Court File and Parties

Court File No.: CV-16-563368 Date: 2018-04-11 Superior Court of Justice - Ontario

Re: Cesar Maldonado, Plaintiff And: Ahmad Hewaydi, Defendant

Before: Madam Justice V.R. Chiappetta

Counsel: Jordan Goldblatt, for the Plaintiff Tanya C. Walker, for the Defendant

Heard: In Writing

Endorsement

[1] This was an action for defamation. The defendant admitted to disseminating anonymous allegations about the plaintiff. The litigation concluded with the defendant agreeing to pay the plaintiff $10K plus filing costs submissions.

[2] The plaintiff seeks costs on a full indemnity basis of $63,351.19, in the alternative on a substantial indemnity basis of $57,949.79 and in the further alternative, costs in the amount of $55,037.92, representing partial indemnity costs of $7,570.86 to the date of an Offer served in accordance with Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (the Rules) substantial indemnity costs of $38,129.88 thereafter and disbursements in the amount of $9,337.18.

[3] The defendant submits that full indemnity, or alternatively, substantial indemnity costs are unjustified. It requests that this court order no costs, or alternatively, costs on a partial indemnity basis no greater than $15K and that if any costs are ordered, they be set off by the amount the defendant would have been entitled to had the summary judgment motion proceeded.

[4] The defendant is not entitled to costs of the summary judgment motion. The plaintiff’s motion did not proceed on February 1, 2018. The defendant cannot rely on my comments on the merits of the motion made in the context of a settlement conference. The motion was not heard and the issues were not adjudicated.

[5] The plaintiff is not entitled to full indemnity costs of this action. There is no evidence that the defendant’s conduct throughout the litigation was reprehensible, scandalous or outrageous.

[6] Nor is the plaintiff entitled to substantial indemnity costs after the date of his Rule 49 Offer to Settle. The settlement of this action for $10K in damages with costs to be assessed by the courts is a less favourable result for the plaintiff that its Rule 49 Offer to Settle. The offer also included the term that the defendant sign an apology and retraction letter and sought full indemnity costs, not costs to be assessed or agreed.

[7] In my view, the plaintiff is entitled to its costs on a partial indemnity basis considering the guiding principle of reasonableness and the factors set out under Rule 57.01 of the Rules.

[8] I have reviewed the bill of costs submitted by the plaintiff. Partial indemnity costs inclusive of disbursements total $44,446.26. I find that both the time expended and the hourly rates charged as reflected therein are reasonable. I accept the plaintiff’s explanation that Ms. Mustafa’s time for preparation of the summary judgment motion increased between costs set out when a first bill of costs was delivered on Feb. 1, 2018 and the final bill appended to the plaintiff’s costs submissions brief because all costs for preparation of the motion were not captured in counsel’s dockets as of Feb. 1, 2018. I also take no issue with the changing rates of plaintiff’s counsel which is common or the costs for Ms. Mustafa to prepare for a discovery that she otherwise did not end up attending.

[9] It cannot be said, as submitted by the defendant, that the plaintiff’s decision to accept $10K by way of a settlement is analogous to a party awarded damages less than the small claims court threshold. The plaintiff made an offer and the defendant accepted the offer. The monetary value of the compromise was less that the monetary jurisdiction of the small claims court. It does not follow that the plaintiff chose the wrong forum or that his costs are properly restricted. The claim required the tool of discovery to determine the extent of dissemination which would then determine damages. Moreover, costs in defamation matters often exceed damages.

[10] The defendant’s actual costs of litigation were $51,956.37. He ought to have known the risks of a significant costs award and reasonably expected the extent of that award.

[11] For these reasons, costs are fixed at $44,446.26 inclusive, payable by the defendant to the plaintiff within 30 days.

V.R. Chiappetta J.

Date: April 11, 2018