Thorne v. Hudson Estate
[Indexed as: Thorne v. Hudson Estate]
Ontario Reports
Court of Appeal for Ontario
Hoy A.C.J.O., Gillese and D.M. Brown JJ.A.
March 10, 2017
136 O.R. (3d) 797 | 2017 ONCA 208
Case Summary
Conflict of laws — Choice of law — Plane crashing in New York State in course of flight from Ontario to Delaware after losing power in one engine — Pilots' estates suing companies that inspected and maintained engine and manufacturer of engine — Inspection and maintenance companies asserting third party and cross-claims against manufacturer — Motion judge not erring in finding that Ontario law applied to claims against manufacturer as crux of those claims was negligent misrepresentation in repair instructions from manufacturer which were received and relied on in Ontario.
A twin-engine plane lost power in its left engine during a flight from Ontario to Delaware and crashed in New York State. The pilots' estates brought an action in Ontario against ATC and CAR, the companies that inspected and maintained the engine, and against CMI, the manufacturer of the engine. ATC and CAR asserted third party and cross-claims against CMI. CMI moved for summary judgment on the basis that the claims against it were barred by the United States General Aviation Revitalization Act of 1994. The motion judge found that the law of Ontario applied to the proceedings. The motion was dismissed. CMI appealed.
Held: The appeal should be dismissed.
The law to be applied in torts is the law of the place where the activity occurred. The motion judge did not err in finding that the crux of the claims against CMI was negligent misrepresentations made in repair instructions which were periodically published by CMI and which were received and relied on in Ontario. As a result, Ontario law applied.
Cases and Legislation Cited
Cases Applied:
Other Cases Referred To:
- Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir. 2008)
- Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, 117 O.R. (3d) 313
Statutes Referred To:
Counsel
Hilary C. Book, for appellants.
Timothy B. Trembley, Robert J. Fenn and Ashleigh L. Tomlinson, for respondents.
Judgment
APPEAL from the judgment of E.M. Morgan J. (2016), 134 O.R. (3d) 301, [2016] O.J. No. 4655, 2016 ONSC 5507 (S.C.J.) dismissing a motion for summary judgment.
Endorsement
1During the course of a flight from Oshawa, Ontario to Wilmington, Delaware in May 2007, a twin-engine Beech aircraft lost power in its left engine. The plane crashed shortly after aborting an attempted emergency landing at an airfield in Dunkirk, New York. The two pilots and the passenger were killed.
2The estates of the deceased commenced actions. The action by the passenger's estate has settled. The trial of the claims by the pilots' estates is scheduled to be heard next January 2018, in Toronto.
3The estates are suing the companies that inspected and maintained the engine -- the respondents, 1205055 Ontario Limited c.o.b. Aviation Technical Consultants ("ATC") and Corporate Aircraft Restorations Inc., together with its employee, Maurice Nesbitt (collectively, "CAR"). As well, the estates are suing the manufacturer of the engine, the appellant Continental Motors, Inc. ("CMI", formerly known as Teledyne Continental Motors Inc. and Teledyne Technologies Incorporated).
4ATC and CAR assert third party and cross-claims against CMI alleging (i) the improper design and manufacture of the engine and replacement parts, (ii) misleading repair instructions and (iii) the failure to warn about certain engine failures.
5Following the conclusion of examinations for discovery, CMI moved for summary judgment on the basis that the claims asserted against it were barred by the United States federal General Aviation Revitalization Act of 1994 ("GARA"), Pub.L. No. 103-298, 108 Stat. 1552 (codified at 49 U.S.C. 40101 notes). In general terms, GARA bars a civil action against an aircraft manufacturer for damages for deaths arising out of an accident involving an aircraft which is brought more than 18 years after the date of delivery of the aircraft to its first purchaser. In the present case, there is no dispute CMI originally delivered the aircraft in early 1968. CMI argued that since the aircraft crashed in New York State, GARA applied and barred the various claims against it.
6The motion judge dismissed CMI's summary judgment motion and declared Ontario law applies to these proceedings. CMI appeals.
Analysis
7The parties agree the motion judge correctly concluded that the principles set out in Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022 govern the choice of law in tort. In Tolofson, the Supreme Court of Canada held, at p. 1050 S.C.R., that "the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti".
8CMI submits the tortious activity occurred in New York State, where the plane crashed. ATC and CAR contend the crux of their claims against CMI involve allegations of negligent misrepresentations contained in the repair instructions CMI periodically published to the respondents and which they followed to repair and maintain the engine. Pointing to the decision of this court in Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, 117 O.R. (3d) 313, at para. 34, that the tort of negligent misrepresentation occurs where the misinformation is received or acted upon, they submit the tortious activity occurred in Ontario, where they received CMI's repair instructions and performed maintenance on the engine.
9After carefully reviewing the pleadings, the motion judge concluded, at para. 31, that:
The crux of the claims and cross-claims against CMI is not negligence in the production of the engine that malfunctioned . . . Rather, the claims against CMI are in the nature of negligent misrepresentation, and take aim at the allegedly faulty instructions issued by CMI from time to time in the form of bulletins and manuals for the repair and overhaul of its engine.
10We see no palpable and overriding error in that characterization of the "crux" of the claims against CMI. ATC and CAR squarely plead misrepresentation and the failure to warn against CMI.
11Given that characterization of the "crux" of the claims against CMI, it follows that we see no palpable and overriding error in the motion judge's conclusion that Ontario law applies to the negligent misrepresentation claims.
12Moreover, the record does not support CMI's argument that GARA would bar the claims against it in the event New York law applied. In his reasons, the motion judge referred to the two expert opinions adduced on the scope of GARA. Both experts considered the decision of the United States Court of Appeals, Ninth Circuit, in Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (2008). In that decision, at para. 8, the Ninth Circuit Court of Appeals stated:
GARA only regulates the ability of a party to seek compensation from general aviation airplane manufacturers in American courts. See GARA 2(a). It is not a statute governing the substantive standards involved in tort claims. GARA merely eliminates the power of any party to bring a suit for damages against a general aviation aircraft manufacturer, in a U.S. federal or state court, after the limitation period. The only conduct it could arguably be said to regulate is the ability of a party to initiate an action for damages against a manufacturer in American courts -- an entirely domestic endeavor. Congress has no power to tell courts of foreign countries whether they could entertain a suit against an American defendant. It would be up to any foreign court to determine whether it wanted to apply GARA to litigation occurring within its borders.
(Emphasis added)
13In light of the Ninth Circuit's interpretation about the limits of GARA's application, we see no palpable and overriding error in the motion judge's conclusion, at para. 36, that "this is not a case where CMI deserves judgment based on an application of GARA".
Disposition
14For the reasons set out above, we would dismiss the appeal. The parties agree that ATC and CAR, as the successful parties, are entitled to their costs of the appeal in the amount of $12,000 each, inclusive of HST and disbursements.
Appeal dismissed.
End of Document