Canada: Agricultural Law NetLetter - Sunday, June 21, 2015 - Issue 326

** HIGHLIGHTS **

A Justice of the Supreme Court of Nova Scotia has overturned a decision of the Deputy Minister of Agriculture who in his capacity as the delegate of the Minister upheld the decision of an inspector who concluded that 5 Newfoundland ponies which had been seized because they were in "distress" should not be returned to the owner without giving the owner an opportunity to relieve the distress. The Nova Scotia Animal Protection Act requires inspectors to attempt to obtain the owner's cooperation to relieve distress, and gives an owner whose animals are seized and taken, the right to appeal the taking to the Minister of Agriculture. The Court set aside the Deputy Minister's decision because the Deputy Minister had failed to undertake the broad consideration whether the animals should be returned to the owner, and because the Deputy Minister was incorrect in restricting his analysis to whether the seizure was valid or whether the owner was fit to care for them. The Court also held that the Deputy Minister was incorrect in concluding that the inspector did not have an obligation under the Nova Scotia legislation to attempt to obtain the owner's cooperation to relieve distress, before seizing the animals. (Brennan v. Nova Scotia (Minister of Agriculture), CALN/2015-015, [2015] N.S.J. No. 239, Nova Scotia Supreme Court)

** NEW CASE LAW **

Brennan v. Nova Scotia (Minister of Agriculture); CALN/2015-015, Full text:   [2015] N.S.J. No. 239; 2015 NSSC 171, Nova Scotia Supreme Court, M.J. Wood J., June 10, 2015.

Animal Protection -- Seizure and Taking of Animals in Distress -- Appeal to Minister in Nova Scotia.

Annette Brennan ("Brennan") applied to the Nova Scotia Supreme Court for judicial review of the decision of the Nova Scotia Minister of Agriculture (the "Minister"). The Minister's delegate, the Deputy Minister of Agriculture, issued a decision on March 10, 2015 which upheld the decision of an inspector appointed under the provisions of the Animal Protection Act, 2008 S.N.S. c. 33 (the "Act"). The inspector had refused to return 5 Newfoundland ponies that had been seized from Brennan's farm, which the inspector concluded were in distress.

Inspectors had visited the Brennan farm on 14 occasions between 2011 and 2014. They found animals in distress on these occasions and gave Brennan directions to alleviate the distress.

On December 14, 2014, an inspector again visited the Brennan farm. On this occasion the inspector decided to seize 5 ponies and to not return them to Brennan, without giving Brennan an opportunity to relieve the distress.

Section 23(1) of the Act permits an inspector who finds an animal in distress to, among other things, take custody of the animal. Section 23(2) of the Act provides that before doing so, the inspector must find the owner and attempt to obtain the owner's cooperation to relieve the animal's distress. It provides:

(2)Before taking action pursuant to subsection (1), an inspector or peace officer shall take reasonable steps to find the owner or person in charge of the animal and, where the owner is found, shall endeavour to obtain the owner's co-operation to relieve the animal's distress.

Section 26(5) of the Act provides that when an inspector concludes that the owner is "not a fit person to care for the animal" the owner shall be notified that the animal will not be returned but that the owner may, within 72 hours, request a review of the decision by the Minister.

Brennan requested a review. The Deputy Minister considered written submissions from Brennan's solicitor as well as affidavit evidence submitted by Brennan and other sworn evidence.

The Deputy Minister concluded that:

1.The animals were in distress when they were seized.

2.The Act does not require the inspector to provide the owner with an opportunity to relieve distress if there is a demonstrated pattern of causing distress.

3.The inspectors were correct in placing the horses in the custody of the Department of Agriculture.

4.That he "must find that Annette Brennan is not 'a fit person to care for' the seized animals as defined in s. 26 of the Act. Accordingly, the seized horses will not be returned."

Decision: Wood, J. granted the application for judicial review and directed the matter be returned to the Minister for a further review under s. 26(7) of the Act [at para. 39].

Wood, J. relied on the recent decision of Moir, J. in Rocky Top Farm v. Nova Scotia (Agriculture) 2015 NSSC 21 (CanLII) in which the Court concluded, among other things, that the Deputy Minister was required by the Act to consider all information, old and new, to determine whether a person was fit to care for animals; that the standard of review under the Act was correctness, and that it was not sufficient for the Deputy Minister to uphold a decision when the Deputy Minister concluded the inspector's decision was "reasonable" [at para. 13 to 17].

Wood, J. concluded:

1. That the Deputy Minister must independently consider the broader decision of whether seized animals should be returned [at para. 24] and that it would be an error to only consider whether the initial seizure was lawful [at para. 26].

2. Wood, J. held, at para. 26:

[26] The Act does not "require" the Deputy Minister to make any such finding. What he is required to do is to decide whether the animals ought to be returned and, as part of that, he may assess Ms. Brennan's fitness to care for them.

and at para. 28 to 39:

[28] I believe that the Deputy Minister was wrong in defining the review as limited to the correctness of the seizure decision and whether Ms. Brennan was fit to care for the ponies. It should have been described as a broad consideration of whether the animals should be returned to her.

[29] I am also not satisfied that the Deputy Minister truly turned his mind to the question of her fitness to care for the animals since the only comment on that issue is listed as one of the reasons supporting his conclusion that the seizure decision was correct.

[30] In addition to his failure to properly determine the scope of review, I believe the Deputy Minister was wrong in his interpretation of s. 23 of the Animal Protection Act. In his decision he found that prior instances where an owner allowed or permitted an animal to be in distress resulted in s. 23(2) being inapplicable. His rationale is based upon his view that there is an apparent inconsistency between ss. 21 and 23 of the legislation.

[31] Section 21 is a prohibition against causing or permitting an animal to be in distress. Breach could result in a prosecution under section 35 of the Act. The combined effect of subsections 21(3) and (5) is that a person is not in violation of the Act where they take immediate steps to relieve an animal's distress unless there is a pattern of causing or permitting distress. There is no mention of an inspector's authority to seize animals in this section.

[32] Section 23 defines the authority of an inspector when they find an animal in distress. Where the owner does not immediately take measures to relieve the distress the inspector may take any necessary steps including seizure of the animal. Section 23(2) says an inspector must endeavour to obtain the owner's cooperation to relieve distress before taking any of the permitted actions.

[33] The Deputy Minister is incorrect when he concludes that s. 21(5) is intended to override the application of s. 23(2). The provisions apply in completely different circumstances and are unrelated.

[34] In his submissions, counsel for the Minister relied on the British Columbia Court of Appeal decision in Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals 2010 BCCA 519 (CanLII). In that case the Court was considering a legislative provision similar to s. 23(1) of the Animal Protection Act. The British Columbia statute had no equivalent to s. 23(2).

[35] In Ulmer the owner had been given prior notice of concerns with respect to the well-being of her animals, but did nothing. The Court said the evidence supported the trial judge's conclusion that the owner was unable or unwilling to take steps to relieve the distress even though they had not been given a specific opportunity to do so.

[36] I agree the decision in Ulmer may be of assistance in interpreting s. 23(1) and determining whether that provision creates a specific right for an owner to have an opportunity to allieviate distress prior to seizure. I do not believe those principles assist in deciding the application of ss. 2 which clearly creates a precondition to seizure which is absent from the legislation under consideration in Ulmer.

[37] In Rocky Top Farms Justice Moir described s. 23(2) as being a prerequisite to seizure (see paragraph 123). I agree with his interpretation of this provision.

[38] What is sufficient to satisfy the s. 23(2) obligation to endeavour to obtain the owner's cooperation will vary from case to case. I make no comment on how it applies to the facts here. My conclusion is simply that the Deputy Minister was wrong in his decision that it was excluded by operation of the provisions of the Animal Protection Act.

[39] For the reasons outlined above, I am satisfied that the Deputy Minister was wrong in his formulation of the question to be decided on his review. He was also wrong in his interpretation of s. 23 and in particular his conclusion that s. 23(2) had no application where an owner had previously demonstrated a pattern of causing or permitting an animal to be in distress. As a result of these findings, I must allow the judicial review. However,  the appropriate remedy is not to substitute my decision on the merits for that of the Minister. I believe the proper disposition is to return the matter to the Minister for a further review under s. 26(7) of the Animal Protection Act which is to be carried out in accordance with the principles set out in this decision.

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