Schnurr v. Canadian Tire Corporation, Limited, 2019 ONSC 5781

COURT FILE NO.: CV-19-612705

DATE: 2019-10-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SANDRA ROSE SCHNURR and CANADIANS FOR ANIMAL PROTECTION, Applicants

AND:

CANADIAN TIRE CORPORATION, LIMITED, HOME DEPOT OF CANADA INC., HOME HARDWARE STORES LIMITED, LOWE’S COMPANIES CANADA, ULC, and WAL-MART CANADA CORP., Respondents

BEFORE: Sossin J.

COUNSEL: Sandra Rose Schnurr, for the Applicants

Alexandra Shelley, Counsel for the Respondent Canadian Tire Corporation, Limited

Dana M. Peebles and Caroline Humphrey, Counsel for the Respondent Home Depot of Canada Inc.

Peter Choe, Counsel for Respondent, Home Hardware Stores Limited

Sinziana Hennig, Counsel for Respondent Lowe’s Companies Canada, ULC

Tom Macmillan, Counsel for Respondent Wal-Mart Canada Corp.

HEARD: July 25, 2019

REASONS FOR JUDGMENT

OVERVIEW

[1] The applicant not-for-profit animal welfare and advocacy organization, Canadians for Animal Protection (“CAP”), and its founder and spokesperson, Sandra Rose Schnurr, seek a declaration that the use of glue traps by members of the public is unlawful, as they cause extreme and prolonged suffering, which is unnecessary in light of the other methods for controlling rats and mice. The applicants also seek an injunction against certain respondent retailers who sell glue traps.

[2] The respondent retailers, Canadian Tire Corporation, Limited, Home Depot of Canada, Home Hardware Stores Limited, Lowe’s Companies Canada, ULC, and Wal-Mart Canada Corp. (collectively, the “respondents”), together bring this motion under Rules 21 and 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules of Civil Procedure”), to strike out the application by Ms. Schnurr and CAP seeking a declaration that the use of glue traps violates the animal cruelty provisions in the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”), and the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (“OSPCA Act”).

[3] The basis for the motion to strike is that the applicants have no standing to bring this application, and that it is as an abuse of process to seek to impose criminal liability for cruelty to animals on unnamed members of the public for the use of glue traps, or restrain retailers from selling glue traps on this basis.

[4] For the reasons that follow, I find that the applicants do not meet the threshold for public interest standing to seek the declaratory remedy set out in the application relating to alleged breaches of the Criminal Code and OSPCA Act.

[5] As a result of this finding, I do not need to consider whether the application is an abuse of process.

THE APPLICATION

[6] This application does not arise on a particular factual occurrence. The applicants do not allege that any specific person or people have bought or used glue traps or directly encountered animals caught in glue traps in breach of the Criminal Code and OSPCA Act.

[7] For purposes of the motion to strike the application, it is important to set out the entirety of the relief sought under the notice of application, dated January 16, 2019, and the grounds for that relief, which are as follows:

1. The applicant make application for:

a. A declaration that the use by members of the public of certain pest control products for rats and mice known as glue traps, contravenes sections 445.1 and 446 of the Criminal Code and sections 11.1 and 11.3 of the Ontario Society for the Prevention of Cruelty to Animals Act;

b. an Order restraining the respondents, their subsidiaries, related companies, agents, successors and assigns from continuing the retail sale of the pest control products for rats and mice known as glue traps;

c. An Order that there be no costs for this application; and

d. Such further and other relief as this Honourable Court may deem just.

2. The grounds of the application are:

a. The respondents sell to members of the public pest control products for rats and mice known as glue traps;

b. An animal caught by a glue trap experiences extreme and prolonged suffering before it finally dies from starvation, dehydration or suffocation;

c. The applicants have requested that the respondents cease the retail sale of the said products, but the respondents have failed to comply with such requests; and

d. Sections 445.1 and 446 of the Criminal Code, R.S.C. 1985, c. C-46 and sections 11.1 and 11.3 of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 will be relied upon.

RELEVANT LEGISLATION

[8] In order to consider the nature of the applicants’ application for declaratory relief, it is necessary to consider the provisions under the Criminal Code and OSPCA Act which the applicants allege have been breached by the use of glue traps.

[9] Sections 445.1 and 446 of the Criminal Code, provide:

Causing unnecessary suffering

445.1 (1) Every one commits an offence who

(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird;

(b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds;

(c) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it;

(d) promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated; or

(e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d).

Punishment

(2) Every one who commits an offence under subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.

Failure to exercise reasonable care as evidence

(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.

Presence at baiting as evidence

(4) For the purpose of proceedings under paragraph (1)(b), evidence that an accused was present at the fighting or baiting of animals or birds is, in the absence of any evidence to the contrary, proof that he or she encouraged, aided or assisted at the fighting or baiting.

Causing damage or injury

446 (1) Every one commits an offence who

(a) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed; or

(b) being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it.

Punishment

(2) Every one who commits an offence under subsection (1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction and liable to a fine not exceeding five thousand dollars or to imprisonment for a term of not more than six months or to both.

Failure to exercise reasonable care as evidence

(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect.

[10] Sections 11.1 and 11.2 of the Ontario Society for the Prevention of Cruelty to Animals Act, provide:

Standards of care and administrative requirements for animals

11.1 (1) Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care, and the prescribed administrative requirements, with respect to every animal that the person owns or has custody or care of. 2015, c. 10, s. 2.

Exception

(2) Subsection (1) does not apply in respect of,

(a) an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry; or

(b) a prescribed class of animals or animals living in prescribed circumstances or conditions, or prescribed activities. 2008, c. 16, s. 8.

Same

(3) Subsection (1) does not apply to,

(a) a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act;

(b) a person acting under the supervision of a veterinarian described in clause (a); or

(c) a person acting under the orders of a veterinarian described in clause (a), but only in respect of what the person does or does not do in following those orders. 2008, c. 16, s. 8.

Prohibitions re distress, harm to an animal

Causing distress

11.2 (1) No person shall cause an animal to be in distress. 2008, c. 16, s. 8.

Permitting distress

(2) No owner or custodian of an animal shall permit the animal to be in distress. 2008, c. 16, s. 8.

ANALYSIS

[11] The respondents move to strike the application under Rules 21 and 25 of the Rules of Civil Procedure. Under Rule 14.09, these provisions apply to applications as well as actions; see, for example, Martin v. Ontario, [2004] O.J. No. 2247 at paras. 6-10, appeal dismissed on consent [2005] O.J. No. 4071 (C.A.).

[12] Under Rules 21 and 25, the application should be struck out only if and to the extent that it discloses no reasonable cause of action, or if the application is otherwise an abuse of the Court process.

[13] The burden is on the respondents, as the moving party, to show that “it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action…Another way of putting the test is that the claim has no reasonable prospect of success.”; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17.

[14] The respondents’ motion to strike raises three questions:

a. Do the applicants have standing?

b. Is the application an abuse of process?

c. Should the application in be struck?

[15] I discuss each issue in turn.

A. Do The Applicants Have Standing?

[16] Where it can be shown that an applicant lacks standing to obtain the remedy sought, then the application or the portion of it dealing with the remedy sought will be struck under Rules 21 and 25.

[17] There is no suggestion that the applicants have direct standing in this matter, nor do they seek “private” standing. Therefore, the question is whether the applicants are eligible for discretionary public interest standing.

[18] The applicants rely on the Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524 (“Downtown Eastside”) to argue that they meet the threshold for public interest standing.

[19] Under the threshold for discretionary public interest standing, a party must establish that,

(1) The case raises a serious and justiciable issue;

(2) The party seeking standing has a genuine interest in the issue ; and

(3) The proposed application is a reasonable and effective way for the issue to come to Court.

[20] Before determining if this threshold is met in the context of the application before me, it is necessary to address a threshold issue of whether discretionary public interest standing is available to challenge private action (in this case, the use by members of the public of glue traps sold by the respondent retailers) on the basis that this action infringes the rights of the animals who may be harmed by the glue traps. In other words, I must consider whether discretionary public interest standing is available where, as here, accountability over executive action is not at issue.

[21] The respondents argue that discretionary public interest is only available to challenge state authority or the exercise of that authority and that the application should be struck on this basis.

[22] The applicants state that they seek public interest standing in order to advance animal rights as opposed to public rights. They state (at para. 57 of their factum):

Sections 445 and 446 of the Criminal Code and sections 11.1 and 11.2 of the OSPCA Act confer upon the animals themselves the right to be free of wilfully caused unnecessary pain, suffering, or injury, or of being wilfully left in distress, or deprived of food, water, shelter and care. These rights, though very restricted, are intended for the protection of the animals and they accrue to the animals, not to the public at large. They are not “public rights”. They are animal rights.

[23] Given that humans cannot act as litigation guardians for animals, and that animals cannot bring litigation to the Court themselves, the applicants describe themselves as “the next best choice” (at para. 62 of their factum) to bring issues of animal rights to the Court.

[24] The applicants further rely on Chief Justice Fraser in Reece v. Edmonton (City), 2011 ABCA 238 (“Reece”), at para. 70, who stated that, “if animals are to be protected in any meaningful way, they, or their advocates, must be accorded some form of legal standing at law.” That case involved a challenge to decisions made by the Edmonton Zoo in relation to an elephant named Lucy.

[25] While Fraser C.J. was writing in dissent in Reece on the issue of abuse of process on which the majority of the Alberta Court of Appeal struck the originating notice, she also addressed public interest standing, on which the majority declined to comment. Fraser C.J. justified her finding of standing on the basis of the fact that the Edmonton Zoo, owned and operated by the City of Edmonton, was a public body whose authority and conduct were being challenged. For Fraser C.J., the issue raised in that case was “the limits of the government’s authority.” (at para. 174).

[26] A similar point was raised in the subsequent litigation over the treatment of Lucy, in Zoocheck Canada Inc. v. Alberta (Minister of Agriculture and Forestry), 2019 ABCA 208. The majority of the Alberta Court of Appeal denied public interest standing to the organization seeking to impugn Edmonton Zoo’s permit to operate under Wildlife Act, RSA 2000, c W-10. O’Ferrall J.A., writing in dissent on the question of public interest standing, concluded that standing was appropriate to ensure accountability for “the unlawful treatment of animals by government.” She elaborated (at paras. 54-55):

[54] This appeal raises the important question of when, if ever, citizens or advocacy groups should be granted public interest standing to seek judicial review of a governmental decision that, arguably, contravenes animal welfare laws. A shift in attitudes regarding the acceptable treatment of animals has led Alberta to legislate positive duties of care towards animals. However, this protection will remain ineffective so long as citizens are unable to challenge alleged unlawful treatment of animals by government. Efforts by citizens or advocacy groups to uphold those laws ought not to be silenced through the denial of standing. If animals are to be protected in any meaningful way, they, or their advocates, must be accorded some form of legal standing.

[55] Denying the appellants’ public interest standing suggests the government’s control over animals in its care is immune from review and organizations attempting to protect those animals’ interests are without recourse. This cannot be the case. The executive branch of government should not be immune from scrutiny merely because human interests are unaffected. Courts cannot stand by when animal protection laws are ignored. Upholding the rule of law against the executive is the dominant rationale for granting public interest standing. (Emphasis added.)

[27] Finally, in Alberta’s Free Roaming Horses Society v. Alberta, 2019 ABQB 714, B.A. Millar J. made a similar point in granting public interest standing to an organization dedicated to preserving and protecting Alberta’s wild horses. While ultimately dismissing the group’s application on limitation period grounds, Millar J. first held that the organization met the test for public interest standing set out by Downtown Eastside, holding (at paras.19-20):

I have decided to grant the Applicants standing to bring their application. There was no challenge of Applicants’ genuine interest for Alberta’s wild horses. Mr. Ticknor’s Affidavit shows the multiple efforts made by he and the society to determine whether the Minister issued an opinion in support of the section 9 land designations. Further, there does not appear to be another way for this matter to come before the court, considering that the party with the most at stake in this case are the horses themselves. There do not appear to be any current license holders, so that is not of concern here either.

I also agree with the Applicants that determining whether the government has complied with the law and is acting with authority is a serious justiciable issue: Reece, at paras. 173-174 (Fraser C.J., dissenting). (Emphasis added.)

[28] While nearly all the existing case law on public interest standing involves challenges to the constitutionality or legality of state action in one form or another, the Supreme Court also has found public interest standing appropriate where the decision in question affects private parties. In Delta Air Lines Inc. v. Lukacs [2018] 1 SCR 6, 2018 SCC 2 (“Delta”) which involved private rights, Chief Justice McLachlin, writing for the Court, held that the Canadian Transportation Agency failed to apply the appropriate test for standing in relation to a party who wished to challenge its exercise of discretion (at paras. 16-19):

[16] … The Agency recognized this Court’s direction in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 36, that these factors are not technical requirements and must be weighed cumulatively. Nonetheless, the Agency proceeded to deny standing based on a rigid application of the second factor of the test. It concluded that standing must be denied because the complaint was “not related to the constitutionality of legislation or to the non-constitutionality of administrative action” (para. 74).

[17] This brings us to the first problem: the Agency applied a test for public interest standing that could arguably never be satisfied. One of the Agency’s functions is the regulation of air carriers, which are private, non-governmental actors. Any valid complaint against an air carrier would impugn the terms and conditions established by a private company. A complaint regarding these terms and conditions can never, by its very nature, be a challenge to the constitutionality of legislation or the illegality of administrative action. In sum, the Agency suggests the availability of public interest standing to bring a complaint of this type and then, in the same breath, precludes any possibility of granting it. The imposition of a test that can never be met could not be what Parliament intended when it conferred a broad discretion on this administrative body to decide whether to hear complaints.

[18] The Agency’s application of the test is also inconsistent with the rationale underlying public interest standing. In determining whether to grant public interest standing, courts must take a “flexible, discretionary approach”: Downtown Eastside, at para. 1. This requires balancing the preservation of judicial resources with access to justice: ibid., at para. 23. The whole point is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door. As the Agency rightly put it, the objective is to hear from those plaintiffs or complainants “with the most at stake” (para. 52). The Agency’s decision in this case, however, exhibits no balancing; it does not allow those with most at stake to be heard. Rather, it uses public interest standing simply to bar access. Downtown Eastside makes clear that at least some plaintiffs will be granted public interest standing. The Agency’s decision, in contrast, allows no complainants to have public interest standing. The Agency did not maintain a flexible approach to this question and in so doing unreasonably fettered its discretion. While the public interest standing test was designed to protect courts’ discretion, the Agency eliminated any of its own discretion under this test.

[19] The second problem with the decision is that the impact of the tests for private and public interest standing, applied as they were in this decision, cannot be supported by a reasonable interpretation of how the legislative scheme is intended to operate. Applying these tests in the way the Agency did would preclude any public interest group or representative group from ever having standing before the Agency, regardless of the content of its complaint. …

[29] Delta may be distinguished from the circumstances of this case. In Delta, the Court was considering whether a public agency’s application of the public interest standing threshold was consistent with its own governing legislation and the scope of its statutory discretion.

[30] What was important to the Supreme Court in Delta, however, was ensuring some mechanism to review the actions taken under a statutory scheme, even if affecting only private rights, and to be vigilant to ensure that public interest standing is not used as a complete bar to access. These principles have application in this case as well.

[31] Individuals and groups seeking to advance animal welfare or animal rights cases have faced particularly difficult challenges in meeting the threshold for public interest standing.

[32] In Greenpeace Foundation of British Columbia v. British Columbia (Minister of the Environment) (1981), 1981 CanLII 265 (BC SC), 122 D.L.R. (3d) 179 at paras. 13-15, for example, the B.C. Supreme Court dismissed an application for an injunction to prevent the importation of killer whales into British Columbia. The Court held that the applicant had no right to seek injunctive relief to protect the public at large, which was a function reserved to the Attorney General.

[33] In Cassells v. University of Victoria, 2010 BCSC 1213, the B.C. Supreme Court dismissed an injunction to restrain the University of Victoria from a rabbit culling program, which was alleged to violate B.C.’s Wildlife Act. Because the applicant in that case was not challenging the validity of the Act or discretionary exercises of authority, the Court held that she did not merit public interest standing.

[34] These decisions occurred prior to the more flexible and generous approach to public interest standing in Downtown Eastside. In Downtown Eastside, Cromwell J., writing for the Supreme Court, emphasized that the elements of the test for discretionary public interest standing are interrelated (at para. 20):

My view is that the three elements identified in Borowski are interrelated factors that must be weighed in exercising judicial discretion to grant or deny standing. These factors, and especially the third one, should not be treated as hard and fast requirements or free-standing, independently operating tests. Rather, they should be assessed and weighed cumulatively, in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes.

[35] Later in the judgment, Cromwell J. returned to this theme, and stated (at para. 36), “It follows from this that the three factors should not be viewed as items on a checklist or as technical requirements. Instead, the factors should be seen as interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes.”

[36] Subsequent to Downtown Eastside, it is clear the scope of public interest standing for groups seeking to litigate questions of animal rights and animal welfare has been broadened. For example, in a dispute with respect to whether the British Columbia Supreme Court should grant a declaration that a section of the B.C. Wildlife Act was breached by an officer euthanizing a bear cub, the parties agreed that the organization seeking the declaration met the test for discretionary public interest standing; The Association for the Protection of Fur-Bearing Animals v. British Columbia (Minister of Environment and Climate Change Strategy), 2017 BCSC 2296, at paras.11-12, aff’d without mention of standing, 2018 BCCA 240. In the result, the Court concluded that the Wildlife Act authorized an officer to euthanize the bear cub and so the declaration sought was not granted.

[37] In light of the flexible and purposive approach to discretionary public interest standing advanced in Downtown Eastside, I would not preclude the applicants from being granted public interest standing merely because they do not challenge state authority or how a statutory decision-maker has exercised its authority. Unless discretionary public interest standing is understood to include proceedings against private parties, important questions of animal rights and animal welfare may be barred from ever reaching the Courts.

[38] While not precluded from seeking public interest standing on the basis, the applicants must still establish that they meet the threshold for public interest standing. With these broad principles in mind, and returning to the three criteria for public interest standing set out in Downtown Eastside, I must now consider whether the applicants have established:

(1) First, that the application raises serious and justiciable issues;

(2) Second, that the applicants have a genuine interest in those issues; and

(3) Third, that the application is a reasonable and effective way for those issues to reach the Court.

1. Is There A Serious And Justiciable Issue?

[39] In my view, the issue of whether animal cruelty provisions in the Criminal Code and the OSPCA Act are violated by the use of glue traps is a serious issue.

[40] The question of whether the application raises a justiciable issue relates to the substance of the issue, and to whether the enforcement of the animal cruelty provisions in the Criminal Code and OSPCA Act are appropriate matters for the Court to decide.

[41] The test for justiciability should be distinguished from the test for abuse of process. Many issues may be justiciable, even though a litigant might be precluded from pursuing them because they are shown to constitute an abuse of process. For example, in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77, 2003 SCC 63, the Supreme Court found an attempt to re-litigate a criminal matter through a subsequent civil proceeding was an abuse of process, though it was never suggested in that case that the subject matter of the proceeding was not justiciable.

[42] In light of this distinction, in my view, the question of whether the use of glue traps violates the Criminal Code or OSPCA Act is appropriate for a court to decide, and therefore, is a justiciable matter.

2. Do The Applicants Have A Genuine Interest In The Issue?

[43] With respect to the second aspect of the public interest standing threshold, the applicants clearly have demonstrated a genuine issue in this matter. The applicant, CAP, and its founder, the applicant Sandra Rose Schnurr, are dedicated to advocacy for animal welfare and animal rights.

[44] I find that the applicants meet the second aspect of the threshold for public interest standing.

3. Is The Proposed Application A Reasonable And Effective Way To Bring The Issue Before The Court?

[45] The third aspect of the threshold calls for an analysis of whether this application is a reasonable and effective way to bring the matter to the courts.

[46] In Downtown Eastside, Cromwell J. observed that this aspect in the past sometimes has been applied rigidly. He stated (at para. 44), “It would be better, in my respectful view, to refer to this third factor as requiring consideration of whether the proposed suit is, in all of the circumstances, and in light of a number of considerations I will address shortly, a reasonable and effective means to bring the challenge to court. This approach to the third factor better reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area.”

[47] Cromwell J. further cautioned that this aspect of the analysis requires a practical and pragmatic approach (at para. 51):

The court should turn its mind to whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. Courts should take a practical and pragmatic approach. The existence of other potential plaintiffs, particularly those who would have standing as of right, is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities. Where there are other actual plaintiffs in the sense that other proceedings in relation to the matter are under way, the court should assess from a practical perspective what, if anything, is to be gained by having parallel proceedings and whether the other proceedings will resolve the issues in an equally or more reasonable and effective manner. In doing so, the court should consider not only the particular legal issues or issues raised, but whether the plaintiff brings any particularly useful or distinctive perspective to the resolution of those issues. As, for example, in McNeil, even where there may be persons with a more direct interest in the issue, the plaintiff may have a distinctive and important interest different from them and this may support granting discretionary standing. (Emphasis added.)

[48] In the context of applying the Criminal Code and OSPCA Act to the use of glue traps, in my view, there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for the determination of whether the use of glue traps breaches of these provisions.

[49] One of the alternative means would be a process which includes police and/or OSPCA investigations and prosecutions under the Criminal Code and/or OSPCA Act by the Crown. Further, private parties can swear an information on reasonable and probable grounds about an alleged criminal act. This path for private parties to initiate criminal proceedings is expressly permitted under the Criminal Code for both indictable and summary conviction offences, although the Attorney General then has the power to intervene to take over or stay the proceedings once initiated.

[50] Indeed, this path was pursued by an animal protection organization under the OSPCA Act in Podolsky v. Cadillac Fairview Corp., 2013 ONCJ 65 (“Podolsky”). In Podolsky, an information sworn by Podolsky, an employee of Ecojustice, against Cadillac Fairview and two other corporate defendants, alleged violations of s. 11.2(1) of the OSCPA Act, s. 14(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and s. 32(1) of the Species at Risk Act, S.C. 2002, c. 29, following the apparent deaths of hundreds of birds in collisions against the windows of the Yonge Commercial Centre, an office complex in a wooded ravine. Green J. of the Ontario Court of Justice concluded that the offence under the OSPCA Act did not apply because the corporate defendants had not caused the birds to be in distress (the offence under s. 11.2(1)); at most, they had permitted the birds to be in distress, but that is an offence only in cases where the accused has the care or custody of the animal (s. 11.2(2)). Green J. also expressed some doubt as to whether the OSPCA Act should apply to animals in the wild.

[51] Cases such as Podolsky demonstrate that allegations of violations of s.11 of the OSPCA Act may indeed be brought directly by private parties through this process; see also Walters v. Red River Exhibition Association, 1997 CanLII 22799 (MB QB), involving an information sworn by a private party in relation to s.446 of the Criminal Code.

[52] Returning to Chief Justice Fraser’s dissenting reasons in Reece, in which she found the applicants were entitled to public interest standing, she relied on the fact that the party seeking standing already had pursued other routes to investigate or prosecute the Edmonton Zoo with respect to the treatment of Lucy. In this case, by contrast, the applicants have yet to make complaints under the Criminal Code and OSPCA Act to the bodies responsible for enforcing those statutes, nor has the option of swearing a private information been pursued.

[53] In their oral submissions, the applicants acknowledged that they have not contacted the police with respect to the possible violation of ss. 445 and 446 of the Criminal Code by the use of glue traps, nor have they attempted to lay a private information themselves to prosecute the respondents under the Criminal Code.

[54] The applicants state (at para. 78 of their factum), “It is unrealistic to expect the police and the Attorney General to become involved in prosecuting the Respondents under the Criminal Code or the OSPCA Act.”

[55] The applicants do not provide a basis for this belief, and there are certainly instances of prosecutions which have been brought under the provisions at issue. Indeed, the applicants refer to the successful prosecution of a case involving the torture of a mouse under the provisions of the Criminal Code in their own submissions; R. v. Jordan Dale Lucas [unpublished reasons for sentence of Judge Kitchen, Provincial Court of British Columbia, dated May 29, 2013].

[56] If, as alleged, the use of glue traps constitutes a breach of the Criminal Code prohibition on cruelty to animals, it is not clear why it would be unrealistic to expect the police to investigate, and if substantiated, the Crown to prosecute such breaches if brought to their attention.

[57] With respect to the OSPCA, the applicants had an email exchange with a communications officer with the organization. Ms. Schnurr wrote to the OSPCA’s Associate Director, Communications, in an email dated February 1, 2019:

Dear Sir,

We are a small animal welfare organization conducting research respecting the use of rodent glue traps.

Would you kindly advise whether or not the OSPCA has ever laid charges under the Criminal Code or any other statute in connection with the sale or use of rodent glue traps?

And has the OSPCA ever taken other steps to try to discontinue the sale or use of these products?

Thank you for your anticipated response.

[58] The Associate Director, Communications, wrote back that same day:

Good afternoon Sandra. Thanks for reaching out. The Ontario SPCA does not the support the use of any product that puts animal welfare in jeopardy. Wherever possible, we work to educate the public on how to co-exist peacefully with wildlife and how to minimize negative encounters with wildlife.

Currently, the use of sticky paper-type products is not prohibited under Ontario law. As a non-profit organization we have to be very careful not to participate in lobbying as we risk losing our charitable status … We encourage you to continue to voice your concerns to your local MP and MPP. As they are your voices in our governments.

Thank you for your commitment to animal welfare.

[59] I do not take this exchange to represent a decision by the OSPCA not to investigate the use of glue traps as a potential violation of the OSPCA Act. The letter from Ms. Schnurr was not in itself a complaint, and did not request that the OSPCA investigate the possible violation of the OSPCA Act. Rather, Ms. Schnurr’s email sought information for what she characterized as “research” and did not include details on the use of glue traps included in this application as a basis for the argument that the use of these products breaches the OSPCA Act.

[60] In any event, the applicants do not argue that the OSPCA is not willing to investigate glue traps if a complaint were made, but rather that the OSPCA is not undertaking any enforcement powers under the Act. In their factum, the applicants state (at para. 76):

The Ontario Society for the Prevention of Cruelty to Animals (“the OSPCA”), the body mandated by legislation to enforce animal protection laws in Ontario, has never taken steps to prevent the retail sale of glue traps and currently will not take steps to enforce any animal protection laws. Its enforcement powers were declared unconstitutional by the Ontario Superior Court in Bogaerts v. Attorney General for Ontario, and even though that declaration of invalidity was suspended until January 1, 2020, the OSPCA refuses to exercise its enforcement powers in the meantime. (Emphasis in original) (footnotes omitted)

[61] The case referenced by the applicants, Bogaerts v. Attorney General of Ontario, 2019 ONSC 41 resulted in a suspended declaration of invalidity of certain provisions of the OSPCA Act relating to the OSPCA’s enforcement powers. These restrictions have not yet come into place.

[62] Both the applicants and respondents offered affidavit and exhibit evidence in relation to the current state of enforcement of the OSPCA Act. While broader, systemic animal welfare reform in Ontario appears to be on the horizon in 2020, there is no indication that the enforcement of the animal cruelty prohibitions in the OSPCA Act has been suspended in the interim. The transitional developments relating to the OSPCA raised both by the applicants and respondents, while matters of public record, are not relevant to the issue of public interest standing, as the OSPCA Act itself ensures no gap in enforcement.

[63] Section 11(3) of the OSPCA Act provides:

11(3) In any part of Ontario in which the Society or an affiliated society does not function, any police officer having jurisdiction in that part has and may exercise any of the powers of an inspector or agent of the Society under this Act.

[64] Because the police are expressly authorized to enforce the provisions of the Act wherever the OSPCA does not function in this role, even if the activities of the OSPCA in some or all of the Province were curtailed, enforcement of the Act would continue.

[65] Finally, the applicants argue that they have not pursued complaints with the police or OSPCA because they are not seeking to enforce the Criminal Code and OSPCA Act in the same way as other enforcement bodies. They do not seek a conviction or to impose any penal sanction on members of the public for violating these provisions. Rather, the applicants seek only a declaratory remedy from this Court that the use of glue traps constitutes animal cruelty within the meaning of these provisions.

[66] The distinction between methods of enforcement of the Criminal Code and OSPCA Act may be significant for the applicants, but in my view, it does not alter the conclusion that a declaratory application is not a reasonable and effective means by which to establish whether the use of glue traps has violated the Criminal Code or OSPCA Act. The consequences of a finding that these penal and quasi-penal provisions have been violated would be a serious outcome for all consumers who use glue traps, as well as for the respondents, irrespective of the specific remedies sought.

[67] Courts in Canada consistently have declined declarations sought by parties seeking to privately prosecute people under the Criminal Code through a civil proceeding. For example, in R. v. Shore Disposal Ltd. (1976), 1976 CanLII 1235 (NS CA), 16 N.S.R. (2d) 538 (C.A.) the Nova Scotia Court of Appeal stated that, “the Court, in proceedings where the plaintiffs are virtually private prosecutors, should not grant a declaration that the defendant has committed an offence.” (at para. 24) A similar point was made by this Court in London Health Sciences Centre v. K (R) (Litigation Guardian of) (1997), 1997 CanLII 14487 (ON SC), 152 D.L.R. (4th) 724 at para. 18 (Ont. Gen Div.).

[68] It is important, in my view, to reiterate that this is not a case where the denial of public interest standing will mean that potential breaches of the Criminal Code and OSPCA Act will have no way to reach the Court, or where the lawfulness of the use of glue traps will not reach the courts. Such a conclusion would be premature. Rather, various paths exist to bring this serious issue to Court which have yet to be pursued.

[69] For example, the applicants or other interested parties could make complaints against specific members of the public who use glue traps, or the respondents who sell them, for the breach of the Criminal Code or OSPCA Act directly to the police or the OSPCA, respectively, or swear a private information against members of the public who use glue traps and/or the respondents, or bring a civil action on private law grounds against the respondents or others involved in the design, manufacture, marketing, sale and use (or misuse) of glue traps. These potential ways to bring animal rights and animal welfare issues to Court are not just “theoretical possibilities,” but practical and pragmatic ways in which to challenge the use and/or sale of glue traps. Further, these alternative paths have the benefit of specific factual contexts against which to assess lawfulness of the use and/or sale of glue traps.

[70] Further, in my view, the absence of the Attorney General’s potential involvement in litigating these alleged breaches of the Criminal Code and OSPCA Act would preclude a valuable and necessary public interest perspective on the interpretation and application of these statutory provisions from consideration. As the Supreme Court stated in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at p. 616:

… the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. (…)

[71] Finally, if members of the public were subject to investigation and prosecution under the Criminal Code and/or the OSPCA Act for the use of glue traps, they would be able to avail themselves of the procedural protections and Charter protections which form part of the enforcement of penal and quasi-penal powers, including the presumption of innocence and standard of proof of beyond a reasonable doubt. These rights and protections are not available in the context of an application for a declaration.

[72] Granting public interest standing to the applicants to seek declaratory relief for breaches of the Criminal Code or OSPCA Act by the use of glue traps, without any involvement of those who actually are alleged to use glue traps in violation of these statutes, or any involvement of the authorities charged with the enforcement of these statutes, would not be a reasonable and effective means for these matters to come to Court.

Conclusion on Public Interest Standing

[73] After the application of a flexible and purposive approach to public interest standing as directed in Downtown Eastside, I find the applicants have not met the threshold for public interest standing with respect to the declaratory remedy sought.

[74] In light of this finding, I do not need to address the applicants’ proposed amended notice of application, which seeks a declaration that the respondents are committing criminal acts under 21(1)(a) and (b) of the Criminal Code, by selling glue traps to the public which aids those members of the public who use glue traps to breach the Criminal Code. The applicants would lack standing to include this amended declaratory relief in their application for the same reasons as those set out above.

[75] This finding on public interest standing, however, does not address the question of whether the applicants could be granted public interest standing to pursue an injunction against the sale of glue traps by the respondents on other grounds.

4. Is The Application An Abuse Of Process?

[76] Because I have found the applicants have not met the test for public interest standing, it is not necessary for me to address the abuse of process issue.

[77] Additionally, certain concerns raised by the respondents in relation to the applicants’ evidence, which includes evidence alleged to be inadmissible for hearsay, and the purported introduction of expert evidence which has not complied with the Rules of Civil Procedure, also are not necessary to address, given the outcome of this motion.

5. Should The Application In Be Struck?

[78] In light of my finding that the applicants lack standing to seek a declaration that the use of glue traps by members of the public breaches sections 445.1 and 446 of the Criminal Code and sections 11.1 and 11.3 of the OSPCA Act, the respondents’ motion to strike the application is granted to the extent that paragraphs 1(a) and 2(d) of the notice of application are struck, without prejudice to the possibility of amendment to the application or bringing a fresh application.

[79] The respondents are not seeking their costs for this motion, and I agree that costs would not be appropriate.

Sossin J.

Released: October 10, 2019