



COURT OF APPEAL FOR ONTARIO

CITATION: Blair v. Ford, 2021 ONCA 841

DATE: 20211125

DOCKET: C68965

Benotto, Miller and Sossin JJ.A.

BETWEEN

R.W. (Brad) Blair

Plaintiff (Appellant)

and

Premier Doug Ford

Defendant (Respondent)

Julian N. Falconer, Ryder Gilliland and
    Asha James, for the appellant

Gavin Tighe and Alex Melfi, for the
    respondent

Heard: October 29, 2021 by video conference

On appeal from the orders of Justice
    Edward Belobaba of the Superior Court of Justice, dated November 23, 2020,
    November 30, 2020 and December 15, 2020.

Benotto J.A.:

OVERVIEW

[1]

In November 2018, Premier Doug Ford (Ford) announced that an OPP
    Commissioner had been appointed. Interim Commissioner Brad Blair (Blair) was
    not chosen. The new Commissioner was a friend of the Ford family. Blair wrote a
    scathing letter on official police letterhead to the provincial Ombudsman alleging
    improprieties in the selection process and requesting an independent review. The
    letter was made public.

[2]

When reporters questioned Ford about the letter, Ford suggested that
    Blair had breached the
Police Services Act
R.S.O. 1990, c. P.15 (
PSA
)
. Blair sued Ford for defamation.
    Ford brought a motion under the provision of s.137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43. Section
    137.1 was designed to address lawsuits against individuals who speak out about
    an issue of public interest. This type of motion is often referred to as an anti-SLAPP
    motion. SLAPP is the acronym for
Strategic Lawsuit Against
    Public Participation.

[3]

The action against Ford was dismissed. Blair now appeals. Ford
    cross-appeals the motion judges determination with respect to costs.

[4]

I would dismiss the appeal and allow the cross-appeal in part.

BACKGROUND

[5]

The background facts are not in dispute.

[6]

On September 5, 2018, the then OPP Commissioner
    announced his retirement effective November 2, 2018. The appellant Brad Blair
    became the Interim Commissioner. A job competition for the permanent position was
    publicly posted, seeking applications from police officers at a rank of Deputy
    Police Chief or higher or Assistant Commissioner or higher in a major police
    service. Within days, the job requirements were amended to remove the minimum
    rank requirement. On November 29, 2018, the province announced who the new OPP
    Commissioner would be. The new appointee was known to be a friend of Premier
    Ford. The appointee would not have qualified for the job but for the amendment
    to the qualifications.

[7]

On December 11, 2018, Blair sent a nine-page
    letter to the provincial Ombudsman and released a copy to the public. The
    letter was sent on OPP letterhead and alleged several improprieties in the
    appointment process of the OPP Commissioner as well as general misfeasance by
    Ford.

[8]

The Ministry of the Attorney General (MAG)
    briefed Ford. The Briefing Note concluded that aspects of Blairs letter could
    arguably constitute breaches of the
PSA

Code of Conduct
which prohibits police officers from communicating to the
    media without proper authority and from disclosing confidential information.
The Briefing Note was subject to several qualifications and
    unknowns, including whether Blair acted in good faith and whether he had proper
    authority to write the letter.

[9]

Ford received the Briefing Note and was made
    aware of the conclusion some time before December 18, 2018. Within a few days, a
    retired police officer (unrelated to this action) also filed a complaint with
    the Ontario Independent Police Review Director. The officer accused Blair of
    breaching the
PSA
on substantially the same grounds as those listed in the MAG
    Briefing Note.

[10]

On three occasions, reporters questioned Ford
    about the letter from Blair. Ford said the following:

·

December 18, 2018:

You know my friends this is gonna move
    forward. I could sit here and give you all the items that weren't accurate in
    that Letter and there's endless ones. I could give you a list of all thethe
    Police Act that was broken throughout that whole Letter, but none of you want
    to report on that.

So, what I'm gonna do, I'm taking the high
    road. I'm gonna take the high road and let the review go through.

·

January 14, 2019:

Well, I am not surprised that Global has asked
    me at an automotive show like this. But anyways run through the proper process
    and [the family friend] was the person they choose, and I was thoroughly
    disappointment (sic) with uh Brad Blair uh you know the way he has been going
    on. Breaking the Police Act numerous times is disturbing to say the least.

·

January 14, 2019:

It's unfortunate
    that one person has sour grapes, and it is very disappointing actually, and
    reacting the way he's been reacting and breaking the Police Act numerous times.
Someone needs to hold him accountable
I can assure
    you of that.

[11]

Blair was fired from the OPP in March 2019 for
    reasons unrelated to Fords statements. In a separate action, he is suing Ford
    for approximately $15 million.

[12]

Ultimately, a different person  not the
    family friend  was appointed as OPP Commissioner.

[13]

Blair sued for defamation on the basis of Fords
    three statements. Ford brought a motion to dismiss the action pursuant to s. 137.1.

[14]

There was extensive evidence filed on the motion
    with resulting cross-examinations and demands for production. Significant legal
    fees were incurred. Blair brought preliminary motions relating to Fords refusals
    to answer questions and requesting more time for further examinations.

[15]

The motion judge dismissed the preliminary
    motions on November 23 and 30, 2020. He heard the s. 137.1 motion on December 4,
    2020 and dismissed the action. The motion judge deviated from the presumptive
    award of full indemnity costs and awarded Ford partial indemnity costs based on
    the motion judges own calculations. He also ordered that half of the costs be
    paid immediately with the other half payable when Blairs separate action was
    settled or disposed of.

[16]

Blair appeals the preliminary motions and the
    main motion. Ford cross-appeals the order for costs on the main motion.

THE NATURE OF THE S.137.1 MOTION

[17]

Section 137.1 was meant to address SLAPP
    lawsuits. These lawsuits are described as follows in
1704604 Ontario Ltd. v.
Pointes Protection
Association
, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 2:

SLAPPs are generally
    initiated by plaintiffs who engage the court process and use litigation not as
    a direct tool to vindicate a
bona fide
claim, but as an indirect tool to limit the expression of others. In a
    SLAPP, the claim is merely a façade for the plaintiff, who is in fact
    manipulating the judicial system in order to limit the effectiveness of the
    opposing partys speech and deter that party, or other potential interested
    parties, from participating in public affairs.

[18]

Section 137.1 allows a defendant to move at an
    early stage to dismiss such a lawsuit. A motion under s. 137.1 to dismiss such
    a lawsuit involves a shifting burden and a framework that was set out in
Pointes
    Protection
, at para. 18:

In brief, s. 137.1
    places an initial burden on the moving party  the defendant in a lawsuit  to
    satisfy the judge that the proceeding arises from an expression relating to a
    matter of public interest. Once that showing is made, the burden shifts to the
    responding party  the plaintiff  to satisfy the motion judge that there are
    grounds to believe the proceeding has substantial merit and the moving party
has no valid defence
, and that the
public
    interest in permitting the proceeding to continue outweighs the public interest
    in protecting the expression
. If the responding
    party cannot satisfy the motion judge that it has met its burden, then the s. 137.1
    motion will be granted, and the underlying proceeding will be consequently
    dismissed. It is important to recognize that the final weighing exercise under
    s. 137.1(4)(b) is the fundamental crux of the analysis  legislative debates
    emphasized balancing and proportionality between the public interest in
    allowing meritorious lawsuits to proceed and the public interest in protecting
    expression on matters of public interest. Section 137.1(4)(b) is intended to
    optimize that balance. [Emphasis added.]

[19]

Often a SLAPP is used to protect speech and combat
    a power imbalance sometimes present in defamation cases, where the plaintiff has
    significant resources and the defendant is vulnerable.

DECISION OF THE
    MOTION JUDGE

[20]

The motion judge recognized that although the
    action did not possess the classic hallmarks of a SLAPP, the provisions of s.
    137.1 of the
Courts of Justice Act
applied because the expression
    involved public interest.

[21]

Following the provisions in the
Act
, he
    dismissed the defamation action because:

(i)

Ford had a valid
    defence to the action; and

(ii)

the public interest in
    protecting Fords expression outweighed the public interest in allowing the
    action to continue.

[22]

In considering valid defence, the motion judge
    concluded that Blair did not show that the defence of fair comment had no real
    prospect of success. He also found that the expressions by Ford were devoid of
    malice. When he weighed the public interests, the motion judge concluded that
    Blair did not suffer harm so serious that the public interest in permitting his
    defamation action outweighed the public interest in protecting Fords
    expression. He also concluded that there would be limited public interest in
    allowing the defamation action to continue when Blair was simultaneously
    pursuing a different action seeking recovery for essentially the same harm. On
    the other hand, there was significant public interest in hearing Fords
    comments about Blairs letter. The weighing of public interests favoured Ford.

[23]

Ford sought a full indemnity costs award of
    $578,194.86. The motion judge concluded the appropriate scale was partial
    indemnity. Fords partial indemnity costs were $357,250.48. The motion judge
    reduced these costs to $320,000, and then further reduced the costs to
    $130,000, with $65,000 to be payable immediately and $65,000 payable when the
    plaintiffs wrongful dismissal action settled or was finally adjudicated.

ISSUES

[24]

The following issues are raised by the appeals:

(i)

Does this court have
    jurisdiction to hear the appeal from the preliminary orders?

(ii)

Did the motion judge
    err in his consideration of s. 137.1?

(iii)

Did the motion judge
    err in his determination with respect to costs?

ANALYSIS

(1)

Does this court have jurisdiction to hear the
    appeal from the preliminary orders?

[25]

Before hearing oral submissions with respect to
    the appeal, the parties were cautioned by the Senior Legal Officer that this
    court may not have jurisdiction over the preliminary orders. The parties agreed
    to file written submissions with respect to jurisdiction. The court reviewed
    the written submissions and heard oral submissions on the matter. The parties
    were advised during the hearing that, for reasons to follow, this court lacks
    jurisdiction with respect to the preliminary orders.

[26]

The preliminary orders were with respect to
    refusals to answer questions and provide certain legal documents (November 23,
    2020) and with respect to further cross-examination (November 30, 2020). They
    are interlocutory orders. An appeal from an interlocutory order of a judge lies
    to the Divisional Court with leave pursuant to s. 19(1)(b) of the
Courts of
    Justice Act
. Leave must be sought within 15 days pursuant to r. 61.03(1)(b)
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. Leave was not
    sought.

[27]

The appellant submits that the interlocutory
    orders are interrelated with the appeal and that leave would inevitably have
    been granted. He argues that this court should therefore assume jurisdiction.
    This argument was rejected for two reasons.

[28]

First, this proposal has been repeatedly
    rejected by this court. The court said the following in
Mader v. South Easthope Mutual Insurance
    Company
, 2014 ONCA 714, 123 O.R. (3d) 120, at para.
    55:

Only if leave is
    obtained from the Divisional Court can the appeal be combined with an appeal
    that lies to Court of Appeal in the same proceeding under s. 6(2) of the
Courts
    of Justice Act
:
Cole v. Hamilton (City)
(2002),2002 CanLII 49359
    (ON CA), 60 O.R. (3d) 284, [2002] O.J. No. 4688 (C.A.), at paras. 11, 15.

And said the following in
Brown v. Hanley,
2019 ONCA 395, at para. 19:

In general, where
    an order has both interlocutory and final portions, the appeal lies to this
    court only from the final portion of the order:
Cole v. Hamilton (City)
(2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at para. 9. Leave
    to appeal from the interlocutory portion must be obtained from the Divisional
    Court, at which point a party may move to have the appeals heard together in
    this court:
Azzeh v. Legendre,
2017 ONCA 385, 135 O.R. (3d) 721, at
    para. 25;
Courts of Justice Act,
R.S.O. 1990, c. C.43, ss. 6 and 19(1)(b).

[29]

Second, the preliminary orders were dated
    November 23 and 30, 2020. The s. 137.1 motion was heard on December 4, 2020.
    Had the interim relief sought been integral to the main motion, the appellant
    could have  but did not  ask for an adjournment so that leave to the
    Divisional Court could be sought. It is not appropriate to await the outcome of
    the motion to then assert that the issue is intrinsically interrelated.

[30]

For these reasons, the appeals from the
    preliminary orders were quashed.

(2)

Did the motion judge err in his consideration of
    s. 137.1?

[31]

The parties agreed that the first threshold 
    that the expression relates to a matter of public interest  was met. The
    burden then shifted to Blair to satisfy the motion judge that there are grounds
    to believe the proceeding has substantial merit and Ford has no valid defence,
    and that
the public interest in permitting the
    proceeding to continue outweighs the public interest in protecting the
    expression.

[32]

Blair submits that the motion judge erred by:

(i)

Ignoring the indicia of
    a SLAPP in his s. 137.1 analysis.

(ii)

Using the wrong test for no valid defence
and then misconstruing the defence of
    fair comment.

(iii)

Incorrectly finding
    that the public interest in permitting the proceeding to continue outweighs the
    public interest in protecting the expression.

[33]

I turn to these issues now.

(1)

Indicia of a SLAPP

[34]

The motion judge recognized that the action was not,
    strictly speaking, a SLAPP suit because Blair was not a large and powerful
    organization using litigation to intimidate and silence a vulnerable opponent.
    He determined that, nonetheless, because Fords expressions relate to public
    interest, s. 137.1 was engaged.

[35]

The appellant submits that the motion judges
    overall approach to s. 137.1 was flawed because, though the motion judge found
    that the appellants claim did not have the indicia of a SLAPP, he did not use
    this finding in his analysis of s. 137.1. In my view, the appellant is implicitly
    submitting that s. 137.1 did not apply at all. But he further says that even if
    it did apply, the fact that it did not possess all the indicia of a SLAPP
    should have been considered in the analysis by the motion judge.

[36]

I disagree with both propositions.

[37]

The fact that the usual indicia of a SLAPP were
    not present does not mean that s. 137.1 does not apply. In this regard the
    appellant is importing a requirement that does not exist in the statute or in the
    jurisprudence. The Supreme Court has clarified that s. 137.1 should be broadly
    construed to apply to proceedings that arise from expression. As the motion
    judge articulated, the legislature specifically avoided reference to the term SLAPP
    in the provision. In
Pointes
    Protection
,

at para. 24 the Supreme Court specified the following:

What is crucial is
    that many different types of proceedings can arise from an expression, and the
    legislative background of s. 137.1 indicates that a broad and liberal
    interpretation is warranted at the s. 137.1(3) stage of the framework. This
    means that proceedings arising from an expression are not limited to those
directly
concerned with expression, such as defamation suits. A good example of a type
    of proceeding that is not a defamation suit, but that nonetheless arises from
    an expression and falls within the ambit of s. 137.1(3), is the underlying
    proceeding here, which is a breach of contract claim premised on an expression
    made by the defendant
Indeed, the [Anti-SLAPP Advisory
    Panel: Report to the Attorney General] explicitly discouraged the use of the
    term SLAPP in the final legislation in order to avoid narrowly confining the
    s. 137.1 procedure  and the legislature obliged
. [Emphasis added.]

[38]

Nor do I accept the appellants submission that
    the indicia of a SLAPP should have been specifically addressed at each step in
    the judges analysis. This too has been clarified in
Pointes
Protection
, at paras. 78-79:

I note that in
Platnick
    v. Bent
, 2018 ONCA 687, 426 D.L.R. (4th) 60
, at para. 99, Doherty J.A.
    made reference to recognized indicia of a SLAPP suit (emphasis omitted). He
    recognized four indicia in particular: (1) a history of the plaintiff using
    litigation or the threat of litigation to silence critics; (2) a financial or
    power imbalance that strongly favours the plaintiff; (3) a punitive or
    retributory purpose animating the plaintiffs bringing of the claim; and (4)
    minimal or nominal damages suffered by the plaintiff (para.99). Doherty J.A.
    found that where these indicia are present, the weighing exercise favours
    granting the s. 137.1 motion and dismissing the underlying proceeding

I am of the view
    that these four indicia may bear on the analysis
only to the extent
that
    they are tethered to the text of the statute and the considerations explicitly
    contemplated by the legislature. This is because the s. 137.1(4)(b) stage
    is fundamentally a public interest weighing exercise and not simply an inquiry
    into the hallmarks of a SLAPP. Therefore, for this reason, the only factors
    that might be relevant in guiding that weighing exercise are those tethered to
    the text of s. 137.1(4)(b), which calls for a consideration of: the harm
    suffered or potentially suffered by the plaintiff, the corresponding public
    interest in allowing the underlying proceeding to continue, and the public
    interest in protecting the underlying expression. [Emphasis in original.]

[39]

Pointes Protection
requires the motion judge to scrutinize what is really going on in
    the case before them. The reasons of the motion judge read as a whole indicate
    that he did just that. The motion judges comment that the defamation action
    is not, strictly speaking a SLAPP because the plaintiff is not a large and
    powerful entity that is using litigation to intimidate a smaller and more
    vulnerable opponent confirm that he was alive to any perceived power imbalance
    that the appellant references.

[40]

I would not give effect to this ground of
    appeal.

(2)

Test for no valid defence and consideration of
    fair comment

[41]

Blair had the burden to show that the defence
    put forward by Ford had no real prospect of success: see
Pointes Protection
,
at paras. 50, 60. The motion judge described a real prospect of
    success as meaning a solid prospect of success and less than a likelihood
    of success but more than merely some chance of success or even a reasonable
    prospect of success.

[42]

The appellant submits that this is the wrong
    test. He says it raised the burden on him and that he should have only been
    required to prove that a reasonable trier of fact could reject the defences
    advanced by Ford. The appellant relied on
Bondfield Construction Company Limited v. The Globe
    and Mail Inc.,
2019 ONCA 166, 144 O.R. (3d) 291 to
    support this argument.

[43]

The test established by this court in
Bondfield
was refined in
Pointes
    Protection
. The perspective to apply is not that
    of a reasonable trier at a subsequent trial, but rather the subjective
    perspective of the motion judge.
Pointes Protection
clarifies the
    following at para. 41:

Importantly, the
    assessment under s. 137.1(4)(a) must be made from the motion judges
    perspective. With respect, I am of the view that the Court of Appeal for
    Ontario incorrectly removed the motion judges assessment of the evidence from
    the equation in favour of a theoretical assessment by a reasonable trier 
    The clear wording of s. 137.1(4) requires the judge hearing the motion to
    determine if there exist grounds to believe. Making the application of the
    standard depend on a reasonable trier improperly excludes the express
    discretion and authority conferred on the motion judge by the text of the
    provision. The test is thus a subjective one, as it depends on the motion
    judges determination.

[44]

I do not agree that the motion judge used the
    wrong test or raised the bar for Blair with respect to valid defence. While the
    motion judge did not track the wording in
Pointes Protection,
his
    analysis makes it clear that he found that Blair did not demonstrate that
    Fords defence of fair comment had no real prospect of success.

[45]

There are five elements to the defence
    of fair comment:

(i)

the comment must be on
    a matter of public interest;

(ii)

the comment must be
    based on fact;

(iii)

the comment, although
    it can include inferences of fact, must be recognizable as comment;

(iv)

the comment must
    be one that any person could honestly make on the proved facts; and

(v)

the comment was not
    actuated by express malice.


[46]

The appellant submits that the motion judge
    erred because: (i) he relied on the compliant by made by another officer; (ii) the
    statements were not recognizable as comment; and (iii) the statements were
    demonstrative of malice.

[47]

The motion judge concluded that the comments
    were ones that any person could have made on the facts. He relied on the complaint
    made by a retired police officer based on the same conduct by Blair. The
    appellant submits that this was an error because this complaint post-dated the
    impugned comments by Ford. This objection by the appellant is of no moment in
    light of the motion judges findings based on Fords evidence that he had an
    honest belief in the truth of his statements.

[48]

Blair submits that a reasonable member of the
    public would infer that Blair had been tried and convicted of breaking the
PSA
.

[49]

The motion judge concluded that no reasonable
    journalist or member of the public would have taken the defendant's statements
    that the plaintiff broke the Police Act as meaning that the plaintiff had
    already been tried and convicted of breaking this law
.
This was his
    finding to make and it is entitled to deference.

[50]

In any event, Blairs submission in this regard
    is at odds with Fords statements that: I'm gonna take the high road and let
    the review go through (December 18) and Someone needs to hold him [Blair]
    accountable (January 18). Both these statements make clear that a formal legal
    process had not yet taken place.

[51]

With respect to malice, the appellant submits
    that Ford was reckless in relying on the MAG Briefing Note, which was
    qualified. Again, I do not agree.

[52]

The motion judge accepted Fords evidence that
    he reasonably relied on the MAG Briefing Note when he made the impugned public
    statements and that he honestly believed that Blair had breached the
PSA
.

[53]

It must also be remembered that the Briefing Note
    also said that Blairs letter clearly disclosed confidential information
    related to the OPP, including most notably the following:

(i)

details about the
    process by which Commissioner was selected;

(ii)

details about matters
    related to OPP security arrangements for the Premier; and

(iii)

that these disclosures
    could be construed as a breach of section 2(1)(e) of the
PSA Code of Conduct
if they were not made with proper authority.

[54]

Finally, the motion judge had the opportunity to
    view the videos of the three media events. He concluded that Ford spoke calmly,
    without emotion and without evidence of any retaliation or reprisal. These
    conclusions are entitled to deference.

[55]

I would not give effect to these grounds of
    appeal.

(3)

Weighing the two public interests

[56]

While the above conclusions were sufficient to
    dismiss the action, the motion judge proceeded with the last step of s.
    137.1(4)(b) when he balanced the public interests. I will do the same.

[57]

Blair was required to satisfy the court that the
    harm he suffered as a result of Fords expression is sufficiently serious that
    the public interest in permitting the action to continue outweighs the public
    interest in protecting that expression.

[58]

In
Pointes Protection
, at para. 68 the Supreme
    Court noted that before the weighing exercise begins, the plaintiff must show
    two things:

(i)

the existence of some harm; and

(ii)

that the harm was caused by the defendant's
    expression.

[59]

The appellant submits that the motion judge
    erred by finding no evidence of either harm or causation. He claims the motion
    judge ignored his affidavit evidence outlining the emotional harm and the
    damage to his reputation. The motion judge found only bald assertions of
    emotional or psychological harm, and found no evidence of any resulting
    financial or economic harm. There is no evidence that the plaintiff was
    disciplined by the OPP for breaching the
PSA
, that he was suspended
    from his duties because of these allegations, or that he lost any pay. The
    claim of a lost job opportunity because of the defendants
PSA
allegations
    is also without credible evidentiary support.

[60]

The motion judge concluded that, to the extent
    that there was harm, it is captured by the multi-million-dollar lawsuit that
    Blair initiated. A draft statement of claim was before the motion judge. The
    statement of claim has now been issued. Although the motion judge referred to
    it as a wrongful dismissal action, the issued claim includes damages for
    misfeasance in public office, negligence, negligent misrepresentation,
    intentional infliction of mental suffering,
Charter
breaches, and
    damages of approximately $15 million including special, punitive, and exemplary
    damages.

[61]

The motion judge said the following:

there is little
    to no public interest in permitting the defamation action to continue when the
    alleged loss or damage is the subject of another action that will shortly be
    proceeding in this court.

[62]

Balanced against the importance of freedom of
    expression, the matters raised are of considerable public interest that justify
    expression and debate in the public forum. The motion judges finding  that
    the harm suffered as a result of Fords expression is not sufficiently serious
    that the public interest in permitting the action to continue is outweighed by
    the public interest in protecting that expression  is a discretionary finding
    entitled to deference.

[63]

I would not give effect to this ground of
    appeal.

(3)

The cross-appeal: did the motion judge err in
    his determination with respect to costs?

[64]

Ford seeks leave to appeal the motion judges
    determination with respect to costs. He submits the following:

(i)

he was awarded significantly less than the presumptive
    award of full indemnification set out in s. 137.1(7); and

(ii)

the costs order which tethered half of his recovery to
    another action was in error.

[65]

Section 137.1(7) states the following:

If a
    judge dismisses a proceeding under this section, the moving party is entitled
    to 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.

[66]

Ford claimed full indemnity costs of
    $578,194.86.

[67]

In choosing to reject full indemnity costs, the
    motion judge said the following:

In my opinion, a full indemnity costs award is
    not appropriate on the facts herein because, as I made clear in my reasons for
    decision, the plaintiffs defamation action was not a SLAPP suit. I found as
    follows:

The plaintiff is not a large and powerful
    entity that is using litigation to intimidate a smaller and more vulnerable
    opponent and silence their public expression.



Mr. Blair is not a
    powerful entity that is suing the Premier to gag his public expression but a
    genuinely aggrieved individual trying to vindicate what he reasonably believes
    is a
bona fide
defamation claim. Nonetheless, because the impugned
    public statements made by the defendant relate to a matter of public interest,
    the s. 137.1 analysis is engaged.

[68]

Ford claimed partial indemnity costs of
    $357,250.48. The motion judge adjusted this and determined that his partial
    indemnity costs were $320,000. (He found Blairs partial indemnity costs to be
    $192,000).

[69]

The motion judge gave detailed reasons,
    including his repeated admonishments to counsel that much of the evidence being
    advanced related to the merits of the defamation action and allegations that
    were not necessary for the motion. The motion judge described it as an
    unnecessary deep dive into the evidence that greatly increased costs.
    Applying the considerations of r. 57.01 of the
Rules of Civil Procedure
,
    he concluded that the appropriate amount for Fords partial indemnity costs was
    $130,000.

[70]

I see no error in the motion judges determination
    which is entitled to a high degree of deference. I would not give effect to
    this aspect of the cross-appeal.

[71]

The order tethering the costs to another action
    is different. The motion judge gave no reasons for the order requiring half of
    the costs to be paid immediately and the other half to be paid when Blairs
    wrongful dismissal action is settled or finally adjudicated. This condition
    was added by the motion judge in the last substantive paragraph of his reasons.
    The parties had no opportunity to address this extraordinary order. Recall that
    the so called wrongful dismissal action had not even been commenced at the
    time of the reasons. I would grant the cross-appeal on this basis and amend the
    costs order to provide that the entire $130,000 award be payable in full as of
    the date of the order which is February 1, 2021.

CONCLUSION

[72]

For these reasons the appeals from the
    preliminary orders were quashed. I would dismiss the appeal with respect to
    dismissal of the action and would allow the cross-appeal in part. I would grant
    leave to appeal the costs, dismiss the appeal with respect to the quantum of
    costs, and allow the appeal with respect to the timing of the payment.

[73]

In accordance with the agreement between
    counsel, the respondent is entitled to his costs of the appeal fixed at $30,000
    inclusive of disbursement and taxes, and there will be no costs of the
    cross-appeal.

Released: November 25, 2021 MLB

M.L.
    Benotto J.A.

I
    agree B.W. Miller J.A.

I
    agree Sossin J.A.


