Court File and Parties

Court File No.: CV-14-502946 Date: 2017-06-29 Ontario Superior Court of Justice

Between: Senator Tobias Enverga, Plaintiff – and – Balita Newspaper, Balita Media Inc., Tess Cusipag, Romeo P. Marquez (A.K.A Romy Marquez) and Carllos Padilla, Defendants

Counsel: Howard W. Winkler and Eryn Pond, counsel for the plaintiff James H. Chow, counsel for the defendants Tess Cusipag, Balita Newspaper, and Balita Media Inc.

Read: June 29, 2017

Costs Reasons

F.L. Myers J.

[1] For reasons delivered on June 12, 2017, reported at 2017 ONSC 3500, I sentenced the defendants other than Messrs. Marquez and Padilla for contempt. The sentence included an order that the contemnors fully indemnify the plaintiff for his costs of the contempt process.

[2] The parties have delivered submissions on the quantification of the costs that the contemnors are required to pay to the plaintiff.

[3] The plaintiff seeks indemnity for legal fees of $32,280, counsel fees for court attendances of $4,500, disbursements incurred of $1,625, plus HST where not already included in these numbers.

[4] The contemnors argue that the fees sought are excessive. They ask for fees to be set at $15,000. They say that less than two hours was spent actually arguing in court. Moreover, they argue that the plaintiff’s counsel incurred excessive time researching case law that was not expressly relied upon in court.

[5] No matter the scale of indemnity that is ordered, legal fees and disbursements are required to be reasonable in the circumstances. In addition, access to justice considerations require that if a party is to be required to pay the other side’s costs, those costs should be within a range that ought to have been reasonably anticipated by the party who has to pay.

[6] In this case, the contemnors were required to pay costs of $90,000 in respect of the motion for summary judgment under which the plaintiff obtained the injunction that was the subject of enforcement before me. That summary judgment motion was argued over two days and included out-of-court cross-examinations. I note that the costs were calculated on a substantial indemnity basis in light of the contemnors’ calculated and malicious quest to destroy the plaintiff’s reputation and their misconduct in the litigation.

[7] In my view, in light of the contemnors’ continuation of the very conduct that was the subject matter of an enhanced costs award already, they ought reasonably to have expected an enhanced or further enhanced level of costs responsibility in this contempt proceeding.

[8] The rates charged by the plaintiff’s counsel are very modest especially for counsel of Mr. Winkler’s experience.

[9] The hours billed by the plaintiff’s counsel are also very reasonable. The contemnors knew that the plaintiff was incurring legal fees to protect his reputation and they ought reasonably to have anticipated that the plaintiff and counsel would be watching the internet and other press sources to see if the contemnors lived up to Ms. Cusipag’s vow to continue her quest despite the injunction against the contemnors that prohibited them from doing so. Ms. Cusipag was good to her word and provided the plaintiff with a significant number of pieces of evidence both before the motion and between the finding of contempt and sentencing. The plaintiff cannot be faulted for incurring the time to collect it all and put it all before the court. The affidavits themselves were not lengthy. But there were many exhibits that had to be considered and included.

[10] Moreover, while some legal submissions and case law may not be referred to orally in court, that does not make comprehensive research and a comprehensive factum unreasonable. To the contrary, if the law section of a factum is comprehensive, it is often the case that only a few issues need to be the subject of oral argument. That is because the research set out in a good factum so clearly supports one side or the other that the arguable issues are narrowed. I did not see any surplussage or overkill in the plaintiff’s factum or legal arguments.

[11] It is apparent that the counsel fees claimed include waiting time in court or travel time to get to court. These are not claimable items in an assessment as between the parties to litigation. But here, the defendants have been ordered to indemnify the plaintiff for all fees reasonably billed to him by his counsel as part of a sentence for contempt. The tariffs for party-and-party assessments are not limiting in this case. Rather, the issue is whether the time spent was reasonably billed to the plaintiff by his lawyers and should to be indemnified by the contemnors. It was and should.

[12] The contemnors’ complaint with the length of the draft apology prepared for them by the plaintiff’s counsel might have had more strength if they had delivered a shorter form of apology or any form of apology at all. Doing so would have gone a long way to both purge their contempt and to shorten and simplify the proceedings.

[13] In my view, the costs claimed by the plaintiff are fair, reasonable, and proportionate in the circumstances of this case in which a high level of vigilance and a very high burden of proof faced the plaintiff. In the contempt process, there were three shorter appearances with new evidence and a new factum required for sentencing. The costs work out to just under 50% of the longer summary judgment hearing and cross-examinations. That strikes me as proportionately just about right and certainly within the range of what the contemnors ought reasonably to have expected.

[14] Tess Cusipag and the two Balita entities are therefore ordered to pay costs to the plaintiff fixed in the all-inclusive amount of $43,187.08.

F.L. Myers J. Released: June 29, 2017