Defeat Devices were repaired, and that vehicle characteristics such as reliability, quality and fuel economy were not expected to change. The disclosure statement regarding the Updated AEM states: 2. Key Vehicle Attributes .

The AEM is not expected to change any of your key vehicle attributes, such as reliability, durability, vehicle performance, drivability, engine noise or vibration, or other driving characteristics . The original version of the AEM released in May of 2019 caused a slight hesitation or lag in acceleration during approximately the initial five minutes of driving after engine start until the engine and exhaust warm up. This problem, which was reported by only a small percentage of drivers has been addressed by an updated AEM that the U.S.

Environmental Protection Agency and the California Air Resources Board approved in December of 2019 . With the updated AEM, for a short period of time after engine start, some customers may have to depress the accelerator pedal further to minimize any hesitation or lag in acceleration. …

4. Fuel Economy . Average fuel economy is not expected to change as a result of this AEM . [Bold emphasis added] [ Exhibit 8 of the Shaw Affidavit, Respondents’ Application Record, p. 250] [ 44 ] Significantly, Mr. Tress does not provide any evidence that addresses the existence of the AEM or the Updated AEM. No evidence was provided by Mr. Tress in response to the approved remedial efforts undertaken by FCA. There is no evidence Mr. Tress, or any of the other affiants, sustained any loss of fuel efficiency or that the vehicles are not compliant with environmental standards.

While the affiants speak of concerns that the Defeat Devices will negatively impact fuel economy and compliance with environmental standards, there is no evidence proffered to support this concern. [ 45 ] In Maginnis at paras 33-35 , the certification judge was faced with similar arguments and a similar evidentiary basis. He concluded there was no evidence of compensable harm on this basis: [33] The plaintiffs offer no evidence to the contrary – that is, no evidence that they actually sustained fuel economy or engine performance losses after the Updated AEM . The plaintiffs did not test their own vehicles.

Their engineering expert did not test, inspect or drive the plaintiffs’ vehicles – indeed he didn’t test, inspect or drive any of the affected vehicles. All he did was propose a methodology that could be used to determine whether there was any evidence for any adverse impact on fuel economy or performance.

A theory as to what “could” happen and a proposed methodology about how to test “whether” it happened is obviously not evidence that anything in fact did happen. [34] I agree with FCA that the plaintiffs have presented no admissible evidence that their vehicles or indeed any class member vehicles post-repair have experienced any issues with decreased fuel economy or vehicle performance. The only piece of tangible (albeit inadmissible hearsay) “evidence” adduced by the plaintiffs in this regard is Mr.

Magnaye’s testimony on cross-examination that he was told by a technician at a dealership that there were some “loss or power” issues with the original AEM that may continue to affect vehicle performance. But even if admissible, this comment is no longer relevant given that the “loss of power” problem was resolved with the subsequent approval and implementation of the Updated AEM. [35] In short, there is no evidence of reduced fuel economy or vehicle performance post-repair.

This second submission does not succeed. [Underlining emphasis added] [ 46 ] As set out above, Maginnis was upheld by the Ontario Divisional Court in Maginnis DIVCT . [ 47 ] While I am not bound by the ruling in Maginnis , on the evidence before me in this application, I come to the same conclusion as the certification judge in that case. Here, I conclude there is no evidence of a decrease in fuel efficiency. [ 48 ] There is also no evidence of a compensable loss arising from the failure of FCA to comply with environmental standards.

As pointed out in Maginnis at para 26 (iii): [26]… (iii)… absent compensable harm, the policing and enforcement of environmental protection regulations are a matter for public regulatory authorities, not private action. [Footnote omitted] [ 49 ] In

summary, there is no evidence of compensable harm arising out of the first general theme of losses claimed by the plaintiff—the alleged loss of fuel efficiency and environmental compliance. [ 50 ] The second general theme of loss contained in the affidavits filed by Mr. Tress and others is the loss of sale or resale value. Again, after reviewing the evidentiary record and the parties’ submissions, I conclude there is no minimum evidentiary basis for this claim. [ 51 ] While all affiants, including Mr.

Tress, express a concern that the existence of the Defeat Device will diminish the sale or resale value of their vehicles, there is no evidence of this. There is no evidence that the vehicles they own, or owned, have a lower value than the prevailing market price.

As pointed out by Maginnis at para 33 , a concern about what “could” happen is “obviously not evidence that anything in fact did happen”. [ 52 ] Further, as concluded in Maginnis at para 26 (ii): [26]… (ii)… But today, both [the plaintiffs] have or shortly can have [their vehicle] that is emissions-compliant and can be sold or traded at the prevailing fair market value, unaffected by the “defeat device” event.

Again, where is the compensable loss? [ 53 ] Here, on the evidence before me, I come to the same result: I conclude there is no minimum evidentiary basis for the claim of loss of sale or resale value of the affiants’ vehicles. [ 54 ] The third general theme of loss set out in the plaintiff’s claim is loss of reliability or the reduced quality of the vehicle. This general theme is answered in the same way as the first general theme regarding loss of fuel efficiency: there is no evidentiary basis for this articulation of the claim.

[ 55 ] As set out above in the AEM and Updated AEM, any claimed effects of the Defeat Devices were repaired by FCA, and vehicle characteristics such as reliability, quality and fuel economy were not expected to change. Further, Mr. Tress offers no evidence in response to the AEM or Updated AEM. In Maginnis at para 33 , the court was in a similar position because the plaintiffs offered no evidence “they actually sustained fuel economy or engine performance losses after the Updated AEM”. [ 56 ] In this case, Mr. Tress argues the report of Dr. Glenn Bower raises possible adverse effects of the Defeat Device.

However, FCA argues Dr. Bowers’ report is inadmissible and irrelevant for several reasons. FCA argues that, although the report was dated November 5, 2020, it makes no mention of the evidence of the AEM or the Updated AEM in 2019. FCA points out that Dr. Bower’s report was based on information which pre-dated the AEM and Updated AEM. Further, FCA argues Dr. Bower was not asked to consider the AEM and the Updated AEM. [ 57 ] In these circumstances, there is little assistance offered by Dr. Bower’s report on the issue of compensable harm.

While I do not consider the report to be technically inadmissible, it does not address the evidence filed by FCA and therefore has no value in determining if there is a minimum evidentiary foundation for the losses claimed by Mr. Tress. I conclude his report is relevant, but only to a limited extent because it fails to consider the evidence tendered by FCA. [ 58 ] In

summary, I conclude there is no evidentiary basis for the claimed losses of reduced reliability or quality of the subject vehicles. [ 59 ] The fourth general theme relates to the claim that a premium price was paid for the vehicles fitted with a Defeat Device. The only affiant who raises this claim of loss is Kyle Peake. Mr. Peake, in his affidavit sworn on July 6, 2018, states at para. 3 that he paid a premium because he believed an “eco-diesel” vehicle would be more fuel efficient and environmentally friendly.

However, I am not satisfied his affidavit provides a minimum evidentiary basis to argue he paid a premium price to purchase an “eco- diesel” vehicle. [ 60 ] His bill of sale for this vehicle, appended to his affidavit, does not refer to an “eco-diesel” vehicle in the list of options. While there is an option item listed on the bill of sale for a “V6, 3.0L T. Diesel, (exf) Diesel” at a price of $4,700.00 there is no mention in that list of an “eco-diesel”. In a different part of the bill of sale, there is a description of the engine as “Automatic/3.0L ECODIES”.

Viewing this in the most favorable light for the plaintiff, I conclude there is a minimum evidentiary basis that Mr. Peak purchased an “eco-diesel” vehicle. [ 61 ] However, here, I do not have a minimum evidentiary basis to conclude Mr. Peake paid a premium for the eco- diesel feature. Even if I were to speculate there was a $4,700.00 price for the eco-diesel option (in the absence of an evidentiary basis), the bill of sale also includes a line item for a discount of $6,364.00.

From this evidence, it is not apparent how the discount was calculated, what the discount was for, or for which option there was a discount. It is certainly not evident that Mr. Peake paid a premium price for this feature. [ 62 ] I also note the bill of sale exhibited to the affidavit of Lloyd Lange sworn on July 20, 2018, indicates an optional charge of $4,700.00 for an “Ecodiesel V6 engine”. However, in that bill of sale, there is also a discount for the sum of $14,534.76.

This amount of discount exceeds the total for all the listed options in the bill of sale ($9,450.00) and, from that, I conclude there is no evidence a premium was, in fact, paid by Mr. Lange. [ 63 ] No other affiant suggests they paid a premium price for the eco-diesel feature. John Gegeny, in his affidavit sworn July 27, 2018, does not state he paid a premium for an eco-diesel feature, and his bill of sale does not disclose any kind of premium was paid.

Similarly, James Harvie in his affidavit sworn on July 23, 2018, does not state he paid a premium for this feature, and his exhibited vehicle registration does not contain any information as to the price of the vehicle or any premium for an eco-diesel option.

Finally, the affidavit of Dane Tress, sworn August 22, 2018, does not state he paid a premium for any option and his bill of sale makes no reference to any kind of premium or added charge for any feature, including any eco-diesel option. [ 64 ] In Maginnis at para 26 (i), the court concluded there was no evidence that anyone paid a premium price and I come to the same conclusion on the evidence before me. Here, in

summary, I am not satisfied there is evidence that any of the proposed class members paid a premium to receive an “eco-diesel” vehicle. Therefore, I conclude Mr. Tress has not provided a minimum evidentiary basis for the fourth general theme of loss. [ 65 ] Finally, the fifth general theme of loss relates to “other inconveniences”. This is raised, perhaps obliquely, in the affidavit of Mr. Tress at para. 8: 8.

I believe that Class Members are affected by the Emissions Scandal have [sic] common concerns relating to loss of resale value, loss of trade in value, decrease in fuel efficiency after a recall, and other inconveniences . [Emphasis added] [ 66 ] In argument, Mr. Tress submits that even if the harmful effects of the Defeat Devices are remedied by the implementation of the AEM and the Updated AEM, the proposed class members must still be compensated for the inconveniences visited upon them by having to take the time to have their vehicles repaired.

He argues that vehicle owners will have to drive to the dealer, leave their vehicle for some period of time, and then wait for the repairs to be completed. Some owners, he argues, may have to travel long distances to attend at a dealer’s location and may have to incur out-of-pocket costs for meals and other expenses. Mr. Tress argues that, in these circumstances, even a claim for nominal damages should justify certification. [ 67 ] However, this argument ignores the fact that there is no evidence of any person incurring even nominal damages as a result of FCA’s vehicle recall and repair.

None of the affiants allege they have suffered this kind of loss. In these circumstances, I conclude there is no evidence of even nominal damages being incurred. Therefore, this claim for nominal damages does not meet the statutory requirement in ss. 6(1) (

d) of the Act .

[ 68 ] My conclusion is similar to the conclusion reached in Maginnis DIVCT . There, the appellants argued certification was necessary to address the harm suffered by vehicle owners for “losses such as the need to rent a vehicle during the repair of their own”. The Divisional Court, at para. 41 dismissed that argument because there was “no evidence of any such loss before the [certification] judge to that effect”. [ 69 ] The ruling on this point in Maginnis DIVCT is also analogous to, and consistent with, the reasoning in Setoguchi v Uber BV , 2023 ABCA 45 at para 73-75 [ Setoguchi ].

There, the court held it was permissible for a certification judge to consider that the plaintiff’s claim was for only nominal damages when determining if a class action was a preferable procedure: [73] Certification of claims for nominal damages in breach of contract are usually made in the context of other causes of action also being certified.

When the entirety of the class action is for nominal damages, the court can properly ask what purpose the action serves in the context of the objectives of class proceedings: Flesch [ Flesch v Apache Corporation, 2022 ABCA 374 ] at para 89. [74] Determining the common issues related to breach of contract and nominal damages in a class proceeding is clearly preferable to each class member bringing an individual suit, which would number in the thousands and, as the certification judge himself recognized, would be economically unfeasible.

This is inevitably the case when class actions are compared to traditional litigation, but in a case limited to nominal damages, the issue is less straightforward . Since a claim for nominal damages can be as low as $1, and is not compensatory in nature, it is difficult to imagine many individuals being motivated to expend the time or energy to advance a suit, even if the economics of pursuing a claim was not an issue.

In this regard, it was open to the certification judge to conclude that access to justice issues did not prevail. [75] Further, in considering judicial economy, it was open to the certification judge to weigh the considerable judicial resources to be expended, against the nature of the claim and its impact on class members: Hollick at para 29 ; AIC [ AIC Limited v Fischer, 2013 SCC 69 ] at para 21.

This is not an impermissible assessment of the merits of the action, it is a critical look at the entirety of the action and what it hopes to achieve. [Underlining emphasis added] [ 70 ] Setoguchi highlights that a certification judge may consider the fact that a claim is only for nominal damages when determining if the preferability requirement in ss. 6(1) (

d) of the Act is met. [ 71 ] On the evidence before me, as set out above, I conclude there is no evidence of even nominal damages. [ 72 ] Mr. Tress also argues that the behaviour modification goal of class action legislation will not be fulfilled unless his action is certified. He argues that the conduct of FCA must not be rewarded or condoned and that certification of his action is therefore warranted. [ 73 ] After considering the evidence and submissions in this case, I conclude the absence of evidence of a compensable loss cannot be simply overlooked when considering the pre-requisites to certification.

In Maginnis at para 26 (iii), the court emphasized the necessity for evidence of compensable harm in this context: [26]… (iii) If the plaintiffs’ concern is not their vehicles’ reduced trade-in value (no such evidence in any event) but the fact that their “dirty diesel” vehicles were polluting the environment for several years before FCA offered the repair, that is a commendable concern. But absent compensable harm, the policing and enforcement of environmental protection regulations are a matter for public regulatory authorities, not private action [footnote omitted].

The plaintiffs can bring a private claim if they can show some evidence that their vehicle’s additional pollution pre-repair caused personal injury or property damage – but no such claim has been advanced and no such evidence has been presented. [Emphasis added] [ 74 ] See, to the same effect, Singer v Schering-Plough Canada Inc ., 2010 ONSC 42 at para 207 , 87 CPC (6 th ) 276 [ Singer ] where Strathy J. (as he then was) states: “To the extent that the plaintiff believes that there have been transgressions that require sanctions, complaints can be directed to the appropriate regulators…”. [ 75 ] Maginnis at para 27 , also re-emphasizes the fundamental importance of evidence of compensable loss, notwithstanding understandable concerns about the conduct of some defendants: [27] I must pause here to make an obvious point.

The “diesel-gate” scandal involving some of the world’s largest automobile companies and auto parts suppliers was egregious and deserves strong condemnation. The resulting criminal prosecutions, fines and penalties in the hundreds of millions of dollars and nation-wide class actions to recover for widespread losses – are completely justified. But this doesn’t mean that every proposed class action that relates to the “diesel-gate” scandal will be automatically certified.

The plaintiffs must still satisfy the requirements set out in the CPA and provide, at the very least, some evidence of compensable loss. [Emphasis added] [ 76 ] Like the courts in Maginnis and Singer , I conclude the absence of evidence of compensable harm in these circumstances cannot be trumped by a desire to effect behaviour modification in class action defendants. I therefore conclude there is no minimum evidentiary basis for compensable harm on the basis of “other inconveniences”. [ 77 ] In

summary, after considering the evidence and submissions of the parties, I conclude there is no minimum evidentiary basis for compensable harm established through any of the five general themes of loss claimed by the plaintiff. Therefore, in

light of the rulings in Maginnis and Maginnis DIVCT , I conclude a class action is not a preferable procedure in accordance with ss. 6(1) (

d) of the Act . [ 78 ] I therefore dismiss the application for certification brought by Mr. Tress. 2. Was Mr. Tress a resident of Saskatchewan when the action was commenced (ss. 6(1)(

e) of the Act )? [ 79 ] Even if I did not come to the conclusion that is set out above - that a class action was not a preferable procedure for Mr. Tress’s action pursuant to ss. 6(1) (

d) of the Act - I conclude the certification application must be dismissed because Mr. Tress failed to comply with ss. 6(1) (

e) of the Act . [ 80 ] First, there is no evidence Mr. Tress was a resident of Saskatchewan when the claim was commenced, as required by s. 4(1) of the Act . [ 81 ] Section 4(1) states: 4

(1) A resident of Saskatchewan who is a member of a class of persons may commence an action in the court on behalf of members of that class. [ 82 ] Here, although the statement of claim filed on February 12, 2018, pleads Mr. Tress is a resident of Saskatchewan, he states in his affidavit sworn August 22, 2018, that he is a resident of Sparwood, British Columbia.

No other evidence attempts to touch upon this requirement. [ 83 ] In Duzan v Glaxosmithkline , Inc. 2011 SKQB 118 at para 42 , 372 Sask R 108, Ball J. held that Saskatchewan residency was “a prerequisite for a representative plaintiff pursuant to s. 4(1) of the [ Act ].” Here, the only evidence is that he was, at the time of swearing his affidavit, a resident of British Columbia. No attempt was made by Mr. Tress to explain whether, or when, he may have been a resident of Saskatchewan. No attempt was made by Mr.

Tress to suggest another person to act as a representative plaintiff. [ 84 ] I recognize the bill of sale for his vehicle, exhibited to his affidavit of August 22, 2018, lists his address as a box number in Esterhazy, Saskatchewan. From this, I have an evidentiary basis to conclude he was a Saskatchewan resident when he purchased his vehicle in 2015.

However, there is no evidentiary basis that suggests that, at the time he commenced his action in February 2018, he resided in Saskatchewan. [ 85 ] I therefore conclude that, on this basis, he failed to comply with s. 4(1) of the Act and he is not an appropriate plaintiff under ss. 6(1) (e). [ 86 ] Second, as pointed out by FCA, there is no evidence Mr. Tress suffered a compensable loss and that he has a stake in the outcome, as required by ss. 6(1) (e)(iii) of the Act .

As examined in detail above, I have concluded that there is no evidence of compensable loss in the plaintiff’s evidence, in accordance with any of the five general themes of loss, or otherwise. [ 87 ] In Maginnis at para 37 , the court held that a proposed representative plaintiff who has sustained no loss, and has no stake in the potential outcome, is not a suitable representative: [37] In that rare case where, as here, there is no evidence of compensable harm, a judge can dismiss the motion for certification in at least three ways. The judge can find that under s. 5(1)(

b) of the CPA as this court did in Singer that that “there is no evidence of a class of two or more people seeking access to justice.” The judge can also find under s. 5(1)(

e) that the two plaintiffs herein are not suitable representatives because they have sustained no loss and have “no stake in the potential outcome. ” [Footnotes omitted and emphasis added] [ 88 ] Therefore, in

summary, I conclude Mr. Tress has failed to provide evidence of compliance with ss. 6(1)(

e) of the Act and I conclude he is not a suitable representative plaintiff under the Act . V.

SUMMARY [ 89 ] In

summary, I dismiss the certification application brought by Mr. Tress. I conclude there is no minimum evidentiary basis to establish the plaintiff’s affiants have suffered a compensable loss as required under ss. 6(1) (

d) of the Act . I also conclude there is no minimum evidentiary basis to establish the plaintiff is a suitable representative under ss. 6(1) (

e) of the Act . [ 90 ] The application is dismissed, and the parties have leave to contact the Local Registrar to arrange a hearing to speak to costs. J.

M.D. TOCHOR