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 summary judgment.
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 Procedure.
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.
Footnote
1 2014 ONSC 2342.
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