Court File and Parties

CITATION: Guillaume v. Chief Animal Welfare Inspector, 2024 ONSC 2976

DIVISIONAL COURT FILE NO.: 246/23

DATE: 20240603

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: VALERIE GUILLAUME, Applicant

AND:

CHIEF ANIMAL WELFARE INSPECTOR and ANIMAL CARE REVIEW BOARD, Respondents

BEFORE: D.L. Corbett, Matheson and O’Brien JJ.

COUNSEL: Self-represented Applicant Jason Tam, for the Respondent Chief Animal Welfare Inspector Douglas Lee, for the Respondent Animal Care Review Board

HEARD: May 28, 2024 in Toronto

Endorsement

[1] At the hearing on May 27, 2024, this application was dismissed without costs with reasons to follow. These are those reasons.

[2] The applicant seeks judicial review of the decision of the Animal Care Review Board dated August 4, 2023 (the Appeal Decision). The Board heard three appeals from the applicant: an appeal from the order for the removal of forty one cats from the applicant’s apartment; an appeal from the decision to keep those cats in care; and an appeal from the issuance of a statement of account for the costs of care.

[3] As set out in the Appeal Decision, the Board determined that Animal Welfare Services inspectors acted reasonably when they entered the Applicant’s apartment pursuant to the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, and seized the forty one cats, which were in a state of distress. All three appeals were dismissed.

[4] Under s. 29 of the Act, an animal welfare inspector may enter a place used as a dwelling without a warrant and search for an animal if the inspector has reasonable grounds to believe that an animal in the place is in critical distress.

[5] The applicant submits that the steps taken by Animal Rescue inspectors breached her rights under the Canadian Charter of Rights and Freedoms, including ss. 7, 8, 15(1) and 24 of the Charter. Her primary focus is the lack of a search warrant authorizing the inspectors to enter her apartment. She submits that the Board wrongly prevented her from making Charter arguments on her appeals and reached an unreasonable decision. As set out below, the applicant did not attend the hearing when she was to make her Charter arguments.

[6] The Animal Welfare steps began in January 2023. In response to a complaint about cats living in unsanitary conditions, an inspector went to the applicant’s apartment. The applicant denied him entry. In early February 2023, the inspector went back with the assistance of the police, which is provided for under the Act. The applicant was not there. They conducted a critical distress entry and observed more than thirty cats in unsanitary conditions without access to food or water. The cats were not removed at that time. Photographs were taken and food and water were put out.

[7] The next day, an Animal Welfare inspector went back to the apartment but did not enter. The inspector was unable to make contact with the applicant, and therefore posted a notice on the door. The inspector became aware that the applicant was in police custody and it was not known when she would be released.

[8] The next day, Animal Welfare inspectors went back to the apartment. The notice was still on the door. The main inspector contacted a Regional Supervisor who approved access based on the animals being in critical distress.

[9] The landlord gave access to the apartment. The inspectors found forty one cats living in unsanitary conditions, and one deceased cat, in an apartment that was about 10 feet by 10 feet. There was a strong odour of ammonia, a build-up of feces on the floor, no litter boxes, and no food or clean water.

[10] The inspector believed that there was “no time to spare” because the cats were alone in the unit and the applicant was in custody. Photographs were taken showing the above and the inspector left notice of the removal of the cats. The cats were taken to an animal shelter. Animal Welfare later issued a decision to keep the cats in care and issued a statement of account for the costs of care.

[11] The applicant appealed the notice of removal, the decision to keep the cats in care, and the statement of account. Appeals to the Board are hearings that permit parties to call witnesses, cross-examine and present arguments, as set out in s. 38 of the Act. The three appeals were consolidated and the applicant was given information about the Board process, including how to raise preliminary issues and Charter issues.

[12] The Board hearing was scheduled for early April 2023. The Board made preliminary rulings denying the applicant’s request for a court reporter or other recording and denying her motion to adjourn. The applicant then refused to participate and left. The Chief Animal Welfare Inspector moved to dismiss the appeals as abandoned. That motion was dismissed.

[13] With respect to the Charter issues, the applicant had not provided the notice of constitutional question that was required under the Board rules. After the Applicant left the above hearing, and it was adjourned, she then provided a notice of constitutional question. The Board allowed the filing of the notice and directed that the Applicant put forward those arguments at the re-scheduled hearing.

[14] The hearing was rescheduled for two days in June – June 5 and 6. At the outset of the hearing on June 5, there were technical difficulties such that the parties were in a different virtual hearing room from the adjudicator. In the hearing before this Court, the applicant submitted that the delay in commencement of the hearing was the fault of the adjudicator, which is contrary to the record.

[15] The hearing was stood down until 11:30AM, on notice to the applicant, and a proper link to the hearing was provided. In response, the applicant emailed to say she was unavailable at that time due to “unmitigated circumstances” and asked for an adjournment. The applicant did not provide any other explanation for the adjournment request. The hearing was delayed again, to 1PM. The applicant did not appear. The adjudicator nonetheless considered the applicant’s email request for an adjournment. The adjudicator considered the interests of both sides and declined the adjournment.

[16] The applicant submits that the delay in commencement of the hearing on June 5 caused her to experience health problems and that was the reason that she did not attend later in the day. However, the applicant neither said that at the time nor did she take steps to put that reason forward after the hearing. She had the right to seek reconsideration, where health issues could have been raised, and did not seek a reconsideration. Further, the applicant did not provide any medical documentation in support of that position either to the Board or to this Court in this application.

[17] After the applicant did not attend when the hearing began later in the day, the Chief Animal Welfare Inspector made another request that the appeal be dismissed on the basis that the appellant had the burden of proof, was not present and therefore would not be calling evidence. The request to dismiss was denied and the adjudicator called on the Chief Animal Welfare to call evidence. The Chief Animal Welfare Inspector called evidence on all the issues. Detailed reasons for decision were released on August 4, 2023, dismissing the appeals.

[18] The Board’s reasons for decision address both the procedural and substantive issues in detail. On process, the Board addressed the statutory authority to proceed without the applicant, the events of the day as summarized above, the history of the matter, and the reasons for denying the adjournment. On the entry and removal of the animals, the Board considered the evidence regarding the course of events in detail, concluding that entry to the applicant’s apartment was lawful. On the applicant’s constitutional arguments, the Board noted that because of the applicant’s non-attendance, the arguments were not put forward. The Board therefore made “no determination” of those issues.

[19] The applicant did not seek a reconsideration, which was a process available to her under the Board’s rules. She commenced this application for judicial review.

[20] The applicant submits that her Charter rights were breached by unlawful entries into her apartment and she therefore wants her Charter arguments decided either by the Board or this Court.

[21] As set out in the reasons for decision, the Board did not make a decision about her Charter issues because she did not attend. Under the Board’s process, it was incumbent on her to make those arguments at the hearing. In the context of this application for judicial review, her submissions amount to a challenge to the Board’s decision to deny her adjournment request on June 5 and proceed in her absence.

[22] We are not persuaded that the denial of the email request for an adjournment on June 5 was either procedurally unfair or unreasonable. As set out in the Appeal Decision, there had already been one adjournment because the applicant left the prior hearing. The applicant had proper notice of the re-scheduled hearing and was on notice she needed to pursue her constitutional arguments at the hearing. The applicant had not shown that illness was the reason for the non-attendance. The adjudicator weighed relevant factors, including prejudice to the applicant, and decided not to exercise their discretion to adjourn the hearing again.

[23] There is also no basis to interfere with the Board’s decision to proceed in the applicant’s absence. The adjudicator noted the authority to do so under s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and considered the circumstances as summarized above.

[24] The applicant also submits that the Appeal Decision regarding entry without a warrant is unreasonable. This submission is founded on the constitutional arguments that she gave notice of, but did not make, at the hearing. However, we have also considered whether the applicant has shown that the Appeal Decision unreasonable under the relevant statutory authorization for entry without a warrant.

[25] As set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 13: “Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.”

[26] The reviewing court asks “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at para. 99.

[27] The Board considered the statutory provision that permits entry without a warrant, specifically s. 29 of the Act. Section 29 requires that the inspector have “reasonable grounds to believe that an animal is in distress, and that the time required to obtain a warrant “may result in serious injury or death to the animal.”

[28] The Board considered the evidence before it, including evidence from the inspector who held the belief that there should be entry without a warrant. The Board considered the evidence about the number of cats, the lack of consistent access to food and water, the lack of evidence that the owner could provide for care or have arranged for temporary care, and the suspected unsanitary conditions.

[29] The Board considered the evidence regarding obtaining a warrant and was satisfied that the inspector had turned his mind to whether the time required to get a warrant “may result in injury or death” of an animal. We agree with the applicant that a warrant should not take weeks to obtain, as the inspector seemed to suppose, but we also consider the Board's decision that the delay to obtain a warrant, in all the circumstances, did justify immediate entry to relieve these animals from ongoing serious distress.

[30] The Board’s conclusion that the conditions for entry without a warrant were met is reasonable. The Board’s decision is transparent, intelligible and justified as set out in the reasons for decision.

[31] The application was therefore dismissed after hearing from the applicant, without costs.

D.L. Corbett J.

Matheson J.

O’Brien J.

Date: June 3, 2024