A. Lokan

The defendants successfully brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

In this costs endorsement, the court considered whether to depart from the presumption of full indemnity costs under s. 137.1(7).

The court denied the plaintiff's request to file a further affidavit and found no reason to depart from the statutory presumption.

The court awarded full indemnity costs of $282,943.42 to the defendant Bent and partial indemnity costs of $30,000 to the defendant Lerners LLP.

The moving party (defendant) brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the responding party's (plaintiff's) defamation action.

The action arose from an email sent by the moving party to a restricted listserv of plaintiff-side personal injury lawyers, which criticized the responding party's conduct as a medical expert in preparing executive summary reports for insurance companies.

The responding party also challenged the constitutionality of s. 137.1 under ss. 7 and 15(1) of the Charter.

The court found that the email related to a matter of public interest.

The court held that the responding party failed to show there were grounds to believe the moving party had no valid defence, as the defences of substantial justification and qualified privilege were reasonably likely to succeed.

Furthermore, the public interest in protecting the expression outweighed the public interest in permitting the proceeding to continue.

The court also dismissed the Charter challenges, finding that reputation is not a free-standing right under s. 7 and that potential defamation plaintiffs do not constitute an analogous group under s. 15(1).

The motion was granted and the action was dismissed.