) ) WINDRIFT ADVENTURES INC., ADRIENNE SPOTTISWOOD, THOMAS PRYDE, GEORGEINA PIERCE, CLAYTON CAUCHY, RENATA SAUDER, JILLIAN PRYDE v. CODY PRYDE, 2023 ONSC 3164

CITATION: Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONSC 3164 COURT FILE NO.: 295/23 DATE: 20230526 ONTARIO SUPERIOR COURT OF JUSTICE Divisional Court BETWEEN: ) ) WINDRIFT ADVENTURES INC.,ADRIENNE SPOTTISWOOD, THOMASPRYDE, GEORGEINA PIERCE, CLAYTONCAUCHY, RENATA SAUDER, JILLIANPRYDE AND CODY PRYDE Applicants/Moving Parties – and – CHIEF ANIMAL WELFARE INSPECTORRespondent ) ) ) ) ) ) ) ) ) ) ) ) ) Eric K.

Gillespie and John May, for theMoving PartiesDanielle Meuleman and Kateryna Toderishena,for the Respondent Valerie Crystal for the Animal Care ReviewBoard ) ) HEARD: May 24, 2023 REASONS FOR DECISION SCHABAS J. Overview [1] On May 24, 2023 I heard a motion to stay a decision of the Animal Care Review Board (the “Board”) dated May 5, 2023(the “Decision”), confirming a statement of account issued by Animal Welfare Services (“AWS”) on February 10, 2023, pending thedetermination of the application for judicial review of the Decision: Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector,2023 ONACRB 40 .

In the absence of a stay, the applicants are required to pay $1,524,640.00, failing which approximately 200dogs in the custody of AWS will be forfeited to the Crown. [2] At the conclusion of the hearing, I issued a stay until July 12, 2023, the date I fixed for the hearing of the application. Iindicated that my reasons would follow, which I set out below.

Background [3] This application for judicial review is one of many proceedings before the courts regarding the applicants’ dogs, which theyown as part of a recreational dog sledding business. [4] Put briefly, following inspections and compliance orders in 2021 under the Provincial Animal Welfare Services Act, 2019,S.O. 2019 c. 13 (the “PAWS Act”), AWS removed approximately 230 dogs from the applicants’ properties.

The actions of AWS wereappealed to the Board which confirmed the orders in decisions dated June 23, 2021 and December 31, 2021: Pryde, Spottiswood andPierce v Chief Animal Welfare Inspector, 2021 ONACRB 12; Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021ONACRB 25 . The dogs remained in the care of AWS, and most of them continue to be in the care of AWS today.[1] [5] Applications for judicial review of the Board’s decisions were dismissed by this Court on December 6, 2022: Pryde v. Chief

Animal Welfare Inspector, 2022 ONSC 6632 . A motion for leave to appeal to the Court of Appeal has been brought, allmaterials have been filed, but no decision has been received yet from that Court. [6] Meanwhile, in January 2022, pursuant to s. 35 of the PAWS Act, AWS issued a statement of account requiring theapplicants to pay AWS costs for the care of the animals (“SOA #1). That statement of account was appealed to the Board which, inlengthy reasons released on August 18, 2022, reduced the account from approximately $1 million to approximately $500,000: WindriftAdventures Inc. et al. v.

Chief Animal Welfare Inspector, 2022 ONACRB 24. Both sides have sought judicial review of that decisionwhich is to be heard by this Court on June 28, 2023. [7] On September 15, 2022, the Board’s decision in SOA #1 was stayed by Matheson J. pending the determination of theapplications for judicial review of the compliance and removal orders: Windrift Adventures Inc. v.

Chief Animal Welfare Inspector, 2022ONSC 5282 . [8] Following the release of this Court’s decision dismissing the applications for judicial review on December 6, 2022, theapplicants sought a further stay of SOA #1 pending the motion for leave to appeal to the Court of Appeal. That motion was dismissed byLeiper J. on January 31, 2023: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 761 .

However, theapplicants then sought to have the decision of Leiper J. set aside by a panel of this Court pursuant to s. 21(5) of the Courts of Justice Act.That motion was heard on March 16, 2023, and a decision was reserved. On March 21, 2023 the panel continued the stay of SOA #1pending its decision, which has not yet been released: Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 1802 [9] A second statement of account, which is the subject matter of this proceeding, was issued by AWS on February 10, 2023(“SOA #2”). The amount sought is approximately $1.5 million.

An appeal of that account was dismissed by the Board on May 5, 2023:Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONACRB 40 . The applicants now seek judicial reviewof that decision and a stay pending that judicial review which is now set to be heard on July 12, 2023. The test for granting a stay [10] To obtain a stay pending appeal, the applicants must satisfy the three-part test set out in RJR-MacDonald Inc. v.

Canada(Attorney General), (SCC), [1994] 1 S.C.R. 311, at p. 334, that: (1) there is a serious issue to be tried; (2) theapplicants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting the stay. [11] It is well-accepted that the factors are not rigid “watertight compartments” or a series of independent hurdles, but are“interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant astay.” Strength in meeting one part of the test “may compensate for the weakness of another”: Louis v.

Poitras, 2020 ONCA 815 at para.16. Application of the test [12] In this case the respondent concedes that the application meets the first two prongs of the test. There is a serious issue to betried and, as the applicants are not able to pay the account, they will suffer irreparable harm if a stay is not granted. The applicants willlose their unique herd of dogs, bred and trained by them, and this will also destroy their business. [13] The motion, then, turns on consideration of the balance of convenience. [14] In my view, the balance of convenience favours the granting of a stay.

In the absence of a stay, the dogs will be forfeited asthe applicants are unable to pay the amount in SOA #2. The herd of dogs constitutes a unique asset developed over many years. [15] Additionally, the situation is different from what was before Matheson J. in 2022 and Leiper J. in early 2023. The merits ofthe compliance and removal orders is pending before the Court of Appeal. A panel of this Court has stayed the requirement to pay SOA#1 pending its decision on the reconsideration of Justice Leiper’s order.

The review of SOA #1 is set to be heard in one month. [16] Should a stay of SOA #2 not be granted, all of the other proceedings will effectively be rendered moot.

Thus, refusing to staySOA #2 would, put bluntly, make it “the tail wagging the dog”, and deprive the applicants of a considered decision under reserveregarding a stay of SOA #1, and deprive the applicants of legal recourses they are still pursuing on the substantive issues arising from thecompliance and removal orders. [17] I recognize that AWS continues to incur costs of approximately $9,000 per day in caring for the dogs, expenses which areunlikely to ever be recovered.

This is a considerable cost to the public and was a strong factor favouring lifting the stay on SOA #1 whenthat matter came before Justice Leiper; however, it was also before the panel which then continued the stay on March 21, 2023. AWSadvises that the total costs incurred by it handling these animals since 2021 is in the range of $5,000,000, of which only a portion may berecoverable.

While not minimizing the burden on the public purse in obliging AWS to continue to incur expenses, the additional expenseof $9,000 per day for up to approximately seven more weeks must be seen in the context of much greater expenses that the public isbearing as a result of the actions of AWS and the underlying litigation. [18] Weighing the competing inconvenience to each side, and having regard to the importance of doing justice between the parties,the balance favours the applicants. Conclusion

[ 19 ] A stay of SOA #2 until July 12, 2023 shall be granted. Costs of the motion are reserved to the panel hearing the application on July 12, 2023. Paul B. Schabas J. Released: May 26, 2023 Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2023 ONSC 3164 COURT FILE NO.: 295/23 DATE: 20230526 ONTARIO SUPERIOR COURT OF JUSTICE WINDRIFT ADVENTURES INC. et al. Applicants / Moving Parties – and – CHIEF ANIMAL WELFARE INSPECTOR Respondent REASONS FOR DECISION Schabas J. Released: May 26, 2023