Court File and Parties

Court File No.: 56664/16 Date: 20171204 Superior Court of Justice - Ontario

Re: College of Veterinarians of Ontario, Applicant And: Birgit Johnston, personally, and Birgit Johnston, carrying on business as Cutting Edge K9 Oral Hygiene, Respondents

Before: The Honourable Mr. Justice Robert B. Reid

Counsel: B. LeBlanc and N. Danson, Counsel, for the Applicant Respondents self-represented

Heard: May 15, 2017; costs submissions received by October 17, 2017

Costs Endorsement

[1] The applicant, the College of Veterinarians of Ontario (the "College"), applied for an order requiring the respondents to cease engaging in the practice of veterinary medicine and cease holding themselves out as doing so.

[2] More particularly, the College sought an order as a result of which the respondents would cease engaging in the business of providing anesthetic-free teeth cleaning to dogs.

[3] The respondent, Birgit Johnston (“Ms. Johnston”), is the owner and operator of the respondent, Cutting Edge K9 Oral Hygiene (“Cutting Edge”). Cutting Edge is a dog teeth cleaning salon located in Ms. Johnston’s home in Niagara Falls, Ontario.

Background

[4] For the reasons set out in my endorsement of September 6, 2017, I determined that the respondents had not carried on the practice of veterinary medicine. However, I did conclude that the respondents, that is Ms. Johnston personally and through her business, did hold themselves out as practitioners of veterinary medicine. As a result, a declaration issued to the effect that the respondents had held themselves out as engaging in the practice of veterinary medicine without a licence in violation of section 11(1) of the Veterinarians Act, R.S.O 1990, c.V.3 (the “Act”).

[5] I was satisfied that there had been a continued breach of the Act by Ms. Johnston and that an order equivalent to injunctive relief should be granted.

[6] Therefore, I ordered that Birgit Johnston personally, and Birgit Johnston carrying on business as Cutting Edge K9 Oral Hygiene, be prohibited and enjoined from holding out by statement, advertisement, sign, website or any other media directly or implicitly that she is qualified, able or willing to diagnose, prescribe for, prevent or treat any canine oral health disease, condition or injury, or to examine or advise as to the physical condition of any dog.

[7] Further, I ordered that Birgit Johnston personally, and Birgit Johnston carrying on business as Cutting Edge K9 Oral Hygiene, be prohibited from holding out that she is involved in canine dentistry and that she must forthwith amend her website and any advertising material to delete any reference, either express or implied, to:

• cosmetic cleaning services being an alternative to veterinary oral care for dogs;
• her possession of any professional qualifications as to oral care for dogs;
• her ability to advise on a dog’s oral care or oral health;
• a regular program of oral hygiene for dogs administered by her or by an oral hygienist or veterinarian;
• any health care benefits to be derived from cosmetic teeth cleaning; and
• any description or photographs of periodontal disease in dogs.

[8] I encouraged the parties to resolve the issue of costs consensually. They were not able to do so.

Positions of the Parties

[9] The applicant requests an order for costs in its favour payable by the respondents.

[10] The applicant’s bill of costs indicates actual fees incurred totaling $61,541 plus disbursements of $5,227 which, including HST, totals $75,424.31. The fee amounts are based on hourly rates which vary between $295 and $340 per hour and show total time engaged by counsel of approximately 185 hours. However, the applicant requests that costs in its favour be fixed in the all-inclusive amount of $15,000.

[11] The respondents seek costs payable by the applicant. They were self-represented and there were no costs incurred for legal counsel. However, the respondents estimate that the time spent on the matter at a notional hourly rate of $160 would produce a total of $37,680 plus HST for a total of $42,578.40. This is based on 233 hours of involvement and $400 for disbursements. I note that 75 hours relate to the defence of a charge brought by the Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”) which was not directly related to this application. The respondents seek an order for $31,933.80, which is 75% of the value of the estimated time.

Analysis

[12] In exercising my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990, c C.43 to award costs, I must consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[13] The applicant achieved partial success. Success is a presumptive factor in favour of an award of costs. The respondents, while not found to be engaged in the practice of veterinary medicine, were found to be holding out as practitioners of veterinary medicine. While I did not order that the respondents cease business, I did order that their marketing be significantly amended.

[14] The matter was of significance to the parties. For the applicant, the issue was important since its mandate is to regulate the practice of veterinary medicine in the public interest. For the respondents, the business was in jeopardy as result of the application.

[15] The investigation by the applicant was extensive and the proceedings were moderately complex. Affidavits were exchanged, expert evidence was filed, and cross-examinations on affidavits were conducted.

[16] There were no unnecessary or unreasonable steps taken by either of the parties.

[17] Proportionality is a significant factor in considering whether to award costs and in what amount, as is recognized by the applicant in its submission that a reduced cost award should be ordered in its favour. I agree that proportionality is important in this case. The applicant was able to devote significant resources to the issue and the respondents had no choice but to respond. The respondents had no control over the amount of time or money expended on the matter by the applicants. They were self-represented and therefore incurred no fees directly which, had they done so, might have been a foreshadowing of the amount they would have been expected to pay in the event that the defence was not fully successful.

[18] In addition to the foregoing, I have also considered the other factors set out in rule 57.01 which guide the exercise of my discretion.

[19] In reviewing the hourly rates and time spent by the applicant as per its Bill of Costs, I have no reason to conclude that the amounts were excessive.

[20] As to the respondents, the law is clear that for a costs award to be made in favour of a self-represented party, the two-part test set out by the Divisional Court in Mustang Investigations v. Ironside, 2010 ONSC 3444 must be satisfied, namely that the self-represented party must show that they have devoted the time and effort to do the work that would ordinarily be done by a lawyer retained to conduct the litigation and that they have incurred an opportunity cost by forgoing remunerative activity when so doing.

[21] Here, the respondents have blended time spent on the OSPCA prosecution, time that would have been spent in court or cross-examinations even if a counsel had been involved, and time that would otherwise have been spent by counsel. It is not clear that any amount of time actually devoted to the matter that would have been spent by counsel is reasonable since, as Ms. Johnston admits, she has had to learn how to mount a defence. Most significantly, there is no evidence that the respondents incurred an opportunity cost by forgoing remunerative activity. They have simply applied an hourly rate to hours spent with no evidence that the time would otherwise have been committed to earning income.

Conclusion

[22] Based on the factors set out in rule 57.01 to which I have referred, it is appropriate that a costs award be made in favour of the applicant. Normally, that award would be made on a partial indemnity basis. No other basis is suggested as appropriate by the applicant. A further reduction is appropriate for the fact that only partial success was achieved and based on the issue of proportionality. However, I am satisfied that the amount proposed by the applicant, namely $15,000 inclusive of HST and disbursements, is reasonable. That amount, less HST and disbursements, represents a fee amount of about $8,650, which is about 14% of the applicant’s actual costs incurred.

[23] Having concluded that a costs award should be made in favour of the applicant, it is not necessary for me to directly consider the respondents’ claim. However, even if she had been able to establish some amount of lost time from the business resulting in lost ability to earn income, any such amount would have been more than offset by the significant reduction in the total amount of costs incurred by the applicant from its actual cost to the amount of my award.

[24] Therefore, there will be an order that the respondents pay costs to the applicant fixed in the amount of $15,000 inclusive of HST and disbursements, payable within 90 days.

Reid J. Date: December 4, 2017