Montour et al v. Beacon Publishing Inc. et al, 2017 ONSC 6361
CITATION: Montour et al v. Beacon Publishing Inc. et al, 2017 ONSC 6361
COURT FILE NO.: 16-58569
DATE: October 24, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JERRY MONTOUR AND GRAND RIVER ENTERPRISES SIX NATIONS LTD.
Plaintiffs/Responding Party
- and -
BEACON PUBLISHING INC.
O/A FRONTLINE SAFETY & SECURITY AND FRONTLINE SECURITY MAGAZINE
EDWARD R. MYERS, CHRISTINA MACLEAN,
PHILIP MURRAY, SCOTT NEWARK, MARTIN RUDNER, JOHN DOE, AND JANE DOE
Defendants/Moving Party
Counsel:
R. Gilliland, B. Duxbury, A. McInnis For the Plaintiffs/Responding Party
C. Baxter, J. Mouris For the Defendants/Moving Party
The Honourable Mr. Justice H.S. Arrell
JUDGMENT ON COSTS
INTRODUCTION:
[1] The Defendants brought a motion to dismiss an action in defamation brought by the Plaintiffs pursuant to S.137.1 of the Courts of Justice Act.
[2] In 2016, the Defendant Beacon Publishing Inc. published a three-part publication entitled "Illicit Tobacco Why is it a Big Deal?" in Frontline Safety and Security Magazine.
[3] The Plaintiffs, as a result of the comments made about them in "the Publication", have brought an action in defamation and have claimed $27,000,000.00 in damages. The Defendants argued that this claim has all the hallmarks of a SLAPP suit under S.137.1 and therefore should have been dismissed summarily at this early stage pursuant to that legislation.
[4] The Plaintiffs argued that this is a legitimate defamation lawsuit and should not be dismissed at this early stage as the Defendants have no defence and are simply using the SLAPP legislation to avoid answering for the clear defamation they committed.
[5] I partially agreed with the Plaintiffs and dismissed the motion. See Montour et al v. Beacon Publishing Inc. et al, 2017 ONSC 4735
[6] I invited the parties to agree on costs, however, if they were unable then brief written submissions could be filed and I would decide the issue. I have now reviewed the submissions of both parties and these are my reasons for my judgment on costs.
FACTS:
[7] The Plaintiffs were completely successful on this motion. I note, however, that S.137.1(8) of the Courts of Justice Act states:
"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."
[8] The Plaintiffs argue that this is an appropriate case to rebut the presumption as stated in the legislation because I found, based upon the record before me, that any valid defences had not been shown, and that the alleged defamatory remarks are still posted on line. The Plaintiffs also argue that the Defendants delayed in bringing this motion and that the factors listed in R.57 of the Rules of Civil Procedure dictate that my discretion should be exercised by awarding the Plaintiffs at least partial indemnity costs.
[9] The Defendants argue that the presumption in the legislation should prevail as there is no reason to depart from the clear intent of the legislature as stated by Myers J. in Accruent LLC v. Mishimagl 2016 ONSC 6924 at para 4:
"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."
[10] I agree with Myers J. as to the clear intent of the costs provisions in the legislation.
[11] The Defendants further argue that costs are to be awarded only where the motion was found to be frivolous. See, Thompson v. Cohodes 2017 ONSC 2590 at para 42.
ANALYSIS:
[12] I found, and indeed the plaintiffs admitted, that the publication at issue dealt with matters of public interest being the smuggling of contraband tobacco.
[13] The Plaintiffs have not adduced evidence under S.137.1(4)(b) of any evidence of harm while it is clear to this court that the Defendants have shown some evidence of the negative affect this lawsuit has had on them. Finally the evidence of significant general damages to the Plaintiffs is less than robust at this stage of the proceeding and there was no evidence in the record before me of any special damages to the Plaintiffs.
[14] I agree with the Defendants that Veneruzzo v. Storey, 2017 ONSC 2532, which the Plaintiffs rely on, is distinguishable from the case at bar. In Veneruzzo there was no public interest component as it dealt with a car accident between the parties and was a strictly private matter involving posts made on Facebook. That is not the case before me.
[15] There is no evidence before me to suggest that this motion was "strategic behavior" on the part of the Defendants. The argument of the Plaintiffs that there was delay on the part of the Defendants in bringing the motion, I find to be without merit. It was appropriate that sufficient information be obtained before the motion was brought. It is also significant that the legislation specifically states that this type of motion can be brought at any time after the proceeding was commenced. See S.137.2(1). From earlier motions on this case, I also conclude that some of the delay probably lies at the feet of the Plaintiffs.
[16] I am well aware of the fundamental purposes of modern costs rules as set out in Serra v. Serra, 2009 ONCA 395 at para.8:
"Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22."
[17] I have also considered Rule 57 and the factors listed there. I accept that the issues here were complex and very important to each side. That does not make the motion frivolous but indeed makes it significant in my view to both sides.
[18] The legislation under S.137.1(8) sets out that the onus is on the Respondent to persuade this court that the strong presumption of not awarding costs to the winning respondent is rebutted because of the particular circumstances of the case at bar. There is nothing before me to indicate that the motion of the Defendants was frivolous. It was brought pursuant to new legislation and was well grounded based on that legislation. Simply because the Respondents won, enabling the action to continue on its merits, does not mean it was frivolous or ill conceived.
[19] I am also not persuaded that there was any inappropriate behavior on either side that would affect the exercise of my discretion on costs under S.137.1(8).
CONCLUSION:
[20] The Plaintiffs have not persuaded me that this is a case where I should exercise my discretion and award them costs contrary to the presumption against a cost award under S.137.1(8) of the Courts of Justice Act. As such there will be no order as to costs on this motion.
Arrell, J.
Released: October 24, 2017
CITATION: Montour et al v. Beacon Publishing Inc. et al, 2017 ONSC 6361
COURT FILE NO.: 16-58569
DATE: October 24, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JERRY MONTOUR AND GRAND RIVER ENTERPRISES SIX NATIONS LTD.
- and -
BEACON PUBLISHING INC.
O/A FRONTLINE SAFETY & SECURITY AND FRONTLINE SECURITY MAGAZINE
EDWARD R. MYERS, CHRISTINA MACLEAN,
PHILIP MURRAY, SCOTT NEWARK, MARTIN RUDNER, JOHN DOE, AND JANE DOE
JUDGMENT OF COSTS
HSA