Hutton et al. v. General Motors of Canada Ltd., 2010 ABQB 606

• Judge: Jeffrey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 05, 2010
• Citations: 2010 ABQB 606;(2010), 501 A.R. 90 (QB)

Hutton v. General Motors (2010), 501 A.R. 90 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.123

Jennifer Hutton, Kent Wobst and Manfred Wobst (plaintiffs) v. General Motors of Canada Limited (defendant)

(0501 03764; 2010 ABQB 606)

Indexed As: Hutton et al. v. General Motors of Canada Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jeffrey, J.

September 22, 2010.

Summary:

Wobst (driver) and his girlfriend Hutton (passenger) were driving along a gravel road through a mud puddle when the air bags in their Chevrolet Cavalier deployed. Hutton was injured from the impact of her air bag and Wobst had to aid her during her recovery. The air bag system was subject to a recall by the vehicle's distributor, General Motors of Canada Ltd. (GM Canada) and the recall work had been completed. Hutton, Wobst and Wobst's father, the vehicle owner (the plaintiffs), sued GM Canada for damages for negligence and breach of the duty to warn.

The Alberta Court of Queen's Bench allowed the plaintiffs' action and assessed damages accordingly.

Torts - Topic 4157

Suppliers of services - Duties of repairers - Duty to warn or notify customer - [See all Torts - Topic 4311 ].

Torts - Topic 4311

Suppliers of goods - Negligence - Distributors - Duty to warn - The plaintiffs, a driver and passenger, were driving along a gravel road through a mud puddle when the side air bags in their Chevrolet Cavalier deployed - The plaintiffs sued the vehicle distributor, General Motors of Canada Ltd. (GM Canada), for damages, alleging a duty to warn of a defective air bag system - GM Canada claimed that it had met its duty to warn because the car had been the subject of a recall respecting inadvertent deployments - The recall work was done on this vehicle - The Alberta Court of Queen's Bench found that GM Canada breached the duty to warn - GM Canada, following the car manufacturer's lead (i.e., its parent corp., General Motors Corp.), accepted a trade-off, in recalibrating the air bag system during the recall work to be less sensitive instead of fixing the defect, knowing that residual risks remained - GM Canada, however, failed to inform car owners that there was a residual risk of inadvertent deployment under certain conditions - The recall notice was misleading and "under-inclusive" - See paragraphs 6 to 117.

Torts - Topic 4311

Suppliers of goods - Negligence - Distributors - The plaintiffs, a driver and passenger, were driving along a gravel road through a mud puddle when the side air bags in their Chevrolet Cavalier deployed - The vehicle had been the subject of an air bag recall because of inadvertent deployments by General Motors of Canada Ltd. (GM Canada), the vehicle distributor, and the recall work was performed - The plaintiffs sued GM Canada, alleging negligent recall service - The Alberta Court of Queen's Bench found that GM Canada undertook the recall service and was at risk for doing so up to the requisite standard - It did not meet that standard, as it did not fix the defect, but only recalibrated the air bag system to be less sensitive - The court found that GM Canada's failure to continue investigating for the cause of the inadvertent deployments and for effective solutions to those causes was negligent - The recalibration approach was not negligent, provided it was an interim measure and users were more fully informed of its nature and limitations - However, GM Canada's duty did not end there - It was aware of further defects but did not deal with the defective system - See paragraphs 118 to 125.

Torts - Topic 4311

Suppliers of goods - Negligence - Distributors - The plaintiffs, a driver and passenger, sued General Motors Canada (GM Canada), the vehicle distributor, after the side air bags in their Chevrolet Cavalier inadvertently deployed - Air bag recall work had been performed by GM Canada - The plaintiffs alleged that GM Canada breached its duty to warn and, in any event, was liable for the negligent design and manufacture of the vehicle - The Alberta Court of Queen's Bench held that GM Canada was liable for breach of the duty to warn - However, GM Canada did not have a direct role in the design and manufacture of the vehicle which was done by its parent corporation, General Motors Corp. (U.S.) - Further, GM Canada was not liable as the Canadian presence (i.e., the alter ego) for General Motors Corp. because there was no basis to conclude that GM Canada's existence was designed to avoid product or other liability - However, the court opined that had it been necessary for the disposition of this case, it would have, in the circumstances, found GM Canada liable for any negligence of GM Corp. with respect to the vehicle design and manufacture - The court noted the close business relationship of the parties, the distributor's role and that the plaintiffs could reasonably conclude that dealing with GM Canada was akin to dealing with GM Corp. - See paragraphs 126 to 161.

Cases Noticed:

Gregorio v. Intrans-Corp. and Paccar of Canada Ltd. (1994), 72 O.A.C. 51; 18 O.R.(3d) 527 (C.A.), refd to. [para. 105].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, refd to. [para. 106].

Lambert v. Lastoplex Chemicals Co., [1972] S.C.R. 569, refd to. [para. 108].

Thiessen v. Columbia Shuswap (Regional District) et al., [2002] B.C.T.C. Uned. 515; 2002 BCSC 1516, affd. (2003), 189 B.C.A.C. 215; 309 W.AC. 215; 2003 BCCA 532, refd to. [para. 119].

Baker v. Suzuki Motor Co. et al. (1993), 143 A.R. 1 (Q.B.), refd to. [para. 119].

Tilley v. Man Roland Canada Inc. et al. (1999), 245 A.R. 40; 1999 ABQB 364, affd. (2002), 317 A.R. 367; 284 W.A.C. 367; 2002 ABCA 309, refd to. [para. 119].

Phillips v. Ford Motor Co. of Canada Ltd., [1970] 2 O.R. 714 (H.C.), refd to. [para. 148].

Darlington and Darlington v. Mobrand Sales Ltd. and Motokov Canada Inc. (1981), 12 Man.R.(2d) 199 (Co. Ct.), refd to. [para. 148].

McEvoy v. Ford Motor Co., [1989] B.C.J. No. 1639 (S.C.), affd. (1992), 10 B.C.A.C. 182; 21 W.A.C. 182; 63 B.C.L.R.(2d) 362 (C.A.), refd to. [para. 152].

Lowe v. Larue (1998), 245 A.R. 210 (Q.B.), varied (2000), 250 A.R. 220; 213 W.A.C. 220; 2000 ABCA 28, refd to. [para. 162].

Sheikhani v. Niagara Parks Commission (1998), 57 O.T.C. 302 (Gen. Div.), affd. [1999] O.J. No. 3879 (C.A.), refd to. [para. 162].

Perez v. Vancouver (City), [2002] B.C.T.C. 1773; 2002 BCSC 1773, refd to. [para. 162].

Walton v. Plainsman Dining Rooms Ltd., [2004] O.T.C. 159 (Sup. Ct.), refd to. [para. 162].

Henhawk v. Brantford (City), [2005] O.T.C. 1028 (Sup. Ct.), refd to. [para. 162].

Star v. Ellis et al., [2007] B.C.T.C. Uned. 267; 2007 BCSC 512, varied (2008), 253 B.C.A.C. 311; 425 W.A.C. 311; 2008 BCCA 164, refd to. [para. 162].

Wernicke v. Logan, [2007] B.C.T.C. Uned. A39; 2007 BCSC 1899, refd to. [para. 162].

Hunter v. Nattress (1997), 203 A.R. 59 (Q.B.), refd to. [para. 163].

Mann v. Calgary (City) et al. (1995), 167 A.R. 133 (Q.B.), refd to. [para. 163].

Dushynski v. Rumsey (2003), 327 A.R. 373; 296 W.A.C. 373; 2003 ABCA 164, refd to. [para. 171].

McIntyre v. Docherty et al. (2009), 264 O.A.C. 237; 97 O.R.(3d) 189; 2009 ONCA 448, refd to. [para. 171].

Driscoll v. Morgan et al. (2007), 267 Nfld. & P.E.I.R. 344; 811 A.P.R. 344; 2007 NLCA 39, refd to. [para. 171].

Diakow v. Hughes et al., [2008] A.R. Uned. 603; 2008 ABQB 567, varied [2009] A.R. Uned. 66; 2009 ABCA 206, refd to. [para. 171].

Ship Winkfield, Re, [1900-03] All E.R. Rep. 346 (C.A.), refd to. [para. 177].

Petrifond Midwest Ltd. v. Esso Resources Canada Ltd. et al. (1996), 187 A.R. 107; 127 W.A.C. 107 (C.A.), refd to. [para. 177].

Sidorsky v. Lowry et al. (2009), 463 A.R. 153; 2009 ABQB 68, refd to. [para. 184].

Counsel:

Louise Novinger Grant and Patricia E. Olyslager (Burnet, Duckworth & Palmer LLP), for the plaintiffs;

Taryn Burnett and Kristian Duff (Gowling Lafleur Henderson LLP), for the defendant.

This action was heard on March 22 to 29 and May 5, 2010, before Jeffrey, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on September 22, 2010.