Court File and Parties
COURT FILE NO.: CV-18-599118 DATE: 20190517 ONTARIO SUPERIOR COURT OF JUSTICE
Between:
VICTOR FERREIRA and FERREIRA INSURANCE & INVESTMENT CONCEPTS INC. Plaintiffs/Defendant by Counterclaim
- and -
MANUEL DA COSTA aka MANUEL DACOSTA, JOSE ALEXANDRE FRANCO aka JOSE FRANCO and ALEXANDRE FRANCO, JOSE MARIA EUSTAQUIO aka JOSE M. EUSTAQUIO and JOSE EUSTAQUIO, DAVID GANHAO, MILENIO STADIUM INC., MDC MEDIA GROUP INC. and S.I.T. PROPERTIES LTD. Defendants/Plaintiff by Counterclaim
BEFORE: Justice Edward P. Belobaba
COUNSEL: Lorne Honickman for the Moving Parties / Defendants Howard W. Winkler and Eryn Pond for the Responding Parties / Plaintiffs
HEARD: March 22, 2019
Costs Award
[1] In a decision released on April 23, 2019 I dismissed the defendants’ anti-SLAPP motion and allowed the plaintiffs’ defamation claims to continue on to trial. [1] I concluded that the defamation actions were not SLAPP suits but genuine defamation claims that should be decided on the merits.
[2] The successful plaintiffs now seek costs on a partial indemnity scale in the amount of $39,236.62 inclusive of disbursements and HST. The defendants point to s. 137.1(8) of the Courts of Justice Act [2] (“CJA”) and ask that no costs be awarded.
[3] I agree with the defendants. This is not a case for costs.
Analysis
[4] Ontario’s anti-SLAPP law, enacted in 2015 and set out in s. 137.1 of the CJA has an important but limited rationale: the early dismissal of purely strategic litigation that is brought primarily to discourage or derail expression on matters of public interest. The “aggrieved” plaintiff is typically a powerful entity that hasn’t sustained any real damage but brings a defamation claim to intimidate a much weaker defendant and stop any further discussion of a matter of public interest. The anti-SLAPP legislation is not intended to preclude legitimate defamation claims. But it is also designed to encourage challenges to lawsuits that may well be SLAPP suits.
[5] Hence, section 137.1(8) of the CJA provides as follows:
Costs if motion to dismiss denied
137.1(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
[6] In other words, where a defendant’s claim that the plaintiff’s action is nothing more than strategic litigation against public participation is denied and the plaintiff’s action is allowed to continue on to trial, s. 137.1(8) directs that no costs be awarded to the plaintiff unless the judge decides that a costs award “is appropriate in the circumstances.”
[7] As the Court of Appeal noted in Venerruzo v. Storey [3]:
[T]he costs provisions in s. 137.1 … are designed to encourage defendants, who have been sued over expressions on matters of public interest, to bring s. 137.1 motions for an early dismissal of those claims. The costs provisions ease the financial burden and risk placed on the defendant who seeks an early termination of what it claims is a SLAPP … [4]
[8] The mere fact that an anti-SLAPP challenge is dismissed and the defamation action is allowed to proceed to trial (the plaintiff having cleared the hurdles set out in s. 137.1 of the CJA) is not enough to justify a costs award under s. 137.1(8). Otherwise, the statutory presumption set out therein would be completely undermined. Nor is it sufficient to suggest, as was done here, that the defendants’ alleged defamatory claims were particularly offensive – they certainly were, [5] but the same can probably be said about every defamation suit brought by virtually every aggrieved plaintiff.
[9] The 2010 Anti-SLAPP Advisory Panel Report that led to the enactment of s. 137.1 of the CJA noted that costs awards against unsuccessful defendants are intended to act as "costs sanctions against parties who bring frivolous motions for protection". [6]
[10] This court has accepted that costs awards under s. 137.1(8) case law are “appropriate” in cases where the anti-SLAPP motion is found to be frivolous or unmeritorious. [7] The Court of Appeal has also suggested that the defendant’s anti-SLAPP challenge may be found to be unmeritorious if the plaintiff’s action has none of the characteristics of a SLAPP suit and the impugned expression is unrelated to a matter of public interest. [8]
[11] Here, I found that the plaintiff’s actions had none of the characteristics of a SLAPP suit. [9] However, I also found that the impugned expression (about the dangers of investing in syndicated mortgages) was related to a matter of public interest. [10] It was only after completing the required analysis under the multi-step test set out in s. 137.1 of the CJA that I could conclude with some measure of confidence that the defendants’ anti-SLAPP motion should be dismissed and the plaintiffs’ defamation actions should continue on to trial.
[12] Was the defendants’ anti-SLAPP motion frivolous and unmeritorious? I cannot make this finding on the material before me. Tracking this court’s analysis in Montour:
There is nothing before me to indicate that the motion of the defendants was frivolous. It was brought pursuant to new legislation and was well grounded based on that legislation. Simply because the [plaintiffs] won, enabling the action to continue on its merits, does not mean it [the defendants’ motion] was frivolous or ill conceived. [11]
[13] In my view, there is no good reason to depart from the statutory presumption that costs should not be awarded against the defendants.
Disposition
[14] The plaintiff’s request for costs under s. 137.1(8) of the CJA is dismissed.
[15] Order to go accordingly.
Justice Edward P. Belobaba Date: May 17, 2019
Footnotes: