Court File and Parties
COURT FILE NO.: CV-17-587516 DATE: 2023-12-08 SUPERIOR COURT OF JUSTICE - ONTARIO
Tracy Clancy, Brent Schreckengost, Monica Planta, Fahrin Jaffer, Jamal Raza, Jacques Conand Mosfiqur (MO) Rahman, Mira McDaniel, Talie Dang-Lu, Nicole Ceranna, Philip Cooksey, Marianna Gurovich, Daniel Christopher Koloski, Alvie Bert Kraatz III, Michael Montgomery, Nicole Palmer, Mary Celeste (Mc) Didone, David Lynn, Surya Panditi, Laura Leigh Schneider, Mari Sullivan, Meera Ganesh, Michael Remza, Javed Khan, Marjory Remy, Cassandra Long, Kirsten Hill, Ruba Borno, Paula Cao, Bobby Nanda, Ruchi Echevarria, Michael Ginn, Felicia Glace, Robyn Matos/Holland, Angela Barnes Coolidge, Colin Kincaid, Maciej Kranz, Marc Aldrich, Karthik Subramanian, Heather Vickers, Stacie Torello Wilk, Mary Catherine Hudson, Chad Alan Trout, Kathleen Noonan, Shauna Daly, Kevan Blanco, Miriam Drummond, Cheyenne Deverna, Christine Feng, Dan Grossman, Aengus Linehan, Hilton Romanski, James Brian Doran, Plaintiffs
AND:
Tanvir Farid a.k.a. Tanvir Islam, Defendant
BEFORE: Justice A.P. Ramsay
COUNSEL: Maanit Zemel, for the Plaintiffs Tanvir Farid a.k.a. Tanvir Islam, in Person
HEARD: In Writing
COSTS ENDORSEMENT
1These fifty-three plaintiffs were successful in this defamation action against the defendant, all recovering general and punitive damages, and most recovering some aggravated damages. The plaintiffs were also substantially successful in obtaining the injunctive relief sought in the statement of claim.
2The defendant’s costs submissions are permeated with attacks on plaintiffs’ counsel and matters not relevant to the issue of costs.
3The plaintiffs are seeking costs of the action on a full indemnity basis in the amount of $476,288.00 plus disbursements of $285,421.58, for a total of $761,709.58 ($14,371.88 per plaintiff) or, alternatively, on a substantial indemnity basis in the amount of $426,716.58 ($13,446.72 per plaintiff), plus disbursements of $285,421.58 for $712,676.58. [1]
4The plaintiffs submit that there is a presumption, which cannot be rebutted, that substantial indemnity costs are appropriate in the motion for the Anton Piller Order and its contempt.
5As he did on the hearing on remedies, Mr. Farid has once again asked the court to take into account the principle of access to justice and his status as an impecunious defendant. The defendant submits that he is a self-represented and impecunious litigant with no means or resources to retain private counsel to act for him. He argues that he has been unable to mount a vigorous defence or test the plaintiffs’ claims exhaustively.
Access to justice
6The court may consider access to justice in assessing costs, but as noted by Chown J. in Daly v. Mississauga (City), 2021 ONSC 1349, its impact is not straightforward. He pointed at para. 128 to the comments of Justice D. A. Wilson in Sacks v. Ross, 2016 ONSC 2498, where she stated at para. 37: “I do not perceive the imposition of costs on the unsuccessful party ignores the principle of access to justice.” A survey of the cases indicates that access to justice considerations are often considered from the vantage point the plaintiff.
7In this case, I do not consider Mr. Farid’s argument about access to justice to have much merit. Mr. Farid was represented by at least two lawyers in this litigation. He was represented by counsel at the summary judgment motion for the liability hearing. As he himself acknowledged at the subsequent hearing on remedies/damages, his former lawyer also made submissions on damages at the liability hearing. Mr. Farid subsequently had the benefit of advice from Pro Bono Legal before being afforded an opportunity at the hearing on remedies to add to the submissions already made by his legal counsel.
8Mr. Farid has also been granted several adjournments to access counsel and Pro Bono Legal Counsel. For the most part, the materials in response to the summary judgment motion, including the Costs Outline for consideration on this hearing, were prepared by Mr. Farid’s former lawyers. He had the assistance of Pro Bono Legal in drafting his responding submissions on costs.
9The jurisprudence identifies two anchoring principles which support access to justice, and that is, that the overriding principles that the court ought to consider in exercising its discretion with respect to costs are proportionality and reasonableness.
10In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 37, Armstrong J.A. explained the interrelationship of the objective of access to justice with the costs regime under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, noting that access to justice is incorporated in the costs system. At paragraph 37 of his decision, he stated:
The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties.
11In determining costs, one of the overarching considerations is whether the costs award is reasonable, fair and proportionate in the circumstances of the case, having regard to the factors set out in r. 57.01(1) and the reasonable expectations of the parties: Boucher, at para. 26.
12The principle of proportionality is enshrined in r. 1.04(1.1) of the Rules of Civil Procedure, which provides:
In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
13In general, costs should not be disproportionate to the amount claimed, and should be consistent with the objectives of fairness, reasonableness, and the need for proportionality: Elbakhiet v. Palmer, 2014 ONCA 544, 121 O.R. (3d) 616, at paras. 37 and 38; Muskoka Fuels v. Hassan Steel Fabricators Limited, 2011 ONCA 495, at para. 6.
14Thus, the Rules of Civil Procedure, including r. 1.04 on proportionality, facilitates access to justice.
Impecuniosity
15Mr. Farid also argues that the court ought to take into consideration his impecunious status in determining costs. He argues that he is a self-represented defendant who is impecunious with no means or resources to retain private counsel to act for him, and argues that he has been adversely impacted. Mr. Farid urges the court to “take into serious consideration his impecunity (sic) and the broader impact on justice system participants (like the Defendant) with limited resources and no access to capital.”
16Pursuant to clause (i) of subrule 57.01(1) of the Rules of Civil Procedure, the court may consider “any other matter relevant to the question of costs”, which may include impecuniosity. In general, impecuniosity does not and should not eliminate a party’s obligation to pay costs: Balasundaram v. Alex Irvine Motors Ltd., 2012 ONSC 5840; Agius v. Home Depot Holdings Inc., 2011 ONSC 5272 (Div. Ct.); Boucher; Guelph (City) v. Wellington-Dufferin-Guelph, 2011 ONSC 7523, at para. 14; and Barber v. Goerz, 2021 ONSC 3689. The rationale is “avoiding a situation in which litigants without means can ignore the rules of the court with impunity, and the distastefulness of creating a rule incapable of consistent application…”: Myers v. Metropolitan Toronto (Municipality) Chief of Police, 125 D.L.R. (4th) 184, [1995] O.J. No. 1321 (Ont. Div. Ct.) at pp. 189-90. In Greenhalgh v. Doura-Dummer (Township), 2011 ONSC 2064, at para. 36, Lauwers J. (as he then was) made an observation about “the problem posed for the system of justice if the costs disincentive established by the Rules were to be displaced by a rule that routinely advantaged a party’s hardship in the exercise of judicial discretion over costs.”
17Impecuniosity, if established, is a factor that the court may consider in awarding costs: Agius; Shanthakumar v. RBC et al., 2023 ONSC 4008, at para. 52. The Divisional Court noted in Agius that the court should do so cautiously. There are cases where the court has considered impecuniosity as a factor when exercising the court’s discretion with respect to costs: see, for example, Daly v. NYX Tannery Ltd., 2021 ONSC 1349, at paras. 132-34; Pilotte v. Gilbert, 2016 ONSC 1334, at paras. 10-11; Agius, at para. 17; Walsh v. 1124660 Ontario Ltd. at paras. 15-20.
18There is another reason why I would reject Mr. Farid’s argument that his claim of impecuniosity should shield him from an award of costs or to reduce costs. As recognized by Southey J. in Myers, accepting Mr. Farid’s argument would result in “a situation in which litigants without means can ignore the rules of the court with impunity…”: at para. 22. This should not occur in this case, particularly given the reputational harm caused to the plaintiffs by Mr. Farid’s defamatory content about them posted on the Internet.
19As set out in my Reasons for Decision of March 4, 2022, and June 27, 2023, for years Mr. Farid waged a campaign of cyber harassment, cyber stalking, and cyber defamation, ultimately resulting in tens of thousands of postings about the plaintiffs depicting them as sexual predators, fraudsters, and criminals, among other things. The plaintiffs have been the subject of a targeted campaign, with posts about some of them ending up on websites devoted to posting salacious content. There is absolutely no evidence that the defendant attempted to settle or co-operate with the plaintiffs at any time. The facts in the underlying defamation action, the refusal of the defendant to assist with removal of the defamatory content, the refusal of the defendant to accept responsibility in the face of the evidence unearthed by the investigator executing the Anton Piller Order, and the defendant’s continued attacks on the plaintiffs as well as their lawyers, experts and investigators after the commencement of the litigation, all mitigate against taking Mr. Farid’s bald assertion of impecuniosity into consideration as a factor in determining costs.
20I say bald assertions as Mr. Farid has not put forward any actual evidence of his asserted impecunious status. In the result, I would reject Mr. Farid’s argument that impecuniosity ought to be considered by the court in the circumstances of this case, as it is not established on the evidence, and having regard to the caution highlighted by Southey J. in Myers.
21A party relying on impecuniosity bears the onus of establishing their impecuniosity: Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, at para. 18. In other words, the party asking the court to consider impecuniosity in the assessment of costs must establish impecuniosity on the evidence: Great V & L Trading Incorporated v. Skyline Car Rental Inc., 2018 ONSC 2928, at para. 81. In this case, Mr. Farid bears the onus.
22Mr. Farid has not established, through evidence, his impecuniosity and has made no financial disclosure. I do not accept, on the facts of this case, that the defendants alleged impecuniosity (of which there was no evidence) should impact the plaintiffs’ entitlement to costs. I agree, however, with Mr. Farid’s position that the costs should be fair and reasonable.
Analysis
Courts’ discretion with respect to costs
23Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, governs the court’s jurisdiction to award costs and provides that:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
24The relevant factors which the court must consider in exercising its discretion to award costs are set out in r. 57.01(1) of the Rules.
25In the decision of John Doe v. Ontario, at para. 10, Perell J. explained the purpose of awarding costs as follows:
The court's discretion to award costs is designed to further three fundamental purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings [citations omitted].
26A successful party has no right to costs, but only a reasonable expectation of costs. In the absence of misconduct, a successful litigant has a reasonable expectation of recovering costs from the unsuccessful party: B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at p. 404; Bell Canada v. Olympia & York Developments Ltd. (1994), 111 D.L.R. (4th) 589 (Ont. C.A.). The general rule is of long standing and should not be departed from except for very good reasons: Macfie v. Cater (1920), 64 D.L.R. 511 (App. Div.); Bell Canada.
27The plaintiffs successfully obtained judgment on this summary judgment motion (bifurcated with respect to liability and damages/remedy), and are therefore presumptively entitled to an award of costs: Bell Canada; St. Jean (Litigation guardian of) v. Cheung, 2009 ONCA 9.
28I see no basis, including alleged impecuniosity, to depart from the general principle and prevent costs being awarded to the successful party.
Entitlement to costs of motion and action on summary judgment
29A successful party on a motion for summary judgment is entitled to costs of the motion and of the action: Mark M. Orkin and Robert G. Schipper, Orkin on The Law of Costs, 2nd Edition (Thomson Reuters), §4:86; EdperBrascan Corporation v. 177373 Canada Limited (2001), 53 O.R. (3d) 331 (S.C.).
Scale of Costs
30The plaintiffs seek their costs on an elevated scale, either on a full indemnity or substantial indemnity basis. I have considered the submissions made by the plaintiffs in their Costs Submissions.
31The plaintiffs submit that full indemnity costs are appropriate when a party engages in “especially egregious conduct”.
32The defendant has not responded to the plaintiffs’ request for elevated costs. The defendant argues that this is not an appropriate matter for significant costs given that the “Plaintiffs are enormously financially stable.” This is not an appropriate factor for consideration under r. 57.01 of the Rules of Civil Procedure. The defendant also submits that: “… the Plaintiffs have submitted an outrageously high costs amount knowing full-well that any costs award would be symbolic and non-attainable given that the Defendant has no assets, equity, or valuables that can be liquidated.”
33For the reasons below, I do not find that this is an appropriate case for elevated costs.
34Costs on an elevated scale are justified in only very narrow circumstances – where an offer to settle is engaged, or where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), at para. 28.
35The Ontario Court of Appeal contrasted the definition of “substantial indemnity costs” and “full indemnity costs” in Davies, at para. 15. "Substantial indemnity costs" is defined in rule 1.03 as "costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A". This part of Tariff A was once the prescribed grid for "partial indemnity costs” but is no longer in effect. "Full indemnity costs" is not a defined term, but is generally considered to be complete reimbursement of all amounts a client has had to pay to his or her lawyer in relation to the litigation: see Mark M. Orkin, The Law of Costs, 2nd ed., looseleaf (Aurora, Ont.: Canada Law Book, 1993) at para. 219.05.
36Elevated costs are warranted "only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties": Young v. Young, [1993] 4 S.C.R. 3, at p. 134. Elevated costs should only be awarded where there is a clear finding of reprehensible conduct on the part of the party against whom the costs award is made: Davies, at paras. 28 and 40; St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, 319 D.L.R. (4th) 74, at para. 92; McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 59 O.R. (3d) 97 (C.A.), at para. 39; and Walker v. Ritchie, 2006 SCC 45, [2006] 2 S.C.R. 428.
37The plaintiffs rely on the Ontario Court of Appeal decision of Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, upholding an award of “full indemnity costs”. In my view, full indemnity costs are not warranted in this case. The Ontario Court of Appeal, while finding that the trial judge had a basis for awarding full indemnity costs on the facts of that case (namely, the movement of funds out of the country to place them out of reach of the respondents and the instances of fabricated evidence), underlined that such a costs award is justified only in rare and exceptional cases. This is not such a case.
38Substantial indemnity costs are generally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. Conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs: Net Connect, at para. 8.
39The plaintiffs submit that there is a non-rebuttable presumption that substantial indemnity costs are appropriate in the motion for the Anton Piller Order and its contempt. Aside from interlocutory motions, the litigation did not go through the usual litigation steps. The court has made no finding of contempt against the defendant. The defendant’s breach of the Anton Piller Order has been the subject of previous interlocutory proceedings and has been the subject of costs awards. The only order of any other judge before me is that of Pattillo J. with respect to the plaintiffs’ motion for interlocutory injunctive relief and the motion by various parties to dismiss Mr. Farid’s counterclaim. Justice Pattillo fixed costs of those motions.
40The plaintiffs argue that the conduct of the defendant, as set out in paragraph 7 of the Plaintiffs’ Costs Submissions, warrants substantial indemnity costs. The plaintiffs rely on Manson v. John Doe No 1, 2013 ONSC 628. I note that in Manson, Goldstein J. indicated that the defendant had “persisted in driving up the Plaintiff’s legal costs” and had deliberately and maliciously done so. At para. 33, he stated that:
The Defendant has persisted in driving up the Plaintiff's legal costs, even in the face of a continuing refusal to comply with a court order. The Defendant refused to even attempt to justify or remove manifestly defamatory posts in the face of a libel notice. This exposes him to substantial indemnity costs. This is not a case where the losing side has pursued a reasonable litigation strategy. This is a case where a party's conduct has deliberately and maliciously increased the other party's legal costs. Substantial indemnity costs are clearly in order here.
41In this case, the defendant sought several adjournments of the summary judgment motion, both at the liability hearing and the assessment of damages hearing, which were granted by the court. Those adjournments, however, do not form the basis for an elevated scale of costs but rather go to quantum. I cannot find that the defendant’s conduct was malicious and a deliberate attempt to drive up the plaintiffs’ costs. I am mindful of the fact that the defendant has also raised the issue of access to justice, which would dictate that more cogent evidence is required by the plaintiffs to support their argument for elevated costs. Absent a statutory provision or rule, the nature of the cause of action itself, that is an action for defamation, is not sufficient to warrant an elevated award of costs. The plaintiffs have not directed the court to any rule or statute to support a claim for elevated costs. The defendant is entitled to mount a vigorous defence of the action against him.
42The defendant is entitled to defend the action. Any costs associated with the steps in the proceedings which resulted in motions were dealt with by the various motion judges.
43In their submissions, the plaintiffs assert that there is a rebuttable presumption that substantial indemnity costs are appropriate when a defendant is found to be in contempt of a court order. The plaintiffs submit that this is an appropriate case for substantial costs as the defendant was in breach of the Anton Piller Order, and because of the defendant’s conduct throughout the litigation. I made no finding that the defendant was in contempt of the Anton Piller Order. While I determined that Mr. Farid’s failure to comply with the terms of the Anton Piller Order and deletion of records constituted evidentiary spoliation, this, in my view, is not sufficient to warrant elevated costs. The plaintiffs have not indicated what contempt order is being relied upon as a basis for substantial indemnity costs. It is not clear to the court whether the plaintiffs would be seeking substantial indemnity costs for that step in the proceeding or for the entire action. I note that the plaintiffs have not to any orders reserving the costs of those steps to be dealt with at the ultimate disposition of the proceedings.
44The plaintiffs also submit that this is an appropriate case for substantial costs because of the defendant’s conduct throughout the litigation. The plaintiffs assert that elevated costs are appropriate where the court wishes to express its disapproval of the conduct of a party to the litigation.
45I disagree with the plaintiffs that this is an appropriate case for costs on a substantial indemnity basis. Apart from the operation of r. 49.10, elevated costs are only warranted where the party against whom the costs award is to be made has engaged in reprehensible conduct: Davies, at para. 40; Walker, at para. 105.
46Costs on an elevated scale is justified only very narrow circumstances; Net Connect, at para. 7. Apart from the operation of r. 49.10 of the Rules of Civil Procedure, elevated costs should only be awarded where there is a clear finding of reprehensible conduct on the part of the party against whom the costs award is made: Davies, at paras. 28 and para. 40; St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, 319 D.L.R. (4th) 74, at para. 92; and McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 59 O.R. (3d) 97 (C.A.), at para. 39.
47I do not find that generally, the conduct of the defendant in defending the claims against him rises to the level of being egregious, reprehensible, scandalous or outrageous.
48Aside from the jurisprudence, rule 20.06 of the Rules of Civil Procedure governs the court’s jurisdiction to award substantial indemnity costs on a motion for summary judgment. Subrule 20.06 reads:
The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,
(a) the party acted unreasonably by making or responding to the motion; or
(b) the party acted in bad faith for the purpose of delay.
49I am not satisfied that the defendant acted unreasonably in responding to the motion or in bad faith for the purpose of delay, which would warrant costs on a substantial indemnity basis under the rule.
50In the result, I see no basis for an elevated costs on either a full indemnity or substantial indemnity basis.
Quantum
51Mr. Farid has also raised myriad of other factors in his Costs Submissions which are not relevant to the assessment of costs. The plaintiffs’ financial means, their positions, and hearsay about their motives for pursuing the lawsuit are not relevant factors to consider in the assessment of costs. As for comments related to counsel for the plaintiffs, I see no misconduct on the part of Ms. Zemel and certainly none which would warrant sanctions by this court. Throughout this proceeding, Ms. Zemel has been courteous and has endeavoured to streamline the process for the court, sometimes on short notice. She has vigorously prosecuted the case on behalf of the plaintiffs and, in so doing, has also pursued remedies to protect the investigators and herself; it was Mr. Farid who made them fair game by commencing a lawsuit against the plaintiffs. Even after the counterclaim was dismissed by my colleague, without leave to amend, Mr. Farid again attempted to resurrect the counterclaim at the liability hearing.
52In determining costs, one of the overarching considerations is whether the costs award is reasonable, fair and proportionate in the circumstances of the case, having regard to the factors set out in r. 57.01(1) and the reasonable expectations of the parties: Boucher, at para 26.
53The principle of proportionality is enshrined in r. 1.04(1.1) of the Rules of Civil Procedure, which provides:
In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
54In general, costs should not be disproportionate to the amount claimed, and should be consistent with the objectives of fairness, reasonableness, and the need for proportionality: Elbakhiet, at paras. 37 and 38; Muskoka Fuels, at para. 6. In this case, the 53 plaintiffs collectively recovered approximately $4.6 million dollars in damages against Mr. Farid.
Rates charged, hours spent – R. 57.01(1)(0.a)
55Mr. Farid does not challenge the hourly rate or the years of call of the plaintiffs’ lawyers. Ms. Zemel was the primary lawyer in the file. She is a 2005 call, and had a rate of $325 when the matter started and $390 in 2019. The rate of the junior lawyer who assisted on the file, a 2016 call, is also reasonable having regard to the years of call.
Reasonable Expectation of the Parties – R. 57.01(1) (0.b)
56The overarching consideration for awarding costs is whether the costs award is reasonable, fair and proportionate in the circumstances of the case, having regard to the factors set out in r. 57.01 and the reasonable expectations of the party: Boucher, at para. 26.
57The Court of Appeal has long indicated that costs are not simply a mathematical calculation. The amount of costs should reflect what is fair and reasonable and in accordance with what the losing party would reasonably expect to pay: Zesta Engineering Ltd. v. Cloutier; Boucher.
58The plaintiffs submit that each plaintiff is seeking less than $15,000, an amount that would have been significantly higher had the plaintiffs brought separate actions against the defendant. Each plaintiff is seeking $13,446.72 on a substantial indemnity basis, which would result in costs on a partial indemnity scale in the amount of $9,413 per plaintiff, exclusive of HST.
Amount Claimed and amount recovered – R. 57.01(1) (a)
59The amount claimed in the statement of claim is $6.6 million. The amount claimed and the amount recovered are not significantly different, as the plaintiffs have recovered over $4.6 million, and other injunctive relief.
Apportionment of Liability – R. 57.01(1) (b)
60Liability was not apportioned.
Complexity of the Proceeding – R. 57.01(1) (c)
61The plaintiffs submit that this matter was complex, involving 53 plaintiffs, motions for an Anton Piller Order and injunctive relief, expert witnesses, investigators, the Independent Supervising Solicitor and other professionals, and multiple court attendances spanning over six years. The defendant has not responded to the plaintiffs’ submissions.
62The matter appeared to be of moderate complexity involving defamation over the Internet, with plaintiffs around the world, and a defendant attempting to hide his identity.
Importance of Issues – R. 57.01(1) (d)
63Given the nature of the defamatory statements made against the plaintiffs, who are all professionals, posted on the Internet, I agree with the plaintiffs that the issues were of the highest importance because of the significant and irreparable harm caused to the plaintiffs.
Conduct Tending to Lengthen Proceeding Unnecessarily - R. 57.01(1) (e)
64Mr. Farid submits that the court ought to consider the plaintiffs’ unsuccessful motion for contempt and other injunctive relief that was denied by the court. While there is some basis for Mr. Farid’s argument, it is counterbalanced by the fact that there were steps taken by Mr. Farid himself, including adjournment requests, which also lengthened and delayed the proceedings. In any event, given the volume of materials before the court, the proceedings could have been lengthier, had counsel for the plaintiffs not ensured that materials were organized in such a fashion that the hearing could proceed expeditiously. In my view, the steps complained of that were taken by the plaintiffs did not unduly lengthen the proceedings.
Denial of or refusal to admit anything that should have been admitted – R. 57.01(1) (g)
65Liability and damages were hotly contested. Mr. Farid has made no concessions and has continued to profess that he is not responsible for the defamatory content, which is his choice.
Time Spent
66In my view, the time spent by the plaintiffs’ counsel appears reasonable. There is no obvious duplication of time.
Other Proceedings
67The plaintiffs are entitled to their costs of the ex parte motion for the Anton Piller Order and interim injunction before Justice Archibald, which costs were reserved to the trial judge by Pattillo J. Those costs have been included in the plaintiffs’ calculation.
The Quantum of Costs
68The defendant submits that the plaintiffs should not be compensated for matters which the plaintiffs lost or that were re-litigated. The plaintiffs’ Costs Outline identified a significant reduction of $52,500 for costs awarded by Pattillo J. on December 21, 2018, and $1,000 for costs that I awarded to the plaintiffs on January 19, 2021.
69In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor: Toronto (City) v. First Ontario Realty Corp. (2002), 59 O.R. (3d) 568 (S.C.), at p. 574.
Expectation of the Parties
70The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b); Zesta Engineering, at para. 4; Davies, at para. 52.
71The defendant has submitted a Costs Outline prepared by his former lawyer, Mark Stewart, dated May 2021, which indicates 35 hours expended, and costs on a partial indemnity basis amounting to $6,125 or on a substantial indemnity basis to $8,750. I do not accept that the defendant’s Costs Outline has set out a realistic estimate of the time to prepare and argue the summary judgment motion. There were 53 affidavits from each plaintiff. There were affidavits filed by the experts and investigators. The motion materials consist of thousands of pages. The summary judgment motion on liability was heard over multiple days.
72Applying the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, the amounts claimed by the Plaintiffs are reasonable in the circumstances, especially given that each Plaintiff is claiming less than $15,000. These amounts would have been significantly higher had the Plaintiffs brought separate actions against Mr. Farid.
73The hourly rates sought by Ms. Zemel, a 2005 call, are between $325 and $390 (after 2019). The rate is reasonable as is the rate of the associates who assisted her. Counsel for the plaintiffs partial, substantial and actual rate are as follows:
Maanit Zemel 2005 $275 $300 $325 Lawyer 1 (L1) 2004 $275 $300 $325 Lawyer 2 (L2) 2016 $150 $170 $200 Law Clerk (LC) $40 $60 $70
74I have reviewed the Costs Outline of the plaintiffs and of Mr. Farid. Considering that the overall objectives in fixing costs are proportionality and fixing costs in an amount that is fair and reasonable for the unsuccessful party, I fix the plaintiffs’ partial indemnity costs in the amount of $9,413.00 per plaintiff, for a total of $498,889.00.
Disbursements
75The plaintiffs are seeking $285,421.58 in disbursements broken down as follows:
| Item | Costs (including HST) |
|---|---|
| Copying, printing, tabbing and binding (motion records) | $11,857.92 |
| Cross-examinations | $932.28 |
| Transcripts | $3,195.75 |
| Process Server Fees | $3,252.57 |
| Court Filing Fees | $1,743.50 |
| Forensic Investigator Fees | $188,175.52 |
| Independent Supervising Solicitor | $32,294.95 |
| Expert Fees | $43,446.62 |
| Postage | $220.53 |
| Courier | $301.94 |
| TOTAL | $285,421.58 |
76The same factors which apply to the assessment of legal fees also apply to the assessment of disbursements; that is, the fair and reasonable test applies to expert reports, as well as what a losing party would reasonably expect to pay. The plaintiffs argue that the work required by counsel, the expert witnesses, investigators, the Independent Supervising Solicitor and other professionals was complex and was equivalent to work performed on a class action. I do not disagree, especially given the factors involved at the initial stages of the proceedings in connection with the Anton Piller Order and related investigation directed by this court.
77That said, a party is entitled to be paid appropriate amounts for expert reports reasonably necessary for the conduct of the proceeding, regardless of whether the expert is called to give evidence: Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 542, at para. 6; Harding v. First Associates Investments Inc., at para. 49. I agree with that principle. Disbursements are assessed upon the basis of “what was actually spent, reduced if appropriate to what is reasonably spent”: 3664902 Canada Inc. v. Hudson’s Bay Co. (c.o.b. Bay Department Stores), at para. 17.
78While there is now a presumption that costs shall be fixed by the court unless the court is satisfied that it has before it an exceptional case, with respect to the issue of the disbursements, this is an exceptional case. There are no invoices, dockets or other supporting information before this court regarding the disbursements. The disbursements are in connection with the entire action. The amount sought for the disbursements is substantial and must be justified on proper evidence. While I take no issue with respect to the plaintiffs’ entitlement to any of the disbursements claimed, I am not in a position to do justice between the parties in determining what would be fair and reasonable and what Mr. Farid would expect to pay.
79As I am not in a position to achieve procedural and substantive justice in a summary fashion in the absence of the above information, I am referring all the disbursements for an assessment. That being said, the plaintiffs are entitled to the Forensic Investigator Fees, Independent Supervising Solicitor, and Expert Fees, subject to the quantum being determined. The plaintiffs are also entitled to the disbursements associated with cross examinations on affidavits, despite r. 39.02 (4) (b) of the Rules of Civil Procedure.
DISPOSITION
80The defendant shall pay each of the plaintiffs legal fees, on a partial indemnity scale, in the amount of $9,413.00, plus H.S.T. of $1,223.69, or $498,889.00 for all 53 plaintiffs plus H.S.T. of $64,855.57.
81I am directing an assessment of the plaintiffs’ disbursements of $285,421.58.
82Counsel for the plaintiffs shall provide any supporting invoices, and information, including to the defendant relating to the disbursements within 45 days of the date of this endorsement.
A.P. Ramsay J. Date: December 8, 2023
1The two last mentioned figures actually add up to $712,138.16