Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2022 ONSC 5282
CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2022 ONSC 5282
DIVISIONAL COURT FILE NO.: 466/22
DATE: 20220915
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Parties
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE
Applicants/Moving parties
– and –
CHIEF ANIMAL WELFARE INSPECTOR
Respondent
Counsel
Eric K. Gillespie, John May, Natasha Papulkas and Yasmeen Peer, for the Applicants/Moving parties
Michael Sims, for the Respondent
Jason Tam and Olivia Filetti for the Animal Care Review Board
HEARD at Toronto (by videoconference): September 15, 2022
Oral Reasons for Judgment
matheson J. (Orally)
[1] The applicants/moving parties have brought a motion to stay of a decision of the Animal Care Review Board until ten days after the Divisional Court renders its decision in two related applications for judicial review that are scheduled to be heard on October 24, 2022 (Court File Nos. 297/21 and 284/22). In particular, the moving parties seek a stay of the decision of the Vice-Chair L. Lake dated August 18, 2022 (the “Decision”).
[2] By way of a very brief background, the moving parties run a dog sledding and horse-riding business, which is a long-standing family business. There was an inspection of the moving parties’ business in 2021, giving rise to compliance orders in relation to sled dogs at two locations.
[3] There was a further inspection regarding steps taken in relation to compliance orders. There was then a removal order, which resulted in the removal of all of the sled dogs, and a care order (which is a decision to keep the sled dogs in care) pending the issues that arose in the inspections being addressed.
[4] The moving parties exercised the right of appeal to the Board in relation to the above orders and then commenced two applications for judicial review of those orders. The first application is focused on the compliance orders. The second application is focused on the removal and care orders.
[5] The application for judicial review underlying the motion before me is the third application for judicial review arising from this course of events. This application for judicial review challenges the costs of care of the sled dogs. In January 2022, the respondent issued an account to the moving parties in the amount of roughly $1.1 million in relation to the costs of care of over 100 sled dogs that had been removed and placed in care. The moving parties exercised the right of appeal of that account to the Board, which gave rise to the Decision now challenged in the third application for judicial review. The Decision was made after a lengthy hearing, including evidence from witnesses, both lay and expert.
[6] As set out in the reasons for decision, the Vice-Chair considered the relevant statutory regime and more specifically s. 35 of the Provincial Animal Welfare Services Act 2019, S.O. 2019, c.30. Under that section, an owner or custodian is presumptively liable for certain costs when an animal is taken into care.
[7] After lengthy reasons for decision, the Vice-Chair concluded that the amount that should be paid be reduced to $505,760. That amount is for a defined period of time. It is expected that additional accounts will be rendered for later periods of time because these animals remain in care.
[8] I further note that in reducing the claim to about half of the claimed amount, the Vice-Chair agreed with the moving parties that Animal Welfare Service “failed to act responsibly” in a number of respects in relation to those costs. There were also comments made about the moving parties’ challenges to the account and as I mentioned the result was a substantially reduced account.
[9] The respondent has sought a reconsideration of that Decision. The reconsideration decision has not yet been released but it is not expected to take a very lengthy period of time. The Decision was only rendered on August 18, 2022, so that process is at a fairly early stage.
[10] Counsel have indicated that there is not yet a schedule for this application for judicial review, in part due to the reconsideration and because of this stay motion. I have asked counsel to begin the process of agreeing on that schedule.
[11] I return to this motion for a stay of the Decision pending the determination of the other two applications for judicial review. There is no dispute about the test for such a stay, which is set out in RJR-MacDonald Inc. v. Canada (Attorney General, [1994] 1 S.C.R. 311. The main factors are: (1) whether there is a serious question to be tried in this application; (2) whether the moving parties would suffer irreparable harm if there was no stay; and, (3) whether the balance of convenience favours the stay. These are not rigid categories. The question for me at the end of the day is what would serve the overall justice of the case.
[12] On the first factor – that is a serious question to be tried – it is well established that the threshold is low. The respondent has fairly acknowledged that low threshold is met in this case. I therefore move on to the second factor, which is irreparable harm. To put that in context, I note that under the above legislation, if the money ordered is not paid by a specific date, then the dogs would be forfeited to the Crown. The original date was September 1, 2022, but that has been extended to today as a result of this motion for stay.
[13] The moving parties’ submissions on irreparable harm begin with a concern that if forfeited, some of the over 100 sled dogs could be euthanized because it would be very difficult for all of them to be adopted. This submission is supported by unchallenged expert evidence that in many cases it would be hard to have the dogs adopted.
[14] As the moving parties have anticipated, the main response to the claim for irreparable harm is that these sled dogs are commercial assets that are subject to a valuation. Indeed, before me, the moving parties have said that they would estimate their value at $1 million. However, they go on to say that the dogs are really irreplaceable as a result of the following submission.
[15] The moving parties submit that although these dogs are not pets, they are not all strictly commercial because some are also used in competitions and recreational use. They further submit that either all or some of these dogs have special training and at least some of them have championship bloodlines. They therefore submit that effectively this group of dogs is irreplaceable.
[16] The moving parties then rely on RJR MacDonald in support of the submission that being put out of business is irreparable harm. They submit that if they are obliged to either pay roughly $500,000 today or soon, they are unable to do so, and if they lose the entire group of these special dogs, they will be put out of business.
[17] Those, in my view, are the main arguments put forward. I move then to the response to those arguments. As put by counsel today, the respondent submits that this is a “textbook” commercial matter that does not entitle the moving parties to a stay of proceedings because the issues are not only commercial but monetary. The respondent submits that there is therefore no irreparable harm.
[18] The respondent submits that these are commercial animals. They can be valued if compensation is needed and there is no need to be concerned about the ability to pay that compensation should it be required. The respondent puts forward a small group of cases regarding commercial animals where, for one reason or another, there was not a finding of irreparable harm. Although I found those cases of some assistance, they are each distinguishable from the unusual circumstances of this case, and for the most part do not involve an order that would result in the forfeiture of the animals.
[19] The respondent further submits that the moving parties could have taken steps to remedy the compliance issues and get the dogs back long ago and have failed to do so. This begins to intersect with issues between the parties in the other applications for judicial review, where the compliance orders are challenged. In one of those applications there was a motion in which the moving parties sought the return of the dogs. In that motion, the respondent took the position that the motion was premature. I make no comment on the validity of that position except to say that it does not appear that the moving parties have taken no steps to recover the dogs.
[20] I then move to third factor, the balance of convenience. As is often the case, the arguments put forward on this factor substantially overlap with what you have just heard me summarize in relation to irreparable harm. I will therefore not repeat those arguments. The moving parties emphasize that the balance of convenience considers the question of which party will suffer a greater harm and relies on the fact the harm that may be suffered by the respondent is strictly monetary. While I think that is an accurate statement, I note that the respondent is responsible generally with respect to expenditures and so that makes it different from another litigant.
[21] A further issue raised by the moving parties, which I find significant, is that if there is no stay of proceedings, the dogs will be forfeited, adopted, or potentially euthanized, all before the moving parties have their opportunity to have their challenge to compliance and other orders decided. Those two applications for judicial review will become either moot or substantially undermined.
[22] In that regard, the moving parties rely on an older case called Re Dylex Ltd. and Amalgamated Clothing & Textile Workers Union Toronto Joint Board et al. (1977), 17 O.R. (2d) 448 (H.C.), in which the court does support the use of a stay to prevent a situation where the party wins the merits, but the underlying subject matter of the dispute has disappeared.
[23] Moving to the respondent’s submissions on the balance of convenience, they largely overlap with the arguments regarding irreparable harm. However, a further issue is raised. Care costs continue to accrue in respect of these sled dogs. Further, if the Decision stands, for roughly $500,000, the moving parties have said that they would not be able to pay that amount. This overlaps with the dispute in the other two applications for judicial review, challenging the compliance orders, the order for the removal of the dogs and the order for care. It is of concern to me because I cannot say how long it will take for the Divisional Court panel that hears those two applications to render their decision. It could be more than the very short period of time between today and the hearing of those applications.
[24] I then move to the overall justice of the case. I have considered all of the submissions and, without limiting my consideration, I see these as the main factors in the exercise of my discretion on this motion:
(1) I agree with the submissions of the moving parties that this is an unusual case.
(2) Although there is substantial disagreement about the strength of the merits, it is accepted that there is a serious question to be tried.
(3) I am satisfied that there is the potential for irreparable harm to the moving parties, especially due to the special characteristics of these dogs and the potential that they will not all be placed for adoption, and some may be euthanized.
(4) there is a real prospect that if there is no stay the legal proceedings that have not yet been decided will either be substantially undermined or simply rendered moot.
(5) there is the possibility that the moving parties could achieve an outcome on the first two judicial reviews that would mean the costs were not payable; I wish to underscore that I make no endorsement of the chances of the moving parties succeeding on their applications for judicial review – I simply accept that it is a possibility.
(6) I accept that there are substantial monetary considerations here that are on-going, and I accept the concerns raised by the respondent that these costs, if owed, are at least partly going to be unrecoverable. I also observe that when it comes to these financial circumstances, they may change – one of the factors put forward in the evidence was the impact of the COVID-19 pandemic and while I certainly do not know more than anyone else about that, one hopes that businesses are recovering.
[25] Having regard to all these factors, I have decided to grant a stay, on these terms:
(1) The stay will expire on the 10^th^ day after the release of the Divisional Court’s decision on the two applications for judicial review that are scheduled to be heard on October 24, 2022 (Court File Nos. 297/21 and 284/22).
(2) The parties are required to report to the court if that date changes for any reason in order that the court can consider whether or not that should have an impact on the continuation of the stay.
(3) No later than 20 days after the hearing of the applications for judicial review in Court File Nos. 297/21 and 284/22, the moving parties shall provide the court with written submissions on the potential imposition of financial terms for the continuation of the stay from that date forward, focusing on the daily cost of care for the dogs in care.
(4) The written submissions shall state what financial terms (such as payments into court or other security) the moving parties submit they could/should be obliged to fulfill.
(5) The respondent shall provide its written response within 7 days, and the moving parties may provide any proper reply within 4 days.
(6) The court may then impose additional terms to continue the stay.
[26] With respect to the above terms, I think that it is important that the moving parties take a very serious approach to what I see as a real risk of a substantial financial obligation if they are unsuccessful in their litigation. I am not satisfied that they can leave that consideration until the disposition of the first two applications for judicial review because I do not know how long that will take. I have therefore imposed the above terms. While we do not know today what amount will be required to be paid, we know it may be substantial and the effect of the requested stay is that the costs of care continue to accumulate every day.
[27] Costs will be to the moving parties in the agreed amount of $5,000 all inclusive.
___________________________ matheson J.
Date of Oral Reasons for Judgment: September 15, 2022
Date of Written Release: September 20, 2022
CITATION: Windrift Adventures Inc.v. Chief Animal Welfare Inspector, 2022 ONSC 5282
DIVISIONAL COURT FILE NO.: 466-22-JR
DATE: 20220915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE
Applicants/Moving Parties
– and –
CHIEF ANIMAL WELFARE INSPECTOR
Respondent
ORAL REASONS FOR JUDGMENT
matheson J.
Date of Oral Reasons for Judgment: September 15, 2022
Date of Written Release: September 20, 2022