COSTS DECISION
COURT FILE NO.: CV-20-82717
DATE: 2022/03/14
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE
RE: MAXIME BERNIER, Plaintiff (Responding Party)
AND:
WARREN KINSELLA, DAISY CONSULTING GROUP INC. and DAISY STRATEGY GROUP, Defendants (Moving Parties)
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: David Shiller, for the Defendants (Moving Parties)
André Marin for the Plaintiff (Responding Party)
HEARD: In writing
Introduction
[1] On November 10, 2021, I released reasons for dismissing this action pursuant to s. 137.1 of the Courts of Justice Act (see 2021 ONSC 7451). Counsel wished to make costs submissions in writing and I am now in receipt of their submissions.
[2] The defendants were successful in obtaining dismissal of the action. As such, the question of costs is governed by s. 137.1 (7) of the Courts of Justice Act which reads as follows:
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.
[3] Evidently the motions judge retains jurisdiction to award costs on a different basis if the judge is of the view “that such an award is not appropriate in the circumstances.” The Court of Appeal has given guidance on the appropriate framework in Levant v. De Melle, 2022 ONCA 79.
[4] For the reasons that follow, I am of the view that the statutory presumption does apply and I am awarding substantial indemnity costs. I have applied a modest reduction to the amounts claimed by the defendants.
Analysis
[5] The rationale behind s. 137.1 and the presumptive costs award is to deter the use of defamation actions to limit freedom of speech on issues of public importance. The legislation seeks to ensure that unmeritorious litigation cannot be used as a weapon to stifle constitutionally protected speech. Full indemnity for the cost of defending against such litigation was felt to be an important component of that protection.
[6] In the case at bar, not only did Mr. Bernier seek to punish Mr. Kinsella for attacking him and the People’s Party of Canada, but he also pursued the litigation for an extraneous purpose. In his affidavit sworn in opposition to the motion, Mr. Bernier made significant allegations against the Conservative Party of Canada and sought to characterize the communications made by Mr. Kinsella as part of a scheme of dirty tricks promoted by the party against him and the party that he now leads. This assertion is repeated in the costs submissions which assert that this was a case of “paid defamation”. Although Mr. Bernier contends that his main purpose in pursuing the action was to clear his name from the “taint of racism”, there is no doubt that one of his primary objectives was to obtain details through the discovery process to demonstrate that the Conservative Party of Canada was behind Mr. Kinsella’s communication, and it was the party that funded “Project Cactus”.
[7] I considered whether the intemperate school yard language used by Mr. Kinsella in his online communication or his subsequent online gloating over the court decision might justify depriving him of costs. Tempting as it might be to discourage juvenile name calling as a form of political commentary, this would amount to twisting the law to protect only speech that the presiding judge approves of. As the Supreme Court of Canada has articulated, an expression of opinion, however exaggerated is protected by the law and in a free country people have “as much right to express outrageous and ridiculous opinions as moderate ones.” (See Simpson v. Mair, 2008 SCC 40, [2008] 2 SCR 420 @ para. 4). I would also largely adopt the analysis in the recent decision of Mondal v. Evans-Bitten, 2022 ONSC 809. Justice Morgan described Twitter as a “medium for expression whose very nature is not only to broadly disseminate but to greatly amplify everything written there” and as a “rhetorical environment in which offhand comments are often stated in a serious tone which may be disorienting and even fear-inducing to those unaccustomed to the schoolyard-like atmosphere” (paras. 37 – 40).
[8] Counsel for the plaintiff argues that there was a certain novelty to this case and points out that the law on defamation changed during the course of the litigation. In particular, it is argued, the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, altered the law that damages are presumed in a defamation action. That is inaccurate. In Pointes, the Supreme Court was concerned with the statutory test in s. 137.1 of the CJA. Section 137.1 (4) (b) requires not that damages be proven but that for the purposes of the motion and the balancing exercise, the plaintiff must show that he suffered “harm” and that the harm suffered as a result of the impugned expression by the defendant was sufficiently serious that it outweighs the public interest in protecting that expression. (see paras. 68 – 72). “Harm” for this purpose need not be monetary harm, but there must be evidence of both harm and causation to survive the anti-SLAPP motion. I address this in detail at paragraphs 68 – 74 of my decision.
[9] Given the collateral purpose for pursuing this litigation, the inability to prove harm caused by Mr. Kinsella’s contributions to criticism of Mr. Bernier and the fact that I found the lawsuit to meet the definition of SLAPP litigation, this is not a case in which the presumption is inappropriate. The defendants are entitled to full indemnity for their costs.
[10] “Full indemnity” is not a blank cheque. It is what used to be styled “costs as between a solicitor and his own client” and it means full indemnity for the costs that the court determines were actually and reasonably incurred. In this case, the defendants seek to recover judgment in the amount of $137,952.86 set out in the costs outline.
[11] Counsel for the plaintiff quibbles with some of the disbursements. For example, he challenges a charge of $875.00 for online research using Quicklaw or Westlaw when the same cases can be found free of charge on . I would not second guess counsel’s choice of online research tools. He also argues that the defendants delayed in bringing this motion and ran up costs responding to pleading amendment motions. The timeliness of the motion is a legitimate consideration. Once the motion is launched, the action is stayed pursuant to s. 137.1 (5) of the Act and s. 137.2 provides that the motion must be heard within 60 days after it is filed. While there is no specific statutory requirement for the motion itself to be launched at the earliest possible date, I agree that it is intended to be a threshold motion and it would not be reasonable to run up unnecessary costs prior to bringing it.
[12] The plaintiff does not challenge Mr. Shiller’s hourly rate of $475 per hour, but he does challenge the amount of time spent in affidavit preparation (53 – 67 hours). Mr. Kinsella is himself a lawyer and it is evident, according to the plaintiff, that Mr. Kinsella himself drafted much of the affidavit material.
[13] Fixing of costs is not a scientific exercise nor does the court hear evidence as would be done on an assessment. I have not reviewed docket entries or receipts although of course, counsel has certified that the costs outline is accurate. On the other hand, it should be noted that counsel for the plaintiff has not disclosed how much time was spent on behalf of the plaintiff or what the plaintiff’s own legal costs might be. There are several cases in which the court has held that to be necessary when the party responsible for paying the costs wishes to argue that the costs are unreasonable (see for example Apotex Inc. v. Eli Lilly Canada Inc., 2021 ONSC 3111 @ para. 14).
[14] To be fair to the plaintiff, I would reduce the amount claimed by a modest amount to give some weight to the argument that an extraordinary amount of time was spent in affidavit preparation and the motion might have been brought earlier in the proceeding. I would reduce the amount claimed for fees by ten hours or $4,750.00. This would reduce the fee amount to $112,527.50 which, together with HST and the disbursements, brings the total costs to $132,585.36. I round that down to $132,000.00.
Conclusion
[15] In conclusion, pursuant to the statute, the defendants are entitled to substantial indemnity costs of the motion and the action. In the exercise of my discretion, I fix those costs at $132,000.00.
Regional Senior Justice C. MacLeod
Date: March 14, 2022
COURT FILE NO.: CV-20-82717
DATE: 2022/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MAXIME BERNIER, Plaintiff (Responding Party)
AND:
WARREN KINSELLA, DAISY CONSULTING GROUP INC. and DAISY STRATEGY GROUP, Defendants (Moving Parties)
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: David Shiller, for the Defendants (Moving Parties)
André Marin, for the Plaintiff (Responding Party)
COSTS DECISION
Regional Senior Justice C. MacLeod
Released: March 14, 2021