Court File and Parties

Court File No.: CV-24-00724220-0000
Date: 2025-04-28
Court: Superior Court of Justice – Ontario

Between:
Solmar Inc. and Benny Marotta, Plaintiffs
and
Stewart Hall, Defendant

Before: E.M. Morgan

Counsel:

• William McDowell, Drew Black, and Derek Knoke, for the Plaintiffs
• Ryder Gilliland and Michael Robson, for the Defendant

Heard: Cost submissions in writing

Costs Endorsement

[1] The Plaintiff was successful in defeating an anti-SLAPP motion that attempted to have this libel action dismissed: Solmar Inc. v. Hall, 2025 ONSC 1703.

[2] Where the successful party in this type of motion is the Plaintiff/responding party to the motion, the applicable statutory provision eliminates the usual presumption that the successful party deserves costs. However, it gives the court the discretion to award costs to the successful party in circumstances where the motion judge considers it appropriate to do so.

[3] Section 137.1(8) of the Courts of Justice Act provides:

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.

[4] I found that the words complained of by the Plaintiffs pass the initial anti-SLAPP threshold in that they relate to a matter of public interest. That alone, however, does not preclude me exercising my discretion to award costs to the Plaintiffs. Rather, it is the court’s task to determine whether there are any “‘unique and compelling’ circumstances of the case” that might warrant the award of costs: Teneycke v. McVety, 2024 ONCA 927, at para. 100.

[5] Plaintiffs’ counsel point out in their cost submissions that compelling situations that have prompted courts to exercise their discretion under section 137.1(8) include where the Defendant’s impugned words were intended to harm the Plaintiff’s reputation, or where there is evidence to support a finding of malicious intent on the Defendant’s part: Ibid., at paras. 96-101. Likewise, a court may be inclined to award costs to the successful Plaintiff where the Defendant is found to have shown callous disregard for the Plaintiff, or to have engaged in a sharp and personal attack on the Plaintiff’s reputation: Levant v. Day, 2019 ONCA 244, at para. 18.

[6] As I indicated in my decision in the case at bar, the Plaintiff is an active real estate developer, and the Defendant’s impugned expression – in effect, calling the Plaintiff a corrupt developer and bribe payer – is bound to cause harm, but is designed to cause “serious detriment to the Plaintiff and his business”: Solmar, supra, at para. 52. Furthermore, the expression in issue was designed to undermine the Plaintiff’s chances of getting development proposals approved, thereby circumventing legitimate municipal process: 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, at para. 100.

[7] The circumstances of this case therefore prompt me to exercise my discretion in awarding costs to the Plaintiff as the successful party.

[8] The Plaintiff seeks substantial indemnity costs of $119,872.43, all inclusive. The Defendants complain that this is unreasonably high. Defendants’ counsel point out that their own substantial indemnity costs would be $58,582.89, or roughly half the Plaintiff’s amount.

[9] In exercising their discretion to award costs, courts are directed to have consideration for the factors listed in Rule 57.01(1) of the Rules of Civil Procedure. I am cognizant of the fact that Rule 57.01(1)(0.a) expresses the principle of indemnity for the successful party while Rule 57.01(1)(0.b) provides that the amount claimed by the successful party should be within the unsuccessful party’s reasonable expectations. While that does not mean that the successful party’s costs request must match that of the other party, the present situation, where the successful party’s costs are double that of the unsuccessful party, gives me pause.

[10] I am inclined to exercise my discretion under section 137.1(8) of the Courts of Justice Act in a spirit of compromise. I therefore view somewhere around the mid-point between the two substantial indemnity figures as the appropriate level under the circumstances.

[11] Rounding off the numbers for convenience, the Defendant shall pay the Plaintiffs costs in the all-inclusive amount of $89,000.

Date: April 28, 2025
E.M. Morgan