COURT FILE NO.: CV-17-129488
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Doe 129488 previously known as Cecil Murray Kirby
Plaintiff
– and –
Canadian Broadcasting Corporation
Defendant
Alfred Schorr, for the Plaintiff
M. Philip Tunley, for the Defendant
HEARD: April 19, 2021
RULING RE: COSTS
McKELVEY J.:
[1] I have been asked to address the issue of costs in this case. I orally advised counsel at the time of hearing that I was awarding partial indemnity costs of $9,042.04 to the defendant with written Reasons to follow. These are those written Reasons.
[2] I am grateful to counsel that there were two major issues that were agreed upon for purposes of the costs hearing. First, counsel agreed that the quantum of the defendant’s costs was reasonable. The defendant claims partial indemnity costs in the sum of $9.042.04. Second, both parties agree that the defendant as the successful party on the motion would normally be entitled to its costs in accordance with Rule 57.01.
[3] The plaintiff asks, however, that this Court not make any award of costs on the basis that, “the uncontradicted evidence of Dubro was that the program would not be run again without prior advice. Notwithstanding this the defendant ran the program”. The plaintiff argues that by its conduct in running the program again, the CBC was guilty of inappropriate conduct which should disentitle it to an award of costs.
[4] The plaintiff relies on the decision of Justice Griffiths in Standard Investments Ltd. et al. v. Canadian Imperial Bank of Commerce, 1983 CanLII 1683 (ON SC), 45 O.R. (2d) 16 (reversed on other grounds by the Court of Appeal at 1985 CanLII 164 (ON CA), 52 O.R. (2d) 473, leave to appeal to Supreme Court of Canada denied at 53 O.R. (2d) 633). In that decision, he expressed his view that he had considerable sympathy for the plaintiffs in this matter, although he was unable to find any legal basis upon which they would be entitled to recovery. He denied the defendant bank its costs, however and stated,
With regard to the policy of the Bank in this case to secretly purchase shares in an effort to thwart the efforts of one of its customers in favour of another, although not illegal, I find that policy morally offensive.
[5] I do not agree that the CBC has been guilty of morally offensive behaviour in this case. Nor do I agree that the evidence of Mr. Dubro was uncontradicted.
[6] This case involved the rebroadcast of a portion of a program originally broadcast in 1984. The rebroadcast was part of The Fifth Estate’s 40^th^ anniversary.
[7] Mr. Dubro’s evidence was adduced by the plaintiff. His evidence was at variance with the evidence of the CBC who took the position based on its evidence that no undertaking was given to the plaintiff about a rebroadcast of the program. Mr. Dubro’s evidence was also at odd’s with the position taken by the plaintiff that the CBC agreed that the program would only be shown on one occasion.
[8] There was also no evidence that the CBC’s conduct was morally offensive. As noted in my decision, the CBC acted responsibly by removing the interview from public access once they were advised about the plaintiff’s concern about the rebroadcast.
[9] This case is involved a dispute between the plaintiff and the CBC about its right to rebroadcast a portion of the 1984 program, a right which I found the CBC had as a result of the contract entered into between the plaintiff and the CBC. The CBC has not been guilty of any behaviour which in my view would justify depriving it of its entitlement to costs in this action.
[10] I am of course sympathetic to the position that the plaintiff found himself in in this case. As noted in my decision, the rebroadcast of the interview had the potential to alert the public to the current whereabouts of the plaintiff. Certainly this information has the potential to seriously affect the plaintiff’s safety, as well as other members of his family. Those risks are real. However, sympathy, alone, is not a basis for refusing an order for costs. This point was emphasized in the British Columbia Court of Appeal decision in Claessins v. Wice, 1991 CanLII 2336 (BCCA), where the court states:
There is no doubt that the questions relating to sympathetic feeling for the circumstances of the plaintiff have been amply made out. However, sympathy alone is not a basis for refusing an order for costs. No matter the ground on which that sympathy arises.
[11] I therefore award the CBC its partial indemnity costs of the action which are assessed in the sum of $9,042.04 to be paid by the plaintiff.
Justice M. McKelvey
Released: May 3, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Doe 129488 previously known as Cecil Murray Kirby
Plaintiff
– and –
Canadian Broadcasting Corporation
Defendant
RULING RE: COSTS
Justice M. McKelvey
Released: May 3, 2021