Court File and Parties

DIVISIONAL COURT FILE NO.: 015/23 and 356/23

DATE: 20240501

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Sachs, Backhouse, Sheard JJ.

BETWEEN:

JOHN GEDDES Applicant

– and –

CHIEF ANIMAL WELFARE INSPECTOR Respondent

– and –

ANIMAL CARE REVIEW BOARD Respondent

Counsel: Eric Gillespie, for the Applicant Jennifer Boyczuk, for the Respondent, Chief Animal Welfare Inspector Olivia Filetti, for the Respondent, Animal Care Review Board

HEARD at Toronto on April 22, 2024

REASONS FOR JUDGMENT

THE COURT:

Overview

[1] The Applicant seeks judicial review of a Decision of the Animal Care Review Board (“the Board”) dated December 30, 2022 (“Initial Decision”) and the Reconsideration Decision dated May 15, 2023 (“Reconsideration Decision”). The Board determined that certain animals— which had been removed from the Applicant’s property by Animal Welfare Services (“AWS”)—should not be returned to the Applicant. The Board also confirmed seven Statements of Account (“SOA”), payable by the Applicant in the total amount of $105,059.35. The Board subsequently dismissed the Applicant’s request for reconsideration.

[2] The Applicant seeks an order setting aside both Board decisions and remitting the matter to a differently constituted panel.

Background

[3] The Applicant and his family operate the Bervie Zoological Park (“Zoo”), located in Kincardine, Ontario. The Zoo houses both domestic and exotic animals. AWS inspected the Zoo on August 26, 2021, October 1, 2021, December 20, 2021, March 15, 2022, April 20, 2022, and April 29, 2022. The latter two AWS inspections were conducted pursuant to inspection warrants issued by the Ontario Court of Justice in accordance with ss. 24(4) and 24(5) of the Provincial Animal Welfare Services Act, 2019, S.O, 2019 c.13 (“PAWS Act”).

[4] On April 29, 2022, Dr. Graham Crawshaw, a veterinarian, issued a Certificate of a Veterinarian to AWS Inspector Atrooshi certifying that he was of the opinion that it was necessary to remove certain animals to relieve them of their distress. AWS removed the animals the same day. The Applicant challenged the removal of the animals before the Board. The Board determined the removal of the animals was lawful,[^1] a finding that is not challenged in this judicial review application.

[5] The animals were relocated to boarding facilities where they were evaluated and treated as required. Some of the animals were returned to the Applicant in September 2022. The AWS issued eight Decisions to Keep in Care to the Applicant, which the Applicant appealed to the Board.

[6] Under s. 31(6) of the PAWS Act, the Chief Animal Welfare Inspector (“CAWI”) may decide to keep an animal that was removed under s. 31(1) in its care if (a) the CAWI determines it is necessary to relieve its distress, or (b) the CAWI has reasonable grounds to believe that the animal may be placed in distress if returned to its owner, or custodian. “Distress” is defined as the state of being, (a) in need of proper care, water, food or shelter, (b) injured, sick, in pain or suffering, or (c) abused or subject to undue physical or psychological hardship, privation or neglect: PAWS Act, s. 1(1).

[7] The Applicant sought the return of all animals and that the seven SOAs be revoked or varied.

[8] AWS Regional Supervisor Mallory gave evidence on each animal’s distress, and was cross- examined by the Applicant.

[9] The Board found each Decision to Keep in Care to be reasonable. The Board states, at para. 29, that:

[t]he Respondent has demonstrated reasonable grounds that the animals would be placed in distress if returned to the care of the Appellant as its evidence showed an extended period of neglect of the animals and a lack of basic care including human interaction, and the provision of a safe, clean, and hazard-free environment by the Appellant. While the Respondent did not provide an individualized assessment of each animal, its evidence of inadequate hoof care of several species, mud-caked coats, and muscular wasting was indicative that the animals were not receiving the care required under O. Reg. 444/19 and that the basic standards of care for animals have not been provided by the Appellant and is unlikely to be provided to the animals if they are returned.

[10] While the Board recognized that the Applicant made some improvements to the animals’ physical environment, the Board found that this was in response to issues raised by the AWS and that there was no evidence of the Applicant’s commitment to a proactive plan to improve conditions.

[11] The Board confirmed each of the seven SOAs on the basis of submitted invoices. The Applicant challenged the care provided to the animals, the amounts charged, the continued keeping of the animals, submitted that the removal of the animals caused distress to the animals or otherwise violated regulations, and submitted that the owner/custodian has an inability to pay. The Board found that these submissions were not sufficiently supported. The Applicant was ordered to pay $105,059.35 to the Minister of Finance.

[12] The Applicant sought reconsideration by the Board. In a decision dated May 15, 2023[^2], (the “Reconsideration Decision”), the Board dismissed the request for reconsideration, finding that the Board had not violated the rules of procedural fairness and had not made an error of law such that a different result would have been reached if the error had not been made.

[13] The Board found that although it did not reference an affidavit (with exhibits) of the Applicant’s veterinarian, Dr. DeGroot, in the Initial Decision, it was not an error as it was not relevant. The Board therefore found that it had not failed to consider the Applicant’s evidence in the Initial Decision.

[14] The Board found that in the Initial Decision, while it “neglected to acknowledge the case law submitted by the Applicant, this was not an error in law” (Reconsideration Decision, at para. 37) because this case law was irrelevant (including as it related to hearsay), and it would not have altered the decision.

[15] With respect to four Board decisions that the Applicant referenced in closing submissions, the Board noted, at para. 18, that the cases were distinguishable and that the Board in its Initial Decision “chose not to write a detailed assessment of the cases in its decision to show why they were distinguishable. Choosing not to discuss cases that are not relevant to a decision is not an error in law.”

[16] The Board found that it had not provided “deficient” reasons, arising from its alleged failure to consider or reference the Applicant’s evidence and case law. The Board stated that it had referenced the Applicant’s arguments, but that the Board had not been provided any compelling evidence.

[17] Finally, the Board found that it had not made any errors of fact that would have altered the outcome.

Issues

[18] These applications raise the following issues:

1. Should the Applicant’s motion to admit fresh evidence be granted?
2. Were the Board’s factual findings unreasonable because of an absence of evidence?
3. Were the Board’s decisions unreasonable because it misapprehended the evidence?
4. Were the Board’s decisions unreasonable because it failed to consider the Applicant’s expert evidence?
5. Were the Board’s decisions unreasonable because they failed to deal with the Applicant’s legal submissions?

Standard of Review

[19] The parties agree that the standard of review we should apply when reviewing the issues relating to the merits of the decisions under review is reasonableness. The Applicant argued that the issues he raised impacted the procedural fairness of the Board’s decisions. We disagree. The issues raised go to the merits of the decisions, not procedural fairness. Therefore, the issues will be assessed on a reasonableness standard.

Analysis

Should the Applicant’s motion to admit fresh evidence be granted?

[20] The Applicant seeks to supplement the evidentiary record with the Affidavit of Sarah Quildon, affirmed April 3, 2024 (the “Quildon Affidavit”). The Quildon Affidavit attaches as exhibits email correspondence and laboratory reports. Exhibit “A” is an email chain between the Applicant and AWS Senior Inspector Carly Atrooshi, dated May 16, 2023, indicating that a nilgai was being treated for a skin condition and a male zebra had what appeared to be minor abrasions on his body that occurred during the zebra’s return to the Applicant. The laboratory reports attached as Exhibit “B”, dated May 3, 2023, indicate that a zebra tested positive for strongyles and one male lemur tested positive for giardia, while the rest tested negative.

[21] The sole issue on this motion is whether the court should permit the Applicant to supplement the evidentiary record with the Quildon Affidavit. CAWI submits it should not because (1) the Applicant does not meet the Keeprite test[^3]; (2) the proposed new evidence lacks the appropriate context such that it has limited probative value; (3) the laboratory reports were available to the Applicant before the Board released its reconsideration decision and should have been submitted to the Board; and (4) the Applicant is attempting to split his case.

[22] We agree that the motion at issue should not be granted.

[23] First, the Applicant does not meet the Keeprite test. Affidavit evidence is admissible on judicial review only in exceptional circumstances, namely, to provide background information, demonstrate an absence of evidence on an essential point, or to show a breach of procedural fairness that cannot be proved with reference to the record.[^4]

[24] The Applicant argues that the proposed new evidence demonstrates there was a breach of procedural fairness before the Board because it shows that some animals were sick or injured while in CAWI’s care and this was not disclosed to the Applicant prior to the hearing. This argument is untenable. The Exhibits to the Quildon Affidavit are dated May 2023 – nearly seven months after the Board’s hearing of the Applicant’s appeal on October 14 and 19, 2022 and over four months after the Board released its decision on December 30, 2022. The SOA costs at issue before the Board were for a time period up to July 19, 2022. The Applicant has offered no evidence indicating that alleged injuries/illnesses documented in Exhibits “A” and “B” existed during the relevant time period of the SOAs or Keep in Care Decisions at issue, and/or existed at the time of the hearing, and/or were not disclosed.

[25] At the hearing, CAWI produced evidence from veterinarians that were treating the animals while in its care, including their medical reports, which were current to the Board’s deadline for exchanging evidence in mid-September 2022. This included evidence that a male lemur had tested positive for giardia and that the male zebra had tested positive for strongyles, both shortly after being removed from the Applicant’s care. The Applicant chose not to cross- examine any of the veterinarians, chose not to seek additional disclosure, and made no arguments as to the significance of this evidence during the hearing.

[26] The proposed evidence does not show a breach of procedural fairness or an absence of evidence on an essential point. The Keeprite test is not met.

[27] The Applicant does not explain how a minor abrasion that a zebra suffered during the return process has any impact on the costs of care incurred almost a year prior.

[28] The Applicant’s argument that the Board’s Common Rules[^5] have resulted in breaches of procedural fairness overlooks Rule 9.3 which permits any party to seek an order for additional disclosure. The Applicant did not seek such an order.

[29] Second, the Applicant has failed to provide evidence from a veterinarian explaining the meaning of the proposed new evidence such that it is of limited probative value. He does not explain the significance of these test results or how they related to the costs of care incurred before July 2022 or the Keep in Care Decisions made in June and August 2022. This evidence does not establish that the animals were sick, injured, or in distress while in CAWI’s care or as a result of CAWI’s care during the relevant time period up to July/August 2022.

[30] The email chain in Exhibit “A” is also of limited probative value. The Quildon Affidavit is triple hearsay and provides no information about the nilgai’s skin condition or the zebra’s alleged abrasions.

[31] The Applicant has failed to show that any of the proposed new evidence is relevant or reliable for the purpose of demonstrating that the Board’s decision in unreasonable or that there was any breach of procedural fairness.

Did the absence of evidence render the decisions under review unreasonable?

[32] The Board accepted that the CAWI had the initial evidentiary burden to prove, on a balance of probabilities, that the charges reflected in the SOAs were reasonable and reflect the actual cost of the necessaries provided to relieve the distress of the removed animals. According to the Applicant, this burden was not met in two ways. First, there was no evidence to support the reasonableness of the charges in the SOAs and second, there was no evidence that the invoices attached to the SOAs were actually paid.

[33] There is no merit to either of these submissions. As the Board decision reflects, the AWS provided supporting invoices and details for the animal feed, animal care, training and enrichment, medicine, diagnostic assessment and treatment for the animals in care. There were also medical reports and affidavits from the veterinarians who treated the animals while they were in care. The veterinarians were made available for cross-examination and the Applicant chose not to exercise his right to cross-examination.

[34] With respect to the evidence of payment, the Affidavit of Inspector Atrooshi attached the relevant invoices, and attested to the fact that the expenses outlined in these invoices were actually incurred. At the hearing before the Board there was no suggestion by anyone, including the Applicant, that the CAWI had not paid the expenses it had incurred. Thus, it was reasonable for the Board to proceed on the basis that the expenses that the CAWI had incurred were paid.

Misapprehension of Evidence

[35] In the Initial Decision the Board found that the Applicant had failed to comply with previous orders. In his request for reconsideration, the Applicant advised the Board that there was no evidence of non-compliance with past orders. In its Reconsideration Decision the Board held that its error on this point was insignificant and would not have affected its decision.

[36] As explained 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. 100, it would be improper for a reviewing court to overturn a decision if the alleged flaw in the decision is “peripheral to the merits of the decision.”

[37] The Board’s finding that the Applicant’s compliance with previous orders was not central to its decision is a reasonable one, given the nature of the compliance demanded in the previous orders and the nature of the conditions that caused the CAWI to remove the animals. In the previous orders the Applicant was directed to do specific limited things to improve the conditions of the animals in his care – provide specific food, clean water etc. At the time of removal, the entire winter housing facility available for the animals in question was found to be unsafe and unsanitary. Essentially it would require rebuilding, or the animals would have to be placed in an alternative facility that was not available on the property. By August 2022, when the last Decision to Keep in Care was made, summer was ending and there was no evidence that there would be adequate winter living quarters for the animals.

[38] The Board was aware that the Applicant had made improvements to the Zoo and that these improvements were made in response to Orders. However, because of the lack of evidence of a plan to address the conditions of the animals when they were removed, the Board was not prepared to find that the fact that the Applicant had made improvements in response to Orders was enough to justify the return of the animals in care. This is clear from para. 33 of the Initial Decision, which reads:

[33] The Board recognizes that the Appellant has made some improvements to the physical environment for the animals, However, these improvements were in response to Orders and issues raised by the AWS through inspections. There is no evidence to indicate commitment to a proactive plan or the assurance that improvements will be made that will mitigate or limit the conditions and environment that underlies the animal’s distress including improved animal enclosures.

The Board’s alleged failure to consider the evidence of the Applicant’s expert

[39] The Applicant submits that the Board acted unreasonably when the Board failed to mention and, he alleges, to consider, the evidence of his expert, Dr. Michael DeGroot, DVM, in its Initial Decision and then to determine in its Reconsideration Decision that this evidence was irrelevant.

[40] The Applicant submits that it may have been open for the Board to reject Dr. DeGroot’s evidence, but that it was wrong for the Board to conclude that the evidence of Dr. DeGroot was irrelevant. He submits that Dr. DeGroot’s evidence was relevant in that it showed that the Applicant had taken steps to rectify identified problems at the Zoo, an important consideration when determining whether to uphold the CAWI’s Keep in Care Decisions.

[41] We do not accept those submissions.

[42] In its Reconsideration Decision, the Board acknowledged that while Dr. DeGroot’s Report may not have been referred to in the Initial Decision, that did not mean that his evidence had not been considered. Rather, that the Board had determined that the evidence was not relevant to the issue before the Board in that Dr. DeGroot’s Reports:

(a) “largely confirmed” the CAWI’s evidence of her observations of the animals on April 29, 2022, the day they were removed;

(b) related to animals that had not been removed;

(c) indicated that his clinic would be available to treat the animals, or refer them to the appropriate experts – evidence that did not address the reasons given by the CAWI for not returning the animals, such as whether winter housing would be available for the removed animals; and

(d) set out his attendance at the zoo “to observe proposed housing facilities for the possible return of the animals”.

[43] The Board found that the evidence of Dr. DeGroot did not provide any “specific evidence about whether the removed animals would be placed in distress if returned”, nor did it address the reasonableness of the amounts reflected in the SOAs.

[44] Administrative decision makers are presumed to have weighed and considered all the evidence unless it is proven otherwise. The fact that a piece of evidence is not mentioned does not mean that it was ignored: Arvan v. Canada (Citizenship and Immigration), 2024 FC 223, at para. 20. Only where a decision maker does not deal with evidence that “squarely contradicts” its reasoning and conclusions will that render the decision unreasonable: Arvan, at para. 21.

[45] We see no error or unreasonableness on the part of the Board in its determination that Dr. DeGroot’s evidence did not contradict the CAWI evidence in any meaningful way. His report from the removal date largely confirmed AWS findings that the barn was crowded and unsanitary. His report of the care he provided to removed animals was not relevant. The fact that he would be available to treat animals did not, as the Board found, address its conclusion that the Applicant had not taken the proactive steps necessary to ensure that the animals would not be in distress if they were returned. The same is true of his attendance to “observe proposed housing facilities”. Without more, this evidence does not meet the Board’s concern that there would be adequate facilities to house the animals during the winter if they were returned. His observations about proposed outdoor enclosures also did not address this concern as the facilities required were indoor facilities.

The Board’s alleged failure to consider the Applicant’s case law

[46] The Applicant submits that in its Initial Decision the Board failed to refer to any of the cases put forth by the Applicant. He submits that the rules of natural justice and procedural fairness dictate that the Board consider the cases put forth by the Applicant and reference them in its decision. The Applicant submits that, although in its Reconsideration Decision, the Board states its conclusion that the cases relied upon by the Applicant are distinguishable or irrelevant, it does not explain how or why it reached that conclusion, thereby depriving the Applicant of “the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Vavilov, at para. 127.

[47] We do not accept those submissions. As Vavilov makes clear, at para. 92, a reviewing court is not to expect administrative decisions to read like court decisions.

[48] First, there is no requirement on a tribunal to make reference to every case referenced by a party. Absent a submission that a particular case calls into question the reasonableness of the decisions at issue, it is not a reviewable error not to deal with caselaw. In any event, the Board did, in fact, make specific reference to cases raised by the Applicant, explaining why they were not applicable: see Reconsideration Decision, at paras. 22-37. The Applicant conceded that in assessing the reasonableness of the Board’s decisions we could consider the reasoning in both decisions to determine if together they demonstrated the hallmarks of reasonableness.

[49] In our view the Board provided adequate reasons for its conclusions concerning the applicability and relevance of the case law referenced by the parties and we find no breach of procedural fairness or lack of natural justice in the Board’s determinations and treatment of the case law it was asked to consider.

Costs

[50] As the successful party, CAWI shall be entitled to costs in the agreed upon amount of $10,000. As agreed, no costs shall be paid by or to the Animal Care Review Board.

Sachs J.

Backhouse J.

Sheard J.

Released: May 1, 2024

[^1]: Geddes v. Chief Welfare Inspector, 2022 ONACRB 23. [^2]: Reported at 2023 ONACRB 41. [^3]: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). [^4]: Windrift Adventures Inc v. Chief Animal Welfare Inspector, 2023 ONSC 4501 (Div. Ct.) at para. 34, citing Keeprite, at para.24. [^5]: Common Rules of Practice & Procedure for Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission.