Court File and Parties

COURT FILE NO.: CV-22-0096-00 DATE: 2024-05-29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Rainbow Alliance Dryden and Caitlin Hartlen Plaintiffs/Responding Parties

- and -

Brian Webster Defendant/Moving Party

BEFORE: Madam Justice T. J. Nieckarz

COUNSEL: D. Judson, P. Howie, A. Goldenberg, L. Stanic and L. Strand, for the Plaintiffs/Responding Parties Self-represented, for the Defendant/Moving Party

HEARD: In writing

Decision On Costs

Overview:

[1] The Defendant, Mr. Webster, brought a motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) to have the Plaintiffs’ defamation action dismissed as “strategic litigation against public participation” (“SLAPP”).

[2] For reasons set out in Rainbow Alliance Dryden et. al. v. Webster, 2023 ONSC 7050 (the “Decision”), I dismissed the motion, allowing the action to continue.

[3] There is a statutory presumption in s. 137.1(8) of the CJA against costs for unsuccessful motions under s. 137.1 of the CJA. This presumption is subject to judicial discretion. Costs may be awarded if the motion judge determines that such an award is appropriate in the circumstances.

[4] The Plaintiffs argue that this is a case in which discretion should be exercised to award costs. The Plaintiffs claim partial indemnity costs in the total amount of $22,797.75. This amount is comprised of $20,175 for fees, and $2,622.75. No amount is claimed on account of disbursements.

[5] The Defendant argues that the statutory presumption should apply. He argues that the motion was not brought in bad faith or for an improper purpose. On the contrary, he brought the motion in good faith, believing it was not a frivolous motion. While he was unsuccessful, there is no reason to award costs contrary to the statutory presumption. He also continues to challenge the Plaintiff, Rainbow Alliance Dryden (“RAD’s”) standing to make any claims in this matter.

Analysis:

Should costs be awarded?

[6] The anti-SLAPP provisions of the CJA are designed to encourage defendants, who have been sued over expressions on matters of public interest, to bring a motion for early dismissal of those claims. The rationale for the costs provisions of s. 137.1 of the CJA is to ease the financial burden and risk placed on a defendant who avail themselves of s. 137.1 in seeking an early determination of what is alleged to be a SLAPP: Veneruzzo v. Storey, 2018 ONCA 688, at para. 38, citing Accruent LLC v. Mishimagi, 2016 ONSC 6924, 9 C.P.C. (8th) 136, at para. 4.

[7] In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at paras. 35-40, the Court of Appeal emphasized the need for courts to re-focus on the issue of costs in anti-SLAPP motions. At para. 35, Justice Pepall (citing Myers J., in Tamming v. Paterson, 2021 ONSC 8306, at paras. 7-9) noted that although s. 137.1 of the CJA was meant to provide a summary method of dealing with 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”.

[8] At para. 39 of Park Lawn, Justice Pepall further noted that “[i]f the parties and the motion judge focus on the purposes that animate the anti-SLAPP provision, the inquiry will not generally be a difficult one for a motion judge.”

[9] Taking to heart Justice Pepall’s words, Morgan J., noted in Teneycke v. McVety, 2023 ONSC 3428, at para. 8, that the exercise of discretion to award costs in s. 137.1(8) in appropriate 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.”.

[10] Doherty J.A., in Veneruzzo v. Storey, at para. 39, observed that denying successful respondents to a s. 137.1 motion their costs in circumstances in which the lawsuit was not brought for an improper motive and the claim did not relate to a matter of public interest, could be seen as encouraging meritless s. 137.1 motions. These circumstances are reasonable to consider in the exercise of a motion judge’s discretion under s. 137.1(8): Veneruzzo v. Storey, at para. 40.

[11] An award of costs is not, however, limited to circumstances in which the court finds that the proceeding did not arise from public interest expression. There may be other appropriate circumstances in which to award costs to a successful plaintiff: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, at para. 101.

[12] The Plaintiffs argue that in my Decision I found that the lawsuit did not have the hallmarks of a SLAPP. The action was not brought for an improper motive and the impugned expression does not relate to a matter of public interest. Based on these findings, this is an appropriate case for the exercise of discretion under s. 137.1(8) to award costs.

[13] I agree with the Plaintiffs. Based on the law set out above and the findings made in my Decision, I find that this is an appropriate case for the award of costs on a partial indemnity basis. Specifically, I note:

a. In the Decision, I found that the expression at issue does not represent speech that s. 137.1 intended to protect, as it was not public interest speech. b. In the event I was incorrect in finding that the expression was not public interest speech, I proceeded to find on the record before me, reasonable grounds to believe that the proceeding has merit. The expression may be defamatory and injurious to the reputation of the Plaintiff, Caitlin Hartlen (“Hartlen”). Given her work for a child protection agency, there is the potential for damage to her reputation. On the other hand, there are grounds to believe that the defence of fair comment may not be available to the Defendant. At paragraph 66 of the decision, I found that the action does not have the hallmarks of a SLAPP proceeding, but rather a legitimate defence of reputation against serious allegations. c. As Doherty J.A. observed at para. 49 of Veneruzzo v. Storey, the rationale for applying the costs provisions in s. 137.1 disappears when the lawsuit has none of the characteristics of a SLAPP, and the expression at issue is not related to a matter of public interest. In those circumstances, it is not the lawsuit challenging the expression that represents a potential misuse of the litigation process, but rather the anti-SLAPP motion itself. d. There is no other reason that I am aware of to deny the Plaintiffs costs. The reasons raised by the Defendant, and my findings are as follows: i. The Defendant argues that the Rainbow Alliance Dryden (“RAD”) does not even have standing to be a party to this proceeding. He argued this at the motion and did make some valid points. I found that I needed further submissions to rule on the issue of standing. This is an issue that does need to be determined. The Defendant was neither successful nor unsuccessful on this part of his motion. Having said this, the focus of the argument was on the s. 137.1 portion of the motion. Even if RAD had been found to have no standing the action could continue with Hartlen as the sole plaintiff. There was no duplication of materials as between Hartlen and RAD. Counsel for the Plaintiffs are counsel for both Plaintiffs. In my view, this is a neutral factor. ii. The Defendant argues he is a self-represented party who is a member of a marginalized group in Canada and has been forced to learn the Rules of Civil Procedure at a rapid rate, while the Plaintiffs were represented by five lawyers (including lawyers from a high-profile Toronto area law firm). He also faced argument by an intervenor (Egale). He did not bring the motion in bad faith or for an improper purpose. His argument appears to be that he did the best he could considering his limited knowledge and given the Goliaths he was facing. I am not aware of the marginalized group that the Defendant belongs to. It is not a relevant factor on the question of costs of this proceeding. The motion had nothing to do with any marginalized status of Mr. Webster. Bad faith is not a prerequisite to the exercise of discretion under s. 137.1(8). I accept that the Defendant did not act in bad faith in bringing the motion or in proceeding with it. At the time the motion was brought, Mr. Webster was represented by counsel. He became self-represented as the planning for the motion and various steps needed to be completed. I accept that the Defendant struggled with the procedural requirements of the motion and the Court endeavoured to strike a balance between giving the Defendant some latitude on these matters, while not compromising the interests of the Plaintiff. I accept that Mr. Webster did face a number of well-prepared and experienced lawyers. Mr. Webster did a very good job of articulating and advocating for his position. He addressed the factors relevant to the Court. His self-represented status did not prejudice him or cause him to lose the motion; the facts and the law did. His self-represented status did not change the merits of the case.

What is the appropriate amount of costs to award?

[14] Having found that costs are payable to the Plaintiffs, I must now determine what is a reasonable amount to be paid.

[15] In considering the amount of the costs award I am guided by the factors outlined in Rule 57.01 of the Rules of Civil Procedure. Rule 57.01 provides, in part, as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (a) the amount claimed and the amount recovered in the proceeding; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (g) a party’s denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; (h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and (i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1; O. Reg. 689/20, s. 37.

[16] I further note that the Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 OR (3d) 291 (Ont CA) at para. 37).

[17] Additionally, with respect to s. 137.1 motions, Justice Pepall in Park Lawn, at paras. 39 and 40, noted that anti-SLAPP motions are meant to be efficient and inexpensive. He suggested as a guideline that costs generally should not exceed $50,000 on a full indemnity basis. The costs sought by the Plaintiffs equate to $37,996.25 on a full indemnity basis, and therefore the guideline set by the Court of Appeal is not exceeded.

[18] Taking into consideration the Rule 57.01 factors outlined above, the principle of reasonableness, and the Court of Appeal’s comments in cases such as Park Lawn with respect to s. 137.1 costs, I find that the Defendant shall pay to the Plaintiff $10,000 on account of costs. Specifically:

a. The motion was somewhat complex in that an anti-SLAPP motion is effectively a request for a summary dismissal of the underlying action. As the Plaintiffs have pointed out in their costs outline, these motions require arguments on a multi-stage legal analysis and the marshalling of evidence to demonstrate that the underlying action has merit. The Plaintiffs were also required to response to the Defendant’s defences of fair comment. Given my decision with respect to the standing issue, I have not considered this additional issue in the Plaintiff’s award of costs. An insignificant amount of time appears to have been devoted to this issue. b. The issues raised on the motion were significant to the Plaintiffs, and Hartlen in particular. Dismissal of the defamation action would have denied Hartlen a legal avenue to claim redress for any possible damage to reputation, and otherwise, from the alleged defamatory comments. I also accept that as a member of the 2SLGBTQI community who has been subjected to hateful and threatening comments because of the post, this litigation was also important to Hartlen to protect their person and the community they represent from further hostility. I further acknowledge the public interest in this litigation. c. With respect to the experience of counsel, the hours spent, and the rates sought: i. There are fees claimed for four of five lawyers representing the Plaintiffs. Two of the five lawyers practice in Northwestern Ontario and three in Toronto. The partial indemnity rates claimed are reasonable and appropriate given counsel’s levels of experience, which range from 3 to 8 years, and given that Toronto counsel rates were adjusted to reflect the rates one would reasonably expect to pay in the Northwest Region. The partial indemnity rates range from $90 per hour ($150 on a full indemnity basis) to a maximum $180 per hour ($300 on a full indemnity basis). ii. The hours claimed are where I have a concern. There is a total of 143 hours claimed for this motion by four of the lawyers. The costs outline indicates that no time has been claimed for the work of a student-at-law who spent considerable time on the motion materials and factum. A total of 105 hours was spent by counsel collectively to “review moving material and preparation of responding material (record, inc. affidavits, and factum)”. While I appreciate the complexity of the case and the importance of this case to the Plaintiffs and the 2SLGBTQI community, these are not costs that an unsuccessful litigant would reasonably be expected to pay for this motion. While I have no doubt that this amount of time was spent, and the exceptionally good quality of the materials and argument reflects this, the principle of reasonableness necessitates a reduction in the amount claimed. I have no information to help me understand the necessity of four lawyers working on the motion. I do not have sufficient information to assist in understanding the roles each played, and to assess the extent to which there may have been overlap in their efforts.

[19] The Defendant shall pay to the Plaintiff costs in the amount of $10,000, payable within 30 days.

“Originally signed by”

The Hon. Madam Justice T. J. Nieckarz

Released: May 29, 2024