RE:These were the last guys to sue Mr. CohodesAnd how is Cohodes doing. Looks like he lost his SLAPP and may have to pay a ton of money to Thomopson. OUCH. Judge decision:
[38] For these reasons, I find that there are grounds to believe that Thompson will be entitled to damages in the action. [39] An attack on professional reputation through an imputation of fraudulent conduct is a classic concern of the law of libel. The libel referred to the plaintiff personally and was widely disseminated. Following publication of the libel complained of, the defendant has continued to comment on Thompson’s character. These are all significant factors which I weigh in recognizing the public interest in allowing the plaintiff to continue his lawsuit.
[40] By contrast, the value of the defendant’s expression is low. The statement complained of was an allegation that the plaintiff committed or participated in fraudulent conduct when he was a lawyer at the start of his career with another company in the context of a larger discussion about the management of Concordia. There were no details with respect to the “nonsense” which Thompson allegedly engaged in Biovail and the statement focussed on the personal conduct of the plaintiff over a decade earlier. As such, I find the public interest in permitting Thompson to proceed with his action outweighs the public interest in the expression at issue.
Costs [41] There is a special costs regime under
s. 137.1 of the
CJA.
Section 137.1(8) provides that if a judge does not dismiss the proceeding, the plaintiff is not entitled to costs on the motion unless the judge determines that such an award is appropriate in the circumstances. The plaintiff seeks costs against the defendant on a substantial indemnity basis, citing conduct-based factors including (a) a high volume of “plainly irrelevant evidence”; (b) misuse of cross-examination to “harass” the plaintiff; (c) abuse during his cross; (d) continuing to assert the truth of the allegation of fraudulent conduct unsupported by evidence.
[42] I find no basis to depart from the presumption that costs not be awarded against an unsuccessful defendant. As suggested at para. 20 of the 2010 Anti-SLAPP Advisory Panel report, costs awards against unsuccessful defendants are intended to act as “costs sanctions against parties who bring frivolous motions for protection”. The motion was not frivolous, and did not raise the kind of high volume of issues or evidence of concern in
Platnick v. Bent,
2017 ONSC 585 (CanLII). As a result, no costs awarded to the successful plaintiff.