Instructions Specific to This Exam

1. This examination contains one question worth a total of 100 marks.

2. You will be assessed primarily on your knowledge of the Ontario Rules of Civil Procedure, applicable statutes, assigned cases and other materials identified in the Civil Procedure syllabus, together with your ability to recognize the procedural issues raised by the facts and analyze the competing arguments available to the parties.

3. No marks are awarded for merely reproducing or summarizing the facts. Your answer should identify the relevant procedural issues, state the governing rules and principles, and apply them closely to the facts.

4. Do not provide a general essay on civil procedure or work mechanically through every procedural device in the Rules. Address the issues reasonably raised by the facts and the relief realistically available to the parties.

5. Full case citations are not required for authorities contained in the assigned materials. However, where relevant, identify the applicable Rule, statute or case with sufficient precision to demonstrate knowledge of the governing law.

6. You are asked to prepare a memorandum of law. You do not need to spend examination time constructing formal memorandum headings such as “To,” “From,” “Date” or “Re.” Marks are awarded for substantive analysis.

7. Unless otherwise indicated, apply the Ontario Rules of Civil Procedure, the Limitations Act, 2002, and the Class Proceedings Act, 1992.

8. In addressing jurisdiction, distinguish carefully between:

   • whether the Ontario court has jurisdiction simpliciter over a defendant;

   • service outside Ontario;

   • the relevance of a real and substantial connection; and

   • the separate question whether Ontario should decline jurisdiction on forum non conveniens grounds.

9. In addressing the proposed class proceeding, analyze the statutory certification requirements separately. Do not assume that the existence of numerous similar claims automatically justifies certification, or that individual issues automatically defeat it.

10. In addressing limitation periods, distinguish between the occurrence of the underlying loss and the statutory discovery of a claim. Do not assume that a claimant must possess complete evidence or certainty before a limitation period begins to run.

11. Where interlocutory relief is sought, consider the nature of the relief actually required and whether a narrower procedural order could adequately protect the interests at stake.

12. For purposes of this examination, assume that the pleaded negligence and failure-to-warn claims are recognized causes of action in Canadian law. Do not address the substantive law of product liability except where necessary to analyze a procedural issue.

13. Do not address bankruptcy, insolvency, criminal liability, regulatory offences or insurance coverage.

14. Write a clear and organized answer in complete sentences.

QUESTION

FACTS

Aquila Climate Systems Inc. (“Aquila”) designs and markets residential heat-pump systems throughout Canada.

Aquila is incorporated in British Columbia and maintains its head office, engineering department and principal records in Vancouver.

It has no corporate office in Ontario.

However, approximately 42% of Aquila’s Canadian sales are made to Ontario customers through a network of independent heating contractors and building-supply retailers.

Aquila maintains a Canadian website through which consumers can locate authorized dealers by postal code. It also purchases online advertising targeted specifically at Ontario consumers and sends Aquila technicians from British Columbia to Ontario several times each year to provide dealer training and investigate product failures.

The product at the centre of the present dispute is the Horizon H8 heat pump.

Between January 2021 and June 2024, approximately 18,400 Horizon H8 units were sold in Canada. Approximately 7,600 were installed in Ontario.

Every Horizon H8 contains an electronic controller known as the NX-47 board.

The NX-47 was manufactured by Rosenfeld Elektronik AG (“Rosenfeld”), a corporation headquartered in Germany.

Rosenfeld manufactured the boards in Germany and sold them to Aquila pursuant to a supply agreement negotiated and performed primarily in Germany and British Columbia.

Rosenfeld has no office, employees, bank accounts or property in Canada.

Its boards were shipped directly from Germany to Aquila’s assembly facility in British Columbia.

The supply agreement stated that Aquila intended to sell Horizon H8 systems throughout Canada.

Rosenfeld modified the NX-47 to satisfy Canadian electrical specifications and placed both Aquila’s part number and a bilingual English/French safety label on each unit.

Rosenfeld’s engineers also exchanged technical emails with several Aquila dealers in Ontario when dealers reported controller failures.

No Ontario dealer purchased an NX-47 directly from Rosenfeld.

One Ontario purchaser is Marielle Desrosiers.

Marielle purchased a Horizon H8 from an authorized Aquila dealer in Ottawa in February 2022.

The dealer selected and installed the unit.

Marielle had no direct negotiations with Aquila or Rosenfeld before purchase.

On September 14, 2023, a fire occurred in Marielle’s basement utility room.

The fire damaged the Horizon H8 and part of the surrounding structure.

Marielle’s home insurer paid most of the reconstruction costs, but Marielle personally incurred approximately $47,000 in uninsured property damage, temporary housing expenses and other losses.

The Ottawa fire investigator issued a preliminary report approximately three weeks after the fire.

The report stated:

“The fire originated in the immediate vicinity of the heat-pump electrical assembly. The available evidence does not permit a definitive determination whether the initiating event was a defective component, improper installation, electrical supply irregularity or some combination of those causes.”

Marielle immediately contacted the installing dealer.

The dealer inspected the remains and told her:

“The wiring into the house looks questionable. I would not assume the unit itself was defective.”

Aquila also sent a field technician to inspect the damaged heat pump.

In an email dated October 20, 2023, Aquila told Marielle:

“We have identified no evidence demonstrating a manufacturing defect in the Horizon H8. Installation conditions external to the unit remain a possible explanation.”

Marielle asked her insurer whether she should retain a lawyer.

An insurance adjuster responded:

“There is no clear target yet. We are still trying to determine what actually caused the fire.”

In January 2024, Aquila sent Horizon H8 owners a notice asking them to install a software update.

The notice described the update as:

“a performance enhancement that improves temperature calibration and reduces unnecessary controller cycling.”

It did not refer to any fire risk.

Marielle’s replacement heat pump was a different brand, so she did not install the update.

In March 2024, an independent electrician retained by Marielle’s insurer completed a further examination of the damaged equipment.

He reported:

“There is significant thermal damage in and around the NX-47 controller. I cannot determine from the remaining material whether the controller initiated the overheating or was damaged by heat originating elsewhere. A controller-origin event is a realistic possibility.”

No action was commenced at that time.

In October 2025, a national newspaper published an investigative report concerning Aquila.

The article reproduced excerpts from internal Aquila documents supplied by a former employee.

One internal engineering memorandum from May 2022 recorded overheating during laboratory testing of the NX-47 under conditions of high humidity and repeated compressor cycling.

The memorandum estimated that approximately 1.8% to 2.4% of boards exposed to those combined conditions could exceed the design temperature.

A second internal email stated:

“A hardware recall would be extremely expensive. Software limiting maximum cycling frequency should materially reduce field exposure while engineering works with Rosenfeld on the next controller generation.”

Aquila never publicly disclosed those documents.

Following publication of the article, additional owners reported fires and heat damage associated with Horizon H8 units.

As of November 2025, Aquila’s internal incident records identify:

• 71 reports of abnormal controller overheating;

• 14 fires causing property damage;

• one incident causing serious burns;

• approximately 320 controllers replaced after visible heat damage; and

• several thousand units that have operated without any reported problem.

The affected systems were not installed identically.

Some were installed by Aquila-authorized dealers.

Others were installed by independent contractors.

Some homes had older electrical systems.

Two slightly different versions of the NX-47 were used during the relevant period, although Aquila’s internal documents indicate that both versions shared the same temperature-sensing architecture alleged to be defective.

Marielle first consulted class counsel on October 28, 2025.

On November 17, 2025, she commenced a proposed class proceeding in the Ontario Superior Court of Justice against Aquila and Rosenfeld.

The claim alleges that the defendants negligently designed, tested and distributed the NX-47 system and failed to provide adequate warnings after becoming aware of the overheating risk.

For purposes of this examination, assume those allegations disclose recognized causes of action if the pleaded facts are proven.

Marielle proposes the following class:

“All persons in Canada who purchased, leased or owned a Horizon H8 heat-pump system containing an NX-47 controller manufactured between January 1, 2021 and June 30, 2024.”

The proposed class contains approximately 18,400 people.

Class counsel proposes two subclasses:

1. owners who experienced a fire, overheating event or physical property damage; and

2. owners who did not experience physical damage but incurred costs replacing, inspecting or repairing an NX-47 controller after learning of the alleged defect.

Marielle is proposed as the representative plaintiff for the first subclass.

A second proposed representative, Rémi Lauzon, is an Ontario homeowner whose Horizon H8 never caught fire but who paid approximately $1,450 to replace his NX-47 controller after reading the October 2025 newspaper article.

Rémi is proposed as representative of the second subclass.

The statement of claim proposes the following common issues, among others:

• whether the NX-47 architecture contained a common design defect;

• whether Aquila and Rosenfeld knew or ought to have known of a material overheating risk;

• whether the defendants failed to take reasonable steps after learning of that risk;

• whether Aquila’s January 2024 notice adequately disclosed the alleged safety concern; and

• whether the defendants’ conduct warrants an aggregate or class-wide assessment of any available relief.

The plaintiffs acknowledge that individual class members may still have to prove matters including:

• the cause of a particular fire;

• the condition of a home’s electrical system;

• the conduct of individual installers;

• whether a particular controller actually overheated;

• the nature and amount of individual loss; and

• individual limitation defences.

Aquila opposes certification.

It argues that the action is really thousands of different product-failure cases.

It emphasizes that:

• most Horizon H8 units never failed;

• installations varied materially;

• two controller versions were used;

• there are multiple potential causes of heat damage;

• many purchasers suffered no physical damage;

• individual losses range from several hundred dollars to several hundred thousand dollars; and

• the claims arose at different times.

Aquila also argues that a class proceeding is unnecessary because it has established a voluntary Horizon Resolution Program.

Under the program, owners may receive:

• a free inspection;

• reimbursement of up to $900 for controller replacement; and

• a three-year extended warranty.

The program does not compensate for property damage, personal injury, temporary housing costs or other consequential losses.

Claims are determined by Aquila employees.

There is no independent appeal process.

To receive payment, an owner must sign a release of all claims relating to the NX-47.

The program is scheduled to expire in six months.

Approximately 1,100 owners have already accepted compensation through it.

Aquila argues that the program, individual actions for serious losses and ordinary consumer complaint processes together provide a superior means of resolving the claims.

Class counsel responds that the replacement-cost claims are too small to litigate individually, the serious-loss claims share important liability questions, and Aquila should not be permitted to rely on a compensation program that requires class members to release claims in exchange for limited relief.

Marielle’s own position also creates a dispute.

Aquila pleads that her claim is statute-barred.

It argues that Marielle suffered the fire on September 14, 2023 and knew almost immediately that the Horizon H8 was a possible cause.

It relies particularly on:

• the fire investigator’s report locating the origin near the unit;

• Marielle’s immediate complaint to the installer and Aquila;

• her question to the insurer about retaining a lawyer; and

• the March 2024 electrician’s statement that a controller-origin fire was a realistic possibility.

Aquila argues that Marielle did not need to know of the internal engineering documents, the precise defect or the strength of the evidence before commencing a proceeding.

Marielle responds that several knowledgeable parties specifically told her that installation or outside electrical conditions could have caused the fire.

She says she did not know, and could not reasonably have known, that Aquila’s conduct was a likely cause of her loss until the internal records became public in October 2025.

She also argues that litigation was not an appropriate means of seeking redress while the cause remained genuinely indeterminate.

Aquila says those arguments confuse certainty with discoverability.

Rosenfeld has not filed a defence on the merits.

Instead, it brings a motion challenging the jurisdiction of the Ontario court and seeks to have the claim against it stayed or dismissed.

Rosenfeld argues that:

• it manufactured the boards entirely in Germany;

• its contract was with Aquila in British Columbia;

• it has never sold directly to an Ontario consumer;

• it owns no property in Ontario;

• its witnesses and engineering records are in Germany; and

• German courts would be a more appropriate forum for any claim concerning the design and manufacture of its product.

The plaintiffs respond that thousands of Rosenfeld boards were deliberately manufactured for the Canadian market, thousands entered Ontario, the alleged damage occurred in Ontario, and Rosenfeld communicated directly with Ontario dealers concerning failures.

They also argue that requiring separate litigation against Rosenfeld in Germany would fragment the proceeding and significantly increase the cost of determining common liability issues.

Rosenfeld accepts that it knew Aquila sold the Horizon H8 throughout Canada but says that knowledge that a product may ultimately reach Ontario is not the same thing as carrying on business in Ontario.

It further argues that the existence of a national proposed class should not permit an Ontario court to assume jurisdiction it would not otherwise possess.

The plaintiffs served Rosenfeld outside Ontario in accordance with the procedure they say is authorized by the Rules.

Rosenfeld does not argue that it lacked actual notice of the proceeding.

Its objection is that the factual connection with Ontario is insufficient to permit the Ontario court to exercise jurisdiction over it.

Aquila does not challenge Ontario jurisdiction over itself, although it submits that the national class creates substantial management difficulties because many members, witnesses and installations are outside Ontario.

While the certification and jurisdiction motions are being prepared, a further dispute arises.

Aquila announces that it will deploy a mandatory remote firmware update to all internet-connected Horizon H8 units within 30 days.

Aquila says the update will reduce maximum cycling frequency and therefore further reduce any possible overheating risk.

The update will also automatically reset certain diagnostic logs stored on the controller.

Those logs contain, among other things, historical temperature readings, fault codes and cycling data.

Aquila’s current server configuration retains a separate cloud copy of approximately 60 days of controller data but automatically deletes older data.

Aquila explains that the retention system was created years before this litigation for storage-cost and privacy reasons.

Class counsel’s engineering expert states that historical controller data could be highly important in determining whether common overheating patterns existed across the proposed class.

The expert says that once overwritten or automatically deleted, much of the historical information cannot be reconstructed.

Aquila responds that suspending the update could expose consumers to the very risk the plaintiffs say exists.

It offers instead to preserve the existing server data of the 71 units already associated with reported overheating events.

The plaintiffs say this is inadequate because the common-issues theory depends partly on comparing failed and apparently non-failed units.

At approximately the same time, Rosenfeld advises Aquila that it intends to dispose of several hundred retained NX-47 engineering samples in accordance with a routine five-year document and prototype retention policy.

Some samples are from production batches shipped to Canada.

Rosenfeld says storage is expensive and that no court has ordered preservation.

After receiving a preservation demand from class counsel, Rosenfeld agrees to retain 20 randomly selected samples but refuses to preserve the remainder.

The plaintiffs bring an urgent motion seeking orders that would:

1. require Aquila to preserve relevant diagnostic and server data before implementing any firmware update;

2. prohibit deletion of potentially relevant historical data pending further order;

3. require Rosenfeld to preserve the Canadian-production engineering samples pending the certification motion; and

4. permit the defendants to implement safety measures that do not destroy relevant evidence.

Aquila argues that the requested order is technically burdensome and potentially dangerous if it delays a safety update.

Rosenfeld argues that preserving hundreds of old prototypes before the Ontario court has even determined jurisdiction is disproportionate.

The plaintiffs respond that the requested relief is temporary, preservation costs are modest compared with the size of the litigation, and destruction of the evidence would be irreversible.

The certification motion is scheduled to be heard in four months.

Rosenfeld’s jurisdiction motion is scheduled two weeks earlier.

The defendants disagree with the plaintiffs about the proper procedural sequence.

Rosenfeld says its jurisdiction challenge must be decided before it is required to participate in any aspect of certification.

The plaintiffs argue that the court can coordinate the motions and make temporary preservation orders without prejudging Rosenfeld’s jurisdiction objection.

Marielle and Rémi now seek advice on how the proceeding should move forward.

QUESTION

The senior partner at your firm asks you to prepare a brief but comprehensive memorandum advising Marielle and Rémi on the significant Ontario civil-procedure issues arising from the full sequence of events.

Your memorandum should address the limitation issue affecting Marielle, Ontario’s jurisdiction over Rosenfeld and Rosenfeld’s forum arguments, the proposed certification of the class proceeding, the urgent request for preservation and interlocutory relief, and the appropriate procedural management of the competing motions.

Your analysis should identify the governing Rules, statutory principles and assigned authorities, assess the strongest arguments on both sides, and explain the likely practical consequences of the available procedural choices.

Do not address the ultimate merits of the product-liability claims except where necessary to analyze the procedural issues.

100 MARKS

THE BRICKAM EXPLANATION

1. The Limitation Issue Is Whether Marielle Discovered the Claim More Than Two Years Before Commencing It

Ontario’s Limitations Act, 2002 generally imposes a two-year basic limitation period running from discovery of the claim.

The critical question is therefore not simply:

When did the fire occur?

The court must determine when Marielle knew, or reasonably ought to have known, the facts required by the statutory discovery test.

The loss occurred on September 14, 2023.

The action was commenced on November 17, 2025.

If the claim was discovered at or shortly after the fire, it is presumptively out of time.

If discovery occurred after November 17, 2023, the action may remain timely.

The difference between those possibilities is therefore decisive.

2. Marielle Did Not Need Complete Knowledge of the Precise Defect

Marielle’s strongest position cannot be that the limitation period remained suspended until she obtained proof of Aquila’s internal engineering knowledge.

That would set the discoverability threshold too high.

A claimant generally does not need:

• certainty;

• the defendant’s internal documents;

• expert confirmation of the precise mechanism;

• enough evidence to guarantee success; or

• complete knowledge of every legal theory

before a limitation period begins.

The discovery analysis concerns knowledge of the material facts required by the statute, not whether the plaintiff already possesses the case she would ultimately present at trial.

That principle materially assists Aquila.

3. The September and October 2023 Evidence Creates a Serious Limitation Defence

Aquila can point to several facts available to Marielle shortly after the fire.

The fire investigator located the origin in the immediate vicinity of the heat-pump electrical assembly.

Marielle immediately contacted both the installer and Aquila.

She also asked her insurer whether she should obtain legal advice.

Those facts suggest that Aquila and the Horizon H8 were already within the range of persons and causes Marielle reasonably suspected.

Aquila can therefore argue that the later newspaper article did not reveal the existence of a potential claim.

It merely strengthened a claim that Marielle already knew might exist.

That distinction is important.

4. But the Early Evidence Was Genuinely Equivocal

Marielle has a substantial response.

The fire investigator expressly declined to identify the cause.

Possible explanations included:

• defective equipment;

• improper installation;

• electrical irregularity; or

• some combination of causes.

The installer specifically suggested that the household wiring could be responsible.

Aquila stated that it had found no evidence of a manufacturing defect.

Even the insurer said:

“There is no clear target yet.”

The evidence therefore did more than leave Marielle without litigation-quality proof.

It left genuine uncertainty about whether Aquila’s act or omission had caused or contributed to her injury at all.

That is more favourable to Marielle than a situation in which a claimant knows the defendant probably caused the loss but simply lacks enough evidence to prove negligence.

5. The March 2024 Electrician’s Report May Be the Most Important Date

The electrician’s report stated that a controller-origin event was a “realistic possibility.”

That is stronger than the earlier information, but still not definitive.

Aquila will argue that discoverability does not require probability approaching certainty.

By March 2024, Marielle knew:

• where the fire originated;

• that the NX-47 showed significant thermal damage;

• that a controller-origin fire was realistically possible; and

• that she had suffered substantial loss.

A court could conclude that a reasonable person would by then have investigated a proceeding against Aquila.

If so, the November 2025 action is timely because March 2024 falls within the two-year period.

That means Aquila’s limitation defence does not succeed merely by showing that Marielle had knowledge before the October 2025 newspaper report.

It must establish discovery before November 17, 2023.

That is materially more difficult.

6. “Appropriate Means” Does Not Automatically Postpone the Period Until the Cause Is Certain

Marielle also relies on the statutory requirement that a proceeding be an appropriate means to seek a remedy.

That requirement must be used carefully.

It does not generally permit a claimant to postpone litigation simply because:

• factual investigation remains incomplete;

• negotiations are occurring;

• evidence is uncertain; or

• the plaintiff prefers to wait for stronger proof.

The policy of limitation legislation requires claims to be commenced once the statutory discovery threshold is met.

The fact that the insurer was investigating may be relevant context, but it does not create an automatic suspension.

The stronger basis for Marielle is therefore not that litigation was “inappropriate” until October 2025.

It is that the evidence available in September and October 2023 may not yet have given her the required knowledge that Aquila’s conduct caused or contributed to the loss.

7. Peixeiro Supports a Practical Rather Than Hypertechnical Discovery Analysis

Peixeiro v. Haberman reinforces that discoverability is concerned with when the plaintiff knew or ought reasonably to have known of the material facts giving rise to the claim.

The limitation period should not depend upon whether the claimant already understands every legal consequence of those facts.

Applied here, Marielle cannot rely simply on not knowing the legal strength of a product-liability case.

But Aquila likewise cannot reduce the inquiry to the date of injury.

The factual state of knowledge matters.

The better conclusion is that Aquila has a credible limitation defence, but the defence is far from inevitable.

The September and October 2023 evidence was sufficiently uncertain that Marielle has a substantial argument that the claim had not yet been discovered.

At the latest, the March 2024 report creates a much stronger discovery argument—and that date would leave the action within two years.

8. Marielle’s Individual Limitation Issue Does Not Automatically Prevent Certification

Aquila will argue that Marielle is a poor representative because she faces a potentially dispositive limitation defence.

That is relevant, particularly if her claim could disappear before the common issues are determined.

But the existence of an individual defence does not automatically make a person incapable of representing a class.

The court should ask whether:

• Marielle has a genuine interest in pursuing the common issues;

• the limitation dispute creates an actual conflict with the class;

• the litigation plan can deal with individual limitation questions; and

• another representative or subclass is necessary.

Rémi provides additional protection because his claim arose from a different factual position and he represents the replacement-cost subclass.

If necessary, the court could consider modifying the representative structure rather than refusing certification altogether.

Jurisdiction Over Rosenfeld

9. Jurisdiction Simpliciter and Forum Non Conveniens Must Be Kept Separate

Rosenfeld advances two conceptually different arguments.

First:

Ontario has no jurisdiction over me.

Second:

Even if Ontario has jurisdiction, another forum should decide the dispute.

The first concerns jurisdiction simpliciter.

The second concerns forum non conveniens.

The framework in Club Resorts Ltd. v. Van Breda requires those questions to be addressed separately.

10. Ontario Requires a Presumptive Connecting Factor

The plaintiffs must first establish a recognized presumptive connecting factor connecting the dispute with Ontario.

The relevant connecting factors in a tort claim may include, depending upon the facts:

• the defendant being domiciled or resident in Ontario;

• the defendant carrying on business in Ontario;

• a tort committed in Ontario; or

• a contract connected with the dispute made in Ontario.

Rosenfeld is plainly not resident or domiciled in Ontario.

There is also no direct Ontario contract between Rosenfeld and Marielle.

The more significant possible connections are therefore:

• whether Rosenfeld carried on business in Ontario; and

• whether the alleged tort was committed in Ontario.

11. Rosenfeld Has a Strong Argument That It Does Not “Carry on Business” in Ontario

Mere knowledge that products may ultimately reach a province does not necessarily mean a foreign manufacturer carries on business there.

Rosenfeld has:

• no Ontario office;

• no employees here;

• no property here;

• no direct customers here; and

• no direct sales into Ontario.

Its supply relationship was with Aquila.

The boards were delivered to British Columbia.

Those facts significantly assist Rosenfeld.

Its Ontario-related conduct is nevertheless not nonexistent.

Rosenfeld intentionally designed the product for the Canadian market.

It used bilingual Canadian safety labeling.

Its technical employees directly communicated with Ontario Aquila dealers concerning controller failures.

Those facts may show purposeful commercial engagement with the Ontario market.

Whether they amount to “carrying on business” is more contestable.

The plaintiffs should therefore not rely exclusively on that connecting factor.

12. The Stronger Connecting Factor Is the Alleged Tort and Damage in Ontario

The plaintiffs allege that a defective component caused damage in Ontario.

Marielle purchased and used the product in Ontario.

The fire occurred in Ontario.

Her property loss occurred in Ontario.

Thousands of other units were deliberately distributed into Ontario as part of the national market for which Rosenfeld designed the component.

That provides a powerful territorial connection between the alleged tort and the province.

The case is not one in which an Ontario plaintiff happens to suffer remote economic consequences from entirely foreign conduct.

The product itself entered Ontario and allegedly caused physical damage here.

That substantially strengthens jurisdiction simpliciter.

13. The National Class Does Not Create Jurisdiction by Itself

The plaintiffs should nevertheless avoid arguing:

This is a national class proceeding, therefore Ontario has jurisdiction over Rosenfeld.

Class-proceeding procedure does not manufacture adjudicative jurisdiction.

Ontario must possess jurisdiction over Rosenfeld according to ordinary jurisdictional principles.

Once that jurisdiction exists, the potential national scope of the proceeding may become relevant to management, preferability and forum considerations.

But certification cannot substitute for the initial jurisdictional foundation.

14. Rosenfeld May Attempt to Rebut the Presumptive Connection

Even where a recognized connecting factor exists, a defendant may attempt to show that the relationship with the forum is too weak to support jurisdiction.

Rosenfeld can emphasize that:

• all design and manufacturing occurred abroad;

• its contract was performed outside Ontario;

• it did not select individual Ontario purchasers; and

• Aquila controlled downstream distribution.

The plaintiffs will answer that Rosenfeld knowingly produced a Canadian-market component used in thousands of products sold in Ontario and directly participated in technical dealings involving Ontario failures.

The connection is therefore not accidental or wholly unforeseeable.

Rosenfeld faces a significant difficulty rebutting jurisdiction if the court accepts that the alleged tort occurred in Ontario.

15. Forum Non Conveniens Places the Burden on Rosenfeld

If jurisdiction simpliciter exists, Rosenfeld must show that another forum is clearly more appropriate.

This is not simply a comparison asking which forum has some advantages.

The existence of jurisdiction is respected unless the defendant demonstrates that another forum should plainly hear the dispute.

Relevant factors may include:

• locations of parties and witnesses;

• locations of evidence;

• applicable law;

• juridical advantages;

• parallel proceedings;

• enforceability;

• fairness to the parties; and

• efficient administration of justice.

16. Germany Has Real Connections to the Rosenfeld Dispute

Rosenfeld’s engineering employees and manufacturing records are in Germany.

The NX-47 was designed and manufactured there.

Its supply contract with Aquila has substantial foreign and British Columbia connections.

Those facts make Germany a genuine alternative forum rather than an artificial suggestion.

Litigating in Ontario may impose meaningful burdens on Rosenfeld.

17. Ontario Nevertheless Has Powerful Practical Advantages

The alleged injury to Marielle occurred in Ontario.

A very substantial portion of the proposed class is located here.

Aquila is already defending the proceeding here.

Much of the evidence concerning installation, failures, service complaints and damages is Canadian.

Most importantly, splitting the litigation could create two proceedings addressing overlapping questions concerning the same alleged defect:

• one against Aquila in Ontario; and

• one against Rosenfeld in Germany.

That duplication could increase cost, create inconsistent findings and undermine efficient resolution.

Rosenfeld must therefore do more than establish that Germany would be a competent forum.

It must establish that Germany is clearly more appropriate.

On these facts, that will be difficult.

18. Ontario Is Likely to Retain Jurisdiction Over Rosenfeld

The better conclusion is that Ontario likely has jurisdiction over the Rosenfeld claim and would probably refuse a forum non conveniens stay.

That conclusion is not based simply on the fact that Rosenfeld’s product eventually reached Ontario.

It rests on the combination of:

• a product intentionally designed for the Canadian market;

• substantial Ontario distribution known to be part of that market;

• alleged physical damage occurring in Ontario;

• Ontario technical interactions; and

• the practical need to resolve closely connected claims together.

Certification of the Proposed Class Proceeding

19. Certification Is Procedural, Not a Determination of the Merits

The certification motion is not a trial of whether the NX-47 was actually defective.

Nor must Marielle and Rémi prove that the class will ultimately succeed.

The court instead applies the statutory certification requirements under the Class Proceedings Act, 1992.

The major questions are whether:

• the pleadings disclose a cause of action;

• there is an identifiable class;

• the claims raise appropriate common issues;

• a class proceeding is the preferable procedure under the current statutory framework; and

• there is a representative plaintiff who can fairly and adequately represent the class and provide a workable litigation plan.

Each requirement must be considered separately.

20. The Cause-of-Action Requirement Is Satisfied on the Assumptions Given

The question expressly provides that the negligence and failure-to-warn allegations disclose recognized causes of action if the pleaded facts are proven.

This element therefore should not consume significant examination time.

Certification does not require proof that the allegations are true.

The focus moves to whether they can appropriately be litigated through the proposed class structure.

21. There Is an Objectively Identifiable Class

The proposed class is defined by ownership, purchase or lease of a Horizon H8 containing an NX-47 manufactured during a specified period.

Membership can therefore be determined using objective criteria.

A person either falls within that definition or does not.

The proposed subclasses similarly distinguish between:

• persons experiencing physical manifestations or property damage; and

• persons incurring inspection, repair or replacement costs without physical damage.

Aquila may argue that the class is too broad because it includes thousands of units that never malfunctioned.

That objection bears more strongly on commonality, preferability and the merits of particular claims than on whether the class is objectively identifiable.

22. The Common-Issues Requirement Does Not Require Every Issue to Be Common

The existence of individual issues does not itself prevent certification.

The central question is whether resolution of the proposed common issues will advance the claims of the class members in a meaningful way.

Hollick v. Toronto and Rumley v. British Columbia emphasize the procedural value of resolving genuinely common questions together even where individual issues remain afterward.

Here, several proposed issues appear strongly common.

For example:

Did the shared NX-47 architecture contain the alleged design defect?

That question does not depend upon the wiring in any one homeowner’s basement.

Likewise:

What did Aquila and Rosenfeld know about the overheating risk?

and:

Was Aquila’s January 2024 notice adequate in light of that knowledge?

are questions substantially driven by common corporate evidence.

A single determination could materially advance thousands of claims.

23. The Two Controller Versions Do Not Necessarily Destroy Commonality

Aquila emphasizes that two versions of the NX-47 existed.

That is important.

If the versions were materially different in the feature alleged to be defective, a single class-wide design issue might become artificial.

But the facts state that both versions used the same temperature-sensing architecture at the centre of the plaintiffs’ theory.

That gives the plaintiffs a substantial basis for treating the alleged defect as common.

If meaningful differences later emerge, subclasses or refinement of the common issues may be appropriate.

The court does not necessarily need to reject certification at the outset.

24. Individual Causation Issues Are More Serious

The causes of individual fires may vary.

Installation quality differed.

Homes had different electrical systems.

Some controllers may have been damaged by external heat rather than causing it.

Those issues cannot realistically be determined once for the entire class.

Aquila is therefore correct that individual causation trials may be necessary for at least some property-damage claims.

But that does not answer whether common findings about:

• design;

• testing;

• knowledge;

• warnings; and

• class-wide conduct

would materially narrow those later disputes.

They likely would.

The question is therefore not whether individual issues exist.

It is whether the remaining common issues are sufficiently significant to justify collective adjudication under the current statutory preferability test.

25. The Replacement-Cost Subclass Presents a Different Procedural Problem

Rémi and similarly situated owners did not suffer a fire.

Their alleged loss arises from the cost of replacing or investigating a controller after the alleged defect became known.

Their causation and damages inquiries may therefore be materially simpler than Marielle’s.

That supports the creation of a separate subclass.

It also prevents the court from treating the entire proposed class as though every member requires an individualized reconstruction of a residential fire.

The subclass structure is one of the plaintiffs’ strongest responses to Aquila’s heterogeneity argument.

26. Preferability Is the Central Certification Battleground

The present Ontario statutory framework requires a demanding assessment of whether a class proceeding is preferable when compared with reasonably available alternatives.

The court should consider whether the class proceeding is genuinely superior for resolving the claims and whether the common issues sufficiently predominate over the individual ones.

The objectives traditionally associated with class proceedings remain highly relevant:

• access to justice;

• judicial economy; and

• behaviour modification.

AIC Limited v. Fischer is particularly important to the preferability analysis because available alternative processes must be examined practically, not abstractly.

27. Access to Justice Strongly Favours Collective Treatment of the Smaller Claims

Rémi’s loss is approximately $1,450.

Many class members may have similarly modest inspection or replacement expenses.

Individual litigation over those amounts would be economically irrational.

The legal cost would likely exceed the value of the claim.

Without collective proceedings, many such claims would simply never be pursued.

That is a classic access-to-justice consideration favouring certification.

The larger fire and personal-injury claims are different because individual litigation may be economically viable.

But the existence of some large claims does not remove the access problem affecting the majority of modest claims.

28. The Horizon Resolution Program Is a Relevant Alternative

Aquila’s voluntary compensation program cannot simply be ignored.

It offers:

• free inspection;

• up to $900 in replacement reimbursement; and

• an extended warranty.

More than 1,100 owners have already used it.

That is relevant to whether a class proceeding is genuinely necessary.

Aquila can argue that the program delivers relief more quickly and cheaply than litigation.

It may resolve a substantial portion of the smaller claims without consuming judicial resources.

29. But the Program Is Not Equivalent to the Proposed Proceeding

The program has important limitations.

It does not compensate:

• property damage;

• personal injury;

• temporary housing;

• consequential losses; or

• replacement costs above the cap.

Claims are adjudicated by Aquila itself.

There is no independent appeal.

Most importantly, claimants must release all NX-47 claims in exchange for limited compensation.

These features permit the plaintiffs to argue that the program is not a genuinely superior mechanism for determining legal entitlement.

It may be a useful settlement device.

That is not necessarily the same as an adequate procedural alternative.

30. The Court Must Compare the Real Alternatives, Not an Idealized Version of Them

The alternatives are not:

perfect class proceeding versus perfect compensation program.

The comparison is practical.

Individual proceedings for small losses are likely unrealistic.

The Aquila program is fast but limited.

Regulatory or consumer complaint mechanisms may provide some assistance but do not determine the defendants’ civil liability or compensate all alleged losses.

A class proceeding would be more expensive and complex but could resolve major common liability issues bindingly and independently.

On balance, the access-to-justice and behaviour-modification objectives substantially favour the plaintiffs.

31. The Predominance of Individual Issues Is Aquila’s Best Certification Argument

Aquila can persuasively argue that even after the common issues are answered, many substantial questions remain:

• Did a particular NX-47 overheat?

• Did installation cause the problem?

• Did household wiring contribute?

• Did the claimant actually incur a compensable loss?

• When did the claimant discover the claim?

• What damages followed?

If those issues overwhelm the proposed common trial, collective adjudication may achieve less procedural economy than the plaintiffs suggest.

The property-damage subclass is especially vulnerable to this argument.

The plaintiffs’ response is that liability litigation concerning design, testing, common knowledge and common warnings could otherwise be repeated in numerous individual cases.

Resolving those matters once could substantially reduce the cost and complexity of everything that follows.

The outcome will depend heavily on how precisely the common issues are drafted.

32. Refinement Is Preferable to Overly Broad Common Issues

The plaintiffs should avoid asking the common-issues judge to decide propositions that cannot sensibly be answered class-wide.

For example:

“Did the defendants cause every class member’s loss?”

is unlikely to be an appropriate common issue.

A more defensible formulation would ask:

“Did the NX-47 share the alleged design characteristic?”

“Did that characteristic create the alleged overheating risk?”

“When did each defendant know or ought it to have known of that risk?”

“Was a class-wide warning obligation breached?”

Those questions separate common corporate conduct from individual causation.

Careful issue formulation materially strengthens certification.

33. Marielle and Rémi Can Potentially Provide Adequate Representation

Marielle has a substantial property-damage claim.

Rémi has a modest replacement-cost claim.

Together, they reflect the two major claim types the plaintiffs seek to certify.

That is procedurally useful.

Aquila will emphasize Marielle’s limitation defence.

The court should take that seriously, but it does not necessarily create a conflict with the rest of the class.

If Marielle has an arguable and genuine claim and remains capable of fairly advancing the common issues, she may continue to act.

The court could also require another representative for the property-damage subclass if the limitation issue becomes too dominant.

34. The Litigation Plan Must Deal With the Individual-Issue Problem

A representative plaintiff must propose a workable method of advancing the proceeding.

Given the facts, a credible plan should explain how the case would move from:

1. certification;

2. determination of the common design, knowledge and warning issues;

3. resolution of any aggregate questions properly capable of common treatment; and

4. determination of individual causation, limitation and damages questions.

The plan need not predict every procedural detail years in advance.

But it must show that certification will produce a manageable process rather than postpone chaos.

This is particularly important because the proposed class is national.

35. A National Class Is Not Automatically Unmanageable

The existence of class members outside Ontario does not itself defeat certification.

But it creates practical issues involving:

• notice;

• individual claims;

• differing factual circumstances;

• potentially applicable provincial law; and

• coordination with any proceedings elsewhere.

Those difficulties should be addressed in the litigation plan.

The fact that 7,600 of the 18,400 affected units were sold in Ontario gives the proceeding a substantial Ontario centre of gravity.

Still, the plaintiffs should be prepared to refine the class or subclasses if materially different provincial legal issues threaten manageability.

36. Certification Is Plausible, but the Class May Require Refinement

The plaintiffs have a substantial certification case.

Their strongest points are:

• an objectively identifiable product class;

• common design architecture;

• common corporate knowledge evidence;

• common warning conduct;

• economically impractical individual replacement claims;

• and limitations in Aquila’s voluntary program.

Aquila’s strongest points are:

• substantial individual causation issues;

• varied installations;

• differing damage types;

• individual limitation questions; and

• the possibility that the common issues do not predominate sufficiently for some claims.

The most likely outcome is not necessarily:

certify exactly as pleaded

or

refuse certification entirely.

The court may refine:

• the class definition;

• subclasses;

• representative plaintiffs;

• common issues; or

• litigation plan

to produce a workable proceeding.

Preservation and Interlocutory Relief

37. The Plaintiffs Have a Strong Basis to Seek Urgent Court Intervention

The firmware update and routine deletion policies threaten evidence before certification is determined.

The fact that the plaintiffs have not yet been certified does not necessarily mean the court must allow potentially material evidence to disappear while preliminary motions are pending.

The purpose of interlocutory relief is to preserve the ability of the court ultimately to determine rights effectively.

The relevant framework includes Rule 40, the Courts of Justice Act, and the principles associated with RJR-MacDonald.

The court should focus on what temporary relief is necessary to protect the proceeding without unnecessarily interfering with legitimate business and safety measures.

38. There Is Clearly a Serious Issue to Be Tried

The serious-issue threshold is readily met.

The proceeding alleges that an electronic controller common to thousands of units may overheat.

Internal documents provide some factual basis for that allegation.

Certification, jurisdiction and liability remain contested, but the case is not frivolous or vexatious.

The plaintiffs therefore cross the first threshold without difficulty.

39. Destruction of Unique Diagnostic Data Could Cause Irreparable Prejudice

Historical controller data may reveal:

• temperature patterns;

• frequency of error codes;

• cycling behaviour;

• similarities between failed and non-failed units.

Once automatically overwritten or deleted, the data may not be reconstructable.

That loss is difficult to compensate with money after the fact because its evidentiary value cannot necessarily be recreated.

The plaintiffs therefore have a substantial argument that destruction of the data would cause irreparable litigation prejudice.

The same reasoning potentially applies to unique engineering prototypes that cannot later be replaced.

40. The Plaintiffs Should Not Seek to Stop a Genuine Safety Update Merely to Preserve Evidence

Aquila’s strongest point is public safety.

If the firmware update reduces a real overheating risk, an order simply prohibiting the update could expose homeowners to avoidable danger.

That would be a poor procedural result.

But the plaintiffs do not necessarily need such an order.

Their requested relief expressly permits safety measures that do not destroy relevant evidence.

The court can therefore distinguish between:

• preserving information; and

• preventing remediation.

This is precisely the sort of situation in which tailored interlocutory relief is preferable to an unnecessarily broad injunction.

41. A Preservation-and-Copying Order Is Likely More Proportionate Than an Update Ban

Aquila may be required to:

• preserve existing server records;

• copy diagnostic data before reset;

• suspend automatic deletion of relevant material; and

• document the effect of the update.

That approach protects the evidentiary record while allowing the safety measure to proceed.

If technical evidence shows that preserving all data is extraordinarily burdensome, the court can refine the categories or require sampling.

But Aquila’s proposal to preserve data only from the 71 known failure units may be inadequate where the plaintiffs’ theory requires comparison between failed and non-failed devices.

A representative dataset may be necessary.

42. Rosenfeld’s Jurisdiction Challenge Does Not Necessarily Prevent Temporary Preservation Relief

Rosenfeld argues that it should not be compelled to preserve hundreds of prototypes before the court decides whether Ontario has jurisdiction over it.

That concern deserves weight.

A court should avoid imposing unnecessary burdens on a foreign defendant whose jurisdictional objection remains unresolved.

But the jurisdiction motion is only two weeks away.

The requested preservation obligation is temporary.

If the samples are destroyed now and Ontario later assumes jurisdiction, the loss cannot be reversed.

This strongly supports a narrow interim preservation order maintaining the status quo until the jurisdiction motion is determined.

Such an order need not prejudge the ultimate jurisdiction issue.

43. Preserving Only 20 Rosenfeld Samples May Be Insufficient

Rosenfeld offers to keep 20 randomly selected samples.

Whether that is enough depends upon the technical evidence.

The court should not assume that every retained component is uniquely important.

Proportionality matters.

At the same time, if the samples represent:

• different production lots;

• different controller versions;

• different testing conditions; or

• different Canadian-bound shipments,

destroying the remainder before expert assessment could materially impair the case.

The sensible solution is likely a short-term preservation order followed by a more informed protocol developed with expert input.

44. The Balance of Convenience Favours Tailored Preservation

The plaintiffs face potentially irreversible evidentiary loss.

The defendants face storage, technical and administrative costs.

Aquila also identifies safety concerns.

Those competing interests can largely be reconciled.

The firmware update can proceed after data preservation.

Rosenfeld can preserve the prototypes temporarily rather than indefinitely.

The litigation is large enough that reasonable preservation costs are not disproportionate merely because they are inconvenient.

Accordingly, the balance of convenience favours narrowly tailored preservation relief rather than either total refusal or an unnecessarily broad prohibition.

Procedural Sequencing and Case Management

45. Rosenfeld’s Jurisdiction Motion Should Be Resolved Early

A foreign defendant should not ordinarily be forced through the full expense of a class-certification process before the court determines whether it possesses jurisdiction over that defendant.

The jurisdiction question is logically anterior to the merits of the proposed class claim against Rosenfeld.

Resolving it first also avoids unnecessary certification evidence and argument if Rosenfeld ultimately succeeds.

The existing schedule—jurisdiction motion two weeks before certification—is therefore sensible.

46. Early Jurisdiction Determination Does Not Require Procedural Paralysis

Rosenfeld overstates the point if it argues that nothing at all can occur until its jurisdiction motion is decided.

Courts possess procedural authority to manage litigation fairly and efficiently.

Temporary orders may sometimes be necessary precisely to preserve the subject matter of a dispute while an anterior issue is being determined.

A short preservation order does not necessarily amount to deciding the merits or requiring Rosenfeld to litigate certification.

The court can explicitly provide that compliance is without prejudice to Rosenfeld’s jurisdiction objection.

47. Proportionality Should Shape the Entire Pre-Certification Process

Rule 1.04 requires the Rules to be applied in a manner that promotes the just determination of proceedings on their merits and reflects proportionality.

That matters at every stage here.

The court should avoid:

• duplicative expert evidence;

• unnecessary document production;

• broad preservation demands disconnected from actual issues; and

• procedural sequencing that requires the same evidence to be litigated repeatedly.

At the same time, proportionality does not mean choosing the cheapest process regardless of fairness.

A low-cost process that destroys crucial evidence or prevents meaningful determination of a national claim is not proportionate in any useful sense.

48. Hryniak’s “Culture Shift” Has Broader Procedural Significance

Although Hryniak v. Mauldin arose in the summary-judgment context, its access-to-justice emphasis reinforces a broader procedural principle: courts should favour fair, proportionate and efficient procedures capable of producing just results.

That idea supports active management here.

Rather than allowing the parties to litigate every procedural issue in isolation, the court can coordinate:

• jurisdiction;

• preservation;

• certification;

• expert evidence; and

• any later individual-issues process.

The goal is not procedural minimalism.

It is procedural design proportionate to the dispute.

49. The Certification Court Should Avoid Deciding Marielle’s Limitation Defence Prematurely Unless the Record Permits It

Aquila may attempt to turn certification into a final determination that Marielle’s claim is statute-barred.

That is not automatically appropriate.

Certification is not ordinarily a merits trial.

If the limitation issue can be decided on an adequate record through an appropriate procedural motion, Aquila may pursue that route.

But if the discovery date depends upon factual inferences concerning what Marielle reasonably knew in 2023, the court should be cautious about conclusively resolving it merely as an incident of certification.

For certification purposes, the immediate question is whether the individual defence undermines Marielle’s ability to act as representative plaintiff or the manageability of the class.

Those are related but distinct questions.

50. Individual Limitation Issues Can Potentially Be Managed After the Common Issues Trial

Different class members will have discovered their claims at different times.

Some may have suffered fires years earlier.

Others may first have incurred replacement costs after October 2025.

That variation makes a single class-wide limitation answer unlikely.

But individual limitations questions can potentially be dealt with through:

• later individual hearings;

• claims processes;

• subclasses;

• agreed factual categories; or

• other case-management techniques.

The existence of individual limitation issues therefore weighs against commonality and preferability but does not necessarily defeat certification.

51. The Court Should Consider Whether the National Class Needs Further Subdivision

The current subclasses distinguish between physical-damage and replacement-cost claims.

That may not be enough.

Depending upon the record, additional distinctions may be necessary between:

• different controller versions;

• different provincial legal regimes;

• personal-injury and property-damage claims; or

• claims subject to materially different limitation questions.

The court should not create subclasses merely for organizational neatness.

Each subclass should correspond to a genuine divergence in legal or factual interests.

52. The Proceeding Should Be Designed Around the Issues That Actually Benefit From Collective Resolution

The procedural strength of the plaintiffs’ case lies in the common corporate questions.

The litigation should therefore be structured to answer those questions efficiently.

For example:

Was there a common defect?

What did Aquila and Rosenfeld know?

When did they know it?

Were class-wide steps taken in response?

Was the January 2024 communication adequate?

If those questions are resolved for the class, later individual proceedings can focus on:

• whether a particular unit malfunctioned;

• causation;

• limitation periods; and

• damages.

That separation is far more defensible than attempting to decide every homeowner’s entire claim in a single common trial.

53. The Voluntary Program May Continue, but Communications With Proposed Class Members Require Care

Aquila is not automatically prohibited from operating a voluntary compensation program merely because a proposed class action exists.

However, the program requires owners to release claims.

That creates a potential procedural concern where communications may affect the rights of proposed class members while certification is pending.

The court has an interest in ensuring that the proposed proceeding is not undermined through misleading, coercive or confusing communications.

Nothing in the facts establishes misconduct.

The appropriate response is therefore not necessarily to prohibit the program.

But class counsel may seek appropriate directions if communications fail clearly to explain:

• the existence of the proposed proceeding;

• the scope of the release; and

• the consequences of accepting compensation.

The broader principle is that procedural fairness to absent class members matters even before the class action reaches a final determination.

54. The Most Efficient Immediate Sequence Is Clear

The best procedural sequence is likely:

First, obtain temporary preservation relief sufficient to ensure that potentially important evidence is not destroyed.

Second, determine Rosenfeld’s jurisdiction motion promptly.

Third, proceed to certification on a record that reflects which defendants are properly before the court.

Fourth, if certification is granted, develop a case-management plan focused initially on the genuinely common liability issues.

That sequence protects evidence without requiring Rosenfeld to litigate the full certification motion before jurisdiction is decided.

It also prevents the certification hearing from being destabilized by an unresolved threshold dispute about one of the principal defendants.

Overall Assessment

55. Marielle’s Limitation Position Is Defensible but Should Not Be Treated as Risk-Free

Aquila has a serious argument that Marielle suspected the Horizon H8 from the outset.

But suspicion of a possible product cause is not necessarily equivalent to discovery of a claim.

The strongest pre-November 17, 2023 evidence remained expressly inconclusive and identified several competing causes.

Marielle therefore has a substantial argument that the statutory discovery threshold had not yet been crossed.

The March 2024 electrician’s report provides a more realistic later discovery point and would leave the claim timely.

Her position is therefore stronger than Aquila suggests, although the limitation issue remains genuine.

56. Ontario Likely Has Jurisdiction Over Rosenfeld

Rosenfeld’s foreign location and indirect distribution model create a serious jurisdiction argument.

But the alleged tort manifested in Ontario through a product intentionally created for a Canadian market in which Ontario was a substantial destination.

The physical damage occurred here.

The claims against Aquila and Rosenfeld substantially overlap.

Germany is a legitimate alternative forum, but Rosenfeld will likely have difficulty establishing that it is clearly more appropriate than Ontario.

57. Certification Is Strongest If the Plaintiffs Narrow the Case to Truly Common Questions

The plaintiffs have a credible class action.

The proposed design-defect, knowledge and warning issues are capable of common determination.

The smaller replacement claims strongly engage access to justice.

Aquila’s voluntary program does not provide equivalent relief.

But the property-damage claims contain significant individualized causation issues, and the current Ontario preferability requirements make those differences important.

The plaintiffs should therefore resist overreaching.

A carefully defined class, meaningful subclasses, tightly drafted common issues and a credible individual-issues plan are essential.

58. Preservation Relief Should Be Granted in a Tailored Form

The plaintiffs should not obtain an order that unnecessarily prevents Aquila from implementing a safety update.

They have a much stronger basis for requiring preservation before that update occurs.

Similarly, Rosenfeld should not be required immediately to maintain every prototype forever.

It should likely be required to preserve potentially relevant Canadian-production samples at least until jurisdiction and a proper preservation protocol can be addressed.

The objective is preservation, not punishment.

59. The Litigation Calls for Active Case Management

This dispute contains:

• a foreign defendant;

• a national proposed class;

• individualized limitation issues;

• competing expert evidence;

• urgent preservation concerns; and

• a certification motion.

Allowing each procedural dispute to unfold independently would risk unnecessary duplication and cost.

The court should use proportionality and active case management to sequence the proceeding around threshold and common issues.

That is the strongest route to a process that is both fair and realistically accessible.

Brickam’s Suggested Marking Approach

Issue	What a strong answer should address	Marks
Marielle — basic limitation framework	Limitations Act, 2002; two-year basic period; statutory discovery; distinction between date of loss and discovery of claim	5
Marielle — application of discoverability	September 2023 fire; fire report; installer and Aquila responses; request for legal advice; March 2024 electrician report; October 2025 internal documents; certainty versus knowledge; competing inferences	9
Appropriate means / Peixeiro	Proper role of “appropriate means”; ongoing investigation versus true impediment; claimant need not know legal theory or possess complete evidence; practical application	4
Effect of Marielle’s limitation defence on representation	Individual defence versus class interests; adequacy of representation; possibility of replacement/additional representative; distinction between merits and certification	3
Rosenfeld — jurisdiction simpliciter	Van Breda framework; presumptive connecting factors; carrying on business; tort committed in Ontario; deliberate Canadian distribution; Ontario damage; ability to rebut connection	10
Rosenfeld — service outside Ontario	Relationship between service ex juris and asserted Ontario connection; actual notice does not itself create jurisdiction; procedural significance of proper service	3
Forum non conveniens	Distinct inquiry; burden on Rosenfeld; clearly more appropriate forum; German witnesses/records versus Ontario injuries, Aquila proceeding, fragmentation and efficiency	8
Certification — cause of action and identifiable class	Procedural nature of certification; assumed causes of action; objective class definition; response to breadth concerns	5
Certification — common issues	Hollick/Rumley principles; common design architecture; knowledge and warning issues; two controller versions; individual causation; meaningful advancement of claims	10
Certification — preferability	Current CPA framework; superiority and predominance; access to justice, judicial economy and behaviour modification; AIC Fischer; practical comparison of alternatives	10
Horizon Resolution Program	Speed and accessibility versus compensation limits, internal decision-making, release, lack of appeal and incomplete relief; significance to preferability	5
Subclasses / representative plaintiffs / litigation plan	Distinct claim types; Marielle and Rémi; possible conflicts; subclasses; manageability; national class; plan for individual causation, limitations and damages	7
Interlocutory preservation — legal framework	Rule 40/Courts of Justice Act; RJR-MacDonald framework; serious issue; irreparable evidentiary prejudice; balance of convenience	5
Aquila data and firmware update	Importance of diagnostic data; irreversibility; public-safety justification; narrower preservation/copying order; proportionality	5
Rosenfeld prototype preservation	Pending jurisdiction objection; temporary status quo; sampling proposal; proportionality; inability to recreate destroyed evidence	4
Procedural sequencing and case management	Jurisdiction before full certification; ability to grant preservation without prejudging jurisdiction; proportionality under r. 1.04; coordination of motions; Hryniak culture-shift principles	6
Overall practical organization and conclusions	Distinguishes threshold, certification and individual issues; proposes sensible sequence and tailored procedural solutions rather than overbroad relief	1
TOTAL		100