Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231019 DOCKET: M54593 (COA-22-OM-0130 & COA-23-OM-0244)

Sossin J.A. (Motion Judge)

BETWEEN

Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgeina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde and Cody Pryde Applicants/Respondents (Appellants/Moving Parties)

and

Chief Animal Welfare Inspector Respondent/Applicant (Respondent/Responding Party)

Counsel: Eric K. Gillespie, for the moving parties Michele Valentini and Michael J. Sims, for the responding party

Heard: October 17, 2023 by video conference

Endorsement

Background

[1] The appellants seek an Order for consolidation of two leave to appeal proceedings before this court (Court File Nos. COA-22-OM-0130 and COA-23-OM-0244) pursuant to r. 6.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Both leaves are sought from Divisional Court orders arising out regulatory action taken by the respondent, Chief Animal Welfare Inspector.

[2] On February 18 and 19, 2021, Animal Welfare Services (“AWS”) inspected the appellant Windrift’s place of business and found their sled dogs to be in a state of distress. AWS issued orders under the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “PAWS Act”). Windrift appealed the orders to the Animal Care Review Board (the “Board”). On June 23, 2021, the Board confirmed the orders except for one, which was varied. Following a subsequent inspection, in which AWS concluded the orders had not been complied with and the dogs were still in distress, 230 dogs were removed.

[3] On December 31, 2021, the Board dismissed Windrift’s appeal of the decisions to remove and keep the dogs in case. The Board ordered that the return of the dogs occur only once Windrift had complied with the standards relating to tether lengths, housing, and bedding conditions.

[4] Windrift sought judicial review of the Board’s decisions that Windrift was not in compliance with the PAWS Act and upholding the removal of the dogs. On December 6, 2022, the Divisional Court dismissed Windrift’s application for judicial review. Windrift filed a notice for leave to appeal this decision this this court (the “First Leave to Appeal” application).

[5] On June 2, 2023, the parties appeared before Trotter J.A. on a motion for an extension of time to perfect Windrift’s First Leave to Appeal application. In his endorsement, Trotter J.A. directed that “[t]he parties are not permitted to file any further materials in relation to this leave application. Given the history of this case in the Divisional Court, this application for leave to appeal should be given priority by the Appeal Scheduling Unit.” The parties are awaiting a decision on the First Leave to Appeal application.

[6] On January 18, 2022, the respondent issued a statement of account to Windrift for the costs of providing necessaries to the dogs from September 2021 to January 2022, including transportation, boarding, and veterinary costs. Windrift appealed the statement of account to the Board on January 24, 2022. After 20 days of hearing, on August 18, 2022, the Board partially confirmed the statement of account but varied the amount owing (the “Statement of Account Decision”).

[7] Both Windrift and the Chief Inspector sought judicial review of the Statement of Account Decision. The Divisional Court dismissed these judicial reviews in December 2022. Following the dismissal of the judicial reviews, a judge of the Divisional Court declined to extend the stay of the effect of the Statement of Account Decision that had been in place pending the outcome of the judicial review. This decision was upheld by a panel review by the Divisional Court. At that point, Windrift brought a motion seeking leave to appeal from the Divisional Court decision on the Statement of Account Decision (the “Second Leave to Appeal” application). The Second Leave to Appeal application has yet to be perfected.

[8] Windrift also brought an urgent motion in this court seeking an interim stay of the Board’s Statement of Account Decision. Monahan J.A. granted an interim stay of the Statement of Account Decision, pending the outcome of the Second Leave to Appeal application, in order to prevent the forfeiture of the dogs to the Crown before a final determination of the legality of their removal and retention by AWS and the Chief Inspector had been made.

Analysis

[9] Rule 6.01(1) of the Rules provides that the court has discretion to consolidate proceedings in the following circumstances:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; ….

[10] The consolidation rule strives to avoid a multiplicity of proceedings; promote timely and inexpensive determination of disputes; and avoid inconsistent judicial findings: Li v. Bank of Nova Scotia, 2023 ONSC 4235, at para. 62. The test for consolidation is twofold: first, the court must determine whether the moving party has established that any of the criteria under r. 6.01(1) are met; and second, if any criteria have been met, the court must consider whether the balance of convenience favours a consolidation order: Li, at para. 62.

[11] As Monahan J.A. observed in his consideration of the interim stay: “The procedural background to this stay motion is complicated and involves two interrelated and overlapping streams of litigation.” The two leave applications both have the same factual origin in the respondent’s regulatory action against the appellants resulting in the removal of the dogs. The “interrelated and overlapping” nature of the litigation meets the threshold at the first stage of analysis.

[12] I turn now to the balance of convenience.

[13] In CN v. Holmes, 2011 ONSC 4837, at para. 43, Brown J. (as he then was), reviewed the principles underlying consolidation and stated: “In exercising its discretion whether to order the consolidation of proceedings or that they be heard simultaneously or consecutively, the court will consider the general rule, mandated by the Courts of Justice Act, that, as far as possible, multiplicity of proceedings shall be avoided, and a variety of factors including: (1) the extent of the difference of commonality of the factual or issues in the proceedings; (2) the status of the progress of the several proceedings; and (3) the convenience or inconvenience, in terms of time, money, due process and administration, of bringing the proceedings together.”

[14] As these are leave to appeal applications, which are determined in writing and generally without reasons by the court, there is little to be saved in terms of efficiency through consolidation, and because reasons are not given, the risk of inconsistent analysis generally will not arise.

[15] More significant, the legal questions at issue in each leave application are distinct. The appeal of the Board’s finding that the respondent was justified under the PAWS Act in issuing compliance orders and removing the dogs has little substantively to do with the appellants’ challenge of the Board’s decision with respect to the Statement of Account.

[16] The respondent argues that it would be prejudiced by the additional delay inherent in consolidating a perfected First Leave to Appeal application with a Second Leave to Appeal application that has not been perfected (although I note that counsel for the appellants advised that the Second Leave to Appeal application could be perfected in as little as six weeks).

[17] The respondent also objects to the proposed consolidation in principle as it would have the effect of extending the interim stay ordered by Monahan J.A. to both leave applications without the appellants having to satisfy the test for such a stay.

[18] In my view, the balance of convenience does not favour consolidation. The leave to appeal analysis is rooted in the particular decision under appeal (in this case, decisions of the Divisional Court) and its broader significance. Whether the First Leave to Appeal application meets the threshold for leave to be granted (see the factors set out in Re Sault Dock Co. Ltd. v. City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.)) has little or no bearing on whether the Second Leave to Appeal application would meet that same threshold.

[19] While I share the doubt expressed by counsel for the appellants that dismissing the motion for consolidation will result in less delay, or substantially reduce the costs being accrued by the respondent in caring for the dogs, the potential prejudice to the respondent in granting the motion for consolidation nonetheless outweighs any potential benefits, which are marginal at best.

Disposition

[20] For these reasons, the motion is dismissed. I would emphasize, however, that while the threshold for consolidating the leave to appeal applications is not met, I would not comment on whether, if leave is granted in both applications, a consolidation of the appeals would be warranted.

[21] The parties may convey any agreement with respect to costs or, failing such agreement, provide brief submissions of no more than 2 pages to the court, not including Bills of Costs or Offers to Settle, within 14 days of the release of this decision.

“L. Sossin J.A.”