CITATION: Hurley v. O.S.P.C.A., 2016 ONSC 649
COURT FILE NO.: 26834/15
DATE: 20160201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA HURLEY
Appellant
– and –
ONTARIO SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
Respondent
Rebecca Hurley, for Self
Brian Shiller, Counsel for the Respondent
HEARD: In Chambers on written submissions
DECISION ON COSTS
A.D. kurkE j.
[1] On December 11, 2015, after eight days of appeal conducted in the legislated form of a trial de novo, I confirmed the determination of the Animal Care Review Board of May 25, 2015, that the appellant’s animals were removed in compliance with Section 14(1)(a) and (c) of the Ontario Society for the Prevention of Cruelty to Animals Act.
[2] Concerning legal costs of the appeal, I invited the parties to provide to me submissions in writing within 30 days, if they were unable to reach agreement as to what would be appropriate. I have received material from the respondent, but nothing from the appellant.
[3] While the OSPCA Act addresses the issue of maintenance costs for animals that have been removed from an animal owner, it is to s. 131 of the Courts of Justice Act and to Rule 57.01 of the Rules of Civil Procedure that the court turns for guidance on the issue of legal costs.
[4] The respondent seeks partial indemnity costs of $46,561.99. Of this amount, disbursements total $16,561.64, made up of expert witness fees and expenses; hotel expenses for OSPCA investigators, witnesses and counsel in Sault Ste. Marie; and airfare charges for Mr. Shiller and Sr. Inspector Michaud, the OSPCA agent who oversaw this case. None of these expenses appears to be unreasonable, especially taking into account that veterinarian Dr. Robertson was required to remain in Sault Ste. Marie for three days.
[5] The respondent seeks reimbursement as well for 75 hours of legal fees at Mr. Shiller’s rate of $400 per hour, put forward as an appropriate rate given his 1993 year of call (Walker v. Daimler Chrysler, 2015 ONSC 1429, at paras. 22 to 28). The 75 hours is made up, essentially, of a written-down total of only 6 hours of court time per day, and preparation costs, including for cross-examination of the appellant’s witnesses, which work was made unnecessarily more cumbersome by the appellant’s refusal to disclose the identity of the witnesses she intended to call as part of her case.
[6] The respondent was almost completely successful in the appeal, although the failure by simple oversight of OSPCA personnel to include two horses’ names on the Notice of Removal resulted in relief from maintenance fees for those animals. By the appeal, therefore, the appellant succeeded with respect to some $4,500 in maintenance fees out of the then total owing the respondent for the appellants’ animals of some $67,000. Otherwise, the appeal was virtually without merit.
[7] The issues on this appeal were not complicated, but were obviously important to the parties. The appellant’s demonization of the respondent in the conduct of its agents towards her appears to have blinded her to the legal strength of the respondent’s position.
[8] In assessing the appropriate quantum of costs due the respondent, which seeks only partial indemnification, I must also bear in mind two competing factors: by the guiding legislation, an appeal from the decision of the Animal Care Review Board must proceed as a trial de novo, which can result in extraordinary legal expenses to the OSPCA for what might be an appeal without merit. On the other hand, it would appear that the intent of the legislation that created an appeal by way of a trial de novo, was to ensure that justice be seen to be done for animal owners who are often without legal representation. Any attempt to deter meritless appeals runs the risk of restraining legitimate appeals from proceeding, for fear by appellants that the legal costs consequences of an appeal could be ruinous.
[9] It is also apparent to me that a heavy costs award will be onerous to the appellant, who already faces an enormous maintenance bill in order to redeem her animals from the care of the OSPCA.
[10] In these circumstances, taking into account all of the factors referred to above, a fair and balanced costs award on a partial indemnity scale would be $25,000, inclusive of disbursements and HST, payable by the appellant to the respondent within 90 days.
A.D. KURKE J.
Released: February 1, 2016
CITATION: Hurley v. O.S.P.C.A., 2016 ONSC 649
ONTARIO
SUPERIOR COURT OF JUSTICE
REBECCA HURLEY
BETWEEN:
ONTARIO SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
DECISION ON COSTS
Released: February 1, 2016