COURT FILE NO.: CV-18-00600698-0000 DATE: 20231114

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD BORAKS Plaintiff – and – AHMED HUSSEN (MINISTER OF IMMIGRATION REFUGEES AND CITIZENSHIP), PETER FONSECA, FRANCESCO SORBARA, THE ATTORNEY GENERAL OF CANADA, STEPHEN GREEN, SEAN O’SHEA, GLOBAL NEWS, CORUS ENTERTAINMENT, JOEL SANDALUK, GUIDY MAMANN, DENIS BUEDES BRITO, SABRINA QUARINIRI, JORNAL NORTH NEWS Respondents

Counsel: Rocco Galati Samantha Coomara, for the Plaintiff Brendan Hughes for the Defendants, Sean O’Shea and Global News and Corus Entertainment Lou Ciotoli, for the Defendants, Denis Buedes Brito, Sabrina Quariniri and Jornal North News Jeffrey Feiner for the Defendant Peter Fonseca (observing)

HEARD: February 2, 2023

A.P. Ramsay J.

COSTS ENDORSEMENT

I. Overview

[1] On August 1, 2023, I released my reasons for decision granting the defendants’ motion under subsection 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) and dismissing the action against them as a Strategic Lawsuit Against Public Participation (“SLAPP”): Boraks v. Hussen, 2023 ONSC 4294. In my decision, I also set a schedule for Costs Submissions to be filed.

[2] The defendants Sean O’Shea, Global News and Corus Entertainment (collectively referred to as the “Corus defendants”) were successful on the motion. The action was dismissed against them.

[3] The defendants, Denis Buedes Brito, Sabrina Quariniri and Jornal North News (collectively, the “JNN defendants”) were also successful on their motion. The action was dismissed against them.

[4] By order dated August 22, 2023, and at the request of counsel, I granted an extension of time for the JNN defendants to file Costs Submissions and extended the time for the plaintiff, Mr. Boraks, to deliver his Responding Costs Submissions to September 13, 2023.

[5] The JNN defendants delivered their Submissions by the deadline; Mr. Boraks did not. In the result, by order released on October 25, 2023, I indicated:

If the plaintiff requires an extension to deliver Costs Submissions, a request must be made no later than October 27, 2023, failing which the court will assume no responding materials will be filed.

[6] No request was made by Mr. Boraks for an extension of time.

II. Position of the Parties

[7] Written submissions were received only from the Corus and JNN defendants.

A. Position of the Plaintiff

[8] The plaintiff Mr. Boraks did upload a Bill of Costs prior to the conclusion of the motion which indicated substantial indemnity costs in the amount of $78,063.75. The plaintiff did not reveal what his full indemnity costs would amount to.

B. Position of the Corus defendants

[9] At issue was a Global News television segment addressing the plaintiff Richard Boraks, an accompanying article published on the Global News website as well as various posts on X (formerly known as Twitter) and Facebook addressing the story, all appearing around April 4, 2023.

[10] The Corus defendants request their costs of the action and the motion on a full indemnity basis in the amount of $109,862.19. The Corus defendants submit that the motion addressed issues that were very important to the communities that would consider using Mr. Boraks’ legal services. The Corus defendants submit that the motion was complicated and time consuming and involved a four-day hearing, three days of cross examinations, four scheduling appearances, a sixty-page statement of claim and 200 pages of pleadings. The Corus defendants point to the voluminous record from Mr. Boraks alone, consisting of 4655 pages of material on CaseLines, and the delivery of an Undertakings Brief the day before the hearing, consisting of 718 pages.

[11] The Corus defendants submit that the statement of claim sought damages in the amount of $4,000,000 against them in addition to aggravated damages of $1,000,000 and punitive damages of $1,000,000. They point out that Mr. Boraks delivered a Notice of Constitutional Question that was abandoned prior to the hearing. The Attorney General appointed counsel to address the issue. The Corus defendants submit that although the matter was not advanced, they were obliged to assess and respond to the Notice of Constitutional Question.

[12] The Corus defendants argue that they were entirely successful, with all of the considerations under the s. 137.1 test being resolved in their favour.

[13] The Corus defendants submit that they initiated settlement discussions at an early stage, offering to have both sides walk away from the litigation without any costs, and made several offers to settle the litigation, all of which were rejected by Mr. Boraks. The Corus defendants submit that there were “no countervailing determinations”. They submit that when their settlement offer was not accepted, they made a second offer to settle prior to cross examination and the delivery of Mr. Boraks’ materials, pursuant to which they offered to publish an update to the Global News Story clarifying that the story concerned unproven allegations and that there was no intention to suggest that Boraks acted improperly. The Corus defendants submit that counsel’s hourly rate of $275 is very reasonable and likely well below the rate that Mr. Boraks could reasonably expect to pay.

C. Position of the JNN defendants

[14] The JNN defendants seek costs on a full indemnity basis in the amount of $79,443.78 (inclusive of disbursements and HST).

[15] The JNN defendants raised some of the same arguments as the Corus defendants and seek full indemnity costs in accordance with the presumption created by s. 137.1(7) of the CJA. They submit that the proceeding was brought against the news media strategically to silence public debate and argue that the nature of the SLAPP application is complex. They too point to the volume of materials, the late service of the Undertakings Brief, and the attendances already cited by the Corus defendants.

[16] The JNN defendants further submit that informal settlement discussions were held with counsel for the plaintiff early in the litigation seeking a dismissal of the action, but the offer was rejected by the plaintiff.

III. Analysis

a) Scale of Costs

[17] The statutory presumption is that the successful party is entitled to full indemnity costs unless the judge determines that the award is not appropriate in the circumstances. Section 137.1(7) of the CJA reads:

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.

[18] The statute does not provide any factors to be considered in deciding when the presumptive award will not be appropriate: Levant v. DeMelle, 2022 ONCA 79, at para. 75. There is no submission from the plaintiff to suggest that the successful defendants should be deprived of full indemnity costs. As noted by the Ontario Court of Appeal, the starting point is not predicated on the basis upon which the defendant succeeds on the motion: Fortress Real Developments v. Rabidoux, 2018 ONCA 686, 426 D.L.R. (4th) 1, at para. 66. See also Boyer v. Callidus Capital Corporation, 2023 ONCA 311.

[19] The indicia of a SLAPP lawsuit are relevant to the presumptive award of full indemnity costs found in s. 137.1(7): Levant, at para. 82; The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381.

[20] In Fortress, the Court of Appeal discussed the presumption in favour of full indemnity costs at para. 60:

Section 137.1(7) does two things. First, it creates a starting point for the motion judge’s determination of costs when the defendant (moving party) has been successful in dismissing the action on a s.137.1 motion. Section 137.1(7) directs that the motion judge starts from the premise that the defendant should receive costs on both the motion and in the proceeding on a full indemnity basis.

[21] I find that there are no factors which would displace the presumption of full indemnity costs in favour of the defendants. The dismissed actions bear the hallmark of strategic litigation to unduly limit expression on matters of public interest. I agree with the Corus defendants that there were no countervailing determinations to full indemnity costs. In Levant, speaking for the court, Nordheimer J.A. outlined the basis for the presumptive award of full indemnity costs stemming from the Anti-SLAPP Advisory Panel, Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010) (the “Report”) which are first, to reduce the adverse impact on constitutional values of unmeritorious litigation and, second to deter the commencement of a strategic lawsuit against public participation: at paras. 78-79.

[22] These factors are met in the circumstances of this case. The defendants were successful on each branch of the dismissal test set out at s. 137.1 of the CJA. Mr. Boraks conceded that the expressions related to a matter of public interest and acknowledged that undocumented workers were a vulnerable class of people. I am satisfied that Mr. Boraks brought forward this meritless litigation against these defendants for strategic purposes, and, in the result, these defendants are entitled to their full indemnity costs.

b) Quantum of Costs

[23] In 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) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the reasonable expectations of the parties: Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (Ont. C.A.), at para. 26; Neuberger v. York, 2016 ONCA 303, 131 O.R. (3d) 143, at para. 17.

[24] When determining the quantum of full indemnity costs under s. 137.1(7), the costs must still be fair and reasonable: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, at para. 42; Fortress, at para. 63; Riopelle v. Riopelle, 2023 ONSC 4110, at para. 13. It is incumbent on the court to undertake the same type of analysis that is required when fixing costs in any other context: United Soils, at para. 42; Fortress, at para. 63.

[25] In deciding how to exercise his or her discretion in making a costs award, the motions judge may be guided by considerations that guide the exercise of discretion in other civil proceedings, including the factors identified in rule 57.01 of the Rules of Civil Procedure: Fortress, at para. 63.

[26] In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, the Ontario Court of Appeal suggested, as a guideline, that costs of these motions should not generally exceed $50,000 on a full indemnity basis, although there will 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.

[27] In Boyer v. Callidus Capital Corporation, 2023 ONCA 311, the Ontario Court of Appeal upheld a costs award to the successful moving party in the amount of $273,111.22 inclusive.

[28] Justice Glustein noted in Volpe v. Wong-Tam, 2022 ONSC 4071, at para. 24, aff’d 2023 ONCA 680, that costs of motions brought under s. 137.1 of the CJA are often significant since they frequently require a “complex process involving several different tests and measurement standards with weighing and balancing of difficult factors.” I adopt the comments of Myers J. in Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, at para. 146, wherein he stated:

While some would like to think that anti-SLAPP motions should be quick and minor events, the statutory scheme imposes a complex process involving several different tests and measurement standards with weighing and balancing of difficult factors. These are massive motions as discussed earlier.

[29] A survey of cases reveal that the amounts sought by the defendants are in the range awarded in other anti-SLAPP cases. For example:

i. In United Soils Management Ltd. v. Mohammed, 2017 ONSC 6350, Lederer J. awarded full indemnity costs to the defendant in the amount of $122,286.94; in a related proceeding, United Soils Management Ltd. v. Barclay, 2018 ONSC 1372, Wilson J. also awarded full indemnity costs to the defendant in the amount of $126,438.55. These awards were upheld by the Ontario Court of Appeal in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128.

ii. In Volpe v. Wong-Tam, 2022 ONSC 4071, Justice Glustein awarded the successful defendants full indemnity costs in a range of $57,994.40 to $110,442.90. The motion was heard over two days.

iii. In Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, an action under the Simplified Procedure, Justice Myers awarded full indemnity costs in the amount of $164,186.

iv. In Bernier v. Kinsella, 2022 ONSC 1601, Regional Senior Justice C. MacLeod awarded substantial indemnity costs in the amount of $132,000.

v. In Niagara Peninsula Conservation Authority v. Smith, 2018 ONSC 127, Mr. Justice James Ramsay awarded costs of $136,076: at para. 23.

vi. In Levant v. DeMelle, 2022 ONCA 79, the Ontario Court of Appeal set aside the motion judge’s costs awards and allowed full indemnity costs to the appellants in the amount of $65,403.99 and $151,741.51.

vii. In Boyer v. Callidus Capital Corporation, 2023 ONCA 311, the Court of Appeal upheld a full indemnity costs award in the amount of $273,111.22.

viii. In Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, the Court of Appeal upheld the motion judge’s costs award of $129,106.61 plus HST, only varying the amount for HST.

ix. In Canadian Frontline Nurses v. Canadian Nurses Association, 2023 ONSC 3529, Vermette J. awarded a successful defendant $250,000 on a full indemnity basis and another $65,000 on a substantial indemnity basis.

x. In The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, leave to appeal to S.C.C. requested, 2023 CarswellOnt 15607, the Court of Appeal upheld the motion judge’s costs award in a case that took five days to argue and that was proceeded by extensive productions and cross-examinations. Costs were awarded on a full indemnity basis for each of the seven successful defendants in the amounts of approximately $650,000, $1,500,000, $480,000, $525,000, $118,000, $200,000, and $140,000.

IV. CONCLUSION

[30] In determining whether the costs sought by the defendants are fair and reasonable, I have considered the complexity of the proceedings, the length of the proceedings, the steps taken, any offers to settle, and the range of costs awarded in these types of proceedings.

[31] The complexity of this motion was evident. The litigation spanned five years and included government entities, corporate parties, and individual journalists. The statement of claim was issued on June 29, 2018. The Corus defendants submit that after they delivered a statement of defence on August 1, 2018, the plaintiff, Mr. Boraks, delivered a reply on August 14, 2018 and the other 10 defendants delivered statements of defence and received replies in and around August to October, 2018. There were three attendances at Civil Practice Court as well as an attendance at a case conference. The motion originally scheduled for February 11 and 21, 2019 had to await the decisions of the Supreme Court of Canada in the six separate related matters granted leave. On March 26, 2019, Mr. Boraks delivered a Notice of Constitutional Question indicating that he would be challenging the constitutionality of s. 137.1 of the CJA. The Notice of Constitutional Question was withdrawn prior to the hearing of the dismissal motion. There were three days of cross-examinations in October 2021. The dismissal motion took place over the course of four days.

[32] As for the Corus defendants, I see no issue with the hourly rates charged by Stuart M. Robertson, a 1974 call ($305), Douglas C. Richardson, a 1995 call ($305) and Brendan J. Hughes, a 2006 call ($275). Much of the time expended on the file was that of Mr. Hughes. There do not appear to be any duplications. Although offers to settle do not affect the scale of costs, I consider them as one of the factors under r. 57 in awarding costs. I find that the amount sought by the Corus defendants of $92,820.00 plus HST of $12,066.60 is fair and reasonable in the circumstances.

[33] Mr. Boraks has not answered the claim for costs by the defendants, that is to say, he has not argued that the costs claimed by either the Corus defendants or the JNN defendants are unreasonable. This was a hard-fought motion over multiple day. Notwithstanding clause (b) of subrule 39.02(4) of the Rules, it is appropriate for the plaintiff to bear the costs of the three days of cross examination.

[34] In my view, the amount claimed by the Corus defendants in the amount of $92,820.00 plus HST of $12,066.60 is proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding: see r. 1.04(1.1); Boucher, at para. 26. Based on Mr. Boraks’ own Costs Outline for his substantial (not full) indemnity costs, the amount claimed by the Corus of defendants was within the reasonable expectation of the parties.

[35] I am allowing the Corus defendants’ disbursements of $4,975.59 inclusive which I find to be fair and reasonable.

[36] As for the JNN defendants, only Mr. Lou Ciotoli represented the defendants throughout the proceedings. Mr. Ciotoli was called to the Bar in 2001 and represented the JNN defendants at a negotiated reduced hourly rate of $280/hr. This hourly rate is far below what a lawyer in Toronto with over twenty years of experience would charge and is more than reasonable given his years of experience. I have considered the fact that Mr. Ciotoli’s total hours amounted to 236.15 as compared to the counsel for the plaintiff, but given the number of parties, extent of the pleadings and the various pre-trial steps, I do not find that it was inappropriate not to delegate some of the steps to a more junior lawyer. I see no duplication or overworking on the Bill of Costs. The allegations against the JNN defendants were serious and they had offered to publish a clarification before the commencement of the action. The JNN defendants had also attempted to settle the case against them before much of the costs were incurred, though I note no formal offer to settle was made. I also note that Mr. Ciotoli’s Bill of Costs includes the same amounts in his Bill of Costs provided before the hearing was concluded. JNN could have claimed counsel fee and legal fees for the preparation of the Costs Submissions. In my view, the full indemnity fees claimed are proportionate to the importance and complexity of the issues raised.

[37] For the reasons above, I award the JNN defendants $66,402.00 for counsel’s full indemnity legal fees, plus HST of $8,632.26. I am also allowing the disbursements in the amount of $3,933.29 plus HST of $476.23, for a total of $79,443.78.

A.P. Ramsay J.

Released: November 14, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD BORAKS Plaintiff – and – AHMED HUSSEN (MINISTER OF IMMIGRATION REFUGEES AND CITIZENSHIP), PETER FONSECA, FRANCESCO SORBARA, THE ATTORNEY GENERAL OF CANADA, STEPHEN GREEN, SEAN O’SHEA, GLOBAL NEWS, CORUS ENTERTAINMENT, JOEL SANDALUK, GUIDY MAMANN, DENIS BUEDES BRITO, SABRINA QUARINIRI, JORNAL NORTH NEWS Respondents

Costs Endorsement

A.P. Ramsay J.

Released: November 14, 2023