The plaintiffs were the cargo interests in respect of goods carried on the CMA CGM Florida when that vessel was involved in a collision at sea. They sought to recover for the damage caused to the cargoes as a result of the collision and to be indemnified for any general average or salvage contributions they might be required to make. All of the cargoes were loaded in China or Thailand, and were destined to be unloaded and delivered in various locations in the United States. The defendants were freight forwarders or carriers, as well as the owners of the vessel itself. Other than the plaintiffs' allegation that all the defendants 'carry on business in Canada', there was nothing to connect the claim to Canada. The majority of the defendants made motions to stay proceedings on the basis of forum non conveniens.

The moving defendant, Topocean Consolidation Service Inc (Topocean), also moved for a declaration that service of the statement of claim was not validly made upon it. The plaintiffs opposed Topocean’s motion, but also brought a cross-motion to extend the time for serving the statement of claim, or to authorise substitutional service on Topocean's attorneys in Canada.

Held: Service was validly made on Topocean, and therefore the plaintiffs' cross-motion is dismissed as moot.

The plaintiffs directed a process server to serve Topocean at 'c/o Manitoulin Global Forwarding' in Mississauga, Ontario. Service was accepted on 9 April 2014. Topocean's evidence is that it does use the services of Manitoulin 'as agent' for some of its shipments that depart from or arrive in Canada, but that Manitoulin was not involved in any capacity in relation to the cargo on board the CMA CGM Florida, or in relation to any services ever rendered by Topocean to the plaintiffs or to the receivers of the cargo. According to Topocean, it only became aware of the Canadian proceedings some 5 months later, upon which it promptly brought the present motion to contest service.

By its own admission, Topocean does use Manitoulin as its agent for shipments that have a Canadian connection, that is, that depart or arrive in Canada. It is undisputed that Topocean's business is to organise and carry shipments worldwide. As such, it is clear that Manitoulin carries on in Canada some integral part of the business Topocean professes to do. The fact that it did not act in this capacity for the shipment giving rise to the action does not detract from the fact that Topocean otherwise carries on business in Canada through Manitoulin. On the facts of this case, Manitoulin also clearly considered that part of its duties to Topocean would be to bring to Topocean’s attention notice of the service effected on it: Its manager promptly forwarded the statement of claim to Topocean by messenger. Again, it does not matter that the package in this instance apparently went astray; what is relevant is that Manitoulin considered it its duty as agent to forward it.

Service of the statement of claim was thus validly effected on Topocean by service at Manitoulin’s premises. Given the Court's conclusion that service was validly effected at Manitoulin’s premises, there is no need to consider the plaintiffs' cross-motion to extend the time for service or to authorize substitutional service on Topocean’s Canadian solicitors.

However, the Court would have extended the time for service of the statement of claim so that the plaintiffs could effect service of the statement of claim in accordance with Federal Court Rules and the Hague Convention on Service Abroad.

Although Topocean has sought a stay of proceedings in favour of another jurisdiction, Topocean does not contest that the plaintiffs have a reasonable cause of action against it. An extension of time would not cause prejudice to Topocean. Topocean makes much of the expiration of the one-year limitation period applicable to this claim, and argues that extending the time for service would cause it prejudice by reviving a claim that has been extinguished by limitation. However, pursuant to the United States Carriage of Goods by Sea Act (COGSA), which Topocean argues governs the bill of lading, the limitation is avoided if suit is brought within one year. Here, the statement of claim was issued, and thus suit was brought, within the limitation period. COGSA does not impose any delay for the service of suit, nor is a statement of claim automatically void if not served within the delays provided in the Rules. Thus, even if the service of the statement of claim was held to be invalid, it would not automatically have the effect of voiding the statement of claim or of invalidating its effect as interrupting the limitation, so as to entitle Topocean to the benefit of the limitation.

The jurisprudence cited by Topocean is not on point, as in all cases the statement of claim had been issued after the expiration of the limitation. The Court is aware of no case where service has been declared invalid, or where an extension of time to serve has been refused, on the basis of the expiration of a limitation period between the time the statement of claim had been issued and the time it was, or was intended to be, served.