Godin v Star-Key Ent Ltd
(2005), 292 N.B.R.(2d) 153 (TD);
292 R.N.-B.(2e) 153; 761 A.P.R. 153
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Saint John
McLellan, J.
December 22, 2005.
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Maritime Law Book Ltd. Summary:
On May 10, 2000, the plaintiff was driving her motor vehicle when the front wheel suddenly came off, causing the vehicle to leave the road. In October 2003, the plaintiff sued the defendant, alleging that it had replaced the ball bearings and ball joints in her vehicle in August 1999 and that the accident was caused by the failure of a ball joint. The plaintiff alleged a breach of contract under the Sale of Goods Act or the Consumer Product Warranty and Liability Act. The defendant moved for summary judgment, arguing that the claim was barred by the two year limitation period in s. 5(1) of the Limitation of Actions Act for actions for damages "arising out of the operation, care, or control of a motor vehicle".
The New Brunswick Court of Queen's Bench, Trial Division, held that s. 5(1) applied and granted the motion for summary judgment.
Limitation of Actions - Topic 2084
Actions in contract - Actions for damages - Arising out of use of a motor vehicle - Application of motor vehicle limitation period - On May 10, 2000, the plaintiff was driving her motor vehicle when the front wheel suddenly came off, causing the vehicle to leave the road - In October 2003, the plaintiff sued the defendant, alleging that it had replaced the ball bearings and ball joints in her vehicle in August 1999 and that the accident was caused by the failure of a ball joint - The plaintiff alleged a breach of contract under the Sale of Goods Act or the Consumer Product Warranty and Liability Act - The New Brunswick Court of Queen's Bench, Trial Division, held that the two year limitation period in s. 5(1) of the Limitation of Actions Act applied ("action for damages arising out of the operation, care, or control of a motor vehicle") - The court held that the word "care" in s. 5(1) included such things as maintenance and servicing of a vehicle - Section 5(1) was not specific to actions in tort - It also appeared to cover actions with respect to damages for breach of contract, breach of the Consumer Product Warranty and Liability Act, or otherwise.
Prescription - Cote 2084
Actions contractuelles - Actions en dommages-intérêts - Véhicules à moteur - Application du délai pertinent aux véhicules à moteur - [Voir Limitation of Actions - Topic 2084].
Cases Noticed
Hernandez v. 1206625 Ontario Inc. et al. (2002), 165 O.A.C. 45; 61 O.R.(3d) 584 (C.A.), refd to. [para. 7].
Heredi v. Fensom et al., [2002] 2 S.C.R. 741; 289 N.R. 88; 219 Sask.R. 161; 272 W.A.C. 161, consd. [para. 9].
Star Auto Repair Ltd. v. Grear (1992), 124 N.B.R.(2d) 373; 312 A.P.R. 373 (C.A.), consd. [para. 11].
Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 16].
Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 18].
Ripulone v. Pontecorvo (1989), 104 N.B.R.(2d) 56; 261 A.P.R. 56 (C.A.), refd to. [para. 18].
Statutes Noticed
Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 5(1) [para. 2].
Counsel
Matthew R. Letson, for Rose Godin;
Donald V. Keenan, for Star-Key Enterprises Ltd.;
Chantal N. Daigle, for Carquest Canada Ltd.
This motion was heard on December 22, 2005, before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following oral decision on the same date.
[1] McLellan, J. [orally]: By pre-trial motion the defendant Star-Key Enterprises Ltd. seeks an order for summary judgment dismissing the claim of the plaintiff, Rose Godin on the basis that the claim is prescribed by section 5(1) of the Limitation of Actions Act.
"5(1) No action for damages arising out of the operation, care, or control of a motor vehicle shall, where the cause of action arose on or after March 8, 1953, be commenced but within two years after the cause of action arose."
[3] In her Statement of Claim in this action filed on the 15th of October 2003 the plaintiff alleges at paragraph 7:
"On or about the 10th day of May, 2000, the plaintiff was operating the plaintiff's motor vehicle in a careful and prudent manner proceeding along Brookdale Avenue in the Town of Grand Bay-Westfield, New Brunswick when the front tire of the plaintiff's motor vehicle, suddenly and without warning, fell off causing the plaintiff's motor vehicle to leave the road and come to a complete and sudden stop."
[4] I interpret the word "tire" as a typing error. The correct word she should have used was "wheel" and I will interpret it as such.
[5] In her Affidavit in opposition of the motion on December 5, 2005 Mrs. Godin says:
"I suffered injuries and other damages when the Van came to a sudden stop."
[6] This action was commenced beyond the two year limitation period prescribed by section 5(1). In this action she claims against the defendant, Star-Key Enterprises Ltd. on the basis that in August 1999 Star-Key had repaired her motor vehicle by replacing ball bearings and ball joints. In the view of Mrs. Godin, the cause of the subsequent accident on May 10th, 2000 is attributable to the failure of a ball joint. She sees that as a breach of a contract under the Sale of Goods Act and under the Consumer Product Warranty and Liability Act. From her point of view the defective supply or installation of the ball joint is the real cause of her unfortunate motor vehicle accident. As she sees it the accident was not caused by the operation or driving of the motor vehicle.
[7] Mrs. Godin's counsel cites the decision of the Ontario Court of Appeal in Hernandez v. 1206625 Ontario Inc. et al. (2002), 165 O.A.C. 45; 61 O.R.(3d) 584 (C.A.). Hernandez deals with liability of an operator of a bar. The Court approved the concept at paragraph 24 that:
"[A]ny damages occasioned by taverners' negligence are not properly characterized as occasioned by a motor vehicle, even if a motor vehicle was the instrument through which such negligence caused the damages."
[8] On that interpretation counsel for Mrs. Godin argues to the effect that the real cause of action here is the alleged negligent breach of the contract for the supply and installation of the ball joints by Star-Key and that the motor vehicle was only, "the instrument through which such negligence caused the damages."
[9] The applicable legal principles have been settled by decisions such as Heredi v. Fensom et al., [2002] 2 S.C.R. 741; 289 N.R. 88; 219 Sask.R. 161; 272 W.A.C. 161, at paragraphs 34 and 35:
"... The nature of the facts and the nature of the action ought to be considered together in order to make a determination as to the fundamental nature of the action. Are the damages sought to be recovered, in their essence, damages that were occasioned by a motor vehicle? In light of the way in which the action is framed, and the facts giving rise to the damages claimed, is the action one that could be primarily classified as an action for damages occasioned by the motor vehicle? If the role of the motor vehicle in the causal chain is too insignificant, as in Argue, or if the causal chain is itself not the most illuminative way to characterize the claim, as in Bruell or as in Clost, the action ought not be regarded as subject to the limitation. If, on the other hand, the dominant feature of the damages is their relation to a motor vehicle accident, the limitation period ought to be applied.
"In other words, the true intent of the statute is that 'damages occasioned by a motor vehicle' requires that the presence of a motor vehicle be the dominant feature, or constitute the true nature, of the claim. Conversely, claims, whether framed in contract or in tort, where the presence of the motor vehicle is a fact ancillary to the essence of the action, ought not be regarded as within the scope of that phrase."
[10] Our New Brunswick provision, section 5(1) of the Limitation of Actions Act speaks of, "No action for damages arising out the operation, care, or control of a motor vehicle." I emphasize the word "care". The French version of that provision uses the phrase "de la garde" and I note that "la garde" is the expression used for such things as the care of children. Care, in my view, is a word that implies more than a synonym for operation. As I see that word "care," it also includes such things as the maintenance and servicing of a vehicle.
[11] The New Brunswick Court of Appeal in Star Auto Repair Ltd. v. Grear (1992), 124 N.B.R.(2d) 373; 312 A.P.R. 373 (C.A.), considered that provision with respect to a fire that was started while a piece of metal was being cut on a work bench some six to eight feet from a car to which the piece of metal was to be used to effect repairs.
[12] The trial judge, Mr. Justice Higgins, was upheld by the Court of Appeal in concluding that section 5(1) could not reasonably encompass damages from a fire from sparks from a welding torch being used to make a part to repair a then incapacitated motor vehicle some distance from the welding process.
[13] In this case instead of a fire happening while parts were being made for a car, there is an alleged error or breach of contract in the actual supply and installation of a ball joint and a subsequent car accident.
[14] As I see it, the fundamental nature of this action in the words of Supreme Court of Canada in Heredi v. Fensom is "damages occasioned by the operation or care of this motor vehicle."
[15] The Limitation of Actions Act provision in section 5(1) is not specific to actions in tort. It also appears to cover actions with respect to damages for breach of contract, breach of the Consumer Product Warranty and Liability Act or otherwise.
[16] As noted by the Supreme Court of Canada in Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, at page 224 [S.C.R.]:
"... a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence ..."
[17] Against this background, the next issue is whether or not this is an appropriate case to grant a motion for summary judgment.
[18] I have considered the directions of the New Brunswick Court of Appeal in cases such as Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.) and Ripulone v. Pontecorvo (1989), 104 N.B.R.(2d) 56; 261 A.P.R. 56 (C.A.). In Ripulone v. Pontecorvo Chief Justice Stratton made the point in paragraph 13:
"[13] ... Summary judgment should be granted only when there is no reason for doubt as to what the judgment of the court should be if the matter proceeds to trial. The moving party's case must be unanswerable."
[19] In my view in this situation the defendants' case is unanswerable. This is one of those cases where in the words of Chief Justice Drapeau in Cannon v. Lange, the Court should apply the remedy of the summary judgment so that "claims and defenses which are without merit" may be put to an end.
[20] For these reasons the motion for summary judgment by defendant is allowed.
[21] I will allow costs to the defendants, Star-Key Enterprises Ltd. of $1,000.00 and reasonable disbursements.
[22] With regard to the third party, Carquest Canada Ltd., in the circumstances I will make no order as to costs. Any issue about costs between Carquest and Star-Key may be the subject of a separate motion.
Motion granted.
Editor: Angela E. McKay/pdk
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