Further, the amount is significant enough to serve as a deterrent against plaintiffs resorting to the courts to shut down public debate. (see Niagara Peninsula, at para. 12) I find this to be a fair, reasonable and proportionate award of costs for a motion in a proceeding that is continuing and in which it is reasonable to infer that some of the fruits of the work done will be of use to the plaintiff in the pursuit of her action and were not exclusively incurred in relation to the dismissed counterclaim.
In Joshi v. Allstate Insurance Company of Canada,( 2019 ONSC 5934) Justice Himmel set the costs to the plaintiff in an Anti-SLAPP motion brought on by Allstate ‘s counterclaim for defamation.
This is what the Judge had to say about her reasoning :
“I will begin by acknowledging that very significant amounts of time have been spent by the lawyers on both sides and that this was justified because the legislation is relatively new. The law remains in flux with the Court of Appeal having released recent decisions for which leave to appeal to the Supreme Court of Canada has been granted, and this is the first identified example of an Anti-SLAPP motion under s. 137.1 involving a counterclaim.”
The Plaintiff asked for $126,499. The Defendant said that there full indemnity was “only” $95,173.
The judge awarded the Plaintiff $95,173, exactly what the Defendant paid their own lawyers.
This is what she said :
I find that the appropriate amount of costs to award to Ms. Joshi in this case is $95,173.26. This is an amount that Allstate could reasonably have expected to pay as the losing party since it is the full indemnity amount of costs charged by Allstate’s counsel. While below the full and substantial indemnity costs claimed by plaintiff’s counsel, it is in the range of what was asked for and is a significant amount of costs that is consistent with one of the identified purposes of s. 137.1(7), which is to ensure that plaintiff’s counsel, who may be working on contingency, are compensated fairly for their work as an incentive for them to represent parties who might otherwise not have sufficient means to retain counsel. (see Anti-SLAPP Advisory Panel October 28, 2010 Report to the AG).
Andrew Monkhouse was the lawyer for the Plaintiff, Seann McAleese was the lawyer for Allstate.