Court File and Parties

Divisional Court File No.: 660-01 Court File No.: 00-CV-200045CP Date: 2003-11-07

Superior Court of Justice - Ontario Divisional Court

Re: Glen Ford, Vitapharm Canada Ltd., Fleming Feed Mill Ltd., Aliments Breton Inc., Roger Awad and Mary Helen Awad (Plaintiffs) And: F. Hoffman La-Roche Ltd., Hoffman-Laroche Limited/Limitée, Rhône-Poulenc S.A., Rhône-Poulenc Canada Inc., Rhône-Poulenc Animal Nutrition Inc., Rhône-Poulenc Inc., Basf Aktiengesellschaft, Basf Corporation, Basf Canada Inc., Eisai Co., Ltd., Takeda Chemical Industries, Ltd., Takeda Canada Vitamin and Food Inc., Merck Kgaa, Daiichi Pharmaceutical Company, Ltd., Reinhard Steinmetz, Dieter Suter, Hugo Strotmann, Andreas Hauri, Kuno Sommer and Roland Bronnimann (Defendants)

Before: MacFarland J.

Counsel: Wm. V. Sasso, for the Plaintiffs Kenneth R. Shugart, for James W. Curran W.P. Borden, Q.C., on his own behalf William E. Pepall, for the Intervenor David A. Seed

Endorsement As To Costs

[1] On August 13th 2003, I heard a series of motion related to an application pending before a full panel of the Divisional Court and scheduled to be heard on August 21, 2003. Those motions were disposed of on the basis reflected in the reasons delivered at the time.

[2] I have now received the submissions of counsel relating to the disposition of costs of those motions.

[3] For convenience’ sake, I group the motions into three categories. The first group is comprised of the motions that relate to Mr. Seed and his law firm, Muir, Seed & Short. There were three motions in this group as follows:

(a) Motion by Seed for leave to intervene as a party;

(b) motion to set aside the summons to witness served on Katherine Pitirri; and

(c) response to the motion (brought on behalf of Curran) to compel Muir to re-attend and respond to questions refused.

[4] Seed was successful on all three motions and should have his costs on all three. It was patently obvious in my view, that the basis for Curran’s motion to set aside had direct and serious consequences for Mr. Seed. He should have been named as a responding party to the application to set aside in which event he would not have been obliged to bring the intervenor motion.

[5] In his written submissions, Mr. Pepall seeks costs on a partial indemnity scale and should have them. I am satisfied there is no duplication as between the motions I heard and the substantive motion heard by the panel on the basis of the evidence filed by Mr. Pepall in reply to Curran’s submissions.

[6] I fix Mr. Pepall’s cost at $7500.00 for fee, plus disbursements of $252.50 and GST on those amounts for a total of $9840.05.

[7] The second category of monies includes the plaintiffs’ motion for the following relief:

(a) To set aside the Summons to Witness served on Harvey T. Strosberg;

(b) to set aside the Summons to Witness to David A. Seed;

(c) to set aside the Summons to Witness to Bell Canada re: records of Sutts, Strosberg LLP and Mr. Strosberg;

(d) directing the return of all Bell Canada records received by W.P. Borden and for James Curran to Sutts, Strosberg LLP;

(e) enjoining the use of any of the foregoing records except records of communications with Mr. Seed’s office; and

(f) directing Curran to post security for costs of $20,000 in relation to the substantive motion before the panel.

[8] The Plaintiffs were entirely successful on their motions and seek costs against Mr. Borden (Curran’s solicitor) on a substantial indemnity basis.

[9] I share the Plaintiffs’ view that most of Mr. Borden’s efforts on behalf of his client in relation to these matters were entirely misguided. His theories were without evidentiary foundation and were entirely speculative.

[10] As the result of the Plaintiffs’ costs request, Mr. Curran had to retain independent counsel to represent him. Mr. Shugart on behalf of Curran also asks that any costs award in relation to the motions I heard, should be paid by Mr. Borden and not Mr. Curran. He points out in essence, that this was a hopeless case from the outset—one which no reasonable solicitor would have advised Curran to pursue. He further suggests that the volume and nature of the materials submitted by Mr. Borden make it clear that Mr. Borden was motivated more by his personal views of the litigation and his discordant relationship with the plaintiffs’ solicitor.

[11] I agree that Mr. Borden’s efforts were misguided in the extreme. Further, it is apparent that there has been considerable hostility, unfortunately, between Mr. Borden and Mr. Strosberg which has no doubt flavoured the litigation. Borden acknowledges in his materials that all of Curran’s instructions were based on opinions and advice given him by Borden.

[12] These submissions, however, came to me in submissions of counsel and not by way of evidence. I cannot, on the basis of the materials I have, separate Mr. Curran from Mr. Borden. In the circumstances, at this stage in any event, the costs ordered by me are the responsibility of Mr. Curran. In my view, in short, I do not have before me the materials necessary to make the type of order counsel for the plaintiffs and for Mr. Curran seek.

[13] Further, in my view, there is not here the type of conduct that would merit an award of costs on other than a partial indemnity basis with one exception. I consider Mr. Borden’s conduct in obtaining the Bell Canada records of Mr. Strosberg and his firm to have been improper in the extreme.

[14] The third category of motions includes only the cross-motion brought by Curran to compel Mr. Strosberg’s examination, which motion was dismissed.

[15] I have reviewed the extensive materials filed by the Plaintiffs’ firm and Mr. Sasso’s submissions. I am satisfied with the counsel’s effort to segregate the time spent in relation to the motions I heard from the time spent in relation to the substantive motion heard by the panel.

[16] The materials before me were voluminous. It was necessary to review not only the records filed in relation to these motions but Mr. Borden required the court to have for reference materials from earlier proceedings which were also voluminous. Counsel were required to spend a great deal of time in respect of these motions.

[17] I have already fixed Mr. Pepall’s costs at $7500.00. Mr. Sasso seeks fees of just under $22,000.00 on a partial indemnity scale. Clearly, Mr. Sasso had more to do in relation to the motions than did Mr. Pepall and my costs award must reflect that.

[18] I fix the plaintiffs’ fees for all costs of these motions on a partial indemnity scale in the sum of $17,500.00. In addition, the Plaintiffs are entitled to the disbursements claimed at $1,637.91 and necessary GST on both fees and disbursements.

MacFarland, J.

DATE: November 7, 2003