Court File and Parties

Court File No.: CV-24-00722413-0000
Date: 2025-03-06
Superior Court of Justice – Ontario

RE: UM Financial Inc., Omar Kalair, and Yusuf Panchbhaya
Plaintiffs/Respondents

AND: Ronald Butler and Butler Mortgage Inc.
Defendants/Moving Parties

Before: Rohit Parghi

Counsel:
Peter I. Waldmann, for the Plaintiffs/Respondents
Gregory M. Sidlofsky and Adin Wagner, for the Defendants/Moving Parties

Heard: March 6, 2025

Endorsement

[1] On February 3, 2025, I handed down an Endorsement granting the Defendants’ motion to dismiss the Plaintiffs’ defamation action pursuant to the anti-SLAPP provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”). In the Endorsement, I held that the Defendants were entitled to their costs and that if the parties were unable to agree on the quantum of costs they were to provide me with written submissions on costs within 30 days. The Defendants provided their submissions. The Plaintiffs have not provided any. The 30-day deadline has now passed.

[2] I grant the Defendants their costs on the motion on a full indemnity basis.

[3] Section 137.1(7) of the Act provides that where a proceeding is dismissed pursuant to the anti-SLAPP provisions, as has happened here, the moving party is entitled to their 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.” The Court of Appeal for Ontario has observed that this presumption in favour of full indemnity costs is intended to “reduce the adverse impact on constitutional values of unmeritorious litigation” and “deter the commencement” of defamation actions that constitute strategic litigation against public participation (Levant v. DeMelle, 2022 ONCA 79, para 78).

[4] The Court of Appeal has further held that cases that bear the “indicia” of anti-SLAPP lawsuits are appropriately subject to the presumption in favour of full indemnity costs (Levant v. DeMelle, 2022 ONCA 79, para 84). Those indicia include a history of the plaintiffs using litigation or its threat to silence their critics, a financial or power imbalance that strongly favours the plaintiffs, a punitive or retributory purpose animating the plaintiffs’ bringing of the claim, and minimal or nominal damages suffered by the plaintiffs (Platnick v. Bent, 2018 ONCA 687, para 99).

[5] Several of these indicia are present in this case. The record demonstrates that the Plaintiffs have a history of litigating against perceived critics, including press organizations. The record supports that there was a punitive or retributory purpose underlying the litigation. Additionally, the Plaintiffs suffered minimal or nominal damages at best as a consequence of the allegedly defamatory publication. As discussed in my Endorsement of February 3, 2025, the record “contains no evidence of harm to UM Financial”. It contains “no mention of harm to UM Financial”. It does not “contain any evidence of harm, or any mention of harm, to Mr. Panchbhaya.” In respect of Mr. Kalair, “the record contains only a bald assertion of harm, with no particulars or explanation.” In the result, there were only “unexplained, abstract claims of harm that leave me unable to infer that the Plaintiffs have experienced or will experience actual harm”. Even if harm had been demonstrated, there was “no basis on which I could determine that such harm flowed from” the allegedly defamatory communication. In these circumstances, the purpose underlying the statutory presumption of full indemnity costs readily applies.

[6] The Plaintiffs have filed no costs submissions. They offer no argument as to why I should exercise my discretion to depart from the presumption, enshrined in legislation and the jurisprudence, in favour of full indemnity costs.

[7] I see no basis on which to depart from that presumption. I order costs on a full indemnity basis.

[8] The quantum of costs sought, of $64,359.30, is reasonable. The Defendants had to prepare extensive materials on a motion in an area of law that is both relatively new and fairly complex. Their materials were of very good quality and of great assistance to the court. The hourly rates and amount of time spent are reasonable and work was appropriately divided up between the junior and senior members of the counsel team.

[9] I also note that the Plaintiffs engaged in conduct that needlessly drove up the costs of the litigation. This included serving sur-reply materials after the Defendants filed their factum and without any provision to file such materials in the timetable, and requesting an adjournment of the motion, which request was only abandoned late in the day. The Defendants should not be penalized for having to incur additional costs in accommodating and responding to such conduct.

[10] I accordingly grant the Defendants their costs sought on a full indemnity basis, in the amount of $64,359.30. This amount is to be paid within 30 days.

Date: March 6, 2025

Rohit Parghi