CITATION: Guillaume v. Ontario (Chief Animal Welfare Inspector), 2024 ONSC 1087
DIVISIONAL COURT FILE NO.: 23-246-JR
DATE: 20240223
Corrected decision: The face page of the original Reasons for Decision was corrected on February 28, 2024 to state that Jason Tam was counsel for the Respondent Chief Animal Welfare Inspector, rather than the Respondent Chief Animal Care Review Board.
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Davies and O’Brien JJ.
BETWEEN:
VALERIE GUILLAUME
Applicant
Valerie Guillaume, Applicant, acting in person
– and –
CHIEF ANIMAL WELFARE INSPECTOR and ANIMAL CARE REVIEW BOARD
Respondents
Jason Tam, for the Respondent Chief Animal Welfare Inspector
HEARD at Toronto: February 20, 2024, by video conference
BY THE COURT
[1] The applicant Valerie Guillaume brings a motion under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. 43, to set aside the order of Justice Nishikawa dated October 16, 2023 (reported at 2023 ONSC 5782) (the “Stay Decision”), dismissing the applicant’s motion to stay the order of the respondent Animal Care Review Board (the “Board”) dated August 4, 2023 (reported at 2023 ONACRB 52) (the “Board Decision”). The applicant also seeks an extension in time to bring that motion.
[2] In the Board Decision, the Board considered the applicant’s appeal against actions taken by the respondent Chief Animal Welfare Inspector (the “Chief Inspector”) pursuant to the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (“PAWSA”), under which (i) 41 cats were removed from the applicant’s residence, (ii) the Chief Inspector decided to keep the cats; and (iii) the Chief Inspector issued a Statement of Account for the cats’ care in the amount of $23,969.90: see PAWSA, ss. 31(1)(b), 31(6), 35(1). The Board dismissed the applicant’s appeals, declined to return the cats to her and confirmed the Statement of Account.
[3] After the Board Decision was issued, the applicant sought to challenge that decision by filing a Notice of Appeal on a Constitutional Question with the Divisional Court. In case management directions dated August 21, 2023, Matheson J. struck that Notice of Appeal, on the basis that there is no statutory right of appeal from the Board Decision. Those directions also provided the applicant with leave to bring an application for judicial review and a motion to stay the Board Decision.
[4] On September 15, 2023, the applicant filed a Notice of Application for Judicial Review of the Board Decision together with a motion to stay that decision, as contemplated by Matheson J.’s case management directions. Nishikawa J. heard and decided the motion to stay as a single judge of the Divisional Court. In the applicant’s current motion, the applicant seeks review of the Stay Decision by a panel of the Divisional Court.
[5] In the materials provided for this hearing, the applicant also challenged Matheson J.’s case management directions, arguing that she lacked the authority as a single Divisional Court judge to strike the Notice of Appeal. However, the Chief Inspector’s counsel drew to our attention case management directions for this hearing from Corbett J., under which he directed that the applicant may not take further steps in Divisional Court with respect to Matheson J.’s order striking the application’s Notice of Appeal. In his directions, Corbett J. stated that the appropriate way to challenge Matheson J.’s order was by motion for leave to appeal to the Court of Appeal.
[6] Consistent with Corbett J.’s case management directions, the panel advised the applicant that the hearing would address the applicant’s motion to set aside Nishikawa J.’s Stay Decision and the request for an extension of time to bring that motion, but not the challenge to Matheson J.’s case management directions. The panel also advised the applicant that it is granting her request for an extension of time to bring the motion set aside the Stay Decision, the extension request being unopposed.
[7] In the Stay Decision, Nishikawa J. accepted the Chief Inspector’s submission that the applicant’s motion to stay should be dismissed as moot: Stay Decision, at paras. 7-10. She reasoned that because the applicant failed to pay the Statement of Account within the required period of ten business days after the Board Decision, the animals were forfeited to the Crown under s. 35(4) of PAWSA. The motion judge also found that in the event the stay motion was not moot, the three-part test for granting a stay (set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311) had not been met, on the evidence before her: Stay Decision, at paras. 5-6, 11. While it was conceded that the judicial review application raised a serious question (satisfying the first element of the stay test), the motion judge found that the applicant had not demonstrated that (i) there would be irreparable harm if the stay was not granted, or that (ii) the balance of convenience favoured granting the stay.
[8] To succeed on a motion under s. 21(5) of the Courts of Justice Act, the moving party must demonstrate that the motion judge made an error of law or a palpable and overriding error of fact: Bernard Property Maintenance v. Taylor, 2019 ONCA 830, 148 O.R. (3d) 494, at para. 26.
[9] The applicant submits that the motion judge erred in her findings relating to both mootness and the test for staying the Board Decision.
[10] With respect to mootness, the applicant challenges the motion judge’s conclusion that the animals were forfeited to the Crown before she brought her stay motion. The motion judge justified that conclusion on the basis that the applicant did not pay the Statement of Account (or negotiate an arrangement with the Chief Inspector) within the required period of ten business days after the Statement of Account was issued: see Stay Decision, at paras. 8-10. Among other things, the applicant argues that she served her Notice of Appeal within the required ten-day business day period, with the result that there was an automatic stay of the Board Decision under s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). The applicant argues that because the Board Decision requires the payment of money to satisfy the Statement of Account, it was automatically stayed when the Notice of Appeal was filed. The applicant also argues that instead of striking her Notice of Appeal, it was open to Matheson J. to treat it as a Notice of Application for Judicial Review, in which case she would have had the benefit of the automatic stay under s. 25(1) of the SPPA.
[11] We see no merit in those submissions. Section 25(1) of the SPPA provides an automatic stay of a tribunal decision that is under appeal, but only if there is a right of appeal from the tribunal decision. There was no statutory appeal from the Board Decision in this case. The fact that the decision being challenged provides for the payment of money does not create a right of appeal and is not relevant under s. 25(1). As well, even if the Notice of Appeal was treated as a Notice of Application for Judicial Review as the applicant suggests, there would be no automatic stay since a judicial review application does not give rise to an automatic stay of the tribunal decision and no stay application was brought within the required ten business day period (as the motion judge correctly stated in the Stay Decision, at para. 10). In these circumstances, we see no error of law or a palpable and overriding error of fact arising from the motion judge’s conclusions relating to mootness.
[12] With respect to the test for a stay in RJR-MacDonald, the applicant submits that the motion judge erred in her conclusions with respect to irreparable harm and balance of convenience. In reaching those conclusions, the applicant says that the motion judge failed to consider all the surrounding circumstances, include unfairness to the applicant and the harm to her resulting from the seizure of her cats, both as an animal lover and as a person deprived of her constitutional rights under the Charter[^1]. She states that these were matters that the Board had also failed to consider in making its decision.
[13] We also see no merit in those submissions. In the Stay Decision, at para. 11, the motion judge found that the applicant failed to meet the second and third element of the stay test, noting that the applicant did not file an affidavit in support of her motion. However, as is clear from the Stay Decision, at para. 12, the motion judge considered the applicant’s submissions that the Board denied her procedural fairness and failed to consider her constitutional rights. We see no basis for concluding that the motion judge erred in law or made a palpable and overriding error of fact in her discretionary determination that the stay test had not been satisfied.
[14] Accordingly, (i) the applicant’s request to extend the time to bring a motion to set aside the Stay Decision is granted, but (ii) the applicant’s motion to set aside the Stay Decision is dismissed. Since the Chief Inspector is not seeking costs, there will be no costs order.
[15] The applicant advised that she intends to pursue her application for judicial review. Within seven days, the parties shall provide the court with a proposed schedule for the exchange of materials on the application. If they are not able to reach agreement, each party shall provide their proposed schedule and the court will establish a schedule for the exchange of materials.
___________________________ Lococo J.
Davies J.
O’Brien J.
Date: February 23, 2024
CITATION: Guillaume v. Ontario (Chief Animal Welfare Inspector), 2024 ONSC 1087
DIVISIONAL COURT FILE NO.: 23-246-JR
DATE: 20240223
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Davies and O’Brien JJ.
BETWEEN:
VALERIE GUILLAUME
Applicant
– and –
CHIEF ANIMAL WELFARE INSPECTOR and ANIMAL CARE REVIEW BOARD
Respondents
REASONS FOR DECISION
BY THE COURT
Date: February 23, 2024
[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11