COURT FILE NO.: CV-19-616339
DATE: 20210201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
B.W. (BRAD) BLAIR
Plaintiff
and
PREMIER DOUG FORD
Defendant
BEFORE: Justice Edward Belobaba
COUNSEL: Gavin J. Tighe and Rojin Jazayeri for the Moving Party/Defendant
Julian Falconer, Asha James and Akosua Matthews for the Responding Party/Plaintiff
HEARD: December 4, 2020
COSTS AWARD
[1] In a decision released on December 15, 2020 I dismissed the plaintiff’s defamation action[^1] under s. 137.1 of the Courts of Justice Act[^2] (“CJA”), often referred to as the “anti-SLAPP” law. I asked counsel to forward their costs submissions and to include the costs of two preliminary motions relating to refusals and re-attendance for cross-examination that had also been decided in favour of the defendant.
The appropriate scale
[2] The defendant asks for costs on a full indemnity basis in the all-inclusive amount of $578,194.86. He does so on the basis of section s. 137.1(1) of the CJA which provides for costs on a full indemnity basis “unless the judge determines that such an award is not appropriate in the circumstances.”
[3] In my opinion, a full indemnity costs award is not appropriate on the facts herein because, as I made clear in my reasons for decision, the plaintiff’s defamation action was not a SLAPP suit. I found as follows:
The plaintiff is not a large and powerful entity that is using litigation to intimidate a smaller and more vulnerable opponent and silence their public expression.
Mr. Blair is not a powerful entity that is suing the Premier to gag his public expression but a genuinely aggrieved individual trying to vindicate what he reasonably believes is a bona fide defamation claim. Nonetheless, because the impugned public statements made by the defendant relate to a matter of public interest, the s. 137.1 analysis is engaged.[^3]
[4] In my view, the appropriate scale is partial indemnity.[^4] The more challenging question is the appropriate quantum.
The appropriate quantum
[5] On a partial indemnity scale, the defendant seeks $357,250.48. However, when this amount is adjusted to comport with the hourly rates set out in the Grid (by reducing senior counsel’s rate from $450 to $350) the partial indemnity total is about $320,000.
[6] I am aware that the Grid rates may need updating. Nonetheless, I continue to use the Grid rates in my cost awards because, as it turns out, they reflect the Court of Appeal’s suggested up-date, namely “55 to 60 per cent of a reasonable actual rate.”[^5] And, as I have explained in other decisions,[^6] 60 per cent of a reasonable actual rate is pretty much the rate that is set out in the Grid.
[7] Returning then to the appropriate quantum.
[8] In my view, even a Grid-compliant cost award in the amount of $320,000 is excessive. As counsel will recall, I reminded them repeatedly that much of the evidence that they were advancing, requesting or disputing went to the merits of the defamation action itself and was not needed to decide the anti-SLAPP motion. For example, in my Endorsement dismissing the plaintiff’s refusals motion, I said this:
Again, the focus of the 137.1 analysis are D’s three statements about P breaching the PSA and to some extent the contents of the Briefing Note - and whether P can show “no valid defence” and prevail in the court’s weighing of the two competing public interests …
The evidence about who said what to whom about the Van request is not relevant to either the “no valid defence” analysis relating to the “breached the PSA” statements or the weighing of the two competing public interests.[^7]
[9] Likewise, when writing my reasons for decision, I was careful to limit my analysis to the issues and evidence relevant to the s. 137.1 motion, noting that “only a portion of the background narrative” was needed to decide this matter.[^8] I was mindful of the fact that the plaintiff was pursuing a parallel $15 million wrongful dismissal action that was advancing the same allegations about injury to reputation and I didn’t want to say anything inappropriate in that regard.
[10] I was also mindful of the admonition of the Supreme Court in Pointes Protection[^9] that the s. 137.1 analysis is not an adjudication of the underlying proceeding. When conducting the s. 137.1 analysis, “the motion judge should engage in only a limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage.”[^10]
[11] Unfortunately, counsel on both sides devoted much time and effort to issues and evidence that invited the very “deep dive” into the evidence that has been judicially proscribed. Counsel for the plaintiff did this advancing his misguided preliminary motions and counsel for the defendant did this pressing the plaintiff during prolonged cross-examinations. For example, counsel for the defendant cross-examined the plaintiff at length about topics irrelevant to the s. 137.1 motion such as the “camper van” request, the plaintiff’s possession of officer notes, the report of the Integrity Commissioner, the drafting of the letter to the Ombudsman, the plaintiff’s press conference about his wrongful termination claim and how he was the funding this litigation.
[12] And the plaintiff, of course, was compelled to respond in kind. This attempted “deep dive” into the evidence was unnecessary and obviously added to the unreasonably high legal costs on both sides.
[13] Counsel for the plaintiff suggest (unrealistically) that no costs be awarded. However, they go on to note that had the plaintiff prevailed on this motion, they would have sought $204,269 on a partial indemnity scale. This is useful to know. Here again, when this amount is adjusted to comport with the hourly rates set out in the Grid (by reducing senior counsel’s hourly rate from $480 to $350) the plaintiff’s partial indemnity total is about $192,000. In my view, although $192,000 is somewhat more reasonable, it is still too high.
[14] In any event, hourly rates and docketed time are not determinative. As the Court of Appeal has noted repeatedly:
[F]ixing costs of a proceeding … on a partial indemnity basis…is not simply an exercise of multiplying hourly rates by the amount of time expended. The court must balance the discretionary factors set out in r. 57.01(1) and, in the end, arrive at an amount that is reasonable and fair in the circumstances and that bears some relationship to the amount that an unsuccessful party could reasonably expect to pay.[^11]
[15] What then is the appropriate costs award if counsel on both sides had stayed in the lane as set out in s. 137.1 of the CJA? I gave this matter considerable thought.
[16] I balanced the factors set out in Rule 57.01(1) and then stood back and considered what in the end is an amount that is reasonable and fair in the circumstances and that bears some relationship to the amount that an unsuccessful party could reasonably expect to pay. My conclusion is that the appropriate costs award is in the range of $130,000.
[17] The fact that the plaintiff is now a “pensioner” living on a fixed retirement income (as asserted by counsel for the plaintiff) is not relevant to the costs analysis. And there is no suggestion and certainly no evidence about any inability to pay.[^12] Nor is it relevant (as suggested in the evidence) that the defendant’s legal costs are being funded by the Progressive Conservative Party of Ontario.
[18] The one fact that may be relevant, at least as it relates to a reasonable time-line for paying the costs award, is that the plaintiff’s $15 million action for wrongful dismissal is proceeding and will be settled or otherwise decided sometime in the near future. I noted in my reasons for decision that this action for wrongful dismissal includes the allegations about injury to reputation and thus figured in my decision, and in particular, in my balancing of the public interests under s. 137.1(4)(b) of the CJA.[^13]
[19] In sum, and exercising my discretion as guided by the Rules and the caselaw, I conclude that an all-inclusive costs award of $130,000 is fair and reasonable.
Disposition
[20] Costs for the s. 137.1 motion and underlying action and the two preliminary motions are fixed at $130,000 all-inclusive and are payable by the plaintiff as follows: $65,000 forthwith and $65,000 when the plaintiff’s wrongful dismissal action is settled or finally adjudicated. If the latter criterion needs further explication, counsel may reattend.
[21] Order to go accordingly.
[22] My thanks to counsel for their assistance.
Signed: Justice Edward P. Belobaba
Notwithstanding Rule 59.05, this Judgment [Order] is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Judgment [Order] need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Judgment [Order] may nonetheless submit a formal Judgment [Order] for original signing, entry and filing when the Court returns to regular operations.
Date: February 1, 2021
[^1]: B.W. (Brad) Blair v. Premier Doug Ford, 2020 ONSC 7100.
[^2]: Courts of Justice Act, R.S.O. 1990, c. C.43.
[^3]: Supra, note 1, at paras. 4 and 20.
[^4]: See Veneruzzo v. Storey, 2018 ONCA 688, at para. 39, and Subway v. Canadian Broadcasting Corporation, 2020 ONSC 1263, at para. 25.
[^5]: Bain v. UBS Securtieis Canada Inc., 2018 ONCA 190, at para. 32.
[^6]: See the discussion in Goldsmith v. National Bank of Canada 2015 ONSC 4581, at para. 9-12, and Mask v. Silvercorp Metals Inc., 2015 ONSC 7780, at paras. 8-10.
[^7]: Endorsement dated November 23, 2020.
[^8]: Supra, note 1, at para. 7.
[^9]: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22.
[^10]: Ibid., at para. 52.
[^11]: Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, at para. 55.
[^12]: College of Traditional Chinese Medicine v. Federation of Ontario, 2015 ONSC 2262, at para. 20; Rightmeyer v. Fitzgerald, 2016 ONSC 6723, at para. 21.
[^13]: Supra, note 1, at para. 70.