CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2024 ONSC 272
DIVISIONAL COURT FILE NO.: 295/23 JR
DATE: 20240112
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, O’Brien and Leiper JJ.
BETWEEN:
WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE AND CODY PRYDE
Applicants
– and –
CHIEF ANIMAL WELFARE INSPECTOR
Respondent
COUNSEL:
Eric K. Gillespie and Sarah Quildon, for the Applicants
Kateryna Toderishena and Danielle Meuleman, for the Respondent
HEARD at Toronto (by ZOOM): July 12, 2023
REASONS FOR DECISION
D.L. Corbett J.
[1] This is an application for judicial review of the decision of Vice-Chair Farlam of the Animal Care Review Board (the “ACRB” or the “Board”) dated May 8, 2023, confirming a statement of account issued by the respondent Chief Animal Welfare Inspector (“CAWI”) to the Applicants for costs of caring for the Applicant’s animals: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONACRB 40.
[2] This is the second application for judicial review of animal care costs billed to the Applicant following seizure and retention of more than 200 dogs in September 2021. The first application concerned care costs for the period September 2021 to January 2022 (about 3.5 months). The Board found that costs payable by the Applicants for that period should be fixed at $506,760, and a panel of this court confirmed that decision on August 8, 2023 (2023 ONSC 4501).
[3] This application concerns care costs for the period January 2022 to December 2022 (about 11.5 months). The Board confirmed costs for this period in the amount of $1,524,640. I note that this total – on a monthly basis – is comparable to the amount ordered in the first care costs decision.
[4] The aggregate care costs for these dogs have been disastrously high for the Applicant and out of all reasonable proportion to the issues of principle the Applicant sought to contest at the outset. However, these costs have been incurred in fact, and they are a consequence of the Applicant’s two fundamental mistakes:
(a) The Applicant’s concerns with the respondent CAWI’s insistence that the Applicants comply with prescribed minimum care standards for the sled dogs were misconceived; and
(b) The Applicant’s litigation strategy was corrosive of an expedient and practical approach to resolving the issues of principle of concern to the Applicant.
Viewing the matter realistically and practically, it is hard to see how the issues of principle to the Applicant should have posed an existential threat to the Applicants’ business. The Respondent CAWI’s concerns were over the length of tether chains and the size and quality of shelters for the dogs. The Applicant’s litigation strategy has seen the proceedings drag on for two years, and that after a period of six months when the dogs remained in the Applicant’s possession following issuance of citations (February 2021). Even after a decision was rendered by the Board in respect to the issues of principle (June 2021), the Applicants still refused to comply for several months. It was not until September 2021, when it was clear that the Applicants would not comply, that the Respondent seized and retained the dogs.
[5] The Applicants’ position, throughout, seems to have been that they do not have to comply with citations and orders in a timely manner, they should be able to pay modest fines as licensing fees for their non-compliance, and that their current plight is a result of over-zealous enforcement. They continued to cling to this view in their factum before us. In para. 29 of their factum, they note that the costs for the CAWI to keep the Applicants’ dogs is about $8,000 per day or $240,000 per month. They argue “[t]he effect is to impose a penalty many times greater than any amount that could ever be imposed as a penalty or fine” (Factum, para. 29). This argument is misguided. The impugned order is not a penalty or fine – it is a recovery of costs, incurred by the public purse, to care for the Applicants’ animals.
[6] As reflected in their arguments, the Applicants have fundamentally misconceived the regulatory regime, the role of the CAWI, and the purpose of enforcement mechanisms. Proceedings before the Board are supposed to be expeditious, since the ongoing fate of live animals is involved. Compliance with minimum prescribed standards is not optional and cannot be avoided by paying modest fines. The Applicant was required to comply, and the CAWI showed reasonable restraint to afford the Applicant more than a reasonable time in which to comply.
[7] The result has been poor for the animals and for the people of Ontario (who have incurred substantial – and as yet unrecovered – care costs for these animals), and apparently disastrous for the Applicants. None of this should be laid at the feet of the Respondent. It is a consequence of the Applicants’ intransigence respecting compliance with prescribed standards of care for their animals, and their misguided litigation strategy.
[8] I say these things at the outset, forcefully, because of the incendiary language used by the Applicant to describe the conduct of the CAWI, in the application before us and in the extensive prior proceedings before the Divisional Court and the Board. It is beyond debate that these animals should not have been in the Respondent’s care for the past 2.5 years, at enormous public expense. The responsibility for this misadventure lies at the feet of the Applicants; the respondent CAWI has done no more than perform its statutory role.
[9] In respect to the current application, it is apparent that it is without merit.
[10] The CAWI placed evidence before the Board respecting the care costs that was consistent with the Board’s prior decision respecting care costs. The Applicant adduced no evidence, conducted no cross-examination on the evidence before the Board, and then peppered the Board with a series of meritless formal arguments and objections. On this application, the Applicant renews this strategy, including attacking the Vice Chair and her reasons on a litany of meritless grounds. The impugned decision rests on the unchallenged evidence before the Board, is consistent with the Board’s prior decision respecting the calculation of care costs and is most certainly reasonable.
[11] Therefore, for the reasons that follow, I find that the Board’s decision confirming the account for care costs for the period January to December 2022, in the amount of $1,524,640 is reasonable, and dismiss the application for judicial review with costs.
Background
[12] The history is set out in paragraphs 8 to 22 in the first care costs decision of this court: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501. I incorporate that history by reference and would add the following subsequent developments:
(a) On October 19, 2023, Sossin J.A. refused the Applicants’ motion in the Court of Appeal to consolidate their motions for leave to appeal the liability decision of this court and the first care costs decision of this court, without prejudice to a subsequent consolidation of appeals if leave should be granted in both matters: 2023 ONCA 690;
(b) November 20, 2023, the Court of Appeal refused leave to appeal from the panel decision of this court dismissing the judicial review from the Board’s liability decision;
(c) No decision is yet reported on the Applicant’s motion for leave to appeal the first care costs decision of this court.
[13] The first care costs decision concerned the period between September 2021 and January 2022. The CAWI sought care costs of $1,114,720.27 for that period. The Board partially confirmed the CAWI’s statement of account, in the amount of $505,760, an amount upheld by this court in the first care costs decision (2023 ONSC 4501, para. 86).
[14] The care costs in issue on this application are for the period from January to December 2022, which are set out in the CAWI’s second Statement of Account, dated February 10, 2023, in the aggregate amount of $1,524,640. The Board confirmed the second Statement of Account in full: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONACRB 40, para. 56.
Issues Before the ACRB
[15] The Applicants raised the following grounds of appeal before the ACRB (set out at 2023 ONACRB 40, para. 3):
- There was no proper basis for the removal of the animals;
- The dogs have not been provided with proper necessaries and/or with adequate care;
- The amounts charged are not appropriate; and
- There was no proper basis for not returning the dogs.
Issues 1 and 4 were not pursued before the Board and were raised pending final determination of the Applicant’s applications for judicial review of the Board’s liability decisions. Those grounds are not available to the Applicants in light of the final determination of those issues against them.
[16] Preliminary issues were raised at the outset of the ACRB hearing, which were resolved as described in paragraphs 7 to 10 of the Decision.
[17] The record before the ACRB was an affidavit of Sara Munoz. The Applicants did not cross-examine Ms Munoz, and they tendered no evidence of their own. The Board accepted the evidence set out in the Munoz affidavit and found that it substantiated the CAWI’s claim for care costs.
[18] The Applicants raised numerous issues before the ACRB. Most of these arguments lacked apparent substance, but the Board canvassed these issues and gave brief reasons why none of them assisted the Applicants.
Issues on this Application for Judicial Review
[19] In their factum, the Applicants list the issues as follows:
(a) What is the applicable standard of review? (Factum, para. 23)
(b) Did the ACRB err in law by awarding costs in the amount of $1,524,640.00? (Factum, para. 24)
[20] In its written argument, the Applicants pursue the following arguments:
a. There was insufficient evidence to support the Board’s findings;
b. The onus was on the Respondent to prove care costs, which it failed to do;
c. The Board should have made an adverse credibility assessment of the CAWI’s only witness and failed to do this;
d. The Board should have relied on adverse credibility findings in prior proceedings in assessing the evidence of the CAWI’s sole witness;
e. The Board should not have relied on hearsay evidence tendered by the CAWI;
f. The Board failed to put its mind to whether the CAWI complied with requirements to provide prescribed standards of care to seized animals;
g. The dogs did not receive prescribed care and the Board failed to take this into account;
[21] To this list was added a lengthy and minute critique of the Board’s experience, qualifications, and reasoning (Factum, paras. 48 to 57).
Preliminary Issue #1: Recusal Requests
[22] Leiper J. was also a member of the Divisional Court panel that decided the first care costs decision. That application had been argued, but the decision had not yet been rendered, at the time this application was heard. At the outset of the first care costs case in this court, the Applicant asked that Leiper J. recuse herself from the case. That request was dismissed by the panel for brief oral reasons of Sachs J.: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 3885.
[23] At the outset of the hearing of this application, the Applicant again asked that Leiper J. recuse herself from the panel. Counsel for the Applicant based this request on the same argument made unsuccessfully before the first panel. Counsel acknowledged that this issue had been disposed of by the first panel, and he was raising nothing new in the renewed request before us: his goal, he stated, was to preserve this issue should appeal proceedings be taken from our decision. We denied the request that Leiper J. recuse herself for the same reasons as were given by Sachs J. previously.
[24] The Applicant expressly did not seek my recusal based on my past involvement in decisions between these parties.
[25] Subsequently, during the hearing, counsel for the Applicants advised that matters had developed during the hearing such that he “now had to request” that I recuse myself. That request arose when I indicated to counsel that this court would not entertain submissions on the basis that the prior merits decision of this court was not correct. This recusal request was dismissed from the dais as without merit. The panel ruled that this court’s decision on the merits was binding on the parties and on this court, and the instant application was not an opportunity to reargue it or call it into question.
Preliminary Issue #2: Proposed Fresh Evidence
[26] The Applicants move to adduce fresh evidence. It is a meritless motion. The day before the Board hearing, the Applicants filed four motions, one of which sought permission to call five witnesses and tender 31 affidavits into evidence at the hearing. On the day of the hearing, the Applicants’ four motions were resolved on the basis that none of the proposed affidavits would be tendered and none of the witnesses called (among other things).
[27] In the fresh evidence motion, the Applicants seek to tender 12 affidavits, and an additional three affidavits embedded as exhibits to the 12 affidavits.
[28] None of the proposed fresh evidence meets the test for fresh evidence in the circumstances of this case. The Applicants made a strategic decision to call no evidence at the hearing. That left one set of issues for the Board to decide – whether the evidence tendered by the CAWI was sufficient to make out the CAWI’s claims for care costs. The Applicants may not now repent of their strategic decision at the hearing.
Jurisdiction and Standard of Review
[29] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1. The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.
[30] The Applicant argues that the standard of review is correctness. In making this argument, the Applicant relies upon passages from Vavilov that relate to statutory appeals, not to applications for judicial review. There is no merit to the Applicant’s argument regarding the standard of review: this is a routine decision of an administrative tribunal that turns on its findings of fact. The presumptive standard of review is reasonableness, and none of the issues raised by the Applicant give rise to a basis to consider whether a more probing standard of review is required in this case: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501, paras. 23-25.
Issue 1: Sufficiency of the Evidence
[31] The only evidence before the Board was the Munoz Affidavit. It included invoices for the care costs of the dogs for amounts exceeding those claimed by the Respondent. The Board found:
…approximately 346 pages of itemized boarding facility invoices detail the services provided, to whom and what was charged. These are invoices detailing the costs incurred by AWS for the care of the dogs during the time period covered by the SOA. All invoices are referenced to the respondents internal file number and addressed to AWS. Details are given for charges in addition to daily boarding services for the dogs such as tests, veterinary services, transportation, medications, bathing, grooming, special food and pick up and drop off services. The SOA identifies each dog, shows the boarding facility where each dog is housed, shows the costs of each boarding facility, shows the number of days, the actual cost and the calculated cost of $20.00 and whether the facility is tax exempt. Dates of death and hospitalization are shown, where applicable, and charges arising from veterinary or other special care are all detailed. (Decision, para. 48)
[32] Based on a review of this evidence, the Board found:
It is clear that AWS must pay for the amount invoiced, which significantly exceeds the partial payment sought in the SOA. It is clear from the Affidavit that the costs have been incurred and the respondent is liable for the cost…. (Decision, para. 49)
[33] These findings are rooted in the record and are reasonable. This ground of review fails.
Issue 2: The Respondent Failed to Meet Its Onus
[34] In respect to the question of onus, the Board found as follows:
Without accepting the appellants’ submission that the onus is on the respondent to prove on a balance of probabilities that actual and reasonable costs have been incurred, I find that if the respondent bears this evidentiary onus, it has been met by the Affidavit.
If the evidentiary onus is on the appellants, I find that they have not met it. The only evidence before me at this hearing is the Affidavit filed by the respondent. No evidence was brought forward by the appellants at all and the appellants chose not to challenge the Affidavit in cross-examination. Instead, the appellants’ counsel made submissions in support of the appellants’ contention that they should not have to pay the SOA. Counsel submissions are not evidence. Further, factual findings in other Board decisions, even involving the same parties as in this appeal, do not constitute evidence in this hearing absent agreement of the parties to treat them as evidence in this hearing. There is no such evidentiary agreement here and I decline to make findings of fact based on previous decisions of the Board that are not binding on me.
[35] The Board did not have the benefit of this court’s first care costs decision, which addresses the issue of onus. At para. 51 of that decision, this court held as follows:
Reading the Board’s decision as a whole, the Board did not place an onus on the Chief Inspector to disprove Windrift’s assertions. 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.
[36] As stated above under Issue 1, the Munoz Affidavit provided a factual foundation for the Board’s conclusion that the Respondent had met its “initial evidentiary burden” and that conclusion is reasonable.
Issue 3: Board’s Failure to Make An Adverse Credibility Finding
[37] This argument is misconceived. The Applicant argues that because a previous Board in a prior hearing between these parties made an adverse credibility finding against Ms Munoz, this Board should have done so as well. However, in the hearing below there was no cross-examination of Ms Munoz and no evidence was adduced that was inconsistent with Ms Munoz’s affidavit: Ms Munoz’s evidence was unimpeached in this hearing. It offended the principle in Browne v. Dunn (1893) 1893 65 (FOREP), 6 R. 67 (H.L. (Eng.)) [see R. v. Quansah, 2015 ONCA 237] for the Applicant to request an adverse credibility finding in these circumstances.
[38] The use that may be made of findings about the credibility of a witness in one hearing at a subsequent hearing need not be addressed in this context. At a minimum, the Applicant would have had to seek to cross-examine Ms Munoz on this prior finding to impeach her evidence on this basis. I would say nothing about whether such a line of questioning ought to have been permitted, if requested, in the circumstances of this case: it was not pursued at the hearing below.
Issue 4: the Board Should Have Relied on Prior Adverse Credibility Findings
[39] This is a restatement of Issue 3. This restatement contains an additional problem, however. It implies not only that (i) a prior adverse credibility finding can be put to a witness to impeach her credibility in a subsequent proceeding; and (ii) an adverse credibility finding may be made on this basis without putting it to the witness in cross examination; but also (iii) the Board is obliged to draw this adverse credibility finding and reject the witness’ evidence. This is simply wrong.
[40] It is axiomatic that a trier of fact may accept some, none, or all of a witness’ evidence. If the Applicant had sought to impeach Ms Munoz’s evidence based on a prior credibility finding, and if this line of questioning had been permitted, it would have been for the Board to assess that evidence, together with the rest of the evidence, in deciding what it would accept and what it would not accept.
Issue 5: Hearsay Evidence
[41] The Board addressed the Applicant’s hearsay objection as follows:
The appellants submit that there is only hearsay evidence before me about the costs in the SOA and there is no evidence from inspectors. This submission is unpersuasive. The invoices were rendered to AWS, the employer of Ms. Munoz. I have already found that Ms. Munoz has first-hand knowledge of them in the course of her involvement in this matter. If the invoices are hearsay, the Board can accept hearsay evidence and I have accepted it as sufficient to establish the services rendered and costs incurred on a balance of probabilities, consistent with s. 15 of the Statutory Powers Procedure Act, RSO 1990, c. S.22 which gives tribunals evidentiary flexibility. (Decision, para. 52)
[42] I agree with both aspects of the Board’s reasoning on this point. Ms Munoz, as a senior employee of the Respondent, was personally aware of the matters at issue in this file. She was personally aware of the invoices received by her employer. It was not hearsay evidence for Ms Munoz to aver that the invoices were those received in connection with the care of the dogs.
[43] Further and in any event, the Board accurately cited the effect of s. 15 of the SPPA: the Board has the discretion to receive hearsay evidence. There was no reason not to receive this evidence in this form in this case. It was uncontroverted in evidence before the Board, and there was no reason, in the evidence, to doubt its truth.
Issue 6: Board Failed to Address Whether CAWI Provided “Prescribed Standards of Care” to the Animals
[44] There is no merit to this submission. There was no evidence before the Board that raised an issue with the standard of care provided by the CAWI to the animals. As a result, it is not necessary to consider what bearing, if any, this issue would have on the CAWI’s statutory right to recover its reasonable and actually incurred costs to care for the animals.
Issue 7: The Dogs Did Not Receive Prescribed Care
[45] There was no evidence before the Board that the animals did not receive “prescribed care”. This argument is without merit. There was no onus on the CAWI to prove that they did in these circumstances.
[46] The CAWI did bear the “initial onus” to establish that the claimed expenses were for the purpose of caring for the dogs. The claimed expenses were consistent with the first care costs decision statements about reasonable costs in the circumstances of this case, which the Board noted at paras. 27-28 of the Decision.
Issue 8: Issues With The Board and Its Reasons
[47] The Applicants make a lengthy list of submissions in their factum under the rubric of “Other Matters” (Factum, paras. 48 - 57). I decline to address these arguments individually. They are misguided or are restatements or aspects of arguments addressed above.
[48] It is undisputed that the Applicants’ dogs were housed at public expense for the billing period in question. Invoices were provided for the cost to care for these animals, and the claim of the CAWI was calculated on the basis set out in the Board’s first care costs decision, which was a substantial reduction from the actual costs incurred. This established a prima facie case for recovery of these care costs, in response to which the Applicants adduced no evidence and conducted no cross-examinations. The Board’s conclusion that the evidence before it justified the order it made is manifestly reasonable.
Subsequent Accounts
[49] As noted below, the Respondent’s claim for care costs was for a period ending in December 2022. The Respondent has reserved the right to issue subsequent accounts. When asked about this during argument, counsel for the CAWI confirmed that this was a reference to accounts for further periods the dogs have been in care under the control of the CAWI. Counsel for the CAWI also confirmed that the CAWI was not requiring payment of outstanding care costs as a condition precedent to returning animals, so long as the Applicants followed the compliance order.
Disposition
[50] The application for judicial review is dismissed, with costs payable by the Applicants to the Respondent CAWI in the amount of $15,000, inclusive, payable within thirty days.
“D.L. Corbett J.”
“O’Brien J.”
“Leiper J.”
Date of Release: January 12, 2024
CITATION: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2024 ONSC 272
DIVISIONAL COURT FILE NO.: 295/23 JR
DATE: 20240112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, O’Brien and Leiper JJ.
BETWEEN:
Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Clayton Cauchy, Renata Sauder, Jillian Pryde and Cody Pryde
Applicants
– and –
Chief Animal Welfare Inspector
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: January 12, 2024