Court File and Parties

COURT FILE NO.: CV-21-1547-0000 DATE: 2024 08 15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Mississauga Fire Fighters Association, IAFF Local 1212 Applicant

J. Goldblatt, for The Mississauga Fire Fighters Association for the Applicant

- and -

McNamara, Dr. Martin Respondent

I. MacKinnon, for the Respondent, Dr. Martin McNamara

HEARD: May 31, 2024, by video conference

Emery J.

REASONS FOR DECISION

[1] Both parties seek an end to this action, but through a different route.

[2] The plaintiff Mississauga Fire Fighters Association, IAFF Local 1212 (the “MFFA”) brings this motion for leave to discontinue the action it commenced against the Defendant, Dr. Martin McNamara (“McNamara”) for defamation. The MFFA requires leave to discontinue under Rule 23.01 because the pleadings in the action are closed. It seeks leave to discontinue the action to pre-empt the defendant’s ability to bring the anti-SLAPP motion, and to avoid costs.

[3] McNamara submits that he has an interest in the action that is sufficient to have the MFFA motion dismissed. This will clear the way for him to bring an anti-SLAPP motion to have the action dismissed under s. 137.1 of the Courts of Justice Act. Regardless of the road taken, McNamara seeks his costs of the action on a substantial indemnity basis.

[4] RSJ Ricchetti heard the parties at a case conference arising out of an appearance in triage court in Brampton on December 6, 2023 when McNamara had intended to schedule his anti-SLAPP motion. The further attendance at a case conference was required because counsel for the MFFS had served the motion record for leave to discontinue the action the night before. The preliminary question before RSJ Ricchetti, and on which he required further submissions, is which motion should proceed before the other.

[5] For the reasons set out in his Endorsement dated December 29, 2023 (at 2023 ONSC 7285), RSJ Ricchetti held that the MFFA motion for leave to discontinue would be heard first.

Background

Context

[6] The landscape beneath this litigation is populated by two public service groups that provide similar services. McNamara describes in his affidavit how there has been a longstanding dispute and debate over the roles of fire fighters providing pre-hospital emergency care services, and paramedics. This debate has taken on a media presence, with fire unions advocating for fire fighters to take on a greater role in this area.

[7] In or around 2015, the Ontario Fire Fighters Association (the “OPFFA”) submitted a proposal to the Ontario government to develop a “fire-medic” model that would reform the system of providing pre-hospital emergency medical services to allow firefighters to take on that greater role. A group behind the organization Send Paramedics filed a submission to the government committee studying the OPFFA proposal, thereby sparking a public discussion.

[8] The onset of COVID-19 in 2020 brought the differences between the fire fighters and the paramedics within the emergency response community into sharp relief. After the Ontario government created a policy framework to determine the priority of giving vaccinations to healthcare and other frontline workers in Ontario, the provincial government allowed fire fighters to obtain vaccinations in priority to paramedics. Soon thereafter, posts on social media appeared that questioned that decision. This fueled the debate over whether fire fighters should have been prioritized over paramedics and other frontline workers to receive a vaccination.

[9] The Send Paramedics Facebook page and the X account (formerly known as Twitter) for that group advocate for efficiencies and the quality of emergency services to provide the public with pre-hospital care. McNamara acknowledges that these social media accounts have been used by himself and others to challenge the narratives posted or circulated on other social media platforms by fire unions. He states that Send Paramedics advocates for the important role that paramedics play in providing emergency medical services outside of a hospital setting.

[10] The subject matter of the defamation lawsuit commenced by the MFFA consists of six postings made on social media platforms administered by or in the name of Send Paramedics. Four of those posts were made to the Send Media Facebook page and two posts appeared on its X account.

Litigation history

[11] The history of the litigation was summarized by RSJ Ricchetti in paras. 4-11 as follows:

[4] In January 2021, the Defendant, Dr. Martin McNamara (McNamara), allegedly posted, to various social media sites, documents containing expressions relating to the International Association of Fire Fighters (IAFF), and its Local 1212 Union, Mississauga Fire Fighters Association (MFFA).

[5] The Statement of Claim’s central thrust of the alleged statements made by McNamara relates to the Ontario Government’s decision that firefighters received priority to Covid-19 vaccination. For the purpose of this motion, I do not need to, nor do I, engage in the consideration of any claims of defamation, defences related thereto or whether the statements contain expressions of public interest.

[6] The Statement of Claim was issued on April 26, 2021.

[7] The Statement of Defence was delivered on May 17, 2021.

[8] The Reply was delivered on May 21, 2021.

[9] On July 15, 2021, the Plaintiff’s counsel sought to schedule examinations for discovery.

[10] On July 19, 2021, the Defendant’s counsel advised of its intention to bring a motion to strike the Statement of Claim under R. 21 and, if that motion was unsuccessful, to then bring an anti-SLAPP motion under R. 137.1 of the Courts of Justice Act (CJA).

[11] On August 10, 2022, the R. 21 motion to strike was heard by J. Rahman. The motion’s judge granted the motion in part, finding that 3 of the alleged defamatory statements were not capable of referring to the Plaintiff and struck that portion of the claim.

[12] There followed at paras. 12-14 a recital of the following facts and findings on settlement negotiations between the parties that formed part of the submissions:

[12] Discussions to resolve the proceeding took place between counsel.

[13] At issue then, and repeated in submissions to this court, a dismissal of the proceeding under R. 137.1 results in a presumptive entitlement to full indemnity costs, whereas such a presumption does not arise with a discontinuance.

[14] While normally, this court would not deal with the settlement discussions, both counsel jointly put before the court, some of the settlement discussions. On September 6, 2023, as set out in an email, McNamara offered to settle the proceeding on the basis that MFFA pay McNamara substantial indemnity costs. MFFA refused this offer. The impediment to the resolution was costs.

[13] RSJ Ricchetti determined two issues in the course of deciding that the motion for leave to discontinue would proceed first. One issue was to decide whether the anti-SLAPP motion had been “made” within the meaning of s. 137.1(5). A finding that the motion had been “made” would that preclude any further step from being taken under s. 137.1(5) until it has finally been disposed of.

[14] On this issue, RSJ Ricchetti considered the decision of Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, where the anti-SLAPP motion had been served. On the question of setting the order of motions in that case, Myers J. held that the prohibition under s. 137.1 applied in view of that service and the anti-SLAPP motion would proceed first. However, as there was no anti-SLAPP motion served in this case, RSJ Ricchetti adopted the reasoning of the Divisional Court in Ontario College of Teachers v. Bouragba, 2023 ONSC 367 (Div. Ct.). He concluded that Bouragba was directly applicable as he found that a motion under s. 137.1(3) had not yet been “made” to trigger the automatic stay.

[15] RSJ Ricchetti also concluded that this motion would proceed first after finding that McNamara’s objective is not to vindicate himself through an anti-SLAPP motion, but rather to pursue his claim for costs. In paras. 42-46, he put it this way:

[42] McNamara submits that succeeding on the anti-SLAPP motion would provide him vindication. I reject this submission.

[43] First, success on the anti-SLAPP motion is not a certainty.

[44] Second, the parties failed efforts to end the proceeding, was over the quantum of costs. Not vindication. McNamara submits that the settlement discussions are privileged. However, McNamara included those discussion (at least a portion of them) that showed the discussions failed because of the failure to agree on costs.

[45] And, on this motion, McNamara’s significant submission to oppose the discontinuance was the lack of the presumptive full indemnity costs IF the anti-SLAPP motion was successful.

[46] The issue of “vindication” was not the problem – it was costs – money.

The anti-SLAPP provisions of s. 137.1

[16] The Courts of Justice Act was amended in 2015 to introduce s. 137.1. The statutory regime under Rule 137.1 was designed to “discourage the use of strategic litigation to unduly limit expression on matters of public interest; it was to strike a balance to ensure abusive claims could not proceed but legitimate ones could continue: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, at paras. 1 and 33. The preamble to s. 137.1 states the purposes of the section are to encourage individuals to express themselves on matters of public interest, to discourage the use of litigation as a means of unduly limited expression on those matters and reducing the risk that participation by the public in such debates will be hampered by fear of legal action.

[17] To patrol against strategic lawsuits against public participation, the legislation contains s. 137.1(3) that enables a defendant to seek a dismissal of a lawsuit alleging defamation if the requirements of s. 137.1 are met. A motion under s. 137.1(3) is commonly known as an “anti-SLAPP motion.” Section 137.1(3) provides that the judge who hears that motion shall dismiss the proceeding against the person if he or she is satisfied that the proceeding, such as an action for defamation, arises from an expression made by the person, namely the defendant, that relates to a matter of public interest.

[18] Under s. 137.1(7), a defendant who obtains an order dismissing the action is entitled to costs of the motion and of the action on a full indemnity basis, unless the judge determines such an award is not appropriate in the circumstances.

Positions of the parties

[19] The MFFA not only seeks leave of the court to discontinue the action, it also seeks leave to discontinue without costs. It submits that the action for defamation was brought on a bona fide cause of action, and that the discontinuance will cause no prejudice to McNamara. The MFFA further states that the motion for leave to discontinue should not be pre-empted by McNamara’s proposed anti-SLAPP motion. In its view, McNamara’s proposed motion requests an element of vindication for the allegations made in the statement of claim against him. However, McNamara seeks a dismissal of the action as the final remedy. The discontinuance of the action will serve the same end as it will bring an end to the litigation.

[20] The MFFA submits that the action commenced against McNamara was justified and that no costs should be awarded upon discontinuance. In the alternative, the MFFA submits that costs should only be awarded on a partial indemnity level and limited to indemnification for legal services related to pleadings on that scale in the amount of $4,400.

[21] McNamara takes the position that he has acquired rights at this stage of the proceeding, and is entitled to have the MFFA’s claim for defamation dismissed with reasons in an anti-SLAPP motion. In the process, he will seek costs of the motion in the amount of $36,825 plus HST on a full indemnity basis under s. 137.1(7).

[22] In the alternative, McNamara states that he is entitled to costs on a partial or substantial indemnity level if the court grants leave to the MFFA to discontinue the action. He has filed a Costs Outline for the costs he is seeking for each step of the action, including pleadings, discovery and settlement discussions, the anti-SLAPP motion, the motion for priority before Ricchetti RSJ and this motion for leave. He seeks $23,232 on a partial indemnity level and $30,976 on a substantial indemnity scale, plus HST for those costs.

Analysis

[23] The parties agree that the three issues on this motion are:

a. Should the MFFA be granted leave to discontinue the action? b. If leave is granted, is McNamara entitled to his costs of the action? c. If so, what is the proper scale (and amount) of costs to award?

a. Leave to discontinue

[24] The court may grant leave to a plaintiff to discontinue an action under Rule 23.01 after the close of pleadings, and has the power to impose terms: Simanic v. Ross, [2004] O.J. NO. 5764, at para. 17. In making this determination, the court is to balance the rights and interests of the parties and the effect of prejudice to the defendant if leave was granted, and to the plaintiff if it is not: Simanic, at para. 25.

[25] The Divisional Court held in Bouragba that there is nothing prejudicial to the defendant where a plaintiff discontinues its claim rather than to respond to an anti-SLAPP motion. At para. 24 of Bouragba, Corbett J. wrote for the court:

“ The Master rejected Mr Bouragba’s argument that he was entitled to have the merits of the anti-SLAPP motion determined. The Master’s assessment on this point was reasonable: the purpose of the anti-SLAPP provision is to provide for summary dismissal of certain claims, not to provide a forum to litigate those claims. If a plaintiff would prefer to abandon the litigation to defending the anti-SLAPP motion, there is no resulting “prejudice” to the defendant.”

[26] In exercising its discretion to grant leave, the court should consider “the state of progress of the action; the prejudice suffered by either party should leave be granted or refused; and the court’s ability to neutralize prejudice by imposing terms”: 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2016 ONSC 1002, at para. 47. It has also been held that the court may refrain from granting leave in “special circumstances”: Chamberlain v. Myers, 2028 ONSC 2781 at para. 17.

[27] While a claim made in an action belongs to the plaintiff, the court has recognized that a defendant may acquire rights to have a judicial determination made as to the merits of the claim at a certain point. This point is reached where the action has progressed to a stage where the defendant is entitled to a judicial declaration of rights. The court in Simanic put it this way, at paras. 29:

[29] Counsel for the plaintiff points out that the cases in which leave was denied referred to and relied upon by the Master concerned, in each case, actions which were very well advanced. In Blum v. Blum, supra, the action had come on for trial before Haines J. The defendant wife was ready for trial but the plaintiff husband sought leave to discontinue. The trial judge granted leave to discontinue upon payment of costs but declined to dismiss the action or to restrain the plaintiff from bringing a new action. On appeal, the Court of Appeal cited Schlund v. Foster (1908), 11 O.W.R. 175, [1908] O.J. No. 540 (H.C.J.) at para. 13 for the applicable principles, per Riddell J.:

. . . this action is carried on so far that the plaintiff is no longer dominus litis, but the defendant has acquired rights and is entitled to a judicial declaration as to the merits between himself and the plaintiff; the plaintiff must submit to such a judicial declaration, unless he is released from such necessity by an order of the Court; he is now appealing to the Court to be released from such necessity and to be allowed to deprive the defendant of his right to such declarations; the defendant is not asking for any favours from the Court or from the plaintiff, but pursuing the regular course to have his rights determined. . . .

[28] McNamara brought a motion in August 2022 to strike paragraphs from the statement of claim based on postings to the two Send Paramedics platforms for disclosing no cause of action. His defence motion to strike all allegations relating to the six published posts resulted in an Order striking Facebook posts #2 and #4, and Twitter post #2, without leave to amend. McNamara was also awarded costs of the motion in the amount of $4,300 as the successful party.

[29] The remaining statements and their context were described in the MFFA factum for this motion as follows:

a) Facebook Post #1: On January 29, 2021, McNamara posted a link on the @SendParamedics Facebook Account to an IAFF website post about the Government of Ontario’s announcement that firefighters would be included in “Phase 1” of the COVID-19 vaccination framework. McNamara included a caption to the link with the statement: “How much political corruption has occurred because of this?” b) Facebook Post #3: On February 14, 2021, McNamara posted a link on the @SendParamedics Facebook Account to an article about a firefighter in Seattle who was arrested for allegedly threatening a city council member. McNamara included a caption with the statement: “And some wonder why we remain anonymous. It’s for our own protection. The IAFF is a gang, a cult.” c) Twitter Post #1: This post is similar to Facebook Post #1. On January 29, 2021, McNamara posted a tweet to the @Send_Paramedics Twitter Account that linked to an IAFF website post about the Government of Ontario’s announcement that firefighters would be included in “Phase 1” of the COVID-19 vaccination framework. McNamara then replied to that tweet with a second tweet that included the statement: “How much political corruption is going on here?!”

[30] McNamara has not demonstrated that the claim in defamation arising from the remaining social media posts relate to him to the extent necessary to entitle him to continue the action just to bring a motion under s. 137.1(3). I make this finding because he has not shown that the proceeding arises from of an expression made by him, whether or not it relates to a matter of public interest. Even if the statements expressed in the three posts were made by him, the action had not progressed far enough that he would be entitled to a judicial declaration of rights, or to have a need to vindicate himself: Simanic.

[31] Leave to discontinue the action is granted. A legal action should not be used as a platform for the sole purpose of communicating views on politics or government policy. There are no special circumstances here, and no prejudice to McNamara that cannot be neutralized by costs. RSJ Ricchetti concluded that costs are the issue here, not vindication. I agree.

b. The claim(s) for costs

[32] It is important to remember that this motion is brought by the MFFA as the plaintiff for leave to discontinue the action under Rule 23.01(1)(b). If the action is discontinued in whole or in part, Rule 23.05 provides that any party may bring a motion within 30 days respecting the costs of the action.

[33] In view of the endorsement of RSJ Ricchetti and the submissions on this motion, I accept that McNamara has in effect made a motion under Rule 23.05 for costs.

[34] In Digiuseppe v. Todd, 2012 ONSC 1028, McCarthy J. outlined how Rule 23.05(1) was amended on October 1, 2009 from a rule entitling a defendant to costs for an action that had been discontinued unless the court ordered otherwise, to a new process for bringing a motion within 30 days for a determination of costs. In Digiuseppe, McCarthy J. concluded that the dynamics of the rule had changed to remove the prima facie right of the defendant to costs, and for the court to now consider making costs in favour of either party.

[35] McCarthy J. reviewed the jurisprudence under the previous version of the rule and described how those principles are the starting point when deciding whether to relieve the plaintiff from paying costs upon a discontinuance. In that analysis, the court must determine if the plaintiff’s pleadings show it has a bona fide cause of action, that the claim was not frivolous or vexatious, and which the plaintiff had some justification to commence because of the defendant’s conduct. If the plaintiff cannot meet this threshold, costs will more than likely follow.

[36] The test for the justification to be absolved of liability for costs was restated by Price J. in Great Lakes Copper (at para. 63) as follows:

a. The material filed discloses a bona fide cause of action; b. The action was not frivolous or vexatious; and c. The plaintiff was justified in commencing a lawsuit.

[37] It was held in Great Lakes Copper that if the three factors are satisfied, no costs should follow on an Order granting leave to discontinue.

[38] Put another way, the commencement of the action must be justified in the eyes of the court to relieve the plaintiff from paying costs to the defendant for a discontinued action. The analysis for the “justified action test” therefore includes a consideration of relevant facts on the balance of probabilities to determine if there was a justified basis to commence the action. Even so, Rule 23 does not restrict the broad discretion of the court to decide costs on the circumstances of a case. See MTCC No. 943 v. Khan, 2023 ONSC 3278, at para. 9.

[39] This action was reduced to claims for defamation based on the three posts on the social media accounts of Send Paramedics that survived the motion to strike heard in 2022. McNamara chose to attack the MFFA statement of claim in that manner at the time and he was successful on the motion to strike three of the six posts. The three posts that survived the motion to strike are what must be considered for the justified action test as they are all that remains of the subject matter for the cause of action.

[40] While I understand how the MFFA believed it had commenced the action for defamation as a bona fide cause of action, I find that the three posts at issue do not contain the necessary elements to claim they were defamatory. I accept that those posts survived the scrutiny of the court on the motion to strike by meeting the low bar of not being almost certain to fail. They were not found to be frivolous and vexatious. However, the posts do not mention the name of the MFFA and damage to its reputation was never caused or threatened. I therefore conclude that the posts did not constitute a bona fide cause of action.

[41] In my view, the MFFA did not have the necessary justification to commence the action based on those posts. I therefore conclude that the MFFA is liable to McNamara for costs.

d. Scale of costs

[42] The awarding of costs is always fact specific. Ultimately, it is within the discretion of the court to make a costs award that it is in the interests of justice to make: Enerworks Inc. v. Glenbarra Energy Solutions Inc., 2016 ONSC 429, at para. 15.

[43] McNamara seeks full indemnity costs for the action upon its discontinuance. Section 137.1(7) provides that the moving party is entitled to costs of a successful anti-SLAPP motion and the proceeding on a full indemnity basis, unless the court determines that it would be inappropriate to award costs on that basis.

[44] I am not awarding costs on a full indemnity basis under Rule 137.1(7) for three reasons. First, the anti-SLAPP motion was never heard. No order had ever been made dismissing the action under that rule to provide the statutory foundation for a costs award of that nature. Second, I do not see any egregious or reprehensible conduct on the part of the MFFA to justify an award of elevated costs at common law. This kind of conduct deserving of chastisement by the court is required by the authorities discussed in Davies v. Clarington (Municipality), 2009 ONCA 722. Third, no offer to settle has been brought to my attention that would draw the costs consequences of Rule 49.10 to this case.

[45] Costs of the action are instead awarded on a partial indemnity basis as follows:

1. Pleadings: $4,400. The defendant was required to plead to the action upon consulting with counsel, and after counsel made the full review of background documents and the law as described in the Costs Outline. I find the partial indemnity rate of $240 an hour for Scott Hawryliw, a lawyer with a 2012 call, was reasonable. I also find that 18.5 hours spent providing the described serves is reasonable having regard to the subject matter.
2. Discovery and Settlement discussions: $5,148. Although examinations were never held, discovery in the broadest sense can take many forms. This includes discussions with the client and between counsel internally and externally, and the review of documents. Settlement discussions were evidently held, involving more billable time. The emphasis on those settlement discussions by RSJ Ricchetti make these settlement discussions admissible as a fact on costs. The partial indemnity rate of $330 an hour for Iain MacKinnon, a 1997 call, is slightly on the high side but still within a reasonable range for a senior lawyer. The 15.6 hours incurred for proving the services described are reasonable.
3. Preparation of the anti-SLAPP motion: $1,314 (50% of $2,628). I am only awarding one half the amount claimed for Mr. MacKinnon’s time to prepare the motion as it was never served in final form.

[46] McNamara is awarded costs of the action under Rule 23.05 in the amount of $10,862.

[47] The costs of the case conference before RSJ Ricchetti were reserved at para. 50 of the Endorsement dated December 29, 2023. The MFFA was successful at that case conference to have the court order that this motion be heard first. I award those costs to the MFFA on a partial indemnity basis, fixed in the amount of $4,750 (rounded), all inclusive. These costs shall be set off as against the costs awarded to McNamara.

Conclusion

[48] Leave is granted to the MFFA to discontinue the action. This leave is granted on the terms that:

a. The action shall be discontinued, with prejudice; and b. Net costs are payable by the MFFA to McNamara in the amount of $6,112, plus HST.

[49] This leaves only the costs of this motion to determine. The parties are encouraged to resolve those costs. In the event they cannot reach an agreement, either party making a claim for costs on this motion may file written submissions not exceeding three double spaced pages, excluding any bill of costs or offer to settle, by August 30. The other party shall then have until September 20, 2024 to file responding submissions subject to the same page limits. No reply submissions shall be permitted.

[50] All submissions may be filed by email to my judicial assistant at melanie.powers@ontario.ca

Emery J. Released: August 15, 2024