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PAWS Dicta - Reconsideration. Pryde v. Chief Animal Welfare Inspector
In Pryde v. Chief Animal Welfare Inspector (Div Court, 2022) the Divisional Court considered an 'alternative adequate remedy' (AAR) argument in a JR. Here the argument was that the applicant had not availed themselves of a rule-available reconsideration at the Animal Care Review Board. The court declined to apply to AAR argument against the applicant, in part because it would further a multitude of proceedings (SS: that's refreshing):[13] The Respondent and the Board rely on Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), in which this Court declined to hear an application for judicial review because the Applicant failed to request reconsideration. In Jackson, the Board reduced accounts of $1,594.41, $450.00, and $2,025.00 rendered to an owner after three dogs were removed from his care, based on a finding that the owner did not have the means to pay those accounts.
[14] Our facts are different. This not a one-issue case. The record is voluminous. Sending part of the case back for reconsideration would not dispose of the matter but would potentially lead to further proceedings in parallel to the judicial review of the Compliance Decision. This would fragment the proceedings, add cost, and delay a final disposition of all issues necessary to decide the fate of the animals. Dismissing the review of the Enforcement Decision in this case would be an injustice and would perpetuate conflict. The applicants have been clear throughout that they wish to challenge the Enforcement Decision and we would not deprive them of the opportunity to do so because they pursued a sub-optimal approach to challenging the decision – thus, the choice for us, in this case, is whether to require the applicants to return before the Board with a request for reconsideration, or whether to hear the application for judicial review of the Enforcement Decision now, without the Applicants having had recourse to the reconsideration process before the Board.
[15] As the court noted in Jackson, this court has discretion to permit a party to seek judicial review where it has not sought reconsideration. The court considers the nature of the alleged grounds for review, the remedial capacity of the tribunal, the expertise of the tribunal and economical use of judicial resources and any other matter bearing on whether this court should exercise its jurisdiction: see also Strickland v. Canada (Attorney General), 2015 SCC 37 (CanLII), [2015] 2 S.C.R. 713 at para. 42. In the circumstances of this case, including the history of the litigation, the decision of this court to hear the judicial review of both applications together, the impact of further delay on living animals, the costs involved in the ongoing care of those animals, the ability of this court to determine the issues, and the comprehensive record filed, all weigh in favour of hearing both applications on the merits now. Further delay would not be in the interests of the parties, the animals involved, or the administration of justice. . Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.
In these quotes, where a JR applicant failed to request an ACRB reconsideration, the court denied a JR prematurity argument [like in Pryde] on grounds that it would contribute to a 'multiplicity' of proceedings:[26] Windrift failed to exhaust their remedies before the Board as they did not seek reconsideration of the Decision. Parties may request a reconsideration under Rule 18.2 of the Board’s Common Rules of Practice & Procedure.
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[28] As set out in Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), at para. 38, the court has the discretion to decline to hear an application where the applicant has not exhausted alternative remedies. The Court in Jackson referenced, in the same paragraph, the Ontario Court of Appeal’s statement in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, that this “principle respects administrative decision-making and a legislative intent that a party exhaust internal review processes before asking a court to intervene.”
[29] As in Pryde, the facts in this case are different than in Jackson. This is a multiple issue case. The record is voluminous. The CAWI is also seeking judicial review. The CAWI did request a reconsideration. The issues in the CAWI’s judicial review are significantly interwoven with the issues in Windrift’s judicial review. The two judicial reviews cannot be separated. To require Windrift to seek reconsideration would delay the CAWI’s judicial review. Even if the two applications could be separated, to not proceed with both applications at the same time would fragment the proceedings, possibly lead to parallel proceedings, and possibly inconsistent results.
[30] In these circumstances, the court is exercising its discretion to permit Windrift’s application to proceed even though it has not exhausted internal review processes by seeking a reconsideration. Given the interwoven nature of the two applications and the comprehensive record filed, to delay the applications would not be in the interests of the parties or of the administration of justice.
[31] The decision to proceed with Windrift’s application in these circumstances, is very fact specific. It should not be taken to deviate from the general principle that a party should exhaust internal review processes before coming to the court. It should also not be taken by Windrift as permission to continue its practice of not applying for reconsideration before commencing a judicial review application.
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