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Torts - SLAPP - Costs (2). Solmar Inc. v. Hall
In Solmar Inc. v. Hall (Ont CA, 2026) the Ontario Court of Appeal considered (and partially-allowed) a defendant's SLAPP-defamation appeal, here brought against a motion order that "dismissed the anti-SLAPP motion and allowed the defamation action to proceed".
Here the court considers SLAPP costs, both on the motion and the appeal [under CJA s.137.1(7-8)]:[148] Section 137.1(8) of the Courts of Justice Act presumes that a successful responding party to an anti-SLAPP motion (here, Mr. Marotta) is not entitled to costs:(8) 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. [Emphasis added.] [149] In this case, the motion judge departed from the presumption on the basis of malice and ordered Mr Hall to pay the plaintiffs costs on a substantial indemnity basis in the amount of $89,000.
[150] The appellant submits that it was “plainly wrong” for the motion judge to depart from the presumption against costs since a finding of malice is insufficient to justify the departure from the presumption, especially since this case bears many of the traditional indicia of a SLAPP suit. In addition, the motion judge’s finding of malice was unsubstantiated. Even if there were grounds to depart from the presumption, the motion judge erred in awarding substantial indemnity costs.
[151] Costs awards are highly discretionary and entitled to deference.
[152] A finding that the expression “may have been motivated by malice” is sufficient to rebut the presumption: Teneycke v. McVety, 2024 ONCA 927, 504 D.L.R. (4th) 313, at paras. 98-100. As I have found, there is a basis in the record to find malice, at least on the basis of recklessness and desire to harm.
[153] The motion judge awarded costs on a substantial indemnity scale but provided no reasons for awarding costs on that scale. Substantial indemnity costs are warranted where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties in the litigation: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at para. 251. They are the exception not the rule.
[154] Mr. Marotta submits that the appellant’s conduct was unreasonable since he threatened to bring a s. 137.1 motion before the statement of claim was filed and he took the unreasonable position on the motion that he was just asking rhetorical questions.
[155] In my view, such conduct does not amount to “reprehensible, scandalous or outrageous” conduct sufficient to ground a substantial indemnity costs award.
[156] Accordingly, I would grant leave and substitute a costs award of $40,000 representing costs on a partial indemnity basis.
VI. CONCLUSION
[157] I would grant leave to appeal costs, set aside the costs award and substitute an award of $40,000 on a partial indemnity scale inclusive of disbursements and HST. I would otherwise dismiss the appeal. I would order the appellant to pay the respondent costs of the appeal on a partial indemnity scale in the amount $12,500 inclusive of disbursements and HST. Although the parties agreed to costs in the amount of $25,000, the appeal had some merit and, indeed, the appellant identified some errors and succeeded on his costs appeal. In my view, while the appeal is dismissed, the appellant’s position should be reflected in the costs award. . Sheridan Retail Inc. v. Roy
In Sheridan Retail Inc. v. Roy (Ont CA, 2026) the Ontario Court of Appeal dismisses a plaintiff's appeal (though allowing the costs appeal), here brought against a successful defendant's CJA s.137.1(3) SLAPP dismissal motion regarding an action that was first advanced in defamation and some economic torts - but then re-focussed to center on a trespass that the defendant engaged in to gather photo evidence of their allegations.
Here the court considers the costs provisions of CJA s.137.1(7-8):5. SHOULD LEAVE TO APPEAL THE COSTS AWARD BE GRANTED, AND IF SO, DID THE MOTION JUDGE ACT IN A PROCEDURALLY UNFAIR MANNER IN DECIDING TO AWARD FULL INDEMNITY COSTS?
[106] After a recess during the submissions of SRI’s motion counsel, the motion judge announced that she would be reserving her decision and would “deal with costs … at a different point.” When she released her decision on the merits of the motion prior to receiving costs submissions, she ruled that she was granting costs in an amount to be determined later, on a full indemnity basis. When the motion judge ultimately awarded costs, she did so on a full indemnity basis in the amount of $156,394.57.
[107] Pursuant to s. 137.1(7), costs are presumptively to be awarded on a full indemnity scale, but this is subject to judicial discretion: see Levant v. DeMelle, 2022 ONCA 79, 82 C.C.L.T., at para. 76, leave to appeal refused, [2022] S.C.C.A. No. 87 (Al Jazeera Media Network), and [2022] S.C.C.A. No. 88 (DeMelle). Determining that costs would be awarded on a full indemnity scale before inviting submissions is procedurally unfair: Afolabi v. Law Society of Ontario, 2025 ONCA 257, at para. 109, motion to reconsider refused, 2025 ONCA 464, leave to appeal to S.C.C. refused, 41833 (December 11, 2025). This remains true, in my view, even where full indemnity costs are the presumptive scale.
[108] I would therefore grant leave to appeal the costs award. I would allow that appeal and set aside the costs order. After considering the relevant principles and the submissions made, I would award costs in the proceedings below on a full indemnity basis, consistent with the presumption in s. 137.1(7), but substitute an award in the amount of $75,000. This court noted in Park Lawn Corporation, at para. 39, that costs on anti-SLAPP motions generally should not exceed $50,000 on a full indemnity basis. This case warrants a higher than usual cost award given the factual findings made by the motion judge in her costs decision and when awarding damages, but the costs award that was ordered below, of $156,394.54, is three times the general full indemnity limit encouraged in Park Lawn Corporation. Anti-SLAPP motions are meant to provide a summary and less expensive method of preventing abusive actions. They should not be conducted like trials and accumulate trial-level fees. I understand that during cost submissions below, SRI asked the motion judge to reduce her full indemnity cost award to $100,000, but in light of Park Lawn Corporation, I find that even that amount to be excessive in this case.
G. CONCLUSION
[109] I would dismiss the substantive appeal, affirming both the decision to dismiss the proceedings and the damages award of $25,000.
[110] I would grant SRI leave to appeal the costs award, allow the appeal, set aside the costs award, and substitute a costs award of $75,000, inclusive of applicable taxes and disbursements.
[111] Mr. Roy seeks costs of this appeal on a full indemnity basis. The presumption of full indemnity costs in s. 137.1(7) does not apply on appeals of anti-SLAPP motions; costs are in the discretion of the court: The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533, at para. 9; UM Financial Inc. v. Butler, 2025 ONCA 844, at para. 7. Mr. Roy’s claimed costs almost doubled the costs incurred by SRI. In the circumstances of this case, I would award costs of the appeal to Mr. Roy in the amount of $20,000, inclusive of applicable taxes and disbursements. . Rajic v. MacDonald
In Rajic v. MacDonald (Ont CA, 2026) the Ontario Court of Appeal allowed a SLAPP appeal, here where the defamation defendant at motion "had not met the threshold requirement in s.137.1(3)" that the issue was one of "public interest"."
Here the court considers a SLAPP CJA s.137.1(7) costs issue:[20] Relying on s. 137.1(7) of the Courts of Justice Act, Ms. MacDonald argued that she should be awarded her costs of the appeal on an elevated basis. However, this court has held that s. 137.1(7) does not apply on appeal, and that the normal principles governing costs on appeal should be employed: see e.g., The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533, at para. 9; UM Financial Inc. v. Butler, 2025 ONCA 844, at para. 7. We are not persuaded that elevated costs are justified in this case. We therefore order costs be paid by Fr. Rajic to Ms. MacDonald on a partial indemnity basis, fixed at $30,000 all inclusive. .... . UM Financial Inc. v. Butler
In UM Financial Inc. v. Butler (Ont CA, 2025) the Ontario Court of Appeal considers SLAPP appeal costs [under CJA s.137(7)]:[7] The respondents submitted that s. 137.1(7) of the Courts of Justice Act applies to an appeal of a dismissal, such that they are entitled to costs on a full indemnity basis as the successful party on appeal. Our court has held that s. 137.1(7) does not apply on appeal and that the normal principles governing costs on appeal should be employed: see e.g., The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533, at para. 9. We are not persuaded that elevated costs are justified in this case. We therefore order costs be paid by Mr. Kalair to the respondents on a partial indemnity basis of $14,159.18, inclusive of applicable taxes and disbursements. . Galati v. Toews
In Galati v. Toews (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here where the appellant-plaintiff "commenced an action against the respondents alleging that their statements caused him harm and that the respondents were liable to him on several bases, including defamation, conspiracy, unlawful means, intentional infliction of mental suffering and harassment" and the defendants successfully moved for a CJA 137.1(3) dismissal.
Here the court dismisses an appeal of the lower court SLAPP costs order [governed by CJA 137.1(7)]:B. The Costs Appeal
[94] Section 137.1 of the CJA provides that:Costs on dismissal
(7) 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. 2015, c. 23, s. 3. [95] The appellant submits that full indemnity costs were not warranted in this case regardless of the outcome of the motion due to the nature of the defamatory comments and the fact that the costs were excessive, citing Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 39.
[96] As this court explained in Park Lawn at para. 39, costs of a s. 137.1 motion should not generally exceed $50,000 on a full indemnity basis, but “there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit in the circumstances in each case.” The motion judge noted this direction explicitly and other relevant governing principles, including the general presumption in the CJA that the moving party is entitled to costs of the motion and proceeding on a full indemnity basis and the need to consider the fairness and reasonableness of the costs award. In coming to his conclusion, the motion judge noted that the respondents’ costs claim was, in part, excessive and reduced the costs awarded accordingly.
[97] An award of costs is a discretionary decision that is entitled to deference on appeal: Burjoski, at para. 109. In my view, there is no error in the motion judge’s discretionary exercise of his jurisdiction over costs that would justify appellate interference. I would grant leave to appeal the costs award but dismiss the costs appeal. . Bongard v. Bullen
In Bongard v. Bullen (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from "the motion judge’s order dismissing his anti-SLAPP motion, pursuant to s. 137.1" of the CJA.
Here the court considers, in the course of a denied motion for leave to appeal - both the entitlement of a self-presenting litigant to costs, and SLAPP costs:B. The respondent’s request for leave to appeal the costs order
[12] The respondent was self-represented before the motion judge. The motion judge considered the law in relation to costs awards in favour of self-represented individuals, specifically, that they must demonstrate that in representing themselves they have incurred an opportunity cost by foregoing other remunerative activity, referring to Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633(Div. Ct.), at para. 23. He was not satisfied that the respondent had demonstrated that he had foregone other remunerative activity in order to defend the anti-SLAPP motion, given the lack of detail provided by the respondent on this issue. In addition, the motion judge recognized the starting point in s. 137.1(8) of the Courts of Justice Act that costs not be awarded to the plaintiff/responding party on the motion when an anti-SLAPP motion is dismissed, unless the motion judge determines it is appropriate in the circumstances. Taking those factors into consideration, the motion judge exercised his discretion to make no order as to costs on the motion. . Benchwood Builders, Inc. v. Prescott
In Benchwood Builders, Inc. v. Prescott (Ont CA, 2025) the Ontario Court of Appeal considered costs on a successful SLAPP appeal where the respondent sought to apply CJA 137.1(8):[1] By reasons dated March 6, 2025, we allowed the appellants’ appeal and set aside the motion judge’s order that had dismissed their action pursuant to s. 137.1 of the Courts of Justice Act. We awarded the appellants their costs of the appeal and asked the parties for submissions on how we should treat the costs of the motion below, which the motion judge had awarded in favour of the respondents.
[2] The appellants seek full indemnity costs for the motion below in the amount of $37,812.79. The respondents contend that: (i) we should apply the presumption in s. 137.1(8) of the Courts of Justice Act and deny the appellants any costs of the motion below; or (ii) alternatively, the costs of the motion below should be made in the cause of the proceeding; or (iii) in the further alternative, any costs of the motion awarded to the appellants should not exceed $17,000.
[3] In para. 8 of their cost submissions, the appellants explain why the presumption against costs of the motion set out in s. 137.1(8) should not apply and that it would be “appropriate in the circumstances” to award them costs of the motion. They wrote:
8. In its Reasons for Decision dated March 6, 2025, this Court found that:(a) the online reviews by the Respondents “reflect no more than an especially bitter private dispute” and are not matters of public interest;
(b) this case does not have the characteristics of a SLAPP;
(c) there are sufficient indicia of an ulterior motive and several of the impugned statements, including that Mr. Slaven is a “miserable con artist” and “scumbag”, themselves appear to be particulars of malice; and
(d) this is a case in which the straight logic of a private dispute should apply – section 137.1 does not apply. [4] We accept that submission, which accords with the jurisprudence of this court.
[5] Accordingly, we award the appellants their costs of the motion below fixed in the amount of $30,000, inclusive of disbursements and applicable taxes, payable forthwith.
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