There are times when a local government is compelled to commence a court action to protect public safety. Dangerous dog destruction applications, made pursuant to section 49 of the Community Charter, often fit into this category. Such applications can be hard fought and drawn out by appeal, the result of which can be expensive for the local government seeking the destruction order. The light at the end of the tunnel is the potential for recovering costs if successful in court, though the authority for a cost award is not well established in the case law.
That has changed somewhat in the recent decision of Mr. Justice Barrow in Smith v. Central Okanagan (Regional District) 2013 BCSC 1063. The history of this matter is that the Regional District applied for and was granted a destruction order for the dangerous dog “Diesel” at the Provincial Court level. The dog owner, Mr. Smith, appealed the decision in B.C. Supreme Court and was partially successful. At appeal, Justice Barrow confirmed the dog was a dangerous dog and that the dog should not be returned to the owner, but set aside the destruction order. The parties then made submissions to the court for costs of the appeal.
Cost awards are typically allowed to the successful party in civil cases, but are rarely allowed in criminal or quasi-criminal matters beyond a nominal level. In considering whether to award costs, Justice Barrow first considered how to properly categorize section 49 applications to determine whether such an application is more akin to a civil or criminal matter. The Court found that unlike a criminal proceeding, section 49 is not aimed at punishment, imprisonment, or a fine, but it does allow for seizure of personal property (i.e. the dog) without compensation and pursuant to a warrant. On the civil side of the spectrum, the standard of proof in a section 49 application is a civil standard and the broad purpose of the legislation is public safety. Based on the above, Justice Barrows held that a section 49 application does not neatly fit into either category, but overall is more akin to a civil proceeding rather than a criminal proceeding.
As a result, the court held that it did have wide discretion to make an order for costs of the appeal, relying upon section 112 of the Offence Act, but held that a costs award would not flow as automatically as it would in a purely civil matter. In determining the quantum of costs, the court used the scale of costs set out in the Supreme Court Civil Rules and summarily fixed costs payable to the Regional District at 67 percent of the total bill of costs, for a total of $9,987.82 plus $2,365.18 in disbursements. The percentage reflected the Regional District’s partial success on two of three items at appeal.
The Regional District also sought an award of the pound charges for holding the dangerous dog, in the amount of $22,216. The court declined to make an order for the pound charges, holding that it was a necessary expense of the Regional District incurred on behalf of its citizens in their protection. The court, however, did suggest that had Mr. Smith been entirely unsuccessful in his appeal instead of only partially unsuccessful, the court may have considered the pound charges for the time between the Provincial Court decision and the appeal decision.
This is a useful decision that provides some needed clarity to the issue of costs surrounding section 49 applications. Though a cost award will typically not compensate a local government for all the legal fees actually expended, the possibility of the court imposing a cost award could deter a dog owner from initiating an appeal and therefore prevent the legal fees from even being incurred in the first instance.