Court File No.

:
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VICTOR MENDHAM
Plaintiff
-andFIAT CHRYSLER AUTOMOBILES N.V., FCA US LLC, and FCA CANADA INC.
Defendants
Proceeding under the Class Proceedings Act, 1992
STATEMENT OF CLAIM
TO THE DEFENDANTS
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claim made
against you is set out in the following pages.
IF YOU W ISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare
a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiffs lawyer
or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service, in this court
office, W ITHIN TW ENTY DAYS after this statement of claim is served on you, if you are served in Ontario. If
you are served in another province or territory of Canada or in the United States of America, the period for serving
and filing your statement of defence is forty days. If you are served outside Canada and the United States of
America, the period is sixty days.
Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend
in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to
serve and file your statement of defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR
ABSENCE AND W ITHOUT FURTHER NOTICE TO YOU. IF YOU W ISH TO DEFEND THIS PROCEEDING
BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY
CONTACTING A LOCAL LEGAL AID OFFICE.
TAKE NOTICE: THIS ACTION W ILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial
or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.
13 2017
Date: January
________,

Issued by:___________________________
Local Registrar
393 University Avenue, 10th Floor
Toronto, Ontario M5G lE6

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TO:
FIAT CHRYSLER AUTOMOBILES N.V.
25 St Jamess Street
London, United Kingdom
SW1A 1HA
AND TO:
FCA US LLC
1000 Chrysler Drive
Auburn Hills, Michigan
United States of America
48326-2766
AND TO:
FCA CANADA INC.
1 Riverside Drive West
Windsor, Ontario
N9A 5K3

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I. RELIEF CLAIMED
1.

The Plaintiff, on behalf of themselves and other Class Members, including the Family

Class, claim against the Defendants for:

a)

an order pursuant to the Class Proceedings Act, 1992, So. 1992, c.6, certifying
this action as a class proceeding and appointing him as the representative
plaintiff for the Class;

b)

a declaration that the defendants were negligent and are liable in damages;

c)

general damages in the sum of $500 million for negligent design, testing
manufacturing, marketing and sale or such other sum as this Court finds
appropriate;

d)

damages for breach of implied and express warranties and unfair practices
provisions under consumer protection legislation, including but not limited to
the Consumer Protection Act, 2002, S.O. 2002, c.30; Sched. A;

e)

damages recoverable pursuant to section 36 of the Competition Act;

f)

prejudgment and postjudgment interest, compounded, or pursuant to ss. 128 and

129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;

g)

in the alternative to the general damages described above, disgorgement all profits
received from the sale of the Affected Vehicles, as defined herein;

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h)

punitive or exemplary damages in the sum of $50 million or some other sum this
Court finds just;

i)

costs of this action on a substantial indemnity basis or in an amount that provides

full indemnity plus, the costs of distribution of an award under ss.24 or 25 of the
Class Proceedings Act, including costs of notice associated with distribution and
fees payable to a person administering the distribution pursuant to s.26 of the
Class Proceedings Act; and,

j)

such further and other relief as to this Honourable Court seems just.

II. NATURE OF ACTION

2.

This action arises out of automobiles, namely FCA Dodge RAM 1500 and FCA Jeep Grand

Cherokee, which were tested, manufactured, marketed, distributed and sold, directly or indirectly,
by the Defendants (the Affected Vehicles).
3.

All vehicles, including Affected Vehicles, are required to comply with certain emissions

standards, which are designed to protect the environment and the health and safety of Canadians.
4.

The Affected Vehicles are equipped with devices or software (Emissions Control Devices)

which make it appear, during emissions testing, that the Class Vehicles meet these standards;
however, under normal driving conditions the Class Vehicles are in fact incapable of meeting the
required emissions standards (the Defect).
5.

On January 12th, 2017, the Environmental Protection Agency in the United States of

America issued a Notice of Violation directed at FCA and FCA US (EPA NOV).
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6.

As indicated in the EPA NOV, the Defendants had, prior to the issuance of the EPA NOV,

been given a reasonable opportunity to justify the existence of Emissions Control Devices and did
not do so.
III. THE PARTIES
Plaintiff
7.

The Plaintiff, Victor Mendham, is a resident of Markham, Ontario.

8.

On or about November 2013, the Plaintiff purchased a new 2014 diesel Jeep Grand

Cherokee Summitt.
9.

The Defect was unknown and could not, even through reasonable diligence on the part of

the Plaintiff, be known to the Plaintiff at the time of the purchase.

10.

Had the Applicant known about the Defect and been aware that his vehicle would not, in all

circumstances, meet the emissions standards imposed by law, he would not have purchased the
vehicle or would not have paid as much for the vehicle.
11.

In addition, due to the presence of the Defect, the Applicants vehicle resale value has

diminished.
12.

The damages suffered by the Plaintiff are a direct and proximate result of the Defendants

conduct.
13.

As a consequence of the foregoing, the Plaintiff is justified in claiming damages;.

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Defendants
14.

The Defendant, Fiat Chrysler Automobiles N.V. (FCA) is a corporation headquartered in

London, United Kingdom. FCA directs and controls the business actions of FCA US LLC (FCA
US) and FCA Canada Inc. (FCA Canada).
15.

The Defendant, FCA US, wholly owned by FCA, is a corporation headquartered in Auburn

Hills, Michigan.
16.

The Defendant, FCA Canada, wholly owned by FCA US, is a corporation headquartered in

Windsor, Ontario, and carries on business throughout Canada.

17.

FCA, FCA US, and FCA Canada (Defendants) shared the common purpose of designing,

testing, manufacturing, marketing, sales, and distribution of the class vehicles in Canada.
18.

The business and interests of the Defendants are inextricably interwoven, therefore, all the

IV. THE PROPOSED CLASS

19.

The Plaintiff brings this action on behalf of:

All persons in Canada (including but not limited to individuals, corporations, and estates) who own
or have owned, or lease or have leased, one or more of the following Class Vehicles, where
equipped with 3L diesel engines:
2014, 2015, or 2016 model year FCA Dodge RAM 1500
2014, 2015, or 2016 model year FCA Jeep Grand Cherokee
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referred to herein as the Affected Vehicles.

V. CAUSES OF ACTION
Negligence
20.

At all material times, the Defendants owed a duty of care to the Plaintiff and to the Class and

breached the standard of care expected in the circumstances.

21.

The Defendants had a duty to design, manufacture, and market vehicles that are reasonably

safe for their intended uses, reasonably efficient, and to provide true and accurate information to the
public with respect its products.
22.

The Defendants breached this duty through:

(a)

Failure to properly and adequately to design, develop, and test the Subject Vehicles
to ensure that they were not producing illegal amounts of emissions;

(b)

Failure to discover, through reasonably expected adequate testing, that the Subject
Vehicles were producing illegal amounts of emissions;

(c)

Failure to properly and adequately to install a safe software component or

mechanical safeguard against producing illegal amounts of emissions;

(d)

Failure to properly and adequately design or manufacture components and

component systems for Subject Vehicles that do not produce illegal amounts of
emissions;

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(e)

Failure to properly and adequately test Subject Vehicles the emissions system and
other components of the emissions system;

(f)

Failure to properly and adequately to manufacture, fabricate, and assemble Subject

Vehicles and the emissions systems, components, and parts thereof;

(g)

Failure to adequately monitor the safety and post-market performance of the Subject
Vehicles and their component parts and to warn the Plaintiffs and Class Members
of the dangers associated with producing illegal amounts of emissions; and,

(h)

Failure to promptly recall the Subject Vehicles from the Canadian market upon
discovery of their propensity to produce illegal amounts of emissions under
conditions of ordinary usage.

23.

As designers, manufacturers, and marketers of the Subject Vehicles in Canada, the

Defendants were in a position of legal proximity to the Class Members.

24.

It was reasonably foreseeable that a failure by the Defendants to design and manufacture

reasonably efficient emissions system for the Subject Vehicles, and to monitor the performance of
such systems in the Subject Vehicles following market introduction, would cause harm to the
Plaintiff and Class Members.
25.

Prior to and during the design, manufacturing, marketing, and sale of the subject vehicles and

thereafter, the Defendants knew, or in the exercise of reasonable care should have known, that other

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feasible and safer design alternatives were available to them which would have significantly reduced
emissions standard operating conditions to an acceptable level.
26.

The Defendants negligently failed to utilize such other and feasible safer designs in their

design of the emissions systems in the subject vehicles, and took active and illegal actions to hide
the actual amount of emissions being produced.
27.

As a result of the foregoing, the Plaintiff and the Class have suffered economic damages in

an amount to be proven at trial.

Breach of Express and Implied Warranty
28.

By marketing, advertising, and distributing diesel vehicles containing the defective

emissions system, and without incorporating adequate electronic or mechanical fail-safes, and while
misrepresenting or failing report the actual emissions being produced by such vehicles to the public,
the Defendants created and breached both express and implied warranties that the vehicles were safe
for use, and compliant with environmental regulations, when in fact, they were not.
29.

As a result of the foregoing, the Plaintiffs and the Class have suffered economic damages

in an amount to be proven at trial.

Violations of Competition Legislation
30.

At all times relevant, the Defendants violated section 52 of the Competition Act, R.S., 1985,

c. C-34, by the use of false and misleading representations or omissions of material fact in

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connection with the marketing, promotion, and sale of vehicles equipped with the defective
emissions systems.
31.

The Defendants communicated the purported benefits of vehicles equipped with a diesel

engine, while failing to disclose that these vehicles were in fact less efficient and produced more
emissions with the intent that consumers, like the Plaintiffs, would purchase a vehicle equipped with
these defective emissions systems.
32.

The Plaintiffs and the Class Members have suffered losses and damages and are entitled to

recovery pursuant to section 36 of the Competition Act.

Violations of the Consumer Protection Act
33.

At all material times, the Class Members are consumers for purposes of the Consumer

Protection Act, 2002, S.O. 2002, c. 30, Sched. A (Consumer Protection Act) and corresponding
legislation in other provinces.
34.

At all material times, the Defendants are suppliers for the purposes of the Consumer

Protection Act, as they are engaged in the business of selling, leasing, or trading in the Affected
Vehicles, either directly or indirectly through their agents.
35.

Through their actions described above, the Defendants have breached implied warranties that

the Affected Vehicles are of merchantable quality and / or are fit for their intended purpose.

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36.

Through their actions described above, the Defendants have committed unfair practices by

making false, misleading and / or deceptive representations as to the Affected Vehicles performance
characteristics, safety, quality, and benefit to the Class Members.
37.

There is privity of contract between the Class Members and the Defendants by virtue of the

consumer agreement for the Class Members to purchase, lease, and / or rent an Affected Vehicle.
38.

In the alternative, contracts between the Defendants and any retailers involved in the sale,

lease or rental of Affected Vehicles by the Class Members contained the implied warranties as to the
Affected Vehicles merchantable quality and fitness for intended purpose.
39.

The Defendants and retailers intended to extend the benefit of these provisions to the

prospective customers and Class Members. Allowing the Class Members to have a right of action
under these contracts would be an incremental change to the doctrine of privity.
40.

As a result of the breaches of consumer protection legislation, including the Consumer

Protection Act, the Plaintiffs and other Class Members have suffered harm and are entitled to
remedies at law including damages or rescission or both.

Unjust Enrichment
41.

The Defendants were unjustly enriched as a result of the revenues obtained from the sale of

the Subject Vehicles and their component parts:

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(a)

the Defendants were enriched through revenues and profit from the sale of the Subject
Vehicles and their component parts;

(b)

the Plaintiffs and the Class have suffered corresponding deprivation and losses; and,

(c)

there is no juristic reasons for the benefit by the Defendants and corresponding
detriment experienced by the Plaintiffs and the Class.

42.

The circumstances, as described in this Statement of Claim are such that allowing the

Defendants to retain the benefits provided by the Plaintiff and Class would be inequitable.
43.

The Defendants have been unjustly enriched at the expense of the Plaintiff and the Class and,

as a matter of equity, the Defendants should be required to make them whole by disgorging the
purchase price of each vehicle which should be ordered disgorged on a Class wide aggregate basis.
Waiver of Tort
44.

The Plaintiffs reserve the right to elect at the trial of the common issues to waive the tort and

to have damages of the Class assessed in an amount equal to the gross revenues earned by the
Defendants, or the disgorgement of all income received by the Defendants through the sale of the
Subject Vehicles.
45.

The Defendants wrongfully introduced and maintained the marketing and distribution of the

Subject Vehicles in the Canadian market. But for the Defendants negligent and intentional acts and
statutory breaches, they would have sold no or alternatively fewer, Subject Vehicles and the
Defendants would not have received any or part of the revenues they received.
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46.

As a result of the Defendants breaches of duty and intentional wrongdoing, they have

generated substantial revenues that they should not in good conscience retain.

VI. DAMAGES
47.

As a result of the Defendants acts and omissions particularized above, the Plaintiff and the

Class have suffered, and will continue to suffer loss and damage:

48.

(a)

loss of income;

(b)

expenses related to the Subject Vehicles;

(c)

loss of use of the Subject Vehicles and inconvenience;

(d)

depreciation in vehicles resale value of the Subject Vehicles; and,

(e)

such further and other damages to be proven at trial.

Such loss and damage was foreseeable by the Defendants.

VII. PUNITIVE AND EXEMPLARY DAMAGES

49.

The Defendants have acted in such a high-handed, wanton, and reckless manner as to

warrant a claim for punitive damages.

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50.

The Defendants prioritized corporate profits over the quality of its vehicles and the safety

of the Plaintiff and Class.

51.

The Defendants knew that certain models of their vehicles were not meeting emissions

standard, and deceived the public and regulators about the actual emissions being produced.
52.

The Defendants went as far as deceiving regulators through developing software to hide the

actual amount of emissions being produced.

53.

To know of the defect, and hide it, is atrocious conduct. Under the Canadian system of

governance we have a higher expectation of the judicial arm of governance to punish and this is a
case where punitive or exemplary damages ought to be ordered.
54.

Punitive or exemplary damages ought to be awarded to the Class to discourage such high-

handed corporate wrongdoing in the future.

55.

An award of punitive or exemplary damages should be made on a lump sum basis to be

distributed among members of the Class in whatever manner the common issues trial judge deems
appropriate.

VIII. STATUTES
56.

The Plaintiffs plead and rely upon the following statues and the regulations made

thereunder:

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(a)

Class Proceedings Act, 1992, S.O. 1992, c.6;

(b)

Consumer Protection Act 2002, S.O. 2002, c. 30, Sched A;

(c)

Courts of Justice Act, R.S.O. 1990, c.43;

(d)

Family Law Act, R.S.O. 1990, c. F.3; and

(e)

Negligence Act, R.S.O. 1990, c. N.1.

IX. REAL AND SUBSTANTIAL CONNECTION TO ONTARIO

This action has a real and substantial connection between the subject matter of this action

57.

and Ontario for the following reasons, inter alia:

a.

several or all of the Defendants carry on business in Ontario;

b.

the head office of FCA Canada Inc. is in Windsor, Ontario;

c.

the Defendants distribute and sell their products, including the Affected Vehicles, in
Ontario and derive substantial revenue from such business;

d.

the damages of the Plaintiffs and other Class Members resident in Ontario were
sustained in Ontario; and,

e.

the Defendants marketed and sold their products, including the Affected Vehicles, in
Ontario.
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X SERVICE OUTSIDE ONTARIO

58.

The originating process may be served outside Ontario without court order because the claim

is in respect of a tort committed in Ontario, damages sustained in Ontario arising from a tort or
breach of contract however committed, against a person carrying on business in Ontario, and against
a person outside Ontario who is a necessary and proper party to this proceeding being brought
against another person served in Ontario.
59.

The Plaintiff proposes that this action be tried at Toronto, Ontario.

Date: January 13th, 2017

MERCHANT LAW GROUP LLP
Lawyers
120 Adelaide Street West, Suite 1201
PO Box 53
Toronto, ON
M5H 1T1
Venessa Vuia LSUC #69499L
Tel: (416) 828-7777
Fax: (647) 478-1967
vvuia@merchantlaw.com

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