COURT OF APPEAL FOR ONTARIO

CITATION: Benchwood Builders, Inc. v. Prescott, 2025 ONCA 238

DATE: 20250326

DOCKET: COA-24-CV-0130

Lauwers, Brown and Coroza JJ.A.

BETWEEN

Benchwood Builders, Inc. and Michael Slaven

Plaintiffs (Appellants)

and

Cynthia Prescott and David Green

Defendants (Respondents)

Adrienne Zaya and Sara J. Erskine, for the appellants

Sheldon Inkol, for the respondents

Heard: October 29, 2024

On appeal from the order of Justice Linda M. Walters of the Superior Court of Justice, dated January 3, 2024[^1] and from the costs order dated April 12, 2024.

COSTS ENDORSEMENT

[1] By reasons dated March 6, 2025, we allowed the appellants’ appeal and set aside the motion judge’s order that had dismissed their action pursuant to s. 137.1 of the Courts of Justice Act. We awarded the appellants their costs of the appeal and asked the parties for submissions on how we should treat the costs of the motion below, which the motion judge had awarded in favour of the respondents.

[2] The appellants seek full indemnity costs for the motion below in the amount of $37,812.79. The respondents contend that: (i) we should apply the presumption in s. 137.1(8) of the Courts of Justice Act and deny the appellants any costs of the motion below; or (ii) alternatively, the costs of the motion below should be made in the cause of the proceeding; or (iii) in the further alternative, any costs of the motion awarded to the appellants should not exceed $17,000.

[3] In para. 8 of their cost submissions, the appellants explain why the presumption against costs of the motion set out in s. 137.1(8) should not apply and that it would be “appropriate in the circumstances” to award them costs of the motion. They wrote:

8. In its Reasons for Decision dated March 6, 2025, this Court found that:

(a) the online reviews by the Respondents “reflect no more than an especially bitter private dispute” and are not matters of public interest;

(b) this case does not have the characteristics of a SLAPP;

(c) there are sufficient indicia of an ulterior motive and several of the impugned statements, including that Mr. Slaven is a “miserable con artist” and “scumbag”, themselves appear to be particulars of malice; and

(d) this is a case in which the straight logic of a private dispute should apply – section 137.1 does not apply.

[4] We accept that submission, which accords with the jurisprudence of this court.

[5] Accordingly, we award the appellants their costs of the motion below fixed in the amount of $30,000, inclusive of disbursements and applicable taxes, payable forthwith.

“P. Lauwers J.A.”

“David Brown J.A.”

“S. Coroza J.A.”

[^1]: The motion judge dismissed the action by way of an endorsement on January 3, 2024, with reasons for decision released on January 16, 2024. The reasons are unreported.