CIVIL PROCEDURE - Parties - Class or representative actions - Certification - Common interests and issues

Law360 Canada (December 14, 2022, 6:32 AM EST) -- Appeal by MacKinnon of the Decision dismissing his claim for damages. The claim was issued following revelations on September 18, 2015, that the Respondents had installed an unlawful defeat device in their diesel-powered vehicles which was designed to subvert automobile emissions regulations. The vehicles were marketed to purchasers under the misrepresentation that they were clean, emissions compliant and environmentally friendly. The current action was filed on behalf of Volkswagen and Audi owners and lessees who were not included in the previous settlement. The class proposed by the Appellant was composed of purchasers of the Respondents’ diesel-powered vehicles containing the defeat device who sold their vehicles prior to the September 2015 announcement. The action sought damages reflecting what were characterized as pre-disclosure losses sustained by these proposed class members. The motion judge found that the Appellant and his expert witnesses presented no plausible methodology to calculate damages. He also dismissed the request to certify the proposed common issues that were unrelated to the damages calculation on the basis that if damages could not be proved, then the other issues did not move the action ahead in a meaningful way....
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