Court File and Parties
CITATION: ApSimon v. Hategan, 2026 ONSC 2582
COURT FILE NO.: CV-23-91584
DATE: 2026/04/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paul ApSimon, Plaintiff -and- Elisa Hategan, Defendant
BEFORE: Justice S. Corthorn
COUNSEL: Jeff G. Saikaley and Albert Brunet, Counsel for the Plaintiff Joseph Kary, Counsel for the Defendant
HEARD: In Writing
COSTS ENDORSEMENT
CORTHORN J.
Overview
[1] In a ruling released in January 2026, I dismissed an anti-SLAPP motion brought by the defendant pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43.[^1] In summary, I concluded that,
a) the plaintiff’s claim has substantial merit, and the prospect of success weighs more in favour of the plaintiff (Ruling, at para. 87);
b) each of the four defences upon which the defendant relied for the purpose of the motion could be rejected, with the result that there are grounds to believe the defendant has no defence to the proceeding (Ruling, at paras. 155-156); and
c) the public interest in allowing the proceeding to continue outweighs the public interest in the protection of the defendant’s expressions in the subject publication (Ruling, at para. 210).
[2] The starting point for consideration of costs of the motion is s. 137.1(8). Pursuant to that subsection, “[i]f 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.”
[3] In his factum, filed for the purpose of the motion, the plaintiff requests that, if the defendant’s motion is dismissed, he be awarded costs of the motion. In the Ruling, the parties were given a limited amount of time within which to resolve the issue of costs and, if they were unable to do so, to deliver written costs submissions. The court received written costs submissions from both parties.
[4] The plaintiff asks the court to award him costs of the motion, on the partial indemnity scale, in the amount of $28,414.30. The defendant’s position is that there is no reason to depart from the statutory presumption set out in s. 137.1(8). The defendant requests that there be no costs award on the motion.
[5] For the reasons that follow, I find that it is appropriate in the circumstances to order that the defendant pay the plaintiff his costs of the motion, on the partial indemnity scale, fixed in the all-inclusive amount of $27,263.
The Statutory Framework
[6] In Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 573, Pepall J.A. contrasts the legislative intent behind s. 137.1 with the evolution of anti-SLAPP motions over time. At para. 33, Pepall J.A. highlights that the intention was that (a) the process “would be efficient and economical”, and (b) the motion judge would not be required to conduct a “granular analysis”. Also, regarding the latter point, see 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 52.
[7] In a section of her reasons titled “Practice Considerations”, Pepall J.A. compares how anti-SLAPP motions have evolved over time to the legislative intention, including as interpreted by the Supreme Court of Canada. At paras. 35-42, Pepall J.A. makes the following points:
• Anti-SLAPP motions “have become expensive, time-consuming and open to abuse” (at para. 35);
• An academic observed that “one criticism of the legislation is that the costs consequences may incentivize parties to bring an anti-SLAPP motion” (at para. 36, with citation omitted); and
• A procedure that was intended to avoid costly unmeritorious and protracted litigation has, ironically, developed into a platform for what can sometimes be unmeritorious and protracted motions (at para. 40).
[8] Justice of Appeal Pepall concludes her review by emphasizing that anti-SLAPP motions are intended to be limited in scope. At para. 40, Pepall J.A. says the following: “This is not to say that anti-SLAPP motions should not be brought, but rather the parameters of the ensuing litigation should be limited in scope. Providing a guideline for costs may serve to dampen the enthusiasm, no doubt well intentioned, to over-litigate an anti-SLAPP motion.”
Analysis
a) Entitlement to Costs
i) The Defendant’s Over-litigation of the Motion
[9] The plaintiff commenced his action under the Simplified Procedure: see Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The plaintiff’s decision to litigate his claims against the defendant under the Simplified Procedure reflects a cost-effective, efficient, and proportionate approach to the claims advanced.
[10] The plaintiff’s claim is for general damages of $150,000; aggravated and/or punitive damages of $50,000; and an order requiring the defendant to remove the subject publication(s). The claim is set out in 42 paragraphs over 12 pages. By proceeding under Rule 76, the plaintiff understood that the oral discovery process is limited to three hours per party; a summary trial is conducted over a maximum of five days; and the maximum amount that may be awarded for costs of the action is $50,000 (exclusive of HST).
[11] In response to the statement of claim, the defendant delivered a statement of defence and counterclaim; the document includes 120 paragraphs and is more than 32 pages long. The defendant raises six defences (only four of which were relied on for the purpose of the motion). The defendant’s pleading is approximately three times the size of the statement of claim – both by number of paragraphs and number of pages.
[12] The counterclaim is based in defamation, interference with economic relations, and intentional infliction of mental suffering. In her capacity as a plaintiff by counterclaim, the defendant seeks exactly the same damages (by heading and quantum) as the plaintiff does; a production order related to the documentary discovery process; a removal order related to various publications; and a permanent injunction restraining the plaintiff from further publication of defamatory statements and from further interfering in the defendant’s personal and professional relationships.
[13] The defendant’s approach to her pleading is an example of over-litigating the proceeding.
[14] Another example of the defendant over-litigating, is her approach to the motion materials she delivered. The defendant filed four supporting affidavits in her name (“the Hategan affidavits”). The Hategan affidavits total in excess of 195 paragraphs and 80 pages (the latter, excluding exhibits). The defendant’s motion materials are not limited in scope, and therefore are contrary to the legislative intention for materials on an anti-SLAPP motion: see Park Lawn, at paras. 40-41.
[15] The quality of the Hategan affidavits is addressed at paras. 41-46 of the Ruling. On the return of the motion, the plaintiff raised several concerns about the contents of Hategan affidavit nos. 1, 3, and 4. At paras. 55-56 of the Ruling, I found that portions of those affidavits are inadmissible as evidence or are irrelevant to the issues to be determined on the motion. Rather than request that the offending content of the Hategan affidavits be struck, the plaintiff asked the court to give little or no weight to the offending content: see the Ruling, at paras. 56-57. The plaintiff’s approach to the contents of the Hategan affidavits is cost-effective, efficient, and proportionate.
[16] In her costs submissions, the defendant asks the court to take into account that, when she prepared and delivered her pleading, and when the majority of her motion materials were prepared and delivered, she was a self-represented litigant.
[17] In 2006, the Canadian Judicial Council adopted the “Statement of Principles on Self-represented Litigants and Accused Persons” (“the Statement”). The Preamble to the Statement includes the following passage: “Therefore, judges, court administrators, members of the Bar, legal aid organizations, and government funding agencies each have responsibility to ensure that self-represented persons are provided with fair access to and equal treatment by the court” (emphasis in original).
[18] Section C of the Statement summarizes the “Responsibilities of the Participants in the Justice System”. The governing principle set out therein is, “All participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.” Section C provides guidance for judges, court administrators, members of the bar, and self-represented litigants.
[19] Section C sets out three specific expectations for self-represented persons. The first of those expectations is that self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case.
[20] I find that the defendant failed to familiarize herself with the applicable practices and procedures relevant to bringing a motion, including an anti-SLAPP motion. The defendant’s approach to the materials delivered in support of the motion falls short of the expectations she was required to meet.
[21] By contrast, on the motion, the plaintiff delivered materials limited to one affidavit in his name and an affidavit from his former spouse. The former spouse is mentioned, although not by name, in the subject publication. The two affidavits total approximately 130 paragraphs and 24 pages of substantive content.
[22] The defendant’s over-litigation on paper resulted in a protracted hearing of the motion. The oral submissions on behalf of the defendant consumed more than a full day of the hearing. In making that observation, I do not intend any criticism of the defendant’s counsel. Given the voluminous materials upon which the defendant’s oral submissions were based, it is not surprising that the submissions on behalf of the defendant consumed more than a full day of the hearing.
[23] In summary, the defendant’s over-litigation in the proceeding is a factor that I consider in awarding the plaintiff his costs of the motion.
[24] The defendant submits that the plaintiff’s conduct contributed to the protraction of the motion, such that the plaintiff is not entitled to his costs of the motion. For example, the defendant points to the plaintiff’s request for the motion to be adjourned to permit cross-examination on the Hategan affidavits; the adjournment of the motion; and the plaintiff’s decision thereafter not to proceed with cross-examination of the defendant.
[25] That conduct and the other conduct upon which the defendant relies in her submissions is not sufficient to disentitle the plaintiff from his costs of the motion.
ii) The Potential for a Finding of Malice to be Made
[26] One of the defences upon which the defendant relies is that of “fair comment”. The main principles relating to that defence are considered in the Ruling, at paras. 103-128. The final principle considered is that, even if all the other principles are satisfied, the defence of fair comment can be defeated “if the plaintiff proves that the defendant was [subjectively] motivated by malice”: Ruling, at para. 103, citing Chernesky v. Armadale Publishers Ltd., 1978 20 (SCC), [1979] 1 S.C.R. 1067, at pp. 1099-1100.
[27] In the Ruling, at para. 126, I considered the plaintiff’s submission that, in publishing the article, the defendant “was motivated by her resentment towards and disdain for him because of her beliefs about the role he played in her not being selected as a member of the [varsity fencing] Team and in her receiving fewer hours of training and coaching than did other athletes.”
[28] At para. 127, I made the following finding:
Broadly speaking, in the absence of a fulsome record, it is not possible to resolve the factual disputes as to Ms. Hategan’s motivation. Without cross-examination of Ms. Hategan, it is not possible to assess whether she was motivated by an indirect motive or ulterior purpose. Regardless, I am satisfied that, even if the honest-belief test is met, a reasonable trier could conclude that Ms. Hategan was “actuated by express malice” [citations omitted].
[29] In Teneycke v. McVety, 2024 ONCA 927, the Court of Appeal for Ontario determines both an appeal from an order dismissing an anti-SLAPP motion and a request for leave to appeal the motion judge’s award of costs in favour of the plaintiff. At para. 100, Favreau J.A. concludes that the finding by the motion judge that the defendant “may have been motivated by malice provides support for departing from the presumption that no costs are to be awarded where the court dismisses an anti-SLAPP motion.”
[30] In the Ruling, at para. 125, I list four indicia of the existence of an ulterior motive and, potentially, of malice on the defendant’s part. In the language of Favreau J.A., at para. 100 of Teneycke, “[t]here is no reason in principle why [I as] the motion judge could not take these indicia into consideration in deciding that the circumstances justify an award of costs [in favour of the plaintiff].”
[31] My finding that the defendant may have had an ulterior motive and may have been motivated by malice in publishing the subject article is another factor I consider in awarding the plaintiff costs on the motion.
iii) Prejudice to a Plaintiff in a Simplified Procedure Action
[32] Pursuant to r. 76.12.1, except in limited circumstances, the maximum that a party may recover for costs of a Rule 76 proceeding is $50,000 (exclusive of HST).
[33] I will deal with the issue of the quantum of costs in a later section of this endorsement. I pause to note, however, that in the defendant’s costs outline, submitted at the outset of the hearing in September 2024, the defendant outlined actual costs totaling approximately $47,200 (for fees, exclusive of HST), upon which she intended to base her request for costs if successful on the motion.
[34] In the plaintiff’s September 2024 costs outline, costs on the full indemnity scale are listed at $31,175 and on the partial indemnity scale at $18,705. With the hearing continuing into June 2025, the plaintiff filed an updated costs outline. The full indemnity scale and partial indemnity scale costs listed therein are $47,660 and $28,415, respectively. All four amounts are inclusive of HST. The plaintiff is not seeking any costs associated with disbursements.
[35] If the plaintiff is not awarded costs, he will, on the motion alone, be required to absorb expenses that approach the maximum amount the court may award for costs in a Rule 76 proceeding.
[36] In Park Lawn, Pepall J.A. emphasizes that an anti-SLAPP motion is intended to be limited in scope. In deciding whether to bring an anti-SLAPP motion in a Rule 76 proceeding, the moving party will want to consider (a) the importance of limiting the scope of the motion; (b) whether, even when approached with a limited scope, such a motion is a cost-effective, efficient, and proportionate step (i.e., weighing the time required to hear the motion against the maximum of five days of trial); and (c) the potential costs consequences if the plaintiff is successful in opposing the motion.
[37] At paras. 19 and 20 of his costs submissions, the plaintiff asserts that the defendant’s anti-SLAPP motion (a) was not proportionate; (b) front-loaded the litigation with “extraordinary expense”; and (c) ultimately “undermined the efficiency and economy the Simplified Procedure is designed to promote”. I agree with that submission. An award of costs in the plaintiff’s favour is appropriate in the circumstances. The award will restore the balance between the parties in the proceeding and prevent the plaintiff from bearing an inordinate financial burden.
[38] I turn next to the scale upon which costs are awarded and to fixing the quantum of costs.
The Costs Awarded
[39] The plaintiff requests his costs on the lowest of the three scales upon which costs may be awarded. The plaintiff is entitled to his costs on the partial indemnity scale.
[40] In June 2025, on the third day of the hearing, the plaintiff delivered an updated costs outline. In it, the plaintiff outlines full indemnity costs of $47,660 (for fees and HST). The partial indemnity costs are based on 60 percent of that amount and total $28,415 (for fees and HST). The costs claimed do not include any disbursements. When the HST is removed from the partial indemnity costs claimed, the fees amount to $25,146 ($28,415 / 1.13).
[41] In her written submissions, the defendant does not address the issue of the quantum of costs requested.
[42] I reviewed the plaintiff’s updated costs outline. I am satisfied that the time docketed by both counsel who represent the plaintiff reflects a reasonable division of the work and does not involve duplication of effort. Plaintiff’s counsel shared the responsibility for oral submissions. Given the defendant’s approach to the motion, it was reasonable for the plaintiff to be represented by two counsel, even though the proceeding is under the Simplified Procedure.
[43] Also, I am satisfied that the hourly rates charged and time docketed by both counsel are reasonable.
[44] I question, however, whether the plaintiff is entitled to costs for work done by a non-lawyer employee described in the costs outline as a “law clerk”. The amount claimed for that individual’s work totals $1,152 (including HST). There is no explanation as to that individual’s qualifications. For example, is that individual a trained paralegal or an individual who completed a college-level law clerk course? In addition, there is no explanation as to whether the work done by that individual is of a legal or an administrative nature: see Vriend v. Vriend, 2024 ONSC 4015, at paras. 49-61.
[45] When the amount claimed for the law clerk’s work is eliminated, the partial indemnity costs total $27,263 (including HST). I see no basis for any further reduction of the fees upon which the costs award is based.
Disposition
[46] The defendant shall pay to the plaintiff his costs of the anti-SLAPP motion, on the partial indemnity scale and fixed in the amount of $27,263.
[47] Pursuant to r. 57.03(1)(a), costs awarded following the hearing of a contested motion shall be payable within 30 days of the date of the costs order unless a different order would be more just. In her motion materials, the defendant describes herself as a freelance journalist. Prior to the hearing of the motion, the defendant was self-represented for a significant portion of the proceeding.
[48] Based on (a) the defendant’s status, at times, as a self-represented litigant; and (b) the defendant’s self-employed status, I draw an inference and find that it will be challenging for the defendant to pay $27,263 within 30 days of the date of this endorsement. I extend the deadline by which the costs shall be paid from 30 to 120 days from the date of this endorsement.
Madam Justice Sylvia Corthorn
Date: April 30, 2026
CITATION: ApSimon v. Hategan, 2026 ONSC 2582
COURT FILE NO.: CV-23-91584
DATE: 2026/04/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paul ApSimon, Plaintiff -and- Elisa Hategan, Defendant
BEFORE: Justice S. Corthorn
COUNSEL: Jeff Saikaley and Albert Brunet, for the Plaintiff Joseph Kary, for the Defendant
COSTS ENDORSEMENT
Corthorn J.
Released: April 30, 2026
[^1]: ApSimon v. Hategan, 2026 ONSC 300 (“Ruling”).