“In our view, this amount is fair and reasonable in the circumstances, including the complexity of the certification motion, the amount at issue, the importance and novelty of the issues, and the amounts awarded in similar certification cases,” a bench of Associate Chief Justice J. Michal Fairburn, and Justices Steve Coroza and Lorne Sossin wrote in a costs endorsement.
In the underlying class action, the proposed plaintiffs had sought, among other things, repair costs incurred after a defect in the engine of their BMW cars led to catastrophic damage to the vehicles’ engines.
In North v. Bayerische Motoren Werke AG, 2025 ONCA 340, the Ontario Court of Appeal set aside a lower court decision certifying claims of negligent design and manufacturing against BMW and dismissed the class action over the lack of a representative plaintiff with a viable cause of action.
You can read Law360 Canada’s coverage of the decision here.
The court found that repair costs incurred after the failure of an engine component in the class vehicles were not legally recoverable and that the scope of recovery was limited to the costs of averting real and substantial danger.
The court also found that the losses claimed by the proposed representative plaintiffs were not related to averting danger from the defect and set aside the certification order as the plaintiffs had not sought the opportunity to substitute a new representative plaintiff.
On the issue of costs, the plaintiffs submitted that a fair and reasonable costs award would be in the range of $125,000 to $150,000, all inclusive, in line with comparable cases.
They argued that the complexity of the certification motion was at the lower end of the scale and that, even though it was unsuccessful, the motion was reasonable based on a novel property damage issue.
BMW sought a costs award of $232,006, arguing that this was reasonable based on the $1.1 billion in general, special and punitive damages sought in the action and the complexity of the case.
After reviewing BMW’s bill of costs, relevant case law and the parties’ submissions, the court concluded that indemnity costs of $190,000 were fair and reasonable in the circumstances.
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