Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
Between:
Shelley Langstaff
Appellant
and
Chief Animal Welfare Inspector
Respondent
RECONSIDERATION DECISION
Before: Helen Karpouzos (previously Helen Burgess), Member
Written Submissions By:
For the Appellant: Self-represented
For the Respondent: Michael Draper, Agent
Overview
1The appellant requests reconsideration of the Animal Care Review Board’s (the “Board”) decision released on July 21, 2020, following a hearing in writing, which upheld a compliance order made with respect to her dog, “Marley”, under the authority of section 30(1) of the Provincial Animal Welfare Services Act, S.O. 2019, c. 13 (the “Act”), and his subsequent removal from her care pursuant to section 31(1) of the Act.
2By way of background, the hearing was scheduled to commence by teleconference on June 26, 2020; all parties phoned in. In the days preceding the hearing date, the Board became aware that the appellant was having difficulty reviewing the respondent’s disclosure, and with providing her own in a timely manner. For that reason, the presiding Board member offered to adjourn the proceedings to provide the appellant with the opportunity to review the respondent’s materials. The respondent consented to an adjournment but the appellant did not. Therefore, the hearing proceeding as scheduled.
3Unfortunately, the appellant did not cooperate in the proceedings. As a result, the presiding Board member terminated the hearing and issued an order requiring the hearing to be conducted in writing, with submissions due by July 3rd. The respondent provided the Board with written submissions but the appellant did not.
4In making its decision on the appeal, the Board reviewed and considered the appellant’s submissions contained within her Notice of Appeal and in email correspondence relating to her Notice of Appeal.
5On August 31st, the appellant emailed the Board to express her disagreement with the appeal decision. On September 3rd, the Board sent a letter, by email, to the appellant, reminding her that the Board had notified her on July 28th that the deadline for making a request for reconsideration was August 11th. The appellant did not submit a request at that time. The Board offered the appellant a new deadline of September 11th to request reconsideration.
6It should be noted that the appellant did not formally file a Request for Reconsideration Form or submissions. The appellant’s submissions for reconsideration were contained within two emails the Board received on September 8th and 11th. For that reason, I am relying on the hearing file and the appellant’s submissions contained within those emails in making my decision on this reconsideration.
RESULT
7For the reasons that follow, I dismiss the appellant’s request for reconsideration.
Analysis
8The grounds for a request for reconsideration are set out in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). In order to grant reconsideration, I must be satisfied that one or more of the following criteria are met (Rule 18.2 of the Rules):
a. The Board acted outside its jurisdiction or violated the rules of procedural fairness;
b. The Board made an error of law or fact such that the Board would likely have reached a different result had the error not been made;
c. The Board heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d. There is evidence that was not before the Board when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
9Upon reconsidering a decision of the Board, the Board may: (a) dismiss the request; or (b) after providing responding parties an opportunity to make submissions, (i) confirm, vary, or cancel the decision or order; or (ii) order a rehearing on all or part of the matter (Rule 18.4 of the Rules).
10The onus is on the party seeking reconsideration to establish one or more of the grounds set-out in Rule 18 in order for reconsideration to be successful.
11The appellant submits that the Board violated the rules of procedural fairness pursuant to Rule 18.2(a) of the Rules, for the following reasons:
a. The appellant did not receive fulsome disclosure;
b. The opportunity to adjourn the hearing was unavailable to her “due to unforeseen circumstances orchestrated by outsiders at shelters and or city planning departments”;
c. The Board failed to provide her with instructions regarding how to proceed with a written hearing; and
d. A decision was made without a hearing.
12The appellant’s submissions also largely repeated those made in her Notice of Appeal, which are not relevant to this application and will not be considered for reasons set out below.
(a) Did the appellant receive fulsome disclosure?
13The appellant submits that she did not receive fulsome disclosure from the respondent during the hearing process and that a substantial portion of the evidence that was provided to her has since been deleted from her email account. She submits that she became aware of the deleted emails on September 10th.
14On June 23rd, the appellant copied the Board on an email she sent to the respondent. In that email, the appellant notified the respondent that she was unable to print the disclosure documents that were delivered to her by email, and that she would not have access to a computer because she was relocating to a new housing shelter.
15On June 24th, the Board received an email from the respondent’s representative advising that he was made aware of the disclosure issues the appellant was facing, and noted that he would consent to an adjournment of the proceedings should the appellant require it in order to adequately prepare for the hearing.
16While I am mindful that the appellant had difficulty printing the disclosure due to her living situation, I find that she did in fact receive it. The appellant did not outline what, if any, requested documentation was withheld from her. Further, the appellant suggests that she did receive disclosure but that a large portion of it went missing from her email more than two months after the date of the hearing.
17I find that the Board did not violate procedural fairness with respect to the appellant’s inability to print the disclosure. I find that the appellant received the respondent’s materials, and that an adjournment was canvassed with the parties at the outset of the hearing to remedy the appellant’s difficulties in printing the disclosure, but that the appellant did not consent to an adjournment.
(b) Was an adjournment unavailable to the appellant?
18The appellant submits that the opportunity to adjourn the hearing was unavailable to her “due to unforeseen circumstances orchestrated by outsiders at shelters and by city planning departments”.
19While the appellant does not specifically allege that an adjournment was unavailable to her due to the Board’s conduct, I will address the issue of procedural fairness with respect to the availability of an adjournment.
20As stated above, the appellant notified the Board on June 23rd of the difficulties she was having printing the disclosure, and that she would not have access to a computer in the days that followed.
21On June 25th, the Board emailed the appellant to advise her that the Board was prepared to reschedule the hearing to the following week, in an effort to afford her time to review the respondent’s documents and prepare for the hearing. The appellant did not respond.
22On June 26th, at the commencement of the hearing, the appellant was offered the opportunity to adjourn the hearing, with the consent of the respondent. The appellant did not consent to an adjournment, so the hearing proceeded as scheduled. The hearing was terminated a short-time after it began due to the appellant’s failure to cooperate in the proceedings.
23I find that the Board did not violate the appellant’s right to procedural fairness on the basis that an adjournment was not available to her. An adjournment of the hearing was in fact available to her but the appellant did not consent to it.
(c) Did the Board fail to provide the appellant with instructions about how to proceed with a written hearing?
24On June 29th, the Board released an order, following the June 26th teleconference hearing, that required the parties to provide their written submissions on the issues before the Board on or before July 3rd.
25The Order made it clear that the written hearing would proceed despite one party’s failure to provide written submissions. The Order further instructed the parties to provide their submissions to a specified email address. The Board did not receive correspondence from the appellant requesting clarification or further information about how to make written submissions.
26For these reasons, I find that the Board did not violate the appellant’s right to procedural fairness on the basis that she did not receive instructions about how to proceed with a written hearing. The instructions were contained within the June 29th Order, and the appellant did not request further clarification from the Board with respect to how to proceed.
(d) Was a decision made without a hearing?
27A hearing by telephone was attempted on June 26th. An order was made that the hearing be held in writing because the appellant was not cooperative during the proceedings.
28The submission deadline for the written hearing was July 3rd. The parties were advised that the hearing would proceed whether or not one party failed to provide their submissions by the July 3rd deadline. The Board received the respondent’s submissions; however, it did not receive any submissions from the appellant.
29In its decision, the Board specified that it reviewed and considered the appellant’s submissions accompanying her Notice of Appeal in reaching its decision.
30I find that the Board did not violate procedural fairness for failing to hold a hearing. An oral hearing was attempted on June 26th, and when it was impossible to continue, a written hearing was scheduled. The appellant did not cooperate in the first attempt at a hearing and did not participate in the written hearing.
31In light of all of these facts, I find that the appellant has failed to meet her burden of establishing that the Board violated the rules of procedural fairness. Furthermore, the appellant made several submissions that were beyond the scope of a request for reconsideration. The grounds for reconsideration are limited and specific; it is not an opportunity for the appellant to reargue her case on appeal.
Conclusion
32For the reasons set out above, the reconsideration request is dismissed.
Released: October 15, 2020
________________________ Helen Karpouzos, Member
(previously, Helen Burgess) Animal Care Review Board