Morris v. Johnson (costs judgment)
Ontario Superior Court of Justice orders former mayor to pay enhanced costs for bringing a SLAPP suit aimed to silence bloggers.
In 2010, the former mayor of Aurora, Phyllis Morris, sued three local bloggers and several unknown individuals for defamation. The lawsuit alleged that the former mayor was defamed in anonymous comments posted on the Aurora Citizen blog during her re-election campaign. You can read more about the case here.
In October 2011, Morris unilaterally discontinued her claim, and two of the bloggers sought their costs of having to defend the claim. The issues on the motion were whether the litigation had been commenced to silence them before the election and, if so, whether they were entitled to a higher scale of costs than would normally be the case.
On October 22, 2012, Master Hawkins held that the litigation started by Morris was Strategic Litigation Against Public Participation (“SLAPP”), noting:
The following evidence before me is uncontradicted. Mayor Morris brought this action expressly in her capacity as Mayor of the Corporation of the Town of Aurora. Initially and up to December 14, 2010 she had access to Aurora municipal money to fund this litigation. The action was commenced without any prior demand letter to Johnson, Hogg or Bishenden from Mayor Morris or her lawyers. The action was commenced without complying with the prior notice provisions of the Libel and Slander Act … respecting broadcasts. (Johnson and Hogg take the position that Aurora Citizen “broadcasts” its content as that term is defined in the Libel and Slander Act). The action was commenced less than three weeks prior to the municipal election in which Mayor Morris was seeking a second term as mayor. The action was commenced by notice of action rather than by statement of claim. In her notice of action Mayor Morris expressly sought damages of $6,000,000 from the defendants. In an action for damages it is unusual for the plaintiff to claim a specific amount of damages in its notice of action. The notice of action was served on the defendants Johnson, Hogg and Bishenden immediately and without any statement of claim, in contravention of subrule 14.03(4).
Master Hawkins inferred from these facts that Morris was not prepared to wait and see if a demand letter would silence the bloggers and was not prepared to wait until her lawyers prepared a statement of claim. He concluded that “Mayor Morris wanted to hit [the defendants] quickly and hard, in order to silence them as her critics sooner rather than later in the weeks leading up to the October 25, 2010 municipal elections.”
Because the action was SLAPP litigation commenced to “stifle debate about Mayor Morris’ fitness for office”, Master Hawkins awarded the defendants “special enhanced costs” of just over $21,000.
We believe this is the first time in Ontario that a Court has found that a party engaged in SLAPP litigation and, similarly, the first time that a Court in Ontario has awarded costs on a heightened scale because the litigation was SLAPP.
Click here to read the decision.