CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501

DIVISIONAL COURT FILE NO. 535/22 and 466/22

DATE: 2023/08/08

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Coats and Leiper JJ.

BETWEEN:

COURT FILE NO. 535/22

WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE and CODY PRYDE

Applicants

– and –

CHIEF ANIMAL WELFARE INSPECTOR

Respondent

AND

BETWEEN:

COURT FILE NO. 466/22

CHIEF ANIMAL WELFARE INSPECTOR

Applicant

-and-

WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE and CODY PRYDE

Respondents

COUNSEL:

Eric K. Gillespie and John W. May, for the Applicants, Windrift Adventures Inc. et al

Michael J. Sims and Michele Valentini, for the Respondent, Chief Animal Welfare Inspector

Olivia Filetti, for the Animal Care Review Board

Michael J. Sims and Michele Valentini, for the Respondent, Chief Animal Welfare Inspector

Olivia Filetti, for the Animal Care Review Board

Eric K. Gillespie and John W. May, for the Applicants, Windrift Adventures Inc. et al

HEARD at Toronto: June 28, 2023

Sachs and Coats JJ.

Overview:

[1] There are two applications for judicial review brought in relation to a decision of the Animal Care Review Board (the “Board”) dated August 18, 2022 (the “Decision”). The Decision arises from an appeal brought by Windrift Adventures Inc., a dog sledding and horse-riding business and the owners of dogs that were living at the two properties where Windrift carried on its business. In these reasons Windrift and the owners will be referred to collectively as “Windrift”.

[2] In September of 2021 the Chief Animal Welfare Inspector (“CAWI”) removed all the dogs from the Windrift properties and decided to keep them in her care. CAWI then issued a Statement of Account dated January 18, 2022 to Windrift seeking payment incurred for the monies spent by CAWI to care for Windrift’s 229 dogs. The account was in the amount of $1,114,720.27 and included charges incurred for transporting the dogs to boarding facilities, boarding charges from those facilities and veterinary costs incurred while they were in care.

[3] Under the provisions of the Provincial Animal Welfare Services Act, 2019, S.O. 2019 c. 13 (the “Act”), unless appealed, Windrift was obliged to pay the amount due within 10 days. Windrift appealed and the Board held twenty days of hearings during February to April of 2022. In the Decision, the Board varied the Statement of Account such that no amount was allowed for transportation or veterinary costs and the boarding costs were considerably reduced. The result of the Board’s variation is that Windrift is obligated to pay CAWI $506,760.00.

[4] In their application for judicial review, Windrift asserts that the Board erred in allowing any amount for boarding costs and erred in failing to find that Windrift did not have the financial ability to pay the account in question. In support of their application Windrift sought to file fresh evidence.

[5] In her application for judicial review, the CAWI submits that the Board erred when it failed to allow the full amount claimed for boarding and erred when it disallowed the amounts charged for transportation and veterinary bills. She also argues that the Board erred in imposing an initial evidentiary burden on the CAWI to demonstrate that the costs incurred were reasonable.

[6] Since the issues raised in both applications are intertwined, these reasons will focus on those issues as opposed to dealing with each application separately.

[7] For the reasons that follow, we would dismiss both applications for review.

Background

[8] Windrift operates its commercial dog sledding and horse-riding business at two Ontario properties—one is located in the Township of Oro-Medonte and the other is in the Township of Severn. In February of 2021, Animal Welfare Services (“AWS”) conducted an inspection of Windrift’s properties to determine compliance with standards of care for animals who are kept for a commercial purpose.

[9] On February 25, 2021, AWS made several compliance orders under the Act related to the length of the dogs’ tethers and the size of the dog houses. These orders outlined certain measures required to be taken for the approximately 230 sled dogs on the Windrift properties.

[10] Windrift appealed the compliance orders to the Board. The Board confirmed the orders, with the exception of the order related to the size of the shelters, which it varied. In denying Windrift’s appeal the Board found that the dogs were in distress within the meaning of the Act.

[11] Both Windrift and the CAWI sought reconsideration of certain aspects of the Board’s determinations. Both requests were refused.

[12] On September 23, 2021, the AWS conducted an inspection of Windrift’s properties to see if they had complied with the compliance orders. When the inspectors determined that Windrift had done nothing to comply with the orders, they decided to remove the dogs from both properties for the purpose of providing them with necessaries to relieve their distress. Pursuant to s. 2 of the Act, AWS inspectors may, at any time, provide necessaries to an animal to relieve it from distress.

[13] The word “distress” is defined under the Act as:

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.

[14] The word “necessaries” is not defined under the Act.

[15] On September 30, 2021 the CAWI decided to keep the dogs in her care for the purpose of continuing to provide them with necessaries in order to relieve their distress.

[16] Windrift appealed both the decision to remove the dogs and the decision to keep the dogs. After a lengthy hearing, the Board upheld both decisions. It ordered the return of several puppies that it found were not in distress and ordered that the remaining dogs should be returned once Windrift had lengthened the tethers and fixed the doghouses. To date Windrift has done neither and thus the dogs remain in the CAWI’s care.

[17] Windrift brought judicial review applications in relation to the Board’s decisions. This Court dismissed those applications.

[18] If an inspector has provided an animal with necessaries to relieve its distress, or if the CAWI has taken an animal into its care, s. 31(6) of the Act authorizes the CAWI to “from time to time”, serve on the owner a statement of account respecting the cost of necessaries.

[19] On January 18, 2022, the CAWI issued a Statement of Account to Windrift, in the amount of $1,114,720.27, for the cost of necessaries provided to the dogs while in her care during the period from September 2021 to January 2022. The “necessaries” included in the Statement of Account related to costs incurred for transporting the dogs to boarding facilities, boarding costs and veterinary services provided to the dogs while in care.

[20] Under s. 35 of the Act, an owner who is served with a statement of account is liable for the specified amount and must pay it within ten business days unless they appeal the statement of account to the Board. If the owner fails to pay or appeal within the timeline, the animal is forfeited to the Crown.

[21] On January 24, 2022, the Statement of Account was appealed to the Board. After holding a hearing, s. 38(9) of the Act empowers the Board to “confirm, revoke or vary a statement of account.”

[22] On August 18, 2022, after a 20-day hearing held during the period from February 7 to April 8, 2022, the Board partially confirmed the Statement of Account and varied the amount owing to $505,760.00. The Board disallowed all of the costs associated with transportation and veterinary services and substantially reduced the boarding costs.

Standard of Review

[23] Windrift argues that since they are asserting that the Board made errors of law in its decision, those errors should be reviewed on a standard of correctness. This argument has no merit. The standard of review applicable to the Board’s decision is the presumptive and deferential standard of reasonableness.

[24] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Supreme Court of Canada held that the presumption of reasonableness will be rebutted when the intention of the legislature is clear or where the rule of law requires the standard of correctness to be applied. The Act does not provide for a statutory appeal and the issues raised on these applications cannot be characterized as any of the exceptional categories of questions identified in Vavilov as requiring a correctness review, namely, constitutional questions, general questions of law of central importance to the legal system as a whole, or questions dealing with the jurisdictional boundaries between two administrative bodies.

[25] Therefore, the applicable standard of review is reasonableness.

Issues Raised

This application raises the following issues:

(a) The Act contains a provision allowing a party to ask the Board to reconsider its decision. The CAWI made a reconsideration application (which was dismissed). Windrift did not. This raises the question of whether or not Windrift’s application should be dismissed as premature.

(b) Should Windrift be allowed to file fresh evidence on its application for judicial review?

(c) Was the Board’s finding as to CAWI’s initial evidentiary burden reasonable?

(d) Was the Board’s decision in relation to boarding costs reasonable?

(e) Was the Board’s decision in relation to transportation costs reasonable?

(f) Was the Board’s decision in relation to veterinary costs reasonable?

(g) Was the Board’s decision not to find that the account should be varied because of Windrift’s alleged inability to pay reasonable?

Analysis

Should Windrift’s application for judicial review be dismissed as premature?

[26] Windrift failed to exhaust their remedies before the Board as they did not seek reconsideration of the Decision. Parties may request a reconsideration under Rule 18.2 of the Board’s Common Rules of Practice & Procedure.

[27] In Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632 (Div. Ct.), a related case to the case before the Court, a similar issue was raised wherein the applicants in that case had not sought a reconsideration of one of the two decisions before the court for judicial review. Paras. 10-16 of Pryde provide:

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.

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.

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.

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.

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.

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.

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.

[28] As set out in Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), at para. 38, the court has the discretion to decline to hear an application where the applicant has not exhausted alternative remedies. The Court in Jackson referenced, in the same paragraph, the Ontario Court of Appeal’s statement in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, that this “principle respects administrative decision-making and a legislative intent that a party exhaust internal review processes before asking a court to intervene.”

[29] As in Pryde, the facts in this case are different than in Jackson. This is a multiple issue case. The record is voluminous. The CAWI is also seeking judicial review. The CAWI did request a reconsideration. The issues in the CAWI’s judicial review are significantly interwoven with the issues in Windrift’s judicial review. The two judicial reviews cannot be separated. To require Windrift to seek reconsideration would delay the CAWI’s judicial review. Even if the two applications could be separated, to not proceed with both applications at the same time would fragment the proceedings, possibly lead to parallel proceedings, and possibly inconsistent results.

[30] In these circumstances, the court is exercising its discretion to permit Windrift’s application to proceed even though it has not exhausted internal review processes by seeking a reconsideration. Given the interwoven nature of the two applications and the comprehensive record filed, to delay the applications would not be in the interests of the parties or of the administration of justice.

[31] The decision to proceed with Windrift’s application in these circumstances, is very fact specific. It should not be taken to deviate from the general principle that a party should exhaust internal review processes before coming to the court. It should also not be taken by Windrift as permission to continue its practice of not applying for reconsideration before commencing a judicial review application.

Should Windrift be allowed to file fresh evidence?

[32] Approximately one week prior to the hearing of these applications Windrift filed a motion seeking leave to adduce five volumes of fresh evidence in the form of 12 affidavits. Three additional affidavits are attached as exhibits. Most of the affidavits were sworn or affirmed in 2023, but they contain a variety of disparate information, much of which was created for other legal proceedings involving the same parties. The material includes evidence about these other proceedings that are not the subject of review before us; evidence from an unrelated case involving the CAWI; evidence that was excluded as irrelevant by the Divisional Court in a related judicial review application, evidence about the health condition of 15 dogs that were returned to Windrift on May 30, 2023 and a subsequent request for the return of additional dogs; and evidence about the health of the dogs after they were removed by the CAWI that was available at the time of the Board hearing. According to Windrift, most of the evidence was not available to them at the time of the hearing and the evidence is relevant to the issue of whether they should be required to pay for boarding costs when the evidence at issue demonstrates that that there is reason to question the care their dogs received while under the control of the CAWI.

[33] Our role on these applications is to review the findings of fact made by the tribunal below, not to decide the matter anew. Accordingly, the general rule is that evidence that was not in the record before the tribunal below is inadmissible: Bernard v. Canada (Revenue Canada), 2015 FCA 263.

[34] There are three recognized exceptions to this general rule. The first is where the evidence seeks to provide general background information. However, this information cannot consist of evidence that goes to the merits of the matter. The second is where the affidavit is designed to tell the reviewing court that there was a complete absence of evidence before the tribunal below on a certain subject-matter. As put in Bernard at para. 24: “This can be useful where the party alleges that an administrative decision is unreasonable because it rests upon a key finding of fact unsupported by any evidence at all.” The third exception concerns evidence that goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker: see: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R.(2d) 513 (C.A.)).

[35] None of the evidence at issue falls within the Keeprite exceptions. The evidence does not contain necessary background information, nor does it speak to concerns about procedural fairness, improper purpose or fraud. While Windrift argues that there was a complete absence of evidence on the issue of the care provided to the dogs while boarding, this is not the case. Our reasons for this finding are discussed in more detail below.

[36] Windrift relies on the Ontario Court of Appeal’s decision in Sengmueller v. Sengmueller, 1994 8711 (Ont. C.A.) to support their argument that the fresh evidence at issue should be admitted. Sengmueller is a family law case where the Court of Appeal admitted fresh evidence on appeal that did not exist at the time of trial and was necessary to dispose fairly of the issues on the appeal.

[37] Sengmueller was an appeal from a trial court decision. In that case Parliament had entrusted the decision at issue to the courts. These applications are judicial review applications where we are being asked to overturn a decision that Parliament has entrusted to an administrative decision maker. Respecting this demarcation requires the courts to adopt rules designed to respect Parliament’s decision to entrust all findings on the merits to a decision maker other than the courts. Thus, the rules regarding the admission of fresh evidence on judicial reviews are different than the rules regarding the admission of fresh evidence on appeals from court decisions. As emphasized in Bernard, courts on judicial reviews must avoid disguised invitations to become a forum for fact-finding on the merits.

[38] In our view, Windrift’s fresh evidence motion is an attempt to file voluminous affidavit evidence designed to challenge the Board’s factual findings based on evidence that was not before it at the time of the decision. In essence, it is an invitation to have this Court “re-try” the merits of the decision de novo, on a new record. This is precisely the type of fresh evidence application that courts performing a judicial review function must discourage.

[39] For these reasons, we decline to admit the fresh evidence.

Was the Board’s finding as to the CAWI’s initial evidentiary burden reasonable?

[40] The CAWI’s position is that the Board acted unreasonably by placing an initial evidentiary burden of proof on the CAWI in Windrift’s appeal of the Statement of Account. Windrift’s position is that the Board acted reasonably. The Board took no position on this issue. The allocation of onus, the CAWI claims, is inconsistent with the purpose of the Act and undermines the animal protection and accountability objectives of the scheme.

[41] In the appeal, the Board found that the Chief Inspector had an initial evidentiary burden to prove, on a balance of probabilities, that the charges reflected in the Statement of Account reflect the actual costs of necessaries provided and that the care provided was reasonable. Once the Chief Inspector meets this initial evidentiary burden, the Board determined the onus would shift to Windrift to show, on a balance of probabilities, that the accounts should be varied or revoked.

[42] Additionally, the Board found, that in regard to the veterinary costs incurred while the dogs were in the CAWI’s care, the costs are reasonable only if the CAWI proved, on a balance of probabilities, that the amounts did not arise as a result of the care, or lack thereof, provided by the CAWI or any of the CAWI’s agents.

[43] We find that the Board's placing of an initial evidentiary burden on the CAWI is reasonable. We also find that the Board’s placement of an additional onus on the Chief Inspector regarding a portion of the veterinary bills (those incurred post triage) was reasonable in the circumstances of this case.

[44] As already noted, the Act provides that an animal owner served with a statement of account may appeal to the Board under s. 38 (2) of the Act. After a hearing, s. 38 (9) empowers the Board to confirm, revoke or modify a statement of account. Section 38 (6) and (7) of the Act require that all appeals be dealt with expeditiously. The hearings are conducted in accordance with its Rules of Procedure, the Act and the Statutory Powers Procedure Act, R.S.O 1990, c. S.22, (the “SPPA”). After holding a hearing, the Board has a broad discretion to confirm, revoke or modify the statement of account issued by the CAWI. The Act and the Regulations made under the Act do not set out how this discretion is to be exercised. There are no mandatory tests, procedures or factors that the Board must apply or consider in exercising its adjudicative function. Given the broad discretion and the absence of mandatory tests, procedures, or factors, the Board’s determination that the CAWI had the initial evidentiary burden is reasonable.

[45] Further, section 39 (1) of the Act allows the Board to “make rules governing the practice and procedure before it.” This includes the power to manage its hearings and control its own process. This is consistent with sections 25.0.1 and 25.1 of the SPPA. Relevant to these applications, section 39 (2) of the Act specifies that the Board may (a) provide for and require ... practices or procedures that are … alternatives to traditional adjudicative or adversarial procedures and (b)(ii) determine the order in which issues and evidence in proceeding will be presented. Thus, the Board’s determinations as to the CAWI’s initial onus was a reasonable exercise of the discretion it has to control its own process.

[46] The Board’s reasons, at paras. 10-22 of the Decision and paras. 21-30 of the Reconsideration Decision, for determining that the Chief Inspector had the initial evidentiary burden are rational, logical and cogent. The Board’s discretionary decision regarding process comports with the governing legislative scheme. The Board specifically addressed in the Decision and Reconsideration Decision that the Statement of Account was only three pages in length, and no details were provided as to what the amounts were for aside from very broad categories. The Board also considered the disclosure process and that the CAWI is in exclusive possession of all relevant documents related to the Statement of Account. The Board referred in its Decision to the CAWI calling witnesses to testify on the Chief Inspector’s behalf, who identified certain amounts on the Statement of Account that should not have been included. In closing submissions, the CAWI stated that at least one invoice included in the total transportation costs had neither been addressed at the hearing nor included in the Book of Documents. The Board’s placing the initial evidentiary burden on the CAWI in these circumstances is reasonable.

[47] The Board reasonably explains how “he who asserts must prove”, is not applicable in the appeal to the extent that the CAWI bears the initial evidentiary burden. The Board explained that in these circumstances if the CAWI did not have the initial evidentiary burden, Windrift could end up liable for unsubstantiated amounts simply because the CAWI had included them as the Statement of Account. It was reasonable and logical, on this basis, for the Board to conclude that the knowledge of the Statement of Account lies within the CAWI: see Pleet v. Canadian Northern Quebec R Co. (1921), 1921 518 (ON CA), 64 D.L.R. 316, p. 319 (Ont. C.A.)).

[48] It was reasonable for the Board to rely on the Board’s decision in Freeman v. Chief Animal Welfare Inspector, 2022 ONACRB 12, which determined that the Chief Inspector is required to meet an initial evidentiary burden.

[49] The CAWI argued that since it was Windrift’s appeal they should bear the entire onus as the appealing party. We do not find the Board’s approach unreasonable. This was not an appeal in the ordinary sense. The animal owner has the right to appeal the Statement of Account, but the appeal takes the form of a hearing where evidence is heard and findings of fact are made. It is not an appeal argued on an appeal record. Further, as set out above, the Board has broad discretion to control its own process and procedure. The Board provides a rational basis for not relying on para. 44 of Vavilov in its Decision and in the Reconsideration Decision. This paragraph in Vavilov deals with the standard of review that a court applies when reviewing an administrative decision, and not with which party bears the initial evidentiary burden at an administrative hearing.

[50] The CAWI sought to rely on the Board’s decision in Shekandina v. Chief Animal Welfare Inspector, 2021 ONACRB 15. The Board in its Reconsideration Decision explained that it is not bound by the Board’s previous decisions. There is nothing unreasonable about this finding.

[51] Reading the Board’s decision as a whole, the Board did not place an onus on the Chief Inspector to disprove Windrift’s assertations. The Board simply stated that the CAWI has an initial evidentiary burden, to prove on a balance of probabilities, that the charges reflected on the Statement of Account reflect actual cost of necessities provided and that these costs are reasonable. The Statement of Account is from the Chief Inspector. The invoices were sent to the Chief Inspector for payment. Given this and given the other factors referred to above, the Board’s decision on this issue was reasonable.

[52] It was also reasonable for the Board to find in regard to the veterinary costs incurred after the initial veterinarian triage, that the CAWI must prove, on a balance of probabilities, that such amounts did not arise as a result of the care or lack thereof, provided by the CAWI or any of its agents. The Board’s reasons are logical and rational. The Board’s decision was in part based on the fact that Windrift had been granted an Order to allow a veterinarian, accompanied by a veterinarian technician, hired by Windrift to conduct an inspection of each of the living dogs that were removed, with such inspection to take place where the dogs were being housed. No inspections ever occurred. Windrift was denied access to the properties to inspect the dogs or their living conditions.

[53] As the Board points out, without the inspection, Windrift was at a considerable disadvantage when it came to discharging their onus that the veterinary bills be varied. To address this inequity the Board imposed an additional onus on the CAWI. In the circumstances of this case, this was a reasonable decision.

[54] In making its determination to impose an additional onus on the CAWI, the Board also noted that none of the 233 dogs were removed from Windrift due to any health issues. Regional Supervisor Munoz testified that the Animal Welfare Society did not identify “anything significant” from a health perspective regarding the dogs on the day they were removed. Further, some dogs were returned to Windrift and Regional Supervisor Munoz testified that when they were returned, there were concerns about their health. Some of the dogs suffered from Giardia. The Board had evidence before it that there was a Giardia outbreak at the kennel, two dogs were injured at a kennel and there was a streptococcus zooepidemicus kennel outbreak as well. One dog returned to Windrift was identified as “underweight” by Regional Supervisor Munoz. At least one kennel was not providing adequate care for the dogs. Eleven dogs had either been euthanized or died while in the custody of the CAWI.

[55] In all of these circumstances, the Board’s imposition of an additional onus is reasonable. Proof of causation does not undermine the accountability objective of the Act in the specific circumstances of this case.

Was the Board’s finding as to boarding costs reasonable?

The Board’s Decision on Boarding Costs

[56] Windrift was initially served with an account for $969,296.00. That amount was subsequently varied by the CAWI to $881,776.59. The Board varied the amount owing to $505,760.00.

[57] In its decision, the Board reviewed the daily amounts charged by the various boarding facilities and noted that they varied from $20.00 per dog to $55.00 per day. There was evidence before the Board that some of the rates charged were more than the posted public rate for the kennels in question. The CAWI led no evidence as to what the daily amount invoiced for boarding actually included. The Board noted that some kennels charged additional amounts for such items as grooming, food, collars, blankets, toys and homes. There was no explanation as to why some kennels charged extra for these amounts and others did not. The Board found that it “is incumbent upon the CAWI to act responsibly when approving costs and invoices, and not simply provide free range for service providers, such as kennels, to charge whatever fee they see fit for services.” In doing so it noted that any fees that are not collected from owners are ultimately payable by the taxpayers of Ontario.

[58] The Board found that the CAWI had not acted reasonably with respect to boarding fees and specified a number of steps they should have taken that they did not. Given this finding, the Board concluded that kennel fees would have had to be incurred for the dogs and that $20.00 a day in boarding fees was a reasonable amount for each dog. The Board then calculated how much it would cost to board 218 dogs (the 229 dogs listed in the Statement of Account less the 11 dogs that had been euthanized or died as of the end of the hearing) for 3 months and 24 days at a rate of $20.00 per day. This calculation yielded an amount of $505,760.00.

Windrift’s position re the Board’s decision on boarding fees

[59] Windrift submits that the Board unreasonably awarded costs in the amount of $505,760 for boarding as there was no evidence to support the award. According to Windrift, the only evidence tendered about boarding costs was Senior Regional Supervisor Sara Munoz. She gave no evidence that she had ever been to any of the boarding facilities at issue and she testified that she had no knowledge of when, or even if, any of them had ever been inspected. Windrift asserts that the accounts she presented simply showed a number of dogs multiplied by a daily rate. As put by Windrift, the CAWI did not call a single witness from any boarding facility to speak to its boarding costs or to the quality of care in those facilities. This is in stark contrast to the eighteen veterinarians who were called in relation to the claim for veterinary costs.

[60] Windrift also asserts that the Regional Supervisor’s evidence was unreliable. Several times in its decision the Board did not accept her evidence and commented adversely on her concern for Windrift’s dogs during their removal.

[61] Finally, Windrift submitted that Regional Supervisor Munoz’s evidence was “complete hearsay”. According to Windrift, since hers was the only evidence on the point and the point is significant, fairness required the Board to consider the “hearsay” nature of that evidence. The Board’s failure to do so both breached procedural fairness and rendered its decision unreasonable.

[62] The Board also found that AWS was not exempt from meeting the prescribed standards of care when the animals are removed and that if these standards are not met, any charges related to that care may be denied. This is the basis on which the Board denied the charges for transportation. According to Windrift, the Board had no evidence that the required standards of care were ever met by the boarding facilities in question. There was certainly no direct evidence on this issue and there was direct evidence that the dogs had not received proper care.

The CAWI’s position re the Board’s decision on boarding fees

[63] The CAWI challenges the Board’s decision with respect to boarding costs because of its position that the Board unreasonably placed an initial evidentiary onus on the CAWI to justify those costs and show that they were reasonable. This argument has already been dealt with and dismissed.

[64] If the CAWI is also challenging the Board’s conclusion that the CAWI had a duty to act responsibly when incurring costs for necessaries such as boarding fees and that they did not do so in the case at bar, we find that that conclusion is a reasonable one, given the evidence before the Board as to the hugely disparate amounts charged by different facilities and the lack of any explanation as to why these amounts were so different. As this case demonstrates, the amounts incurred for boarding can result in a large burden for owners, one they may not be able to meet. If they do not pay the amounts, the burden falls on the taxpayers of Ontario. The only person who is in a position to take steps to control those costs without sacrificing the welfare of the animals in question is the CAWI.

Analysis

[65] Windrift’s main argument with respect to boarding fees is that the Board awarded over half a million dollars worth of boarding fees without having any evidence that the care provided at the kennels met the required standard of care.

[66] It is not correct to say that the Board had no evidence as to the standard of care that the dogs received at the kennels in question. First, as the Board noted, Regional Supervisor Munoz testified as to the care that the dogs received at the kennels in question, “including grooming, food, potable water, indoor and outdoor housing, access to outdoors to relieve themselves, exercise, socialization, enrichment, run time, and play time.” Second, her evidence was supported by the information contained in the invoices produced by the CAWI, invoices that showed charges for these items. Finally, the invoices and the testimony from the veterinarians spoke to how if the dogs required medical attention, they received that medical attention.

[67] Windrift submits that this evidence is hearsay evidence, not direct evidence, and, therefore, accepting this evidence (which Windrift concedes is admissible under s. 15(1) of the SPPA), can constitute a denial of natural justice. In making this argument Windrift relies on this Court’s decision in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083.

[68] In Manikam a tenant was evicted because of an allegation that she threw her rabbit off her balcony, causing its death. The tenant alleged that the rabbit jumped. As noted in the decision, “[t]he only evidence available to support the alleged illegal act was a police officer who read the notes of another police officer after the events had occurred (the ‘on-scene officer’). The on-scene officer’s notes contained a signed statement from the Tenant’s then boyfriend. Neither police officer witnessed the events. The Tenant’s ex-boyfriend was not called as a witness to the Review Hearing, thus depriving her of the opportunity to cross-examine the only witness against her”: at paras. 3-4. The Divisional Court found that while the evidence at issue was admissible, doing so in that case constituted a denial of natural justice.

[69] The facts in this case are entirely different. Most importantly, Regional Supervisor’s evidence about the care received in the kennels was, as already noted, supported by extensive invoices from the kennels. These invoices are in the nature of business records and, as such, would be admissible as an exception to the hearsay rule, without reliance on s. 15(1) of the SPPA. If Windrift wished to argue that accepting the invoices was procedurally unfair because they were hearsay evidence, they should have raised this matter with the Board. They did not. Regional Supervisor’s evidence on this issue was also supported by the direct evidence of the veterinarians who were called to testify, veterinarians who supported the fact that one aspect of the dogs’ care was being met, namely their medical needs.

[70] For these reasons we find that the Board’s decision with respect to boarding costs was a reasonable one.

Was the Board’s decision with respect to transportation costs reasonable?

[71] The CAWI’s position is that the Board erred by unreasonably interpreting s.35(1) of the Act in a narrow way, without regard to the text, context of the Act, the statutory provision and/or the principles of statutory interpretation. Specifically, the CAWI claims that the Board unreasonably found that transportation costs for the removal of the dogs were not recoverable against Windrift because transportation costs for removal are not necessaries under s.35(1). The Board offered an alternative analysis, stating that if it was wrong and transportation costs are necessaries, then the costs are unreasonable because the transportation fell below the standard of care for animals and because in two instances transportation could have been provided by the Animal Welfare Serivces no cost. The CAWI’s position on this alternate analysis provided by the Board, is that the analysis was tainted by the Board’s unreasonable interpretation of the onus of proof discussed above.

[72] It is not necessary for this court to consider whether the Board unreasonably interpreted s. 35(1) of the Act, as in its alternative analysis, the Board provided reasonable and cogent reasons for its determination that even if transportation costs are necessaries, the CAWI had not established that the care provided (the transportation) was reasonable. Specifically, the Board referred to the transportation amounts from Luckhart not being payable because the method of transportation “fell far below the prescribed standards of care for animals in Ontario” (at para. 39 of Decision). The Board had before it evidence that the dogs began to be removed from one location at 1:40 PM and at 8:25 PM were not fully unloaded. No water had been provided to the dogs and Regional Supervisor Munoz had no information about when the dogs had last received food prior to their removal. She also testified that there was no way for the dogs to relieve themselves once loaded in the truck aside from doing so in their crates which were not lined with absorbent material. She also acknowledged in cross-examination that the crates were not tied down or otherwise secured in the Luckhart truck. The Board considered a photograph taken just before the doors of the truck were closed showing the crates stacked on top of each other with a large empty space on the second row, which void could “easily allow” the crates to shift.

[73] The Board also reasonably determined that with regard to the North Bay and District Humane Society invoice, the Animal Welfare Society could have provided the transportation and if they had, no fee would have been included on the Statement of Account for such services (at para. 55 of the Decision). Further, the Board reasonably determined that the CAWI failed to provide sufficient details to support the amount of the Shawn and Wendy Mack invoice (at para. 59 of the Decision). Regional Supervisor Munoz did not provide a breakdown as to how much of the invoiced time was in transporting the dogs as opposed to waiting. Further, no information was provided as to how many dogs were transported by Shawn and Wendy Mack or where any dogs were transported to. Regional Supervisor Munoz testified that the Animal Welfare Society could have transported the dogs to the boarding facilities at no cost.

[74] The Board’s alternative analysis decision was reasonable. As set out above, the Board’s finding that the CAWI had the initial evidentiary burden was also reasonable.

Was the Board’s decision with respect to veterinary costs reasonable?

[75] The CAWI’s position is that the Board unreasonably found that the veterinary care amounts are only reasonable as necessaries if the Chief Inspector can show that the costs did not arise from her lack of care, or the services were provided to relieve distress of the dogs for conditions caused by Windrift. It argues that the Board erred by unreasonably reading a “causation” element into s. 35(1).

[76] As set out above, we have determined that it was reasonable for the Board to find that the CAWI had the initial evidentiary burden to prove, on a balance of probabilities, that the charges reflected in the Statement of Account reflect actual costs and that the care provided was reasonable. The Board provided logical and cogent reasons as to why it determined that the triage veterinary costs did not reflect reasonable care of the dogs (at paras. 87-98 of the Decision). The Board considered Regional Supervisor Munoz’s evidence and did not accept that the triage could not have been completed at the Windrift properties. No reason was provided as to why the triage had to take place in a “controlled environment.” The Board found that the triage provided was not to provide necessaries but to provide treatment so that the dogs could be housed at indoor kennels. The Board had evidence before it in this regard from Regional Supervisor Munoz, Dr. Fleming and Dr. Robertson. The Board did not consider these treatments necessary or recoverable against Windrift as the Animal Welfare Society took no steps to investigate the dogs being boarded outdoors. Even if part of the treatment was for necessaries and part for pre-indoor kenneling requirements, the Board was not provided with a breakdown upon which to allocate expenses.

[77] The Board also found that medicines on-hand at the triage went unused.

[78] The Board added the “causation” aspect, only in regard to the veterinary bills incurred after the triage. As set out above, we have determined that this was reasonable in the specific circumstances of this case, particularly that Windrift was denied the opportunity to have a veterinarian of their choice inspect each of the living dogs that had been removed. This right was granted to Windrift by order of September 23, 2021.

[79] With regard to the post-triage veterinary costs, the Board’s decision to reduce them to zero was not unreasonable. The Board gave thorough, rational and cogent reasons for doing so. Its decision is entitled to deference. Much of the evidence the Board had before it in this regard is summarized above under onus. The CAWI did not prove on a balance of probabilities that the post triage veterinary costs did not arise as a result of their care or lack thereof, provided by the CAWI or its agents. The dogs were not removed for health issues. Some dogs were returned with illnesses from outbreaks at the kennels where the CAWI placed them. Some dogs had to be relocated from one kennel to another as the first kennel was not providing adequate care. Windrift was denied access to the dogs. The CAWI had no evidence that any of the conditions for which the dogs received subsequent veterinary care after triage were present prior to the dogs being removed. No witness testified for the CAWI that the cause of any conditions for which the dogs received post triage veterinary care arose from issues from when the dogs were in Windrift’s care.

[80] The Board also considered that only two of the invoices were for services rendered from close to the triage. The Board considered these two invoices—September 24 and 27, 2021—in detail. Regarding the September 24, 2021 invoice, Regional Supervisor Munoz simply read the invoice and offered no further explanation. The September 27, 2021 invoice was provided for care four days after the dog was removed. Part of the invoice was for treatment for fleas and yet the triage examination made no note of the dog having fleas.

[81] The Board gave cogent reasons for rejecting the invoices for dog M-42. The Board did not accept that it was reasonable for veterinary care for one dog to exceed $18,000.

[82] The CAWI abandoned its argument that the Board breached the principles of procedural fairness by relying on a new argument on the issue of “causation” raised by Windrift in its closing submissions.

Was the Board’s decision with respect to ability to pay reasonable?

[83] In their closing submissions before the Board, Windrift requested that the Board consider the reasonableness of the amounts charged in the context of their ability to pay, a factor that has been considered in previous Board decisions.

[84] The Board found that it did not have to determine the question of whether ability to pay should be considered (the CAWI submitted it should not) as it found that Windrift filed no documentary evidence to support Ms. Spottiswood’s testimony on this issue.

[85] Windrift submits that the Board was unreasonable when it failed to accept the uncontradicted oral evidence of Ms. Spottiswood as to Windrift’s inability to pay. We disagree. There is nothing unreasonable about a tribunal refusing to accept evidence about impecuniosity that is unsupported by any documentary evidence. The question of the weight to be attributed to Ms. Spottiswood’s testimony on this point is a question for the Board to decide. Absent exceptional circumstances (which are not present here), it is outside the province of this Court on a reasonableness review to re-weigh evidence.

Conclusion

[86] For these reasons, both applications for judicial review are dismissed. Absent agreement, the parties are to make brief written submissions as to costs within two weeks of the date of the release of these reasons.

Sachs J.

Coats J.

I agree _______________________________

Leiper J.

Released: August 8, 2023