Citation: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 7551

COURT FILE NO.: 466/22

DATE: 2023-05-25

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Stewart, Reid, Nishikawa JJ.

BETWEEN:

WINDRIFT ADVENTURES INC., ADRIENE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODEY PRYDE

Applicants (Moving Parties)

– and –

CHIEF ANIMAL WELFARE INSPECTOR

Respondent (Responding Party)

Eric K. Gillespie and John May, Lawyers for the Applicants

Michael Sims and Michele Valentini, Lawyers for CAWI

Olivia Filetti, Lawyer for ACRB

HEARD by videoconference: March 16, 2023

DECISION ON MOTION

Reid J.

[1] The moving parties (applicants) move for an order setting aside or varying the decision of Leiper J. dated January 25, 2023 (2023 ONSC 761 (Div. Ct.)), pursuant to s. 21(5) of the Courts of Justice Act, (“CJA”) primarily so as to extend a stay of the Animal Care Review Board (“ACRB”) decision of August 18, 2022.

Background and History of the Litigation:

[2] The moving parties operate a dog-sledding and horse-riding business at two locations in Ontario.

[3] They have been engaged in a dispute with the Chief Animal Welfare Inspector (“CAWI”) since 2021, beginning with an inspection of the business which led to compliance orders, a removal order resulting in the removal of all the sled dogs, and a care order (which is a decision to keep the sled dogs in care) pending the issues that arose in the inspections being addressed. The moving parties appealed the orders to the ACRB, and then brought two applications to this court for judicial review, one of which concerned the compliance orders and one of which concerned the removal and care orders.

[4] A further order was made regarding the cost of care of the dogs following their removal, which was also appealed to the ACRB. The Board made a decision dated August 18, 2022 which became the subject of a third judicial review application to this court. The initial costs order required payment by the applicants of $1,114,720 which was reduced on appeal to $505,760 after some 20 days of hearing. Both parties have sought judicial review of that decision to this court. By operation of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “PAWS Act”), failure to pay the costs order within 10 days would lead to the forfeiture of the dogs.

[5] In her decision dated September 15, 2022 (2022 ONSC 5282) Matheson J. granted a stay of the costs order pending the result of the first two judicial review applications.

[6] The first two judicial review applications were heard on October 24, 2022 and were dismissed by decision released December 6, 2022. The moving parties advise that an application for leave to appeal from the dismissal will be made to the Ontario Court of Appeal, subject to the granting of an order extending the time for seeking leave.

[7] Notwithstanding the dismissal of the first two judicial review applications, since the third judicial review application (as to the costs order) was still outstanding, the parties agreed to extend the stay granted by Matheson J. until a further extension could be considered by a single judge of this court. That matter was dealt with on January 25, 2023 when the matter came before Leiper J. She dismissed the motion to extend the stay by decision dated January 31, 2023, and it is her order that is the subject of this motion.

[8] The outstanding judicial review application concerning the costs order is scheduled to be heard by a panel of this court on June 28, 2023.

[9] By endorsement dated March 20, 2023, this panel agreed to extend the stay pending our decision on the motion.

Fresh Evidence:

[10] The removal of the dogs occurred when the moving parties were found not in compliance with the provisions of the PAWS Act, as to the adequacy of the dogs’ shelter and the lengths of their tethers. The moving parties have deposed that they do not have funds available to make the required changes (which were estimated to cost approximately $40,000) to bring them into compliance.

[11] At this motion hearing on March 16, 2023, the moving parties advised that they had taken fresh steps to secure a return of the dogs. An application was made to the ACRB dated March 6, 2023, seeking the return of the dogs pursuant to subsection 38(4) of the PAWS Act. That section provides that an owner or custodian of an animal that has been taken into the Chief Animal Welfare Inspector’s care may apply to the Board by notice in writing to have the animal returned if the conditions that caused the animal to be kept in the Chief Animal Welfare Inspector’s care have ceased to exist. A case conference was heard by the Board on March 13, 2023, at which time an oral hearing date was set for March 28, 2023.

[12] The parties were requested to keep this court apprised of developments in the new application to the Board, and on March 31, 2023, the parties jointly advised that the March 28 hearing was not completed and had been adjourned on consent for the parties to discuss potential settlement. The hearing was set to resume on April 19 and 20, 2023, and in the interim, the parties agreed to a conditional return of 25 dogs to the moving parties. No further update has been received.

[13] The moving parties submit that this court should receive and consider the evidence of the new proceedings. They submit that under the general rubric of fairness, the justice of the case requires the stay to continue at least pending the outcome of the fresh application. If the dogs are returned, the mounting cost of their care (which Leiper J. noted to be approximately $8,900 per day) will be capped and the balance of convenience may shift significantly in favour of the moving parties.

[14] The respondent submitted that the court should not receive the new material or consider the latest procedural steps undertaken by the moving parties since they do not bear on the sole question before the court, namely whether the motions judge erred in refusing to extend the stay. Neither the provisions of section 38(4) of the PAWS Act nor the facts relied on by the moving parties in their recent application to the Board were new. A change in litigation strategy made by the moving parties should not be the concern of this court.

[15] At the hearing on March 16, 2023, we agreed to reserve on the question of whether to receive and consider the “fresh” evidence.

[16] If the issue had arisen on an application for judicial review, the evidence would generally be restricted to what was before the original decision-maker, subject to the narrow exceptions set out by the Ontario Court of Appeal in Keeprite Workers’ Independent Union et. al. v Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). Those exceptions are based, at least in part, on the policy consideration that one of the purposes of administrative tribunals is to provide an expeditious and inexpensive method of settling disputes.

[17] In this case, however, the new information is not proffered to support the moving parties’ outstanding judicial review application. They request that this court specifically consider information that was not before Leiper J. when her decision about extending the stay was made, but which would have been relevant to her if known. The information did not exist at that time, because the moving parties had not yet chosen to proceed under section 38(4) of the PAWS Act.

[18] There are at least three problems with the position taken by the moving parties.

[19] First, they are attempting to take advantage of their own inaction. They received the benefit of an extension of the stay on consent to the date of this motion hearing. Then they made the section 38(4) application to the Board a few days before this hearing and on that basis seek to sidestep the usual criteria used by this court when considering an application under section 21(5) of the CJA. Although they submit that it was not until an affidavit was served on behalf of the respondent by Sara Munoz dated March 2, 2023, that they realized the respondent might not oppose a return of the dogs under certain circumstances, the procedure under section 38(4) was available to them from the outset.

[20] Second, there is no certainty as to the timing or outcome of the section 38(4) application. The key component of the decision of Leiper J. denying the request to extend the stay was her assessment of the balance of convenience which she felt tilted toward the respondent, given the virtually impecunious state of the moving parties and the growing cost of care amount. Granting an extension of the stay because there may be another route to a resolution under section 38(4) exacerbates the problem of mounting costs of care. It only minimally enhances the moving parties’ chance of success on judicial review of the costs decision, if at all.

[21] Third, to ask this court to set aside or vary the decision of Leiper J. based on the existence of the section 38(4) application without her having made an error but rather based on a sense of the “justice of the case” is to erode the deference typically accorded to a motions judge, keeping in mind that the motion for review is not a hearing de novo.[^1] Further, it adds uncertainty to the judicial review process which is usually based on a written record. It is the litigation strategy adopted by the moving parties that has changed, not the facts relevant to the issues considered by Leiper J.

[22] For the foregoing reasons, the court agrees to receive and consider the evidence of the section 38(4) application, but having done so, declines to afford it any weight as to the merits of the motion.

Preliminary Objection:

[23] Part way through the motion hearing, and after the court advised that it would reserve its decision on the fresh evidence application, the moving parties submitted for the first time that it was inappropriate for the panel to continue the hearing because Stewart J. had been a member of the panel of this court that dismissed the first two judicial review applications on December 6, 2022. They did not object to the panel making a decision about the reception of the fresh evidence which they submitted would be determinative in convincing the court that the stay should be extended.

[24] The moving parties did not submit that there was actual bias or a reasonable apprehension of bias, but that Stewart J. was placed into a conflict of interest based on her prior involvement. The distinction between those two positions is less than crystal-clear.

[25] The respondent submitted that any issue of conflict of interest should have been flagged at the outset and noted the lack of involvement of Stewart J. in the decision by Leiper J. which was the subject of the motion.

[26] It is worth noting that the dismissal of the two judicial review applications dealt with the compliance order and the care order but not the application concerning costs. That application is scheduled to be heard June 28, 2023. Other than the fact that the same parties and animals are involved, the past and current judicial review applications are distinct.

[27] The theory of the moving parties in objecting to the involvement of Stewart J. appears to be that to give the request for an extension of the stay proper consideration, the court must assess the merits of the past judicial review applications as part of its analysis of the balance of convenience factor.

[28] I note that this court’s decision of December 6, 2022, is presumed to be correct. If the moving parties apply for and receive leave to appeal the decision to the Ontario Court of Appeal, a stay pending appeal may be a matter for consideration by that court.

[29] There is a strong presumption of judicial impartiality and the party who seeks to rebut this presumption bears a heavy burden.[^2] As noted 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 thereon 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.”

[30] Of more pertinence to this case, the Ontario Court of Appeal observed in J.B. at para. 9 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 party.” That analysis by a reasonable observer does not engage the views or conclusions of a particular litigant before the court.[^3]

[31] In short, there is no evidence in this case to rebut the strong presumption of judicial impartiality. Simple involvement in a dispute between the same parties is insufficient. In any event, the issues before the court as to the propriety of the decision by Leiper J. do not connect in any significant way with the result of the judicial review decision of December 6, 2022, in which Stewart J. was a panel member.

[32] For the foregoing reasons, this panel will not disqualify itself from reviewing the decision of Leiper J. dated January 25, 2023.

Standard of Review:

[33] On this motion to set aside or vary the decision of the motions judge, the court must only intervene if it is established that she made an error of law or a palpable and overriding error of fact or mixed fact and law.

[34] In general, when a motions judge is exercising discretion, an appellate court will not interfere unless the moving party shows that the court making the impugned decision misdirected itself or was “so clearly wrong that it amounts to an injustice” or where the judge “gives no or insufficient weight to relevant considerations.” Although in a proceeding under s. 21(5) of the CJA this court is not sitting in appeal of the motions judge, similar considerations apply.

The Test for Granting a Stay:

[35] The parties have previously agreed, and the court has found that the tripartite test for granting a stay as set out in RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311 at para. 43 applies in this case, in that the party seeking relief must demonstrate that:

a. there is a serious issue to be tried;

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

c. the balance of convenience favours a stay.

[36] The motions judge accepted, as did both parties before this court, that the first two parts of the test were satisfied by the moving parties.

[37] As to balance of convenience, the court in RJR Macdonald Inc. required at para. 43 that an assessment be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy, pending a decision on the merits.

[38] The key issue for consideration by Leiper J. was the balance of convenience. She concluded as follows at para. 32:

The implications of continuing the stay now would be to create an excessive burden on the public and to continue to hold the dogs in limbo while the applicants pursue appeals after having had the opportunity to test and challenge the Board’s decisions to participate in two levels of hearings on the application of the Act to their circumstances. Accordingly, I conclude that the balance of convenience analysis should be resolved in favour of the respondents, and that a further stay should not be granted.

Analysis:

[39] The moving parties raised 13 issues (which have been consolidated into 11) arising from the decision of the motions judge that they say constituted an error of law or a palpable and overriding error of fact or mixed fact and law. For the following reasons, we disagree. The request for setting aside or varying the decision of Leiper J. is dismissed.

Was there a material misapprehension of facts?

[40] The moving parties submit that the motions judge incorrectly understood that a change had occurred since the stay decision was made by Matheson J. in that the ACRB had reconsidered and released further detailed reasons upholding the statement of account. In fact, there had been no change to the amount of the Board’s costs order, of which both parties are seeking judicial review.

[41] A careful reading of the motions judge’s decision at paras. 18 and 30 does not show that she relied on changed facts as to the amount owing, but rather on a consideration by the ACRB adjudicator of the basis undergirding the Board’s costs decision. That analysis, coupled with the undoubted change evidenced by the dismissal of the judicial review applications in December 2022, led the motions judge to conclude at para. 30 that the “strength of the merits of the applicants’ position” had been reduced “to some extent”.

[42] We see no error in the motions judge’s understanding of the facts or in her application of those facts to the key issue of balance of convenience. There had indeed been a change since the stay order was made by Matheson J.

Was there a failure to consider relevant law?

[43] The moving parties submit that in her decision to grant a stay pending the outcome of the first two judicial review applications, Matheson J. correctly opined as follows at paras. 21 and 22:

A further issue raised by the moving parties, which I find significant, is that if there is no stay of proceedings, the dogs will be forfeited, adopted, or potentially euthanized, all before the moving parties have their opportunity to have their challenge to compliance and other orders decided. Those two applications for judicial review will become either moot or substantially undermined.

In that regard, the moving parties rely on an older case called Re Dylex Ltd. and Amalgamated Clothing & Textile Workers Union Toronto Joint Board et al. (1977), 1977 1379 (ON SC), 17 O.R. (2d) 448 (H.C.), in which the court does support the use of a stay to prevent a situation where the party wins the merits, but the underlying subject matter of the dispute has disappeared.

[44] The moving parties allege that it was an error of law for Leiper J. to have failed to apply the principles applicable in Dylex.

[45] The potential for “mootness” identified by Matheson J. related to the two judicial review applications outstanding at the time. That same concern was clearly addressed by Leiper J. but from the perspective that, given that those applications had been dismissed, the potential for the moving parties to win on the merits was significantly eroded. As she said at para. 31:

There is now additional and updated evidence before me in the form of the cross-examination of Ms. Spottiswood that suggests that the applicants are not able to manage the comparatively modest amount (approximately $40,000) to ameliorate the conditions for the living conditions of their dogs and secure their return. The only two possible outcomes that would see the dogs returned to the applicants are via obtaining leave to appeal and succeeding on appeal, or if they are not successful on that appeal, they succeed in reducing the amounts owed for boarding the dogs for over 12 months to nil. Given the numbers of dogs removed and the months of care that have been required, this outcome seems highly unlikely. If so, the applicants cannot avoid forfeiture under the Act.

[46] There is no requirement that the motions judge specifically refer to any particular case by way of precedent when correct principles are applied.

Was there an unlawful reliance on costs?

[47] As part of her consideration as to the balance of convenience, the motions judge noted the increasing daily cost of food and care for the dogs at the expense of the public. She noted both the first statement of account of over $1.1 million and the subsequent Board reduction to about $500,000 as of January 18, 2022 and estimated the unbilled costs incurred since January 18, 2022 at approximately $4 million.

[48] The moving parties submit that since under the PAWS Act, no amount is due and payable until an account is rendered, and since no account has been rendered after January 18, 2022, it was a fundamental error for the motions judge to consider unbilled costs. Technically, they do not yet exist.

[49] It was not an error for the motions judge to appreciate the impact of the ongoing cost of care for the dogs on the public purse. In fact, that factor was a critical component of a proper analysis of the balance of convenience test and was part of a proper weighing of the justice of the case.

Was there a failure to consider case law distinctions?

[50] The motions judge considered and placed some reliance on two British Columbia cases involving the removal of animals and in which requests for stays were dismissed[^4].

[51] The moving parties submit that the judge erred in law by failing to identify distinctions between those cases and the case at bar and submit that this is the first and only case where the monetary and economic interest of the public has been held sufficient alone to determine balance of convenience.

[52] Whether this case is precedent-setting is irrelevant. The British Columbia cases referred to by the motions judge, in any event, are not binding on this court. The motions judge committed no error of law by failing to distinguish the cases in the manner urged by the moving parties.

[53] The moving parties further submit that the best interest of the animals and the potential or likelihood for their destruction was an appropriate reason for tipping the balance of convenience in favour of the welfare of animals and that the motions judge erred in law by failing to address submissions on that issue. That finding was not made in Ulmer but in any event, the motions judge at para. 19 acknowledged the potential for irreparable harm which would occur if the dogs were adopted or euthanized because in either event, the moving parties would not be able to secure their return. However, her decision focused on the balance of convenience and at para. 27, she properly addressed the need to do justice, the costs to the parties and the public and the animals affected by the litigation. There was no error of law in failing to prefer a result that balances in favour of the welfare of the animals.

Was there a failure to consider mitigation?

[54] The moving parties allege an error of law in the failure by the motions judge to recognize the material fact of the dramatic reduction in the costs award made by the Board.

[55] The motions judge clearly did identify the reduction by the Board of the costs decision originally assessed against the moving parties in paragraphs 28 and 29 of her decision. She also acknowledged that both parties have challenged the Board order in the pending judicial review. Her comments in para. 31, quoted above, make it obvious that the amount at stake even after reduction was dramatically higher than the apparently modest financial resources of the moving parties.

[56] She recognized that material fact but simply did not draw the inference urged by the moving parties. There was no error of law.

Was there a failure to consider alternatives or provide necessary reasons?

[57] The moving parties submit that the respondent did not have to remove the animals in the circumstances but could have taken control of them by laying charges. Had that happened, all the costs incurred by the respondent would have been avoided. Apparently, there were charges laid which now have been withdrawn.

[58] As a result, in the submission of the moving parties, the responding party was “the author of its own situation/misfortune” as regards the expense of public funds for care of the dogs.

[59] The moving parties submit that the motions judge disregarded those submissions and as such committed an error of law.

[60] In our view, and despite the content of this decision, there is no obligation on the motions judge to review and comment on each submission made by the moving parties. In failing to do so she committed no error of law. The reasons provided by the motions judge shed a clear light on the rationale relied on by her and as noted, a failure to address specific submissions by counsel is not an error of law.

Was there a failure to consider the merits of the outstanding judicial review?

[61] The moving parties submit that as part of the balance of convenience analysis, it is necessary for the court to consider the merits of the judicial review. Completely unmeritorious applications are self-evidently less likely to obtain stays than applications that have a legitimate basis and/or stronger merits.

[62] In para. 30 of her decision, the motions judge specifically acknowledged the uncertainty of the result of the pending judicial review and as she said, she was cautious about making any assumptions as to its outcome. It is apparent that she did consider the merits of the judicial review. At most, the moving parties’ objection is that she simply did not endorse their position on judicial review as superior to that of the responding party.

[63] As already noted, there is no obligation on the motions judge to review and comment on each specific submission made by the moving parties. In failing to do so she committed no error of law.

Was there a failure to consider potential leave to appeal?

[64] The moving parties submit that, although the result of any leave application to the Court of Appeal is unknown, the failure to extend the stay by the motions judge usurps the role of the Court of Appeal to determine the case.

[65] That submission inappropriately conflates the duty of the motions judge to decide the motion on the merits, in this case as to balance of convenience, with the jurisdiction of the Court of Appeal to determine whether a stay pending appeal should be granted in the event leave is given for the appeal to be heard.

[66] The motions judge made no error of law.

Was there a failure to consider uncontroverted evidence?

[67] The moving parties submit that their strained financial circumstances arise from the fact that they have not been able to carry on their business and that the business reversal arose from the inappropriate actions of the respondent. They submit that the motions judge erred in law in failing to specifically acknowledge or discuss the role of the respondent in creating the moving parties’ difficulties.

[68] Once again, we conclude that the motions judge made no error of law in failing to specifically address the substance of this particular submission made by the moving parties.

Was there a reliance on speculative evidence?

[69] The moving parties submit that if the dogs were forfeited, as would inevitably be the case if the stay is lifted and the outstanding costs order is unpaid, it is likely that they would be euthanized, or if adopted, would be spayed or neutered thereby permanently ending their championship bloodlines. Conversely, the moving parties submit that the respondent’s case was based entirely on speculation as to the rendering of future accounts and on a predicted unsuccessful appeal by the moving parties from their dismissed judicial review applications.

[70] Despite the submissions by the moving parties, we disagree that the motions judge was presented with speculative evidence from the respondent. Clearly substantial care costs were being incurred daily. Clearly the judicial review applications challenging the initial actions of the Board had been dismissed. Clearly no application to the Court of Appeal for leave to appeal had been made.

[71] There was no error of law in failing to consider any distinction between the evidence of the moving parties and the evidence of the responding party as to the impact of granting or failing to grant a continuation of the stay.

Was there a failure to apply the court’s own findings?

[72] The moving parties note that on February 11, 2022 the Board issued an order permitting the moving parties to inspect the dogs’ temporary health and living conditions. The order would have permitted evidence to be led at the Board hearing as to costs being incurred. Apparently four kennel operators, who were caring for 160 dogs, failed to allow the inspection. As a result, the moving parties asked the motions judge for an order enforcing the Board order permitting the inspection.

[73] The motions judge accepted the submission of the respondent that the use of that order had been spent and that any issues relative to the matter could be dealt with at the judicial review hearing scheduled for June 20, 2023.

[74] We see no error in the conclusion reached by the motions judge.

Conclusion:

[75] In this proceeding under s. 21(5) of the CJA, we have considered but rejected the request that the panel disqualify itself from the matter as a result of a conflict of interest. We agreed to receive and consider the evidence of the moving parties’ application under s. 38(4) of the PAWS Act detailing a new procedure undertaken by them but having done so, decline to afford it any weight as to the merits of the motion. Finally, we are satisfied that the motions judge made no error of law or palpable and overriding error of fact or mixed fact and law. As a result, the motion is dismissed.

[76] The extension of the stay that was granted by this court on March 21, 2023 is extended for a further seven days, following which it will expire unless extended by court order.

Costs:

[77] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they are to submit Bills of Costs and make written submissions, consisting of not more than three pages in length according to the following timetable:

• The respondent is to serve its Bill of Costs and submissions within 10 days of the date of this decision;

• The applicants are to serve their Bills of Costs and submissions within 20 days of the date of this decision;

• The respondent is to serve its reply submissions, if any, within 30 days of the date of this decision;

• All submissions are to be filed with the court and uploaded to CaseLines within 35 days of this decision.

[78] If no submissions are received by the court within 35 days of this decision or any agreed extension, the matter of costs will be deemed to have been settled.

Reid J.

I agree _________________________________

Stewart J.

I agree _________________________________

Nishikawa J.

Released: May 25, 2023

[^1]: See for example Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123, para. 4 (Div Ct.) [^2]: see for example J.B. v. Ontario (Child And Youth Services), 2020 ONCA 199 at para. 4. [^3]: J.B at para 6. [^4]: McKinnon v. British Columbia Society for the Prevention of Cruelty to Animals, 2020 BCSC 1933 and Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals, 2010 BCCA 98.