Information No.

SC-17-2163-0000

SUPERIOR COURT OF JUSTICE

SMALL CLAIMS COURT

B E T W E E N:

STACEY CHOPAK
Plaintiff
10

-and-

EDWARD PATRICK
Defendant

15

P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE DE LUCIA

20 on February 15, 2019 at TORONTO, Ontario

25

30 APPEARANCES:
M. Donald Counsel for Stacey Chopak
A. Rance Counsel for Edward Patrick
 (i)
Table of Contents

SUPERIOR COURT OF JUSTICE

SMALL CLAIMS COURT

T A B L E O F C O N T E N T S
5

REASONS FOR JUDGEMENT 3

RULING 24
10

15

20

LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is
not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
25

Transcript Ordered: FEBRUARY 21, 2019

Transcript Completed: MARCH 5, 2019

30 Ordering Party Notified: March 18, 2019

 3.
Reasons for Judgement

FRIDAY, FEBRUARY 19, 2019

R E A S O N S F O R J U D G E M E N T
DE LUCIA, J. (Orally):
5 This is in the matter of Stacey Chopak as plaintiff
and Edward Patrick as defendant. And for Ms.
Chopak we have Mr. Donald as counsel, and Mr. Rance
as counsel for the defendant.
The trial in this matter was heard before me on
10 December the 5th, 2018. At the conclusion of the
trial I reserved my judgement, and today I render
my oral judgement.
The plaintiff, Ms. Chopak, is an 84-year-old who,
in this action has claimed damages against the
15 defendant, Edward Patrick, in the maximum amount of
the monetary jurisdiction of this court for
$25,000, based on the intentional tort of
defamation.
As background, the plaintiff and defendant in this
20 action have a history of a prior litigation wherein
the defendant, Edward Patrick, commenced legal
proceedings in the Superior Court of Justice
against the plaintiff, Stacey Chopak, for liable.
The plaintiff, Ms. Chopak, defended the claim and
25 denied all allegations of wrong doing. The matter
was settled at a pre-trial conference before
Justice Stinson on or about September the 8th, 2014
by way of Minutes of Settlement, which were dated
September 9th, 2014. I understand that in fact the
30 date was September the 8th, 2014. Followed by a
full and final release signed in counterparts by
the plaintiff, Ms. Chopak, on September 18th, 2014,
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Reasons for Judgement

and by the defendant, Mr. Patrick on September

22nd, 2014. And an apology, signed by Ms. Chopak
on September 18th, 2014. And then the Patrick
action in the Superior Court of Justice was
5 dismissed on consent and on a without cost basis,
pursuant to the terms of the aforesaid signed
Minutes of Settlement.
The plaintiff's position in this action is as
follow; Ms. Chopak, alleges that she suffered
10 significant reputational harm and loss due to an
article or articles written by the defendant,
Edward Patrick, and published or caused to be
published on the internet in two places; namely on
LinkedIn and on a site known as The Quaich.com.
15 The plaintiff, Ms. Chopak, maintains that the
contents of the defendant, Patrick's articles,
willfully and blatantly misrepresented events that
occurred at the pre-trial conference and
mispresented the nature of the settlement.
20 Further, that the defendant, Patrick's articles on
LinkedIn and The Quaich, falsified facts and in the
process, defamed the plaintiff, Ms. Chopak.
Briefly, the impugned words in the Patrick articles
include the following:
25 1) That at the settlement conference the
plaintiff, Ms. Chopak, "Admitted she lied to the
Toronto Star reporter, Jennifer Yang."
2) That it is easy, "For people with an axe to
grind to get the ear of a reporter and have harmful
30 lies published in a reputable paper."
3) "Often an experienced senior editor smells a
rat and kills the story. Sadly, that didn't happen
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Reasons for Judgement

in this case."
4) That the defendant, Patrick's article stated
that Bill Somerville, a Toronto Press Club's past
president knew who was responsible for, "Planting
5 the story in The Star." The defendant, Patrick's
article quotes Summerville as follows, "I know who
did," and that the story, "Was full of mistakes."
5) The defendant, Patrick's article state:
[As Read] The Star article appeared shortly
10 after the press club turned down an effort by a
group of former and current newspaper
journalists to take over the Canadian News Hall
of Fame.
The plaintiff, Chopak, maintains that these words
15 and statements by the defendant, Patrick, published
in his articles on LinkedIn and on thequaich.com
were done with malice, completely false and
inflicting harm on the plaintiff, Chopak, who
asserts that she has suffered harm and reputational
20 loss.
The plaintiff also asserts that the defendant,
Patrick, was given an opportunity to post an
apology and a retraction on the same sites and that
he failed to do so.
25 The plaintiff seeks general aggravated and punitive
damages as against the defendant. As to the
defendant's position, Mr. Patrick denies the
alleged defamation; that there was no intent to
harm the plaintiff; that he did commence a legal
30 action against Ms. Chopak in June of 2011, as a
result of the comments made by Ms. Chopak to the
Toronto Star; that his action was settled and that
 6.
Reasons for Judgement

the plaintiff, Ms. Chopak, signed Minutes of

Settlement, a mutual release, and an apology in
favour of Mr. Patrick. The defendant admits he
published the articles referenced in the plaintiffs
5 claim on LinkedIn and The Quaich.com.
The defendant, Patrick, raises the defence of
justification i.e. truth, and that he maintains the
plaintiff admitted she lied to The Star. And
further, his additional comments were just general
10 observations about the newspaper industry and not
about Ms. Chopak.
The defendant, Patrick, also raises the defence of
qualified privilege. The defendant, Mr. Patrick,
maintains that the plaintiff is statute barred by
15 failing to issue and serve a Notice of Action,
pursuant to Section 5(i) of the Libel and Slander
Act, R.S.O. 1990.
The defendant, Patrick, maintains that the
plaintiff is barred by the provisions of the mutual
20 release, signed by the parties in the Superior
Court of Justice action. And Mr. Patrick maintains
the defence of fair comment. Mr. Patrick denies
any malice and he denies all of the allegations by
the plaintiff against him.
25 As to the issues for this court's determination,
they are as follows:
1) Are the articles that are written and published
by the defendant, Edward Patrick, defamatory.
2) Does Mr. Patrick, as defendant, have any valid
30 defences that could legitimize the defamation
contained in the published articles.
3) What are the plaintiff's damages, if she is
 7.
Reasons for Judgement

successful.
As to the findings of fact and credibility, I state
as follows; after a careful and objective review of
the evidence, I make the following findings of fact
5 and credibility. I find that the defendant,
Patrick, had commenced a Superior Court of Justice
action known as the Patrick action, in defamation
against Ms. Chopa, wherein a settlement conference
was held on September the 8th, 2014 and the Patrick
10 action was settled by way of signed Minutes of
Settlement, a signed mutual full and final release
and an apology signed by Ms. Chopak. And the
action was dismissed without costs. All of these
documents are marked as exhibits to this action.
15 I find that the said settlement conference of
September 8th, 2014 was conducted on a strictly
confidential basis. I accept the plaintiff's
evidence as being credible and reliable when she
states under oath that she never admitted that she
20 lied to the Toronto Star at the settlement
conference.
And further, I accept her evidence that the
defendant, Patrick, never heard the plaintiff utter
such an admission. In fact the apology at Exhibit
25 3, acknowledges the plaintiff was mistaken. That a
certain painting belonged to the Toronto Press Club
when in fact, the property of the Ontario Club. I
find that the settlement privilege attaches to all
aspects of the settlement conference, held in the
30 Patrick action on September the 8th, 2014. I find
as a fact that the defendant, Patrick, never
published the plaintiffs apology, set out as
 8.
Reasons for Judgement

Exhibit 3, but rather and significantly for this

case, I find that the defendant, Patrick, did
publish his articles about the plaintiff on
LinkedIn and on thequaich.com websites. These
5 published articles are solely authored by the
defendant. These publications and defendants
authorship are undisputed. I find as a fact that
the defendant, Patrick, authored and published
these statements referred to earlier in this
10 judgement, and the contents of these publications
are set out at Exhibit 4.
The LinkedIn posting was published on April 15th,
2015, entitled, "Ed Patrick wins retraction and
apology in libel case." It reads as a press
15 release or as a news story and the defendant
Patrick speaks in the third person. It is noted
and I find it as a fact that the defendant, then
amended the republished article on LinkedIn set out
at Exhibit 5 with a couple of changes. Namely the
20 heading now reads, "Ed Patrick wins apology in
libel case," and deletes the words, "She lied" and
instead writes, "She was mistaken." The defendant
republished the LinkedIn article as set out at
Exhibit 5.
25 I find that the defendant was making a feeble
attempt to extricate himself from the words, "She
lied" and reissued the article with, "She was
mistaken," which tracks the general sense of the
apology at Exhibit 3. Also, the defendant’s
30 article is published at Exhibit 10 at thequaich.com
website and again as a press release. And again,
it is a fact that the defendant wrote these words
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and published this article.

I find that these two publications by the defendant
on LinkedIn and on thequaich.com website refer to
the outcome of the prior Patrick action in the
5 Superior Court of Justice that was settled between
the parties. These publications on LinkedIn and on
The Quaich were published some seven months after
the settlement of the Patrick action. I find that
there was no trial in the Patrick action. I find
10 that there was no decision on the merits in the
Patrick action. I find that the defendant,
Patrick, in this action, has never apologized for
the statements identified above and published on
LinkedIn and on The Quaich. I find that the
15 contents of the articles as published mention the
plaintiff, Ms. Chopak, by name and by implication.
Amongst other things, the plaintiff Chopak is
referred to as:
1) A liar. Meaning dishonest and untruthful.
20 2) That Ms. Chopak had an axe to grind. Meaning
that she bore a personal grievance against the
defendant, Patrick, and was seeking retribution in
speaking to The Star.
3) That Ms. Chopak was a rat, or someone who would
25 engage in trickery or deceit.
As to the analysis of law, in any defamation case
the initial onus rests with the plaintiff to show
that the impugned publications or publication is
defamatory at law. There is a three-step test as
30 set out in the Grant v. Torstar Corporation, [2009]
SCC 61. Namely the plaintiff must prove:
1) That the impugned words in fact refer to the
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plaintiff. I find that they do mention the

plaintiff by name and by implication.
2) That the impugned words were published. And
that is meaning they were communicated to at least
5 one person other than the plaintiff. The defendant
admits publishing the articles on LinkedIn and
thequaich.com as set out at Exhibits 4, 5 and 10.
3) That the impugned words were legally
defamatory. That is that they would tend to lower
10 the plaintiffs reputation in the eyes of a
reasonable person.
This is an objective test. I am satisfied that the
impugned words on an objective analysis, do lower
the plaintiff's reputation in the eyes of a
15 reasonable person. I find that the published
articles clearly defame the plaintiff, Ms. Chopak.
I also find that the harm is presumed. The only
questions relate to any available defences to the
defamation and the issue of quantum of damages.
20 I have found that the three elements of defamation
have been made out. The onus now switches to the
defendant to justify each and every element of any
defences asserted. I now analyse the defences of
Mr. Patrick and they are as follows:
25 1) As to the defence of truth. As I have found
and accept the plaintiff's evidence that she did
not admit to lying to The Star at the settlement
conference.
I find that the defendant fails this test of
30 justification and truth. I also state and find
that the defendant's published statements refer to
the plaintiff by implication, namely, that she had
 11.
Reasons for Judgement

an axe to grind and that she was the rat. I reject

the defendant's evidence that these words are about
the newspaper industry and poor journalism
standards and that Mr. Patrick maintains they are
5 not about Ms. Chopak. I find Mr. Patrick's
position totally untenable.
Accordingly, I find these statements as well as the
statements that the plaintiff is a liar are all
defamatory. The defence of truth fails. I also
10 state that where the evidence differs in this case,
I accept the evidence of the plaintiff as being
reliable and trustworthy and prefer her evidence to
that of the defendant's.
As to the defence of qualified privilege, I find
15 that the defence of qualified privilege attaches to
the occasion on which the publication is made and
not the publication itself. And a privileged
occasion has two requirements. First the publisher
must have a legal social or moral interest or duty
20 in making the publication. And second, the person
receiving the publication must have a corresponding
duty to receive it. This reciprocity is essential.
Further, this defence is defeated if the plaintiff
can show malice. The question of urgency is key
25 when determining if a defendant can avail itself of
the privilege and publish it to the world at large.
And I site as reference Myers v. CBC [1999] OJ No
4380.
Also, the defendant asserting qualified privilege
30 must be acting in good faith. Further, to attract
a qualified privilege defence, the defamatory
information must be information upon which its
 12.
Reasons for Judgement

recipient can act. I find that where there is no

value beyond disclosure of a purported issue, the
privilege will not attach. I find that this is the
case here. I find that the defendants publications
5 on LinkedIn and on thequaich.com some seven months
after the settlement conference of September the
8th, 2014, was motivated by malice and by ill will
on the part of the defendant, Edward Patrick. I
find that this defence of qualified privilege
10 fails. As to the defence of fair comment, the
defendant must satisfy the following test:
A) The comment must be on a matter of public
interest. I find that these articles and the
subject matter were of a private nature and they
15 were not of public interest.
B) The comment must be based on fact. I find that
these articles by the defendant are not based on
fact as set out above.
C) The comment must be recognizable as comment. I
20 find that the defendant was not making comment but
rather the articles purpose was founded in malice
and ill will and spite towards the plaintiff.
D) The comment must satisfy the following
objective tests. That is, could any person
25 honestly express that opinion on the proved facts.
The answer I find is no.
E) Even if the comment satisfies the objective
test, the defence is defeated because I find that
the defendant acted and published the articles with
30 malice. This defence of fair comment, accordingly
fails.
I find that the defendant has failed to issue a
 13.
Reasons for Judgement

full and fair retraction and apology to the

plaintiff. Changing one word from lied to
mistaken, does not absolve the defendant from
liabilities. As to the argument by the defendant
5 did the plaintiff fail to give the defendant
written liable notice of the matter complained of,
pursuant to section s.5(1) of the Libel and Slander
Act, I find that this argument fails for two
reasons.
10 1) The defendant must specifically and
affirmatively plead this defence. The plaintiff
did not do so.
2) I find that LinkedIn is a global, social media
networking site and that Quaich.com is a website
15 dedicated to Scotch aficionados.
I find the section s.5(1) only refers to liable in
a newspaper or broadcast. I adopt the analysis and
reasoning set out in Levant v. Day, [2017] ONSC
5956, wherein the court refused to extend the
20 meaning of broadcast to a Twitter post. As in the
cited case, the defendant has not provided this
court with any evidence regarding the nature and
characteristic and functioning of LinkedIn or
thequaich.com.
25 I find that the plaintiff has discharged her onus
and established the intentional tort of defamation
and that the defendants defences all failed.
I also find that the mutual full and final release
signed at the settlement conference or shortly
30 thereafter, does not prohibit or prevent the
plaintiff's action. The case brought here by Ms.
Chopak, deals with a fresh cause of action.
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Reasons for Judgement

As to damages, the fact that the defendant's chosen

medium was the internet is relevant. The Court of
Appeal recently affirmed the proposition that the
unique and instantaneous characteristics of the
5 internet, give rise to special consideration. This
case is one of internet defamation which
distinguishes it for the purposes of damages. I
have considered the traditional factors of
assessing damages which are relevant as set out in
10 Hill v. Church of Scientology, [1995] 2 SCR 1130 at
paragraph 185. But I must also examine this case
in the internet context and follow the analysis of
Barrick Gold Corporation v. Lopehandia, [2004] 71
OR (3d) 416 paragraph 31 and I quote:
15 [As Read] "Communication via the Internet is
instantaneous, seamless, interactive, blunt,
borderless and far-reaching."
Moreover, the courts must take and note the
defendant's professional career as a journalist and
20 the care that a journalist must take in their
profession to get it right and be responsible in
their reporting. I find that these qualities in
this case were totally absent in the defendant's
articles. I find that the defendants malice was
25 the engine and not the defendant's professionalism.
Reputation is a very special, significant attribute
and quality that a person embraces and cherishes.
The plaintiff has suffered harm. The defendant's
defamation to her was highly injurious and
30 accordingly, I do assess damages in this case in
the amount of $25,000 for the reputational loss
suffered by the plaintiff. Accordingly, there will
 15.
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Submissions
be judgment for the plaintiff against the defendant
in the amount of $25,000.
I will also order pre-judgement interest in this
matter as claimed in the Plaintiff's Claim from
5 April 15th, 2015, being the date of the first
publication, to February 15th, 2019. I also order
Post-Judgment Interest in accordance with the
Courts of Justice Act.
There will be two further matters that I will need
10 counsel to address. First of all, costs and
whether there were any offers to settle. Mr.
Donald?
MR. DONALD: Your Honour, I will like to hand up a
Bill of Cost that I have prepared. I have a copy
15 for my friend, as well as two cases that I can
speak to on the issue of costs, should you wish to
hear them.
Originally, Your Honour, I had prepared this Bill
of Costs without benefit of speaking to my client.
20 I have spoken to her today, and the cost that we
would seek for this action you will see are $5,000.
The basis for that, briefly, is as follows; you'll
see from my own Bill of Costs that on a pure
manhour basis at my usual rate of $300 an hour, the
25 total of $11,288.70 was spent. As I note on page
2, however, Your Honour, and for the purposes of
this action, I can advise that in order to assist
Ms. Chopak, I charged a flat rate of $5,650. I
note, should you be interested in it, but I won't
30 dwell on it, that her previous counsel, as I
understand from Ms. Chopak, charged her $4,826.74
for his involvement in this file, prior to my
 16.
Submissions

engagement.
Secondly, and you will see this attached to our
Bill of Costs, there is, at least, an explanation
of costs for estimated charges made by Mr. Richard
5 McFarlane(ph), who was at times assisting Ms.
Chopak on this matter when she was self-
represented. Now, those were not billed out but
again, it is provided to you, Your Honour, only to
show the significant effort that has gone into a
10 case or gone into a case of this nature. You'll
see there, there are some disbursements, May 16th,
2018, $108.66 for the production of my Factum and
Authorities. The bill for that is attached to our
Bill of Costs. On December the 5th, there was
15 transport to and from the court with the full case
materials that comes to $50.60. This was an
assumption, I admit, Your Honour, but I assume that
Ms. Chopak did indeed have a cost for filing of the
claim. I don't have proof of that but in the year
20 2017 that would have been $95. And Mr.
McFarlane(ph) advises me that his photocopying
costs, and he was the one who created the books and
binders that would have been in front of you, aside
from the Brief of Authorities and Factum, came to
25 about $275.51.
On a full indemnity basis, Your Honour, if you just
include my cost, the amount sought would be
$6,179.77. In speaking with my client, she has
advised that it was her preference to instead seek
30 a lower amount of $5,000. As you know, Your
Honour, that would still take us beyond the usual
15 percent rule that arises from Rule 19 of the
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Submissions

Rules of Small Claims Court. However, in making

our submission for a higher costs award, I would
argue that first of all, this was a particularly
complex case requiring particularly detailed facta.
5 And secondly, that the conduct of and most
importantly, that the conduct of the defendant in
this case, justifies a higher costs award. It's
important to note and my submission would be, Your
Honour, that at all times, the defendant's view of
10 this case was what I would call derisory. You will
see in the materials, although it was not brought
up, that until the start of the trial the defendant
was threatening a motion for nonsuit of the action.
Secondly, you will note that if one was to compare
15 the cases and arguments that were advanced prior to
trial and to the date of this trial on December the
5th, none of them dealt with defamation. All
defamation cases cited by the defendant were
provided on the morning of trial. It was as if,
20 Your Honour, that up until the very day of trial
this was not a defamation case at all, according to
the defendant.
And number two, that the case was so flimsy that a
motion for nonsuit was appropriate and was hanging
25 over the head of the plaintiff, Ms. Chopak.
The conduct of the defendant is particularly
egregious when one considers his history in the
newspaper business. I advise or point you to, Your
Honour, the case of Lahrkamp v. Metropolitan
30 Toronto Condomium Corp. I’ve provided two cases to
you, the original Small Claims Court decision by
your brother Judge Deputy Justice Prattas, and I
 18.
Submissions

particularly make note in that decision of

paragraph 37(c) at page 11. Oh, excuse me, I
believe it's page 8. And, in that case, far
different to our own facts, it was a - what could
5 be called a monster three-day case and a very high
cost of $20,000 were awarded.
I don't purport to seek that amount, but the reason
I raised paragraph 37(C), Your Honour, is because
the judge, in deciding to impose penalty costs
10 under Rule 19.06 of the Small Claims Court Rules
and similarly under Rule 29 of the Courts of
Justice Act is that he says in that case that the
losing party was either oblivious to the fact he
was wasting other people's time and money or more
15 likely, he took a certain delight in pestering the
board and others with his demands. And on that
fact, Your Honour, on that finding, I say that our
case is on all fours. We have a case,
respectfully, where Mr. Patrick's defences only
20 were relevant to the issues at stake really, as of
the day of trial when he started submitting cases
through counsel that were responsive to the issues
at stake.
And secondly, the manner in which Mr. Patrick was
25 blithe. And was blithe in the way that he
discussed the conduct of the settlement conference.
And blithe in his, I would say, meritless defence
that somehow his publication could be justified or
defended by a fair comment or qualified privilege
30 is on all fours with paragraph 37(c). You will
note also that paragraph 37(n) on the next page,
the court admonished the losing party in Lahrkamp
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Submissions

because he was on a fishing expedition. And I

submit to you, that that is exactly what Mr.
Patrick was doing in this case. Simply throwing
every defence, every fact he could at the wall in
5 an effort to try and absolve himself from something
that was unabsolvable.
The last point I would make, Your Honour, and I
would just stop and emphasis the second decision I
have given you, is the appeal decision of the
10 Lahrkamp decision. I won't go into it in depth
except to say that the court - the Divisional Court
upheld Deputy Judge Prattas cost award giving it
therefore the imprimatur of an appeal court
support.
15 And the last point I would make, Your Honour, is if
you look at the Offer to Settle that was forwarded
by the defendant to my client, you'll see - it's
right at the back of our Bill of Costs, dated
November the 23rd, 2017. It is an Offer to Settle,
20 that is in fact not an Offer to Settle at all.
On November the 23rd, 2017, Mr. Patrick's counsel
made an Offer to Settle in which he said he would
give removal of the comment, "Chopak admitted she
lied," and substituted with, "Chopak admitted she
25 was mistaken," from all of the defendants pertinent
online articles and in exchange, Ms. Chopak would
pay him $1,500. In essence, admitting to the
defamation and then taking the inferential leap
that she should somehow pay costs for his torturous
30 conduct. And then most quizzically at the end of
the offer to settle he says,
[As Read] Please note that the removal and
 20.
Submissions

substitution of the comments has already been

completed.
So, what is the offer to settle for? And this goes
again back to the derisory and frankly Kafkaesque
5 that Mr. Patrick has conducted himself in this
action.
And in my respectful submission, it is this very
conduct that grounds exaggerated or extended costs
under Rule 19.06 of the Small Claims Court Rules
10 section s.29 of the Courts of Justice Act.
And the last point I would make, Your Honour, is I
believe, if I'm not mistaken, there was also money
paid into court by Ms. Chopak in the amount of
$1,500 that is still in the trust of the court
15 today. And barring any questions you have, those
are my submissions on costs.
THE COURT: All right. Thank you very much. For
the defence?
MR. RANCE: Your Honour, a few responses to that.
20 My friend draws our attention to section 19.06,
[As Read] If the court is satisfied that a
party has unduly complicated or prolonged an
action or has otherwise acted unreasonably, the
court may order the party to pay an amount as
25 compensation to another party.
Your Honour, the procedural history of this case,
the defendant was noted in default, he didn't have
to move to set that aside. He had discussed that -
but he had attempted to resolve that informally
30 with the plaintiff she refused to consent to
setting aside the default, so he had to actually
bring a motion to have that set aside which was
 21.
Submissions

successful. It was at that motion that the Order

for Costs were to be paid into court, was made.
That action by the plaintiff, by not agreeing to
set aside the default; short of having to argue on
5 a motion, I would submit to you, did prolong the
action. The defendant had no trouble in having
that set aside and then it proceeded from there.
In terms of the defenses raised, I don't think that
my client should be punished for, in his defence,
10 raising the defences available to him, you know,
that's an early stage of the proceeding. I don't
think additional costs should be awarded just while
the defendant tries to figure out what his defences
should be and how to proceed with the case.
15 In terms of how a settlement was approached in this
case, of course there was a settlement conference,
it did not go well. Following the settlement
conference the plaintiff accused my former
colleague, Mr. Lazo(ph), of having forged
20 documents. She wrote a number of letters to
various judges of the court complaining of his
action, accusing him of criminal behaviour and
simply rejecting any efforts to try and resolve the
case.
25 MR. DONALD: Your Honour, I'm just going to object
to this. I don't think it really - even if it - it
has no relevance to the issue of how the action was
conducted and the length of the action itself.
THE COURT: Thank you.
30 MR. RANCE: Your Honour, it does.
THE COURT: Go ahead. I'm just going to hear your
submissions.
 22.
Submissions

MR. RANCE: It does speak to the conduct of the

parties though. Following this procedure, in sort
of, I believe, it was two months or a month after
the settlement conference, was when my former
5 colleague did make the offer to settle. I do
believe that the basis for this offer being that,
if the defendant was successful and there was no
defamation, then you would be entitled to costs.
There already having been the $1,500 paid into
10 costs - paid into court. The offer to withdraw or
the offer to settle the action, basically with the
plaintiff paying the $1,500, that was already in
the courts to the defendant for the expense and
inconvenience that he had already suffered that
15 far. I don't think that - obviously it was a
Settlement Offer the plaintiff was not willing to
accept, but I don't think it can be dismissed
entirely, it was an offer at that time. Certainly,
if the plaintiff had come back with a counter offer
20 the action, perhaps, could have been settled.
THE COURT: Did you receive an offer from the
plaintiff?
MR. RANCE: No. We did receive a letter basically
saying - if I may just find it. The plaintiff
25 wrote to our office stating, "Your office to settle
is absurd and insulting. It does not merit my
response."
THE COURT: This is directly from the plaintiff?
MR. RANCE: It is, yes.
30 THE COURT: Okay. But nothing under Rule 14?
MR. RANCE: No.
THE COURT: All right.
 23.
Submissions

MR. RANCE: So, you know, certainly if a counter

offer had been made, perhaps this issue could have
been resolved, but that was the position my client
was in, was that no offer - there was no chance of
5 settlement, this matter had to go to trial. From
that point forward, they were going to trial. I
don't think anything was made from that point into
trial which prolongs the action. I mean, this was
a complicated action to begin with. I don't think
10 my client should be punished for attempting to
argue the defences.
THE COURT: All right. Well what would you submit
to this court for the court's consideration?
MR. RANCE: We would....
15 THE COURT: What would be reasonable in the way of
costs?
MR. RANCE: We would submit that an order for no
costs would be reasonable. The plaintiff already
is receiving a substantial judgement against my
20 client.
THE COURT: There would be an expectation that if
you win, you may recover costs.
MR. RANCE: Yes.
THE COURT: Isn't that a fair statement?
25 MR. RANCE: It is, yes. Certainly I think that no
more than the maximum amount of costs would be
appropriate. But, I just think that the
plaintiff's unwillingness to try to resolve this
matter, at all, is basically forcing a trial,
30 should be taken into account in the ordering of
process.
THE COURT: All right. Thank you.
 24.
Submissions
Ruling
MR. RANCE: Thank you.
THE COURT: Final words, sir?
MR. DONALD: Your Honour, The defendant did not
treat this. The defendant, a newspaper man, with
5 decades of experience, did not treat this as a
defamation case until the very day of trial. While
I would not use the same language that my client
used in her letter, I would submit to you that the
Offer to Settle, if it can be so called, was
10 entirely inappropriate and is merely another arm of
the same conduct that we saw from him in this
trial.

R U L I N G
15 DE LUCIA, J. (Orally):
All right. The issue of costs in accordance with
the Courts of Justice Act are clearly and
statutorily defined as to be within the discretion
of this court and generally, costs will follow the
20 success of the action.
Ms. Chopak has been successful. She's achieved a
judgement in the amount of $25,000 being the
maximum of this court's monetary jurisdiction. I
have considered the submissions of both counsel
25 that relates to costs and I find that although I do
agree that this case, unlike the Lahrkamp case,
does not rise to the level where the court should
address and be mindful of penalty considerations.
But I do find that the case dictates a substantial
30 award for costs and in all the circumstances and my
consideration of these submissions and the results
achieved by Ms. Chopak, I find that the maximum,
 25.
Ruling

under section s.29 of the Courts of Justice Act, is

the appropriate award in this case. And that award
will be in the amount of $3,750 and that award will
be all inclusive of costs.
5 I will also make an order that the money standing
to the credit of this action, in the amount of
$1,500, and any accrued interest, shall be paid out
to the plaintiff forthwith. In a moment the
registrar will make a copy for each of the parties
10 and again for oral reasons given on the record:
1) Judgement for the plaintiff against the
defendant in the amount of $25,000.
2) Pre-judgement interest in accordance with the
Courts of Justice Act from April 15th, 2015 to
15 February 15th, 2019.
3) Post judgement interest in accordance with the
Courts of Justice Act.
4) Costs payable to the plaintiff in the amount of
$3,750, all inclusive.
20 5) And the order for the payment of the monies
standing to the credit of this action of $1,500 and
any accrued interest to be paid out to the
plaintiff forthwith.
So, this concludes the Chopak and Patrick matter,
25 Madam Registrar. A copy of this endorsement for
the parties. I wish to thank the parties, and in
particular the efforts and presentation by the
counsel.

30 M A T T E R A D J O U R N E
 26.
Certificate

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

5 Evidence Act

I ,
, AMANDA BORYS
(Name of Authorized Person)

certify that this document is a true and accurate transcript of the

recording of
10
in Superior Court of Justice - Small
Chopak v. Patrick the Claims
(Name of Case) (Name of Court)

held
at 47 Sheppard Avenue E., Toronto, Ontario
(Court Address)
15
taken from 4816_111_20190215_085433_ , which has been certified
Recording _2_SCC.dcr in Form 1.

20

March 18, 2019

(Date) (Signature of Authorized Person(s))

25

30