Costs Award in Baglow v. Smith

This week the Ontario Suprerior Court of Justice ruled in the costs award in the online defamation case of Baglow v. Smith.

The plaintiff, who lost on summary judgment, sought only minimal costs based on public interest because he claimed the case dealt with a novel point of law and fact situation. He based this on the commentary in the decision on “removing the sting” in blogging, which as I’ve noted here before was a unique approach to dealing with online defamation.

Annis J. rejected this argument and stated that his decision was primarily based on two points:

  1. the allegedly defamatory term used was generally ambiguous, and did not therefore meet the threshold for defamation
  2. the comments were protected even if they were defamatory by fair comment

He noted that the public conversation nature of the online dialogue between the blogs and the “removing the sting” were only additional factors on which to conclude the posts were not defamatory. He did accept though the public importance and the novel issue of the issues in contention, but cited Tanner v. Clark to note that where the parties are pursuing their own interests costs may still be granted,

 [4] …to require each party to bear their own costs there has to be more than conflicting decisions to be resolved… Similarly, not all novel issues of law give rise to such an order. Such may be the case where the matter involves a public body trying to elucidate the law or where a party has raised a constitutional issue or one otherwise of broader interest. However, where, as in the two matters before us, the parties were pursuing their own disclosure interests, we do not consider it appropriate to deprive the successful party of costs.

Annis J. considered both the public interest and the interest of the parties to reduce the legal fees sought by the defendants’ claimed fees from $17,745 to $6,500.

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