Coles v. Takata Corporation et al.
[Indexed as: Coles v. Takata Corp.]
Ontario Reports
Ontario Superior Court of Justice, Perell J.
July 29, 2016
133 O.R. (3d) 47 | 2016 ONSC 4885
Case Summary
Civil procedure — Pleadings — Statement of claim — Defendant in proposed products liability class actions moving to strike paragraphs of statements of claim containing apologies — Motion granted — Impugned paragraphs improper whether or not Apology Act applied as they pleaded evidence rather than material facts — Apology Act, 2009, S.O. 2009, c. 3.
Conflict of laws — Choice of law — Defendant in proposed products liability class actions moving to strike paragraphs of statements of claim containing apologies on basis that Apology Act prohibits taking apology into account in determining fault or liability — Plaintiffs contending that it was not plain and obvious that Apology Act applied as apologies were spoken in Japan and District of Columbia — Motion granted — Apology Act being statute about evidence — Law of evidence being procedural — Procedural law of forum applying — Apology Act, 2009, S.O. 2009, c. 3.
One of the defendants in five proposed products liability class actions brought a motion to strike paragraphs of the statements of claim because they contained apologies, and the Apology Act, 2009 provides that an apology shall not be taken into account in any determination of fault or liability. The plaintiffs submitted that it was not plain and obvious that the Apology Act applied as the apologies were spoken in Japan and the District of Columbia, and that it would be premature to strike the impugned paragraphs because a contextual analysis was required to differentiate statements that were apologies covered by the Act from statements that were admissible as relevant evidence.
Held, the motion should be granted.
Whether or not the Apology Act applied, the impugned paragraphs were improper as they pleaded evidence rather than material facts. The Apology Act applied (assuming, for the purposes of this motion, that the Ontario court had jurisdiction), as the choice of law rules stipulate that the procedural law of the forum with jurisdiction to try the dispute applies. The Apology Act is a statute about the law of evidence, and the law of evidence is procedural law.
Cormack v. Chalmers, 2015 ONSC 5599; Lane v. Kock, 2015 ONSC 184; Robinson v. Cragg, 2010 ABQB 743; Simaei v. Hannaford, 2014 ONSC 7075, supp. reasons 2015 ONSC 5041 (Master), consd
Other cases referred to
Cardinal Meat Specialists Ltd. v. Zies Foods Inc., 2014 ONSC 1107; Coles v. Takata Corp., CV-16-543764-00CP; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111; Davy v. Garrett (1878), 7 Ch. D. 473 (C.A.); Des-Rosiers v. Takata Corp., CV-16-543767-00CP; D'Haene v. Takata Corp., CV-16-543766-00CP; Dupre v. Patterson, 2013 BCSC 1561; Hamlyn & Co. v. Talisker Distillers, [1894] A.C. 202 (H.L.); Jacobson v. Skurka, 2015 ONSC 1699; Lytton v. Alberta, 1999 ABQB 421; Mailloux v. Takata Corp., CV-16-543763-00CP; Malo v. Clement, [1943] C.C.S. No. 143, [1943] O.W.N. 555, [1943] 4 D.L.R. 773 (H.C.J.); McIntosh v. Takata Corp., CV-16-543833-00CP; Mirshahi v. Suleman; Morris v. Toronto Transit Commission, [1945] O.W.N. 382 (Master); Parker v. Pfizer Canada Inc., 2011 ONSC 5169; Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd., 3 O.R. (3d) 684, [1991] O.J. No. 915, 27 A.C.W.S. (3d) 189 (Gen. Div.); Tolofson v. Jensen, [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110, 120 D.L.R. (4th) 289, 175 N.R. 161, [1995] 1 W.W.R. 609, J.E. 95-61, 51 B.C.A.C. 241, 100 B.C.L.R. (2d) 1, 77 O.A.C. 81, 26 C.C.L.I. (2d) 1, 22 C.C.L.T. (2d) 173, 32 C.P.C. (3d) 141, 7 M.V.R. (3d) 202, 52 A.C.W.S. (3d) 40; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 25 O.R. (3d) 106, [1995] O.J. No. 2220, 41 C.P.C. (3d) 75, 56 A.C.W.S. (3d) 813 (Gen. Div.); Vance v. Cartwright, 2014 BCCA 362, 68 M.V.R. (6th) 201, 360 B.C.A.C. 317, 245 A.C.W.S. (3d) 488, affg 2013 BCSC 2120
Statutes referred to
Alberta Evidence Act, R.S.A. 2000, c. A-18, s. 26.1 [as am.] Apology Act, 2009, S.O. 2009, c. 3 Class Proceedings Act, 1992, S.O. 1992, c. 6 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01(1), 25.06(1), 25.11
Authorities referred to
Castel, M., "The Impact of Canadian Apology Legislation when Determining Civil Liability in Canadian Private International Law" (2012), 39 Adv. Q. 440
MOTION to strike paragraphs of statements of claim.
William V. Sasso, for plaintiff. Eric S. Block and Paul Davis, for TK Holdings Inc.
PERELL J. : —
A. Introduction
[1] TK Holdings Inc., which is an automobile airbag manufacturer, is a co-defendant in five proposed products liability class actions under the Class Proceedings Act, 1992, S.O. 1992, c. 6. There are seven proposed representative plaintiffs and more plaintiffs will be added to advance claims against TK Holdings Inc. and against the automobile manufacturers that installed TK Holdings' airbags in their vehicles.
[2] In each of the five actions, TK Holdings Inc. brings a motion pursuant to rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike six paragraphs from the respective statements of claim because it submits that the six paragraphs contravene the Apology Act, 2009, S.O. 2009, c. 3. TK Holdings Inc. submits that the paragraphs contain statements that are apologies and the Apology Act provides that an apology shall not be taken into account in any determination of fault or liability and, therefore, the six paragraphs should be struck from the statements of claim.
[3] The representative plaintiffs resist the motion, and they submit that foreign law is applicable to the apologies, which were spoken in Japan and in the District of Columbia in the United States, and since there is no Japanese or American law precluding the apologies being admissible in Ontario as evidence of liability, there is no basis to strike the impugned paragraphs of their statements of claim. Further, they submit that it is premature to strike the paragraphs because a contextual analysis is required to differentiate statements that are apologies covered by the Apology Act from statements that are admissible as relevant evidence. The plaintiffs' fundamental submission is that as a matter of conflict of laws, it is premature to determine whether the Apology Act applies, and if the Apology Act does apply, it is premature to determine how it applies.
[4] In my opinion, for the reasons that follow, regardless of whether the Apology Act applies, it was improper for the plaintiffs to plead the impugned six paragraphs. And, it is my opinion that if the Apology Act applies, it was improper for the plaintiffs to plead the impugned six paragraphs. Therefore, TK Holdings Inc.'s motions should be granted.
B. Apology Act, 2009, S.O. 2009, c. 3
[5] Ontario's Apology Act is modelled after the Uniform Apology Act, which has been adopted in all the Canadian provinces with the exception of Quebec.
[6] Ontario's Apology Act, 2009, S.O. 2009, c. 3 in its entirety states:
Definition
- In this Act,
"apology" means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.
Effect of apology on liability
2(1) An apology made by or on behalf of a person in connection with any matter,
(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;
(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and
(c) shall not be taken into account in any determination of fault or liability in connection with that matter.
Exception
(2) Clauses (1)(a) and (c) do not apply for the purposes of proceedings under the Provincial Offences Act.
Evidence of apology not admissible
(3) Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter.
Exception
(4) However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration.
Criminal or provincial offence proceeding or conviction
- Nothing in this Act affects,
(a) the admissibility of any evidence in,
(i) a criminal proceeding, including a prosecution for perjury, or
(ii) a proceeding under the Provincial Offences Act; or
(b) the use that may be made in the proceedings referred to in subsection 2(3) of a conviction for a criminal or provincial offence.
Acknowledgment, Limitations Act, 2002
- For the purposes of section 13 of the Limitations Act, 2002, nothing in this Act,
(a) affects whether an apology constitutes an acknowledgment of liability; or
(b) prevents an apology from being admitted in evidence.
C. Factual and Procedural Background
[7] TK Holdings Inc., which is an airbag manufacturer, is a co-defendant in the following five proposed products liability class actions under the Class Proceedings Act, 1992: (1) Coles v. Takata Corp., CV-16-543764-00CP; (2) Des-Rosiers v. Takata Corp., CV-16-543767-00CP; (3) McIntosh v. Takata Corp., CV-16-543833-00CP; (4) Mailloux v. Takata Corp., CV-16-543763-00CP; and (5) D'Haene v. Takata Corp., CV-16-543766-00CP.
[8] TK Holdings Inc.'s co-defendants are FCA Canada Inc., Honda Motor Co., Ltd., Honda of America Manufacturing, Inc., Honda Canada Inc., Toyota Motor Corporation, Toyota Motor Manufacturing Canada Inc., Toyota Motor Manufacturing, Indiana, Inc., Nissan Canada Inc., BMW Canada Inc., BMW North America, LLC, BMW Manufacturing Co. LLC, BMW AG, Ford Motor Company of Canada Limited, General Motors Company, General Motors of Canada Limited, Mazda Motor Corporation, Mazda Canada Inc., Fuji Heavy Industries, Ltd., Subaru Canada Inc. and Mitsubishi Motor Sales of Canada, Inc.
[9] In their respective actions, the plaintiffs plead that the airbag inflator installed in the class members' vehicles had a dangerous and life-threatening defect and that the defect was a result of design and manufacturing negligence. The plaintiffs allege that the defendants concealed their knowledge of the defect.
[10] In their respective actions, the plaintiffs seek to certify a pan-Canadian class defined as "all persons in Canada who owned or leased one of the subject Vehicles as of the date of the Recalls".
[11] The statements of claim in the respective actions include the following paragraphs that TK Holdings Inc. submits contravene the Apology Act:
ADMISSIONS BY TAKATA CEO
Shigehisa Takata is Takata Japan's [Takata Corporation's] Chairman and CEO. On November 13, 2014, in Japan, Mr. Takata reported to Takata's shareholders at a meeting of shareholders in Tokyo, Japan and he apologized to the U.S. and Canadian customers, the Class Members and the public for this dangerous Airbag Inflator safety defect. He admitted that: "[T]he moisture absorption control of the gas generating agent in some driver seat airbags had not been correctly implemented at the time of manufacture, as a result of which an inflator canister may rupture when the airbag deploys . . . We deeply regret that the problem in our airbags have caused problems."
On December 1, 2014, on behalf of Takata and TK, Mr. Takata also apologized for the loss of life caused by the Airbag Inflators: "Takata deeply regrets the injuries and fatalities that have occurred in accidents involving ruptured airbag inflators." As Chairman and CEO he had a duty to report the true facts to the shareholders and to the markets. Under Japanese law, an apology may be an admission of liability and may be evidence proving relevant facts. Under Japanese law, there is no equivalent to the Ontario Apology Act.
On November 20, 2014, Mr. Hiroshi Shimizu, Senior Vice President for Global Quality Assurance Takata Corporation, testified before the U.S. Senate Committee on Commerce, Science and Transportation in Washington D.C. The administrative proceeding was entitled "Examining Takata Airbag Defects and the Vehicle Recall Process." In his opening statement, Mr. Shimizu addressed Chairman Nelson, Ranking Member Thune and the Members of the Committee, stating that, " [A]ny failure of an airbag to perform as designed . . . is incompatible with Takata's standards for highest quality assurance. We are deeply sorry and anguished about each of the reported instances in which a Takata airbag has not performed as designed and a driver or passenger has suffered personal injuries or death. Our sincerest condolences go out to all those who have suffered in these accidents and to their families."
On December 3, 2014, Mr. Hiroshi Shimizu made a similar statement to the Subcommittee on Commerce, Manufacturing and Trade, U.S. Committee on Energy and Commerce in Washington D.C. The administrative proceeding was entitled "Takata Airbag Ruptures and Recalls." Speaking to Chairman Terry, Ranking Member Schakowsky and Members of the Subcommittee, Mr. Shimizu's opening statement included a formal apology. Mr. Shimizu stated that, " All of us at Takata know that the airbag inflator ruptures that has [sic] been the subject of recent recalls involve serious issues of public safety. We are deeply sorry about each case where Takata airbag has not performed as designed and the driver or passenger has suffered personal injuries or death."
Under U.S. Federal Law and under the law in the District of Columbia, an apology may be an admission of liability and may be evidence proving relevant facts. Under U.S. Federal Law and under the law in the District of Columbia, there is no equivalent to the Ontario Apology Act.
Mr. Takata's statements are an admission that Takata [Corporation] and TK [Holdings] were in breach of the standard of conduct (care) in manufacturing the Airbag Inflators. These statements are also an admission of a breach of the standard of conduct (care) in the safety aspects to the owners, drivers and passengers in the Vehicles to the public in Canada and the U.S. and to regulators in Canada and the U.S.
[Emphasis in original]
[12] In its factum, the plaintiffs submit that under the laws where the statements were made, Japan and the District of Columbia respectively, there is no equivalent to the Apology Act (Ontario). They submit that the statements are prima facie relevant and admissible evidence of liability and they note that there is no suggestion that the statements made in Japan and in the District of Columbia were intended to be apologies that were to be afforded the protection of the Apology Act (Ontario). They submit that the Ontario legislation does not have extra-territorial effect, and the plaintiffs note that the statements do not make reference to the class members in Ontario and were directed to the Takata shareholders and worldwide customers and the driving public.
D. Discussion and Analysis
1. Analysis assuming that the Apology Act applies
[13] The plaintiffs contend that it is not plain and obvious that (a) as a matter of conflict of laws that Ontario's Apology Act applies to extra-territorial expressions of apology; and (b) it is not plain and obvious that all of Messrs. Takata's and Shimizu's statements are inadmissible apologies and rather the apologies may be coupled with admissible admissions that are relevant to the proof of liability. The plaintiffs submit that a contextual analysis of the statements is required at the trial and, therefore, TK Holdings Inc.'s motion to strike the pleadings should be dismissed.
[14] I shall begin my analysis of whether or not to grant TK Holdings Inc.'s motion to strike the impugned paragraphs by assuming that as a conflict of laws matter, the plaintiffs' submission that the Apology Act does not apply is incorrect. Assuming that the Act does apply in the national class action, I shall consider the plaintiffs' submission that it is premature to decide whether there are any apologies in the immediate case that should be struck from the statements of claim.
[15] There are only a few Canadian cases about the application of the Apology Act. However, with three exceptions, none of the Canadian case law addresses the question in the immediate case which concerns the use of an apology at the pleadings stage of an action. For example, in Lane v. Kock, 2015 ONSC 184, at the trial of a personal injury action, the plaintiff gave evidence that after the accident, the defendant had apologized. Relying on the Apology Act, the defendant objected to the admissibility of what might be taken as an admission of liability for negligence, but Justice Bale ruled that the apology was made before the Apology Act was enacted and he decided that the Act did not apply retroactively. Thus, Lane v. Kock does not assist in deciding the immediate case.
[16] For other cases that mention or apply the Apology Act but do not address the question that I must resolve in the immediate case, see Vance v. Cartwright, 2014 BCCA 362, affg 2013 BCSC 2120; Cardinal Meat Specialists Ltd. v. Zies Foods Inc., 2014 ONSC 1107; Dupre v. Patterson, 2013 BCSC 1561; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111. See, also, M. Castel, "The Impact of Canadian Apology Legislation when Determining Civil Liability in Canadian Private International Law" (2012), 39 Adv. Q. 440.
[17] There are, however, three cases that are helpful for deciding the immediate case: Robinson v. Cragg, 2010 ABQB 743; Cormack v. Chalmers, 2015 ONSC 5599; and Simaei v. Hannaford, 2014 ONSC 7075 and 2015 ONSC 5041 (Master).
[18] In Robinson v. Cragg, supra, the defendant law firm wrote a letter that contained an apology and also statements of fact, i.e., admissions relevant to liability. The law firm was sued for professional negligence, and during the course of the litigation, the law firm applied for a declaration that the letter was inadmissible in evidence, because it was an apology under the Alberta Evidence Act, R.S.A. 2000, c. A-18, s. 26.1. Master Laycock ruled that the apology portion of the letter, found in a single sentence, should be redacted from the letter that otherwise was admissible in the action.
[19] In Cormack v. Chalmers, supra, at a trial of a personal injury action, Justice Ray adopted the same approach of differentiating an apology from a statement of fact or an admission. In Cormack, the plaintiff proposed calling a witness to testify that the defendants told her that they knew that swimming at the end of their dock was dangerous. However, the defendants objected to the evidence because it was coupled with an apology and, therefore, the defendants submitted that the entire evidence, which was found in a will-say statement, was inadmissible because of the Apology Act. Justice Ray rejected this argument and stated, at paras. 8 and 9 of his ruling:
Clearly any evidence of an apology as defined is inadmissible. The question raised is whether an otherwise admissible relevant admission coupled to an apology is admissible. This requires a contextual analysis of the words used. The statements in question each convey separate and distinct thoughts or messages. There are statements of fact and statements of regret.
I am satisfied that the anticipated evidence contains separate sentences, with each sentence a separate thought. I am satisfied that the second and fourth sentences of the above excerpt should be redacted so as to conform with the requirements of the Apology Act.
[20] Pausing here, before discussing Simaei v. Hannaford, for the immediate case, what can be gathered from the above cases about the Apology Act is that in the absence of the Act, plaintiffs would rely on the defendants' apologies as relevant evidence in the proof of the defendants' liability but the presence of the Act precludes the apologies being used to prove liability. The above cases reveal that courts may have difficulty determining whether an expression is an apology, and therefore inadmissible evidence, or whether the expression is admissible evidence as (a) an admission of a material fact; (b) an admission of a fact from which liability may be inferred; or (c) an admission of liability. Thus, in the above cases, the courts undertook a contextual analysis of the defendants' expressions and excluded from evidence the part of the expressions that constituted an apology but admitted into evidence the parts that were non-apologetic admissions.
[21] The above analysis does support the plaintiffs' argument that a contextual analysis is required to determine how the Apology Act applies and that it would be premature to make any determination whether to admit or not admit the statements of Messrs. Takata and Shimizu in whole or in part before the trial. However, the above analysis also reveals a reason for striking the impugned paragraphs regardless of whether or not the Apology Act applies.
[22] Trite as it may be to say it, the above analysis reveals that however contextualized or classified, Messrs. Takata's and Shimizu's expressions are evidence; more particularly, the expressions are admissions and exceptions to the hearsay rule. This trite observation entails a reason for striking the impugned paragraphs regardless of whether the Apology Act applies as a conflict of laws matter and regardless of the how and the when of the application of the Apology Act.
[23] The primary rule about pleadings is rule 25.06(1), which requires that a pleading contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved. In the impugned paragraphs, the plaintiffs do not plead material facts, but rather, contrary to rule 25.06(1), plead evidence. Admissions by an opponent are a matter of evidence that ought not to be pleaded, so they may be struck: Davy v. Garrett (1878), 7 Ch. D. 473 (C.A.); Morris v. Toronto Transit Commission, [1945] O.W.N. 382 (Master), at p. 383; Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd., 3 O.R. (3d) 684, [1991] O.J. No. 915 (Gen. Div.), at para. 18; Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 41; Lytton v. Alberta, 1999 ABQB 421, at para. 11; Mirshahi v. Suleman, at para. 21; Parker v. Pfizer Canada Inc., 2011 ONSC 5169, at paras. 31-33; Jacobson v. Skurka, 2015 ONSC 1699.
[24] This brings the discussion to Simaei v. Hannaford, supra. In this case, Master Short struck out a pleading of an apology as offending rule 25.11, which empowers the court to strike a pleading that is scandalous or vexatious or an abuse of the process of the court. At paras. 40 and 41 of 2015 ONSC 5041 (Master), he explained his reasoning as follows:
. . . a party "cannot plead facts that go no-where". Unless there is a remedy sought that is dependent on the pleading, it ought to be struck.
In my view, having regard to the applicable legislation, references in a statement of claim to an expression of sympathy or regret or a statement that a person is sorry or any other words or actions indicating contrition or commiseration now "go nowhere". That is why those portions of the pleading have been stuck.
[25] For my own reasons expressed above, I agree with Master Short's conclusion that a pleading of an apology should be struck as an improper pleading, but I do not agree with his suggestion that an apology then goes nowhere in the litigation. Rather, while an apology cannot be pleaded, it can be the subject of examinations for discovery. The purpose of the examination would be to discover whether the statement alleged to be an apology is indeed an apology and to determine whether there are portions of the statement that are relevant non-apologetic evidence of liability.
2. Conflict of laws analysis: Does Ontario's Apology Act apply?
[26] The above line of reasoning is dispositive of this motion because it demonstrates that regardless of whether the Apology Act applies, an apology is evidence and the rules of pleading stipulate that a party shall plead the material facts on which the party relies but not the evidence by which those facts are to be proved.
[27] The above line of reasoning, however, avoids answering the competing conflict of laws arguments of the parties. Those arguments, however, can be answered and the outcome is once again that the impugned paragraphs in the plaintiffs' respective statements of claim should be struck out.
[28] As a matter of conflict of laws, in cases with a foreign element, there are two distinct issues to address: (1) the court's jurisdiction and (2) choice of law. The first issue addresses whether the domestic court has jurisdiction over the dispute. If the answer to the first issue is that the court has jurisdiction simpliciter and is the appropriate forum for the dispute, then the second issue addresses what law the court should apply to resolve the dispute.
[29] For the purposes of the motion now before the court, it can be assumed that this court has jurisdiction over the dispute and the dispute between the parties is a choice of law dispute about whether Ontario's Apology Act applies, which is what TK Holdings Inc. contends. The plaintiffs contention is that it is not plain and obvious that as a choice of law matter, the Apology Act applies and, therefore, TK Holdings Inc.'s motion should be dismissed.
[30] TK Holdings Inc.'s argument is that the choice of law rules stipulate that the procedural law of the forum with jurisdiction to try the dispute applies. The Apology Act is a statute about the law of evidence and the law of evidence is procedural law (as distinct from substantive law) and, therefore, the Apology Act applies, which, in turn, entails that the impugned paragraphs should be struck from the statements of claim.
[31] I agree with TK Holdings Inc.'s choice of law argument. The law of evidence is procedural, and the law of the forum governs the admissibility of evidence: Hamlyn & Co. v. Talisker Distillers, [1894] A.C. 202 (H.L.), at p. 213; Malo v. Clement, [1943] C.C.S. No. 143, [1943] 4 D.L.R. 773, [1943] O.W.N. 555 (H.C.J.), at para. 4. And Tolofson v. Jensen, [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110 establishes the major premise of TK Holdings Inc.'s argument that the forum with jurisdiction to try the dispute will apply its procedural law. In Tolofson, Justice La Forest stated, at p. 1049 S.C.R.:
The major issue that arises in this case is this: once a court has properly taken jurisdiction (and this was conceded in both the cases in these appeals), what law should it apply? Obviously the court must follow its own rules of procedure; it could not function otherwise; see Chaplin v. Boys, [[1969] 2 All E.R. 1085 (H.L.)].
[32] The conclusion of the above argument is that this court may apply the Apology Act as a matter of applying its own procedure.
[33] TK Holdings Inc. has an alternative argument based on the premise that the Apology Act is not procedural in its nature. I disagree with the premise of this argument, but assuming the premise is correct, save for the class members from Quebec, I would agree that TK Holdings Inc.'s alternative argument provides another reason for striking the impugned paragraphs.
[34] TK Holdings Inc.'s alternative argument is that if for the purposes of the choice of law rules, the Apology Act is not procedural law, then it would be substantive law applicable to the plaintiffs' claims, which are about torts committed in Ontario or in the other provinces, all of which have an Apology Act, with the exception of Quebec. As a choice of law matter, Tolofson v. Jensen, supra, is authority that the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti. With the exception of Quebec, if the Apology Act is substantive law, then it would be applied as a matter of the plaintiffs' substantive tort claims for which the apologies would not be evidence of the fault or liability. If the Apology Act does apply, then it follows that the impugned paragraphs should not be pleaded.
[35] Because I do not agree with the premise of the alternative argument that the Apology Act is substantive law, I do not rely on this argument for striking out the impugned paragraphs. The paragraphs should in any event be struck for being pleadings of evidence and not material facts.
E. Conclusion
[36] For the above reasons, TK Holdings Inc.'s motions are granted.
[37] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with TK Holdings Inc.'s submissions within 20 days of the release of these reasons for decision followed by the plaintiffs' submissions within a further 20 days.
Motion granted.