Ontario Superior Court of Justice
Court File No.: CV-22-88853
Date: 2025/04/04
Between:
Dr. Frank Fowlie, Plaintiff
-and-
David Spinney, Ahmed Shamiya, and Mara Schiavulli, Defendants
Before: H. Williams
Counsel:
- Andre Marin and Adam P. Strombergsson De Nora, Counsel for the Plaintiff
- Justin Safayeni and Olivia Eng, Counsel for the Defendant David Spinney
- Ahmed Shamiya, Self-Represented Defendant
- Kevin Caron and Logan Stack, Counsel for the Defendant Mara Schiavulli
Heard: In Writing
Costs Endorsement
Overview
1The three defendants brought anti-SLAPP motions, which I granted.
2I found that the action arose from expressions that related to a matter of public interest within the meaning of section 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”). Under s. 137.1(4)(a) of the Act, I found that the plaintiff, Frank Fowlie, had shown that there were grounds to believe that the action had substantial merit and that two of the defendants, David Spinney and Ahmed Shamiya, had no valid defence. Having made these findings, I nonetheless granted the motions because Mr. Fowlie failed to satisfy me under s. 137.1(4)(b) of the Act that the harm suffered or likely to be suffered was sufficiently serious that the public interest in permitting his action to proceed outweighed the public interest in protecting the expression.
Mr. Fowlie’s Position
3Mr. Fowlie concedes the application of a statutory presumption that full indemnity costs will be awarded when anti-SLAPP motions are granted, although, as I will explain below, he argues that most of Mr. Spinney’s costs should be awarded on a partial indemnity scale.
4Mr. Fowlie argues that the costs requests of Mr. Spinney and the defendant Mara Schiavulli are excessive in relation to the $825,000 in damages he sought in his action. He says the defendants’ claims for costs represent 37.15 percent of the $825,000 and that Mr. Spinney’s claim alone represents 23.3 percent.
5Mr. Fowlie concedes, however, that both Mr. Spinney and Ms. Schiavulli are entitled to the full indemnity costs they requested for two motions to strike brought in the context of the anti-SLAPP motion, $18,402.55 for Mr. Spinney and $17,776.50 for Ms. Schiavulli.
6Mr. Fowlie also does not take issue with the $69,950.82 Ms. Schiavulli claimed for the anti-SLAPP motion.
7Mr. Fowlie argues, however, that there was considerable overlap between the work of the Spinney and the Schiavulli legal teams, and that he should not be required to pay twice for what was essentially the same work.
8So that he does not overpay, Mr. Fowlie proposes that Mr. Spinney’s costs be awarded on a partial indemnity basis. With respect to quantum, Mr. Fowlie argues that the $173,848.95 in full indemnity costs requested by Mr. Spinney for the action, including the anti-SLAPP motion, should be reduced by the $69,950.82 claimed by Ms. Schiavulli. The difference, $103,898.13, is very close to 60 per cent of the full indemnity costs requested by Mr. Spinney, and also very close to the amount of the partial indemnity costs claimed by Mr. Spinney.
9Mr. Fowlie argues that Mr. Shamiya, who was assisted by a lawyer for a cross-examination but was otherwise self-represented, should not be awarded any costs for the time he personally devoted to the case.
Mr. Spinney’s Claim for Costs
10As I have already noted, Mr. Spinney seeks costs of $173,848.95 for Mr. Fowlie’s action, including the anti-SLAPP motion. (The $18,402.55 for the two motions agreed to by Mr. Fowlie is in addition to the $173,848.95.)
11Mr. Spinney argues that his costs request is reasonable. He submits that the motions, and the anti-SLAPP motion in particular, were complex, the record was voluminous and that seven witnesses were cross-examined. Mr. Spinney argues that it was entirely appropriate for the defendants to retain separate counsel and that the defendants made efforts not to duplicate work.
12Mr. Spinney also argues that my finding that Mr. Fowlie’s action “bears the hallmarks of a SLAPP suit” weighs strongly in favour of an award of full indemnity costs.
Ms. Schiavulli’s Claim for Costs
13Ms. Schiavulli argues that her costs request is reasonable, given the complexity and importance of the issues and the $825,000 in damages claimed by Mr. Fowlie.
14Ms. Schiavulli also argues that Mr. Fowlie contributed to the expense of the proceeding by taking unnecessary steps and adopting unreasonable positions. Ms. Schiavulli says that Mr. Fowlie took steps to initiate a summary judgment motion after the defendants had started their anti-SLAPP motions and that he unreasonably refused a request by Mr. Shamiya for an extension of time to file motion materials. Both positions on the part of Mr. Fowlie necessitated case conferences.
Mr. Shamiya’s Claim for Costs
15Mr. Shamiya filed a costs outline which showed that he is claiming $5,367.50 in fees, inclusive of HST, paid to a lawyer for assisting him with Mr. Fowlie’s cross-examination of him. Mr. Shamiya also seeks $493.98 in disbursements for travel to Ottawa.
16Mr. Shamiya also claims costs for the time he personally devoted to the defence of Mr. Fowlie’s action and the anti-SLAPP motion. Mr. Shamiya seeks $20,625 for 165 hours at $125/hour.
17Mr. Shamiya sent an email to the court in which he said that he would rely on the written costs submissions of the other defendants in support of his claim for costs.
Analysis
Costs: Some Legal Principles
18Section 131(1) of the Courts of Justice Act provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court.
19Although discretionary, a court must fix costs on a principled basis. (Davies v. Clarington (Municipality) et al., 2009 ONCA 722, para 40.)
20Rule 57.01(1) of the Rules of Civil Procedure sets out the factors the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, in exercising its discretion under section 131 of the Courts of Justice Act to award costs. These factors include the principle of indemnity, including the experience of the lawyer involved, the hourly rate and the hours spent. They include the complexity of the proceeding and the importance of the issues. They also include certain conduct of the parties, including conduct that may have shortened or lengthened the duration of the proceeding or that was improper, vexatious or unnecessary.
21The Court of Appeal has made it clear that the fixing of costs does not begin and end with a calculation of hours times rates. It says the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant. (Boucher v. Public Accountants Council for the Province of Ontario, para 26.)
22I referred above to a statutory provision. Section 137.1(7) of the Courts of Justice Act provides that if a judge dismisses an action on an anti-SLAPP motion, the moving party is entitled to costs on the motion and in the action on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
What is the Appropriate Scale of Costs?
23I am satisfied that in accordance with section 137.1(7), the defendants are entitled to costs of the motion and the action on a full indemnity basis.
24Although Mr. Fowlie has argued that Mr. Spinney should be awarded his costs on a partial indemnity basis, Mr. Fowlie offered no justification for his position that Ms. Schiavulli is entitled to full indemnity costs while Mr. Spinney should receive only partial indemnity costs. In my view, Mr. Fowlie’s arguments in respect of work overlap between the two legal teams and the costs to be awarded to Mr. Spinney relate not to the scale of costs to be awarded, but the amount of costs.
What is the Appropriate Amount of Costs to be Awarded to Mr. Spinney and Ms. Schiavulli for the Action and the Anti-SLAPP Motion?
25As I noted above, Mr. Fowlie has conceded the costs requests of Mr. Spinney and Ms. Schiavulli for the two motions to strike.
26With respect to the balance of the requested costs, Mr. Fowlie does not take issue with either the hourly rates charged by counsel for Mr. Spinney and Ms. Schiavulli or the number of legal professionals whose time is reflected in their respective bills of costs.
27Mr. Fowlie’s only issue with the scope and amount of the work undertaken by the two legal teams was that some of the same ground was covered by both teams.
28While I accept Mr. Fowlie’s submission that there was some duplication of the work done on behalf of Mr. Spinney and on behalf of Ms. Schiavulli, I do not accept Mr. Fowlie’s suggestion that the defendants should have retained the same counsel.
29Even if I did accept Mr. Fowlie’s premise, I would not accept his submission that Mr. Spinney, presumably because his claim for costs is greater than that of Ms. Schiavulli, should bear the full penalty for any duplication.
30In my view, as both legal teams owed a duty to their particular client, some duplication of work was inevitable. Each team needed to be familiar with the law, for example, and to ensure that the facts and the law applicable to their client’s position were before the court. Further, it was evident to me that the defendants made considerable efforts to avoid duplicating the other’s work where it was possible to do so. For example, for the anti-SLAPP motion, the lawyers for Mr. Spinney and Ms. Schiavulli divided responsibility for cross-examining the major witnesses, Mr. Spinney and Ms. Schiavulli referred to the other’s factum on several occasions and Mr. Spinney’s counsel presenting the lion’s share of the submissions on the anti-SLAPP motion and presenting the reply submissions. The parties also divided responsibility for the written and oral arguments on the two motions.
31It does not lie in Mr. Fowlie’s mouth to second-guess the defendants’ decision to retain separate counsel in this case. Parties have the right to be represented by counsel and to select the lawyer who will represent them. Further, it was not at all clear in this case that there was no conflict among the defendants. In the statement of claim, Mr. Fowlie pleaded that each of the defendants made multiple statements he alleged to be defamatory. The defendants’ positions were not identical. On the anti-SLAPP motion, different findings could have been made in respect of whether Mr. Fowlie’s claims against each of the defendants had merit, and different findings were in fact made about whether each of the defendants had a valid defence. It was also conceivable that, at trial, more than one of the defendants could have been found to be liable to Mr. Fowlie, in which case the apportionment of damages would have been an issue that could have pitted the defendants against each other.
32It was entirely appropriate for the defendants to choose to be independently represented and, in Mr. Shamiya’s case, to be self-represented.
33Although there was some duplication of work by Mr. Spinney’s and Ms. Schiavulli’s counsel, I agree with Mr. Spinney’s counsel’s observation that even if the defendants had been represented by the same lawyer, most of the same work would have been required in any event. It still would have been necessary to respond in a statement of defence to each of the allegations in Mr. Fowlie’s statement of claim, a separate affidavit for each defendant still would have been required for the anti-SLAPP motion and each defendant still would have required representation to prepare for their cross-examination and to be cross-examined.
34In Brian T. Fletcher Construction Co. Ltd. v. 1707583 Ontario Inc., Master Albert said that a party facing two different moving parties accepts the risk of being accountable for costs if unsuccessful against both of them. I agree. Master Albert also said that if there is a duplication of issues, it would be reasonable to expect the costs of one moving party to be significantly lower than the costs of the moving party taking the lead. As I have already noted, Mr. Spinney’s counsel took the lead on the anti-SLAPP motion and Ms. Schiavulli’s costs are, in fact, significantly lower.
35In Gill v. Maciver, 2022 ONSC 6169, there were 23 different defendants represented by 13 sets of counsel. The judge ordered a total of more than $1.1 million in costs and rejected the plaintiffs’ argument that costs should be reduced on account of duplication of efforts by counsel. The judge noted that each anti-SLAPP motion, as in this case, had a slightly different factual underpinning which made separate arguments and considerations necessary. The judge also noted that, as in this case, the separate motions were “inevitably the product of having been claimed against by the responding parties/plaintiffs in the same action but with respect to different statements and/or conduct” (para. 15). The Court of Appeal denied leave to appeal the costs decision (Gill v. Maciver, 2024 ONCA 126).
36Mr. Fowlie did not file any cases in support of his argument that it would be appropriate to reduce the costs of one defendant by the amount awarded to another defendant. This would be an unfair approach in this case, where, although Mr. Spinney’s claim for costs is much higher than Ms. Schiavulli’s, his legal team did more of the work.
37I am satisfied that Mr. Spinney and Ms. Schiavulli made reasonable efforts to avoid duplication and that they succeeded in doing so. In the circumstances, it is appropriate to award both of these defendants full indemnity costs in an amount that is fair and reasonable for Mr. Fowlie to pay, having regard to the factors listed in Rule 57.01(1) of the Rules of Civil Procedure.
38Although Mr. Fowlie agreed to pay Ms. Schiavulli the $69,950.82 she has requested, I take from his costs submissions that this agreement was conditional upon Mr. Spinney’s costs being reduced by the same amount. Therefore, rather than holding Mr. Fowlie to his agreement to pay the $69,950.82, I will consider whether it is a fair and reasonable amount for Mr. Fowlie to pay. I will consider the same issue in respect of Mr. Spinney’s claim for costs.
39As I noted above, Mr. Fowlie does not take issue with the hourly rates charged by the legal professionals who worked for Mr. Spinney or Ms. Schiavulli. The rates charged by Mr. Spinney’s Toronto-based counsel were higher than those of Ms. Schiavulli’s Ottawa-based counsel. Other than a law clerk who did work for Mr. Spinney and whose rate was as high as $350/hour but who docketed only 1.8 hours, I am prepared to accept that the rates charged by both law firms are in a reasonable range for a motion of this nature heard in Ottawa. I feel compelled to observe here that the advocacy demonstrated by both the senior and the more junior counsel on both of the defendants’ teams was equal to that of counsel with many more years at the bar.
40Work, including a portion of the oral argument, was appropriately delegated to junior lawyers on both legal teams.
41I note that neither Mr. Spinney’s nor Ms. Schiavulli’s costs outlines include the long list of timekeepers that is a common but unfortunate feature of many costs outlines.
42In my view, the anti-SLAPP motions were complex. Even though the Court of Appeal has said repeatedly that a “deep dive” into the evidence is to be avoided on these motions, the parties in this case were required to take at least a shallow dive into a large pool of evidence. As Mr. Spinney’s counsel aptly put it, the case involved “a sprawling 50-page claim impugning dozens of statements made by three different defendants across 27 different publications.” As with all anti-SLAPP motions, the issues included whether the defendants’ expressions were matters of public interest, whether the claim had merit, whether the defendants had any one of several pleaded defences, a consideration of the harm to the plaintiff and whether the public interest favoured the action or the protection of the expression.
43The issues were important. Mr. Fowlie had claimed $825,000 in damages against individual (as opposed to corporate or institutional) defendants. A claim of this magnitude has implications. Mr. Shamiya, for example, said that his fiancé’s family had paused their wedding because of the lawsuit. Mr. Shamiya explained that, in his culture, to marry, he was required to show that he could support a family. I accept the defendants’ submission that the issues were important not only for them personally but also for the wrestling community as a whole, because of the impact Mr. Fowlie’s action could have had on the willingness of members of the community to speak out when, rightly or wrongly, they perceived injustice.
44I am satisfied that Mr. Fowlie increased the cost of the proceeding by raising issues that needed to be sorted out at case conferences, including a threatened summary judgment motion and refusing to consent to a request for a minor extension of time.
45Mr. Fowlie filed a costs outline that showed that his counsel’s costs for the anti-SLAPP motion and the two subsidiary motions totalled $115,988.27, about 130 percent of the total costs claimed by Ms. Schiavulli and about 60 percent of the total costs claimed by Mr. Spinney.
46Mr. Fowlie does not argue that Ms. Schiavulli’s costs were excessive. Unfortunately, I am unable to use Mr. Fowlie’s costs outline to assist me in assessing the reasonableness of Mr. Spinney’s costs. Mr. Spinney and Ms. Schiavulli delivered their costs outlines before the hearing of the motions, in accordance with the intention of Rule 57.01(6) of the Rules of Civil Procedure. At the hearing, I ordered Mr. Fowlie and Mr. Shamiya to deliver their costs outlines. Mr. Shamiya’s outline was uploaded to Caselines within a week. Mr. Fowlie did not serve his costs outline until three days after my decision on the anti-SLAPP motion was released.
47Costs outlines are intended to be prepared before a hearing and certainly before the parties know the outcome of a proceeding and, consequently, whether they will be paying or receiving costs. These outlines are obviously less useful if they are not served until after a motion or a proceeding has been decided. If outlines are served once the outcome is known, there will be a temptation for the party which knows it will be paying costs to file an outline that reflects minimal costs, so that it will be in a better position to argue that the successful party’s costs are excessive. A law firm may also decide to charge a client a lower amount following a losing cause, and prepare a costs outline that reflects the discounted amount, rather than the amount that would have been charged if the client had been successful. I am not finding that either scenario exists in this case. I do not know. But in these circumstances, I cannot look to Mr. Fowlie’s costs outline to say that Mr. Spinney’s costs are too high, because I cannot be satisfied that its timing did not affect its content.
48Having considered the submissions of the parties, including their costs outlines, the defendants’ efforts to avoid unnecessary duplication, the factors under Rule 57.01(1) of the Rules of Civil Procedure and the section 137.1(7) of the Courts of Justice Act presumption, I am satisfied that Mr. Spinney’s and Ms. Schiavulli’s claims for full indemnity costs of $173,848.95 and $69,950.00 respectively are fair and reasonable amounts for Mr. Fowlie to be ordered to pay.
Mr. Shamiya
49Mr. Fowlie agrees to pay Mr. Shamiya $5,861.48, which would cover the cost of the lawyer Mr. Shamiya retained for his cross-examination and Mr. Shamiya’s claimed disbursements.
50As noted above, Mr. Fowlie argues that Mr. Shamiya should not be awarded any costs for the time he personally devoted to the case.
51Mr. Fowlie relies on Fong v. Chan, para 26, in which Sharpe J.A. said that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of litigants who retain counsel. Noting that all litigants suffer a loss of time through their involvement in the legal process, Sharpe J.A. said that the self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. He said “costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity” (para. 26). He also said that self-represented litigants should only be awarded a "moderate" or "reasonable" allowance for the loss of time devoted to preparing and presenting the case.
52Mr. Fowlie argues that Mr. Shamiya’s submissions were “scant at best” and that Mr. Shamiya relied almost exclusively on the submissions made by counsel for Mr. Spinney and Ms. Schiavulli. Mr. Fowlie argues that the time Mr. Shamiya devoted to the action and the motions was no greater than that of a typical litigant.
53Mr. Shamiya made no submissions with respect to costs, other than to write in an email that he would rely on the submissions of Mr. Spinney and Ms. Schiavulli. In his reply costs submissions, Mr. Spinney asked the court not to give effect to Mr. Fowlie’s suggestion that Mr. Shamiya should not be compensated for his time, particularly given that I had found that Mr. Fowlie’s action bore the hallmarks of a SLAPP suit.
54There is no evidence, and Mr. Shamiya has not argued that because of the time he devoted to the litigation he, to quote from Fong, “incurred an opportunity cost by forgoing remunerative activity.” I am bound to follow Fong and also Mustang Investigations v. Ironside, 2010 ONSC 3444, in which the Divisional Court held that even nominal costs may not be awarded to a self-represented litigant where the self-represented litigant has not shown that the time devoted to the litigation caused financial loss.
55In these circumstances, there is no basis for awarding Mr. Shamiya compensation for his time.
Disposition
56For the reasons above, I make the following orders with respect to costs:
- Mr. Fowlie shall pay Mr. Spinney full indemnity costs in the amount of $190,000.00 ($173,848.95 + $18,402.55, rounded down slightly), inclusive of disbursements and HST;
- Mr. Fowlie shall pay Ms. Schiavulli full indemnity costs in the amount of $87,500.00 ($69,950.82 + $17,776.50, rounded down slightly), inclusive of disbursement and HST; and
- Mr. Fowlie shall pay Mr. Shamiya full indemnity costs of $6,000.00 ($5,367.50 + $493.98, rounded up slightly), inclusive of disbursements and HST.
Justice H. Williams
Date: April 4, 2025