Court File and Parties

Court File No.: CV-24-00000049-0000

Date: October 1, 2025

Ontario Superior Court of Justice

Between:

Walter Ray and Gwenda Ray Plaintiffs

– and –

His Majesty the King in Right of Ontario, The Chief Animal Welfare Inspector, Paula Milne, Daniel Pazder, Scott Brown, Allison Green, Joshua Matson, Rodney Braun, Michael Draper and Dr. Bruce Robertson Defendants

Counsel:

Robert Scriven and Phillip Behm, for the Plaintiffs

Mark Wiffen, for the Defendants

Heard: April 3, 2025, at Peterborough

S.T. Bale J.

Introduction

[1] Walter Ray and Gwenda Ray are cattle farmers. Their claims in this action include a claim against the Crown, and officers and employees of the Crown, for misfeasance in public office for things done in the exercise or intended exercise of the officers' and employees' powers, duties and functions. In particular, they seek to hold the Crown liable for acts or omissions of officers and employees of the Animal Welfare Services, Ministry of the Solicitor General.

[2] On this motion, the plaintiffs request leave to proceed with the action. Leave is required because the Crown Liability and Proceedings Act, 2019 provides that where a proceeding against the Crown or an officer or employee of the Crown includes a claim for misfeasance in public office or a tort based on bad faith, leave to proceed is required; and unless and until leave is granted, the proceeding is deemed to have been stayed in respect of all claims made in the proceeding. Before granting leave, the court must be satisfied that the proceeding is brought in good faith and there is a reasonable possibility that the claims requiring leave will be resolved in the claimant's favour.

[3] In November 2021, an Animal Welfare Services inspector issued a compliance order requiring the plaintiffs "to address herd health, provision of food and water, provision of bedding, addressing mud and feces preventing access to water troughs, and debris on the ground."

[4] In December 2021, the inspector made an order for the removal of the cattle for failure to comply with the November compliance order. About one-half of the plaintiffs' herd of approximately 200 cattle was removed from the farm that day. An attempt to complete the removal the following day was unsuccessful.

[5] The plaintiffs allege that the removal was carried out unlawfully and claim damages for the loss of their livelihood. For the following reasons, I am satisfied that this action is brought in good faith and that there is a reasonable possibility that the claims requiring leave will be resolved in the plaintiffs' favour. Leave to continue the proceeding is therefore granted.

Applicable Legislation

Provincial Animal Welfare Services Act, 2019

[6] Under s. 30 of the Provincial Animal Welfare Services Act, 2019 (PAWS Act), an animal welfare inspector who has reasonable grounds to believe that an animal is in distress may order the owner of the animal to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress.

[7] Under s. 31 of the Act, an animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of relieving its distress, where an order respecting the animal has been made under s. 30 and the order has not been complied with.

Crown Liability and Proceedings Act, 2019

[8] Under s. 17 of the Crown Proceedings and Liability Act, 2019, a claim against the Crown that includes a claim for misfeasance in public office or other tort based on bad faith, for anything done in the exercise of an officer or employee's duties or functions, requires leave of the court and, unless and until leave is granted, is deemed to have been stayed in respect of all claims in the proceeding from the time that it is brought.

[9] On a motion for leave, plaintiffs are required to serve and file an affidavit setting out a concise statement of the material facts on which they intend to rely, and an affidavit of documents disclosing all documents relevant to any issue in the proceeding. The defendants may serve and file an affidavit setting out a concise statement of the material facts on which they intend to rely but are not required to do so. The defendants are not subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave.

[10] Before granting leave, the court must be satisfied that (a) the proceeding is being brought in good faith; and (b) there is a reasonable possibility that the claim or claims requiring leave, if allowed to proceed, would be resolved in the claimant's favour.

[11] If leave is not granted for any claims which require leave, those claims are rendered a nullity. However, if the proceeding also includes claims for which leave is not required, the stay is lifted with respect to those claims.

Interpreting the Requirements of Section 17 of the CLPA

Similar Leave Requirement Under Section 138.8 of the Securities Act

[12] In interpreting the requirements of s. 17 of the CLPA, courts have referred to cases decided under a similar leave requirement in s. 138.8 of the Securities Act which provides that no action may be commenced against a publicly traded corporation for breach of its continuous disclosure obligations without leave of the court. The court is to grant leave only where it is satisfied that (a) the action is being brought in good faith; and (b) there is "a reasonable possibility that the action will be resolved at trial in favour of the plaintiff."

[13] In Theratechnologies v. 121851 Canada Inc., 2015 SCC 18, at paras. 38-39, the court commented on the evidentiary threshold under the leave requirements in provincial securities legislation, saying that the courts must undertake a reasoned consideration of the evidence to ensure that the action has some merit, and that the claimant must offer a plausible analysis of the applicable legislative provisions and some credible evidence in support of the claim. The court then went on to say that the authorization stage should not be treated as a mini-trial, and that a full analysis of the evidence is not required.

[14] In Vecchio Longo Consulting Services Inc. v. Aphira Inc., 2021 ONSC 5405, 157 O.R. (3d) 92, at para. 84, the court described the test for leave under s. 138.8 of the Securities Act:

The reasonable possibility of success requirement of the leave test is a meaningful but low threshold, merits-based test that is more than a superficial examination of the merits of the plaintiff's statutory cause of action, but a meaningful examination of the evidence to ensure that the action has some merit. The leave test is meant to create a robust deterrent screening mechanism with a reasoned consideration of the evidence from both parties so that cases without merit are prevented from proceeding.

[15] While the Securities Act cases have been found to be of assistance in interpreting the CLPA leave requirement, there is one notable difference between the procedure under s. 138.8 of the Securities Act and s. 17 of the CLPA. Under the former, each defendant is required to file one or more affidavits setting forth the material facts upon which each intends to rely, and the plaintiff is entitled to cross-examine the defendants on their affidavits. This difference is critical in the context of s. 17 of the CLPA because bad faith is a state of mind which can be difficult to prove without evidence from the defendants and the right to cross-examine on that evidence.

Recklessness Amounting to Bad Faith

[16] In Enterprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, the court said the following about the evidence required to prove bad faith:

[T]he concept of bad faith can encompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith. What appears to be an extension of bad faith is, in a way, no more than the admission in evidence of facts that amount to circumstantial evidence of bad faith where a victim is unable to present direct evidence of it.

[17] In Bennett v. Bennett Environmental Inc., 2009 ONCA 198, 94 OR (3d) 481, at para. 30, the court, citing Sibeca Inc., said that "inexplicable, apparently reckless, conduct may lead to the inference that the conduct was deliberate, intentional and undertaken in bad faith."

The Plaintiffs' Case

Statement of Claim

[18] The plaintiffs plead the following causes of action:

• misfeasance in public office;
• breach of duty of care;
• abuse of process;
• intentional interference with economic relations; and
• defamation.

[19] The plaintiffs allege that the defendants' decision to remove the cattle from their farm was motivated by ill-will, bad faith and an improper purpose, resulting from repeated confrontations with Walter Ray. They allege that the defendants deliberately destroyed their commercial cattle business and that they knew that the removal would cause them significant financial and emotional harm.

[20] The plaintiffs plead that the defendants exhibited their bad faith by:

• using all-terrain vehicles to chase and wrangle the cattle subjecting them to dangerous and stressful situations, purportedly in relief of their distress. They were only able to catch 102 cattle, two of which were killed, and one of the wranglers was seriously injured, resulting in several weeks in hospital. The plaintiffs describe the seizure of their cattle as an "unmitigated disaster";

• failing to comply with the standards of care and administrative requirements with respect to the seized cattle, contrary to s. 13(1) of the PAWS Act, including, failing to provide them with food and water following the seizure;

• incurring removal costs of $391,196 for which they attempted to hold the plaintiffs responsible, and then sold the cattle at auction for $88,313.18. On an appeal to the Animal Care Review Board, the costs for which the plaintiffs were held responsible were reduced to $14,276.01; and

• shipping the cattle to undisclosed and unknown foster farms where they were subject to further distress.

Evidence Filed on This Motion

[21] The evidence on this motion consists of the plaintiffs' affidavit filed under s. 17(3) of the CLPA and findings of fact made by the Animal Care Review Board in a related proceeding. The defendants did not file an affidavit or affidavit of documents, nor did they cross-examine the plaintiffs on their affidavit.

The Plaintiffs' Affidavit

[22] In their affidavit, the plaintiffs say:

• that they had been cattle farmers for 53 years prior to the defendants' seizure of their cattle;

• that throughout 2021, they had repeated confrontations with Animal Welfare Services inspectors with regard to their cattle;

• that the defendants descended on their farm without warning and that they believe that the "raid" on their farm was motivated by ill-will, bad faith, and an improper purpose, following the repeated confrontations;

• that as a result of the ill-will and bad faith, their cattle were not properly investigated – Dr. Robertson, the veterinarian engaged by Animal Welfare Services, determined in "mere minutes" that the approximately 200 cattle on their 325-acre farm should be confiscated because they were all in distress, and removal was required to relieve their distress;

• that Dr. Robertson's assessment was in stark contrast to the assessment of a third-party veterinarian, Dr. Hoffman, who viewed the cattle later the same day and "only made notation of a few of our cattle";

• that the "raid" on their farm was conducted in a careless manner that included wranglers on ATVs chasing their cattle across their 325-acre farm. The raid was disastrous and devastating to watch. The defendants' "abysmal efforts" only managed to wrangle 102 cattle and two of the cattle were killed in the process. A wrangler was severely injured while carrying out their "ridiculous actions" and spent several weeks in hospital recovering from his injuries;

• that the "raid" on their farm terrified their cattle and caused them to be in distress;

• that in a span of a few hours, they were forced to watch the defendants intentionally destroy their livelihood;

• that the defendants intentionally sent their cattle to foster farms that had not been properly vetted or inspected to ensure that their cattle received proper care;

• that the defendants allowed themselves to be billed exorbitant fees from the foster farmers and then tried to pass the fees on to them, without concern that the fees would destroy their livelihood and take everything from them that they had earned in 53 years of honest hard work;

• that the defendants continued to act for an improper purpose by unlawfully threatening them to the effect that if they were to own any cattle in the future, such cattle would be seized; and

• that their cattle farm has ceased to exist following the defendants' acts which were designed to destroy their farm.

Animal Care Review Board Findings of Fact

[23] In reducing the removal costs chargeable to the plaintiffs from $391,196 to $14,276.01, the Animal Care Review Board vice-chair made the following findings of fact:

• that the respondent (the Chief Animal Welfare Inspector) had failed to prove that the removal process was necessary to relieve the animals' distress and that the removal process did not meet the standards prescribed by the PAWS Act;

• that the respondent's given reason for removing the cattle was because they lacked food and water, and the pasture was strewn with debris, among other issues. The dispute was whether transportation was necessary to relieve the distress, as required by s. 25 of the Act;

• that the act of removal was not shown to be necessary to relieve the animals of active distress, especially as there was no evidence that any animal was injured by the debris;

• that "there was 'little evidence' that any of the cattle were in active distress – no cases of dehydration, and only two where the body condition score of 200 (a measurement of nourishment) was below optimal, and one calf requiring medical care (but never said for what). The vice chair also noted that in Dr. Robertson's report, he provided no specific evidence of any cattle in distress at the time of their removal";

• the vice-chair was "not convinced that the removal was in itself intended to actively alleviate distress" (emphasis added); and

• the vice-chair concluded that there was insufficient evidence that transportation of the cattle from the farm was necessary to relieve the cattle's distress.

[24] In addition, the vice-chair found that the Chief Animal Welfare Inspector had not met the standard of care provided for in s. 13 of the PAWS Act, s. 3(4) of the Regulation and s. 5 of the Code of Practice. In her reasons, the vice-chair noted that s. 5 of the Code of Practice provides:

• cows or heifers that are in the last 10% (i.e., last 4 weeks) of their gestation period must not be transported, unless for veterinary care or treatment;

• loading and unloading equipment, chutes or conveyances are to be free of hazards in order to minimize risk of injury; and

• locations receiving cattle should be equipped with personnel or facilities to meet the animals' needs upon arrival, such as water and feed.

[25] The vice-chair found the following in relation to the Chief Animal Welfare Inspector's failure to meet the standard of care:

• using ATVs is uncommon for wrangling cattle on such a small property (rather than on foot or with horses). The resulting behaviour of the cattle was such that the removal could not continue after one of the wranglers was severely injured or even the next day;

• the cattle were not provided with food and water when they arrived at the sorting station, as required by the Code of Practice;

• the cattle were not assessed to ensure that they were fit for travel before being transported, including determining their gestation period which may have precluded them from being transported;

• twenty of the cattle were pregnant, four of which were noted as being "due soon"; and

• of the 101 cattle removed from the farm, 50 were calves - calves and their mothers were loaded separate from one another.

Positions of the Parties

Position of the Plaintiffs

[26] The plaintiffs argue that the evidence establishes that they have brought this action in good faith and that there is a reasonable possibility that the causes of action requiring leave would, if allowed to proceed, be resolved in their favour.

[27] They argue that the defendants' actions, as disclosed by the evidence and the reasons of the Animal Care Review Board, were so markedly inconsistent with the legislative context that the court cannot reasonably conclude that their actions and omissions were committed or omitted in good faith. They say that bad faith should be inferred from the defendants' inexplicable conduct, constituting a fundamental breakdown of the orderly exercise of authority. They argue that the defendants' removal of the cattle was not motivated by the need to protect the cattle from harm or distress as defined in the PAWS Act. Rather, they say that the removal was designed to destroy their cattle farming business to end the confrontations between Walter Ray and Animal Welfare Services officers.

Position of the Defendants

[28] Crown counsel does not take issue with the plaintiffs' good faith in commencing this action. Accordingly, the sole issue on this motion is whether there is a reasonable possibility that the claims referred to in s. 17(1) of the Act, if permitted to proceed, would be resolved in the plaintiffs' favour.

[29] With respect to the question of whether there is a reasonable possibility that the plaintiffs' claims would be resolved in their favour, Crown counsel argues:

• that leave to continue the claims of misfeasance in public office and breach of duty of care should not be granted because there is no direct evidence of bad faith, and there is insufficient evidence to meet the test for recklessness elaborated by the Supreme Court in Les Enterprises Sibeca;

• that the evidence does not support the claim for abuse of process;

• that the essential elements of intentional interference with economic relations are not properly pleaded and there is no evidence to support the claim;

• that the essential elements of the defamation claim are not pleaded and there is no evidence to support the claim; and

• that it is not sufficient for the plaintiffs to make allegations against the defendants collectively, and that the absence of evidence of what each individual inspector did is fatal to their claim.

Discussion

Misfeasance in Public Office

[30] In Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 23, the court sets out the elements of the tort of misfeasance in public office:

• that the defendants are public officers;

• that they have engaged in deliberately unlawful conduct in the exercise, or purported exercise, of a public function;

• that they have done so with malice or knowledge; and

• that they have caused the plaintiffs' injuries.

[31] Crown counsel argues that there is insufficient evidence to establish a reasonable possibility that the plaintiffs would succeed at trial in proving that the defendants' conduct was carried out in bad faith. In particular, he argues that the plaintiffs' evidence concerning the defendants' recklessness in carrying out their duties under the PAWS Act is insufficient to meet the test in Les Enterprises Sibeca, and that the plaintiffs' allegation that the defendants' bad faith was motivated by their confrontations with Walter Ray is unsupported by the evidence. I disagree.

[32] On the first point, there is no question but that the defendants, in removing the cattle, failed to comply with many aspects of their duties under the PAWS Act. Whether their failure to do so was so markedly inconsistent with the legislative context that the court cannot reasonably conclude that their actions were committed in good faith, or represented a fundamental breakdown of the orderly exercise of authority, is an issue for trial. For present purposes, in the context of a motion where no evidence has been filed by the defendants and the plaintiffs have no right of discovery, I find that the plaintiffs have supplied sufficient evidence to establish a reasonable possibility that this issue would be resolved in their favour.

[33] On the second point, with respect to the alleged confrontations, Crown counsel argues that no context is provided to explain the confrontations, such as when they occurred, which particular defendants were involved, and what actually is said to have happened. However, the plaintiffs' evidence is that throughout 2021, they had repeated confrontations about their cattle with Animal Welfare Services officers, who repeatedly threatened seizure of their cattle, without providing evidence that any were in distress. In the absence of any evidence from the inspectors or cross-examination of the plaintiffs on their evidence of confrontation, I find that their evidence is sufficient for the purposes of this motion. It is not difficult to contemplate that significant ill will would result from confrontations between a 78-year-old cattle farmer who had been farming for 54 years and government inspectors telling him what to do and what not to do, and threatening seizure of his cattle.

Breach of Duty of Care

[34] The plaintiffs allege that the defendants owed them a duty of care in the operation and execution of their statutory duties. Although bad faith is not an element of ordinary negligence, in this case they allege that the defendants "deliberately failed or refused to use such care as a reasonably prudent person would use in the circumstances with the knowledge that their acts and/or omissions would cause [them] harm." Based on this description of the tort, it is arguable that it would require proof of bad faith. However, it is unnecessary for me to decide whether it would or not, because if it would, the evidence of bad faith which I have found to be sufficient in relation to misfeasance in public office would also be sufficient in relation to the allegation of breach of duty of care, as pleaded.

Abuse of Process

[35] In Harris v. Glaxosmithkline Inc., 2010 ONCA 872, at para. 28, the court held that the motion judge had properly found the following to be the constituent elements of the tort of abuse of process: (1) the plaintiff is a party to a legal process initiated by the defendant; (2) the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted.

[36] Crown counsel argues that there is no evidence in this case of a collateral objective, such as wanting to buy the farm or get a good deal on cattle. I disagree. The plaintiffs allege that the defendants' objective was to shut the farm down and they rely on the evidence of recklessness, their confrontations with the Animal Welfare Service inspectors, and the inspectors' threats to the effect that if they were to own cattle in the future, those cattle would be seized.

Intentional Interference with Economic Relations

[37] In Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175, at paras. 62-67, the court set out the essential elements of the tort of intentional interference with economic relations: the defendant must have intended to injure the plaintiff's economic interests; the interference must have been by unlawful means; and the plaintiff must have suffered economic harm or loss as a result. For the defendant's conduct to qualify as "unlawful means", it must be conduct against a third party which causes loss to the plaintiff and must be conduct which would be actionable by the third party, if the third party had suffered a loss as a result.

[38] In the present case, while the circumstantial evidence of the defendants' intent to injure the plaintiffs' economic interests would be sufficient to satisfy the bad faith requirement under s. 17 of the CLPA, I am not satisfied that the claim for intentional interference with economic relations would, if allowed to proceed, be resolved in the plaintiffs' favour.

[39] In paragraph 44 of the statement of claim, the plaintiffs plead that "the Defendants interfered with Walter and Gwenda's business by illegal or unlawful means (i.e. the improper use of powers under the PAWS Act …", without reference to any third party against whom the conduct was alleged to be unlawful.

[40] In paragraph 37 of the statement of claim, they plead that the defendants committed an actionable wrong against a third party by refusing to allow "the auction barn at Hoards Station, a third party, to care for and eventually sell Walter and Gwenda's cattle before they were shipped to undisclosed and unknown foster farmers and subjected to distress at said foster farms."

[41] The difficulty with this pleading is that the plaintiffs have failed to identify any basis upon which it could be argued that by failing to engage Hoards Station to sell the cattle before they were shipped to foster farms, the defendants committed an actionable wrong against Hoards which caused loss to the plaintiffs, and would have been actionable by Hoards, if it had suffered loss as a result.

Defamation

[42] In order to support a claim for defamation, plaintiffs must plead: particulars of the allegedly defamatory words, publication of the words by the defendant, the persons to whom the words were published, and that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: Catalyst Capital Group Inc. v. VeritasInvestment Research Corp., 2017 ONCA 85, 136 O.R. (3d) 23, at para. 23. Notably, for the purposes of this motion, bad faith is not an element of the cause of action.

[43] Crown counsel argues that the defamation claim should not be allowed to proceed because there is no evidence to support it. However, given that defamation is not a tort based on bad faith, the leave requirement in s. 17 of the CLPA does not apply to it. It is a claim that would be allowed to proceed under s. 17(10) of the Act, even if leave were not granted in respect of any of the claims described in s. 17(1).

Whether Necessary to Identify a Particular Officer or Employee with the Requisite State of Mind

[44] Crown counsel argues that it is not sufficient for the plaintiffs to make allegations against the defendants collectively, and that to succeed, they must provide evidence of what each individual Crown defendant did which gives rise to their liability. He says that the absence of any evidence of what each did is fatal to the plaintiffs' claim. I disagree.

[45] Merchant Law Group v. Canada (Revenue Agency), 2010 FCA 184 was an appeal from an order striking out the plaintiff's statement of claim for failing to properly plead misfeasance in public office. At para. 35, the court said that "the tort of misfeasance in public office requires a particular state of mind of a public officer in carrying out the impugned action – deliberate conduct which the officer knows to be inconsistent with the obligations of his or her office" (citing Odhavji Estate, at para. 28). However, in paragraph 38, the court went on to question how particular the identification needs to be and said, "in cases such as this, a plaintiff should be able to identify a particular group of individuals who were dealing with the matter, one or more of whom were allegedly responsible. This might involve identifying job positions, an organizational branch, an office, or a building in which those dealing with the matter worked. … In cases such as this, identification, at least at this level of particularity, will usually be sufficient."

[46] In Sparks (Litigation guardian of) v. Ontario, 2010 ONSC 4234, the defendant correctional officers moved to strike out the statement of claim and dismiss the plaintiff's action. They argued that the plaintiff had made no more than a bald allegation of bad faith without sufficient particulars from which the court could find or infer bad faith, and that the allegations were not particularized against individual correctional officers, but rather, were made against them as a group.

[47] The motion judge found the statement of claim sufficiently pleaded facts that if taken as true, would allow a reasonable inference that the plaintiff's injuries resulted from the defendants' reckless and inexplicable conduct. With respect to the argument that the plaintiff had failed to particularize the allegations against individual defendants, the motion judge said, at paras. 29-30, that the plaintiff had sufficiently set out the factual basis for a bad faith claim against the moving defendants as a group, and because the plaintiffs had no knowledge of the particular actions of the individual corrections officers, it would not be appropriate to strike the plaintiff's claim for failure to plead particulars of the involvement of individual officers.

[48] Merchant Law Group and Sparks were cases related to the adequacy of pleadings, without consideration of evidence. However, where a claim pleaded by a plaintiff is found to adequately disclose a cause of action, then evidence sufficient to support the cause of action as pleaded should suffice for the purposes of s. 17 of the CLPA.

[49] In support of his position that the plaintiffs must be able to identify particular officers who had the requisite state of mind, Crown counsel relies on Phixaykoune v. Ontario, 2024 ONSC 3860 and Balla v. John Doe #1, 2025 ONSC 294.

[50] In Phixaykoune, the plaintiff sued for injuries received while incarcerated at Maplehurst Correctional Centre as a result of an assault by other inmates. The plaintiff pleaded that correctional officers "A", "B" and "C" failed to follow institutional policies and procedures, and standing orders, and that as a result, their delay in obtaining medical attention exacerbated his injuries.

[51] The matter came before the court on a motion to amend the statement of claim. The plaintiff sought to amend the claim to identify the anonymous correctional officers. Citing s. 17 of the CLPA, the motion judge denied leave to make the amendment on the ground that there was no reasonable prospect of success on the plaintiff's claim of bad faith.

[52] In her reasons, at para. 20, the motion judge said: "Bad faith requires intent. It calls for a subjective state of mind. The plaintiff must adduce evidence each individual correctional officer intended to cause him harm. It is not a concept that can be collectively attributed to a group or a collective."

[53] Phixaykoune is distinguishable on its facts from the present case. In Phixaykoune, the plaintiff had been provided with the institution's investigation report and the correctional officers' occurrence reports. He admitted that he did not believe that the correctional officers wanted to see him harmed but argued that the reports showed reckless conduct amounting to bad faith.

[54] The motion judge disagreed. She found that none of the shortcomings disclosed by the reports met the standard for recklessness, and that there was no other evidence of bad faith. Her statement concerning the necessity of evidence showing that each individual correctional officer intended to cause the plaintiff's harm was therefore not essential to her decision in the case.

[55] In the present case, the plaintiffs have not been provided with any evidence from the Animal Welfare Services inspectors and he does not admit that the inspectors meant him no harm. Their position is that the bad faith exemplified by their evidence of recklessness applied to all the inspectors they have named in the action. Given that I have found their evidence to be sufficient to meet the s. 17 CLPA test, it would be unfair to the plaintiffs to find their claims to be nullities, in the absence of any evidence from the defendants.

[56] In Balla, the plaintiff had been arrested for breach of his bail conditions and placed in a holding cell. He said that the last thing he remembered was lying down on the concrete floor and losing consciousness. A Health Care Information Form required that he be assessed every 20 minutes. He was to be woken for each assessment and asked various questions and asked to move his arms and legs. Appropriate staff were to be contacted if the plaintiff was having difficulty remaining conscious, or waking up, or was confused.

[57] The following day, the plaintiff's right arm was "black and blue". He was transported to hospital where his right arm required amputation.

[58] On a motion under CLPA s. 17, the motion judge said, at paras. 25-26, that he was satisfied that the plaintiff had a reasonable possibility of proving that some of the defendants acted in bad faith. However, he went on to say that the plaintiff must establish a reasonable possibility of success not only at large, but against specific defendants. His reasoning was that:

Otherwise, the screening process would fail as sufficiently establishing a claim of bad faith against one Crown employee would allow a plaintiff to also include all or some of that employee's supervisors and superiors, going up in this case to the warden or superintendent of the institution, and in others, for example, going up to the responsible minister or premier of Ontario, which cannot have been the intention of the legislation.

[59] Balla is distinguishable on its facts from the present case.

[60] In the present case, the plaintiffs sue seven Animal Welfare Services inspectors, including the chief inspector, by name. By finding that there is a reasonable possibility of success against those seven, I would not be approving claims against their superiors, or the responsible minister or premier of Ontario. All seven are sued in the same capacity – as inspectors.

[61] In Balla, although the defendants did not file affidavits, they filed an affidavit of documents and produced their Schedule A documents, which included redacted Health Care Information Forms completed by the defendant correctional officers in purported compliance with the requirement to assess the plaintiff every 20 minutes. The disclosure of those forms provided the plaintiff with evidence of what the authors of those reports did, or said that they had done. Based on the contents of those forms, the motion judge found that there was a reasonable possibility of success against officers who had written "conscious" on their reports, which the motion judge found to be inconsistent with the medical evidence filed by the plaintiff. The motion judge ordered that the plaintiff be permitted to proceed against those defendants, only, but the order was made without prejudice to a future motion for leave, should there be further evidence pointing to a reasonable possibility of success against the other defendants. The stay of proceedings against the other defendants remained in place but the claims against them were not declared to be nullities.

[62] In addition, the motion judge directed the defendants to disclose unredacted versions of the forms and to allow plaintiff's counsel to inspect the original forms. He also directed the defendants to disclose the name of each person who wrote "responsive" on their forms.

[63] All of this contrasts with the position in which the plaintiffs find themselves, in the present case. The defendants have provided no evidence which would allow them to assess the individual liability of any of the Animal Welfare Services officers.

[64] I accept that for the purpose of establishing liability at trial, the plaintiffs would have to prove that the defendant inspectors were individually implicated by the recklessness inferred from the fundamental breakdown of the orderly exercise of authority. However, at the pleadings stage, the plaintiff should not be denied recovery against all the defendant inspectors, where the Crown has declined to provide any evidence from which the plaintiffs could identify which, if not all, were responsible for the breakdown in authority.

Disposition

[65] For the reasons given, the plaintiffs are granted leave to proceed with their claims for misfeasance in public office, breach of duty of care and abuse of process. Leave is denied for the claim for intentional interference with economic relations. Leave to proceed with the claim for defamation is not required.

[66] Section 17(8) of the CLPA provides that each party to the motion for leave shall bear its own costs of the motion. Accordingly, I make no order with respect to costs.

S.T. Bale J.

Released: October 1, 2025