Court File and Parties

Court File No.: CV-15-115-00 Date: 2019-08-21 Superior Court of Justice - Ontario

Re: Dr. Dick Eric Zoutman, Plaintiff And: James Graham and RateMDs.com, Defendants

Before: Mr. Justice Graeme Mew

Counsel: Dorothy Charach and Erin S. Chesney, for the Plaintiff Marc A. Munro, for the Defendant, James Graham

Heard: In Writing

Endorsement on costs

[1] James Graham defamed Dr. Dick Zoutman in twelve separate postings on websites which enable users to inform themselves about physicians through the firsthand experiences of other patients. He did so with malice. As a result, Dr. Zoutman was awarded $50,000.00 by way of damages and a permanent injunction preventing Mr. Graham from engaging in similar behaviour in the future: see Zoutman v. Graham, 2019 ONSC 2834.

[2] In addition to losing the motion for summary judgment, Mr. Graham also tried, unsuccessfully, to bring an anti-SLAPP motion, which was not initiated until after there was a fully brief summary judgment motion on record.

[3] Dr. Zoutman made a number of offers to settle, the most recent of which, dated 14 November 2018, was for Mr. Graham to pay Dr. Zoutman $10,000.00, and refrain from posting/publishing further statements, essentially in accordance with the terms of the injunction that was subsequently granted. The offer also provided that Mr. Graham would pay Dr. Zoutman costs of $10,000.00.

[4] The judgment obtained by Dr. Zoutman is clearly more favourable than the terms of his offer. Indeed, in an earlier offer, made on 10 May 2017, Dr. Zoutman offered to settle for $10,000.00 all inclusive. Accordingly, he asserts that he should receive partial indemnity costs until the date of that offer and substantial indemnity costs thereafter. The total claim for costs on this basis is $57,454.20. The claim for costs, determined on a partial indemnity basis throughout, is $39,051.60.

[5] No serious issue is taken with the rates used in calculating costs. That said, Dr. Zoutman was represented by two counsel at the hearing. In my view, the complexities of this case do not warrant fixing the defendant with the responsibility for the attendance of two counsel.

[6] The defendant’s own costs, calculated on a partial indemnity basis, are $38,735.81.

[7] I would observe that the second offer implicitly withdraws a previous offer: Diefenbacher v. Young (1995), 22 O.R. (3d) 641 (C.A.). It was the second offer that was in place at the time of trial and, hence, which engages the costs consequences provided for in Rule 49.10 of the Rules of Civil Procedure. Nevertheless the earlier offer may still inform the exercise of my discretion to award costs: Rule 49.13.

[8] Mr. Graham acknowledges that as the successful party, Dr. Zoutman is entitled to costs, but argues that the amount requested is contrary to the principles of proportionality and reasonableness. Furthermore, he points out that Section 137.1(8) of the Courts of Justice Act provides that if a judge does not dismiss a proceeding as a result of an anti-SLAPP motion, the responding party is not entitled to the costs of the motion, unless the judge determines that such an award is appropriate in the circumstances.

[9] The defendant adds that although the anti-SLAPP motion was brought after the summary judgment motion had been filed, the defendant’s intention was to have that motion heard before the summary judgment motion. It was the court decided otherwise and ordered that the two be heard together.

[10] The defendant submits that a reasonable award of costs would be an all-inclusive amount of $40,000.00.

[11] I am required to take into account the reasonable expectations of the defendant; the defendant’s own partial indemnity costs are instructive in that regard. However, it would be inappropriate of me not to recognize the willingness of the plaintiff to settle on far less than he recovered at trial.

[12] Having regard to all of the factors discussed, as well as the usual factors provided for in Rule 57.01, I fix the costs payable by Mr. Graham to Dr. Zoutman in the all-inclusive amount of $50,000.00.

Mew J.

Date: 21 August 2019