Presumption that responding party not entitled to costs where motion not dismissed not applicable to costs on appeal

Newspaper published series of articles about successful bid by construction company on $300 million contract to build new critical care facility at St. Michael's Hospital in Toronto (SMH). Articles addressed connection between construction company and its president and senior executive at SMH who was on committee that awarded contract. Construction company commenced defamation action against newspaper alleging false allegations of corruption. Newspaper successfully moved to dismiss action under s. 137.1 of Courts of Justice Act, claiming articles were not defamatory and advanced fair comment and responsible communication defences. Construction company successfully appealed and was permitted to proceed with action. Parties made submissions on costs. There was no order as to costs of motion, and costs of appeal were awarded to construction company in amount of $8,000, inclusive of disbursements and relevant taxes. There was no reason to depart from presumption under s. 137.1(8) of Act that responding party was not entitled to costs of motion where judge did not dismiss proceeding. Presumption did not apply to costs on appeal. Jurisprudential landscape had shifted significantly between motion and appeal.

Bondfield Construction Company Limited v. The Globe and Mail Inc. (2019), 2019 CarswellOnt 5348, 2019 ONCA 283, Doherty J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); additional reasons (2019), 2019 CarswellOnt 2912, 2019 ONCA 166, Doherty J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.).

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