Natasha Lombardi

The Plaintiffs sought costs after successfully certifying a class action and dismissing a stay motion.

The court awarded the Plaintiffs $700,000 in all-inclusive costs, comprising $366,149.88 in disbursements and $333,850.12 in fees.

The court emphasized the discretionary nature of costs, the importance of certification motions in class actions, and the need for unsuccessful parties to provide their own bills of costs for comparison.

A portion of the costs ($30,000) was specifically allocated to two defendants (Bristol-Myers and Otsuka) for the stay motion, which the third defendant (Lundbeck) did not participate in.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

The plaintiff brought a motion seeking an order for her examination for discovery by video conference from Lithuania, leave to examine the defendant before trial due to his advanced age, and assignment of the proceeding to case management.

The court granted all three requests, finding it just given the plaintiff's intention to return to Lithuania, the defendant's age, and the serious nature of the allegations.

However, despite the plaintiff's success on the substantive relief, the court awarded $1,000 in costs to the defendant, payable by the plaintiff, citing the plaintiff's insufficient efforts to resolve matters prior to and after bringing the motion.

The plaintiff sought costs for the defendant's abandoned motion for security for costs.

The court, applying Rule 37.09(3) of the Rules of Civil Procedure, found the plaintiff entitled to costs.

Considering the circumstances, including the delivery of motion records and preparation for cross-examinations but absence of facta or actual cross-examinations, the court fixed the all-inclusive costs at $10,000, rejecting both the plaintiff's higher claim of $21,847.65 and the defendant's lower offer of $4,500.

The decision emphasized that costs awards should reflect a fair and reasonable amount rather than an exact measure of actual costs.