



COURT OF APPEAL FOR ONTARIO

CITATION: Thorne v. Hudson Estate, 2017 ONCA 208

DATE: 20170310

DOCKET: C62769

Hoy A.C.J.O., Gillese and Brown JJ.A.

BETWEEN

Donna Thorne, on her own behalf and as litigation
    guardian of Breanna Pacquette a minor, Simone Pacquette, a minor, and Owen
    Thorne, a minor, Kyle Thorne, Ryan Thorne and Sarah Thorne

Plaintiffs

and

Patricia Hudson, Executrix of the Estate of
    Maxwell B. Hudson, deceased, 1419937 Ontario Inc.,
1205055 Ontario Limited
    carrying on business as Aviation Technical Consultants, Corporate Aircraft
    Restorations Inc., Maurice Nesbitt
, John Bayes, 735922 Ontario Limited
    carrying on business as Canadian Aero Engine & Accessories,
Teledyne
    Continental Motors, Inc.
, and
Teledyne Technologies Incorporated

Defendants (
Appellants
and
Respondents
)

Hilary C. Book, for the appellants

Timothy B. Trembley, Robert J. Fenn and Ashleigh L. Tomlinson,
    for the respondents

Heard: March 6, 2017

On appeal from the judgment of Justice Edward M. Morgan
    of the Superior Court of Justice, dated September 7, 2016, with reasons
    reported at 2016 ONSC 5507.

ENDORSEMENT

[1]

During the course of a flight from Oshawa, Ontario to Wilmington,
    Delaware in May 2007, a twin-engine Beech aircraft lost power in its left
    engine. The plane crashed shortly after aborting an attempted emergency landing
    at an airfield in Dunkirk, New York. The two pilots and the passenger were
    killed.

[2]

The estates of the deceased commenced actions. The action by the
    passengers estate has settled. The trial of the claims by the pilots estates
    is scheduled to be heard next January 2018, in Toronto.

[3]

The estates are suing the companies that inspected and maintained the
    engine  the respondents, 1205055 Ontario Limited c.o.b. Aviation Technical
    Consultants (ATC) and Corporate Aircraft Restorations Inc., together with its
    employee, Maurice Nesbitt (collectively CAR). As well, the estates are suing the
    manufacturer of the engine, the appellant Continental Motors, Inc. (CMI, formerly
    known as Teledyne Continental Motors Inc. and Teledyne Technologies
    Incorporated).

[4]

ATC and CAR assert third party and cross-claims against CMI alleging (i)
    the improper design and manufacture of the engine and replacement parts, (ii) misleading
    repair instructions, and (iii) the failure to warn about certain engine
    failures.

[5]

Following the conclusion of examinations for discovery, CMI moved for
    summary judgment on the basis that the claims asserted against it were barred
    by the United States federal
General Aviation Revitalization Act of 1994
(GARA), Pub.L. No. 103 298, 108 Stat. 1552 (codified at 49 U.S.C. § 40101
    notes). In general terms, GARA bars a civil action against an aircraft
    manufacturer for damages for deaths arising out of an accident involving an aircraft
    which is brought more than 18 years after the date of delivery of the aircraft
    to its first purchaser. In the present case, there is no dispute CMI originally
    delivered the aircraft in early 1968. CMI argued that since the aircraft
    crashed in New York State, GARA applied and barred the various claims against
    it.

[6]

The motion judge dismissed CMIs summary judgment motion and declared
    Ontario law applies to these proceedings. CMI appeals.

ANALYSIS

[7]

The parties agree the motion judge correctly concluded that the
    principles set out in
Tolofson v. Jensen
, [1994] 3 S.C.R. 1022 govern
    the choice of law in tort. In
Tolofson
, the Supreme Court of Canada
    held, at p. 1050, that the law to be applied in torts is the law of the place
    where the activity occurred, i.e., the
lex loci delicti
.

[8]

CMI submits the tortious activity occurred in New York State, where the
    plane crashed. ATC and CAR contend the crux of their claims against CMI involve
    allegations of negligent misrepresentations contained in the repair
    instructions CMI periodically published to the respondents and which they
    followed to repair and maintain the engine. Pointing to the decision of this
    court in
Central Sun Mining Inc. v. Vector Engineering Inc
.
,
    2013 ONCA 601, 310 O.A.C. 391, at para. 34, that the tort of negligent
    misrepresentation occurs where the misinformation is received or acted upon,
    they submit the tortious activity occurred in Ontario where they received CMIs
    repair instructions and performed maintenance on the engine.

[9]

After carefully reviewing the pleadings, the motion judge concluded, at
    para. 31, that:

The crux of the claims and cross-claims against CMI is not
    negligence in the production of the engine that malfunctionedRather, the
    claims against CMI are in the nature of negligent misrepresentation, and take
    aim at the allegedly faulty instructions issued by CMI from time to time in the
    form of bulletins and manuals for the repair and overhaul of its engine.

[10]

We see no palpable and overriding error in that characterization of the
    crux of the claims against CMI. ATC and CAR squarely plead misrepresentation
    and the failure to warn against CMI.

[11]

Given that characterization of the crux of the claims against CMI, it
    follows that we see no palpable and overriding error in the motion judges
    conclusion that Ontario law applies to the negligent misrepresentation claims.

[12]

Moreover, the record does not support CMIs argument that GARA would bar
    the claims against it in the event New York law applied. In his reasons, the
    motion judge referred to the two expert opinions adduced on the scope of GARA. Both
    experts considered the decision of the United States Court of Appeals, Ninth
    Circuit, in
Blazevska v. Raytheon Aircraft Co.
, 522 F.3d 948 (2008).
    In that decision, at para. 8, the Ninth Circuit Court of Appeals stated:

GARA only regulates the ability of a party to seek compensation
    from general aviation airplane manufacturers
in American
    courts
. See GARA §2(a). It is not a statute governing the substantive
    standards involved in tort claims. GARA merely eliminates the power of any
    party to bring a suit for damages against a general aviation aircraft
    manufacturer,
in a U.S. federal or state court
,
    after the limitation period. The only conduct it could arguably be said to
    regulate is the ability of a party to initiate an action for damages against a
    manufacturer
in American courts
 an entirely
    domestic endeavor. Congress has no power to tell courts of foreign countries
    whether they could entertain a suit against an American defendant. It would be
    up to any foreign court to determine whether it wanted to apply GARA to
    litigation occurring within its borders [Emphasis added.]

[13]

In light of the Ninth Circuits interpretation about the limits of GARAs
    application, we see no palpable and overriding error in the motion judges
    conclusion, at para. 36, that this is not a case where CMI deserves judgment
    based on an application of GARA.

DISPOSITION

[14]

For the reasons set out above, we would dismiss the appeal. The parties
    agree that ATC and CAR, as the successful parties, are entitled to their costs
    of the appeal in the amount of $12,000 each, inclusive of HST and
    disbursements.

"Alexandra
    Hoy A.C.J.O."

"E.E.
    Gillese J.A."

"David
    Brown J.A."


