ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50861
DATE: 2012/03/01

BETWEEN:

DOYLE SALEWSKI INC. and DAVID MACASKILL Plaintiffs – and – JAMES IVOR SYMONS (aka IVOR SYMONS, JAMIE SYMONS, JAMES SYMONS) Defendant

Jason Dutrizac, for the Plaintiffs
Cheryl Gerhardt McLuckie, for the Defendant

HEARD: December 1, 2011 (Ottawa)

DECISION as to costs

BEAUDOIN J.

[ 1 ] The Defendant’s Motion to Strike the original Statement of Claim and the Plaintiffs’ Motion to Amend were heard by me on December 4, 2011. The Defendant was entirely successful on both motions.

[ 2 ] Given his success which resulted in the striking of the Statement of Claim in its entirety, the Defendant now seeks his costs of the motions and of the action. While Cost Outlines were prepared and exchanged with counsel, the Defendant submits that these should be disregarded as they do not reflect all of his costs with respect to this matter.

[ 3 ] The Defendant seeks his costs on a substantial indemnity basis based on the conduct of the Plaintiffs in respect of this litigation. The amount claimed is $32,861.38, which sum takes into account the sum of $1,000.00 ordered against the Plaintiffs by Justice Kealey on October 7, 2011.

[ 4 ] The Defendant argues that the Plaintiffs took an extremely aggressive stance towards him as they sought damages in the total amount of $l,200,000.00 and other relief. He says that the Plaintiffs commenced this action to silence him and he refers to legislation being drafted to prevent this very type of action. Presumably this is a reference to the Ministry of the Attorney General’s Anti-SLAPP Advisory Panel. Strategic litigation against public participation (“SLAPP”) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. The Plaintiffs’ claims against the Defendant centered on his letters of complaint to the Office of the Superintendent in Bankruptcy and I concluded that this correspondence was protected by absolute privilege. The nature of the claims as pleaded gave rise to a reasonable suspicion that this was a “SLAPP suit”.

[ 5 ] To pursue their claims, the Defendant notes that the Plaintiffs took steps to cross-examine witnesses under the auspices of s. 163 of the Bankruptcy and Insolvency Act in search of evidence to bolster their case. Those examinations were conducted in the face of a motion to quash a third subpoena. The Plaintiffs brought an application in Quebec to seek declaratory relief that they were not acting under a conflict of interest. The Defendant says this was done for the purpose of enhancing their claim against the Defendant, which application was unsuccessful.

[ 6 ] The Defendant claims he was required to retain counsel in Quebec to deal with the proceedings in Quebec and with respect to the within action; that his Ontario counsel had to consult with that counsel to enable him to respond to the Plaintiffs’ motion to amend. The sum of $500.00 for Quebec counsel is claimed as an Agency Fee.

[ 7 ] The Defendant also maintains that the Plaintiffs significantly delayed the hearing of the within motions and that the numerous delays and series of adjournment requests resulted in additional unnecessary costs and time wasted for preparation.

[ 8 ] The Defendant delivered an Offer to Settle on July 26, 2011, whereby he offered to consent to an Order dismissing the action on payment of his costs on a partial indemnity basis to the date of acceptance of his offer. The Plaintiffs served no offer, however, counsel for the Plaintiffs advised that he was seeking instructions to make an Offer to Settle dismissing the action on a without costs basis, provided that the Defendant agrees to cease and desist making complaints to the Office of the Superintendent of Bankruptcy.

[ 9 ] In Response, the Plaintiffs note that the costs outlines exchanged at the outset of the hearing must be relied on since both counsel had put their minds to the costs of these motions. They refer to the Defendant’s partial-indemnity costs which were at that time $11,063.48 and substantial-indemnity costs which were $15,738.79 (inclusive of a nominal appearance fee, taxes and disbursements).

[ 10 ] The Plaintiffs argue that it is only now, with the benefit of hindsight and armed with a favourable result, that the Defendant now submits nearly twice the amount he (and his representatives) sought on the day of the hearing of these motions. As for the explanation that the original costs outlines did not take into account all of the costs of the action, the Plaintiffs say there was virtually no activity outside of these motions.

[ 11 ] The Plaintiffs add that the original costs outlines exchanged by counsel at the hearing of the motion reflect what is fair and reasonable given the lawyers’ experience, the amount of time and effort required of a motion to strike and opposing a motion for leave to amend. Moreover, they are within the range of what an unsuccessful party could reasonably expect to pay in accordance with Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 14579 (ON CA) , 71 O.R. (3d) 291 (Ont. C.A.).

[ 12 ] The Plaintiffs say that the adjournments were reasonable in the circumstances and that the Defendant was awarded costs where the court concluded those were warranted. They reply that the Defendant’s submissions with respect to the conduct of the s. 163 examinations ought to be disregarded as those examinations were sanctioned by a resolution of the inspectors of the Sedbergh School. The Plaintiffs conclude that the Defendant should be awarded costs on these motions on a partial-indemnity basis in the amount of $11,063.48.

Conclusion

[ 13 ] As noted, the Defendant was entirely successful and I conclude that costs ought to be assessed on a partial indemnity scale with respect to the motion to strike the original Statement of Claim and on a substantial indemnity scale with respect to the motion to amend.

[ 14 ] It was apparent to me that this litigation was launched in order to silence a Defendant who had become a thorn in the side of the Plaintiffs. Faced with an immediate motion to strike their claim, the Plaintiffs went out in search of more evidence to support their position. Whether or not the s. 163 examinations were authorized, I am satisfied that the sole purpose of those examinations was not to inquire about affairs of the bankrupt, but to try to get third parties to divulge more damaging information that could be used against the Defendant. After having done that, the Plaintiffs could not come up with anything that I could conclude was defamatory. Faced with a compelling argument that the Defendant’s communications with the Office of the Superintendent in Bankruptcy were protected by absolute privilege, the Plaintiffs then attempted to repair their claim with an amended pleading that confused the allegations of libel and slander. I ruled that it would be an abuse of process if they were given leave to amend one more time. For these reasons, the costs with respect to that effort to amend their claim should be assessed on a substantial indemnity scale.

[ 15 ] Given the nature of the claim, it might have been appropriate to fix the costs of the motion to strike on a substantial indemnity basis but neither counsel were adequately prepared with case law to address the more difficult issue of whether absolute privilege applies to statements made about third parties; namely the Plaintiff, David Macaskill. In that regard, there was a genuine issue to be argued.

[ 16 ] The Defendant’s original costs outlines provide the best estimate of what an unsuccessful party could reasonably be expected to pay. While these do not reflect the costs of the entire action, there does not appear to have been that much additional activity in the file to generate an additional $12,000.00 in fees. I am not prepared to add any additional time for Quebec counsel as I fail to see what input he could have provided on a pleadings motion.

[ 17 ] For these reasons, I fix the Defendant’s costs as follows:

For the motion to strike: $11,063.48
For the motion to amend: $ 4,429.28
For the costs of the action: $ 5,000.00 (incl. H.S.T.)

Total $20,492.76

[ 18 ] The sum of $1,000.00 previously awarded by Justice Kealey must be added to the amount set out above.

Mr. Justice Robert N. Beaudoin

Released: March 1, 2012