2017 QCCA 2069, 2017 QCCA 2069

Klepper c. Lulham 2017 QCCA 2069 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026516-161 (500-17-087055-151) DATE: December 20, 2017 CORAM: THE HONOURABLE JULIE DUTIL, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. LAWRENCE KLEPPER APPELLANT — Plaintiff v.

CYNTHIA LULHAM PETER TRENT CITY OF WESTMOUNT RESPONDENTS — Defendants JUDGMENT [ 1 ] Upon the appeal of a judgment of November 17, 2016 from the Superior Court, District of Montreal (the Honourable Chantal Lamarche), dismissing proceedings in defamation taken by the appellant against the respondents on the ground that these proceedings are a strategic lawsuit against public participation. [ 2 ] For the reasons of Mainville J.A. to which subscribe Dutil J.A. and St-Pierre J.A., THE COURT : [ 3 ] ALLOWS the appeal and SETS ASIDE the judgment of November 17, 2016 from the Superior Court, District of Montreal; [ 4 ] GRANTS in part the respondents’ application to dismiss; [ 5 ] DISMISSES the action against Peter Trent and the City of Westmount; [ 6 ] ALLOWS the action to continue against Cynthia Lulham; [ 7 ] EACH party assuming its legal costs in the Superior Court and this Court.

JULIE DUTIL, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. Mtre Dominique Pion DOMINIQUE PION AVOCAT For Appellant

Mtre Martin Côté Mtre David Paradis ROBINSON SHEPPARD SHAPIRO For Respondents Date of hearing: December 5, 2017 REASONS OF MAINVILLE, J.A. [ 8 ] Lawrence Klepper (“Klepper”) is appealing a judgment of November 17, 2016 from the Superior Court, District of Montreal (the Honourable Chantal Lamarche) ( 2016 QCCS 5579 ), dismissing proceedings in defamation taken by him against the City of Westmount (“Westmount”), Peter Trent (“Trent”), its mayor, and Cynthia Lulham (“Lulham”), one of its councillors, on the ground that these proceedings are a strategic lawsuit against public participation (“SLAPP”), also known in Quebec as a “poursuite-bâillon”, and are therefore abusive under the meaning of articles 51 to 54 of the Code of Civil Procedure (“ CCP” ).

CONTEXT [ 9 ] Klepper is a 75 year old retired businessman who has been living in Westmount for nearly 30 years. He enjoys feeding the urban wildlife, particularly squirrels. He claims to be obsessed with this pastime. Unfortunately for him, Westmount bans the feeding of wild animals. He has been ticketed many times about this by Westmount, but to no avail. [ 10 ] In July of 2010, Westmount sought a court injunction to enjoin Klepper from feeding wild animals, and from leaving food for that purpose anywhere in its territory.

The matter was quickly resolved through a written undertaking under which Klepper agreed not to feed wild animals anywhere in Westmount. However, contrary to his undertaking, Klepper continued nevertheless. [ 11 ] In May of 2011, Westmount sought another court injunction, which was this time challenged by Klepper.

He claimed that the written undertaking was vitiated and that he had not subscribed to it in a free and enlightened manner, that he suffered from an obsessive compulsive disorder condition which makes him feed wild animals and that, in any event, he was no longer feeding these animals in Westmount. [ 12 ] Klepper also made a cross demand against Westmount. He claimed that his case had been discussed at city council, at which time the prospect of his possible arrest had been raised.

He further claimed that the reason Westmount was seeking an injunction was to silence him as a citizen who had expressed his opinion about the lack of transparency in the city’s public expenditures and who had participated in petitions and campaigns against city projects. He claimed that public security officials had placed him under surveillance at the behest of the city, thus harassing him. He further claimed he had been defamed at city council and in a local newspaper when Trent and Lulham publicly revealed the injunction proceedings initiated against him.

He therefore sought $25,000 in compensatory damages and $75,000 in exemplary damages against Westmount. [ 13 ] In February of 2013, Westmount, in the hope of putting an end to the matter, desisted from its court proceedings on the ground that Klepper had, in fact, ceased feeding wild animals within city limits. Klepper nevertheless pursued his counter-claim, which was subsequently dismissed on July 2, 2013, by the Honourable Robert Mongeon ( 2013 QCCS 2972 ) (“Mongeon judgment”) on the grounds that Westmount had not acted unreasonably and that there was no evidence of any defamation.

Klepper’s appeal of the Mongeon judgment was dismissed by the Court on January 29, 2015 ( 2015 QCCA 169 ). Leave to appeal to the Supreme Court of Canada was denied on September 24, 2015. [ 14 ] Less than a month after the Court dismissed the appeal of the Mongeon judgment, Klepper initiated a court action in defamation against Lulham. Klepper sought $100,000.00 in moral damages and $75,000.00 in punitive damages against her.

He claims that Lulham defamed him on three occasions. [ 15 ] The first was during a city council meeting when a citizen asked if a local "rat problem" was related to work done on the Turcot interchange roadwork. Lulham’s answer was: No, I don't believe so, not by the... If you drop by the Vendôme Metro around 2:30, you'll see the gentleman throwing bags and bags of peanuts and stuff around the Vendôme Metro, but you'll see him all over Westmount. My goal is to put a plea out to the residents to call public security any time they see him. [ 16 ] The second occasion was in an

article published in the Westmount Examiner , a local Westmount newspaper. The

article was entitled " Rat population a growing concern in Westmount " and its subtitle was " Lone individual may be the cause of the city's latest rat problem : city councillor " and contained the following statements by Lulham: According to Lulham, it appears there’s a lone individual responsible for the feeding, violating by-law 257. “I don’t know why they do it, and I don’t begin to even try to know why they do it, but stop. It’s a health hazard.

Rats and pigeons are bad for your health,” she added. [ 17 ] The third occasion was during an interview on CJAD, a radio station in Montreal, pertaining again to Westmount’s concerns about the increasing rat population. Lulham was interviewed in her capacity as a city councillor: THE ANNOUNCER:

There are concerns from city officials in Westmount about a growing rats problem, a rat population that is growing, and there's one area of particular interest. RICHARD DESCHAMPS: Westmount councillor Cynthia Lulham says the problem is most pronounced near Westmount Park, where people often feed squirrels and pigeons. That's against the law in Westmount and offenders can be subject to a $148 fine. It's a by-law, by the way, that's attracted ridicule and a Court challenge in recent years, but Lulham points out seeds and peanut shells attract vermin.

COUNCILLOR CYNTHIA LULHAM: We take it very seriously, we've had issues with large amounts of peanuts and peanut shells in the park, and for children allergies and the like, it's a health concern. [ 18 ] Lulham responded to the proceedings by seeking to have them dismissed as abusive, unreasonable and clearly unfounded in law pursuant to articles 54.1 and 165(4) of the old Code of Civil Procedure .

On September 8, 2015, the Honourable Chantal Masse refused to dismiss the action for the following reasons: Seeing the motion to dismiss; Seeing that at this stage the Tribunal has to take the allegations of the amended introductory motion as proven; Seeing that the issues will have to be decided on the merits on the basis of the evidence that will be produced at the trial; Seeing that at this stage it’s impossible to decide issues of fact. [ 19 ] On November 24, 2015, Klepper amended his action to add both Westmount and Trent as defendants.

On September 25, 2015, Trent gave an interview to the Canadian Press commenting on the decision by the Supreme Court of Canada refusing to grant leave to appeal the Court’s decision dismissing the appeal of the Mongeon judgment. Trent is quoted as stating: "We’ve had a rat-population problem for some years and feeding animals just exacerbates it, especially when you do it in industrial quantities. It’s that simple." That quote was published in many newspapers and news outlets across Canada. Klepper claims that the quote is defamatory as it associates him with a rat problem in Westmount.

He also sues Westmount itself as he claims the city is vicariously liable for Trent’s statement. He seeks moral damages of $75,000 as well as punitive damages of $50,000 and an apology from Trent and Westmount. [ 20 ] On May 3, 2016, Westmount, Trent and Lulham sought to have the action against them dismissed under articles 51 to 54 CCP as a SLAPP. They also alleged that Klepper was attempting to retry the issues dismissed by the Mongeon judgment. Their application was successful as Klepper’s action was dismissed on November 17, 2017. It is that judgment which is now the subject of this appeal.

THE JUDGMENT IN APPEAL [ 21 ] The judge did not accept the submission that Klepper was attempting to retry the issues dealt with in the Mongeon judgment since the cause of action is different here. Indeed, the alleged defamatory statements were all made after the Mongeon judgment was rendered, and each of these statements constitutes a separate cause of action.

The judge also concluded from the evidence that the timing of the proceedings did not demonstrate an intent by Klepper to seek revenge after losing his appeal of the Mongeon judgment. [ 22 ] However, the judge concluded that Klepper’s action was a SLAPP since she was of the view that it sought to restrict Trent’s and Lulham’s freedom of expression in a public debate. The judge expressed herself as follows at paragraphs 62 to 67 and 85 to 88 of her reasons: [62] The Court believes that Defendants have summarily established that Mr.

Klepper's procedure may indeed be a SLAPP. [63] The declarations were made in the course of a public debate. The City has been trying to stop the feeding of wild animals for many years for public health reasons, as it increases the rat population on its territory. The City's concerns have been raised publicly at city council meetings, in newspapers and on radio stations. The issue relates to the well-being of the citizens. [64] Although the impugned declarations have been made by Mrs. Lulham and Mr. Trent as the City's representatives, Mr. Klepper has not limited his claim to the City.

He is also suing those two individuals for substantial sums of money. [65] Moreover, the amounts claimed appear to be unjustified and out of proportion with the alleged prejudice. He has explained that he chose these amounts after discussion with his attorney and that he " felt it was a fair number ". No more justification is given. The Court will return to the issue of the amounts claimed later in the present judgment. [66] Furthermore, the Defendants declarations do not state that Mr. Klepper is by himself bringing rats within the City's territory, contrary to what he is alleging.

They are only referring to the presence of rats as a result of feeding wild animals. If Mr. Klepper feels targeted by these declarations, it is because he feeds wild animals. [67] These elements are sufficient to conclude that Mr. Klepper's proceeding may be abusive. (…) [85] Mr. Klepper argues that he does not want to stop the City from talking about the rat problem. However, his case at this stage

appears to show the exact opposite. [86] As soon as Mrs. Lulham raised in public the issue of feeding wild animals and the rat population, Mr. Klepper filed proceedings against the City and Mrs. Lulham. A few months later, as soon as Mr. Trent mentioned that feeding wild animals exacerbates the rat population problem, as reported in a newspaper article, Mr. Klepper added him as a defendant, claiming $125,000.00 in damages. [87] Obviously, Mr. Klepper wants to stop the City from talking about a health-related public issue. [88] If Mr.

Klepper is allowed to continue with his claim, City officials could be seriously worried about discussing with citizens the public-health issue of rats and the feeding of wild animals given a reasonable fear of becoming the next defendant. This is precisely the chilling effect on any public official that arise from SLAPP actions, resulting in such officials censuring themselves before speaking their mind on a public issue. (…) [ 23 ] Leave to appeal that judgment was granted on January 17, 2017 ( 2017 QCCA 17 ). ISSUES IN APPEAL [ 24 ] The parties raise numerous issues in appeal.

In my view, the Court needs only to answer the two following questions:

(1) Did the judge err in finding that the action was a SLAPP?

(2) If she did err in this regard, is the action otherwise unfounded in law? ANALYSIS First Question: Is the Action a SLAPP? [ 25 ] Declaring an action to be a SLAPP has serious consequences. It can lead to the dismissal of the action even if it has a basis in law [1] . It can also lead to an order of costs and for damages covering, inter alia , the professional fees and disbursements of the defendants to such an action or to an award of punitive damages [2] .

Furthermore, the appeal from a judgment dismissing an action as a SLAPP is restricted because, in such circumstances, leave must first be granted by a judge of the Court [3] . There is also a measure of blame associated with the finding that an action is a SLAPP. This is why judges must be cautious before dismissing an action on the ground that it constitutes a SLAPP [4] . [ 26 ] The distinguishing feature of a SLAPP is that, in purpose or effect, it serves to defeat the ends of justice by restricting freedom of expression in public debate [5] .

The basic characteristics of a SLAPP are that it is (1) a lawsuit (2) against organizations or individuals (3) engaged in the public sphere involving debates relating to collective issues (4) aiming at limiting the freedom of speech of those organizations or individuals and to counteract their actions (5) by using the courts to intimidate or impoverish them and to divert them from their political actions [6] .

Though they may appear in numerous forms and circumstances, SLAPPs have at least two important components. [ 27 ] First, a SLAPP seeks to manipulate the judicial process to the benefit of particular political, social or commercial interests. The use of judicial proceedings for a related political, social or commercial purpose is an important and essential component of the SLAPP as it serves to distinguish it from the interests of a plaintiff who seeks redress in good faith for a genuine reputation wrong but whose case unfortunately resembles the paradigm SLAPP.

As stated by MacDonald, Noreau and Jutras [7] : Sur le plan institutionnel, il s’agit dans tous les cas de pratiques favorisant l’ « instrumentalisation » de l’activité judiciaire au profit d’intérêts politiques particuliers, le recours aux tribunaux constituant une simple stratégie visant la modification d’un rapport de force. […] La dimension politique du phénomène ne doit donc pas être éludée.

Elle établit, d’une certaine façon, la distinction entre les poursuites-bâillons – qui sont souvent assimilées par la littérature à un abus de la procédure judiciaire – et les initiatives visant simplement la mobilisation d’un droit ou la défense d’une prétention fondée juridiquement. Cette distinction est importante car une

partie des critiques formulées au sujet de la définition proposée par les auteurs comme Canan et Pring concernent le fait que cette dernière compromet les initiatives entreprises de bonne foi par un acteur cherchant simplement la correction d’une atteinte à sa réputation. (References omitted) [ 28 ] Second, the disparity of financial resources between parties is also a typical component of a SLAPP.

The plaintiffs to a SLAPP intimidate the respondents – in purpose or effect – by forcing them to engage important material and financial resources in litigation which they can often ill afford, thus silencing them on the political, social or commercial issue at stake or impeding their actions on that issue. The disparity of resources between the plaintiffs and the defendants can lead to the withdrawal of the respondents from the public debate in order to concentrate their time and resources on the litigation or on the avoidance of further litigation.

This aspect of the SLAPP suggests that the overall success of the SLAPP is not a legal victory, but a political one: to intimidate and suppress criticism in purpose or effect. [ 29 ] Though the disparity of resources is not always essential to find that an action is a SLAPP [8] , a tribunal must treat with some reservation pre-emptive measures taken by a powerful and resourceful defendant seeking to dismiss as a SLAPP an action initiated by an ordinary citizen with limited resources.

The anti-SLAPP provisions of the CCP must not themselves become a tool to impede ordinary citizens from seeking redress through the judicial system. [ 30 ] As again noted by MacDonald, Noreau and Jutras [9] :

Le problème de l’égalité des ressources ne constitue, dans cette perspective, qu’une dimension spécifique du problème plus général posé antérieurement, bien que, sur le plan empirique, il s’agisse du problème principal posé par le recours aux poursuites-bâillons . Dans les pays où la pratique du SLAPP est souvent observée, ces questions ont largement été mises en évidence et ont déterminé une

partie des solutions envisagées pour contrer une

partie du problème. (Emphasis added) [ 31 ] In the specific circumstances of the case at hand, none of the fundamental components of a SLAPP are to be found. [ 32 ] Klepper is not seeking to use the judicial process as an instrument to benefit a particular political, social or commercial interest. Obviously, he is seeking to restrain the respondents from associating him personally with rats in Westmount, but his proceedings do not seek to limit public debate with regard to the feeding of wild animals in Westmount or the possible impact that feeding may have on the rat population.

What he is in fact seeking is that he not be individually singled out as the person responsible for the alleged "rat problem". That is far from impeding freedom of expression on Westmount’s "rat problem" or on the possible impacts on that problem resulting from feeding wild animals. [ 33 ] Klepper’s proceedings against Lulham are directly related to the association she has allegedly made between him and the “rat problem”, notably by blaming him as the lone source of the problem [10] : 20.

It would be expected that, if there were indeed a rat problem in a municipality, a diligent city councillor would try to take care of the problem as discreetly as possible and would not go to two medias to speak about an alleged rat problem and blame the Plaintiff as the one individual causing the alleged problem; 21. Said statements constitute a clear, unlawful and intentional interference with the right of the Plaintiff to safeguard his reputation, a right protected by

section 4 of the Charter of Human Rights and Freedoms. [ 34 ] It is noteworthy that when Lulham submitted her first motion to dismiss the action to the Honourable Chantal Masse, no mention of a SLAPP was made, nor did she submit that Klepper’s legal proceedings impeded her freedom of expression. The failure to raise these issues in a timely fashion is telling. [ 35 ] Likewise, with respect to the statement made by Trent, Klepper’s proceedings are not aimed to impede the mayor from talking about the « rat problem » and the potential impact the feeding of wild animals may have on that problem.

Rather, the proceedings are aimed at the association made between that problem and Klepper personally [11] : 30.5 That statement is a clear reference to the feeding of animals done by the Plaintiff, since this interview was solely about the case of the City of Westmount vs.

Lawrence Klepper, which was about whether the City of Westmount had violated the right to privacy of the Plaintiff by exercising illegal and abusive surveillance of the Plaintiff; 30.6 Without being asked and in bad faith, Mayor Trent intentionally brought up the subject of the alleged presence of rats in Westmount in order to defame and denigrate the Plaintiff in bad faith, when the subject of the interview was the decision of the Supreme Court on the case of City of Westmount vs.

Lawrence Klepper; 30.7 In that context, bringing up the subject of the alleged presence of rats in Westmount was done in bad faith in order to intentionally defame the Plaintiff. [ 36 ] Moreover, there is no dispute that Westmount has large material and financial resources at its disposal for the purposes of the litigation. These resources also benefit the other respondents, since Westmount is bound to defend its elected officials in the action [12] . As for Klepper, he is an elderly retired citizen residing in the city.

In the circumstances of this case, it was up to the respondents as the parties invoking the anti-SLAPP provisions or the CCP , to submit evidence that there was a disparity of resources between themselves and Klepper which supported their submission that his action was a SLAPP. In the absence of such evidence, it is reasonable to assume that an elderly retired citizen has considerably less financial and material resources at his disposal than does a relatively large municipal government.

In point of fact, it is Westmount which has been using state power and state resources against Klepper by initially ticketing and fining him and then seeking court injunctions against him. Again, a usual component of a SLAPP is absent here. [ 37 ] The respondents also rely on the judge’s finding that the amounts claimed by Klepper are unjustified and out of proportion to support the idea that his legal proceedings are a SLAPP.

The amounts claimed here — $100,000 in moral and $75,000 in punitive damages against Lulham and $75,000 in moral and $50,000 in punitive damages against Trent — though high, are not objectively outrageous. These amounts were determined by Klepper’s lawyer taking into account his analysis of the case law at the time the action was initiated which, in his view, indicated a tendency towards higher awards in defamation cases [13] . In the circumstances at hand, the amounts claimed cannot alone justify a finding of a SLAPP under

article 51 CCP . [ 38 ] In conclusion, Klepper’s court proceedings in this case do not constitute a SLAPP. Klepper’s proceedings are not intented to impede public discussion on a public health issue. The principal issue raised by the defamation proceedings is the association made between Klepper personally and the alleged “rat problem” in Westmount. That issue concerns Klepper personally and does not impede public debate about the “rat problem” itself or the effects on that problem resulting from feeding wild animals.

Second Question: Is the Action Otherwise Unfounded in Law [ 39 ] The Honourable Madam Justice Chantal Masse already rejected Lulham’s motion to dismiss Klepper’s action as abusive, unreasonable and clearly unfounded in law. The Masse judgment has not been appealed. Consequently, the action against Lulham shall continue. [ 40 ] The issue here is whether the action should also continue against Trent. In my view it should not because the action against Trent is unfounded in law whether or not the facts alleged are true. That action may be properly dismissed under

article 168 CCP .

[ 41 ] The news

article by the Canadian Press in which Trent’s statements were published reads as follows in its entirety: A Montreal-area man who went all the way to the Supreme Court in a battle that originated with his feeding squirrels and birds in public spaces says he was fighting for all Canadians. Lawrence Klepper, 73, received nine violations between 2006 and 2011 from the City of Westmount, a community located just west of downtown Montreal.

The city took exception, for health reasons, to his animal-friendly practice of feeding wildlife with nuts and birdseed and had him followed by a public security official in an unmarked car. Westmount filed injunctions against Klepper but withdrew them when he stopped feeding the animals and birds. But Klepper proceeded to the Supreme Court with a cross demand to seek punitive and moral damages, alleging his right to privacy and dignity had been violated because of the surveillance. The high court said Thursday it would not hear his case.

Klepper expressed disappointment and sadness with the decision. ”This was not a file of Klepper versus the City of Westmount,” he said in an interview Friday. "This file was really for citizens across Canada.” Klepper said he loves all animals and donates money to animal charities, hospitals and other organizations. ”I don’t have any particular more love for squirrels or birds than I have for all animals and all humanity,” he said.

"I don't have any unusual behaviour. l've never been in court in my life prior to the city taking an injunction against me.” His lawyer, Dominique Pion, called Thursday a "sad day for the right of privacy in Canada.” "We’re both greatly disappointed that the Supreme Court didn't grant the leave in this case,” Pion said in the same interview. “Our main goal in making such an application was that the Supreme Court would set limits to the power of surveillance exercised by public security officers." Westmount Mayor Peter Trent expressed satisfaction at seeing the case end and pointed to a Quebec Superior Court ruling from 2013 that said the city had the right to enforce its laws and that Klepper’s case was without merit.

Trent said Westmount received a letter in April 2010 from Montreal public health officials that talked about a large colony of rats having established itself near a very popular park because of peanuts being tossed on the ground. ”lt’s a matter of public health,” Trent argued. "We've had a rat-population problem for some years and feeding animals just exacerbates it, especially when you do it in industrial quantities.

It’s that simple.” On the surveillance front, the mayor referred to the following passage in the Superior Court ruling: ”lf the enforcement of bylaws means the exercise of adequate surveillance, let there be adequate and reasonable surveillance.” As for Klepper, he doesn't believe he's still under surveillance. I’m very comfortable right now,” he said. ”Hopefully, it will stay that way.” [ 42 ] The statements by Trent in that

article were made in the immediate aftermath of the dismissal of Klepper’s leave application to the Supreme Court of Canada on September 24, 2015, with respect to this Court’s dismissal of the appeal of the Mongeon judgment.

The statements were also made in a context where Klepper was himself publicly justifying his wild animal feeding habits and publicly presenting himself as a victim of unjustified oppression by Westmount. [ 43 ] As noted in the Mongeon judgment, Westmount has alleged since the beginning of its proceedings against Klepper that his “illicit feeding activities date back to 2006 and that he had been feeding wild animals with such quantities of food that even rats were attracted in large quantities in the area”: Mongeon judgment, par. 7.

Consequently, it is clear from the record that Westmount’s justification for impeding Klepper’s animal feeding activities was that it feared that these activities would attract rats. This is also one of the policy justifications for Westmount’s by-law prohibiting the feeding of wild animals.

In that context and in the context of Klepper publicly presenting himself as a victim of oppression from Westmount, it was entirely justifiable for the mayor of Westmount to refer to the city’s long-standing justification to explain why it had taken measures against the feeding of wild animals and why the city was pleased that the Supreme Court of Canada had dismissed the leave application. [ 44 ] As stated by the Supreme Court of Canada, defamation involves asking “whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person” [14] .

Trent’s remarks to the Canadian Press manifestly do not cross that threshold. Taken in context, Trent’s statements to the Canadian Press cannot be deemed defamatory under any applicable legal standard.

As a result, the action against Trent will be dismissed. [ 45 ] The statements by Trent contrast somewhat with those of Lulham in that they do not single out Klepper as the person responsible for Westmount’s alleged “rat problem.” As reported by the Westmount Examiner, Lulham would have stated that a lone individual could be the cause of the city’s “rat problem.” Whether this statement and the other statements attributed to Lulham in Klepper’s proceedings are defamatory and whether Lulham may benefit from the qualified privilege described in Prud’homme c.

Prud’homme , 2002 SCC 85 , [2002] 4 S.C.R. 663, are matters best left to be determined at trial, as determined in the Masse judgment. CONCLUSION [ 46 ] For these reasons, I would allow the appeal, set aside the judgment of November 17, 2016, and grant in part the respondents’ application to dismiss, dismiss the action against Trent and Westmount, but allow the action to continue against Lulham, each party assuming its legal costs in Superior Court and this Court taking into account the mitigated result of the appeal. ROBERT M. MAINVILLE, J.A.