COURT FILE NO.: CV-075-542

DATE: 2015/08/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JULIE CRAVEN and JOHN CRAVEN, Plaintiffs

AND:

RICHARD CHMURA et al, Defendants

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
M. Jaeger, for the Plaintiffs

R. Simmons and B. Wiseman, for the Defendants Michael Osidacz and Elizabeth Osidacz

HEARD: June 12, 2015

ENDORSEMENT

Background

[1] The background to this motion is very tragic by any measure.

[2] The plaintiffs Julie Craven and her father John Craven brought an action against a number of defendants, including Richard Chmura, for damages, including punitive and aggravated damages, for libel and intrusion upon seclusion, as well as for an interlocutory and permanent injunction.

[3] The action was dismissed as against the defendants other than Richard Chmura, including the responding parties to this motion Michael Osidacz and Elizabeth Osidacz, by Justice Whitten on a motion for summary judgment, and as a result Richard Chmura remained as the sole defendant through trial.

[4] The action concerned the publication on certain internet sites created, controlled and maintained by Richard Chmura of numerous statements disparaging of Julie Craven and John Craven as well as the posting on YouTube of certain videos containing depictions of and statements about the defendants, accessed through links on Richard Chmura’s websites.

[5] The creation of the websites by Richard Chmura and the posting of the disparaging statements and videos followed upon extremely tragic circumstances involving the brutal killing of Julie Craven’s eight-year-old son Jared by Julie Craven’s estranged husband Andrew Osidacz in March 2006. After he killed his son Jared, Andrew Osidacz went to Julie Craven’s residence and held her hostage, using a butcher knife, for 45 minutes before he was shot and killed by the police before he could plunge the butcher knife into Ms. Craven’s neck.

[6] Richard Chmura was a brother-in-law to Andrew Osidacz, being previously married to Andrew Osidacz’s sister.

[7] Michael Osidacz is a brother of Andrew Osidacz. Elizabeth Osidacz is the mother of Andrew Osidacz and Michael Osidacz.

[8] Richard Chmura set up his websites in or prior to August 2007 and began posting poems and other writings as well as videos which sought to vilify and humiliate Julie Craven and John Craven and other members of their family. It is not necessary for the purposes of this Endorsement to recount the nature of the statements and depictions concerning the plaintiffs Julie Craven and John Craven on the websites maintained by Richard Chmura. It is sufficient to describe them as despicable, heartless and outrageous. Many of the statements appeared to be designed to blame Julie Craven for the deaths of her son and Andrew Osidacz, to glorify Andrew Osidacz, and to seek to explain away and excuse his violent actions.

[9] The action was tried with respect to the claims for libel and intrusion upon seclusion before a jury. For oral reasons I determined, as a question of law, that 30 statements that appeared on the websites maintained by Richard Chmura were capable of being libelous of Julie Craven and John Craven or one of them. I also found as a matter of law that two actions of Richard Chmura were capable of giving rise to a claim for intrusion upon seclusion.

[10] The jury found for the plaintiffs on a general verdict for defamation and awarded both general and punitive damages against Richard Chmura in favour of each of Julie Craven and John Craven and awarded general and punitive damages against him in favour of Julie Craven for intrusion upon seclusion.

[11] Following the jury’s verdict I granted a permanent injunction, enjoining Richard Chmura from publishing any statements regarding the plaintiffs Julie Craven and John Craven.

[12] The websites did not, on their face, identify Richard Chmura as being responsible for their creation and maintenance. They did however ascribe certain writings on the websites to certain members of Andrew Osidacz’ family, including Michael Osidacz.

[13] The Statement of Claim, at paragraph 11, alleged that all of the named defendants, including Michael Osidacz and Elizabeth Osidacz, “operate, support and/or have provided written materials for two websites” which were identified in the Statement of Claim by their URL’s (Uniform Resource Locators).

[14] Michael Osidacz and Elizabeth Osidacz each delivered a Statement of Defence in which they denied, inter alia, the allegations made at paragraph 11 of the Statement of Claim. They then brought motions for summary judgment, seeking dismissal of the action as against them. Justice Whitten granted the motions brought by Michael Osidacz and Elizabeth Osidacz and dismissed the action against each of them on November 20, 2008.

[15] By Costs Judgment dated January 26, 2009, Justice Whitten fixed Michael Osidacz’ costs at $12,000 inclusive of disbursements and the costs of Elizabeth Osidacz at $24,000, also inclusive of disbursements. He ordered that the costs of Michael Osidacz and Elizabeth Osidacz not be paid forthwith but rather be paid at the “resolution of the matter” and directed that the plaintiffs may move before the trial judge that their costs be paid by Richard Chmura “who by his actions ensnared these defendants [i.e. Michael Osidacz and Elizabeth Osidacz] in this litigation.”

[16] As invited by Justice Whitten in his Costs Judgment, the plaintiffs have brought a motion for an Order that the costs awarded to defendant Richard Chmura, Michael Osidacz and Elizabeth Osidacz be paid by the defendant Richard Chmura.

Positions of the Parties

[17] Although not identified as such in their motion materials, what the plaintiffs seek as against Michael Osidacz and Elizabeth Osidacz is a “Sanderson Order”, being an order that an unsuccessful defendant but not the plaintiff or plaintiffs pay the costs of a successful defendant or defendants.

[18] The plaintiffs have filed an affidavit of Julie Craven in support of their motion. In her affidavit Ms. Craven stated her belief that the only way that Richard Chmura could have obtained certain material which he posted on his websites was from the persons originally in possession of them, including Michael Osidacz and Elizabeth Osidacz. She also stated her belief that each of them actively supported Richard Chmura in his efforts to post the libelous materials on the Internet, and in particular, one or other of them directly or indirectly provided personal and confidential information obtained throughout discovery in the separate wrongful death court proceeding to Richard Chmura in breach of the deemed undertaking rule.

[19] Ms. Craven also stated her belief that either Richard Chmura, Michael Osidacz or Elizabeth Osidacz used information obtained from the wrongful death proceeding to attempt to have her social assistance, including her prescription drug benefits, cut off by the Province of Ontario.

[20] Ms. Craven alleged that certain photographs taken in the family residence where the forcible confinement of her by Andrew Osidacz took place, used by Richard Chmura for a video posted to his websites, were taken on a camera belonging to Elizabeth Osidacz, and must have been taken after the September 24, 2010 Order of Justice Kent that no other Osidacz or Craven family members shall have access to those premises once they were handed over to the estate trustee Michael Osidacz. She says that this confirms that Richard Chmura was acting in concert with Michael Osidacz and Elizabeth Osidacz in the operation of the websites or the production of materials for them. She also points to Elizabeth Osidacz having obtained abstract title searches which were appended to an affidavit of Richard Chmura dated February 28, 2011 as confirming her support for Richard Chmura in the action.

[21] In response to the plaintiffs’ motion, Michael Osidacz filed an affidavit on his own behalf and on behalf of Elizabeth Osidacz deposing that, having spoken with his mother Elizabeth Osidacz, neither of them care whether the plaintiffs or Richard Chmura pay the costs awarded to them, but their sole concern is that the costs are actually paid. He stated his “understanding” that Richard Chmura does not have the financial wherewithal to pay the costs awarded to them by Justice Whitten.

[22] In his affidavit, Michael Osidacz disputed the allegations of Julie Craven that they provided documents or other material to Richard Chmura for use on his websites or to seek to terminate her social assistance benefits, or that they supported or acted in concert with Richard Chmura in relation to the defence of the action.

[23] Richard Chmura did not file an affidavit in response to the plaintiffs’ motion and did not attend on argument of the motion. He did file a written letter addressed to the court dated June 1, 2015 requesting an order pursuant to Rule 2.1 .01 and/or 2.1 .02 of the Rules of Civil Procedure dismissing the plaintiffs’ motion as being, on its face, frivolous or vexatious or otherwise an abuse of the process of the court. By hand-written endorsement dated June 12, 2015, I denied Richard Chmura’s request for dismissal of the motion pursuant to Rule 2.1 .01 and/or 2.1 .02.

Analysis

[24] The leading authority on the test for determining whether a Sanderson order is appropriate is the case of Moore (Litigation Guardian of) v. Wienecke (2008) ONCA 162 (C.A.). The court in that case stated at para. 41 that, as a first step, courts ask a threshold question, namely whether it was reasonable to join the several defendants together in one action. If the answer to that question is Yes, the courts must use their discretion to determine whether a Sanderson order would be just and fair in the circumstances.

[25] With respect to the threshold question, Whitten, J. found at paragraph 13 of his Costs Judgment that, as of the filing of the Statement of Claim in November 2007, the plaintiffs did not have an evidentiary basis for their assertions as against Michael Osidacz and Elizabeth Osidacz and that situation never improved. The action was commenced within three months of the initial publication of the offending websites, and accordingly, there was no danger of a limitation period expiring before evidence of any involvement of Michael Osidacz and Elizabeth Osidacz in the posting or publication of the defamatory material could be obtained. In any event, the discoverability principle would apply to prevent the running of any limitation period to commence in respect of a possible action against Michael Osidacz and Elizabeth Osidacz until any such involvement on their part was discovered. There was therefore no necessity to join Michael Osidacz and Elizabeth Osidacz in the action at the time of the Statement of Claim.

[26] On November 12, 2007, being ten days after issuance of the Statement of Claim, Richard Chmura swore an affidavit that he was, and had always had been, the sole owner, creator and publisher of the websites and that none of the other named defendants in the action, including Michael Osidacz and Elizabeth Osidacz, acted in these matters with him. In his Statement of Defence and Counterclaim dated June 16, 2008, Richard Chmura pleaded that he acted alone to create and operate the offending websites. In the circumstances, it is not possible to find that it was reasonable to join Michael Osidacz and Elizabeth Osidacz in the action against Richard Chmura, given that the plaintiffs were in possession of no evidence that they were involved in the publication of the defamatory statements on the websites. Moreover, the determination that the plaintiffs were not in possession of any such evidence has already been made by Whitten, J. in his Costs Judgment which was not appealed. Accordingly, the threshold question in Moore has not been satisfied, and it is neither appropriate nor necessary to go on to consider the discretionary question of whether a Sanderson order would be just and fair in the circumstances.

[27] Even if I am wrong in finding that it was not reasonable to join Michael Osidacz and Elizabeth Osidacz in the action, I would not exercise my discretion to grant a Sanderson order against them in favour of the plaintiffs.

[28] The Court of Appeal in Moore at paras. 46-50 identified a number of factors that are relevant to a decision whether to exercise the discretion to grant a Sanderson order, while indicating that the factors need not be applied mechanically in every case. The factors identified by the court in Moore are as follows:

(a) whether the defendants at the trial tried to shift responsibility onto each other, as opposed to concentrating on meeting the plaintiffs’ case;

(b) whether the unsuccessful defendant caused the successful defendant to be added as a party;

(c) whether the two causes of action were independent of each other; and

(d) the ability of the successful defendants to collect costs from the unsuccessful defendant.

[29] In Orkin, The Law of Costs (2nd ed), at para. 209 it is stated “a Sanderson order should not be made if there is a real risk that the successful defendant will not recover costs against the unsuccessful defendant because of the latter’s impecuniosity,” citing the case of Widdis v. Hall 1995 7151 (ON SC), [1995] O.J. No. 206 (Ont. Ct. Gen. Div.).

[30] In the case of 1483677 Ontario Ltd. v. Crain (2010) ONSC 1353 (S.C.J.), Himel, J. stated “in deciding whether to grant a Bullock or Sanderson order, the risk of not recovering is a determining factor.”

[31] In the present case I accepted the submissions of the plaintiffs, following trial, that there was a real possibility that the damages awarded by the jury would not be paid by the unsuccessful defendant Richard Chmura in granting the permanent injunction against him. I found, on the basis of submissions by plaintiffs’ counsel, that he was not gainfully employed and there were three outstanding costs awards against him totaling $8,600 plus interest. In my view, it would not be just and fair to shift the risk of collecting the costs awarded to Whitten, J. from the plaintiffs to Michael Osidacz and Elizabeth Osidacz in all of the circumstances.

[32] In my view, it would be inappropriate to carry out an inquiry as to whether the conduct of the Michael Osidacz and Elizabeth Osidacz prior to or following the dismissal of the action against them, in allegedly supporting Richard Chmura in setting up or contributing to the offending websites or in defending the plaintiffs’ claims, was such as to support the making of a Sanderson order. The existence of alleged conduct on the part of successful defendants, not having to do with the conduct of the action itself, was not identified in Moore as a factor which should guide the court in the exercise of its discretion. Moreover, to carry out such an inquiry could require the court to conduct a protracted hearing into contested facts. Such a prospect was recognized by the plaintiffs in their Notice of Motion seeking an order for a trial of an issue under rule 37.13(2)(b) if necessary. In my view, it is not appropriate to conduct such a protracted inquiry for a determination on costs.

[33] Although there is cause to have much sympathy for the plaintiffs in their situation, the exercise of my discretion must not be carried out on the basis of sympathy, but rather on the basis of legal principle as laid down by the authorities, which are binding on me.

[34] For the foregoing reasons I would decline to issue a Sanderson order.

[35] As indicated above, Richard Chmura did not attend to argue against an order that he be required to indemnify the plaintiffs in respect of the costs awarded by Whitten, J. to Michael Osidacz and Elizabeth Osidacz. Moreover, Whitten J. has already made a finding that Richard Chmura, by his actions, “ensnared" Michael Osidacz and Elizabeth Osidacz in the litigation.

[36] Under the circumstances it is appropriate to make a Bullock order entitling the plaintiffs to recover from the defendant Richard Chmura the costs awarded against them by Whitten, J. in favour of Michael Osidacz and Elizabeth Osidacz, together with all applicable interest thereon.

Costs of the Motion

[37] Counsel for the parties have each submitted a Costs Outline in respect of the costs of the motion as between the plaintiffs and Michael Osidacz and Elizabeth Osidacz,

[38] The partial indemnity costs of Michael Osidacz and Elizabeth Osidacz, as set forth on their Costs Outline, is $4,418.40 plus disbursements of $525.27 and HST on the fee portion.

[39] The plaintiffs’ partial indemnity costs as set forth on their Costs Outline are $3,987.50 in respect of fees, disbursements in the sum of $402 and HST on the fee portion. The costs of the plaintiffs of the motion are therefore roughly equivalent to those of Michael Osidacz and Elizabeth Osidacz and are indicative of their reasonable expectations for their exposure to a costs award should they be unsuccessful on their motion.

[40] In all of the circumstances, I would award costs of the motion against the plaintiffs Julie Craven and John Craven in favour of Michael Osidacz and Elizabeth Osidacz fixed in the sum of $4,500, inclusive of fees, disbursements and HST. As Richard Chmura played no part in causing the plaintiffs to bring the motion, this amount is not to be included in the Bullock order against him.

D.A. Broad

Date: August 4, 2015