COURT FILE NO.: CV-17-585459

MOTION HEARD: In Chambers

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jane Doe, Plaintiff AND: Harvey Weinstein, Miramax LLC, The Walt Disney Company and Barbara Schneeweiss, Defendants

BEFORE: Master P. Tamara Sugunasiri

COUNSEL: Lowman, T. and Reiter, D., Counsel for The Walt Disney Company/Moving Party Henein, M., Smith, A., Strychar-Bodnar, M., Counsel for the Plaintiff/Responding Party

HEARD: In Chambers

COSTS ENDORSEMENT

[1] On March 19, 2018 Disney brought a motion seeking to seal excerpted provisions of three agreements it wished to rely on in a subsequent motion scheduled before me to stay the action as against it. Doe opposed the motion on the basis that Disney did not meet the requisite test and also sought an order requiring Disney to disclose the entirety of any agreements it wished to rely on in the subsequent motion. As such there were two issues: Should the court file be sealed; and quite apart from whether or not the documents were available to the public, should Disney be compelled to disclose to the parties the entirety of any agreements it chose to rely on in the subsequent motion. I released my decision on April 11, 2018. I dismissed Disney’s motion and ordered that it provide an unredacted copy of all agreements it wished to rely on to counsel for the parties such that the parties could come to an agreement as to what provisions were needed to adjudicate the stay motion. Any provisions filed were to remain open to the public. The remainder of the agreements could be redacted or omitted altogether.

[2] Doe seeks substantial indemnity costs in the amount of $47,483.51. She alleges that Doe not only defended her own interests as a sexual assault victim seeking redress through the civil justice system, but also upheld the public interest by arguing for, and defending the open court principle “against one of the largest entertainment and media conglomerates in the world.” Doe further states that Disney’s motion was largely without merit and unsupported by the evidence and there is a firm basis for the Court to conclude that the motion was brought for an improper purpose thereby warranting substantial indemnity costs.

[3] Disney argues that Doe is not entitled to costs because a) Disney acted properly in bringing the motion; b) two of the three issues raised in the Plaintiff’s factum were irrelevant to the motion; c) the sealing order sought had no effect on the Plaintiff’s case and relates entirely to the open court principle which is properly the prerogative of the media; d) Doe’s submission were late and should be disregard. Finally, Disney alleges that Doe’s opposition to the motion “was clearly for the sole purpose of securing further media notoriety for this case and such improper motivation should not be rewarded by a costs order.”

[4] Rule 57.01 gives the Court wide discretion to award costs to a party. While the Court must consider the factors set out in that rule, it must also consider the particular circumstances of the case and the overall justice of a costs award. I see no reason in this case to deviate from the principle that a successful party should be indemnified for its legal costs.

[5] On Disney’s first point, I accept that it acted properly in bringing this motion. While I appreciate Does’ argument that the paucity of evidence provided by Disney on its motion could lead one to conclude that the motion was disingenuous, I am not prepared to so conclude on the record before me.

[6] With respect to Disney’s second point, I only partially agree with Disney that two of the three issues in Doe’s motion were irrelevant. In fairness to Disney, its costs submissions came prior to my decision released April 11, 2018 and so it could not have known what arguments I found to be relevant and what I did not. Having now released my decision, it is clear that Doe’s arguments about the redactions were relevant to the broader issue of how evidence was to be tendered in the stay motion and for whose eyes. The issue of excluding the public from the within motion was not one raised by Disney but rather Doe. However, only on paragraph in the factum and a 5 paragraph affidavit related to this issue.

[7] Regarding Disney’s third and fifth points, I do not accept that the sealing order motion did not affect Doe’s case and therefore she should not be entitled to any costs. Respectfully, that is not the point. Doe is a party to the action and is entitled to take a position on steps taken in the action. In this motion, Doe was faced with a possible scenario in which all of her evidence on the stay motion would be public but Disney’s would not. Given the inherently public nature of the case, this disparity could have repercussions on Doe. The reality of this case is that there is media attention by the invitation of both parties at various points in time. I do not find it improper for Doe to endeavour to level this aspect of the playing field by resisting Disney’s sealing order.

[8] In any event Doe was presumably served with the motion as a party “affected” by the order pursuant to Rule 37.07. Disney did not make any objection at the hearing to Doe’s standing as an opposing party nor that she should only be granted audience on the understanding that she could not claim costs. Doe is neither an intervener nor a friend of the court. She is the Plaintiff. Doe is entitled to costs if she is successful in opposing Disney’s motion. She was also largely successful in her cross-motion which challenged Disney’s redactions of the agreements in questions.

[9] Even if I am incorrect in the above analysis and Doe is not affected by the motion, Doe’s submissions and materials assisted the Court in coming to its conclusion. A participating party who adds value to the hearing and is successful in her arguments should be compensated for costs, barring the usual circumstances that offset costs entitlement such as misconduct or improper motive. No such circumstances exist here. I reject Disney’s assertion of improper motive for the reasons set out above. Doe’s opposition to the motion was just as valid as Disney’s decision to bring it.

[10] Further, I accept Doe’s point that at least in part, she was defending the open court principle which is fundamental to our justice system and is in the public interest. Such issues should be of interest and concern to all parties in litigation. To deny costs to a successful party in opposing what may be an improper abrogation of such a fundamental principle of justice would deter such participation and contribution – a result that in my view, would be detrimental to the overall administration of justice.

[11] Disney’s final point is that Doe’s costs submissions were sent late in violation of my order. While the Court frowns on this conduct, it is not so egregious that the submissions should be disregarded. Further, Disney has not argued that it suffered any prejudice by the truncation of the time it had to respond to Doe’s costs submissions.

[12] In sum, I find that Doe is entitled to some of her costs. I do not agree with Doe that substantial indemnity costs are warranted. As discussed above, I do not find any improper conduct on Disney’s part to warrant a higher scale.

Disposition:

[13] I award partial indemnity costs to Doe in the amount of $31,068.67 including disbursements and HST payable within 30 days of today. The quantum of costs is based on Doe’s costs outline. I have no submissions from Disney other than the ones addressed above, with respect to quantum. Disney did not provide a costs outline to assist the Court in assessing its reasonable expectations of the cost of this motion. In such circumstances, I draw the inference that Disney devoted as much or more time and money as did Doe[^1] and that Doe’s costs are within the range of Disney’s reasonable expectations.

Original signed

Master P. T. Sugunasiri

Release Date: May 30, 2018

[^1]: See Frazer v. Haukioja, 2010 ONCA 249, [2010] OJ No 1334 at para. 73 (CA) citing Andersen v. St. Jude Medical Inc., 2006 ONSC 85158 (Div. Ct.), [2006] O.J. No. 508 at paras. 24 to 27 (SCJ).