Derek Kim

Following the dismissal of both the appellant's appeal and the respondent's cross-motion for leave to appeal costs, the parties made written submissions on costs.

The self-represented respondent sought approximately $40,000 in costs, claiming lost remuneration as a contractor.

The appellant argued for no costs due to divided success.

The Court of Appeal ordered no costs of the appeal, finding that success was divided and noting the additional time incurred due to the respondent's late filing of the cross-motion.

The Court of Appeal for Ontario dismissed the appeal from the motion judge’s order dismissing an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

The court found that the expression at issue—a private comment between spouses—did not relate to a matter of public interest.

The court also denied leave to appeal the motion judge’s costs order, upholding the finding that the self-represented respondent had not established a basis for costs.

The decision affirms the high threshold for overturning discretionary costs decisions and clarifies the application of the public interest requirement in anti-SLAPP proceedings.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff contractor's defamation action.

The action arose from an email the defendant sent to his spouse expressing dissatisfaction with the plaintiff's renovation work.

The court dismissed the motion, finding that the email was a private communication between spouses and did not constitute an expression on a matter of public interest.

No costs were awarded.

The appellant owner appealed a motion judge's order directing the release of holdback funds to subcontractors under the Construction Act.

The appellant argued the motion judge erred in calculating the minimum holdback and in ordering payments without a formal summary judgment motion.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the law regarding basic holdback obligations and set-off, and properly utilized the summary procedure under s. 67 of the Act to expedite payment to subcontractors.

This decision addresses motions in three consolidated construction lien actions.

Sutton Forming Inc. sought a declaration on Homes by DeSantis (Lake) Inc.'s minimum holdback obligation under the Construction Lien Act and an order for payment from it.

The court clarified that the holdback is calculated based on the contract price for services actually supplied, not amounts paid, and rejected the owner's objections regarding certificate accuracy and set-off for deficiencies.

The court granted leave for the motion, declared the minimum holdback, and ordered specific payments to Sutton and its sub-subcontractors from the holdback.