Court File and Parties
CITATION: Batten v. Boehringer Ingelheim (Canada) Ltd., 2016 ONSC 739
COURT FILE NO.: CV-13-475701CP
DATE: 20160128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALBERT C. BATTEN and THE ESTATE OF MARGARET JANE HAMILTON, on behalf of her Estate Representative Wendy Nelson, and WENDY NELSON, personally
Plaintiffs
– and –
BOEHRINGER INGELHEIM (CANADA) LTD., BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., BOEHRINGER INGELHEIM PHARMA GMBH & CO. KG, and BOEHRINGER INGELHEIM INTERNATIONAL GMBH
Defendants
COUNSEL:
Idan Erez for the Plaintiffs
Scott Maidment for the Defendants
HEARD: In writing
Proceeding under the Class Proceedings Act, 1992
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiffs, Albert C. Batten, the Estate of Margaret Jane Hamilton, and Wendy Nelson in her personal capacity and as estate representative of the late Mrs. Hamilton, bring a proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6 against Boehringer Ingelheim (Canada) Ltd., Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Pharma GMBH & Co. KG and Boehringer Ingelheim International GMBH (collectively “Boehringer”).
[2] In the run-up to the certification motion, Boehringer brought a motion for the production of the medical records of Mr. Batten and of the late Mrs. Hamilton. The Plaintiffs, who produced some redacted medical records, refused to produce any more medical information for the certification motion. I granted Boehringer’s motion; see Batten v. Boehringer Ingelheim (Canada) Ltd., 2015 ONSC 7821.
[3] Boehringer, the successful party on the motion, seeks partial indemnity costs of $20,300.66, all inclusive payable by the Plaintiffs in any event of the cause.
[4] The Plaintiffs submit that there should be no order as to costs. In the alternative, they submit that the appropriate award would be costs of $9,000, all inclusive, payable to Boehringer in any event of the cause.
[5] The Plaintiffs submit that there should be no award of costs because: (1) Boehringer’s documentary request was too broad and was only narrowed at the argument of the hearing; (2) the Plaintiffs were guided by the existing jurisprudence that they submit circumscribe a defendant’s request for medical information in a class action; (3) the Plaintiffs had attempted to avoid the motion by providing some medical records; and (4) the Plaintiffs were justified in resisting the motion because such motions just encourage the delaying tactics of defendants in class proceedings and the defendant’s efforts to bring the merits of the case into the resolution of the certification motion, which is a procedural not a substantive determination.
[6] I disagree with these submissions. Boehringer’s request was a proper and appropriate request for the production of medical documents in the context of this particular class action and I regard my decision as no departure from the existing jurisprudence.
[7] Since I disagree with the Plaintiffs’ submissions, I award Boehringer $17,500, all inclusive, payable in any event of the cause.
[8] I have reduced the quantum because I regard it as beyond the reasonable expectations of the unsuccessful party on a motion of this sort in the context of a class action with a $125 million claim.
[9] Order accordingly.
Perell, J.
Released: January 28, 2016
CITATION: Batten v. Boehringer Ingelheim (Canada) Ltd., 2016 ONSC 739
COURT FILE NO.: CV-13-475701CP
DATE: 20160128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALBERT C. BATTEN and THE ESTATE OF MARGARET JANE HAMILTON, on behalf of her Estate Representative Wendy Nelson, and WENDY NELSON, personally
Plaintiffs
– and –
BOEHRINGER INGELHEIM (CANADA) LTD., BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., BOEHRINGER INGELHEIM PHARMA GMBH & CO KG, and BOEHRINGER INGELHEIM INTERNATIONAL GMBH
Defendants
REASONS FOR DECISION – COSTS
PERELL J.
Released: January 28, 2016