Although the Supreme Court of Canada has sent a "clear
message" that summary judgment should be encouraged, a Judge
recently held that there must still be compelling evidence, not
merely circumstantial evidence that relies on inference, in order
to succeed on summary judgment. This case also illustrates the
types of evidence that should not be relied upon on a motion for
In Mitusev v. General Motors Corp.,1 the
plaintiff was driving a van manufactured by the defendant, General
Motors Corporation ("GM"), along a highway when he slid
on a patch of ice. The plaintiff attempted to brake and his
driver's seat collapsed rearward causing him to lose control of
his van, roll over into a ditch. The plaintiff suffered a
catastrophic spinal cord injury and was confined to a wheelchair.
The plaintiff sued GM and Johnson Controls ("JC"),
alleging a defect in the driver's seat. JC claimed that GM was
solely responsible for the design of the van's seat, while
JC's role was limited to assembling and supplying a seat in
compliance with GM's specifications and requirements. Moreover,
the evidence suggested that the seat failed because the seat's
recliner mechanism was defective, and JC did not design or
manufacture the recliner mechanism. As a result JC brought a motion
for summary judgment.
JC not only relied upon discovery transcripts of its own
representative, but it also filed transcripts of GM's chief
engineer of its seat program (now deceased) in an unrelated action,
and GM's responses to requests to admit from another unrelated
action. The court held that all of this evidence was inadmissible.
In particular, the court had reservations that the engineer's
transcript would be admissible at trial, and found that it was
clearly prejudicial. The Court held that JC's evidence would
likely not be admissible at trial, so it should not be considered
on summary judgment.
In addition, the Court admonished the plaintiff for attaching
expert opinions as exhibits to a lawyer's affidavit, thus
obstructing any possibility for cross-examination by the opposing
side (although defence counsel did not seek to cross-examine the
experts). The Court held that expert evidence should be sworn by
the expert, and that a simple affidavit that appends the
expert's CV and report would suffice, so long as it complies
with rule 53.03 of Ontario's Rules of Civil
Ultimately, because there was circumstantial evidence that JC
had performed testing on the seat in question yet was unable to
produce any test reports, as well as circumstantial evidence that
recliners were changed at least once and possibly twice during
testing, the court held that a reasonably instructed jury could
infer that JC was negligent. It would be open for a jury to find
that the seat was defective when it left JC's assembly and
manufacturing plant. The Court was not prepared to consider
ordering a mini-trial because it would usurp the jury's
function, and given the lack of relevant, compelling and admissible
evidence, the matter should proceed to trial.
Manufacturers seeking to dismiss an action on summary judgment
must ensure that the evidence they put forth before the Court is
admissible and can effectively respond to possible circumstantial
evidence. The presiding judge must be confident that there is
compelling, admissible evidence that will demonstrate that there is
no genuine issue requiring a trial.
1 2014 ONSC 2342.
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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