Court File and Parties

COURT FILE NO.: CV-11-00420193-0000

DATE: 2019-01-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HEALTH GENETIC CENTER CORP. o/a HEALTH GENETICS CENTER and DR. YURI MELEKHOVETS, Plaintiffs

AND:

NEW SCIENTIST MAGAZINE, PETER ALDHOUS and REED BUSINESS INFORMATION LTD., Defendants

BEFORE: Lederer J.

COUNSEL: Ioulia (Julia) Melekhovets and Mark Donald, Counsel, for the Plaintiffs

Sandra Barton and Erin Farrell, Counsel, for the Defendants

HEARD: In Writing

ENDORSEMENT

[1] This was an action in defamation. The plaintiffs were unsuccessful. The defendants seek their costs.

[2] Both sides are extreme in their submissions and the result they see as appropriate. The defendants request costs of $2,239,674.40. The plaintiffs propose $236,575.38. One might wonder how the parties could be so far apart.

[3] As the defendants see it their participation in this action was of the highest order. In every sense and in every way they took a complex subject and made every effort simplify the science and streamline the process. While there is substance to this, it was not altruism that drove the approach. Evidently the individuals involved saw their reputations and that of the magazine in which the article was published as being at risk. The actions referred to and relied on were part of a complete, comprehensive defence that left no stone unturned, no area of attack unconsidered and no defence less than fully argued. This is admirable but the question is whether it is appropriate for the plaintiff to be expected to pay for it all.

[4] For their part the plaintiffs see themselves as having produced a “robust case” that made use of “appropriate means to advance their rights in an adversarial proceeding.” The personal plaintiff is described as bringing forward “a spirited claim” and defending “himself…from allegations of incompetence.” This is, I suppose, one perspective. It is not mine. The case relied on was not “robust” or even substantive. As it played out it seemed to me to be founded on one simple proposition. The article, in issue, was defamatory and the authors (the defendants) had not discharged the onus the law places on them to demonstrate why, in the circumstances, they should not be required to pay. Hindsight being what it is (we are looking back at what happened as opposed to speculating on what the plaintiffs hoped might happen) it is clear that the strategy failed. The overarching difficulty was with the personal plaintiff. The validity of his test and his personal reputation were at stake. His approach was not to address the concerns directly with explanation, alternative understanding or justification but to obfuscate his actions (he said there were proper validation studies when there were not), point the finger of fault elsewhere (if the tests were wrong it must have been in the samples he was given), question the expertise of others (Michelle Beckwith), deny even basic and accepted science (the evolution of the Y chromosome and its reporting through the phylogenetic tree) and his failure to demonstrate any concern, empathy or responsibility to investigate the demonstrable harm that can be caused (Kimberly Robbins and Milan Jeknich). Even so, it may be that the strategy of requiring the defendant to prove that, in the face of the defamatory nature of the article, they should not have to pay any damage was the best response or perhaps the only response available to the plaintiffs. The question remains whether, having taken up an available strategy, one that failed in every respect an award of costs as low as proposed by the plaintiff is what is called for.

[5] The defendants point to and rely on Chandra v. Canadian Broadcasting Corp. 2015 ONSC 6519 as summarizing the general principles to be applied in determining the quantum and scale of costs and providing guidance as to how costs ought to be fixed. Certainly, it provides principles that govern the task; the question of how it assists in determining quantum seems to me to be somewhat more problematic.

[6] As to principles, the case considers the difference between an “assessment of costs” and the “fixing of costs”:

The fixing of costs should be simpler, less expensive and more expeditious means of determining costs that [sic] an assessment by an assessment officer.

(Chandra v. Canadian Broadcasting Corp., supra at para. 6)

[7] This distinction is reflected in the acceptance that to fix costs it is not necessary to receive or review in detail the docket entries of the party seeking costs:

These benefits of fixing costs would quickly be eroded if it became routine to require complete dockets or extensive supporting documentation.

(Chandra v. Canadian Broadcasting Corp., supra at para. 6 referring to Fernandes v. Peel Education & Tutorial Services, 2015 ONSC 3753 (Ont. S.C.J.) at paras. 39-41)

[8] In this case, I am asked to fix costs. I note the following quotations:

The motions judge concluded, correctly in my view, that there is now a presumption that costs shall be fixed by the court unless the court is satisfied that it has before it an exceptional case.

(Chandra v. Canadian Broadcasting Corp., supra at para. 12 quoting Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 71 O.R. (3d) 291; 188 OAC 201; 48 CPC (5th) 56 at para. 15)

It is in the public interest to affirm the proposition that assessments should be a rare occurrence in order to promote efficiency and costs savings to litigants by requiring the court to fix costs if it is capable of doing so.

(Chandra v. Canadian Broadcasting Corp., supra at para. 14 quoting Bouji v Heritage Education Funds Inc., 2015 ONSC 3451 at para 29.)

[9] It was not argued nor would I find that this is an exceptional circumstance. In the circumstances of this case fixing costs is appropriate. What does this entail? It is a balancing of two principles:

…One, that a successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all of the costs of a successful one.

(Chandra v. Canadian Broadcasting Corp., supra at para. 16 quoting Mark Orkin, The Law of Costs, 2^nd ed., looses-leaf (Aurora, Ont. Canada Law Book, 2010 at p. 201)

[10] What is the goal of the exercise? It has been said that:

…the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

(Chandra v. Canadian Broadcasting Corp., supra at para. 11 quoting Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 21 CCEL (3d) 161; 118 ACWS (3d) 341, 2002 25577 (ON CA) at para. 4)

[11] I turn now to the question of the quantum and how Chandra v. Canadian Broadcasting Corp. might assist. That case like this one was a defamation action. Where, as here, the original “publication”, in that case a broadcast was found to be defamatory but the defence of justification was accepted by a jury and the action dismissed. The judge fixed costs, on the elevated scale of substantial indemnity at $1,383,412 for fees and $230,588 for disbursements for a total of $1,614,000.

[12] Here what is requested represents costs at the same elevated scale. Does the case help in respect of quantum? Not, as it seems, the defendants think it should. The amounts sought require some examination beyond the absolute or total values. The award made in Chandra v. Canadian Broadcasting Corp. was made in respect of a trial that went on for 56 days. This one lasted for 13. The amount representing disbursements are comparable: there the $230,588 referred to in the immediately preceding paragraph, here $378,766.64. While the difference is significant ($148,178.64), it does not reflect a dramatic impact on the overall proposal. I note that of the $378,766.64, $104,212.84 is for “Agency” and $78,569.52 for travel. I am not sure what the former addresses. The latter is further to some of the witnesses working and residing in locations far removed from Canada. The meaningful difference is in the counsel fee: there $1,383,412; here $2,239,674.40 for a difference of $856,228. The total difference is approximately $1,000,000 more for the cost of a trial that took about ¼ of the court’s time. Another way of examining the difference is to calculate the cost per day. For the purpose of the exercise, but acknowledging it is not an accurate reflection of the distribution of costs, I assume that the costs leading to the trial were equally attributable as preparation for each day of the trial: for Chandra v. Canadian Broadcasting Corp. the calculation would divide $1,614,000 by 56 days being $28,821.43 per day; for this case it would be $2,239,674.40 divided by 13 days being $172,282.65 per day. Part of the difference may be attributable to the fact that this case relied on written argument which undoubtedly took considerable time to prepare. I say “may be” because the document entitled “Amounts Claimed for Fees and Disbursements” does not appear to refer to anything after “Trial Attendance” and “Costs”. Nonetheless, viewed in this way, the difference between the two trials is extreme suggesting that using one to assess the costs in the other is of limited utility.

[13] On the other hand, the plaintiffs’ proposal ($236,575.38) is so low as to be less than the cost of the disbursements claimed by the defendants. The experts retained and relied on by the defendants were of the highest calibre and the evidence they provided pivotal to the trial and the reasons for judgment. I accept the costs associated with them to be, in every sense, appropriate.

[14] It is from this foundation that I am asked to fix costs. It is apparent from the nature and conduct of the trial that the defendants produced a formidable defence and the plaintiffs did little by way of substantive response. Essentially, they left it to the defence to prove its case, which it did. Where is the balance between relieving the defendants of having to bear the costs where they are free of blame and yet not make the threat of costs so prohibitive that the fear of them will leave some unprepared to take the risk and bring valid claims or rely on effective defences?

[15] In this case the defendants are entitled to a significant award of costs but not to the value requested. I repeat that the defence presented was comprehensive in its breadth and fulsome in its depth. This is to be respected but the cost is more than the plaintiffs can reasonably have foreseen or be expected to pay.

[16] The costs could be reduced by a finding that this was not a case for an award at an elevated a scale. The fact remains that the trial was completed in a reasonably expeditious fashion. This was due, in part to arrangements made by the defendants but also to cross-examinations of the plaintiff that were shorter than initially projected. It could have taken much longer. It might be that a detailed review of the time spent could produce reductions. No submissions were made on this account. There were formal settlement offers made that, in the result, were not met. Together or independently these factors could produce an appropriate result. To my mind, in this case, the fixing of costs is a more generalized exercise.

[17] I award costs in the amount of $1,100,000 for fees inclusive of the applicable HST and $378,766.64 for disbursements also inclusive of HST for a total of $1,478,766.64. By any general understanding, this is a significant award for the costs of a trial that took 13 days. I make it cognizant of the observation found in Bernstein v. Poon 2015 ONSC 155 at para. 127 quoting British Chiropractic Association v. Singh, 2010 EWCA Civ 350 which in turn was referring to the US Seventh Circuit Court of Appeals in Underwager v Salter 22 F. 3d 730 (7^th Cir. 1994) at para. 19 (also a libel action over a scientific controversy):

[Plaintiffs] cannot, simply by filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.

[18] This quotation marks the problem with this case and the approach taken by the plaintiffs.

Lederer J.

Date: January 22, 2019