Court File and Parties
COURT FILE NO.: CV-17-585589 DATE: 20180810 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DEI Films Ltd. Plaintiff – and – Rakesh Tiwari and 3885275 Canada Inc., carrying on business as CMR 101.3 Diversity FM Defendants
COUNSEL: Muhammad Zafar for the Plaintiff Raj K. Sharda for the Defendant Rakesh Tiwari Igor Ellyn, Q.C. for the Defendant 3885275 Canada Inc.
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] DEI Films sued Rakesh Tiwari and 3885275 Canada Inc., which carries on business as CMR 101.3 Diversity FM, for defamation. DEI claimed damages of $1.5 million.
[2] Pursuant to s.137.1 of the Courts of Justice Act, Mr. Tiwari and CMR 101.3 brought an anti-SLAPP motions (anti-strategic lawsuit against public participation) to have DEI’s action dismissed.
[3] I granted Mr. Tiwari’s and CMR 101.3’s motions and dismissed DEI Films’ action with costs to be determined. See: DEI Films Ltd. v. Tiwari, 2018 ONSC 4423.
[4] Mr. Tiwari requests costs on a full indemnity basis of $38,903.83, comprised of: fees of $28,440; $3,697.20 for HST; disbursements of $5,071.63; and, a fee of $1,695 for costs submissions, inclusive of HST. He requests that the costs be paid by DEI Films, Brij Mohan Trikah, and Sital Panesar jointly and severally.
[5] CMR 101.3 requests costs on a full indemnity basis of $80,000.00, comprised of: fees of $63,710; HST of $8,282.30; disbursements of $6,046.22; and, $1961.48 for costs submissions, inclusive of HST. It requests that the costs be paid by DEI Films and Mr. Trikah jointly and severally.
[6] DEI Films’ position is that costs should be at most on a partial indemnity basis and reduced because of the unnecessary prolonging of the cross-examinations by the interruptions of the Defendants’ lawyers and other steps that allegedly ran up the costs of the proceedings.
[7] DEI Films’ primary position is that there should be no order as to costs because it had a legitimate defamation claim that was not frivolous and vexatious and that the court ought to have recognized.
[8] As may be noted both Mr. Tiwari and CMR 101.3 request that the costs awards be jointly and severally paid by non-parties. There are occasions when a non-party may be held accountable for the costs of a losing party. See: 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184. However, in my opinion, the immediate case is not one in which Mr. Trikah, and Mr. Panesar should be held jointly and severally liable with DEI Films.
[9] As may be perceived from reading the Reasons for Decision, it was DEI Films that claims that its reputation was damaged, and it was DEI Films that submitted that its concert was the target of a slander.
[10] For the purposes of Mr. Tiwari’s and CMR 101.3’s motion, Messrs. Trikah and Panesars’ relationship with DEI Films was never made clear, but they were not asserting a personal defamation claim.
[11] Messrs. Trikah and Panesars’ relationship to DEI Films was some combination of owner or investor or joint venture or business association, but what was clear was that the defamation claim, as vague and unmeritorious as it was, was a defamation claim by the corporate entity and had little to do with the personal reputations of Messrs. Trikah and Panesar.
[12] It is also clear that the damages been sought concerned the losses allegedly suffered by DEI Films. In these circumstances, the appropriate party to pay costs is DEI Films, the unsuccessful plaintiff in the defamation action.
[13] Section 137.1(7) of the Courts of Justice Act provides:
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.
[14] “Full indemnity” means recovery of what would reasonably have been contemplated as the amount a lawyer would actually charge the client. See: McQueen v. Reid, 2018 ONSC 1662 at para. 43; Niagara Peninsula Conservation Authority v. Smith, 2018 ONSC 127 at para. 19. When a Court orders full indemnity costs, it means that the party is entitled to recover all that it has expended in the action. See: Owen v The Estate of Barbara Owen, 2016 ONSC 6241 at para. 32.
[15] Every case must be decided based on its own facts and circumstances, and there has been a wide range of awards made pursuant to 137.1(7) of the Courts of Justice Act; visualize:
- Bondfield Construction Co. v. The Globe and Mail, 2018 ONSC 3347, $500,000
- Platnick v Bent, 2017 ONSC 585, $282,943
- United Soils Management Ltd. v. Barclay, 2018 ONSC 1372, $126,438
- McQueen v. Reid, 2018 ONSC 1662, $80,000
- Niagara Peninsula Conservation Authority v. Smith, 2018 ONSC 127, $48,172
- Able Translations Ltd. v Express International Translations, 2016 ONSC 6785, $30,000
- New Dermamed Inc. v. Sulaiman, 2018 ONSC 3454, $20,000
- Kett v. Elston, 2018 ONSC 2991, $14,023
[16] In my opinion, there is no merit to DEI Films’ submissions that the costs should be other than the full indemnity provided for by s. 137.1(7) of the Courts of Justice Act and that the Defendants ran up the costs in pursuit of their anti-SLAPP motion.
[17] DEI Films was suing the Defendants for a defamation claim of $1.5 million, and it knew or ought to have expected that the Defendants would respond in a strenuous way to the action. DEI Films was provided with a transcript of the impugned broadcast, and it knew or ought to have known that the conversation was a matter of public interest and that there was nothing defamatory of DEI Films in the broadcast conversation.
[18] I see no reason to reduce the costs claimed. I note that there is the apparent discrepancy that CMR 101.3’s request is about twice as much as that of Mr. Tiwari. However, the explanation is that Mr. Tiwari, who was entitled to have his own independent legal representation, sensibly instructed his lawyer to co-operate and utilize the research and written advocacy of CMR 101.3’s counsel. It thus appears that the Defendants’ full indemnity costs are fair and reasonable, particularly when taken in the aggregate and having regard to the seriousness of the claim being advanced.
[19] I, therefore, grant costs as requested but only as against DEI Films.