Court File and Parties

COURT FILE NO.: CV-17-581078

DATE: 2019-11-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KEVIN HAMLIN, Plaintiff

AND:

JACKIE KAVANAGH AND THE SIMCOE COUNTY DISTRICT SCHOOL BOARD, Defendants

BEFORE: Cavanagh J.

COUNSEL: Peter A. Downard and Rachel Laurion, for the Plaintiff Keven S. Adams and Emily Vereshchak, for the Defendants

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] In a decision released on September 25, 2019 I dismissed the defendants’ motion to dismiss this action pursuant to the anti-SLAPP provision in s. 137.1(3) of the Courts of Justice Act.

[2] The successful plaintiff seeks costs of the motion on a partial indemnity scale.

[3] The defendants rely on s. 137.1(8) of the Courts of Justice Act which provides:

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.

[4] The defendants submit that the plaintiff has not shown that this presumptive rule should not apply. They ask that the plaintiff’s request for costs be denied.

[5] The plaintiff submits that the circumstances of this motion are such that it is appropriate for me to depart from the presumptive entitlement of the defendants to an order that the plaintiff is not entitled to costs. In support of this submission, the plaintiff contends that his action bears none of the characteristics of a SLAPP suit and that he does not bring his action for the purpose of restricting participation on matters of public interest.[^1] The plaintiff also argues that the defendants did not seek an early dismissal of the action but, instead, acted in ways that significantly delayed the progress of the action. In these circumstances, the plaintiff raises the concern that if powerful defendants are too easily allowed to avoid the payment of costs to a less powerful plaintiff against whom they have brought an unsuccessful SLAPP motion, there is a danger that s. 137.1 may be used to deter legitimate plaintiffs from meaningful access to justice.

[6] In support of his submissions, the plaintiff relies upon Veneruzzo v. Storey, 2018 ONCA 688. In Veneruzzo, the Court of Appeal heard an appeal from the motion judge’s decision to exercise his discretion to award costs to the successful plaintiff on a motion brought pursuant to s. 137.1 of the Courts of Justice Act. The motion judge did so for two reasons: first, he concluded that the plaintiffs could not be criticized for initiating the lawsuit which had none of the features common to a typical SLAPP, and, second, there was no merit to the defendant’s argument that the impugned statements related to matters of public interest. The Court of Appeal addressed the motion judge’s reasons at paras. 38 and 39:

The motion judge’s reasons for ordering costs in favour of the respondents are consistent with the rationale for the costs provisions in s. 137.1. Those sections are designed to encourage defendants, who have been sued over expressions on matters of public interest, to bring s. 137.1 motions for an early dismissal of those claims. The costs provisions ease the financial burden and risk placed on the defendant who seeks an early termination of what it claims is a SLAPP: Accruent LLC v. Mishimagi, 2016 ONSC 6924 (Ont. S.C.J.), 9 C.P.C. (8th) 136, at para. 4.

The purpose underlying the costs provisions in section 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. In those circumstances, it is not the initial lawsuit challenging the expression that represents a potential misuse of the litigation process, but rather the s. 137.1 motion. A costs order denying a successful respondent its costs on a s. 137.1 motion, even though the lawsuit was not brought for an improper motive and the claim did not relate to a matter of public interest, could be seen as encouraging defendants to bring meritless s. 137.1 motions.

[7] The Court of Appeal held that both factors cited by the motion judge provided a reasonable basis for his conclusion that a costs award in favour of the plaintiffs was appropriate.

[8] In my decision, I held that the defendants had met their onus under s. 137.1(3) of satisfying me that this action arises from expressions that relate to a matter of public interest. The plaintiff did not contest that the defendants had done so. This is a significant point of distinction between the circumstances of the motion before me and those in Veneruzzo. I accept that the plaintiff’s action does not satisfy the indicia identified by the Court of Appeal in Platnick for a SLAPP suit. I observe, however, that in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, the Court of Appeal (the same panel that decided Platnick) noted at para. 103 that “nothing in the language of s. 137.1 limits the provision to claims, normally defamation actions, that fit squarely within the traditional notions of a SLAPP”.

[9] The defendants were unsuccessful on their motion because the plaintiff satisfied his onus in respect of the “merits-based” hurdle and the “public interest” hurdle in s. 137.1(4)(a) and (b). Although the defendants were unsuccessful, I am not satisfied on the record before me that their motion should properly be characterized as frivolous or ill-conceived. I am unable to conclude that the defendants brought their motion for an improper purpose. I decline to exercise my discretion to depart from the statutory presumption in s. 137.1(8) simply because the action does not meet the traditional indicia of a SLAPP.

[10] The plaintiff relies on Levant v. Day, 2019 ONCA 244 in support of his submission that the defendants failed to move at an early stage of the litigation, and this justifies a departure from the statutory presumption in s. 137.1(8). In Levant, the Court of Appeal heard an appeal from the decision of a motion judge who had exercised her discretion to award costs against the unsuccessful moving party on a motion brought pursuant to s. 137.1. The Court of Appeal considered the most significant factor to be that the anti-SLAPP motion was brought after the action was set down for trial. The Court of Appeal held at para. 29 that motions under s. 137.1 should be brought early in the proceedings and the delay in bringing the anti-SLAPP motion justified an award of costs in favour of the successful plaintiff, despite s. 137.1(8).

[11] This action was commenced by notice of action issued on August 18, 2017. The statement of claim was filed on September 18, 2017 and the defendants served a statement of defence on December 11, 2017. The plaintiff served his affidavit of documents on March 1, 2018 and, thereafter, pressed the defendants to deliver their affidavits of documents. They did not do so. The defendants informed the plaintiff of their intention to bring a motion under section 137.1 in late September 2018 and they took steps to proceed with their motion in January 2019 and served their motion record in May 2019. Rule 137.2(3) required the defendants to obtain a hearing date for the motion before notice of the motion was served.

[12] The defendants’ motion was not brought after the action was set down for trial, as was the case in Levant. The motion was brought before documentary discovery was completed and before oral discovery began. The motion materials were extensive and would have taken some time to assemble. Although a number of months passed after the close of pleadings and before the defendants notified the plaintiff of their intention to move under s. 137.1, I am not satisfied that the motion was brought at such a late stage in the action as to justify a departure from the presumptive order as to costs in s. 137.1(8). I decline to exercise my jurisdiction to do so.

[13] For these reasons, I am not persuaded that I should exercise my discretion to award costs to the successful plaintiff contrary to the statutory presumption in s. 137.1(8) of the Courts of Justice Act. There will be no order as to costs of this motion.

Cavanagh J.

Date: November 13, 2019

[^1]: In Platnick v. Bent, 2018 ONCA 687 the Court of Appeal held at paras. 98-99 that the indicia of a SLAPP suit include: a history of the plaintiff using litigation or the threat of litigation to silence critics, a financial or power imbalance that strongly favours the plaintiff; a punitive or retributory purpose animating the plaintiff’s claim; and minimal or nominal damages suffered by the plaintiff. The Court of Appeal in Platnick identified these indicia as a way of focusing the harm analysis required under s. 137.1(4)(b).