Court File and Parties

Court File No.: CV-19-00620507-00CP Date: 2023-02-17 Superior Court of Justice - Ontario

Re: Takwihin Kibalian and Yeghia Kibalian, Plaintiffs – AND – Allergan PLC, Allergan Limited, Allergan, Inc., Allergan USA, Inc. and Allergan Inc., Defendants

Before: E.M. Morgan J.

Counsel: Vincent Genova, Kate Cahill, Anthony Leoni, Annelis K. Thorsen, and Silvana Herra, for the Plaintiffs Peter Pliszka, Mitchell Stephenson, and Montana Licari, for the Defendants

Heard: Costs submissions in writing

Costs Endorsement

[1] On December 21, 2022, I issued my ruling on the Plaintiff’s certification motion. In the result, the action was certified under the Class Proceedings Act, 1992, SO 1992, c. 6. In accordance with the usual principle that costs follow the event, the Plaintiffs are entitled to their costs on a partial indemnity scale.

[2] The certification motion was lengthy; it was thoroughly argued and voluminously documented on both sides. I do not make that observation in any negative sense. The 3-day motion was a demonstration of legal advocacy at the high end of the scale, dealing with complex and contentious medical evidence with respect to harms alleged to be caused by certain breast implants used in Canada over the course of two decades. Both sides were well staffed with talented, experienced lawyers who spared nothing on the time and effort it takes to put together a sophisticated claim and defense.

[3] Out of the entire experience, I have only one small quibble. In the final paragraph of my reasons for judgment on certification, I stated, “I would ask counsel for the Plaintiffs to send brief written submissions by email to my assistant within two weeks of the date hereof, and for counsel for the Defendants to send equally brief submissions by email to my assistant within two weeks thereafter”: Kibalian v Allergan Inc., 2022 ONSC 7116, at para 78. Both sides appear to have overlooked the word “brief”.

[4] I received very fulsome submissions and bills of costs from each side, and then received substantial reply and sur-reply submissions as well. The submissions addressed the docketed hours, of course, but they also delved into legal issues that one does not typically see in costs arguments. These include paragraphs devoted to the importance of certification in the class action context, the nature of a national class action across multiple Canadian jurisdictions, etc. I do not single out either side in this respect – both sides flexed their advocacy muscles to the fullest. It was all interesting reading, if a tad much.

[5] Now, among other things, Defendants’ counsel complains that Plaintiffs’ counsel has included in their costs request a claim for reimbursement of nearly $20,000.00 in docketed time (at partial indemnity rates, including HST) spent on preparing the costs submissions themselves. While some small amount is on occasion claimed in this respect, it is unusual to find it amounting to a substantial part of counsel’s overall request. Frankly, the level of costs-of-costs incurred here seems rather novel.

[6] Having read the complete set of cost submissions, I do not doubt that a very substantial amount of time (at partial indemnity rates) was spent by one side on the cost submissions. From the looks of it, an equivalent investment in the cost submissions appears to have been made by the other side as well. The hours are not padded or inflated; they are ample but no doubt genuinely incurred. As a matter of practice and policy, however, they are not to be encouraged. Litigation is expensive enough. I would disallow the claim of $19,351.25 in respect of the cost of preparing costs.

[7] After correcting for some miscalculated disbursements and reducing the photocopy expenses, the Plaintiffs seek total costs of $515,532.80 (including fees, disbursements, and HST). With one small exception discussed below, the Defendants do not argue with the Plaintiffs’ corrected disbursements. Rather, their primary contention is that Plaintiffs’ counsel’s claim for fees is too high. In Defendants’ counsel’s words, “The Defendants submit that their partial indemnity legal fees of $309,105 represents the pinnacle of what could reasonably be awarded for legal fees in this motion.”

[8] I acknowledge that Rule 57.01(1)(0.b) of the Rules of Civil Procedure directs me to consider “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”. At the same time, Rule 57.01(1)(0.a) directs me to consider the “principle of indemnity” for the successful party. And while one side’s expectation of their opponent’s costs may be roughly measured in terms of their own lawyer’s bill, there is no sense in which a Defendant’s own lawyer’s bill represents “the pinnacle” of what might be expected of the Plaintiff’s lawyer’s bill. The idea is that each side should be in the range of the other’s expectations, not that one side can put a ceiling on the other.

[9] In fact, Plaintiffs’ counsel point out that the two sides put virtually the identical amount of legal time into the case. The respective bills of cost reflect 1,170 docketed hours for Plaintiffs’ counsel as compared to 1,148 docketed hours for Defendants’ counsel. The difference in dollar amounts reflects the different composition of partner-heavy Plaintiffs-side boutique firms as against associate-heavy Defendants-side generalist firms. It does not reflect overwork or padding by the Plaintiffs’ firm. I am not prepared to penalize Plaintiffs’ law firm for its structure and staffing of lawyers.

[10] Defendants’ counsel also argue that research costs such as Westlaw fees, and more general operating costs such as telephone expenses, are part of office overhead and are not recoverable in costs. Plaintiffs’ counsel responds by pointing out that the Westlaw and long distance phone call expenses included in their bill are specifically documented as file-specific expenses. They submit that these expenses are not part of general overhead.

[11] In any case, the amount at issue in this argument is just over $5,000, which, in the scheme of things here, is not enough to take issue with. I am willing to accept Plaintiffs’ counsel’s explanation that these costs are attributable to work done on this case alone.

[12] Other than eliminating the costs attributable to preparing cost submissions, I am not prepared to exercise my discretion under section 131 of the Courts of Justice Act to reduce the Plaintiffs’ request any further. Rounding off slightly for convenience, the Defendants shall pay the Plaintiffs costs in the all-inclusive amount of $496,000.

Date: February 17, 2023 Morgan J.