ANIMAL CARE REVIEW BOARD

Tribunals Ontario

COMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX

Tribunaux décisonnels Ontario

RECONSIDERATION DECISION

Before: Marisa Victor

Date of Order: 09/03/2021

Board File Number: 13192 & 13193/ACRB

Case Name: Thomas Pryde, Adrienne Spottiswood & Georgina Pierce v Chief Animal Welfare Inspector

Written Submissions by:

For the Appellants: Eric Gillespie, Counsel Yasmeen Peer, Counsel John May, Counsel Kristian Ferreira, Articling Student

For the Respondent: Deanna Exner & Jason Kirsh, Counsel

OVERVIEW

1On July 2, 2021, the respondent filed a request for reconsideration in this matter. On July 14, 2021, the appellants also filed a request for reconsideration of this matter. Both requests for reconsideration will be considered together in this decision.

2The requests for reconsideration arise out of an Animal Care Review Board (the Board) decision dated June 23, 2021 (the Decision) concerning some 240 sled dogs and 19 horses. In the Decision, the Board ordered that the dogs, who live outdoors, must have chains that are at least 3 meters in length, doghouses that are insulated, and doghouses of adequate size. The compliance dates for all the orders relating to the dogs were amended to September 1, 2021. The orders relating to the horses were revoked.

3The respondent’s request for reconsideration concerns the September 1, 2021 compliance date in the Decision (Issue 1). The respondent asks that the original compliance dates, which had passed by the time the June 23, 2021 decision was released, be reinstated.

4The appellants’ request for reconsideration states that the Board incorrectly interpreted the requirement in Regulation 444/19 that all outdoor dogs have a chain that is at least 3 meters in length (Issue 2).

RESULT

5Both requests for reconsideration are dismissed.

ANALYSIS

6The grounds for a request for reconsideration are contained in 18.2 of the Tribunal’s Rules,¹ as amended:

18.2 CRITERIA FOR GRANTING RECONSIDERATION

The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

c. The Tribunal 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 Tribunal 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.

7The onus is on the party requesting a reconsideration, in this case both the appellants and respondent, to establish one or more of the grounds for reconsideration. Further, the reconsideration request is not an opportunity to reargue the appeal.²

Issue 1 – Respondent’s Request for Reconsideration on the Compliance Date

Respondent’s Submissions on Respondent’s Request for Reconsideration

8The respondent requested a reconsideration on the basis that the compliance dates in the original orders had passed by the date of the Board’s order to extend them and that the dates were extended without the opportunity to make submissions or present evidence on that issue.

9The respondent argues that the Board erred in law and jurisdiction by failing to provide reasons for extending the compliance dates. The respondent relies on Ontario College of Teachers v. Bouragba, 2019 ONCA 1028 at para 36 (OCT). That decision is an appeal of a decision of a motion to dismiss at the Superior Court of Justice.

10The respondent also argues that the Board erred in law and jurisdiction by extending the compliance dates without evidence on that issue. Further, that the appellants had the burden of proving on a balance of probabilities that any part of the Order, including the compliance date, should be revoked, or modified and did not do so. The respondent relies on Robert Kamstra v Chief Animal Welfare Inspector, 2020 ONACRB 10 at para 57 (Kamstra).

11The respondent argues that the Board erred by not advising the parties that the compliance dates were in issue.

12The respondent also submits significant amounts of fresh evidence concerning purporting to show that the appellants had not complied with the orders that were under appeal at the time that the Decision was issued. The respondent argues that the change of compliance dates sends the message that parties do not have to comply with the orders while under appeal even though the Legislature did not choose to include an automatic stay when an order is appealed to the Board.

13In reply, the respondent states that the appellants’ submissions support its position.

14Finally, the respondent requests that the Board consider the reconsideration on an urgent basis based on the “fresh evidence” it submitted regarding inspections that took place after the hearing had concluded.

Appellants’ Submissions on the Respondent’s Request for Reconsideration

15The appellants agree with the respondent’s position that the change in compliance dates resulted in a lack of procedural fairness. The appellants submit that the compliance dates were altered arbitrarily.

16However, the appellants also argue that the respondent failed to consult with the appellants when it made the initial compliance dates in the orders under appeal and as such those compliance dates should also be invalidated. The appellants argue that evidence regarding the arbitrary nature of the respondent’s order was heard during the hearing.

17The appellants argue that the respondent’s “fresh evidence” submitted with the reconsideration request was improperly submitted as it does not meet the test for fresh evidence as set out in Rule 18.2 of the Common Rules.

18The appellants submit that there is no urgency to the respondent’s request for reconsideration and submits evidence regarding the current state of the dogs’ environments in response to the respondents “fresh evidence”. The appellants note that no further compliance orders have been issued regarding the dogs despite numerous compliance checks since the initial orders that resulted in the appeal and Decision.

Analysis

19The respondent has not established grounds for a reconsideration. The respondent relies on the OCT case. The OCT case can be distinguished on the facts and the law as it is a court decision, not an appeal or judicial review of an administrative tribunal, and does not state that the Board must provide reasons for each and every one of its findings and rulings.

20On the contrary, the cited paragraph supports the Board’s Decision. It quotes a particularly useful comment by McLachlin C.J: “As McLachlin C.J. stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 64, “a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial.” I agree. The Decision deals with the substance of the live issues at the hearing, and an administrative adjudicator is not required to discuss evidence on every given point.

21Further, the respondent’s own submissions in response to the appellant’s request for reconsideration in Issue 2 makes the same point. The respondent’s submissions state:

10. …An administrative decision maker’s reasons do not have to make reference to every argument, statutory provision, jurisprudence, or answer every submission.

Barrington v Institute of Chartered Accountants (Ontario), 2011 ONCA 409 at para 114 [Barrington]

N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 at para 16 [N.L.N.U]

Vavilov, [2019 SCC 65] at para 128

Society of United Professionals v. New Horizon System Solutions, 2021 ONCA 503 at para 89 [United Professionals]

11. Instead, to understand the decision of an administrative decision maker, one must look at the reasons as whole, the outcome that was reached, and the underlying record.

Vavilov, at paras 116 and 123

22The Board is not required to answer and explain every issue that was raised. In this case, the compliance date was changed by the Board and no reasons for that change were given. This is not on its face an error or law of fact nor was it a violation of procedural fairness.

23If I am wrong, however, it is important to note that during the hearing of the appeal both parties led evidence on the record relevant to the issue of the compliance date.

24Ms. Spottiswood, for the appellants, testified in chief that she was aware that the COVID pandemic had caused wood to be in short supply. She stated that she had had no discussion with the Animal Welfare Services (AWS) regarding how much time it would take to reconstruct the homes. Her complaint was that there had been no discussion with AWS. She did not testify to how much time she needed in order to comply.

25Inspector Brandon James testified for the respondent and was asked in chief about the reasoning for the different compliance dates in the orders. He testified that the compliance orders issued February 18 and 19, 2021 in relation to the size of the dog houses had a compliance deadline of June 1, 2021. He stated that this was to allow time to complete the construction as there were lots of dogs and this undertaking would take quite a bit of time. He testified that the order in relation to the insulation of the dog houses had two compliance dates, an earlier one for the straw bedding which could be achieved quickly and in the interim, and a second June 1, 2021 compliance for the construction to add R4 insulation.

26None of the above evidence was included in the Decision as the Board does not need to include evidence on every issue and certainly the compliance date was not a central issue to the appeal. The parties also chose not to make submissions on the compliance date they would prefer although both parties led evidence relevant to the compliance dates. However, a request for reconsideration is not an opportunity for the parties to change how they would have presented a case, nor is a request for a reconsideration an opportunity to appeal the Decision.

27In regard to the length of extension provided, the Decision extended the compliance deadline by an additional 2.5 months from the date of the Decision. This is a slightly shorter time period than the 3.5 months the AWS had initially provided. Given the lumber and cost issues raised, the extension provides additional reasonable compliance time to the appellants.

28The respondent also submitted a significant amount of “fresh evidence” related to inspections that occurred in June 2021. I agree with the appellants that it is improper to allow this evidence. The evidence does not meet the test in Rule 18.2(d) for 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 likely would have affected the result. It appears to be new evidence about new inspections. The evidence purports to state that the dogs are now in medical distress as a result of the summer heat. Allowing the evidence to be heard would improperly re-open the case after a decision has been made.

29There is nothing in the Decision or in the Act that prevents the AWS from issuing new orders in relation to animals in distress or critical distress. Nor does the Decision prevent an appeal to the Board on any new orders. Such new order would also give the appellants new appeal rights.

30As such, the respondent’s evidence shall not be considered, nor will the responding evidence filed by the appellants, in the alternative that I allowed consideration of the respondent’s new evidence, be considered either.

31The respondent also seeks a reconsideration on an “urgent basis.” There is no basis for an urgent reconsideration given that the AWS can continue to issue orders. Further, the basis of the urgent reconsideration was the “fresh evidence” that I have determined would not be considered and improper to allow in.

32Given the findings above, the respondent request for reconsideration is dismissed.

Issue 2 – Appellants’ Request for Reconsideration on the Issue of the 3 meter Tether

Appellants’ Submissions on Appellants’ Request for Reconsideration

33The appellants submit that the Board acted outside its jurisdiction and erred in law when it found that paragraph 4(4)(a) of Regulation 444/19 requires that the Standard of care for dogs that live outdoors must have a chain, tether or tethering system that is 3 meters in length (the Regulation).

34The Regulation states as follows:

(4) A chain, rope or similar restraining device used to tether a dog that lives primarily outdoors,

a. must be at least three meters long; (emphasis added)

b. must allow the dog to move safely and unrestricted, except by its length; and

c. must allow the dog to have access to adequate and appropriate water and shelter.

35The appellants fully argued this issue at the hearing. In their reconsideration they attempt to introduce new submissions regarding statutory interpretation of the above provisions. Namely, the appellants argue that:

a. The Board did not consider the Regulation together with the Act as a whole and in its entire context; and

b. The Board failed to consider the s. 64 of the Interpretation Act which allows for a liberal interpretation;

c. That the Board did not rely on evidence to support its interpretation of the Regulation; and

d. The Board did not provide adequate reasons for its interpretation particularly as they relate to s. 4b) of the Regulation.

The Respondent’s Response to the Appellant’s Reconsideration Request

36The respondent submits that the Board did not make any errors of law or fact in relation to this issue. The respondent submits that the Board made no error in its interpretation of the Regulation and that a review of the Decision, the outcome reached, and the underlying record demonstrating that the Board’s interpretation was in accordance with principles of statutory interpretation.

Analysis

37The Board made no error in its interpretation of the Regulation as set out in paragraphs 35-41 of the Decision.

38The appellants may disagree with the Board’s interpretation, but that is not a basis for a reconsideration. A reconsideration is not an appeal, nor is it an opportunity to re-argue the case or to argue the case differently.

39Further, I note that the words of the Regulation read in its entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, supports the Board’s findings.

40Given the findings above, the appellants’ request for reconsideration is dismissed because they have not met any of the grounds in Rule 18.2.

Order

41For the reasons set out above, both requests for reconsideration are dismissed.

Footnotes

1. 1Licence 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).
2. 2See 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.