Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce v. Chief Animal Welfare Inspector, 2021 CanLII 141455

Animal Care Review Board

Date: 2021-11-19

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

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

Court Reporter: Barbara Pollard

Heard by videoconference: November 15, 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. The appellants have appealed the respondent’s removal orders and decisions to keep the removed dogs.

3On October 25, 2021, the Board ordered the respondent to provide additional disclosure to the appellants. On various dates, the respondent provided the additional disclosure to the appellants but redacted the following information on the basis of public interest litigation privilege:

a) The names, locations, and other identifying information of where the dogs are boarded;

b) The names, locations, and other identifying information of veterinarians;

c) The billing number for the respondent; and

d) The balance on the respondent’s accounts.

4On November 7, 2021, the appellants filed a Notice of Motion regarding the redacted disclosure. While the grounds for the Notice of Motion were that the respondent provided no basis for its claim of public interest litigation privilege over the redacted information, the appellants’ requested relief was an order from the Board directing the return of the dogs. In the alternative, the appellants requested an interim stay prohibiting the respondent to continue to give effect to the removal.

5The respondent opposed the appellants’ motion which was argued before me at the hearing of this matter on November 15, 2021.

Result

6The appellants’ motion is granted in part. The respondents shall provide to appellants’ counsel only the following unredacted information by 4:30 p.m. on Friday, November 19, 2021:

a) The names, locations, and other identifying information of where the dogs are being boarded unless the dogs are being fostered in a residential setting;

b) The names, locations, and other identifying information of the veterinarians or other specialists who have provided care to the dogs from September 23, 2021 and ongoing; and

c) The balance on the respondent’s accounts.

7Appellants’ counsel shall not release this information by any means to any other person including the appellants.

Analysis

8The issue before me on this motion is whether the information redacted by the respondents on the additional disclosure provided to the appellants is protected by public interest privilege and, if not, what is the appropriate remedy.

9The respondent relied upon the affidavit of Inspector Sara Munoz sworn November 14, 2021 in which Inspector Munoz affirms the following:

6. To provide boarding and veterinary care to removed animals, AWS relies entirely on the ability to enter into agreements with private businesses, persons, charitable organizations, and other entities. These agreements are made with the understanding that AWS will seek to maintain the confidentiality of the names, locations and other identifying information of these persons and entities. AWS in turn expects that the persons or entities will also keep any information about the animals confidential.

7. If the names, locations or other identifying information about the boarding facilities and veterinarians are provided in any case, including this one, there is a high risk that the named facility or veterinarian will cease to provide services to AWS. The result will be that Chief Animal Welfare Inspector will be significantly compromised in her ability to fulfil her duty to arrange the provision of necessaries to and otherwise arrange for the care of any animal in her care or otherwise in possession of an Animal Welfare Inspector (my emphasis added).

10I place no weight upon the information contained in Inspector Munoz’s affidavit because it is misleading and flies in the face of at least three Board decisions relied upon by the appellants in their submissions. In Steele v. Chief Animal Welfare Inspector,² the Board received as evidence the names of the facilities where a horse that was removed under the Act was boarded³ as well as the name of the veterinarian who provided care to the removed horse.⁴ In Stokes v. Chief Animal Welfare Inspector,⁵ the Board again received as evidence the name of the veterinary clinic where a removed cat was boarded as well as several veterinarians’ names that provided care to the removed cat.⁶ Finally, in McGreal v. Chief Animal Welfare Inspector,⁷ the Board received the names of veterinarians who authored veterinary reports concerning the removed horses that the respondent relied upon as evidence for the hearing.⁸ From a review of these decisions, it is clear that the identifying and contact information of the boarding facilities and veterinarians redacted by the respondent in this matter has been provided in other cases contrary to Inspector Munoz’s affidavit. There is also no evidence before me that the potential repercussions alleged by Inspector Munoz have occurred as a result of the disclosed information.

11I also do not agree with the respondent’s submission that the decisions in Steele, Stokes, and McGreal are distinguishable because the respondent called the veterinarians whose names were disclosed to testify in those matters whereas in this matter, the respondent is not intending to call any of the persons who have provided care to the removed dogs to testify. The appellants rightly point out that a veterinarian’s name was disclosed in McGreal that was not called as a witness for the hearing.⁹

12I also find that the respondent’s position that public interest privilege should be determined on a case by case basis and be based on the relevance of the redacted information to the issues in dispute to be moot. Member Friedland has already made her ruling on the relevance of the information ordered for the purposes of disclosure and this motion is not an opportunity to revisit that decision.

13For the reasons set out above, I find that the identifying information of where the dogs are boarded and of the veterinarians who provided care to the dogs is not protected by public interest litigation privilege and, therefore, should not have been redacted by the respondent.

14Further, while there is no statement of account at issue in this matter, I find that Member Friedland ordered “all documentation” relating to any care any animal has received by a veterinarian or other specialist from September 23, 2021 and ongoing to be disclosed to the appellants. I find that this includes the balance on the respondent’s accounts. Given my finding that the identifying information of where the dogs are boarded and of the veterinarians who provided care to the dogs is not protected by public interest litigation privilege, I find no reason that the respondent’s account balances for the removed dogs should be protected by public interest litigation privilege either.

15I decline to make a determination on the respondent’s claim for public litigation privilege over the billing number for the respondent with the boarding facilities and veterinary clinics in light of the appellants’ submissions that they are content not to receive this information.

Order

16The respondent rightly points out that the appellants did not seek the redacted information as relief in their Notice of Motion. Instead, the appellants sought an order from the Board directing the return of the dogs or, in the alternative, an interim stay prohibiting the respondent to continue to give effect to the removal.

17Having heard the oral submissions from the appellants, I understand that the appellants are also seeking that the redacted information be provided to them. I find that this is the appropriate relief in this matter for the following reasons:

a) I have found in another motion decision of today’s date that I do not have jurisdiction to grant any remedies under the Canadian Charter of Rights and Freedoms¹⁰ such as a stay; and

b) An order returning the dogs is not appropriate at this juncture of the hearing as I have not yet heard evidence as to the level of distress that led the respondent to remove the animals from the Moonstone and Severn properties and to keep them in care. I have also not heard evidence of the status of the appellants’ compliance with the compliances orders such that I would be able to determine whether the animals would suffer distress if returned. I echo Member Lewis’ comments in her October 25, 2021 Motion Decision that the concern of the Board is only with the condition of the dogs and their wellbeing and these issues are best dealt with after a full hearing on the merits.

18Therefore, I order the respondent to provide to appellants’ counsel only the following unredacted information by 4:30 p.m. on Friday, November 19, 2021:

a) The names, locations, and other identifying information of where the dogs are being boarded unless the dogs are being fostered in a residential setting;

b) The names, locations, and other identifying information of the veterinarians or other specialists who have provided care to the dogs from September 23, 2021 and ongoing; and

c) The balance on the respondent’s accounts.

19I also order appellants’ counsel not to release the information set out in paragraph above by any means to any other person including the appellants.

Footnotes

1. 1S.O. 2019, c. 13.
2. 22021 ONACRB 10 (“Steele”).
3. 3Ibid. at para. 33.
4. 4Ibid. at para. 92.
5. 52021 ONACRB 24 (“Stokes”).
6. 6Ibid. at para. 15.
7. 72021 ONACRB 23 (“McGreal”).
8. 8Ibid. at para. 33.
9. 9Ibid. at para. 34.
10. 10Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).