ANIMAL CARE REVIEW BOARD
Tribunals Ontario
COMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX
Tribunaux décisonnels Ontario
RECONSIDERATION DECISION
Before: Marisa Victor
Date of Order: 08/13/2021
Board File Number: 13047/ACRB
Case Name: Steele v Chief Animal Welfare Inspector
Written Submissions by:
For the Appellant: Amanda Steele
For the Respondent: Deanna Exner, Counsel
OVERVIEW
This request for reconsideration was filed by the appellant in this matter.
It arises out of a decision dated May 7, 2021 (the Decision) in which the Board ordered that the appellant’s horse, Ferrari, should not be returned to the owner.
On May 29, 2021, the appellant requested a reconsideration on the basis that:
a. The Board acted outside its jurisdiction or violated the rules of procedural fairness;
b. The Board made errors of fact or law such that the Board would have likely reached a different result had the error not been made;
c. The Board heard false evidence from a party or witness, which was only discovered after the hearing and likely affected the result; and
d. There is new evidence that was not before the Board when rendering its decision, could not have been obtained by the party now seeking to introduce it, and would likely have affected the result.
- The appellant seeks a re-hearing of the case.
RESULT
- The request for reconsideration is dismissed.
ANALYSIS
The grounds for a request for reconsideration to be allowed are contained in 18.2 of the Tribunal’s Rules1, as amended.
The onus is on the party requesting a reconsideration, in this case the appellant, to establish one or more of the grounds for reconsideration. Further, the reconsideration request is not an opportunity to reargue the appeal.2
Jurisdictional and Procedural Fairness Submissions
- With respect to the first ground of reconsideration, the appellant argues that the following are jurisdictional or procedural fairness errors:
a. The case conference order determined the issues before the hearing, including that the appellant could appeal the statement of account. The Board did not allow an appeal of the statement of account to proceed at the hearing.
b. The respondent took the position at the case conference that it did not oppose the return of the horse to the appellant. However, at the hearing the respondent took the position that the appellant should not get her horse back resulting in procedural unfairness to the appellant.
c. The appellant opposes that some of her adjournment requests were denied.
The respondent argues that the appellant has wrongly assumed that the Board’s jurisdiction is based on the case conference report, however it is the Provincial Animal Services Act, 2019 (the Act) that governs. The Board correctly did not hear arguments relating to the statement of account because the appellant did not file an appeal of the statement of account. Further, in her submissions the appellant has improperly raised confidential settlement discussions. Finally, there was no procedural fairness in denying the adjournment requests made by the appellant, nor has the appellant pointed to any specific unfairness as a result of those denials.
I find that the appellant raises issues that do not meet the test for reconsideration. The appellant’s failure to file a written appeal of the statement of account within the prescribed period of time, as required by the Act, and discussed in paragraph 9 of the Decision, resulted in the Board being jurisdictionally unable to hear that appeal.
The appellant’s arguments regarding what was said during settlement discussions at the case conference also cannot form a valid basis for a reconsideration. That information is confidential and was not before the Board at the hearing.
Finally, there was no denial of procedural fairness in the denial of several of the appellant’s requests for adjournments allegedly due to her work schedule. As set out at paras. 11 to 12 of the Decision, the appellant failed to abide by the Rules for adjournments, failed to support some of her requests for adjournments with any evidence that they were necessary, and in any event, no prejudice resulted as her counsel attended throughout and she was able to attend most days and was able to provide her testimony.
Errors of Fact or Law
- The appellant argues that the following were the errors of law or fact such that the Board would likely have reached a different result had the error not been made:
a. The appellant argues that she filed an application pursuant to section 38 (3) but the Board ruled otherwise;
b. The appellant argues that the Act does not specify a burden of proof and the Board wrongly determined that the burden of proof was on the appellant; and
c. The appellant argues that the Board wrongly determined that the appellant had not established that the custodian of the horse, and not the appellant, was responsible for the horse’s distress;
The appellant states that the Board heard false testimony from the respondent’s representative, Michael Draper, in the closing submissions.
Finally, the appellant also argues that the Board wrongly determined that the appellant should not have the horse returned to her and disputes the some of the evidentiary findings in the Decision.
The respondent argues that the appellant is re-arguing her case and has not established an error of fact or law that meets the test for a reconsideration.
I find that the appellant has not established that any error of fact or law occurred.
The appellant filed an appeal under s. 38(1) and did not file an application to have her animal returned to her under s. 38(3) of the Act as explained in paras 132 – 145 of the Decision. The appellant appealed the removal order under s. 38(1) on the basis the order was not necessary and denied that the horse was in distress at the time of the removal. There was no written application before the Board under s. 38(3) which would have required the appellant to agree the animal was in distress and seek to have it returned on the basis that the horse was no longer in distress.
The overall burden of proof was correctly decided as being on the appellant who was seeking to appeal the removal order. This was explained in the Decision at paragraphs 19 – 27.
The appellant takes issue with statements made by Mr. Draper, representative of the respondent, in his closing submissions. This is not evidence and as such it was not false testimony. Mr. Draper did not testify as a witness before the Board.
Finally, the Decision found that the appellant, the owner of the horse, is ultimately responsible for the care of her horse as explained in paras 128 -134 of the Decision.
False Evidence and New Evidence
- The appellant stated in her request for reconsideration that the Board heard false evidence from a party or witness, which was only discovered after the hearing and likely affected the result; and that there was new evidence that was not before the Board when rendering its decision. She provided no support for these allegations in her materials other than her allegations regarding Mr. Draper, already dealt with in the above section. As a result, these grounds for reconsideration are dismissed.
Order
- For the reasons set out above, the reconsideration request is dismissed.
Released: August 13, 2021
____________________________
Marisa Victor, Member
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017, as amended (the Rules).
- See Brooke Rumm v. Chief Animal Welfare Inspector, 2021 ONACRB 3 at para. 9 and Shelley Langstaff v. Chief Animal Welfare Inspector, 2020 ONACRB 8, at para. 31.