Singer v. Schering-Plough Canada

Earlier this year, the Ontario Superior Court of Justice dismissed the plaintiff’s motions to certify class action proceedings against Schering and Playtex in respect of sunscreen products. In this decision, the Court considered the costs to be awarded in respect of the motions.

The Court found that the defendants were entirely successful on all issues, and had spent a reasonable amount of time for a case of this importance and complexity. There was no unnecessary evidence tendered by the defendants. Furthermore, the defendants cooperated and simplified the proceedings by avoiding unnecessary duplication.

The Court also considered that Singer had an indemnity agreement with his lawyers, and would not be paying the costs award from his pocket. The Court found that the evidence established that the claim was conceived by lawyers who essentially recruited Singer. Furthermore, the plaintiff’s evidence failed to address the Canadian regulatory regime, which had approved the defendant’s advertising claims. It appeared to the Judge as if a claim from the United States had been copied without appropriate analysis of the factual and legal foundations in Canada.

Finally, the Court held that the action was not brought as a test case. The action raised no novel points of law, and for this reason, it was plain and obvious that the claim would fail. There was also no public interest in the issues of the case. “[A] failure to hold parties accountable for the costs of litigation will only serve to encourage speculative and unmeritorious claims.” As a result, the Court awarded costs of $200,000 to each defendant.