Rowland v. Wright Medical Technology Canada Ltd., 2015 ONSC 3280
COURT FILE NO.: CV-14-512824CP
DATE: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GAYLE ROWLAND
Plaintiff
– and –
WRIGHT MEDICAL TECHNOLOGY CANADA LTD., WRIGHT MEDICAL TECHNOLOGY INC., WRIGHT MEDICAL GROUP INC., MICROPORT MEDICAL B.V. and MICROPORT SCIENTIFIC CORPORATION
Defendants
Megan B. McPhee and Tina Q. Yang for the Plaintiff
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] This is a motion for an extension of time for the service of a statement of claim in a proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c.6.
[2] The Plaintiff, Gayle Rowland, brings a proposed national class action on behalf of persons who were implanted with ProFemur or Conserve hip devices manufactured by the Defendants Wright Medical Technology Canada Ltd., Wright Medical Technology Inc., Wright Medical Group Inc., Microport Medical B.V. and Microport Scientific Corporation.
[3] Ms. Rowland had her Statement of Claim issued on September 24, 2014.
[4] On November 6, 2014, Peter Pliszka, a partner at Fasken Martineau LLP, accepted service of the Statement of Claim on behalf of Wright Medical Technology Canada Ltd., Wright Medical Technology Inc., and Wright Medical Group Inc. (collectively “Wright Medical”). Mr. Pliszka advised the Plaintiff’s lawyers, Kim Orr Barristers P.C., that he was awaiting instructions about accepting service on behalf of Microport Medical B.V., which is a Dutch corporation, and Microport Scientific Corporation, which is a Chinese corporation.
[5] While continuing to wait for Mr. Pliszka to obtain instructions from the Microport corporations, Ms. Rowland took steps to arrange for service on Microport Medical B.V. and on Microport Scientific Corporation, pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“the Hague Convention”).
[6] Under the Hague Convention, the Netherlands does not object to mail service. Under the Hague Convention, China objects to mail service and requires a translation of the court documents into Chinese. In China, the translated documents are then served by the Chinese Central Authority pursuant to the Hague Convention.
[7] On March 3, 2015, Ms. Rowland initiated service of the Statement of Claim on Microport Medical B.V. by registered mail. Although the correspondence was received on March 12, 2015, Microport Medical B.V. did not provide an Acknowledgement of Receipt Card to Ms. Rowland’s lawyers.
[8] On March 12, 2015, Ms. Rowland’s lawyers arranged for the Chinese Central Authority to receive a certified translated copy of the Statement of Claim. It is anticipated that it may take up to six months for the Chinese Central Authority to effect service.
[9] Rule 14.08 of the Rules of Civil Procedure requires that a statement of claim be served within six months of issuance. On March 24, 2015, the time for service of the Statement of Claim on the Microport corporations expired.
[10] On April 30, 2015, an insurance adjuster for Microport Medical B.V. and Microport Scientific Corporation advised Ms. Rowland’s lawyers that he had been retained but that the Microport Corporations had not yet retained Canadian lawyers.
[11] Ms. Rowland now brings a motion for an order extending the time for service of the Statement of Claim until December 31, 2015. She also seeks an order that the motion for the extension order may be made without notice.
[12] The Wright Medical Defendants do not oppose the motion.
[13] Rule 37.07 (2) empowers the court to make an order without notice where the nature of the circumstances make service of the motion material impracticable or unnecessary. It seems obvious that it is impracticable to serve a notice of motion to extend the time for the service of a statement of claim when the reason for the motion is that it has proven impracticable to serve the statement of claim within the prescribed time because of the practicalities of the Hague Convention.
[14] I regard the circumstances of the case at bar as falling within rule 37.07. And in my opinion, Ms. Rowland should be granted an order extending the time for service of the Statement of Claim.
[15] Rule 3.02 (1) of the Rules of Civil Procedure empowers the court to extend the time for service of any document.
[16] The key factor in determining whether to grant an extension for service of the statement of claim is prejudice from the delay in service; if the defendant is not prejudiced by the delay in service, the court may extend the time for service of the statement of claim: Chiarelli v. Wiens (2000), 2000 3904 (ON CA), 46 O.R. (3d) 780 (C.A.); Khroad v. Hill, [2010] O.J. No. 581 (Ont. S.C.J.); Chudzik v. Fehr, 2006 19 (ON SC), [2006] O.J. No. 4 (S.C.J.) at para. 17.
[17] The plaintiff has the onus of showing that extending the time for service of the statement of claim will not result in prejudice to the defendant: Khroad v. Hill, supra, at para. 26. In determining whether there is any prejudice, the court will consider whether: (a) material witnesses have disappeared or died; (b) relevant documents have been preserved; (c) the delay is such that it can reasonably be assumed that memories have faded; and (d) any new facts are being alleged: Chiarelli v. Wiens, supra; Eade (Litigation Guardian of) v. Browne Estate, [2005] O.J. No. 1753 (S.C.J.) at para. 5; Khroad v. Hill, [2010] O.J. No. 581 (S.C.J.) at para. 28.
[18] On a motion to extend, the focus is on the discrete prejudice caused by the delay in serving the documents and not any prejudice from the passage of time from the relevant events to the commencement of the action; McGroarty v. CIBC Mellon Trust Co., 2012 ONCA 241; Chiarelli v. Wiens, supra at para. 16.
[19] In Chiarelli v. Wiens, supra, at paras. 14-16, the Court of Appeal articulated the following principles for determining whether to grant an extension of time for the delivery of the statement of claim: (1) although the onus is on the plaintiff to show that the defendant will not be prejudiced by an extension of time, the plaintiff cannot be expected to speculate and the defendant has at least an evidentiary obligation to provide some details of prejudice; (2) the defendant cannot create prejudice by his or her failure to do something that could reasonably have been done; (3) the prejudice that will defeat an extension of time for service must be caused by the delay; (4) an extension of the time for service should not be denied simply because the delay is longer than the applicable limitation period; and (5) each case should be decided on its facts, focusing on whether the defendant is prejudiced by the delay. See also Nash Estate v. Schell Estate, 2013 ONSC 4813 (Div. Ct.).
[20] In the case at bar, Ms. Rowland has made reasonable efforts to have service effected within six months and there is no discernable prejudice to Microport Medical B.V. and Microport Scientific Corporation. These Defendants appear to have known about the proposed class action more or less from the outset.
[21] I order that the time for service of the Statement of Claim be extended to December 31, 2015.
[22] Order accordingly.
Perell, J.
Released: May 25, 2015
CITATION: Rowland v. Wright Medical Technology Canada Ltd., 2015 ONSC 3280
COURT FILE NO.: CV-14-512824CP
DATE: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GAYLE ROWLAND
Plaintiff
– and –
WRIGHT MEDICAL TECHNOLOGY CANADA LTD., WRIGHT MEDICAL TECHNOLOGY INC., WRIGHT MEDICAL GROUP INC., MICROPORT MEDICAL B.V. and MICROPORT SCIENTIFIC CORPORATION
Defendants
REASONS FOR DECISION
PERELL J.
Released: May 25, 2015