Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce v. Chief Animal Welfare Inspector, 2021 CanLII 141463

Date: 2021-11-09

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 8, 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 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.

3The Notices of Removal were issued because of alleged noncompliance with an order of the Animal Care Review Board (the “Board”). Specifically, the Board released a Decision and Order on June 23, 2021² 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.

4Both parties filed a request for reconsideration of the Board’s June 23, 2021 decision. The parties’ requests for reconsideration were denied on September 3, 2021.³

5The appellants commenced a judicial review application of the Board’s decisions before the Divisional Court and also filed an urgent motion for a stay of the Removal Orders or, in the alternative, an interim injunction of the Removal Orders.

6As a party to the Judicial Review proceedings, the Board filed a factum with the Divisional Court on October 29, 2021 in response to the appellants’ urgent motion for a stay/interim injunction of the Removal Orders. The Board’s factum included the following submissions:

a) “If the Applicants are seeking a stay or injunction of the AWS removal orders, this Court should decline to exercise its discretion as the Applicants have an adequate alternative remedy to this motion in the form of an ongoing proceeding before the Board;”⁴ and

b) “To the extent that the Applicants seek a stay of the AWS’ removal orders, the Board respectfully submits that the Applicants have an adequate alternative remedy, namely their ongoing proceeding before the Board.”⁵

7Although the Board’s factum stated that it did not take a position on whether the relief sought by the appellants should be granted,⁶ the appellants disagree and seek relief from the Board by way of a Notice of Motion dated November 7, 2021. Specifically, the appellants submit that a reasonable apprehension of bias now exists on the basis that the Board took an active position on the merits of the motion before the Divisional Court by arguing grounds that were directly supportive of the outcome sought by the respondent. The appellants’ position is that the Board should not continue with this hearing in these circumstances.

8The respondent submits that the grounds advanced by the appellants in support of their motion do not raise a reasonable apprehension of bias that would preclude the Board from hearing this matter.

Result

9The appellants’ motion is denied in its entirety.

Analysis

10In support of their position, the appellants relied upon the Supreme Court of Canada’s (“SCC”) decision in Ontario (Energy Board) v. Ontario Power Generation Inc (the “OEB decision”).⁷ One of the issues addressed by the SCC in this decision was whether the Ontario Energy Board (“OEB”) acted impermissibly in pursuing its appeal.⁸ In setting out principles for consideration by the courts in determining whether a tribunal is granted standing and defining a tribunal’s role on appeal,⁹ the SCC determined, among other things, that it was not improper for the OEB to argue in favour of the reasonableness of its decision on appeal.¹⁰ Further, the SCC agreed with the OEB that its submissions simply highlighted what was apparent on the face of the record or responded to arguments raised by the respondents.¹¹ In sum, the SCC found that the OEB presented helpful argument in an adversarial but respectful manner.¹²

11In obiter, however, the SCC cautioned against certain assertions made by the OEB which, if carried too far, may have raised concerns about the principle of impartiality such that a court would be justified in exercising its discretion to limit tribunal standing so as to safeguard this principle.¹³ The SCC also urged tribunal parties to be cognizant of the tone they adopt on review of their decisions, and endorsed the following statement from the Ontario Court of Appeal decision in Children’s Lawyer for Ontario v. Goodis:¹⁴

... if an administrative tribunal seeks to make submissions on a judicial review of its decision, it [should] pay careful attention to the tone with which it does so. Although this is not a discrete basis upon which its standing might be limited, there is no doubt that the tone [page183] of the proposed submissions provides the background for the determination of that issue. A tribunal that seeks to resist a judicial review application will be of assistance to the court to the degree its submissions are characterized by the helpful elucidation of the issues, informed by its specialized position, rather than by the aggressive partisanship of an adversary.¹⁵

12I find that the facts in the OEB decision are distinguishable from the facts in this matter for two reasons. First, the Board’s factum which the appellants allege gives rise to a reasonable apprehension of bias was filed in response to the appellants’ standalone motion seeking interlocutory relief. The warning endorsed by the SCC regarding the tone of submissions in the OEB decision was specifically in regard to submissions on a judicial review of a tribunal’s decision which was not the purpose of the Board’s factum.

13Second, it was undisputed that the appellants’ motion before the Divisional Court for a stay/interim injunction of the Removal Orders was withdrawn on November 5, 2021. Therefore, I find that that submissions as referenced in the factum by the appellants alone do not meet the high threshold of “aggressive partisanship of an adversary” such that any concerns regarding the principle of impartiality have arisen. Even if I agreed with the appellants that the Board’s factum submissions rose to the level of “aggressive partisanship of an adversary,” the remedy is not a disqualification of the entire Board from proceeding with this hearing. The SCC clearly stated that such submissions call for limiting the tribunal’s standing in the appeal proceedings.

14Further, while the OEB decision referenced the principle of impartiality, it did not specifically address the test for a reasonable apprehension of bias which is the basis of the appellants’ motion. The respondent cited the test for a reasonable apprehension of bias as:

…what would an informed person, viewing the matter realistically and practically – and having thought the matter through conclude. Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.¹⁶

15Here, the appellants are solely relying upon the written submissions from the Board’s factum as set out in paragraph [7] above as their basis that a reasonable apprehension of bias has arisen in this matter on behalf of the entire Board. Respectfully, the test for a reasonable apprehension of bias is based upon the decision-maker acting fairly and not the entire tribunal. I am the decision-maker in this matter, and I have no role in the proceedings before the Divisional Court for which the Board’s factum was prepared. Here, the appellants have failed to make a connection between the submissions that they take issue with the Board’s factum and my ability as an independent adjudicator to conduct a fair hearing. For these reasons, I find that the appellants have failed to prove on a balance of probabilities that a reasonable apprehension of bias has arisen such that I would be precluded from proceeding with the hearing of this matter.

16Finally, if I agreed with the appellants’ position on the motion, which I do not, a finding that the Board is biased and, therefore, could not proceed with the hearing would result the in an inability to grant the relief sought by the appellants by way of this motion.

17As relief on this motion, the appellants seek an order directing the return of the removed dogs pursuant to s. 38(9) of the Act or, in the alternative, an interim stay prohibiting the respondent from continuing to give effect to the removal. If the Board could not continue with the hearing of this matter by reason of bias, it flows that I would not be able to make any orders, including any order granting the relief sought by the appellants.

Order

18For the reasons set out above, the appellants’ motion for an order returning the dogs pursuant to s. 38(9) of the Act or, in the alternative, for an interim order staying the respondent from continuing to give effect to the removal orders based on a reasonable apprehension of bias of the Board is dismissed.

Released: November 9, 2021

______________________________

Lindsay Lake, Member

Footnotes

1. 1S.O. 2019, c. 13.
2. 22021 ONACRB 12.
3. 32021 ONACRB 18.
4. 4Factum of the Respondent, Animal Care Review Board, in the matter of Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce v. Chief Animal Welfare Inspector, Divisional Court File No. 297/21, at para. 5.
5. 5Ibid. at para. 37.
6. 6Ibid. at paras. 31 and 45.
7. 72015 SCC 44.
8. 8Ibid. at para. 39.
9. 9Ibid. at para. 59.
10. 10Ibid. at para. 60.
11. 11Ibid. at para. 70.
12. 12Ibid. at para. 72.
13. 13Ibid.
14. 142005 CanLII 11786 (ON CA)
15. 15Ibid. at para. 61.
16. 16Yukon Francophone School Board v. Yukon (A.G.), 2015 SCC 25 at para. 20.