COURT FILE NO.: CV-09-380974
DATE: 20190823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SCOTT DERBYSHIRE, SHARI DERBYSHIRE and the minors, DAYNE JAIRUS WILLIAM DERBYSHIRE and DAVIN NAOMI VICTORIA DERBYSHIRE, by their Litigation Guardian, SCOTT DERBYSHIRE Plaintiffs
– and –
TASER INTERNATIONAL INC. Defendant
Amani Oakley and Diane Parsons, for the Plaintiffs
Robin D. Linley and Justin Manoryk, for the Defendant
HEARD: August 20, 2019
REASONS FOR DECISION
(MOTION FOR PARTIAL SUMMARY JUDGMENT)
LEIPER J.
INTRODUCTION
[1] A "TASER" is the registered trademark for a conducted electrical weapon ("electrical weapon") designed to incapacitate a person by shooting darts into the body that conduct electricity.
[2] In December of 2005 the Leamington police force purchased two TASER electrical weapons.
[3] On June 13, 2007, the plaintiff Constable Scott Derbyshire ("Derbyshire"), and his partner, Sergeant Scott Wilkinson ("Wilkinson") were investigating a suspected break and enter by Jeff Ford ("Ford") in Leamington, Ontario. Ford ran and hid from the officers. Wilkinson demanded that Ford come out or he would be "tasered." Ford was known to the officers.
[4] Ford emerged from his hiding place and bolted. Derbyshire ran to tackle Ford. At the same time, Wilkinson fired his electrical weapon at Ford. The probes from the electrical weapon struck Derbyshire instead and lodged in his head and back. Derbyshire lost consciousness and suffered a seizure. He was taken to hospital where he was described as "unaware of his surroundings, drooling, uncomprehending, combative and with a diminished GCS score which took hours to return to normal." Derbyshire was released the next day. He returned to work five days later.
[5] Derbyshire and his family members ("the plaintiffs") sued TASER International Inc. (now Axon Enterprise, Inc., referred to here as TASER) on June 15, 2009 for $4.5 million plus special damages.
[6] TASER is the designer, manufacturer and supplier of the electrical weapon used on the night of the incident. The plaintiffs' claim pleads that there were significant and lasting effects of the electrical weapon strike to Derbyshire's head, including a diagnosis of a closed head injury, mild to moderate brain damage, concussive after effects, anxiety disorder, and depression.
[7] The plaintiffs allege, among other things, that TASER failed to adequately test the electrical weapon they sold, failed to warn users of the potential effects on people struck by the electrical weapon including permanent, serious injuries, and designed/produced a defective or poorly designed product. They say that TASER was aware of the problems with their product because of media reports, public inquiries, government investigations, other lawsuits and reports of injuries. The plaintiffs allege that TASER downplayed the injuries that could be caused by its electrical weapon to maximize its sales.
[8] TASER responds that this was an unfortunate accident. It has pleaded that it took steps to educate law enforcement agencies on the use of its electrical weapon. The warnings provided with the weapons that were sold in 2005 included a seizure warning and information about the risks of eye injury from a head strike.
[9] TASER brought a motion for partial summary judgment on August 20, 2019. The partial motion will not end the action because TASER has conceded that there is a genuine issue of negligent design requiring a trial. A five-week jury trial has been scheduled for March 30, 2020.
[10] An earlier trial date of October 14, 2019 was adjourned to permit this motion to be heard.
TASER'S MOTION FOR PARTIAL SUMMARY JUDGMENT
[11] TASER seeks partial summary judgment on three aspects of the plaintiffs' claim. It argues that these three heads of liability can be easily bifurcated from the issue of negligent design. TASER' arguments can be summarized as follows:
a) The claim that TASER had a duty to warn users of the electrical weapon is bound to fail and does not require holding a trial on this issue because:
i. There was no duty to warn Derbyshire: he was not the purchaser or user of the electrical weapon;
ii. Derbyshire was not owed a duty of care in law by TASER;
iii. Alternatively, there was no causal connection between the TASER warnings in its materials and the use of the electrical weapon because Derbyshire's partner, Wilkinson said in his cross-examination on his affidavit that he was not made aware of the seizure risk warning prior to the incident, only that he was made aware that he should avoid head shots. TASER submits that any warning, deficient or not, would not have come to his attention and not have changed his behaviour. TASER argues that it is "nonsensical to suggest that any additional manufacturer's warning would have prevented this unfortunate accident."
b) The claim that TASER was negligent in manufacturing the electrical weapon which struck Derbyshire cannot be made out because:
i. The Leamington weapons were returned to TASER in 2009, prior to the filing of the lawsuit and "scrapped" without testing as part of its product return policy, because the two units returned were not repairable;
ii. There was no evidence on the motion for summary judgment that the electrical weapon which struck Derbyshire was not manufactured according to design specifications;
iii. The plaintiffs have not identified any specific defect in the electrical weapon; the evidence from Wilkinson was that he tested the weapon before his shift and it worked as intended when he fired it.
iv. An affidavit from a former validation test manager with TASER included evidence that the model of the electrical weapon sold to the Leamington police was subjected to quality testing, including stress firings, functionality testing, laser alignment verification, data download and waveform verification.
c) The claim that TASER breached an implied warranty given in law must fail because there was no privity of contract between Derbyshire and TASER. Further, TASER included a disclaimer for any implied warranties of merchantability or fitness for purpose in the documents that accompanied the electrical weapons sold to the Leamington police. Finally, no duty of care was owed to the plaintiff Derbyshire, who received no representations from TASER.
[12] The plaintiffs' response to TASER's areas of argument may be summarized as follows:
a) The duty to warn issue requires a trial. It is interwoven with the evidence and arguments in support of the negligent design aspects of the plaintiffs' case. In response to the defendant's arguments the plaintiffs say:
(i) This case is not about TASER having a duty to warn Derbyshire of the risks associated with the electrical weapon: The duty to warn was owed to the Leamington police service who would be using the TASER materials to train officers in its use and developing policies for such use by its officers. TASER failed to warn of the risks of brain injury and other serious potential injury to a person suffering a strike to the head. The plaintiffs' record included an expert opinion that the TASER training materials in use at the time were contradictory, inadequate and ineffective in warning officers of the potential risks associated with using the electrical weapon;
(ii) Derbyshire was a reasonably foreseeable potential victim of a strike. Items that enter the body are subject to a high standard of care under the law of negligence. Further, no contractual relationship between Derbyshire and TASER is required for there to be a duty of care owed by TASER to Derbyshire, or any person likely to be on the receiving end of a strike from the TASER electrical weapon;
(iii) Wilkinson's evidence of his recollection of the training materials and warnings provided during his training for the electrical weapon was not consistent. Findings of fact will require a complete record, including evidence from Officer Diebold ("Diebold") who was certified to provide the TASER training in Leamington. Further, Wilkinson gave evidence that he would not have used the TASER electrical weapon in the circumstances of the incident had he known the risks.
b) The negligent manufacturing claim also requires a trial. The plaintiffs submit that TASER either improperly destroyed the Leamington electrical weapons which were returned to it or did not provide accurate information about the destruction of the weapons. The plaintiffs provided an expert report which included a review of test results of electrical weapons manufactured by TASER which are alleged to come from the same manufacturing "batch" as those purchased by the Leamington police force and used at the time of the injury to Derbyshire. Test measurements contradicted the manufacturer's claims of the average 2.1 mAmp current in the weapon. Evidence from a class action suit was relied upon by the plaintiff's expert to support the assertion that TASER electrical weapons manufactured between 2003 to 2005 had production and quality issues. The plaintiffs argue that there is evidence available from which inferences may be drawn about manufacturing defects in the electrical weapons supplied to the Leamington police. The plaintiffs submit that even if the actual weapon used is not available for testing, there is a triable manufacturing issue on other circumstantial evidence which should proceed to trial.
c) The implied warranty argument at common law is related to the manufacturer's statements about the product which has caused injury. The plaintiffs argue that negligently made statements by suppliers that lead to personal injury are actionable, and do not necessarily require a contract between the person harmed and the seller.
FACTORS TO CONSIDER IN A MOTION FOR PARTIAL SUMMARY JUDGMENT
[13] Summary judgment is provided for by Rule 20 of the Rules of Civil Procedure, R.R.O. 1990. It is a valuable alternative to the adjudication of disputes where a motions judge has confidence that the necessary facts can be found, and the legal principles applied to resolve the dispute: Hryniak v. Mauldin, 2014 SCC 7 at para. 50.
[14] Caution is to be applied where a party seeks partial summary judgment on issues that will not fully dispose of a matter. The reason for caution is that there are risks in granting partial summary judgment including:
(a) Delays in completing the action;
(b) Added expense to the parties;
(c) Expenditure of court and judicial time on issues that do not fully dispose of an action;
(d) Decisions on an incomplete record;
(e) The potential for inconsistent findings.
[15] See Baywood Homes v. Haditaghi, 2014 ONCA 450 at paras. 36-40;44-45; Butera v. Chown, Cairns LLP, 2017 ONCA 783 at paras. 22-33 and 38; Service Mold Aerospace Inc. v. Khalaf, 2019 ONCA 369 at paras. 14, 18-20, 23.
[16] Partial summary judgment may be appropriate where the issues advanced are discrete and capable of being separated out from the issues of the main action. This reduces the risk of inconsistent findings and overlapping, duplicated effort, delay and unnecessary expense.
[17] TASER submits that there is no risk of delaying the action in this case because a trial date has been fixed. The benefits to awarding partial summary judgment include narrowing the issues and reducing complexity at trial. The trial will be more manageable if these issues are decided at this stage.
[18] The plaintiffs submit that this motion has already delayed the trial once. Although TASER has said for years that it was contemplating this motion, it did not do so until after a trial date had been scheduled for October 2019, this triggered the adjournment.
CONSIDERATION OF THE ISSUES
The Preliminary Evidentiary Issue: Affidavit of Neil Oakley
[19] TASER sought to strike the affidavit of Neil Oakley, of counsel to the plaintiffs on the action, which was sworn on June 22, 2017 and filed by the plaintiffs for the summary judgment motion. Mr. Oakley took no part in the argument of the motion.
[20] TASER's motion to strike the Oakley affidavit was dismissed with written reasons to follow. These are the reasons for dismissing the motion to strike the Oakley affidavit.
[21] The Oakley affidavit was 105 pages long and attached multiple volumes of material, including medical records, expert reports, reports of inquiries and records related to the procedural history of the matter.
[22] TASER submitted that the Oakley affidavit suffered from the following defects:
(i) It violated the Rules of Professional Conduct which provide that a lawyer who appears as an advocate shall not testify or submit their own affidavit evidence before the tribunal unless permitted to do so by the tribunal, the rules of court or the rules of procedure of the tribunal, or the matter is purely formal or uncontroverted.
(ii) Motions for summary judgment go to the heart of the dispute between the parties and lawyers for the parties will generally have no specific facts showing there is no genuine issue requiring trial: "information and belief" affidavits from counsel will rarely satisfy the requirements of Rule 20.02.
(iii) The affidavit is replete with statements of fact not within the knowledge of the affiant, Mr. Oakley. Although he has identified the sources of his information and belief, he has no personal knowledge of the events of the accident, the TASER products and practices and Derbyshire's upbringing and personal life;
(iv) There are extensive attachments to the affidavit prepared by third parties which are adopted for the truth of their contents, and are not the subject of attestation to the veracity of the documents by Mr. Oakley;
(v) There are instances of argument, submissions without information and belief that more properly belong in a factum, as well as impermissible opinion evidence or recitations of the opinions of other experts retained by the plaintiff. TASER submits this is improper "oath-helping."
[23] The plaintiffs submit that this affidavit was provided over a year ago to TASER. They say that the Oakley affidavit provided a roadmap to the documents likely to be tendered at trial and to organize those documents for the assistance of the motions judge. These documents include medical records, expert reports, discovery transcripts, affidavits of documents and public records.
[24] Parties on a summary judgment motion must put their "best foot forward." The plaintiffs submit they are ensuring the motions court had the necessary relevant materials. They argue that the materials appended to the Oakley affidavit were to a large extent produced during documentary discovery and are independently admissible at trial.
[25] The plaintiffs also submit the Oakley affidavit sets out the sources of the information relied upon in all but two paragraphs. The records are either independently admissible at trial, are subject to the public record exception to the hearsay rule, or in the case of media reports, are being tendered to show that concerns about the safety of TASER electrical weapons was being made public, rather than for hearsay purposes. The peer-reviewed articles attached to the affidavit are admissible as being capable of use for putting to witnesses and experts at trial.
[26] TASER submitted that the Oakley affidavit was used to shield other witnesses from cross-examination. The plaintiffs respond that the affidavit and examination of a key witness, Officer Wilkinson, were filed on the motion.
[27] Counsel for the plaintiffs, Ms. Oakley, conceded that some portions of the affidavit read as argument. These should have been placed in the plaintiffs' factum.
[28] I have approached the admissibility of the Oakley affidavit with reference to the live issues on the motion for partial summary judgment. TASER's arguments center on the absence of evidence or legal foundations to support some of the plaintiff's claims in law. The plaintiffs tender the Oakley affidavit and attachments to demonstrate what the trial evidence will look like. It is critical to understand the records that will be available at trial to make decisions on a motion for partial summary judgment. This material responds to questions of whether and how evidence will be used and permits a better understanding of whether there will be any risk of inconsistent findings of fact. The plaintiffs do not agree that the matters put in issue for partial summary judgment ought to be determined in that way.
[29] In Mapletoft v. Service, 2008 6935 (ONSC) at para. 29 Master MacLeod described the nature of motions for summary judgment:
Summary judgment then cannot be used simply to dispose of cases that appear weak. The court is not permitted to substitute skepticism for due process or to put it another way, a motion under Rule 20 is not an exercise in considering the evidence that would be heard at trial and then reaching the conclusion the motion judge thinks the trial judge should reach. Rather it is a screening mechanism to determine if there is sufficient evidence to require a trial. In effect the evidence heard on the summary judgment motion is evidence about evidence…If there is potentially admissible evidence that could reasonably be believed and that evidence could lead a court to find in favour of that responding party then there is a triable issue. (Emphasis added)
[30] The responding parties are obliged to "put their best foot forward." They have done so with an omnibus affidavit from counsel that is "evidence about evidence." The affidavit does not purport to speak for vague sources. It attaches records that are independently admissible. The sources of information are identified in virtually every paragraph. The alternative would be multiple affidavits from each author or foregoing a complete record. This is not required by the issues in play on this motion.
[31] I agree that for these purposes, the Oakley affidavit is admissible and should not be struck. Where it strays into argument, these passages can be given no weight.
[32] The motion is not the trial; the fact that there will certainly be a trial requires an understanding of the expected evidence and additional information that may be relevant to the trial issues.
[33] In Ferreira v. Cardenas [2014] ONSC 7119 at para. 15, Justice F.L. Myers gave examples of where counsel would be the best source of information. This is not one of those procedural examples. It is, instead an example of admissibility driven by the issues, context and the positions of the parties. The Oakley affidavit provides a preview of what might be expected at trial and is responsive to TASER's arguments that there is no genuine issue requiring trial on aspects of product liability that have been pleaded. Notably, the plaintiffs are not seeking judgment on the strength of their record. They seek the opportunity to try their case at trial as one product liability case with different facets and duties at issue. The Oakley affidavit functions as a guide to the trial evidence in answer to TASER's motion.
[34] TASER also raised the issue of counsel providing an affidavit where his/her firm is appearing in the proceeding. I have reviewed the cases provided and the Rules of Professional Conduct. The nature of the affidavit and the fact that Mr. Oakley took no part in the motion for summary judgment satisfies me that there is no concern at this stage with receiving his affidavit. As noted by Justice Myers in Ferreira, "if it is necessary to rely on the information or belief of counsel with carriage of the file, it is preferable for counsel to swear the affidavit and have other counsel argue the motion."
[35] The general proposition that it is preferable for lawyers not to be the source of affidavit evidence on matters outside of their knowledge on motions for summary judgment is a sound first principle. In this case and in the context of this motion, I permitted the Oakley affidavit to remain in the record. At the time of argument, I invited counsel to identify any problematic paragraphs that were argument so that these could be addressed as a matter of weight.
The Motion for Partial Summary Judgment
The Issue of Negligent Manufacturing
[36] The trial on negligent design of the electrical weapon will require evidence and submissions on the alleged defects in the TASER electrical weapons that were manufactured at the time of these events. The plaintiffs argue that whether the alleged defects are a function of design or manufacture, the same "factual matrix" and evidentiary foundation are required to determine if it is a design problem, a manufacturing problem, or both.
[37] TASER is both the designer and manufacturer. There is some evidence in the form of an expert report appended to the Oakley affidavit that the Leamington TASER electrical weapons had serial numbers that suggest they were manufactured in the same batch that included other units that were tested independently. Those tests provide some evidence of defective operation by delivering higher levels of electrical discharge than were considered safe for human application. TASER submits that this testing only found that four older models produced current in excess of the manufacturer's specifications, and these were devices manufactured before 2005.
[38] TASER submits that the unavailability of the actual electrical weapon used by Wilkinson means that there is no evidence supporting an issue for trial on negligent manufacturing. It urges that I apply the approach taken in Nadeau v. Nexacor Realty Management Inc., 2002 CarswellOnt 1737, 114 A.C.W.S. (3d) at para. 12 which noted in an elevator malfunction case involving an allegedly faulty governor switch, "There is no evidence in this case that the part was defective at the point of manufacture. Furthermore, without the part in question, the Plaintiff cannot make out a case of negligent manufacture."
[39] TASER also submits that there has been no specific defect identified. There was evidence that the weapon functioned on the night in question as it was intended to. TASER says this is the end of the matter and it cannot be said that there was no malfunction or defect in that unit.
[40] The fact that the electrical weapon "worked" in the sense that it shot the darts and conducted electricity into the body of Derbyshire is not a complete answer to the issue raised by the plaintiffs. It is alleged here that there were product defects in the line of weapons from which the Leamington police made its purchases. These defects are alleged to include varying levels of electrical discharge and sighting problems resulting in a higher risk of strikes to the head.
[41] TASER has filed material concerning the testing done on the electrical weapons that were manufactured and sold during the relevant time. Michael Brave, Director of Conducted Electrical Weapon Legal for TASER provided an affidavit and was cross-examined on that affidavit for this motion. During his cross-examination 93 questions were refused. Several requests for information were taken under advisement. These included information on whether TASER did certain additional testing (failure mode or electrical safety factors) before selling the model used by the Leamington police. The plaintiffs submit that these outstanding refusals and requests also represent gaps in the record that should raise caution in adjudicating parts of this matter now by way of partial summary judgment.
[42] In response to the claim that without the actual weapon, there is no ability to prove a manufacturing defect, the plaintiffs submit that an inference may be drawn from circumstantial evidence (Johansson v. General Motors, 2012 NSCA 120 at paras. 65 and 66; Pennock v. Aerostar, 2012 BCSC 1422 at paras. 55 and 57.)
[43] I conclude that negligent manufacturing is a genuine trial issue. There is circumstantial evidence that there were problems with the weapons reported and tested at the relevant time. Whether or not this evidence is accepted is for the trial. Unlike the issues in Nadeau, which involved one part and whether it was defective, here the plaintiffs allege a set of problems with a line of TASER's electrical weapons. This is not an allegation of an individual product failure but of risks leading back to either design or manufacture or both, with concomitant injuries, accidental head strikes and public inquiries into the issues said to arise from those defects. There is some foundation found in the expert evidence and in public company filings about the risks during this period that support going to trial on that issue. At this stage, on this record, I cannot rule out that any problems with the weapon was a matter of the design specifications, the manufacturing process, or perhaps both.
[44] If the issue of negligent manufacture is dismissed at this stage, there is a real risk that evidence could emerge at trial that is not known now: this leads to the possibility of inconsistent findings. TASER has not satisfied its burden to demonstrate there is no genuine issue requiring trial on the manufacturing negligence portion of the plaintiffs' claim.
The Issue of Duty to Warn
[45] TASER argues that there is no genuine issue requiring trial on any duty to warn based on the law taken from Sauer v. Canada (A.G.) 2007 ONCA 454 at para. 51, that a product manufacturer does not have a duty to warn persons who are not the purchaser or user of the product where such warnings would not have had an impact on the user. By this reasoning, TASER submits it had no duty to warn Derbyshire because he had not been trained in the use of the electrical weapon. The decision to deploy the weapon was not TASER's. It was made by Wilkinson. TASER says that to extend a duty of care to a bystander would require TASER to warn "the world" which is neither practical nor realistic. This would impose indeterminate liability on TASER each time the electrical weapon is used by law enforcement officials.
[46] In Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 307 (SCC), [1997] 3 S.C.R. 1210, [1997] S.C.J. No. 111 at para. 19, the Supreme Court of Canada provided this simple statement of the law on the duty to warn:
Manufacturers and suppliers are required to warn all those who may reasonably be affected by potentially dangerous products…This duty extends even to those person who are not party to the contract of sale…The potential user must be reasonably foreseeable to the manufacturer or supplier—manufacturers (including a builder-supplier like SJSL) do not have the duty to warn the entire world about every danger that can result from improper use of their product. [citations omitted]
[47] TASER concedes that both negligent design and failure to warn require consideration of the risks that are inherent in the use of the product. Its position is that in this case, and with these relationships, there was no duty of care to warn, and no causation. Based on those elements, it says there is no risk of inconsistent factual findings at trial.
[48] TASER identifies the user as Wilkinson, who was trained by Diebold. Diebold in turn was trained by TASER and supplied with their materials and warnings. TASER argues that the evidence on the motion supports a finding that Wilkinson would not have done anything differently because he did not receive copies of the warnings during his training. Thus, there was no reliance on any warning (faulty or not) and no causal connection between any failure to warn and Wilkinson's use of the weapon.
[49] Evidence from Wilkinson on his affidavit and during his cross-examination included:
(a) He received training on the TASER electrical weapon sometime between June 2006 and June 2007, but could not recall the exact date;
(b) He was aware the preferred target areas were the torso, centre mass and legs;
(c) He was aware he should avoid targeting the head;
(d) He was told nothing about potential brain damage caused by a head strike;
(e) He targeted the suspect's centre mass on the night of the incident, did not aim at Derbyshire and did not intend to strike him in the head;
(f) He said that he did not see the product warnings and said he was not aware of any seizure risk;
(g) He "never saw the pamphlet" containing product warnings that was produced to him during his cross-examination;
(h) He agreed that the strike took place in a 'fluid and dynamic' situation.
[50] Wilkinson also testified that this incident was a "game changer." He believed at the time that this was a benign mid-level weapon designed to stop a suspect without causing any serious or permanent injury. He remembered being told that the rationale for avoiding a strike to the head was that the probe could become embedded in the eye or face. He said he was not told that the electrical charge to the head was itself dangerous.
[51] Wilkinson testified that he would not use this electrical weapon in similar circumstance as he did on the night in question. He has changed his practices around the electrical weapon, using it only for circumstances of "combative resistance."
[52] Wilkinson described being at the hospital with Derbyshire, who described the strike as like being "hit in the head with a baseball bat."
[53] TASER placed significant weight on Wilkinson's answer that he never saw the pamphlet with the warnings, because it required instructors to hand out copies of the product warnings. It argues that this evidence breaks the chain of causation: if the warnings were not communicated there was no breach by TASER. The responsibility lies with Diebold and/or the Leamington police.
[54] The plaintiffs point out that Wilkinson's evidence was given years after the events, and that he had undergone additional training since 2006-2007. Further, there was no evidence tendered on the motion from the TASER certified trainer, Diebold. The plaintiffs submit that this evidence will need to be tested and heard at trial on a complete record to determine issues of causation.
[55] The plaintiffs' record included an expert report from an engineering/human factor expert, Jason Young. Mr. Young gave an opinion that the warnings in the TASER sanctioned materials, particularly that regarding head shots, was inadequate and contradictory. In the training materials that preceded the incident involving Derbyshire, Mr. Young opined that "no mention was made of the neurological danger of direct electric shock to the brain." Various versions of the diagrams in the materials included the head as a valid target: this did not change until a Training Bulletin in 2009 excluded the head as a possible target.
[56] The Young opinion also looked at the TASER product literature. This literature warned about immediate or short term physical or physiological effects. There were no warnings about long term effects on cognitive or psychological functioning.
[57] The plaintiffs' record includes medical reports which describe symptoms experienced by Derbyshire in the 10 years post-strike from the electrical weapon, including headaches, memory loss, loss of concentration, loss of ability to learn, chest pain, heart palpitations, among other symptoms. Before the incident, he was a healthy 35-year-old.
[58] The plaintiffs submit that the evidentiary backdrop for these issues overlap. I agree. It can be anticipated that evidence about the nature of the weapon will be necessary on questions of negligent design and the scope of duty of care, as well as the duty to warn, which is related to the risks posed by the weapon.
[59] I am not persuaded that there is no genuine issue requiring trial on the question of TASER's duty to warn the Leamington police force or Diebold who was certified by TASER to deliver training to officers on the use of the electrical weapon. These may include issues of credibility as to what Wilkinson did, the training provided to him and how his actions might have changed if the warnings had been different or delivered in other formats. This may arise from evidence given by Diebold at trial or from further discovery received in response to the 93 refusals by TASER employee Michael Brave.
The Issue of Implied Warranty
[60] The plaintiffs complain that the manufacturer's statements about the electrical weapon may have influenced its use. The evidence of the statements of the manufacturer will overlap with the warnings issue. The application of the legal test in these circumstances is best made on a complete record, at the time of trial of all of the product liability issues.
Conclusion
[61] The motion for partial summary judgment is dismissed. Hryniak speaks to efforts to salvage the time spent on such motions with reference to the trial management powers from Rule 20.05 and the court's inherent jurisdiction. If there are pre-trial scheduling matters or directions which would assist the parties in efficiency at trial, I am available for those purposes.
Costs
[62] If the parties are unable to agree as to costs, they may exchange and file brief submissions as to costs on or before September 12, 2019.
Leiper J.
Released: August 23, 2019
COURT FILE NO.: CV-09-380974
DATE: 20190823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SCOTT DERBYSHIRE, SHARI DERBYSHIRE and the minors, DAYNE JAIRUS WILLIAM DERBYSHIRE and DAVIN NAOMI VICTORIA DERBYSHIRE, by their Litigation Guardian, SCOTT DERBYSHIRE Plaintiffs
– and –
TASER INTERNATIONAL INC. Defendant
REASONS FOR DECISION (MOTION FOR PARTIAL SUMMARY JUDGMENT)
Leiper J.
Released: August 23, 2019