Plaintiffs brought motion to certify action as class action pursuant to Class Proceedings Act, 1992 (Ont.). Plaintiffs owned front-loading washing machines manufactured by defendants. Plaintiffs alleged that defendants negligently designed washing machines and negligently failed to warn of design defects and need to take remedial action. Plaintiffs alleged that defendants breached warranty that machines were fit for intended purpose. Plaintiffs alleged that defendants’ failure to disclose defects was misrepresentation contrary to s. 52 of Competition Act (Can.) (CA). Plaintiffs brought action on behalf of Canadian residents, excluding Quebec, who owned 2001 to 2008 front-loading washing machine manufactured by defendants or who previously owned machine. Proposed class action was product liability claim against manufacturer for pure economic losses for allegedly negligently designed non-dangerous product. Action was based on concurrent liability in contract, breach of statute, negligence and waiver of tort. Motion dismissed. Pleadings failed to disclose reasonable cause of action. It was plain and obvious that there was no express or implied contractual claim against defendants. Plaintiffs did not sue to correct defects in material or workmanship but sued because they alleged that defendants’ machines had defective design. In warranty, defendants did not cover design defects and expressly excluded implied warranties. As matter of contract interpretation, it was plain and obvious that claim was not covered by express warranty; claim was exculpated by disclaimer language; and there was no overriding public policy reasons not to enforce express terms of warranty. Plaintiffs could not imply term inconsistent with express terms of contract. Section 52 of CA created offence but did not create cause of action. Alleged design defect did not make washing machines dangerous and it was plain and obvious that defendants were not under obligation to disparage own product and disclose alleged design defect. Defendants had no duty of care to disclose, no fiduciary duty to disclose and no statutory duty to disclose. Defendants were entitled to remain silent and it was plain and obvious they did not commit offence under s. 52 of CA. It was plain and obvious that there was no product liability negligence action for pure economic losses against manufacturer for negligently designing non-dangerous consumer product. Case law was settled against plaintiffs’ claim. Applying test for duty of care, it was plain and obvious that pure economic loss claim in negligence was not available for carelessly designing non-dangerous product. There was prima facie duty of care, but there were policy reasons that negated duty of care. It was plain and obvious that plaintiffs failed to plead reasonable cause of action in negligence. Proposed causes of action were all untenable and it was plain and obvious that there was no predicate wrongdoing on which to base plea of waiver of tort. Plaintiffs’ action failed to satisfy first criterion for certification of class action.
Arora v. Whirlpool Canada LP
(Aug. 16, 2012, Ont. S.C.J., Perell J., File No. 10-CV-404742CP) 220 A.C.W.S. (3d) 681.