Court File and Parties

COURT FILE NO.: CV-20-0031 DATE: 20230711

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Marcel Marcellin, Plaintiff AND The London Police Services Board, London Police Officers John and Jane Doe, John Pare, The Woodstock Police Services Board, Woodstock Police Officers John and Jane Doe, Bill Renton, J.Y., Megan Walker, Kate Wiggins, the London Abused Women’s Centre and ANOVA, Defendants

BEFORE: Justice Spencer Nicholson

COUNSEL: S. Stewart for the Plaintiff, Responding Party D. Wallace and S. Miller for the Defendants, Megan Walker and the London Abused Women’s Centre, Moving Parties, and appearing as agents for C. Demelo, counsel for the Defendant, Julie Young (J.Y.), Moving Party C. Patterson for the Defendant, Kate Wiggins, Moving Party A.M. Frauts for the Defendant, ANOVA, Moving Party

HEARD: June 29, 2023

COSTS ENDORSEMENT—ANTI-SLAPP MOTION

NICHOLSON J.:

[1] By Reasons dated October 17, 2022, (Marcellin v. LPS, 2022 ONSC 5886) I dismissed the plaintiff’s action as against the moving parties, Julie Young, Megan Walker, Kate Wiggins, the London Abused Women’s Centre (LAWC) and ANOVA.

[2] I instructed the parties to seek a date through the trial coordinator to speak to costs in the event that they could not reach agreement. I also suggested that if any of the moving parties were seeking damages, that could be addressed as well. No agreement could be reached, necessitating a hearing. Unfortunately, my schedule was such that the earliest return date that could be secured for this hearing was May 25, 2023. By that time, Mr. Marcellin’s relationship with his previous counsel had come to an end. Mr. Stewart had been retained just prior to the hearing and suggested that an adjournment would assist him in properly preparing. Given the quantum of costs being sought against Mr. Marcellin, I adjourned the matter to June 29, 2023.

[3] The successful moving parties have requested costs on a full indemnity basis, as follows:

• Megan Walker and LAWC--$83,141.00 plus HST and disbursements of $2,900.92
• Julie Young--$27,730.00 plus HST and disbursements of $3,574.16
• ANOVA—$99,175.00 plus disbursements of $4,704.07
• Kate Wiggins--$45,800.00 plus disbursements of $2,746.24

[4] In addition, Ms. Walker and Dr. Young have made claims for damages in the amount of $10,000 each.

[5] I note that Mr. Marcellin did not file a bill of costs or costs outline.

COSTS:

Legal Principles:

[6] Section 137.1 of the Courts of Justice Act, R.S.O. 1990., c. C.43, as amended, (“CJA”) specifies the costs consequences to be applied at the conclusion of an Anti-SLAPP motion. Subsection 137.1 (7) provides as follows:

(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.

[7] The Ontario Court of Appeal has had many occasions to offer guidance on the cost consequences arising from Anti-SLAPP motions.

[8] In Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, Doherty J.A. described at para. 61 that ss. 137.1(7) and (8) are intended to impose cost consequences that will serve as a strong deterrent to SLAPPs and will encourage defendants to seek the quick termination of that kind of litigation by way of a s. 137.1 motion. He also recognized that the costs provisions grant a discretion to the motion judge. He stated, at para. 63:

[63] In my view, a motion judge, when deciding how he or she should exercise his or her discretion under s. 137.1(7), will be guided by the considerations that guide the exercise of discretion with respect to costs in other civil proceedings. These include the factors identified in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They also include the overriding objective in any costs order that the award be fair and reasonable, having regard to all of the relevant factors including any applicable legislation: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); Neuberger v. York, 2016 ONCA 303, 131 O.R. (3d) 143, at para. 17.

[9] Importantly, in Fortress, it was argued by the unsuccessful respondent that full indemnity costs are reserved for those cases in which the motion judge is satisfied that the plaintiff has brought forward meritless litigation for strategic purposes. It was essentially argued that full indemnity costs should only be awarded where the bringing of an action amounted to an abuse of process.

[10] In rejecting that argument, Doherty J.A. described that the language of the provisions is clear and that the starting point for determining whether the defendant should receive full indemnity costs is not predicated on the basis upon which the defendant succeeds on the motion (at para. 66).

[11] In United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, the motions judges dismissed the proceedings under s. 137.1. The Court of Appeal echoed the sentiments from Fortress, supra, stating as follows, at para. 42:

[42] We do, however, agree with the appellant that there remains an obligation on a motion judge, when determining the quantum of costs under s. 137.1(7), to undertake the same type of analysis that is required when fixing costs in any other context. 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 (2004), 71 O.R. (3d) 291 (C.A.), at para. 26. The award must also be proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding: see r. 1.04(1.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[12] In Levant v. DeMelle, 2022 ONCA 79, the motions judge had similarly dismissed actions following motions under s. 137.1 of the CJA in two separate proceedings. The motions judge had found that an award of costs on a full indemnity basis was not appropriate and awarded the successful moving parties costs on a partial indemnity scale.

[13] Nordheimer J.A. granted leave to appeal the costs awards made and allowed those appeals. He was concerned with the lack of reasons pertaining to costs. Nordheimer J.A. noted that the statutory presumption is that the successful party will be awarded costs on a full indemnity basis unless the judge determines that such an award is not appropriate. He also noted that the statute is silent on what factors ought to be considered in determining whether the presumptive award is “appropriate”. He also recognized that the wording makes it clear that an award of full indemnity costs is not intended to apply to every case where the action is dismissed (see paras. 75-76).

[14] Nordheimer J.A. then stated as follows at paras. 77-78:

[78] The genesis for a presumptive award of full indemnity costs can be found in the Anti-SLAPP Advisory Panel, Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010) (the “Report”). In Pointes, Côté J. observed that the Report is a “persuasive authority for the purposes of statutory interpretation” as it “was the clear impetus for the legislation, and was relied upon heavily by the legislature in drafting s. 137.1”: at para. 14. In the Report, the authors said, at para. 44:

It is important that the special procedure provide for full indemnification of the successful defendant’s costs to reduce the adverse impact on constitutional values of unmeritorious litigation, and to deter the commencement of such actions.

[79] That statement reveals two factors driving the reason for a presumptive award of full indemnity costs: (i) to reduce the adverse impact on constitutional values of unmeritorious litigation; and (ii) to deter the commencement of “such actions”. The reference to “such actions”, I conclude, is a reference to actions that were launched with the intention to “unduly limit expressions on matters of public interest” as set out in s. 137.1(1)(c). In other words, what is typically referred to as a strategic lawsuit against public participation (“SLAPP”).

[15] Nordheimer J.A. continued at para. 81:

[81] In attempting to give some guidance to the appropriateness exception, I start with the recognition that this is a matter that involves the exercise of motion judge’s discretion. There will be many different factors that may impact on the exercise of that discretion depending on the circumstances of the individual case. Given the rarity of full indemnity awards, the presence or absence of factors that might drive an award of costs on a higher scale in regular civil litigation may be relevant to the exercise of the appropriateness discretion in these special cases. For example, claims borne of ulterior motives, which a SLAPP lawsuit represents, is an example of one such factor.

[16] Nordheimer J.A. then turned to the indicia of a SLAPP lawsuit as relevant factors to consider, at para. 82, which include:

• a history of the plaintiff using litigation or the threat of litigation to silence critics;
• a financial or power imbalance that strongly favours the plaintiff;
• a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and
• minimal or nominal damages suffered by the plaintiff.

[17] Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129 is an important case with respect to the evolution of s. 137.1 cost decisions. In that case, unlike the present case, the motion judge dismissed the anti-SLAPP motion. Thus, his decision was based on subsection 137.1 (8), not s.137.1(7). However, Pepall J.A. made some important comments about Anti-SLAPP motions in general.

[18] Justice Pepall, agreeing with comments made by Myers J. in Tamming v. Paterson, 2021 ONSC 8306, noted that anti-SLAPP motions have become complex and expensive, and increasing in number. She noted that the motion should not involve a “trial in a box”.

[19] Rather, Pepall J.A. described the motion as a “screening procedure” at para. 38, and meant to be “efficient and economical”. Accordingly, she suggested that costs of such a motion should not generally exceed $50,000 on a full indemnity basis.

[20] Importantly, she did note that there would be exceptions and “motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case” (at para. 39).

[21] Pepall J.A. then concluded at para. 40, by stating:

[40] I would also add that the cost of litigation is a plague that has infected our system of justice and serves to undermine its efficacy. Here the Legislature enacted a provision designed to help people avoid a costly defamation lawsuit and preserve the opportunity for public discourse and expression, but at the same time allow legitimate actions to proceed. The procedure was to be efficient and inexpensive. Ironically, a procedure intended to avoid costly, unmeritorious, protracted defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and protracted litigation. This is not to say that anti-SLAPP motions should not be brought, but rather the parameters of the ensuing litigation should be limited in scope. Providing a guideline for costs may serve to dampen the enthusiasm, no doubt well intentioned, to over-litigate an anti-SLAPP motion.

[22] Two and a half months after Pepall J.A.’s decision in Park Lawn, the Court of Appeal released a brief endorsement on costs in Boyer v. Callidus Capital Corporation, 2023 ONCA 311. The court stated:

[1] …The successful appellant claims $273,111.22 on full indemnity basis. The respondent submits that this is excessive and the amount should be reduced to $90,000. It points to this court’s decision in Park Lawn Corporation v. Kahu Capital Partners, 2023 ONCA 129 where Pepall J.A. spoke of the high costs of a r. 137.1 motion and offered a guideline of $50,000 in costs for a successful plaintiff.

[2] We do not accept the respondent’s submissions.

[3] There is a statutory presumption that the successful party be awarded full indemnity costs unless the judge determines that the award is not appropriate in the circumstances. …

[4] The award is appropriate. Upon receipt of the statement of claim the respondent counterclaimed for $150 million alleging breach of a fiduciary duty. The claims were bald and unsubstantiated.

[5] The costs of the motion are fixed in the amount of $273,111.22 inclusive of disbursements and HST.

[23] Three months after Park Lawn, the Court of Appeal released The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381. In that case, the actions had been dismissed and thus, s. 137.1 (7) was engaged. Miller J.A. described that the proceedings had been complex, required five days to argue and had been proceeded by extensive productions and cross-examinations. He noted that the motion judge’s reasons exceeded 100 pages. The cost awards, made on a full indemnity basis, to the four successful defendants were approximately $650,000, $1,500,000, $480,000 and $525,000.

[24] Notably, Miller J.A. quoted from Parklawn, supra, with respect to the merits of the appeal, at para. 17. He did not, however, refer to Parklawn in respect of the issue of costs.

[25] Miller J.A. deferred to the motion judge’s exercise of discretion in relation to costs for all parties. He reiterated, at para. 172, that “the law is clear that the costs consequences of an action that was found to unduly limit expressions on matters of public interest are severe to serve as a strong deterrent to SLAPPs” citing Rabidoux, supra.

[26] Vermette J., for the Ontario Superior Court, had the opportunity to consider all of these Court of Appeal decisions recently in Canadian Frontline Nurses v. Canadian Nurses Association, 2023 ONSC 3529. In that case, Vermette J. had also dismissed the action and was thus applying s. 137.1 (7) of the CJA.

[27] The successful defendants in that case sought their costs on a full indemnity basis in the amount of $410,335 and $74,625 respectively. The plaintiffs countered with the argument that the costs should be awarded on a partial indemnity basis. Further, they argued that the quantum of costs was excessive. In their submission, the costs were disproportionate to the matters at issue and what an unsuccessful party would reasonably expect to pay. The plaintiffs’ own costs outlines were in the range of $25,000 and $30,000 on a full indemnity basis.

[28] Vermette J. decided that in Canadian Frontline Nurses, there were no factors that would justify departing from the presumptive scale of costs set out in s. 137.1(7). She noted the significant importance of the expression in issue, the chilling effect of the lawsuit, the failure to show that the publication had caused any harm and what she termed the “puzzling nature of the Plaintiff’s decision to sue the CNA Defendants and the TNI Defendants”.

[29] Vermette J. noted that the subsequent Court of Appeal decisions did not appear to follow the guidance set out in Park Lawn, without any clear explanation for not doing so. Thus, she concluded as follows at paras. 36-37:

[36] Considering the recent decisions of the Court of Appeal, the language of subsection 137.1 (7) of the CJA, and the general principles applicable to costs awards, I conclude that on a motion under section 137.1, a motion judge should award costs: (a) on a full indemnity basis, unless the judge determines that this scale of costs is not appropriate in the circumstances; and (b) in an amount that is fair, reasonable and appropriate in all the circumstances of the case, taking into account the scale of costs that has been selected. By definition, an award of costs on a full indemnity basis will be significantly higher than an award of costs on a partial indemnity basis. However, even if costs are awarded on a full indemnity basis, those costs must be reasonable full indemnity costs: see Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686 at para. 68. The factors used to assess the fairness and reasonableness of the quantum of costs in other motions should be considered on a motion under section 137.1, but additional factors may also be relevant, such as the practice considerations and the risk of abuse that are discussed in Park Lawn at paras. 34-40.

[37] I find that it is appropriate in this case to award costs in an amount that exceeds the $50,000 figure suggested in Park Lawn. The motions in this case were not abusive. They had a certain level of legal and factual complexity, but none of the parties can be blamed for this as the complexity was inherent in the case and the applicable test under section 137.1. I also note that the motions were argued and decided before Park Lawn was released. Therefore, the Plaintiffs’ reasonable expectations could not have been influenced by the guidance given by the Court of Appeal in Park Lawn.

[30] I agree with these comments by Vermette J., and many apply to the case before me. Park Lawn was argued and released after the parties in this case expended their considerable resources on this motion.

[31] I do note that the quantum of damages at stake in Catalyst Capital Group and Boyer was in the hundreds of millions of dollars. Thus, an award of costs capped at $50,000 would hardly have been proportional to those motions. Accordingly, Catalyst Capital Group and Boyer are easily distinguishable from Park Lawn, and therefore, reconcilable with respect to the outcome of costs.

[32] Furthermore, I note that where “truth” is raised as a defence to a defamation action, the parties invariably, in my experience, adduce a tremendous amount of evidence in an effort to demonstrate the truthfulness, or falsehood, of the alleged defamatory statement. It is virtually impossible to avoid presenting a substantial volume of evidence requiring considerable judicial analysis when this defence is proffered. Where, as in the case before me, the parties evoke several possible defences, each of which requires some scrutiny, the process of preparing for and arguing these motions, and writing these decisions is, as aptly described by my colleague Myers J., “akin to running a marathon”. One only need read Galloway v. A.B., 2021 BCSC 2344, for an example of how arduous these motions can be.

Applying the Principles to this Case:

[33] Mr. Marcellin argues that this is an appropriate case to exercise my discretion and not order full indemnity costs. Part of his argument essentially asks me to reconsider my decision on the merits, which I am not prepared to do. The matter is under appeal, and it is for the appellate court to review my decision, not me.

[34] I raised with all counsel that I had concerns with the conduct of both Ms. Walker and Ms. Wiggins, which conduct played a considerable role in the plaintiff commencing this action. Among other actions, the two advocates met with Mr. Marcellin’s immediate supervisor at the City of London and, in my view, inappropriately attempted to influence the family law litigation between Mr. Marcellin and Dr. Young.

[35] In my decision, I found that there was “some basis in the evidence” by which a trier of fact could find that Ms. Wiggins and Ms. Walker had an indirect or ulterior motive for their meeting with Mr. Marcellin’s supervisor. This raised the possibility that a court could find that they acted with malice, defeating the defence of qualified privilege. In my view, this could be a relevant consideration with respect to the issue of costs.

[36] To counter that argument, counsel for Ms. Walker and the LAWC rely upon Volpe v. Wong-Tam, 2022 ONSC 4071, which pre-dates many of the appellate cases noted above, particularly Park Lawn. Therein, Glustein J. noted at para. 14 that:

[14] “[i]t is the dismissal of the proceeding that generates the full indemnity presumption, not the basis for the dismissal. Simply because a court finds in favour of an unsuccessful responding party on one or more issues on an anti-SLAPP motion does not alter the presumption of full indemnity costs upon the dismissal of a proceeding under s. 137.1.

[37] Glustein J. felt that Levant and Fortress had held against a court relying on divided success as a basis to award partial indemnity costs. Thus, he concluded that even if the court finds substantial merit to the defamation claim against a moving party, the full indemnity presumption applies.

[38] In the end, my decision in the present case came down to the weighing exercise in s. 137.1(4)(b), the “crux” of the analysis. That subsection allows motion judges to dismiss even technically meritorious claims where the public interest in protecting the expression that gives rise to the proceeding outweighs the public interest in allowing the proceeding to continue (see: Pointes Protection, at para. 62).

[39] In the present case, Mr. Marcellin sued at least ten defendants, some of whom he identified by the place holders “Jane and John Doe”. He claimed damages of over $4 million. Mr. Marcellin asserted various causes of action, including defamation, intrusion upon seclusion, intentional interference with economic relations, negligent investigation and malicious prosecution and negligence.

[40] Important to my decision was the lack of causation between the meeting involving Ms. Walker and Ms. Wiggins and Mr. Marcellin’s supervisor, and his ultimate termination from the City.

[41] I described that this action followed a lengthy history of family litigation between Mr. Marcellin and Dr. Young, in which Dr. Young levied allegations of domestic abuse at Mr. Marcellin. I further described that the action had a “scorched earth nature”, which I felt had a retaliatory element to it. The action was commenced immediately upon the expiration of a Peace Bond that he had entered into in relation to the allegations of assault. I dismissed the action on the basis that it was “vengeful intensification” of the contentious matrimonial litigation that had also drawn the advocates of the women’s shelters into the fray.

[42] Thus, this litigation was commenced, in my view, in large measure, for retribution.

[43] I am not prepared to depart from the presumption of full indemnity costs in this case. Doing so would be entirely inconsistent with my decision on the merits, particularly the “crux of the analysis”.

[44] I agree with counsel for Mr. Marcellin that I still must be satisfied that the amount of costs claimed are reasonable (Romspen Investment Corporation v. 6711162 Canada Inc., 2014 ONSC 3480).

[45] Problematically, Mr. Marcellin has not adduced his own bill of costs or costs outline by which to compare the costs he incurred with those claimed by the defendants. His counsel explains that this is due to the fact that his prior counsel is no longer on the record such that this information was unavailable. I do not accept that excuse. This costs hearing has been on the horizon for months and it was incumbent upon Mr. Marcellin to adduce this evidence if he had complaints about the quantum of the fees claimed by the defendants. I even adjourned the motion for a month. Counsel for Mr. Marcellin should have known that the failure to adduce a bill of costs would be a proper consideration. I cannot simply speculate that Mr. Marcellin’s counsel spent any less time on this matter than any one of the defendants.

[46] Mr. Marcellin also argued that there should be a reduction in fees due to the fact that multiple lawyers (two) were involved on the part of Ms. Walker and LAWC. Senior counsel dealt with some aspects of the motion and his junior counsel dealt with other aspects.

[47] The difficulty with that argument is that Mr. Marcellin had two lawyers argue the motion on his behalf. Their arguments had substantial overlap on the areas that they covered. I agree with counsel for Ms. Walker that the court should encourage less senior counsel to make submissions on more complex motions and I do not fault the division of labour that was made here. I also entirely agree with counsel for Mr. Marcellin that the costs of getting experience for younger counsel ought not to be unnecessarily borne by the unsuccessful party. Nonetheless, the fact that Mr. Marcellin also had two lawyers argue the motion and has not adduced his own fees greatly hampers his ability to argue that the amount of fees incurred were not within the reasonable contemplation of the unsuccessful party.

[48] If the shoe were on the other foot, I have no doubt that Mr. Marcellin would be claiming the costs of both his counsel.

[49] Glustein J. in Volpe, supra, noted at para. 56 that the failure of an unsuccessful party to deliver a costs outline is a relevant factor in addressing any objections the unsuccessful party may raise as to costs incurred by the successful party. This constitutes an impermissible “attack in the air” (see: Risorto v. State Farm Mutual Automobile Insurance Co., 64 O.R. (3d) 135).

[50] I turn briefly to rule 57.01 factors.

[51] The plaintiff claimed damages in the action of over $4 million. The chilling effect that such litigation would have on victims of abuse and the claims made against ANOVA and LAWC were critically important to those entities. They were justified in mounting a rigorous defence to the case on their own behalf. The quantum of damages sought also made the outcome of the motion important to Dr. Young.

[52] This was a very complicated motion. The s. 137.1 test itself is complex and it is understandable that significant costs were incurred. Furthermore, the manner in which this case was pleaded by Mr. Marcellin added to the complexity, as the defendants were required to make submissions on multiple causes of action. It should also be noted that even during his costs submissions, counsel for Mr. Marcellin indicated that not all of the issues were canvassed on the motion sufficiently. In other words, Mr. Marcellin would have preferred to expand the evidence on the motion. Mr. Marcellin’s attempts to explore every aspect of the litigation on this motion added to the expenses incurred on this motion.

[53] I am satisfied that the defendants as a group appropriately delegated responsibility amongst themselves. Counsel for the LAWC and Ms. Walker took the lead on most submissions and written material, including on this motion for costs. However, counsel for each defendant is entitled, and required, to do the work to ensure that their own client’s interests are properly protected. Accordingly, I do not criticize counsel for ANOVA for duplicating much of the work that was done by counsel for LAWC.

[54] I also do not fault counsel for ANOVA for not delegating work to less senior members of her firm. No such individuals exist. It is not for this court to second guess the choice of counsel that ANOVA made and insist that all counsel have a junior associate.

[55] The hourly rates claimed for each lawyer involved are reasonable for this region and given the complexity of the matter. If anything, I am surprised that the rates are not higher given the experience of counsel involved. Again, I did not hear any submissions with respect to the hourly rate of the plaintiff’s lawyers that would allow for a proper comparison.

[56] Finally, I note that s. 137.1(7) speaks to costs of the motion and the action on a full indemnity basis. Thus, I disagree that costs expended on matters outside the motion are not recoverable on a full indemnity basis, although clearly the court has a discretion to order otherwise. ANOVA took the lead on other areas of the litigation outside the s. 137.1 motion.

[57] I have reviewed the bills of costs submitted by each defendant. There are invariably some inefficiencies with lawyers’ expenditures of time. Duplication occurs and cases can be over-prepared. Vermette J. made some reductions in Canadian Frontline Nurses, at paras. 42 and 43 on a similar basis. However, determining costs is not a line-by-line review of counsels’ dockets. The costs claimed by each defendant, in my opinion, are fair and reasonable for what was involved in this particular motion and action, when considered on a full indemnity basis. The costs are proportional to the importance and the complexity of the matter. Again, I am particularly mindful that I have no bill of costs submitted by the plaintiff. In the absence of evidence of the plaintiff’s fees, it is difficult to scrutinize the defendants’ fees.

[58] I fix the costs of the defendants of the motion, and the action, as follows on a full indemnity basis:

• LAWC and Megan Walker--$80,000.00 plus HST and disbursements of $2,900.92
• Julie Young--$26,500.00 plus HST and disbursements of $3,574.16
• ANOVA—$95,000.00 plus HST and disbursements of $4,704.07
• Kate Wiggins--$43,500 plus HST and disbursements of $2,746.24

[59] These awards are in line with the costs awards made in other anti-SLAPP cases, with the obvious exception of Park Lawn. I am confident that awards in this range serve the goal of deterrence achieved by costs on a full indemnity basis. This is entirely consistent with the legislation.

[60] I conclude by stating that there are consequences to suing a host of defendants in the event that an action is ultimately unsuccessful. Mr. Marcellin’s approach to this litigation unfortunately exposed him to ten sets of costs. Prospective litigants would be wise to consider that while they may see their prospects of successful favourably, should a court disagree the costs consequences may well be ruinous. Mr. Marcellin took that risk.

DAMAGES:

[61] Subsection 137.1(9) permits a moving party to seek damages. That provision reads as follows:

(9) 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.

[62] In United Soils, supra, the Court of Appeal stated as follows at paras. 34-38:

[34] The wording of s.137.1(9) is somewhat problematic. On one view, the wording of s. 137.1(9) would seem redundant, as a finding that an action has been commenced for the purpose of unduly limiting expression on matters of public interest would seem to qualify as one that has been brought for an improper purpose. On another view, the wording of s. 137.1(9) could be seen as an effort to separate out a subset of SLAPP cases which go beyond simply reflecting an effort to limit expression and include active efforts to intimidate or to inflict harm on the defendant.

[35] A review of the “Anti-SLAP Advisory Panel Report to the Attorney General”, dated October 28, 2010, supports the latter interpretation. In that report, the Advisory Panel recommended, at para. 46:

[T]he court should not be required to make findings as to bad faith or improper motive on the part of the plaintiff in deciding a motion under the special procedure. If in a particular case, however, the court is satisfied on the record before it that an action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy, an additional remedy should be available for this improper conduct. In such circumstances, the court should have the power to award damages to the defendant in such amount as is just. [Emphasis added by Court of Appeal]

[36] We would make two observations regarding the approach taken by the motion judges in these cases with respect to this issue. First, we do not view it as necessary for a defendant to adduce medical evidence in order to support a claim for damages. While medical evidence might be of assistance in determining the proper quantum of damages to be awarded, in certain cases, such as the ones here, it may be presumed that damages will arise from the use of a SLAPP lawsuit. Both of the respondents were individuals inexperienced in litigation, who would understandably suffer the stress and anxiety associated with being the subject of a proceeding of this type. This is especially true given the intimidating nature of the conduct of the appellant.

[37] That observation does not mean that damages will naturally follow in every case where the action is dismissed. The exact limits to the circumstances justifying an award of damages must await further development of the law surrounding s. 137.1. Whether an award of damages is warranted should also take into account the presumption that costs will be awarded on a full indemnity basis. Such an award may, in some cases, address the harm to a defendant that arises from a SLAPP proceeding.

[38] Second, we do not view the wording of s. 137.1(9) as being so broad as to encompass punitive damages awards. In our view, the thrust of s. 137.1(9) is to provide compensation for harm done directly to the defendant arising from the impact of the instituted proceeding. The section is not intended to provide wide-ranging authority for the court to sanction the conduct of the plaintiff through a damages award, such as an award for punitive damages. 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.

[63] I find it somewhat noteworthy that the defendants in United Soils took immediate action to remove the offending posts from their Facebook pages. One of the defendants retracted her statements and apologized. Nonetheless, the plaintiff commenced actions against them.

[64] Counsel for Mr. Marcellin argued that both Ms. Walker and Dr. Young have experienced substantial successes in their respective careers despite this litigation. I do not find that argument persuasive. The amounts of damages sought is not to compensate the defendants only for calamitous outcomes. Rather, the amounts sought reflect that the action itself caused them emotional turmoil because of its very nature.

[65] However, I reject Ms. Walker’s claim for damages under s. 137.1(9). I accept her evidence that this lawsuit caused her stress. Nonetheless, I cannot overlook my significant disapproval of her actions in meeting with Mr. Marcellin’s supervisor with a view to pressuring Mr. Marcellin into altering his stance in the matrimonial litigation between himself and Dr. Young. Ms. Walker was fortunate, in my view, that the evidence satisfied me that Mr. Hayward took no action with respect to that interview to the detriment of Mr. Marcellin. I repeat that, in my view, Ms. Walker far overstepped the proper boundaries that her role with LAWC afforded her. She brought a large measure of her stress upon herself.

[66] Thus, I exercise my discretion not to award damages to Ms. Walker in the circumstances of this case. In my view, it would not be appropriate.

[67] However, I find that Dr. Young is in a different category. She was already engaged in contentious matrimonial litigation with Mr. Marcellin, stressful I am sure to both parties. I found that he escalated that litigation to punish her for making claims of abuse about him by commencing this litigation. Thus, the litigation vis-à-vis Dr. Young was done for an improper purpose. Although I have not made any findings with respect to the validity of the allegations of abuse, I accept that this litigation would have an emotional toll on Dr. Young that is worthy of modest compensation. Whether or not there is a history of abuse, this litigation was itself abusive.

[68] Therefore, I award damages to Dr. Young in the amount of $5,000.00.

“Justice S. Nicholson” Justice Spencer Nicholson Date: July 11, 2023