Court File and Parties

NEWMARKET COURT FILE NO.: CV-15-124844-00 DATE: 20180510 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tara McCarthy-Oppedisano, Plaintiff AND: Mary Muter, Defendant

BEFORE: THE HONOURABLE JUSTICE S.E. HEALEY

COUNSEL: C. Fiske and D. Cassin, Counsel, for the Plaintiff C. Stribopoulos, Counsel, for the Defendant

HEARD: By Written Submissions

COST ENDORSEMENT

[1] The defendant sought an order pursuant to section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 [CJA], dismissing this defamation action. Her anti-SLAPP motion was dismissed.

[2] The plaintiff now seeks her costs of responding to the motion. She asks the court to award her substantial indemnity costs in the amount of $42,505.86 or, in the alternative, partial indemnity costs in the amount of $32,612.59, both inclusive of HST.

[3] The basis of the plaintiff’s request is her assertion that the timing of the defendant’s motion was strategic. It was brought one year after the claim was issued, and just one month before a scheduled Ontario Municipal Board hearing of the plaintiff’s severance application. The severance application motivated the defendant’s comments. As a result of the motion, the OMB hearing was automatically stayed under s. 137.4 of the CJA. Further, this court made a finding that the comments made by the defendant do not rise to the level of public interest, but rather were words intended to malign and vilify the plaintiff in order to bolster public opposition to her severance application.

[4] Subsection 137.1(8) of the CJA applies. It creates a presumption against costs to a successful responding party to an anti-SLAPP motion, unless “the judge determines that such an award is appropriate in the circumstances”. This contrasts with ss. 137.1(7) of the CJA, which presumptively entitles a successful moving party to full indemnity for his or her costs of the motion and the proceeding, unless a judge determines that such an award is not appropriate.

[5] The plaintiff acknowledges in her material that there has been only one decision under ss. 137.1(8) of the CJA in which costs have been awarded to a successful responding party, in the modest amount of $7,500. In that case, Veneruzzo v. Storey, 2017 ONSC 2532, Shaw, J. made a specific finding that a cost award was appropriate in circumstances where the defendant’s claim of public interest was found to be without merit, and where there were no facts to suggest that a costs award would be inequitable. The facts in Veneruzzo are quite compelling – after pleading guilty to the offence of dangerous driving causing the death of the plaintiffs’ immediate family member, the defendant, who was a police officer, made online posts on his Facebook account in which he implied that the deceased had contributed to the accident, and criticized her family in personal ways, including accusing them of being intoxicated and belligerent toward police on the night of her funeral. He then attempted to shut down the resulting defamation action against him through his anti-SLAPP motion. It is difficult to conceive of facts more deserving of an award to express the court’s disapproval of wasted costs brought about by an unmeritorious and frivolous step in an action.

[6] However, in other cases in which respondents have been successful in defeating anti-SLAPP motions, the courts have declined to grant costs: Accruent LLC v. Mishimagi, 2016 ONSC 6924; Montour et al v. Beacon Publishing Inc. et al, 2017 ONSC 6361; Thompson v. Cohodes, 2017 ONSC 2590; and 1704604 Ontario Ltd. v. Pointes Protection Association, 2016 ONSC 2884.

[7] The policy reason behind ss. 137.1(7) and (8) of the CJA is explained by Myers, J. in Accruent LLC, 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 signalling 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.

[8] By requesting costs, particularly on a substantial indemnity basis, the plaintiff is asking this court to set the precedent that an award of costs is appropriate when a finding is made that the impugned comments are not a matter of public interest. Although the plaintiff has a theory that the timing of the motion was strategic, this court made no such finding. The defendant has raised evidence of one or more illnesses that have impacted her timely participation in this lawsuit. And there is evidence that the plaintiff’s litigation conduct may also be strategic, such as serving a libel notice just days before elections to the Kingscross board, serving her statement of claim three days before the Township was scheduled to hear her application for rezoning, and by secretly taping a conversation over a lunch meeting with the defendant even while lying that she was doing so.

[9] If the Legislature wanted to carve out an explicit exception to the presumption against costs in ss. 137.1(8) based on a finding that no public interest has been engaged by the comments in question, it would have done so. The danger in using this basis alone for a cost award is the potential deterrent effect, resulting in overly cautious use of the legislation. This would run contrary to the policy rationale behind the anti-SLAPP provisions of the CJA, which is to encourage resort to those provisions in order to weed out claims designed to suppress public participation and debate.

[10] On the facts raised by this case, there is no compelling reason to potentially undermine the policy goals by ordering costs against the defendant. This court orders that each party shall bear her own costs.

Healey, J.

Date: May 10, 2018