Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240202 DOCKET: M54799 (COA-24-OM-0017)

Tulloch C.J.O., Hourigan and Gomery JJ.A.

BETWEEN

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

and

Chief Animal Welfare Inspector Respondent (Respondent/Responding Party)

Counsel: Eric K. Gillespie, for the appellants/moving parties Danielle Meuleman and Jason Kirsh, for the respondent/responding party

Heard and released orally: February 1, 2024

Reasons for Decision

[1] In their Notice of Motion, the moving parties brought a motion for a stay of an order of the Divisional Court pending determination of their motion for leave to appeal. In that order, the Divisional Court dismissed a motion for judicial review of a decision of the Animal Care Board approving a statement of account for the costs of care of animals removed by animal welfare authorities.

[2] The moving parties sought a stay because otherwise the animals would be forfeited by reason of their failure to pay the statement of account. We note that the animals have since been forfeited to the Crown as a result of the moving parties’ failure to pay an earlier account.

[3] In oral argument, the nature of the stay sought changed from what was in the Notice of Motion. The moving parties now seek terms of the stay that there be an inspection of the animals and the collection of semen samples from them.

[4] To be successful on this motion, the moving parties must meet the test from RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199, which provides that a stay will be granted if the court finds that: (i) there is a serious issue to be tried; (ii) the moving party will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours the moving party who will suffer the greater harm from the denial of the stay pending a decision on the merits.

[5] The serious issue to be tried ultimately relates to the merits of the leave to appeal motion. Therefore, in addition to the standard RJR-MacDonald factors, there must be added a consideration of the principles governing applications for leave to appeal from final orders of the Divisional Court set out in Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.).

[6] The moving parties assert three errors by the Divisional Court: (i) failing to admit the appellants’ proposed fresh evidence; (ii) applying an incorrect standard of review; and (iii) failing to have regard to the evidence and law applying to the rewarding of boarding costs to the respondent.

[7] We conclude that there is no serious issue to be tried. The Divisional Court gave comprehensive and cogent reasons and the moving parties have not raised any arguable error of law or mixed fact and law. There are also no arguable issues of interpretation regarding any statute or principle of law. Further, no question of public importance is raised requiring consideration by this court.

[8] The moving parties will also not suffer any irreparable harm, because the animals have now been forfeited due to their failure to pay a previous statement of account. Put simply, this is now a fight about damages. There is also no basis post-forfeiture for this court to make orders regarding semen samples or inspections.

[9] Finally, the balance of convenience does not favour a stay, because the animals have been forfeited. It is not possible to make an order unwinding this development.

[10] In summary, the moving parties have failed to meet their onus on all three parts of the test for a stay.

[11] Finally, the moving parties submitted that we could order the requested relief because it was sought in a previous proceeding. We have no jurisdiction to make orders sought in a related proceeding that has been dismissed because leave to appeal was denied by this court.

[12] Consequently, the motion is dismissed. Costs are awarded to the responding party in the all-inclusive amount of $5,000.

“M. Tulloch C.J.O.”

“C.W. Hourigan J.A.”

“S. Gomery J.A.”