Litigants involved in defamation proceedings will be familiar with anti-SLAPP1 applications, a remedy available in
This is because section 137.1(7) of the CJA provides that the moving party on an anti-SLAPP application is entitled to “its costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.”4 The onus lies with the plaintiff to prove that anything less is appropriate.
When ordering costs on anti-SLAPP applications, judges will also refer to the Rule 57.01(1) factors in conjunction with s. 137.1(7) of the CJA. However, notwithstanding the text of s. 137.1(7) of the CJA, a 2023 decision of the
In
Since its release, Park Lawn has not been uniformly followed, even by the
Since the decision in Boyer, the
One judge acknowledged that the principles to be applied when ordering costs on successful anti-SLAPP motions “are unclear” given Park Lawn's mixed treatment.11 To date, more decisions have not applied the Park Lawn guideline than have followed it. Time will tell when and how Park Lawn will be followed.
It is clear, though, that inconsistent treatment of Park Lawn will result in plaintiffs and defendants arguing for significantly disparate costs awards. A common thread across recent anti-SLAPP costs decisions, whether following Park Lawn or not, is the recognition that anti-SLAPP applications are not an invitation to over-lawyer a process that is intended to result in efficiency.
Defendants considering bringing an anti-SLAPP motion should carefully consider the factors that could impact a costs award if successful. Anti-SLAPP proceedings are an effective tool to screen out abusive claims, but only to the extent they do not become “trials in a box”12; if they do, there is a real risk that their costs will not be recoverable.
Footnotes
1. SLAPP is an acronym for “Strategic Lawsuit Against Public Participation”. A SLAPP is regarded as a lawsuit commenced by a plaintiff (often well-funded) that is intended to intimidate/ silence its critics by imposing costly litigation on them.
2. Courts of Justice Act, R.S.O. 1990, c. C.43 s. 137.1(1).
3. See, for example, Boraks v. Hussen, 2023 ONSC 6420 (CanLII) at para 29.
4. Courts of Justice Act, R.S.O. 1990, c. C.43 s. 137.1(1).
5.
6. Park Lawn, para 40
7. Park Lawn, para 39.
8. Boyer v.
9. Teneycke v McVety, 2023 ONSC 3428 (CanLII) at para 11.
10. Boraks v. Hussen, 2023 ONSC 6420 (CanLII); Canadian Frontline Nurses v
11. Canadian Frontline Nurses v
12.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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