Guarantee Company of North America et al. v. Mercedes-Benz Canada Inc. et al.
[Indexed as: Guarantee Co. of North America v. Mercedes-Benz Canada Inc.]
83 O.R. (3d) 316
Ontario Superior Court of Justice,
Jenkins J.
September 28, 2005*
* This judgement was recently brought to the attention of the editors.
Conflict of laws — Foreign law — Plaintiff bringing action in Ontario against manufacturer of car which was damaged in Florida when fire started under hood — Defendant bringing motion for summary judgment dismissing action as statute barred by two-year limitation period in Highway Traffic Act — Plaintiff taking position on motion that law of Florida applied and that applicable limitation period was four years — Onus on plaintiff to prove that law of Florida applied — Plaintiff adducing no evidence as to law of Florida — Plaintiff not meeting onus — Law of Ontario applying — Motion granted — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1).
Limitations — Motor vehicles — Damages occasioned by motor vehicle — Motor vehicle damaged when fire started under hood — Damages “occasioned by motor vehicle” — Two-year limitation period in s. 206(1) of Highway Traffic Act applying — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1).
The plaintiff’s motor vehicle, which was registered in Ontario, was damaged beyond repair when a fire started under the hood when the vehicle was in Florida. The plaintiff brought an action in Ontario for negligence in the manufacture or servicing of the motor vehicle. The defendant brought a motion for summary judgment dismissing the action on the ground that it was statute barred as it was not commenced within the two- year limitation period in s. 206(1) of the Highway Traffic Act. The plaintiff denied that the Highway Traffic Act applied and, alternatively, alleged that Florida law applied and that the applicable limitation period was four years.
Held, the motion should be granted. [page317]
Since foreign law is a matter of fact, it must be specifically pleaded and proved by expert evidence. The onus was on the plaintiff to provide that the law of Florida applied and that it was different than the law of Ontario. There was no opinion or other evidence before the court as to the law of Florida. As a result, the plaintiff had not met the onus and the law of Ontario applied. Section 206(1) of the Highway Traffic Act provides that no proceedings shall be brought for recovery of damages occasioned by a motor vehicle after the expiration of two years from the time when the damages were sustained. The damage in this case, which was allegedly caused when transmission fluid leaked onto the exhaust manifold, starting a fire, was damage “occasioned by a motor vehicle”. As a result, the plaintiff’s claim was statute barred.
Cases referred to
Karakas v. General Motors of Canada Ltd., [2005] O.J. No. 2462, 19 M.V.R. (5th) 137 (C.A.), affg (2004), 74 O.R. (3d) 273, [2004] O.J. No. 5231, 10 M.V.R. (5th) 301 (S.C.J.), folld
Other cases referred to
Heredi v. Fensom, [2002] 2 S.C.R. 741, [2002] S.C.J. No. 48, 219 Sask. R. 161, 213 D.L.R. (4th) 1, 289 N.R. 88, 272 W.A.C. 161, [2002] 8 W.W.R. 1, 2002 SCC 50, 25 M.V.R. (4th) 85, 12 C.C.L.T. (3d) 1, 19 C.P.C. (5th) 1
Statutes referred to
Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1) [rep.] Insurance Act, R.S.O. 1990, c. I.8
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 24(3) Negligence Act, R.S.O. 1990, c. N.1
Authorities referred to
Castel, J.G. & J. Walker, Canadian Conflicts of Laws, 6th ed. (Toronto: Butterworths, 2005)
MOTION for a summary judgment dismissing an action.
Nathan Ferguson, for plaintiffs Guarantee Company of North America and Ramona Stevenson.
Jason Murphy, for defendant Mercedes-Benz.
Jonathon Kahane-Rapport, for defendant 872036 Ontario Limited O/A Kennedy M.B. Auto Body.
[1] Endorsement by JENKINS J.:– The defendant Mercedes-Benz moves for summary judgment dismissing the plaintiff’s action against it on grounds that the action is statute barred by the two-year limitation period in s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 as continued by s. 24(3) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
[2] The plaintiffs deny that the Highway Traffic Act applies or, in the alternative, they allege that the law of the State of Florida applies and the limitation period is four years. The plaintiffs therefore seek an order re-opening the pleadings and allowing them to file a reply, alleging that the law of Florida applies to this case. [page318]
Facts
[3] On October 31, 2001, William Smith, a relative of the plaintiff Ramona Stevenson, was driving her vehicle in the State of Florida. While the vehicle was parked at a service centre in Delray Beach, a fire started under the hood. The only damage resulting from the fire was to the vehicle which was registered in Ontario and insured by the plaintiff, Guarantee Company of North America. The vehicle was damaged beyond repair and the plaintiffs suffered a loss of $113,660. They have sued the defendants in Ontario for negligence in the manufacture or servicing of the vehicle.
[4] In the opinion of Paul Kucera, a forensic engineer who examined the vehicle, the fire was caused when transmission fluid leaked onto the exhaust manifold. Mr. Kucera believes the transmission dipstick was improperly installed, replaced or removed, allowing the fluid to escape.
[5] The defendant Mercedes-Benz contends that there is no evidence before the court as to what law of the State of Florida applies to this case and consequently, the law of Ontario governs. Further, the defendant Mercedes-Benz alleges that the two-year limitation period in s. 206(1) of the Highway Traffic Act prohibits the plaintiffs from proceeding with this action. The defendant numbered company did not file any material on the motion.
Conclusions
[6] There are two issues involved in this motion. The first is whether the plaintiffs are entitled to argue that the question of what law applies raises a triable issue. The second is if the law of Ontario applies, is the action governed by the limitation period contained in the Highway Traffic Act.
[7] The plaintiffs’ action was commenced by a Statement of Claim issued in the Ontario Superior Court of Justice on August 12, 2004, more than two and a half years after the fire. The plaintiffs plead and rely on the law of Ontario in their Statement of Claim citing the Insurance Act, R.S.O. 1990, c. I.8 and the Negligence Act, R.S.O. 1990, c. N.1.
[8] Mercedes-Benz served its Statement of Defence on September 17, 2004 and pleaded that the action was statute barred under Ontario Law and pleaded the Highway Traffic Act and the Limitations Act.
[9] The defendant Mercedes-Benz alleges that the plaintiffs did not raise the issue of Florida law until just before this Motion for Summary Judgment was to be heard and since there [page319] is no evidence before the court as to what the law of Florida is, the defendant’s motion to have the action dismissed should be granted.
[10] In the sixth edition of J.G. Castel and J. Walker, Canadian Conflicts of Laws 6th ed. (Toronto: Butterworths, 2005), the following passage appeared in ch. 7 at para. 7.1:
Subject to certain exceptions, foreign law is treated like a fact, which must be specifically pleaded by the party relying upon it, and which must be proved to the satisfaction of the court. Canadian courts generally do not take judicial notice of foreign law and they apply the lex fori law unless applicable foreign law is pleaded and proved.
Since foreign law is a matter of fact, it must be specifically pleaded and proved by expert evidence.
[11] In this case, the onus is on the plaintiffs to prove that the law of Florida applies and that it is different than the law of Ontario. There is no opinion or other evidence before me as to the law of Florida. As a result, the plaintiffs have not met the onus and I find that the lex fori or the law of Ontario applies in this case.
[12] Section 206(1) of the Highway Traffic Act provides that no proceedings shall be brought against a person for recovery of damages occasioned by a motor vehicle after the expiration of two years from the time when the damages were sustained. If that section applies to this case, then the plaintiffs’ action against the defendant Mercedes-Benz is out of time. [13] In Heredi v. Fensom, [2002] 2 S.C.R. 741, [2002] S.C.J. No. 48, the Supreme Court of Canada dealt with the meaning of the phrase “damages occasioned by a motor vehicle”. At para. 35, Iacobucci J. said:
In other words, the true intent of the statute is that “damages occasioned by a motor vehicle” requires that the presence of a motor vehicle be the dominant feature or constitute the true nature of the claim. Conversely, claims, whether framed in contract or in tort, where the presence of a motor vehicle is a fact ancillary to the essence of the action, ought not to be regarded as within the scope of that phrase.
[14] In Karakas v. General Motors of Canada Ltd. (2004), 74 O.R. (3d) 273, [2004] O.J. No. 5231 (S.C.J.), the plaintiffs suffered damages to their home and car as a result of a fire that started in the car which was parked in the garage. The evidence was that the fire started due to defective wiring in the car and the issue was whether the damage resulting from the fire was damage occasioned by a motor vehicle and covered by the limitation period in the Highway Traffic Act.
[15] Rouleau J. held that although the motor vehicle was not in the course of conveying or travelling on the highway when the [page320] damage occurred, it was a part of the motor vehicle that was central to the conveyance function of the motor vehicle that caused the damage. He said the plaintiffs cannot attribute the damage to anything other than the motor vehicle and the parts of the motor vehicle central to the conveyance function.
[16] As a result, Rouleau J. held that the motor vehicle was the dominant feature of the claim and he concluded that the plaintiff’s claim was for damages occasioned by a motor vehicle and that it was statute barred. That decision was subsequently upheld on appeal: See Karakas v. General Motors of Canada Ltd., [2005] O.J. No. 2462, 19 M.V.R. (5th) 137 (C.A.).
[17] Although I am bound by the Karakas decision, I do not believe it was correctly decided. The essence of the claim in that case appears to have been a defect in the wiring caused by the manufacturer, and consequently, the presence of the motor vehicle was ancillary to the essence of the action. That, of course, is the situation in this case.
[18] Since, however, I am bound by the Karakas decision, I find that the damage in this case was occasioned by a motor vehicle and consequently s. 206(1) of the Highway Traffic Act applies. As a result, the plaintiff’s claim against the defendant Mercedes-Benz is barred by the two-year limitation period under the Highway Traffic Act.
[19] The defendant Mercedes-Benz’s motion for summary judgment is therefore granted and the action is dismissed as against Mercedes-Benz. Since the defendant numbered company did not file any material, I have no jurisdiction to dismiss the action as against it. The plaintiffs’ motion to re-open the pleadings is dismissed. If necessary, the parties may make written submissions concerning costs within 15 days of the date of this order.
Motion granted.