Platnick v. Bent, 2017 ONSC 585

Court File No.: CV-15-520683 Date: 2017-01-24 Superior Court of Justice - Ontario

Re: Howard Platnick, Plaintiff/Responding Party And: Maia Bent and Lerners LLP, Defendants/Moving Party

Before: S. F. Dunphy, J.

Counsel: H. Winkler, A. Lokan and E. Pond, for the Defendant/Moving Party Maia Bent L. Moscu and N. Holmberg, for the Defendant Lerners LLP H. Schwartz, for the Intervenor T. Danson, for the Plaintiff/Responding Party

Heard: In Writing

COSTS ENDORSEMENT

[1] On December 1, 2016, I released my decision granting the defendant Maia Bent’s motion pursuant s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and dismissed the plaintiff’s libel suit against her. In my decision, I awarded costs to the defendant Bent on a full indemnity basis pursuant to s. 137.1(7) of the CJA and to the defendant Lerners LLP on a partial indemnity basis only. I invited the parties to make written submissions to me if they were unable to reach agreement on the amount of costs.

[2] The plaintiff wrote to me (with the knowledge of other counsel and copied to them) on December 19, 2016 expressing the view that the matter of costs had not been fully addressed in oral argument before me and asked for an opportunity to address submissions to me on whether grounds exist for me to exercise my discretion to make a different order of costs.

[3] A successful defendant is entitled to full indemnity costs pursuant to s. 137.1(7) of the CJA unless I find that such order is not appropriate in the circumstances and make a different disposition. While I had understood such submissions to have already been made in argument before me and indeed referred to such arguments quite explicitly in my reasons, I allowed the plaintiff’s request and granted him leave to file written submissions on the scale of costs to be awarded as well as the amount.

[4] The parties filed written submissions. The plaintiff’s submissions included an affidavit of Dr. Platnick dated January 9, 2017. Leave to file such an affidavit was neither sought nor granted. The affidavit addressed, among other things, the merits of the action that had been dismissed by me.

Issues to be addressed

[5] There are four issues that require my consideration at this time:

a. Ought leave to be granted to Dr. Platnick to file his affidavit of January 9, 2017?

b. Is an award of full indemnity costs in favour of the moving party “not appropriate in the circumstances”?

c. What are the reasonable costs of the defendant Maia Bent?

d. What are the reasonable costs of the defendant Lerners LLP?

(a) Ought leave to be granted to Dr. Platnick to file his affidavit of January 9, 2017?

[6] Dr. Platnick filed a further affidavit (dated January 9, 2017) in support of the further submissions filed by his counsel. The affidavit suggested, among other things, that the amount claimed by Ms. Bent was a “staggering amount of money” and that publicity attendant upon the release of my ruling had stripped him of the remainder of his expert witness practice. He felt able to venture this latter view after only a short period of weeks since the release of my decision, a significant portion of which had been consumed by the holidays. He suggested the amount of costs sought would be an undue hardship to him but offered no concrete financial evidence of his assets or earnings nor was any explicit plea of impecuniosity advanced. While his earnings as an expert witness are alleged to have been adversely impacted, he has not alleged that his ability to carry on his medical practice has been adversely affected nor disclosed what those earnings are or might reasonably supposed to be.

[7] The bulk of the affidavit, however, was aimed quite squarely at the merits of the decision that was rendered. Notwithstanding the adverse findings that I had made in my ruling regarding the strength of Ms. Bent’s defence of justification, Dr. Platnick’s affidavit provided updates of the damages he alleges she has caused him and sought to introduce still further evidence regarding the merits of her defence of justification. It attached, among other things, an updated damages calculation of an accountant dated December 20, 2016 – only one day after Mr. Danson had asked for leave to make further submissions.

[8] There is very little in this affidavit that could be characterized as new evidence since all or substantially all of it could readily have been introduced in connection with the hearing on the merits.

[9] Mr. Danson’s letter to me of December 19, 2016 sought only to “make submissions under s. 137.1(7) for a cost disposition other than the successful moving party being entitled to full indemnity costs”. No request for leave to file further evidence was made and none was granted. Seeking to introduce new evidence relating to the merits of the order made through this back-door method is quite improper and is certainly not to be encouraged. No leave having been granted to file it, leave after the fact is denied and the affidavit of Dr. Platnick sworn January 9, 2017 forms no part of the record before me.

(b) Is an award of full indemnity costs in favour of the moving party “not appropriate in the circumstances”?

[10] Pursuant to s. 137.1(7) of the CJA I may make an award other than for full indemnity costs in favour of the successful moving party if I determine that an order of full indemnity costs is “not appropriate in the circumstances”. The plaintiff suggested for my consideration eleven reasons why a full indemnity costs award might not be considered appropriate in the circumstances:

i. The timing of the enactment of the PPPA relative to the commencement of the action;

ii. Whether the plaintiff’s claim is a “SLAPP” suit against which the s. 137.1(7) of the CJA is claimed to be exclusively aimed?

iii. Dr. Platnick’s alleged losses following release of my decision;

iv. Dr. Platnick’s alleged losses overall;

v. The “accurate and defensible” nature of the report made by Dr. Platnick that gave rise to the initial email of Ms. Bent;

vi. The existence of a suit brought by Ms. Bent’s client (Dr. Carpenter) against Dr. Platnick in connection with that report;

vii. The significant harm the plaintiff alleges to have suffered (see (iv) above);

viii. This is a test case;

ix. The allegations made by Ms. Bent regarding Dr. Platnick’s actions in the “second case” were made “without a shred of evidence” to support an egregious and devastating allegation;

x. There may be more evidence to challenge Ms. Bent’s defences that comes to light in future;

xi. The effect of the allegations of professional misconduct on Dr. Platnick.

[11] A significant number of the foregoing reasons amounts to little more than an attempt to re-litigate aspects of the motion already decided by me. Most of these issues are specifically addressed in my reasons issued December 1, 2016.

[12] Mr. Danson sought to argue that the plaintiff’s suit was not a “SLAPP” suit and that his action ought therefore not to be subject to s. 137.1 of the CJA. I have already rejected that argument in my reasons on the motion. The motion decided by me required that I review considerable evidence relating to the two expert reports of Dr. Platnick that Ms. Bent’s email referenced. There is no basis to attempt to re-open those issues at this stage and I have not granted leave to file “new” evidence in connection with that effort. It is pure speculation to wonder what other evidence might emerge in future that may endow his dismissed claim with merits not apparent when my decision to dismiss the action was made. Dr. Platnick himself brought the matter of professional misconduct into the proceeding by pleading an extended meaning of the email of Ms. Bent. Her evidence and argument responded to an issue Dr. Platnick himself had raised. Finally, I cannot speculate about the financial or earnings capacity of Dr. Platnick without substantial evidence addressed to that matter in a systematic fashion. The impact of publicity on his expert witness practice cannot be gauged on the impressions of a few weeks interrupted by holidays and Dr. Platnick has made no disclosure of his earnings (or earnings capacity) from his medical practice or his assets. Impecuniosity might well be a circumstance warranting consideration of a softened costs award relative to the standard prescribed by s. 137.1(7) of the CJA, but concrete evidence of that status would be required. None was provided, including in the affidavit that I have rejected.

[13] The allegedly punitive nature of the costs provisions of s. 137.1(7) of the CJA formed a very significant component of Mr. Danson’s argument. In his Charter factum alone, there were at least four references to the “punishing”, “serious”, “grave” and “draconian” costs provisions of s. 137.1 of the CJA.

[14] I have carefully considered the relative novelty of the remedy, the paucity of decided cases and the fact that the plaintiff’s claim was commenced before s. 137.1 of the CJA was enacted (but after it was introduced in the Legislature with a transitional provision making effective to claims commenced after it obtained first reading). I remain unpersuaded that any of these factors warrant me exercising my undoubted discretion to relieve Dr. Platnick from the effect of s. 137.1(7) in this case. I cannot find that full indemnity costs are not appropriate in this case.

[15] I have reached this conclusion for the following reasons (beyond those cited by me in my original reasons).

[16] It was the plaintiff’s decision to commence the claim against Ms. Bent and to continue to proceed with the claim after the enactment of s. 137.1 of the CJA. The amendments that added s. 137.1 to the CJA were also the subject of wide discussion among practitioners in the libel and slander area. The plaintiff’s decision to proceed with his claim notwithstanding the risks posed by the objective strength of the defendants’ position and the provisions of the statutory amendments pending (and then proclaimed) entailed both risk and known consequences of that risk. These included not only his own litigation costs but also the costs imposed by s. 137.1(7) in favour of a defendant whom I have found to be entitled to the benefit of s. 137.1 of the CJA.

[17] I have already noted that much of the damages alleged by the plaintiff stem not from the actions of the defendant but from the subsequent leak of her internal email to a broader audience by others.

[18] While s. 137.1 of the CJA contemplated what ought to have been a relatively summary proceeding requiring only a fairly high-level examination of the merits, the plaintiff raised a plethora of issues resulting in a very high volume of evidence and a multiplicity of issues being considered over three separate appearances before me. The plaintiff chose to bring the constitutional challenge that added considerable time and expense to the process and did so with full knowledge of the potential application of s. 137.1(7) of the CJA whose very existence occupied a central place in the arguments raised. If the expenses claimed by the defendant appear high to the plaintiff, much of the complexity of the proceeding was introduced by the plaintiff. The moving party did not ask to incur the expenses it had to incur in defending this suit and in bringing, successfully, a motion to dismiss it under s. 137.1 of the CJA. There is nothing in the conduct of the moving party that would warrant depriving her of the benefit of the reforms it introduced, including s. 137.1(7) of the CJA.

[19] While the statutory provision being considered was comparatively new, the application of the statute to the facts of this case was relatively clear and straightforward. The moving party had a very strong case on the merits which the plaintiff had every opportunity to take into account in deciding whether to bring this action or whether to resist the motion that was eventually brought under s. 137.1 of the CJA. The plaintiff has caused the moving party to incur significant expenses to defend her right to express views on a matter of public interest and the spectre of the plaintiff’s claim hung over her tenure as an officer of a public advocacy group and produced a chilling effect on her freedom to express those views.

[20] I would not exercise my discretion to depart from the full indemnity costs prescribed by s. 137.1(7) of the CJA. I do not find the circumstances of this case make an order of full indemnity costs as prescribed to be inappropriate. I therefore confirm my order that Ms. Bent is entitled to full indemnity costs. There was no challenge taken to my award of partial indemnity costs to co-defendant Lerners LLP (the plaintiff did question the amount claimed – that issue is dealt with below).

(c) What are the reasonable costs of the defendant Maia Bent?

[21] Ms. Bent submitted an Outline of Cost detailing total costs of $282,943.42 on a full indemnity basis including HST. The Outline of Costs breaks this amount down somewhat.

[22] The amount claimed included a total of $40,651.75 in fees paid to Mr. Lokan’s firm as counsel on the Notice of Constitutional Question plus a further $8,746.20 submitted by Mr. Winkler’s firm for acting as instructing counsel on that issue. Mr. Winkler’s firm submitted accounts totaling $36,539.68 related to responding to the various motions brought by Mr. Danson (not all of which were proceeded with). The largest single amount though was $144, 816.28 attributed to the motion pursuant to s. 137.1 of the CJA. All of the above figures include HST.

[23] The plaintiff suggests that the figures claimed are variously “staggering”, “obscene” and “unreasonable”. However, the plaintiff has given me little in the way of concrete grounds that might justify such a conclusion. I do not, for example, have an Outline of Costs from the plaintiff that might have supported in a more concrete fashion a discussion of what the reasonable expectations of the losing party might be said to be. The plaintiff suggested that $45,000 would be a more reasonable figure to allow to Ms. Bent but for reasons that had more to do with the plaintiff’s objections to the legislation itself than any concrete suggestion that the costs claimed had not actually been incurred or that if incurred were unreasonable for identified reasons.

[24] The $45,000 aggregate figure suggested by the plaintiff bears no resemblance to a fair and reasonable award of partial indemnity costs, let alone full indemnity. While my options in fixing costs are not restricted to choosing between the two positions advanced before me, I did not find the plaintiff’s position to offer a helpful basis from which to consider the matter.

[25] Full indemnity costs are intended to be full indemnity costs. While that does not mean that every account rendered must be accepted as reasonable without question, it does mean that my task does not require second-guessing or micromanaging in hindsight every strategic decision to deploy resources taken by the successful party and her counsel. Their motion was successful and the strategic choices made along the way were clearly crowned with a measure of success. The rates charged by counsel are well within the range of rates to be expected on a full-indemnity basis for counsel of the experience and skill of Ms. Bent’s defence team including when compared to the partial indemnity rates contained in the 2005 recommendations of the Rules Committee (adjusted for inflation over the intervening years). The issues raised were important ones and the amounts claimed by the plaintiff were very significant. The costs of the motion were elevated in significant measure due to the requirement to respond to the shifting strategies of the plaintiff not all of which ultimately saw the light of day in court. The constitution question alone raised issues the moving party could not fail to respond to and did so by reaching, appropriately, for the necessary expertise.

[26] I can see no basis to question the reasonableness of the amounts claimed by Ms. Bent on a full-indemnity basis. I have examined the Outline as broken down into its various components. Each appeared to me to be fair and reasonable in light of my own experience on the matter which encompassed the greatest part of the fees charged. Accordingly, I fix the costs payable to the defendant Maia Bent by the plaintiff at the amount claimed of $282,943.42 without reduction.

(d) What are the reasonable costs of the defendant Lerners LLP?

[27] I dismissed the claim as against Lerners LLP but awarded Lerners only partial indemnity costs. Lerners LLP appropriately allowed the “heavy lifting” of responding to the plaintiff’s claim to be carried by Ms. Bent to avoid duplication of effort. It has sought partial indemnity costs of the action and the motion of $47,468.35 inclusive of HST. Of this total, $28,718.26 related to the motion brought by Ms. Bent where Lerner’s role was confined to a “me too”.

[28] I am inclined to agree with the plaintiff that this figure is rather excessive having regard to the extremely limited nature of Lerner’s role in the motion. The task of fixing costs must have regard to all of the relevant criteria and the hours expended and rates claims are but one of the factors to be considered. By the same token, I cannot conclude that no amount ought to be claimed for monitoring the (successful) motion of Ms. Bent. Maintaining what was largely a watching brief was appropriate in the circumstances, but it is not reasonable to expect the losing party to pay for all of it in the circumstances.

[29] I have therefore decided that an all-inclusive award of $30,000 in favour of Lerners LLP would be reasonable in the circumstances and so find. The reductions made from the amount claimed are primarily in respect of the amounts charged for the watching brief on the motion but also reflect an overall determination of reasonableness of the costs claimed in the circumstances and having regard to the expectations of the losing party.

Disposition

[30] Accordingly, I order as follows:

a. Leave to file the affidavit of Dr. Platnick dated January 9, 2017 is denied;

b. I confirm that the plaintiff is ordered to pay the full indemnity costs of the defendant Maia Bent for both the motion and action;

c. I fix such costs payable by the plaintiff to Ms. Bent at $$282,943.42 including HST and disbursements;

d. The partial indemnity costs that I had ordered to be paid by the plaintiff to Lerners LLP are fixed at $30,000 including HST and disbursements.

S. F. Dunphy J.

Date: January 24, 2017