Ezra Levant Ordered to Pay Costs

I previously covered the Vigna v. Levant decision, where Ezra Levant was ordered to remove defamatory blog posts against Giacamo Vigna.

At least one reader expressed interest in costs, as Vigna is a lawyer and was self-represented for part of the action. Justice Smith released the costs decision on January 26, 2011 and awarded Vigna over $32,500 plus taxes in costs, exceeding the $25,000 damages awarded in the judgment.

The court applied the factors for cost considerations under subrule 57.01(1) and the new proportionality principle under subrule 1.04(1.1).

Ezra Levant submitted that costs should be $2,000-3,750, as the 227.5 hours spent by Giacomo Vigna on the file was disproportionate to the amount in the claim. Vigna claimed substantial indemnity for $68,250 as a self-represented lawyer, $26,434.54 for fees from Heenan Blaikie, and disbursements of $7,516, for a global cost award from $50,000 – $65,000.

Justice Smith found that Vigna had been substantially successful in the action, but was not successful on punitive damages and some of the claims of defamation. Justice Smith also suggested that online defamatory actions of this type might be considered unusually complex,

[8] The subject matter of this libel action was quite complex and was important to both of the parties…

[9] The legal issues involved in a defamation action are more complex than the typical lawsuit. A libel trial involves findings of defamation as well as consideration of the defenses potentially applicable to each of the publications, including justification, fair comment, and whether the publications are protected by the defence communication on a matter of public interest.

But the $25,000 damage award was also substantially less than the $100,000 originally claimed by Vigna. However, the court reviewed a number of settlement offers by Vigna, for $20,000, $10,000, and $6,500.

Levant initially considered the first offer, but then retracted and offered a dismissal without costs. All of Vigna’s offers involved the posting of a retraction by Levant. Justice Smith considered the success of Vigna at trial, which exceeded the numerous settlement offers, as well as the malice of Levant in his campaign against the Human Rights Commissions, to award costs on a substantial indemnity basis.

The final disposition of the court was $20,000 for the costs from Heenan Blaikie, inclusive of disbursements and taxes, $10,000 plus taxes for Vigna’s personal costs, plus $2,500 plus taxes for disbursements.

The action proceeded under simplified rules (Rule 76) given the amount of the claim for $100,000. Normally the costs denial consequences of Rule 76.13 would apply when simplified rules are mandatory under subrule 76.02(1).

Although not discussed by the court, the action sought more than just monetary damages but also sought the removal of offending blog posts, which fits into one of the exceptions under the clauses in subrule 76.13(2). Potential plaintiffs considering similar actions should keep this consideration in mind, and might want to frame their pleadings more broadly and employ simplified proceedings from the outset to avoid the cost denial under subrule 76.13(3).

Additionally, where the judgment in an online defamation claim under simplified rules is successful in obtaining an order for monetary damages of $100,000 without obtaining an order to remove blog posts, the plaintiff may be denied costs on the action.

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