Court of Appeal for Ontario

Date: 2025-06-27
Docket: COA-24-CV-1239

Coram: Copeland, Wilson and Rahman JJ.A.

Between:

Robert A. Bongard
Plaintiff (Respondent/Appellant by way of cross-appeal)

and

Keith Bullen
Defendant (Appellant/Respondent by way of cross-appeal)

Appearances:
Arthur Hamilton, Derek Kim, and Oliver Flis, for the appellant/respondent by way of cross-appeal
Robert A. Bongard, acting in person

Heard: 2025-06-25

On appeal from the order of Justice Grant R. Dow of the Superior Court of Justice, dated November 5, 2024, with reasons reported at 2024 ONSC 4623.

Reasons for Decision

Introduction

1The appellant appeals from the motion judge’s order dismissing his anti-SLAPP motion, pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The respondent seeks leave to cross-appeal the motion judge’s costs order, which ordered no costs of the motion.

2After hearing submissions, we dismissed the appeal and denied leave to appeal the motion judge’s costs order, with reasons to follow. These are our reasons.

A. The Appeal of the Dismissal of the Anti-SLAPP Motion

(1) The Motion Judge’s Reasons

3The motion judge instructed himself on the requirement at the first stage of the s. 137.1 analysis that the moving party must establish that the proceeding arises out of expression relating to a matter of public interest, referencing the Supreme Court decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, at paras. 20-31. He self-instructed that the expression at issue must be assessed as a whole and considering whether a segment of the community would have a genuine interest in receiving the information. The public interest must be given a broad interpretation, with a focus to what the expression is really about.

4He then considered the expression at issue and the context in which it was made, and found that it did not relate to a matter of public interest. He stated his ultimate conclusion as follows:

I find, taken in its entirety, the allegedly offending sentence is not one of public interest. Rather, it is a private comment between spouses about an individual with whom they contracted to renovate their home and had a falling out. There is no evidence the email was disseminated or available to the public at large.

(2) Analysis

5The appellant argues that the motion judge erred in law by finding that the fact that the expression at issue in the claim was a private comment between spouses and not shared with the public at large was determinative of whether it was expression that related to a matter of public interest.

6We do not agree that the motion judge made this factor determinative. It was one factor he considered in coming to the conclusion that the expression did not relate to a matter of public interest. The motion judge properly considered the substance of the expression and the context in which it was made in concluding that the proceeding did not arise from expression that related to a matter of public interest.

7We see no basis to interfere with the motion judge’s finding that the proceeding – the respondent’s claim – does not arise from an expression by the appellant that relates to a matter of public interest.

8At its heart, the expression that is the subject of the respondent’s claim relates to a private dispute, not to a matter of public interest: Benchwood Builders, Inc. v. Prescott, 2025 ONCA 171, at paras. 33-43, leave to appeal to S.C.C. requested, 41794; Dent-X Canada v. Houde, 2022 ONCA 414, at paras. 3-6, 10-11; Pointes, at para. 29.

9The appellant argues that the motion judge did not consider as context that the respondent pleaded in his amended statement of claim that the appellant’s communications caused him “a loss of reputation and business opportunity”. We are not persuaded that the motion judge failed to consider this, given that he specifically referred to this aspect of the amended statement of claim in his reasons. In any event, this aspect of the pleading does not change the character of the expression at issue, which relates to a private dispute and not a matter of public interest.

10The appellant also argues that the motion judge erred in relying on “evidence” from his cross-examination when the transcript was never ordered by the respondent and was not before the court.

11We agree that the motion judge erred in referring to “evidence” which was not before the court. However, the references had no impact on the motion judge’s analysis. The references to the appellant’s cross-examination were to his refusal to answer questions about whether he had communicated with third parties about the dispute with the respondent. In substance, the motion judge made reference to the refusals to emphasize the point that there was no evidence that the communication between the appellant and his wife that was the substance of the respondent’s claim was shared with anyone else. The fact that there was no evidence that the communication at issue was shared with the public at large was already evident from the materials filed on the motion. The references to the refusals during the appellant’s cross-examination did not add anything to the motion judge’s analysis.

B. The Respondent’s Request for Leave to Appeal the Costs Order

12The respondent was self-represented before the motion judge. The motion judge considered the law in relation to costs awards in favour of self-represented individuals, specifically, that they must demonstrate that in representing themselves they have incurred an opportunity cost by foregoing other remunerative activity, referring to Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633 (Div. Ct.), at para. 23. He was not satisfied that the respondent had demonstrated that he had foregone other remunerative activity in order to defend the anti-SLAPP motion, given the lack of detail provided by the respondent on this issue. In addition, the motion judge recognized the starting point in s. 137.1(8) of the Courts of Justice Act that costs not be awarded to the plaintiff/responding party on the motion when an anti-SLAPP motion is dismissed, unless the motion judge determines it is appropriate in the circumstances. Taking those factors into consideration, the motion judge exercised his discretion to make no order as to costs on the motion.

13Leave to appeal costs is granted sparingly, recognizing that the fixing of costs is highly discretionary and that trial and motion judges are best positioned to assess costs, taking into account the dynamics of a case: Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, 95 C.C.L.T. (4th) 175, at para. 13. An appellate court may set aside a trial or motion judge’s costs award only if the judge made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The principle that leave to appeal costs is granted sparingly is applicable to applications for leave to appeal costs orders made under s. 137.1(7) and (8) of the Courts of Justice Act in relation to anti-SLAPP motions: Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352, at paras. 31-32.

14The respondent raises numerous arguments why the motion judge erred in not awarding him costs of the motion. In addition, the respondent argues that this court’s decision regarding costs before the motion judge in Benchwood Builders, Inc. v. Prescott, 2025 ONCA 238 supports his contention that he should have been awarded costs of the motion.

15Respectfully, the respondent’s arguments amount to asking this court to redo the costs analysis. That is not our role.

16We see no error in the motion judge’s exercise of discretion regarding costs and would deny leave to appeal the costs order. The motion judge’s finding that the respondent had not established income foregone as a result of representing himself is entitled to deference, as is the motion judge’s conclusion that the respondent had not established a basis to depart from the presumption in s. 137.1(8) of the Courts of Justice Act that where an anti-SLAPP motion is dismissed, the responding party is not entitled to costs.

17The Benchwood costs decision does not support the granting of leave to appeal the motion judge’s costs order in this case. In Benchwood, this court was exercising discretion regarding costs of the motion de novo because it had allowed the appeal and overturned the motion judge’s decision.

Disposition

18The appeal is dismissed.

19Leave to appeal costs is denied.

20If the parties are unable to reach an agreement on costs of the appeal, they may file written submissions limited to three pages, plus a costs outline, to be filed within 15 days of the release of these reasons. To the extent that the respondent seeks costs as a self-represented party on the basis of remuneration foregone, he may file up to 5 pages of documentary evidence of income foregone.