Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce v. Chief Animal Welfare Inspector, 2021 CanLII 141456

Date: 2021-11-16

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

Carol Drumm, Student-at-Law

Court Reporter: Barbara Pollard

Heard by videoconference: November 8 and 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. The appellants have appealed the respondent’s removal orders and decisions to keep the removed dogs.

3On October 27, 2021, the appellants filed a Notice of Motion for return of the dogs. Specifically, the appellants sought an Order from the Animal Care Review Board (the “Board”) dismissing the proceedings and directing the return of the dogs removed pursuant to s. 38(9) of the Act as a result of the respondent’s untimely and/or incomplete disclosure following the Board’s October 19, 2021 Order on the appellants’ motion for disclosure (the “disclosure order”).

4On November 7, 2021, the appellants amended their Notice of Motion and sought the alternative relief of an interim stay prohibiting the respondent to continue to give effect to the removal orders.

5The respondent opposed the appellants’ motion which was argued before me at the hearing of this matter on November 8 and 9, 2021.

Result

6The appellants’ motion is denied in its entirety.

Analysis

7The first ground of the appellants’ motion is that it has not received the disclosure that the respondent was ordered to provide by the Board’s disclosure order.

8When I asked the appellants’ counsel to provide me with more detailed information about which disclosure had not yet been received aside from one medical report that the parties agreed remained outstanding, appellants’ counsel advised that he and his legal team had not yet been through all of the disclosure provided.

9I find that there is insufficient evidence before me to determine which disclosure in addition to the one medical report remained outstanding. As a result, I decline to grant the appellants the relief they seek on the basis that the respondent has failed to provide disclosure as ordered in the Board’s disclosure order.

10The appellants, however, rely upon a second ground for their motion. While not specifically stated in their Notice of Motion, the appellants submitted that their right to a fair hearing has been prejudiced by untimely disclosure from the respondent.

11To support their position, the appellants relied upon the Superior Court of Justice decision of R. v. Hussain.² While the accused was being cross-examined at his trial nearly two years after the alleged offence date, it became apparent that the Crown failed to disclose an eye-witness statement to the accused. As a result, the accused sought, and obtained, a stay of the charges against him under the Canadian Charter of Rights and Freedoms.³

12I find that the Hussain decision is distinguishable on the facts. As discussed in paragraph [9] above, I have found that there is insufficient evidence before me to determine if indeed any non-disclosure beyond the one outstanding medical report by the CAWI has occurred. On the remaining ground for relief, i.e. untimely disclosure, Hussain has no application.

13Even if I were incorrect in these findings, I also find that the appellants have not met the test in Hussain such that any relief should be ordered. The court in Hussain referenced the Supreme Court of Canada decision in R. v. O’Connor⁴ regarding the accused’s right to a fair trial under sections 7 and 11(d) of the Charter. The Supreme Court held that an accused must show actual prejudice to their ability to make full answer and defence which requires a reasonable inquiry into the materiality of the non-disclosed information.⁵ The focus is on the effect of the non-disclosure on the fairness of the accused's trial.

14Therefore, in order for a remedy to be ordered, the appellants are required to demonstrate that actual prejudice has occurred which has thwarted their ability to make full answer and defence and has affected the fairness of the appellants’ hearing before the Board. While I appreciate the evidence before me concerning the health and business concerns of the appellants as well as their concerns of the well-being of the removed dogs, the appellants have not submitted any evidence to support a finding on a balance of probabilities that the respondent’s alleged untimely disclosure has affected the appellants’ ability to have a fair hearing and to make full and answer and defence to the matter before the Board. Therefore, I would also dismiss the appellants’ motion on this basis.

Order

15For the reasons set out above, the appellants’ motion is denied.

Footnotes

1. 1S.O. 2019, c. 13.
2. 2[2003] O.J. No. 6181 (“Hussain”).
3. 3Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).
4. 41995 CanLII 51 (SCC) (“O’Connor”).
5. 5Ibid. at para. 74.