ANIMAL CARE REVIEW BOARD

Safety, Licensing Appeals and Standards Tribunals Ontario

cOMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2018-09-27

An appeal made under s. 17(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990 c. O36

Between:

Xiao Liu

Appellant

and

Ontario Society for the Prevention of Cruelty to Animals

Respondent

MOTION DECISION

Panel: Marisa Victor, Member

Animal Care Review Board

Appearances:

For the Appellant: Self-represented

For the Respondent: Brian Shiller, Counsel

Held by written hearing: September 17, 2018

Overview

1The respondent, Ontario Society for Prevention of Cruelty to Animals (the OSPCA), issued an order pursuant to section 13 of the Ontario Society for the Prevention of Cruelty to Animals Act¹ (the Act) regarding 89 chickens and 7 dogs (the animals). Further to that order, the OSPCA removed the animals from the appellant’s care under s. 14(1) of the Act (the Removal Order).

2The appellant appealed the Removal Order to the Animal Care Review Board (the Board).

3During a case conference before the Board, the parties reached a settlement. The Board recorded the settlement in a report dated August 2, 2018, but did not issue an order.

4As part of the settlement, the appellant surrendered all his animals to the care of the OSPCA and the OSPCA in turn revoked the Removal Order. The appellant also agreed to pay animal care costs to the OSPCA.

5After the surrender of the animals and the revocation of the order, and after the appellant had paid some money to the OSPCA, the appellant sought a further case conference and is now seeking a hearing before the Board.

6The OSPCA brought this motion to dismiss the appeal on the grounds that: (a) in light of the revocation of the Removal Order, the Board lacks jurisdiction to hear the matter; and (b) a settlement was reached at a case conference and allowing the matter to proceed undermines the settlement process.

7The appellant opposes the motion on the basis that the animals are not the sole subject matter of the appeal and therefore jurisdiction remains. He states that surrendering the animals does not mean he has withdrawn his appeal. Further some details of the settlement had not been worked out, the respondent failed to provide documents on time, and the OSPCA refused to provide proof that the animals were in distress.

8The motion took place in writing. Both parties made written submissions. Neither party provided affidavit or exhibit evidence. While none of the evidence the parties included in their submissions was sworn, I have taken it into account.

9I find that in the circumstances of this case, the Board has jurisdiction to hear the appeal on costs only but should exercise its power to dismiss the appeal without a hearing on the basis that the remaining issues in dispute are frivolous. This also supports the settlement process the Board follows which allows for an efficient, proportional and timely process.

10The motion is granted and the appeal dismissed without a hearing.

ISSUES

11The main issue is whether the appellant’s appeal should proceed to a hearing. This can be answered by asking the following questions:

a. Does the Board have jurisdiction to hear the appeal:

i. Does the revocation of the Removal Order remove the Board’s jurisdiction?

ii. Does the settlement remove the Board’s jurisdiction?

b. If the Board has jurisdiction, should the Board dismiss the appeal without a hearing?

Issue A: Does the Board have jurisdiction to hear the appeal?

i. Does the revocation of the Removal Order remove the Board’s jurisdiction?

A. Law

12Section 17(6) of the Act sets out the jurisdiction of the Board. With respect to appeals related to section 14(1) of the Act, the Board may:

(b) respecting the removal of an animal under subsection 14 (1), order that the animal be returned to the owner or custodian and may make an order in the same terms as an order may be made under subsection 13 (1); or

(d) order that the whole or any part of the cost to the Society of providing food, care or treatment to an animal pursuant to its removal under subsection 14 (1) be paid by the owner or custodian of the animal to the Society.

13In the OSPCA v. Toronto Humane Society, 2010 ONSC 608 (OSPCA 2010), the Ontario Superior Court of Justice described a decision by the Board under similar circumstances. In that case, the OSPCA issued two s. 13 orders. The Toronto Humane Society appealed the orders to the Board. After the appeal was filed, the OSPCA revoked the orders. The Board ruled it possessed the jurisdiction to hear the appeal, notwithstanding the revocation of the orders. This was based on s. 17(6)(c) of the Act which allowed the Board to consider whether the Toronto Humane Society was entitled to reimbursement by the OSPCA of any costs it may have incurred to comply with the orders prior to their revocation. A hearing was held on that issue.²

B. Evidence and Analysis

14The uncontroverted evidence before me is that the appellant appealed the Removal Order. Following that appeal, the animals were surrendered and the Removal Order was revoked.

15The OSPCA argues that once the Removal Order was revoked, the Board lost jurisdiction to hear the appeal save for the issue of costs as set out in s. 17(6)(d) of the Act.

16The appellant argued that the Board has jurisdiction to discuss the future of the animals and other animal issues.

17The Board’s jurisdiction is described above in s. 17(6) of the Act. In the case of a removal order, our powers are confined under s. 17(6)(b) to upholding the order or ordering the return of animals which may or may not include certain terms. The return of the animals is a key issue with the appeal. With the surrender of the animals to the OSPCA, that aspect of the appeal is no longer a live issue and the Board has no power to order the return of the animals.

18However, our powers also include the ability to order a cost award to the Society for providing food, care or treatment to the animals under s. 17(6)(d) of the Act. Unfortunately, these powers do not include the power to discuss the future of the animals that have been surrendered to the OSPCA, nor does the Board have the general discretion to consider other unspecified animal issues.

19Given the Act, the case law referred to above, and the revocation of the Removal Order that was under appeal, I find that the Board does retain jurisdiction to hear an appeal, but only as it relates to costs under s.17(6)(d) of the act.

ii. Does the settlement remove the Board’s jurisdiction?

A. Law

20The Act does not provide guidance with regard to the jurisdiction of the Board in the face of a settlement.

21The Rules of the Board do however mention settlement.³

22The relevant sections of rule 14.2 of the Rules states that the Board may direct the parties to participate in a case conference and discuss the following issues:

a. The settlement of any or all of the issues;

b. The identification, clarification, simplification and narrowing of the issues and whether further particulars are required; or

c. Any other matter that may assist in a fair and efficient resolution of the issues in the proceeding.

23Furthermore, under rule 14.4 of the Rules, case conference settlement discussions are to remain confidential and are held on a without prejudice basis.

24In Saint Mary’s University v. U Sports⁴, the Ontario Superior Court of Justice canvassed the essence of a settlement agreement before a tribunal. The court stated that settlement agreements are contracts. Settlement agreements are governed by the basic principles of contract law, namely – offer, acceptance, and consideration. Furthermore, to conclude that a settlement agreement was reached, the evidence should show that the parties: (1) had mutual intention to create a legally binding contract, and (2) reached agreement on all of the essential terms of the settlement.⁵

B. Evidence and Analysis

25The uncontroverted evidence from the parties is that a settlement was reached and the terms of the settlement were included in the case conference report.

26Once that settlement was reached it was no longer without prejudice.

27Neither party included a copy of the report as evidence, however each extracted certain paragraphs from the report and included that in their submissions.

28The Board did not issue an order with respect to the settlement.

29The parties agree that most of the actions required by the settlement were carried out, namely that:

a. The appellant surrendered the animals to the OSPCA;

b. The OSPCA revoked the Removal Order; and

c. The appellant made two payments to the OSCPA towards the $3,243.98 cost of care of the animals.

30The parties agree the following was not done:

a. The appellant did not withdraw his appeal before the Board; and

b. The appellant did not complete payments to the OSPCA.

31The OSPCA states that all of the terms of the settlement were agreed to and that the settlement is binding. The OSPCA argues that the appellant sought to back away from from the provision of the settlement that related to costs and requested certain documents be provided to him. The respondent states the documents were later provided to the appellant.

32The OSPCA submits the Board lacks jurisdiction to hear the appeal as a result of the settlement agreement.

33The appellant states that at the case conference, prior to the settlement, he faced high pressure to surrender his animals. However, he does not dispute that he surrendered them and has made no demands to reclaim them. In fact, he agrees that the animals were surrendered “for the health of the animals.”

34Further, the appellant states when he spoke to an agent of the OSPCA, after two payments had been made, that “the officer’s explanation and not professional altitude, let the appellant believe that second case conference should be held to confirm some detail for respect the settlement.” (sic). The appellant believes that as a result the Board should hold a hearing.

35Clearly a settlement was reached as there was an offer, acceptance, and some consideration (though not all of the payments were made). Although the appellant stated that he felt pressure, he does not contest the settlement itself, particularly in regard to the surrender of the animals which must be considered an essential element of the agreement.

36The other issues the appellant claims were not worked out were not described in his materials. As a result, it is impossible for me to say that the appellant has shown that these other issues, that he believes require clarification, are essential terms of the agreement. Furthermore, the evidence from the OSCPA suggests that the other issues relate to the delivery of some documents which were subsequently provided to the appellant.

37While I have found that a settlement was reached, neither the Act nor our Rules state that the Board lacks jurisdiction in the case of a settlement agreement or in the case of a settlement agreement that falls apart. It may be that a settled appeal is moot, but that was not argued by the OSPCA.

38As a result, I find that the Board has not lost jurisdiction over the remaining issue (costs), as a result of the settlement agreement.

Issue B: If the Board has jurisdiction, should the Board dismiss the appeal without a hearing?

A. Law

39Rule 3.4 of the Rules allows the Board to dismiss an appeal without a hearing under certain conditions. The relevant conditions are:

a. The appeal is frivolous, vexatious, or commenced in bad faith; or

b. The appeal relates to matters that are outside the Tribunal’s jurisdiction.

40In addition, rule 3.1 of the Rules allows that Board to liberally interpret the rules and may vary or waive the rules to:

a. Facilitate a fair, open and accessible process and to allow effective participation by all parties;

b. Ensure efficient, proportional and timely resolution of the merits of the proceeding before the Board; and

c. Ensure consistency with governing legislation and regulations.

B. Evidence & Analysis

41The appellant states that in addition to the jurisdiction and settlement arguments discussed above, the appeal should proceed on the following grounds:

a. That the documents requested were provided but provided late;

b. That after the animals were surrendered, the OSPCA refused to provide details for the reasons for the removal of the animals and refused to provide proof the animals were in distress; and

c. The OSPCA failed to provide proof of service for delivering the Removal Order to the appellant.

42The OSCPA states that if the appellant is allowed to proceed to a hearing despite the settlement, it will undermine the entire case conference process before the Board and that in the future, the OSPCA will not engage in settlement discussions.

43As I have already determined, the Board has the jurisdiction to hold a hearing on the issue of costs. However, the reasons the appellant wants a hearing are not related to costs and are not relevant in the case where the animals have been surrendered. I find therefore that the reasons the appellant wishes to have a hearing are frivolous and are not an efficient, proportional or timely use of the Board’s resources.

44Furthermore, it is in the parties’ and the Board’s best interest that settlement agreements entered into are carried out. This preserves the case conference process for which settlement of some or all of the issues is a primary goal. This furthers the Board’s goal to ensure efficient, proportional and timely resolution of the merits of the proceeding before the Board’s hearings.

45I find that the Board should dismiss the appellant’s appeal without a hearing for the following reasons:

a. The Board has jurisdiction for a hearing only with regard to costs and the appellant does not raise costs as an issue;

b. The appellant’s reasons for wanting a hearing focus on issues which are frivolous; and

c. A settlement agreement was reached on the essential items, the support of which furthers the goals of the Board.

ORDER

46The motion is granted. The appeal is dismissed.

Released: September 27, 2018

____________________________ Marisa Victor, Member

Footnotes

1. 1R.S.O. 1990 c. O36.
2. 2OSPCA 2010 at paras 15 – 17.
3. 3Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the Rules)
4. 42017 ONSC 6749
5. 5Saint Mary’s University 2017, at paras 31 and 46.