This certified class action is brought against BMW AG and BMW Canada, on behalf of thousands of Canadian owners and lessees of certain 2002-2008 model year MINI Cooper vehicles which contain allegedly defective power steering systems.
The opt-out deadline for this action has now closed, and no further opt-outs will be accepted. If you have questions, please do not hesitate to contact us using the form at the bottom of the “Ask a Question” tab.
Status of Action
On April 2, 2020, Justice Perell of the Ontario Superior Court of Justice certified this action as a class proceeding. Certification means that the Court has allowed this action to move forward and to be prosecuted as a class action – it does not mean that there has been a resolution of the lawsuit. At this time, no decision has been made by the Court about whether the defendants are liable, and no settlement has been reached. Further notices will be distributed to the Class Members if there is a judgment from the Court or a settlement is reached.
Case Overview
Waddell Phillips Professional Corporation and Podrebarac Barristers Professional Corporation are Class Counsel in this certified class action against BMW Canada and its parent company, BMW AG.
The class includes all persons or entities in Canada who are or were owners or lessees of:
(i) a 2002, 2003, 2004, 2005 or 2006 model year MINI Cooper or MINI Cooper S; or
(ii) a 2005, 2006, 2007 or 2008 model year MINI Cooper Convertible or MINI Cooper S Convertible, (collectively, the “Class Cars”),
and their estates, executors, successors or assigns (the “Class Members”).
The class action alleges that the power steering system in the Class Cars contain dangerous defects that can cause a sudden and unexpected loss of power steering, potentially resulting in a crash causing property damage or personal injury; and/or component smouldering, potentially resulting in vehicle fires. Accordingly, the class action claims that the defendants are liable for: negligent design, manufacture and distribution, failure to warn that the Class Cars were dangerously defective, and failure to recall a dangerously defective product.
The representative plaintiff is the owner of a 2003 MINI Cooper, one of over 16,600 Class Cars which were sold in Canada.
Despite recalling some of the Class Cars in the U.S. and in the U.K., BMW has failed to initiate any Canadian recall to repair the Class Cars’ power steering systems. Instead, BMW Canada has provided only a limited warranty extension on the power steering pump and pump cooling fan for some of the Class Cars, with no relief or repairs offered for the other Class Cars. Under the extended warranty, BMW Canada agreed to repair the power steering system defects only if a power steering failure manifests before the expiration of the warranty time or mileage limit, with no reimbursement of previously incurred repair costs.
The class action seeks reimbursement for everyone who paid for the repairs to the power steering system themselves, and to compensate Class Members for the cost of having the repairs completed now. It also seeks damages for any injuries or damages suffered as a result of the power steering system defects.
If you are a Class Member, there is no cost to you to participate in this class action. The lawyers are working on a contingency fee arrangement, and will only be paid from the proceeds of the litigation, if successful.
Contact Us
If you are a current or former owner or lessee of a Class Car, you may be eligible for compensation. For more information, please email us at reception@waddellphillips.ca or complete our secure online form located under the “Ask a Question” tab. Your information will be kept strictly confidential and will be used only to communicate with you regarding this action and to assist with the prosecution of the action.
The opt-out deadline for this action has now closed, and no further opt-outs will be accepted. If you have questions, please do not hesitate to contact us using the form at the bottom of the “Ask a Question” tab.
Status of Action
On April 2, 2020, Justice Perell of the Ontario Superior Court of Justice certified this action as a class proceeding. Certification means that the Court has allowed this action to move forward and to be prosecuted as a class action – it does not mean that there has been a resolution of the lawsuit. At this time, no decision has been made by the Court about whether the defendants are liable, and no settlement has been reached. Further notices will be distributed to the Class Members if there is a judgment from the Court or a settlement is reached.
Case Overview
Waddell Phillips Professional Corporation and Podrebarac Barristers Professional Corporation are Class Counsel in this certified class action against BMW Canada and its parent company, BMW AG.
The class includes all persons or entities in Canada who are or were owners or lessees of:
(i) a 2002, 2003, 2004, 2005 or 2006 model year MINI Cooper or MINI Cooper S; or
(ii) a 2005, 2006, 2007 or 2008 model year MINI Cooper Convertible or MINI Cooper S Convertible, (collectively, the “Class Cars”),
and their estates, executors, successors or assigns (the “Class Members”).
The class action alleges that the power steering system in the Class Cars contain dangerous defects that can cause a sudden and unexpected loss of power steering, potentially resulting in a crash causing property damage or personal injury; and/or component smouldering, potentially resulting in vehicle fires. Accordingly, the class action claims that the defendants are liable for: negligent design, manufacture and distribution, failure to warn that the Class Cars were dangerously defective, and failure to recall a dangerously defective product.
The representative plaintiff is the owner of a 2003 MINI Cooper, one of over 16,600 Class Cars which were sold in Canada.
Despite recalling some of the Class Cars in the U.S. and in the U.K., BMW has failed to initiate any Canadian recall to repair the Class Cars’ power steering systems. Instead, BMW Canada has provided only a limited warranty extension on the power steering pump and pump cooling fan for some of the Class Cars, with no relief or repairs offered for the other Class Cars. Under the extended warranty, BMW Canada agreed to repair the power steering system defects only if a power steering failure manifests before the expiration of the warranty time or mileage limit, with no reimbursement of previously incurred repair costs.
The class action seeks reimbursement for everyone who paid for the repairs to the power steering system themselves, and to compensate Class Members for the cost of having the repairs completed now. It also seeks damages for any injuries or damages suffered as a result of the power steering system defects.
If you are a Class Member, there is no cost to you to participate in this class action. The lawyers are working on a contingency fee arrangement, and will only be paid from the proceeds of the litigation, if successful.
Contact Us
If you are a current or former owner or lessee of a Class Car, you may be eligible for compensation. For more information, please email us at reception@waddellphillips.ca or complete our secure online form located under the “Ask a Question” tab. Your information will be kept strictly confidential and will be used only to communicate with you regarding this action and to assist with the prosecution of the action.
We are currently in the “discovery” stage of the litigation. This involves each side exchanging their relevant documents, followed by oral examinations (“depositions” in US/TV jargon). The discovery stage in a class action lawsuit like this tends to be lengthy and complex, because BMW is required to produce documents relating not only to the alleged defects, but also about BMW’s knowledge of, and response to, the alleged defects. So far, BMW Canada and its German parent company, BMW AG, have produced over 20,000 documents, but the parties have been unable to agree on the terms of a discovery plan setting out each party’s responsibilities in relation to the discovery process clearly.
The parties are currently in the midst of two motions (i.e. legal disputes) related to BMW’s responsibilities to produce relevant information and to finalizing the discovery plan:
Our case management judge, Justice Perell, rendered his decision in the Data Protection Motion on November 16, 2022. He ordered BMW AG to produce a revised list of its documents, with all PII included and unredacted, unless it is not relevant to any issue in the litigation, it would cause significant harm to BMW, or it would infringe the interests of a person whose personal information is being disclosed. We believe there are some key errors in Justice Perell’s decision and have served a motion seeking leave (the Court’s permission) to appeal it to the Divisional Court.
The Discovery Plan / AOD Motion has been delayed, since the result of the Data Protection Motion meant that BMW AG had to deliver a revised set of documents. We received those documents on March 1, 2023, and are now in the process of reviewing them. Depending on the results of our review, the Discovery Plan / AOD Motion may or may not proceed.
We have learned that there was a delay in distributing the Notice of Certification by mail to some Class Members, and that these Class Members did not receive the Notice until after the November 5, 2020, deadline for opting out of the action had already passed. We apologize sincerely for this error.
We have obtained a Court order to extend the opt-out deadline for those individuals who received the delayed mailing until December 20, 2020. If you are one of the people who was affected by this error, and you wish to exclude yourself from this class proceeding, please contact the Notice Administrator by no later than December 20, 2020 to confirm that you wish to exclude yourself from this class proceeding. A further notice will be mailed to the affected individuals as quickly as possible.
If you have any questions that are not answered by this website, please do not hesitate to contact us using the form at the bottom of the “Ask a Question” tab.
The action was certified on April 2, 2020. The Reasons for Decision (Certification) of Justice Perell can be found on the “Documents” page.
Additional updates will be posted as the class action progresses.
Frequently Asked Questions
Q1. How do I join this class action?
A: If you fall within the class definition, then you are automatically included as a class member. The class definition is:
All persons or entities in Canada who are or were owners or lessees of:
and their estates, executors, successors or assigns.
Please note:
Q2. Do I have to pay to be a class member?
A: There is no upfront cost or charge to class members. Class Counsel are working on a contingency fee basis, which means that they only get paid if the class action is successful in recovering money for the class members. The fees that Class Counsel will be paid, and the amount they will be reimbursed for the expenses that they incur in running the case (disbursements), will have to be approved by the court before Class Counsel are paid.
Class members are not at risk of having to pay any adverse court costs award. Only the representative plaintiffs are liable for court costs awards. But in any case, in this case, the action has the backing of the Ontario Class Proceedings Fund. The Fund has agreed that it will indemnify the representative plaintiff if there are any adverse costs awards. It also is paying for some of the disbursements. If the action is successful in recovering money for the class members, the Fund will be repaid the disbursements that it paid, and will be paid a levy equal to 10% of the net recovery, after the deduction of legal fees and repayment of the disbursements.
Q3. When will I get my money from the class action?
A: The action is in the early stages. Many steps still need to be taken, including document exchange and examinations for discovery (depositions) of the parties; so the action is likely still several years away from a trial date.
We cannot say whether the defendants agree to settle the claim before trial. Any settlement with the defendants will be subject to court approval. If there is a settlement with the defendants, then notice will be provided to the class about the settlement and, if applicable, how to make a claim. At this stage, it is premature to speculate whether this may happen.
Q4. My power steering pump was repaired/replaced and I did not have to pay out-of-pocket. Am I still allowed to be in this class action?
A: Yes. The class action seeks compensation for everyone who paid for the repairs to the power steering system themselves, and to compensate Class Members for the cost of having the repairs completed now. It also seeks damages for any injuries or damages suffered as a result of the power steering system defects. In addition, punitive damages are being claimed.
If your power steering pump has already been repaired/replaced and you did not have to pay out-of-pocket, and there is a settlement or judgment, you will not be eligible to receive any compensation for repair costs, but may still be eligible to receive compensation for the other types of damages being claimed.
Q5. My Class Vehicle had a problem with the power steering and I had to get it fixed, but I didn’t keep a copy of the repair record. What should I do?
A: Your mechanic who performed the repair should still have a record of the repair work that was done on the vehicle. You should contact the mechanic and ask for a copy of the repair records, and keep these in a safe place, as you may need them to prove your losses when the action either settles or if it is successful at trial.
Q6. My Class Vehicle has never experienced any problems with the power steering. Am I still allowed to be in this class action?
A: Yes. See answer to Q4 above. If there is a settlement or judgment, you will not be eligible to receive any compensation for injuries or damages suffered as a result of the power steering system defects (since you did not suffer any), but you may still be eligible to receive compensation for the other types of damages being claimed.
Q7. My parent (or other family member) owned or leased a Class Vehicle, but they have now died or are incapacitated. Can I make a claim of their behalf?
A: The person who is the Estate’s executor or who has a power of attorney for property can take the place of a class member. To do so, they must produce a document such as a grant of probate, or a will and proof of death, or the power of attorney and proof of the class member’s incapacity, along with their own personal identification, and then we can update our records to name the executor or attorney as the class member’s representative.
Q8. Should I send you my documents relating to my Class Vehicle?
A: No, you should not send us your documents right now (other than estate paperwork, as described above). You should gather all of your documents relating to your Class Vehicle, particularly any documents relating to power steering issues or repairs, and put them in a safe place where you will be able to find them easily. You may have to produce some of those documents to prove that you are a class member, and—if there is a settlement, or the action succeeds at trial— to prove the extent of your losses.
Q9. I received the notice about this class by mail or email. How did you get my contact information?
A: Class Counsel obtained permission from the court to use BMW’s database of class members and their current contact information, so that they could provide the best direct notice possible about this class action. If you received the notice by mail or email, then your name was in BMW’s database, or you previously provided your contact information directly to Class Counsel. We will never use your contact information for any purposes unrelated to this lawsuit.
Q10. I know other people who currently or formerly owned or leased Class Cars but they didn’t get the notice about certification.
A: We want as many people as possible to learn about the class action and that it has been certified. Please let those people know about the certification of the class action, either by forwarding a copy of the notice to them, or directing them to Class Counsel’s website. Please encourage them to contact Class Counsel or the Notice Administrator, and give them their contact information, so they will receive any future notices. Unfortunately, due to privacy concerns, we will not take these other individuals’ contact information from another person without their consent.
Q11. I had a car fire in my Class Car, but I don’t know if it was related to a power steering problem.
A: Please contact Class Counsel to discuss the car fire you experienced, whether you know or do not know if it was related to the power steering system. They have a secure portal on their website at www.miniclassaction.ca, which you can use to contact them.
We review every inquiry we receive and will respond promptly to case specific inquiries.
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