Cilevitz v Bergman, 2023 ONSC 1892

COURT FILE NOS. CV-18-00136348-0000 and CV-19-00139652-0000 DATE: 20230322 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Karen Cilevitz Plaintiff – and – Matthew Bergman, also known as Matt Groopie Defendant

Jason Cherniak, for the plaintiff Matthew Stroh, for the defendant

AND BETWEEN:

Karen Cilevitz Plaintiff – and – The Corporation of the Town of Richmond Hill, Integrationsolutions Inc., carrying on business as iSi Live, Carmine Perrelli, Matthew Bergman, also known as Matt Groopie, Marcia Papa, Gregory Swain, David Grossman, Nicandro Papa, also known as Nick Papa, Jane Doe and John Doe Defendants

Jason Cherniak, for the plaintiff Matthew Stroh, for Matthew Bergman Gregory Swain, in person

Heard on November 4, 2022, by video conference, at Newmarket

S.T. BALE J.:

Reasons for Decision

Overview

1Karen Cilevitz, a town councillor in Richmond Hill, Ontario, sued Matthew Bergman, Marcia Papa, Gregory Swain and Nicandro Papa for defamation. On motions made by them under s. 137.1 of the Courts of Justice Act, I dismissed both actions.

2Mr. Bergman now asks that he be awarded damages pursuant to s. 137.1(9) of the Courts of Justice Act. Both Messrs. Bergman and Swain ask that their costs be fixed on a full indemnity basis pursuant to s. 137.1(7) of the Act.

Damages

3Section 137.1(9) of the Courts of Justice Act provides:

If in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

4Two issues arise. First, whether the plaintiff brought the proceedings in bad faith or for an improper purpose; and second, whether the defendant suffered damages as a result of the commencement of the proceedings.

Whether the proceedings were brought in bad faith or for an improper purpose

5Section 137.1(9) should be seen as an effort to separate out a subset of s. 137.1 cases which go beyond simply reflecting an effort to limit expression and include active efforts to intimidate or to inflict harm on the defendant: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 34.

6Ms. Cilevitz says that she commenced the proceedings because she honestly believed that the defendants were spreading untrue, defamatory, vicious and malicious accusations against her. She says that her only purpose was to defend her reputation.

7Mr. Bergman’s position is that Ms. Cilevitz commenced the proceedings in bad faith to impede his freedom of expression on issues surrounding her “misfeasance in public office” and her “targeted malice” as against him. He says that her purpose was to punish, silence and intimidate him.

8In support of his position, Mr. Bergman relies upon a litany of complaints about Ms. Cilevitz’s conduct and argues that her commencement of the proceedings was simply a continuation of that misconduct. However, in my reasons for decision on the original motion, I found that Bergman had published defamatory statements about Cilevitz and her spouse. He goaded her by calling them “liars” and using language such as “corrupt scum”, “fucking morons”, “corrupt idiots”, “elected fraudsters”, “hand in cookie jar, caught”, and “okay with harassing, bullying, threatening and intimidating cancer patients.” The fact that I found that Cilevitz’s claims did not survive either the merits-based hurdle in s. 137.1(4)(a) of the CJA or the public interest hurdle in s. 137.1(4)(b) does nothing to negate the effect of the language used. In these circumstances, I accept Cilevitz’s evidence that her purpose in commencing the proceedings was to defend her reputation, rather than to intimidate or inflict harm on Bergman. It may be that she wished to discourage his conduct, but there is a difference between discouragement and intimidation.

Whether Mr. Bergman suffered compensable damages

9Section 137.1(9) is intended to provide compensation for harm done directly to the defendant as a result of the commencement of the proceeding. It is not intended to provide wide-ranging authority for the court to sanction the plaintiff’s conduct. Any need to sanction the conduct of the plaintiff is already addressed through the provision in s. 137.1(7) of a presumptive award of full indemnity costs: United Soils Management Ltd. v. Mohammed, at para. 38.

10Even if I had found Ms. Cilevitz to have commenced the proceedings in bad faith or for an improper purpose, I would have awarded nominal or no damages to Mr. Bergman. In his affidavit on damages, he says that his mental health has suffered as a result of her conduct; however, the complaints he makes against her relate primarily to her conduct before the commencement of either proceeding. In these circumstances, it cannot be said that his damages are a direct result of her commencement of the proceedings. Any need to sanction her conduct will be addressed by an award of full indemnity costs.

11Mr. Bergman does say that following Ms. Cilevitz’s commencement of the proceedings, he felt that he was again being unfairly targeted and forced to defend lawsuits that were “demonstrably without merit”, and that he was embarrassed to have to start a GoFundMe account to help pay for his defence. However, a feeling that one has been unfairly targeted by unmeritorious lawsuits, and embarrassment resulting from being unable to afford a defence, do not amount to compensable damages.

Costs

12Section 137.1(7) of the Courts of Justice Act provides: “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.”

13In United Soils Management Ltd., at para. 42, the court confirms that in awarding costs on a full indemnity basis: “The quantum to be awarded must still be fair and reasonable for what was involved in the particular proceeding and must be proportionate to the importance and complexity of the issues and the amount involved in the proceeding.”

Bergman’s costs

14At the hearing to determine damages and costs, Mr. Bergman’s counsel presented a bill of costs totalling $71,474. Following the hearing, he delivered a revised bill of costs totalling $54,250. The revised amount reflected deductions of $6,917, being the total of amounts he received through GoFundMe, and $10,307, being the costs to him of obtaining a Norwich order which did not yield any relevant evidence.

15Following delivery of the revised bill of costs, Ms. Cilevitz’s counsel delivered his analysis of the amount claimed. Based upon that analysis, he argued for a number of further deductions resulting in a balance of $35,824. In responding submissions, Mr. Bergman’s counsel disagreed with most (but not all) of those further deductions.

16The further deductions which Ms. Cilevitz requests include $8,379 referable to the hearing to determine damages and costs. Counsel submitted that if Mr. Bergman was unsuccessful in obtaining damages, Cilevitz and not Bergman would be entitled to the costs of the hearing. I disagree. The costs of this hearing are included in the costs referred to in s. 137.1(7), just as they would have been had all the issues been heard the same day. Bifurcation of the issues was simply a matter of convenience. There is nothing in the statute to suggest that costs related to the issue of damages should be exempted from the provision for full indemnity costs.

17In the result, having considered the evidence and the oral and written submissions of counsel, I have concluded that $50,000 represents a fair, reasonable and proportionate award of costs to Mr. Bergman on a full indemnity basis.

Swain’s costs

18Mr. Swain retained lawyers on a limited scope basis to assist with his defence. The total he paid to those lawyers was $11,690.56 (inclusive of court filing fees of $183 and $320). In addition to that amount, he requests reimbursement for loss of wages related to the hearings and case conferences in which he participated. However, I find that in the circumstances of this case, he would likely have attended the hearings and case conferences even if he had been represented. In such circumstances, he did not incur an opportunity cost by foregoing remunerative activity which he would not have incurred had he been represented. In the result, I have concluded that $11,690.56 represents a fair, reasonable and proportionate award of costs to Mr. Swain on a full indemnity basis.

Disposition

19Disposition

20For the reasons given, Matthew Bergman’s claim for damages is dismissed. The costs on the motion and in the proceeding will be paid by Karen Cilevitz to Mr. Bergman in the amount of $50,000, and to Gregory Swain in the amount of $11,690.56.