ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 48118/98

DATE: 20140822

BETWEEN:

Atanas Mitusev, Rada Mitusev, Yovan Mitusev, and Julie Mitusev
Plaintiffs

– and –

General Motors Corporation, General Motor of Canada Limited and Johnson Controls
Defendants

Rikin Morzaria, for the Plaintiffs

Peter J. Pliszka, for the Defendant, Johnson Controls

HEARD: September 26, 2013 and March 7, 2014

REASONS FOR DECISION

EDWARDS j.:

[1] The defendant, Johnson Controls (“JC”), seeks summary judgment dismissing the plaintiffs’ action which arises out of a single vehicle motor vehicle accident that resulted in the plaintiff suffering very serious injuries that have now confined him to a wheelchair. At the time when this motion was initially argued the recent decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, 2014 S.C.C. 7 had not been released. Further argument was therefore held on March 7, 2014 to address the application of Hryniak. These reasons address why this matter must proceed to trial. These reasons also explain why it is not appropriate to exercise the expanded powers implicit in Hryniak to conduct a mini-trial.

General Background

[2] This action arises out of alleged defects in the driver's seat (the “seat”) of a 1991 Chevrolet Astro van (the “Van”), manufactured by General Motors (“GM”) and owned by the plaintiff, Atanas Mitusev (“Mitusev”).

[3] On March 22, 1996, Mitusev was driving his Van westbound on Highway 401 when it began to slide on an icy stretch of the road. As Mitusev tried to brake to correct the sliding, the seatback of his driver's seat collapsed rearward, causing Mitusev to lose control of the Van completely. The Van then rolled over, off the road and into a ditch.

[4] As a result of the collision, Mitusev suffered a catastrophic spinal cord injury extending from C5 to T2. The spinal cord injury rendered Mitusev quadriplegic, below the level of C5 Mitusev has suffered a complete loss of motor and sensory function.

[5] JC supplied the seat to GM that collapsed in the plaintiffs’ Van. The actual part that it is alleged was defective, which it is alleged caused the failure of the seat, was not manufactured by JC.

[6] The plaintiff argues that the evidence filed by the moving party Johnson Controls (“JC”) on this motion, in the form presented, is largely inadmissible. The plaintiff also argues that JC, in its capacity as the manufacturer of the seat, had a duty to take care in the manufacture of its product, including all of its constituent parts – in this case what is described as the recliner mechanism. In its most simplistic form, the plaintiff argues that JC cannot succeed on this motion because even though a manufacturer is not strictly liable for defective products the court can draw inferences of negligence from the facts.

Procedural Issues Relating to the Evidence

[7] The plaintiffs’ evidence filed in response to the motion by JC for summary judgment consisted of the affidavit of the plaintiffs’ lead counsel John McLeish, to which was attached as exhibits various experts’ reports.

[8] The evidence filed by JC in support of its motion for summary judgment consisted of two affidavits of Mr. Tighe; a copy of the discovery transcript of JC’s witness on discovery – Mr. Kennel; the sworn deposition transcript of GM’s chief engineer of its seat program for the seat in question (Mr. DeSloovere); and GM’s Response to a Request to Admit filed in another unrelated lawsuit. The Request to Admit addressed similar issues respecting the origin, supply and design of the recliner mechanism and the seat.

[9] Dealing first of all with the plaintiffs’ evidence, if expert evidence is to be relied upon on a motion for summary judgment, such evidence should be before the court in sworn form so as to allow cross-examination where it is deemed appropriate. The practice of attaching experts’ reports to a solicitor’s affidavit does not technically allow for cross-examination of anyone other than the deponent of the affidavit. Clearly, cross-examination of the plaintiffs’ lawyer swearing the affidavit will not advance the knowledge that the court may require to properly assess an expert’s opinion.

[10] I will refer at greater length to the various expert opinions filed by the plaintiff as exhibits to the affidavit of Mr. McLeish. If all of the evidence filed by JC had been in admissible form, I would have given little or no weight to the plaintiffs’ experts. Those expert opinions filed by the plaintiff should, for reasons that I have already expressed, be in an affidavit of the expert. I realize this may be taking a technical approach to the filing of expert evidence. Nonetheless, in this new age of summary judgment motions that our courts will undoubtedly be facing, the importance of admissible evidence will become of paramount importance. For the purposes of my review of the parties’ positions I have assumed that the evidence of the plaintiffs’ experts will eventually become the evidence of the particular expert at trial and will therefore be Rule 53.03 compliant at trial.

[11] Expert evidence, if it is to be relied upon by the court on a summary judgment motion, should at the very least be in sworn form. A simple affidavit of the expert to which is appended his or her CV and report should suffice. As well, since judgment is being sought, compliance with Rule 53.03(2.1) of the Rules should be considered as mandatory.

[12] While I have expressed real reservations about the manner in which the expert evidence relied upon by the plaintiff was placed before the court on this motion, I have taken note of the fact that there was no request by the defence to cross-examine any of the experts nor any request by the defence to have the expert evidence comply with Rule 53.03. I have therefore given greater weight to the evidence filed by the plaintiff, that was not technically compliant with the Rules of Civil Procedure (“the Rules”), than the evidence filed by JC which was equally non-compliant with the Rules.

[13] The plaintiffs objected to any reliance on the transcript of Mr. DeSloovere, which was obtained in the context of an unrelated action, Cobb v. G.M. Objection was taken on the basis that such evidence is hearsay; taken in an unrelated action; and cannot be tested by the plaintiff by way of cross-examination. It is argued that if the transcripts of Mr. DeSloovere’s evidence could not be relied upon by JC at trial, then the transcripts should not be allowed into evidence as part of the record that this court might consider on a summary judgment motion.

[14] Mr. DeSloovere died a number of years ago. His evidence, as tendered in the form that it was presented to this court, cannot be tested by the plaintiff. I have real reservations that this evidence would be admissible at trial, even if it might pass the test of relevancy and necessity. The evidence is clearly prejudicial to the plaintiffs, and in a situation where the plaintiffs would have no opportunity to cross-examine Mr. DeSloovere, I have not relied on his evidence in coming to my ultimate conclusion in disposing of this motion.

[15] In Mr. Tighe’s reply affidavit filed by JC, Mr. Tighe refers to and relies on the evidence of Mr. Kennel. Mr. Kennel was produced as JC’s witness at the discovery of JC in this action. Mr. Kennel did not swear an affidavit in support of JC’s motion for summary judgment. It is not appropriate for a party seeking to dismiss an action, by way of a motion for summary judgment, to rely on the evidence of their own discovery witness. Rule 39.04(2) of the Rules only allows for the use of a transcript of a party’s own witness at discovery if the parties consent – see also Lana International Ltd. v. Menasco Aerospace Ltd., 2000 16845 (ON CA), [2000] 50 O.R. (3d) 97. Absent consent, the tendering of discovery evidence of a party’s own witness is not permitted. This is particularly so where the court is being asked to grant summary judgment dismissing a plaintiff’s action.

[16] Other aspects of Mr. Tighe’s affidavit are of concern to this court. Mr. Tighe attaches to his affidavit GM’s Response to a Request to Admit which was filed in another unrelated lawsuit. While that lawsuit may have dealt with similar issues regarding the origin, supply and design of the recliner mechanism and seat, the fundamental fact remains that the Response to the Request to Admit is unsworn and is a response from GM, not JC. If JC wished to have this type of evidence relied upon it was open to JC to have requested an appropriate person from GM, with knowledge of the facts responded to by GM, in the Response to Admit. Such evidence could have been put into sworn form, which could then be tested in cross-examination by the plaintiff. Without deciding this issue, it is highly unlikely that GM’s Response to the Request to Admit by itself would be admissible at trial as part of JC’s case. If it is not admissible at trial, I again fail to see how, in its present form, it is admissible in a summary judgment motion.

[17] Counsel for the defendant, in his factum, argues that JC did not play any “actionable role” in the selection, design and manufacture of the recliner mechanism in the driver’s seat of the Van. In this regard, counsel for JC suggests that the only relevant and probative evidence on this issue was:

(a) the affidavit of Bill Larson;
(b) the affidavit of Mr. Tighe;
(c) the discovery transcript of Mr. Kennel;
(d) the transcript of Bernard DeSloovere; and
(e) GM’s Response to the Request to Admit.

[18] I have already expressed my views with respect to aspects of Mr. Tighe’s affidavit evidence. Fundamentally, for the reasons that I have expressed above, the transcript of Mr. Kennel’s discovery, the transcript of Mr. DeSloovere, and GM’s Response to the Request to Admit are not admissible on this motion for summary judgment and I give no weight to the evidence contained in those documents.

[19] Fundamentally, the court should be able to assume that both sides to the motion for summary judgment have put their best foot forward, and that there will be no other relevant evidence that might influence the outcome in the action.

[20] While hearsay evidence may be admissible on a summary judgment motion, the weight to be attached to the evidence will ultimately be in the hands of the court. If the hearsay evidence is on a fundamental aspect of the motion, it is unlikely that the motion judge will decide the motion favourably to the party adducing the hearsay evidence.

[21] If evidence is fundamentally inadmissible at trial, it is very unlikely that such evidence would be weighed favourably on a summary judgment motion. Judgment at trial or a judgment on a summary judgment motion result in the same thing. It would seem incongruous to allow evidence in on a summary judgment motion that would not be admissible at trial.

(Full decision continues exactly as in the source through paragraph [98] and concluding lines:)

Justice M.L. Edwards

Released: August 22, 2014