MacInnis v Bayer Inc., 2021 SKCA 160

Court of Appeal for Saskatchewan Docket: CACV3740 Citation: MacInnis v Bayer Inc. , 2021 SKCA 160 Date: 2021-12-02 Between: Amanda MacInnis Applicant/Prospective Appellant (Plaintiff) And Bayer Inc. and Bayer Healthcare LLC Respondents/Prospective Respondents (Defendants) Before: Barrington-Foote J.A. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Mr. Justice Barrington-Foote On application from: 2020 SKQB 307 , Regina Application heard: November 24, 2021 Counsel: E.F. Anthony Merchant, Q.C., Anthony Tibbs and Steven Roxborough for the Applicant W.

Grant Worden, William McNamara, Nicole Mantini, Alicja Puchta and Morag McGreevey for the Respondents Barrington-Foote J.A. I. INTRODUCTION [ 1 ] On November 20, 2020, a Court of Queen’s Bench judge denied Amanda MacInnis’s application to certify the action underlying this appeal as a class action [certification decision]. In that action, Ms. MacInnis alleges that Bayer Inc. and Bayer Healthcare LLC [together called “Bayer”] were negligent in the design, development, testing, distribution, marketing, and sale of Essure, a permanent form of female contraception. Ms.

MacInnis was granted leave to appeal but did not serve and file her notice of appeal within ten days as required by Rule 11(2) of The Court of Appeal Rules . [ 2 ] Ms. MacInnis has applied pursuant to Rule 71 of The Court of Appeal Rules to extend the time to serve and file the notice of appeal. I have concluded that her application should be granted. My reasons follow. II. BACKGROUND [ 3 ] In a fiat dated March 30, 2021, Ottenbreit J.A. granted leave to appeal the certification decision. Among other things, he found that “it cannot be said at this stage that the appeal is destined to fail” (at para 22).

Having concluded that the proposed notice of appeal was “practically useless” (at para 16), he also redrafted the grounds of appeal. As a result, Ms. MacInnis’s counsel, E.F. Anthony Merchant, Q.C., had only to fill in the blanks in a notice of appeal, serve it within ten days pursuant to Rule 11(2) and file it within ten days as required by Rule 10(1). [ 4 ] Mr. Merchant was well aware of these deadlines, but failed to act within the time allowed. On June 14, 2021, the Registrar emailed Mr.

Merchant and other Merchant Law Group lawyers working on the file to ask whether the file should be closed, as the Court had not received a notice of appeal. The Registrar pointed out that an application to late file would be required if Ms. MacInnis intended to proceed. Inexplicably, Merchant Law Group responded by instead attempting to file a notice of appeal with proof of service, which was rejected by the Registry because it was out of time.

On June 17, Merchant Law Group was advised that they should file either a draft consent order to permit late filing or an application to extend time. [ 5 ] On June 23, Merchant Law Group emailed counsel for Bayer to request their consent to an order extending time. Inexplicably, they did not respond. Counsel for Bayer advised at the hearing of this application that they would normally consent to an extension of time in circumstances like this if asked to do so.

He was not aware such a request had been made. [ 6 ] The next activity reflected in the Court’s file is on September 29, when the Registrar’s office advised Mr. Merchant and his associate, Anthony Tibbs, that as the Court had not received an application to late file, it would close the file. Mr. Tibbs promptly responded, requesting that no steps be taken for 14 days, as they were “discussing with the respondents will [ sic ] be delivering a motion next week…although it is unclear yet whether that will be in [ sic ] consent or otherwise”.

There is no evidence that there were, in fact, any ongoing discussions between counsel. [ 7 ] On October 7, Merchant Law Group would finally file Ms. MacInnis’s application to extend the time to file the notice of appeal. The affidavit filed in support of that application was that of a legal assistant employed by Merchant Law Group. She explains that the action was under the overall direction of Mr. Merchant, who was assisted by two other Merchant Law Group lawyers, Mr. Tibbs and Steven Roxborough. The affidavit reflects the fact that Mr. Tibbs gave instructions to Mr.

Roxborough to prepare the notice of appeal on March 31, 2021, but no one followed up to see if it had been served or filed. [ 8 ] The affidavit also contains the following explanation of the lack of activity between June and October, as follows: 16. I am advised by Mr. Tibbs and verily believe that at that time, he and others entered into a busy time for filing and the preparation

of records for other proceedings, the end result of which was none of Messrs Merchant, Roxborough, or Tibbs quickly prepared a motionfor an extension of time. III. ANALYSIS A. Extending time: discretion and the applicable criteria [9] Rule 71 of The Court of Appeal Rules provides that the Court or a judge may enlarge or abridge the time periods fixed by theRules, before or after the fixed time period has expired. In Wood v Wood, 2001 SKCA 2, 203 Sask R 82, Cameron J.A. described this Ruleas conferring an “‘unfettered discretion’ bounded only by the need to act judicially” (at para 5).

He also commented that, in exercising thisauthority, it was customary to take account of three considerations: (

a) Did the applicant have a bona fide intention of appealing while the right of appeal existed; (

b) Is the impugned order or judgment at least arguably wrong; and (

c) Is the respondent likely to suffer prejudice stemming from the appeal should the time be enlarged? [10] In addition to these three factors, there is a fourth consideration that is customarily considered on a Rule 71 application; that is,is there a reasonable explanation for the delay? See, for example, Taheri v Vujanovic, 2018 SKCA 40 at paras 20–22, 36 CPC (8th) 82.These four factors are the same as those taken into account on an application to extend time pursuant to s. 9(6) of The Court of Appeal Act,2000, SS 2000, c C-42.1, which provides that a judge or the court may extend an appeal period mentioned in that

section where it is theopinion of a judge or court that it is just and equitable to do so: Bank of Nova Scotia v Saskatoon Salvage Company

(1954) Ltd. (1983), (SK CA), 29 Sask R 285 (CA) at paras 18–19; Dutchak v Dutchak, 2009 SKCA 89 at paras 11–12, 337 Sask R 46;Patel v Whiting, 2020 SKCA 49 at para 35. [11] Two further points bear emphasis in this case. First, prejudice to the respondent has a particular meaning in this context. AsRyan-Froslie J.A. explained in Taheri: [49] The prejudice to be considered by this Court in determining whether to extend time for appeal is not “what would be incurred inthe usual appeal process” (Dutchak at para 12).

Rather, it is prejudice, either actual or inferred, that would result if the period of appealwere extended. A good example, though by no means the only one, is where a respondent has taken steps to enforce the judgment orotherwise acted in reliance on it such that he or she would be prejudiced if the appeal were allowed to proceed. [12] Second, although it is necessary to satisfy the Court that there is an arguable case to be advanced on the appeal, it is notnecessary that the prospective appellant satisfy the Court that the answer to the three other questions is “yes”.

As Jackson J.A. said inDutchak, “[i]n any given case, one or more factors may be more important than another” (at para 12). The overarching question,regardless of whether the application is pursuant to s. 9(6) or Rule 71, is whether it is just and equitable to extend the time. [13] These, accordingly, are the criteria that bound the exercise of this discretionary authority.

As Cameron J.A. said in Rimmer vAdshead, 2002 SKCA 12, [2002] 4 WWR 119, where powers are discretionary, they “fall to be exercised as the judge vested with themthinks fit, having regard for such criteria as bear upon their proper exercise” (at para 58). B. It is just and equitable to extend the time to file and serve the notice ofappeal [14] Turning then to the application of this framework in this case, I would first note that although the affidavit evidence filed insupport of this application does not expressly state that Ms.

MacInnis had a bona fide intention to appeal within the time limited, I amsatisfied based on the record as a whole and quite apart from Mr. Merchant’s representations to that effect that she did. [15] As to the second factor, the potential merit of the appeal, Ottenbreit J.A. decided that Ms. MacInnis has raised a number ofarguable issues.

The second criterion is accordingly satisfied. [16] On the question of the third factor, prejudice, Bayer makes an unusual submission in what it characterizes as a unique case.Bayer’s evidence confirmed that there are now in excess of 100 individual actions which have been commenced against Bayer in relationto Essure. The majority of those actions were commenced after the application for certification had been dismissed and Ms. MacInnis hadfailed to proceed with the appeal in a timely manner.

On the basis of that timing, but without direct proof of a causal connection, Bayerasserts that these individual actions have proliferated as a result of what it properly characterizes as a lengthy delay. [17] Bayer argues that this will cause prejudice to them in three ways. It submits that it would be prejudicial to require it to respondto a “stale appeal” which seeks to resurrect a proposed class action that over 100 individual claimants have decided is neither necessarynor useful. With respect, that argument is of no assistance. Although Bayer took exception to Mr.

Merchant’s submission that there arethousands of potential class members, it did not assert that the individual claimants constitute a significant portion of potential classmembers. There is no reasonable basis to conclude that a Saskatchewan class action would not be useful or necessary from the perspectiveof the potential class members who have not chosen to commence individual actions. [18] Bayer also submits that it would be prejudicial to require that they litigate on timelines that are convenient to Ms. MacInnis’scounsel, without regard to The Court of Appeal Rules.

Again, it is my respectful view that this argument is of no assistance. Indeed, itamounts to an argument that extensions of time should not be granted because they are extensions of time. [19] Bayer further submits that it would be prejudicial if they were to be forced to defend an unnecessary appeal in relation to a

duplicative and redundant proposed class action, as many putative class members have chosen to pursue their claims through individual actions. It notes in this context that the same Ontario law firm represents the plaintiffs in virtually all of the individual claims. [ 20 ] I am, of course, unable to say how many of those who have commenced individual actions would have done so regardless of the delay in filing the notice of appeal. I would infer that some were influenced by the denial of the certification application.

Others may have preferred the approach proposed by Ontario counsel who act for many of these individuals, regardless of the potential availability of a class action.

I note in this context that counsel for Bayer suggested that the Ontario counsel would carry the financial burden of moving those claims forward. [ 21 ] Even if I assume for the sake of argument that the decision by some individuals to commence individual actions may have been influenced by the delay in filing the notice of appeal, I am not satisfied that Bayer has demonstrated any material prejudice of the sort that is relevant to this application; that is, prejudice that would result from extending the appeal period, other than that which would be the usual result of having to defend the action.

There is, for example, no suggestion that Bayer lacks the resources to respond to both the individual actions and a Saskatchewan class action. There is no evidence that the witnesses or other evidence are no longer available as a result of delay. A significant number of individual actions had already been commenced before the expiration of the appeal period. For that reason, Bayer would have been obliged to respond to those claims – and doubtless other claims – regardless of the delay.

It is also important that many of the litigants are represented by the same firm. [ 22 ] Further, there is an existing class action proceeding in Québec against Bayer. Merchant Law Group also acts for the representative plaintiff in that action. Ms. MacInnis submits that this means they are defending the same case in any event. Bayer notes that the common issues are different in the Québec action than those identified in Ms. MacInnis’s application. However, I am satisfied that there is a great deal of overlap between the two claims.

Bayer will be obliged to plow much of the same ground in Québec and in responding to the individual actions regardless of whether this proposed class action is ultimately certified. [ 23 ] I would finally note that if leave is denied, there will be no class action outside Québec. That is of importance not only to those potential class members who may be affected by the expiration of the limitation period, but by many who are not. [ 24 ] That leaves the fourth consideration: is there a reasonable explanation for the delay? In my view, there is not.

The blame lies at the feet of the lawyers at Merchant Law Group who were responsible for the file. Even if the failure to serve and file the notice of appeal prior to June 14, 2021, could be characterized as a result of counsel error as opposed to counsel inaction – a questionable conclusion based on the evidence – Bayer correctly notes that an additional 115 days would pass before Ms. MacInnis filed this application, and then only as a result of the intervention by Registry staff.

Given the lack of an explanation, this is a very significant delay, which is in itself a factor that is properly taken into account. [ 25 ] Bayer characterizes the delay between June and October as the result of indifference. Indifference, perhaps as to the need to abide by The Court of Appeal Rules , is certainly one potential explanation. Incompetent file management is another. Neither of these constitute a reasonable explanation for delay. Neither would qualify as an error by counsel. It is also possible that this was a tactical decision.

If I had been satisfied that was the case, I would have dismissed the application. However, that was not the evidence. I note, in this respect, the unsuccessful attempt to file a notice of appeal and to get Bayer’s consent in June of 2021. IV. CONCLUSION [ 26 ] Taking all of these considerations into account, I have concluded that it is just and equitable to grant Ms. MacInnis’s application to extend the time to serve and file the notice of appeal. Justice Ottenbreit found that the appeal was arguable, and I am not satisfied Bayer has suffered any material prejudice.

The ability of potential class members to advance their claims through a class action – a procedure designed to better enable potential class members to attempt to vindicate exactly this sort of claim – will be lost. The ability of some class members to pursue their claim in any fashion may be at an end.

In the result, it is only the complete lack of any reasonable explanation and the length of the delay that weigh against granting the application, and that is not sufficient to tip the balance in these circumstances. [ 27 ] The time within which the notice of appeal may be served and filed is extended to December 14, 2021, provided that the prospective appellant fully perfects the appeal on or before that date by filing her factum and appeal book. [ 28 ] The respondents shall have cost in the amount of $5,000, payable forthwith. “Barrington-Foote J.A.” Barrington-Foote J.A.