Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782

CITATION: Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782

DIVISIONAL COURT FILE NO.: DC 246/23

DATE: 2023-10-16

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: VALERIE GUILLAUME, Moving Party/Applicant

AND:

CHIEF ANIMAL WELFARE INSPECTOR, Responding Party/Respondent

BEFORE: Nishikawa J.

COUNSEL: Valerie Guillaume, in person Jason Kirsh, for the Respondent, Chief Animal Welfare Inspector Douglas Lee, for the Animal Care Review Board

HEARD at Toronto: October 14, 2023 (by videoconference)

ENDORSEMENT

Overview

[1] The moving party, Valerie Guillaume, brings a motion to stay the order of the Animal Care Review Board (ACRB) dated August 4, 2023 (the “Decision”) pending the outcome of her application for judicial review.

[2] Before the ACRB, the Applicant appealed the following three decisions made in February 2023 under the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13 (the “Act”): (i) an order for the removal of 41 cats from her home, (ii) the decision to keep the animals in care, and (iii) the issuance of a statement of account (SOA) for $23, 969.95 for fees associated with providing care to the animals. The Decision dismissed Ms. Guillaume’s appeals to the ACRB, declined to return the animals to her, and confirmed the SOA: Guillaume v. Chief Animal Welfare Inspector, 2023 ONACRB 52.

[3] The Applicant initially sought to appeal the Decision to this court, however, the Act does not provide for a right of appeal. The appeal was therefore struck by Matheson J. on August 21, 2023 with leave to file an application for judicial review.[^1]

Analysis

Test for a Stay and Mootness

[4] Because there is no statutory right of appeal of a decision of the ACRB, the automatic stay provision of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22 (SPPA) does not apply.

[5] The test for a stay requires that the moving party show that:

(a) the application raises a serious question;

(b) irreparable harm will result if the stay is not granted; and

(c) the balance of convenience favours the granting of a stay.

RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] S.C.J. No. 17 paras. 43, 78-80.

[6] The Respondent does not dispute that the Applicant meets the first part of the test, given the low threshold for demonstrating a serious question.

[7] The Respondent takes the position that the motion for a stay of the Decision is moot. The Respondent submits that in this case, the animals were forfeited by operation of statute, long before the Applicant sought a stay. As a result, they are no longer the property of the Applicant.

[8] Under s. 35(1) of the Act, an owner or custodian is liable for expenses incurred by an inspector or the CAWI when necessaries are provided to relieve an animal of distress. Pursuant to s. 35(4), if the owner or custodian does not pay a SOA that has been varied or confirmed after an appeal to the ACRB, the animals are forfeited to the Crown. Under s. 1(2) of O. Reg. 447/19, the prescribed time period for payment of a SOA is ten business days.

[9] Since the ACRB dismissed the underlying appeals and confirmed the SOA, payment of the SOA was due ten business days later, or on August 18, 2023. The Applicant has made no payments to date. Nor has she negotiated an arrangement with the CAWI. Therefore, by operation of s. 35(4)(b) of the Act, the animals that were removed have been forfeited to the Crown. Forfeiture occurs by statute and is not subject to any further action by the Crown or CAWI. Once animals are forfeited to the Crown, they become the property of the Crown and the previous owner/custodian ceases to have any rights of ownership or possession over the animals. Subsection 63(1) of the Act provides that the CAWI is authorized by the Crown to “deal with the animal as if the [CAWI] were the owner[.]”

[10] Because the cats were forfeited to the Crown on August 18, 2023, they are no longer her property, and the issue of a stay is moot. While the Applicant submits that she served a notice of appeal within the 10-day period, and it was always clear that she intended to challenge the Decision, the Applicant did not take any of the available steps in relation to the SOA. Moreover, the Applicant was advised by Matheson J. in her direction dated August 21, 2023 that there was no automatic stay pending the outcome of a judicial review application. The Applicant did not bring her motion for stay until September 5, 2023.

[11] In the event that the motion for a stay is not moot, in my view, the Applicant has failed to meet the second and third elements of the test for a stay. The Applicant did not file an affidavit in support of her motion. As a result, she has not provided evidence of the irreparable harm she would suffer should a stay not be granted. Similarly, the Applicant has not demonstrated how the balance of convenience would favour the granting of a stay.

[12] At the hearing of the motion, the Applicant’s submitted that a stay was necessary to allow her application for judicial review to be heard in a fair and just manner. The Applicant takes the position that her application for judicial review challenges the fairness of the proceeding before the ACRB and the refusal of the Board to hear the constitutional issues that she raised. If this were sufficient, however, a stay would have to be granted in every case without a party having to satisfy the test for a stay. Unlike the SPPA, the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, does not provide for an automatic stay. The moving party bears the burden of satisfying the court, with evidence, that a stay of a decision is warranted in the circumstances. Having failed to provide evidence of irreparable harm or how the balance of convenience favours the granting of a stay, the Applicant’s motion must fail.

Conclusion

[13] Accordingly, the motion is dismissed.

[14] Further to the parties’ agreement on costs of the motion, no costs are ordered.

“Nishikawa J.”

Date: October 16, 2023

[^1]: An earlier notice of application for judicial review, bearing the same court file number, of an interim order of the ACRB dated April 12, 2023, was struck by O’Brien J. under Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: 2023 ONSC 4044 (Div. Ct.).