Decision Date: March 4, 2019
Panel: Linda Michaluk
Keywords: Wildlife Act – ss. 6.4, 6.5; Permit Regulation – ss. 4(f); permit; controlled alien species; prohibited species; cheetah; special circumstances
Earl Pfeifer appealed a decision of the Director of Wildlife (the “Director”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The Director denied an application by Mr. Pfeifer, doing business as RunCheetahRun, for a permit to possess “controlled alien species”; namely, two cheetahs.
Cheetahs are designated as “controlled alien species” (“CAS”) under the Controlled Alien Species Regulation (the “CAS Regulation”). Under the CAS Regulation, a person is prohibited from possessing a CAS unless the person holds a permit. The Director may grant a permit to possess a CAS under section 4(f) of the Permit Regulation, if: the animal was in BC on March 16, 2009; the permit applicant operates a zoo or is an educational or research institution; or, the Director is satisfied that special circumstances exist.
In 2013, Mr. Pfeifer imported two cheetahs into Ontario from a breeder in South Africa after obtaining import permits from Ontario. The cheetahs were then transported, with the proper permits, to a facility in Alberta where they remained until October 2014.
In April 2014, RunCheetahRun, an organization operated by Mr. Pfeifer for the purpose of cheetah awareness and conservation, applied for a permit to possess the cheetahs in Kaslo, BC, “for zoos and education and research institutions”. In early 2016, the Ministry became aware that Mr. Pfeifer no longer owned/controlled the Kaslo property. The Director denied the permit, as CAS permits are location specific.
While the Kaslo application was being considered, RunCheetahRun also applied to possess the cheetahs in Creston, BC. In July 2016, the Director denied the application on the basis of the location and ownership of that property. Mr. Pfeifer appealed the decision, but the appeal was abandoned.
Meanwhile, in December 2015, a cheetah was spotted loose on a highway near Crawford Bay, BC, and Mr. Pfeifer was charged with possessing an alien species without a permit in relation to this incident. In June 2017, the Crown directed a stay of proceedings on those charges due to improperly obtained evidence.
In January 2016, the cheetahs were confirmed to be in Ontario.
On June 29, 2016, Mr. Pfeifer applied for a permit to possess the cheetahs “for zoos and education and research institutions” on behalf of RunCheetahRun, at a new location in Crawford Bay, BC. The application was subject to review by the CAS Permit Advisory Committee (“PAC”) in accordance with Ministry policies and procedures. The PAC is comprised of professionals from the Canadian Association of Zoos and Aquariums, the Pet Industry Joint Advisory Council, the BC Society for the Prevention of Cruelty to Animals, and Ministry specialists. Mr. Pfeifer had an opportunity to reply to the PAC’s comments regarding his application.
On August 16, 2017, the Director denied the permit application. Among other things, the Director’s decision noted that the application did not fit within the categories in the Ministry’s policies and procedures, and the PAC did not support the application. Ultimately, the Director concluded that there were no “special circumstances” justifying a permit to possess the cheetahs.
Mr. Pfeifer appealed the Director’s decision based on several grounds for appeal. He alleged that the Director: erred in construing the legislation; fettered her discretion by elevating the Ministry’s policies and procedures to legislative status; unreasonably relied on the PAC’s comments; relied on unlawfully obtained evidence underlying the charges that were stayed by the Crown; and, erred in finding that the cheetahs pose a danger to public safety. Mr. Pfeifer requested that the Board approve a permit, and award him costs in the appeal.
Based on the relevant provisions in the Wildlife Act and regulations, and statements made in the legislature when the CAS Regulation was introduced, the Board found that the legislature intended to enact a regulatory framework that sets a high bar for the private ownership of CAS. The framework was established to discourage not only keeping prohibited CAS as pets, but private ownership of CAS in general. The fact that cheetahs are designated as CAS indicates that the Minister considered cheetahs to “pose a risk to the health or safety of any person” or to “pose a risk to property, wildlife or wildlife habitat” under section 6.4 of the Wildlife Act. Moreover, cheetahs are designated as a prohibited species under Schedule 1 of the CAS Regulation which indicates that they are considered to be “the most harmful alien species”: they are designated as “prohibited species individual” as opposed to “restricted species individual”. Given that cheetahs are designated as a prohibited species, the threshold for “special circumstances” justifying a possession permit is high.
The Board considered whether Mr. Pfeifer or RunCheetahRun could be considered a zoo or an educational or research institution for the purposes of issuing a permit under section 4(f)(ii) of the Permit Regulation. The Board held that they did not fit within those categories.
Next, the Board considered whether there were special circumstances that warranted granting a permit under section 4(f)(iii) of the Permit Regulation. The Board considered a great deal of the evidence, including expert evidence.
The Board noted that Mr. Pfeifer’s business plan proposed public interaction with the cheetahs, but he had no training as a cheetah trainer and handler, and he had only seen the cheetahs once since they returned to Ontario in 2016. The Board also considered Mr. Pfeifer’s testimony that: he brought the cheetahs to BC without a permit despite knowing that a permit was required; his cheetah was loose on a highway in 2015, after it escaped to chase a deer while he was walking it; he had not initiated the safety protocols included in his application to address a cheetah escape; and, he was not truthful with Conservation Service Officers when they questioned him about the escape.
The Board concluded that Mr. Pfeifer had demonstrated a disregard for BC laws regarding CAS, and for safety procedures and protocols. This was a concern because Mr. Pfeifer intended that the cheetahs would live in his residence and for their enclosure would be part of the residence, the cheetahs would require regular walks and exercise outside of their enclosure, and he planned to use the cheetahs for educational and outreach programs targeting children.
The Board concluded that there were no special circumstances that warranted granting a permit under section 4(f)(iii) of the Permit Regulation. The Board also held that any defects in the Director’s decision-making process were cured by the de novo nature of the appeal proceedings.
For all of those reasons, the Board confirmed the Director’s decision.
Regarding Mr. Pfeifer’s application for costs, the Board found that there were no special circumstances that would warrant ordering the Director to pay Mr. Pfeifer’s costs associated with the appeal.
Accordingly, the appeal was dismissed, and the application for costs was denied.