Court File and Parties
Court File No.: CV-15-526680 Date: 2019-10-02 Superior Court of Justice - Ontario
Re: Canadian Standards Association, Responding Party (Plaintiff) And: PS Knight Co. Ltd. and Gordon Knight, Moving Parties (Defendants)
Before: C.J. Brown J.
Counsel: Wendy Wagner and Anastasia Semenova, for the Responding Party Jeffrey Radnoff and Charles Haworth, for the Moving Parties
Heard: March 26, 2018, April 17, 2018 and December 13, 2018
Costs Endorsement
[1] The moving party defendants, PS Knight Co. Ltd. and Gordon Knight (“Knight”), brought a motion to dismiss the action of the responding party plaintiff, Canadian Standards Association (“CSA”) pursuant to section 137.1 of the Courts of Justice Act. This Court dismissed that motion on the ground that it was without merit.
[2] The CSA now seeks its costs of the motion on the ground that costs are appropriate in the circumstances of this case.
[3] It is the position of the moving party, Knight, that, pursuant to section 137.1(8), the responding party is not entitled to costs unless the judge determines that the costs are appropriate in the circumstances and argues that, in the circumstances of this case, costs are not appropriate.
[4] As regards costs on a section 137.1 motion, the Rules of Civil Procedure, section 137.1 (7) and (8) provide as follows:
(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.
(8) if a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.
[5] The Court of Appeal for Ontario has given guidance regarding application of these provisions, and the judge’s exercise of discretion in awarding costs on an anti-SLAPP in Veneruzzo v. Storey, 2018 ONCA 688.
[6] The Court of Appeal held that the provisions in section 137.1 are meant to ease the financial burden and risk placed on the defendant who seeks an early termination of an alleged SLAPP suit. However, this underlying purpose disappears when the lawsuit has none of the characteristics of a SLAPP, and the impugned expression is unrelated to a matter of public interest. A costs order denying a successful respondent its costs where the lawsuit was not brought for an improper motive and the claim does not relate to a matter of public interest could be seen as encouraging meritless section 137.1 motions: Veneruzzo v. Storey, supra, paras. 38 - 39.
[7] The indicia of a SLAPP as set forth by the Court of Appeal for Ontario in Platnick v. Bent, 2018 ONCA 687 are as follows: (i) a history of the plaintiff using litigation or the threat of litigation to silence critics; (ii) financial or power imbalance that strongly favours the plaintiff; (iii) a punitive or retributive purpose animating the plaintiff’s bringing of the claim; and (iv) minimal nominal damages suffered by the plaintiff.
[8] In the present case, CSA Group’s claim has none of the indicia of a SLAPP and there is no public interest in protecting the impugned expression. Therefore, the presumption that no costs should be awarded to the successful respondent is not supported.
[9] As this Court found:
The defendants’ allegations “are very serious and are potentially damaging to anyone’s reputation” and “there are grounds to believe the [plaintiff’s] claim has substantial merit” (paras. 44 - 45);
“There were no proven facts to support the allegations made by the defendants” (para. 54);
“The defendants did not attempt to verify the impugned statements… and in some instances, continued to repeat and republish statements which they knew to be false” (para. 63);
“The blog posts are replete with unsubstantiated and unfounded allegations, and constitute, in essence, based on all of the evidence, personal attacks on the CSA Group that alleged illegal treasonous conduct on the part of the plaintiff supporting a finding of malice” (para. 107);
“There is no history of the CSA Group using litigation or the threat of litigation to silence critics. It appears from the evidence that there is a power imbalance in favour of the CSA Group. However, there is no evidence of a punitive or retributive purpose animating the CSA Group’s bringing of the defamation claim. They commenced this action legitimately and were attempting to stop the allegedly defamatory statements from circulating in the public through blogs and social websites. Finally, as I have found below, there is very likely to be more than minimal or nominal damages suffered by the CSA Group.” (para. 114);
“The defendants used their blogs, articles and Twitter account to focus a sustained assault on the plaintiff’s work, reputation and integrity, without a factual basis.… There is no public interest in protecting said Blog posts/articles and tweets” (paras. 126 - 127).
“I am satisfied that the comments made and widely disseminated by the defendants are not comments based on proven fact. Instead, they constitute a personal vendetta against the CSA Group in retaliation for a copyright action brought by the CSA Group against the defendants. I reiterate that the defendants admit that the copyright litigation was the proximate cause of the creation of the website.” (Para 131)
[10] In this case, the presumption that no costs should be awarded to the successful respondent is rebutted, as the respondent’s claim has none of the indicia of a SLAPP and there is no public interest in protecting the impugned expression, as this Court found above.
[11] I am satisfied that none of the reasons underlying the costs provisions under section 137.1 (7), (8) exist in this case and that a denial of costs to the successful respondent could be perceived as encouraging defendants to bring meritless section 137.1 motions. I am satisfied that in the circumstances of this case, for the reasons above noted, the respondent CSA is entitled to its costs of this motion. I have reviewed the respondent’s costs outline and find it fair and reasonable given the significant amount of work required and the cross-examinations held, all of which work was of assistance to this Court. I award costs to the respondent, payable by the moving party forthwith in the amount of $44,320.57, including disbursements.
C. J. Brown J.
Date: October 2, 2019