Court File and Parties

Court File No.: CV-14-502946 Date: 2016-09-23 Superior Court of Justice - Ontario

Re: Senator Tobias Enverga Jr., Plaintiff And: Balita Newspaper Balita Media Inc., Tess Cusipag, Romeo P. Marquez (a.k.a. Romy Marquez) and Carlos Padilla, Defendants

Before: Lederman J.

Counsel: Howard Winkler and Eryn Pond, for the Plaintiff Roy M. Respicio, for the Defendants, Balita Newspaper, Balita Media Inc. and Tess Cusipag

Heard: Written Submissions

Costs Endorsement

[1] Having been successful in obtaining summary judgment against Cusipag and the Media Defendants, the plaintiff Senator Enverga seeks his costs of the action and summary judgment motion on a substantial indemnity basis fixed in the amount of $100,640 for fees and $8,482.98 for disbursements plus applicable taxes.

[2] The defendants take issue with a number of the docket entries in the plaintiff’s bill of costs submitting that time spent with respect to drafting a proposed apology should not be permitted as no formal discussions or exchange of communications took place between the parties with regard to an apology; that some of the work was repetitive and unnecessary; that some of the legal research could have been more expeditiously accessed through Professor Raymond Brown’s text, the Law of Defamation in Canada, and a simple on-line search; that some of the time spent in performance of certain duties could have been conducted by a clerk rather than by junior counsel; that junior counsel’s attendance at cross-examinations and at the summary judgment motion was redundant considering that senior counsel was able to maintain carriage of these proceedings on his own; and, that given the fact that this action was disposed of by way of summary judgment over two days, the costs should reflect the summary manner by which this matter was resolved rather than through a full length trial. As a result, the defendants submit on this basis alone, the costs should be reduced significantly.

[3] The defendants do acknowledge that there is authority for the court to impose a substantial indemnity award in favour of the plaintiff, particularly in light of the findings made in paragraph 46 of the Reasons for Summary Judgment about the conduct of the defendants.

[4] In Leenen v. Canadian Broadcasting Corp., [2001] O.J. No. 2229 at para.38, the Court of Appeal held that serious misconduct can give rise to both an award of aggravated and punitive damages and an award of solicitor and client costs.

[5] The defendants submit, however, that there should not be substantial indemnity costs throughout. Rather, they state that the costs relating to the commencement of the action and the examinations for discovery should be on a partial indemnity scale. They submit that one of the major witnesses for the defendants and the source of the articles that were found to be defamatory, Carlos Padilla, died in December, 2014 after the discovery of Cusipag in October, 2014. Up until then, they argue that the factors that support a substantial indemnity award against the defendants do not apply in that at prior to Padilla’s death they were not engaged in a hopeless pursuit of the defences of justification and fair comment. Their position is that if any part of the award is to be based on a substantial indemnity scale, it should be limited to the summary judgment motion stage of the proceeding.

[6] On such a division of scale of costs, they accordingly submit that partial indemnity fees for the commencement of the action and the conduct of examinations for discovery should be $10,000 and that if a substantial indemnity award is to be made with respect to the summary judgment motion stage, that amount should be $66,023.59.

[7] Therefore, the defendants submit that the total costs awarded to the plaintiff should amount to $76,023.59.

[8] With respect to the defendants’ first complaint concerning the dockets, a judge in fixing costs of a proceeding is not assessing costs as if he or she were performing the functions of an assessment officer and doing a line by line analysis of docket entries: Apotex Inc. v. Egis Pharmaceuticals, [1991] O.J. No. 1232 (OCJ(GD)) at paras. 15-16.

[9] The issue is what costs are entirely reasonable, fair and proportionate in the circumstances of this proceeding and a degree of deference ought to be afforded to counsel in relation to the time spent on services and the engagement of junior counsel to ensure success in the proceeding.

[10] Given the seriousness of the defamatory allegations against Senator Enverga and the determination of the defendants to pursue a scurrilous attack upon his reputation even in the face of having no evidence whatsoever to support the allegations, it cannot lie in their mouths to quarrel with the time spent and research conducted by the plaintiff in seeking vindication in this proceeding.

[11] As for the submission that there should be a division as between partial indemnity and substantial indemnity costs, it is quite apparent that the availability of Carlos Padilla and Mamma Ching was not of great importance to the defendants. They took no steps at any time to obtain or preserve their evidence for this proceeding or to verify their accounts of events. Accordingly, substantial indemnity costs should be awarded throughout.

[12] However, substantial indemnity costs are to be reasonable and proportionate and regard must be had to the factors set out in Rule 57.01(1) of the Rules of Civil Procedure. I am also mindful the plaintiff was awarded punitive damages in the amount of $100,000. Having regard to all of these factors, I am of the view that costs in the total amount of $90,000 inclusive of disbursements and applicable taxes are appropriate in the circumstances of this case. Accordingly, that amount is payable by Cusipag and the Media Defendants to the plaintiff within 30 days.

Lederman J. Date: September 23, 2016