Tribunals Ontario Animal Care Review Board
Tribunaux décisionnels Ontario Commission D’étude Des Soins Aux Animaux
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: Padraic Ryan, Counsel Deanna Exner, Counsel Waleed Malick, Counsel Jason Kirsh, Counsel
Heard by videoconference, October 26, 2021
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 respondent alleges 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 removals, asserting a number of grounds, including that the animals were not in distress at the time they were removed, and that the removal violated the appellants rights under section 7 and 8 of the Charter of rights and Freedoms, (the Charter).
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 on similar grounds.
6Originally there were seven grounds cited in the appeals of the removal orders, and six in the case of the order to keep the animals in care. Since then, the appellants have agreed to the removal of two grounds from the appeal of the removal orders and one in the case of the order to keep.
7Before me today were two motions, both brought by the respondents. Motion #1 asked the Board to strike the grounds in each of those appeals which contain grounds alleging violations of the Charter and to order that this Board is not a court of competent jurisdiction for the purposed of s. 24 of the Charter.
8Motion #2 asked the Board to do three things:
a. determine whether the appeals must be dismissed on the evidence to date or in the alternative:
b. strike out three further grounds in each of the appeals and make and an order precluding the appellants from calling evidence, cross examining or making submissions on and the basis of those grounds in the hearing on the merits and
c. make and order prohibiting the appellants from calling evidence, cross-examining or making submissions on any issue that has already been determined in two previous proceedings involving the appellants: Board files 2021 ACRB 12 and 2021 ACRB 18.
9The effect of the Motion #2 should it succeed, would be to remove all but one ground for each appeal and limit the ability of the appellants to call evidence or cross examine on certain issues that have already been decided in other proceedings between the parties.
10These are but two of the several motions brought by the parties in anticipation of the hearing of the merits of these outstanding appeals. Materials in respect to the various proceedings have been generated and delivered with short notice and by electronic means. I had not seen the full package of materials for Motion #2 by the time this hearing had convened.
11After the close of business on October 25, 2021, the parties and I received a copy of a Decision and Order for extensive disclosure by the respondent, made by Adjudicator Friedland, (the disclosure order). It required the respondent to provide the appellant with materials and information concerning the removal of the animals, the care of the animals since removal, and the information used to obtain the search warrants executed on September 23, 2021 prior to the removal of the animals.
12Given the foregoing, the respondent consented to the adjournment of Motion #2. I heard argument on the appellant’s motion to adjourn Motion #1. Based on the arguments of each counsel, I agreed to the request to adjourn the respondent’s motions and gave my decision orally at the conclusion of the motion. Details of my reasons for adjourning the motions are provided below.
The appellants’ argument for an adjournment
13The appellants based their argument for adjournment of both motions on wording in the disclosure order. They noted that the respondent is now required to disclose documentation (written and visual) pertaining to the removal of the dogs, details of the dogs’ housing and care since their removal, and details of the information used to obtain search warrants to support the search and removal of the dogs.
14The gist of the appellants’ argument for an adjournment of both motions until disclosure is made, is that the disclosure, ordered only the evening before and to be made “forthwith”, will substantiate each of the grounds of the appeal and therefore refute the respondents motion arguments. I agree that that is possible, particularly with respect to Motion #2, where the respondent seeks to strike grounds alleging the removal was improper and their retention in care violates s. 3 of Regulation 444/19 under the Act.
15The disclosure order also addressed the issue of the relevance of disclosure to Motion #1 to strike the Charter claims. Adjudicator Friedland found that “the circumstances of the removal may also be relevant to whether the respondent is able to discharge its onus of proving the lawfulness of the removal” including the information provided for the issuance of search warrants. The appellants argued that disclosure of the factual and legal basis on which the removal took place is important information for the Board’s to determine its jurisdiction to hear Charter issues that arise in this case.
The respondents’ argument that there should be no adjournment
16Having agreed to adjourn its Motion #2, The respondent argued that Motion #1 should proceed as scheduled on the basis that it does not rely on issues of fact (such as may be disclosed pursuant to the disclosure order). Whether this Board has the authority to decide a Charter matter is instead “a pure legal matter”, and the facts which may be made clear through the ordered disclosure are of no relevance to that issue. As the appellant, in its factum, addressed only legal issues and the respondent has heard no theory of how any of the facts represented by the material to be disclosed will be relevant, the matter should proceed.
The basis of my decision to grant the adjournment
17I base the decision to allow the adjournment of Motion #1 on the responsibility of this Board to do what it can to ensure the facts are before it on the hearing of the merits of an appeal, and the duty to fairly balance the interests of both parties while being mindful of the role of the Board under the Act This is an adjournment requested by the appellants. The animals in question are their animals, and the consequences to them of the removal and holding of their animals in care are serious, regardless of the reasons for or the circumstances around their removal. The outcome of the hearing on the merits, and with the full disclosure now ordered, will affect both their livelihood and their lives either positively or negatively.
18Our Board is charged by s. 3.1 of the Common rules of Practice and Procedure of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission (October 2, 2017) (the “Rules) to “facilitate a fair, open and accessible process and to allow effective participation by all parties”, to “ensure efficient, proportional and timely resolution of the merits of the proceedings”, and to “ensure consistency with governing legislation and regulations”.
19The list of information to be produced under the disclosure order is extensive. Given the timing of that order relative to the timing of the hearing of these motions, it is probable that not all of the material which is required to be disclosed is yet in the hands of respondent’s counsel. When received, the disclosures will likely provide evidence to inform both the grounds of the appeals and the viability of a Charter issue. In my opinion therefore, an adjournment will facilitate a more open process and facilitate more informed participation by all parties.
20Given the requirement that the material is to be disclosed “forthwith”, and since a number of dates have already been set aside by the Board to hear these matters , (the first of which must be vacated to permit the disclosure), I do not think the requirement that this Board ensure a timely resolution of the merits of these proceedings is being compromised by the delay that will be created by the time taken to make the disclosures. Additionally, the disclosure may well assist in refining and more clearly defining the issues to be determined at the appeal, be they fact based or purely legal.
21To summarize, this adjournment was requested by the appellants who are the who will be most affected by an adjournment. Regardless, the Board is mandated to hear these matters in an expeditiously and in all circumstances that means as quickly as possible. I therefore am limiting the length of the adjournment of Motion #1 to one week from the date hereof. Motion #2 can be heard at the beginning of the case on its merits and after the disclosure.
ORDER
22The respondent’s motion #1 and #2 are adjourned for a period of one week, to be argued before a hearing member in the week of November 8, at a date to be fixed by the Registrar in consultation with the parties.
23The videoconference hearing of the merits in these appeals that had been scheduled to begin at 10:00 a.m. on October 28, 2021 is adjourned. The Board will provide a new Notice of Hearing for the hearing to begin the week of November 8.
24The respondent’s counsel will advise the appellant’s counsel and the Board no later than 5:00 p.m. on Friday, October 29, 2021 of the status of the disclosure of materials ordered by a decision of Adjudicator Friedland on October 25, 2021. If possible, a date sooner than November 8 may be selected by the Board as a result of this communication.
Released: October 27, 2021
Harriet Lewis, Member