Zoocheck Canada Inc v Alberta (Agriculture and Forestry), 2017 ABQB 764

Court of Queen’s Bench of Alberta Citation: Zoocheck Canada Inc v Alberta (Agriculture and Forestry), 2017 ABQB 764 Date: 20171208 Docket: 1703 06666 Registry: Edmonton Between: Zoocheck Canada Inc., Voice for Animals Humane Society and Tove Reece Appellants - and - Her Majesty the Queen In Right of Alberta (The Minister of Agriculture and Forestry and The Minister of Environment and Parks) and the City of Edmonton Respondents Corrected judgment: A corrigendum was issued on March 29, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Supplementary Reasons for Decision of the Associate Chief Justice J.D.

Rooke _______________________________________________________

[ 1 ] The Applicants, Zoocheck Canada Inc., Voice for Animals Humane Society and Tove Reece, seek judicial review of the decision of the Minister of Environment and Parks (“the Minister”) to issue a Zoo Permit under s.13(1) of the Wildlife Act , RSA 2000, c W-10, to the Edmonton Valley Zoo on April 1, 2017. [ 2 ] On September 7, 2017, I heard a preliminary application, wherein the Applicants sought an order: (

a) declaring that they have standing to seek judicial review; and (

b) allowing them to rely upon fresh evidence, some of which comes in the form of Affidavits the Applicants seek to introduce as expert reports. At the conclusion of the hearing, I gave brief oral reasons (transcript p. 34, line 11 to p. 45, line 38 to p. 36, line 8, and p.40, line 12 to line 41) dismissing the application, and said (at p.35, line 36) that brief written reasons would follow. These are those reasons. [ 3 ] I am aware that my decision of September 7, 2017 has been appealed. However, the same considerations apply as in my decision in Law Society of Alberta v. Beaver , 2016 ABQB 250 , at paras.5-10.

Standing [ 4 ] The Applicants seek this Court’s intervention to set aside the Minister’s decision to renew the Edmonton Valley Zoo’s Permit, but their concern is not the operation of the Edmonton Valley Zoo on the whole. The Applicants are actually concerned about one animal: a 41-year old Asian elephant named Lucy, whom they would like to see moved to what they contend would be a more appropriate facility, outside Edmonton. [ 5 ] The Applicants’ concern for Lucy is sincere and deeply held.

In 2010, they brought an application for a declaration that the City of Edmonton, which owns the Edmonton Valley Zoo, was in breach of the Animal Protection Act , RSA 2000 c A-41 in relation to Lucy’s living conditions.

That application was struck, because the proceeding was an abuse of process and because the Applicants had used the wrong procedure: Reece v Edmonton (City) , 2010 ABQB 538 ; aff’d: 2011 ABCA 238 ; leave to appeal refused: [2011] SCCA No.447. (“the 2010 Zoocheck Action”). [ 6 ] The test for public interest standing was recently described by the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence v Canada (Attorney General) , 2012 SCC 45 , at para.2: 1. There is a serious and justiciable issue to be addressed; 2.

The Applicants have a genuine interest in the outcome of the matter; and 3. The proposed action is a reasonable and effective way to bring the matter before the court. [ 7 ] Controversy, at the behest of the Applicants and their supporters, has surrounded Lucy and the Edmonton Valley Zoo for some time. But in the context of standing and judicial review, a serious and justiciable issue is not simply one that engages the public interest, or indeed, one that poses serious questions.

The serious and justiciable issue in the context of a judicial review must be viewed in the context of the actual decision the Applicant asks the Court to review. [ 8 ] Here, the issue is the decision to renew the Edmonton Valley Zoo’s permit under the Wildlife Act . The requirements for zoo permit eligibility are set out in ss.76 to 79 of the Wildlife Regulation , AR143/97 (“the Regulation”). Section 76(1) of the Regulation adopts and incorporates certain portions of the “Government of Alberta Standards for Zoos in Alberta” (“Standards for Zoos”), prepared by the Alberta Zoo Standards Committee. However,

Part III of the Standards for Zoos, “Standards Related to the Animal Protection Act ” is expressly not incorporated into the Regulation.

Under the applicable renewal Regulation, zoo permit renewal applicants must submit a $100 payment and a number of records to the Minister, including a Zoo Development Plan, an animal inventory, an existing written agreement between the zoo and a licensed Alberta veterinarian, proof of comprehensive liability insurance and municipal approvals, and a decommission plan. [ 9 ] I agree with the Respondents that the Wildlife Act and the Regulation deal with logistics such as licensing and permitting zoos and other animal use endeavours, and the zoo licensing provisions thereof were never intended and do not function as animal protection legislation .

If this seems counterintuitive, it is helpful to keep in mind that there are other mechanisms that bear upon the treatment of zoo animals like Lucy.

For example, the Edmonton Valley Zoo is accredited through an organization called Canada’s Accredited Zoos and Aquariums (“CAZA”), and is subject to the provisions of the Animal Protection Act , RSA 2000 c A-41. [ 10 ] In the result, I further agree with the Respondents that, in the context of a judicial review of the decision of the Minister to renew the permit for the Edmonton Valley Zoo, the Applicants have not raised a serious and justiciable issue. [ 11 ] Similarly, though the Applicants have a long standing and sincere concern for Lucy’s health and well-being, the question of whether the Applicants have a real stake or genuine interest in the issue they have raised must be considered in the context of the decision the Applicants ask the Court to review. [ 12 ] The question is not whether the Applicants have a real stake or genuine interest in Lucy’s well-being, it is whether they have a real stake or genuine interest in the decision of the Minister to renew the Zoo Permit.

In their Originating Application, the Applicants have stated that their goal is to have Lucy moved to another facility, in a warmer climate with greater space and other Asian Elephants. Their interest in the zoo permit itself is purely collateral to their stated goal, which is a relocation of Lucy. [ 13 ] In Alberta Liquor Store Assn. v Alberta (Gaming & Liquor Commission) , 2006 ABQB 904 , Slatter J. (as he then was) discussed the issue of standing as a gatekeeper to litigants without a private interest in the litigation, and described classes of persons who do not have standing.

He wrote, at para.15: Another group are those applicants who have no direct interest in the challenged administrative act, and appear to be using the process for ... other collateral purposes. If the applicant can demonstrate some interest in challenging the administrative act, but that interest is found by the court to be contrary to the objects and purposes of the administrative regime, the court will not allow the judicial review

process to be used to disrupt the administrative system. Applications that are clearly an abuse of process will fall into this category. Another example is where judicial review is being used to achieve a particular objective, where the regulatory regime does not have that particular goal as one of its objectives . [Emphasis added.] [ 14 ] What the Applicants are seeking to do is to use judicial review of the decision of the Minister to renew the Zoo Permit to achieve a particular objective, ie. the move of Lucy to another facility.

But the regulatory regime at issue, zoo licencing under the Wildlife Act , does not have that particular goal – or indeed the more general goal of ensuring animal welfare – as one of its objectives. To the extent that there is a regulatory regime that would bear on Lucy’s well-being, it is set out in Animal Protection Act . [ 15 ] This brings me to the third part of the test for public interest standing, as set out recently in Downtown Eastside , which is the requirement that the proposed action is a reasonable and effective way to bring the matter before the Court.

In the 2010 Zoocheck Application, this Court held, at paras.25-26: Thus, in answer to the claim of the Applicants that “there is no other party other than themselves who are better placed to bring the issue of the lawfulness of the City’s actions to Court”, it is the officials under the Legislation who have the duty to take steps or lay charges under that Legislation when required. In this regard, the City makes reference to Peace Officers employed by the Edmonton Humane Society for that purpose. Indeed, officials under the Legislation have a statutory duty to do so, if they believe there to be a breach.

In the result, so that the point is not lost, I find that the Legislation in this case provides an effective mechanism to bring the issue of the alleged breaches before the Court. In addition to the provisions under the Legislation, I infer from s. 14(2) of the Act that a private citizen can, on reasonable and probable grounds, report their belief that an animal is in distress to a peace officer, who must investigate under the Act. [ 16 ] Similarly, at para.34 of the Court of Appeal decision, Slatter and Costigan JJA noted, at para.34: There are other more appropriate remedies available to the appellants.

The Court was advised that after the decision of the chambers judge a further complaint was filed with the Edmonton Humane Society.

A further investigation was conducted, following which it was decided not to lay any charges under the Animal Protection Act , although the Society indicated that its investigation “will remain open in order to follow up”. [ 17 ] For the same reasons as I set out in the 2010 Zoocheck Application, I conclude that there is a more appropriate mechanism – specifically, a complaint under the Animal Protection Act – available to the Applicants, and therefore a more reasonable and effective way to bring the issue of Lucy’s well-being before the Court. [ 18 ] The Application for an Order declaring that the Applicants have standing to seek judicial review of the Minister’s decision to renew the Zoo Permit is therefore denied on the basis that the Applicants have failed to meet the requirements for public interest standing.

As I noted in my oral reasons, it is also denied because the judicial review itself is a collateral attack upon the decisions of this Court and the Alberta Court of Appeal in the 2010 Zoocheck Application, and therefore an abuse of process. The rule against collateral attack prevents a party from using “...an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route”: British Columbia (Workers Compensation Board) v Figliola , 2011 SCC 52 , at para.28.

The decisions in the 2010 Zoocheck Application established that the appropriate mechanism by which the Applicants could raise their concerns about Lucy’s health and well-being were those set out in the Animal Protection Act . The judicial review sought by the Applicants in the present case is, in essence, another attempt to use an improper mechanism to achieve a collateral purpose, and an attempt to find a way around the earlier decisions of this Court and the Court of Appeal.

Fresh Evidence [ 19 ] In the result, it is not necessary to determine whether the Applicants should be permitted to rely upon the affidavit evidence which has been filed in another Action, or other new Affidavit evidence, in the judicial review of the Minister’s decision. To the extent that the evidence the Applicants sought to introduce goes to the issue of standing, however, it is appropriate to admit them for that purpose alone. [ 20 ] The Applicants also sought leave to rely on the Affidavits of Dr. P. Ensley, Dr. W.K. Lindsay, and Margaret Whittaker as expert reports.

I would not admit those Affidavits as expert reports for the reasons argued by the Respondents – specifically, they contain conjecture and argument and are irrelevant to the issue of whether the Minister’s decision was reasonable. City of Edmonton Application to Strike Portions of the Originating Application [ 21 ] Because of my conclusion on the issue of standing, it is not necessary to determine whether subparagraphs 16(

b) and 16(

c) of the Originating Application should be struck. Conclusion [ 22 ] The Application for a declaration that the Applicants have standing to seek judicial review of the Minister to issue a Zoo Permit under s.13(1) of the Wildlife Act is denied. [ 23 ] Costs were addressed in my oral reasons (transcript, p.40, lines 12-41). In short, because of the abuse of process and collateral attack aspects of this Application, I am of the view that costs should be awarded under Column 4 in an amount as may be agreed, or assessed, to be payable forthwith. Heard on the 7 th day of September 2017.

Dated at the City of Edmonton, Alberta this 8 th day of December 2017. J.D. Rooke A.C.J.C.Q.B.A. Appearances: G. Stephen Panunto for the Appellants Barry Alloway for the Respondent – City of Edmonton Marta Burns and Sarah Dolgoy for the Respondent – Alberta Justice _______________________________________________________ Corrigendum of the Supplementary Reasons for Decision of The Associate Chief Justice J.D. Rooke _______________________________________________________ The hearing date on Page 5 was corrected as follows: Heard on the 7 th day of September 2017.