Court File and Parties

COURT FILE NO.: 15-63633 DATE: 2016-09-20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IDIL ISSA ALI, Plaintiff/Responding Party AND: TOYOTA CANADA INC., TOYOTA MOTOR MANUFACTURING CANADA INC., TOYOTA MOTOR CORPORATION, TOYOTA FINANCIAL INC., TOYOTA CREDIT CANADA INC., and BEL-AIR TOYOTA, Defendants/Applicants

BEFORE: Ray, J

COUNSEL: Mohamed Doli, Counsel, for the Plaintiff Responding Party Stephen N. Libin, Counsel, for the Defendants/Applicants

HEARD: September 15, 2016

Endorsement

[1] This is a motion for summary judgement by the defendants to strike various portions of the plaintiff’s Amended Statement of Claim following the order of R. Smith, J dated May 10, 2016 who permitted these portions to be added but “subject to the defendant being permitted to argue that the amended portions should not be permitted because of the expiry of the limitation period”.

[2] The plaintiff’s action for damages is a product liability claim in which it is pleaded that July 20, 2013 her Toyota motor vehicle crashed, the cause of the crash was faulty design and manufacture, and as a consequence she suffered personal injury damages. The defendants’ position is that the amended portions, which concerned a defective module ETCS-1 throttle control system (“module”) represented a new cause of action asserted for the first time June 10, 2016 (or May 10, 2016 when the motion was launched), more than two years after the crash.

[3] The original Statement of Claim, dated March 10, 2015 pleaded that the crash was caused by a steering malfunction, brake malfunction, and “accelerated out of control”. The defects were identified as floor mat / pedal entrapment, mechanical sticking of the accelerator, and air bag. The plaintiff prepared a draft Amended Statement of Claim dated April 25, 2015 which repeated the same defects. A further draft Amended Statement of Claim dated May 10, 2016 was in the motion record before Smith J when he made the order; and it added the module as a defect. However, the Amended Statement of Claim following Smith J’s order, added some 25 references to the module but deleted any reference to any of the other defects (except for the airbag). The Amended Statement of Claim following Smith J’s order now (except for the airbag reference which is not sought to be struck) claims only the module as the defect.

[4] I am satisfied that the way the plaintiff has pleaded the module defect now makes it the core cause of action in the Amended Statement of Claim. In no way can it be understood to be merely a ‘particular’ of the negligent design and manufacture, and thereby an extension of the original statement of claim. Arguably, the plaintiff went beyond Smith J’s order permitting the amendment. His order did not require that reference to the other defects be eliminated in the Amended Statement of Claim. Presumably in anticipation that she would be facing this motion, she also included in her Amended Statement of Claim that prior to April, 2015, she had no knowledge of the module defect. I accept the defendants’ submission that that plea implicitly recognizes that the module claim is a new cause of action since the plaintiff has pleaded lack of knowledge. That plea can only be relevant to a new cause of action being introduced after the limitation period. Otherwise it has no relevance.

[5] I conclude that the amendment concerning the module is a new cause of action introduced into the Statement of Claim when the amendment was made June 10, 2016.

[6] Having found that the plaintiff has a new of cause action which was not pleaded within two years of the crash, the plaintiff has the obligation to show that the plaintiff did not, and could not have, discovered the module defect through due diligence prior to July 20, 2015. Otherwise, the claim is presumptively invalid. See Becerra v. Ronchin, 2016 ONSC 4232, paragraph 40 (Master Albert).

[7] I am satisfied the plaintiff has not met the onus. The plaintiff’s position is that she did not know of the module defect until she received an expert report in April, 2016. However, the evidence is that she was a member of a class proceeding and was receiving reports from time to time. In that class proceeding, Perrell, J opined February 6, 2014, in approving the class settlement, that the claim based on the alleged defective (module) was weak. See Hamilton v. Toyota Motor Sales USA Inc. 2014 ONSC 785, 2014 CarswellOnt 1408 at paragraph 50. The plaintiff is taken to have had that information at the time. The plaintiff’s position that she was not well informed or capable of understanding the information provided to her is beside the point. She had counsel throughout, whose duty it was to make enquiries, and be aware of information available to his client through the exercise of due diligence.

[8] The question is whether the plaintiff knew or ought to have known of the defective module issue prior to July 20, 2015 through due diligence. If so, then she is out of time. The defendant‘s motion being a motion for summary judgement requires the plaintiff to put her best foot forward. I have to assume she has done so. The evidence from the plaintiff does not raise a genuine issue for trial.

[9] On this motion, the plaintiff’s evidence included an addendum to the expert’s report, which referenced a U.S. government report dated January 18, 2011, and in which the expert concluded the module could fail. Also included in the plaintiff’s material is an email from the plaintiff to the class action dated December 27, 2013. A further reference in her motion material to a request by the plaintiff’s insurer to the defendant, to release its lien so that it could take the total loss vehicle out of storage, does not support the plaintiff’s contention that by waiving its lien the defendant was somehow complicit in the scrapping of the vehicle. The plaintiff’s explanation of delay in getting her expert report actually confirms in the email that no steps had been taken by the plaintiff to seek the advice of an expert until February 17, 2016. In fact, in the original Statement of Claim, the plaintiff referenced the class action concerning the module, but without making it part of the claim.

[10] I accept the defendant’s submission that the form of the reference to the module in the Amended Statement of Claim of June 10, 2016 is a duplicate of a pleading in a Quebec action dated May 24, 2012 against the same defendant.

[11] The evidence is overwhelming that through the exercise of due diligence, the plaintiff could have discovered or did discover the module defect prior to July 20, 2015.

[12] I further conclude that the evidence does not raise a credibility issue regarding the plaintiff’s discovery of the module defect that would require the trial of an issue. Judgement is therefore granted to the defendant and all portions of the Amended Statement of Claim that reference the module defect are struck.

[13] If the parties cannot agree on costs they may make written submissions of two pages or less within 14 days and a further 5 days for reply addressed to the trial coordinator in Ottawa.

Honourable Justice Timothy Ray Date: September 20, 2016

cited_cases: legislation: [] case_law: - title: "Becerra v. Ronchin, 2016 ONSC 4232" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4232/2016onsc4232.html" - title: "Hamilton v. Toyota Motor Sales USA Inc. 2014 ONSC 785" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc785/2014onsc785.html"