Court of Appeal for Ontario
CITATION: Longley v. General Motors of Canada Limited, 2009 ONCA 627
DATE: 20090828
DOCKET: C48646
Laskin, Armstrong and Lang JJ.A.
BETWEEN
Audrey Longley
Plaintiff (Respondent/Appellant by way of cross-appeal)
and
General Motors of Canada Limited and Gillespie Pontiac Buick Cadillac Ltd.
Defendants (Appellants/Respondents by way of cross-appeal)
Robert B. Bell and Paulette Pommells, for the appellants/respondents by way of cross-appeal
D. Joel Dick and Brian A. Pickard, for the respondent/appellant by way of cross-appeal
Heard: January 7, 2009
On appeal and cross-appeal from the order of Justice Joseph R. Henderson of the Superior Court of Justice dated March 17, 2008.
Laskin J.A.:
A. OVERVIEW
[1] The sole question on this appeal by General Motors is whether the plaintiff’s action is for “damages occasioned by a motor vehicle” and, therefore, barred by the two-year limitation period under s. 206(1) of the Highway Traffic Act, R.S.O. 1990 c. H-8 (“HTA”).
[2] The plaintiff, Audrey Longley, parked her GMC pick-up truck in a motel parking lot. She stood on the rear bumper to reach for her jacket, which was inside the truck. As she did so, the rear tailgate of the truck collapsed. Ms. Longley fell to the ground and fractured her wrist. She claims that the tailgate collapsed because it had a defective latch mechanism. She brought an action against General Motors under the Simplified Procedure[^1] for damages for defective design and manufacture of the latch mechanism.
[3] The accident occurred in May 2001. However, Ms. Longley did not issue her Statement of Claim until February 2006, nearly five years after the accident. General Motors brought a motion for summary judgment, seeking to dismiss the action on the grounds it was commenced beyond the prescribed two-year period in s. 206(1) of the HTA.
[4] The motion judge, Henderson J., dismissed the motion. He first addressed the question of the discoverability of the claim. He found that Ms. Longley, by exercising reasonable diligence, ought to have known the material facts on which her claim was based no later than April 2002. Accordingly, this date is when the limitation period started to run. This finding has not been appealed.
[5] The motion judge then turned to the question whether s. 206(1) of the HTA barred Ms. Longley’s claim. Applying the Supreme Court of Canada’s decision in Heredi v. Fensom, 2002 SCC 50, [2002] 2 S.C.R. 741, he concluded that it did not because Ms. Longley’s damages were not “occasioned by a motor vehicle”. Therefore, the former six-year limitation for tort actions under s. 45(1)(g) of the Limitations Act R.S.O. 1990, c.L.15 governed her claim. Since her action was started within this six-year period, it could proceed.
[6] General Motors raises two grounds of appeal from the motion judge’s decision. First, it contends that the motion judge erred in law by misapplying Heredi. Second, it contends that the motion judge’s decision is at odds with this court’s later decision in Karakas v. General Motors of Canada Ltd., [2005] O.J. No. 2462, aff’g (2004), O.R. (3d) 273 (S.C.).
[7] In response, Ms. Longley says that the motion judge properly applied Heredi, and correctly distinguished Karakas. Alternatively, she says that this court ought to overrule its decision in Karakas.
B. DISCUSSION
1) The Supreme Court of Canada’s decision in Heredi
[8] Section 206(1)[^2] of the HTA states:
Subject to subsections (2) and (3), no proceeding shall be brought against a person for the recovery of damages occasioned by a motor vehicle after the expiration of two years from the time when the damages were sustained.
[9] Over the years, courts across Canada produced conflicting decisions on the meaning of the words “occasioned by a motor vehicle” in Ontario’s HTA and virtually identical legislation in other provinces. In 2002, the Supreme Court of Canada sought to resolve the conflict and set out in Heredi what it called “the proper approach to ‘damages occasioned by a motor vehicle’”. Iacobucci J. wrote the unanimous judgment of the court. Drawing largely on the interpretation of this phrase by Osborne J. in Clost v. Colautti Construction Ltd. (1985), 1985 CanLII 2021 (ON SC), 52 O.R. (2d) 339 (H.C.), Iacobucci J. discussed the principles that should guide how courts apply the phrase “damages occasioned by a motor vehicle”. At the risk of oversimplifying his judgment, I take from Heredi four key principles:
The court must focus on the substance of the plaintiff’s claim against the defendant. Neither how the claim is pleaded nor even how the plaintiff was injured is determinative.
The limitation period will apply only if the presence of a motor vehicle is the “dominant feature” of the claim. Conversely, the mere presence of a motor vehicle in the chain of causation leading to the damages claimed will not trigger the application of the limitation period. Put differently, the damages will be occasioned by a motor vehicle only if the “motor vehicle is acting in the character of a motor vehicle”, but not if its “nature as a motor vehicle is quite irrelevant to the essence of the action”.
The purpose of the HTA is highly relevant to determining the scope of the phrase “damages occasioned by a motor vehicle”. The Act’s purpose is to regulate highway traffic. Therefore, cases where a motor vehicle not traveling on a highway is the dominant feature of a claim will be “somewhat rare”.
The trial judge is in the best position to characterize the claim.
2) Application of Heredi to this case
[10] The motion judge applied Heredi and concluded that the truck was not the dominant feature of Ms. Longley’s claim. General Motors submits that he erred in law in so concluding. I do not accept that submission. The motion judge was best suited to characterize the nature of the claim, and I see no reason to depart from his characterization.
[11] When the accident occurred, Ms. Longley was not driving her truck on the highway. The truck was parked in a parking lot. Thus, for General Motors to succeed on this appeal, it must establish that this is one of those “somewhat rare” cases where a motor vehicle not being driven on a highway is nonetheless the “dominant feature” of the claim. I do not think that General Motors can do so.
[12] Ms. Longley’s pick-up truck was not “acting in the character of a motor vehicle” when the accident happened. Ms. Longley broke her wrist because she fell off the truck’s bumper, which she used as a step ladder to retrieve her jacket. Because she fell from the truck, the truck was certainly part of the chain of causation leading to her damages claim. However, it was not the dominant feature of that claim. At best, it was incidental to the claim.
[13] The characterization of what occurred here is fairly similar to the characterization of the claim in F.W. Argue Ltd. v. Howe, 1968 CanLII 35 (SCC), [1969] S.C.R. 354. There, the defendant drove its fuel truck to the plaintiff’s pharmacy to fill the plaintiff’s oil tank. However, the defendant negligently operated its truck fuel pump, causing the plaintiff’s tank to overfill. A fire resulted destroying the pharmacy and surrounding buildings. Although the fuel pump was an integral part of the defendant’s fuel truck, the Supreme Court of Canada held that the damages were not occasioned by a motor vehicle.
[14] In Heredi, Iacobbucci J. approved of the result in Argue because the motor vehicle played an ancillary role in the claim. In the case before us, although it might be said that the tailgate was an integral part of Ms. Longley’s truck, the truck itself was ancillary to the essence of the claim.
3) This court’s decision in Karakas
[15] In Karakas, the plaintiffs sued for property damage resulting from a fire which had been caused by defective wiring in their car. The car was parked in the plaintiffs’ garage when the fire occurred. However, as the plaintiffs began their action beyond the two-year limitation period in s. 206(1) of the HTA, the defendant moved for summary judgment to dismiss the action. Rouleau J. granted the motion, holding that the damages sought were “damages occasioned by a motor vehicle”. In a one-line endorsement, this court dismissed the plaintiffs’ appeal.
[16] On this appeal, General Motors argues that the motion judge’s decision is inconsistent with Karakas. Ms. Longley argues that the motion judge properly distinguished Karakas, and in the alternative, that Karakas was wrongly decided and should be overruled.
[17] Absent other factors not present here, our practice is to convene a five-judge panel when we are going to consider overruling one of our previous decisions: see David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.). This is a three-judge panel; thus, I do not consider it appropriate to entertain overruling Karakas. Nor do I consider it necessary to do so. Karakas is distinguishable from the present case on the basis urged by Ms. Longley and accepted by the motion judge.
[18] Critical to Rouleau J.’s decision was his finding at para. 20 of his reasons that the defective wiring was “a part of the motor vehicle integral to the conveyance function of the motor vehicle”. The motion judge distinguished Karakas by noting that a tailgate with a defective latch mechanism is not integral to the conveyance function of the truck. I agree with that distinction.
[19] General Motors seeks to show that this case does not differ from Karakas by pointing to the affidavit evidence of one of its “senior product investigators”. In his affidavit, the investigator stated that the tailgate “is central to the conveyance of any vehicle equipped with one”. In distinguishing Karakas, the motion judge obviously rejected that evidence. He had good reason to do so. The wiring at issue in Karakas was integral to the conveyance function because the motor vehicle could not be driven without proper wiring. The tailgate at issue in this appeal was not integral to the conveyance function of Ms. Longley’s truck because the truck could have been, and indeed was, driven with the defective latch mechanism.
[20] This distinction is sufficient to dispose of this appeal. However, I agree with the following observation made by a panel of this court in the later case of Guarantee Company of North America v. Mercedes Benz Canada Inc. (2006), 2006 CanLII 81797 (ON CA), 86 O.R. (3d) 479, at para. 1:
There is arguable merit to the appellants’ claim that the result and reasoning in Karakas v. General Motors of Canada Limited is at odds with the principles enunciated in Heredi v. Fensom. [Citations omitted.]
[21] Karakas seems to add a gloss to Heredi in those “somewhat rare” cases where the motor vehicle is not being operated on the highway. The gloss is that the damages claim may still be “occasioned by a motor vehicle” if those damages were caused by a component of the motor vehicle integral to its conveyance function. Whether that gloss is warranted ought to be considered in a case in which it must be confronted directly.
C. CONCLUSION
[22] I agree with the motion judge that the damages claimed by Ms. Longley are not occasioned by a motor vehicle, and that therefore this action is not barred by the two-year limitation period in s. 206(1) of the HTA.
[23] I would dismiss the appeal with costs in the amount agreed on by counsel, $12,000, inclusive of disbursements and GST.
RELEASED: August 28, 2009
“J.L.” “John Laskin J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree S.E. Lang J.A.”
[^1]: Under the Rule 76 of the Rules of Civil Procedure. [^2]: Section 206 was repealed by Ontario’s Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, which came into effect on January 1, 2004.