Canada: Agricultural Law NetLetter - Monday, December 21, 2015 - Issue 338

** HIGHLIGHTS **

  • The Ontario Superior Court of Justice has reviewed and upheld a decision of the Ontario Animal Care Review Board concerning the removal of 25 horses from an Ontario farm. The Review Board concluded that the removal of the horses by the Ontario SPCA complied with the provisions of the Ontario Society for the Prevention of Cruelty to Animals Act. The Court concluded that chronic situations are sufficient to establish distress under the Act and ordered that a farmer pay the SPCA's costs of $62,554.00 in relation to caring for most of the herd while in detention. The cost for caring for two horses was rejected because the SPCA had, through oversight, failed to mention these horses in the Removal Order issued pursuant to the Act. (Hurley v. Ontario Society for the Prevention of Cruelty to Animals, CALN/2015-028, [2015] O.J. No. 6580, Ontario Superior Court of Justice)
  • A Justice of the Federal Court of Canada has directed a rehearing in the case of an Iranian entrepreneur who had business assets and land in Iran valued in excess of $2 million, and who applied for permanent residence in Canada in the self-employed category intending to purchase a farm in Saskatchewan. The Court concluded that the officer's decision as unintelligible and hence unreasonable, and that the Review Officer had denied the Applicant procedural fairness by not affording him the opportunity to address concerns about his intent and ability to become self-employed as a farmer in Canada. (Mohitian v. Canada (Minister of Citizenship and Immigration), CALN/2015-029, [2015] F.C.J. No. 1472, Federal Court of Canada)

** NEW CASE LAW **

Hurley v. Ontario Society for the Prevention of Cruelty to Animals; CALN/2015-028, Full text: [2015] O.J. No. 6580; 2015 ONSC 7784, Ontario Superior Court of Justice, A.D. Kurke J., December 11, 2015.

Prevention of Cruelty to Animals -- What Constitutes Distress -- Procedural Requirements to Recover Costs.

Rebecca Hurley ("Hurley") appealed to the Ontario Superior Court of Justice from a May 15, 2015 decision of the Animal Care Review Board (the "Review Board") pursuant to s. 18(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (the "Act").

The Review Board upheld the removal of 25 horses and a goat from Hurley's farm on March 5, 2015 by the Ontario Society for the Prevention of Cruelty to Animals (the "SPCA") and directed that two of Hurley's horses should remain with the SPCA until the treating veterinarian deemed them healthy enough to be returned; that the remaining horses and the goat be returned to Hurley subject to conditions related to adequate access to water, minerals and feed and ongoing examination by the veterinarian, and that Hurley pay the SPCA's costs in the amount of $17,389.00.

On June 9, 2015, Hurley appealed the Review Board's decision to the Ontario Superior Court of Justice. She was self-represented at the appeal hearing, which was conducted as a trial de novo over more than a week.

Section 13(1) of the Act gives SPCA inspectors and agents who have "reasonable grounds for believing that an animal is in distress" the authority to order the owner or custodian of the animal to take such action as, in the opinion of the inspector, may be "necessary to relieve the animal of its distress" or to "have the animal examined and treated by a veterinarian at the expense of the owner or custodian".

Section 14(1) gives SPCA inspectors and agents the authority to remove animals in distress where a veterinarian has inspected an animal and has advised the SPCA inspector or agent in writing that the health and wellbeing of the animal necessitates removal:

14(1) An inspector or an agent of the Society may remove an animal from the building or place where it is and take possession thereof on behalf of the Society for the purpose of providing it with food, care or treatment to relieve its distress where,

  1. a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and well-being of the animal necessitates its removal;
  2. the inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or
  3. an order respecting the animal has been made under section 13 and the order has not been complied with.

Section 17(6) of the Act allows the Review Board to confirm, revoke or modify orders made by the SPCA.

Section 18(4) allows an appeal to the Court from the decision of a Review Board as a "new hearing", and authorizes the Judge to "rescind, alter or confirm the decision of the [Review Board]..."

Decision: Kurke, J. upheld the Review Board's decision, with some alterations [at para. 168 and 169].

Kurke, J. reviewed the evidence in considerable detail [at para. 12 to 152].

Kurke, J. observed [at para. 6] that "distress" was defined in s. 1(1) of the Act as meaning:

"...the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect."

and held [at para. 159] that the test for distress was not "imminent danger of demise" and that a "chronic situation" was sufficient.

Kurke, J. concluded that the SPCA's claim for costs for care for the animals was not exorbitant and that although the "total seems large, it represents the continuous maintenance and care, and medical treatment that many large animals for nearly 9 months". Kurke, J. directed Hurley to pay costs of $62,554.53 [at para. 168].

Kurke, J. concluded [at para. 166] that the SPCA must "scrupulously adhere" to the provisions of the Act and that the SPCA's failure to name two of the horses in the notice disentitled the SPCA from reimbursement for the costs of maintenance of those two animals.

Kurke, J. confirmed that the animals had been removed in compliance with s. 14 of the Act [at para. 168] and directed the return of all except two of the horses to the applicant. Two horses were to remain under veterinary treatment, until they were well enough to be returned.

Mohitian v. Canada (Minister of Citizenship and Immigration); CALN/2015-029, Full text: [2015] F.C.J. No. 1472; 2015 FC 1393, Federal Court of Canada, Boswell J., December 17, 2015.

Immigration -- Applications for Immigration as Self-Employed Farmers -- Procedural Fairness -- Fair Opportunity to Address Business Feasibility Concerns.

A 53 year old citizen of Iran and his wife (the "Applicant") applied to the Federal Court for the judicial review of a decision of an officer of the Canadian Embassy in Ankara, Turkey who had denied an application for permanent residence in Canada as a self-employed person.

The Applicant owned an interest in a citrus orchard and walnut orchard in Iran. He valued those interests in excess of $1 million Cdn and indicated he owned other property worth in excess of $1 million Cdn.

In August of 2007, the Applicant and his wife had visited Canada for a month travelling from Vancouver to Saskatchewan.

The Applicant applied for permanent residence in November of 2007 in the "self-employed category" pursuant to s. 88(1) of the Immigration and Refugee Protection Regulations, SOR/ 2002-227 (the "Regulations") intending to purchase an existing farm in Saskatchewan.

The application for a permanent resident Visa languished for nearly 7 years. On February 6, 2015 an immigration officer at the Canadian Embassy in Ankara, Turkey requested updated immigration forms.

The Applicant's consultant forwarded a letter with the requested documentation to the Embassy on March 8, 2015.

In a letter dated March 30, 2015, the Embassy officer denied the Applicant's application for permanent residence, because the Applicant had failed to provide sufficient detail about his proposed self-employment in Saskatchewan. In particular, the officer concluded that the Applicant did not provide evidence of any research regarding the cost of farmland and accommodations in Saskatchewan, the cost of supplies, salary and income expectations, or the feasibility of the proposed farm.

The officer also stated that he was not satisfied that the Applicant had met the "test of relevant experience" and did not have sufficient readily available funds to be transferred to Canada which could be used to create an employment opportunity for himself and to maintain himself and his family or to make a significant contribution to Canadian society.

The officer stated that the Applicant did not present a "realistic business plan" or demonstrate "appropriate experience and appropriate skills" to become self-employed as a farmer in Canada.

The officer did refer to the Applicant's visit to Saskatchewan in 2007 and the fact that the Applicant had identified hazel nuts, Siberian crab apples and blueberries as possible crops. The officer observed that the Applicant's immediate readily available funds of $25,000.00 was low.

Decision: Boswell, J. set aside the officer's decision [at para. 26] and directed that the matter be returned for reconsideration by a different officer.

Boswell, J. concluded [at para. 15] that the officer had made unreasonable findings of fact. Although the review officer had stated at one point that he was satisfied the Applicant met the test of relevant experience, he stated at another point that he was not satisfied the Applicant had done so. He concluded "this is unintelligible and, hence, unreasonable" [at para. 16].

Boswell, J. also concluded that the Applicant had been denied procedural fairness by the officer by not affording the Applicant an opportunity to address the officer's concerns about his intent and his ability to become self-employed in Canada.

Boswell, J. observed [at para. 18]:

[18] The Officer found that the Applicant had not presented "a realistic business plan". This finding, however, was made without any input or information from the Applicant other than that which he had submitted with his application in November 2007 and in March 2015 in response to the Embassy's request for updated forms and documents in its letter of February 6, 2015. This February 2015 letter contained a detailed, two page checklist as to what forms and other documentation the Applicant should submit; it also advised that where a requested document was unavailable a written explanation with full details should be provided. This letter did not request or advise that the Applicant should submit a business plan.

Boswell, J. also observed that the review officer did not exercise his discretion to call the Applicant in for an interview [at para. 19]; that there is no requirement under the Act or the Regulations for a formal business plan [at para. 21]; that the Overseas Processing Manual indicated that formal business plans entail unnecessary expense. The Manual also indicates that if officers have concerns about eligibility or admissibility... "the Applicant must be given a fair opportunity to correct or contradict those concerns" and to "rebut the content of any negative provincial assessment that may influence the final decision". The officer has an obligation to provide a thorough and fair assessment in compliance with the terms and spirit of the legislation and procedural fairness requirements".

Boswell, J. concluded at para. 23 and 24:

[23] I agree with the Applicant that it was not fair in the circumstances of this case for the Officer not to have alerted him as to the concerns about his business plan, particularly considering that he was not required by the Act or Regulations to submit a formal business plan. Although an interview may not have been required, a simple procedural fairness letter informing the Applicant of the Officer's concerns in this regard should have been sent to the Applicant. This is all the more so in view of the lengthy period of time which had transpired in processing the Applicant's application and the relative promptness it was dealt with after the Applicant updated his documentation.

[24] Although not precisely on point, this Court's decision in Yazdanian v. Canada (Minister of Citizenship and Immigration, 1999 Can LII 7710 (FC), [1999] FCJ No 411, 170 FTR 129 [Yazdanian], involving an Iranian farmer who sought permanent residence as a member of the entrepreneur class, highlights the principle upon which the Officer in this case erred by not affording the Applicant an opportunity to address the concerns about the Applicant's intent and ability to become self-employed in Canada. In Yazdanian, Madam Justice Tremblay-Lamber held as follows:

[18] While I agree with the Respondent that the Applicant has the onus to provide sufficient information to the Visa Officer to support his application, when the Visa Officer has a specific concern that could impact negatively on the application, fairness requires that the Applicant be given an opportunity to respond to her concern. [emphasis in original]

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