Decision Date: July 27, 2016

Panel: Linda Michaluk

Keywords: Wildlife Act – ss. 19(1), 101(1); Permit Regulation – ss. 2(t), 5(1); permit; non-native wildlife; wildlife rehabilitation and release; reasons for decision; fettering; procedural fairness

Wild Animal Rehabilitation Centre, operated by the British Columbia Society for the Prevention of Cruelty to Animals (“SPCA Wild ARC”), appealed a decision of the Deputy Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Programs, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Regional Manager issued a permit to SPCA Wild ARC allowing it to operate a designated wildlife rehabilitation facility, but refused to include a clause that would allow the release of any non-native species designated in Schedule C of the Designation and Exemption Regulation. Such non-native species include grey and fox squirrels, European starlings, house sparrows, and eastern cottontail rabbits, among other things.

SPCA Wild ARC operates a wildlife rehabilitation centre on Vancouver Island. Beginning in 1997, the Ministry issued annual permits to it authorizing the rehabilitation and release of wildlife. In 2005, the Ministry changed the permit to prohibit the release of non-native wildlife listed in Schedule C. In 2006, SPCA Wild ARC’s permit allowed the release of non-native species subject to certain requirements. Specifically, eastern grey squirrels had to be sterilized and ear-tagged prior to release, and only released into designated areas. The permit also stated that non-native species that “cannot be rehabilitated/won’t survive will be humanely euthanized.” Similar permits, with various conditions on the release of non-native wildlife, were issued by the Ministry from 2007 to 2014, except for 2009 when no permit was issued.

In early 2015, SPCA Wild ARC applied to renew its permit. After considering the permit application and some Ministry policies, the Regional Manager advised SPCA Wild ARC that he intended to issue a permit that did not allow the release of non-native species, but he offered SPCA Wild ARC an opportunity to respond in writing before making his decision. In response, SPCA Wild ARC requested a copy of the Ministry policies he had considered, or research to support his conclusion, but none was provided. Representatives of SPCA Wild ARC also met with the Regional Manager to discuss the matter.

Subsequently, the Regional Manager issued a permit prohibiting the release of non-native wildlife under Schedule C. SPCA Wild ARC appealed the permit, and asked the Board to vary the permit by adding a clause allowing the release of rehabilitated non-native species. SPCA Wild ARC submitted that the Regional Manager’s decision was inconsistent with past permits, arbitrary, unfair, unsupported by science, and ignored important considerations.

The Board found that the Regional Manager is obligated under section 101(1) of the Wildlife Act to provide written reasons for his decision, and at common law, his reasons must be adequate. The Board held that the Regional Manager provided inadequate reasons for his decision, as he provided no analysis of the information he had considered and little explanation for his conclusions other than a general reference to Ministry policy. However, the Board found that the appeal hearing cured this deficiency, because the Regional Manager provided a detailed explanation of his decision-making process, he disclosed the relevant Ministry policies, and SPCA Wild ARC had a full opportunity to make submissions in response.

Next, the Board considered whether the Regional Manager fettered his discretion by applying Ministry policies without considering information provided by SPCA Wild ARC. The Board found that, although the Regional Manager had applied a Ministry policy against releasing non-native species, there was evidence that he also considered the information provided by SPCA Wild ARC. In addition, the Board held that the Regional Manager erred by failing to disclose the key Ministry policy to SPCA Wild ARC until after the appeal was filed, and considering some incorrect information from Ministry employees. However, the appeal hearing cured those defects.

Based on scientific and expert evidence regarding the potential impact of releasing non-native species from the SPCA Wild ARC facility, the Board concluded that the release of small numbers of rehabilitated non-native species from the facility would not be contrary to the proper management of wildlife in the province, as long as certain conditions were followed. Among other things, the Board concluded that eastern grey squirrels should be sterilized before being released, and non-native wildlife should be released near the area where they were captured.

Finally, although SPCA Wild ARC did not request an order for costs against the Regional Manager, the Board asked SPCA Wild ARC to advise whether it wanted to seek costs due to the Regional Manager’s conduct during the appeal process.

Accordingly, the permit was varied, and the appeal was allowed.