Court File and Parties
Court File No.: CV-21-00000002-0000 Date: 2021/11/24 Superior Court of Justice - Ontario
Re: Roger Anthony Paul, Danielle Marie Paul and Madvalley Media, Plaintiffs And: The Corporation of the Township of Madawaska Valley, Kim Love, Carl Bromwich, Ernest Peplinski, David Shulist and Mark Willmer, Defendants
Before: Justice A. Doyle
Counsel: Justin Safayeni and Karen Bernofsky, Counsel for the Plaintiffs J. Paul R. Cassan and Tim J. Harmar, Counsel for the Defendants
Heard: In writing
Costs Endorsement
Overview
[1] On August 6, 2021, this court dismissed the defendants’ motion brought pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43: see Paul v. The Corporation of the Township of Madawaska Valley, 2021 ONSC 4996.
[2] The defendants are claiming costs of over $250,000 for eight different court steps: i.e. steps which occurred prior to and during the hearing of the s. 137.1 motion and the s. 137.1 motion itself. They submit that the plaintiffs, who were self-represented until very recently, caused the defendants to incur more legal expenses due to a number of unnecessary steps. The defendants submit that such conduct warrants a costs sanction.
[3] The plaintiffs submit that the defendants, who appear to have unlimited resources to litigate, have incurred excessive legal fees for a claim of $125,000 commenced under the Simplified Rules. The defendants’ litigation strategy and refusal to attend mediation and resolve the issues should be considered in the determination of the quantum of costs. As the successful party at the s. 137.1 motion, the plaintiffs are claiming costs in the amount of $30,000.00.
[4] For the reasons that follow, the court awards costs to the defendants in the amount of $34,000.00 payable within 180 days.
Brief Background
[5] The plaintiffs’ statement of claim alleges that the defendants’ vindictive conduct towards them was aimed at punishing them for speaking out against the defendant municipality in the plaintiffs’ locally run free newspaper, the Current. According to the plaintiffs, the defendants are attempting to use public office to stop investigative journalism.
[6] The defendants, the municipality and its elected officials deny such allegations and argue that they have acted properly and in accordance with their public duty and obligations to the public they serve.
[7] The plaintiffs have a history with the defendants including:
i. The plaintiffs’ paper published articles criticizing the Township;
ii. The plaintiffs engaged in litigation with the Township, including a claim brought to the Human Rights Tribunal of Ontario (“HRTO”) by the plaintiff, Danielle Marie Paul; and
iii. Danielle Marie Paul brought an appeal to the Privacy Commissioner over a freedom of information request.
[8] After the settlement of the HRTO action, the plaintiff, Roger Anthony Paul, sent an unsolicited letter dated August 18, 2019 to the Township expressing his concerns regarding the use of public funds to pay the Township’s lawyers’ substantial legal fees.
[9] In his letter dated August 27, 2019 to the Township, Mr. Cassan (a lawyer acting for the Township) advised the Township not to bring a claim against their former solicitors as suggested by Mr. Paul in his letter to the Township. He also confirmed that he was unable to verify Mr. Paul’s claimed legal experience or whether Mr. Paul had ever been called to any Bar in Canada as claimed by Mr. Paul.
[10] In this letter, Mr. Cassan also recommended that due to Mr. Paul’s voluminous correspondence historically requiring immense time and effort from the Township’s small staff, all future communication from him should be directed by staff to town council, who would ultimately determine what resources would be expended to respond to him.
[11] Mr. Cassan’s letter was discussed at the August 27, 2019 council meeting and resulted in the following council resolution:
i. Council would not pursue their previous counsel for a reimbursement of legal fees; and
ii. All future correspondence from Mr. Paul to the municipality would be directed to Municipal council for consideration at a regular council meeting so that council can decide what public resources to allocate to responding to Mr. Paul.
[12] After the meeting, Mr. Paul forwarded a letter to the Township providing proof of his call to the Ontario Bar. He demanded an apology and that the Township donate $500 to a not-for-profit organization. He indicated that council should have known he had practiced law as it was on the Current website and in his LinkedIn account. The Township did not accept these terms.
[13] The plaintiffs’ Statement of Claim, dated December 13, 2019, alleges the causes of action of defamation and misfeasance in public office arising from the following:
i. Councilor Peplinski’s statements at the February 2019 council meeting directing derogatory comments and names to Mr. Paul;
ii. Mr. Cassan’s opinion letter presented at the council meeting which questions Mr. Paul’s honesty concerning Mr. Paul’s public statements that he had previously been a lawyer, thereby attacking Mr. Paul’s reputation;
iii. Council’s resolution and confirming by-law stipulating that all communications from Mr. Paul would be relayed to council, affecting his reputation in the community by portraying him as a nuisance to the Township; and
iv. A councilor’s oral statement at the August 27, 2019 council meeting that Mr. Paul should apologize to taxpayers and write a cheque for $60,000.
[14] The Statement of Claim seeks:
i. General and special damages of $50,000 for misfeasance in public office;
ii. General damages and special damages of $50,000 for defamation under the Libel and Slander Act, R.S.O. 1990, c. L.12; and
iii. Punitive and exemplary damages of $25,000.
[15] At the s. 137.1 motion hearing, the court was called upon to deal with other issues.
[16] The court exercised its discretion and held that the defendants were not deemed to admit the facts set out in the plaintiffs’ November 20, 2020 Request to Admit as their non-response was due to inadvertence.
[17] The court granted the defendants’ motion and struck many portions of the plaintiffs’ affidavits filed in response to the s. 137.1 motion.
[18] In dismissing the s. 137.1 motion, the court confirmed that it would not engage in a “deep dive into the record and make definitive findings of fact and credibility”: Di Franco v. Bueckert, 2021 ONCA 476, at para. 2. This should be left to a summary judgment motion or trial.
[19] The court found that the defendants had met their burden of showing that the statements were expressions within the meaning of s. 137.1(2) and that the defendants had cleared the relatively low hurdle of showing that the expression related to matters of public interest.
[20] Next, the court found that the plaintiffs had met their burden of showing that their claims of defamation and misfeasance in public office were “legally tenable and supported by the evidence that is reasonably capable of belief such that its claim can be said to have a real prospect of success”: 1704604 Ontario Ltd. v. Pointes Production Association, 2020 SCC 22, 157 O.R. (3d) 79, at para. 111.
[21] The court then found that there was evidence that would enable a trier of fact to reasonably conclude that the proposed defences are not valid, and found that the plaintiffs had met their onus under s. 137.1(4)(a).
[22] The court also concluded that, the plaintiffs had met their onus under the last step of s. 137.1(4)(b), i.e. that the harm that has been suffered by the plaintiffs as a result of the four above-noted expressions was sufficiently serious that the public interest in permitting this action to proceed to a hearing on the merits outweighed the public interest in protecting the municipality’s expressions.
[23] I also found that:
i. This action did not have the hallmarks of a classic SLAPP case, as the plaintiffs had no history of using litigation to silence their critics;
ii. The financial or power imbalance strongly favoured the defendants more than the plaintiffs; and
iii. There was no punitive or retributory purpose animating the plaintiffs’ bringing of the claim.
[24] As a retired lawyer, Mr. Paul may have suffered more than minimal or nominal damages, as he was continuing his community work and representing himself as a previous professional who wished to bring his particular expertise to the table, e.g. on fighting for local community issues, such as the museum, or land development.
[25] In the final balancing, the court concluded that a judge hearing the merits could reasonably conclude that the plaintiffs had suffered more than nominal damages and that the public interest weighed in favour of allowing the action to proceed to a determination on its merits.
Parties’ Positions
Defendants’ Position
[26] The defendants have provided extensive submissions on the various court appearances and steps. In summary, the defendants are claiming the following costs on a partial indemnity basis:
i. $4,070.54 for the attendance before Gomery J. on August 11, 2020;
ii. $3,365.17 for the attendance before Master Kaufman (as he then was) on September 10, 2020;
iii. $1,681.44 for the attendance before Gomery J. on October 23, 2020;
iv. $24,928.09 for the motion before me on March 4, 2021;
v. $9,628.79 for the case conference before me on March 24, 2021;
vi. For the hearing before me on May 19, 2021:
• $1,534.53 for dealing with the plaintiffs’ motion to amend their pleadings;
• $59,634.39 for the motion to strike portions of the plaintiffs’ affidavits; and
• $141,411.45 for the s. 137.1 motion:
• Totalling: $246,254.40.
Plaintiffs’ Position
[27] The plaintiffs object to the fact that the defendants surpassed the court’s direction for two-page costs submissions and submit that they had no choice but to respond to the voluminous submissions regarding the eight court interventions.
[28] The plaintiffs submit that the defendants ignored well-established legal principles regarding a party’s entitlement to costs and what constitutes a reasonable quantum. The defendants’ claim of costs of approximately $250,000 for the various steps taken is an unreasonable position. It offends the proportionality principle.
[29] The plaintiffs have had to retain counsel for these costs submissions and incur legal costs.
[30] The plaintiffs submit that the defendants’ bills of costs include:
i. Numerous timekeepers for steps which are simple matters; and
ii. Time entries that are not relevant or pertinent to the hearing/step, e.g. dealing with the privacy issue.
Analysis
Introduction
[31] Costs are to be determined in accordance with s. 131 of the Courts of Justice Act. In determining costs, the court has considered the factors set out in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[32] Pursuant to r. 57.01(7), the court is directed to devise and adopt the simplest, least expensive and most expeditious process for fixing costs.
[33] As stated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), in determining costs, the court can compare the defendants’ fees to those of the plaintiffs when considering the reasonable expectations criteria. The court must exercise its discretion in awarding costs that are fair and reasonable.
[34] The determination of costs is meant to be a simple and straightforward exercise that does not require the court to complete mathematical formulae.
[35] In my decision on the s. 137.1 motion, I had requested that the parties submit two-page costs submissions if they were unable to agree on the issue of costs.
[36] Instead, the court received dozens of pages of submissions dealing with different steps in the process. Since the parties are dealing with eight different steps, it would now appear that two-page costs’ submissions would not have been sufficient. Counsel should have jointly sought the court’s indulgence before proceeding against the court’s direction. What is meant to be a simple and expeditious process of fixing costs has morphed into another expensive step in this litigation.
[37] This costs endorsement is significantly longer than what one usually sees in costs endorsements because the court is required to deal with eight different steps. Despite the statutory requirement that no new steps be taken once a s. 137.1 motion is filed, there were many court interventions.
[38] First, I will discuss some general observations regarding the litigation strategy.
[39] Then, I will deal with each step of the proceeding for which costs are being claimed and provide my analysis and determination of the costs award.
Litigation strategy
[40] Proportionality is certainly not the theme of this lawsuit.
[41] Until very recently, the plaintiffs have been self-represented. Despite Mr. Paul’s previous litigation experience as a lawyer, many steps were taken by the plaintiffs that were unnecessary and caused an increase in legal fees. The plaintiffs’ conduct was representative of inexperienced litigants trying to maneuver through a legal action against a municipality and elected officials without an appreciation of the parameters of a s. 137.1 motion.
[42] As will be discussed below, the extra costs incurred due to the plaintiffs’ conduct must be borne by them.
[43] The plaintiffs’ litigation strategy that increased expenses included:
i. Serving a very broad range of list of documents with the notice of examination;
ii. Filing a motion for an amendment to add a claim of “false light” to the statement of claim on the eve of the s. 137.1 hearing; and
iii. Responding to the s. 137.1 motion with affidavits that were replete with irrelevant material and not in accordance with the Rules of Civil Procedure.
[44] Also, the parties were required to attend court to deal with the filing of their documents and determine timetables; case conferences were necessitated by the plaintiffs either threatening to bring motions or serving the defendants with unissued “draft” motion materials.2
[45] In advance of the case conference held on September 10, 2020, the plaintiffs wrote to the court staff to provide a two-page “Chronology” and nine-page document containing submissions to be considered at the said conference. Also, the plaintiffs served the defendants with an unissued motion dated July 2020.
[46] There were more than 218 emails sent from the plaintiffs to the defendants. They were often lengthy and cryptic, setting out the plaintiffs’ positions on various issues in the proceeding. Some required a detailed and careful response, while others required no response after careful analysis; however, all emails required the defendants’ counsel’s time to review.
[47] The plaintiffs wrote directly to the court on 20 occasions, again requiring significant time and legal expenditure.
[48] The plaintiffs’ desire for retribution for the wrongs that they alleged were committed by the municipality may have colored their judgment in this litigation and lack of consideration for court costs, legal costs and proper court procedure. Their sense of righteousness seems to have empowered the plaintiffs to proceed in this litigation without consideration of the consequences as to costs.
[49] The defendants, represented by experienced counsel, were required to respond to these missteps.
[50] The plaintiffs sent the following offers to settle:
i. An offer dated March 9, 2020 offered to settle the action by (1) confirming on the record Mr. Paul’s former status as a lawyer in Ontario, (2) recognizing that his correspondence to the council will be dealt with through the ordinary course and (3) paying $5,000 in damages in addition to legal fees. This offer was never withdrawn;
ii. An offer dated March 30, 2021 was the same as above except that, in lieu of damages, there was an offer that the defendants provide an apology to Mr. Paul and a donation of $500 to a local charity. This offer expired April 13, 2021; (This offer was also made directly to Ms. Klatt); and
iii. An offer dated May 12, 2021 that the defendants pay 50% of the plaintiffs’ costs or as assessed. This offer expired May 18, 2021.
[51] Even though these offers did not meet the formal requirements of r. 49, they were nevertheless genuine offers to settle which the court can consider. In addition, the plaintiffs offered on at least four occasions to attend mediation in 2019 and 2020, but the defendants would not agree. In Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288, 24 C.P.C. (8th) 133, at paras. 55-56 the court commented that when opportunities to attend mediation are spurned, such rejection can be a relevant factor when fixing costs.
[52] On the other hand, the defendants are entitled to defend their position. Mandatory mediation is not applicable here. The terms of the plaintiffs’ offers required the defendants to admit responsibility for their words/actions.
[53] The defendants’ offer to settle offered that the plaintiffs’ action would be dismissed without costs if accepted in the time period.
[54] In my view, the defendants should have considered alternative dispute resolution options considering the quantum sought in the claim.
[55] But for the s. 137.1 motion, this Simplified Rule procedure would have proceeded to a pre-trial conference as, according to Rules of Civil Procedure, one must be scheduled within 180 days after the action is set down for trial. The rules also require the plaintiffs to set the matter down for trial within 180 days after the first statement of defence is filed.
[56] There was no real requirement for the parties to resolve the matter or engage in any meaningful discussions.
Steps
August 11, 2020, step before Justice Gomery
[57] The defendants are seeking costs on a partial indemnity basis in the amount of $4,070.54 (inclusive of HST and disbursements).
[58] As triage judge, based on a paper record, Justice Gomery:
i. Dismissed the plaintiffs’ request for an urgent motion to strike the s. 137.1 motion dated January 13, 2020;
ii. Directed that the parties attend a case conference to deal with the s. 137.1 motion material;
iii. Found that cross-examinations flow from the s. 137.1 motion (as the plaintiffs raised the issue of the application of r. 76.04 prohibiting cross-examination under a Simplified Rule procedure);
iv. Held that the amendment to the plaintiffs’ claim was better addressed after the hearing of the s. 137.1 motion; and
v. Referred to s. 137.1(5) which prohibits any fresh steps be taken until the s. 137.1 motion is heard.
[59] Her endorsement reads:
I decline to grant the plaintiffs’ request for a hearing of their motion to strike. In my view, it is improper for the plaintiffs to seek to bring a motion seeking to strike another pending motion.
[60] At that time, the defendants’ counsel advised the plaintiffs of the unissued and unsworn documents.
[61] The plaintiffs submit that if an endorsement is silent on costs, then the matter is disposed of as if the judge had said that there was to be no order as to costs. They argued that the court has no jurisdiction to award costs in a previous motion if there is no express order permitting the court to do so: see Trahan v. ING Insurance, (2009) 79 C.C.L.I. (4th) 140; Celanese Canada Inc. v. Murray Demolition Corp, (2003) 46 C.P.C. (5th) 281, at para. 3.
Decision
[62] In awarding costs of this step, I have considered the following:
i. The defendants were successful;
ii. The plaintiffs did not obtain the relief they were seeking;
iii. I am not precluded from awarding costs even though the endorsement is silent: see Alleslev-Krofchak v. Valcom Ltd, (Ont. S.C.) at paras. 11-12, in which Justice Aitken considered (and counsel acknowledged) that Justice Aitken was “free to take into account the fees” relating to a previous motion and cross-motion argued before Master Beaudoin whose endorsement made “no mention of costs.”
iv. The defendants were entirely successful, and I see no reason why they should not recover their costs for this step;
v. Although this was a paper-oriented decision, the record indicates that there were rather lengthy written submissions. Also, an extensive endorsement was written by Gomery J. who acted as triage judge;
vi. The matter was of central importance to the parties, as it dealt with a preliminary step that could have resulted in the end of the action;
vii. I have considered the amount that an unsuccessful party would expect in legal costs; and
viii. The plaintiffs provided unissued and unsworn documents in support of the motion, which caused more legal expenses on behalf of the defendants. The plaintiff had also been forewarned by the defendants regarding these deficiencies on August 6, 2020.
[63] In a review of the bill of costs, the court notes the following:
i. The rates charged by the defendants’ legal team are reasonable.
ii. There were three timekeepers with some duplication;
iii. No court attendance was required;
iv. The review by Mr. Harmer of Mr. Paul’s correspondence of .8 at $275 per hour is repetitive work;
v. There is some duplication of work by Mr. Harmer at $275 per hour; and
vi. I will not include the last two entries, which deal with the motion to strike the affidavits and discussion of next steps. These entries are the August 14, 2020 entry for JPC 2.65 hours at $395 per hour and the August 14, 2020 entry of TJH 1.4 at $275 per hour.
[64] A fair and reasonable costs award for this step is $2,000 in favour of the defendants.
September 10, 2020 case conference before Master Kaufman
[65] The defendants are seeking costs on a partial indemnity basis in the amount of $3,365.17 (inclusive of HST and disbursements).
[66] The case conference ordered by Gomery J. was heard on September 10, 2020 before Master Kaufman (as he was then), to deal with the filing of the materials by the plaintiffs so that the defendants could respond.
[67] The plaintiffs again raised the issue of proceeding on a motion to strike the s. 137.1 motion. Master Kaufman dismissed this request.
[68] The Court is awarding costs to the defendants of this attendance because:
i. The plaintiffs again raised the issue of bringing a motion to strike the s. 137.1 motion;
ii. They also raised the issue of r. 76.04 regarding cross-examinations;
iii. The defendants had to incur further legal costs to re-argue these issues in a different forum;
iv. Master Kaufman found that the defendants were correct that cross-examinations were available because of the interplay of s. 137.2 and r. 2.03; and
v. This decision formed an important step for the hearing of the s. 137.1 motion.
[69] Having reviewed the bill of costs, I find some time dockets that are not relevant to this step, including:
i. The time entry for September 15, 2020, which occurred after the motion and dealt with meeting with municipal council and discussion of strategy; and
ii. The time entry for October 26, 2020, which dealt with another procedure, notably the removal of Mr. Cassan as counsel.
[70] A fair and reasonable amount for the case conference, which required attendance, is $2,000 in favour of the defendants.
October 23, 2020, step before Justice Gomery
[71] The defendants are requesting the amount of $1,681.44 (inclusive of HST and disbursements) on a partial indemnity basis.
[72] The plaintiffs sought a motion on an urgent basis to remove the defendants’ law firm, Wishart Law Firm, from the record and to prohibit their lawyer, Mr. Cassan, from cross-examining the plaintiffs.
[73] Justice Gomery held that the motion was not urgent, as the plaintiffs had waited 10 months from the issuance of this action to bring this request. The court held that Mr. Cassan was not a party to the proceeding and hence could cross-examine the plaintiffs.
[74] I award costs because:
i. The defendants were successful;
ii. The court found it was not urgent;
iii. There was no merit in this request for removal of counsel, as there was no basis for this allegation; and
iv. This motion increased the costs of the defendants.
[75] A fair and reasonable amount to be awarded to the defendants is $1,500.00.
March 4, 2021 motion held before me
[76] The defendants are requesting costs in the amount of $24,928.09 (inclusive of HST and disbursements) on a partial indemnity basis.
[77] At the motion, the court decided the following:
i. The plaintiffs’ motion to strike the s. 137.1 motion was dismissed; (Therefore, on three occasions, the plaintiffs raised the issue of striking the s. 137.1 motion before the hearing and on three occasions, the court found that the motion must be determined on its merits);
ii. The plaintiffs were to provide a more specific and detailed list of documents with their notice of examination;
iii. The court refused to strike Ms. Klatt’s affidavit;
iv. Ms. Klatt was to re-attend and produce documents listed in the amended list of documents to be provided by the plaintiffs;
v. The defendant Bromwich was not required to attend examinations;
vi. The court did not rule on whether the defendants should produce the documents provided to counsel that led to the August 27, 2019 letter by Mr. Cassan to the municipality ; and
vii. The defendants would be required to comply with the request for documents in an amended list of documents, provided the document is not protected by privilege.
[78] The plaintiffs were successful in the following:
i. The plaintiffs obtained an order to have Ms. Klatt re-attend for further cross-examination, and an order for Ms. Klatt to provide answers to undertakings prior to further cross-examination ; and
ii. The defendants were to comply with documentary disclosure and provide relevant documents not protected by privilege.
[79] Other issues were adjourned.
[80] Regarding the defendants’ time docket, there were three timekeepers, including two senior counsel, for 73.3 hours. This is excessive and unreasonable. In contrast, the plaintiffs are only claiming 19 hours.
[81] In addition, the defendants have included nine hours after the motion was heard, including whether to appeal the order.
[82] The plaintiffs submit that a reasonable amount is $1,500.
Decision
[83] I find that the defendants were successful on most of the issues of the motion before me.
[84] The dismissal of the plaintiffs’ motion to dismiss the s. 137.1 motion involved a significant court record and time on the motion.
[85] The court did not require Councilor Bromwich to attend for examination and ordered that the plaintiffs serve a more particularized and specific list of documents with their notice of examination
[86] I found that striking Ms. Klatt’s affidavits was a draconian measure and was thus not warranted.
[87] On the other hand, the plaintiffs were successful in:
i. Requiring Ms. Klatt to re-attend cross-examinations. Ms. Klatt was to produce documents in the plaintiffs' amended list of documents without infringing solicitor/client privilege; and
ii. Requiring the defendants to make best efforts to answer outstanding undertakings.
[88] As the successful party on most of the issues, the defendants are entitled to costs. In awarding costs, I consider the factors set out in r.57.01(1).
[89] I have considered the importance of this motion, that the defendants were largely successful and that this was the plaintiffs’ third attempt to dismiss the s. 137.1 motion. This caused needless expense in time and effort. The s. 137.1 motion required a hearing on the merits.
[90] The court must send a message to litigants who attempt to re-litigate an issue that was already decided twice before.
[91] In the circumstances, a fair and reasonable amount for costs in favour of the defendants is $10,000.
March 24, 2020 case conference held before me
[92] The defendants are requesting the amount of $9,628.79 (inclusive of HST and disbursements) on a partial indemnity basis.
[93] The case conference was scheduled because the plaintiffs failed to comply with my March 2021 order and did not provide an amended list of documents that was more specific. The revised list mirrored the original list of documents, i.e. it was broad, general and lacked specificity.
[94] The plaintiffs object to costs and argue that:
i. The court found that the plaintiffs’ requests were not fishing expeditions and the redactions of documents could occur to protect privileged information ;
ii. Awarding costs at case conferences should be rare: 2287913 Ontario Inc. v. Blue Falls Manufacturing Inc, 2016 ONSC 1714, at para. 2.
iii. The court should only award costs if there has been a breach of court-ordered timetables: Zuppinger and Yan v. TSCC No. 2139, 2017 ONSC 6771, at para. 20.
[95] Regarding quantum, the plaintiffs submit that the defendants’ dockets show three timekeepers, including two senior counsel, and that the conference dealt with simple issues. Once again there were other tasks not connected to preparing an argument on the disputed list of documents issue and the time dockets included more than 14 hours spent after the case conference. The plaintiffs submit that an appropriate amount is $500.
Decision
[96] This step was necessary as the plaintiffs did not provide a list of detailed and specific documents.
[97] Although the disclosure process was found to not be a fishing expedition, I found that the defendants were entitled to redact any portion of a document protected by privilege.
[98] In awarding costs to the defendants, I consider the following:
i. The defendants were largely successful; and
ii. A case conference would not have been necessary if the plaintiffs had provided a revised list.
[99] I have reviewed the bill of costs and note that the following should not be included:
i. Time docketed for the leave application to the Divisional Court (which ultimately was withdrawn);
ii. Time docketed after the case conference and up until April 9, 2021;
iii. Time spent on completing undertakings and producing documents;
iv. Time spent on reviewing documents; and
v. Time spent on setting dates for the re-attendance of Ms. Klatt for cross-examination.
[100] I award the fair and reasonable amount of $2,000 to the defendants.
May 19, 2021 motion held before me
Plaintiffs’ motion to amend claim
[101] The defendants are seeking costs in the amount of $1,534.53 (inclusive of HST and disbursements) on a partial indemnity basis.
[102] The plaintiffs brought a motion on the eve of the s. 137.1 motion to add a claim of “false light”. No supporting affidavit was filed.
[103] Before the hearing and without notice to or consent of the defendants, the plaintiffs adjourned the motion to August 2021.
[104] The court remarked that this motion’s timing was ill-advised and breached the spirit and letter of s. 137.1, which was designed for an early determination of the action. Fresh steps are not encouraged. Furthermore, s. 137.1(6) prohibits amendments without a court order.
[105] No confirmation regarding this motion was filed, resulting in the plaintiffs not indicating to the court and opposing counsel their position on this motion.
[106] The court cancelled the August 2021 motion date and the plaintiffs were not permitted to proceed with their amendment.
[107] The plaintiffs submit that they did not wish to proceed with their amendment so as not to infringe on the time set aside for the anti-SLAPP motion.
[108] The plaintiffs conceded that the defendants are presumptively entitled to costs on the abandoned motion. However, their bill of costs show that they had three timekeepers, including two senior counsel, and included tasks not related to this motion. They submit that an award of costs of $500 is appropriate.
Decision
[109] I award the amount claimed of $1,500.00 to the defendants because of the plaintiffs’ behaviour in that they:
i. Did not file a supporting affidavit to the motion;
ii. Did not file a confirmation;
iii. Adjourned the motion without advising the defendants or obtaining their consent;
iv. Brought this motion at the last minute;
v. Did not request leave before bringing this motion (especially after Gomery J. had stated that this motion should be dealt with after the s. 137.1 motion was heard); and
vi. Did not follow the spirit and letter of s. 137.1 regarding fresh motions.
[110] Also, the evidentiary record should have crystallized in accordance with Master Kaufman’s endorsement.
Defendants’ Motion to Strike Portions of the Plaintiffs’ Materials
[111] The defendants are seeking costs in the amount of $59,634.39 (inclusive of HST and disbursements).
[112] At the September 10, 2020 case conference, Master Kaufman held that this motion would be heard at the s. 137.1 motion.
[113] The plaintiffs submit that the defendants were only partially successful in the striking of the plaintiffs’ materials. The plaintiffs argue that the amount of $59,634.39 is beyond what any litigant would expect to pay as the losing party on such a motion. Furthermore, they argue that no party would expect to pay the approximate amount of $60,000 for a simple straightforward motion to strike affidavit evidence where the defendants were not required to adduce an evidentiary record of their own. In Burton Brothers v. Remington Homes, (Ont. S.C.), costs of $5,000 were awarded on a motion seeking four orders to strike two affidavits and a further and better affidavit of documents.
[114] Regarding the complexity and importance of the issue, the plaintiffs submit that the motion to strike was not complex, is routine in civil ligation and was mainly a legal argument with no real prejudice, as these arguments were in affidavits as opposed to in a factum.
[115] The court did not find the reply factum to be an “abuse of process” as alleged by the defendants; however, the court noted that the plaintiffs included discussion of irrelevant matters.
[116] The bill of costs for the motion to strike included three timekeepers for a simple motion and included time spent on other motions. The plaintiffs submit that the quantum of costs should not exceed $5,000.
[117] The defendants requested that 117 paragraphs be struck and only 70 were ordered struck. In these types of cases, the court has ordered each party to bear their own costs: see Private Equity Management Co. v. Vianet Technologies Inc. (2000), 48 O.R. (3d) 294, (S.C.), at para. 41; Verma v. Di Salvo, 2020 ONSC 850, at para. 92; Markovic v. Abbott, 2010 ONSC 2682, at para 12; Jordan v. Attorney General of Canada, 2016 ONSC 3831, at para. 19.
[118] In addition, the materials struck did not prejudice the plaintiffs. Rather, the court found that the affidavits contained arguments and they belonged in a factum. The impugned paragraphs did not lengthen cross-examination of the plaintiffs or lead to the defendants having to file additional material.
Decision
[119] This motion was properly before the court.
[120] The defendants achieved success in this motion even though the court did not strike all the requested paragraphs.
[121] Ultimately, the court struck many of the paragraphs and portions of the affidavits filed by the plaintiffs as being improper. Many paragraphs were arguments that belonged in a factum.
[122] The court found the plaintiffs’ materials were defective in that:
i. In some instances, the plaintiffs indicate that the paragraphs provide “context” or “narrative”, but the paragraphs were primarily legal arguments and conclusions;
ii. Some facts were intertwined with the legal argument;
iii. Some paragraphs belonged in a factum and not in an affidavit; and
iv. Opinion evidence is inadmissible unless given by an expert. The plaintiffs’ personal opinions or reaction to evidence was essentially an argument in the guise of evidence.
[123] If costs are to be awarded to the defendants, then the court should consider r. 57.01 factors, where the court should review the amount of costs that an unsuccessful party could reasonably expect to pay.
[124] In ordering costs, I consider the following;
i. The defendants were successful in the majority of the issues;
ii. This was an important motion as it dealt with the court record;
iii. Affidavits were replete with argument and irrelevant allegations; and
iv. The plaintiffs were given clear instructions and they did not comply with the court order.
[125] The plaintiffs had failed to file a factum and instead wanted to file letters at the motion.
[126] The court provided the plaintiffs with an opportunity to file a factum to deal with this motion after the hearing and gave strict instructions regarding the factum’s contents . Despite such directions, the plaintiffs did not comply with the court’s instructions and included arguments on the s. 137.1 motion and other issues.
[127] The defendants were required to file further materials to deal with the factum. This involved a reply factum from the defendants, which required them to address other aspects of the plaintiffs’ motion.
[128] I do agree with the plaintiffs that, as an unsuccessful party, they would not reasonably expect to pay costs close to $60,000 for such a motion that is part and parcel of the s. 137.1 motion.
[129] Costs should be reasonable. Although I can consider the time spent by the plaintiffs on this motion, which is substantially less than the defendants, I do note the bulk of the work rests on the moving party.
[130] The materials for this motion, including the detailed motion, affidavit, charts and factum and oral argument were labour-intensive. A record replete with irrelevant and immaterial argument in affidavits weigh down the record and is of no assistance to the court in determining the main issue.
[131] The plaintiffs argue that there was no prejudice to the defendants. While the cross-examinations did proceed and the parties were able to move forward to the motion with the defective affidavits, the court finds that the affidavits caused legal expenses, as counsel needed to take the time to weed through them so as to not be distracted by irrelevant and improper paragraphs.
[132] The Rules of Civil Procedure are clear as to the form and content of affidavits and Mr. Paul, as a former litigation lawyer, is assumed to know more than the average self-represented litigant.
[133] The defendants’ affidavits were important in defending against the s. 137.1 motion.
[134] Given the defendants’ success on the motion, the court finds it was a necessary and proper motion. I found that the affidavits also contained improper opinion evidence, were argumentative and prolix.
[135] As a result of the plaintiffs’ failure to file proper affidavits on the motion, the defendants’ lawyers were required to complete more substantial work than they otherwise would have had to do if proper materials had been filed.
[136] The offers to settle do not deal with this issue.
[137] Given the extensive work undertaken to put forward this motion, the plaintiffs should have reasonably expected that, if they lost the motion, they would be expected to pay partial indemnity costs.
[138] I award the fair and reasonable amount of $15,000 to the defendants.
Section 137.1 motion
[139] The defendants request costs on a partial indemnity basis in the amount of $141,411.45.
[140] Although not successful, the defendants’ argue that their anti-SLAPP motion was not frivolous. They also argue that the court had made a finding that they had met the threshold that the expressions were matters of public interest. This case is distinguishable from the case of Veneruzzo v. Storey, 2018 ONCA 688, 23 C.P.C. (8th) 352.in which the Court of Appeal dismissed an appeal where the motion judge found that the defendants had not met the threshold that the expressions were of public interest and awarded costs to the respondents on a partial indemnity basis.
[141] The plaintiffs’ behaviour in this litigation has led to increased costs for the defendants. The defendants submit that this case is one of the exceptional cases that requires cost sanctions against the plaintiffs.
[142] On the other hand, the plaintiffs submit that a reasonable quantum of costs to be awarded to the plaintiffs is $30,000.
[143] Regarding the defendants’ request, the plaintiffs argue in the alternative that the costs award should be no more than $10,000.
[144] The plaintiffs submit that it is not proportional to order costs in the amount of over $140,000 for over 500 hours of counsel time in a preliminary motion such as the s. 137.1 motion. It is a motion that is not intended to delve deeply into the merits of the underlying action. This is a simplified proceeding where the total potential liability for the defendants is $125,000.
[145] The plaintiffs submit that the defendants are presumptively disentitled to recover costs as they were the unsuccessful party.
[146] The court may have made findings in their favour, e.g. that the matter dealt with matters of public interest, but they are not conclusive findings. Rather, they form a limited merits assessment as required by a s.137.1 motion.
[147] Also, success is measured by the overall success and their motion was dismissed in its entirety: see Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2021 ONCA 381, at para. 10; Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, at para. 21.
[148] The plaintiffs note that the defendants, as the losing party, are unable to justify a departure from the rule that an unsuccessful party is entitled to costs. The plaintiffs’ conduct was not “worthy of cost sanctions”. They submit that such a costs order is only appropriate in “rare”,” drastic" and “exceptional”cases: Isaac v. Law Society of Upper Canada, 2015 ONSC 1635, at para. 22; Celanese, at para. 4; David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co., 2008 ONCA 703, 93 O.R. (3d) 257, at para. 32.
[149] The plaintiffs submit that the defendants’ conduct in this litigation falls short of a substantial costs award sanction. This is not a situation where the unsuccessful party should be awarded costs. Even if the court found that some of the conduct was not proper, e.g. writing to the court improperly, this would mean a reduction of costs to the successful party.
[150] The plaintiffs also note that the court’s finding regarding the request to admit being an oversight was an exercise of discretion and the defendants should not be rewarded for their own errors or inadvertence by the court granting them a costs award in a larger substantive motion.
[151] Rather, the plaintiffs argue that when the court grants an indulgence due to an inadvertence, the court should order the party who made those errors to bear the costs of the motion.
[152] The plaintiffs raise the issue of access to justice where the defendants appear to have unlimited public resources. The defendants state that they have spent $360,000 to defend this action, which is a $125,000 claim. In contrast, the plaintiffs have limited resources and have recently retained counsel at a considerable expense to defend the defendants’ multiple set of costs submissions.
[153] The plaintiffs note the court’s finding at para. 181 of my decision: “the financial or power imbalance strongly favours the Defendants rather than the Plaintiffs.”
[154] Under s. 137.1(8) of the Courts of Justice Act, motion judges have the discretion to award costs to responding parties that successfully resist an anti-SLAPP motion if “such an award is appropriate in the circumstances.” This discretion can be exercised in cases even if the expression at issue has been found to be on a matter of public interest, depending on the facts of a given case.17
[155] The plaintiffs argue that they should be awarded costs because:
i. First, the anti-SLAPP motion was disproportionate and unnecessary. Since the plaintiffs’ claim was brought under the simplified rules, it was meant to be a simplified procedure that could be determined in a cost-effective manner. Instead, the defendants embarked on an expensive anti-SLAPP motion process that derailed the lawsuit and delayed the conclusion of the claim; (the court does, however, note that the original date for the s. 137.1 motion was March 12, 2020 and was, on consent, adjourned to May 15, 2020 but cancelled due to COVID-19 and the suspension of some court proceedings);
ii. Second, the court found that this case did not have the characteristics of a classic SLAPP case; and
iii. Third, the plaintiffs made numerous efforts to resolve the matter, including suggesting attending mediation. They also advised the defendants that they would seek costs if their s. 137.1 motion was dismissed. The defendants refused to engage in any meaningful settlement discussions.
[156] In summary, the plaintiffs submit that the defendants’ tactical decision to pursue this failed anti-SLAPP motion should result in an adverse costs award against them.
[157] The plaintiffs’ request for costs is supported by the case law that has awarded self-represented litigants costs in the range of $100-$150 per hour.
[158] They are also seeking costs incurred for retaining counsel to deal with the defendants’ multiple sets of costs submissions.
[159] Based on the hourly rate of $125/hour for the plaintiffs’ own time, and based on partial indemnity rates for the time of counsel retained for these costs submissions, the plaintiffs are requesting costs in the amount of $30,197.92.
[160] Finally, regarding the payment of a costs award, the plaintiffs submit that they should be payable at the end of the trial or if their action is dismissed. Access to justice issues are in play: Stevens v. Royal Bank of Canada, (Ont. SC), at para. 17.
[161] A costs award that is payable within 30 days as per the Rules would deprive the plaintiffs of the ability to defend themselves and retain counsel on the appeal.
Decision
[162] For the reasons that follow, I award no costs in the s. 137.1 motion. The defendants were not successful and are not presumptively entitled to costs.
[163] There is a presumption that costs not be awarded to the successful respondents. The relevant provision is s. 137.1 (8):
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.
[164] In this case, I do not see any reason to depart from that presumption.
[165] As will be discussed below, the s. 137.1 motion was not frivolous and the plaintiffs’ litigation strategy caused more legal expenses.
[166] The jurisprudence has followed the principle set out at para. 20 of the Anti-SLAPP Advisory Panel Report to the Attorney General that costs awards against unsuccessful defendants are intended to act as “costs sanctions against parties who bring frivolous motions for protection”: Ontario: Ministry of the Attorney General, October 28, 2010.
[167] In Thompson v. Cohodes, 2017 ONSC 2590, at para. 42 Justice Arrell declined to order costs as he was not persuaded that there was any inappropriate behavior on either side that would affect the exercise of his discretion on costs under s.137.1(8).
[168] In Canadian Standards Association v. Knight et al., 2019 ONSC 5630 , Justice C. J. Brown found that the plaintiffs had rebutted the presumption that no costs should be awarded to them. The court found that there were none of the indicia of a SLAPP proceeding and there was no public interest in protecting the impugned expression. The court also found that a denial of costs to the plaintiffs could be viewed as encouraging meritless s. 137.1 motions.
Defendants’ claim for costs
[169] The defendants brought this motion early in the proceeding, in keeping with the intention of the legislature.
[170] Notwithstanding that s. 137.1 motions are the appropriate avenue for potentially disposing of proceedings arising out of expressions on matters of public interest, there are significant costs associated with such motions. For instance, in Canadian Thermo Windows Inc. v Seangio, 2021 ONSC 6555, at para. 146 Justice Meyers stated “[w]hile some would like to think that anti-SLAPP motions should be quick and minor events, the statutory scheme imposes a complex process involving several different tests and measurement standards with weighing and balancing of difficult factors. These are massive motions”.
[171] In Canadian Thermo, this court awarded $164,186.76 in costs on a s. 137.1 motion. However, the defendants were successful in dismissing the action in their s. 137.1 motion.
[172] The defendants’ motion was not a frivolous motion and there was some merit in the submissions brought forward. I do not find that the anti-SLAPP motion was disproportionate and unnecessary. The court had to analyze each aspect as well as each of the steps required. This was not a case that was a foregone conclusion.
[173] Neither party provided the court with a costs outline despite the provision of rule 57.01 (6) which states:
(6) Unless the parties have agreed on the costs that it would be appropriate to award for a step in a proceeding, every party who intends to seek costs for that step shall give to every other party involved in the same step, and bring to the hearing, a costs outline (Form 57B) not exceeding three pages in length.
[174] What follows then, are costs submissions requesting extremely high legal fees to be paid to the defendants on a motion that they lost. Also, what has been filed are dockets dating back to 2018 when the municipality had ongoing issues with the plaintiffs that predate the application.
[175] For example, regarding the defendants’ bill of costs, I note the following:
i. There are two senior counsel plus two other timekeepers,
ii. Time on the dockets includes hours spent on Ms. Paul’s access to information issues;[^1]
iii. Time on the dockets also include time spent on local media articles or responding to a freelance journalist and other unrelated issues; and
iv. There is some duplication of work and what appears to be administrative tasks that are being billed.
[176] Even though in accordance with r. 57.01(2) the court is not prevented from awarding costs to the unsuccessful party, I find that this is not an exceptional case that would warrant such a decision.
[177] As stated by at para. 32 of the decision of David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co.:
[32] Courts will generally exercise their discretion to award costs against a successful party only in exceptional cases. Exceptional cases may include misconduct on the part of the successful party. See Wismer v. Javelin International Ltd. (1982), 38 O.R. (2d) 26 (H.C.J.) at 34. Courts have also exercised this discretion in significant public interest cases such as Charter cases. See Schachter v. Canada, [1992] 2 S.C.R. 679, at 726. and Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 44 O.R. (3d) 73, at p. 9.
[178] The plaintiffs’ conduct was not “worthy of cost sanction” but, as discussed below, it disentitled the plaintiffs to costs. Costs orders against successful parties are only appropriate in “rare” “drastic” and “exceptional”cases: Isaac, at para. 22; Celanese, at para. 4; David Polowin, at para. 32
[179] Accordingly, the plaintiffs are not entitled to costs for this motion.
Plaintiffs’ claim for costs
[180] The plaintiffs’ claim for costs for the s. 137.1 motion is $30,000 based on 143 hours.
[181] Unlike Veneruzzo, the court here found that the impugned expressions related to a matter of public interest.
[182] I found that the case did not have the characteristics of a classic SLAPP case. However, this is not a case where the failure to order costs against the defendants will insulate other unsuccessful moving parties from costs or that the anti-SLAPP motion would be misused by others.
[183] The Ontario Court of Appeal in Veneruzzo reminds us of the objective of the costs provisions in s. 137.1:
[38] The motion judge’s reasons for ordering costs in favour of the respondents are consistent with the rationale for the costs provisions in s. 137.1. Those sections are designed to encourage defendants, who have been sued over expressions on matters of public interest, to bring s. 137.1 motions for an early dismissal of those claims. The costs provisions ease the financial burden and risk placed on the defendant who seeks an early termination of what it claims is a SLAPP: Accruent LLC v. Mishimagi, 2016 ONSC 6924, 9 C.P.C. (8th) 136, at para. 4.
[39] The purpose underlying the costs provisions in s. 137.1 disappears when the lawsuit has none of the characteristics of a SLAPP, and the impugned expression is unrelated to a matter of public interest. In those circumstances, it is not the initial lawsuit challenging the expression that represents a potential misuse of the litigation process, but rather the s. 137.1 motion. A costs order denying a successful respondent its costs on a s. 137.1 motion, even though the lawsuit was not brought for an improper motive and the claim did not relate to a matter of public interest, could be seen as encouraging defendants to bring meritless s. 137.1 motions. [Emphasis added.]
[40] The trial judge’s findings that the respondents did not bring the lawsuit for any improper purpose and that there was no merit to the appellant’s s. 137.1 argument were both available on the evidence. Both factors are properly considered in exercising the discretion provided in s. 137.1(8). Taken together, those factors provided a reasonable basis for the motion judge’s conclusion that a costs award in favour of the respondents was “appropriate in the circumstances”. I would defer to that conclusion.
[184] In Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, the Court of Appeal for Ontario stated:
[40] In his amended reasons, the motion judge determined that his award of costs would be unchanged and awarded the respondents $75,000 on a partial indemnity basis. The motion judge acknowledged the policy of making motions under s. 137.1 accessible and that the no-costs presumption was not to be put aside lightly. However, he considered that the facts of this case were compelling: this was a financial dispute between members of two publicly regulated professions. The appellants were simply trying to get the respondents to pay a disputed bill and resorted to allegedly defamatory street corner placards rather than legal proceedings. In these circumstances, the appellants did not deserve costs immunity. Nevertheless, the motion judge exercised his discretion to reduce the costs award somewhat (from the requested $102,000 on a partial indemnity scale), bringing it more closely in line with the costs incurred by the appellants.
[41] The decision to award costs is a discretionary one that is entitled to deference. Leave to appeal a costs order is granted only where there are strong grounds upon which the court could find that the motion judge made an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[45] I would add these comments. First, although the dismissal of a motion at the 137.1(3) threshold stage is a relevant consideration in determining whether to award costs to a plaintiff, it is not determinative of the appropriateness of a costs order. There will be cases in which the assertion of the public interest is wholly lacking in merit, but there will also be cases in which the moving party may have an arguable basis to assert that their expression relates to a matter of public interest. The award of costs in the former may be easier to justify in the former than the latter cases, but every case is different and the law will no doubt continue to develop in this regard.
[46] Second, although in Pointes the Supreme Court deprecated reliance on the traditional SLAPP indicia identified by this court – (1) “a history of the plaintiff using litigation or the threat of litigation to silence critics”; (2) “a financial or power imbalance that strongly favours the plaintiff”; (3) “a punitive or retributory purpose animating the plaintiff’s bringing of the claim”; and (4) “minimal or nominal damages suffered by the plaintiff” – it did so in the context of the inquiry at the weighing stage, s. 137.1(4)(b), in order to ensure the primacy of the text of the statute and the considerations it sets out: see Pointes (SCC), at paras. 78-80. The court did not hold the traditional SLAPP indicia are irrelevant – they may bear on the analysis under s. 137.1(4)(b), provided the analysis remains tethered to the statutory criteria – and, in any event, the court said nothing about their relevance to the question of costs.
[47] Finally, as Doherty J.A. explained in Pointes (ONCA), at para. 73, a motion under s. 137.1 is meant to be a “screening or triage device designed to eliminate certain claims at an early stage of the litigation process”. It is not an alternative means of trying a claim nor is it a form of summary judgment, and it is important to maintain a sense of proportionality where costs are concerned. The motion judge’s decision to reduce the respondents’ partial indemnity costs was appropriate.
[185] The litigation strategy taken by the plaintiffs in this case has resulted in costs for other steps, as articulated above. This included the plaintiffs taking fresh steps despite a clear mandate against doing so in s. 137.1.
[186] This is not like the Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 243, 72 C.C.L.T. (4th) 221, where the Ontario Court of Appeal confirmed that the successful responding parties were entitled to costs because Subway had to incur significant legal costs in the motion below as well as the appeal. These parties also had the benefit of the substantial jurisprudence on the operation of the s. 137.1 motion.
[187] Here, the plaintiffs delayed the hearing of the motion through actions including delaying in filing materials, requesting court time, adding expenses and starting this action in the wrong jurisdiction.
[188] As noted above, the bringing of the s. 137.1 motion is meant to be an early screening of these types of cases. The plaintiffs’ efforts to stymie the s. 137.1 motion, attendances at court to deal with material in support of the motion, and their overall litigation strategy seeking to prevent the s.137.1 motion from being heard militates against an award of costs in their favour.
[189] The court noted above that the plaintiffs’ litigation strategy added extra costs and expenses to the defendants: e.g. the voluminous emails from the plaintiffs to defence counsel increased legal fees.
[190] There were no offers to settle on this point but there was an offer from the plaintiffs indicating that they would seek costs if the defendants’ s. 137.1 motion failed.
[191] I note the following:
i. Offers to settle were made by the plaintiffs with terms to genuinely attempt to settle the matter;
ii. Although such offers do not meet the criteria of a rule 49 offer to settle, in accordance with rule 49.13, the court can take into account any offer to settle made in writing: see McLean v. Knox, 2012 ONSC 1069, 109 O.R. (3d) 690, where the court considered an offer to settle which did not comply with rule 49 and awarded costs;
iii. In contrast, the defendants’ offer to settle was a simple offer for a dismissal of the action without costs, which could be argued has no element of compromise although now having viewed their accounts does symbolize a large compromise; and
iv. Offers to attend mediation were made by the plaintiffs on at least four occasions and the defendant declined or did not respond.
[192] Although the s. 137.1 motion was commenced on January 13, 2020, it was not heard until May 19, 2021.
[193] Numerous factors accounted for this delay, including the onset of the global pandemic, the numerous interlocutory attendances necessitated by the plaintiffs’ action, and the fact that the plaintiffs brought their action in the wrong jurisdiction necessitating the bringing of a motion to transfer the matter to the Pembroke Court.
[194] I find that the plaintiffs’ conduct up to and including the hearing of the s.137.1 motion unnecessarily lengthened the duration of the proceeding. Costs have been ordered against them. Accordingly, they are not entitled to costs.
[195] Here the defendants were unsuccessful on their motion because I found that the plaintiffs had satisfied their onus in respect to the “merits-based” and “public interest” hurdles found in s. 137.1(4) (a) and (b).
[196] Not only was the motion not frivolous or ill-conceived, I find that it was not brought for an improper purpose.
[197] The plaintiffs have not rebutted the statutory presumption regarding costs.
[198] The plaintiffs brought the case of Sikhs for Justice v. The Macdonald-Laurier Institute, 2021 ONSC 7063 to the court’s attention. They emphasized para. 87 in which Black J. finds the plaintiffs to be entitled to costs, noting the “extensive and detailed preparation” put towards the motion. This case did not, however, sway my decision on costs for the 137.1 motion. The circumstances of the case at hand, notably the litigation strategy adopted by plaintiffs criticized above for increasing costs and expenses, cannot justify a deviation from the standard practice provided for in 137.1(8).
[199] Regarding the request to admit issue, I award no costs. Although the defendants were successful on this issue, they should not be rewarded with costs for their inadvertence.
Summary
[200] In conclusion, the court finds that a fair and reasonable quantum for costs to be awarded to the defendants for the following steps are as follows:
i. August 11, 2020 before Gomery J. $2,000;
ii. September 10, 2020 case conference before Master Kaufman $2,000;
iii. October 23, 2020 before Gomery J.$1,500;
iv. March 4, 2021 motion before me: $10,000
v. March 24, 2021 case conference before me: $2000;
vi. Motion dealing with the claim of “false light”:$1,500
vii. Motion regarding striking of pleadings: $15,000; and
viii. No costs for the s. 137.1 motion;
ix. Total: $34,000.00.
[201] Accordingly, the defendants are awarded the fair and reasonable quantum of costs in the amount of $34,000.00.
Time to pay
[202] Pursuant to r. 57.03(1) of the Rules of Civil Procedure, a judge should fix the costs of a contested motion and order them to be paid within 30 days, “unless the court is satisfied that a different order would be more just”. Pursuant to s. 131 of the Courts of Justice Act, the court has wide discretion in determining the costs (as well as the incidental costs) of any step in a proceeding.
[203] I do not find that the payment of costs should be deferred until the completion of this matter. The plaintiffs’ conduct leading up to the s. 137.1 motion and their position on other issues at the motion delayed the proceeding and caused extra legal expenses for the defendants.
[204] Litigants, even if they are self-represented, are responsible for the decisions they take in litigation. This is especially so given that Mr. Paul was a former litigator.
[205] Therefore, the costs are payable within 180 days from the date of this Endorsement.
Justice A. Doyle
Date: November 24, 2021
[^1]: dockets in 2019: March 17, 30, March 31, April 6, May5, June 1, June 2, June 24, July 6, July 16, July 17.

