Court File and Parties
COURT FILE NO.: CV-21-00086277 DATE: 2023/07/13 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paula Riopelle, Plaintiff AND Chris Riopelle and Aeden Helmer, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: Joseph W.L. Griffiths for the Plaintiff Brendan Hughes for the Defendant Aeden Helmer
HEARD: In writing
Costs Endorsement
Overview
1On May 26, 2023, I released my reasons for decision granting Mr. Helmer’s motion under s. 137.1 of the Courts of Justice Act and dismissing the action against him: Riopelle v. Riopelle, 2023 ONSC 3169.
2Mr. Helmer requests costs of the action and the motion in the amount of $78,580.35 on a full indemnity basis.
3Ms. Riopelle submits that each party should bear their own costs. In the alternative, she argues that costs should be awarded on a partial indemnity basis. In the further alternative, she submits that the proper quantum is no more than $25,000 all inclusive, on a full indemnity basis, and $15,000 all inclusive, on a partial indemnity basis.
4For the following reasons, I conclude that Mr. Helmer is entitled to his costs on a full indemnity basis in the amount of $78,580.35, all inclusive.
Discussion
(i) Scale of Costs
5When an action is dismissed under s. 137.1, the statutory presumption is that the successful moving party will be awarded costs on a full indemnity basis unless the judge determines that such an award is not “appropriate”: CJA, s. 137.1(7); Levant v. DeMelle, 2022 ONCA 79, at para. 75. The statute does not set out any factors to be considered in deciding when the presumptive award will not be appropriate; the motion judge is “left with the discretion to decide whether an award of full indemnity costs is not ‘appropriate’ in a particular case”: Levant, at paras. 75-76.
6Ms. Riopelle submits that “in light of the very real privacy concerns expressed by Paula and the Defendant’s acknowledgement that the article had little public value” each party should bear their own costs. I disagree. As the successful moving party, Mr. Helmer is presumptively entitled to costs of the action and the motion on a full indemnity basis. There is simply no basis to withhold costs from Mr. Helmer.
7Ms. Riopelle argues that costs should be awarded on a partial indemnity basis because the action did not have the hallmarks of a traditional SLAPP action, she was not attempting to intimidate or silence a weaker opponent, her action otherwise had merit, Mr. Helmer expressed his own concerns about the article, and she made an offer asking that the article be rewritten to add in the missing context that caused her and her children harm.
8Again, I disagree. In Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, the plaintiff argued that full indemnity costs should be reserved for cases where the action was meritless and brought for strategic purposes. The Court of Appeal for Ontario rejected this submission:
The language of s. 137.1(7) offers no support for Fortress’s narrow reading, nor does the legislative history of the provision. The language is clear. If the defendant is successful on the motion, the defendant should receive full indemnity costs, subject to the motion judge deciding that full indemnity is not an appropriate award in the circumstances. The starting point is not predicated on the basis upon which the defendant succeeds on the motion. Fortress Real Developments, at para. 66. See also Boyer v. Callidus Capital Corporation, 2023 ONCA 311.
9There are no factors in this case that would justify departing from the statutory presumption of full indemnity costs. While “countervailing determinations” on some of the factors to be considered under s. 137.1 do not detract from the full indemnity presumption, Levant, at para. 77 all the s. 137.1 considerations were, in any event, determined in Mr. Helmer’s favour. Ms. Riopelle’s privacy arguments ignored the fact that the criminal charges she was facing were, at all times, publicly available in a court file. She was unable to identify any private fact in the article. As for the conspiracy claim, Ms. Riopelle herself did not believe there was an agreement between the defendants.
10In relation to “the crux of the analysis” under s. 137.1(4)(b), I was not satisfied that Ms. Riopelle had shown the requisite harm and causation. I found the public interest in allowing the action against Mr. Helmer to continue to be far outweighed by the deleterious effects on the public interest in having free and unencumbered reporting of the court and its processes. I noted the potential chilling effect on future expression and that a news agency and its reporters should, generally, be able to report on the content of court files without the fear of being sued for invasion of privacy.
11Ms. Riopelle’s offer to settle does not impact the scale of costs. It does not trigger any costs consequences under Rule 49.
12Ms. Riopelle has not persuaded me that a costs award on a full indemnity basis is not appropriate in the circumstances.
(ii) Quantum
13When determining the quantum of costs under s. 137.1(7), there remains an obligation on the motion judge to undertake the same type of analysis that is required when fixing costs in any other context. As the Court of Appeal wrote in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 42,
Just because the award is on a full indemnity basis does not mean that the successful party is entitled to whatever costs were incurred. The quantum must still be fair and reasonable for what was involved in the particular proceeding: Boucher v. Public Accountants Council for the Province of Ontario. The award must also be proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding: see r. 1.01(1.1). [citations omitted]
14Ms. Riopelle submits that the quantum of costs claimed by Mr. Helmer is unreasonable and should be “reduced substantially to reflect the nature of the motion and the limited legal issues raised properly before the Court.” Ms. Riopelle does not appear to take issue with the hourly rates of legal counsel, but she does take issue with the number of hours billed by counsel.
15The motion addressed very important issues, including freedom of expression and the open court principle. In addition to the complexity inherent in a motion brought under s. 137.1 of the CJA, the motion involved the tort of civil conspiracy, and the relatively new torts of publicity which places a person in a false light and public disclosure of private facts. I accept that the defence positions advanced involved considerable research. The motion itself was argued over two days.
16Mr. Helmer offered to arrange for the publication of an update to the article clarifying that the charges did not relate to Ms. Riopelle’s work or clients. The offer was made prior to the delivery of Ms. Riopelle’s responding materials and cross-examinations.
17Ms. Riopelle’s costs outline reflects full indemnity costs of $22,413.55. However, it is to be expected that Mr. Helmer, the moving party, would have had to spend more time on the motion than Ms. Riopelle. Ms. Riopelle’s response to the motion was largely reactive. In addition, as I have already noted, her evidence with respect to harm and causation was insufficient.
18The hourly rate of Mr. Helmer’s lawyers - $310 for both Mr. Richardson and Mr. Hughes – is reasonable, having regard to their years of experience. The bill of costs reflects that they were, for the most part, involved in different aspects of the file and the motion and avoided duplication of work. In my view, the full indemnity fees claimed of $67,425 (not including HST and disbursements), is proportionate to the importance and complexity of the issues raised.
Conclusion
19Taking into consideration all of the above, the factors set out in r. 57.01(1) of the Rules of Civil Procedure, and the reasonable expectations of Ms. Riopelle, I find that the fair and reasonable award of costs in favour of Mr. Helmer for the motion and the action is $78,580.35, all inclusive. This amount is to be paid by Ms. Riopelle to Mr. Helmer within 30 days.
Justice R. Ryan Bell Date: July 13, 2023