SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Glycobiosciences inc. v. DPT Laboratories Ltd. and Mylan Laboratories Inc.
BEFORE: EMERY J.
COUNSEL: Kevin Drizen, for the Plaintiff
Laura K. Fric, Robert Carson and Lauren Harper, for the Defendants
HEARD: In writing
ENDORSEMENT ON COSTS
[1] The Defendants DPT Laboratories Ltd and Mylan Inc. have filed written submissions for the costs they claim as the successful parties on their motion to stay this action in Ontario. In those written submissions, the Defendants seek costs in the amount of $35,000 all-inclusive.
[2] The Plaintiff, Glycobiosciences Inc., opposes that claim. In its written submissions, the Plaintiff argues that the amount the Defendants are seeking is excessive, having regard to:
a) The number of hours that Mr. Carson and Ms. Harper have incurred on the file with respect to the motion; and
b) The extra time claimed by the Defendants for having to respond to supplementary materials Glycobiosciences Inc. served in the course of the motion.
[3] In making a costs award, the Court must decide which party is entitled to the costs of the motion or other step in a proceeding, the scale of those costs, and the amount that would be fair and reasonable for the unsuccessful party to pay. The Court has the discretion to award costs under section 131(1) of the Courts of Justice Act, subject to any rules of court. In this case, Rule 57.01 contains the factors for the court to consider when making a decision on costs.
[4] It is the custom of the court that costs should follow the event. This means that the successful party is in most cases entitled to costs for the step or the proceeding in which success has been achieved by one of the parties. This custom was recognized in Bell Canada v. Olympia & York Developments Ltd. 1994 239 (ON CA), [1994] O.J. 343 (Ont. C.A.). In Bell Canada, the court held that it is reasonable for the successful party in an action to have an expectation to be awarded costs, absent special circumstances.
[5] It would be appear from Mr. Drizen’s written submissions he has filed on behalf of Gylcobiosciences Inc. that he does not contest the entitlement of the Defendants to costs, or to advance an argument that special circumstances exist to provide an exception to the general rule. I therefore find that the Defendants are entitled to their costs of the motion.
[6] I did not discern from reading the written submissions of the Defendants that they seek costs on anything other than a partial indemnity basis. For a party on motion or in an action to seek costs that are “elevated”, or greater than costs on a partial indemnity scale, the party claiming those costs must show that the conduct of the party against whom the claim for costs is made has acted in a manner recognized by the court to provide the legal basis for claiming costs at that higher level.
[7] Substantial indemnity or full recovery costs are generally not awarded unless the party seeking costs can persuade the court that the party against whom costs are sought has behaved in a reprehensible or egregious manner, or in such other manner deserving chastisement by the court. The court must consider these factors as the threshold for awarding costs at a higher level: Mortimer v. Cameron, 1993 568 (Ont. C.A.), reviewed with approval by the Court of Appeal in Davies v. Clarington (Municipality of), 2009 ONCA 722.
[8] I do not find the conduct of any officer or director behind Glycobiosciences Inc. responsible for egregious or reprehensible conduct on this motion to justify a request for costs at a level other than on a partial indemnity scale.
[9] I turn next to the amount to award the Defendants for the costs they seek. In this respect, I have considered all relevant factors under rule 57.01(1). I have also considered the submissions made by the Defendants that referred to the costs ordered by Justice McSweeney when sitting on a similar motion in Glycobiosciences Inc. v. Ansell Healthcare Products Inc., court file number 132-17 (Orangeville). In that decision, Justice McSweeney awarded $22,000 in costs to those Defendants who successfully brought a motion to stay that action. I have been informed Justice McSweeney’s order was appealed, and that those costs were settled in the course of resolving the overarching action at a later date before the appeal was heard.
[10] Glycobiosciences Inc. argues that I should not follow the precedent established by the costs award in Ansell because the motion heard by Justice McSweeney was more complex. I am told that the costs in Ansell also involved a claim for cross-examinations conducted on affidavits prior to and for the purpose of the motion.
[11] While I am prepared to accept those submissions, I find that Justice McSweeney made that costs order in December 2017, several months before Glycobiosceinces Inc. commenced this action. The costs order in Ansell therefore serves as a basis to conclude that Glycobiosciences Inc. could reasonably expect to pay a costs award in the neighbourhood of $20,000 if a similar motion were brought by DPT Laboratories Ltd. or Mylan Inc. in this action and achieved success.
[12] I am directed by our Court of Appeal to ensure that the amount I award for costs is fair and reasonable for the unsuccessful party to pay: Boucher v. Public Accountants Council of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A). Even though assessing costs is not a mechanical exercise the begins or ends with the calculation of hours and hourly rates, the rates actually charged and fees billed to the successful litigant are relevant considerations: Stellarbridge Management Inc. v. Magna International Inc. 2004 9852 (ON CA), [2004], 71 O.R. (3rd) 263 (Ont. C.A.). Having regard to those factors under rule 57.01(1), and recognizing that the parties on this motion did not conduct cross-examinations, I award the Defendants DPT Laboratories Ltd. and Mylan Inc. costs in the combined amount of $17,500 all-inclusive, which I consider to be a fair and reasonable amount for the Plaintiff to pay.
Emery J.
DATE: March 25, 2019
COURT FILE NO.: 30/18
DATE: 2019 03 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Glycobiosciences inc. v. DPT Laboratories Ltd. and Mylan Laboratories Inc.
BEFORE: EMERY J.
COUNSEL: Kevin Drizen, for the Plaintiff
Laura K. Fric, Robert Carson and Lauren Harper, for the Defendants
ENDORSEMENT ON COSTS
EMERY J.
DATE: March 25, 2019