Sandwich chain Subway has been ordered to pay the CBC $500,000 in legal costs following its failed bid to sue the public broadcaster for defamation.

​

In his decision, Ontario Superior Court Justice Ed Morgan attributed much of the length and complexity of the legal battle to the approach taken by the fast-food chain.

​

Subway had sued the CBC for defamation over a Marketplace report in February 2017 that focused on the amount of chicken in its chicken sandwiches. The world's largest fast-food operator sought $210 million in damages.

​

The CBC succeeded in November in having Morgan dismiss the action pre-trial under so-called anti-SLAPP legislation, which aims to protect free speech on matters of public interest. The company, Morgan noted, went all out in fighting the CBC's dismissal motion.

​

"Its materials were overwhelmingly aimed at the issue of truth in the news magazine item that was the subject of the suit — an issue which goes to the heart of the merits of Subway's defamation claim, but is only relevant in a minor way to the SLAPP criteria," Morgan said. "The motion turned into a massive undertaking to which CBC, as moving party, was compelled to reply."

​

Both Subway's approach and the CBC's response required a "Herculean lawyering effort" resulting in a "monument to high-end legal work" in complex litigation, Morgan said. However, the effect was one of extending and complicating what was intended to be a relatively quick procedure, the judge said.

​​

The result, Morgan said, was that CBC racked up a total of $800,000 in legal costs that reflect the "large-scale undertaking" the anti-SLAPP motion became.

​

Morgan decided to round down CBC's cost request given the size of its ask compared with other anti-SLAPP motions, but said there was no other reason to deviate from the expectation that the successful party was entitled to full costs.

​

In addition to ordering Subway to pay CBC $500,000 for legal costs, the restaurant company will also have to pay the broadcaster another $178,000 in fees and disbursements.

​

Morgan's November judgment did allow Subway's negligence suit against Trent University, which did laboratory work for the Marketplace segment, to proceed. He ordered the school to pay Subway $220,000 in costs.