Tribunals Ontario

Animal Care Review Board

Tribunaux décisionnels Ontario Commission D’étude Des Soins Aux Animaux

Date: 2021-04-20

Appeal under section 38(1) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c.13

Between:

Erin Kamstra Appellant

and

Chief Animal Welfare Inspector Respondent

RECONSIDERATION DECISION

Adjudicator: Joanne E. Foot, Member Animal Care Review Board

Heard by Way of Written Submissions:

For the Appellant: Self-Represented For the Respondent: None Requested

OVERVIEW

1The appellant, Erin Kamstra, requests a reconsideration of a decision (the “Decision”) of the Animal Care Review Board (the “Board”), released on March 12, 2021. The appeal, filed on January 20, 2021, related to the removal of a Vietnamese pot-bellied pig named “Tuna” from the appellant’s home on January 6, 2021. The removal was conducted by an Animal Welfare Inspector after receipt of a veterinarian’s certificate confirming the pig’s distress.

2The Decision followed a videoconference hearing on February 10 and 11, 2021, at which the appellant represented herself. On appeal, the appellant challenged the removal of Tuna and requested that he be returned to her.

3After hearing all the evidence, I upheld the removal Tuna by Animal Welfare Services and declined to order his return to the appellant on the basis that there was no reasonable basis on which to believe that the appellant would, in the future, provide adequate food, water, shelter and proper veterinary care to Tuna. In particular, the appellant had failed to comply with a compliance order dated July 30, 2020 to that effect issued in relation to Tuna, which compliance order was confirmed by the Board in a decision dated December 2, 2020.

4The appellant, again acting on her own behalf, has requested a reconsideration of the Decision.

RESULT

5For the reasons that follow, I dismiss the appellant’s request for reconsideration.

LAW

6The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017), as amended on February 7 2019 (the “Rules”) sets out the requirements for a reconsideration decision. Section 18.2 of the Rules requires that to grant reconsideration, one or more of the following criteria must be satisfied:

(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.

7The party requesting a reconsideration bears the onus to establish that one or more of the grounds in s. 18(2) of the Rules, In this case, the appellant indicated that her reconsideration request falls within s. 18.2(a) of the Rules. That is, that the Board violated the rules of procedural fairness in that it “used their [sic] evidence that Animal Welfare inspectors put in and nothing from my line of questioning I did during the hearing and some testimony, they only used bits of it.”

ANALYSIS

8The essence of procedural fairness is that a party has proper notice of the case it has to meet and have a fair opportunity to present its case. In this case the appellant had notice of the case it was required to meet, was in attendance for the entire two-day hearing, was given the opportunity to cross-examine all witnesses called by the respondent, was given the opportunity to give testimony and call witnesses on her behalf and was given the opportunity to make submissions. At no time during the hearing did the appellant assert that she did not have full particulars of the case she had to meet or that she was, for any other reason, unable to participate meaningfully in the hearing process. I am satisfied that the hearing was conducted in a manner that was procedurally fair to the appellant.

9In rendering a written decision, the Board is not required to refer to all evidence heard or received at a hearing. Rather, it is sufficient to make reference to the evidence it used to find the facts that form the basis of the legal conclusions reached in the decision. In this case, I considered the evidence that was relevant to the issues before me, namely whether Tuna was in distress at the time he was removed from the appellant, whether the removal was conducted in a manner that was procedurally fair, and whether Tuna should be returned to the appellant. All evidence of the appellant relevant to these issues was considered, but was not, in all cases, accepted in preference to other evidence on the point.

10In this case, the appellant has not provided sufficient information to establish that the Board violated the rules of procedural fairness in conducting the hearing or in its decision-making process and has failed to meet the onus required for a reconsideration decision.

ORDER

11For the reasons set out above, the reconsideration request is dismissed.

Released: April 20, 2021

_______________________

Joanne E. Foot Member