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DATE: January 26,2011

TO I RECIPIENDAIRE: FAX I TELECOPIEUR:


l~ I
FROM I EXPEDITEUR: I. Judicial Assistantfor Justice Smith
SUBJECT I OSJET: Vigna v, Levant - Court File No.: 08-CV-41703SR

NUMBER Of PAGES (INCLUDING COVER SHEET): 7


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Veuillez voir la decision des depens cHointe du juge Smith au sujet de la matiere
precitee. Veuillez noter que la decision est en anglais et que la traduction en francais a
eta commandee. Nous vous ferons palVen;r la decision en fran~is lorsque notre
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Please find enclosed Justice Smith's Cost~ decision regarding the above-mentioned
matter. Please note that the decision is in English and that a French translation has
been ordered. We will send you the decision in French once our office receives it.

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91 L'fNVOI EST INCOMPLET, VEUILLEZ COMMUNIQUER AVEC:
CITATION: Vigna v. Levant,2011 ONSC 629
COURT FILE NO.: 08-CV-41703SR
DATE: 2011101126

ONtARIO

SUPERlOR COURT OF JUSTICE

BETWEEN: )
)
GIACOMO VIGNA )
) Plaintiff was self-represented
Plaintiff )
)
-and- )
) Christopher Ashby, for the Defendant
EZRA ISAAC LEVANT )
)
Defendant
)
)
) HEARD: By written submissions

DECISION ON COSTS

R. SMITH J.

[1 J The factors to be considered when fixing costs are set out in Rule 57 of the
Rules o!Civil Procedure and include in addition to success, the amount churned and recovered,
the complexity and importance of the matter and the principle of proportionality, the conduct of
any party which unduly lengthened the proceeding, whether any step was improper, vexatious or
unnecessary, or taken through negligence mistake or excessive caution, a party's denial or
refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly
rate claimed in relation to the partial indemnity rate set out in the Information to the Profession
effective July 1, 2005, the time spent, an~ the amount that a losing party would reasonably
expect to pay.

Positions

[2] Giacomo Vigna (I'Vigna") submits that he should receive costs on a substantial indemnity
basis from April 28, 2008 or alternatively, from December 3, 2008 when his first offer to settle
vvas made. Vigna submits that he has obtained a better result fol]owing trial than set out in his
offers to settle. The plaintiff claims substantial indemnity costs for the law finn of
Heenan Blaikie of $26,434.54. The plaintiff claims substantial indemnity fees in the amount of
$68,250 for himself as a self-represented lawyer. He claims his partial indemnity costs were
$45,500. In addition, Vigna claims $7,516 in disbursements. Vigna submits that a global cost
award in the range of $50,000 - $65,000 would be reasonable in these circumstances.
Page: 2

[3] Ezra Levant ("Levant") submits that Yigua should be awarded only a very modest
amou,nt of costs in the amount of $2,000 inclusive of disbursements or alternatively, 15 percent
of the amount of $25,000 recovered or $3~750. Levant submits that the approximately 227.5
hoUl'S spent by Vigna was not proportionate to the amount involved in this claim and therefore,
both the hourly rate claimed and the number of hours should be reduced substantially. Levant
also disputes that Vigna obuuned a better result follo"Wing trial than set out in his offers to settle
because Vigna always insisted on a correction and an apology to be published on Levant's
. website in a prominent position on a pennanentbasis. Levant further submits that many of the
s~tements that Vigna alleged were defWDatory were found not to be so and Levant successfully
defended against a number of the allegations. Levant submits that the number of defamatory
allegations made by Vigna lengthened the trial and made it mOre complex.

Success

[4] Vigna was ultimately successful and recovered a judgment in the amount of $25,000 plus
an order that the defamatory publicatioosbe removed tXomLevant's website.

[5J Levant was successful on a number of the issues us a nwnber of alleged defamatory
comments were found not to be defamatory or were subject to valid defences. However, the
substance of Levant's publications rela.ted to the primary allegations that Vigna had fibbed to the
Human Rights Tribun~ when he· advised the Tri,OtmaJ and he was not in a mental state to
proceed with the hearing, that he illld acted with bol.dfaced contemp1 to the Tribunal, that he
failed to honout his undertaking &Ild that he had been fiI:edfrom the Canadian Human Rights
Commission, and had acted unethically by SWitching evidence at a hearing.

[6J I conclude that Vigna was substantially successful in his lawsuit on the primary
allegations of defamation. However,he was not completely successful as punitive damages were
not awarded and some of the alleged defamatory sUltemenls were found not to be defamatory or
were subject to valid defences.

Amount Claimed and Recovered

[7J Vigo,a claimed $50,000 plus a further $50,000 in punitive damages and recovered
$25,000, which is substantially less than the amount claimed.

Comp1exitx and Importance and Proportionalif}:

[8J The subject matter oftbis libel action was quite complex and was important to both of the
parties. The faqtua} background was quite extensive as the publications on Levant's blog related
to legal proceedings before the Canadiau Human Rights Commission, including both the
13eawnoDt and the Lemire Human Rights cases. In ~ldditjon, Levaut alleged that Vigna acted
unet..hically by switcbJng evidence during the Beaumont HUlTHill Rights' hearing.

[9J The legal issues involved ill 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 publicatjons, i,ncluding justification, fair comment, and
whether the publications are protected by the defence cOfnmtmication on a matter of public
interest.
I POOd/OO?
Page: 3

Proportionality

[1 OJ Rule 1.04(1.1) ofthe Rules of Civil Proceclure now provides that "[i]n applying these
rules, the court shallll1alce orders and give directions that are proportionate to the importance and
complexity of tbeissues, and to the amount involved, in the proceeding." This provision is also
applicable to the claim for costs.

[11] The matter proceeded under the simplified Rules o/Civil Procedure as such, there were
only pleadings, affidavits of documents, mediation and trial. The trial lasted for five days, plus
an additional day for submissions. The amount involved was such that the matter proceeded
under the simplified Rules. I find that the amount of costs sought and the amount of time spent
~s more than would be proportionate to the amount involved in this proceeding as well as the
complexity and importance, .Iiowever) notwithstanding that I have found that· the time spent
exceeded what was proportional, a libel action is a complex proceeding. The evidence was
introduced during a five day trial by both parties with reasonableness and efficiency as an
extensive amount of evidence was dealt with at a trial, most of wbich \vas admitted on Consent..

Offers to Settle and Scale of Costs

[12] On December 6,2008, Vigna offered to settle his claim for the sum of$17,000a.od in
addition, Levant was to cease from publishing any morc defamatory statements about him,was
to remove the words that were defamatory from the postiDgs on his internet blog site, and publish
a retraction in the sattle manner as the defamatory statements were originally published. The
offer also included a teoo that Levant was to pay a fmther SU,u1 of $3,000 to Vigna for costs if the
offer was accepted prior to February 18,2008 and substantial indemnity costs thereafter. Vigna's
submissions state that the offer was made on December 6, 2008. I aSsume this is an error and was
intended to be February 18,2009. lnany evcut, Vigna did oiler to settle for the sum of $17,000
plus costs of $3,000 plus a retraction, plus the rcmovll of tbe defamatory postings. It appears
from the correspondence from counsel for Levant tlJ(Jt on rvhrch 6, 2009, Levant was ~greeable
to posting a retJ:~ction as well as paying the sum of $500 for out of pocket expenses. However,
on J'IlPe 2, 2008, Levant withdrew his offer to settle and would only consent to a dismissal
without costs.

[l3] On Febl1lary 29> 2009, Vigna.Olade anothf.,'[ offer to set1Jc. if Levar\lt published aretraction
in l:l prominent manner on his websi~e and paid him SIU.ll of $10,000. ()n Ma.rcb ]7,2009, the
plaintiff made a further offer to settle for the SllJJJ of all in, plus the publication of an
unequivocal prominent retraction on the defend2lL,t' 3 hi og. The offer was vCliid until
December 23,2009.

[14] I find that the plaintiff exceeded the ruonetnry term s his (lffers to settle as be recovered
the sum of $25,000 and be had i.n.itially been ptep"n.:c! . $17, plus $3,000 of costs
plus a retraction. The arnountof Vigna's offers were :; I reduced to $] 0,000 and then
to $6,500. Vigna's offers to settle all contained il lCClIl Lev~\llt ish a retraction on his
website. Vigna obtained the remedy of having the deClJJl21tory statements removed from Levant's
website, which was not the same as a full retraction but, combined witb tJ1e findings in the
judgment, the rem.edy obtained was almost equivalent. settlement negotiations appear to
have broken down over the wording tbeten:ns oftbc rCL;lC!io
I POOS/007
Page: 4

[15] I also found that Levant activ~ly pUblished the defamatory statements about Vigna as part
ofbis campmgn to denormalize the Human Rights Commissions, wbichwas for another purpose
and as a result, this amoUllt~d to malicious conduct on Levan,t's part. I find that costs should be
assessed on a substantial indemnity basis because Levr,nt p'llblisbed defama10ry statements about
Vigna for anultetior purpose and his actions were malicious, and also because Vigna obtained a
result after trial, which exceeded the financial terms of his offers to settle by a substantial amount
and included the remedy of the removal of the defamatory COI,UIDents from Levant's website.
While not strictly meeting the requirements of Rule 49, the offers made by Vigna were
reasonable and a better or equivalent result was obtained a:f:ter trial.

Hourly Rates and Time Spent

[16] Vigna is a lawyer who was called to the Bar 0 f Que bee in 1992 a.nd to the Ontario Bar in
2000. V~gna seeks costs on a substantial indemnity b:;lSis Ilt an hourly rate of $335 per hour. I
find that this hourly rate is excessive where Vigna is oot engaged in private practice and had no
overhead expenses.

[17J In Fong; et al v. Chan el a/~ 1999 CanLIl (ON c'A)~ t1'1e CQw:t held tllat the issue
the right to recover award costs toa self-represented gall I rtJ1)(Jins v,rithin the discretion of the
trial judge. The Court of Appeal held that self-reI/resented litigants, whetJlcr legally 1:raUled or
no4 are not entitled to costs on the same basis as thOCiC)f ali tigant retaining private counsel. The
Court held that a self-represented litigantshou.1d not recover for the time and effort that any
litigant would have to devote to the case. Costs should only be awarded to those lay litigants who
demonstmte they devoted the time and effort to do work ordinarily done by a lawyer retained
to conduct the litigation and where they inc,JITer! an opportunity cost by foregoing other
remunitive activity.

[18] In Fong, supra, the Court of Appeal also Sl,l tlial f-represented lay litigan~ which
is not the situation beforen:w, should receive only n riJodernte or reasonable allowance for the
loss of time devoted to preparing and presenting the cnsc and 'would exclude routine per diem.
awards to litigants who would ordinarily be in nttencllJlcc in Court in any (event.

[19] 1 am satisfied that Vigna bas devoted a subst'iJiiaJ iunounl ofti111e and effort to the work
that would ordinarily have beel) performed <1]a and prepared for and
argued his case at trial. However, J do not have I.lvicknce of wht1her duriIJg this period he
incurred an opportunity cost by foregoing otJ]eT aclivtty or what that rennmitive amount would
have been for the week ofma] or the time he S}X;Jlt pi (paring f())· '

[20] In addWon to the time he spent, Vig,na a] so c) coSls he incurred with the
fum of Heenan Blaikie in the amount of $24,975.90 (l lolul of $2G,434.54. The time

spent by the various lawyers was not broken do\vo, I ilig 'lilne "pent drafting pleadings
and offers to settle, review of libel and defcunatory ry'nlf'!"IC\I~ 'on and attenc4mce at a
pre-trial conference~ sett1ementdisc'Ussions, I~n tiJe plaintiff and trial
preparation. The services also included consul : 'iling costs submissions and
assistance in the preparation of the bill of costs.
1007

Page: 5

[21] On the evidence before me, it is diffictllt to determine what work was performed by
Vigna that would ordinarily hav~ been perfonned by He law firm as the outside law fum appears
to have been involved in drafting of the pleadings, and atlending at settlement conference
discussions w~th defendant's counsel. Vigna prepared Cor trial, prepared casebooks and books of
exhibits, attended trial and made closing submissions, l:S well as submissions on costs.

[22J The 'time spent by Vigaa at trial and in submi .is time where he would have been
present in court as a party i.u any event Vigna prepare ex.hibit books and did prepare
extensive research as part of his preparation fot Some this time would normally have
been the work of legal counsel.

(23) Vigna does not have a private office and t]lcrcCoH:" docs not have overhead expenses. It
appears that the plaintiff took a leave of absence 'vith)ut pRy and worked elsewhere at a lower
salary for a period of time. However, this was on lis O"ID decision aud DO salary loss was
claimed at trial Vigna used vacation time to elevote Ie preparing fOT trial and other steps in this
matter.

[24J Levant was also resp0J,:\sible for some of tJw ilplcx ity some of tbe additional costs
as he made numerous publicatiolls which repeatedl' Id feci the c:xis6ng defamatory comments
about Vigna. This made the trial marc cornple, 1 ;:u if only one single publication of a
defamatory statement had been made. 10. Uti:" ells; d,ere sepawle pobJicatioos which
contained references to parts of the defamatory rcn:ul.s were attached as Tabs A - W to
the statement ofclaim.

[25J Given the above factors, the fact th.at . was tbilt the matter involved a
libel action, that the matter was commenced to the Srnall Claims Court
were increased to $25,000, and tberefor~, the arnount recovered excecded the limit in. place when
the action was conunenced,tbat the defendant continued to pllhli5;b blogs referring to the
defamatory comments on some 23 occasions, not (f \vh:cb 'v\'('re dcfillllatorybut referred to
the defamatory publications, that there were ):: oj ui : uuder the sirnplified Rules of
Procedure, the trial date Wag a.djoumed on one oC'~· li:, < were held,
and Vigna exceeded the fUUUlcial tenns of hi () [) :i " party would
reasonably expect to pay the sum of $30,000 plus d' rscnwni:, III costs.

Disposition

[26] Having considered aU of the above sum. of $20,000


towards Vigna'S costs incurred with the luI' l.l!' of HST and
disbursements. I furthe. order Levant 10 P'! fI (Ippl',c:Ji)lc 11ST plus
disbursements of $2,500 plus EST to Vigna for bis L'u:iseruents in this matter.

Released: January 26,2011


~007

2011 ONSC629
L 08-CV~41703SR
2011101126

GIACOMO

Plaintiff

.- and --

EZRA ISAI

Defendant
~-~ .. ----- --.------_._----~.~~_.~~~---

I ON COSTS
-_._---_..... ..--~-"._.~-----_._--_._------_.~---

Smith J.

Rdeased: January 26,2011