ÉMILIE SAVOIE Plaintiff/Respondent on Motion - v. -, 2023 NBKB 48

2023 NBKB 048 BC-217-2018 COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: ÉMILIE SAVOIE Plaintiff/Respondent on Motion - and - KIA CANADA INC. TONER CHEVROLET BUICK GMC LTD. Defendants/Applicants on Motion BEFORE: The Honourable Judge Ivan Robichaud AT: Bathurst, New Brunswick DATE OF HEARING: January 19, 2023 DATE OF DECISION: March 23, 2023 APPEARANCES: Jacques Gauthier for the plaintiff. Talia Profit, K.C., for KIA Canada Inc. Emmy Chiasson and Brian Morris for defendant Toner Chevrolet Buick GMC Ltd.

Robichaud, J. : I INTRODUCTION [ 1 ] The Plaintiff and Respondent on motion was involved in an accident on November 16, 2016 when her vehicle hit a moose. [ 2 ] The Plaintiff was then operating a 2007 Kia Spectra manufactured by the Defendant Kia Canada Inc. (Kia) that she had bought from the Defendant Toner Chevrolet Buick GMC Ltd (Toner).

[ 3 ] The airbags did not deploy on impact. [ 4 ] The Plaintiff has filed a notice of action against both defendants alleging a defect in manufacturing and breach of warranties under the Consumer Product Warranty and Liability Act . [ 5 ] Both Defendants have filed motions requesting that the Plaintiff’s action be dismissed for delay under Rule 26, that it be dismissed for failing to file and serve an affidavit of documents or to produce documentation, under Rule 31 and for a

Summary Judgment under Rule 22. [ 6 ] Both Defendants have relied on the evidence in both motions for their respective motions. II ISSUES

a) Should a

Summary Judgment be granted against the Plaintiff?

b) In the negative, should the Plaintiff’s action be dismissed for delay?

c) In the negative, should the Plaintiff’s action be dismissed for failure to file and serve an affidavit of documents and to produce documentation? III

SUMMARY JUDGMENT [6] The applicant on a motion for

summary judgment has the burden of proof to establish, on a balance of probabilities, that there is no genuine issue requiring a trial [1] . [7]

Summary judgment is no longer an exceptional remedy, the hearing and determination of any related motion now constituting “a significant alternative model of adjudication’’. [2] [8] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [3] [9] The rule provides a two-step process. In step one, the judge must determine if the evidence put before him reveals a genuine issue requiring a trial, without resorting to the fact-finding powers contained in Rule 22.04(2) and (3).

If the assessment of the evidence in the first step leads to the conclusion that there may be a genuine issue requiring a trial, the judge then needs to determine if that trial can be avoided using the fact-finding powers. [4] [10] If the Court is satisfied that there is no genuine issue requiring a trial, it must grant

summary judgment [5] . [11] Each party must “put their best foot forward” and the responding party has to “lead trump or risk losing.” The responding party cannot simply say that there will be more or better evidence at trial. [6] [12] In determining whether

summary judgment should be granted the analysis must logically begin with an examination of the pleadings, the nature of the relief claimed, the facts alleged to support the claims of relief, any admissions and then an examination of the evidence presented on the motion for

summary judgment [7] . A. Pleadings

[13] The Plaintiffs Statement of claim contains the following: [TRANSLATION] 2.1 On November 21, 2016, while travelling from Shippagan to Pokemouche, the Plaintiff was involved in a motor vehicle accident with a moose on the Shippagan Plains at about 6:30 p.m. At the time of the accident, it was already dark, and the weather was rainy. 2.2 The Plaintiff’s vehicle struck the animal with such force and so violently that the Plaintiff, although wearing her seat belt, was thrown backwards, sideways and forwards inside the vehicle.

She sustained extensive injuries, particularly when her head struck the steering wheel and cab window and when her body struck the interior of the vehicle. None of the airbags in the vehicle deployed at the time of the impact with the animal or when the vehicle rolled over several times and landed in the ditch which was several metres deep. 3.1 The non-deployment of the vehicle’s airbags aggravated the injuries sustained by the Plaintiff in the November 21, 2016 accident.

This manufacturing defect is the result of the negligence of Kia Canada Inc., the manufacturer of the 2007 Kia Spectra5 owned and operated by the Plaintiff Émilie Savoie. 3.2 Under the Motor Vehicle Safety Regulations (C.R.C. , c. 1038 ),

Schedule III, which sets out motor vehicle safety standards in Canada, it is mandatory for a motor vehicle to be equipped with driver impact protection and frontal and side impact protection. During the Plaintiff’s accident, none of the airbags deployed to protect the driver. At the time of impact, her face hit the steering wheel hard and, when the vehicle rolled over, her head hit the inside of the cab as well as the window several times. The Plaintiff claims that the injuries sustained in the accident were aggravated by the non-deployment of the airbags. 3.3 When a vehicle is purchased, it is understood that it is equipped safely with all functional products. Under paragraph 10(1)(

a) of the Consumer Product Warranty and Liability Act , S.N.B. 1978, c. C-18.1 , there is an implied warranty given by the seller to the buyer that the product is of such quality and in such state or condition as it is reasonable to expect. As manufacturer, designer or seller, it has the responsibility to ensure that no part or component is defective. The Plaintiff claims that the Defendants were negligent and that they contravened the Act because the inflatable protection system was defective. 3.4 Under paragraph 10(1)(

b) of the Consumer Product Warranty and Liability Act , the seller has the responsibility to ensure that the product sold complies with all mandatory federal and provincial standards in relation to health, safety, and quality. The Plaintiff claims that the product sold by the Defendants does not comply with federal and provincial standards. 3.5 Alternatively, under subsection 12(1) of the Consumer Product Warranty and Liability Act , there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time.

The Plaintiff claims that the seller was negligent in selling the vehicle because it did not ensure that its product and its components were in good working order. 3.6 If a defect occurs, the manufacturer also has a duty to warn its customers, so that they may be aware of the problem and possibly resolve it. As such, they will have control over the degree of risk they may encounter. The Plaintiff claims that the manufacturer, Kia Canada Inc., was negligent in the design of its vehicle, as well as in the follow-up, to ensure the proper functioning of its vehicles. B. The evidence regarding the request for a

summary judgment [14] The Defendant Kia has produced an affidavit stating that: • the 2007 Kia Spectra is manufactured with several safety features, including front-impact airbags, side-impact airbags and overhead airbags.

• The particular vehicle had six warranty claims, none relating to the airbags. • The vehicle was not subject to any airbag or Supplemental Restraint System recalls, and • Kia knows no evidence or information which would support the Plaintiff’s claim. [15] The Defendant Toner has produced an affidavit stating that: • It sold the vehicle to the Plaintiff in September 2013, three years prior to the accident. • Prior to selling the vehicle, it conducted an inspection and repaired defects found.

The inspection included “SRS system warninglight/self-test”. • At the time of purchase, the vehicle had an odometer reading 107 477 kilometers. • The purchase price was $ 4000 before taxes and fees. • The vehicle was sold on an “as is” basis.

This is found on the contract of sale. • The purchaser declined additional documentation protection and warranties. • Other documents were signed stating the vehicle was sold “as is” without warranty. [16] The day before the hearing of the motion, the Plaintiff and Respondent on motion filed a short affidavit addressing mainly thequestion of delays and the production of affidavits of documents. The only facts that address the issue raised by the motion for

SummaryJudgment are that: • On November 21, 2016, she had an accident when her vehicle hit a moose. • The airbags did not deploy. • The vehicle sustained extensive damages and landed upside down. [17] In Lange v. Cannon[8], our Court of appeal said: Common sense should move the parties to put their best foot forward on a motion under Rule 22. Such a course of conduct isparticularly wise for a respondent, since he or she has the most to lose. As stated by the Ontario Court of Appeal in 061590 Ontario Ltd.v.

Ontario Jockey Club (1995), (ON CA), 21 O.R. (3d) 547 at 557 in a vernacular expression, the respondent "mustlead trump or risk losing." It will rarely be sufficient for the respondent to promise that evidence, which is admissible pursuant to Rule39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produce admissible evidence whichwill prevent a conclusion that the action or defence is bereft of merit. I have no doubt that, where the ends of justice require, the courtwill allow all appropriate accommodations including leave to file further affidavit evidence.

[18] Even though that decision was issued under the former Rule 22, the obligation for the parties to put their best foot forward has been confirmed under the new rule by our Court of Appeal in O’Toole v. Peterson . [9] [19] The Plaintiff has certainly not “put her best foot forward”. Her evidence is simply that the airbags did not deploy, and her vehicle sustained extensive damages. She submits that the airbags must therefore have been defective. [20] Her pleadings allege that the Motor Vehicle Safety Regulations, CRC, c 1038 , requires airbags.

She has produced no evidence that the vehicle when manufactured or sold did not meet the requirements of the regulation as it stood at the time of manufacture. The evidence before me is that the vehicle was equipped with airbags. There is no evidence as to when airbags should deploy. [21] The provincial standards established for the inspection of vehicles in New Brunswick are found in the Vehicle Inspections Regulations – Motor Vehicle Act [10] .

They do not include any inspection of the airbags. [22] The Plaintiff has not produced any expert evidence to show that the airbags should have deployed in the particular circumstances of this accident and that the failure to deploy caused or aggravated her injuries. I cannot accept the submissions of counsel as evidence. [23] More than six years after the accident, the Plaintiff still has no evidence whatsoever of a manufacturing defect or design.

The Plaintiff cannot simply say that this evidence will be produced at trial. [24] She has produced no evidence that could contradict the Defendant Toner’s evidence as to the implied warranties. It was a used car, sold “as is” for a low price. The Plaintiff used it for three years prior to the accident. See Levesque v.

Bayside Chrysler Dodge Ltd . [11] The Defendant Toner inspected it and obtained a CarProof report to ensure the vehicle had not been in a prior accident. [25] The Plaintiff has also not presented any evidence of having difficulty in obtaining the necessary expertise and has not requested an adjournment. This is not a situation where allowing a further affidavit from the Plaintiff would be appropriate or required. [26] I therefore find that I can make the necessary findings of fact. There are no disputed facts and no question of credibility.

I can apply the law to the facts and the process is a proportionate, more expeditious and less expensive means to achieve a just result. [27] It is therefore my conclusion that both Defendants have met their onus to prove, on a balance of probabilities, that there is no genuine issue requiring a trial. Having made that determination, I do not have any remaining discretion and must grant a

summary judgment. [28] I need not address the other issues. IV DISPOSITION [29] Kia Canada Inc. and Toner Chevrolet Buick GMC Ltd are both granted a

summary judgment against the Plaintiff Émilie Savoie on all the claims in the Plaintiff’s Statement of Claim. [30] Both Defendants are entitled to their costs, set at 1000 $ each, plus HST and admissible disbursements. Dated at Bathurst, New Brunswick, this 23 rd day of March 2023.

Ivan Robichaud, JCKB [11] 2009 NBQB 236