Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2022 ONACRB 11

Date: 2022-02-25

Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.

Between:

Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde, Cody Pryde and Adrienne Spottiswood and Thomas Pryde for Tate Pryde

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: Kateryna Toderishena, Counsel Jason Kirsh, Counsel

Court Reporter: Lindsey Bevan (February 16, 2022) Barbara Pollard (February 17, 2022)

Heard by videoconference: February 16-17, 2022

Overview

1The Chief Animal Welfare Inspector (the “Respondent”) issued a Statement of Account (“SOA”) dated January 18, 2022 to Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde, Cody Pryde, and Adrienne Spottiswood and Thomas Pryde for Tate Pryde (the “Appellants”) in the amount of $1,114,720.27. The SOA was in relation to the removal of approximately 111 dogs of various breeds, age, and sex from 2401 Telford Line, Severn, and approximately 118 dogs of various breeds, age, and sex removed from 5753 Line 8 N, Oro-Medonte.

2On January 24, 2022, the Appellants filed an appeal of the SOA to the Animal Care Review Board (the “Board”). The hearing of this appeal commenced on February 7, 2022 with a number of preliminary motions.

3The Appellants filed three additional motions on February 11, 2022 which sought the following relief:

(a) To not permit the Respondent’s experts to testify at the hearing;

(b) To permit an inspection by a veterinarian and/or veterinarian technician of each of the removed dogs’ general health and living conditions; and

(c) To obtain additional disclosure from the Respondent.

4The Respondent also filed a motion on February 11, 2022 seeking leave to call more than three expert witnesses pursuant to s. 12 of the Evidence Act.¹

5All of the Appellants’ motions were contested and the Appellants took no position on the Respondent’s motion. Following receipt of the parties’ submissions on February 16, 2022, I rendered oral decisions on the motions on February 17, 2022 with written reasons to follow. These are my written reasons.

Result

6Having received both the written and oral submissions from the parties, I order:

(a) The Respondent’s motion to have more than three participant expert witnesses testify at the hearing is granted;

(b) The Appellants’ request to not allow the Respondent’s participant experts to testify is denied. The Appellants’ alternative request for unspecified further particulars regarding the participant experts’ evidence is also denied;

(c) On or by February 28, 2022, the Respondent shall provide to the Appellants through their counsel all documentation (written and visual) from September 23, 2021 to January 7, 2022 that is in the Respondent’s possession but has not yet been disclosed as particularized in paragraph 22 to (c) below; and

(d) The Appellants’ request to conduct an inspection of each of the living dogs that were removed on September 23, 2021 regarding their general health and living conditions is granted on the conditions set out in paragraph 29 to (f) below.

Analysis

Respondent’s Motion and Appellant’s Expert Motion

7The Respondent sought leave under s. 12 of the Evidence Act to call more than three experts at the hearing of this matter.

8The Board is not bound by the strict requirements of the Evidence Act and the number of expert witnesses permitted to give testimony is not expressly restricted by 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”) or the Statutory Powers Procedure Act.²

9The Appellants took no position regarding the Respondent’s motion but did file their own motion requesting that the Board not permit the Respondent’s expert witnesses to testify for failing to comply with the requirements of r. 10.2 of the Rules. In the alternative, the Appellants, through their counsel’s oral submissions, sought further particulars regarding the Respondent’s experts’ evidence if their motion was denied.

10Rules 10.2 and 10.3 of the Rules require parties relying upon the evidence of an expert witness to provide certain written information in advance of the hearing to the opposing party. The Appellants submitted that while they were provided the conclusions of the Respondent’s expert witnesses, the Respondent failed to provide the basis or rationale for their conclusions in every report/will say from the experts. The Appellants submitted that they simply do not know what the experts are going to say at the hearing to support their conclusions.

11I agree with the Respondent that r. 10.2 does not apply in this matter as the witnesses that the Respondent will be calling to give evidence are “participant experts.” The Respondent relied upon the Licence Appeal Tribunal (“LAT”) reconsideration decision of J.S. v. Aviva General Counsel,³ in which the LAT considered the admissibility to expert evidence in light of the Ontario Court of Appeal decision of Westerhof v. Gee Estate.⁴ While I am not bound by the J.S. v. Aviva decision, I find its reasoning and reliance upon the Westerhof decision persuasive.

12In Westerhof, the Ontario Court of Appeal defined “participant experts” as witnesses with special expertise, such as treating physicians, who form opinions based on their participation in the underlying events.⁵ The Court also held that participant experts need not comply with r. 53.03 of the Rules of Civil Procedure⁶ which sets out the requirements for introducing the evidence of expert witnesses at trial.

13In J.S. v. Aviva, the LAT found that r. 10.2 of the Rules is modeled after r. 53.03 of the Rules of Civil Procedure⁷ and I agree based on similar requirements in both rules regarding expert evidence. Relying on both the Westerhof and J.S. v. Aviva decisions, I am satisfied that the treating veterinarians that the Respondent proposes to call as witnesses in this matter are “participant experts” as they were not retained by the Respondent for the sole purpose of providing evidence at this hearing. As such, I find that the Respondent’s participating expert witnesses may give opinion evidence without complying with r. 10.2.

14Moreover, I do not agree with the Appellants’ submission that they have no information regarding what the participant experts’ testimony at the hearing will be to support their conclusions. Both parties confirmed that the Respondent provided approximately 345 medical records as disclosure to the Appellants. The Respondent also submitted that the substantive basis for the participant experts’ conclusions and opinions are provided in the medical reports as they set out the details of the medical care that was provided and the reasons for such care. I accept this explanation and find that the Appellants’ alternative request for further particulars is not warranted and, even if it were, it lacks specific details about which further particulars the Appellants are seeking.

15For all of these reasons, I order that:

(a) The Respondent’s request to have more than three participant experts testify at the hearing is granted; and

(b) The Appellants’ motion to not permit the Respondent’s participant experts to testify is denied as is their unspecified request for further particulars.

Additional Disclosure Motion

16The Appellants sought an order from the Board for the production of all documentation (written and visual) that has not yet been produced from the Respondent from September 23, 2021 to date and ongoing of all Inspectors involved in the removal and care of all dogs removed, all other persons involved in the removal and care of all dogs removed, and in relation to the housing and care of the removed dogs. The Appellants relied upon the October 25, 2021 Motion Decision and Order of Member Friedland following a similar request for disclosure in the Appellants’ previous proceeding before the Board.⁸

17The Respondent opposed the request for further disclosure because it submitted that the Appellants’ request was broad, outside both the scope of issues in this appeal, and that it had already provided voluminous disclosure “relevant to the issues on appeal.” The Respondents submitted that Member Friedland had already made such an order and that it provided materials “responsive to the order” at that time. As a result, the Respondent’s position was that this subsequent request was repetitive and nothing more than a “fishing expedition.” I disagree.

18The Board has the authority to order disclosure of any document or thing that it considers relevant to the issues in dispute.⁹ The Board is also authorized to order disclosure which it considers necessary for a full and satisfactory understanding of the issues in the proceeding.¹⁰

19The sole issue in this matter is whether the SOA should be confirmed, varied, or revoked. The Appellants’ grounds of appeal are that the dogs have not been provided with proper necessaries and/or with adequate care, and/or that the amounts charged on the SOA are not appropriate. I find that the Appellants’ request for further disclosure is relevant to the issue in dispute and the grounds of appeal because the actions of the Animal Welfare Service (“AWS”) Inspectors as well as other persons involved in the removal of the dogs, may very well be relevant to any subsequent necessaries or care that was provided to the dogs that may be included on the SOA. Additionally, information regarding the housing and care of the removed dogs is central to the appeal of the SOA.

20I am also not satisfied that the Respondent disclosed “all documentation” to the Appellants regarding the removed dogs’ housing and care as previously ordered by Member Friedland such that this request would be duplicative. Indeed, the Respondent informed me that approximately 10,000 emails regarding approval of care and/or housing exist that have not been disclosed to date. The Respondent characterizes these documents as “administrative” and not “responsive to” the issues in dispute. Respectfully, if the undisclosed emails address the housing and care provided to the removed dogs, these emails ought to have been disclosed previously under Member Friedland’s Order as they constitute “all documentation” and, as they appear not to have been disclosed, they must be disclosed at this time.

21I am also not prepared to provide the Respondent with its estimated time to disclose the remaining documentation related to the housing and care of the removed dogs of eight weeks. Section 38(7) of the Provincial Animal Welfare Services Act, 2019¹¹ along with r. 3.1(b) of the Rules mandate me to conduct a timely and expeditious hearing. Waiting eight weeks for further disclosure, the bulk of which should have already been disclosed, is egregious and is certainly not expeditious. Further, the Respondent failed to rely upon any affidavit evidence to support its proposed timeline of eight weeks for disclosure.

22For all of these reasons, I order the Respondent to provide to the Appellants through their counsel the following documentation (written and visual) on or by February 28, 2022 from September 23, 2021 to January 7, 2022 that is in the Respondent’s possession but has not yet been disclosed:

(a) Of all Animal Welfare Inspectors (“AWIs”) involved in the removal on September 23, 2021 including, but not limited to:

1. The names of all AWI in attendance during the removal;

2. The names of any people otherwise employed by the Respondent in attendance during the removal; and

3. All notes, logs, video, audio and/or photographic evidence taken by any AWIs or people otherwise employed by the Respondent attending the Appellants’ properties on September 23, 2021 including any records made on a person’s personal cell phone or camera;

(b) Of all other persons involved in the removal on September 23, 2021 including, but not limited to:

1. The names of any people or companies arranged by the Respondent to attend the Appellants’ properties on September 23, 2021, including the trucking companies and drivers;

2. Where it is not obvious from the names provided, the Respondent shall identify the role of the person played on September 23, 2021; and

3. All notes, logs, video, audio and/or photographic evidence taken by such people that is in the possession of the respondent;

(c) Related to the housing and care of the dogs including, but not limited to:

1. All documentation relating to any care any animal has received by a veterinarian or other specialist from September 23, 2021 to January 7, 2022; and

2. An outline of where the dogs are residing, including whether they are living indoors or outdoors, whether they are with any of the dogs with whom they were previously living; whether in a kennel situation or in a residential home and any other relevant details about the necessaries being provided.

23After I gave my oral decision on this motion, the Appellants requested that I amend my order for documentation “in the possession of the Respondent” to documentation “in the possession, power, or control of the Respondent.” The Appellants sought this amendment in an effort to require the Respondent to ask any third parties for the specified documentation. I reserved my decision on this request and informed the parties that I would render a written decision as part of my motion decision and order. Accordingly, my decision is that the Appellants’ request is denied.

24The Appellants agreed that the Board has no jurisdiction to compel a third party to produce documentation or records. Therefore, even if I were to grant the Appellants’ request and order that the Respondent be required to ask third parties for certain documents, there is no obligation on the third parties to comply with the request and no avenue for the Appellants to enforce compliance. It is, quite simply, an order without teeth and, therefore, it is denied.

Inspection Motion

25The Appellants filed a motion seeking an order from the Board permitting them to inspect each of the removed dogs’ general health and living conditions with the assistance of a veterinarian and/or veterinarian technician. The Respondent opposed this motion and both parties relied upon substantially similar arguments as they did on a previous motion for an inspection of the dogs in the previous proceeding before the Board.¹²

26I agree with, and am persuaded by, Member Friedland’s November 3, 2021 Decision and Order on the Appellants’ previous motion for an inspection. At the outset, I agree with Member Friedland’s finding that the Board has jurisdiction to order such an inspection. Rule 9.3(d) of the Rules allows the Board to order a party to make available for inspection anything, subject to conditions, that the party will present as evidence at the hearing. The Respondent again took the position in the motion before me that r. 9.3(d) does not apply because the removed dogs themselves are not being “presented as evidence” for the hearing. I agree with Member Friedland that the Respondent’s position is far too literal. Here, the Respondent is relying upon medical records of the dogs and invoices for services provided to the dogs. Thus, at the most basic level, the health of the dogs will be evidence at the hearing.

27Moreover, the Respondent has been clear that it is maintaining its position that it can bill by way of an SOA for any necessaries provided to the dogs, including the necessaries that it became aware of after the dogs were removed, and that it is not restricted to bill only for what its inspectors saw in the field without the assistance of a veterinarian on September 23, 2021. The Appellants disagree. While I am not making any determinations on this issue at this time, I did not strike the Appellants’ ground of appeal that the dogs have not been provided with proper necessaries and/or adequate care. Further, if the Respondent is successful in advancing its position, I find that fairness, as well as my obligation under r. 3.1(a) to facilitate a fair process that allows for effective participation by all parties, dictates that that the Appellants should also have an opportunity to have the dogs inspected by their own experts.

28I am also alive to the fact that such an inspection would occur outside the date range that is covered by the SOA. However, I find the Appellants’ submission persuasive that the inspection would still provide a relevant, overall picture of the dogs’ health while in the care of the Respondent because a baseline regarding the dogs’ health was created shortly after their removal as a result of the Respondent’s inspection of the dogs at that time. I am also alive to the fact that several dogs have died in the care of the Respondent and agree with the Appellants’ submission that some of the alleged health issues of the dogs that have been returned to the Appellants are not health issues that appear instantaneously but rather develop over time. Therefore, I agree with the Applicant that an inspection would provide information of the dogs’ health during the course of their time in care with the Respondent.

29For all of the reasons set out above, as well as out of an abundance of caution given the amount of the SOA at issue, I order that the Appellants may conduct an inspection of each of the living dogs that were removed on September 23, 2021 by the Respondent regarding their general health and living conditions on the following conditions:

(a) The inspection shall take place at the location where the dogs are being housed and will only occur during normal operating hours;

(b) The inspections may only be conducted by a veterinarian with an accompanying veterinarian technician, for a maximum of 2 persons, retained by the Appellants. The Appellants have agreed to pay for the costs associated with having these persons undertake the inspections at this point, but such costs do not include any fees, if any, charged by the kennels to facilitate the inspection;

(c) The Appellants are not permitted to attend during the inspections;

(d) One AWI and/or one veterinarian/veterinarian technician may attend the inspection on behalf of the Respondent for observation purposes only. If such persons are not able to attend based on the Appellants’ veterinarian’s availability, the inspection may proceed in their absence;

(e) The parties shall work cooperatively in arranging for a schedule of the inspections. If this is not possible, no less than 24 hours written notice must be given prior to an inspection occurring. Such notice shall include the name of the inspecting veterinarian and/or veterinarian technician, the location of the inspection, and the approximate time of arrival. Such notice shall be provided to Respondent’s counsel via email.

(f) All inspections must be conducted by 5:00 p.m. on February 28, 2022. No further inspections will be permitted beyond this time for the purposes of this appeal.

30The Respondent had requested the following additional conditions be established if I were to grant the Appellants’ request for an inspection of the dogs:

(a) That only 1 dog per boarding/kenneling facility be inspected;

(b) That the Appellants’ veterinarian and/or veterinarian technician be limited to a 30-minute inspection of each dog;

(c) That five days’ notice be provided to the Respondent and that the Respondent coordinate a mutually agreeable time for the inspection;

(d) That the Appellants be responsible for the additional costs of care for the dogs during the period that it takes to perform the inspections;

(e) That the Respondent reserves the right to call upon the Ontario Provincial Police (“OPP”) to attend the inspections to keep the peace; and

(f) That any costs charged by the kennels/boarding facilities to facilitate the inspections be paid in advance by the Appellants to the kennels/boarding facilities.

31The Respondent’s request that I impose these additional conditions upon granting the Appellants’ request for an inspection is denied for the following reasons:

(a) I am not satisfied that allowing the Appellants to inspect the general health and living conditions of only 1 dog per kennel/boarding facility would be representative of the general health of each of the dogs at the facilities and it would only amount to an inspection of approximately 10% of the remaining living dogs;

(b) The Respondent confirmed that their participant experts were not confined to a 30-minute examination/inspection of the dogs and there is no basis upon which the Appellants’ experts should have such a time restriction imposed;

(c) Requiring five days’ notice to inspect the dogs and allowing the Respondent to coordinate a time for the inspection is not reasonable and does not assist in ensuring an efficient and timely resolution of the merits of the proceeding as required by r. 3.1(b) of the Rules;

(d) Any additional costs that may arise for the care for the dogs after the period covered by the SOA that is under appeal, including the period that it takes to perform the inspections, is not before me at this time. I also note that had the Respondent agreed to the Appellants’ January 11, 2022 request to inspect the dogs, the additional time required to conduct the inspections may have been avoided;

(e) The only persons being permitted to attend for the inspections on behalf of the Appellants are professionals and are expected to act in their professional capacity. The Respondent has failed to provide any evidence to support that an OPP officer should preemptively be called upon to keep the peace;

(f) The Respondent provided no details regarding any costs that would be charged by the kennels/boarding facilities to facilitate the inspections. Without such information, I am not prepared to order the Appellants to pay any fees in advance to the kennels/boarding facilities.

Order

32For the reasons set out above, I order that:

(a) The Respondent’s motion to have more than three participant expert witnesses testify at the hearing is granted;

(b) The Appellants’ request to not allow the Respondent’s participant experts to testify is denied, as is the Appellants’ alternative request for unspecified further particulars regarding the participant experts’ evidence;

(c) On or by February 28, 2022, the Respondent shall provide to the Appellants through their counsel all documentation (written and visual) from September 23, 2021 to January 7, 2022 that is in the Respondent’s possession but has not yet been disclosed as particularized in paragraph 22 to (c) above; and

(d) The Appellants’ request to conduct an inspection of each of the living dogs that were removed on September 23, 2021 regarding their general health and living conditions is granted on the conditions set out in paragraph [29] (a) to (f) above.

Other Procedural Matters

33On February 17, 2020, the parties agreed that the hearing is adjourned to 9:30 a.m. on Monday, March 7, 2022 and will continue on March 9-11, March 21-25, and March 28-April 1, 2022¹³ by way of videoconference. The adjournment was required to facilitate the inspections and further disclosure.

34All of the terms and conditions of any previous orders made by the Board in this matter remain in full force and effect, except as changed by this order.

35The Rules apply to this appeal, except where varied by Order of the Board.

36I am seized of this matter.

37If the parties reach an agreement on the issues in dispute prior to the resumption of the hearing, they shall immediately advise the Board.

Released: February 25, 2022

_______________________

Lindsay Lake, Member

Footnotes

1. 1R.S.O. 1990, E. 23.
2. 2R.S.O. 1990, c. S.22 (“SPPA”).
3. 32019 CanLII 63355 (ON LAT Reconsideration Decision) (“J.S. v. Aviva”).
4. 42015 ONCA 206 (“Westerhof”).
5. 5Ibid. at para. 6.
6. 6R.R.O. 1990, Reg. 194.
7. 7Supra note 3 at para. 33.
8. 8See Pryde, Spottiswood and Piece v. Chief Animal Welfare Inspector, 2021 ONACRB 26.
9. 9Rules, r. 9.3(e).
10. 10Rules, r. 9.1.
11. 11S.O. 2019, c. 13 (“PAWS Act”).
12. 12See Pryde, Spottiswood and Piece v. Chief Animal Welfare Inspector, 2021 ONACRB 29.
13. 13The Appellants contacted the Board by way of email on February 18, 2022 advising that they are not available to proceed with the hearing on March 31, 2022 and April 1, 2022. Such scheduling concerns will be addressed with all parties when the hearing resumes on March 7, 2022.