Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission d’étude des soins aux animaux

Date: 2021-10-25

Appeal under s. 38 of the Provincial Animal Welfare Services Act, R.S.O., 2019, c.13

Between:

Thomas Pryde, Adrienne Spottiswood & Georgina Pierce

Appellants

and

Chief Animal Welfare Inspector

Respondent

MOTION DECISION

Adjudicator: Harriet Lewis, Member

For the Appellants: Eric Gillespie, Counsel John May, Counsel Yasmeen Peer, Counsel Kristian Ferreira, Student-at-Law

For the Respondent: Jason Kirsh, Counsel Deanna Exner, Counsel Padraic Ryan, Counsel Waleed Malick, Counsel

BACKGROUND

1The appellants are the owners of Windrift Adventures In. (“Windrift”) , a dog sledding and horse-riding business in two Ontario locations: one in the Township of Oro- Medonte (“Moonstone”) and the other in the Township of Severn. (“Severn”)

2On September 23, 2021 the respondent issued the appellants with two Notices of Removal to Owner or Custodian ( the “removal notices;”), whereby “111 dogs of various breeds, age, sex and colour and 7 husky type puppies of approximately 8 weeks” were removed from the Moonstone location, and “115 dogs of various ages, sex and colour” were removed from the Severn location; both pursuant to s. 31(1)(c) of the Provincial Animal Welfare Services Act, 2019 (the “Act”).

3The respondents allege that the removal was a result of the appellants’ failure to abide by the terms of Compliance Orders issued in relation to the dogs which set an extended compliance date of September 1, 2021. Therefore, the animals were removed for the purpose of providing them with necessaries to relieve their distress.

4The appellants have appealed the Compliance Orders to the Animal Care Review Board (the “Board”). They have also appealed the removals, asserting among other grounds, that the animals were not in distress at the time they were removed.

5On September 30, 2021, the respondent notified the appellants of its decision to keep the animals in the care of the Chief Animal Welfare Inspector pursuant to s. 31(6)(b)(i) of the Act on the basis that the animals may be placed in distress if returned to their owners or custodians. The appellants have also appealed that order to the Board.

6The parties have brought several preliminary motions to the Board in advance of the hearing of the substance of these appeals. This motion, brought by the appellants, originally asked the Board for an Order “dismissing the proceeding” and “directing the return of the dogs removed to their owners or custodians pursuant to subsection. 38(9) of the Act”. An Amended Notice of Motion, filed on October 3, 2021 asked in the alternative to the original relief, “an interim stay prohibiting the Respondent from continuing to give effect to the removal” and for an “interim injunction prohibiting the Respondent from continuing to give effect to the removal”. The parties later agreed that the appellants do not want the proceeding dismissed and that the Board has no jurisdiction to grant an interim stay or an interim injunction. This was reflected in a decision of this Board issued by Adjudicator Friedland on October 14, 2021. However, the appellants are still seeking the return of the dogs pending the hearing before the Board of their appeals of the removal orders.

7Also, in a previous motion, the respondent argued that this Board did not have jurisdiction to consider making an order to return the animals on a preliminary motion such as this. It argued that the powers of the Board to return the dogs given by s. 38(9) of the Act can only be done “after a hearing” and by “a hearing”, the wording of the statute contemplates a full hearing on the merits. A full hearing of the appeal of the removal orders before the Board has been set and was to have begun on the date this motion was argued.

8In a second Order issued on October 14, 2021 by Adjudicator Friedland, she ruled that there was no jurisdictional barrier to this Board’s “considering” a motion for the return of the dogs pending the full hearing. In doing so she referred to s. 1 of the Statutory Powers Procedure Act, R.S.O. 1990, C. 22 which defines a “hearing” as “a hearing in any proceeding”.

9While the original notice of this motion contained a number of grounds, by the time the parties argued it before the Board , they had agreed that the only ground they would argue was that there is a “multiplicity of proceedings relating to the same subject matter”. In the wording of the appellants’ Notice of Motion, as “matters of natural justice and procedural fairness, a multiplicity of proceedings is to be avoided.”

10Each of the parties provided affidavit evidence in support of their positions. The appellant filed an affidavit of Sarah Quildon, a legal assistant in the office of counsel to the appellants, which contained correspondence between the parties and material directed to the substantive appeal of the removal orders which is before the Board. The respondents filed affidavits of Crystal Caldwell and Lisa Shaw, law clerks employed by the Legal Services Branch, Ministry of the Solicitor General. The parties agreed that there would be no cross-examination on these affidavits.

11After seeing the evidence of the parties and hearing their arguments as noted below, the motion is dismissed.

Appellants’ Argument

12The appellants contend that because of the multiplicity of legal actions outstanding between the parties, and because a multiplicity of proceedings is to be avoided in the interests of natural justice, an interim order should be made by the Board returning the dogs to the appellants pending the Board hearing their appeal of the removal. As I understand the requested relief, notwithstanding the wording of the motion, or the grounds on which it is being argued, they are asking the Board to order the return of the animals to the appellants in order to ensure not only the wellbeing of the animals, but also the wellbeing of the appellants and their family members and the survival of Windrift’s dog-sledding business.

13In support of its argument the appellants’ counsel referred to the history of his clients’ interactions with the respondent’s inspectors, the precarious health of one of the appellants and her family members, the vulnerability of Windrift’s business without the dogs, and actions between the appellants and respondent in the Ontario Court of Justice, the Divisional Court and the Superior Court of Justice.

The Respondent’s Argument:

14The respondent argued that while there have been and are several other proceedings between the parties, there is no multiplicity of proceedings that deal with the same issues or with the same purpose that would prevent the appeals of the removal orders being heard by the Board expeditiously as scheduled. If the appellants do not want the hearing on the merits of the removal to occur until other issues between them are resolved, the proper action is to ask that the removal hearing be adjourned by the Board. The return of the animals does not “flow” from an adjournment of a hearing on the merits or from a multiplicity of proceedings. Further, subsection 38(11) of the Act provides that the only circumstance in which the Board can order the return of an animal without a full hearing is if the Chief Animal Welfare Inspector and the parties who issued the order consent to the return and in this case, they have not consented.

Is there a multiplicity of proceedings that offends natural justice and procedural fairness?

15Evidence in the form of the affidavits filed by the parties and exhibits attached thereto confirm that there have been and still are a number of proceedings before the Board and the Courts involving the appellants. As noted, a number of motions have been filed in this proceeding before the Board. There is also evidence of actions or intended actions in respect to Windrift, the appellants, the respondent and this Board in the Ontario Court of Justice, the Superior Court of Justice and the Divisional Court.

16The cases in the Ontario Court of Justice relate to provincial offence charges laid by officers of the respondent on March 11, 2020. Court material setting out these charges was appended to the respondent’s affidavits. The charges contain eight counts of alleged breaches of the Act: four with respect to each of the appellants’ Moonstone and Severn locations. These are stated to have arisen from the failure of the appellants to give inspectors assistance in conducting an inspection and failing to comply with orders relating to housing and length of tethers. According to a note appended to the respondent’s affidavit from Sara Munoz, Regional Supervisor, GTA Region of Animal Welfare Services, (“AWS”), these charges are scheduled for a pre-trial hearing in December of this year. While these charges are against the appellants, they are quasi- criminal matters which, except for the charge respecting failure to comply with a compliance order, allege that the appellants interfered with the inspectors’ right to conduct inspections. They have no relevance to the matters in issue in this appeal.

17The proceedings in the Divisional Court are an application by the appellants for judicial review of decisions of this Board as well as an urgent motion for a stay of the Removal Orders or in the alternative an interim injunction of the Removal Orders. The judicial review application is dated and was filed with the Divisional Court on April 19, 2021. That action challenged the decision of this Board made in February 2021. It had apparently not moved forward when on October 4, 2021, (after the removal order that is the subject of this proceeding), the April 19, 2021 application was replaced with a “Fresh as Amended Notice of Application for Judicial Review”. Among other things, the amended application appeals the order of this Board which refused a reconsideration of a Board decision made to uphold compliance orders. Neither of these matters concern the removal of the animals. According to materials appended to the affidavit of Lisa Shaw, a case conference was recently requested by the judge having carriage of the matter. I therefor conclude that it is proceeding. Although the action arises because of decision of this Board in respect to the same appellants, I do not find that it pertains to the same subject matter. The judicial review is a review of the decision of the Board, not of the animal welfare officials.

18There appear to have been at least two actions initiated or prepared to be initiated by counsel on behalf of one or more of the appellants in the Superior Court of Justice against the Chief Animal Welfare Inspector and other named inspectors who have had dealings with the appellants. Materials reflecting these actions and their delivery to Michael Sims, the counsel having carriage of the Superior Court matters for the respondent, were attached as exhibits to the affidavit of Ms. Shaw filed by the respondents.

19On July 30, 2021 counsel for the appellants gave notice to the Crown Law Office-Civil pursuant to the Crown Liability and Proceedings Act 2019 of a claim by Windrift against the Chief Animal Welfare Inspector and eight other named inspectors. The claim is for specific and punitive damages in the amount of $800,000. That claim does not contain a court file number and does not appear to have been issued.

20On September 15, 2021, counsel for Windrift and Adrienne Spottiswood as plaintiffs, provided Mr. Sims with a Notice of Constitutional Question again naming the Chief Animal Welfare Inspector and eight other named inspectors as defendants. In that action, the plaintiffs’ claim that the respondents’ inspections on the Windrift properties are a violation of Ms. Spottiswood’s and her family’s right to security of the person pursuant to section 7, subsections 24(1) and (2) of the Canadian Charter of rights and Freedoms. A copy of that action, which also does not bear a court file number, was attached to Ms. Shaw’s affidavit. It also appears not to have been issued.

21I conclude from the foregoing, none of which was contradicted by either party, that apart from the appeal of the removal orders and the motions preliminary thereto, only the matters in the Ontario Court of Justice were instigated by the respondents. All the other proceedings were instigated by all or some of the appellants in this matter.

22Neither counsel referred in argument to authorities on the effect of the multiplicity of proceedings on natural justice. I find that none of the foregoing proceedings address the same issues as the appeals of the removal orders and not all have the same parties. Further, of the several actions or proposed actions noted above, only the matters in the Ontario Court of Justice can be said to have been initiated by the respondents. The others are actions or anticipated actions by all or some of the appellants, who now seek extraordinary relief on the basis that there has been an issue of procedural fairness due to multiple proceedings which they initiated.

23The respondent argued that if the appellants do not wish to proceed with their appeals of the removal orders, the appropriate action is to ask that their appeals be adjourned. I agree. However, I understand that the appellants in fact do wish to proceed with their appeals of the removal orders but are asking that the dogs be released to them as an interim measure.

Does the Board have the authority to release the animals from the custody of the Chief Animal Welfare Inspector pending the hearing of the appeal ?

24The Board’s power and authority is established by s.38 (9) of the Act. Its processes are governed by the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Version 1(October 2, 2017) (as amended) (the “Rules”).

25Section 3.1 of the Rules states that they are to be liberally interpreted and applied to facilitate a fair, open and accessible process , allow effective participation by all parties, ensure efficient, proportional and timely resolution of the merits the proceedings and ensure consistency with governing legislation and regulations. (emphasis added). In this case, s.38 of the Act has addressed the matter of the Board’s powers including its power to return animals to their owner or custodian.

26Section 38 of the Act provides for appeals to this Board. Subsection 38 (8) establishes the procedure at the hearing, “subject to the Rules of the Board”. The wording contemplates a full hearing, including the presence of the parties, the calling of witnesses and their cross examination, and the presentation of arguments. As I read the Act, it is only after a hearing of the merits of a case that the Board may decide to order the return of an animal.

27There is one exceptional circumstance in which the Board has authority to use its powers without a hearing on the merits. Section 38 (11) of the Act provides that if consent to the use of a power in section 38 (9) or (10) is given by the Chief Welfare Inspector and the person who issued an notice or order, the Board may exercise its s. 9 powers, including returning an animal to its owners or custodians, without a hearing. No such consent has been given.

28As of the date of the hearing of this motion, I have no evidence as to the level of distress that led the respondent to remove the animals from the custody of the appellants and decide to keep them in care. Nor have I evidence of the status of the appellants’ compliance with the compliance orders or any other conditions on the appellants premises such that I can determine whether the animals would suffer distress if returned. While I note the health and business concerns of the appellants, the concern of the Board is only with the condition of the dogs and their wellbeing. Those issues are best dealt with not on an interim motion, but at a full hearing on the merits as outlined in section 38(8) of the Act.

DECISION

29The appellants’ motion for return of the animals pending the hearing of this matter is dismissed.