Court File and Parties
COURT FILE NO.: CV-19-00619304
DATE: 20190812
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WENDY SOKOLOFF and WENDY SOKOLOFF PROFESSIONAL CORPORATION C.O.B. SOKOLOFF LAWYERS, Plaintiffs
– and –
TRU-PATH OCCUPATIONAL THERAPY SERVICES LTD. and TROY CAMPBELL, Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: Jonathan Lisus and Vlad Calina, for the Plaintiffs
Paul Dollak, for the Defendants
HEARD: July 24, 2019
anti-SLAPP MOTION – aMended reasons for JUDGMENT
[The “Part VII: Costs” section of this document has been amended from the original reasons for judgment issued on July 5, 2019]
[1] Is a dispute with a law firm necessarily a matter of public interest?
I. The Anti-SLAPP policy
[2] The Plaintiff, Sokoloff Lawyers, and the Defendant, Tru-Path Occupational Therapy Services Ltd. (“Tru-Path”), are involved in a dispute over payments claimed by Tru-Path. The merits of that dispute are not at issue in this action, but the facts of that dispute underlie the present action.
[3] Here, the Plaintiffs – Sokoloff Lawyers and its senior partner, Wendy Sokoloff – have sued the Defendants – Tru-Path and its president, Troy Campbell – for libel. This action has come about as a result of Mr. Campbell standing for several days outside the Plaintiffs’ law offices with large placards proclaiming, all in capital letters, the Defendants’ view of the dispute between the parties:
SOKOLOFF LAWYERS USED OUR COMPANY’S REHAB SERVICES TO HELP MANY OF THEIR CLIENTS’ AB CLAIMS BUT WON’T PAY.
OVER $1.3 MILLION OF OUR REHAB COMPANY’S PAYMENT IS BEING SEIZED BY SOKOLOFF LAWYERS.
DEAR SOKOLOFF LAWYERS: YOU HAVE OUR REHAB COMPANY’S NEARLY $1.4 MILLION DOLLARS. PAY YOUR UNDERTAKINGS NOW!
SOKOLOFF LAWYERS IS TAKING MONEY FROM OUR REHAB COMPANY’S ACCOUNT TO PAY THEIR CLIENT’S TORT DISBURSEMENT. HOW IS THIS LEGAL?
[4] The Defendants deny that the statements on the signs were defamatory, but do not deny what they said or that they were part of a protest that Mr. Campbell conducted outside the Plaintiffs’ offices. They contend that their dispute with the Plaintiffs impugns the ethical conduct of Ms. Sokoloff and her law firm, professionals that are publicly regulated by the Law Society of Ontario (“LSO”), and that it is therefore a matter of broad public interest. They view the Plaintiffs’ libel action as a means of placing a “gag” on their public discussion of regulatory and ethical issues related to the conduct of the Plaintiffs as lawyers.
[5] The Plaintiffs, of course, do not see it that way. They contend that their dispute with the Tru-Path is a strictly private one that has nothing to do with the regulation of lawyers, client relations or legal ethics. They view the Defendants as trying to manufacture a public controversy out of a contractual and financial dispute. While the Plaintiffs necessarily acknowledge that lawyers and law firms are regulated entities, they take the position that not everything a lawyer does is of public interest such as to make lawyers fair game for defamatory statements.
[6] Given their view of the libel action, the Defendants have moved under section 137.1 of the Courts of Justice Act, RSO 1990, c C43 for an order dismissing the action as a so-called ‘SLAPP (Strategic Litigation Against Public Participation) suit’. Under that statutory provision, the Defendants can have the proceeding dismissed in the following circumstances:
if the proceeding “arises from an expression made by the person that relates to a matter of public interest” [s. 137.1(3)],
unless the plaintiff establishes that
a. there are grounds to believe that the proceeding has “substantial merit” [s. 137.1(4)(a)(i)],
b. there are grounds to believe that the defendant “has no valid defence in the proceeding” [s. 137.1(4)(a)(ii)], and
c. the harm suffered by the plaintiff as a result of the defendant’s expression is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression” [s. 137.1(4)(b)].
[7] Although the test on its face is a multi-step exercise, the Court of Appeal has clarified that the anti-SLAPP motion is to be treated as a preliminary screening device: Lascaris v B’nai Brith Canada, 2019 ONCA 163, para 30. It is therefore envisioned as an abbreviated procedure:
Section 137.1 does not provide an alternate means by which the merits of a claim can be tried, and it is not a form of summary judgment intended to allow defendants to obtain a quick and favourable resolution of the merits of allegations involving expressions on matters of public interest. Instead, the provision aims to remove from the litigation stream at an early stage those cases, which under the criteria set out in the section, should not proceed to trial for a determination on the merits.
1704604 Ontario Ltd. v Pointes Protection Assoc’n, 2018 ONCA 685, para 73.
II. The monetary dispute
[8] Tru-Path contends that Sokoloff Lawyers have withheld from them – “seized”, in the words of Mr. Campbell’s placard – a substantial amount of money held in their trust account. The Defendants put the amount in the range of $1.3 million. According to the Defendants, these funds belong to Tru-Path in respect of rehab services rendered to patients, and the failure of Sokoloff Lawyers to hand them over to Tru-Path represents a breach of an “undertaking” to protect Tru-Path’s funds.
[9] As I understand it, sometime in 2008 the parties entered into a referral arrangement in which Sokoloff Lawyers would refer clients requiring occupational therapy to Tru-Path for treatment. The proposed treatment and its cost was described in each client’s treatment plan. If the client’s insurance company approved the rehab services, Tru-Path would be paid by the insurer for any treatment incurred.
[10] In the event that the insurance company partly or entirely denied coverage, the client was at liberty to commence a dispute with the insurer. If a dispute ensued, Tru-Path would be paid if its patient and the insurer settled their differences and the patient agreed to Tru-Path’s expenses, or if Tru-Path proved its accounts at a hearing – i.e. established that its expenses were “reasonable and necessary”.
[11] If the insurance company denied coverage and the matter did not settle, Tru-Path was at liberty to treat the patient without immediate payment. In that case, Sokoloff Lawyers agreed to protect Tru-Path’s reasonable or proven account. That is, where the client/patient disputed all or any of Tru-Path’s account, Sokoloff Lawyers agreed that they would retain in trust sufficient funds to pay that account.
[12] As is evident from this brief description, the relationship between the parties was essentially a referral relationship. There was no direct client/services relationship between them. The clients would retain Sokoloff Lawyers to represent them in a proceeding against their insurer. Separately, the clients would engage Tru-Path to provide occupational therapy services. The obligation to pay the Tru-Path’s invoices was that of Tru-Path’s patient, not of Sokoloff Lawyers.
[13] Indeed, even a successful resolution of a dispute with an insurance company might not automatically result in payment to Tru-Path for its services. The insurer would pay the Sokoloff Lawyers, who would in turn hold the funds in trust for its client. The Defendants claim that the Plaintiffs had undertaken to pass these funds on to Tru-Path; the Plaintiffs submit that Sokoloff Lawyers could only pay Tru-Path if their mutual client authorized the payment.
[14] Counsel for the Defendants portrays the dispute as one which impacts on the public’s access to rehab services and accident benefits, and that it impugns the integrity and ethics of the Plaintiffs. Counsel for the Plaintiffs observes that the dispute is first, foremost, and only a financial dispute between two professional service firms.
III. Public interest
[15] As indicated above, the first prong of the test in determining whether the action is a SLAPP suit to which s. 137.1 applies is that the subject matter of the expression in issue must be a matter of public interest. As Doherty JA observed in Pointes Protection, para 54, “The ‘public interest’ as referred to in s. 137.1(3) is determined by asking – what is the expression about, or what does it pertain to?” The Court made it clear that the determination of public interest does not turn on the size of the audience [para 63], and “does not take into account the merits or manner of the expression” [para 65].
[16] Beyond those general observations, the concept is not an easy one to pin down. The Court of Appeal has stressed that the onus is on the Defendants to establish that the statements in issue are in the public interest, failing which the motion must be dismissed: Pointes Protection, para 65. Having said that, the Supreme Court of Canada has indicated that, “[t]he authorities offer no single test for public interest, nor a static list of topics falling within the public interest”: Grant v Torstar Corp, 2009 SCC 61, [2009] 3 SCR 640, para 103. Generally speaking, public evaluations of service providers, in particular online reviews or commentary that is analogous to online reviews, tend to be in the “public interest” within the meaning of s. 137.1, even where the business entities in issue have no particular public profile: New Dermamed Inc v Sulaiman, 2018 ONSC 2517, [2018] OJ No 2134, para 25.
[17] Counsel for the Defendants provides a number of examples in the case law in which he says that statements about businesses or professionals analogous to Mr. Campbell’s statements about the Plaintiffs have been found to be in the public interest for the purposes of s. 137.1(3). In the first place, the “relationship between insured and insurer and the role of IMEs and assessment companies in that system [has been] found to be a matter of public interest”: Platnic v Bent (2016), 2016 ONSC 7340, 136 OR (3d) 339 (SCJ), para 67, rev’d on other grounds 2018 ONCA 687. More specifically, Defendants’ counsel states that a communication is in the public interest where it “relates to the process put in place by the legislature for the determination of claims made by persons injured in motor vehicle accidents…and, in particular, the honesty and reliability of medical reports”: Platnic (Ont CA), para 26.
[18] In addition, legal ethics is generally a subject that is of public concern. Thus, cases that consider how a tribunal deals with a lawyer who lies to it have been held to be within the realm of public interest: Vigna v Levant, 2010 ONSC 6308, [2010] OJ No 5250, para 69. More to the point, “the law and ethics of lawyers getting paid for their legal services and collecting their bills” is a matter of public concern: Thomas Gold Pettingill LLP v Ani-Wall Concrete Forming Inc., 2012 ONSC 2182, [2012] OJ No 2109, para 3. Defendants’ counsel submits that a number of the Law Society’s Rules of Professional Conduct are at issue in the business litigation between the parties, including the obligation to act with integrity [s. 2.1] and the duty to fulfill undertakings [s. 5.6-1].
[19] That said, a tangential relationship between the subject matter of the defamatory language and the operation of the legal system or lawyers or, for that matter, the insurance industry and an accident benefit scheme, does not make the case one of concern to the public at large: Veneruzzo v Storey, 2018 ONCA 688, para 20, 26. Defendants’ counsel submits that there is a certain amount of notoriety about Sokoloff lawyers, and that that in itself makes a dispute of this nature a matter of interest to the public. I do not know if that is the case; the record does not establish any relationship between the dispute between Sokoloff Lawyers and Tru-Path and any previous dispute. Insofar as there is some notoriety surrounding the present controversy, it was probably caused by Mr. Campbell’s protest and not by anything Sokoloff Lawyers did.
[20] In any event, the interest of the public described by Defendants’ counsel does not rise above “mere curiosity or prurient interest” and so does not meet the s. 137.1(3) test: See ibid., para 37. As this court has previously observed, “What is not germane to that public interest, however, is sheer gossip about [the Plaintiffs’] integrity or ethics in her chosen profession: McCarthy-Oppedisano v Muter, 2018 ONSC 2136, para 46.
[21] Likewise, a targeted attack “raising poor character in the face of a specific dispute with a lawyer is not in the public interest”: Daboll v DeMarco, 2011 ONSC 1, para 43. Importantly, the Court of Appeal pointed out in Veneruzzo, para 20, that, “A defendant who makes statements about a purely private matter cannot gain the protection of s. 137.1(3) by interspersing references to some other topic that may relate to a matter of public interest.”
[22] The Rules of Professional Conduct hold that, “A lawyer’s responsibilities are greater than those of a private citizen”: s. 5.6-1, Commentary 1. That said, the anti-SLAPP policy was not enacted by the Ontario legislature in order to make it open season for defaming lawyers. Not everything a lawyer or law firm does is a matter public interest such that it can be criticized in language that is immune from challenge in a defamation suit.
[23] In order to pass the s. 137.1(3) hurdle, it is not sufficient to address an issue that at its most general involves the field of law, legal ethics, health care, rehab services, or accident benefits. The real question here is whether the words spoken are with respect to the Plaintiffs’ publicly scrutinized conduct as members of the legal profession on which clientele relies, or are with respect to the Plaintiffs’ private conduct in carrying on its business. While the public certainly has a heightened interest in the ethical conduct of lawyers, not every lawyers’ transaction fits this pattern.
IV. The impugned words in context
[24] Counsel for the Defendants has portrayed the controversy in this case as one that speaks to the to the public’s concern about the legal profession and its regulation. The Defendants themselves, however, have expressed the crux of the issue in a different way, leaning far more to the private side of the public/private characterization of the dispute.
[25] Mr. Campbell’s affidavit in support of the Defendants’ position makes it clear that the question of contractual obligations – whether Sokoloff Lawyers had to protect Tru-Path’s fees where it received settlement funds on cases where Tru-Path had not been fully paid – is the sole issue between them. That is what Mr. Campbell says prompted him to hold signs outside the Plaintiffs’ place of business, and not questions regarding the provision of health services or legal services to clients. As Mr. Campbell declared in cross-examination, “…the signs I was carrying in front of Sokoloff Lawyers offices are concerned with settled matters in which Wendy and Sokoloff Lawyers are holding onto – have seized – money belonging to Tru-Path.”
[26] To perhaps state the obvious, Mr. Campbell does not say that he was holding signs on the sidewalk because he was concerned about accident victims, or the provision of services to the public. Likewise, he was not concerned with the regulation of lawyers and their professional obligations in handling trust funds. When asked in cross-examination about a lawyer’s duty of loyalty to their client, and whether he was aware that lawyers cannot pay out trust funds without the client’s authorization, he responded curtly and frankly: “No, and it doesn’t concern me.”
[27] As counsel for the Plaintiffs points out, you cannot be making statements about a matter of public interest if you profess to be indifferent to the public interest. What Mr. Campbell cared about in his one-man protest vigil – what his allegedly defamatory signs spoke about – was the fact that Sokoloff Lawyers owed him and his company money. The impugned statements are about the financial dispute between the two professional parties, not about legal ethics, accident benefits or rehab services.
[28] Tru-Path carries on a regulated health profession and has fiduciary duties to its own patients. Sokoloff Lawyers has a contractual relationship with Tru-Path, but is not responsible to True-Path’s patients except in the patients’ overlapping capacity as Sokoloff Lawyers’ clients. The Plaintiffs are responsible to their own clients, but their own clients – qua clients – play no part in this dispute.
[29] Although Defendants’ portrayal endeavors to have one forget the role of the parties, Tru-Path is not a vulnerable client in a dispute with its lawyer or law firm. It is not dependent on Sokolof Lawyers for legal representation and advice. That would be a different kind of controversy. A fee dispute between a solicitor and client could well attract the public interest as it touches on issues of legal costs and access to justice.
[30] Rather, Tru-Path is itself a firm of professionals, and the two sets of professionals are in a contractual dispute over money. A payment dispute between two independently regulated professional firms loses the public complexion and takes on a strictly private demeaner.
[31] If there is a public interest in anything here, it is in having these professionals resolve their differences in a court of law and not on the street. The public’s confidence in the professions depends on a certain amount of professional decorum; an unseemly attempt to embarrass one by the other by taking the dispute to the streets, as it were, serves no public interest.
[32] In their factum, Plaintiffs’ counsel writes: “There is no ‘public interest’ in allowing one member of a professional services firm to accuse another professional of unlawful conduct on the street for the purpose of embarrassing them into settling a dispute that is already before the courts.” Mr. Campbell is, of course, free to protest like any other citizen. But in doing so he cannot shield himself from a libel action by feigning to be acting out of public interest. He is acting contrary to any public interest.
[33] While I understand the Defendants’ frustration that led Mr. Campbell to his visible campaign to collect his money, in my view his actions do not prompt public discourse in the way envisioned by s. 137.1 of the Courts of Justice Act. This is not akin to a client standing outside the courthouse with a placard in protest against some legal policy or even in protest against high legal fees. Rather, this is a dispute among regulated professionals collaboratively providing their respective professional services to clients/patients. Their financial disagreements are supposed to be argued in court; there is no public interest in taking them to the street.
V. The harm outweighs the speech
[34] Since the Defendants’ protest placards are aimed strictly at their own private, commercial interest and do not engage the public interest, their motion under s. 137.1 cannot succeed. The public interest component of the test is a sine qua non of a successful anti-SLAPP motion. There is therefore no need to take the next steps in the analysis and ask whether there are grounds to believe that the claim has merit or that the Defendants have no viable defense.
[35] That said, it is worth spending a short time examining the last component of the statutory test – i.e. whether the harm suffered by the Plaintiffs is “sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”. Since I have already concluded that there is no real public interest in the expression at issue, the harm would not have to be great for the balance to tip in the Plaintiff’s favour. Nevertheless, it is of sufficient importance to the Plaintiff, and serves to re-emphasize why matters that do not speak of issues in the public interest must proceed in the ordinary course.
[36] General damages are presumed to be significant in cases where, as here, the defamatory words undermine the honesty and integrity of the Plaintiffs in their professional capacity: Pointes Protection, para 98. The Plaintiffs suffered serious allegations that impacted in a direct way on their professional reputation. The Supreme Court of Canada has said that this kind of reputational injury is perhaps the most severe type of damage that a lawyer can incur:
[C]onsideration must be given to the particular significance reputation has for a lawyer. The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation.
Hill v Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, para 118.
[37] At this stage in the proceedings, the Plaintiffs are not required to quantify damages, but rather must show that a basis exists on which a court could make some assessment about the nature of the harm suffered: Pointes Protection, paras 90-91. Here, the Plaintiffs have produced evidence that the statements made by the Defendants have been circulated on social media and have come back in the form of questions raised by other therapists in the personal injuries/rehab community. In today’s digital communications environment, even more than 20 years ago when the Supreme Court made its observation, it is a fact of life that “a defamatory statement can seep into the crevasses of the subconscious…The unfortunate impression left by a libel may last a lifetime”: Hill, para 166.
[38] Given the reputational harm demonstrated by the Plaintiffs and the non-importance from a public point of view of the financial dispute between the parties, it is not difficult to perform the balance required by s. 137.1(4)(b) of the Courts of Justice Act. The Plaintiffs’ harm outweighs any imperative that the subject matter of the Defendants’ speech be aired on placards on the street corner.
[39] Accordingly, not only has harm been adequately demonstrated by the Plaintiffs, there is no public policy on the Defendants’ side to counterbalance that harm.
[40] The words on Mr. Campbell’s placards may ultimately be determined to be libelous or innocent, but that determination must be made as this case progresses. There are no grounds to terminate the Plaintiffs’ claim at this stage. This is a regular libel case brought because the Plaintiffs feel they need to vindicate their professional reputation; it is not strategic litigation aimed at chilling discussion of any public interest matter.
VI. Disposition
[41] The Defendants’ motion is dismissed.
VII. Costs
[42] In my original reasons for judgment in this matter I awarded costs to the Plaintiff in the all-inclusive amount of $75,000.
[43] Subsequently, counsel for the Defendants wrote to me indicating that I had failed to take into account section 137.1(8) of the Courts of Justice Act, which addresses the issue of costs with respect to an unsuccessful moving party in an anti-SLAPP motion. Having been alerted to this, I indicated to both sets of counsel that I was open to re-visiting the costs argument and invited their submissions. I have now received submissions on this point by counsel for both sides.
[44] Defendants’ counsel was correct that I overlooked s. 137.1(8). I appreciate his bringing it to my attention.
[45] I originally commenced the ‘Costs’ section of my reasons with the sentence, “As the successful parties in this motion, the Plaintiffs deserve their costs.” In doing so, I had applied the usual presumption in Rule 57.01(1) of the Rules of Civil Procedure that the successful party is entitled to costs on a partial indemnity basis. Section 137.1(8), however, changes that presumption to one of no costs payable by the unsuccessful party. As Defendants’ counsel points out in his submissions, the policy of the section is to make motions under s. 137.1 more accessible to Defendants. The presumption of no costs, therefore, is not to be lightly put aside: see Ferreira v Da Costa, [2019] OJ No 2574 (SCJ).
[46] As counsel for the Defendants also points out, s. 137.1(8) does leave a residual discretion in the motions judge to award costs. This discretion, however, is limited to situations where there are “compelling facts” which would prompt such an award: Veneruzzo v Storey, 2017 ONSC 2532, aff’d 2018 ONCA 688. In his written submissions, Defendants’ counsel references McCarthy-Oppedesano v Muter, 2018 ONSC 2875, para 5, for a description of the Veneruzzo facts and as an example of the kind of compelling case that could lead to an award of costs against an unsuccessful defendant in an anti-SLAPP motion notwithstanding the s. 137.1(8) presumption:
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.
[47] I agree that the facts in Veneruzzo appear to have been extraordinary and understand why thy might invite court to exercise its residual discretion under s. 137.1(8) to award costs to the successful party. I note, however, that the conduct that made the case so compelling was that of the defendant himself that gave rise to the defamation suit in the first place; it was not the conduct of counsel or of the defendant during the course of the litigation.
[48] More specifically, what made Veneruzzo compelling to the court was not so much the hurtful quality of the defendant’s words – although they were certainly very hurtful – since all anti-SLAPP tend to arise from hurtful and allegedly defamatory expressions in one context or another. Rather, the distinguishing feature of Veneruzzo, as noted in McCarthy-Oppedesano, was the fact that the defendant was a police officer whose conduct was far outside of the professionalism that one would expect of him. A police officer engages in a heavily regulated public service, and if he has something relevant to say about an individual he encounters in his professional capacity he has a venue in court to put forward that information. The public does not expect the police to resort to an allegedly defamatory social media campaign to make a point that should be made in a proper legal setting.
[49] This is on all-fours with the way counsel for the Plaintiff describes the Defendants’ impugned conduct in the case at bar. As indicated earlier in these reasons, the dispute here is a financial one between members of two publicly regulated professions. The public does not expect its regulated health professionals to resort to allegedly defamatory street corner placards to make a point that should be made in a proper legal setting. That is simply not in any definition of the public interest.
[50] As the Court of Appeal noted in Veneruzzo, para 39, “[t]he 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.” The Defendants were trying to get the Plaintiff to pay a disputed bill. Instead of issuing a commercial claim against them, they tried to save themselves a legal bill and took to the street corner. As Plaintiff’s counsel points out, this is not the type of context in which a Defendant deserves costs immunity; the court’s policy, under s. 17.1(8) and otherwise, is to encourage disputing parties to use a legal forum, not extra-legal means, to resolve their disputes.
[51] Plaintiffs’ counsel has submitted a Costs Outline on a partial indemnity scale seeking just over $102,000, all inclusive. This reflects the time put into the file by four lawyers ranging from 27 years to 4 years’ experience.
[52] Defendants’ counsel has submitted a Costs Outline seeking just over $100,000. Their counsel has some 26 years’ experience in civil litigation. The Defendants’ costs have been calculated on a full indemnity basis. I assume that this was done in view of the full indemnity costs to which the Defendants would be entitled under s. 137.1(7) of the Courts of Justice Act had they been successful in having the action dismissed.
[53] Under Rule 57.01(1)(0.b) of the Rules of Civil Procedure, I am directed to consider whether the amount sought by the successful party would take the other party by surprise. Here, although the Plaintiffs’ costs are higher than the Defendants’, they are not that much higher. The gap between them reflects the difference between full and partial indemnity scales. Given that the Plaintiffs had a team of lawyers from their firm working on the matter while Defendants’ counsel was only one lawyer assisted by a paralegal, it is not surprising that Plaintiffs’ counsel’s cumulative hourly fees would be somewhat higher.
[54] As a rule, I am not inclined to pick away at successful counsel’s costs unless they are unreasonably higher than what would be expected. That is not the case here. Plaintiffs’ counsel appears to have put in no more and no less than the hours that they felt were needed to succeed in the case.
[55] I have heard some evidence about the financial stress that their dispute with the Plaintiffs has caused for the Defendants. I am sympathetic to the Defendants’ situation, although I cannot really blame the Plaintiffs for any of it – certainly not in the context of the case before me.
[56] I will exercise the residual discretion which I retain under s. 137.1(8) of the Courts of Justice Act to award costs on a partial indemnity basis to the Plaintiffs as the successful party.
[57] At the same time, I will also exercise the general discretion I have under s. 133 of the Courts of Justice Act to reduce the costs award a bit in view of the economic pressure on the Defendants, while remaining fair to the Plaintiffs’ right to be indemnified for their counsels’ successful investment of time. The Court of Appeal has stated that it is incumbent in fixing costs to be “fair and reasonable”, with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291, paras 26, 37.
[58] The award of costs as stated in my original reasons for judgment remain unchanged. The Defendants shall pay the Plaintiffs costs of the motion in the amount of $75,000.
Date: August 12, 2019
Morgan J.