Court File and Parties
CITATION: Skorski v. Paderewski Society Home (Niagara), 2018 ONSC 3553
DIVISIONAL COURT FILE NO.: DC-17-908 DATE: 2018-06-06
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MESBUR, VARPIO, and MYERS JJ.
BETWEEN:
Paderewski Society Home (Niagara) Plaintiff (Respondent)
– and –
Leopold Skorski, Alexander Davidoff, Alexandra Davidoff Defendants (Appellant)
Zijad Saskin, for the Plaintiff/Respondent Malte von Anrep, Defendants/Appellant
HEARD at Hamilton: June 6, 2018
Oral Reasons for Judgment
MESBUR J. (Orally)
[1] Leopold Skorski appeals from the costs decision of Mr. Justice Henderson dated December 12, 2017, pursuant to leave which was granted by Justice Milanetti on February 1, 2018.
[2] The trial judge ordered Mr. Skorski and his co-defendant Mr. Davidoff, jointly and severally, to pay $10,000 to the plaintiff for libel. The defendants successfully defended many of the plaintiff’s complaints. However, they were held liable to pay damages for making false allegations about tenant abuse and neglect at the plaintiff’s seniors’ facility.
[3] When it came to assessing costs, the trial judge ruled that the plaintiff had succeeded in the lawsuit and was entitled to costs on a partial indemnity basis. He ruled that the plaintiff had not bested the terms of its offer to settle and therefore it was not entitled to an enhanced award of costs under Rule 49 of the Rules of Civil Procedure. The trial judge went on and exercised his discretion to reflect the defendants’ partial success by reducing the costs award. He awarded the plaintiff $35,177.74 which was about 50% of its costs calculated on a partial indemnity basis.
[4] Although only ordered to pay $10,000 in damages, Mr. Skorski did not show that he had served any offers to settle to try to improve the ultimate costs outcome.
[5] The Divisional Court has jurisdiction to hear this appeal under ss. 19 (1.2)(a) and 133 (b) of the Courts of Justice Act.
[6] Costs are a discretionary remedy. The Supreme Court of Canada has recognized that an appellate court should only set aside a costs award if the trial judge has made an error in principle or if the award is plainly wrong, See Hamilton v. Open Window Bakery Ltd., 2004 SCC 9.
[7] Mr. Skorski argues that he was a successful whistleblower in a matter of public interest and, as such, he ought to be entitled to reimbursement of his costs of $151,502.32 on a substantial indemnity scale plus the $19,320.18 fee that he paid to a forensic investigator. He also argues that s. 137.1 of the Courts of Justice Act provides him with an entitlement to costs.
[8] Fixing costs is a discretionary decision under s. 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party, the expectations of the unsuccessful party, the amounts claimed and recovered, and the complexity of the issues. Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice. In this regard, of course, the seminal case is Boucher v. Public Accountants Council (Ontario).
[9] In DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5, Mr. Justice Cumming described the basic approach to awarding costs as follows:
Costs are in the discretion of the Court: s. 131, of the Courts of Justice Act …and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
[10] In this case, the trial judge considered the parties’ relative success, he considered issues under Rule 57.01, and the plaintiff’s offer to settle. We are unable to discern any error in principle in proceeding as he did. We know of no rule of law that entitles a self-styled whistleblower to costs on being held liable for defaming the plaintiff. Absent such a principle, the trial judge cannot be faulted for considering the relevant factors and exercising his discretion as he saw fit.
[11] Section 137.1 of the Courts of Justice Act does not assist Mr. Skorski. That section deals with a particular process that can be followed by a defendant to try to dismiss a defamation proceeding on the basis that it is a strategic lawsuit against public participation (what we call the “Anti-SLAPP Law”). Section 137.1 has no application to a costs decision after a trial in which the plaintiff has succeeded. Moreover, the action was commenced prior to the introduction of the Anti-SLAPP Bill and therefore s. 137.5 provides that it would not be applicable to this action in any case.
[12] Accordingly, the appeal is dismissed.
[13] I have endorsed the record, “For oral reasons given today, the appeal is dismissed. As agreed, costs to the respondent in the appeal fixed at $5,000.00, all-in.
Mesbur J.
I agree
Varpio J.
I agree
Myers J.
Date of Reasons for Judgment: June 6, 2018
Date of Release: June 7, 2018
CITATION: Skorski v. Paderewski Society Home (Niagara), 2018 ONSC 3553
DIVISIONAL COURT FILE NO.: DC-17-908 DATE: 2018-06-06
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MESBUR, VARPIO, and MYERS JJ.
BETWEEN:
Paderewski Society Home (Niagara) Plaintiff (Respondent)
– and –
Leopold Skorski, Alexander Davidoff, Alexandra Davidoff Defendants (Appellant)
ORAL REASONS FOR JUDGMENT
MESBUR J.
Date of Reasons for Judgment: June 6, 2018
Date of Release: June 7, 2018