FREEMAN MCKAY, Plaintiff, - v. -, 2023 NBKB 45

Freeman McKay v. PACCAR Inc. et al. , 2023 NBKB 045 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MC-780-2019 BETWEEN: FREEMAN MCKAY, Plaintiff, - and - PACCAR INC., doing business as KENWORTH TRUCK COMPANY and BAYVIEW TRUCKS and EQUIPMENT LTD. , Defendants, - and - ROBERT BOSCH LLC, SEG AUTOMOTIVE NORTH AMERICA LLC, Third Parties. DECISION (ORAL) BEFORE: Justice Jean-Paul Ouellette AT: Moncton, New Brunswick DATE OF HEARING: February 10, 2023 DATE OF DECISION: February 10, 2023 APPEARANCES: Darren Glyn Blois , for the Applicant; John P.F.

Morrissy , for the Defendants; Allison Whitehead, K.C. , for the Third Parties. Ouellette, J. [ 1 ] The Court has already, on record, rendered a decision on the Defendant’s motion to add Third Parties Robert Bosch LLC and SEG Automotive North America LLC and discontinuing the action against the Third Party, Robert Bosch Inc., as well as a modification to the name and cause of this matter.

[ 2 ] The next issue the Court was asked to decide is whether, on motion by the Plaintiff, the Third Party Claim should be severed from the main claim so that the Plaintiff’s Action may proceed to trial without being hindered by delays from the Third Party Claim. [ 3 ] For the record, this litigation arises out of a fire in the McKay’s garage on November 12, 2017. Mr. McKay, the Plaintiff, had just purchased a new Kenworth truck from PACCAR Inc., the Defendant, just four days before the fire and parked the truck in his garage.

The fire clearly originated in the truck’s engine compartment, specifically in the area of the alternator.

The exact cause of the fire cannot be determined, as stated in the Statement of Claim, but arson and all other possible causes external to the engine have been eliminated. [ 4 ] This Action was filed on October 30, 2019, against PACCAR Inc. only. [ 5 ] The Statement of Claim is based entirely on an allegation of a breach of warranties, the fitness of the product and its merchantable quality under the Sale of Goods Act . [ 6 ] While stating that the fire was caused or contributed to by an inherent defect of the alternator, or some other part of which Mr.

McKay is not aware but provided by PACCAR, the truck, after four days of its delivery, burned. [ 7 ] Examinations for Discovery of the Plaintiff and the Defendant were concluded in December 2020. [ 8 ] After discoveries, the Defendant commenced Third Party proceedings against Robert Bosch Inc., believed to be the manufacturer of the alternator. [ 9 ] Over two years have passed since the Examinations for Discovery and the Defendant has failed to progress the Third Party proceedings. [ 10 ] The Plaintiff is ready to set the case down for trial but is unable to do so because of the Defendant’s delay in prosecuting the Third Party Claim. [ 11 ] Relying on Rule 30.11 of the Rules of Court , the Plaintiff is seeking an order to sever the Action from the Third Party Claim and proceed to trial as a separate action.

Rule 30.11 reads as follows: 30.11 Prejudice or Delay to Plaintiff In order that a plaintiff not be unnecessarily prejudiced or delayed because of a claim against a third party, the court may, on motion, impose terms, including a direction that the claim against the third party proceed as a separate action, where such terms do not cause injustice to other parties. [ 12 ] In the case at bar, the Defendant argued that he believes the principles of law which have emerged from the jurisprudence with respect to a motion under Rule 30.11 are as follows: (

a) Separate actions between defendants and third parties should be avoided to whatever extent possible; (

b) A plaintiff must demonstrate real potential harm. The extension of time and potential for additional legal costs arising from a third party claim are not, on their own, sufficient to justify severance of a third party claim; (

c) It is only fair, reasonable and feasible that the third parties be bound by findings of fact made in the trial and should, therefore, be participants in that action; and (

d) Severance of a third party claim could risk further proceedings, inconsistent decisions, delays, expenses and will not shorten the time to resolve all outstanding matters. [ 13 ] While these are reasons why an action should not be severed, this is not the basis of Rule 30.11.

The above reasons are found in the case law that was provided to me and were considered where a motion was denied. [ 14 ] Rule 30.11 is a Rule that is applied at the discretion of the Court and the most important principle is that a party, on a balance of convenience, is entitled to a just, least expensive and most expeditious determination of its claim while using the services of the court efficiently. [ 15 ] Within reason, separate actions between defendants and third parties should be avoided to whatever extent possible where it is more plausible for the action to have a determination on the whole of the matter. [ 16 ] At bar, severing the Third Party Claim to a separate action would not substantially increase the total amount of time necessary to adjudicate all claims on their merits. [ 17 ] The case law submitted by the Defendant in support of its argument, while being considered by the Court, has no bearing on this case. [ 18 ] The Plaintiff’s Action is for the purchase of a truck that caught on fire four days after its delivery and relies on the implied warranties under the Sale of Goods Act .

Just the allegation of the fire being within the truck’s engine compartment is sufficient to create an inference that the truck failed to meet the implied warranties. [ 19 ] The Third Party Claim by the Defendant is about contracts and communications with the Third Parties. What particular part failed and why that part failed are all things the Plaintiff is not concerned with. These two matters are completely different from one another.

[ 20 ] There is no real potential harm that has been brought to the attention of the Court for these two matters not to be severed. In those other matters that were brought to my attention, the extension of time and the potential legal costs arising from a third party claim were not, on their own, sufficient to justify severing the third party claim. In the case at bar, it has been two years since the Plaintiff’s Action has been ready to be set down for trial. [ 21 ] The Third Party Claim, in this matter, is about to begin with the filing of a third party claim in the next few days.

The parties, being on different continents around the globe, will necessitate a lot of time in order to prepare for, and bring, the Third Party Claim to trial. [ 22 ] The two-year delay of the Plaintiff’s Action was first caused by the Defendant not knowing who had built the alternator, among the 440 subsidiaries of Robert Bosch LLC or Inc., or if either one of them actually did build the alternator; this issue is still a mystery. [ 23 ] While both of these actions can proceed without the participation of the other, it goes without saying that if they were to proceed together, one party would be standing on the side while the other action proceeds.

The Plaintiff would incur expenses that are not justifiable, and the Third Party would be in the same position while the Plaintiff’s Action against the Defendant proceeds. I do believe that the action between the Defendant and the Third Party will take more time than the Action between the Plaintiff and the Defendant. [ 24 ] Rule 30.11 specifies that the Plaintiff is not to be unnecessarily prejudiced or delayed because of a claim against a third party.

There are already delays because of the Third Party action and these delays are not even at an end, they are at the beginning because the third party claim has not yet been filed. [ 25 ] Based on those reasons, the Court has no hesitation in ordering that the severance of the two matters is required for the Plaintiff’s right to a just, least expensive and most expeditious determination of it’s Claim against the Defendant. DATED at Moncton, New Brunswick this 10 th day of February 2023. ____________________________________ Jean-Paul Ouellette, Justice of the Court of King's Bench of New Brunswick