Reasons for Decision on Costs

Court File No.: CV-23-91907 Date: 2025-09-26 Ontario Superior Court of Justice

Justice I. Carter

Background

[1] The Plaintiff commenced a defamation action against the Defendant A.B. in relation to comments made by her in relation to the Plaintiff, who is her former partner. In response, the Defendant brought a motion seeking to dismiss the proceedings pursuant to s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990, c C.43, a provision commonly referred to as "Anti SLAPP." I concluded that some of the expressions at issue did not engage that public interest but that some did and ultimately granted the motion. The action was dismissed without prejudice to the Plaintiff to commence a new action with respect to one of those expressions.

[2] The parties have been unable to agree on costs and so that issue is now before me. The Defendant is seeking her full indemnity costs in the amount of $125,617.50 in this matter. It is the Plaintiff's position that there should be no costs awarded, or in the alternative, be drastically reduced.

Legal Framework for Costs

[3] Pursuant to section 137.1(7), when an action is dismissed under s.137.1, the statutory presumption is that the successful moving party is entitled to costs on a full indemnity basis. The presumption of full indemnity costs is not predicated on the basis upon which the defendant succeeds on the motion: Fortress Real Developments Inc v. Rabidoux, 2018 ONCA 686 at paras. 66, 71.

[4] The Plaintiff bears the burden of demonstrating why a departure from the full indemnity presumption is appropriate: Cornell v. Trudeau, 2025 ONSC 543 at para. 5.

Analysis of SLAPP Indicia

[5] The Plaintiff commences its written submission by noting that this action did not exhibit any of the hallmarks of a SLAPP. Those indicia are: (a) whether the Plaintiff had a history of using litigation or the threat of litigation to silence critics; (b) whether there was a financial or power imbalance that strongly favoured the Plaintiff; (c) whether the action was animated by a punitive or retributive purpose; and (d) whether the Plaintiff suffered or is likely to suffer only minimal or nominal damages as a result of the Defendant's conduct.

[6] It is unclear whether the Plaintiff is arguing that the lack of these SLAPP indicia should result in a departure from the statutory presumption of full indemnity costs or should be considered in some other manner. While there is no evidence that the Plaintiff had a history of using or threatening litigation to silence critics or that the action was animated by a punitive or retributive purpose, there was at least some evidence of a power imbalance. Furthermore, there was little evidence that the Plaintiff suffered anything other than minimal damages. In other words, while this case does not neatly fall into the typical SLAPP mould, there are at least some indicia present. Under the circumstances, there is no reason to depart from the statutory presumption.

Quantum of Costs

[7] That, of course, does not end the story. When determining the quantum of costs under s.137.1(7), there remains an obligation on the motion judge to undertake an analysis as to what costs are fair and reasonable: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128 at para. 42.

Settlement Negotiations

[8] The Plaintiff submits that the Defendant should receive no costs because the matter should have been settled at an early stage with minimal costs. Indeed, the parties had come close to a resolution but were unable to finalize it. The Plaintiff insisted on mutual releases. The Defendant refused.

[9] I am unable to accept the Plaintiff's position that refusing to provide a release was unreasonable on the part of the Defendant. The Plaintiff relies on Hodaie v. RBC Dominion Securities, 2012 ONCA 796. In that case, a Defendant agreed to pay a Plaintiff a sum of money in exchange for a release, but the form of release was not agreed upon. That is not the case here. No release was ever agreed on. In the normal course, it is usually the Plaintiff who would furnish a release in exchange for payment from the Defendant. That is not to say that mutual releases are not possible in a circumstance such as this one. The point is simply that it would not necessarily be expected such that turning it down would be unreasonable.

[10] The Defendant was mostly, although not fully, successful on this motion. She is entitled to costs. There is no basis for an award of no costs.

Proportionality and Reasonability

[11] In the alternative, the Plaintiff argues that the cost amount should be minimal keeping in mind proportionality and reasonability. As the Court of Appeal states in Park Lawn v. Kahu Capital Partners Ltd., 2023 ONCA 129 at para. 39, "recognizing that an anti-SLAPP motion is meant to be efficient and economical, I would suggest that, as a guidelines, the costs of such a motion should not generally exceed $50,000.00 on a full indemnity basis" with discretion to the motion judge to award less, more, or nothing as they see fit in the circumstances of each case.

[12] In addition, the Plaintiff points to his own costs of $47,235.00 as being reasonable in all the circumstances.

Assessment of Costs Incurred

[13] I begin by noting that the rates and distribution of work between counsel for the Plaintiff were reasonable. The disbursements, in the amount of $10,795.56, have been justified. The only issue is the amount of work that was done.

[14] As I previously held, although anti-SLAPP motions were intended to be summary in nature, a considerable amount of evidence was led on this motion. Some of this is the fault of the Plaintiff (for instance the motion to strike, the refusal to concede the public interest nature of the communications to Professional Standards Section of the OPS), but much of it is the fault of the Defendant. A considerable amount of the evidence she led went deep into the weeds of the underlying action itself or pertained to issues that were marginal or on which she was unsuccessful (for example the public nature of certain statements).

[15] The statements made by the Defendant fell into two categories: ones made to the Professional Standards Section of the Ottawa Police Service and ones made to individuals known to both the Plaintiff and the Defendant. I found that statements in the latter category did not engage the public interest. The Defendant was not successful on that aspect of the motion and should not be entitled to costs for that work.

[16] As for the former category, complaints made to and/or evidence given in a complaint to a quasi-judicial regulatory authority are protected by absolute privilege. This has been held to include statements made during a Police Services Act investigation (Byrne v. Maas). The decision in Byrne v. Maas was binding on this Court by reason of horizontal stare decisis. It was a complete answer to the heart of the merits of the Plaintiff's action.

[17] The real issue on this motion was the viability of the Plaintiff's action given that state of affairs. It would have been far more efficacious to bring a motion for summary judgment. Given the evidentiary record and applicable case-law, the proceeding would have been narrower in scope and reached the same result.

Costs Award

[18] It is impossible for this Court to determine with precision how much time was spent by counsel on the issues on which the Defendant was unsuccessful. It is also impossible to say exactly how much time should have been spent if the focus had been on the absolute privilege issue rather than the peripheral issues. Although I appreciate that in a number of cases the suggested maximum cost amount of $50,000 has been exceeded (sometimes significantly so), given my findings in this case and considering the costs of the Plaintiff, costs for legal fees in the amount of $50,000 plus disbursements of $10,795.56 would be appropriate. The Plaintiff shall pay to the Defendant total costs in the amount of $60,795.56.

Justice I. Carter

Released: September 26, 2025