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PAWS - Recent (1). Windrift Adventures Inc. v. Chief Animal Welfare Inspector [care costs]
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court starts their ruling with an explanatory lament on the nature of PAWS 'care costs' (overall exceeding $2 million for over 200 dogs over 2.5 years) as not being punitive, but compensatory to the province:[4] The aggregate care costs for these dogs have been disastrously high for the Applicant and out of all reasonable proportion to the issues of principle the Applicant sought to contest at the outset. However, these costs have been incurred in fact, and they are a consequence of the Applicant’s two fundamental mistakes:(a) The Applicant’s concerns with the respondent CAWI’s insistence that the Applicants comply with prescribed minimum care standards for the sled dogs were misconceived; and
(b) The Applicant’s litigation strategy was corrosive of an expedient and practical approach to resolving the issues of principle of concern to the Applicant. Viewing the matter realistically and practically, it is hard to see how the issues of principle to the Applicant should have posed an existential threat to the Applicants’ business. The Respondent CAWI’s concerns were over the length of tether chains and the size and quality of shelters for the dogs. The Applicant’s litigation strategy has seen the proceedings drag on for two years, and that after a period of six months when the dogs remained in the Applicant’s possession following issuance of citations (February 2021). Even after a decision was rendered by the Board in respect to the issues of principle (June 2021), the Applicants still refused to comply for several months. It was not until September 2021, when it was clear that the Applicants would not comply, that the Respondent seized and retained the dogs.
[5] The Applicants’ position, throughout, seems to have been that they do not have to comply with citations and orders in a timely manner, they should be able to pay modest fines as licensing fees for their non-compliance, and that their current plight is a result of over-zealous enforcement. They continued to cling to this view in their factum before us. In para. 29 of their factum, they note that the costs for the CAWI to keep the Applicants’ dogs is about $8,000 per day or $240,000 per month. They argue “[t]he effect is to impose a penalty many times greater than any amount that could ever be imposed as a penalty or fine” (Factum, para. 29). This argument is misguided. The impugned order is not a penalty or fine – it is a recovery of costs, incurred by the public purse, to care for the Applicants’ animals.
[6] As reflected in their arguments, the Applicants have fundamentally misconceived the regulatory regime, the role of the CAWI, and the purpose of enforcement mechanisms. Proceedings before the Board are supposed to be expeditious, since the ongoing fate of live animals is involved. Compliance with minimum prescribed standards is not optional and cannot be avoided by paying modest fines. The Applicant was required to comply, and the CAWI showed reasonable restraint to afford the Applicant more than a reasonable time in which to comply.
[7] The result has been poor for the animals and for the people of Ontario (who have incurred substantial – and as yet unrecovered – care costs for these animals), and apparently disastrous for the Applicants. None of this should be laid at the feet of the Respondent. It is a consequence of the Applicants’ intransigence respecting compliance with prescribed standards of care for their animals, and their misguided litigation strategy.
[8] I say these things at the outset, forcefully, because of the incendiary language used by the Applicant to describe the conduct of the CAWI, in the application before us and in the extensive prior proceedings before the Divisional Court and the Board. It is beyond debate that these animals should not have been in the Respondent’s care for the past 2.5 years, at enormous public expense. The responsibility for this misadventure lies at the feet of the Applicants; the respondent CAWI has done no more than perform its statutory role.
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