2006 BCSC 1292err1 Benning v. Volkswagen Canada Inc. et al

Before: The Honourable Madam Justice Gropper

Reasons for Judgment

Counsel for Plaintiff	J. A. Hanson
Counsel for Defendants	B. W. Dixon
Date and Place of Trial/Hearing:	March 27 and 28, 2006
	New Westminster, B.C.

I. Introduction

[1] The plaintiff, Chandandeep Benning, leased a 2002 Volkswagen Jetta GLS from the defendant dealer, Guildford Motors Inc. in June 2002. He asserts that there is a defect in the locking system of the Jetta and other Volkswagen and Audi motor vehicles with the equivalent locking system design.

[2] Mr. Benning seeks to certify his action as a class proceeding pursuant to the Class Proceedings Act, R.S.B.C., 1996, c. 50 (the “CPA”). The defendants oppose the application.

[3] The definition of the class which the plaintiff seeks to certify is:

All persons in British Columbia who own or lease a Volkswagen Jetta sedan (1999-2005), Volkswagen Jetta wagon (1999-2006) which was purchased or leased form Volkswagen dealers in British Columbia.

[4] To establish his action as a class proceeding, the plaintiff must satisfy the criteria set out in s. 4(1) of the CPA. The issue is whether the plaintiff’s action is suitable for certification.

II. Certification Requirements

Section 4 of the CPA provides:

(1) The court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

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

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

(e) there is a representative plaintiff who

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following:

(a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;

(b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;

(d) whether other means of resolving the claims are less practical or less efficient;

(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

III. Evidence relied upon by the Plaintiff

[5] When the plaintiff leased the Jetta on June 26, 2002, he was seeking to purchase a vehicle that was constructed to be used for both business and pleasure purposes. He also needed the vehicle to have a locking and alarm system that adequately discouraged improper entry when the vehicle was parked unattended.

[6] Mr. Benning test drove the Jetta before it was purchased. He generally discussed its performance characteristics with a salesperson but did not inspect the door locking system or have any specific conversations with any representative of Guildford Motors Inc. concerning the adequacy of the door lock mechanism.

[7] The sales brochure described the Jetta as being resistant to break-ins. It stated: “Anti-Theft Alarm System scares away uninvited guests (otherwise known as ‘burglars’).”

[8] The plaintiff’s Jetta was broken into on two occasions, when left unattended overnight.

[9] On the first occasion, on April 12, 2004, the plaintiff returned to the vehicle in the morning to find all the windows down and the trunk open. A number of personal items were missing. The plaintiff noticed that there was damage to the door lock mechanism. He then had the lock repaired at a cost of $286.

[10] On the second occasion, in early January 2005, the plaintiff returned to his car in the morning and found that his vehicle was broken into again. As in the earlier break-in, all of the windows were down. Again, the door lock mechanism was damaged. He did not take steps to further repair the door lock mechanism because he was, and continues to be of the view, that the door lock mechanism could not be made adequately secure.

[11] The damaged lock was examined following both break-ins by Murray Swayze, a metallurgical engineer, with specific expertise in the field of failure analysis and fracture mechanics. He was retained on behalf of Mr. Benning, to investigate the apparent failure of Mr. Benning’s Jetta door lock and security warning system after each break-in.

[12] Mr. Swayze opined that the Jetta could have been broken into in as little as ten seconds, as measured by the interval between the first contact of the break-in tool with the lock, and entry to the vehicle. He stated that:

for the 2002 Volkswagen Jetta, quick and easy mechanical punching out and turning of the door lock results in disengagement of the security system and entry into the vehicle. This makes this vehicle a particular easy target for car thieves.

[13] Mr. Swayze concluded that there is a design flaw in the lock assembly in that the lock barrel (also known as the “lock cylinder” or “lock housing sleeve” but hereinafter referred to as the “lock barrel”) is not firmly situated in the lock housing and is consequently easily displaced and pushed into the lock housing which causes the lock barrel to rotate and open the lock. He said the modifications required to prevent the defect in design which caused this lock failure would be relatively inexpensive to implement.

[14] In spring 2005, a more extensive analysis, including destructive testing of the door lock mechanism and other door lock mechanisms of similar design, was conducted by Mark Bailey, a mechanical engineer retained on behalf of the plaintiff, whose specialty is mechanical and material failures.

[15] As a result of his investigations, Mr. Bailey opined that the main weakness of the Volkswagen Jetta lock assembly is that the lock barrel is not securely positioned in the lock housing. Therefore the lock barrel is easily dislodged and pushed into the lock housing allowing the lock to be easily opened.

[16] He agreed with Mr. Swayze that it would be relatively inexpensive to modify the Volkswagen driver-side lock assembly to prevent the defect in design which allows for unlocking this vehicle with a screwdriver and a hammer.

[17] Mr. Bailey tested locks from Honda, Mazda, Nissan and Toyota vehicles, where the wafer tumblers of the lock barrel bear directly on the lock housing. His testing determined that the lock housing in these vehicles could not be turned because it was anchored securely to the door. The design of these door locks therefore prevented them from being opened with a screwdriver and a hammer operation.

[18] The door lock mechanism installed in the plaintiff’s vehicle is used in the “Golf and Jetta sedan of the fourth generation,” spanning from 1999 to 2004 (the “VW lock”). During this time frame, approximately 26,416 vehicles with the VW lock were sold by the defendants in B.C..

[19] The defendants have available to them the names and addresses of the original owners (at the time of purchase) of the vehicles with this door lock mechanism.

IV. Evidence relied upon by the Defendants

[20] According to statistics kept by the Insurance Corporation of British Columbia and the police, at least 100,000 vehicles are broken into each year in B.C.. On an average day in B.C., 112 vehicles are broken into and 74 vehicles are vandalized. The type of property crime sustained by the owners of the subject Volkswagen vehicles is proportionate to the overall incidence of the crime.

[21] Kevin Jewell, a qualified locksmith retained on behalf of the defendants, conducted forensic investigations of automotive theft claims. He opined that there are numerous different methods utilized by criminals to gain unauthorized entry to vehicles. Locking systems and alarms are only a deterrent. The manner in which unauthorized entry is gained ranges from the simplest method, breaking a side window, to more sophisticated means, such as manipulation of the lock tumblers in order to operate the lock without a functioning key (picking the lock).

[22] Based on his experience in repairing vehicle locks, reviewing theft loss claims and conducting insurance fraud examinations, Mr. Jewell deposed that the most common form of entry that he encounters is the use by thieves of brute force geared toward the operation of the rods that connect the lock barrel to the door latch assembly.

[23] Ryan Tedesco, an electronics technician also retained on behalf of the defendants, deposed that alarm systems could be de-activated or by-passed in various ways. He agreed with Mr. Jewell’s opinion that alarm systems are only a deterrent.

[24] The VW lock used in the plaintiff's vehicle was a lock assembly given the part number 1U0837167. This part was introduced for use in the Golf and Jetta sedan of the fourth vehicle generation. For the Jetta, the fourth generation vehicles were introduced in the model year 1999 (that is, vehicles manufactured in the last half of 1998 and the first half of 1999). The 1999 model year also includes third generation Jetta vehicles manufactured during that same time period. Half-way through the 1999 model year, the manufacture of the fourth generation Volkswagen Golf commenced.

[25] Mr. Heiner Rieckmann, a Volkswagen representative, stated that automotive lock design is a continually evolving area. Automobile manufacturers are continually improving or altering designs to incorporate new technology, such as remote controls, and building in new features to respond to market demand or the challenges presented by new or different techniques employed by thieves to defeat or attempt to defeat locks.

[26] During the production of the fourth generation vehicles, there were changes made to the driver-side door lock assembly, incorporating another attachment point to make it more difficult for thieves to pull the entire lock assembly out of the door. Specifically, changes were made to alternate the springs attached to the tumblers on the left side and the right side of alternating lock tumblers.

[27] The VW lock introduced for use in the fourth generation Jetta and Golf vehicles, including the successor parts and service parts, have a number of features designed to deter or thwart unauthorized entry. The key itself is designed with an internal groove with recessed teeth to make it difficult to copy and the lock tumblers are designed so as to be difficult to pick. There is also a free-running feature incorporated into the design to deter or thwart entry by means of forced rotation of the lock barrel.

[28] Mr Jewell opined, based on his experience and examination of the VW lock, that the VW lock is not inherently weaker than other locking systems in use and holds certain advantages as a result of incorporation, among other things, of a two-track tumbler design, a free-running feature that allows the lock barrel to rotate freely if subjected to forced rotation and a direct drive paddle that limits the effectiveness of by-pass techniques. With respect to forced rotation techniques, he said results will vary with the particular vehicle, even amongst the same model, and will depend on the skill of the thief.

[29] Unauthorized entry into Volkswagen vehicles is not uniform, consistent or common across that class of vehicles.

[30] The defendants are critical of the expert opinions relied upon by the plaintiff. They assert:

(a) Mr. Swayze's opinion with respect to safety risks to occupants, functioning of car alarms, comparative ease of unauthorized entry, existence of a design defect and the possibility of modifications to lock design, are all issues beyond his expertise.

(b) Mr. Bailey's evidence is beyond his experience, flawed by factual errors and misstated test results, and relies upon unproven hearsay.

(c) At the time they prepared their reports and gave the evidence in their affidavits, neither expert had a full awareness of the design intent and functionality of the VW locks.

(d) Mr. Swayze's report was only based on an examination of the plaintiff's vehicle and its damaged door lock, without testing. Mr. Bailey's reports were only based on testing of the door lock that was subject to one specific form of forcible attack.

(e) Neither expert has the experience to give opinions about the modifications which could be made to prevent the defect in design that caused the lock failure or conclude that the modifications would be relatively inexpensive to implement.

(f) Their opinion as to the amount of time required to break the VW lock is speculation as the time required would depend on the skill and experience of the burglar.

V. Analysis

(a) Interpretative Principles

[31] The provisions of the CPA are to be interpreted so as to maintain the benefits of the legislation, which include promoting judicial economy by avoiding unnecessary duplication of fact-finding and legal analysis; promoting access to justice by distributing fixed litigation costs among a large number of class members; and ensuring that wrongdoers take account of the harm that they are causing and modifying their behaviour: Hollick v. Metropolitan Toronto (Municipality), [2001] 3 S.C.R. 158, 2001 SCC 68, at ¶14.

[32] A large and liberal interpretation must be applied throughout, but most particularly at the certification stage. At that stage, the focus is on the form of the action, rather than a determination of the merits: Hollick, supra at ¶16. That being said, the plaintiff must still show that there is an evidentiary basis for each of the criteria listed in s. 4(1) of the CRA: Hollick, supra at ¶25.

[33] Bearing these principles in mind, I will set out the parties’ respective positions on the certification requirements outlined in s. 4(1) of the CPA.

(b) Cause of Action

[34] The test to be applied under s. 4(1) (a) is whether it is “plain and obvious” that the plaintiff’s claim will fail. See Hollick, supra at ¶25.

[35] The plaintiff’s action relies on section 18 of the Sale of Goods Act, R.S.B.C. 1996, c. 410 (SGA), which provides in part:

Subject to this and any other Act, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows:

(a) if the buyer or lessee, expressly or by implication, makes known to the seller or lessor the particular purpose for which the goods are required, so as to show that the buyer or lessee relies on the seller's or lessor's skill or judgment, and the goods are of a description that it is in the course of the seller's or lessor's business to supply, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are reasonably fit for that purpose’ […]

(b) if goods are bought by description from a seller or lessor who deals in goods of that description, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer or lessee has examined the goods there is no implied condition as regards defects that the examination ought to have revealed; […]

[36] The plaintiff asserts that subsections (a) and (b) have been breached. The VW lock is not reasonably fit for its purpose and the lock defect breaches the implied condition that the Jetta and other vehicles with the VW lock, be of merchantable quality.

[37] In respect of fitness for purpose, courts impose a high standard in assessing whether goods are “fit for the purpose.” This requirement has been articulated by Dean Edgell as follows:

The condition does not require that the goods supplied be ‘absolutely fit’; they need only be ‘reasonably fit’. In practice, however, the courts have imposed a high standard of what is reasonable: Dean F. Edgell, Product Liability Law in Canada (Toronto: Butterworths, 2000) at p. 116.

[38] The plaintiff refers to Wharton v. Tom Harris Chevrolet Oldsmobile Cadillac Ltd. (2002), 97 B.C.L.R. (3d) 307, 2002 BCCA 78, where a buzzing sound from the stereo of a luxury automobile was found to render the car unfit for its purpose under s. 18(a) of the SGA. He also refers to Fording Coal Ltd. v. Harnischfeger Corp. of Canada (1991), 6 B.L.R. (2d) 157, 8 B.C.A.C. 250 (C.A.), where the rollers on a large mining shovel that enabled the cab to rotate, wore out after a quarter or half of their expected life span. The court held that the defendant breached the implied warranties for fitness for purpose and merchantable quality under s. 18(a) and (b).

[39] In respect of merchantable quality, the plaintiff also refers to the following statement by Edgell at p. 130:

Merchantability presumes that the goods are saleable to a buyer who is fully acquainted with the actual conditions of the goods, including latent defects.

[40] If a breach of a statutory warranty is found, the plaintiff is entitled to damages for property damage and pure economic loss: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 (C.A.).

[41] The defendants agree that the pleadings disclose a cause of action, though they suggest that the statement of claim ought to include a pleading that the plaintiff leased his Jetta for primarily personal, family or household purposes and that the vehicle was bought by description. Further, they assert the plaintiff will have difficulty showing that actual loss was sustained and prove that the loss was caused by the breach.

(c) Identifiable Class

[42] In Hollick, the court stated at ¶20, that the class must be defined by reference to an objectively identifiable class in which there is “some rational relationship between the class and the common issues.” The court went on to say at ¶21:

The requirement is not an onerous one. The representative need not show that everyone in the class shares the same interest in the resolution of the asserted common issue. There must be some showing, however, that the class is not unnecessarily broad -- that is, that the class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue.

[43] The plaintiff asserts that the class description includes an identifiable class of approximately 26,000 purchasers or lessees, all of whom are known by name and address by the defendants. All of the class members have a shared interest in the claim and there is no conflict of interest between class members.

[44] The defendants say that the plaintiff has not provided any evidence that the alleged defect in the VW lock of the vehicles referred to in the class description have lost any value. The only evidence about the value of the vehicle is addressed by one of the defendants’ affiants and it does not support a reduction in value.

[45] The defendants argue that the identifiable class must have common claims. Specifically, there must be an air of reality to the commonality of the claims which the plaintiff proposes to advance on behalf of the class: Samos Investments Inc. v. Pattison (2001) 22 B.L.R. (3d) 46, 2001 BCSC 1790, at ¶155.

[46] The plaintiff must show a link between the plaintiff’s claim and the class. In Samos Investments, the court articulated this requirement at ¶160-161 as follows:

[T]here is a distinction between looking for evidence that members of the proposed class have individually a claim on the merits and testing the reality of the proposed linkage between the plaintiff’s claim and the proposed class.

The former is not an appropriate enquiry on the certification application, but the latter is.

[47] The plaintiff describes the class as those who have not sustained a break-in to their vehicle, or who have had the locking system repaired. The defendants submit the plaintiff is not a member of the class, at least not at the moment, because he did not have the lock repaired following the second break-in. Also, there is no air of reality to any link between the plaintiff’s claim and the members of the proposed class, because the proposed class member may not have been broken into by the method used on the plaintiff’s vehicle.

(d) Common Issues

[48] The resolution of the common issue must advance the case or move the litigation forward and must be capable of extrapolation to all class members: Harrington v. Dow Corning Corp. (2000), 82 B.C.L.R. (3d) 1, 2000 BCCA 605, at ¶24.

[49] The analysis of this test was described in Campbell v. Flexwatt Corp. (1997), 44 B.C.L.R. (3d) 343 at ¶53 as follows:

When examining the existence of common issues it is important to understand that the common issues do not have to be issues which are determinative of liability; they need only be issues of fact or law that move the litigation forward. The resolution of a common issue does not have to be, in and of itself, sufficient to support relief.

[50] The plaintiff proposes two common issues:

1. Is the locking system defective?

2. Does the sale of the locking system violate the provisions of the SGA?

[51] The plaintiff asserts that the test for the common issues is met in respect of both issues. In every transaction, the purchaser sought to purchase a particular type of high quality vehicle. The Jetta is defective within the meaning of s. 18(a) and (b) of the SGA in that it neither fits the purpose nor is of merchantable quality.

[52] While there are individual issues, the plaintiff asserts that they are relatively simple. Under s. 7(a) of the CPA, the existence of individual issues related to the assessment of damages is not a reason to deny certification.

[53] The plaintiff argues that a purchaser must let the seller know the purpose for which the goods will be used, and as Edgell points out, this can be implied from the surrounding circumstances of the purchase (Edgell, supra at pp. 117 and 124). The plaintiff argues that the circumstances surrounding the purchase or lease of a vehicle demonstrate the purchasers or lessees made known that they required a vehicle which has a secure locking door and alarm system.

[54] Section 18(b) only applies where goods are bought by description. Edgell states at p. 127:

…practically speaking nearly every sale made in the ordinary course of commerce will be found to have an element of description. It has been suggested that “the only sale that will not be a sale by description is one where there is, in effect, an agreed exclusion of liability.”

[55] The plaintiff says that purchasers and lessees of the vehicles included in the class description would be buying by description, that is, a quality vehicle with adequately designed door locking and alarm mechanisms.

[56] The defendants says that the proposed common issues are not capable of class-wide determination because of the particular nature of the claims and the particular circumstances applicable to those claims. Even if it were possible to frame a common issue regarding defective design or fitness for purpose, this would only be the beginning of the liability issue.

[57] The defendants assert that the first common issue of whether the locking system is defective, casts the issue as one of design defect which is not the relevant legal question under s. 18 of the SGA. The issue is fitness for purpose. The second proposed common issue of whether the locking system violates the provisions of the SGA, appears to subsume issues the plaintiff concedes are individual and is therefore clearly not a common issue.

[58] They further assert that no common issue regarding fitness is capable of formulation. Determination of the fitness of the product depends on the particular use to which it was put. In this context, the plaintiff would have to provide a generalized formulation of the use that was made of the VW lock by the proposed class members. That in turn, would require evidence of the manner of forcible attack to which the VW lock was subjected, and the duration and intensity of that attack, which is an inquiry that is intrinsically individual to the particular break-in.

[59] The defendants contend that in this case, unlike other product liability cases, there is no commonality to the question of fitness because the use to which the product is actually subjected cannot be demonstrated. There is no evidence on which it could be concluded that the nature of the attack made upon the plaintiff's vehicle bears any similarity to that of any other class member and there would be no way to extrapolate the results of the analysis. Consequently, they assert that “the identified common issues do not rise to the level of commonality necessary to satisfy the purposes of the CPA: see Gariepy v. Shell Oil Co. (2002), 23 C.P.C. (5^th) 360 (Ont. Sup. Ct.) at ¶55 and 60.

[60] The defendants argue that the evidence of the plaintiff’s experts and of the defendants’ experts, detailed above, clearly reveals a number of possible outcomes of forcible attack on the lock barrel and the individual nature of any failure of the VW lock, if it occurs, when subjected to forcible attack. There is, in this evidence, no basis for any generalization regarding the capability of the VW lock to sustain any particular type of attack. There is no commonality to the determination of the success or failure of attempts to defeat the VW locks from one vehicle to the next or from one break-in or attempted break-in to the next.

[61] The defendants also say that the determination of breach of the SGA cannot be made separate from a determination of causation regarding a failure of the VW lock, if any, and that issue is certainly not amenable to class-wide determination as that would require that every other class member's vehicle was subjected to the same type and intensity of attack and failed in precisely the same way, which is not possible.

[62] The defendants suggest that a proposed class proceeding in this matter is subject to a further complication as a result of the loss involving intentional and criminal wrongdoing of third parties. Whether the third party is identified or not, the defendants will be required to commence third party proceedings against the criminal wrongdoer so that fault may be apportioned between the defendants and third parties. They also argue that individual circumstances will have to be considered by the court in relation to any contributory fault on the part of the proposed class members. Citing Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2005), 20 C.P.C. (6^th) 262, 78 O.R. (3d) 98 (Ont. Sup. Ct.) at ¶53-54, the defendants say that these are clearly not issues which are amenable to determination on a class-wide basis.

(e) Preferable Procedure

[63] As the court stated in Hollick at ¶15:

…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.

[64] Section 4(2) of the CPA directs the court to consider all relevant matters, including: whether the common issues outweigh and predominate any individual issue of fact and law; whether the cost of litigation is an effective bar to individual claims; whether there has been other proceedings which involve the same subject; whether there are other means of resolving the dispute; and, whether a class proceeding will be more difficult to administer than an individual one.

[65] The purpose of the CPA is to improve access to justice, improve judicial economy and to modify behaviour: Hollick, supra at ¶15. The plaintiff asserts that the potential damages are insufficient to warrant the cost and expense of an individual action by the plaintiff as there would be “thousands” of individual trials involving identical facts and issues and no effective behaviour modification could be achieved through individual actions.

[66] The plaintiff says that if the matter is not certified, it is unlikely the plaintiff would proceed individually thus, allowing the defendants to escape liability under the SGA.

[67] In respect of the factors enumerated in s. 4(2) of the CPA, the plaintiff makes the following arguments:

(a) The common issues outweigh and predominate any individual issue of fact or law. In B.C., product liability cases have been certified even where the court determined that individual issues predominated the common issues: Endean v. Canadian Red Cross Society (1997) 36 B.C.L.R. (3d) 350 at ¶54.

(b) The cost of litigation is an effective bar to individual suits.

(c) The plaintiff is not aware of any other claims against the defendants involving the lock system of the Jetta, and thus this litigation will not displace any other litigation.

(d) There are no other means of resolving this dispute other than by individual litigation and the cost associated with individual litigation favours a class proceeding.

(e) A class proceeding would not be more difficult to administer than individual claims. ]

(f) The benefits of a class action are:

i. the plaintiff has an effective litigation plan;

ii. the defendant is unable to create procedural obstacles and hurdles that individual litigants may not have the resources to clear;

iii. the action is case-managed by a single judge;

iv. the avoidance of a multiplicity of proceedings;

v. a resolution of this dispute that would not or could not be achieved by individual class members;

vi. even absent class members will be protected by the court; and,

vii. the rights and obligations of both the defendants and the plaintiff class members can be adjudicated collectively and with finality.

[68] Finally, the plaintiff argues that the defendants should put forward evidence to support its position that individual litigation is preferable, not merely assert that it is: 1176560 Ontario Ltd. v. The Great Atlantic & Pacific Co. of Canada Ltd. (2002), 28 C.P.C. (5^th) 135, 62 O.R. (3d) 535 (Ont. Sup. Ct.), at ¶27.

[69] While the plaintiff asserts that a class proceeding is the only way that the matter can proceed, the defendants say that a class proceeding does not become the preferable procedure by default. Instead, the plaintiff must still show that the class proceeding will be fair, efficient and manageable: Ragoonanan, supra at ¶77.

[70] The defendants continue to maintain that the proceeding will not involve identical facts and issues because causation will be a critical and independent inquiry in each case. In this regard, the evidence relied upon by the defendants show that there are numerous and different methods of unauthorized entry into vehicles; that locks and alarms are only deterrents; that the unauthorized entry by a forcible rotation of the VW lock barrel may or may not succeed depending on the skill of the burglar and the intensity and duration of the attack, and there is no common failure mode. Further, to determine whether there was a breach of the SGA, it would be necessary to determine not only whether there was damage to the door lock, but whether the VW lock failed.

[71] In response to the plaintiff’s assertion that the court may be able to imply the conditions required by s. 18(a) and (b) of the SGA, the defendants say that it cannot be assumed that the fitness for purpose requirement will be inferred. The defendants have a right to argue such an inference is not appropriate.

[72] In respect of the merchantable quality test required in s. 18(b) of the SGA, it also varies from purchaser to purchaser and requires a consideration of the individual circumstances involving the purchase or lease of the vehicle. For instance, the purchaser may have inspected the vehicle and therefore it is not a sale by description to which subsection 18(b) would apply.

[73] The defendants further argue that the quantum of damages may also vary from claimant to claimant. The plaintiff suggests that the damages will vary only slightly but the defendants point out that such a suggestion is without evidence and while a separate assessment of damages is not a bar to certification, it is a factor. They argue that where the quantum assessment requires substantial procedural safeguards and there are numerous and complex liability issues, the separate assessment of damages militates against certification.

[74] Ultimately, the defendants argue that there is a predominance of individual issues that necessitate resolution by individual proceedings. They argue that the proceeding would “inevitably dissolve into individual proceedings.” Thus there would be no judicial efficiency or increased access justice gained by a class proceeding.

(f) Litigation Plan

[75] Subsection 4(1)(e)(ii) of the CPA requires that the representative plaintiff produce “a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying the class members of the proceeding.”

[76] The plaintiff’s plan for the proceeding, subject to input of the court and the defendants, provides a post certification schedule for giving notice, providing discovery, undergoing case-management, resolving common issues, and determining issues. The process proposed for the determination of individual issues is:

a) any class member who elects to have his or her vehicle modified so as to improve it and render it effective against break-in can file a claim and become entitled to repair and modification of the locking system at the expense of the defendant;

b) the claims process can require the class member to file a statutory declaration proving that membership in the class, and their desire to have a locking system on their vehicle repaired and modified.

[77] The defendants assert that the plan proposed by the plaintiff is not a workable plan. It defers for later procedural steps to clarify the common issues and to determine the appropriate course for any outstanding individual issues. The defendants argue that this vague and indefinite approach underlies the failure of the plaintiff to demonstrate any workable plan. The plan is essentially the same as the plan which was described in Ernewein v. General Motors of Canada Ltd. (2005), 46 B.C.L.R. (4^th) 234, 2005 BCCA 540, at ¶14.

[78] The defendant asserts that the plan does not consider the complex causation issues that arise in each case and denies the defendants the ability to defend claims and seek apportionment of fault or obtain contribution and indemnity from any applicable insurance. It is the failure of the plaintiff to address the presence of the individual issues and an acceptable method of dealing with them that makes the plan “unworkable”: see Caputo v. Imperial Tobacco Ltd. (2004), 236 D.L.R. (4^th) 348, 44 C.P.C. (5^th) 350 (Ont. Sup. Ct) at ¶76.

VI. Findings

(a) Cause of Action

[79] Assuming the facts plead are true, the amended pleadings, claiming a breach of s. 18(a) and (b) of the SGA disclose of cause of action.

(b) Identifiable Class

[80] The class description proposed by the plaintiff contains objectively identifiable characteristics. The class definition does not refer to members of the class who have been broken into the same way as the plaintiff’s vehicle was broken into. For clarification, the plaintiff describes the class as those owners or lessees who have not been broken into and whose lock systems are the original systems installed at the time of purchase or lease, or those who have had lock systems repaired or replaced.

[81] I agree with the defendant that the class description is overly broad. It includes claims by proposed class members for recovery where there has not been any break-in of their vehicle. It also raises the issue of the type of forcible attack which proposed class members may have sustained. The type of attack as demonstrated by the evidence requires that the proposed class members, if they have had a break-in of their vehicle, have had a break-in of the type which the plaintiff experienced. The plaintiff’s claim is based on a particular “defect,” the VW lock. The class definition includes those who may have suffered a break-in, but not with the type of attack which the plaintiff experienced. I find that the plaintiff has not established a sufficiently narrow class.

(c) Common Issues

[82] At this stage, I am not to weigh the common issues against the individual issues, but rather consider the resolution of the issue is necessary for the resolution of each member’s claim and whether the issue is a substantial ingredient of each member’s claim.

[83] The plaintiff’s claim is premised on whether the locking system is defective. The SGA analysis is whether the locking system is reasonably fit for its purpose.

[84] In order to demonstrate that, there must be evidence to show that the members of the proposed class have experienced an attack on their vehicle similar to that made upon the plaintiff’s vehicle. The defendants’ evidence shows that the success or failure of such an attack varies with duration and intensity. There are many methods which third parties may employ to break into a vehicle including many methods of attack on a locking system.

[85] I agree with the defendants that there is no evidence from which I can conclude that the nature of the attack on the plaintiff’s vehicle bears any similarity to that of any other class member. The results of the analysis cannot be extrapolated.

[86] As a result, I conclude that the claims of the proposed class are not sufficiently common to meet the requirements of s. 4(1)(c).

(d) Preferred Procedure

[87] Having concluded that the plaintiff has not met the common issues test, my consideration of the preferable procedure will be brief.

[88] Certainly there are ways in which a class proceeding would be preferable over individual actions including the cost of litigation, other means of resolving the dispute, and difficulty in administering individual claims. However, the first aspect of the factors enumerated in s. 4(2) of the CPA are not met. The plaintiff asserts that the common issues outweigh and predominate in individual fact or law. I have expressly disagreed with this statement. Thus, the preferable procedure is not a class proceeding. Such a proceeding will necessarily devolve into individual claims. Therefore the promotion of judicial economy or improvement of the access to justice by providing a class procedure will not be economical.

VII. Conclusion

[89] The proposed common issues identified will neither enable the court to avoid duplication in fact finding and legal analysis nor advance litigation. Accordingly, the plaintiff’s application is dismissed.

“M. Gropper, J.”
The Honourable Madam Justice M. Gropper

September 14, 2006 – Revised Judgment

Corrigendum to the Reasons for Judgment issued advising that paragraph 54 should read as follows:

“Section 18(b) only applies where goods are bought by description. Edgell states at p. 127:

… practically speaking nearly every sale made in the ordinary course of commerce will be found to have an element of description. It has been suggested that “the only sale that will not be a sale by description is one where there is, in effect, an agreed exclusion of liability.”

The first sentence of paragraph 70 should read as follows”

“The defendants continue to maintain that the proceeding will not involve identical facts and issues because causation will be a critical and independent inquiry in each case.”

The quotation in paragraph 74 should read as follows:

“Inevitably dissolve into individual proceedings.”

The first and second sentence in paragraph 88 should read as follows:

“Certainly there are ways in which a class proceeding would be preferable over individual actions including the cost of litigation, other means of resolving the dispute, and difficulty in administering individual claims. However, the first aspect of the facts enumerated in s. 4(2) of the CPA are not met.”

Citation:	Benning v. Volkswagen Canada Inc. et al.,
	2006 BCSC 1292