Court File and Parties

Court File No.: CV-16-554290 Date: 2018-10-31 Superior Court of Justice – Ontario

Re: Ezra Levant, Plaintiff And: Robert P. J. Day, Defendant

Before: Carole J. Brown, J.

Counsel: A. Irvin Schein, for the Responding Party/Plaintiff Jeff G Saikaley, for the Moving Party/Defendant

Heard: In-writing

Costs Endorsement

[1] The defendant brought a motion pursuant to the anti-SLAPP provisions of the Courts of Justice Act (“CJA”), s 137.1, which I dismissed. A second motion to introduce fresh evidence in relation to the anti-SLAPP motion was brought subsequent to hearing the anti-SLAPP motion but before I had rendered my decision. This was also dismissed.

[2] The plaintiff seeks its costs of defending these motions.

[3] Pursuant to the CJA, s. 137.1 (8):

“If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs of the motion unless the judge determines that such an award is appropriate in the circumstances.”

[4] It is the position of the plaintiff, responding party, that, while there is a presumption that even where a respondent on such a motion is successful, it should not receive costs unless the court exercises its discretion to the contrary, in this case, a costs award would be appropriate. The plaintiff/responding party relies on the recent Court of Appeal cases in Veneruzzo, infra and Platnick v Bent, infra.

[5] It is the position of the moving party, Mr. Day, that the provisions of the CJA, section 137.1 (8) are applicable and that no costs should be awarded.

[6] The Court of Appeal has recently released a series of anti-SLAPP decisions. In Veneruzzo et al v Storey, 2018 ONCA 688, the Court of Appeal commented on and gave guidance as regards the court’s exercise of discretion in awarding costs on such motions.

[7] The Court of Appeal, in Veneruzzo observed, as regards the appeal of the costs award, that the motions judge had held that the respondents could not be criticized for initiating the lawsuit. Their lawsuit had none of the features common to the typical SLAPP. There was nothing strategic about the lawsuit and the plaintiffs did not set out to intimidate the appellant or extract costs from him. The respondents were not attempting to suppress public participation but alleged damage to their individual reputations. The motions judge found there was no ulterior motive for the lawsuit that would take it outside the usual considerations of a defamation action for damages.

[8] Secondly, the motion judge found that the appellant’s argument that the relevant statements in the posts related to matters of public interest had no merit. As the claim of public interest was found to be without merit and there were no facts that would suggest a cost award would be inequitable, the award of costs was upheld by the Court of Appeal.

[9] The Court held as follows:

[38] The motion judge’s reasons for ordering costs in favour of the respondents are consistent with the rationale for the costs provisions in section 137.1. Those sections are designed to encourage defendants, who have been sued over expressions on matters of public interest, to bring section 137.1 motions for an early dismissal of those claims. The cost provisions ease the financial burden and risk placed on the defendant who seeks an early termination of what it claims is a SLAPP. Accruent LLC v Mishimagi, 2016 ONSC 6924, 9 C.P.C. (8th) 136 at para 4.

[39] The purpose underlying the cost provisions in section 137.1 disappears when the lawsuit has none of the characteristics of a SLAPP, and the impugned expression is unrelated to a matter of public interest. In those circumstances, it is not the initial lawsuit challenging the expression that represents a potential misuse of the litigation process, but rather the section 137.1 motion. A costs order denying a successful respondent its costs on a section 137.1 motion, even though the lawsuit was not brought for an improper motive and the claim did not relate to a matter of public interest, could be seen as encouraging defendants to bring meritless section 137.1 motions.

[10] In Platnick v Bent, 2018 ONCA 687, the Court of Appeal observed that the indicia of a SLAPP suit include a history of the plaintiff using litigation or the threat of litigation to silence critics; financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and minimal nominal damages suffered by the plaintiff.

[11] In this case, I found, in dismissing the defendant’s anti-SLAPP motion that the impugned expressions did not relate to matters of public interest but were rather, in pith and substance, defamatory direct personal attacks on Mr. Levant, thinly veiled as a discussion on matters of public interest.

[12] I further found that prior to commencing the defamation action, Mr. Levant requested that Mr. Day correct the defamatory statements, but he failed or refused to do so. As well, I found that the two defences raised by Mr. Day, namely fair comment and the failure of the plaintiff to serve notice pursuant to the Libel and Slander Act were not valid defences. As regards fair comment, I found that the statements were motivated by malice. As regards notice, I found that the Act, as presently worded, does not apply to Twitter posts.

[13] None of the indicia of a SLAPP, as set forth in Platnick v Bent, supra, were present in this case.

[14] I am satisfied that an award of costs to the respondent/plaintiff in all the circumstances of this case, is appropriate. Based on the bill of costs provided, the plaintiff, responding party, seeks his partial indemnity costs, including disbursements and HST, on the main anti-SLAPP motion in the amount of $13,666.22, and on the motion to adduce fresh evidence, in the amount of $6,047.42, including HST and disbursements.

[15] The respondent, Mr. Day, shall pay to the plaintiff, Mr. Levant, the total amount of $19,731.64 forthwith.

Carole J. Brown, J. Date: October 31, 2018