Court File and Parties

CITATION: Brown v. Janssen Inc., 2015 ONSC 1920

COURT FILE NO.: 06-CV-321585CP

DATE: 20150325

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NICHOLAS BROWN, MANJIT GAINDA, SABJIT GAINDA, SANDEEP SINGH GAINDA, PAMINDER KAUR GAINDA, KULDEEP CHANDAN GAINDA, and JOANNE VAUTIER, Plaintiffs / Responding Parties

AND:

JANSSEN INC., JANSSEN PHARMACEUTICALS, INC., JANSSEN ORTHO LLC, JOHNSON & JOHNSON and JOHNSON & JOHNSON INC. Defendants / Moving Parties

BEFORE: Justice Edward P. Belobaba

COUNSEL: Gordon McKee and Max Shapiro for the Defendants / Moving Parties

Bryan McPhadden and Idan Erez for the Plaintiffs / Responding Parties

HEARD: February 27, 2015

Proceedings under the Class Proceedings Act, 1992

Endorsement

costs award

[1] In a decision released on March 10, 2015 I confirmed the plaintiff’s offer to produce certain categories of medical records pre-certification and I dismissed the defendant’s motion for additional productions.[^1] However, as noted in my decision, I did so “without prejudice to the defendant’s right to pursue these records again on cross-examination.”[^2]

[2] The parties have now forwarded their costs submission. The plaintiff asks for $13,368 on a partial indemnity basis, inclusive of disbursements and taxes. The defendant submits that costs should be in the cause of the class certification motion, and if not, that the costs award should be no more than $3500.

[3] This is not a case for costs in the cause. The plaintiff has prevailed on a large part of the motion and is entitled to a costs award on a partial indemnity basis. The question is quantum.

[4] Before turning to the core of the dispute between the parties, i.e. how successful was the plaintiff and how much should be awarded in costs, I must first confirm that the plaintiff’s costs request complies with the “Grid” as set out in the Rules Committee’s Information for the Profession. It does not. The hourly rates charged by Messrs. McPhadden and Erez must be reduced to $350 and $185 respectively in order to come within with the Grid. I also agree with the defendant that the disbursements claim is too aggressive: the courier and “attempting to file” costs are not Tariff-based; and the $974 claim for photo-copying is probably twice what it should be given the permissible page charge and the volume of the record.

[5] Assuming that the plaintiff was entirely successful, the most that he would be entitled to, on a partial indemnity basis, is about $7800, excluding taxes - that is, $7359 for fees and $450 for disbursements.

[6] On the facts herein, however, I cannot find that the plaintiff was entirely successful. It is true that he had to respond to an overly-broad “all records” motion that was only narrowed at the hearing. But it is also true that the plaintiff refused to deliver even the records that he offered to produce until the day before the motion and only agreed to add a fourth category, namely records of any discussions about “risks and warnings,” during the course of the hearing after being encouraged to do so by the court.

[7] In short, although I find that the plaintiff was largely successful on this motion, he was not entirely successful. I therefore find it fair and reasonable to further reduce the revised costs total of approximately $7800, excluding taxes, to a final award of $6800 including taxes.

[8] Costs are therefore fixed in the amount of $6800 all-inclusive, payable by the defendant to the plaintiff within 30 days. Order to go accordingly.

Belobaba J.

Date: March 25, 2015

[^1]: Brown v Janssen Inc., 2015 ONSC 1434. [^2]: Ibid., at para. 15.