Court File and Parties

COURT FILE NO.: 933/15 (Milton) DATE: 20160926 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HEATHER ANN CRIDER and ADRIAN WILSON Plaintiffs – and – DR. CAN D. NGUYEN, TRILLIUM HEALTH PARTNERS, carrying on business as CREDIT VALLEY HEALTH HOSPITAL, ZIMMER GMBH, ZIMMER, INC. and ZIMMER OF CANADA LIMITED Defendants

Counsel: Gordon A. Marsden for the Plaintiffs Peter J. Pliszka and Zohaib I. Maladwala for the Defendants Zimmer GmbH, Zimmer, Inc. and Zimmer of Canada Limited

HEARD: In writing (at Toronto)

PERELL, J.

Reasons for Decision - Costs

[1] In this action, the Plaintiffs Heather Ann Crider and Adrian Wilson, sue Zimmer GmbH, Zimmer, Inc. and Zimmer of Canada Limited (collectively “Zimmer”), the manufacturers of a hip implant device, known as the “Durom Cup” and also Dr. Can D. Nguyen, and Trillium Health Partners, which is a hospital (“Credit Valley Health Hospital”).

[2] In the unusual circumstances described in Crider v. Nguyen, 2016 ONSC 4400, there was uncertainty about whether Ms. Crider and Mr. Wilson were Class Members of overlapping medical products liability class actions in British Columbia and Ontario brought against Zimmer. The Plaintiffs were apparently Class Members of the Ontario action known as McSherry v. Zimmer, but Ms. Crider might also have been a Class Member in the British Columbia action known as Jones v. Zimmer in which she had opted-in and then opted-out.

[3] Zimmer moved for an order staying the Plaintiffs’ action, but I dismissed the motion.

[4] The successful parties on the stay motion, Ms. Crider and Mr. Wilson, seek costs on a partial indemnity basis of $10,826.50, all inclusive of disbursements and taxes.

[5] Zimmer submits that given the genuine novelty of the factual circumstances and the absence of any case law to decide the case, this is an appropriate case to make no order as to costs.

[6] In the alternative, Zimmer submits that costs should be payable in the cause since the substantive legal issues between the parties remain to be determined at trial. Further, Zimmer submits that if costs are awarded in the cause and if the court is inclined to fix the amount of costs at this time, then the amount awarded should be lower than the amount claimed by Ms. Crider and Mr. Wilson.

[7] I agree, in part, and disagree, in part, with the submissions of Zimmer, and, in my opinion, the appropriate order to make in the novel circumstances of this case is to order costs to the Plaintiffs in the amount of $10,826.50 in any event of the cause.

[8] In other words, given the novelty of the circumstances and the uncertainty in the law, I agree that the costs should be in the cause and the payment of costs should await the outcome of the action on the merits. I disagree, however, with Zimmer in that I would not reduce the amount claimed ($10,826.50), which is fair and reasonable, and I would specify that the costs are to Ms. Crider and Mr. Wilson in the cause and not costs in the cause generally.

[9] Thus, the Plaintiffs will get their costs of $10,826.50 if they are successful on the merits or a set-off in costs if they fail on the merits.

[10] Having settled the class actions in British Columbia and Ontario, it was reasonable for Zimmer to attempt to stay the Plaintiff’s action, but it failed in this attempt and the costs order of $10,826.50 to the Plaintiffs in any event of the cause recognizes the Plaintiffs’ success on what, for both parties, was a novel motion that was hard fought and important to them. However, the merits of the Plaintiffs’ products liability claim remains to be determined.

[11] Order accordingly.

Perell, J. Released: September 26, 2016