Windrift Adventures Inc. v. Chief Animal Welfare Inspector
CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 761
DIVISIONAL COURT FILE NO.: 466/22
DATE: 20230131
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE Applicants (Moving Parties)
– and –
CHIEF ANIMAL WELFARE INSPECTOR Respondent (Responding Party)
COUNSEL: Michael Sims and Michele Valentini, Lawyers for CAWI Eric K. Gillespie and John May, Lawyers for the Applicants Olivia Filetti, Lawyers for ACRB
HEARD by videoconference at Toronto: January 25, 2023
REASONS FOR DECISION
Leiper J.:
BACKGROUND
[1] The applicants move for a continuation of a stay of the August 18, 2022 decision of the Animal Care Review Board (the “Board”) which reviewed and reduced their liability to pay for the respondent’s costs of boarding the applicants’ sled dogs.
[2] They also seek a sealing order over a document filed in this litigation, a consolidation of two related judicial review applications, and an order to enforce an earlier order of the Board permitting an inspection of certain kennels where the sled dogs are being held.
[3] On August 18, 2022, the Board partially confirmed the statement of account and varied the amount which the applicants owe to $505,760 from the original amount of $1,114,720. On September 15, 2022, Matheson, J. stayed the implementation of the Board’s decision on terms.
[4] On November 15, 2022, at the request of the respondent, the Board upheld its decision to reduce the statement of account.
[5] Both parties have filed separate applications for judicial review of the Board’s decisions concerning the statement of account (the “Statement of Account Decisions”).
[6] The boarding costs that are the subject of the current judicial review proceedings were incurred after the respondent issued orders that culminated in the removal of 200 sled dogs belonging to the applicants in 2021. The respondent had acted based on his conclusion that the applicants had not complied with the provisions of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “PAWS Act” or the “Act”) related to adequate shelter and tether lengths for securing their dogs.
[7] The applicants appealed the respondent’s findings of non-compliance and decision to remove the dogs to the Board. Those findings were largely upheld. The applicants then sought judicial review of the Board’s decisions to upheld the compliance findings and the removal of the dogs to this court in October of 2022. The Divisional Court dismissed that application on December 6, 2022.[^1] The applicants have filed leave to appeal from that decision in the Court of Appeal for Ontario.
THE JOINDER OF THE RELATED APPLICATIONS FOR JUDICIAL REVIEW AND SCHEDULING
[8] At the hearing of this motion, the parties agreed that the two applications to judicially review the Statement of Account Decisions involve the same parties, the same record and overlapping issues as to the reasonableness of the adjudicator’s decision to fix the boarding costs owed by the applicants based on the accounts rendered at $505,760.
[9] It would be practical, efficient, and fair for the parties, the court, and the administration of justice, if one panel heard both applications at the same time. In consultation with counsel, I have directed a timetable for the exchange of materials and the uploading of the material to Caselines.
[10] The date for the hearing of the two applications for judicial review in this matter, and the related judicial review file number 535/22 has been scheduled for June 28, 2023.
THE APPLICATION FOR A SEALING ORDER
[11] As a preliminary matter, one of the documents filed with the record on the motion is a personal letter from the applicant, Adrienne Spottiswood, dated December 16, 2022. This letter was submitted to the court in response to one of the terms of the September 15, 2022 stay order.
[12] Counsel for the applicants and the respondents have agreed to work toward a joint proposal for a redacted version of the letter to balance the competing interests of open court proceedings and the privacy of the applicants. That matter will be addressed in writing.
THE MOTION TO CONTINUE THE STAY ORDERED ON SEPTEMER 15, 2022
[13] On September 15, 2022, Matheson, J. stayed the Board’s decision until ten days from the release of the Court’s decision in applications for judicial review, which were decided on December 6, 2022. In the reasons granting the stay, Matheson, J. found that if it was not granted, first two judicial review applications could have been undermined or rendered moot. If they had succeeded on the judicial review, and the dogs were not properly removed, then costs would not be payable.
[14] The stay order’s terms required the applicants to provide written submissions to this Court on proposed terms, after the judicial review was heard if they sought a continuation of the stay. After these applications were dismissed, the applicants sent a handwritten letter to the court from Ms. Spottiswood.
[15] On January 19, 2023, the respondent cross-examined Ms. Spottiswood on the contents of her letter and, concerning the financial circumstances of Windrift and the individual applicants. The transcript of that examination was filed on the motion. It revealed that the applicants have very little extra money to pay for the cost of care for the dogs, or to bring the dog shelters into compliance with the Act and regulations. Their finances have been reduced to the point that they cannot afford to pay for their counsel, who is acting pro bono, or to file their taxes.
[16] The parties agree that the test for a stay, and by extension, the continuation of a stay, is as found in RJR-MacDonald Inc. v. Canada (Attorney General, [1994] 1 S.C.R. 311. The main factors are: (1) whether there is a serious question to be tried in this application; (2) whether the moving parties would suffer irreparable harm if there was no stay; and (3) whether the balance of convenience favours continuing the stay.
[17] Respondent’s counsel does not take issue with the application of factors (1) and (2), given the findings of Matheson J. in granting the initial stay. The serious issue to be tried before the court in September of 2022 was the outstanding judicial review into the reasonableness of the decision upholding the removal of the dogs, and the (still pending) judicial review of the first statement of account decision.
[18] These issues remain in play now, except that the applicants have had their first judicial review of the compliance and removal decisions dismissed. They will now require leave to appeal that decision to the Court of Appeal. As well, since that date, the Board has reconsidered and released further detailed reasons upholding the statement of account which the applicants are liable to pay in an amount that exceeds their ability to pay.
[19] On the second factor, irreparable harm, the outcome of a lifting of the stay now is as it would have been had the stay been denied in September of 2022. That is, if the applicants do not pay the outstanding invoice, by operation of the Act, within 10 days the dogs are forfeited to the Crown. The evidence before Matheson, J. was that this will mean that efforts will be made to have the dogs adopted, but if that is not possible, those dogs may be euthanized. In either event, the applicants would not be able to secure the return of their dogs.
[20] I find that irreparable harm would arise from a lifting of the stay. The nature of the harm is twofold: forfeiture of these dogs ends their dogsledding business, as it was formerly constituted. Secondly, it ends the relationship that the applicants and their families had with the dogs. As an “asset” although neither party has provided evidence of the value of these dogs, the applicants assert that many dogs, some with championship blood-lines amounts to an asset of approximately $1 million. I am prepared to accept, particularly given the evidence of the cost of their care, that these are specialized animals, with a significant value. The applicants have dedicated years to their business.
[21] The parties agree that this motion turns on the third part of the RJR-Macdonald test: the balance of convenience. The respondents submit that the combination of the mounting costs of care (currently estimated to be approximately $8900 per day), the updated evidence concerning the applicants’ inability to make the necessary repairs and changes to the shelters for their dogs alongside the dismissal of the compliance/removal judicial review decision in December of 2022, means that the balance of convenience has shifted. A further stay would only delay what is virtually inevitable at a mounting and indefensible cost to the public. Simply put, the public interest now outweighs the private interests of the applicants. As for the impact on the dogs, there is no additional evidence on impact. If forfeited, efforts will be made to have them adopted. In the meantime, the dogs continue to be housed temporarily in kennels around the province as this litigation occupies many months.
[22] The respondents rely on two cases for the proposition that cost to the public is a factor to be considered in determining whether to stay forfeiture pending litigation under analogous legislation.
[23] In McKinnon v. British Columbia Society for the Prevention of Cruelty to Animals, 2020 BCSC 1933, the court found that the low threshold of “serious question to be tried” had been met, that irreparable harm would flow from refusing a stay but that the balance of convenience did not merit a stay because of the feral nature of the cats, making them inappropriate for traditional fostering. The court considered the ongoing costs, the delays that could be foreseen as a result of the litigation and the best interests of the cats. In balancing the circumstances of this case, the court refused to order a stay.
[24] The other case relied on in support of lifting the stay is Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals, 2010 BCCA 98. In that case, 73 feral cats, found in “deplorable” conditions and suffering from several ailments, were seized from the appellants’ premises. The removal was upheld, and on appeal, the appellant sought a stay of the decision. The court considered the application for stay and found that the grounds for appeal were devoid of merit, therefore not satisfying the first RJR-MacDonald part of the test: Ulmer at para. 27.
[25] In Ulmer, the court found that irreparable harm was satisfied on the facts of the case, given that the appellant would lose her animals. On the question of the balance of convenience, the court factored in the cost of keeping this large number of animals at the Chilliwack shelter facility, which was virtually at capacity, thus potentially displacing other needy animals or requiring healthy animals to be euthanized. In these circumstances, the stay was denied.
[26] Like McKinnon, Ulmer represents a factually distinct context from the case at bar. However, both cases are examples of the court considering the public interest, the attachment of owners to their animals and the application of the test to the individual circumstances.
[27] At the third stage of the analysis, I have considered the need to do justice, and the costs to the parties, the public and the animals affected by this litigation and the question of a continued stay of the Board’s order for payment of the statement of account. I begin first with a consideration of the economic realities of the decision to seize and to contract out kenneling arrangements for the dogs.
[28] The order of magnitude of the costs in this case is undeniably high, with the first statement of account as of January 18, 2022 billing the applicants $1,114,720. At the rates being charged, the current amounts owing which increase daily (and have not yet been billed pending the outcomes of the various pieces of litigation) the cost of boarding the dogs is now approximately $4 million. These are costs to the public.
[29] The hearing which reduced the statement of account to $505,760 occupied 20 days of hearings. The Board conducted a detailed examination and had the benefit of expert and other evidence and the submissions of counsel. In the reasons for decision dated August 18 2022 and in the reconsideration decision dated November 15, 2022, Adjudicator Lake made detailed findings concerning certain deficiencies in the respondent’s process of negotiating kennel rates, the charges for the removal of the dogs and differences in invoicing as between certain of the kennels.
[30] Both parties are judicially reviewing these decisions. The scale of the amounts in play, and the detailed reasons for the decisions under review, lead me to be cautious about making any assumptions as to the outcome of the judicial review. In relation to the leave to appeal from the dismissed judicial review into the decision to remove the dogs, that decision stands. It is unknown whether the Court of Appeal will grant leave to appeal from that decision. Although the serious issue to be tried is conceded, the interim reconsideration decision by the Board, and the decision of this court concerning the merits of the removal decision reduce to some extent, the strength of the merits of the applicants’ position.
[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.
[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.
THE REQUEST FOR AN ORDER ENFORCING THE BOARD’S FEBRUARY 11, 2022 INSPECTION ORDER
[33] The applicants have also moved for an order enforcing the order made by the Board on February 11, 2022 in which the Board. The order was in the context of the proceedings to challenge the statement of account. It contemplated the applicants’ ability to gather evidence about the dogs’ health and living conditions, and that evidence would be presented at the hearing.
[34] In the interim decision granting the inspection order, Adjudicator Lake noted:
Moreover, the Respondent has been clear that it is maintaining its position that it can bill by way of an [statement of account] for any necessaries provided to the dogs, including the necessaries that it became aware of after the dogs were removed, and that it is not restricted to bill only for what its inspectors saw in the field without the assistance of a veterinarian on September 23, 2021…if the Respondent is successful in advancing its position, I find that fairness, as well as my obligation under r. 3.1(a) to facilitate a fair process that allows for effective participation by all parties, dictates that that the Appellants should also have an opportunity to have the dogs inspected by their own experts.
[35] Ultimately, the applicants were not able to gain access to the dogs living conditions: Adjudicator Lake found as follows:
[108] For various reasons, which I elaborated orally on later in the hearing, I ordered the inspection to take place at the locations where the dogs were being housed.
[109] As a result of my Motion Decision and Order, the appellants sought to have a representative inspection of four kennels (totaling 120 dogs), but no inspections ever occurred.
[110] Regional Supervisor Munoz testified that she personally contacted all of the kennels that were housing the appellants’ dogs on February 18, 2022 and indicated that while she could not provide legal advice or direction regarding my Motion Decision and Order, she nonetheless stated that it was each facility’s prerogative on how to respond to the inspection requests.
[111] Each of the four kennels that the appellants sought to inspect later refused the inspection as I ordered for various grounds including insurance coverage issues.
See Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector 2022 ONACRB 24 at paras. 108-111.
[36] The purpose of the order was to assist with the hearing before the Board. The Adjudicator discussed her concerns with the refusals to permit inspections and noted:
The dogs were not removed for any health reasons and the appellants, despite taking active efforts, had no access to inspect the dogs or their living conditions. Indeed, while the four representative kennels refused the appellants’ inspection of the dogs, veterinarian after veterinarian who testified on behalf of the respondent at the hearing confirmed they attended kennels where they were not employed to inspect the appellants’ dogs and/or to provide veterinary services. The access issues related to the dogs is illustrative of the inequity of this situation as against the appellants to be able to meet their burden of providing that the veterinarian amounts dated after the triage should be varied or revoked.
[37] I agree with the submission on behalf of the respondent that the use of this order is now spent. Any issues relative to the findings of the Adjudicator may be considered, if relevant, to the joint judicial review proceedings that are now fixed to proceed on June 28, 2023.
CONCLUSION AND COSTS
[38] I dismiss the motion to continue the stay of the Board’s decisions of August 18, 2022. The stay will be lifted effective February 15, 2023.
[39] I dismiss the application for an order enforcing the Board’s inspection order of February 11, 2022.
[40] I order the joint hearing of the two applications for judicial review to be heard on June 28, 2023, for a half-day hearing.
[41] Given the financial circumstances of the applicants, I reserve the question of costs of the motion to the panel hearing the merits of the combined judicial review applications on the Statement of Accounts Decisions.
January 31, 2023
CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 761
DIVISIONAL COURT FILE NO.: 466/22
DATE: 20230131
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE Applicants/Moving Parties
– and –
CHIEF ANIMAL WELFARE INSPECTOR Respondent/Responding Party
REASONS FOR DECISION
Leiper J.
Date of Written Release: January 31, 2023
[^1]: Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632