



COURT OF APPEAL FOR ONTARIO

CITATION: Grist v. TruGrp Inc., 2021 ONCA 374

DATE: 20210601

DOCKET: C68144

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Geoff Grist, Pauline
    Grist and Brook Restoration Ltd.

Plaintiffs (Appellants)

and

TruGrp Inc., Alexander
    McMullen and Christian Brannan

Defendants (Respondents)

Derek Bell and Katelyn Ellins, for the appellants

Damien Buntsma, for the respondents

Heard: in writing

On appeal from the judgment
    of Justice Grant R. Dow of the Superior Court of Justice, dated February 5,
    2020, with reasons at 2020 ONSC 347.

COSTS
    ENDORSEMENT

[1]

On May 11, 2021, we released our decision in which we allowed the appeal,
    set aside the dismissal order below, and restored the action. We invited
    written submissions regarding the costs of appeal. We have now received and
    reviewed those submissions.

[2]

The appellants seek their costs of the appeal in the amount of $85,740.
    They also seek the costs of the original motion in the amount of $36,300.

[3]

The respondents submit that there should be no award of costs for either
    the appeal or the original motion. It is not clear on what basis the
    respondents submit that there should be no costs of the appeal. In terms of the
    original motion, the respondents rely on the presumption in s. 137.1(8) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, which reads:

If a judge does not dismiss a proceeding under this
    section, the responding party is not entitled to costs on the motion, unless
    the judge determines that such an award is appropriate in the circumstances

[4]

There is no basis to deny costs to the appellants with respect to the
    appeal. In particular, there is nothing in the conduct of the appellants that
    would warrant such a result. The appellants were entirely successful. The dismissal
    of their action was set aside and the action was restored. Following the general
    principle that a successful party is entitled to costs, we would award the
    appellants their costs of the appeal.

[5]

The quantum sought by the appellants, however, is excessive. It does not
    align with the general amount for costs that this court awards for appeals of
    this type, length, and complexity. In that regard, the appellants comparison of
    this case to
Inter-Leasing Inc. v. Ontario (Minister of Revenue)
,
2014 ONCA 683 is inapposite. In our view, an award of costs of $25,000 for the
    appeal is a reasonable amount.

[6]

The costs of the original motion attract somewhat different
    considerations, including the possible application of s. 137.1(8). On that
    latter point, the respondents submit that both the motion judge and this court
    agreed that the impugned expressions were, arguably, matters of public
    interest. That submission overstates the view expressed in our reasons. In
    fact, this court found that the motion judge erred in finding the expression
    relates to a matter of public interest (para. 23).

[7]

The principle that should govern the disposition of the costs of the
    original motion was stated by Doherty J.A. in
Veneruzzo v. Storey
,
    2018 ONCA 688, 23 C.P.C. (8th) 352, where he said, at para. 39:

The purpose underlying the costs provisions in s. 137.1
    disappears when the lawsuit has none of the characteristics of a SLAPP, and the
    impugned expression is unrelated to a matter of public interest. In those
    circumstances, it is not the initial lawsuit challenging the expression that
    represents a potential misuse of the litigation process, but rather the s.
    137.1 motion. A costs order denying a successful respondent its costs on a s.
    137.1 motion, even though the lawsuit was not brought for an improper motive
    and the claim did not relate to a matter of public interest, could be seen as
    encouraging defendants to bring meritless s. 137.1 motions.

[8]

The appellants are entitled to their costs of the original motion. The
    amount sought of $36,300 is reasonable in light of what was involved. It also compares
    favourably to the amount that the motions judge awarded to the respondents of
    $70,000, recognizing that that amount was on a full indemnity basis.

[9]

In the result, we award the appellants their costs in responding to the
    motion fixed in the amount of $36,300, inclusive of disbursements and HST. We
    also award the appellants their costs of the appeal fixed in the amount of $25,000,
    inclusive of disbursements and HST.

P. Lauwers J.A.

B.W. Miller J.A.

I.V.B. Nordheimer
    J.A.


