Court File and Parties

COURT FILE NOs.: CV-21-00664478

DATE: 20220511

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PROBHASH MONDAL and 2345171 ONTARIO INC. operating as GUELPH MEDICAL IMAGING, Plaintiffs

– and –

STEPHANIE MARIE EVANS-BITTEN and KATHRYN EVANS-BITTEN, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: John Chapman and Matthew Walwyn, for the Plaintiffs

Marcus McCann and Angela Chaisson, for the Defendants, Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On March 1, 2022, I dismissed this defamation action as being a SLAPP suit. Under section 137.1(7) of the Courts of Justice Act, the Defendants are presumptively entitled to costs on a full indemnity basis.

[2] Counsel for the Defendants seek $41,082.45 in costs, all inclusive, for their two clients together.

[3] Counsel for the Plaintiffs agree that section 137.1(7) applies and that this is a reasonable amount. However, they object to an award in this amount based on their understanding that the Defendants have obtained funds for the case through the mechanism of crowd funding over the internet.

[4] Plaintiffs’ counsel explain their position succinctly in their written submissions (original footnote included):

The issue that the Plaintiffs raise is that the Defendants apparently raised significant funds (perhaps $14,000) on a ‘GoFundMe’ campaign that reduced the amount they were obliged to pay their counsel. Historically, the main purpose of costs awards was to “indemnify” the successful party for part or all of their legal costs. As the plaintiffs do not have to pay this $14,000,[^1] they do not have to be indemnified for it, and it is suggested that the final cost award should be $27,082.45.

[^1]: This number comes from informal discussions among counsel. Mr. McCann will be able to provide the precise number.

[5] In support of their point, Plaintiffs’ counsel make reference to the principle of indemnity contained in Rule 57.01(1)(0.a) of the Rules of Civil Procedure. They submit, accurately, that costs awards are not meant to be a windfall, and that where there is no obligation to pay legal expenses, such as where the successful counsel has acted pro bono, there is no need for those expenses to be indemnified: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 2006 CanLII 35819 (Ont CA).

[6] While I agree with Plaintiffs’ counsel that the principle of indemnity is the foundation for costs awards, I am not inclined to deduct from the Defendants’ award the amount that they allegedly raised via GoFundMe. As a matter of procedure and policy, in assessing costs we inquire into how much the lawyer’s bill comes to, but we do not inquire into the party’s means of paying it.

[7] There are many ways in which a party in litigation may pay their legal bill, some of which put them out of pocket and some of which do not. A successful party may have had the funds on hand, others may be in a business where legal expenses are readily passed through to customers, still others may have had to resort to bank financing, and there are those who may have gotten the funds from their mother or a helpful friend. One can see that probing into whether a costs award is truly an indemnification of money outlaid by the successful party, or whether it was a recoverable expense or forgivable loan/gift, would be a novel and rather intrusive approach to the award of costs.

[8] Inquiring into the party’s source of funds, as opposed to the Bill of Costs, raises the discovery possibilities in a costs controversy to an entirely new level. Here, for example, I do not have evidence before me of just how much the Defendants managed to raise over the internet. The footnote to Plaintiffs’ counsel’s submission quoted in paragraph 4 above makes that clear. Reliable evidence on that question would be required before any judicial determination could be made.

[9] For that matter, I also do not know the purpose of any donations that were made to the Defendants. The donors may have wanted to limit their contribution to the Defendants’ legal fees, or they may have wanted to support the Defendants in other ways separate and apart from their legal expenses. In fact, the only thing I can be confident about with respect to the GoFundMe donations is that the donors did not provide funds to the Defendants in order to give the Plaintiffs a break on paying costs.

[10] As a matter of policy, costs inquiries are restricted to an examination of the lawyer’s legal bill. Nothing in the Rules or in the case law of costs convinces me that the inquiry should be expanded to examine the successful party’s means of payment.

[11] For the sake of convenience, I will adjust the Defendants’ costs request slightly by rounding off the figure. I will also make the costs award a global one for the Defendants, and will leave it to the two of them to sort out between themselves how much goes to each.

[12] The Plaintiffs shall pay the Defendants costs in the amount of $41,000, inclusive of all disbursements and HST.

Morgan, J.

Date: May 11, 2022