Tribunals ontario Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’Étude des Soins aux Animaux
Appeal under section 38(2) of the Provincial Animal Welfare Services Act, 2019, R.S.O.
Between:
Sarah Latimer and Beau Desvreaux Appellant
and
Chief Animal Welfare Inspector Respondent
ORDER TO DISMISS
Order Made by: Susan Clarke, Member Date of Order: April 25, 2022
DECISION
1The appellants, Sarah Latimer and Beau Desvreaux, appealed to the Board from a Statement of Account issued to them on March 8, 2022, following the removal of three chickens on February 9, 2022. The chickens were owned by neighbours and kept on their property. The neighbours moved away in December 2021 and may or may not have left the chickens in the appellants’ care. The neighbours/owners were also served with the Statement of Account but did not appeal.
2At the case conference held on March 23, 2022, the parties agreed to proceed to a hearing and case management details were agreed to, including the hearing date and that it would be held by teleconference. A case conference report and order was sent to the parties. The order clearly confirmed that the hearing would be held on April 6 and 8, 2022.
3The Case Management Officer provided a notice of hearing to the parties on March 30, 2022, with details of the hearing. On April 6th, the Case Management Officer sent a reminder email to the parties prior to the commencement of the hearing. Then on April 6, 2022, after the hearing commenced at 10:00 a.m., the Case Management Officer attempted to contact the appellants without success.
4The respondent, Animal Welfare Services, provided disclosure to the appellants and copied the Board on April 4, 2022, as required in the case conference report and order. The appellants did not provide disclosure. They also did not respond to an email from the respondent on April 4, 2022, regarding disclosure.
5The hearing was to commence at 10:00 a.m. on April 6, 2022. At approximately 10:15 a.m., I terminated the teleconference, after the appellants had still not joined the hearing and after I received confirmation from the Case Management Officer that they were not responding to her telephone calls or emails. I gave the respondents the option of proceeding with the hearing in the absence of the appellants. Alternatively, I informed the respondent that the Board would issue a Notice of Dismissal of the appeal without a hearing pursuant to Rule 3.4 of the Board’s Rules1. The respondents elected to end the hearing and for me to issue the Notice.
6On April 13, 2022, the Board issued a Notice to the parties of its Intent to Dismiss the appeal without a hearing on the grounds that the appellants had abandoned the proceeding. The Notice followed the procedures outlined in Rules 3.4 and 3.5 of the Board’s Rules, giving the parties until 5:00 p.m. on April 20, 2022, to make submissions as to whether or not the appeal should be dismissed on the grounds of abandonment.
7The appellants did not file any submissions.
8The respondents filed submissions on April 20, 2022, including the following:
- At all points in the proceedings, AWS was ready, willing and able to respond to the appeal and to present evidence including from two witnesses at the hearing.
- AWS complied with all associated orders issued by the Board.
- AWS attended on the date set for the hearing.
- AWS also provided full disclosure in response to the appeal as ordered.
- It would be inefficient to further delay the proceeding.
9In its submissions, AWS requested that the Statement of Account be confirmed by the Board.
10AWS further requested costs pursuant to Rule 19.2, citing the conditions described in Rule 19.5, and stating that the appellants should be responsible for costs associated to the hearing accrued by AWS. It noted that two Inspectors and one Regional Supervisor attended the hearing, and government resources were used that could have been directed elsewhere. AWS requests the full amount permitted to be claimed for one day of hearing, $1000, although the hearing was scheduled for two days.
11AWS provided grounds for the request for costs, including that the appellants acted unreasonably by not communicating their withdrawal from the process, although this was discussed at the case conference; acting frivolously by not treating the appeal seriously even knowing that the respondent would be calling a number of witnesses and engaging a court reporter at their own expense ($565.00); acting in bad faith by not withdrawing their appeal and by failing to respond to communications from AWS or the Board, and interfering with the Board’s ability to carry out a fair, efficient and effective process.
12AWS submitted copies of the Statement of Account dated March 8, 2022, which is under appeal and substantiating invoices. The total amount owing is $429.95 with a note that this amount is in addition to a Statement of Account issued on February 22, 2022, for a total amount owing of $1,016.00
13AWS submitted the court reporter’s invoice dated April 7, 2022, for a total of $565.00 for attendance on April 6, 2022, with a note that there was no charge for not attending the second day scheduled for the hearing.
DECISION and REASONS
Dismissal of the appeal
14I dismiss this appeal without a hearing on the grounds that the appellants have abandoned the proceeding, having failed to attend the hearing on April 6, 2022, and failed to make submissions that they had not abandoned the proceeding by the deadline provided.
The Statement of Account
15I decline to confirm the Statement of Account. Section 38(9) gives the Board the power to make such a decision only at the conclusion of a hearing. At the request of AWS on April 8, 2022, the hearing did not proceed. Without hearing evidence, I cannot make a determination. Regardless, as the appeal is dismissed, the custodian is obligated to pay pursuant to section 35 of the Provincial Animal Welfare Services Act, 2019.2 Despite this, I draw attention to the grounds for the appeal, that the appellants believed that they were not the custodians of the animals. I also note that the Statement of Account was also issued to the owners, Neil and Heidi Bouman, who did not file an appeal.
Costs
16I have considered the respondent’s request for costs of $1,000. I note that the appellants have not been provided the opportunity to respond to this request. I find a response is not necessary. This is not an appropriate case for costs.
17The Board’s authority to order costs is only if a party has acted unreasonably, frivolously, vexatiously, or in bad faith as described in Rule 19.1. This is a high threshold. I do not find that costs should be ordered solely because appellants who objected to having been served with the SOA in the first place because they were neither the owners nor the custodians of the animals, decided not to attend the hearing. While it might have been preferable for the appellants to have informed the respondent that they expected not to attend or to have withdrawn their appeal, their behaviour in failing to do so does not meet the high bar for costs.
18The appellants are self-represented parties and I will give them the benefit of the doubt for not knowing the process.
19Furthermore, I cannot conclude that their actions were in bad faith, particularly since there was merit to the appeal.
20Rule 19.5 speaks to the relevant factors the Board must consider in making a decision to award costs, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Board, whether the party’s behaviour interfered with the Board’s ability to carry out a fair, efficient, and effective process, prejudice to other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system. I have considered these factors and I do not find that they apply to the applicant’s failure to file disclosure or to attend the hearing.
21The appellants failed to provide disclosure and to attend the hearing on April 6, 2022 and did not advise the Board that they were abandoning the appeal. Despite that the respondent attended and was prepared to proceed, I do not find that the appellant’s actions were a serious misconduct. A Tribunal cannot force a party to defend itself. The Tribunal’s powers to order disclosure and impose timelines has impact because the Tribunal may refuse to allow that party to rely on the evidence or submissions. Where there is no evidence or submissions filed at all, as when an application is abandoned, there is no prejudice to the responding party. It is only when there is an attempt by an applicant to rely on documents or submissions in contravention of an order that the Tribunal’s ability to carry out a fair, efficient, and effective process may be hampered or that the other party may be prejudiced. The only person who was prejudiced by failing to file submissions in response to the Tribunal’s notice of intent to dismiss the application was the applicant.
22I do not find that the appellants were in breach of an order when they failed to file disclosure or to attend the hearing. They are only required to produce disclosure of anything they intend to rely on. The consequence of failing to attend the hearing is that the appeal might be dismissed without a hearing.
23I also do not find that the appellant’s actions interfered with the Board’s ability to carry out a fair, efficient, and effective process. The respondent was provided the option of presenting their case without opposition and elected not to. Pursuant to section 7(1) of the Statutory Powers Procedures Act the hearing could have proceeded in the absence of the appellants. The effect of my decision to dismiss the appeal therefore has the effect of causing no prejudice to the respondent.
24Not ordering costs when a case is abandoned will not impact others accessing the system. Ordering costs may have had that effect.
25The Notice of Intent to Dismiss is the Tribunal’s process for dismissing an appeal that appears to have been abandoned. I can find no case under our rules where costs have been ordered against a party who was found to have abandoned the proceedings.
ORDER
26The Board dismisses the appeal, and the file is closed.
Released: April 25, 2022
Susan Clarke, Member
Footnotes
- Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, Version I (effective October 2, 2017) (the “Rules”)
- Provincial Animal Welfare Services Act, 2019. S.O. 2019, Chapter 13.