NEW - Johnstone v. Vincor International Inc., 2011 ONSC 6005 (CanLII).

  • October 13, 2011

Date: 2011-10-13. Docket: 06-CV-317618. Master R.A. Muir. | Link

Motion to set aside the order of the registrar dismissing the action for delay. Plaintiff cut her hand while opening a bottle of wine and allegedly sustained severe and permanent injuries. Vincor is the producer and distributor of the wine and the plaintiff alleged that Owens manufactured the glass bottle. Owens is based in Ohio. On December 6, 2006, a copy of the statement of claim was left with an employee of Owens pursuant to Rule 17 and the Hague Convention. Owens has no record of receiving the statement of claim in this fashion, but did receive a copy by fax on November 28, 2006. Owens received legal advice that service of a statement of claim via fax was not proper service and therefore took no steps to defend the action. On February 12, 2009, the registrar issued an order dismissing this action for delay because the plaintiffs took no steps to comply with the status notice or Rule 48.14. Owen’s general practice when it receives a claim of this nature is to request the bottle be sent to its laboratory for inspection. After this testing, Owens determines what, if any, documents need to be preserved. Owens did not send its usual letter to the plaintiffs and did not make a request to inspect the bottle until May, 2009. After negotiations between the parties, the bottle was inspected by Owens in March, 2011. The inspection revealed that the bottle was manufactured by a related corporation, O-I Canada Corp, and that all but a few of O-I Canada’s documents had been purged in accordance with the company’s record retention policy. These records were likely destroyed in 2007 and 2008. The court found that the plaintiffs did not bring their motion in a timely matter, but that the failure to do so was overall adequately explained. Owens claimed that it suffered prejudice from the destruction of important documents in accordance with its record retention policy. The court found that even if Owens mistakenly thought it had not been properly served, “it remains perplexing why it chose to ignore the claim. […] [Owens’] usual practice upon the receipt of a consumer complaint or statement of claim was to make arrangements to inspect the container in question and then make a decision about what documents needed to be retained. […] Owens chose to rely on a technicality regarding service and failed to follow its own policies in place to deal with situations of this nature when it knew that it had record retention policies in place that would possibly lead to the loss of important and relevant documents.” The court concluded that any prejudice to Owens was self-inflicted and not a result of the delay. The court therefore set aside the registrar’s order dismissing the action for delay.