CITATION: Veneruzzo v. Storey, 2017 ONSC 2532
COURT FILE NO.: CV-15-0342-00
DATE: 2017-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIS VENERUZZO, BRENDA VENERUZZO, JASON VENERUZZO and JENNIFER VENERUZZO
Plaintiffs
- and -
DARRYL STOREY
Defendant
D. Lester, for the Plaintiffs
J. Lester, for the Defendant
HEARD: April 3, 2017, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Costs
[1] Reasons were released on January 27, 2017, dismissing a motion by the defendant to dismiss the plaintiffs’ action pursuant to section 137.1(3) of the Courts of Justice Act, R. S.O. 1990, c. C.43.
[2] The plaintiffs’ action is for damages for defamation, intentional infliction of mental distress and intrusion upon seclusion, arising out of posts that the defendant made on his Facebook account.
[3] The plaintiffs are the immediate family of a young woman, Jasmine Veneruzzo, who was killed in December 2008 when the vehicle which the defendant was driving crashed into the side of her vehicle. Seconds before the collision, the defendant’s vehicle was travelling at a speed of over 200 kilometers in a 90 kilometer zone. The defendant was a police officer at the time of the collision. The defendant was not involved in a police pursuit. The emergency lights and siren of the police car were not engaged. The defendant pleaded guilty to the criminal offence of dangerous driving causing death. He was sentenced on a joint submission to a penitentiary term of two years imprisonment.
[4] Six and a half years after the collision, and after his release from penitentiary, the defendant made a series of online posts on his Facebook account regarding the collision, Ms. Veneruzzo, and the Veneruzzo family. The defendant’s posts implied that Ms. Veneruzzo caused or contributed to the collision. He criticized the Veneruzzo family in highly personal comments, including stating that on the evening of Ms. Veneruzzo’s funeral they were intoxicated and belligerent towards police.
[5] The amendments to the Courts of Justice Act that introduced section 137.1 arose from a concern by the legislators over strategic lawsuits, commonly referred to as SLAPP (Strategic Lawsuit Against Public Participation), a tactic designed to affect the ability or unwillingness of people to express views or take action on matters of public interest. Section 137.1 allows courts to use a “fast-track” process to identify and dismiss strategic lawsuits.
[6] In this motion to dismiss the plaintiffs’ action, the defendant claimed that his Facebook posts constituted an expression that related to a matter of public interest.
[7] I found that the Facebook posts did not relate to a matter of public interest within the meaning of section 137.1.
[8] The plaintiffs, as the successful parties on the motion, seek their costs on a partial indemnity basis in the sum of $9,757.50 for fees, plus disbursements and related H.S.T.
[9] The defendant submits that although the plaintiffs were successful on the motion, no costs should be awarded because of the provisions of ss. 137.1(7) and (8) of the Courts of Justice Act that provide as follows:
Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
Cost if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
[10] The defendant refers to a recent costs decision of Myers J. in Accruent LLC v. Mishimagi, 2016 ONSC 6924. Justice Myers had dismissed the motion by the defendant to dismiss the action under s.137.1. He held that the defendant had not established that the defamation claim against her arose from an expression that related to a matter of public interest as set out in section 137.1(3). However, he found that it was not a case for an award of costs.
[11] At para. 4, Justice Myers stated:
By providing presumptive entitlement of a successful defendant to full indemnity for her costs and presumptive entitlement of a successful plaintiff to no costs award, the Legislature is signaling its intent to encourage and make anti-SLAPP motions accessible to defendants. That is, where a lawsuit is an effort to suppress public participation by the threat of causing the defendant to incur financially crippling costs and damages, the Legislature has provided a low cost mechanism for a defendant to try to end the proceeding very quickly. Moreover, the fact that s. 137.1(8) reverses the normal presumption that costs go to the winner, shows that the Legislature is encouraging motions to fend off SLAPP suits. An unsuccessful defendant may still be found liable for costs. But the court is required to make a specific finding that a costs award is appropriate in all of the circumstances.
[12] Justice Myers found that the plaintiff in that action, which was a corporation, had not suffered much, if any, loss as a result of the allegedly defamatory words in question. He questioned why the plaintiff corporation was incurring the cost of litigation if it had not been damaged in a material way.
[13] At para. 7 he stated:
Had the matter involved an issue of public interest, the weakness of the damages claim may well have led to the dismissal of the action under the balancing test provided in s. 137.1(4)(b) of the statute. Moreover, the plaintiff’s settlement demand, that the defendant not make any future public statements against it in a disparaging way “or otherwise” and its refusal to limit the provision to prohibit just disparaging statements shows that it is using the lawsuit for a purpose beyond that which is available under the law of defamation. The law of defamation does not prevent a defendant from ever saying the plaintiff’s name provided that she does not further defame the plaintiff. Here, it appears that the plaintiff has brought a weak claim and used the threat of the costs and embarrassment to try to extract something from the defendant that the law of defamation does not otherwise provide – a gag order. In my view, while not affecting a matter of public interest, this strategic use of the lawsuit in this case offsets the plaintiff’s success and leaves it with little equity on its side of the costs ledger. There is no basis therefore to overcome the presumption that there should be no costs provided for under s. 137.1(8).
[14] In my view, the instant case is distinguishable from Accruent.
[15] There is no basis in this case to find that the plaintiffs are using threats of costs and embarrassment “to extract” something from the defendant.
[16] This is not a “strategic use of the lawsuit” as Myers J. found to be the case in Accruent.
[17] The plaintiffs are not attempting to suppress public participation. The plaintiff in Accruent was a corporation. In the instant case, the plaintiffs are individuals who allege damage to their individual reputations. I find no ulterior motive for this lawsuit that would take it outside the usual considerations of a defamation action for damages.
[18] I found no merit in the defendant’s submission that his posts were matters of public interest. By implying that Ms. Veneruzzo caused or contributed to the collision, I found that the defendant sought to shift or apportion blame for events for which he admitted responsibility four years prior when he entered a plea of guilty to the criminal act of dangerous driving causing death. The posts which criticized the Veneruzzo family members were negative comments about private individuals, not public figures. At their highest, the posts were about events that interested the public, not events which were in the public interest.
[19] The plaintiffs were entirely successful on the motion to dismiss. In my view, an award of partial indemnity costs is appropriate in the circumstances of this case where the defendant’s claim of public interest was found to be without merit and where there are no facts that would suggest that a costs award would be inequitable.
[20] In Finn Way General Contractor Inc. v. S. Ward Construction Inc., 2014 ONSC 4071, at paras. 19 – 24, I set out the principles and factors which guide a costs award:
[19] In Serra v. Serra (2009), 2009 ONCA 395, 66 R.F.L. (6th) 40 (Ont. C.A.), at p. 42, the Court of Appeal reiterated the fundamental purposes which modern costs rules are designed to foster, as set out in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22:
(1) to partially indemnify successful litigants for the costs of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour.
[20] In Anderson v. St. Jude Medical Inc., 2006 CanLII 85158 (ON SCDC), [2006] O. J. No. 508 (Ont. Div. Ct.), at para. 22, the Divisional Court set out the principles to be applied by the court in exercising its discretion (citations omitted):
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1).
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant.
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(O.b).
The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases [if they can be found], should conclude with like substantive results.”
The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[21] The Court of Appeal has made it clear that in assessing costs the overriding principle is one of reasonableness and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[22] In Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.”
[23] Rule 57.01(1) of the Rules of Civil Procedure provides:
57.01 (1) Factors in discretion - In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct on any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding; or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
(i) any other matter relevant to the question of costs.
[24] Rule 1.04 (1.1) of the Rules of Civil Procedure provides:
1.04 (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[21] Lead counsel for the plaintiff, Mr. D. Lester, has five years’ experience. He was assisted by Mr. Moorley who has two years’ experience. Their partial indemnity rates of $165.00 and $105.00 per hour, respectively, are reasonable. Mr. D. Lester’s rate of $165.00 is commensurate with the partial indemnity rate of $159.00 of counsel for the defendant, Mr. J. Lester, who has four years’ experience.
[22] Mr. D. Lester has docketed 45.1 hours of time. Mr. Moorley has docketed 14.2 hours. This compares to the docketed time of Mr. J. Lester of 25.2 hours and of his law clerk of 9.4 hours.
[23] There is some overlap in the time of Mr. D. Lester and Mr. Moorley for which the defendant should not be liable.
[24] The matter was of some complexity because the legislation was new. In their submissions, both sides referred to extensive debates in the Legislature on the legislation. The time expended on research and on the motion materials and facta reflected the complexity of the matter.
[25] The motion was of importance to the plaintiff. If the defendant had been successful, the action would have been dismissed and the plaintiffs’ claims would have been barred.
[26] The motion lengthened proceedings by several months. The action could not proceed until the motion had been decided. In the end, it was determined that the motion did not meet the initial threshold of an expression that related to a matter of public interest.
[27] In assessing what the defendant could have reasonably have expected to pay as an unsuccessful party, his lawyer had actual fees of $8,729.00 substantial indemnity fees of $7,617.60 and partial indemnity fees of $5,078.40.
[28] The plaintiffs seeks reimbursement for the following disbursements:
Taxable disbursements
binding charges $5.00
courier $33.00
facsimile transmission $8.50
photocopies $243.50
laser printing $113.00
Non-Taxable disbursements notice of motion $127.00
[29] I regard binding charges, postage and laser printing as part of overhead and not subject to a party and party costs award. Although facsimile transmission and printing costs are allowable, the plaintiffs have not shown details of these charges. However, because they are significantly less than the amounts shown by the defendant’s solicitor for those categories, I will assume they are reasonable and allow them.
[30] Having regard to the factors and principles discussed above, I am of the opinion that it is fair and reasonable to award the plaintiffs partial indemnity costs of this motion in the sum of $7,500.00 for fees, plus HST, and taxable disbursements of $285.00, plus HST, and non-taxable disbursements of $127.00.
__“original signed by”
The Honourable Justice D. C. Shaw
Released: April 24, 2017
CITATION: Veneruzzo v. Storey, 2017 ONSC 2532
COURT FILE NO.: CV-15-0342-00
DATE: 2017-04-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOUIS VENERUZZO, BRENDA VENERUZZO, JASON VENERUZZO and JENNIFER VENERUZZO
Plaintiffs
- and -
DARRYL STOREY
Defendant
DECISION ON COSTS
Shaw J.
Released: April 24, 2017
/sab