SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-08-00355689
DATE: 20151103

RE: ORTHOARM INCORPORATED, Plaintiff

AND:

GAC INTERNATIONAL, LLC, Defendant

BEFORE: Justice W. Matheson

COUNSEL:
Andrea Sanche, for the Plaintiff

J. Alan Aucoin, for the Defendant

HEARD: By case conference.

COSTS Endorsement

[1] This is supplementary to my costs endorsement released October 23, 2015. In connection with its costs submissions, OrthoArm asked that the fixing of costs, or any order to pay costs, be delayed pending the outcome of the GAC action. There is no motion for a stay of proceedings before me. Although a stay was mentioned in OrthoArm’s written submissions, its counsel has now clarified that this is not a request for a stay of proceedings.

[2] The request is therefore based on other submissions made by OrthoArm, to the effect that there may be the prospect of set-off if OrthoArm is successful in the GAC action, also described in its submissions as the prospect for divided success.

[3] The GAC action is still at an early stage. Discovery has not yet been completed. It is still a matter of years before the action would go to trial. It was not consolidated with this action. The motion to consolidate brought by GAC was opposed by OrthoArm, resulting in the order of Corbett J. referred to in my trial decision. Further, while it is a related action, it does not purport to re-litigate the claimed breach of licence agreement that was determined against OrthoArm in this action.

[4] Essentially, OrthoArm is submitting that in other litigation with the same defendant it could prevail at some point in the future and it should therefore be able to delay payment of its costs in this action against that possibility. I am not prepared to take this approach. The possibility of future set-off, even in related litigation, is insufficient to justify such a lengthy delay in the payment of costs. It is not clear that it is open to me, in ordering costs, to delay the obligation to pay costs for a matter of years. For that lengthy a delay, a motion for a stay of proceedings seems more appropriate. However, even if it is within the proper exercise of my discretion, I am not prepared to exercise my discretion to make that order in the circumstances of this case.

Justice W. Matheson

Released: November 3, 2015