"Too Big To Certify"

• Published date: 22 December 2020
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation, Dodd-Frank, Consumer Protection Act
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor and Patrick Williams

In Kett v. Mitsubishi Materials Corporation, 2020 BCSC 1879, Justice Branch dismissed a certification application because the case was "too big to certify". The case confirms that there are limits to the scale of class actions-while plaintiffs may create the appearance of commonality through abstraction, certification will be inappropriate where individual analyses dominate.

The judgement is also notable for:

• limiting the use of BC's Business Practices and Consumer Protection Act (the "BPCPA") against parties in a supply chain that provide components; not finished goods in the form received by consumers;
• requiring plaintiffs' counsel to disclose any relationship between the plaintiff and the firm and
• requiring plaintiffs to file more than a "standard form" litigation plan in complex cases.

Facts

The defendants sold a vast array of automobile parts to vehicle manufacturers and others in the automotive supply chain. With the possible exception of replacement parts, the parts sold by the defendants were all incorporated into vehicles then sold by others. The defendants did not deal directly with consumers.

The defendants delivered certain products to their customers that deviated from specifications. For example, the defendants did not perform all of the testing and inspections that they recorded. After their misconduct came to light, some of the defendants were charged with offences. None of their customers raised safety concerns.

The plaintiff alleged that the misconduct resulted in higher vehicle prices for consumers. He primarily relied on the statutory causes of action in the BPCPA but also advanced claims in unjust enrichment and the unlawful means tort.

The BPCPA does not allow consumers to target any component in a complex supply chain

The court concluded that the vast majority of the BPCPA claim was bound to fail because the defendants did not "supply" "goods" in a "consumer transaction" under the BPCPA. Rather the defendants supplied goods (automobile parts) to others who then supplied goods (vehicles) to consumers. The court emphasized that consumers were buying vehicles, not collections of parts-the BPCPA does not allow consumers to target any component in a complex supply chain when they buy a finished product. As an exception to this general conclusion, the court accepted that the plaintiff and other consumers may have a claim under the BPCPA for any replacement parts they purchased in the final form distributed by the defendants.

The court...