Zafar Bangash v. Mustafa Patel

Court File No.: CV-19-141275 Date: 2022-01-11 Ontario Superior Court of Justice

Between:

Zafar Bangash Plaintiff

– and –

Mustafa Patel Defendant

Counsel: Stephen Ellis for Mr. Bangash Charles R. Daoust for Mr. Patel

Heard: Costs Submissions in Writing

Ruling on Costs

C. Boswell J.

[1] Mr. Bangash sued Mr. Patel for damages for an alleged defamation.

[2] Mr. Patel brought a motion to dismiss Mr. Bangash’s claim under the anti-SLAPP provisions of the Courts of Justice Act. I granted that motion on November 23, 2021 for reasons reported at 2021 ONSC 7620. I invited the parties to make written submissions on costs, which they have done. The following reasons explain my disposition of the costs issue.

The Governing Principles

[3] An award of costs, and the amount of the award, are in the court’s discretion. That discretion is grounded in section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43.

[4] By convention, costs are generally awarded to a successful party and are ordinarily measured on a partial indemnity basis: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.). In anti-SLAPP proceedings, however, the usual convention is superseded by s. 137.1(7) of the Courts of Justice Act. That section provides that where a proceeding is dismissed under s. 137.1, the moving party is entitled to costs of the proceeding, including the motion, on a full indemnity basis, unless the court determines that such an award is not appropriate in the circumstances.

[5] The court’s discretion to fix the amount of costs, even where they are assessed on a full indemnity basis, remains subject to certain well-settled and overarching principles, specifically, fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.). In the context of determining what is fair, reasonable and proportionate, due consideration must be given to the reasonable expectations of the parties. See Neubuerger v. York, 2016 ONCA 303 at para. 17.

The Parties’ Positions

[6] Mr. Patel was the successful party on the motion. He submits that there is no reason to depart from the presumption that full indemnity costs are payable. He says those costs are $29,469.59, being $28,652.85 for fees and $816.74 for disbursements (both figures inclusive of HST).

[7] This was a case, he contends, about “the right to free expression of a member of a religious community seeking to affect change.” He argues that the issues engaged in the motion were not only important to him, but to the community as a whole.

[8] He further maintains that costs in the range of $30,000 should have been in the reasonable expectation of Mr. Bangash.

[9] Mr. Bangash accepts that Mr. Patel was the successful party. He submits, however, that full indemnity costs are not appropriate in the circumstances of this case. His submission is grounded in the following considerations:

(a) The court observed in the anti-SLAPP ruling that Mr. Banghash’s claim was not without merit.

(b) The court expressly characterized the anti-SLAPP motion as a “close call”. And,

(c) The court characterized most of Mr. Patel’s defences as “weak”.

[10] In view of the close call on the merits, Mr. Bangash urges the court to consider awarding partial indemnity costs.

Discussion

[11] Section 137.1(7) clearly creates a presumption of entitlement to full indemnity costs where a party’s motion to dismiss a proceeding under s. 137.1 is successful. But the court retains a broad discretion to make an award of something less than full indemnity costs where they would not be “appropriate in the circumstances”.

[12] Ontario’s anti-SLAPP provisions are relatively new. In the result, only a modest body of jurisprudence has developed under those provisions. Almost none of it has addressed the presumption of full indemnity costs and, more particularly, in what circumstances it might be rebutted. It is not yet possible to catalogue the range of circumstances in which courts may conclude that full indemnity costs are not appropriate.

[13] I note that in one recent decision, the Court of Appeal for Ontario upheld a motion judge’s decision to award partial indemnity costs to a successful moving party where the defamation action in issue was not a traditional SLAPP lawsuit and where the plaintiff was described as “a genuinely aggrieved individual trying to vindicate what he reasonably believes is a bona fide defamation claim.” The parties had also taken “an unnecessarily deep dive” into the merits of the proceeding, resulting in increased costs. See Blair v. Ontario (Premier), 2021 ONCA 841.

[14] This lawsuit was also not what one might characterize as a traditional SLAPP. It was not a case where a wealthy and powerful person or organization was using litigation to intimidate and silence a weaker, vulnerable opponent. I consider Mr. Bangash, like Mr. Blair, to be a genuinely aggrieved person pursing what he believes to be a genuine defamation claim.

[15] Though the traditional indicia of a SLAPP may have been absent, the lawsuit was nevertheless caught by the anti-SLAPP provisions of the Courts of Justice Act because it centered on an expression which related to a public interest.

[16] The expression in issue included a demonstrably false statement – that members of Mr. Bangash’s family had sold lands belonging to the Islamic Society of York Region and had not properly accounted for the sale proceeds. No lands were ever sold. Mr. Bangash was wronged by the statement and he sought to right that wrong through a lawsuit.

[17] Mr. Patel, and the others responsible for the creation of the petition in issue, could easily have determined whether lands had actually been sold by conducting a simple title search. They acted recklessly. It was that recklessness that was really the principal driver of the resulting lawsuit. Mr. Patel must bear some responsibility for that.

[18] I observed in my ruling that this case was a close call. I found that, when considered in context, the impugned expression was one aspect of a larger complaint about a lack of transparency, accountability, inclusivity and leadership. The claim had, in my view, modest merit and involved, at best, modest damages. The ultimate weighing of the harm suffered by Mr. Bangash against the public interest in protecting the expression (even though it included a false assertion) pointed towards the claim’s dismissal. But the lawsuit could likely have been avoided altogether if Mr. Patel and his associates had been more careful about how the petition was drafted.

[19] In these circumstances, it would be unfair, in my view, to impose full indemnity costs on Mr. Bangash. Partial indemnity costs are appropriate in the circumstances. I fix those at $20,000 all inclusive. They are payable within 30 days by Mr. Bangash.

Released: January 11, 2022 C. Boswell J.