Losing An Anti-SLAPP Motion Can Be Costly For A Plaintiff

• Published date: 15 July 2022
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

The issue of costs is important for parties to take into consideration when litigating a case. Presumptively, winning parties are entitled to recover partial indemnity costs from a losing party. A costs award can be significant. Under anti-SLAPP law, the cost risks faced by a plaintiff are even higher because the presumptive costs award on a successful motion to dismiss a plaintiff's claim under anti-SLAPP law is full indemnity costs.

In Volpe v. Wong-Tam, 2022 ONSC 4071 (CanLII), the court dismissed the plaintiffs' defamation action against a group of politicians and a media defendant under section 137.1 of the Courts of Justice Act (the "CJA"). The politicians were subdivided into four separate groups and were represented respectively by their own lawyers. The media defendant was also represented by its own lawyers. Accordingly, five different sets of costs were sought against the plaintiffs and the total amount awarded was more than $380,000.

Section 137.1(7) establishes the presumptive full indemnity costs award for a successful anti-SLAPP motion. As stated in Levant v. DeMelle, 2022 ONCA 79, the reasons for the presumption are (i) to reduce the adverse impact on constitutional values of unmeritorious litigation, and (ii) to deter the commencement of SLAPP actions.

Although the presumption can be rebutted, the burden to do so rests with...