CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 3885
DIVISIONAL COURT FILE NOS.: 466/22 and 535/22 DATE: 20230628
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Coats & Leiper JJ.
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE
Applicants
– and –
CHIEF ANIMAL WELFARE INSPECTOR and ANIMAL CARE REVIEW BOARD
Respondents
Eric Gillespie and John May, for the Applicants
Michael Sims and Michele Valentini, for the Respondent, Chief Animal Welfare Inspector
Olivia Filetti, for the Respondent, Animal Care Review Board
HEARD at Toronto: June 28, 2023
SACHS J. (Orally)
[1] Windrift Adventures Inc. (“Windrift”) has raised a preliminary objection based on a concern about reasonable apprehension of bias on the part of Leiper J. The basis for this concern is Leiper J.’s involvement in prior proceedings concerning the same parties. More particularly, Leiper J. was a member of the panel that dismissed one of Windrift’s applications for judicial review on December 6, 2022.
[2] Windrift concedes that this involvement alone would not meet the threshold necessary for disqualification on the basis of reasonable apprehension of bias. However, according to Windrift, that threshold is now met because Leiper J. refused to grant Windrift a stay on January 25, 2023 regarding the enforcement of the account at issue in this proceeding.
[3] Late last week, the Court of Appeal did stay the enforcement of that account pending a hearing for leave to appeal in that court. There is no dispute about the fact that there is a strong presumption of judicial impartiality and that the party who seeks to rebut this presumption bears a heavy burden. As set out in Committee for Justice and Liberty v. Canada (National Energy Board) 1976 2 SCC, [1978] 1 S.C.R. 369 at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons applying themselves to the question and obtaining the required information …[T]hat test is “what would an informed person reviewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly”.
[4] In J.B. v. Ontario (Child and Youth Services) 2020 ONCA 199 at para. 9, the Ontario Court of Appeal found that “a reasonable observer informed of all the facts would not conclude that a judge would appear to be biased only because of her involvement in another case affecting the same parties”.
[5] Essentially, Windrift is submitting that while this may be true if the judge in question has been involved in one decision affecting the same party, the calculous changes when that involvement extends to two decisions and the effect of one has been partially reversed by the Court of Appeal. In assessing this argument, it is important to note that there is no allegation of any conduct on the part of Leiper J. that would raise any reasonable basis for any concern about bias in her conduct of the other proceedings. It is also important to note that the proceedings at issue in this court do not involve making any findings of credibility. There are legal proceedings, involving legal arguments and determinations based on that law.
[6] It is also important to note that Windrift has brought a number of proceedings in the Divisional Court in Toronto. The number of judges who are assigned to the Divisional Court is small. Therefore, it is not surprising that one judge could find themselves presiding over more than one matter involving Windrift. Taking into account all of these factors, we find that Windrift has not met its heavy onus of rebutting the strong presumption of judicial impartiality.
[7] Therefore, we are going to proceed to hear the matters today.
Sachs J.
I agree ___________________________ Coats J.
I agree ___________________________ Leiper J.
Date of Oral Reasons for Judgment: June 28, 2023
Date of Written Release: July 4, 2023
CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 3885
DIVISIONAL COURT FILE NOS.: 466/22 and 535/22 DATE: 20230628
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Coats and Leiper JJ.
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE
Applicants
– and –
CHIEF ANIMAL WELFARE INSPECTOR and ANIMAL CARE REVIEW BOARD
Respondents
ORAL REASONS FOR JUDGMENT
SACHS J. (Orally)
Date of Oral Reasons for Judgment: June 28, 2023
Date of Written Release: July 4, 2023