Court File and Parties

COURT FILE NO.: CV-22-166

DATE: December 22, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 40 Days for Life, Plaintiff

AND: Brooke Dietrich, John Doe, Jane Doe and Persons Unknown, Defendants

BEFORE: MacNeil J.

COUNSEL: P. Horgan and R. Fernandes – Lawyers for the Plaintiff/Responding Party A. Matas and K. Gordon – Lawyers for the Defendant/Moving Party, Brooke Dietrich No one appearing for the other Defendants

ADDITIONAL REASONS CONCERNING COSTS

[1] By reasons for decision released on September 30, 2022, I dismissed the anti-SLAPP motion made by Brooke Dietrich (“Ms. Dietrich”) and allowed 40 Days for Life’s (“40 Days”) action to continue to trial.

[2] The parties were unable to resolve the issue of costs of the motion and so have made written submissions.

[3] 40 Days seeks partial indemnity costs of $51,185.65. Ms. Dietrich submits that no costs should be ordered because this is not an exceptional case in which a costs award is justified under section 137.1(8) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”).

Discussion

[4] Section 137.1(8) of the CJA provides:

Costs if motion to dismiss denied

(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.

[5] As Belobaba J. explained in Ferreira v. Da Costa, 2019 ONSC 2990, at paras. 8-10:

8 The mere fact that an anti-SLAPP challenge is dismissed and the defamation action is allowed to proceed to trial (the plaintiff having cleared the hurdles set out in s. 137.1 of the CJA) is not enough to justify a costs award under s. 137.1(8). Otherwise, the statutory presumption set out therein would be completely undermined. …

9 The 2010 Anti-SLAPP Advisory Panel Report that led to the enactment of s. 137.1 of the CJA noted that costs awards against unsuccessful defendants are intended to act as “costs sanctions against parties who bring frivolous motions for protection”.

10 This court has accepted that costs awards under s. 137.1(8) case law are “appropriate” in cases where the anti-SLAPP motion is found to be frivolous or unmeritorious. The Court of Appeal has also suggested that the defendant’s anti-SLAPP challenge may be found to be unmeritorious if the plaintiff’s action has none of the characteristics of a SLAPP suit and the impugned expression is unrelated to a matter of public interest. [Citations omitted.]

[6] In my decision, I found that Ms. Dietrich’s expression, as a whole, related broadly to the counter-protesting of anti-abortion groups and to her efforts to stop anti-abortion protesting outside hospitals and, therefore, was a matter of public interest. After undertaking the analysis required by s. 137.1 of the CJA to determine if 40 Days’ legal proceeding was a legitimate one, I concluded that some of its claims were without merit but some should continue on to trial. Given the divided success on the anti-SLAPP motion, it cannot be said that Ms. Dietrich’s motion was frivolous and unmeritorious.

[7] Accordingly, I am not persuaded that there is any reason to depart from the statutory presumption under s. 137.1(8) of the CJA that costs should not be awarded against the defendant.

Disposition

[8] 40 Days’ request for costs is dismissed.

MacNEIL J.

Released: December 22, 2022