The Plaintiffs sued the Defendant for defamation and achieved substantial success following an extended Trial, notwithstanding the exclusion of an email (the “BMO Email”) from the Trial, which had a negligible effect on the damages awarded. Each Plaintiff received $40,000 in general and aggravated damages.

The Plaintiffs sought to have a 2.5 times multiplier applied to the Tariffs in Column 2 of Schedule C of the Rules, arguing it was necessary to prevent the damages from being rendered nugatory in light of the disproportionately high legal costs incurred. The Defendant contended that the Plaintiffs should be disentitled to Costs as they were “wholly unsuccessful” in the Action. Devlin J. dismissed this argument from the Defendant.

The Defendant further accused the Plaintiffs of litigation misconduct by asserting a claim that partially relied on the BMO Email, which was excluded pursuant to Rule 5.33. During the Trial, Justice Devlin ruled that admitting the BMO Email would undermine Rule 5.33’s objective to maintain evidentiary transparency while safeguarding confidentiality. Devlin J. clarified that although the BMO Email was not admissible, the Plaintiffs’ approach did not constitute misconduct, and this aspect of the case required minimal Court time.

The Court indicated that the Plaintiffs were entitled to Costs of the Action in principle, emphasizing that any Costs awarded must be reasonable and proper, considering factors such as the Parties’ litigation conduct as per Rule 10.33. Devlin J. highlighted that the Plaintiffs presented their case over three and a half days, whereas the Defendants’ presentation spanned over eight days. While acknowledging the Defendants’ proper and professional conduct as a self-represented party, and the absence of misconduct, Justice Devlin found the defence was meritless and lacked rational connection, which needlessly prolonged the Trial.

The Court concluded that enhanced Costs were necessary to address the unfair burden placed on the Plaintiffs due to the Defendants actions that unnecessarily extended the Trial proceedings. However, Devlin J. determined that full indemnity costs were not warranted, noting that, while the Defendants conduct was frustrating, it did not exhibit the kind of behavior that would justify such Costs. Consequently, Devlin J. determined that applying a two-times multiplier of Column 2 was appropriate in the circumstances, reflecting the need for proportionality given the intricate and intense nature of the issues litigated.

As a result, the Court granted Costs to the Plaintiffs with the multiplier, in addition to disbursements and other recoverable charges, for a total award of $98,714.97. Acknowledging the substantial impact of the award on an individual in the Defendants position, Devlin J. remarked that dedicating weeks of Court time to pursue unsubstantiated allegations against upstanding, hard-working community members carries repercussions.