Marchand v. Covidien et al., (2015) 313 Man.R.(2d) 312 (QBM)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 03, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 313 Man.R.(2d) 312 (QBM);2015 MBQB 22

Marchand v. Covidien (2015), 313 Man.R.(2d) 312 (QBM)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.036

Joanne Marchand (plaintiff) v. Covidien and Tyco Healthcare Group Canada ULC (defendants)

(CI 12-01-79747; 2015 MBQB 22)

Indexed As: Marchand v. Covidien et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Berthaudin, Master

February 3, 2015.

Summary:

The defendants moved for summary judgment to dismiss the plaintiff's action as statute-barred.

A Master of the Manitoba Court of Queen's Bench granted the motion. The action was dismissed.

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - The plaintiff was implanted with a device marketed by the defendants on November 17, 2004 - She experienced difficulty with it - The defendants' customer service representative responded to the plaintiff's inquiries about problems with the device by providing links to websites with information directly and through a follow up email - The plaintiff's first action against the defendants was dismissed by consent - On June 27, 2011, the plaintiff saw a television ad from a law firm in the U.S. regarding the device - The law firm provided her with information regarding injuries in the U.S. - The plaintiff commenced the within action in September 2012 - The defendants moved for summary judgment to dismiss the action as statute-barred - The plaintiff relied on s. 5 of the Limitation of Action Act to assert that her cause of action did not arise until June 27, 2011, due to the defendants' concealment by fraud - A Master of the Manitoba Court of Queen's Bench granted the defendants' motion - The plaintiff had not established that the defendants concealed information about the device, whether fraudulently or otherwise, such that s. 5 was engaged - Rather, the defendants attempted to provide helpful direction to the plaintiff - The plaintiff had not established a genuine issue for trial.

Limitation of Actions - Topic 9428

Bars - Disallowance of defence - Considerations - Concealment - [See Limitation of Actions - Topic 9324 ].

Cases Noticed:

Winnipeg Condominium Corp. No. 266 v. 3333 Silver Developments Ltd. et al. (2000), 155 Man.R.(2d) 164; 2000 MBQB 233, refd to. [para. 9].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 11].

Penner Estate v. Isaak (2002), 165 Man.R.(2d) 237; 2002 MBQB 200, refd to. [para. 14].

Friesen v. Isaak - see Penner Estate v. Isaak.

Statutes Noticed:

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 5 [para. 7].

Counsel:

Richard Beamish, for the plaintiff;

Maria L. Grande, for the defendants.

This motion was heard by Berthaudin, Master, of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 3, 2015.