Lambert et al. v. Guidant Corp. et al., (2009) 256 O.A.C. 299 (DC)

• Judge: J. Wilson, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 30, 2009
• Jurisdiction: Ontario
• Citations: (2009), 256 O.A.C. 299 (DC)

Lambert v. Guidant Corp. (2009), 256 O.A.C. 299 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.059

Gerard Lambert and Elsa Ibbitson (plaintiffs/responding parties) v. Guidant Corporation, Guidant Canada Corporation, Guidant Sales Corporation and Cardiac Pacemakers Inc. (defendants/moving parties)

(482/09)

Indexed As: Lambert et al. v. Guidant Corp. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, J.

November 30, 2009.

Summary:

The plaintiffs sued the defendants for damages arising out of the defendants' negligent design, development, testing, manufacturing and licensing of certain pacemakers. The plaintiffs applied to certify the action under the Class Proceedings Act.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. A37, allowed the application. The plaintiffs sought costs of $1,255,345.75.

The Ontario Divisional Court, per Cullity, J., in a decision reported at [2009] O.A.C. Uned. 522, awarded the plaintiffs costs of $650,000. The defendants sought leave to appeal.

The Ontario Divisional Court, per J. Wilson, J., denied the motion.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The plaintiffs' application to certify their action was allowed - They were awarded partial indemnity costs of $650,000 plus disbursements - The Ontario Divisional Court, per J. Wilson, J., denied the defendants' motion for leave to appeal from the costs award - The defendants' approach significantly drove up the plaintiffs' costs - The defendants inundated the plaintiffs with documents and fought aggressively "every inch of the way" - The preparation required of the plaintiffs was out of all proportion to the seven day certification hearing - The court rejected the argument that the motions judge had not considered other like cases - There was no acceptable range of costs awards in certification proceedings - The motions judge noted that the defendants, who were unsuccessful on all aspects of the certification motion, declined to produce their own time summaries, which was a relevant consideration in assessing the reasonable expectation of the costs that the defendants might be required to pay - The plaintiffs had sought costs of over $1.2 million - The motions judge concluded that although the case was aggressively fought by the defence, the plaintiffs' recorded preparation time was excessive - He reduced the requested fee by almost half - The court agreed with his approach and decision - The matter did not raise issues of importance justifying a hearing before a full panel.

Practice - Topic 7020.1

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

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See Practice - Topic 210.3 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Practice - Topic 210.3 ].

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - [See Practice - Topic 210.3 ].

Cases Noticed:

Bellissimo Excavating Ltd. v. Ding et al. (2004), 193 O.A.C. 145 (Div. Ct.), refd to. [para. 13].

Gale v. Gale, [2006] O.A.C. Uned. 516; 151 A.C.W.S.(3d) 992 (Div. Ct.), refd to. [para. 15].

Andersen et al. v. St. Jude Medical Inc. et al. (2006), 208 O.A.C. 10; 264 D.L.R.(4th) 557 (Div. Ct.), refd to. [para. 15].

LeFrancois et al. v. Guidant Corp. et al., [2008] O.T.C. Uned. I26; 72 C.P.C.(6th) 120 (Sup. Ct.), refd to. [para. 17].

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. 20].

United States of America et al. v. Yemec et al. (2007), 225 O.A.C. 116; 85 O.R.(3d) 751 (Div. Ct.), refd to. [para. 25].

Counsel:

James C. Orr and Megan B. McPhee, for the plaintiffs/responding parties;

John A. Campion, Paul J. Martin and Brad Moore, for the defendants/moving parties.

This motion was heard at Toronto, Ontario, on November 30, 2009, by J. Wilson, J., of the Ontario Divisional Court, who delivered the following oral reasons for judgment on the same date.