Charlotté Calon

This is a costs endorsement following an appeal where the appellants' appeal was allowed.

The Court of Appeal addressed the disposition of costs for a motion previously heard in the Superior Court.

The appellants sought $20,098.48 for the motion costs.

Applying s. 137.1(8) of the Courts of Justice Act, the court fixed the motion costs at the requested amount and ordered them payable to the appellants by the respondents, conditional on the appellants' success in the ongoing main action.

The court noted the respondents' original motion had a low prospect of success.

The appellants, a cat rescue operation and its director, appealed the dismissal of their defamation action under s. 137.1 of the Courts of Justice Act.

The motion judge had dismissed the action against all defendants, including non-moving parties, and awarded costs.

The Court of Appeal found that the motion judge erred by misapplying the s. 137.1 criteria, specifically by using a higher standard for assessing the substantial merit of the claim, mischaracterizing the "sting" of the defamation, relying on inadmissible hearsay, and improperly assessing the harm suffered by the appellants.

The Court also held that the motion judge erred in dismissing the action against defendants who had not brought a motion to dismiss.

The appeal was allowed, the dismissal order set aside, and the matter remitted for further proceedings.

The applicant brought a motion for the production of third-party medical, financial, and legal records in a will challenge, alleging his late mother lacked testamentary capacity and was unduly influenced by the respondent.

While the applicant's own evidence was largely speculative, the court found that the respondent's cross-examination and a video of the will signing ceremony provided an ample objective basis to meet the evidentiary threshold.

The video showed the mother being coached off-screen, and the respondent's evidence regarding the mother's finances was internally inconsistent and defied common sense.

The motion for production was granted.

The defendants brought an anti-SLAPP motion to dismiss the plaintiffs' defamation action arising from posts made in a Facebook group about animal rescue practices.

The court found that the posts related to matters of public interest, specifically animal welfare.

The plaintiffs failed to show that the defendants lacked valid defences of justification and fair comment, and failed to provide evidence of harm sufficient to outweigh the public interest in protecting the expression.

The action was dismissed.