Harrington v. Dow Corning Corporation et al.

2007 BCSC 244 Harrington v. Dow Corning Corporation et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Harrington v. Dow Corning Corporation et al., 2007 BCSC 244 Date: 20070223 Docket: C954330 Registry: Vancouver Between: Helen Harrington, as a Representative Plaintiff Plaintiffs And Dow Corning Corporation, Dow Corning Canada, Inc. The Dow Chemical Company, Dow Corning-Wright Corporation, McGhan Medical Corporation, McGhan Nusil Corporation, Minnesota Mining & Manufacturing Company (3M), Inamed Corporation, Union Carbide Chemicals and Plastics Company Inc., Union Carbide Corporation Baxter International Inc., Baxter Healthcare Corporation, Mentor Corporation, Bristol-Myers Squibb Company, Medical Engineering Corporation, and The Cooper Companies, Inc. Defendants Before: The Honourable Mr. Justice E. R. A. Edwards Reasons for Judgment Counsel for the appellants, Alexandra (Barbara) Law and Yvette Goguen: M. J. Peerless (of the Ontario Bar) Class Counsel: M. R. Steven Written submission filed: November 29, 2006 Vancouver, B.C. [1] These reasons pertain to a motion by Alexandra (Barbara) Law and Yvette Goguen for an order allowing the filing of their late claims under the Dow Corning/British Columbia and Other Provinces Breast Implant Litigation Settlement (the "2005 Settlement") approved by the court on August 5, 2005. The Claims Administrator rejected both claims on the basis that the applicants' Opt-In forms were filed after

the December 2, 2005 deadline imposed by the 2005 Settlement. [2] Ms. Law's Opt-In form was signed on January 16, 2006. Ms. Goguen's Opt-In form was signed on January 5, 2006. Both claimants filed their claim forms and supporting documentation prior to the February 1, 2006 deadline for those documents. Counsel for the applicants submit that neither claimant has any other option than to pursue her claim under the Settlement, and denying their claims would make it impossible for them to receive compensation for the injuries they have suffered. [3] According to a representative of Siskinds LLP, solicitors for the applicants, the claimants were living outside of the area to which the deadlines were advertised, and the firm was not notified of the deadlines despite having a number of clients who were eligible to participate in the 2005 Settlement. The firm found out about the 2005 Settlement and related deadlines by coincidence while researching another matter, on or about November 2, 2005, which left them only a short time to double-check their filing system for clients who were eligible to participate in the 2005 Settlement. [4] In support of their appeal, the applicants brought to my attention orders from two Ontario cases: in Linda Jones and Sylvia Furneaux and American Heyer-Schulte Corporation, Baxter Healthcare Corporation and Baxter International Inc., Winkler J. allowed

four claimants' appeals after their Product Identification Documentation had been rejected as out of time. In Smith et al v. Corporation of the Municipality of Brockton et al, Winkler J. allowed the appeals of several claimants, some of whom filed claims as late as 2 years after the claims deadline. [5] In Harrington v. Dow Corning Corp., 2001 BCSC 221, 15 women had missed the opt-in deadline and sought an extension. At para. 22 I wrote: If the deadline is not relaxed or removed there will be a number of claims which will necessarily go without any remedy under the B.C. Settlement or elsewhere. Balancing that against the potential prejudice to those who filed on time, I have concluded that the interests of justice dictate that the deadline should be relaxed or removed so that no one who may have a valid claim is rejected only because they missed the deadline. At para. 25 I concluded: I am not persuaded any of the lack of explanation for not filing on time or other possible shortcomings in forms tendered by the applicants need be considered on this application. The only issue is whether forms should be summarily rejected only because they were not filed by the deadline. I have concluded they should not be rejected on that basis alone, since that is too great a potential hardship for persons who may have a valid claim. [6] I note that leave to appeal this decision was granted

(2001 BCCA 534), but it does not appear that the appeal was ever pursued. [7] Considering that only the Opt-In forms were late in this case and the claims and supporting documentation were received on time, and considering the fact that the applicants will be left with no other avenue to pursue compensation for their injuries if this application is denied, I conclude that the filing of their late claims should be allowed and I so order. "E.R.A. Edwards, J." The Honourable Mr. Justice E.R.A. Edwards