McIntyre v. University of Toronto, 2015 ONSC 930

COURT FILE NO.: CV-13-491756-0000

DATE: 20150210

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carolyn McIntyre, Plaintiff

AND:

University of Toronto, Tera Beaulieu and Suzanne Stewart, Defendants

BEFORE: Wilton-Siegel J.

COUNSEL: Marty Rabinovitch, for the Plaintiff

Robert Centa, for the Defendants

BY WRITTEN SUBMISSIONS

COSTS ENDORSEMENT

[1] On a Rule 21.01(l)(b) motion, the defendants were successful in having three of four allegations of defamation struck. They have provided a costs outline on a partial indemnity basis totalling $30,465.73, but request an award of $7,000 on an all-inclusive basis.

[2] The plaintiff argues that she enjoyed greater success on the motion, or that success was divided and that there should be no costs award. I do not agree. There is also no basis in the record for the plaintiff’s argument that an award of damages against the defendant would be highest in respect of the allegation that was not struck. Nor do I think that significantly more time was devoted to this issue at the hearing, or in the preparation of motion materials, than was spent on the other issues.

[3] I am also not persuaded that costs should be awarded in the cause as the plaintiff argues. The plaintiff provides no principled reason why the Court should make such an order, apart from stating that she currently works at a position that pays less than she could reasonably have expected to earn as a counselling psychologist and has limited financial means. I do not know the background to the former circumstances, if true. I have no evidence of the latter. In any event, neither provides a basis for an order of costs in the cause. More generally, I cannot determine costs on the basis of the plaintiff’s presumption of defamation on the part of the defendants based on the record before the Court. The plaintiff chose to make overly broad assertions of defamation which attract cost consequences.

[4] The plaintiff suggests a costs award in the range of $2,000 - $4,000 would be appropriate. However, she has not provided a costs outline that would indicate her own reasonable expectations. Given the extent of the plaintiff’s motion materials and the time spent at the hearing, it would have been unreasonable to expect that costs would not have been substantially above this range.

[5] In fixing costs, I have also taken into consideration the importance of the issues to both parties, the level of seniority of counsel, which was appropriate in this case, and the relative complexity of the four allegations including, in particular, the issue of the extent to which the case presents an issue of academic independence.

[6] I have also had regard to two additional factors. First, as mentioned, success was partial, not complete. The plaintiff successfully resisted the motion in regard to an issue which took somewhat more time and effort than any of the other issues. Second, the defendants acknowledge some duplication of effort by the two counsel involved. However, these factors are appropriately reflected in the reduction in the amount proposed by the defendants.

[7] Based on the foregoing, I find that the amount of costs sought by the defendants is fair and reasonable costs. It is therefore ordered that the plaintiff pay $7,000 on an all-inclusive basis as costs of the motion.

Wilton-Siegel J.

Date: February 10, 2015