Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210601 DOCKET: C68144

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Geoff Grist, Pauline Grist and Brook Restoration Ltd. Plaintiffs (Appellants)

and

TruGrp Inc., Alexander McMullen and Christian Brannan Defendants (Respondents)

Counsel: Derek Bell and Katelyn Ellins, for the appellants Damien Buntsma, for the respondents

Heard: in writing

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated February 5, 2020, with reasons at 2020 ONSC 347.

Costs Endorsement

[1] On May 11, 2021, we released our decision in which we allowed the appeal, set aside the dismissal order below, and restored the action. We invited written submissions regarding the costs of appeal. We have now received and reviewed those submissions.

[2] The appellants seek their costs of the appeal in the amount of $85,740. They also seek the costs of the original motion in the amount of $36,300.

[3] The respondents submit that there should be no award of costs for either the appeal or the original motion. It is not clear on what basis the respondents submit that there should be no costs of the appeal. In terms of the original motion, the respondents rely on the presumption in s. 137.1(8) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which reads:

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

[4] There is no basis to deny costs to the appellants with respect to the appeal. In particular, there is nothing in the conduct of the appellants that would warrant such a result. The appellants were entirely successful. The dismissal of their action was set aside and the action was restored. Following the general principle that a successful party is entitled to costs, we would award the appellants their costs of the appeal.

[5] The quantum sought by the appellants, however, is excessive. It does not align with the general amount for costs that this court awards for appeals of this type, length, and complexity. In that regard, the appellants comparison of this case to Inter-Leasing Inc. v. Ontario (Minister of Revenue), 2014 ONCA 683 is inapposite. In our view, an award of costs of $25,000 for the appeal is a reasonable amount.

[6] The costs of the original motion attract somewhat different considerations, including the possible application of s. 137.1(8). On that latter point, the respondents submit that both the motion judge and this court “agreed that the impugned expressions were, arguably, matters of public interest”. That submission overstates the view expressed in our reasons. In fact, this court found that “the motion judge erred in finding the expression relates to a matter of public interest” (para. 23).

[7] The principle that should govern the disposition of the costs of the original motion was stated by Doherty J.A. in Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352, where he said, at para. 39:

The purpose underlying the costs provisions in s. 137.1 disappears when the lawsuit has none of the characteristics of a SLAPP, and the impugned expression is unrelated to a matter of public interest. In those circumstances, it is not the initial lawsuit challenging the expression that represents a potential misuse of the litigation process, but rather the s. 137.1 motion. A costs order denying a successful respondent its costs on a s. 137.1 motion, even though 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 defendants to bring meritless s. 137.1 motions.

[8] The appellants are entitled to their costs of the original motion. The amount sought of $36,300 is reasonable in light of what was involved. It also compares favourably to the amount that the motions judge awarded to the respondents of $70,000, recognizing that that amount was on a full indemnity basis.

[9] In the result, we award the appellants their costs in responding to the motion fixed in the amount of $36,300, inclusive of disbursements and HST. We also award the appellants their costs of the appeal fixed in the amount of $25,000, inclusive of disbursements and HST.

“P. Lauwers J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”