COURT FILE NO.: CV-19-71357

DATE: 20211018

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Marc Lemire Plaintiff and Responding Party

Daniel Mauer, for the Plaintiff

• and -

Craig Burley Defendant and Moving Party

Nick Papageorge, for the Defendant

HEARD: October 12, 2021

COSTS DECISION

THE HONOURABLE JUSTICE L. C. SHEARD

Overview

1The plaintiff, Mark Lemire, sued the defendant, Craig Burley, for damages in defamation relating to statements and internet posts made by Mr. Burley concerning Mr. Lemire’s alleged past involvement in, and association with, persons and groups who espouse white supremacist, racist, anti-Semitic and homophobic views.

2Mr. Burley brought a motion to dismiss Mr. Lemire’s action against him pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”), colloquially referred to as anti-SLAPP legislation. The motion was granted, and Mr. Lemire’s claim was dismissed.

3S. 137.1(7) contains the following costs provisions:

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

4The parties were unable to agree upon costs and were permitted to make oral submissions.

Costs Claimed

5Mr. Burley, a practising lawyer, seeks his costs, including costs as a self-represented litigant, on a full indemnity basis. In total, Mr. Burley seeks $78,104.24 inclusive of fees, disbursements and HST.

6The claim was served in December 2019 and Mr. Burley, then representing himself, brought a motion under s. 137.4 of the CJA. That motion, originally scheduled for March 2020, was adjourned and could not be rescheduled for months, due to the suspension of regular court operations as a result of COVID-19. In or about September or October 2020, Mr. Burley retained counsel.

7Mr. Burley’s Bill of Costs includes time spent by his counsel as well as 61.9 hours Mr. Burley asserts, he spent when he was representing himself. The time allocated to Mr. Burley, was taken from the daily handwritten notes he used for timekeeping.

8Included in the work performed by Mr. Burley, is time spent on apprising himself of recent developments in the law of defamation and under s. 137.1 of the CJA. In his affidavit on this costs hearing, Mr. Burley states that he spent 128.6 hours on this matter while self-represented but claims only 61.9 hours. Mr. Burley chose to reduce the hours claimed to the number of hours which, in his view, would have been billed to a client by a competent lawyer with his level of experience. For the purposes of the Bill of Costs, Mr. Burley’s time is calculated at $350 per hour.

Plaintiff’s Position

9The plaintiff submits the costs claimed are excessive and that Mr. Burley’s all-inclusive costs ought to be fixed at $30,000 - $40,000 on a partial indemnity basis or, alternatively, at $40,000 - $50,000 on a full indemnity basis.

10The plaintiff submits that this litigation does not bear all of the hallmarks of a SLAPP suit; specifically, that “the plaintiff was not a large and powerful entity that was using litigation to intimidate a smaller and more vulnerable opponent and silence their public expression”. Rather, the plaintiff in this case is an individual who believed he had lost his employment, in part, due to the public expressions made by Mr. Burley. As such, the plaintiff submits that an award of partial indemnity costs is appropriate: 2504027 Ontario Inc. o/a S-Trip! v. Canadian Broadcasting Corporation (CBC) et al., 2021 ONSC 3990 (“S-Trip”), at paras. 10-11, 14; and Kam v. CBC, 2021 ONSC 2537.

11The plaintiff also submits that when he served his claim in December 2019, he did not know whether he would be able to find replacement employment, by reason, in part, of the Internet postings, including those made by Mr. Burley and others, the removal of which was also included in the relief he sought. As it turned out, the plaintiff was able to find replacement employment and his damages were much less than he had originally expected.

Calculation of fees claimed

12In oral argument, the plaintiff took issue with certain time entries in the Bill of Costs for March 4, 5, 6, and 7, 2021, totaling $5,649. The plaintiff submitted that these entries appeared to relate a separate motion brought under r. 39, which was heard by Goodman J. After hearing the plaintiff’s submissions, the defendant agreed to a reduction of $4,624.50 with respect to those entries.

13The materials filed were a creation of dockets that had been edited by the defendant. I am not satisfied that the defendant has properly established that the time challenged by the plaintiff was properly attributable to the costs to be fixed by this court. Therefore, I accept the plaintiff’s submissions with respect to these challenged entries, and reduce the amount claimed in the Bill of Costs by $5,649.

14The plaintiff also took issue with the defendant’s claim for payment of $1,400 for the attendance of a second lawyer at the plaintiff’s cross-examination on January 11, 2021. I agree with the plaintiff’s submission that two lawyers were not required to attend the cross-examination and that this $1,400 charge should be removed from the defendant’s Bill of Costs.

15For the foregoing reasons, the fees claimed by the defendant are reduced by a total of $7,049 ($5,649 + $1,400).

16The plaintiff also asks for a credit against any fees awarded against him of $5,600, which, he asserts, are the costs and expenses incurred with respect to cross-examinations on the two new affidavits delivered by the plaintiff. He notes that pursuant to the order of Goodman J., dated March 20, 2020, these costs were to be paid by the defendant. I accept the plaintiff’s submissions on this issue and allow the plaintiff a credit of $5,600 against fees awarded the defendant.

17The plaintiff further submits that the defendant is not entitled to costs equal to 61.9 hours of his billable time at the rate of $350 an hour for a total of $21,665. The plaintiff asserts that the defendant has failed to show that he turned away remunerative work because of the time he spent on this matter. The plaintiff submits that a proper amount to award the defendant for “lost opportunity costs” would be in the range of $5,000 to $10,000 of fees.

18The plaintiff further opposes payment to the defendant for time spent to prepare a defence that was not served; to conduct research for and to prepare and serve a Request to Inspect documents at a time when the defendant’s s.137.1 motion prohibited any further steps from being taken; and for costs of his attendance on February 18, 2020, on which date the defendant was ordered to pay costs.

19The plaintiff submits that the defendant has failed to provide any evidence that he lost the opportunity to engage in remunerative work in 2020 and that his 2019 billings were comparable to those earned in 2017, the last income tax year for which he prepared or filed income taxes.

20In addition, the defendant’s evidence shows that there may have been any number of reasons for his having to forgo remunerative work on and after he was served with the plaintiff’s statement of claim. As stated by the defendant on his cross-examination his “personal life was chaotic” between December 2019 and March 2020. In those months, the defendant was involved in a difficult marital breakdown, ending in separation in April 2020. That separation increased his parental obligations to his two children: one child with special needs, and a second child who was experiencing difficulties at school.

21The defendant also acknowledged that COVID-19 had an impact on his business on and after March 2020 and that in June 2020, he gave up his office space to relocate to new offices.

22The plaintiff also asserts that he incurred costs to press the defendant to move forward with his s.137.1 motion, and that the costs awarded to the defendant should be reduced to reflect the additional costs incurred by the plaintiff as a result.

23Understood as a whole, the plaintiff submits that the costs reasonably awarded to the defendant for time spent by the defendant for work he undertook as a self-represented party, should be between $5,000 and $10,000.

The Law

24Section 131(1) of the CJA gives the court the discretion to determine by whom and to what extent costs are to be paid. In exercising that discretion, the court must take into account the applicable factors identified under r. 57.01 such as the complexity of the proceeding, the importance of the issues to the parties, and the amount an unsuccessful party could reasonably expect to pay: S-Trip.

25When fixing costs, the court’s overall objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 26 and 38.

26For a self-represented litigant to be entitled to costs, they must establish “that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity”: Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, citing Fong v. Chan, (1999) 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).

27Self-represented litigants, including lawyers, “are not entitled to costs calculated on the same basis as those of the litigant who retains counsel”: Benarroch, at para 25, quoting from para 26 of Fong v. Chan. Where a litigant is self-represented, they are not entitled to compensation for the time and effort that any litigant would have devoted to the case but only for the work done over and above the normal involvement of the client and “provided it concerns work that would ordinarily be accomplished by a lawyer. The self-represented litigant must also show that an opportunity cost was incurred because some remunerative activity was forgone”: Benarroch, at para 27.

Analysis

28Given the nature of this case, had he been represented from the outset, the defendant would have been expected to provide his counsel with a detailed outline of events. Based on the record before me, I find that a significant portion of the time spent by the defendant, and for which he now claims payment, would have been spent by any litigant to inform his counsel of relevant events.

29In many of the reported cases in which costs were awarded to a self-represented litigant, the self-represented party has conducted the entire matter. However, in this case, the defendant retained counsel long before the motion materials were completed, and the motion was argued. While the defendant may have chosen to conduct his own review and analysis of the case law, it is far from clear that the defendant’s efforts reduced the time that had to be spent by his counsel, who recorded over 163 hours of time, primarily spent on the motion.

30As for the plaintiff’s submissions that the defendant has not established that this litigation caused him to forgo remunerative activity, the defendant’s evidence supports a finding that, if the defendant lost the opportunity to devote time to remunerative activities between December 2019 and October 2020 - which is far from clear - it was largely due to his marital breakdown; his parental obligations; and COVID-19 and not to this litigation.

31Further, while I accept that motions of this type are not overly common and that the facts in this case were somewhat complex, I conclude that the time claimed by the defendant is excessive and not, per Boucher, within the reasonable expectations of the plaintiff.

32Finally, I am persuaded by the plaintiff’s submissions that is a case in which an award of full indemnity costs is not appropriate.

Disposition:

33In the exercise of my discretion under ss. 131 and 137.1 (7) of the CJA and having applied the factors under r. 57.01, I fix the defendant’s fees at $45,000 inclusive of disbursements and taxes. This award has taken into account any costs that may have been payable by the defendant to the plaintiff pursuant to the Order of Goodman J. and is intended to be a final disposition of all costs between the plaintiff and defendant relating to this proceeding.

Justice L. Sheard

Released: October 18, 2021

COURT FILE NO.: CV-19-71357 DATE: 2021/10/18

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Marc Lemire, Plaintiff and Responding Party

• and –

Craig Burley, Defendant and Moving Party

REASONS FOR DECISION ON COSTS

L. Sheard J.