Dine v. Biomet, 2015 ONSC 3428

COURT FILE NO.: CV-13-490112-CP

DATE: 20150528

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steven Dalton Dine, Plaintiff / Responding Party

AND:

Biomet Inc., Biomet Orthopedics LLC, Biomet Manufacturing Corp., Biomet US Reconstruction LLC and Biomet Canada Inc., Defendants / Moving Parties

BEFORE: Justice Edward P. Belobaba

COUNSEL: Kent Thomson, Derek Ricci and Kristin Jeffery for the Defendants

Jonathan Ptak, Doug Lennox and Garth Myers for the Plaintiff

HEARD: March 20, 2015

Proceedings under the Class Proceedings Act, 1992

Costs award – Production motion

[1] In a decision released on April 15, 2015 I dismissed the bulk of the defendant’s motion for the production of additional medical records because the request was “too broad and not justified.”[^1] I agreed, however, that some additional information should be produced – namely, the identification of the Biomet products that were implanted during the plaintiff’s three hip surgeries - because this information was relevant to the section 5(1)(e) issue on the upcoming certification motion.[^2] In my view, the plaintiff was 90% successful on the production motion.

[2] The plaintiff asks for $15,000 all-inclusive on a partial indemnity basis. He notes that this is less than half of the $30,554 in fees that were actually billed (on a partial indemnity basis.) The disbursements were approximately $500.

[3] The defendant says the $15,000 costs request is excessive. It criticizes the amount of time that was docketed by the plaintiff’s two senior lawyers, two junior lawyers and articling student on what was a relatively straight-forward production motion. The defendant also notes that the in-court hearing lasted only one hour[^3] and points out that it would have asked for a modest $3480 in costs had it prevailed on the motion.[^4]

[4] The appropriate costs award, in my view, is somewhere in the middle. The $15,000 amount requested by the plaintiff, albeit a discounted amount, is still too much for a relatively routine production motion. And the $3480 amount suggested by the defendant is too little. In Brown v Jannsen,[^5] a comparable pre-certification medical records motion that I heard two months ago, I would have awarded $7800 in costs. I lowered this to $6800 to reflect the divided success. In my opinion, a costs award in the range of $7500 on the facts herein would be reasonable and appropriate.

[5] Adjusting (downward) for the fact that the plaintiff was 90 per cent successful on the motion and adjusting (upward) to acknowledge the defendant’s failure to accept a very reasonable offer regarding the additional production of the s. 5(1)(e) product label information, I find it fair and reasonable to fix costs at $7500 all-inclusive, payable forthwith by the defendant.

[6] Order to go accordingly.

Belobaba J.

Date: May 28, 2015

[^1]: Dine v Biomet, 2015 ONSC 1911, at para. 36.

[^2]: Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1)(e).

[^3]: It is time that counsel stopped using in-court hearing time as a measure of complexity. Many judges today, myself included, spend many hours before the hearing reviewing the motion material and reading and re-reading the written submissions and the case law. Even complicated motions commanding high cost awards can be “heard” in one or two hours given the court’s level of preparation beforehand. In-court hearing time is no longer a meaningful metric for cost submissions, at least not in my court.

[^4]: The actual fees billed to the client, even on a partial indemnity basis, were undoubtedly much higher.

[^5]: Brown v. Jannsen Inc., 2015 ONSC 1920.