IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Beazley v. Suzuki Motor Corporation, |
| 2010 BCSC 681 |
Date: 20100512
Docket:
S043377
Registry: Vancouver
Between:
Jason
Beazley, Laurel Beazley and William Beazley and
Insurance Corporation of British Columbia
Plaintiffs
And
Suzuki
Motor Corporation, General Motors Corporation, General Motors of Canada Limited
– General Motors Du Canada Limitee, CAMI-Automotive, Inc. Stingray Holdings
Ltd. formerly known as Sunshine Motors Ltd., and Anchors Away Worldwide Cruises
Inc., formerly known as Sunshine Motors (1994) Limited
Defendants
– and –
Docket:
S060519
Registry:
Vancouver
Between:
Natalia Spehar, a person under disability, by her Committee, Ann
Spehar, and Insurance Corporation of British Columbia
Plaintiffs
And:
Suzuki Motor Corporation, General Motors Corporation, General Motors
of Canada Limited – General Motors Du Canada Limitee, CAMI-Automotive, Inc.,
Stingray Holdings Ltd. formerly known as Sunshine Motors Ltd., and Anchors Away
Worldwide Cruises Inc., formerly known as Sunshine Motors (1994) Limited
Defendants
Before: The Honourable Mr. Justice Goepel
Procedural Ruling #3
Counsel for the Plaintiffs: | D.B. G.J. P.A. |
Counsel for the Defendants, Suzuki Motor | G.R. A.K. S. |
Place and Date of Trial: | Vancouver, Dates |
Place and Date of Ruling: | Vancouver, May 12, |
INTRODUCTION
[1]
This ruling concerns the admissibility of
certain documents found in Exhibit 13 that the plaintiffs seek to rely on in
this trial. Exhibit 13 consists of six binders containing in excess of 400
individual documents. When the plaintiffs tendered Exhibit 13 as part of their
case, by agreement of the parties it was admitted into evidence subject to the
defendants right to challenge the admissibility of individual documents. The
defendants now submit that a number of the documents contained in Exhibit 13 are
inadmissible and seek their removal from the Exhibit.
BACKGROUND
[2]
On August 23, 1994, a 1994 two-door 4 x 4 Geo
Tracker (the J1 Tracker) owned by William and Laurel Beazley and driven by
their son Jason was involved in a single car accident. The three passengers in
the J1 Tracker, including the plaintiff Natalia Spehar, suffered serious
injuries and each commenced actions against the Beazleys. I detailed the
resolution of those actions and the background of these proceedings in Beazley
v. Suzuki Motor Corporation, Spehar v. Suzuki Motor Corporation, 2008 BCSC
13. I need not repeat that history here.
[3]
The focus of the present actions is the design
and safety of the J1 Tracker. The plaintiffs allege the J1 Tracker was
defective in design and manufacture and was unreasonably dangerous in numerous
ways as particularized in their statement of claim. The plaintiffs allege that
the design and manufacture defects resulted in vehicle instability which, in
turn, caused the accident.
[4]
In their pleadings, the plaintiffs allege the J1
Tracker was originally designed, manufactured and sold by the defendants
General Motors Corporation (GMC), General Motors of Canada – General Motors
Du Canada Limitee (GMCL), Suzuki Motors Corporation (SMC) and CAMI
Automotive Inc. (CAMI) (collectively the GM Defendants). CAMI was a joint
venture formed by GMC and SMC for the purpose of manufacturing and selling
automobiles in Canada. GMCL was a wholly owned subsidiary of GMC.
[5]
On July 1, 2009, GMC sought bankruptcy
protection under Chapter 11 of the United States Bankruptcy Code. On July 10,
2009, GMC, in the course of the bankruptcy proceedings, sold most of its assets
to General Motors Company and concurrently changed its name to Motors
Liquidation Company (Motors Liquidation). While Motors Liquidation is no
longer defending these proceedings, the remaining defendants, all represented
by the same counsel, vigorously deny any wrongdoing by any of the defendants,
including GMC.
[6]
In their opening, the plaintiffs framed the
issues as follows:
(a) SMCs design of the J1 Tracker was faulty and resulted in
an unreasonably dangerous vehicle with an unacceptable propensity to rollover;
(b) SMCs
design of the J1 Tracker was negligent;
(c) the negligent design of the J1 Tracker caused or
contributed to the accident;
(d) GMCL was
negligent in distributing the J1 Tracker;
(e) CAMI was
negligent in manufacturing the J1 Tracker; and
(f) the Beazleys purchased the J1 Tracker from Stingray
Holdings Ltd. (Stingray) and Stingray breached the warranties of
merchantability and fitness contained in s. 18 of the Sales of Goods Act,
R.S.B.C. 1979, c. 370.
[7]
With regard to the question of negligent design,
the plaintiffs allege that the evidence will show that the J1 Tracker was
defective in that it had an unacceptable propensity to roll over and that it
had inadequate directional stability, that is, an unacceptable tendency to spin
out in hard cornering.
[8]
The plaintiffs case is not based simply on
expert evidence concerning standards applicable to proper vehicle design. In
addition, the plaintiffs allege that the design of the J1 Tracker failed to
meet the specific design requirements of GMC relevant to rollover stability and
directional stability. They further allege that once the vehicle was in
production, the defendants failed to assess its performance and make design changes
necessary to make the vehicle safe.
[9]
There are numerous defences raised to the claim
and the rights of the plaintiffs to maintain these actions. In regard to the
safety of the J1 Tracker, the defendants plead that the J1 Tracker was properly
designed, tested and manufactured, that it was in no way defective or dangerous
and that it performed its intended function adequately and properly prior to
the accident. They allege that the J1 Tracker was designed, tested and
manufactured in accordance with the then existing state of the art and that the
design met or exceeded all applicable industry and motor vehicle safety
standards. They plead that the J1 Tracker was reasonably fit for its intended
purpose and was in no way defective, dangerous or unsafe prior to the
accident. They plead that because the J1 Tracker was properly designed and was
in no way defective or dangerous, there was no duty to warn, effect a recall or
otherwise redesign the J1 Tracker or its component parts. They plead that
Jason Beazleys negligent driving was the sole cause of the accident and that
Ms. Spehar and another of the passengers were also negligent for failing to
wear their seatbelts.
DOCUMENTS
IN POSSESSION
[10]
With few exceptions, the documents in Exhibit 13
were in the possession of the defendants and set out on their List of
Documents. The plaintiffs submit the documents are admissible pursuant to the
doctrine of documents in possession.
[11]
The doctrine of documents in possession is a
creature of the common law and is a frequently used method of admitting
documents into evidence. The doctrine is set out in Phipson on Evidence,
13th ed. (London: Sweet + Maxwell,1982) at para. 21-09:
Documents which
are, or have been, in the possession of a party will, as we have seen,
generally be admissible against him as original (circumstantial) evidence to
show his knowledge of their contents, his connection with, or complicity in,
the transactions to which they relate, or his state of mind with reference
thereto. They will further be receivable against him as admissions (i.e.
exceptions to the hearsay rule) to prove the truth of their contents if he has
in any way recognised, adopted or acted upon them. [Emphasis in
original. Footnotes omitted.]
[12]
Documents found on corporate premises are
admissible against a corporation if knowledge of their existence can be
attributed to a responsible officer or director or an employee acting in the
course of his or her duty: R. v. Ash-Temple Co., [1949] O.R. 315, 93
C.C.C. 267 (C.A.).
[13]
The basic principles of the doctrine are set out
in J.D. Ewart et al, Documentary Evidence in Canada (Toronto:
Carswell, 1984) at 247:
First, there is
no a priori restriction on the types of documents admissible under this
exception, whether by reference to their source, veracity or antiquity.
Second, the documents are admissible only if relevant. Finally, admissibility
and weight are two quite different things; whatever prima facie
evidentiary value mere possession may give rise to is always subject to being
explained away, or to being given minimal weight. [Footnotes omitted.]
[14]
In this application the defendants acknowledge
their possession of most of the documents in issue. They challenge their
admissibility on grounds of relevance. To the extent the documents are
relevant, they submit they should, in any event, be excluded because of their
impact on the trial process.
RELEVANCE
[15]
To be admissible, evidence must be relevant to
the facts in issue and not subject to exclusion under any other rule of law or
policy. Evidence is relevant where it has some tendency as a matter of logic
and human experience to make the proposition for which it is advanced more
likely than the proposition would appear to be in the absence of that evidence
( D.M. Paciocco & L. Stuesser, The Law of Evidence (Toronto: Irwin
Law,1996) at 19).
[16]
In a civil case, the facts in issue are
established by the pleadings. Evidence unrelated to the issues as disclosed in
the pleadings is not admissible.
[17]
Not all relevant evidence is admissible. The
court must also balance the cost to the trial the process of admitting the
evidence. The judges task was described by Sopinka J. in R. v. Mohan,
[1994] 2 S.C.R. 9 at 20-21:
Relevance is a
matter to be decided by a judge as question of law. Although prima facie
admissible if so related to a fact in issue that it tends to establish it, that
does not end the inquiry. This merely determines the logical relevance of the
evidence. Other considerations enter into the decision as to admissibility.
This further inquiry may be described as a cost benefit analysis, that is
"whether its value is worth what it costs." See McCormick on
Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its
traditional economic sense but rather in terms of its impact on the trial
process. Evidence that is otherwise logically relevant may be excluded on this
basis, if its probative value is overborne by its prejudicial effect, if it
involves an inordinate amount of time which is not commensurate with its value
or if it is misleading in the sense that its effect on the trier of fact,
particularly a jury, is out of proportion to its reliability. While frequently
considered as an aspect of legal relevance, the exclusion of logically relevant
evidence on these grounds is more properly regarded as a general exclusionary
rule (see Morris v. The Queen, [1983] 2 S.C.R. 190). Whether it is
treated as an aspect of relevance or an exclusionary rule, the effect is the
same.
[18]
While the above passage was written in the
context of the admissibility of expert evidence, the same principles must be
considered in determining the admissibility of any form of evidence.
THE
APPLICATION
A.
Overview
[19]
The defendants submit that seven broad categories
of documents are inadmissible. Although the challenged documents were in the
possession of the defendants, the defendants submit they are not relevant or
should otherwise be excluded. In addition, they challenge the admissibility of
several other miscellaneous unrelated documents.
[20]
When Exhibit 13 was introduced into evidence, the
plaintiffs acknowledged that documents 2, 2A, 3, 4, 4A, 9A, 13, 114A, 122, 138,
152, 259A, 295 and 356 were not admissible under the doctrine of documents in
possession and would not be admissible until proven by other evidence. The defendants
challenge the admissibility of certain of those documents on this application.
I do not intend to deal with those challenges in these reasons. Those
objections can be renewed when and if the plaintiffs seek the admissibility of
those documents. Those documents will eventually be removed from Exhibit 13
unless the plaintiff in the course of the trial establishes their admissibility.
B. SJ410
and the Samurai
[21]
The SJ410 and the Samurai are two other vehicles
that SMC designed and manufactured in the 1980s. GMC gave consideration to
marketing the SJ410 in the United States. It ultimately decided not to do so.
[22]
The plaintiffs suggest that GMCs decision not
to market the SJ410 was at least in part due to concerns over the contribution
of its short wheelbase to rollover propensity and that GMC concluded that both vehicles
posed an unacceptable risk to their occupants. The plaintiffs allege that one
of GMCs design requirements for the J1 Tracker was that the J1 Tracker have
improved rollover stability compared to the SJ410 and the Samurai.
[23]
The defendants submit that the SJ410 and the
Samurai are completely different vehicles from the J1 Tracker. They submit
that there is no relevant connection between these vehicles and the J1 Tracker.
They submit evidence regarding the SJ410 and the Samurai only serve to confuse
the court, create prejudice and waste time. They submit that if the documents concerning
GMCs concerns with the SJ410 and Samurai are admitted, the defendants will be
forced to counter that evidence by defending the designs of the SJ410 and the
Samurai and distinguishing them from the J1 Tracker.
[24]
GMCs concerns about the SJ410 and Samurai are
relevant to the defendants state of the art defence. That defence cannot be
considered in a vacuum. GMCs knowledge of and consideration of rollover
problems with the other vehicles is relevant to that issue. Whether those
concerns were communicated to SMC and steps taken by SMC in response are also
relevant.
[25]
The admission of these documents does not open
the door to a detailed enquiry into the safety of the SJ410 and Samurai. The
issue in this litigation is the design of the J1 Tracker. Resolution of that
question will not turn on the designs of SJ410 or Samurai and whether those
vehicles were or were not properly designed. That issue is not before me and
the defendants need not embark on such proof. The challenged SJ410 and Samurai
documents are admissible.
C.
Consumer Reports/JARI/Millbrook/FAA
[26]
In July 1988, Consumer Reports wrote an article
condemning the Samurai. Following publication of the article, SMC conducted
certain tests on the Samurai and the J1 Tracker in Japan and in England. Other
tests were carried out in the United States by the Failure Analysis Association
(FAA). The defendants submit that the Consumer Reports articles and the testing
that followed are not relevant to this proceeding. They note that the Consumer
Reports article concerns the Samurai, a vehicle of entirely different design.
They submit that evidence relating to the Samurai in the form of the Consumer
Reports article or subsequent demonstration should not be admissible at trial.
They further submit that the plaintiffs suggestion that the Consumer Reports
article constituted notice of a test procedure that should have been utilized
by the defendants in the design and development of the J1 Tracker is undermined
by their own expert, Mr. Heitzman, who testified that the Consumers Report
test was crap.
[27]
The defendants submit that if the plaintiffs are
permitted to admit evidence of the July 1988 Consumer Reports article and the
demonstrations that followed, the defendants will have to take the time to
vigorously defend against the allegations that relate to these events.
[28]
The plaintiffs do not rely on the Consumer
Reports article for its truth. They do rely, however, on its existence and
submit that the testing of the J1 Tracker that followed its publication demonstrates
that the defendants should have been aware of potential problems with the J1 Tracker
that the defendants should have corrected long before the accident of August
1994.
[29]
The veracity of the Consumer Reports testing and
the article are not relevant to this proceeding. The Consumer Reports article
is however admissible to explain the subsequent testing that took place. That
testing is relevant to the safety of the J1 Trackers design and whether the
defendants, or some of them, became aware because of testing done subsequent to
the publication of the article, of flaws in the J1 Tracker that should have
been corrected before the accident. The subject documents are admissible.
D. Lotus
– SMC Relationship/ J2 Tracker
[30]
I intend to deal with these two classes of documents
together because they raise similar legal issues. In late 1988, after the
design and development process was complete and the J1 Tracker was in
production, SMC sought Lotus Engineerings (Lotus) advice with regard to improvements in
the J1 Trackers manoeuvrability, stability and riding comfort. Lotus
recommended certain changes to improve the J1 Tracker which SMC did not
institute.
[31]
In 1999, SMC replaced the J1 Tracker with the J2
Tracker. The J2 Tracker incorporated some of the changes that Lotus had
earlier suggested.
[32]
The plaintiffs submit that the Lotus
recommendations could have been incorporated into the J1 Tracker prior to the
accident. They allege that the design goal of the J2 Tracker was to improve
actual and perceived vehicle stability. They submit the documents show that
the defendants recognized a stability problem with the J1 Tracker that required
specific improvement and intended to achieve improvements in stability with the
J2 Tracker. They submit the documents also indicate that certain engineering
tests performed in 1995 were done for the purpose of identifying improvements
in the handling characteristics for the J1 Tracker and establishing benchmarks
for the new model. They submit that the development of the J2 Tracker arose
directly out of issues that existed with the J1 Tracker.
[33]
The defendants submit that the J2 Tracker is a
completely different vehicle, designed years later and is not relevant to the
matters at issue in these proceedings, namely whether the defendants were negligent
with respect to the design and development of the J1 Tracker. The defendants
say that the fact that they made design changes in a next generation vehicle
does not assist the court in deciding the issue in these proceedings, being
whether the J1 Tracker was deficient before the J2 Tracker design. The
defendants submit that the prejudicial effect of the admissibility of these
documents outweighs any probative value in these proceedings. They submit the
waste of time involved in trying a case about the J2 Tracker is completely
unjustified.
[34]
Evidence of subsequent redesign is admissible. In
Cominco Limited v. Westinghouse Canada Ltd. (1979), 11 B.C.L.R. 142
(C.A.) the court considered the admissibility of post-event conduct. At para.
30, the court set out the policy questions raised by such evidence:
[30] Evidence
of conduct subsequent to the date of the fire raises three quite separate
issues. First, is such evidence relevant or, to put it more accurately, is it
"regarding any matter … relating to a matter in question in the
action"? Secondly, is there a policy that such evidence will be excluded?
It is said that its use would discourage people from making improvements that
would avoid further loss for fear such improvements would be used to their
disadvantage as evidence. The learned chambers judge accepted the policy
argument to exclude questions about knowledge and conduct subsequent to the
fire. I will return to these two questions.
[35]
The court, at paras. 31-36, reviewed various
authorities and texts on post-event conduct. The court concluded its
discussions at paras. 37-39:
[37] No case binding on us supports an
exclusionary rule based on policy and I am not inclined to introduce such a
rule. In my view a defendant will not expose other persons to injury and
himself to further lawsuits in order to avoid the rather tenuous argument that
because he has changed something he has admitted fault.
[38]That leaves for consideration only the
question of relevance. In this case post-fire conduct bears on the capacity to
produce a fire retardant cable; on the capacity to test cables and know of
their flammability, on the fitness of the cable produced for the purpose for
which it was required; and on what ought to have been known before the fire.
[39] In my view, in this case, the examinations for discovery cannot be
cut off at the date of sale, the date of the fire, or any other date.
[36]
While the discussion in Cominco was
raised in the context of an examination for discovery, it was adopted and
followed in Anderson v. Maple Ridge (District) (1993), 71 B.C.L.R. (2d)
68 (C.A.) which concerned the admission of post-event conduct at trial. Based
on those authorities, it is clear that in British Columbia evidence of
post-accident conduct is admissible if otherwise relevant.
[37]
The Lotus recommendations and the design changes
incorporated in the J2 Tracker are relevant to the safety of the J1 Tracker design.
While the potential changes are not determinative of whether the J1 Tracker was
negligently designed, the evidence is admissible at this trial.
E. Advertising
and Promotional Material
[38]
Exhibit 13 includes advertising and promotional
material relating to the J1 Tracker and other SMC and GMC vehicles. The
plaintiffs suggest the advertisements are relevant to the case against GMCL as
distributor. The defendants submit that these documents do not meet the
threshold test of relevance and are not admissible at trial.
[39]
The advertising material is not relevant to
whether or not the vehicle was safely designed. The plaintiffs do not plead the
Beazleys relied on any advertising or promotional materials in deciding to
purchase the J1 Tracker. The advertising material is not relevant to any facts
in issue and the advertising documents found at Tabs 121, 185, 291, 305, 307,
317, 318, 348, 391 and 394 should be removed from Exhibit 13.
F.
Complaints
[40]
The plaintiffs have included 17
complaint-related documents in Exhibit 13. The defendants submit that the
complaint-related documents are not relevant, are inadmissible hearsay and do
not meet the test for admissible similar fact evidence.
[41]
The plaintiffs submit that the complaint
documents are not being admitted for the truth but as evidence that the
defendants were on notice of J1 Tracker rollover accidents and failed to take
steps to modify or correct the vehicle.
[42]
There can be many causes to a motor vehicle
accident. Evidence concerning individual accidents are of limited value in
determining whether or not the subject vehicle was properly designed and potentially
involve an inordinate amount of time which is not commensurate with their value.
The complaint-related documents found at Tabs 275, 286, 292, 293, 298, 302,
303, 304, 308, 311, 319, 325, 337, 346, 347 and 366 are inadmissible and shall
be removed from Exhibit 13.
G. Other
Matters that Post-Date Design and the August 23, 1994 Crash
[43]
The defendants object to certain documents that
relate to studies and developments that arose well after the events in question
in this proceeding, with respect to the study of future design direction and National
Highway Traffic Safety Administration (NHTSA) testing.
[44]
The defendants submit they cannot be held in
these proceedings to standards, technical specifications or testing that did
not apply or was not available at the time of the design and development of the
J1 Tracker, or even prior to the date of the crash. They submit this evidence
is not relevant.
[45]
In regard to this objection, it is necessary to consider
the specific documents. Tab 247 involves the General Motors Vehicle Safety
Improvement Program (VSIP). The document is dated September 20, 1989. VSIP
deals with safety concerns during product development and after production of
the vehicle has begun. It sets out certain standards which GM purports to follow.
Among the safety goals referenced are rollover considerations. The document is
relevant and admissible.
[46]
Tab 350 is a memo/letter from a GM employee to
an SMC employee attaching a NHTSA study concerning various vehicles. Although
this document is in the possession of the defendants, there is no evidence that
this document was ever adopted or used by the defendants. Accordingly, this
document is not presently admissible.
[47]
Tab 372 concerns GMCs response in July 1997 to
a television program alleging a high incident of rollover accidents associated
with sports utility vehicles. The draft response makes specific reference to
the J1 Tracker rollover experience. The document is admissible.
[48]
Tab 378 is a GMC report dated September 3, 1998
concerning the development of a method for estimating vehicle stability
margins. Despite the date of the document, it is relevant to issues in this
litigation dealing with vehicle stability. If the document reflects post-accident
state of the art information, the defendants will be entitled to lead evidence
to that effect to explain the document and limit its weight. The document is
admissible.
[49]
Tab 385 is an analysis of the effects of
engineering parameters on field rollover rates. It was prepared by Mr. Leffert
in June 1999. Mr. Leffert was a senior GMC employee who GMC nominated to be examined
for discovery. His report concerns the correlation between vehicle parameters
and field rollover rates using 1990 to 1995 crash data. The document is
relevant to the design of the J1 Tracker and how it ultimately performed in the
real world. The document is admissible.
[50]
Tabs 386-389 involve an exchange of emails in
1999 between GMC personnel responding to certain testing carried out by NHTSA
on a 1998 J1 Tracker. Although the testing and comments post-date the
accident, they are relevant in regard to the questions at issue in this
litigation and are admissible.
[51]
Tabs 395-396 contain graphs detailing the
impact of design factors on field rollover. The documents, although undated, are
admissible. If the graphs document matters or information not known in 1994,
the defendants can lead such evidence.
H. Miscellaneous
Documents
[52]
Tab 1 is a letter from the Ford Motor Company to
NHTSA dated August 15, 1973. The plaintiffs now acknowledge that this document
is inadmissible. It shall be removed from the Exhibit.
[53]
Tab 48A is a document dated July 14, 1985, identified
as Suzuki of America Automotive Corporation Meeting Notes. While there is no
such company as Suzuki of America Automotive Corporation, this document is in
the defendants possession. The note appears to involve marketing strategies
for an unnamed vehicle with a narrow wheel base which is bound to turn over.
The note predates by several years the introduction of the J1 Tracker and is
not relevant to the design of the J1 Tracker. Tab 48A is inadmissible and
should be removed from Exhibit 13.
[54]
Tabs 227 and 270 do not relate to the J1 Tracker
and the plaintiffs agree they are inadmissible and should be removed.
[55]
Tab 344 is a sample motor vehicle purchase
agreement of Sunshine Motors (1994) Ltd. The Beazleys purchased their J1 Tracker
from Stingray, which was formerly known as Sunshine Motors Ltd, not from Sunshine
Motors (1994) Ltd. Mr. Beazley was not able to offer any evidence
regarding the terms of the purchase agreement he entered into for the sale of
the J1 Tracker. The plaintiffs do not rely on any term of the sample
contract. Tab 344 is not relevant and should be removed from Exhibit 13.
[56]
Tab 357 is dated June 20, 1996, and is in
response to a request for a proposal to compare GM vehicles to peer vehicles by
market segment. It is not relevant to any issue in this litigation and should
be removed from Exhibit 13.
[57]
Tab 390 concerns a vehicle not in issue and the
plaintiffs agree that it is not admissible in these proceedings and should be
removed from Exhibit 13.
[58]
Tab 393 consists of photographs of a vehicle
which is not a J1 Tracker. It is not relevant to matters at issue and should
be removed from Exhibit 13.
SUMMARY
[59]
In summary I find the documents at Tabs 1, 48A, 121,185,
227, 270, 275, 286, 291, 292, 293, 298, 302, 303, 304, 305, 307, 308, 311, 317, 318,
319, 325, 337, 344, 346, 347, 348, 350, 357, 366, 390, 391, 393 and 394 are
inadmissible and should be removed from Exhibit 13. The balance of the challenged
documents are admissible.
[60]
If I have overlooked any documents, I trust
counsel will bring the omissions to my attention.
R.B.T. Goepel J.
________________________________________
The Honourable Mr. Justice Richard B.T. Goepel