2025 ONSC 2489
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ayodeji Aderogba v. Global Logistics Management Inc., CMA CGM Canada Inc., and Eurogate Tangers S.A.
BEFORE: Fowler Byrne J.
COUNSEL: ADEROGBA, AYODEJI, (Self Represented Plaintiff)
Email: ojiwusi@yahoo.com
TOOR, ANU, agent for counsel SHARPE, WILLIAMS for Defendant GLOBAL LOGISTICS MANAGEMENT INC.
Email: AnuToor@RouteLaw.ca
ARANHA, ZOE, agent for SQUIRES, ROBIN for Defendant CMA CGM CANADA INC.,
Email: zaranha@blg.com
THOMSON, JAMES for Defendant EUROGATE TANGER S.A.
Email: jthomson@tbll.ca
HEARD: January 30, 2025, by videoconference
J U D G M E N T
1The Defendants seek summary judgment dismissing the Plaintiff’s claim, claiming it is statute barred. The Plaintiff resists this motion, and claims that there are issues which require a trial for resolution.
2The Defendant CMA CGM Canada Inc. (“CMA”) had originally sought summary judgment granting their counterclaim as against the Plaintiff for unpaid freight and demurrage. At the hearing of the motion, CMA indicated that they would not be proceeding on their counterclaim against the Plaintiff.
I. Background
3The Plaintiff Ayodeji Aderogba (“Aderogba”) is an individual, who carries on business under the name of EFF-TEE International. In or about January 2020, Aderogba contacted Global Logistics Management Inc. (“Global”) for the purposes of shipping a container, which contained a number of cars and personal items, from Toronto, Ontario to the Tincan Island, in Lagos, Nigeria.
4Global provides freight forwarding services pursuant to a Service Agreement (“Service Agreement”). They state that Aderogba received a copy of the Service Agreement earlier when they arranged for shipping of something else for him. Global has provided a copy of their Booking Confirmation dated January 29, 2020, which contained a handwritten note that Aderogba received a hard copy of the “BKG/terms” which they indicate is the Service Agreement. Aderogba did not dispute this.
5Paragraph 5 of the Service Agreement states:
Any legal proceeding against Global Logistics Management must be brought within 9 months of the time the Goods were received for transport. Global Logistics Management is not responsible for any indirect or consequential damages, including delay, loss of profit or loss of enjoyment. In any case, Global Logistics Management’s liability for claims relating to or arising from any one service is limited to the amount of fees and expenses charged for that service.
6Global states that it acts as an agent for Aderogba. It entered into a contract on Aderogba’s behalf, which is a Bill of Lading for Combined Transport and Port to Port Shipment no. CAN0478928 (“Bill of Lading”). The Bill of Lading indicated that EFF-TEE International was the shipper, the forwarding agent was Global, Mr. Adesanmi Martins Ojiwusi was the consignee and was to accept the container in Nigeria, and CMA CGM Canada Inc. (“CMA”) was the carrier of the shipment. The Bill of Lading was signed by CMA on February 18, 2020.
7The Terms and Conditions of the Bill of Lading are such that the merchant (being Aderogba), in accepting the Bill of Lading, agrees to be bound by all the terms and conditions contained therein. It is not disputed that Aderogba accepted the Bill of Lading. As will be further detailed herein, the Bill of Lading contained a clause which indicated that any suit for damages in the course of shipping had to be brought within one year of the date the goods arrived at their destination.
8Container #CMAU6526532 (“the Container”) was delivered to the Plaintiff. Aderogba arranged for it to be loaded. On or about February 9, 2020, CMA then arranged delivery of the Container by rail to Montreal where it was loaded onto a vessel and started its journey to Nigeria.
9The shipment was scheduled to arrive in Nigeria on April 28, 2020. However, in or around March 25, 2020, the Plaintiff was notified by Global that the Container and its contents were damaged at the Eurogate Port of Tangiers in Morocco. The Defendant Eurogate Tanger S.A. (“Eurogate”) operates a container terminal in the Strait of Gibraltar in Morocco. Aderogba was advised that there would be an investigation.
10On or about March 31, 2020, an investigation was conducted by Cabinet ZIZI, a surveyor firm. They inspected Aderogba’s container and found that it was heavily damaged and deformed, and that one side wall was heavily damaged, bent and ripped with a hole. Another side was damaged and crushed. The conclusion was that the container was heavily damaged and considered totally lost. The four cars inside of the container were also heavily damaged and considered totally lost. The conclusion of the investigators was that the damage was caused by wind force and the negligence of the terminal who took no action to avoid the falling of the container.
11Upon reviewing the report, Aderogba contacted Global and requested compensation. Global then emailed CMA on May 1, 2020, indicating that Aderogba would like to file a claim. Aderogba was provided with a document with instructions on how to file a claim with CMA and what documentation was required, which included invoices showing the value of the contents of the container. Aderogba provided an invoice dated June 3, 2020, indicating that the contents of the Container were 4 vehicles and personal items totalling $58,100. Global states it never received the invoice.
12On June 9, 2020, on behalf of Aderogba, Global filed a claim for damages with CMA. It was hoped that it could be resolved quickly as the container was en route to Lagos, and Aderogba did not want to be charged demurrage fees when the container arrived and was not picked up because the cars inside were worthless.
13In the meantime, in Morocco, the contents of the Container were loaded into a new undamaged container APHU6793232 (“Container 2”). It was delivered from Morocco to the port in Lagos, arriving on June 14, 2020. The consignee refused to accept Container 2 and clear it out because the container number was changed. He and Aderogba had no way to verify the contents of Container 2, and to ensure that it was not tampered with or used to transport contraband items such as weapons and drugs. Also, given the contents were apparently damaged, they did not have any value.
14Aderogba asked CMA to clear Container 2 through customs so that he would not have to pay any demurrage fees. Aderogba offered to purchase the vehicle carcasses to offset CMA’s costs. CMA refused as it was not a licensed customs clearing agent.
15Container 2 remained at the terminal on Tincan Island in Nigeria and continued to accrue detention and demurrage fees. For the period of July 5, 2020, to December 31, 2022, CMA invoiced the consignee NGN 17,730,781.25. CMA also invoiced Global a further USD $2,730 for shipping on February 18, 2020.
16CMA was considering Aderogba’s claim in June and July 2020. Finally on July 27, 2020, and forwarded again on July 29, 2020, CMA advised that it was denying the claim. CMA stated:
This damage occurred in a fashion which was unavoidable, and which gives rise to a force majeure defence for the carrier. Therefore, based on the article IV 2. (d)(q) of the Hague Visby Rules, CMA CGM denies any liability in respect of the damage to the above noted cargo and must respectfully decline any claim that could be filed by the shipper.
17Aderogba retained counsel who, on January 5, 2021, sent a demand letter to Global for compensation. On February 3, 2021, counsel for Global wrote back denying responsibility for the damage given that they only acted as an agent to hire the carrier, and at no time undertook the safe delivery of the cargo. In addition, he was advised that CMA demanded that Container 2 be unloaded and returned to CMA in Nigeria. If not done, the container would accrue demurrage charges, which Aderogba and his consignee in Nigeria would have to pay. They warned that unless they received confirmation by February 15, 2021, that the cargo was unloaded and Container 2 returned, the cargo would be considered abandoned. In this letter, Global’s counsel also advised Aderogba’s counsel as follows:
Eff-Tee International is a direct contracting party under the Bill of Lading. [CMA] has taken the position that under the Hague-Visby rules, the carrier is exempt from liability for collapse of the port container stack from high wind. We suggest Eff-Tee International pursue legal remedies as it may be advised against the performing carrier and persons other than [Global] who may have caused or contributed to the alleged loss. As a courtesy and not as legal advice, the governing limitation for marine cargo claims against carrier is one year from the date of delivery. As a courtesy, we provide a copy of [CMA]'s bill of lading terms and conditions.
18Global states that attached to this letter was a copy of its Service Agreement, the Bill of Lading and its Terms and Conditions. Aderogba did not deny this in his affidavit.
19Aderogba commenced this claim on February 24, 2022. He maintains that he first sought his damages from CMA, through Global, in June 2020 when he made his claim.
II. Issues
20The following issues must be determined:
a. Is there a triable issue that requires a trial?
b. If not, is the Plaintiff’s claim statute barred?
III. Analysis
A. Is Summary Judgment Appropriate?
21The court may grant summary judgment if it is satisfied that there are no genuine issues requiring a trial with respect to the claim or defence. In this determination, I may weigh the evidence, evaluate the credibility of a deponent, or draw any reasonable inference from the evidence. I should consider summary judgment unless it is in the interests of justice for such powers to be exercised only at trial: Rules of Civil Procedure, R.R.O, 1990, Reg. 194, r. 20.04(2)(a), r. 20.04(2.1).
22The law of summary judgment has been well developed since Hryniak v. Mauldin, 2014 SCC 7, [2007] 1 S.C.R. 87. A summary of the applicable principles are as follows:
a. There will not be a genuine issue requiring a trial if I am able to reach a fair and just determination on the merits of the motion. This will be the case when I can make the necessary findings of fact, apply the law to those facts, and where this is a proportionate and more expeditious means to achieve a just result: Hryniak, at para. 49;
b. I should first determine if there is a genuine issue requiring a trial based only on the evidence before me, without resorting to my enhanced fact-finding powers as set out in r. 20.04(2.1). If, after this step, it appears that there is a genuine issue requiring a trial, I should then determine if a trial can be avoided utilizing my powers under r. 20.04(2.1) and (2.2). Again, this is as long as their use is not against the interests of justice. Their use will not be contrary to the interests of justice if they lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality, in light of the litigation as a whole: Hryniak, at para. 66;
c. The moving party bears the onus of showing that there is no genuine issue requiring a trial. It cannot rely on mere allegations or pleadings. When it has satisfied the court that there is no genuine issue requiring a trial, the burden shifts to the responding party to prove that their defence has a real chance of success. The responding party cannot rely on allegations or denial. They must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial: New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037, at para. 12, aff’d 2010 ONCA 348;
d. A party must put their best foot forward on a motion for summary judgment with respect to the existence or non-existence of material issues to be tried: Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 7; New Solutions, at para. 12; Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32, affirmed 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97; and
e. The court is entitled to assume that the record contains all the evidence which the parties will present if there was a trial: New Solutions, at para. 12; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11; Broadgrain at para. 7.
23There appears to be little in dispute in this matter, factually. The issue to be decided is the applicable limitation period.
24I am confident that I can reach a fair and just determination of this claim on its merits without resorting to my enhanced powers. Summary judgment is appropriate in these circumstances.
B. Is the Claim Statute Barred?
25For the foregoing reasons, I find that the Plaintiff’s claim is statute barred.
26The terms of the contract between Global and Aderogba is the Service Agreement. It clearly states that any action must be brought within 9 months of receiving the goods to be shipped.
27Also applicable to Global, as well as the other Defendants, is the contract between CMA and Aderogba, namely the Bill of Lading. Paragraph 7 of the Bill of Lading states:
Unless notice of loss or damage to the Goods specifying or describing the exact nature of such loss or damage is given in writing to the Carrier at the Port of Discharge or Place of Delivery before or at the time of delivery of the Goods or, if the loss or damage is not apparent, within three (3) consecutive days after delivery, the Goods shall be deemed to have been delivered as described in this Bill of Lading. In any event the Carrier and its Sub-Contractors shall be discharged from all liability in respect of non-delivery, mis-delivery, delay, loss or damage unless suit is brought within one (1) year after delivery of the Goods or the date when the Goods should have been delivered.
28Also relevant for this case is the Marine Liability Act, S.C. 2001, c. 6. In Part 5, section 43 of this Act, it states that the Hague-Visby Rules (“HVR”), as set out in Schedule 3 of the Act, have the force of law in Canada in respect of contracts for the carriage of goods by water between different countries. The HVR are a set of international rules for the international carriage of goods by sea.
29The HVR states, at article 3:
6 Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.
Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.
6 bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.
30As can be seen, the wording in the Bill of Lading appears to be taken from the HVR. Both documents set out a limitation period of 1 year from the date the good were ultimately delivered or should have been delivered. In our case, the calculation of that was one year commenced June 14, 2020.
31As is the case for many claims that occurred during the years of the global pandemic, limitation periods in the province of Ontario were frozen or extended. In Ontario, the calculation of limitations periods was stayed between March 16, 2020, and September 13, 2020: Limitation Periods, O. Reg. 73/20; Limitation Periods, O. Reg. 457/20. Nonetheless, even if these six months were credited to the Plaintiff, this claim was still commenced more than one year after the cause of action arose.
32With respect to Eurogate, they are also protected by the one-year limitation period set out in the Bill of Lading. By virtue of paragraph 7.6 of the contract between CMA and Eurogate, and clause 27 of the Bill of Lading, Eurogate is entitled to benefit from CMA’s limitation period in any lawsuit brought by Aderogba in these circumstances: Labrador-Island Link General Partner Corporation v. Panalpina Inc., 2019 FC 740, at paras. 78-81, appeal dismissed 2020 FCA 36.
33Aderogba relies on the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, which sets out a global limitation period of two years. He also argues that the start of the limitation period should be delayed while the parties continued their negotiations. He argues that s. 22 of said Act allowed the limitation period to be varied by a business agreement. He states that there is a conflict between the various business agreements at play. While he acknowledges that the Bill of Lading sets out a one-year limitation period, he points out that the contract between Eurogate and CMA provides for a two-year limitation period. This, he maintains, is a triable issue.
34Unfortunately, these arguments must fail. In these circumstances, it is the federal Marine Liability Act which is the governing statute and not the provincial Limitations Act, 2002. Matters of shipping and navigation are matters that are squarely within the jurisdiction of the federal government. As stated by the Supreme Court of Canada in Ordon Estate v. Grail (1998), 1998 CanLII 771 (SCC), 40 O.R. (3d) 639, at para. 93:
… much of the raison d’être of the assignment to Parliament of exclusive jurisdiction over maritime matters is to ensure that Canadian maritime law in relation to core issues of fundamental international and interprovincial concern is uniform. This raison d’être, although not unique to the federal power over navigation and shipping… is uniquely important under s. 91(10) of the Constitution Act, 1867 because of the intrinsically multi-jurisdictional nature of maritime matters, particularly claims against vessels or those responsible for their operation. This concern for uniformity is one reason, among others, why the application of provincial statutes of general application to a maritime negligence claim cannot be permitted.
35With respect to federal legislation, Aderogba relies on the Marine Liability Act, s. 23(1), which sets a limitation period of two years. Finally, Aderogba relies on Article 20 under Part V of the Hamburg Rules, which he argues are incorporated into Canadian law pursuant to s. 44 of the Marine Liability Act. Article 20 provides for a two-year limitation period.
36Unfortunately, these arguments must also fail.
37Aderogba’s reliance on s. 23 of the Marine Liability Act is misguided. Section 23 is part of Part II, which refers to actions that attempt to apportion liability to various parties to a marine incident. Actions such as this one, where the Plaintiff is seeking damages for the loss of his cargo, are covered by Part V of the Marine Liability Act, which explicitly adopts the HVR in s. 43. As already indicated, the HVR allows for a one-year limitation period only.
38With respect to the Hamburg Rules, these Rules were not adopted as part of Canadian law. The section that Aderogba refers to compel the federal government to consider whether to adopt the Hamburg Rules before 2005 and every five years thereafter. This section was repealed on June 21, 2023, indicating no interest by the Canadian government in adopting them at this time.
39Finally, Aderogba argues that even if the one-year limitation period was accepted, he made a claim for compensation to CMA in June 2020. Unfortunately, this claim is not a claim as contemplated by the HVR. The HVR specifically refers to a “suit” being brought, meaning a lawsuit. Even if it could be argued that Aderogba’s loss was not discovered when his claim was denied in July 2020, the one-year limitation period expired in July 2021, six months prior to this action commencing.
40Accordingly, Aderogba’s claim is statute-barred.
C. Costs
41During the course of its submissions, counsel for Eurogate indicated that it would not seek it costs. Global and CMA made their costs submissions, but I indicated that I would provide Aberogba an opportunity to make costs submissions before I make a final ruling in that regard.
IV. Conclusion
42For the following reasons, I make the following orders:
a. Summary judgment is granted dismissing the Plaintiff’s claim against all Defendants;
b. The counterclaim by CMA as against the Plaintiff is dismissed;
c. Aderogba shall have until May 16, 2025, to serve and file his Bill of Costs and written costs submissions, limited to 2 pages, double spaced, plus any Offers to Settle that he served;
d. CMA and Global shall have 14 days from receipt of the Plaintiff’s submissions to file reply submissions, limited to 2 pages, double spaced, plus any offers to settle they may have served.
Fowler Byrne J.
DATE: April 24, 2025
2025 ONSC 2489
COURT FILE NO.: CV-22-00000595-0000
DATE: 2025 04 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ayodeji Aderoga v. Global Logistics Management Inc., CMA CGM Canada Inc., and Eurogate Tanger S.A.
COUNSEL: ADEROGBA, AYODEJI,
(Self-Represented Plaintiff)
Email: ojiwusi@yahoo.com
TOOR, ANU, agent for counsel SHARPE, WILLIAMS for Defendant GLOBAL LOGISTICS MANAGEMENT INC.
Email: AnuToor@RouteLaw.ca
ARANHA, ZOE, agent for SQUIRES, ROBIN for Defendant CMA CGM CANADA INC.,
Email: zaranha@blg.com
THOMSON, JAMES for Defendant EUROGATE TANGER S.A.
Email: jthomson@tbll.ca
ENDORSEMENT
Fowler Byrne J.
Released: April 24, 2025