JANICE GIO.YANNETTL GENERAL MOTORS OF CANADA LIMITED and GENERAL MOTORS COMPANY STATEMENT OF CLAIM

Transcription

1 COURT FILE NUMBER COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE _ -~LAINIIFE DEFENDANTS REGINA JANICE GIO.YANNETTL GENERAL MOTORS OF CANADA LIMITED and GENERAL MOTORS COMPANY Brought under The Class Actions Act STATEMENT OF CLAIM NOTICE TO DEFENDANTS 1. The plaintiff may enter judgment in accordance with this Statement of Claim or such judgment as may be granted pursuant to the Rules of Court unless, in accordance with paragraph 2, you: (a) serve a Statement ofdefence on the plaintiff; and (b) file a copy of it in the office of the local registrar of the Court for the judicial centre named above. 2. The Statement of Defence must be served and filed within the following period of days after you are served with the Statement of Claim (excluding the day of service): within 20 days ifyou were served in Saskatchewan; within 30 days if you were served elsewhere in Canada or in the United States of America; within 40 days if you were served outside Canada and the United States of America 3. In many cases a defendant may have the trial of the action held at a judicial centre other than the one at which the Statement of Claim is issued. Every defendant should consult his lawyer as to his rights. 4. This Statement of Claim is to be served within six months from the date on which it is issued. 'f't 5. This Statement of Claim is issued at the above-named judicial centre the a day of April, (LS) Local Registrar

2 -I- I. THE PARTIES (1) Plaintiff 1. The Plaintiff, Janice Giovannetti, has at all material times resided m Regina, Saskatchewan. (2) Defendants 2. The Defendant, General Motors Company, is a corporation incorporated pursuant to the laws of the State of Delaware with its principal place of business at 300 Renaissance Center, Detroit, Michigan, United States. General Motors Company was incorporated in 2009 when General Motors Corporation went bankrupt. General Motors Company was incorporated in 2009 as a part of reorganizations of General Motors Corporation, and inter alia, General Motors Company purchased all the assets of General Motors Corporation pursuant to 11 U.S.C The Defendant, General Motors of Canada Limited ("General Motors Canada"), is a corporation incorporated pursuant to the laws of the Province of Ontario and is registered Extra-Provincially in other provinces. General Motors Canada maintains its head office at 1908 Colonel Sam Drive, Oshawa, Ontario, LlH 8P7. The same corporation has not experienced bankruptcy. 4. The business of each of General Motors Canada and General Motors Company involves the designing, developing, testing, manufacturing, sale, and distribution of vehicles in Canada, including the subject vehicles identified below. 5. Each of the Defendants acted in concert with the others. Each of the Defendants is vicariously liable for the actions of the others. Each of the Defendants were part of one nrrwld.,;d,. vvv~ vv.1 "''-'V.lfJV.l ""...,.""ate e.-.+1'ty u act1'ng together and. 1'n 1 COffiffiOn... wa) ~~ g Lav D~~h viva ~~~~ted an-i 1u va"''-' ~ ~~u+~..l ~~;;u a " common business plan to manufacture and sell their vehicles in Saskatchewan and throughout the world.

3 -2-6. Neither the Plaintiff nor Class Members could reasonably be expected to know which of the Defendants has corrnriitted which individual wrong because the Defendants work secretively and collectively but each is responsible for the wrongdoing of the other. 7. Hereinafter, General Motors Company and General Motors Canada will collectively be referred to as "General Motors". (3) Class 8. Each of the General Motors Canada and General Motors Company has, by its acts and omissions, caused injury, harm, or damages to Members of the Class. The Plaintiff acts as a Representative Plaintiff on behalf of an affected Class of more than 145,700 persons in Canada. The Plaintiff institutes this Claim as a representative of the Class of persons who have suffered injury, harm or damages as a result of the Defendant's acts, omissions, wrongdoings, and breaches of legal duties and obligations, included but not limited to, negligence and failure to fulfill their statutory or common law duties, or other obligations due to the Plaintiff and the Class Members. The Plaintiff on behalf of all Class Members claims for the following relief, on a joint and several basis, against each of the Defendants, for the following proposed Class: All persons in Canada (including but not limited to individuals, corporations, and estates), who own or have owned, or lease or have leased, one or more of the GM vehicles affected by the electric-power steering assist defect asserted by this Claim ("Subject Vehicles"), and additionally, all persons in Canada (including but not limited to individuals, corporations, and estates) who have suffered any injury or damages, including but not limited to personal injuries, caused by an accident associated with the electric-power steering assist asserted by this Claim; t. f 1 t' t.. t. h. d' 'd or wuo, on account o a re a 1onsu1p vv1tu suc1 m tvl ua1s, may mat\:e a C1a1m under Dependants Statutes.

4 -3- "Dependants Statutes" include the Fatal Accidents Act, RSY 2002, c 86, ss 2-3; Family Compensation Act, RSBC 1996, c 126, ss 2 and 3(8)-(9); Fatal Accidents Act, RSNWT 1988, c F-3, ss 2-3; Fatal Accidents Act, RSA 2000, c F-8, ss 1, 2, ---~ ~ ~ ~ and 3(1); The Fatal Accidents Act, RSS 1978, c F-11, ss 2, 3(1), and 4(1)-(3); Fatal Accidents Act, SNu2010, c14, s6, ss 2-3; The Fatal Accidents Act, CCSM c F50, ss 2-3; Family Law Act, RSO 1990, c F 3, ss 61(1)-(2); Fatal Accidents Act, RSNL 1990, c F-6, ss 2-4; Fatal Accidents Act, SNB 2012, c 104, ss 3, 4, 7; Fatal Injuries Act, RSNS 1989, c 163, ss 2-3 and 5; Fatal Accidents Act, RSPEI 1988, c F-5, ss 1-2, 6. "Subject Vehicles" include Chevrolet Malibu: All model year 2004 and 2005, and some model year 2006 and model year 2008 and vehicles; Chevrolet Malibu Maxx: All model year 2004 and 2005, and some 2006 model year; Chevrolet HHR (Non-Turbo): Some model year 2009 and 2010 vehicles; Chevrolet Cobalt: Some model year 2010 vehicles; Saturn Aura: Some model year 2008 and 2009 vehicles; Saturn ION: All model year 2004 to 2007 vehicles; and Pontiac G6: All model year 2005, and some model year 2006 and model year 2008 and 2009 vehicles. 9. The Plaintiff brings this claim on behalf of all persons who purchased or leased a vehicle manufactured by General Motors that was equipped with faulty electric-power steering assist and subject to recall (the "Class" or "Class Members"). II. THE FACTS (1) Defective vehicles 10. General Motors researched, developed, designed, tested, manufactured, marketed, distributed, and sold General Motors' vehicles in Canada, including in Saskatchewan.

5 On March 31, 2014, General motors recalled 1.5 million vehicles because of defective electric-power steering assist systems, 145,7000 in Canada, including: Chevrolet Malibu: All model year 2004 and 2005, and some model year 2006 and model year 2008 and 2009 vehicles. Chevrolet Malibu Maxx: All model year 2004 and 2005, and some 2006 model year. Chevrolet HHR (Non-Turbo): Some model year 2009 and 2010 vehicles. Chevrolet Cobalt: Some model year 2010 vehicles. Saturn Aura: Some model year 2008 and 2009 vehicles. Saturn ION: All model year 2004 to 2007 vehicles. Pontiac G6: All model year 2005, and some model year 2006 and model year 2008 and 2009 vehicles. 12. Certain General Motors' vehicles may experience a sudden loss of electric-power steering assist due to a defect in the power steering motor, the steering column, the power-steering motor control unit or a combination of the steering column and the power-steering motor control unit, depending on the vehicle. 13. Without electric-power steering assist, the vehicle's steering will still work, but it will be difficult for an individual to tum the steering wheel, particularly when the loss of power steering is unexpected, let alone maintain full control of their vehicle. Driving without powersteering can be dangerous because the vehicle may not be able to tum as quickly or easily in order perform an evasive manoeuver and avoid a collision. 14. The Plaintiff and Class Members, in part having become accustomed to driving their vehicles with electric-power steering assist face increased and significant danger when suddenly electric-power steering assist functions on their vehicles is changed.

6 () General Motors' vehicles with the defective electric-power steering assist systems are dangerous to operate and subject owners, passengers, and third parties, to increased risks of personal injury and death. (2) Plaintiff's Harms 16. Janice Giovannetti owns a2009 Pontiac G6, which was purchased in Saskatchewan and is registered in Saskatchewan. 17. Around Apri12013, Janice experienced a sudden loss of electric-power steering assist while she was driving. Janice heard a chime from her Driver Information Center, and immediately realized that her vehicle had lost electric-power steering assist function because her vehicle became difficult to steer and maintain control of. 18. Fortunately, Janice was able to pull over to the side of the road without causing an accident. She had to call a tow truck, who took her vehicle to a General Motors' dealership for repmrs. 19. As a result of this dangerous event, Janice now drives her vehicle with great caution, fearing that she could experience a sudden loss of electric-power steering assist function and risk serious bodily harm. She has experiences psychological and emotional distress knowing that her vehicle is unsafe. 20. Janice is also aware that due to all the bad press that General Motors is receiving over the defective electric-power steering assist systems, this will decrease the value of her vehicle and make it more difficult for her to sell her vehicle in the future. 21. The Plaintiff is dissatisfied with the quality of her General Motors Canada vehicle and the recall.

7 -6- FIRST CLAIM FOR RELIEF (Negligence) 22. General Motors has a duty to design, manufacture, and market vehicles that are reasonably safe for their intended uses, and to provide true and accurate information to the public to prevent undue risks arising from the foreseeable use of its products. 23. General Motors was negligent, and breached this duty owed to the Plaintiff and Class. 24. The following acts and omissions by General Motors were negligent: (a) Failure to properly and adequately to design, develop, and test General Motors vehicles that were equipped with the defective electric-power steering assist systems to ensure that they were safe and free from defects prior to selling or distributing them; (b) Failure to discover, ~hrough reasonably expected adequate testing, that certain General Motors vehicles were equipped with defective electric-power steering assist that makes these vehicles prone to sudden loss of electric-power steering assist function; (c) Failure to properly and adequately to install a fail-safe software component or mechanical safeguard against sudden loss of electric-power steering assist function; (d) Failure to properly and adequately to design or manufacture components and component systems for General Motors' vehicles equipped with defective electric-power steering assist that would safeguard against sudden loss of electricpower steering assist function;

8 -7- (e) Failure to properly and adequately to test General Motors' vehicles equipped with defective electric-power steering assist function, and parts thereof, specifically including, but not limited to the power steering motor, the steering column, the power-steering motor control unit or a combination of the steering column and the power-steering motor control unit, depending on the vehicle; (f) Failure to properly and adequately to manufacture, fabricate, and assemble vehicles equipped with defective of electric-power steering assist and the systems, components, and parts thereof; (g) Failure to properly and adequately warn of the dangers attendant upon use of vehicles equipped with defective of electric-power steering assist, specifically including, but not limited to, the extreme, risk to the driver and occupants of a sudden, loss of electric-power steering assist and loss of control of the vehicle and resultant risk of severe bodily injury and/or death; (h) Failure to adequately monitor the safety and post-market performance of the Subject Vehicles and their component parts and to warn the Plaintiffs and Class Members of the dangers associated with their use; and (i) Failure to promptly recall the Subject Vehicles from the Canadian market upon discovery of their propensity to cause unintended loss of electric-power steering assist and under conditions of ordinary usage. 25. As a result of the foregoing, the Plaintiff and the Class have suffered economic damages 1 - ~- ~m~unt +~ L~ -rov en at tr1'nl n.....:l ~nmln.. n nfthn r<lnnn hn""' "Uf~e.. ed...,..,..,,.,onnl ;n;u"'' 11 au ru u 1 tv u~;; p a, auu 111v uuv.li3 v v v1a;,;, 1avv., 1. 1 pv1.., 1a 1 Ll 'l

9 () \ SECOND CLAIM FOR RELIEF (Breach of Express and Implied Warranty) 26. By marketing, advertising, distributing, and selling vehicles containing defective electric-... PQW~L~t~~ting assj j:,_ witllq!lt it1~q_rp.qt~!jpg~~9.!l~t~-~l_~~tr<:m!c _()J_!1!~~11~ni~liL fe!il-:safe~,-~d. while misrepresenting or failing report the dangers of such vehicles to the public, General Motors created and breached both express and implied warranties that the vehicles were safe for use as public transportation, when in fact, they were not. 27. As a result of the foregoing, the Plaintiff and the Class have suffered economic damages in an amount to be proven at trial, and members of the Class have suffered personal injury. THIRD CLAIM FOR RELIEF (Violations of Competition Legislation) 28. At all times relevant, General Motors violated section 52 of the Competition Act, R.S., 1985, c. C-34, by the use of false and misleading representations or omissions of material fact in connection with the marketing, promotion, and sale of vehicles equipped with defective electric-power steering assist systems. General Motors communicated the purported benefits of vehicles equipped with defective electric-power steering assist while failing to disclose that these vehicles were in fact equipped with defective electric-power steering assist that causes these vehicles to have a dangerous propensity to experience sudden and unintended loss of electricpower steering assist function, with the intent that consumers, like the Plaintiff, would purchase a vehicle equipped with defective electric-power steering assist. 29. As a result of violating the Competition Act, General Motors caused the Plaintiff to purchase a 2009 Pontiac G6, and caused other members of the Class to purchase vehicles from General Motors which are subject to the same dangerous defect. 30. As a result of the foregoing, the Plaintiff and the Class have suffered economic damages in an amount to be proven at trial, and members of the Class have suffered personal injury.

10 -9- FOURTH CLAIM FOR RELIEF (Violations of Consumer Protection Legislation) 31. The Consumer Protection Act, S.S. 1996, c. C-30.1, as am., including s. 14 and Part III; the Fair-Trading-Act, R.S ;A--2000,-c~--F -2,-as-am; including-s;-13; -The-Business Practices Act-; - S.M , c. 6; Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, as am., includings. 8; the Trade Practices Act, R.S.N.L. 1990, c. T-71, as am., includings. 14; and other similar legislation throughout Canada, apply to General Motors' actions and conduct, as described herein, because it extends to transactions that are intended to result, or which have resulted in the sale or lease of goods or services to consumers. 32. At all times relevant, General Motors manufactured, marketed, and distributed, General Motors' vehicles equipped with defective electric-power steering assist, in an unlawful, unfair, and deceptive manner that was likely to deceive the Plaintiff and members.of the Class. 33. General Motors' marketing of vehicles containing defective electric-power steering assist, without incorporating adequate electronic or mechanical failsafes, and while misrepresenting the safety of such vehicles to the public, constitutes unlawful, unfair and deceptive business acts or practices within the meaning of the legislation set-out at paragraph As a result of violating The Consumer Protection Act, supra, General Motors caused the Plaintiff to purchase a 2009 Pontiac G6, and caused other members of the Class to purchase vehicles from General Motors which are subject to the same dangerous defect. 35. As a result of the foregoing, the Plaintiff has suffered economic damages in an amount to be proven at trial, and members of the Class have suffered personal injury. FIFTH CLAIM FOR RELIEF (U~ust Enrichment) 3 6. The Plaintiff and Class unknowingly conferred a benefit upon General Motors by paying for a vehicle which was in fact, unreasonably dangerous for use as a vehicle.

11 The circumstances~ as described in this Statement of Claim are such that allowing General Motors to retain the benefits provided by the Plaintiff and Class would be inequitable. 38. General Motors has been unjustly enriched at the expense of the Plaintiff and the Class and~ as a matter of equity~ General Motors should be required to make them whole by disgorging the purchase price of each vehicle which should be ordered disgorged on a Class wide aggregate basis. SIXTH CLAIM FOR RELIEF (Punitive Damages) 39. General Motors prioritized corporate profits over the quality of its General Motors' vehicles and the safety of the Plaintiff and Class. 40. General Motors knew, or should have known, that certain models of their vehicles may have had defective electric-power steering assist that makes these vehicles prone to sudden, unintended loss of electric-power steering assist function. 41. To know danger and hide that danger is at atrocious conduct. Under the Canadian system of governance we have a higher expectation of the judicial arm of governance to punish and this is a case where punitive or exemplary damages ought to be ordered Punitive or exemplary damages ought to be awarded to the Class to discourage such highhanded corporate wrongdoing in the future. 43. An award of punitive or exemplary damages should be made on a lump sum basis to be distributed among members of the Class in whatever manner the common issues trial judge deems appropriate.

12 (~~... J (J RELIEF SOUGHT 44. The Plaintiff and Class plead and rely upon the Class Actions Act, and similar legislation where applicable. This Claim is commenced pursuant to the same legislation. 45. The Plaintiff and Class plead and rely upon the Pre-Judgment Interest Act, and similar legislation where applicable. 46. The Plaintiff claims against the Defendants,j ointly and severally, on behalf ofherself and Class Members: (a) general and special damages; (b) exemplary and punitive damages; (c) revocation of acceptance and refund of the purchase price of each General Motors' vehicle equipped with defective electric-power steering assist, including, but not limited to sales taxes, license and registration fees, or in the alternative damages for the diminished value of each of these vehicles; (d) disgorgement of the purchase price of each General Motors vehicle equipped with the defective electric-power steering assist, including but not limited to sales taxes, license and registration fees, or in the alternative damages for the diminished value of each of these vehicles; (e) damage for the loss of use, annoyance, and inconvenience; (f) damages for personal injury; (g) pre-judgment interest pursuant to the Pre-Judgment Interest Act; and, (h) such further and other relief as this Honourable Court may deem just. DATED at Regina, Saskatchewan, this\ 1~ay of April, MERCHANT LAW GROUP LLP

13 -12- CONTACT INFORMATION AND ADDRESS FOR SERVICE Name of firm:. Name_oflawyerin charge offile:. Address oflegal firms: Telephone number: Fax number: Merchant Law Group LLP. E.F.. AnthonyMerchant,Q.C Saskatchewan Drive Regina, Saskatchewan S4P 4H Z:\.\ti:~Cellaneous\OM Ignition Probltm\GM POWER STEERING ASSIST DRAFT CLAJM.\\pd