Court File and Parties

Court File No.: CV-17-577635 Date: 2019-02-22 Superior Court of Justice - Ontario

Re: Gordon Walsh, Robin Skeates, Ruby Griffith and Andre Avigdor, Plaintiffs And: Tahira Badin and Tania Sleem, Defendants

Before: Nishikawa J.

Counsel: Timothy Duggan, for the Plaintiffs Dan Rosman, for the Defendants

Heard: In writing

Costs Endorsement

[1] On January 28, 2019, I dismissed the Defendants’ motion to strike the Statement of Claim under s. 137.1 of the Courts of Justice Act, R.S.O. 1990 c. C.43 (the “CJA”): Walsh v. Badin, 2019 ONSC 689.

[2] The Plaintiffs seek costs of the motion on a partial indemnity basis for a total of $23,875.18, including disbursements and HST. The Defendants oppose on the basis of the presumption against costs on an anti-SLAPP motion under s. 137.1(8) of the CJA and because they were successful in striking certain paragraphs from the Statement of Claim.

[3] Pursuant to s. 137.1(8), if a motion to dismiss is denied, the responding party is not entitled to costs of the motion unless the judge determines that such an award is appropriate in the circumstances. In Veneruzzo v. Storey, 2018 ONCA 688, the Court of Appeal found that the section is designed to encourage defendants who have been sued over expressions on matters of public interest to bring s. 137.1 motions for early dismissal of those claims. The Court of Appeal further held that “the purpose underlying the costs provisions in s. 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” (at para. 39).

[4] While I concluded that the expressions at issue were not related to a matter of the public interest, the proceeding bears some of the indicia of a SLAPP suit. See Platnick v. Bent, 2018 ONCA 687 at para. 99. First, the Plaintiffs, and the condominium board on which all but one of the Plaintiffs were directors, have a history of using litigation to silence their critics. A previous lawsuit was initiated for the same communications at issue in this proceeding, and was discontinued only shortly before this motion was heard. In another case, the Board obtained default judgment against a resident and repeatedly referred to this in Board communications. Second, there is a power imbalance between the Plaintiffs and the Defendants in that certain of the Plaintiffs have used the authority of the Board and its resources in previous litigation. Third, I find that there is a punitive or retributory purpose animating the Plaintiffs’ claim. As noted in my Reasons on the motion, portions of the Statement of Claim were irrelevant to this proceeding but were included solely to cast the Defendant, Ms. Badin, in a negative light.

[5] Moreover, when the motion was heard, there were six anti-SLAPP cases pending before the Court of Appeal. There was uncertainty as to how s. 137.1 should properly be applied. In addition, the issue raised in this motion, regarding the defendant having to prove that they made the expression, was a novel one. It was not improper or frivolous for the Defendants to bring the motion. The Defendants were partially successful in their motion to strike.

[6] I do not find that this is an appropriate case to exercise my discretion under s. 137.1(8) to award costs to the Plaintiffs. As a result, there will be no order as to costs.

Nishikawa J. Date: February 22, 2019

cited_cases: legislation: - title: "Courts of Justice Act, R.S.O. 1990 c. C.43" url: "https://www.ontario.ca/laws/statute/90c43" case_law: - title: "Walsh v. Badin, 2019 ONSC 689" url: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc689/2019onsc689.html" - title: "Veneruzzo v. Storey, 2018 ONCA 688" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca688/2018onca688.html" - title: "Platnick v. Bent, 2018 ONCA 687" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca687/2018onca687.html"