Court File and Parties

Court File No.: 993/17SR Date: 2024/01/03 Superior Court of Justice - Ontario

Re: WILLIAM JOHN ARMSTRONG, Plaintiff And: AMIR FARAHI, METROLAND MEDIA GROUP LTD. & TORSTAR CORPORATION, Defendants

Before: Justice M.A. Cook

Counsel: Sean Flaherty, Lawyer for the Plaintiff Ryder Gilliland, Lawyer for the Defendants

Heard: In Writing

Costs Endorsement

[1] On September 7, 2023, I released my decision granting the defendants’ motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (as amended) (“CJA”) and dismissed the plaintiff’s defamation against them. In my decision, I invited the parties to make written costs submissions if they were unable to resolve the matter of costs between them. What follows is my costs decision following receipt of written costs submissions made in accordance with the terms of my endorsement.

[2] Amir Farahi, Metroland Media Group Ltd. and Torstar Corporation (the “defendants”) seek their costs of the motion and action on a full indemnity basis in the amount of $40,914.99.

[3] The plaintiff, William Armstrong (the “plaintiff”) asks that costs be fixed on a partial indemnity scale in the amount of $25,000.00, or, if the costs are to be awarded on a full indemnity scale, that costs not exceed $40,000.00 in light of principles of proportionality.

[4] Based on the submissions and materials filed, the only real issue in dispute is whether the defendants are entitled to costs at a full indemnity sale, or whether the court should exercise its discretion to reduce the costs scale to reflect the circumstances of the case.

Principles Governing Costs

[5] An award of costs, and the amount of the award, are in the court’s discretion. That discretion is grounded in section 131 of the CJA and informed by the factors enumerated at Rule 57.01 of the Rules of Civil Procedure.

[6] In this case, the successful defendants are entitled to full indemnity costs pursuant to s. 137.1(7) of the CJA unless the court finds that such an order is “not appropriate in the circumstances” and makes a different disposition.

[7] Even if costs are to be assessed on a full indemnity basis, the court’s discretion to fix the amount of costs remains subject to certain well-settled and overarching principles, specifically, fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 84; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

Scale of Costs in an anti-SLAPP Suit

[8] Relying on s. 137.1(7) of the CJA, the defendants seek their full indemnity costs in the amount of $40,914.00. Costs on a substantial indemnity scale have been calculated at $36,997.28 and on a partial indemnity scale are $25,244.15.

[9] The plaintiff submits that there are two reasons why it would not be appropriate to award costs on a full indemnity scale in this case: (1) the defendants’ delay in bringing their motion; and (2) the defendants’ conduct giving rise to the action.

[10] In Levant v DeMelle, 2022 ONCA 79 [Levant] the Court of Appeal provided much-needed guidance about the “appropriateness exception” to the costs provisions of s. 137.1(7) of the CJA. The Court of Appeal held that the presumption of an award of full indemnity costs is driven by the pressing need to (i) reduce the adverse impact on constitutional values of unmeritorious litigation; and (ii) deter the commencement of actions launched with an intention to unduly limit expressions on matters of public interest.

[11] The Court of Appeal considered the appropriateness of a full indemnity costs award in Levant through the lens of the hallmark indicia of an anti-SLAPP lawsuit set out set out 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.

[12] The Court of Appeal held that it was appropriate to award full indemnity costs in Levant because the actions bore three of the four hallmark indicia of an anti-SLAPP action, and the actions were precisely the kind of lawsuits that s. 137.1 of the CJA was designed to prevent, or at least quash at the earliest opportunity. In the circumstances, the goal of deterrence was appropriately vindicated through an award of costs at the presumptive full indemnity scale.

[13] What I take from the decision in Levant v DeMelle is that the exercise of my discretion in fixing costs should be guided by the important purposes of s. 137.1(7), using the indicia of an anti-SLAPP lawsuit, before moving the more familiar assessment under s. 131 of the CJA and the factors found under Rule 57.01.

[14] Using that framework here, I am not persuaded that the defendants’ delay in bringing the motion should disentitle the defendants to costs at a full indemnity scale in this case. Even if the delay resulted in increased costs, the plaintiff’s concern about waste is more appropriately addressed at the quantification stage of the assessment. Accordingly, I will address the plaintiff’s concern about waste further below.

[15] The second reason advanced by the plaintiff for reducing the scale of costs in this case is the defendants’ conduct. The plaintiff relies on the costs decision in Bangash v Patel, 2022 ONSC 16 in support of its submission that conduct giving rise to the defamation action can justify the court exercising its discretion to deny full indemnity costs to a successful defendant.

[16] In Bangash v Patel, the plaintiff was an Imam at the Islamic Society of York Region (the “Society”). The defendant was a member of the Society unhappy with the plaintiff’s leadership. The defendant participated in circulating a petition throughout the Society’s membership which contained a demonstrably false statement that the plaintiff was selling Society property and failing to account. The plaintiff sued in defamation. While the plaintiff’s action was dismissed as an anti-SLAPP suit, the Court awarded costs on a reduced partial indemnity scale because the “lawsuit could likely have been avoided altogether if Mr. Patel and his associates had been more careful about how the petition was drafted” and it would be unfair for the plaintiff to bear the full indemnity costs of the action.

[17] The defendants in this case were careless in publishing the impugned article in the manner that they did. However, I am not persuaded that the defendants’ carelessness was the principal driver of the resulting lawsuit, as Justice Boswell found was the case in Bangash v Patel.

[18] As was the case in Levant, the plaintiff’s action bears three of the four indicia of an anti-SLAPP lawsuit, the exception being a financial or power balance that strongly favours the plaintiff. There is a history of the plaintiff using litigation to silence critics. The timing of the plaintiff’s lawsuit, months after the impugned article was published and, in the lead-up to the municipal election, suggested that the action was being used for the improper purpose of “disciplining and intimidating Farahi during the election cycle rather than for the purpose of seeking redress for actual harm.” Finally, as I found in my decision, there is good reason to conclude that any damages suffered by the plaintiff as a result of the article were minimal. While the plaintiff’s action was less overtly aimed at stifling expression, there is nothing in the circumstances of the case that detract from the legislative goal of deterrence, and I exercise my discretion to award costs at the presumptive full indemnity scale.

Quantum

[19] I find that the fees and disbursements incurred by the defendants in the motion and action, as set out in their bill of costs, to be proportionate and reasonable. Nothing in the defendants’ bill of costs suggests that the file was overworked, nor does the plaintiff criticize the defendants’ bill of costs in any way. The defendants internalized some of their costs using in-house counsel, with the result that the costs request falls well within the reasonable contemplation of the plaintiff; the plaintiff’s full costs were slightly higher than those of the defendant.

[20] The plaintiff submits that he suffered wasted costs in the action as a result of the defendants’ delay in bringing the motion. The plaintiff says that the defendants did not initiate their motion for five years after the statement of claim was served, during which time he incurred substantial and wasted costs assembling and delivering an affidavit of documents. The plaintiff says it would be inappropriate to award full indemnity costs in circumstances where the defendants’ delay caused waste to the plaintiff.

[21] I am not persuaded that the defendants’ delay in bringing the motion materially increased the plaintiff’s costs in the proceeding. The action languished between 2017-2021, when the plaintiff served his affidavit of documents and sought to canvas dates for examination for discovery. The motion was the next step in the litigation. There is no evidence that the parties engaged in discovery planning or other litigation activity that misled the plaintiff or caused waste. Even if the plaintiff wasted some costs assembling his affidavit of documents before the motion was brought, the plaintiff has not provided any time entries or information to allow the court to adjust the award on a principled basis.

[22] In light of the relevant factors under r. 57.01, and for the foregoing reasons, I find it fair and reasonable to fix the defendants’ costs of the motion and the action on a full indemnity scale in the amount of $40,914.99 inclusive of HST.

Justice M.A. Cook Date: January 3, 2024