COURT FILE NO.: CV-22-88865 and CV-22-89405
DATE: 22/12/2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBIN YATES
Plaintiff/Defendant by Counterclaim/Moving Party
– and –
IRON HORSE CORPORATION and ROBIN ST. MARTIN
Defendants/Plaintiffs by Counterclaim/Responding Parties
AND BETWEEN:
IRON HORSE CORPORATION and ROBIN ST. MARTIN
Plaintiffs/Responding Parties
- and –
LARRY YATES AND ROBIN YATES
Defendants/Moving Parties
Adam Strombergsson-Denora and Rebecca Jaremko Bromwich for Robin Yates and Larry Yates
Christopher Morris for Iron Horse Corporation and Robin St. Martin
HEARD: December 18, 2023
decision on DAMAGES UNDER S. 137.1(9) AND COSTS
Justice Sally Gomery:
[1] On July 18, 2023, I issued my decision on an anti-SLAPP motion brought by Robin Yates and Larry Yates under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In the motion, the Yates sought the dismissal of two proceedings: a counterclaim by Iron Horse Corporation and Robin St. Martin in Robin Yates’ action against them (CV-22-88865, the “Yates Action”), and an action by Iron Horse Corporation and Mr. St. Martin against both Robin and Larry Yates (CV-22-89405, the “St. Martin Action”). I granted the anti-SLAPP motion with respect to the St. Martin Action and struck that claim but declined to strike the counterclaim in the Yates Action.
[2] I must now determine:
a. Whether the Yates are entitled to damages under s. 137.1(9) CJA;
b. Whether the Yates are entitled to recover full indemnity costs in the St. Martin Action; and
c. Whether Robin Yates should be required to pay any costs given that the counterclaim in the Yates Action was not struck.
Context
[3] The facts giving rise to these two actions are set out comprehensively in the decision on the anti-SLAPP motion, Yates v. Iron Horse Corporation and St. Martin, 2023 ONSC 4195. I will review them briefly to provide context for the determination of the issues now before the court.
[4] Robin Yates was hired by Capital City Painters in an administrative role in mid-2015. She was then in her mid-twenties. Capital City Painters’ business was conducted from offices owned by Iron Horse Corporation, a successful security firm. Mr. St. Martin is a businessman much older than Ms. Yates. He owned both Iron Horse and Capital City Painters. He was Ms. Yates’ boss.
[5] In late 2016, Mr. St. Martin offered to sell Capital City Painters to Ms. Yates. An asset purchase agreement was signed between Mr. St. Martin and a numbered company that Ms. Yates incorporated for this purpose. Under the agreement, the numbered company was required to make monthly payments to Mr. St. Martin for the balance of the purchase price. The sale closed on January 1st, 2017.
[6] The relationship between Mr. St. Martin and Ms. Yates deteriorated in mid-2017 after her company failed to make some monthly payments. Mr. St. Martin evicted Capital City Painters from Iron Horse’s premises. He sent Ms. Yates threatening and degrading communications suggesting, among other things, that she might make a pornographic film to pay off her debt to him and that he was keeping track of her activities. He told her that she would be indebted to him for the rest of her life. He threatened to sue her and to have her charged with theft. He circulated an email that she had ostensibly written to him, in which she confessed to having stolen from him. This email had been created by Mr. St. Martin.
[7] In some emails and text that he sent to Ms. Yates, Mr. St. Martin made insulting comments about her elderly father, Larry Yates. He mentioned that he had visited Mr. Yates’ workplace and social media postings on which he was featured.
[8] Around this same time, Ms. Yates began receiving dozens of sexually explicit texts and phone calls in response to an online advertisement saying that she was looking for sex, posted without her knowledge and using her photograph and personal details. Ms. Yates believed that Mr. St. Martin was responsible for the advertisement, given the timing and the personal information included in the advertisement.
[9] Ms. Yates filed two police complaints alleging that Mr. St. Martin was harassing her. No charges were laid at the time, despite letters and emails sent by the Yates to various officials, including the Ottawa police chief, asking for assistance.
[10] In late 2017, Mr. St. Martin sued Ms. Yates in Small Claims Court, claiming that she owed him $25,000 for Capital City Painters’ assets. Her company was not named as a defendant. In support of his claim, Mr. St. Martin filed a promissory note purportedly signed by Ms. Yates, guaranteeing the company’s obligations to him. Ms. Yates made another police complaint, alleging that the promissory note was a forgery. The Small Claims Court case was subsequently adjourned but has never been discontinued or dismissed.
[11] In July 2018, Mr. St. Martin was charged with criminal harassment, obstruction of justice, and forgery. The forgery charge was based not only on the promissory note filed in the Small Claims Court action but on a letter that Mr. St. Martin had written in 2017, in which he falsely represented himself to be a lawyer with a fictitious law firm and threatened legal action against a Capital City Painters’ client for hundreds of thousands of dollars if they did not pay a bill for a few thousand within a very short deadline.
[12] In October 2020, CBC published an article entitled: “Head of private security firm pleads guilty to submitting forged $25K promissory note to court”. It reported that Mr. St. Martin had admitted that the promissory note was a fake and had pleaded guilty to the forgery charge. The other charges against him were dropped. The court imposed a conditional sentence, in part based on concern about what would happen to Iron Horse’s 1800 employees if Mr. St. Martin had a criminal conviction. In remarks quoted in the CBC article, Ms. Yates expressed disappointment about the prosecution’s outcome. She mentioned the threatening and derogatory emails that Mr. St. Martin had sent her. She also expressed her belief that he was responsible for placing the advertisement in her name soliciting sex.
[13] Ms. Yates posted a link to the CBC article on two social media sites. She also posted a negative review of Iron Horse on an internet site where users can search advertisements for jobs and post comments about employers. In her review, Ms. Yates identified herself as a former Iron Horse employee and stated that Mr. St. Martin had bragged about legal actions against former employees.
[14] Between October 2020 and March 2022, neither Mr. St. Martin nor Iron Horse took any steps to contradict the CBC article or to demand that Ms. Yates retract any of the statements reproduced in the article or on social media. In the record on the anti-SLAPP motion, Mr. St. Martin did not deny that he sent the 2017 emails and texts produced by Ms. Yates, or that he wrote the fake lawyer’s letter and forged promissory note.
[15] On March 23, 2022, Ms. Yates began the Yates Action. In it, she claims over two million dollars in damages from Mr. St. Martin and Iron Horse. She alleges that Mr. St. Martin harassed and sexually harassed her while she worked for him in 2015 and 2016, and in 2017 after her numbered company breached the terms of an asset purchase agreement with him. She says that Iron Horse is vicariously liable for his actions and breached its fiduciary duty towards her.
[16] On April 25, 2022, Mr. St. Martin and Iron Horse served a defence and counterclaim in defamation for $2 million against Ms. Yates, based on the CBC article, her online comments, and her communications to the police.
[17] On June 3, 2022, Iron Horse and Mr. St. Martin started the St. Martin Action against both Ms. Yates and her father. In the Action, they again claim $2 million in damages for defamation, based on the Yates’ communications with the police and others, the CBC article, and a message on Mr. Yates’ twitter feed identifying Mr. St. Martin as a harasser. They claim the same damages for malicious prosecution.
[18] On August 23, 2022, the Yates served the anti-SLAPP motion. Affidavits were exchanged over the next few months. Cross-examinations were held in December 2022. The motion was argued on March 10, 2023. My decision was released on July 18, 2023.
Are the Yates entitled to damages?
[19] A party who obtains the dismissal of an action on an anti-SLAPP motion may be entitled to damages under s. 137.1(9) of the Courts of Justice Act. It provides that:
(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.
[20] Mr. Yates seeks $50,000 in general damages. Ms. Yates seeks general damages of $50,000 and special damages of $183,535.14 for lost employment income. Mr. St. Martin and Iron Horse deny that the Yates have proved that they have suffered damages as a result of the St. Martin Action, as opposed to the events that gave rise to the Action.
Legal principles governing s. 137.1(9)
[21] The Ontario Court of Appeal provided guidance on s. 137.1(9) in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128. The appeal dealt with two defamation actions in which motion judges awarded damages to defendants who brought successful anti-SLAPP motions.
[22] In the first case, the motion judge noted that United Soils Management had sued the defendant, Mohammed, even though she had removed the allegedly defamatory post within a few days and apologized, as the company had demanded. The judge found that the institution of the action was “a continuation of [the company’s] desire to intimidate”. The judge also found that the appellant’s litigation strategy displayed an improper purpose. He awarded Mohammed $7,500 in general damages. The motion judge in the second case likewise found that the action had been brought in bad faith and for an improper purpose “of stifling public debate around a crucially important public issue”: The motion judge found that the defendant, Barclay, suffered personal anguish as a result of the lawsuit and awarded her general damages of $20,000.
[23] The Court of Appeal upheld both awards. It held that damages can only be recovered under s. 137.1(9) in cases where the plaintiff has not only sought to limit the defendant’s expression but has made “active efforts to intimidate or to inflict harm” on them: United Soils Management, at paras. 34-35. In reaching this conclusion, it relied on the “Anti-SLAPP Advisory Panel Report to the Attorney General”, dated October 28, 2010, at para. 46, an excerpt of which reads as follows:
If in a particular case … 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.
[24] The Court held that a defendant did not need to adduce medical evidence to support a claim for damages. While such evidence might assist in determining an appropriate quantum of damages, in some cases it could be presumed that damages would arise from a SLAPP lawsuit; United Soils Management, at para. 36. This did not mean that damages were warranted in every case where the action is dismissed. The court should consider, among other things, whether full indemnity costs could also address the harm to the defendant arising from the action; United Soils Management, at para.37.
[25] Finally, at para. 38 of United Soils Management, the Court emphasized that the objective of s. 137.1(9) was to ensure that defendants sued for an improper purpose were compensated for the harm they suffered as a result. As a result, the provision does not give courts the discretion to award punitive damages:
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.
Application to this case
[26] In my decision on the anti-SLAPP motion, I found that Mr. St. Martin and Iron Horse brought the St. Martin Action for improper motives. I now find that the Yates have proved that as a result of the Action, they have suffered damages for which they will not be compensated by a costs award.
[27] In my July 2023 decision, I found that the St. Martin Action had little or no merit. The claims against Ms. Yates duplicated claims already made against her in the counterclaim in the Yates Action, or were not properly pleaded, or were contradicted by evidence on the record, or were not legally viable. The malicious prosecution claim against Mr. Yates appeared to have no substantial merit. The only potentially viable claim against him was in defamation, based on a single tweet he made referring to Mr. St. Martin as a harasser. I was not persuaded that Mr. Yates’ defences to this claim would fail or that, in the unlikely event that the claim succeeded, it would attract more than nominal damages.
[28] In the final stage of the analysis, considering what is at the heart of the St. Martin Action, I found as follows at paras. 171-172 of my reasons:
In my view, the primary purpose of the Action is the addition of Mr. Yates to the litigation. He is the focus of most of the allegations in the statement of claim in the St. Martin Action. In these allegations, the respondents assert that Mr. Yates is solely responsible for the laying of criminal charges against Mr. St. Martin, the CRA investigation, and the suspension of Mr. St. Martin’s private investigator licence. He alone is also alleged to have engaged in malicious, high handed, callous and arrogant conduct that attracts punitive, aggravated, and exemplary damages. No such allegations are made against Ms. Yates in the St. Martin Action.
The decision to target Mr. Yates is curious since, based on the evidence on the motion, he played a very peripheral role in the history between Mr. St. Martin and Ms. Yates. It is however consistent with Mr. St. Martin’s gratuitous references to and veiled threats about Mr. Yates in his 2017 emails. It is also consistent with the evidence that Mr. St. Martin and Iron Horse have a history of using litigation and threats of litigation as leverage. The Small Claims Court action against Ms. Yates, based on a forged promissory note, is an example. So is the fabricated lawyer’s letter, in which Mr. St. Martin threatened to sue the recipient for hundreds of thousands of dollars and to put a lien his house, if he did not pay a few thousand he owed within the next few hours. The record also includes texts from Mr. St. Martin in which he boasts about his willingness to start lawsuits for strategic reasons. According to the CBC article, court records show that Mr. St. Martin and Iron Horse have filed almost two dozen lawsuits over the last twenty years, including a lawsuit taking two former employees for more than $700,000. The respondents’ approach to the current litigation echoes Mr. St. Martin’s threats to Ms. Yates, in the summer of 2017, about going to war with her if she crossed him.
[29] In sum, the St. Martin Action was designed to intimidate and punish Ms. Yates. It accordingly falls into the category of cases that can attract damages under s. 137.1(9).
[30] Based on uncontradicted affidavit evidence on the record, both Mr. and Ms. Yates have suffered damages as a result of being sued.
[31] Mr. Yates is 74 years old. He is retired. Prior to being served with the St. Martin Action, he had never been sued before. At paragraphs 6 and 7 of his supplementary affidavit, he describes the impact of the lawsuit:
The stress of this is almost unbearable, not just because of my concern for myself, but also out of worry for my daughter. I felt as though I was being used as a hostage. I believe this was in order to frighten me and my daughter, to silence us, and to pressure my daughter into abandoning her allegations against Mr. St. Martin due to the overwhelming financial and emotional hardship it imposed.
For many months, I was put through the stressful process of engaging counsel, helping with the preparation of my defence, creating the affidavit and filings for the SLAPP motion, being subjected to uncontrollable climbing legal expenses, and waiting for the process to end. Through all that, I never knew if I would lose everything I own in a case filed against me for no good reason. At the same time, I worried that my daughter’s finances and career would be ruined by this merit-less claim.
[32] Mr. Yates concludes that: “Years that I could have spent enjoying my family I was instead plagued with worry about this matter.”
[33] In United Soils Management, there was no medical evidence to support Mohammed’s claim that she suffered stress as a result of being sued and no other corroborating evidence of any adverse effects on her. The motion judge nevertheless accepted that the proceeding unnecessarily caused Mohammed stress that affected her day-to-day life. At para. 36, the Court of Appeal observed that “individuals inexperienced in litigation … would understandably suffer the stress and anxiety associated with being the subject of a proceeding of this type”. This was especially true given “the intimidating nature of the conduct” of the plaintiff.
[34] I likewise find that, in this case, Mr. Yates has suffered compensable damages as a result of being named as a defendant in the St. Martin lawsuit. He is an unsophisticated person living on a fixed income. He was sued by parties with money who are familiar with the legal system and who have used litigation in the past to intimidate others, and who threatened his daughter with retributory litigation. The plaintiffs in the St. Martin Action were claiming millions of dollars in damages. Even though the Yates served an anti-SLAPP motion almost immediately after they were sued, Mr. Yates lived with the fear for over a year that he could lose everything. Pending this decision, he still does not know whether he will be made whole for his legal costs. His retirement has been blighted.
[35] I reject the argument advanced by Iron Horse and St. Martin that legal fees were the only source of stress on Mr. Yates. I find that, in addition to being worried about legal costs, Mr. Yates was generally afraid and worried for himself and his daughter. Reimbursing money for costs will not compensate him for the stress and anxiety he experienced before the motion was granted.
[36] It is difficult to quantify general damages in a case like this. Based on the evidence about the impact that the litigation had on Mr. Yates for over a year, I conclude that he is entitled to more than token damages. I assess his general damages at $25,000.
[37] Ms. Yates’ situation is more complex. She was already involved in legal proceedings with Mr. St. Martin and Iron Horse when she was served with their claim. I nevertheless find, on the evidence, that she is entitled to general damages for stress attributable to the St. Martin Action.
[38] In her statement of claim in the Yates Action, Ms. Yates explained that she had delayed bringing a claim against Mr. St. Martin because she feared he would retaliate both against her and her family. This fear was based on Mr. St. Martin’s history of making threats, including allusions to her father. When Mr. Yates was served with the Action, she felt “gutted and responsible” for his involvement. She worried about the impact of the lawsuit on his health and his financial situation. This stress and anxiety continued unabated until she received the decision dismissing the St. Martin Action. Mr. Yates ended up paying most of their invoices for legal expenses as she was unemployed, depleting most of his retirement savings. At paragraph 63 of her supplementary affidavit, Ms. Yates states that she was “so overcome with distress that my father was now being financially and emotionally exposed to St. Martin that I could not focus on anything else”.
[39] Ms. Yates asserts that Iron Horse and Mr. St. Martin’s conducted the litigation in an abusive way. They threatened to note her father in default if he did not comply with the deadline to file a defence, their affidavits were filed late, they served voluminous answers to undertakings just before the deadline to file a factum, and their counsel threatened further legal proceedings during her cross-examination.
[40] Finally, Ms. Yates says that she has been largely unable to work as a result of the stress caused by the St. Martin Action. On the day that the statement of claim was served, Ms. Yates told her employer that she was unable to come to work the next day. After using her personal vacation time, she took unpaid leave. In September 2022, her employer advised her that her position had been filled by someone else. Ms. Yates began another job in early 2023, but her employment was terminated after two months. She attributes her termination to poor performance caused by the stress of the St. Martin litigation.
[41] At paragraphs. 80 and 81 of her supplementary affidavit, Ms. Yates summarizes the impact of the St. Martin Action as follows:
These proceedings against me have caused tremendous psychological and financial strain. They have forced me to relive traumatic experiences. The stress and anxiety triggered by these proceedings has obliged me to take sick leave from my work, causing me to suffer serious financial consequences.
More importantly, being sued for reporting to the police about true events causes me great distress. It instills fear in me that truthfully reporting abuse from Mr. St. Martin will result in multiple, simultaneous lawsuits. I believe that the lawsuit is a punishment for reporting to the police and a threat to myself, my father and others that any attempts to expose or hold Mr. St. Martin accountable for his abusive behaviour will result in crippling litigation.
[42] Mr. St. Martin and Iron Horse argue that Ms. Yates has not proved that her stress is attributable to their Action, as opposed to their counterclaim in the Yates Action or the stress and anxiety she allegedly suffered as a result of Mr. St. Martin’s actions between 2017 and 2020. They point out that damages recoverable under s. 137.1(9) are limited to those that result from the lawsuit that has been struck: Cilevitz v. Bergman, 2023 ONSC 1892, at para. 9. They argue that, bringing the anti-SLAPP motion, Ms. Yates’ primary focus was attacking the counterclaim in the Yates action. Any damages she may have incurred in connection with that effort are not compensable because the counterclaim survived her anti-SLAPP motion.
[43] I think it likely that some of the strain described by Ms. Yates was due to the counterclaim in the Yates Action and the stress and costs of bringing an anti-SLAPP motion against parties who use hardball litigation tactics. On the evidence, however, some of Ms. Yates’ stress and anxiety is uniquely attributable to the St. Martin Action. She suffered acute anxiety over her father’s situation. Her anxiety about being sued for malicious prosecution was a product of claims advanced only in the St. Martin Action.
[44] I find that this stress is compensable by way of general damages. Like her father, she is an unsophisticated litigant with very limited financial means. Although she was already named in the counterclaim in the Yates Action, the St. Martin Action targeted her father as well. Costs will not fully compensate her for the stress and anxiety she experienced.
[45] I accordingly find that she is entitled to general damages of $20,000. I am awarding her less than Mr. Yates because some of her stress and anxiety is attributable to the Yates Action.
[46] Ms. Yates also claims special damages of $183,535.14 for lost employment income. I cannot grant these damages on the current record.
[47] On its face, s. 137.1(9) does not limit the damages that can be awarded on a successful anti-SLAPP motion to general damages. It is not clear to me, however, that the section contemplates the adjudication of claims for significant special damages. An anti-SLAPP motion is supposed to provide an efficient, rapid screening mechanism to weed out claims that are not in the public interest. The fact-finding powers given to a motion judge on an anti-SLAPP motion are not like those on a summary judgment motion. Beyond this, regardless of whether significant damages could ever be proved in the context of an anti-SLAPP motion, the record currently before me does not permit it in this case. On the limited evidence before me, I cannot determine if Ms. Yates has been unemployed as a result of stress solely or primarily caused by the St. Martin Action or for some other reason.
[48] I emphasize that I am not precluding Ms. Yates’ lost income claim. I am simply unable to reach a conclusion on this issue at this stage, in the context of this motion. Ms. Yates remains free to pursue these damages in the Yates Action.
Are the Yates entitled to costs in the St. Martin Action?
[49] The Yates are presumptively entitled to their full indemnity costs of the St. Martin Action under s. 137.1(7). It provides that, where a judge grants an anti-SLAPP motion and dismisses an action as a result, “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”.
[50] The Yates paid the law firm representing them when the motion was heard, Gowlings, a total of $46,076.88. They have paid current counsel $17,360. The Yates concede that these costs were incurred both with respect to the St. Martin Action and the Yates Action, and they are entitled to only the former. Unfortunately, Gowlings did not distinguish between work done on one or the other matter in its dockets. The parties also question the total fees charged. For these reasons, they have agreed that they will have the Yates’ costs assessed. They seek my direction only with respect to the entitlement to costs and the appropriate scale.
[51] Mr. St. Martin and Iron Horse contend that Ms. Yates is not entitled to any of her costs because her materials and argument focused on obtaining the dismissal of the counterclaim in the Yates Action. They contend that Mr. Yates should be entitled only to partial indemnity costs with respect to the St. Martin Action.
[52] I find no basis to deny the Yates their reasonable full indemnity costs on the St. Martin Action. They were sued for millions of dollars for malicious prosecution and defamation. The suit lacked any serious merit and was brought for improper reasons. As the judge who read the materials, heard argument, and drafted the decision, I do not agree that most of the submissions and evidence focused uniquely on the Yates Action. Many of the defamation allegations made by Mr. St. Martin and Iron Horse in their counterclaim in the Yates Action were reproduced in their statement of claim in the St. Martin Action. As a result, if the Yates had confined their anti-SLAPP motion to the St. Martin Action, as the respondents suggest they should have, the parties still would have had to make most of the same arguments.
[53] I would add that, in my view, the total costs incurred to date by the Yates, roughly $63,000, is well within a reasonable range, given that the scope of the motion. That scope was necessitated by the range of the allegations in Iron Horse and Mr. St. Martin’s pleadings.
Are Mr. St. Martin and Iron Horse entitled to costs in the Yates Action?
[54] The anti-SLAPP regime creates an exception to the “loser pays” rule applicable to Ontario civil proceedings. Under s. 137.1(8), a party who brings an unsuccessful anti-SLAPP motion is not required to pay any of the respondent’s costs, unless the judge determines that such an award is appropriate in the circumstances.
[55] Mr. St. Martin and Iron Horse contend that this is an exceptional case where they are entitled to recover substantial indemnity costs in the motion in the Yates Action. They argue that the motion was frivolous and obviously doomed to fail based on the Ontario Court of Appeal’s decision in Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129. In Park Lawn Corporation, the Court of Appeal upheld a decision by Perell J. dismissing an anti-SLAPP motion attacking a counterclaim. The Court of Appeal concluded that, in weighing public interest considerations, it was appropriate for the motion judge to be influenced “by the fact that the litigation between the parties would not be resolved by granting the appellants’ motion, that the anti-SLAPP motion was inspired by strategic and tactical considerations, and that the appellants had assumed the risks associated with litigating outside the confines of the court proceeding”: Park Lawn Corporation, at para. 57.
[56] I took some of the same considerations into account in declining to dismiss the counterclaim in the Yates Action. I concluded that the public interest supported its continuation because dismissing it would not reduce the factual inquiry at trial nor even necessarily reduce Ms. Yates’ litigation costs in a meaningful way. There are, however, other circumstances that distinguish Park Lawn Corporation from this case.
[57] The Yates brought a single anti-SLAPP motion. Arguably, s. 137.1(8) does not apply here, because the motion was successful, at least in part. The Yates were entirely justified in bringing an anti-SLAPP motion in response to the St. Martin Action. I concluded that the Action was a SLAPP suit that should be dismissed, with full indemnity costs to the Yates.
[58] Assuming that s. 137.1(8) does apply, Ms. Yates’ decision to seek the dismissal of the counterclaim in the Yates Action in the same motion was reasonable. She did not prevail on this part of the motion, but that does not make it frivolous or abusive. The Court of Appeal released its decision in Park Lawn Corporation on February 28, 2023, just ten days before the motion in this case was argued. At that stage, most of the costs of the motion had been incurred. The outcome with respect to the Yates counterclaim was not a foregone conclusion. In these circumstances, Ms. Yates’ decision not to abandon this part of her motion was sound. Even if she did not prevail, there is no reason to depart from the usual costs rule.
Disposition
[59] Iron Horse and Mr. St. Martin are ordered to pay:
Damages to Larry Yates in the amount of $25,000;
Damages to Robin Yates in the amount of $20,000; and
Full indemnity costs of the St. Martin Action to Robin and Larry Yates, in an amount to be assessed.
Justice Sally Gomery
Released: December 22, 2023
COURT FILE NO.: CV-22-88865 and CV-22-89405
DATE: 22/12/2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBIN YATES
Plaintiff/Defendant by Counterclaim/Moving Party
– and –
IRON HORSE CORPORATION and ROBIN ST. MARTIN
Defendants/Plaintiffs by Counterclaim/Responding Parties
AND BETWEEN:
IRON HORSE CORPORATION and ROBIN ST. MARTIN
Plaintiffs/Responding Parties
- and –
LARRY YATES AND ROBIN YATES
Defendants/Moving Parties
decision on s. 137.1(9) damages and costs
Gomery J.
Released: December 22, 2023