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

• Published date: 15 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• 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 the unsuccessful plaintiff. In general, the court can assess multiple of factors to determine whether it should depart from the costs presumption contained under section 137.1(7) of the CJA. Those factors include any determination made under subsections 137.1(4)(a) and (b), any findings about the motivation of the parties, and the manner in which the parties have conducted the proceedings.

The existence or non-existence of the traditional hallmarks of a SLAPP action is also a factor that a court must weigh.

As well, in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, the court, at paragraph 42, described that despite the presumption a court must still "...undertake the same type of analysis that is required when fixing costs in any other context...The quantum must still be fair and reasonable for what was involved in the particular proceeding."

In this case, the plaintiffs had sought to avoid the presumptive full indemnity costs award, contending that in the circumstances only partial indemnity costs should be awarded. The plaintiffs specifically challenged the costs sought by the defendants on the grounds that...