Court File and Parties

COURT FILE NO.: CV-21-2609-00 DATE: 2023 11 20 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Agin Williams, Plaintiff/Defendant by Counterclaim M. Mustafa, for Agin Williams, Plaintiff/Defendant by Counterclaim

• and -

Vac Developments Limited, Defendant/Plaintiff by Counterclaim T. McRae, for Vac Developments Limited Defendant/Plaintiff by Counterclaim

Costs Decision

MCGEE J.

Result

[1] Mr. Agin Williams (“Williams”) asks for full indemnity costs of $94,883.60 and damages of $20,000 on his successful anti-SLAPP motion that resulted in the dismissal of a counterclaim issued November 10, 2021 by Vac Developments Limited (“the company”).

[2] The company acknowledges that costs are payable but asserts that the amount claimed is significantly inflated. They ask that costs be limited to $20,000.

[3] For the reasons set out below, I award Williams costs of $45,200, being fees and disbursements of $40,000 and HST thereon. I make no order for damages in this costs decision just as I made no order for damages on the motion. I did not find that the company acted in bad faith or for an improper purpose; nor did I receive any evidence of damages from Williams during the motion.

The Plaintiff, Defendant by Counterclaim’s Cost Submissions Exceeded the Permissible Limits

[4] Costs submissions were received in writing, on an agreed timetable. The company adhered to the terms of those submissions: a limit of three pages exclusive of a Costs Outline and any Offers to Settle, with any caselaw to be hyperlinked.

[5] Williams did not respect those terms. He filed 801 pages in his October 6, 2023 submissions, including five pages of arguments in small font. His October 27, 2023 reply submissions totaled 122 pages. Although the argument portion of his 122 pages only took the prescribed two pages, most of his attachments served no purpose but to reargue submissions set out in his October 6, 2023 materials.

Statutory Basis for an Award of Costs on an Anti-SLAPP Motion

[6] On an anti-SLAPP motion, the parties' respective exposure to costs is prescribed by sections 137.1 (7) and (8), of the Courts of Justice Act, which states:

Costs on dismissal

(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.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

[7] Here, Williams was successful in having the counterclaim dismissed and is accordingly entitled to full indemnity costs on the motion and in the proceeding. Neither party made an Offer to Settle.

[8] A full indemnity cost award is uncommon. The policy basis for a successful litigant in an anti-SLAPP motion to be awarded full indemnity costs is summarized by Justice Nordheimer in Levant v. DeMelle, 2022 ONCA 79. He first acknowledges at paragraph 75 that the statute does not list any factors to be considered in deciding when the presumptive award will not be appropriate, then goes on to provide helpful considerations, grounded in the underlying policy and purpose of an anti-SLAPP motions as described by Doherty J.A. in Platnick v. Bent, 2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 99, aff’d 2020 SCC 23:

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

[9] Nordheimer J. writes at paragraph 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 the 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.

[10] Here, I find three out of the four factors present: a clear power imbalance in favour of the company, a punitive or retributory purpose animating the company’s pursuit of the counterclaim and no evidence that the company had suffered any damages.

[11] The company’s decision to only target Williams (and not CTV,) and their stated counterclaims in my view, animate a punitive or retributory purpose:

(a) General damages for injury to reputation, loss of customers and business, in the amount of $1,000,000. (b) Special damages estimated to be in the amount of $150,000. (c) Punitive, aggravated, and exemplary damages in the amount of $350,000. (d) An interim, interlocutory, and permanent injunction restraining Williams from publishing or republishing any of the defamatory publications set out herein or any publications defaming or disparaging VAC.

[12] These three factors are sufficient to a full indemnity award of costs in order to deter the type of lawsuits that section 137 is designed to discourage.

[13] However, I find the amount of costs sought by Williams to be excessive. Costs are not a blank cheque. The amount awarded must be fair, reasonable, and proportionate in the circumstances. See: Boucher v. Public Accountants for the Province of Ontario (2004), 71 O.R. (3d) 291.

Analysis

[14] Before fixing the amount of costs, I wish to first address William’s submissions that the Ontario Court of Appeal’s direction in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 OR (3d) 753 (“Park Lawn“) on limiting costs in anti-SLAPP motions can be disregarded when a party successfully dismisses a proceeding.

[15] Park Lawn was the appeal of a section 137.1 motion judge’s decision to not dismiss a proceeding. As a result, the costs decision was premised on section 137.1(8) rather than section 137.1(7).

[16] I do not find Park Lawn distinguishable on that basis. Justice Pepall prefaces her reasons around the growing concern that the practises around section 137.1 motions have “evolved into quite a different state than that anticipated by the Legislature,” (para. 34) confirming the view taken in Tamming v. Paterson, 2021 ONSC 8306, at paras. 7-9 by Justice Myers that anti-SLAPP motions have become expensive, time-consuming, and open to abuse (para. 35). She goes on to direct, as a guideline, that “the costs of such a motion 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” (para. 39.)

[17] In my view, Park Lawn speaks to the overall, intended design of an anti-SLAPP motion as an efficient and inexpensive preliminary weighing of the objectives of the legislation, whether or not the motion is granted. Overlitigation must not be encouraged.

[18] At the same time, I am persuaded that the award of costs must be substantial given the importance of the expression at issue, the potentially chilling effect of such a lawsuit, and the company’s decision to counterclaim only against Williams, and not against CTV or the reporter who might have had greater means with which to defend a lawsuit. See: Canadian Frontline Nurses v. Canadian Nurse Association, 2023 ONSC 3529, at para 33.

[19] I am exercising my discretion to award Williams costs of $45,200 for the following reasons:

(a) The company conceded that Williams met the threshold burden under section 137.1(3) of the Act. (b) I found that the company met the merits-based hurdle, that is, that there are grounds to believe that Williams’ defence of fair comment will not succeed. (c) Williams has not provided a Bill of Costs, as was required which would assist me in understanding how costs were incurred and in what specific amounts. Instead, I have a summary of hours spent by counsel. I accept the company’s submissions that Williams’ claimed legal expenses of $94,883.60 are significantly over-inflated, as measured by the hours docketed. For example, five days are charged for two days of examinations; over 10 days are charged for preparing affidavits, and almost 7 ½ days are charged for arguing a one-day motion, not including 5 1/2 days to prepare and review factums. (d) Without a comprehensive Bill of Costs, I cannot discern whether some of the time claimed here will inform the main action, underscoring the worry that anti-SLAPP motions may be misused for strategic purposes. As Doherty J.A. explained in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 OR (3d) 161, at para. 73, a motion under s. 137.1 is meant to be a "screening or triage device designed to eliminate certain claims at an early stage of the litigation process". It is not an alternative means of trying a claim nor is it a form of summary judgment, and it is important to maintain a sense of proportionality where costs are concerned.

Costs Fixed at $45,200

[20] In my view the rounded amount of $40,000 better reflects the costs appropriate to the dismissal of the counterclaim, exclusive of the December 9, 2022 Case Conference for which costs were already granted. With HST of $5,200.00 thereon, the company shall forthwith pay to Williams the amount of $45,200 in costs.

McGee J.