Moellenbeck v. Ford Motor Co. of Canada Ltd. et al., (2000) 145 B.C.A.C. 269 (CA)

• Judge: Donald, Saunders and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 18, 2000
• Jurisdiction: British Columbia
• Citations: (2000), 145 B.C.A.C. 269 (CA);2000 BCCA 603

Moellenbeck v. Ford Motor Co. (2000), 145 B.C.A.C. 269 (CA);

    237 W.A.C. 269

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. JA.013

Stephen Moellenbeck (plaintiff/respondent) v. TRW Vehicle Safety Systems, Inc. (defendant/appellant)

(CA025969; 2000 BCCA 603)

Indexed As: Moellenbeck v. Ford Motor Co. of Canada Ltd. et al.

British Columbia Court of Appeal

Donald, Saunders and Low, JJ.A.

November 22, 2000.

Summary:

The plaintiff passenger was injured in a motor vehicle accident on July 4, 1989 in British Columbia. His seatbelt broke in the accident. The plaintiff brought an action against the driver of the car in November 1989 and added the owner as a defendant in October 1991. He commenced this action against Ford Motor Co. of Canada (Ford) on July 23, 1991. An arbitration between the plaintiff and the Insurance Corp. of British Columbia respecting damages (uninsured motorists' protection) was held and a ruling, handed down on March 12, 1993, indicated that liability for the accident and the plain­tiff's injuries was admitted. The insurance coverage fell short of the award. No one appeared at the arbitration to represent Ford or TRW Vehicle Safety Systems (TRW), which would be added as a defendant much later. On March 15, 1993, the plaintiff was granted an ex parte order to renew the writ against Ford. It was served on April 26, 1993. Ford filed a statement of defence on March 13, 1996, which, inter alia, asserted a limitations defence and claimed that Ford did not manufacture the seatbelt. The plain­tiff responded that his mental condition pre­vented him from instructing counsel for at least six weeks after the accident. On Febru­ary 10, 1997, in response to interroga­tories, Ford informed the plaintiff that TRW was the manufacturer of the seatbelt. TRW was added as a defendant by ex parte order on May 22, 1997. An amended writ of sum­mons and amended statement of claim were filed on June 30, 1997, and served on TRW in Michigan on February 27, 1998. In the action, the plaintiff sought to rehear the damage issue on the basis that the injuries had become much more significant since the arbitration award. TRW applied for an order setting aside the service ex juris and for a declaration that the court had no jurisdiction over TRW or, conversely, that the court should decline jurisdiction.

The British Columbia Supreme Court, in a decision reported in 12 B.C.T.C. 186, dis­missed the application. TRW appealed.

The British Columbia Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 1204

Service out of jurisdiction - Torts - Forum conveniens - The plaintiff passen­ger was injured in a 1989 motor vehicle accident in which his seatbelt broke - He sued the vehicle's manufacturer in British Columbia in 1991 but did not learn until 1997 that TRW was the manufacturer of the seatbelt - TRW was added as a defen­dant by ex parte order on May 22, 1997 - TRW was served ex juris in Michigan on February 27, 1998 - TRW sought to set aside service or have the B.C. court decline jurisdiction - The British Colum­bia Court of Appeal affirmed that jurisdic­tion simpliciter was established in the sense that the claim alleged a tort com­mitted within the juris­diction - The real issue then became the proper forum - The court affirmed that B.C. was the forum conveniens.

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 1204 ].

Cases Noticed:

Bushell v. T & N plc et al. (1992), 14 B.C.A.C. 36; 26 W.A.C. 36; 67 B.C.L.R.(2d) 330 (C.A.), refd to. [para. 10].

Amchem Products Inc. et al. v. Workers' Com­pensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1; [1993] 3 W.W.R. 441, refd to. [para. 12].

472900 B.C. Ltd. et al. v. Thrifty Canada Ltd. (1998), 116 B.C.A.C. 233; 190 W.A.C. 233 (C.A.), refd to. [para. 13].

AG Armeno Mines and Minerals Inc. v. PT Pukuafu Indah et al. (2000), 140 B.C.A.C. 93; 229 W.A.C. 93 (C.A.), not appld. [para. 17].

Counsel:

Jack Giles, Q.C., for the appellant;

Ron Buddenhagen, for the respondent.

This appeal was heard before Donald, Saunders and Low, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 18, 2000. The decision of the court was delivered on November 22, 2000, by Donald, J.A.