Arthur Wells Appellant (Plaintiff) v. General Motors of Canada, 2019 SKCA 29

Court of Appeal for Saskatchewan Docket: CACV3321 Citation: Wells v General Motors of Canada Company/Compagnie General Motors du Canada , 2019 SKCA 29 Date: 2019-03-26 Between: Arthur Wells Appellant (Plaintiff) And General Motors of Canada Company/Compagnie General Motors du Canada Respondent (Defendant) Before: Richards C.J.S., Caldwell and Leurer JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On Appeal From: 2018 SKQB 253 , Saskatoon Appeal Heard: March 4, 2019 Counsel: Stuart A.

Busse, Q.C. for the Appellant Kenneth A. Ready, Q.C. for the Respondent Leurer J.A. I. Introduction [ 1 ] This is an appeal from the grant of

summary judgment, dismissing the claim of the appellant, Arthur Wells, against the respondent, General Motors of Canada Company/Compagnie General Motors du Canada [GM]. [ 2 ] For the reasons that follow, I would grant Mr. Wells’ appeal, set aside the order for

summary judgment, and give Mr. Wells leave to cross-examine on the affidavits filed by GM in this matter. II. Background [ 3 ] On December 12, 2015, Mr. Wells was driving on a paved Saskatchewan highway when his vehicle, a 2007 GMC Envoy, caught fire. Mr. Wells suffered personal injuries, and his vehicle was totally destroyed. [ 4 ] Mr. Wells commenced action on April 19, 2017.

His statement of claim recounts the events leading to the fire and pleads generally the existence and breach of duties of care, for example, that GM “failed to manufacture the said vehicle in the proper style to prevent the vehicle from starting to burn without some external cause”.

Although not a model of clarity, the statement of claim is fairly understood to allege that the fire was caused by a defect relating to the vehicle’s driver’s-side door that had been the subject of manufacturer’s recalls identified in the statement of claim or, alternatively, “some other defect than the reason for the re-call”. [ 5 ] GM entered its statement of defence in July 2017. So far as became relevant to the application for

summary judgment, GM pleads that the vehicle recalls identified in the statement of claim relate to issues with the “[d]river door switch circuit”. GM further specifically pleads that “the fire as alleged by the Plaintiff did not originate in the driver’s side door” and “there is no evidence to support the allegation of loss and damage caused by the negligence or breach of statute or contract” on the part of GM. [ 6 ] GM’s affidavit of documents was sworn by Walt Sherwin, a Senior Technical Expert-Engineering Analyst, on June 4, 2018 [First Sherwin Affidavit].

The First Sherwin Affidavit lists only 21 documents, including four that relate to the specific recalls that are identified in the statement of claim. No documents are identified that would relate to any potential cause for the fire other than these specific recalls. [ 7 ] On June 27, 2018, Mr. Wells’ counsel wrote to GM’s counsel, noting that GM had not disclosed “documents … concerning spontaneous fires in the relevant vehicle”. He attached an

article from 2008 “about GM vehicles having spontaneous engine compartment fires”, and requested that GM provide more robust documentary disclosure. [ 8 ] GM answered Mr. Wells’ request for additional document disclosure by bringing its application for

summary judgment, asserting that there was no genuine issue requiring trial. In support, GM filed a further affidavit of Mr. Sherwin, sworn on July 30, 2018 [Second Sherwin Affidavit]. [ 9 ] The Second Sherwin Affidavit reviews the history of the manufacture and ownership of the vehicle. The affidavit reviews GM’s product safety bulletins and Transport Canada recalls issued in connection with the 2007 make and model year, including those referenced in Mr. Wells’ statement of claim. One of these recalls related to a driver’s-side door module that could short circuit and fail, possibly leading to fire. Mr.

Sherwin states that Mr. Wells’ vehicle was “inspected” pursuant to this recall in 2013. Mr. Sherwin also provides information available to GM concerning the original location of the fire in the vehicle. Mr. Sherwin concludes that there is

nothing “that points to or suggests or otherwise documents a fire that relies on as its source, the Door Switch Module that is the subject matter of the Transport Canada Recall Notices and the Defendant Product Safety Bulletins”. He supports this by reference to photographs that are said to show the absence of high heat in the driver door. He contrasts this to the evidence provided by photographs of “high heat damage as is evident in the engine compartment”. Mr. Sherwin adds that “[t]he loss of braking, and the sound reported by the Plaintiff is a variety of [ sic ] potential issues”. [ 10 ] Mr.

Wells responded to GM’s application with his own notice of application, seeking an order that GM “produce any and all documents related to spontaneous under hood fires in their vehicles from the years 2005 until 2015”. In support of this application, Mr. Wells filed his own affidavit. Mr. Wells swears to the accuracy of the facts alleged in his statement of claim, including as to the absence of any external cause of the fire. Mr. Wells also attaches information taken from the internet that points to other potential manufacturer’s defects consistent with a fire originating in the vehicle’s engine compartment. Mr.

Wells’ evidence is that “[t]he engine compartment of the vehicle has all non-metal parts completely destroyed and it is not readily noticeable where the fire actually started”. [ 11 ] The two applications came on for hearing before a Queen’s Bench Chambers judge. Mr. Wells argued that GM’s application was premature. It is common ground that, at the hearing of the two applications, Mr. Wells withdrew the request for an order seeking the broad-ranging document disclosure set out in his notice of application. Mr. Wells’ counsel asserted before this Court that Mr.

Wells did not withdraw his request for any additional document disclosure in its entirety. It was represented to the Court that, instead, Mr. Wells requested an order (presumably pursuant to Rule 5-12(5)) permitting cross-examination on the First Sherwin Affidavit. GM’s counsel stated that it was not clear to him what affidavit, or affidavits, Mr. Wells was seeking to cross-examine on, nor did it matter to the position GM was adopting, which was in substance that, in the absence of a more specific allegation of wrongdoing on GM’s part with positive evidence to support the allegation, Mr.

Wells’ claim should be dismissed. III. The Queen’s Bench Decision ( 2018 SKQB 253 ) [ 12 ] The Chambers judge observed that Mr. Wells had withdrawn his application for an order for the production of a further and better affidavit of documents and expressed his understanding of the issues before him to be whether leave should be granted to cross- examine on the Second Sherwin Affidavit, and whether GM’s application for

summary judgment should be granted. [ 13 ] On the first issue, the Chambers judge held that “cross-examination generally is permitted only where there is contradictory evidence before the court, but it also may be permitted if it is needed to clarify information deposed to by the affiant where the information is solely within the knowledge of the affiant” (at para 8). The Chambers judge reviewed the evidence that there was no external cause of the fire and accepted that the “undisputed facts are that a fire started in the engine compartment of the vehicle” (at para 19).

He concluded that there was nothing in the Second Sherwin Affidavit that required clarification, and instead what Mr. Wells was seeking was “new information” (at para 20). The Chambers judge discounted the evidence presented by Mr. Wells suggesting that the cause of the fire was manufacturer’s defect as being inadmissible hearsay or opinion. The Chambers judge concluded that cross- examination on the Second Sherwin Affidavit would amount to an impermissible “fishing expedition” (at para 26). [ 14 ] The Chambers judge then turned his attention to GM’s application for

summary judgment, which he granted. Central to his determination was his conclusion that Mr. Wells was required to “file evidence of specific facts showing that there is a genuine issue requiring a trial” (at para 33). The Chambers judge observed that Mr. Wells’ “evidence does not indicate how GM failed in its manufacture of the vehicle, and his evidence does not indicate how that failure led to the fire. His evidence shows only that the vehicle caught on fire”. On this basis, the Chambers judge concluded that the evidence “is insufficient to identify a genuine issue” (at para 33). IV. Positions of the parties [ 15 ] Mr. Wells contends that, generally,

summary judgment should never be granted prior to the completion of document disclosure and, in any event, was premature in this case. More specifically, he argues that the Chambers judge erred in granting

summary judgment prior to the issues relating to the sufficiency of GM’s disclosure being tested, and ambiguities respecting the source of the spontaneous fire explored, through cross-examination. [ 16 ] GM asserts that the substantive issue before the Chambers judge was whether there was a genuine issue requiring trial as to whether the vehicle fire had been caused by manufacturer’s defect. GM argues that issues are defined by pleadings and, in this case, the only specific defect identified in the pleadings was in connection with the driver-side door, which had been ruled out as the source of the fire.

V. issue [ 17 ] In my respectful view, this appeal is properly determined by answering the question whether the Chambers judge erred by failing to allow cross-examination of Mr. Sherwin on his affidavits before determining GM’s application for

summary judgment. VI. analysis [ 18 ] The Chambers judge did not explicitly address Mr. Wells’ request for leave to cross-examine on the First Sherwin Affidavit, if that request was made. While I do not doubt the sincerity of the assertion in this Court that this request was made to the Chambers judge, I am not prepared to decide the appeal solely on the grounds that the Chambers judge did not deal with the request to cross-examine on the First Sherwin Affidavit in his judgment. [ 19 ] It appears the Chambers judge understood Mr. Wells’ request as being limited to a request to cross-examine on the Second

Sherwin Affidavit alone.

Alternatively, perhaps the Chambers judge understood that cross-examination on an affidavit, when granted, is generally defined by issues of relevance, rather than being confined to the four corners of the affidavit, which is the predominant view in the case law. (See, for example: Wallace v Canadian National Railway , 2009 SKQB 178 at para 15 , 338 Sask R 174; Paszkowski v Canada (Minister of Employment & Immigration) , 1993 CarswellAlta 897 at para 2 (CA) (WL) ; Hoolans v Van Loon , 2003 CarswellOnt 1096 at paras 6–7 (Sup Ct J) (Div Ct) (WL) ; Canadian Olympic Association v Gym & Tonic Ltd. (1987), 14 CPR (3d) 274 at 275–76 (Federal Ct) (Div Ct) .) If so, it makes some sense why the Chambers judge focused on the affidavit that was most specifically directed to the issue before him.

Regardless of the reason he focused on the Second Sherwin Affidavit, in my respectful view, the Chambers judge erred in not allowing cross-examination of Mr. Sherwin. [ 20 ] The premise of the Chambers judge’s decision is that cross-examination on an affidavit is dependent on the existence of contrary evidence, or the need to clarify information deposed to by the affidavit where the information is solely within the knowledge of the affiant. He stated in this regard as follows: [8] There is no suggestion here that a cross-examination of Mr. Sherwin would result in any injustice.

The question is whether the cross-examination would resolve an issue that is before the court. In that regard, I note that a cross-examination generally is permitted only where there is contradictory evidence before the court, but it also may be permitted if it is needed to clarify information deposed to by the affiant where the information is solely within the knowledge of the affiant . … (Emphasis added) [ 21 ] I do not share the view of the Chambers judge that the Second Sherwin Affidavit does not require clarification. Mr.

Sherwin states in that affidavit that “[t]he loss of braking, and the sound reported by the Plaintiff is a variety of [ sic ] potential issues”. I understand this statement to mean that the loss of braking and sound indicated a variety of potential causes for the fire. I observe that Mr. Sherwin offers no opinion or statement as to what these other potential causes might be – including whether they may relate to causes associated with manufacture.

In the context of a fire with no apparent external cause, but with some indication supporting the common sense inference that there may have been manufacturer’s defect, Mr. Sherwin’s general statement cries out for explanation. [ 22 ] More fundamentally, though, the Chambers judge took too narrow a view as to when cross-examination is appropriate in a

summary judgment context. [ 23 ] At the time that he made his decision in this case, the Chambers judge would not have had the benefit of the decision of this Court in Ter Keurs Bros. Inc. v Last Mountain Valley (Rural Municipality) , 2019 SKCA 10 [ Ter Keurs ]. While in Ter Keurs the Court reiterated that there is no automatic right to cross-examination in the context of an application for

summary judgment, it pointed out that this context tended to expand the circumstances where cross-examination was warranted. At paragraph 27, Schwann J.A. stated that the party seeking leave to cross-examine an affiant “must establish that the cross-examination will assist in resolving the issue before the court and not result in an injustice”. In context of an application for

summary judgment, the fundamental question is whether there exists a genuine issue requiring a trial to resolve. At paragraph 29, Schwann J.A. noted that cross-examination may be appropriate “in order to demonstrate that a genuine issue requiring trial is evident from the circumstances of the case”.

She referred to factors relating to proportionality as being relevant to whether leave to cross-examine should be given (if it was contested) and then continued: [33] Other factors may include the need to test any conflict in the evidence, the need to allow for exploration of specific issues, and the possibility that evidence generated by cross-examination may actually assist parties in deciding whether to even proceed by way of

summary judgment … (Emphasis added) [ 24 ] In my respectful view, the Chambers judge erred in principle by concluding that a cross-examination is permitted only where there is contradictory evidence before the court or it is necessary to clarify information deposed to by the affiant where the information is solely within the knowledge of the affiant. In Ter Keurs , cross-examination was ordered largely because the facts relating to the issues in dispute were solely within the knowledge of the party whose affidavit was offered in support of the application for

summary judgment. [ 25 ] In determining that there was no genuine issue for trial in this case, the Chambers judge stated that Mr. Wells’ “evidence shows only that the vehicle caught on fire” (at para 33). Respectfully, in one important aspect the evidence goes beyond this. Here, there was evidence that there was no external cause for the fire. This evidence raised at least an inference of possible manufacturer’s defect. The Chambers judge erred by failing to consider this evidence as bearing on Mr. Wells’ request for cross-examination in the context of GM’s application for

summary judgment. [ 26 ] Finally, I do not accept GM’s contention that granting leave to cross-examine Mr. Sherwin on his affidavits amounts to a “fishing expedition”. This assertion is largely premised on the failure by Mr. Wells to specify a particular defect as giving rise to the fire. Mr. Wells did not restrict his pleadings to the defects that were the subject of the specific recalls referenced in his statement of claim. If GM considers that it is prejudiced by the generality in Mr. Wells’ pleading in this case, its remedy is to request particulars, or perhaps pursue an application to strike the pleadings.

In the circumstances of this case, the generality of the pleadings does not obviate the possibility that they raise a genuine issue to be tried. VII. Conclusion [ 27 ] The Chambers judge erred in principle in his analysis of when cross-examination is appropriate in the context of an application for

summary judgment. In this case, given the state of the evidence, GM’s application for

summary judgment was, as Mr. Wells argued, premature. For this reason, I would set aside the order granting

summary judgment and grant leave to Mr. Wells to cross-examine Mr. Sherwin on his affidavits. GM may renew its application for

summary judgment after the conclusion of this cross-examination, should it be so inclined. [ 28 ] Mr. Wells is entitled to his costs in this Court in the usual way. Costs in the court below are in the cause of the action.

“Leurer J.A.” Leurer J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.