Court Finds The Defendant Doth Protest Too Much In Certifying Power Steering Class Action Over Claims That The Defect Was "Not Dangerous"

• Published date: 09 December 2020
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Class Actions
• Law Firm: Cassels
• Author: Ms Meghan Rourke

In Harris v Bayerische Motoren Werke Aktiengesellschaft, the Ontario Superior Court of Justice articulated the high standard that a manufacturer must reach to avoid certification in a product liability case on the basis that there is "no danger" arising from an admitted defect.¹ The Court certified a class action against BMW on behalf of all persons or entities in Canada who are or were owners or lessees of certain Mini Cooper Vehicles which were impacted by a power steering issue that could cause a loss of power steering or fire.

BMW admitted that the electro-hydraulic power steering system in the affected vehicles was defective for a period of time and could fail. However, BMW attempted to resist certification by denying that the resulting loss of power steering was dangerous because the vehicle would simply revert to manual steering mode. In rejecting these arguments, the Court described the manufacturer's resistance to certification as "futile," "arrogant," and "foolish" since turning the steering wheel in manual mode without power steering would require the driver to turn the tires under the full weight of the vehicle weighing...