Pryde et al. v. Chief Animal Welfare Inspector, 2021 CanLII 141386

Animal Care Review Board

Date: 2021-11-17

Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce Appellants

and

Chief Animal Welfare Inspector Respondent

MOTION DECISION & ORDER ON THE RESPONDENT’S MOTIONS

Adjudicator: Lindsay Lake, Member

Appearances:

For the Appellant: Eric Gillespie, Counsel; John May, Counsel; Yasmeen Peer, Counsel For the Respondent: Jason Kirsh, Counsel; Deanna Exner, Counsel; Padraic Ryan, Counsel; Waleed Malik, Counsel; Carol Drumm, Student-at-Law

Court Reporter: Barbara Pollard

Heard by videoconference: November 9, 2021

Overview

1The appellants run a dog sledding and horse-riding business out of two locations in Ontario. One is in Oro-Medonte (“Moonstone”) and the other is in the Township of Severn (“Severn”).

2On September 23, 2021, the Chief Animal Welfare Inspector (the “CAWI”), the respondent, removed all of the appellants’ dogs from both of the appellants’ properties pursuant to s. 31(1) of the Provincial Animal Welfare Services Act, 2019 (the “Act”).¹ Over 200 dogs were removed in total. The respondent subsequently decided to keep all of the dogs in its care pursuant to s.31(6) of the Act.

3The appellants have appealed the respondent’s removal orders and decisions to keep the removed dogs to the Animal Care Review Board (the “Board”). The appellants’ grounds of appeal include the following:

(a) That the removal of the dogs caused distress and/or critical distress as defined under the Act;

(b) That the removal of the dogs violated sections 3(1), (3), (4), (5), (6) and (7) of Ontario Regulation 444/19; and

(c) That the removal and/or keeping of the dogs violated the appellants’ constitutional rights under s. 7 and/or s. 8 of the Canadian Charter of Rights and Freedoms.²

4On October 6, 2021, the respondent filed two Notices of Motion seeking the following orders from the Board:

(a) An order striking the appellants’ grounds of appeal as set out in paragraph 3 and (b) above and precluding the appellants from calling evidence, cross-examining, or making submissions on the basis of these grounds at this hearing;

(b) An order prohibiting the appellants from calling evidence, cross-examination, or making submissions on any issue that has already been determined in the previous two proceedings before the Board involving the parties;³

(c) An order that the Board is not a court of competent jurisdiction for the purposes of s. 24 of the Charter; and

(d) An order striking the appellants’ grounds of appeal as set out in paragraph 3 above and precluding the appellants from calling evidence, cross-examining, or making submissions on the basis of these grounds at this hearing.

5The appellants opposed the respondent’s motions which were heard separately before me during the hearing of this matter on November 9, 2021.

Result

6Having received both the written and oral submissions from the parties, I order that the following portions of the appellants’ grounds of appeal are struck and the appellants are precluded from calling evidence, cross-examining, or making submissions on the basis of these grounds at this hearing:

(a) That the removal of the dogs caused distress and/or critical distress as defined under the Act;

(b) That the removal of the dogs violated sections 3(1), (3), (4), (5), (6) and (7) of Ontario Regulation 444/19; and

(c) That the removal and/or keeping of the dogs violated the appellants’ constitutional rights under s. 7 and/or s. 8 of the Charter.

7I also order that substantive issue (b) as set out in paragraph [9] of my November 10, 2021 Adjournment Order is amended as follows: Were each of the dogs at the Moonstone and Severn properties in distress prior to their removal on September 23, 2021 as defined in the Act?

8Finally, the respondent’s request for an order prohibiting the appellants from calling evidence, cross-examination, or making submissions on any issue that has already been determined in the previous two proceedings before the Board involving the parties is denied.

Analysis

Strike grounds of appeal re: the removal of the dogs

9The respondent has requested that the Board strike the following appellants’ grounds of appeal:

(a) That the removal of the dogs caused distress and/or critical distress as defined under the Act; and/or

(b) That the removal of the dogs violated sections 3(1), (3), (4), (5), (6) and (7) of Ontario Regulation 444/19.

10It is the respondent’s position that the Board has no jurisdiction to make any findings on, no powers to inquire into, or determine allegations about the conduct of inspectors or about alleged treatment of animals during a removal. The respondent submitted that the sole issue for the Board to consider in this matter regarding the removal of the dogs is whether the decision to remove the dogs was authorized by s. 31 of the Act. The respondent submitted that the appellants’ attempt to raise conduct of its inspectors during and after the removal of the dogs is irrelevant as to whether the decision to remove the dogs was authorized under s. 31 of the Act.

11To support its position, the respondent relied upon three previous decisions of the Board. First, the respondent relied upon Vice Chair Victor’s earlier Board decision involving the same parties in Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector.⁴ In that decision, Vice Chair Victor held that the Board has no role in overseeing the code of conduct of Animal Welfare Service (“AWS”) Inspectors because Inspector conduct is addressed by a different section of the Act.⁵

12Second, the respondent relied upon the Board’s decision in Stokes v. Chief Animal Welfare Inspector.⁶ In Stokes, the Board declined to comment on the conduct of the AWS Inspector as it was outside the jurisdiction of the Board given that complaints are addressed in Part III of the Act under a separate procedure.⁷

13Third, the respondent relied upon the Board’s decision in Blais v. Chief Animal Welfare Inspector.⁸ In Blais, the Board held that how the AWS Inspectors perform their duties, or the suggestions by the appellant in that matter that the removal of the horses was a “money grab,” are not issues for the Board to determine and were not addressed in the decision.⁹

14The appellants, however, submitted that Member Friedland already determined whether the AWS Inspectors’ conduct during and after the removal is relevant to the issues in dispute given her October 25, 2021 Motion Decision and Order regarding the appellants’ disclosure request (the “disclosure order”). The appellants submitted that Member Friedland found that the circumstances of the removal may be relevant to whether the respondent is able to discharge its onus of proving the lawfulness of the removal.¹⁰ The appellants, therefore, pled and relied upon issue estoppel such that I am unable to strike the appeal grounds that the removal of the dogs caused distress and/or critical distress as defined under the Act and/or that the removal of the dogs violated sections 3(1), (3), (4), (5), (6) and (7) of Ontario Regulation 444/19 because the relevance of these grounds has already been determined by the Board.

15While I am not bound by previous decisions of the Board, I find the line of decisions of Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, Stokes and, Blais persuasive and agree that the Board has no jurisdiction to address AWS Inspector conduct. I appreciate Member Friedland’s comments in the disclosure order regarding the relevance of disclosure relating to the conduct of AWS Inspectors to the matter before me. However, I find that issue estoppel does not apply in this situation as Member Friedland only considered the relevance of documents for the purpose of ordering disclosure, not what grounds the appellants could rely upon or the evidence that could be led at the hearing. Notably, Member Friedland also found that the ordered disclosure may be relevant to the issues in dispute, not that it was relevant.

16Given the wording of s. 31(1) of the Act, I also find that the issue before me to determine is whether the dogs were in distress prior to their removal on September 23, 2021. Section 31(1) only permits an AWS Inspector to remove an animal from the place where it is and take possession of it for the purposes of providing it with necessaries to relieve its distress, which indicates to me that a removed animal would need to have been in distress prior to the removal.

17Therefore, having considered the parties’ submissions and considering the plain wording of s. 31(1), I am granting the respondent’s request to strike the following portions of the appellants’ grounds of appeal:

(a) That the removal of the dogs caused distress and/or critical distress as defined under the Act; and

(b) That the removal of the dogs violated sections 3(1), (3), (4), (5), (6) and (7) of Ontario Regulation 444/19.

18Given my comments in paragraph [16] above, I also order that substantive issue (b) as set out in paragraph [9] of my November 10, 2021 Adjournment Order is amended as follows: Were each of the dogs at the Moonstone and Severn properties in distress prior to their removal on September 23, 2021 as defined in the Act?

Order to preclude the appellants from relitigating previous findings of the Board

19The respondent seeks an order prohibiting the appellants from calling evidence, cross-examining, or making submissions on any issue that has already been determined in the previous two proceedings before the Board involving the parties. The respondent relies upon the doctrine of res judicata and abuse of process to support its request.

20By way of background, the Notices of Removal were issued in this matter because of alleged noncompliance with an order of the Board issued on June 23, 2021¹¹ that confirmed Compliance Orders in relation to the dogs’ tether lengths and bedding, though the Board varied the Compliance Order relating to the size of the dog houses. The compliance dates of the Orders were also amended to September 1, 2021. Both parties’ requests for reconsideration of this decision were denied,¹² and the appellants have commenced a judicial review application of the Board’s decision that is currently before the Divisional Court.

21The respondent’s request for an order prohibiting the appellants from calling evidence, cross-examining, or making submissions on any issue that has already been determined in the previous two proceedings before the Board involving the parties is denied as the doctrine of res judicata does not apply in this matter.

22The doctrine of res judicata prevents a party from re-litigating a dispute that has already been decided. It is well settled that there are four prerequisites to be established before a finding that the doctrine of res judicata applies which are as follows:

(a) The two actions must involve the same parties or their privies;

(b) The claim sought to be asserted must have been within the prior court’s jurisdiction;

(c) Prior adjudication must have been on the merits; and

(d) The prior decision must have been a final judgement.

23Although the parties are the same as in the Board’s hearing before Vice Chair Victor, I find that the prior adjudication did not address the same issues that are in dispute in this matter and, therefore, fails on the third prerequisite. In this matter, I must determine if the dogs were in distress prior to their removal on September 23, 2021 whereas the issue that was before Vice Chair Victor was whether the dogs were in distress at the time that the compliance orders were issued on February 25, 2021.¹³ Therefore, the issues in dispute before the Board are not the same.

The Board and s. 24 of the Charter

24The respondent seeks an order that the Board is not a court of competent jurisdiction for the purposes of s. 24 of the Charter and, therefore, does not have jurisdiction to grant Charter remedies. The respondent concedes that there are conflicting decisions by the Board on whether it has Charter jurisdiction but submitted that the Board has yet to consider if it has Charter jurisdiction under the Act which recently came into force on January 1, 2020.

25The respondent submitted that the Ontario Court of Appeal decision in E.S. v. Joannou¹⁴ supports its position that the Board does not have Charter jurisdiction. In E.S., the court considered whether the Consent and Capacity Board had the jurisdiction to grant remedies under s. 24 of the Charter.¹⁵ In determining that the Consent and Capacity Board did not have such jurisdiction, the court referred to the following three step process to determine if a tribunal has jurisdiction to grant s. 24(1) Charter remedies set out in the Supreme Court of Canada’s decision in R. v. Conway:¹⁶

(a) Determine whether the tribunal can decide questions of law;

(b) Consider whether the power to grant Charter remedies generally has, explicitly or by clear implication, been excluded by statute; and

(c) Determine whether the tribunal has the power to grant the specific remedy requested.¹⁷

26In E.S., the court found that the legislature clearly intended that s. 24(1) jurisdiction be removed from the Consent and Capacity Board not only because s. 52(1) jurisdiction under the Constitution Act, 1982¹⁸ was removed by way of the Health Care Consent Act, 1996¹⁹ but also because of the following factors: the strict timelines under which the Consent and Capacity Board operates; the limited dispositions available to the Consent and Capacity Board; the composition and expertise of the Consent and Capacity Board; the provisions for the appeal of the Consent and Capacity Board’s decisions; and the fact that, in making its decisions, the Consent and Capacity Board can and does take Charter rights into account.²⁰

27It is the respondent’s position based on the factors considered in E.S. that the Board fails on the second step in the process to determine whether it has Charter jurisdiction given the Board’s structure and role under the Act which show that the Board’s power to grant Charter remedies has been excluded by statute. Alternatively, if I find that the Board does have jurisdiction to grant Charter remedies, the respondent submits that the Board has no jurisdiction to grant the specific relief as a Charter remedy sought by the appellants, namely an order for the return of the dogs.

28The appellants disagree with the respondent’s position and submitted that the issue of the Board’s Charter jurisdiction has already been determined in the Board’s decision of Johnson v. Ontario Society for the Prevention of Cruelty to Animals.²¹ In Johnson, the Board found that it has implied authority to decide questions of law and, as there was no explicit or implied withdrawal of Charter jurisdiction in the then governing legislation of the Ontario Society for the Prevention of Cruelty to Animals Act,²² that it had the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate.²³ The appellants submitted that the respondent did not identify any material differences between the OSPCA Act and the Act or any changes to the composition or function of the Board that would result in a different finding regarding the jurisdiction of the Board to hear Charter matters than as found in Johnson.

29On the submissions before me on this motion, I agree with the respondent and find that the Board is not a court of competent jurisdiction for the purposes of s. 24 of the Charter and, therefore, does not have jurisdiction to grant Charter remedies. While the parties do not take issue with the Board being able to decide questions of law which, in turn, creates the presumption that the Board is a court of competent jurisdiction for the purposes of s. 24(1) of the Charter according to Conway, the respondent submitted that the Board fails on the second stage of the three-step process set out in Conway and I agree. Despite the Act not expressly excluding the Board’s ability to grant Charter remedies, I agree with the respondent that the Act clearly implies that the Board does not have Charter jurisdiction for the following reasons:

(a) Since the decision in Johnson, which I am not bound by, the governing legislation of the Board has changed from the OSPCA Act to the Act. While the strict deadlines have not changed in terms of the Board being required to fix a date for the hearing not more than ten business days of an appeal being received, the Act now states that the hearing shall be dealt with on an expedited basis and this language was not included in the OSPCA Act;²⁴

(b) The strict timelines under the Act for a Board hearing to begin are similar to the strict timelines of the Consent and Capacity Board under consideration in the E.S. decision. In E.S., the court held that delays were contrary to the objective of the governing legislation and that the tight timelines to commence a hearing were understandable and necessary given the nature of the matters that are decided upon by the Consent and Capacity Board.²⁵ Similar to the Consent and Capacity Board, the Board is mandated to ensure efficient and timely resolutions of the merits of proceedings before it²⁶ and are directed to expedite proceedings. Also similar to the E.S. decision, the tight timelines under the Act are understandable and necessary given that the appeals before the Board involve relatively urgent situations of animals alleged to be in distress;

(c) I share the concerns raised in E.S. regarding the necessary delays that the task of enquiring into and deciding Charter remedies can lead to in light of the tight timeframes and directions to expedite matters under the Act. Indeed, this hearing was originally scheduled to begin over a month ago, but evidence still has yet to be called as the Board must deal with the numerous motions before it including those addressing the Charter. This matter is a clear example of the resulting inability to exercise the Board’s statutory function properly and promptly when required to address Charter grounds. Moreover, the Board’s argument in Johnson in favour of the Board having Charter jurisdiction that once the Board becomes familiar with Charter proceedings it would take the Board a fraction of the time to resolve a Charter issue over the time that it would take to go through a court proceeding²⁷ does not address how Charter proceedings significantly slow down what otherwise should be an expedited hearing process;

(d) Like the distinction made in E.S. from the Conway decision, the Board does not schedule hearings well in advance like the Ontario Review Board which was the tribunal at issue in Conway. Here, and similar to the Consent and Capacity Board, hearings are scheduled on very short notice and, as discussed above, the Board must fix a date for the hearing not more than ten business days of an appeal being received. Therefore, like the Consent and Capacity Board, this short timeline does not allow for compliance with Rule 11 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”) which requires the giving of a Notice of a Constitutional Question 15 days in advance of a hearing; and

(e) The Board is not empowered to grant a broad array of relief under s. 24(1) of the Charter. For example, it is likely, similar to the Consent and Capacity Board, that if requested, the Board would not be found to have the power to grant remedies such as costs or damages resulting from a Charter breach given that costs may only be awarded by the Board upon a finding that a party has acted unreasonably, frivolously, vexatiously, or in bad faith,²⁸ and there is no provision for the Board to award damages in the Act. As highlighted in E.S., if a tribunal did not have the power to grant the remedy sought as a result of a Charter breach then an appellant would be required to bring a proceeding in the Superior Court to obtain the requested remedy.²⁹ Therefore, when a tribunal, such as the Board, is limited in the type of remedy that it can grant pursuant to s. 24(1) of the Charter, there is a significant risk of bifurcated proceedings and uncertainty as to which decision-making body, the Board or the Superior Court, should carry out the fact-finding necessary to determine whether there was a Charter breach.³⁰ I agree with the court in E.S. that it is unlikely that the legislature would have intended such a result.³¹

30I am also not persuaded by the appellants’ submissions that the respondent attorned to the jurisdiction of the Board to hear Charter issues because it did not raise the issue of the Board’s jurisdiction to grant Charter remedies in the Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector matter before Vice Chair Victor. The appellants plead and rely upon issue estoppel in support of their position on the motion.

31It is well settled that issue estoppel applies if the following criteria are met:

(a) The same question has been decided;

(b) The decision which is said to create the estoppel was final; and

(c) The parties are the same.³²

32I find that issue estoppel does not apply in this matter as the same issues in dispute are not before the Board as they were in the previous matter as discussed above in paragraph [23]. I also find that issue estoppel is not an easy fit to matters that proceed under the Act which is evidenced by this third proceeding before the Board involving the same parties.

33For all these reasons, and based on the submissions in this matter, I conclude that the Board is not a court of competent jurisdiction under s. 24(1) of the Charter. In making this finding, I echo the Court of Appeal’s comments in E.S. that this is not to say that a person, such as the appellants, who considers themselves aggrieved have no remedy. If appropriate, relief can be sought by way of a Charter application in Superior Court or through other less cumbersome processes for addressing any concerns, such as complaints to the professional or regulatory bodies that oversee the relevant parties, or pursing the complaints under Part III of the Act.

Strike grounds of appeal in paragraph [3](c) above re: Charter

34In light of my conclusion that the Board does not have Charter jurisdiction in this matter, I grant the respondent’s request for an order striking the appellants’ grounds of appeal that the removal and/or keeping of the dogs violated the appellants’ constitutional rights under s. 7 and/or s. 8 of the Charter.

Order

35For the reasons set out above, I order that:

(a) The following appellants’ grounds of appeal are struck, and the appellant is precluded from calling evidence, cross-examining, or making submissions on the basis of these grounds at this hearing:

1. That the removal of the dogs caused distress and/or critical distress as defined under the Act;

2. That the removal of the dogs violated sections 3(1), (3), (4), (5), (6) and (7) of Ontario Regulation 444/19; and

3. That the removal and/or keeping of the dogs violated the appellants’ constitutional rights under s. 7 and/or s. 8 of the Charter; and

(b) Substantive issue (b) as set out in paragraph [9] of my November 10, 2021 Adjournment Order is amended as follows: Were each of the dogs at the Moonstone and Severn properties in distress prior to their removal on September 23, 2021 as defined in the Act?

36The respondent’s request for an order prohibiting the appellants from calling evidence, cross-examination, or making submissions on any issue that has already been determined in the previous two proceedings before the Board involving the CAWI and the appellants is denied.

Footnotes

1. 1S.O. 2019, c. 13.
2. 2Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).
3. 3Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 12 and Thomas Pryde, Adrienne Spottiswood & Georgina Pierce v. Chief Animal Welfare Inspector 2021 ONACRB 18 (Reconsideration Decision).
4. 42021 ONACRB 12.
5. 5Ibid. at para. 81.
6. 62021 ONACRB 21 (“Stokes”).
7. 7Ibid. at para. 41.
8. 82021 ONACRB 16 (“Blais”).
9. 9Ibid. at para. 11.
10. 10See para. 62.
11. 11Supra note 4.
12. 12Thomas Pryde, Adrienne Spottiswood & Georgina Pierce v. Chief Animal Welfare Inspector 2021 ONACRB 18 (Reconsideration Decision).
13. 13Supra note 4 at paras. 2 and 9.
14. 142017 ONCA 655 (“E.S.”).
15. 15Ibid. at para. 1.
16. 162010 SCC 22 (“Conway”).
17. 17Supra note 14 at para 67.
18. 18Being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
19. 19S.O. 1996, c. 2, Sched. A.
20. 20Supra note 14 at para. 83.
21. 21(13 January 2013), Ontario No. 2012-03 (ACRB) (“Johnson”).
22. 22R.S.O. 1990, c. O.36 (“OSPCA Act”).
23. 23Supra note 21 at page 14.
24. 24The Act, s. 38(7).
25. 25Supra note 14 at para. 84.
26. 26Rule 3.1 of the Rules.
27. 27Supra note 21 at page 12.
28. 28Rule 19.1 of the Rules.
29. 29Supra note 14 at para. 92.
30. 30Ibid. at para. 91.
31. 31Ibid. at para. 92.
32. 32Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25.