Court File and Parties
CITATION: Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632
FILE NOS.: 297/21 and 284/22
DATE: 20221206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Stewart and Leiper JJ.
BETWEEN:
THOMAS PRYDE, ADRIENNE
Eric Gillespie, Tasmeen Peer and John May
SPOTTISWOOD and GEORGEINA
for the Applicants
PIERCE
Applicants
– and –
CHIEF ANIMAL WELFARE
Michael Sims and Bhavini Lekhi, for the
INSPECTOR
Respondent
Olivia Filetti and Jason Tam, for the
Animal Care Review Board
Respondent
HEARD at Toronto (by videoconference): October 24, 2022
REASONS FOR DECISION
D.L. Corbett and Leiper JJ.
Introduction
[1] The Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “PAWS Act” or the “Act”) establishes a comprehensive scheme for protecting animals in Ontario. Animal Welfare Services Inspectors (“AWS Inspectors”) appointed under the Act may, by consent or warrant, enter and search a place if they have reasonable grounds to believe it may contain an animal in distress. An AWS Inspector may, at any time, provide necessaries to an animal to relieve it from distress. They may also remove animals and retain them. The Respondent, the Chief AWS Inspector, supervises AWS Inspectors and is responsible for regulatory enforcement under the Act: see Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.).
[2] The Applicants operate a sled dog and horse-riding business in Oro-Medonte Township (the “Moonstone” property) and Severn Township (the “Severn” property) in Ontario. In early 2021, AWS Inspectors inspected the Applicants’ sled dog business and issued various orders for improvements to the living conditions of their sled dogs (“sled dogs” or “dogs”) pursuant to Act.
[3] The Applicants appealed the orders to the Animal Care Review Board (the “Board”). By decision dated June 23, 2021, Vice Chair Marisa Victor of the Board confirmed all but one of these orders, which she varied. (the “Compliance Decision” [2021 ONACRB 12]).
[4] The Applicants and the Respondent unsuccessfully sought reconsideration of the Compliance Decision [2021 ONACRB 18].
[5] On September 23, 2021, AWS Inspectors conducted a follow-up inspection. They determined that the Applicants had not complied with the Compliance Decision. AWS removed about 230 dogs in the custody of the Applicants from the premises. AWS subsequently decided to retain the dogs.
[6] The Applicants appealed the removal and retention of the dogs to the Board.
[7] On December 31, 2021, Member Lindsay Lake of the Board ordered that the Respondent return 11 puppies to the Applicants, because they found that four of these animals were not “in distress” at the time of removal and that these animals and a further seven animals (which were in distress when removed) would not be in distress or at undue risk of being in distress if they were returned to the Applicants. The Board ordered that the remaining dogs not be returned to the Applicants until the Applicants have complied with requirements consistent with enforcement of the Compliance Decision (i.e., lengthening the tethers and remediating the doghouses) (the “Enforcement Decision”) (2022 ONACRB 25).
[8] The Applicants seek judicial review of both the Compliance Decision and the Enforcement Decision. We heard both applications together.
Jurisdiction of the Court
[9] This court has jurisdiction over these applications pursuant to the Judicial Review Procedure Act, R.S.O. 1990, J.1, s.2(1).
The First Preliminary Issue: Have the Applicants Exhausted Alternative Remedies?
[10] As a preliminary matter, the Respondent and the Board submitted that this court should decline jurisdiction to review the Enforcement Decision because the Applicants failed to seek reconsideration of that decision by the Board.
[11] Parties may request reconsideration of a Board decisions under Rule 18.2 of the Board’s Common Rules of Practice and Procedure on the following grounds:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
[12] The Applicants sought reconsideration of the Compliance Decision, but not the Enforcement Decision. For reasons given on September 3, 2021, the Board dismissed the request for reconsideration of the Compliance Decision (2021 ONACRB 18, at para. 41). The Respondent and the Board submit that the first request for reconsideration shows that the Applicants were aware of the reconsideration process yet chose not to avail themselves of it in respect to the Enforcement Decision, and they have not explained why they did not do so.
[13] The Respondent and the Board rely on Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), in which this Court declined to hear an application for judicial review because the Applicant failed to request reconsideration. In Jackson, the Board reduced accounts of $1,594.41, $450.00, and $2,025.00 rendered to an owner after three dogs were removed from his care, based on a finding that the owner did not have the means to pay those accounts.
[14] Our facts are different. This not a one-issue case. The record is voluminous. Sending part of the case back for reconsideration would not dispose of the matter but would potentially lead to further proceedings in parallel to the judicial review of the Compliance Decision. This would fragment the proceedings, add cost, and delay a final disposition of all issues necessary to decide the fate of the animals. Dismissing the review of the Enforcement Decision in this case would be an injustice and would perpetuate conflict. The applicants have been clear throughout that they wish to challenge the Enforcement Decision and we would not deprive them of the opportunity to do so because they pursued a sub-optimal approach to challenging the decision – thus, the choice for us, in this case, is whether to require the applicants to return before the Board with a request for reconsideration, or whether to hear the application for judicial review of the Enforcement Decision now, without the Applicants having had recourse to the reconsideration process before the Board.
[15] As the court noted in Jackson, this court has discretion to permit a party to seek judicial review where it has not sought reconsideration. The court considers the nature of the alleged grounds for review, the remedial capacity of the tribunal, the expertise of the tribunal and economical use of judicial resources and any other matter bearing on whether this court should exercise its jurisdiction: see also Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at para. 42. In the circumstances of this case, including the history of the litigation, the decision of this court to hear the judicial review of both applications together, the impact of further delay on living animals, the costs involved in the ongoing care of those animals, the ability of this court to determine the issues, and the comprehensive record filed, all weigh in favour of hearing both applications on the merits now. Further delay would not be in the interests of the parties, the animals involved, or the administration of justice.
[16] Accordingly, we have considered both applications for judicial review without requiring the Applicants to exhaust the Tribunal’s reconsideration process in respect of the Enforcement Decision.
The Second Preliminary Issue: Admission of the Affidavit of Adrienne Spottiswood
[17] The Applicants filed an additional affidavit of Adrienne Spottiswood, (the “Spottiswood Affidavit”) affirmed on October 3, 2022. The Respondent moved to strike out the affidavit on the basis that it was filed outside the timelines set for the exchange of materials, and that its content is not relevant to the issues on review.
[18] As a general principle, the record on judicial review is restricted to the record that was before the decision maker below: DRPS v. The Ontario Civilian Police Commission 2021 ONSC 2065 (Div. Ct.) at para. 45. In limited circumstances fresh evidence may be permitted, for example, to show there was an absence of evidence on an essential point, to disclose a breach of natural justice that cannot be proved using the record, or to provide general background that may assist the court in understanding the issues: See Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.); Scott v. Toronto (City), 2021 ONSC 858 (Div. Ct.) at paras. 19-20.
[19] The Applicants submit that the Spottiswood Affidavit is relevant to the housing of the dogs and the length of the tethers. They further submit that it is appropriate reply evidence to the affidavit of Rachel Vanden Kroonenberg (the “Vanden Kroonenberg Affidavit”) sworn on August 17, 2022.
[20] The Spottiswood Affidavit sets out her concerns about the practicality and safety of the new houses and the longer tethers for the dogs that were installed to comply with the Board’s Removal Decision. To that extent, it repeats the positions and expert evidence tendered by the Applicants before the Board. Video evidence attached to the Spottiswood Affidavit includes one video of a dog sitting in the rain outside of one of the larger houses, and another video showing a dog entering a smaller house in the rain. This is evidence of matters that post-date the hearing. It is not relevant to the issues on review.
[21] The Spottiswood Affidavit also describes the condition of dogs returned to the Applicants after the Enforcement Decision. That evidence is not relevant to the issues before us.
[22] The Spottiswood Affidavit is not properly in reply to the Vanden Kroonenberg Affidavit. The latter provides evidence of the condition of the animals when the animals were removed. To the extent that it contains evidence about the condition of the animals after removal, this evidence is for the purpose of providing insight into the condition of the dogs at the time of removal. The Spottiswood Affidavit does not respond to this evidence and is not admissible as reply evidence.
[23] We find that the Spottiswood Affidavit does not meet the test for the admission of fresh evidence on judicial review, is not proper reply evidence, and it is struck from the record pursuant to Rule 38.12 of the Rules of Civil Procedure.
Standard of Review
[24] The standard of review in this case is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at paras. 16, 23 and 25.
PAWS Act Provisions
[25] The Inspectors’ removal decisions flowed from the Inspectors’ observations and conclusions that the Applicants’ dogs were “in distress” because they were not receiving the proper standard of care respecting tethers and the condition of their dog houses.
[26] The Act defines “distress” in s. 1 as follows:
“distress” means the state of being,
(a) in need of proper care, water, food or shelter,
(b) injured, sick, in pain or suffering, or
(c) abused or subject to undue physical or psychological hardship, privation or neglect.
[27] O. Reg. 444/19 is the Regulation to the Act (the “Regulation”). Subsection 1(5) of the Regulation provides that, where the Regulation requires that a standard of care be “adequate and appropriate” or “necessary”, the standard should be read as being “adequate and appropriate or necessary to the specific animal, having regard to its species, breed and other relevant factors.”
[28] At the time of these events, the prescribed standards of care for dogs that live outside were found in s. 4 of the Regulation as follows:
4.(1) Every dog that lives primarily outdoors must be provided with a structurally sound enclosure for its use at all times.
(2) The enclosure must be weather-proofed and insulated.
(3) The size and design of the enclosure must be adequate and appropriate for the dog.
(4) A chain, rope or similar restraining device used to tether a dog that lives primarily outdoors,
(a) must be at least three metres long;
(b) must allow the dog to move safely and unrestricted, except by its length; and
(c) must allow the dog to have access to adequate and appropriate water and shelter.
The Issues on the Review
[29] The Applicants raise the following issues with the Board’s decisions for which they seek judicial review:
The Compliance Decision Issues
- Did the Board fail to properly interpret the tethering requirements in s. 4(4) of the Regulation?
a. Related to this issue, did the Board fail to apply s. 1(5) of the Regulation when interpreting s. 4(4)?
Did the Board err by disregarding expert evidence?
Was the Board’s decision impossible to implement?
The Enforcement Decision Issues
Did the Board fail to apply s. 31(1) of the PAWS Act to the removal?
Did the Board fail to consider evidence of the removal?
Did the Board fail to apply the test under s. 67 of the PAWS Act?
We would add to this list a seventh issue which is implicit in the Applicants’ arguments respecting the Enforcement Decision:
- Was the Board’s decision reasonable to order that most of the dogs not be returned to the Applicants pending their compliance with various conditions, without the Board having decided whether the removal and retention of the dogs was done in accordance with the Act?
Analysis of the Compliance Decision Issues
Issue #1: Did the Board fail to properly interpret the tethering requirements in ss. 4(4) of the Regulation? Related to this issue, did the Board fail to apply ss. 1(5) of the Regulation when interpreting ss. 4(4)?
[30] The Applicants submit that the Board unreasonably determined that ss. 4(4)(a) of the Regulation (as it then was) required a chain, rope or other restraining device at least three metres long for dogs primarily housed outside, without regard to the provisions in 4(4)(b) and (c) which describe requirements for animal safety, and the requirement that dogs be able to access to food and water respectively.[^1]
[31] They submit the Board failed to apply the statutory test for interpretation requiring the words of a statute to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Rizzo v. Rizzo Shoes Ltd. 1998 837 (SCC), [1998] 1 SCR 27, para 21.
[32] The interpretation urged by the Applicants would mean that the Board ought to have considered all aspects of 4(4), not merely the evidence about the tether length. The Applicants submit that the Board ought to have considered the evidence that the tethering system used by the Applicants is attached to a central swivel post, allowing the dogs to move in a 360-degree circle around the anchor point, and that they were able to access food and water and to move safely and without restriction.
[33] Related to the issue of how to read 4(4), the Applicants submit that the Board failed to apply ss. 1(5) of the Regulation in interpreting ss. 4(4). That is, it ignored evidence about safety for sled dogs and the words in s. 1(5) of the Regulation which address the need to consider the standards of care that are appropriate to the species and breed of dog concerned.
[34] We disagree. A plain reading of s. 4(4), in the ordinary grammatical sense of the words, is that it contains three separate and independent requirements, all of which contribute to the safety and well-being of dogs housed mainly outdoors. Thus, at the time of the hearing, the Regulation included three requirements, one of which was that the tethers used had to be a minimum of three metres in length. The evidence before the Board, which it was entitled to accept, was that the tethering systems in use were less than three metres in length.
[35] On the related issue of Section 1(5) of the Regulation, that provision relates to standards of care which use the language of “reasonable and appropriate”. Section 4(4) does not use this language. Instead, as previously written, ss. 4(4) has specific prescriptive language that on a plain reading would apply to any breed or species of an outdoor housed dog.
[36] We do not agree that the Board should have qualified the application of the tether length minimum to a particular tethering device (a swivel post, a fixed point, or some other device), whether the range of available motion is 360 degrees, 180 degrees, or some other aspect of a circle. The minimum tether prescribed by the Regulation is three metres, and the Board was reasonable in so concluding.
[37] We find that in making its Compliance Decision, the Board acted reasonably in concluding that the Applicants did not meet the standard for the length of the tethering systems used for their dogs. This ground of review is dismissed.
Issue #2: Did the Board err by disregarding expert evidence?
[38] The Applicants tendered expert evidence of two sled dog experts, Janece Rollet, a canine behavior expert and James Cunningham, a kennel expert. Their credentials were accepted as to sled dog standards internationally.
[39] The Board reviewed Ms. Rollet’s evidence. It wrote that:
… the appellant’s evidence that their tethering system was safe and humane was strongly supported by their expert witness Ms. Rollet. I also understand that sled dog codes of care around the world, including those in Canada, recommend using a 1.83 meter (or 6 feet) CRSP tethering system to allow for 360 degree movement. Unfortunately for the appellants, in Ontario, this does not meet the minimum standard of care as required by the Act and Regulation unless the tether is at least three meters in length, whether or not the CRSP tethering system is used.
[40] The Board considered the evidence of James Cunningham, relative to the question of the appropriate insulation and bedding used to house breeds of dog who work as sled dogs. In that regard, the Board preferred the expert evidence heard from Dr. Bruce Robinson, a veterinarian. It relied on Dr. Robinson’s evidence to conclude that uninsulated wood structures did not meet the requirements of the Act and s. 4(2) of the Regulation which requires houses that are insulated.
[41] Our function on judicial review is not to re-weigh or re-assess the evidence heard by the Board. The Board was entitled to accept some, none or all of the evidence tendered by the parties, including the expert evidence. In both the case of Mr. Cunningham and Ms. Rollet, the Board provided reasons for its decision that explained its choices. The reasons on a fair and holistic reading provide a “rational chain of analysis”: see Vavilov at para. 85.
[42] In respect to the issue of tether length, the Board found that the evidence was, in effect, in aid of an argument that the requirements of the Regulation are not reasonable and pose a safety risk to the dogs. The Board and this court are bound by the Regulation. If the applicants take issue with the wisdom of provisions in the Regulation, their recourse is to seek amendment of the Regulation.
[43] We conclude that the Board did not unreasonably disregard the expert evidence, nor did it err in its treatment of the expert evidence. This ground of review is dismissed.
Issue #3: Was the Board’s decision impossible to implement?
[44] The Applicants submit the Board’s decision was insufficiently particularized such that compliance with it was impossible. This included the Board’s decision which upheld several requirements that were not met:
a. The weatherproofing requirement, in the face of evidence that sled dogs will remove obstructions over the entrances to their housings to have an unobstructed view;
b. The straw bedding requirement, in the face of evidence that some dogs have different preferences and will “kick out” bedding that they prefer not to sleep on.
[45] The Respondent submits that the Board’s findings were specific enough to be implemented. The dog houses were required to be large enough for the dogs to stand up, turn around and lie down. Wires and sharp objects were to be removed so that the dogs would not be at risk of injury.
[46] The Board did not require that entrances to the dog’s house be covered: the Respondent submits that the Board required that the structures had to be in a good state of repair, weatherproofed, the holes in walls other than the doorway repaired, exposed screws removed and broken or wobbly roofs repaired.
[47] We find that the Board’s decision and direction for compliance were reasonably specific such that the Applicants were able to know what was required in order to meet the standards of care. This ground of review is dismissed.
Analysis of the Enforcement Decision Issues
[48] The issues argued before us do not follow the logic of the issues decided by the Board. To place the issues before us in the context of the Board’s decision, we describe the decision below and then assess the arguments of the Applicants in this context.
[49] The questions before the Board, below, as agreed by the parties at the time of the hearing and set out in the Board’s Enforcement Decision, and the answers given by the Board, were as follows:
(i) Did the appellants fail to comply with the Compliance Orders as amended by the Board’s June 23, 2021 Decision and Order? Answer: Yes, the appellants failed to comply.
(ii) Were each of the dogs… in distress on September 23, 2021 as defined in the Act? Answer: 4 puppies found at the Severn property were not in distress and would not be placed in distress if returned to the appellants. The remaining dogs were in distress on September 23, 2021.
(iii) If so, was the decision to remove the dogs… for the purpose of providing them with necessaries to relieve their distress pursuant to s.31(1) of the Act? Answer: The Board “questioned” whether the decision to remove the dogs was for the purpose of providing necessaries to them but found it “unnecessary to determine this issue” or the question “of whether the respondent’s decision to keep the dogs in care made under s.31(6) was valid.”
(iv) If so, did the respondent have reasonable grounds to believe that each of the dogs… may be placed in distress if… returned to the appellants such that the decision to keep the dogs in care made under s. 31(6) [was] valid? Answer: seven puppies found at the Moonstone property were in distress on September 23, 2021, but there was no evidence that these puppies or the four puppies found not to have been in distress at the Severn property at the time of the removal, would be in distress or face an undue risk of being in distress, if returned. In respect to the remaining animals, the Board “did not find it necessary” to decide whether the decision to keep the dogs was valid.
[50] Having made the findings set out above, the Board found that the dogs (other than the 11 puppies ordered returned) should not be returned to the appellants until issues related to tether lengths and dog houses are remedied on the basis that, until these remedial steps are completed, the dogs would be in distress or face an undue risk of distress if they are returned.
[51] On the first issue before the Board, the Applicants conceded in final argument before the Board that they were not in compliance with the Board’s Compliance Decision and orders. With respect, the Applicants were tendentious on this issue until the time of this concession. The Applicants disagreed with the compliance orders when they were made, they disagreed with them at the first Board hearing, they continued to disagree with them up to the time of the removal, and the record discloses that they did not bring themselves into compliance prior to the removal on September 23, 2022. Before us the Applicants continued to argue that the compliance orders were wrong and that they should not have to comply with them. This has been their position from the outset, through to the hearing before us. There was no principled argument available to the Applicants before the Board, or before us, in respect to the first issue.
[52] On the second issue there was no concession by the Applicants before the Board, but it is just as obvious that most of the dogs were “in distress” at the time of the removal. Being “in distress” is defined in s. 1 of the PAWS Act as being in need of proper care. The phrase “proper care” includes care in compliance with the minimum standards prescribed by the Act and its Regulation. This analysis was included, expressly, in the Enforcement Decision of Vice Chair Victor in June 2021, and was referenced by the Board as follows:
Given that the standards of care as set out in the regulation were not met, Vice Chair Victor found that this was not “proper care” and, therefore, the dogs… were in distress as defined in the Act. The respondents therefore submitted that the dogs continued to be in distress on September 23, 2021 because the standards of care were still not being met…. (Decision, para. 20, referencing Decision of Vice Chair Victor dated June 23, 2021 [2021 ON ACRB 12], paras. 35, 38, 66, 69 and 71).
The Board went on to adopt the reasoning of Vice Chair Victor at para. 33 of the Decision:
I find Vice Chair Victor’s June 23, 2021 Decision and Order persuasive and agree with her that if the standards of care as set out in the Regulation are not met, then such care is not proper for the purposes of the Act and, as a result, such improper care amounts to distress. (Decision, para. 33)
This finding is reasonable and accords with a plain reading of the PAWS Act. Owners are required to comply with the minimum standards prescribed in the Act and Regulation, and, if they do not, their animals are, by definition, “in distress”. The Applicants’ argument that their non-compliance caused no “distress” is an improper collateral attack on the Compliance Decision.
[53] We address the Board’s conclusions respecting issues (iii) and (iv) before it in our consideration of the fourth issue raised by the Applicants before us.
Issue #4: Did the Board fail to apply [s. 31(1)](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html#sec31subsec1_smooth) of the [PAWS](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html) Act to the removal?
[54] Section 31(1) of the PAWS Act provides:
31 (1) An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if,
(c) an order respecting the animal has been made under section 30 and the order has not been complied with.
[55] The Applicants appealed the removal of their animals pursuant to s. 38(1) of the Act.
[56] Section 38(9) gives the Board the following powers on appeal:
(9) After a hearing, the Board may do one or more of the following:
Confirm, revoke or modify an order made under section 30.
Order that an animal removed under subsection 31 (1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian.
Confirm, revoke or vary a statement of account served under subsection 35 (1).
Order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under section 30 be paid by the Minister to the owner or custodian.
Order that the whole or any part of the cost to the Chief Animal Welfare Inspector of providing necessaries to an animal pursuant to its removal under subsection 31 (1) or (2) or the determination to keep an animal in the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8) be paid by the owner or custodian of the animal to the Minister of Finance.
[57] The Applicants submit that the Board erred in “skipping” over the requirement to find that the Inspector removed the animals for the purposes of providing them with necessaries to relieve their distress, given that this was in issue on the hearing.
[58] The Applicants submit that the Board was mandated to “scrupulously adhere to the Act’s provisions to ensure that provisions which protect the rights of animal owners are protected”: Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 25, citing Hurley v. O.S.P.C.A., 2015 ONSC 7784, at para. 166.
[59] The Respondent submits that the Board acted within its jurisdiction on appeal, and that the Board was not required to determine whether the Inspector complied with s. 31(1)(c) when the animals were removed. The Respondent argues that the only question before the Board was whether to return the animals. As of the time of the hearing before the Board, the decision to remove the animals was not relevant to the question of whether the animals should then be returned. The Respondent further submits that the Board does not have jurisdiction to confirm, revoke or modify the Inspector’s decision to remove the animals: Steele v. Chief Animal Welfare Inspector, 2021 ONACRB 10; PAWS Act, s. 38(9).
[60] Further, the Respondent submits that there was evidence before the Board to the effect that the removals were made in compliance with s. 31(1)(c).
[61] We disagree with the Respondent’s analysis as being overly technical and not in keeping with the provisions for appealing decisions to order compliance, removal and retention of animals. While the Act does not explicitly state that the Board must make a finding as to whether the removals by an Inspector under s. 31 were made in accordance with the Act, what would be the purpose of providing an appeal of that decision and access to all of the procedural protections a hearing before the Board provides if those questions were not in issue? Questions of distress and responding to distress are logically connected to the basis for a removal decision.
[62] That said, the Board’s conclusion is reasonable that findings about the legality of an inspector’s removal decision will not be sufficient, by themselves, to determine whether an animal should be returned to its owner. The initial removal may have been unlawful but returning the animal could still put the animal in distress. The initial removal may have been lawful, but there may be no continuing impediment to returning the animal.
[63] As noted by the Board in Steele, the case relied upon by the respondent on this issue, the question of whether the removal was lawful “is relevant to the final determination as to whether the animal should be returned” and is “evidence [the Board] may consider.” The Board in Steele went on to make an express finding that “the evidence does not show an unlawful removal” and concluded that this finding “does not assist the appellant in showing that the horse should be returned to her.” (Steele v. Chief Animal Welfare Inspector, 2021 ONACRB 10, paras. 137, 141). Based on Steele, the lawfulness of the removal and retention of an animal is relevant to the question of whether the animal ought to be returned to the owner.
[64] The parties compiled a voluminous record bearing on these questions, which were fully argued before the Board. A decision on those questions was relevant to the question of whether to return the animals. The Board had a complete record before it, had the benefit of full argument, and was as well placed as any Board could be to decide these issues in respect to which the parties needed an answer. In all these circumstances, it was unreasonable of the Board to conclude that it was “unnecessary” to decide these questions as part of its analysis of whether to return the animals.
[65] Was the purpose of removing the dogs to provide them with necessaries “to relieve the distress”? That is, in the context of this case, was it necessary to remove the dogs in order to keep them in conditions with tethers and dog shelters compliant with the Act and Regulation? As we have found above, this question did not open the door for considering the impact on the dogs of the minimum requirements of the Act and Regulation: such an inquiry would be a collateral attack on the Compliance Decision. Rather, the question for the Board, in this case, was whether the dogs would be kept in a manner consistent with the Compliance Decision if the dogs remained with the Applicants. The answer was, obviously, no. The Applicants were not in compliance and had not asked for additional time to bring themselves into compliance. It was apparent that the Applicants had not complied and would not comply with the Compliance Decision, and that the only way to relieve the dogs from distress was to remove them.
[66] In its analysis leading to its finding that it was “unnecessary” to decide this issue, the Board reviewed evidence bearing on the subjective motives of the Inspectors, and whether the “purpose” of their removal of the dogs was expressed to the Applicants in a manner consistent with the requirements of the Act.
[67] In this case, “necessaries to relieve its distress” means providing the dogs with tethers and shelters that comply with the minimum requirements of the Act and the Regulation. The Board reviewed the events of September 23, 2021 and was not satisfied that it was established affirmatively that the purpose of removal was to “relieve distress” – after having found the animals were in distress on that day. The events – as found by the Board – establish clearly that the removal was because of the non-compliance that was, by definition, and as found by the Board – the basis of the finding that the animals were in distress. There was no evidence of any oblique or other motive, and no evidence upon which the Board could have concluded that removal was not necessary to relieve the distress. In all of these circumstances, it was simply unreasonable for the Board to fail to find that the purpose of removal was to relieve distress.
[68] The same analysis applied to the question of whether the Respondent’s decision to retain the dogs was proper. If the dogs were returned, would they be returned to a situation of being in distress? For the same reason that it is obvious the dogs were in distress when they were seized, it is obvious that they would have been returned to a situation of distress, unless the Applicants complied with the Compliance Decision. Again, it was unreasonable of the Board to fail to make this finding, in all the circumstances of this case, given that this issue had been raised with the Board.
[69] Questions 3 and 4 were for the Board to answer at first instance. The Board should have done so. Three factors lead us to resolve these matters in this court rather than remitting them back to the Board:
a. The Board’s disposition (as reviewed below) rests upon the basic findings necessary to answer these questions. It is perfectly obvious what the Board’s answers must be to these questions, so no purpose would be served by sending the questions back to the Board.
b. The basis of the Board’s conclusion that it was “unnecessary” to answer these questions rests on an unreasonable finding by the Board that it should inquire into the subjective motives of the inspectors. There was no basis for such an inquiry in this case.
c. On the facts of this case, it is clear that the Applicants had not complied and would not comply with the Compliance Decision. Accordingly, the dogs were in distress when they were seized and would be placed in conditions causing distress if they were returned. Since the Board’s Enforcement Decision in December 2021, it has been open to the Applicants to comply with the Board’s orders, upon which the dogs would be returned to them.
Issue #5: Did the Board fail to consider evidence of the removal?
[70] The Applicants sought to challenge the way the sled dogs were removed from their properties on September 23, 2021. The Board found in its reasons on a motion decided on November 17, 2021, that it would not hear this evidence because it did not have jurisdiction to consider allegations of Inspector misconduct in these proceedings.
[71] The issue on the Enforcement Decision was an appeal from the decision of the Animal Welfare authorities to remove an animal for the purpose of providing it with necessaries to relieve its distress, with a view to a decision as to whether to return the animal: s. 31(1) of the Act.
[72] Part III of the Act provides a mechanism for complaining about Animal Welfare authorities’ conduct in the fulfillment of their duties. While in certain cases, depending on the facts, evidence of how the removal was carried out may be relevant to questions on appeal before the Board, in this case the Board did not unreasonably conclude that once the decision to remove the sled dogs was taken on September 23, 2021, the conduct of the authorities after that point was not relevant to the issues on the appeal and the findings required in the Enforcement Decision.
[73] We would not give effect to this ground of review.
Issue #6: Did the Board fail to apply the test under [s. 67](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html#sec67_smooth) of the [PAWS Act](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html)?
[74] The Applicants submit that the Board failed to apply the test found in s. 67 of the PAWS Act which reads:
In the event of a conflict between a provision of this Act or of a regulation made under this Act and of a municipal by-law pertaining to the welfare of or the prevention of cruelty to animals, the provision that affords the greater protection to animals shall prevail.
[75] The Applicants submit that the local by-laws for the Townships of Oro-Medonte (Moonstone) and Severn make provision for (shorter) tether lengths which provide greater protection to animals, and the Board ought to have followed those by-laws rather than the provisions in the Act.
[76] Those provisions are as follows:
Severn: Section 5.4 of By-law No. 2020-62, “Being a by-law for the licensing and regulating of dogs and kennels and for the control of dogs within the Township of Severn,” provides that “any person who has tethered an animal shall ensure that at all times the animal has unrestricted movement of a length not less than 2 metres.”
Oro-Medonte (Moonstone): Section 9.4 of By-law No. 2011-176, “A By-law to regulate and license Dog Kennels within the Township of Oro-Medonte,” requires that sled dog kennel operators abide by an industry guideline which recommends a tether length of 1.8 metres.
[77] While the provisions in the by-laws are different from those in the PAWS Act, it cannot be said that they conflict with one another. The by-laws do not require a different length from the Regulation under the PAWS Act: rather, in the case of the Township of Severn, the by-law requires “at least” a 2-metre length tether. A three metre-length-long tether, as required by the Regulation, does not offend the by-law.
[78] In the case of the Township of Oro-Medonte, sled dog kennel operators are required to abide by industry guidelines which recommend a tether length of 1.8 metres. A longer tether length does not conflict with this by-law.
[79] The Board considered the test in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241 at paras. 38-39, and applied it to the two by-laws and the Regulation. The Board concluded, reasonably, that the dual compliance test did not put the Applicants in a position where obeying one law meant disobeying the other, even though both sets of laws here deal with the same subject matter.
[80] The Board’s decision is reasonable and well articulated. We find no basis on which to interfere with its finding.
Issue #7: Was the Board’s decision reasonable to order that most of the dogs not be returned to the Applicants pending their compliance with various conditions, without the Board having decided whether the removal and retention of the dogs was done in accordance with the [Act](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html)?
[81] The Board found and ordered as follows at para. 64 of the Decision:
However, I find that ordering the return of the remainder of the dogs to the appellants at this time would be returning them to a situation of distress which is contrary not only to s.15, but also to the entire scheme of the Act. Therefore, pursuant to my powers under s.38(10) of the Act, the return of each of the dogs shall be subject to the appellants being in compliance with the following:
(i) For each dog tethered… the tether length must be a minimum of three metres….
(ii) Each dog’s house must be insulated….
(iii) [detailed directions respecting nine dog shelters at the Moonstone property].
[82] These findings were based on evidence that the Applicants were not in compliance on September 23, 2021 and were still not in compliance as of the hearing leading to the Enforcement Decision on December 31, 2021. This non-compliance justified retaining the dogs as of December 2021 because the dogs would be returned to a situation that would cause them distress. The Board did not state, in making this order, that it did so “for the purpose of providing the dogs with necessaries to relieve their distress.” In the circumstances of this case, it was no more necessary for the Board to say these things expressly than it was for the respondent to say these things expressly at the time of removal and at the time the retention decision was made – it was implicit and obvious in all the circumstances of the case, and there is no basis on which to argue that it was for some other purpose that the orders were made.
[83] This hearing should have been straightforward. Key issues had already been decided in June 2021. The Applicants had not complied with the minimum standards prescribed by the Act and Regulation. By September 23, 2021, it was clear that they would not comply. Removal was therefore justified to relieve the animals from the distress caused by the non-compliance. Many of the arguments raised by the Applicants were collateral attacks on the Compliance Decision – that the minimum standards of the Act and Regulation, as found by the Board in June – should not apply to their animals. Further, the respondent made it clear throughout that it was insisting on timely compliance. It opposed the extension in the compliance deadline ordered by the Board in June. That deadline expired on September 1, 2022, and the reconsideration decision was made September 3, 2022. As of September 23, 2022, the date of removal, the Applicants were still not in compliance.
[84] As of the time of the hearing before the Board, the Applicants had still not complied in respect of most of the animals. The Board reasonably exercised its discretion to refuse to return the animals to the Applicants in these circumstances and to order that return will be conditional on compliance by the Applicants. It was unreasonable of the Board to fail to decide whether the removal and retention of the dogs was in accordance with the Act, but since it is clear that the removal and retention were lawful, the Board’s disposition was not rendered unreasonable by its failure to reason properly about the removal and retention decisions of the respondent.
Disposition and Costs
[85] The applications for judicial review are dismissed, with costs to the Respondent in the agreed amount of $37,500 inclusive, payable within thirty days. There shall be no order for costs for or against the Board.
D.L. Corbett J.
Leiper J.
I agree:_______________________________
Stewart J.
Released: December 6, 2022
CITATION: Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632
FILE NOS.: 297/21 and 284/22
DATE: 20221206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Stewart and Leiper JJ.
BETWEEN:
Thomas Pryde, Adrienne Spottiswood and Georgeina Pierce
Applicants
- and -
Chief Animal Welfare Inspector
Respondent
REASONS FOR DECISION
Released: December 6, 2022
[^1]: At the time of the Board’s decisions, the three-metre tether requirement was set out in s. 4(4) of the Regulation. The Regulation was amended on April 19, 2022 and again on July 1, 2022. The three-metre tether requirement is now found in s. 4.3(1)(d) of the Regulation.