Court File and Parties
COURT FILE NO.: 17-74826
DATE: 2020/07/14
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE
RE: SKAFCO LIMITED o/a ROBBIE’S ITALIAN RESTAURANT, HOUSSAM ZAGHLOUL, and NADA YAACOUB, Plaintiffs (Moving Parties)
AND:
MARWAN ABDALLA and NATIONAL CAPITOL PALESTINIAN CANADIAN CHAMBER OF COMMERCE, Defendants (Responding Parties)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Mario Torres, Joseph Doris, for the Plaintiffs/Moving Parties Marwan Abdalla, for the Defendants/Responding Parties
HEARD: In Writing
Costs Endorsement
[1] This is the disposition of the request for costs in relation to my decision granting summary judgment in this matter. See 2020 ONSC 136. As set out in that decision, I found that the plaintiffs were entitled to damages for defamation but the amounts I awarded were modest compared to the demand set out in the pleadings. Indeed, the collective amount of the judgment was well within the Small Claims Court limit.
[2] I have now reviewed the written submissions on costs. On April 25, 2018 the plaintiffs made an offer to settle for $10,000.00 plus partial indemnity costs, certain disbursements and an apology. Strictly speaking this offer does not engage Rule 49.10 because the offer required an apology and a release but it is still an offer that may be considered under Rule 49.13 when the court exercises its discretion to fix costs. A second offer was made in April of 2019 which would have required no payment from the defendants other than release of the funds held in Small Claims Court (in the related proceeding) and a mutual non-disparagement agreement.
[3] Had either of these offers been accepted then it is true, as submitted by counsel for the plaintiffs, that the costs of the summary judgment motion would not have been incurred. The plaintiffs therefore seek costs of $35,870.58 plus disbursements which represents partial indemnity costs of pursuing the action and proceeding with the summary judgment motion.
[4] The defendants argue that there should be no costs. This is because the action was pursued as a Superior Court action when it could have been pursued in Small Claims Court. Rule 57.05 permits the court to make an order depriving a successful plaintiff of costs under those circumstances.
[5] The policy behind Rule 57.05 is to discourage plaintiffs from pursuing inflated claims but it is not a mandatory rule. The court may award costs to the successful plaintiff even if the amount recovered is ultimately under the Small Claims Court limit of $25,000.00.
[6] This was a defamation action. Such actions are about more than monetary damages and they are actions in which either party has the right to a trial by jury – which is not available in Small Claims Court. Although no jury notice was served, the plaintiff did seek injunctive relief which is also not available in Small Claims Court. Defamation actions not infrequently result in modest monetary damages but they play an important role in discouraging dissemination of falsehoods designed to undermine a person’s reputation in the community.
[7] I do not consider this a case in which the plaintiff should be deprived of costs, particularly in light of the offers to settle. On the other hand, there is an overarching principle of proportionality which applies to costs as it does to application and interpretation of all of the Rules.
[8] Ultimately, an award of costs is an exercise of discretion in which the court must consider all of the circumstances in addition to the factors enumerated in Rules 49 and 57. I am of the view that $10,000.00 in costs is appropriate in this instance.
[9] Consequently, the plaintiffs shall have an award of $10,000.00 in costs in addition to the award of damages.
Mr. Justice Calum MacLeod
Date: July 14, 2020
COURT FILE NO.: 17-74826
DATE: 2020/07/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SKAFCO LIMITED o/a ROBBIE’S ITALIAN RESTAURANT, HOUSSAM ZAGHLOUL, and NADA YAACOUB, Plaintiffs (Moving Parties)
AND:
MARWAN ABDALLA and NATIONAL CAPITOL PALESTINIAN CANADIAN CHAMBER OF COMMERCE, Defendants (Responding Parties)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Mario Torres, Joseph Doris, for the Plaintiffs/Moving Parties Marwan Abadalla, for the Defendants/Responding Parties
Costs Endorsement
Released: July 14, 2020