DATE: 20060613

DOCKET: C44414

COURT OF APPEAL FOR ONTARIO

RE: Guarantee Company of North America and Ramona Stevenson (Plaintiffs/Appellants) v. Mercedes-Benz Canada Inc. and 872063 Ontario Limited, O/A Kennedy M.B. Auto Body (Defendants/Respondents)

BEFORE: Doherty, Blair and LaForme JJ.A.

COUNSEL: Greg Van Berkel for the appellants Jason Murphy for the respondent, Mercedes-Benz and Jonathon Kahane-Rapport for the respondent, 872063 Ontario Limited

HEARD & ENDORSED: June 9, 2006

On appeal from the judgment of Justice Jenkins of the Superior Court of Justice dated September 28, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] There is arguable merit to the appellants’ claim that the result and reasoning in Karakas et al. v. General Motors of Canada Ltd. (2004), 2004 48168 (ON SC), 74 O.R. (3d) 273, aff’d, [2005] O.J. No. 24621 (C.A.) is at odds with the principles enunciated in Heredi v. Fensom, [2004] 2 S.C.R. 741. We are not, however, asked to overrule Karakas.

[2] We cannot agree with the appellants’ valiant attempts to distinguish Karakas. Nor do we agree that the motion judge found that the automobile was “ancillary” to the damage caused. The motion judge found that he was bound by Karakas. We agree. This case cannot be distinguished from Karakas. Appeal dismissed.

[3] Costs to the respondent, Mercedes Benz Canada Inc., in the amount of $5,000, inclusive of disbursements and GST.