COURT FILE NO.: CV-19-4625 (Brampton) DATE: 20210222

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Daly The Applicant is self-represented Applicant

• and -

NYX Tannery Ltd., and Mississauga (City of) Mr. G. Grenier, for the Respondent NYX Ms. D. Earthy, for the Respondent Mississauga Respondents

HEARD: November 25, 2020

REASONS FOR JUDGMENT

Introduction

[1] The applicant Julie Daly commenced this application on November 12, 2019. She served a notice of discontinuance in the application on January 14, 2020. The respondent, NYX Tannery Ltd. (NYX), seeks its costs in the abandoned application. A hearing for the determination of those costs was scheduled for November 25, 2020 and was heard by me on that date.

[2] This has been a contentious matter to the extent that approximately six other judges in Central West Region had some involvement in it on its route to the costs hearing.

[3] On February 13, 2020, Justice Emery developed a detailed timetable for the costs hearing. His timetable allowed over nine months to prepare for the costs hearing. In August of 2020, Ms. Daly brought a motion to alter the timetabling order. Justice Trimble dismissed that motion.

[4] Ms. Daly did not comply with Justice Emery’s timetabling order.

[5] On September 25, 2020 Ms. Daly served a notice of motion, purporting to be an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, returnable on the date scheduled for the costs hearing, i.e., November 25, 2020.

[6] Ms. Daly’s motion does not fit within the anti-SLAPP provisions. It does meet the threshold requirement of being “a motion by a person against whom the proceeding is brought.” Her motion is dismissed.

[7] I assess NYX’s costs in this application in the amount of $30,000.

Detailed Background

[8] Ms. Daly resides at 51 Tannery Road in Mississauga. It is a large property and had three residences, including Ms. Daly’s residence: a historical five-bedroom single-family residence which Ms. Daly refers to as “Tannery House.” Ms. Daly rented Tannery House commencing October 1, 2016 from TRP Realty. With the permission of TRP Realty, Ms. Daly sublet rooms in Tannery House to others.

[9] Ms. Daly is a retired children’s performer. She is in receipt of CPP and ODSP disability benefits and states that she is wholly dependent on these disability programs currently as her source of income.

[10] Ms. Daly is a licenced paralegal, although she has never practiced for the public. Her motion record contains a blog article in which she states: “I went back to school in 2013-2014 for paralegal studies so I could learn to defend myself against the predatory and exploitive people I encountered in residential rental properties.”

[11] The respondent NYX is a developer that bought three contiguous properties in Mississauga including 51 Tannery Rd. The respondent NYX assembled the land in order to build a development with 125 stacked townhouse units.

[12] NYX therefore became Ms. Daly’s landlord in approximately June of 2017.

[13] After unsuccessful efforts to negotiate possession of Tannery House, NYX started eviction proceedings with a notice ending Ms. Daly’s tenancy on July 15, 2019. Proceedings were brought at the Landlord Tenant Board (LTB) and are ongoing.

[14] Ms. Daly publicly opposed the NYX development including at City of Mississauga meetings, and by writing her city councillor. She also made submissions to the City of Mississauga Heritage Advisory Committee requesting that Tannery House be declared a heritage property. Those efforts were not successful.

[15] She then brought this application on November 12, 2019 with an original return date of December 20, 2019.

This Application

[16] As originally constituted, Ms. Daly’s application named only the City of Mississauga as respondent. The addressees on the notice of motion included NYX Capital Corp, a company which is related to NYX. However, the style of cause did not include NYX Capital Corp or NYX.

[17] The original application attacked the City’s demolition permits and sought to prevent demolition of Tannery House. It also sought to restrain NYX’s eviction application to the Landlord Tenant Board. (The application was later amended, apparently with idea of narrowing the requested relief to avoid the necessity of NYX’s involvement. However, the amendments do not change the fundamental picture.)

[18] NYX’s development required the demolition permits it had received. Its interests were obviously at play in this application.

[19] NYX promptly moved to have itself added as a party. NYX made its motion returnable on December 20, 2020. Ms. Daly asked for an adjournment of NYX’s motion. Justice Doi granted the adjournment of NYX’s motion and Ms. Daly’s application to January 14, 2020. The transcript reveals that Justice Doi told Ms. Daly there were “compelling reasons” why NYX was an appropriate party. If she decided to consent to the motion, she should let NYX’s lawyer know right away “otherwise you’re going to get dinged for costs.” He also said:

I do want to flag the reality that litigation is expensive, not only in terms of your own time and your own costs, if you are consulting a lawyer on a fixed retainer basis, but every step in litigation also potentially carries adverse costs consequences to the parties, right? To you if you’re not successful. To them if they are not successful. All right, it’s just the way the system is designed. So I just want to flag that. I can’t give you legal advice because that’s not my role, but I would strongly encourage you to take the time to either consult with counsel who can assist you in dealing with these issues, or to inform yourself of the applicable rules and procedures, because this is a very serious matter and there, there are potential adverse costs consequences to all parties, including, including you, in the event that findings are made against, against you or the other parties, and so I just really want to flag that at the front end because I just want to make sure that you are fully aware of that.

[20] Justice Coroza heard the NYX motion on January 14, 2020, granted the request, and added NYX as a party.

[21] In his endorsement released January 15, 2020, Justice Coroza found that it was “plain and obvious that NYX should be joined as a party.” He said that NYX “is not a secondary player and has a direct interest in the outcome of the applications.” He concluded that “the presence of NYX is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding.”

[22] Justice Coroza noted that Ms. Daly’s primary objection to the motion was that adding NYX would drive up costs. He said, “she does not want to be responsible for costs if she is not successful. Paying costs against two respondents appears to be a live concern for Ms. Daly.” He then said:

[31] Respectfully, the jurisprudence from this court holds that costs are an integral part of our litigation system and designed to dissuade claims lacking merit, promote settlements and provide compensation. In my view, the submissions made by Ms. Daly about costs are not persuasive.

[32] If there are concerns about costs, Ms. Daly can raise that with the judge hearing the application if she is not successful. The cart cannot be put before the horse. An argument that NYX ought not to be joined to this proceeding because it could cost Ms. Daly does just that.

[23] Ms. Daly immediately abandoned the application. She did so by delivering a notice of discontinuance.

[24] Ms. Daly confirmed in the hearing on November 25, 2020 that she abandoned her application because she did not want to be responsible for NYX’s costs.

[25] It was not technically correct to serve a notice of discontinuance. Only an action can be discontinued (rule 23.01), not an application. Applications can be abandoned by filing a notice of abandonment under rule 38.08(1).

Costs Hearing or Motion?

[26] There is an issue, discussed below, over whether the November 25, 2020 hearing before me regarding costs was a “motion” or a “costs hearing.” When an action is discontinued, any party to the action may bring a motion respecting the costs of the action, but the motion must be brought within 30 days of the discontinuance (r. 23.05(1)). When an application is abandoned, the responding parties are entitled to the costs of the application, unless the court “orders otherwise” (r. 38.08(3)), and no motion is required.

[27] Justice Coroza’s endorsement created some confusion about this, although the confusion was later resolved. Justice Coroza’s endorsement says:

[38] Justice Doi deferred costs to the judge hearing the joinder motion. I also heard brief submissions from the parties respecting costs.

[39] Upon reflection I have decided to defer the costs of the proceedings for this motion and the costs for the appearance in front of Justice Doi to the judge hearing the applications … .

[40] I say this because today in court Ms. Daly has advised that she intends to withdraw the applications. If that is the case, then she should comply with Rule 23.01 and serve on all parties a notice of discontinuance (Form 23A) and file the notice with proof of service.

[41] I should also bring to her attention that that pursuant to Rule 23.05, if the action is discontinued, any party to the action may, within thirty days make a motion respecting the costs of the action.

[42] As I see it, Ms. Daly should follow the Rules. If she wishes to withdraw the applications, she should file a notice of discontinuance. Once that is done, the respondent parties may schedule a motion (if they wish) to deal with costs. The judge who hears such a motion can have the full picture of what has transpired and deal with all of the costs incurred on this matter.

[28] Ms. Daly delivered a notice of discontinuance as suggested, when she should have delivered a notice of abandonment. Nothing of significance turns on this. The issue was identified and dealt with by Justice Emery. Before that could occur, however, NYX had to decide how to proceed in response to Justice Coroza’s endorsement.

[29] Given the irregularity, i.e., the notice of discontinuance as opposed to the notice of abandonment, NYX took a cautious approach and brought a motion respecting costs under rule 23.05(1) within 30 days of the discontinuance. That motion was heard by Justice Emery on February 13, 2020. His endorsement says:

The applicant has discontinued her application by serving a notice of discontinuance under rule 23.01 after receiving the endorsement of Coroza J. dated January 15, 2020. That endorsement recognizes the applicant’s intention to withdraw the application, and cautions her about triggering cost consequences if the respondent NYX brings a motion under rule 23.05. The same effect as the notice of discontinuance would have been achieved if Ms. Daly had delivered a notice of abandonment under rule 38.08 as the terminated proceeding was an application and not an action. I consider the notice of discontinuance to be an irregularity curable under rule 2.01, and can be treated as an abandonment of the application such that the respondent NYX is entitled to its costs under rule 38.08(3) without having to obtain a rule 23.05 order.

I am therefore adjourning this application with respect to the remaining issue of cost to 10:00 AM on November 25, 2020 …

[30] It is clear from the facts and from Justice Emery’s endorsement that the hearing on November 25, 2020 was a costs hearing in consequence of rule 38.08, rule 57.01(7) and Justice Emery’s order, and not a motion under rule 23.05.

“Order Otherwise”

[31] At the February 13, 2020 hearing before Justice Emery, the parties and the court were alive to the wording of rule 38.08(3) where it says a respondent is entitled to its costs of an abandoned application unless the court orders otherwise.

[32] As is apparent from the above summary, whether the court should “order otherwise” under rule 38.08(3) is a valid issue. Ms. Daly never named NYX as a party. NYX injected itself into the proceeding (although with good reason given that the relief requested would have affected its interests substantially). Once NYX was added to the proceeding, Ms. Daly immediately dropped it.

[33] In addition, Ms. Daly may have had a viable argument that NYX’s desire for costs is intended not as an effort to obtain compensation for its legal expense, but rather as an effort to obtain leverage over her in the efforts to get her to leave Tannery House. This is considered in more detail below.

[34] Once she abandoned her application, Ms. Daly would have been wise to restrict her efforts to asking the court to “order otherwise” and not award any costs against her, and to minimizing any costs award made against her. With a focused strategy, she would have been able to minimize the costs consequences of her abandoned motion. However, it was a mistake for Ms. Daly to oppose NYX’s involvement in the application and to think that she could avoid cost consequences by not naming a clearly necessary party. She would not have been able to fully escape the cost consequences of her strategy.

[35] Unfortunately, Ms. Daly did not adopt a focused approach to minimize costs. She advanced scattershot arguments. She detailed multifarious evidence in her affidavit materials, no matter how marginal its relevance. She expanded the issues in dispute. She dug a much deeper hole for herself while NYX incurred growing legal expense.

Justice Emery’s Timetable

[36] In his February 13, 2020 endorsement, Justice Emery set the following timetable:

1. Ms Daly shall bring any motion for the court “to order otherwise” under rule 38.08(3), to be heard by September 4, 2020.

2. If no “order otherwise” is made, the following events and dates are timetabled: a. Ms. Daly to deliver responding materials by October 9, 2020; b. NYX to deliver reply materials, if any, by October 19, 2020; c. Cross examinations to be conducted on October 29 and 30, 2020; d. any undertakings of refusal shall be dealt with, or adverse inferences drawn, by the application judge; e. Parties to serve and file their respective factums and books of authorities on the costs issue as follows: i. NYX by November 6, 2020; ii. Ms Daly – November 16, 2020; iii. NYX in reply – November 20, 2020.

[37] As is apparent from this order, there was discussion at the February 13, 2020 hearing about the possibility that Ms. Daly might bring a motion for the court to “order otherwise” under rule 38.08(3), that is, to order that no costs should be awarded. The transcript reveals that Ms. Daly said she was going to “seek some legal counsel on you know, the viability of that versus preparing for the other hearing.” Justice Emery’s timetable was developed with Ms. Daly’s input. For instance, he asked her, “So if no order otherwise is made, and that means if you don’t bring a motion, then no order is made, or if you bring a motion but it’s dismissed, there’s no order made, then what about responding materials? How long would you need?”

[38] It’s clear that Justice Emery intended that: (1) the November 25, 2020 motion date would be only for determining the costs of the application; and (2) a separate, earlier motion date would be arranged by Ms. Daly if she intended to request the court to “order otherwise.”

[39] Ms. Daly did not meet any of the time limits set in the timetable.

[40] Of course, the pandemic started in Ontario after the February 13, 2020 timetable was set, but despite the pandemic the timetable remained generous to Ms. Daly.

Motion to Alter the Timetable

[41] Ms. Daly either delayed in making a decision to bring a motion for the court to “order otherwise” under rule 38.08(3), or she waited too long to start arranging it. She emailed Mr. Grenier starting on July 29, 2020 seeking his agreement to change Justice Emery’s timetable. He did not agree.

[42] Ms. Daly then brought a motion to alter the timetable. That motion was heard by Justice Trimble on August 21, 2020. He dismissed the motion in his endorsement dated August 25, 2020 (Daly v. City of Mississauga, 2020 ONSC 5097).

[43] Ms. Daly served a notice of motion for leave to appeal Justice Trimble’s order but later abandoned that motion.

Materials Filed for the November 25, 2020 Hearing

[44] The September 4, 2020 deadline passed for Ms. Daly to bring “any motion for the court ‘to order otherwise’ under rule 38.08(3).”

[45] On September 25, 2020, Ms. Daly served a notice of motion seeking a variety of relief, but perhaps most significantly, she sought “An order dismissing [NYX’s] motion for costs in the underlying proceeding pursuant to section 137.1 of the Courts of Justice Act.”

[46] Section 137.1 of the Courts of Justice Act contains what is colloquially known as the anti-SLAPP rules. She did not serve a motion record at that time, just the notice of motion.

[47] Ms. Daly made the motion returnable on the date for the costs hearing, November 25, 2020.

[48] On approximately October 1, 2020, NYX served a motion record consisting of over 250 pages, including its notice of motion returnable February 13, 2020, an amended notice of motion, and a supporting affidavit.

[49] On November 10, 2020, Ms. Daly served her motion record styled as a “responding and cross-motion record.”

[50] I will point out again that, despite the stylings on the documents the parties filed, the November 25, 2020 hearing was not a motion by NYX but was a hearing regarding the costs in Ms. Daly’s application.

[51] Ms. Daly’s “responding and cross-motion record” consists of six volumes. Her affidavit is 305 paragraphs and 61 pages long, referencing approximately 123 exhibits. It was served over a month late under Justice Emery’s timetable and only 15 days before the hearing which had been scheduled over nine months earlier, thwarting the possibility of cross examination or compliance with the balance of the timetable.

[52] Ms. Daly also filed a transcripts brief, a 28-tab book of authorities, and a factum. The factum was delivered on November 17, 2020 (one day late under the timetable).

[53] In total, Ms. Daly filed over 1,600 pages of materials for this hearing, but none of it was served within the timeline set by Justice Emery’s order, which Justice Trimble declined to adjust.

Ms. Daly’s Requests for Accommodation

[54] Ms. Daly has consistently asked the court to provide her with accommodation for disabilities. Among other things, she seeks to be accommodated with extra time for tasks or deadlines.

[55] For the November 25, 2020 hearing, Ms. Daly also initially requested an in-person hearing or in the alternative a Zoom hearing but with an adjournment if her technology was compromised. She also requested an order allowing her to file extra megabytes of material and permission to exceed maximum page numbers for her materials.

[56] Ms. Daly submitted she had not been adequately accommodated for previous hearings in this matter. She did not feel she had had adequate time to prepare her motion materials. Apart from that, Ms. Daly’s other requests for accommodation in respect of the hearing before me either did not arise or were accommodated. The computer and internet connection she used for the hearing performed well and she had not been limited in the number of megabytes or pages that she filed. She was given extra time during the hearing – far more than NYX’s counsel was allowed.

[57] I reviewed with particular care all the passages in Ms. Daly’s affidavit regarding her requested accommodation and her disabilities, and all the medical reports and records she has provided to support her requests for accommodation. There were problems with the materials, such as the redaction of the name of the health care provider that prepared one of the reports. This did not add to the persuasive power of the report. Further, this report is dated February 8, 2016, so almost five years old at the time of the hearing. The report appeared to be based largely on Ms. Daly’s self-report. Redaction of the author’s name suggests the author may not be willing to vouch for the report.

[58] There is a report dated October 21, 2017 from Shelley Gorman, a psychologist, indicating Ms. Daly has a PTSD diagnosis. This report does not address the accommodations Ms. Daly requires, although it does say that Ms. Daly requires a psychologically safe environment.

[59] Both these reports were apparently prepared in connection with Landlord Tenant Board matters unrelated to this matter. Both reports are now years old.

[60] More recent reports from Dr. Arvin Kapoor are included in the motion record. Dr. Kapoor appears to be Ms. Daly’s family doctor. His reports are dated February 14, 2020 and August 14, 2020. However, again, these reports appeared to be based on Ms. Daly’s self-report.

[61] None of the evidence regarding Ms. Daly’s requests for accommodation could be tested through cross examination because she did not comply with the timeline.

[62] I am satisfied that Ms. Daly was appropriately accommodated by the prior timeline and in the hearing before me.

Quandary

[63] The November 25, 2020 hearing contemplated by Justice Emery was intended to deal solely with costs – a straightforward issue – and it was scheduled for nine months. With her anti-SLAPP motion, Ms. Daly raised an issue that must be dealt with in priority. Section 137.1(5) says that once a motion under s. 137.1 of the Courts of Justice Act is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally dealt with.

[64] This situation created a quandary. The goal is a just determination of the issues raised by the parties on their merits. But the approach taken by Ms. Daly surely was not procedurally fair to NYX. Options available to me at the hearing included: (a) disregarding all the materials Ms. Daly filed (given her non-compliance with the court-ordered timeline); (b) adjourning the matters; (c) proceeding only with NYX’s matter; (d) proceeding only with Ms. Daly’s anti-SLAPP motion. A further adjournment to a long motions date would introduce a further lengthy delay.

[65] I received all the filed materials the day before the hearing and was able to review all the factums and affidavits (and many although not all the exhibits or transcripts) in advance of the hearing. It was apparent that there were some controlling issues, and that it might be possible to determine the issues raised by the parties by starting with the controlling issues in Ms. Daly’s s. 137.1 (“anti-SLAPP”) motion to see where that led, and then depending on the outcome on those issues, to determine what steps to take next, including assessing at that point whether an adjournment of the matter was necessary.

[66] I proposed to the parties that, at the start of the hearing, I provisionally hear argument on some of the issues raised in Ms. Daly’s motion:

1. Whether the costs determination requested by NYX is a “proceeding.”

2. Whether Ms. Daly is “a person against whom a proceeding is brought” within the meaning of s. 137.1(3) of the CJA.

3. Whether Ms. Daly’s motion is brought in defiance of Justice Emery’s order where he says: “Ms. Daly shall bring any motion for the court ‘to order otherwise’ under rule 38.08(3), to be heard by September 4, 2020”

4. Whether Ms. Daly’s request to “stay” NYX’s “costs motions” pending the outcome of related proceedings before the Human Rights Tribunal is made in defiance of Justice Emery’s timetable or otherwise an attempt to re-litigate the timetable.

[67] For this argument, I would provisionally permit reference to any of the materials that had been filed.

[68] Ms. Daly’s position was that because she had brought her anti-SLAPP motion, no further steps could be taken in her application. Her anti-SLAPP motion should be dealt with first. The issue of costs in the application would have to wait.

[69] NYX objected to my proposed approach, noting that Ms. Daly was given over seven months to bring a motion for the court to “order otherwise” under rule 38.03. NYX argued that the anti-SLAPP motion fell within the phrase “any motion for the court ‘to order otherwise’ under rule 38.08(3)” in Justice Emery’s timetable, which Justice Trimble declined to adjust. NYX argued that Ms. Daly was required to bring her anti-SLAPP motion to be heard by September 4, 2020.

[70] NYX also argued that the issue of the timetable was res judicata given Justice Trimble’s order. NYX also noted the procedural unfairness that would ensue if the court permitted Ms. Daly’s motion to proceed, in that by failing to comply with the timetable, Ms. Daly had thwarted cross examination and had not afforded reasonable time for NYX to reply to her materials.

[71] Despite NYX’s objection, I determined that in order to make best use of the available court time, which is exceptionally precious as a result of the pandemic, I should provisionally hear argument on the above-described issues first. If Ms. Daly was not successful on these issues, we could proceed with determination of the costs of the application. If not, I would then have to decide whether an adjournment of Ms. Daly’s anti-SLAPP motion and the costs hearing was necessary.

[72] Upon hearing the argument, I concluded that the costs hearing was not “a proceeding” and Ms. Daly is not a “person against whom a proceeding has been brought.” My reasons for this follow. As a result of my determination, I was able to permit the parties to proceed with argument on costs. I also heard full argument on the question of whether Ms. Daly’s motion for a stay pending resolution of the HRTO proceedings. Argument was completed in a full day hearing.

[73] I fully incorporated Ms. Daly’s late-filed materials into my considerations on all issues.

Anti-SLAPP Motion

Background to Motion

[74] The purpose of s. 137.1 to 137.5 of the Courts of Justice Act is succinctly described in the headnote of 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22:

These provisions were aimed at mitigating the harmful effects of strategic lawsuits against public participation (“SLAPPs”), a phenomenon used to describe lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression and deter that party, or other potential interested parties, from participating in public affairs.

[75] The archetypal example often used to show the fairness and utility of anti-SLAPP rules is a case in which an activist speaks out against a development project and then the land developer sues the activist for defamation with the intent of shutting down opposition to the project. The provisions permit the activist to bring a motion in the land developer’s lawsuit, and immediately upon the motion being brought, no party can take any further steps in the lawsuit until the motion is dealt with. The developer then has to show its claim has merit and is not merely intended to stifle opposition to the project; otherwise, the developer’s lawsuit is dismissed.

[76] Here, Ms. Daly spoke out about NYX’s development and has been vocal trying to prevent her eviction. There is a public participation element to Ms. Daly’s activities. However, the obvious problem Ms. Daly has with her position is that NYX did not commence this proceeding. Ms. Daly did. Ms. Daly is attempting to use the anti-SLAPP provisions to avoid the costs consequences of her own application, not to avoid the cost, inconvenience and risk of a proceeding brought by NYX.

Section 137.1 of the Courts of Justice Act

[77] For ease of reference I reproduce here the provisions of s. 137.1 of the Courts of Justice Act, including the headings, with emphasis on a key phrase for purposes of this matter:

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

On motion by a person against whom a proceeding is brought

[78] Both parties’ factums recognized that there is an issue on the facts of this matter as to whether Ms. Daly’s motion fits within the phrase: “On motion by a person against whom a proceeding is brought.”

[79] Ms. Daly argues that the term “proceeding” has often been interpreted to have a broad and expansive meaning. She cites Markevich v. Canada, 2003 SCC 9, in which it was held that non-court tax collection procedures available to the Minister of National Revenue were “proceedings” and therefore the limitation period contained with the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, applied to prevent the Minister from exercising collection rights.

[80] Ms. Daly also cites Hollinger Inc. v. The Ravelstone Corp. Ltd. (2008), 2008 ONCA 207, 89 O.R. (3d) 721, at para. 14 for the proposition that a proceeding has been interpreted to include a motion within a proceeding. The context in Hollinger was that a newspaper wanted to intervene under rule 13 in a motion in the action, but on its face rule 13.01 only permits a non-party to intervene in a “proceeding” (under certain circumstances). However, non-parties are sometimes permitted to intervene in a proceeding solely with respect to a motion and the newspaper was permitted to intervene in the motion. Ms. Daly characterized the costs hearing before me as a “motion for costs” by NYX, and herself as “a person against whom the motion has been brought,” and therefore “a person against who a proceeding has been brought.”

[81] Ms. Daly further cites the expansive definition of “proceeding” in the dissenting judgment in Attorney-General for Ontario v. Palmer (1979), 28 O.R. (2d) 35 (C.A.).

[82] In response, NYX argues that Ms. Daly has no standing to bring an anti-SLAPP motion because she is not a person against whom a proceeding has been brought. NYX’s factum states:

The Applicant devotes part of her written submissions and case law to the proposition that a “motion” can be a “proceeding” and thus, s. 137.1(3) can be turned upside down and reread so that notwithstanding she is the Applicant in this proceeding, she is entitled to move further to s. 137.1(3) to avoid the costs of her own abandoned Application. The Applicant does not actually produce any case where s. 137.1(3) has been so applied to a motion within a proceeding as opposed to the entire proceeding itself, which is how s.137.1 - 137.5 is, in fact, structured and there is no provision that provides that s.137.1 - 137.5 applies to, or can be read to be applied to motions alone.

[83] NYX also argues that Ms. Daly’s position that the costs hearing is a motion is incorrect. As I have already noted, the costs hearing before me was not a motion.

Is Ms. Daly a “person against whom a proceeding has been brought”?

[84] As stated in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, supra, at para. 6, the Supreme Court of Canada:

has reiterated on numerous occasions that the modern approach to statutory interpretation requires that the words of a statute be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21).

[85] If I focus on the “objects of the act” set out in s. 137.1(1)(a) and (b), relating to promoting expression and participation in debates on matters of public interest, the idea that Ms. Daly ought not to be required to pay NYX’s costs is not a far-fetched notion. She has expressed opposition to a matter of public interest, namely the NYX development. If I make a significant award of costs against Ms. Daly in this matter, it will give NYX leverage to stifle her opposition to the project.

[86] With that said, when you look carefully at the enumerated purposes of the anti-SLAPP provisions in s. 137.1(1), it is difficult to conclude “a proceeding” should be interpreted to include “a costs hearing in a proceeding.” At least not in this case. Ms. Daly’s application here went beyond expressing her opinion or participating a debate on a matter of public interest. Her application sought to stop the project and prevent her eviction. It was Ms. Daly that initiated the litigation. It was Ms. Daly’s application that created the risk of negative costs consequences which has now crystalized, not her other statements, participation or expressions. And while she styles her application as being for the public interest, Ms. Daly’s application was brought for her own benefit.

[87] In her motion materials, Ms. Daly asserts that Tannery House is a “historical house” and she has said the house has historic value. She further asserts that NYX did not disclose all the units in Tannery House and this “threatened loss of affordable housing.” She addressed the issue of affordable housing to city officials. These statements, however, do not change the reality that Ms. Daly stood to gain a legal and economic benefit if her application had been successful.

[88] The original notice of application is an attack on the demolition permits issued for 51 Tannery Street. The relief requested included 14 requests for “determinations” by the court which would have had the effect of undermining the basis for the demolition permits. She then sought: a declaration that she is an “aggrieved” person within the meaning of the Building Code Act, 1992, S.O. 1992, c. 23, s. 25(1), in relation to the building permits; injunctive relief restraining demolition; an order restraining the Landlord Tenant Board from proceeding with eviction proceedings; and an order extending the time for her to appeal one of the demolition permits.

[89] Requiring her to pay costs for her failed pursuit of her own interests in her application does not run contrary to the objects of the anti-SLAPP provisions of the Courts of Justice Act.

[90] I have considered whether NYX’s insistence on costs is not being pursued “as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others” (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 2). It is fair to consider this when assessing whether the hearing should be considered “a proceeding against whom an application has been brought.”

[91] Ms. Daly is apparently on disability pensions and on her evidence is of limited means. This evidence has not been tested, of course. Ms. Daly’s failure to comply with the timetable prevented cross examination. However, even without Ms. Daly’s affidavit evidence, it appears NYX has something other than “vindication” or offsetting the legal costs of the application on its mind.

[92] Analysis of NYX’s bill of costs shows that on a substantial indemnity basis it spent $21,378.00 analyzing and conducting legal research on application, $36,048.75 bringing its motion to have itself added as a party, and $41,734.75 trying to recover costs. (The “actual rates” charged by NYX’s counsel are much higher than the claimed substantial indemnity rates.) This does not include the attendances in front of Justice Tzimas, Justice Trimble, or Justice Favreau. NYX has spent more trying to recover a costs award than it spent on the motion to have itself added to the application, which effectively ended the application. While the effort that Ms. Daly has put NYX through is breathtaking, it would have been predictable in January of 2020 that the economics of obtaining a costs award would likely not favour pursuing it. If it is acting rationally, NYX must think it is in its broader economic interest to obtain a costs award against Ms. Daly, even though the costs of doing so will exceed recovery.

[93] I infer that NYX’s actual motivations for obtaining a costs award include seeking to give itself leverage against her in its effort to evict her.

[94] What we have here, then, are two litigants who have pursued their own interests through this litigation.

Conclusion on Anti-SLAPP Motion

[95] In the circumstances of this case, the costs hearing should not be considered a “proceeding” within the meaning of s. 137.1(3), and Ms. Daly’s motion is not “a motion by a person against who a proceeding has been brought.” In a different case where, for instance, the application was brought wholly or primarily in the public interest, a purposive analysis and application of the legislation might yield a different result. However, that is not this case.

[96] Given this, the remedy under s. 137.1(3) of the Act is not available to Ms. Daly. The balancing required by s. 137.1(4) is not required. Subsection 137.1(5) does not apply.

Stay Pending HRT Outcome

[97] Ms. Daly’s notice of motion requests:

In the alternative, an order staying the Respondents’ costs motions pending the outcome of related proceedings before the Human Rights Tribunal of Ontario and the Superior Court of Justice pursuant to rule 6.01(1) of the Rules of Civil Procedure.

[98] The “grounds for this relief” section of Ms. Daly’s notice of motion is approximately 20 pages long containing 103 paragraphs. However, it does not articulate any sensible basis for this aspect of the requested relief. It does state:

The Applicant’s proceedings for HRTO 2020 40338-I and CV-17-5117, and the underlying proceeding for costs in CV-19-4625 are all related. The relief sought in them all arise out of the same series of occurrences and the proceedings have questions of law and fact in common.

[99] HRTO 2020 40338-I refers to the file number of a human rights complaint against the City of Mississauga and NYX, which Ms. Daly commenced on January 29, 2020. She included a copy of her complaint in her motion record.

[100] CV-17-5117 refers to the court file number of an action Ms. Daly commenced in Brampton against the Landlord Tenant Board, the City of Mississauga, Her Majesty the Queen in Right of Ontario and the Attorney General of Ontario. She included a copy of her fresh as amended statement of claim in her motion record.

[101] Ms. Daly’s factum does not develop the argument for a stay. In oral argument, Ms. Daly did not develop her argument for a stay.

[102] I see no basis for a stay.

Costs

Materials

[103] Mr. Grenier took the position that I could not consider the materials in Ms. Daly’s “Responding and Cross-Motion Record” because of Ms. Daly’s non-compliance with Justice Emery’s order, which was not adjusted by Justice Trimble.

[104] NYX has argued it is prejudiced by the late delivery of the materials. I accept that Ms. Daly’s approach was not procedurally fair to NYX. However, NYX had time to put together a strong responding factum. Most of the materials Ms. Daly submitted focused on the anti-SLAPP motion. In my view, overall, Ms. Daly’s materials buttress NYX’s claim for costs more than they harm it. NYX has not identified any prejudice to its position caused by any specific element of the materials.

[105] Despite NYX’s objection, I have reviewed all the materials and have considered them in the exercise of my discretion on costs.

What is covered by this costs ruling?

[106] Justice Doi, Justice Coroza and Justice Emery all reserved the costs of the hearings before them to the ultimate application judge. I am therefore to determine the costs of these appearances and the costs of the application.

[107] I am not dealing with: the ex parte motion before Justice Tzimas; the motion and hearing before Justice Trimble; the motion for leave to appeal Justice Trimble’s order; or the hearing before Justice Favreau to schedule the motion for leave to appeal. NYX’s bill of costs does not include a claim for costs for these steps.

Discretion as to costs

[108] In his text, Orkin on the Law of Costs (Toronto: Thomson Reuters Canada, 2020), the late Prof. Orkin has a section dealing with how courts exercise their discretion in awarding costs. Before dealing at length with how courts exercise their discretion, he describes some basic propositions familiar to all lawyers:

A successful litigant has by law no right to costs. That being said, the general rule is that costs follow the event. The Supreme Court of Canada has explained the rationale for the rule as follows:

The long-standing rule regarding costs is that they are generally awarded to a successful party, absent misconduct on his or her part. A successful litigant has a reasonable expectation that his or her costs will be paid by the unsuccessful party. The rationale for this rule is based on the fact that, had the unsuccessful party initially agreed to the position of the successful one, no costs would have been incurred by the successful party. Accordingly, it is only logical that the party who has been found to be wrong must be ready to support the costs of a litigation that could have been avoided.

An order depriving a successful party of costs is exceptional. [Footnotes omitted.]

[109] In Sacks v. Ross, 2016 ONSC 2498, starting at para. 16, Justice Wilson describes the law of costs in Ontario. Starting at para. 20, she reviews the factors the courts consider in exercising their discretion on costs:

[20] Certain principles have been established that serve as a guide when the court is exercising its discretion when fixing costs.

• The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A.).

• The Court of Appeal has identified the overriding principle to be that the amount of costs awarded be reasonable in the circumstances. In Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), Epstein J.A. stated at paras. 51-52:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.”

[22] Generally, in civil proceedings in Ontario, the rule of thumb is that costs follow the event unless there is a persuasive reason that they should not. Cumming J. in Duca Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 (S.C.J.), at para. 5, described the “normative approach” to an application for costs:

Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms. [Emphasis added].

[23] In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 (S.C.J.), at para. 10, Perell J. succinctly outlined the purposes of modern costs rules as follows:

Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements: [Citations omitted].

[24] Justice Perell went on to note, at para. 12:

In the exercise of the court’s discretion, the most general rule is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale: Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135 (C.A.); St. Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9, [2009] O.J. No. 27, at para. 4 (C.A.).

[110] Ms. Daly was familiar with the discretion judges have in awarding costs. During argument, she suggested it was within my discretion to award $1 for costs.

Factors considered in the exercise of my discretion

[111] Turning to the specific facts and circumstances of this case, I will review the factors set out in rule 57.01(1) and other significant factors I have weighed in the exercise of my discretion.

Time spent and the rates charged

[112] The bill of costs presented by NYX supports a claim for costs on a substantial indemnity basis of $112,052.49 and on a partial indemnity basis of $74,687.35. Multiple lawyers were involved in the matter. The bill of costs states that the actual rates charged to the client are as high as $750 per hour, but $525 is sought as the highest substantial indemnity rate and $350 is sought as the highest partial indemnity rate.

[113] I have not been provided detailed dockets. The time spent seem excessive in the circumstances. However, at every step, Ms. Daly has submitted extensive materials which raise complex issues and show a considerable level of sophistication. While the positions she has taken have generally been misguided and incorrect, her materials consistently justified an effortful response.

[114] NYX requested costs of $45,000 all inclusive. This was an acknowledgement that in exercising my discretion, I was unlikely to award costs even on a partial indemnity scale.

Offers to settle

[115] Ms. Daly did not make any offers to settle. The only offer that NYX made was in emails from Mr. Grenier to Ms. Daly dated December 17, 2019 and December 19, 2019. The offer was to have the costs of NYX’s motion to have itself added to the application be in the cause. Ms. Daly’s decision not to accept that offer had no impact on this proceeding because the costs of that hearing are being dealt with in the cause. In the circumstances, the offer does not weigh heavily in my decision.

Improper steps

[116] Ms. Daly should have known NYX was a necessary party and she should have known NYX needed to be included from the outset.

[117] NYX says that substantial indemnity costs are justified for the joinder motion. They rely on Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969, at para. 33 and 2017 ONSC 441 (Div. Ct.), at para 4. There, it was plain and obvious that certain parties were necessary parties to a proceeding. The plaintiff resisted joinder. Substantial indemnity costs were awarded against the plaintiff.

[118] The circumstances here are similar. Justice Coroza specifically noted in his endorsement that it was plain and obvious that NYX should be joined as a party.

[119] Without question, Ms. Daly should not have opposed the joinder motion and this is a factor which weighs towards a higher amount for costs. Because of Ms. Daly’s approach to the motion, a nominal award of costs is in no way appropriate.

Complexity

[120] The issues raised by Ms. Daly in the notice of application were complicated. She references the city’s Demolition Control By-law, the Rental Housing Protection By-law, the Planning Act, R.S.O. 1990, c. P.13, the Building Code Act, the Municipal Act, 2001, S.O. 2001, c. 25, the Residential Tenancies Act, 2006, S.O. 2006, c. 17, and the Ontario Human Rights Code, R.S.O. 1990, c. H.19, and advances a claim based on the interplay among various elements of this legislation.

[121] NYX says this justified the involvement of senior counsel with municipal law expertise. I agree this was justified.

[122] The issues raised by Ms. Daly in the anti-SLAPP motion were complex, raising a creative argument which required a considered response. The NYX reply factum was helpful on this issue.

Importance

[123] The issues were important to NYX, in that the relief requested may have caused significant delay of its development and may have prevented the development altogether. The applicant also accused NYX of improper behaviour, necessitating a robust response.

[124] The issues were also important to Ms. Daly. They clearly touch upon her ability to continue to live at Tannery House. Ms. Daly has a longstanding history of advocacy for her rights as a tenant and considers her claims to be matters of public interest (about which I will have more to say below).

[125] The issues do not have significant importance beyond the interests of the parties.

Expectation

[126] Ms. Daly is an experienced litigant. Her motion materials include documents from a variety of other legal matters she has been involved in. She has been involved in multiple matters at the Landlord Tenant Board. She lost an appeal to Divisional Court from an LTB decision and was ordered to pay over $6,000 in costs for the appeal (Daly v. 1916800 Ontario Ltd., 2019 ONSC 6319). She has been involved in proceedings at the Ontario Human Rights Commission. She sought leave to appeal to the Supreme Court of Canada in one matter (the details of which are not readily apparent from the materials).

[127] I do not read s. 57.01(0.b) as referring to the personal expectation of the parties. That is, what Ms. Daly subjectively expected she might have to pay in costs is not the issue, but rather the issue is what “an unsuccessful party could reasonably expect to pay.” However, her experience as a litigant should have given her insight. When a party files hundreds of pages of documents, there should be an expectation that opposing parties will review them and may need to respond, and that therefore the costs awarded in the matter may be significant.

Access to Justice

[128] Access to justice is a factor to be considered in assessing costs, but the impact of this consideration is not straightforward. For example, in Mangal v. William Osler Health Centre, 2013 ONSC 5276, Justice Marrocco awarded no costs against a plaintiff in an unsuccessful medical malpractice case based on access to justice considerations. However, in Sacks v. Ross, supra, also an unsuccessful medical malpractice case, Justice Wilson said, “I do not perceive the imposition of costs on the unsuccessful party ignores the principle of access to justice.”

[129] In this case, Ms. Daly has not suffered from any inability to access the court system and to be heard. The costs award I have decided upon reflects only a modest reduction based on access to justice concerns.

Public interest litigant

Ms. Daly is not a public interest litigant within the criteria established by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, at para. 27; Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2, at paras. 35 to 38; and Carter v. Canada (Attorney General), 2015 SCC 5, at paras. 139 to 140. The issues in this matter do not “transcend the individual interests” of the parties to the extent that they might have “a significant and widespread societal impact.” Ms. Daly does have a “personal, proprietary or pecuniary interest in the litigation.” Although her interest may not “justify the proceedings on economic grounds,” that is in part a function of the fact that her pursuit of the application was not fully rational.

[130] Ms. Daly does perceive that she brought the application for reasons that are broader than her own narrow interests.

[131] To the extent there is any public interest component to Ms. Daly’s application, it is limited and justifies only a limited reduction in the cost consequences.

Impecuniosity

[132] I have considered whether and to what extent Ms. Daly’s ability to pay costs should be factored into the costs award. I referred the parties to Belvedere v. Brittain Estate, 2009 ONCA 691, a case in which the unfortunate circumstances played a role in the Court of Appeal’s decision to make no costs award against an impecunious plaintiff. Mr. Grenier distinguished the case as being an estate matter which involved “the unfulfilled but legally unenforceable promise” of the deceased. However, the point remains that from time to time the courts reduce costs claims based on the payor’s impecuniosity. In Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, at para. 17, Justice Ricchetti described the law in Ontario as follows:

It would appear that impecuniosity, as a rule, should not and does not eliminate or reduce a party’s liability for costs for the reasons expressed in Myers, Maher and Greenhalgh. Rather, impecuniosity of the paying party, if established, may be one of the factors the court could consider in the exercise of the courts discretion under s. 131 of the Courts of Justice Act in determining a reasonable amount of costs. This approach was described by Lane J. in Walsh v. 1124660 Ontario Ltd.:

In the present case, unlike Myers, we are dealing with costs after the trial is over, so no issue of on-going non-compliance with orders, or defying the court exists. There is no future conduct of this plaintiff to deter. The simple question is whether there can be a consideration of the paying party’s means in considering the disposition of costs. In my opinion, the answer to this question must be yes where impecuniosity is demonstrated. Any other answer creates a straightjacket which is inconsistent with the discretionary nature of all costs orders. In my opinion, impecuniosity falls within Rule 57.01: “any other matter relevant to the question of costs.” Whether to consider it as a factor in any particular case remains a matter within the discretion of the judge.

As a result, I am satisfied that impecuniosity, if established, is a factor the could may consider in the court’s exercise of its discretion in determining costs but the court should do so cautiously keeping in mind the concerns described by the court in Myers and the other authorities. [Citations omitted, emphasis removed.]

[133] Ms. Daly’s affidavit material for this motion indicates that she is “wholly dependent” on disability income. She has not been cross examined on this, or on her means or ability to pay costs, but she is in receipt of ODSP. It is appropriate to infer that her financial circumstances are such that a large award of costs will be difficult for her to pay.

[134] My award of costs reflects a modest reduction on this basis.

Conclusion on Costs

[135] I return to the chief consideration: the award of costs must be fair and reasonable for the unsuccessful party to pay in all the circumstances of the case.

[136] I have reviewed NYX’s bill of costs with care. NYX’s position, whereby it seeks $45,000, is already discounted to reflect some of the considerations that I have described.

[137] In the exercise of my discretion as to the award of costs, I have also considered the probability that NYX is pursuing costs against Ms. Daly because it thinks it is in its financial interest to do so, meaning it seeks a costs award as leverage to get Ms. Daly to leave Tannery House. If so, Ms. Daly has played into NYX’s hands and has been her own worst enemy. A significant award of costs is just and necessary and should not be a surprise to Ms. Daly given the approach she has taken in this matter. The notice of application itself reflects a risky set of arguments and an unfocussed, excessive approach. She has largely continued this approach throughout (the significant exception being her decision to abandon her application). The anti-SLAPP motion was novel and also risky. However, NYX’s likely motivation to pursue costs, which is collateral to the issues in the application, may have itself increased the effort it took and the costs it incurred.

[138] Ms. Daly is ordered to pay costs to NYX of $30,000 all-inclusive for this application, bearing in mind the elements detailed above under the heading “What is covered by this costs ruling,” and including the costs of the hearing before me.

Original Signed by Chown, J.

Released: February 22, 2021

COURT FILE NO.: CV-19-4625 (Brampton) DATE: 20210222 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Julie Daly Applicant - and - NXY Tannery Ltd. and Mississauga Respondent REASONS FOR JUDGMENT Chown J. Released: February 22, 2021