Court File and Parties

COURT FILE NO.: CV-19-79414 DATE: 2020/04/20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELE DI FRANCO Plaintiff/Responding Party – and – MICHAEL BUECKERT Defendant/Moving Party

Counsel: Jean-François Lalonde and Victoria Lamontagne for Plaintiff/Responding Party Yavar Hameed and Daniel Tucker-Simmons for Defendant/Moving Party

HEARD: In writing

Costs Endorsement

JUSTICE SALLY GOMERY

[1] In this lawsuit, Michele Di Franco claims that Michael Bueckert defamed him in tweets and other public comments by linking his views to the alt-right. On March 30, 2020, I dismissed Mr. Bueckert’s motion to dismiss the action under s. 371.1 of the Courts of Justice Act. Di Franco v. Bueckert, 2020 ONSC 1954. I also dismissed Mr. Di Franco’s bid to strike Mr. Bueckert’s affidavit in support of his motion.

[2] Each party now claims partial victory on the motions. For the reasons that follow, no costs are awarded on the anti-SLAPP motion, and Mr. Bueckert is awarded $3000 in costs on the motion to strike.

Costs on the anti-SLAPP motion

[3] Mr. Di Franco claims costs of over $59,000 from Mr. Bueckert on the anti-SLAPP motion. Mr. Bueckert claims costs of about $2200 from Mr. Di Franco.

Mr. Di Franco’s claim for costs

[4] Section 137.1(8) establishes a presumption that costs are not awarded where a court dismisses an anti-SLAPP suit:

137.1(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] According to the 2010 Anti-SLAPP Advisory Panel Report to the Attorney General (Ontario: Ministry of the Attorney General, October 28, 2010) that led to the enactment of s. 137.1, cost awards against unsuccessful defendants should serve as "sanctions against parties who bring frivolous motions for protection".

[6] Courts have accordingly held that it is appropriate to order costs where an anti-SLAPP motion was clearly without merit. Thompson v. Cohodes, 2017 ONSC 2590, at para. 42; Montour v. Beacon Publishing Inc., 2017 ONSC 6361, at para. 18; Canadian Standards Association v. Knight, 2019 ONSC 5630, at paras. 9 to 11.

[7] Mr. Bueckert’s anti-SLAPP motion was not frivolous. Although I concluded that a trial judge could reasonably find that his comments about Mr. Di Franco were defamatory and that his defences might reasonably be rejected by a trier of fact, the outcome of this analysis was not a foregone conclusion. I also wrestled with the weight to be given to the competing interests relevant to the final stage of the s. 137.1 analysis. Both parties had legitimate arguments. It follows that the motion was not ill-conceived.

[8] This is also not a case, like Veneruzzo v. Storey, 2018 ONCA 688 or Sokoloff v Tru-Path Occupational Therapy Services Ltd., 2019 ONSC 4756, where the expression at issue did not relate to a matter of public interest. Mr. Di Franco in fact conceded this point when the anti-SLAPP motion was argued.

[9] I did find, as the court did in those two cases, that this action has none of the traditional hallmarks of a strategic lawsuit against public participation. Mr. Di Franco is not “a powerful entity that hasn’t sustained any real damage” who has brought a defamation claim “to intimidate a much weaker defendant and stop any further discussion of a matter of public interest”. Ferreira v. Da Costa, 2019 ONSC 2990, at para. 4.

[10] Motions under section 137.1 are not however limited to cases with the hallmarks of a SLAPP suit. The determination that a defamation suit has the characteristics of the specific kind of lawsuit that s. 137.1 was designed to curtail will weigh in favour of granting an anti-SLAPP motion. But this is just one way of assessing the public interest allowing the lawsuit to continue. Finding that the lawsuit does not have the characteristics of a traditional SLAPP does not preclude granting a s. 137.1 motion.

[11] In Veneruzzo, 2018 ONCA 688, the Court of Appeal held that the presumption against a cost award was rebutted for two reasons: the underlying action lacked the hallmarks of a SLAPP suit and the impugned expression did not relate to a matter of public interest. As recently observed by a colleague, in the absence of both factors, or a finding that the anti-SLAPP motion was frivolous or brought late: Ferreira v. Da Costa, 2019 ONSC 2990, at para. 8.

The mere fact that an anti-SLAPP challenge is dismissed and the defamation action is allowed to proceed to trial … is not enough to justify a costs award under s. 137.1(8). Otherwise, the statutory presumption set out therein would be completely undermined.

[12] I agree.

[13] Finally, Mr. Di Franco argues, as he did on the anti-SLAPP motion, that the way in which Mr. Bueckert generally chose to express himself did not have any value and did not deserve to be protected. In his words:

Bueckert’s impugned speech included insults, pithy, partisan, and pejorative sound bytes. The statements were devoid of reasoned analysis and debate. The statements do not serve the value underlying freedom of expression, and for that reason, there is no public interest in protecting this kind of speech.

[14] As found at para. 98 of my decision, however, I found that I could not assess the value of Mr. Bueckert’s comments, in part because Canadian courts have yet to determine the relative value of tweets as a form of political expression:

Although tweets are a recognized medium for political expression, their value as a means of promoting informed debate is unclear. The messages typically conveyed in tweets – which often jettison reasoned analysis and debate for pithy, partisan, and often pejorative, sound bites – could attract lesser protection. On the other hand, given their effectiveness as a means of inciting exchanges on topics of public interest, tweets might arguably attract a high degree of protection.

[15] This indeterminacy arguably favoured Mr. Di Franco’s position. Because I could not determine the extent to which society has an interest is protecting the freedom to tweet, I could not determine whether this interest outweighed the interest in allowing the plaintiff to pursue his legal rights against the defendant. This supported the dismissal of the anti-SLAPP motion.

[16] It would be perverse if, in the context of assessing costs, I revisited my earlier finding and concluded that Mr. Bueckert’s expression has no value.

[17] I conclude that there is no reason to depart from the statutory presumption that costs should not be awarded on the dismissal of Mr. Bueckert’s motion.

Mr. Bueckert’s claim for costs

[18] Mr. Bueckert claims costs arising from Mr. Di Franco’s refusal to answer questions about his political views during his cross-examination. He argues that this obstructionist behaviour caused him “to devote resources assessing and addressing the refusals”, the costs of which could have been avoided “had the Plaintiff explained his views clearly in his affidavit in the first place, or simply answered the questions”. As a result, Mr. Bueckert claims all of his lawyers’ fees for the preparation and attendance at the plaintiff’s cross-examination.

[19] I am not prepared to find that Mr. Di Franco’s approach to his cross-examination denuded the entire exercise of any value. A court has not ruled that the questions at issue were improperly refused. In any event, they were not the only questions asked during the cross-examination.

[20] Section s. 137.1(8) creates an exception to the usual “lose pays costs” presumption. Because of it, Mr. Bueckert has been able to present an unsuccessful anti-SLAPP motion without having to pay the legal costs that the plaintiff had to incur to respond to it. The anti-SLAPP legislation does not however presumptively require Mr. Di Franco to pay anything beyond his own legal costs on the motion.

[21] For all of these reasons, I decline to award Mr. Bueckert for costs thrown away on the cross-examination.

Costs on motion to strike the affidavit

[22] Mr. Bueckert claims $13,567.27 plus HST in substantial indemnity costs on the motion to strike his affidavit. He claims a further $2,154.00 plus HST in costs for the preparation of his cost submissions, because Mr. Di Franco refused an offer to settle the issue.

[23] Mr. Di Franco says that costs on the motion to strike the affidavit should either not be ordered or a decision on this issue deferred to the trial judge. In the further alternative, he contends that a maximum of $2,217.53 in costs ought to be awarded to Mr. Bueckert, based on Mr. Di Franco’s own partial indemnity costs on the motion to strike.

[24] Further to r. 57.03(1) of the Rules of Civil Procedure a judge should fix the costs of a contested motion and order them to be paid within 30 days, “unless the court is satisfied that a different order would be more just”. Pursuant to s. 131 of the Courts of Justice Act, the court has wide discretion in determining the costs of and incidental to any step in a proceeding. Rule 57.01(1) lists specific factors for the court to consider in exercising this discretion.

[25] Having reviewed the parties’ costs submissions and costs outlines, I have identified six relevant r. 57.01(1) factors:

(1) The principle of indemnity

[26] As the winning party on the motion, Mr. Bueckert is presumptively entitled to recover some of his costs. The rates charged by members of his legal team are reasonable; lead counsel’s hourly rate is substantially lower than that of plaintiff’s counsel, even though Mr. Hameed and Mr. Lalonde have practiced law the same length of time. The number of hours recorded by the defence legal team was also reasonable, in the circumstances. Although team members collectively spent almost 100 hours on the motion to strike, more than half of this time was billed by an articling student whose rate was less than $100 an hour. The time required was also increased due to the way the plaintiff chose to present the motion. As noted at paragraph 21 of my reasons, Mr. Di Franco’s materials on the motion were unhelpful and incomplete and did not include either a particularized notice of motion or a factum.

(2) The amount of costs that an unsuccessful party could reasonably expect to pay

[27] The golden rule in fixing cost awards is that the amount should be reasonable. The costs incurred by the losing party are one way of gauging the reasonability of the costs claimed by the winning party. Based on this, Mr. Di Franco argues that I should not award Mr. Bueckert more than he could have claimed, as partial indemnity costs, had he won the motion to strike.

[28] In this case, Mr. Di Franco’s lawyers departed from the usual practice and chose to present the motion without preparing a detailed notice of motion or a factum. This does not mean that it was reasonable for Mr. Di Franco to expect Mr. Bueckert’s lawyers to take the same approach.

[29] Given the length of Mr. Bueckert’s affidavit, and the array of arguments presented by the plaintiff on the motion to strike, I find that Mr. Di Franco should have reasonably expected that, if he lost the motion, he would have to pay partial indemnity costs in the range of $5000 to $7500.

(3) The importance of the issues

[30] Mr. Bueckert’s affidavit evidence was critical to his arguments about the viability of his defenses of fair comment and justification. Had Mr. Di Franco succeeded in having it struck, it would have been much easier for him to succeed on this stage of the s. 137.1 analysis.

(4) Whether the motion was improper, vexatious or unnecessary

[31] Mr. Bueckert argues that he is entitled to substantial indemnity costs because Mr. Di Franco’s motion to strike his affidavit was fundamentally ill-conceived. The arguments presented on the motion could all have been made in the context of the main motion, because they went to the weight of the evidence rather than its admissibility.

[32] This criticism is not entirely well-founded. There were significant problems with Mr. Bueckert’s affidavit. As I found at paragraph 27 of the reasons, it contained material beyond what a court ought to consider in the context of an anti-SLAPP motion. It focused on the merits of the lawsuit rather than the narrower issues on a s. 137.1 motion. The affidavit contained some improper opinion evidence. It was prolix and often argumentative.

[33] I concluded that these issues went to weight rather than admissibility and dismissed the motion to strike. The argument presented by Mr. Di Franco on the motion nonetheless identified weaknesses in Mr. Bueckert’s evidence. Whether these weaknesses were laid bare in the context of a motion to strike or the main anti-SLAPP motion, his lawyers would have had to respond to them.

[34] As a result, although Mr. Di Franco arguably did not need to serve a separate motion to attack the affidavit, I cannot conclude that his procedural strategy forced the defendant’s lawyers to do a substantial amount of work that they would not otherwise have had to do.

(5) Defendant’s offer to settle costs

[35] In his cost submissions, Mr. Bueckert seeks additional costs of roughly $2400, the fees he paid his lawyers to prepare the submissions, “because the Plaintiff failed to accept an offer to settle costs on a party and party basis made on April 3rd amounting to $10,935.90, which would have obviated the need for these submissions”.

[36] Under r. 49.13, in fixing costs, a court may consider any written offer to settle. Mr. Bueckert has not however filed evidence or even clearly stated that his April 3 offer was made in writing. All I have is a bald assertion of fact unsupported by an affidavit.

[37] In his costs submissions, Mr. Bueckert seems to imply that the offer is relevant under r. 57.01(1)(e), which allows the court to take into consideration “the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding”. I am not aware of any authority that would permit me to circumvent the requirement under r. 49.13 that, to be considered as a factor in fixing costs, an offer must be made in writing.

[38] In any event, given my conclusion below on the appropriate cost award, I am not prepared to exercise my discretion to take the alleged offer into consideration.

(6) Other relevant factors

[39] Mr. Di Franco argues that costs on the motion to strike should be reserved to the trier of fact, because if “the weight of the Defendant’s evidence [is] relevant at the trial or on a motion for summary judgment, the work that has been done to date will reduce the costs of the trial or the motion for summary judgement”.

[40] I agree that the work done, as a result of the motion, may assist both parties in determining what more they need to put on the record, and may give them a leg up in some argument. This argues for a reduction in the cost award on the motion to strike rather than the deferral of the issue altogether.

Conclusions on costs of motion to strike

[41] Mr. Bueckert has not established an entitlement to substantial indemnity costs. His partial indemnity costs on the motion are about $8100 plus HST. I am discounting this by two third because some of the work done may continue to serve a useful purpose for the defendant, either in the context of a summary judgment motion or a hearing on the merits.

[42] Weighing the relevant factors, I award Mr. Bueckert $3000 on the motion to strike, payable by Mr. Di Franco within 30 days.

Justice Sally Gomery Released: April 20, 2020

COURT FILE NO.: CV-19-79414 DATE: 20/04/2020 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MICHELE DI FRANCO Plaintiff/Responding Party – and – MICHAEL BUECKERT Defendant/Moving Party COSTS ENDORSEMENT Gomery J. Released: April 20, 2020