Andersen et al. v. St. Jude Medical Inc. et al., (2006) 208 O.A.C. 10 (DC)

• Judge: Then, Epstein and Lax, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 03, 2005
• Jurisdiction: Ontario
• Citations: (2006), 208 O.A.C. 10 (DC)

Andersen v. St. Jude Medical (2006), 208 O.A.C. 10 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. FE.055

Erik Andersen, Yvonne Andersen and Sharon Frost (plaintiffs/respondents) v. St. Jude Medical Inc. and St. Jude Medical Canada Inc. (defendants/appellants)

Proceeding under the Class Proceedings Act, 1992

(367/04)

Indexed As: Andersen et al. v. St. Jude Medical Inc. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Then, Epstein and Lax, JJ.

February 9, 2006.

Summary:

The plaintiffs were successful in having their action certified as a class proceeding. The application judge awarded them fees of the certification motion of $396,859.80 and disbursements of $213,841.05, for a total award of $610,700.85 plus applicable GST. The defendants appealed.

The Ontario Divisional Court dismissed the appeal.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs were successful in having their action certified as a class proceeding - The application judge awarded them fees of the certification motion of $396,859.80 and disbursements of $213,841.05, for a total award of $610,700.85 plus applicable GST - The defendants appealed, submitting, inter alia, that an award of this magnitude would have a chilling effect on class proceedings - The Ontario Divisional Court rejected the submission and dismissed the appeal - The defendants drove the plaintiffs into a game of high stakes poker, sparing no expense in marshalling evidence and then declined to put their own costs before the court - Having lost a very expensive and important motion, it was disingenuous for the defendants to now claim that the costs award was outside the range of what they reasonably expected.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The Ontario Divisional Court stated that a judge's discretion to award a significant amount for costs must be exercised on proper principles - The court stated that 1) the discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1); 2) a consideration of experience, rates charged and hours spent (formerly a costs grid calculation) was appropriate, but subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case; 3) the quantum should reflect an amount the court considered to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant; 3) the reasonable expectation of the unsuccessful party was a factor to be considered in determining a fair and reasonable amount (rule 57.01(1)(0.b)); 4) the court should seek to avoid inconsistency with comparable awards in other cases; 5) the court should seek to balance the indemnity principle with the fundamental objective of access to justice; and 6) a discretionary decision of a case management judge in a class proceeding was entitled to a very high level of deference - See paragraph 22.

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Quantum - [See both Practice - Topic 210.3 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class or representative actions - [See both Practice - Topic 210.3 ].

Cases Noticed:

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 7].

Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042 (H.L.), refd to. [para. 7].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 8].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 9].

Moon v. Sher et al. (2004), 192 O.A.C. 222; 246 D.L.R.(4th) 440 (C.A.), refd to. [para. 9].

Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] O.A.C. Uned. 83; 75 O.R.(3d) 638 (C.A.), refd to. [para. 9].

Gariepy et al. v. Shell Oil Co. et al., [2002] O.T.C. 656 (Sup. Ct.), affd. [2004] O.J. No. 5309 (Div. Ct.), refd to. [para. 14].

Zesta Engineering Ltd. v. Cloutier et al., [2002] O.A.C. Uned. 288; 21 C.C.E.L.(3d) 161 (C.A.), refd to. [para. 18].

Stellarbridge Management Inc. v. Magna International (Canada) Inc. et al. (2004), 187 O.A.C. 78; 71 O.R.(3d) 263 (C.A.), refd to. [para. 18].

Murano et al. v. Bank of Montreal et al. (1998), 111 O.A.C. 242; 41 O.R.(3d) 222 (C.A.), refd to. [para. 18].

Khan et al. v. Metroland Printing, Publishing & Distributing Ltd. et al. (2003), 178 O.A.C. 201; 68 O.R.(3d) 135 (Div. Ct.), refd to. [para. 20].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), refd to. [para. 21].

Risorto et al. v. State Farm Mutual Automobile Insurance Co., [2003] O.T.C. Uned. 218; 64 O.R.(3d) 135; 32 C.P.C.(5th) 304 (Sup. Ct.), refd to. [para. 25].

Hague et al. v. Liberty Mutual Insurance Co., [2005] O.T.C. 290 (Sup. Ct.), refd to. [para. 26].

Gratton-Masuy Environmental Technologies Inc. et al. v. Building Materials Evaluation Commission (Ont.) (2003), 170 O.A.C. 388 (Div. Ct.), refd to. [para. 29].

Lau et al. v. Bayview Landmark Inc. et al., [1999] O.T.C. 220 (Sup. Ct.), refd to. [para. 40].

Nantais v. Telectronics Proprietary (Canada) Ltd., [1996] O.J. No. 5205 (Gen. Div.), refd to. [para. 40].

Mandeville v. Manufacturers Life Insurance Co., [2002] O.J. No. 5388 (Sup. Ct.), refd to. [para. 42].

Pearson v. Inco Ltd. et al., [2002] O.T.C. 515 (Sup. Ct.), affd. (2004), 183 O.A.C. 168 (Div. Ct.), revd. (2005), 205 O.A.C. 30 (C.A.), refd to. [para. 44].

Delrina Corp. v. Triolet Systems Inc. et al. (2002), 165 O.A.C. 160 (C.A.), refd to. [para. 45].

Bakhtiari et al. v. Axes Investments Inc. et al., [2003] O.T.C. 702; 66 O.R.(3d) 284 (Sup. Ct.), refd to. [para. 51].

Banihashem-Bakhtiari v. Axes Investments Inc. - see Bakhtiari et al. v. Axes Investments Inc. et al.

Celanese Canada Inc. v. Canadian National Railway Co. (2005), 196 O.A.C. 60 (C.A.), refd to. [para. 51].

Walker v. Ritchie et al. (2005), 197 O.A.C. 81 (C.A.), refd to. [para. 51].

Fehringer v. Sun Media Corp., [2002] O.J. No. 5514 (Sup. Ct.), refd to. [para. 56].

Counsel:

Gordon McKee and Jill Lawrie, for the appellants;

Gavin Mackenzie and James Newland, for the respondents.

This appeal was heard at Toronto, Ontario, on October 3, 2005, by Then, Epstein and Lax, JJ., of the Ontario Divisional Court. Lax, J., delivered the following decision for the court on February 9, 2006.