Animal welfare advocates denied public interest standing to seek judicial review of zoo permit

  • March 16, 2020
  • Christopher Wirth and Shamim Fattahi

With the recent denial of leave to appeal by the Supreme Court of Canada [2019] SCCA No 295, the Alberta Court of Appeal’s decision in Zoocheck Canada Inc. v. Alberta (Minister of Agriculture and Forestry), 2019 ABCA 208 has been confirmed. It upholds the decision of a chambers judge denying public interest standing to an advocacy group seeking judicial review of a decision by the Alberta Minister of Environment and Parks to renew a zoo permit.


Groups of animal welfare advocates, Zoocheck, had longstanding concerns about the living conditions of an elephant named Lucy at the Edmonton Valley Zoo. They brought an application for judicial review of the Minister’s decision to renew the zoo’s permit under the Wildlife Act, RSA 2000, c W-10, and sought a declaration, in a preliminary application, that they had standing to seek judicial review.

The chambers judge dismissed their preliminary application on the basis that they failed to meet the requirements for public interest standing. Applying the Supreme Court of Canada’s test for public interest standing, the chambers judge considered: (1) whether there was a serious and justiciable issue to be addressed; (2) whether the applicants had a genuine interest in the outcome of the matter; and (3) whether the proposed action was a reasonable and effective means of bringing the matter before the court.

With respect to the first two factors, the chambers judge explained that they must be viewed in the context of the actual decision the court was being asked to review. In this case, the Wildlife Act and applicable regulations dealt with logistics such as licensing, and were not intended to function as animal protection legislation. The applicants’ real concern was the welfare of Lucy, and their interest in the zoo permit was purely collateral to their goal of having Lucy relocated. Therefore, in the context of a judicial review of the Minister’s decision to renew the zoo’s permit, the applicants had not raised a serious and justiciable issue, and did not have a genuine interest in the outcome of the matter. The chambers judge also rejected the applicants’ submission that the permit should not have been renewed because the zoo was not complying with the applicable zoo standards, as the regulations had expressly not incorporated those standards related to animal protection.

On the third factor, the chambers judge found that Zoocheck had failed to prove that their application for judicial review of the decision to renew the zoo’s permit was a reasonable and effective way to bring the issue of Lucy’s well-being to court. Rather, there was a more appropriate mechanism available to the applicants – specifically, a complaint under the Animal Protection Act, RSA 2000 c A-41. Moreover, there were public authorities within Alberta with responsibilities for animal welfare who had elected not to commence proceedings in relation to Lucy.

The chambers judge also dismissed the application on the basis that the judicial review application itself constituted an abuse of process because it was a collateral attack upon previous proceedings initiated to address the concerns about Lucy’s welfare.

The applicants appealed the chamber judge’s decision to the Alberta Court of Appeal.

Decision of the Alberta Court of Appeal

A majority of the Court of Appeal dismissed the appeal, upholding the chamber judge’s decision to deny public interest standing to the appellants. The majority emphasized that the decision to grant or deny public interest standing is a discretionary decision that should be afforded deference by an appellate court. An appellate court may only interfere with such a decision where the lower court acted on a wrong principle or failed to give sufficient weight to all relevant considerations, which the appellants did not demonstrate in this case. The chambers judge applied the correct test for determining whether public interest standing should be granted to the appellants, and considered the factors in combination, with the required flexibility. The judge’s decision was therefore entitled to deference.

However, on the issue of abuse of process, the majority held that the chambers judge had erred in finding that the Zoocheck’s application for public interest standing was a collateral attack on previous proceedings while some of the issues raised in the current application were similar to those in the previous proceedings, the applications were directed at different parties and involved different legal tests.

The Supreme Court of Canada has recently denied leave to appeal.


This case signals a possible move towards a stricter application of the test for granting public interest standing. Parties seeking public interest standing must be able to show that the issues before the court are serious and justiciable, and that they have a genuine interest in the outcome of the matter—not only in a general sense, but in the context of the actual decision they are asking the court to review. Further, appellate courts will continue to afford deference to the discretion of courts at first instance to grant or deny public interest standing, as long as the appropriate principles are applied.

Christopher Wirth is a Partner and Shamim Fattahi is an Articling Student at Keel Cottrelle LLP.