Court File and Parties
CITATION: Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONSC 3164
COURT FILE NO.: 295/23
DATE: 20230526
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGEINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE
Applicants/Moving Parties
– and –
CHIEF ANIMAL WELFARE INSPECTOR
Respondent
COUNSEL:
Eric K. Gillespie and John May, for the Moving Parties
Danielle Meuleman and Kateryna Toderishena, for the Respondent
Valerie Crystal for the Animal Care Review Board
HEARD: May 24, 2023
REASONS FOR DECISION
SCHABAS J.
Overview
[1] On May 24, 2023 I heard a motion to stay a decision of the Animal Care Review Board (the “Board”) dated May 5, 2023 (the “Decision”), confirming a statement of account issued by Animal Welfare Services (“AWS”) on February 10, 2023, pending the determination of the application for judicial review of the Decision: Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONACRB 40. In the absence of a stay, the applicants are required to pay $1,524,640.00, failing which approximately 200 dogs in the custody of AWS will be forfeited to the Crown.
[2] At the conclusion of the hearing, I issued a stay until July 12, 2023, the date I fixed for the hearing of the application. I indicated that my reasons would follow, which I set out below.
Background
[3] This application for judicial review is one of many proceedings before the courts regarding the applicants’ dogs, which they own as part of a recreational dog sledding business.
[4] Put briefly, following inspections and compliance orders in 2021 under the Provincial Animal Welfare Services Act, 2019, S.O. 2019 c. 13 (the “PAWS Act”), AWS removed approximately 230 dogs from the applicants’ properties. The actions of AWS were appealed to the Board which confirmed the orders in decisions dated June 23, 2021 and December 31, 2021: Pryde, Spottiswood and Pierce v Chief Animal Welfare Inspector, 2021 ONACRB 12; Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 25. The dogs remained in the care of AWS, and most of them continue to be in the care of AWS today.[^1]
[5] Applications for judicial review of the Board’s decisions were dismissed by this Court on December 6, 2022: Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632. A motion for leave to appeal to the Court of Appeal has been brought, all materials have been filed, but no decision has been received yet from that Court.
[6] Meanwhile, in January 2022, pursuant to s. 35 of the PAWS Act, AWS issued a statement of account requiring the applicants to pay AWS costs for the care of the animals (“SOA #1). That statement of account was appealed to the Board which, in lengthy reasons released on August 18, 2022, reduced the account from approximately $1 million to approximately $500,000: Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2022 ONACRB 24. Both sides have sought judicial review of that decision which is to be heard by this Court on June 28, 2023.
[7] On September 15, 2022, the Board’s decision in SOA #1 was stayed by Matheson J. pending the determination of the applications for judicial review of the compliance and removal orders: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2022 ONSC 5282.
[8] Following the release of this Court’s decision dismissing the applications for judicial review on December 6, 2022, the applicants sought a further stay of SOA #1 pending the motion for leave to appeal to the Court of Appeal. That motion was dismissed by Leiper J. on January 31, 2023: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 761. However, the applicants then sought to have the decision of Leiper J. set aside by a panel of this Court pursuant to s. 21(5) of the Courts of Justice Act. That motion was heard on March 16, 2023, and a decision was reserved. On March 21, 2023 the panel continued the stay of SOA #1 pending its decision, which has not yet been released: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 1802
[9] A second statement of account, which is the subject matter of this proceeding, was issued by AWS on February 10, 2023 (“SOA #2”). The amount sought is approximately $1.5 million. An appeal of that account was dismissed by the Board on May 5, 2023: Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONACRB 40. The applicants now seek judicial review of that decision and a stay pending that judicial review which is now set to be heard on July 12, 2023.
The test for granting a stay
[10] To obtain a stay pending appeal, the applicants must satisfy the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, that: (1) there is a serious issue to be tried; (2) the applicants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting the stay.
[11] It is well-accepted that the factors are not rigid “watertight compartments” or a series of independent hurdles, but are “interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.” Strength in meeting one part of the test “may compensate for the weakness of another”: Louis v. Poitras, 2020 ONCA 815 at para. 16.
Application of the test
[12] In this case the respondent concedes that the application meets the first two prongs of the test. There is a serious issue to be tried and, as the applicants are not able to pay the account, they will suffer irreparable harm if a stay is not granted. The applicants will lose their unique herd of dogs, bred and trained by them, and this will also destroy their business.
[13] The motion, then, turns on consideration of the balance of convenience.
[14] In my view, the balance of convenience favours the granting of a stay. In the absence of a stay, the dogs will be forfeited as the applicants are unable to pay the amount in SOA #2. The herd of dogs constitutes a unique asset developed over many years.
[15] Additionally, the situation is different from what was before Matheson J. in 2022 and Leiper J. in early 2023. The merits of the compliance and removal orders is pending before the Court of Appeal. A panel of this Court has stayed the requirement to pay SOA #1 pending its decision on the reconsideration of Justice Leiper’s order. The review of SOA #1 is set to be heard in one month.
[16] Should a stay of SOA #2 not be granted, all of the other proceedings will effectively be rendered moot. Thus, refusing to stay SOA #2 would, put bluntly, make it “the tail wagging the dog”, and deprive the applicants of a considered decision under reserve regarding a stay of SOA #1, and deprive the applicants of legal recourses they are still pursuing on the substantive issues arising from the compliance and removal orders.
[17] I recognize that AWS continues to incur costs of approximately $9,000 per day in caring for the dogs, expenses which are unlikely to ever be recovered. This is a considerable cost to the public and was a strong factor favouring lifting the stay on SOA #1 when that matter came before Justice Leiper; however, it was also before the panel which then continued the stay on March 21, 2023. AWS advises that the total costs incurred by it handling these animals since 2021 is in the range of $5,000,000, of which only a portion may be recoverable. While not minimizing the burden on the public purse in obliging AWS to continue to incur expenses, the additional expense of $9,000 per day for up to approximately seven more weeks must be seen in the context of much greater expenses that the public is bearing as a result of the actions of AWS and the underlying litigation.
[18] Weighing the competing inconvenience to each side, and having regard to the importance of doing justice between the parties, the balance favours the applicants.
Conclusion
[19] A stay of SOA #2 until July 12, 2023 shall be granted. Costs of the motion are reserved to the panel hearing the application on July 12, 2023.
Paul B. Schabas J.
Released: May 26, 2023
Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONSC 3164
COURT FILE NO.: 295/23
DATE: 20230526
ONTARIO
SUPERIOR COURT OF JUSTICE
WINDRIFT ADVENTURES INC. et al.
Applicants / Moving Parties
– and –
CHIEF ANIMAL WELFARE INSPECTOR
Respondent
REASONS FOR DECISION
Schabas J.
Released: May 26, 2023
[^1]: Several dogs have died or been euthanized, and a small number have been returned to the applicants. Most of the dogs seized remain with AWS.