Court File and Parties

COURT FILE NO.: CV-21-00673704-0000 DATE: 20230607 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KORY TENEYCKE and RUBICON STRATEGY INC., Plaintiffs – and – CHARLES McVETY and CANADA CHRISTIAN COLLEGE AND SCHOOL OF GRADUATE THEOLOGICAL STUDIES, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Scott Hutchison and David Postel, for the Plaintiffs Irvin Schein and Jamie Arabi, for the Defendants

HEARD: Cost submissions in writing

Costs Endorsement

[1] The Defendants brought, and lost, an anti-SLAPP motion under section 137.1 of the Courts of Justice Act (“CJA”). The Plaintiffs seek costs.

[2] Section 137.1(8) of the CJA provides that, “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.” I found that the action was not Strategic Litigation Against Public Participation, and consequently did not dismiss the action. The litigation will go on.

[3] The residual discretion to award costs against a defendant on an unsuccessful anti-SLAPP motion is generally available where there are “compelling facts” to justify the award: Veneruzzo v Storey, 2017 ONSC 2532, aff’d 2018 ONCA 688. In the present case, the sting of the Defendants’ words was significant for the Plaintiff – especially the individual Plaintiff, Kory Teneycke – whose claim is based on defamation in respect of his professional reputation. But that alone does not differentiate the case from many such cases, since anti-SLAPP motions most typically arise in cases alleging defamatory speech.

[4] More significant here is that the Defendant, Charles McVety, holds a prominent position as a clergyman and educator. His outspokenness and prominence give him a particularly wide audience in traditional media as well as social media. Accordingly, any reputational harm engendered by his words and broadcasts reverberates further than for other less media-savvy speakers.

[5] I also found that there was malice underlying the Defendants’ publications and speeches about the Plaintiffs, which adds significantly to the harm inflicted upon them. As Plaintiffs’ counsel point out in their written cost submissions, Mr. McVety went out of his way to mass e-mail members of the Ontario legislature and federal Parliament about Mr. Teneycke, who as a professional lobbyist considers that act to be a direct targeting of his work environment and livelihood. Mr. McVety’s words, broadcast directly to a group of politicians, accused Mr. Teneycke of quasi-criminal misconduct, including illegal lobbying and corruption. This was exceptionally damaging, intentional conduct.

[6] In its recent decision in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, the Court of Appeal stressed the need for courts to re-focus on the issue of costs in the anti-SLAPP context. Justice Pepall observed, at para 35, that although section 137.1 of the CJA was meant to forestall meritless and expensive litigation by providing a preliminary and expeditious way of dealing with issues of public speech, anti-SLAPP motions have become “expensive, time-consuming and open to abuse”. One reason for that is that if successful, the motion can be dispositive of the entire claim.

[7] Most typically, defendants and their lawyers put great effort into scoring this kind of early, total victory. In response, plaintiffs and their lawyers typically put considerable resources into responding to anti-SLAPP motions, as they have much – indeed, everything – to lose if they do not put their best foot forward. In the process, the court’s ruling on a motion of this nature reviews the factual and legal context of the claim quite thoroughly. While the motion court’s findings will not be definitive for trial down the road, they will inevitably impact on the course of the litigation and potential settlement.

[8] In my view, awarding costs to the Plaintiffs in these circumstances will go some way toward dampening not only these Defendants, but perhaps other defendants’ enthusiasm for taking the anti-SLAPP route where, as here, the factual context simply does not fit the SLAPP description. While costs are always broadly discretionary under section 131 of the CJA, the residual discretion left for the motion judge under section 137.1(8) is particularly appropriate to this context.

[9] In its Park Lawn judgment, the Court of Appeal suggested that a motion court, in the exercise of its discretion in awarding costs, should keep the amount to a maximum of $50,000. Plaintiffs’ counsel, in their cost submissions, are not far off that mark. They seek $57,831.03, all inclusive. Given the complexity of the issues and the importance of the subject matter, that is a relatively modest amount in today’s litigation cost environment.

[10] Rule 57.01(1)(0.b) of the Rules of Civil Procedure directs me to take into account in fixing costs the reasonable expectations of the unsuccessful party to the proceeding. I am confident that the amount of the Plaintiffs’ request here does not take the Defendants by surprise. Although Defendants’ counsel did not submit their own Costs Outline with their written submissions, I know the amount of work that each side produced in the motion. It would very much surprise me if Defendants’ counsel did not incur a similar level of costs.

[11] Using round numbers for convenience and adhering to the Court of Appeal’s suggested ceiling as a guide, the Defendants shall pay the Plaintiffs $50,000 in costs, all inclusive.

Date: June 7, 2023 Morgan J.