COURT FILE NO.: CV-09-390846-00CP
DATE: 20190128
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARIA MICEVIC, Plaintiff
– AND –
JOHNSON & JOHNSON, ORTHO-McNEIL-JANSSEN PHARMACEUTICALS INC., JOHNSON & JOHNSON INC., JANSSEN-ORTHO INC., COLBAR LIFESCIENCE LTD., and CANDERM PHARMA INC., Defendants
BEFORE: E.M. Morgan J.
COUNSEL: Brian McPhadden, for the Plaintiff
Eric Stanger, for the Plaintiffs (British Columbia)
Nicole Henderson, for the Defendants, Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals Inc., Johnson & Johnson Inc., Janssen-Ortho Inc., and Colbar Lifescience Ltd.
Robin Reinertson, for the Johnson & Johnson defendants (British Columbia)
Mirilyn Sharp, for Canderm Pharma Inc.
Barbara Chute, on her own behalf
HEARD: January 23, 2019
SETTLEMENT APPROVAL
I. A modest proposal
[1] This motion is brought by the Plaintiff under s. 29(2) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”) for approval of a proposed settlement between the Plaintiff and the Defendants, Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals Inc., Johnson & Johnson Inc., Janssen-Ortho Inc., Colbar Lifescience Ltd. (“J&J”). Only the Defendant, Canderm Pharma Inc. (“Canderm”), is not a party to the proposal.
[2] Parallel actions were brought by Plaintiffs in Ontario and British Columbia. The action was certified in Ontario for the purpose of entering into the proposed settlement in my ruling of March 21, 2018: Micevic v Johnson & Johnson, 2018 ONSC 1925. The action was certified in British Columbia, also for the sole purpose of entering into the settlement at issue here, in a ruling by Voight J. of the British Columbia Supreme Court on May 6, 2016: Hoisington v Johnson & Johnson, 2016 BCSC 807. The gist of the claim in both jurisdictions is relatively straightforward, and was described succinctly in the judgment of Voight J. at para 6(4):
Both actions allege that a product known as Evolence, a cosmetic injectable filler, caused bumps or nodules when improperly injected into the lips of persons who used this product. The defendants, Johnson and Johnson Inc. and Jansen-Ortho Inc. (the "J&J Defendants") are alleged to have manufactured Evolence. The Canderm Defendants are alleged to have distributed the product, either alone or in conjunction with the J&J Defendants.
[3] Although the reaction to an Evolence injection can be permanent and severe, the adverse effects apparently only occur for a limited number of people and so the class is a small one. As a consequence, the proposed overall settlement amount is also relatively small. J&J will pay a total of $250,000, to be distributed in accordance with a Distribution Protocol that forms Schedule E to the Settlement Agreement dated as of January 8, 2015. Included in this amount are $87,500 in legal fees ($98,875.00 including tax) for class counsel in both jurisdictions, plus a number of other disbursements. In the result, there will be just under $110,000 to distribute to class members.
II. Is it fair and reasonable?
[4] Counsel for the Plaintiff and for J&J submit that the proposed settlement is fair and reasonable under the circumstances. Counsel for Canderm takes issue with certain discrete terms of the proposed settlement that affect her client but otherwise takes no position with respect to the fairness or reasonableness of the overall settlement. One class member, Barbara Chute of Montreal, Quebec, appeared at the settlement hearing to object to the settlement on the grounds that it is not fair or reasonable given the injuries suffered by her and potentially other class members.
[5] The record contains medical evidence of the effect of the product in issue. One affiant, Dr. Martin Braun, has published an article in a medical journal describing his clinical experience with Evolence and its effect on his patients, as follows:
In 2006, a novel, porcine-derived collagen filler (Evolence) was introduced to the Canadian aesthetic market. Evolence, unlike bovine-derived collagen, does not require skin testing and was marketed as an alternative to hyaluronic acid based fillers for augmentation of the lip and facial defects. The authors injected the lips of 20 female patients with the Evolence filler for the purposes of lip enhancement and/or augmentation. Sixteen of the 20 patients (80%) experienced multiple lip nodules despite firmly molding the product immediately after injection. Many of these nodules required further treatment. Some nodules regressed over many months, but some nodules were still quite visible in 6 patients over 1 year later.
M. Braun and S. Braun, “Nodule formation following lip augmentation using porcine collagen-derived filler” (2008), 7(6) Journal of Drugs in Dermatology 579-81.
[6] Another expert whose report is in the record, Dr. John Curry, observes that there were very specific injection instructions that accompanied the product, and that the prescribed technique had to be followed carefully. J&J stresses that it is the practitioner that injects Evolence that can cause the nodules to develop, not the product on its own. This debate over whether the fault is primarily with the product or with the way in which it is administered would likely form the central defense raised by J&J in the absence of a settlement.
[7] In any case, it is certain that some people experience an adverse reaction to Evolence. While a high percentage of patients may experience some adverse symptoms in the immediate aftermath of Evolence being injected, some significant portion of those patients find that the swelling and nodules dissipate over time. Accordingly, Voight J. pointed out at para 6(5) of his certification judgment that “the size of the proposed class is expected to be limited, possibly to no more than 50 individuals, and that the global amounts involved in the action are likely to be correspondingly modest.”
[8] It turns out that even this estimation was an understatement. Plaintiffs’ counsel has advised me that no more than 12 or 13 people have been in touch with class counsel or with the claims administrator in the time since the notice has gone out. Apparently, only one of these is in the group of 16 patients described by Dr. Braun as having experience an adverse reaction at his clinic. Since all of Dr. Braun’s patients had Evolence administered by the same person in the same way, one can discern that the incidence of continuing injury is relatively low in terms of a percentage of people who have used the product.
[9] Evidence in the record also makes it clear that of those that experience an adverse reaction to Evolence, some experience temporary superficial injuries while a small percentage of others experience permanent disfiguring injuries. Likewise, some individuals experience cosmetic damage only, while others experience economic loss and other more serious psychological harm.
[10] Ms. Chute, the objecting class member who made submissions at the hearing, is an example of perhaps the most severe impact of Evolence being administered as a lip filler. She suffered a long-lasting disfigurement of the lip and facial area around the lip, together with what she described as serious psychological trauma. Importantly, Ms. Chute also described the devastating loss of her modelling career and related work opportunities, along with the detrimental impact of this on her income earning ability. For her the modest proposal of a settlement is not quite Swift-like in absurdity, but it certainly misses the mark.
III. The CPA test for settlement approval
[11] Section 29(2) of the CPA requires court approval of a settlement of a class action. That approval can be granted by the court depending upon whether it determines the proposed settlement to be in the best interests of the class. Of course, the settlement does not have to measure up to a level of perfection. Courts have often pointed out that, “All settlements are the product of compromise and a process of give and take”: Dabbs v Sun Life Assurance Company of Canada, 1998 14855 (ON SC), [1998] OJ No 2811 (Gen Div), at para 30.
[12] In considering a settlement approval, I am obliged to examine the fairness and reasonableness of the proposal, with a view to determining whether it is in the best interests of the class having regard to the claims and defences and any objections raised to the settlement: Baxter v Canada (Attorney General) (2006), 2006 41673 (ON SC), 83 OR (3d) 481, at para 10 (SCJ). In engaging in this analysis, the court is entitled to take into account:
(a) the likelihood of recovery or likelihood of success; (b) the amount and nature of discovery, evidence or investigation; (c) settlement terms and conditions; (d) recommendation and experience of counsel; (e) future expenses and likely duration of litigation and risk; (f) recommendation of neutral parties; (g) if any, the number of objectors and nature of objections; (h) the presence of good faith, arms-length bargaining and the absence of collusion; (i) the degree and nature of communications by counsel and the representative parties with Class Members during the litigation; and (i) information conveying to the court the dynamics of and the positions taken by the parties during the negotiation [citations omitted].
Lavier v MyTravel Canada Holidays Inc., 2011 ONSC 1222, at para 21.
[13] The settlement here was negotiated by experienced counsel on both sides working at arm’s length. Although the proposed settlement amount is very modest, counsel for J&J assures me that this is the maximum her client was willing to contribute to the settlement, and that in the absence of this proposed settlement J&J was fully prepared to fight the claim on the grounds of causation, standard of care, and other potential defences available to it.
[14] Likewise, Plaintiff’s counsel assures me that this was the most they could get from J&J under the circumstances. Foremost among those circumstances is the fact that the class turned out to be so small – as indicated, only 12 or 13 class members are currently known.
[15] Plaintiff’s counsel concedes that it is class counsel’s duty to fight as hard for 12 claimants as for 1,200. I am concerned, however, that the reality is that the economies of scale that often provide a motivational factor for a large class action were missing from a class of this size.
[16] By way of comparison, Plaintiff’s counsel offers the example of the settlement described in Logan v Dermatech, 2014 BCSC 2520, where class members appear to have incurred dermatological injuries comparable to those suffered in the present case. That settlement entailed an overall payment of $5,600,000 resulting in net payments of $26,000 for each of the 153 class members. As counsel for Canderm points out, however, the comparison is not particularly apt. In contrast to the Dermatech payout, J&J’s payment will net each of the class members here between $1,000 and $10,250, depending on the duration and nature of their injuries (with an extra $5,000 potentially available to a very few class members as discussed below).
[17] In the ordinary course, the court is “entitled to assume, in the absence of evidence to the contrary, that it is being presented with the best reasonably achievable settlement”: Wein v Rogers Cable Communications, [2011] OJ No 5572, at para 20 (SCJ). But the extremely modest size of the present settlement for an arguably damaging product made by a renowned and well-funded producer suggests that the shared settlement pie might have been more ample – not just in gross, but for the individual claimants – had the number of those sharing it been larger overall.
[18] The affidavit material suggests that the named Plaintiffs in British Columbia, where the case has been most actively pursued (it having been stayed in Ontario pending certification in B.C.), have lost their enthusiasm for the case and are anxious to put it to rest. They describe keeping abreast, through counsel, of the protracted legal and settlement negotiation process, and describe themselves ready to give up on their claims. One of the B.C. Plaintiffs indicates that she has “moved on with my life”, while the other states that the injuries suffered due to Evolence are, despite being permanently disfiguring, “something that I have learned to accept and live with on a day to day basis, and not to participate in a public trial of the case.”
[19] In assessing the fairness and reasonableness of the proposed settlement, I am obliged to take into account the entire class – including those who, perhaps unlike the representative Plaintiffs, have not accepted their losses and are looking to this claim to provide a legal remedy. In this respect, I was particularly interested in seeing how the arrangement would pan out for Ms. Chute. This is not because she was the sole objector, but because she presents a compelling case of a class member who stands at the high end of harm suffered. Ms. Chute had not had previous contact with Plaintiffs’ counsel but rather is a class member who observed the proceedings from afar. Her assessment of the fairness of the proposed settlement is unfiltered through anyone else’s eyes and reflects her perspective absent the advice of class counsel.
[20] Ms. Chute is of the view that she has suffered greater harm than reflected in the proposed settlement. Indeed, this is almost certainly the case. Separate from the physical and psychological harm caused by the facial deformities she has suffered, Ms. Chute also describes losing her livelihood as a model. She claims that she endured a serious drop in income after being injected with Evolence, and that the current settlement proposal, which caps compensation for lost income at $5,000, does not adequately address her losses.
[21] To reiterate, a settlement is inevitably the product of compromise; but that does not mean that it should simply strike a median level of payment for every class member such that it seriously undercompensates those whose damages are greatest. Moreover, even if the representative Plaintiffs have “learned to accept and live with” their losses and have lost their desire to pursue the case, the interests of all class members must be taken into account. Any settlement must be fair to the entire class, including those who suffered the most.
IV. Adjusting the distribution protocol
[22] The Distribution Protocol provides for three levels of compensation to be carved out of the overall settlement amount of $250,000. These three levels correspond with three degrees of physical injury: a) $1,000 for a temporary injury (30 to 180 days), b) $2,250 for a semi-permanent injury (between 181 and 1,095 days), and c) $10,250 for a permanent injury (more than 1,095 days). In addition, the Distribution Protocol calls for compensation for class members who suffered income loss, up to a maximum of $5,000 per claimant. Finally, in the event that the total amount of claims made is less than the overall amount available for settlement, the agreement calls for a Cy-près award requiring any money left over to “be distributed, subject to the Court’s discretion, to the Canadian Dermatology Foundation.”
[23] Ms. Chute is an example of a sub-class of claimants – perhaps a very small sub-class – that the proposed settlement agreement recognizes but appears to undercompensate. All three representative Plaintiffs in Ontario and B.C. have sworn that their injuries are permanent, but none of them has indicated that they suffered loss of income as a result. In the context of a product that results in bumps and nodules around the lips and mouth, income loss would likely flow from only certain types of occupations – Ms. Chute’s profession as a model being one of the more obvious examples.
[24] The function of a court under s. 29(2) of the CPA is to either approve or disprove a proposed settlement, but not to transform an agreed-upon settlement into a court-imposed resolution of the case. A judge at a settlement approval hearing can, of course, encourage the parties to continue to negotiate or to re-negotiate the terms of the settlement, but a settlement must ultimately be a product of consent among the settling parties. The Court of Appeal has stated on a number of occasions, including as recently as this past week, that it is “not permitted to modify unilaterally the terms of a negotiated settlement without the consent of the parties”: Welsh v Ontario, 2019 ONCA 41, at para 11.
[25] That said, it is possible for the court to adjust some of the details of a proposed settlement in a way that does not undermine the settlement overall. All counsel here concur, for example, that the Distribution Protocol is open to the court’s readjustment so long as the settlement amount and the general structure of the proposed settlement remain intact. In follow-up submissions, counsel for the Plaintiff has indicated that the parties agree that there is flexibility in the limit set for compensating those claimants who can show loss of income following treatment with Evolence.
[26] This is one area where, in my view, the proposed settlement is unfair to some class members. While there may be very few class members making an income loss claim, a ceiling of $5,000 for the loss of a promising profession or job opportunity is ungenerous to this subclass of claimants to the point of rendering the proposed settlement unreasonable. The fact that the limit on compensation for income loss can be adjusted upward goes a long way to making the settlement a more reasonable one from the class members’ perspective.
[27] To make the settlement fair and reasonable, I would require the maximum amount that can be awarded for an income loss claim to be raised to $20,000. While that may still leave some claimants undercompensated for loss of a career, it at least brings the income loss component into the realm of reasonableness; at the same time, this change still preserves the overall settlement distribution for the rest of the class. It may shrink the residual funds left over for the Cy-près award at the very end of the distribution, but, as indicated, that pool of funds was always to be limited by the size of the distributions to class members and in any case is discretionary on the court’s part.
V. Class counsel fees
[28] Turning to the issue of class counsel fees, in Lavier v MyTravel Canada Holidays Inc., 2011 ONSC 1222, at para 32, the court set out the principles on which fee approval should be based where the fee arrangement is part of an overall settlement: “…the court must decide whether the fee arrangements are fair and reasonable, and this means that counsel are entitled to a fair fee which may include a premium for the risk undertaken and the result achieved, but the fees must not bring about a settlement that is in the interests of the lawyers, but not in the best interests of the Class Members as a whole.” There is no one correct level of fees, but rather the fees must be seen to fall within a zone of reasonableness: Smith v National Money Mart, 2010 ONSC 1334, at para 19.
[29] The Court of Appeal has pointed out that the fee approval analysis is based on many of the same principles as the settlement approval analysis. Thus, the question is whether the fees sought by class counsel are in a range that advances the policy goals of the CPA overall. The most important of those goals, for these purposes, is the fostering of access to justice where any individual’s claim is too small to economically proceed on their own. As Goudge JA put it in Gagne v. Silcorp Ltd., 1998 1584:
Another fundamental objective is to provide enhanced access to justice to those with claims that would not otherwise be brought because to do so as individual proceedings would be prohibitively uneconomic or inefficient.
[30] Here, the class counsel fees to be paid out of the settlement funds are admittedly not large. Plaintiff’s counsel indicated to me at the hearing that the $98,875 (tax included) that the Ontario and B.C. law firms are sharing is a substantial reduction from the $500,000 worth of hours they have together docketed to this matter. But then, the settlement amount is itself not large.
[31] There may be good reason for the modesty of the settlement proposal in view of the difficulties of the case. Likewise, class counsel may have run into a brick wall in terms of what J&J was willing to pay for a settlement. On the other hand, class counsel may have found the limited number of class members to be less than inspiring. Likewise, taking a cue from the exhaustion expressed by the representative Plaintiffs, they may have simply lost the energy to fight. In any case, the individual class members would not be blamed for considering the result of the action to have been much ado about rather little.
[32] Under the circumstances it is reasonable for class counsel to have taken a discount on their fees. I am not certain as to how this discount was calculated, although it is inevitably a line-drawing exercise and an estimation of fairness rather than an exact science. In my view, class counsel fees should be reduced by another $20,000 (i.e. a reduction of $10,000 for each set of class counsel in Ontario and British Columbia, respectively). This will bring the total approved fees to $78,875, inclusive of tax.
[33] The reduction in counsel fees may result in an increase in funds available to distribute to the class members, but that remains to be seen. It is not possible to know at this stage precisely how many claimants will come forward or which category of loss each will claim. I do note that the Settlement Agreement itself calls for an element of judicial discretion in dispensing with any remaining funds after the specified distributions, and it will have to wait for that eventuality to determine what, if anything, there is to be done with any leftover settlement money.
VI. Stay of proceedings
[34] Canderm is the one non-settling Defendant. Accordingly, there will continue to be a claim as against it in both provinces where the action has been commenced. There was previously a stay order in place for the Ontario action dated May 10, 2011 pending the certification hearing in British Columbia, but that appears to have now expired. Canderm seeks either a stay or dismissal of the Ontario action as a way of dealing with the multiplicity of proceedings that it will otherwise confront.
[35] As I explained to counsel at the hearing, a dismissal of the Ontario action as against Canderm is not appropriate here. Canderm did not bring a motion for summary judgment, but rather, in the course of commenting on the settlement between the other parties, simply submitted that it would like to be free of the remaining claims. For summary judgment dismissing the action, however, I would require a proper evidentiary record from the moving party. The Plaintiff would then have an opportunity to file a responding record, the parties could cross-examine each other’s affiants, etc. Without the basic elements of due process as set out in the Rules of Civil Procedure, I am not in a position to dismiss the action as against Canderm.
[36] A stay of proceedings based on the existence of duplicative proceedings in two jurisdictions is a different matter. The test to be applied in such a case was set out by Farley J. in Hollinger International Inc. v Hollinger Inc., 2004 7352, at para 5. The test requires consideration of:
(a) whether there is substantial overlap of issues in the two proceeding;
(b) whether the two cases share the same factual background;
(c) whether issuing a…stay will prevent unnecessary and costly duplication of judicial and legal resources; and
(d) whether the…stay will result in an injustice to the party resisting the stay.
[37] The first three steps of the test can readily be answered in the affirmative. The Ontario and British Columbia claims are identical, they share the same factual background, and they duplicate each other. The fourth step is a non-issue here, since Plaintiff’s counsel agrees that a stay is appropriate under the circumstances. There is no injustice to the Plaintiff in staying the Ontario proceedings when the same claim, framed identically as a class action, can proceed in British Columbia. Either one of those claims could potentially be certified and proceed on a national basis, leaving out no class member once certified. For this reason, counsel for the Plaintiff raises no objection to a stay of proceedings in Ontario.
[38] I am inclined to make the stay a permanent one. In the ordinary course, the stay would be issued on a temporary basis, to be terminated upon resolution of the proceeding in the other jurisdiction. That, however, puts the onus on Canderm to move for dismissal of the Ontario claim once the B.C. claim against it is resolved with finality. Under the circumstances, however, that burden seems misplaced. Plaintiff’s counsel concedes that there cannot be two actions against Canderm for the same cause and the same remedy, and has indicated that the Plaintiff has no intention of pursuing the claim in Ontario. British Columbia is agreed upon by all parties to be the sole remaining forum. In that case, a permanent stay in Ontario is called for now rather than at the end of the B.C. proceedings.
[39] Of course, even a permanent stay can be lifted on order of the court granting it. As Cox J. of the Supreme Court of South Australia has put it, “A stay may mean forever, but not forever no matter what”: Director of Public Prosecutions v Polyukhovich (No. 2), No. S 4067 (Sup. Ct. S. Aus.), ruling on new evidence, 3 March 1993.
[40] The difference is that with a permanent stay the onus is on the Plaintiff to lift the stay in the event circumstances make that appropriate, rather than on Canderm to seek an outright dismissal after a temporary stay expires. Given the way the settlement has left open the B.C. proceedings against Canderm, it is appropriate for the Plaintiff to bear the onus of re-starting any future proceedings in Ontario and not for Canderm to bear the onus of finally ending them.
[41] With approval of this settlement, the Ontario action against Canderm should therefore be permanently stayed.
VII. The bar order
[42] The other matter of concern to counsel for Canderm is the so-called bar order to be issued with respect to further claims by or against J&J. Since J&J will no longer be part of the litigation, it will not be formally adverse to either the Plaintiff or Canderm. As a consequence, no one will be entitled to full documentary and oral discovery and the rest of the ordinary procedural rights against them. While it is fair enough for the Plaintiff to forego those rights as a feature of the settlement, it is unfair for Canderm, who is not a party to the settlement, to forego procedural rights which it otherwise enjoys.
[43] This problem was most prominently addressed by Winkler J. (as he then was) in Ontario New Home Warranty Program v Chevron, 1999 15098. He acknowledged that the non-settling defendant is inherently prejudiced by not having automatic discovery rights from parties against which it would have such rights but for the settlement from which it is excluded. Justice Winkler went on to find, however, that the CPA is a procedural statute that provides great latitude for a judge to insure “order and fairness”: Chevron, at para 72, citing Carom v Bre-X Minerals Ltd. (1999), 1999 14781 (ON SC), 43 OR (3d) 441, 451 (SCJ). He simultaneously observed that “the procedural objections raised by the non-settling defendants can be addressed without a wholesale rejection of the proposed settlement agreement”: Chevron, at para 71.
[44] In fashioning an appropriate response to the procedural dilemma in which the non-settling defendant found itself, Winkler J. pronounced the following terms that qualify the portion of the settlement barring the settling defendants’ participation in the further litigation [Chevron, at para 76]:
The prohibitive provisions will be entered as a ‘stay of proceedings’, as against the settling defendants under s. 13 of the [CPA], subject to compliance by the settling defendants with the following terms as they relate to the conduct of the remaining portions of the action.
These terms, generally described, are that the non-settling defendants may, on motion to this court, obtain:
documentary discovery and an affidavit of documents in accordance with the Rules of Civil Procedure from each of the settling defendants;
oral discovery of a representative of each of the settling defendants, the transcript of which may be read in at trial;
leave to serve a request to admit on each settling defendant in respect of factual matters;
an undertaking to produce a representative to testify at trial, with such witness to be subject to cross-examination by counsel for the non-settling defendants.
[45] Counsel for J&J submits that this list is too detailed and that Canderm does not deserve such an explicit and detailed explication of its procedural rights. I disagree. Justice Winkler’s qualifications to a bar order have been followed elsewhere, not because his judgment is authoritative in terms of judicial hierarchy (Winkler J. was sitting as a motions judge of first instance in Chevron), but because his conclusion is well-reasoned and precise. The terms articulated in Chevron leave little to be argued about later, and go as far as one can go at this stage toward levelling the procedural playing field for Canderm down the road.
[46] The 4 terms articulated by Winkler J. in Chevron, as quoted above, are to be incorporated into the settlement approval order.
VIII. Disposition
[47] The settlement between the Plaintiff and J&J is approved.
[48] The Distribution Protocol shall be amended such that the maximum amount that may be awarded for an income loss claim is $20,000.
[49] Class counsel fees are approved at $78,875, inclusive of tax.
[50] This action in Ontario is permanently stayed as against Canderm.
[51] Subparagraphs a and b of paragraph 13 of the draft Order (the bar order clause) shall be replaced with terms identical to those in subparagraphs 1 through 4 of paragraph 76 of Chevron, as quoted in paragraph 44 above.
IX. Costs
[52] In my endorsement of September 6, 2018, I set out a timetable leading up to this settlement approval motion. That timetable was consented to by all parties. There had been a history of delays in these proceedings and all counsel understood that it was important to adhere to the timetable.
[53] The Plaintiff’s motion materials herein, including a factum, was due on December 6, 2018. However, Plaintiff’s factum was not served until Friday, January 18, 2019. This motion was heard four days (two business days) later, on Wednesday, January 23, 2019. As a consequence of the Plaintiff’s late service of its factum, counsel for Canderm was put under severe time pressure to complete a responding factum in time to be filed with the court. She explains that she was compelled to work during the weekend to produce a factum, and as a consequence she had to produce the factum and collect the case law without clerical or student help. This caused her client to incur extra hours at senior counsel’s high billing rate that would not otherwise have been incurred.
[54] Counsel for Canderm arranged a case conference regarding this matter the week before the hearing and sought an adjournment as a consequence of the Plaintiff’s tardiness. I was not inclined to grant an adjournment at the last moment given the protracted nature of the case until now. However, I indicated that I would invite counsel to make submissions on costs in respect of the Plaintiff’s late factum.
[55] Counsel for Canderm has requested costs in the amount of $5,000. This is designed to compensate Canderm for the unfairness of having to incur extra legal fees as a result of the late service of Plaintiff’s factum. I agree with Canderm’s counsel that this is an appropriate measure of the extra costs imposed by Plaintiff’s failure to adhere to a court ordered timetable, and will exercise my discretion under s. 131 of the Courts of Justice Act to fix the costs accordingly.
[56] The Plaintiff shall pay Canderm costs in the all-inclusive amount of $5,000 in respect of this motion.
Morgan J.
Date: January 28, 2019