RECONSIDERATION DECISION

Before: Jennifer Friedland

Date of Order: May 05, 2022

Tribunal File Number: 13736/ACRB

Case Name: Taryn Camacho v. Chief Animal Welfare Inspector

Written Submissions by:

For the Appellant: Self-Represented

For the Respondent: Kateryna Toderishena, Counsel

Overview

1On February 4, 2022, the Animal Care Review Board (the “Board”) released its decision in Camacho v. Chief Animal Welfare Inspector (the “Decision”).¹

2Both the appellant, Taryn Camacho, and the respondent, the Chief Animal Welfare Inspector, requested a reconsideration of that decision.

3After reading the submissions of the parties and reviewing the exhibits and the Decision, I find that neither party meets the criteria for reconsideration. Both requests are therefore dismissed.

Background

4The appellant appealed the removal of her three dogs by Animal Welfare Services (AWS) on November 23, 2021 and a Statement of Account (SOA) served December 3, 2021.

5The removal of the appellant’s dogs was pursuant to s. 31(1) of the Provincial Animal Welfare Service Act (Act) for the purpose of relieving the animals’ distress. The distress as described in the Decision was due to the living conditions in the appellant’s home which revealed a situation of hoarding that did not allow the animals to move freely and exposed them to objects that could injure, cut, or bruise the animals.

6AWS had earlier issued a compliance order regarding the condition of the appellant’s residence. Inspectors then attended with a warrant on November 23, 2021 and removed the animals due to non-compliance with the previous order.

7The member found that the removal order was necessary on November 23, 2021 to relieve the animals’ distress. The member also found that the dogs could not be returned as the living circumstances at the appellant’s home had still not improved sufficiently to allow the animals to be returned.²

8With respect to the Statement of Account, which was for $1,245 for boarding, veterinary, and animal care costs, the member heard evidence about the appellant’s monthly income and expenses and concluded that there was “little doubt that she will be unable to pay the amount in full.”³

9The member noted that the respondent “made very few submissions about the Statement of Account, stating only that the costs should not be absorbed by the respondent.”⁴

10The member found that there was “no evidence to support why veterinary care was required for the animals after removal” noting that they were “removed because they were at risk in the residence” and not because they required any specific care.⁵

11The member further found that the boarding costs were not necessarily reasonable when weighed against the appellant’s means. The member noted that there was no evidence to show why boarding was in the amount stated on the account.⁶

12Finally, the member found that “repayment of the full amount of the statement of account by the appellant would be particularly onerous given her precarious financial situation.” He concluded by noting:

I find that the appellant should be held to some account regarding payment of the SOA. However, given the lack of clarity as to why some items were charged in the amounts stated on the account and given her monthly income and the expenses for the care of two school aged children, I find that varying the SOA to a lesser amount is reasonable in this case. Therefore, I find it appropriate to vary the SOA to $262.50 which is 25% of the boarding costs. Given the appellant’s monthly income and other expenses, and the respondent’s lack of evidence to support the specific costs claimed, this amount is reasonable.⁷

Requests for Reconsideration

13The criteria for granting reconsideration are set out in Rule 18.2 of the 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”). A request for reconsideration will not be granted unless 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.

Appellant’s Request for Reconsideration

14The appellant’s request for reconsideration is with respect to the return of her dogs. She wants them returned.

15The appellant’s submissions do not address the legal grounds that might support a reconsideration. Nonetheless, because the appellant is self-represented, I will allow the broadest ambit of consideration to her request. I will treat her submissions as evidence that was not before the Board when rendering its decision and could not have been obtained previously. Given the member’s note at paragraph 14 of the Decision that the appellant had wanted her CAS worker to attend at the hearing but could not reach her, I am content to assume that the appellant may have had more to say at the hearing if she had someone to support her or to testify on her behalf.

16However, even assuming that the appellant’s reconsideration submissions could constitute evidence that could not have been obtained previously, I find that this evidence would not have affected the result.

17The appellant’s submissions trace a history of trauma and hardship, and include an explanation for how she came to be in an apartment that was too small for her and her two children; as well as a description of her struggles to obtain better living arrangements over the last many years. She explains how, despite her family’s difficulties, their world greatly improved when they got their dogs. She describes the healing and health the dogs brought to her family. She makes various complaints about how she was treated by the AWS and why she thinks the removal of her dogs was unnecessary. She describes the efforts she made to care for her animals and the impact on the mental health of her son and the family as a whole, caused by their removal. She included a link to photos showing her children happy with their dogs. She does not understand why her dogs have not been returned.

18I have only briefly touched on the matters raised by the appellant in her submissions, but I acknowledge that I have read them and I have no basis to disbelieve the hardship and struggles she has faced, nor the impact that the removal of her dogs has caused her family. However, even if I were to accept these submissions as fresh evidence that could not have been presented at the hearing, I would be unable to conclude that this information would have changed the outcome. I find that notwithstanding the appellant’s predicament and how she came to be in her current situation, there is no new evidence to rebut the member’s findings that her house was sufficiently overcrowded at the time of the removal to cause the animals to be in distress.

19The member noted that the appellant herself acknowledged that her place was not acceptable for animals to be living in.⁸ The appellant also does not dispute, in her reconsideration submissions, the fact that her house was overcrowded and dangerous for her dogs to be in.

20The focus of the appellant’s reconsideration request is ultimately on how she can have the animals returned.

21The return of the animals was a possibility that the member referred to in the Decision, noting that: “the removal would also allow the appellant the time to arrange for her unit to be de-cluttered and cleaned in order to provide a suitable and sanitary place for her dogs.”⁹

22Following the release of the Decision, the Board was sent an email from the appellant asking about next steps, where to pay the SOA, and how to get her dogs returned. The Board forwarded the email to the AWS for response.

23The exchange of emails before the Board subsequent to the Decision and which appear to have prompted the appellant’s request for reconsideration, show that the AWS was trying to arrange a further inspection so that the animals could be returned upon payment of the $262.50 varied SOA. I do not have sufficient information before me to ascertain why the animals have not yet been returned. I do note that some of the appellant’s correspondence indicates that she was not home at the time an inspection was scheduled to take place but she does not think the inspectors attended. She indicated that she had the funds to pay the SOA.

24The respondent in its submissions refers to the fact that the $262.50 was not ultimately paid. It does not specify whether it considers the animals to have been forfeited as a result.

25The Board can only assume that the respondent would not have treated the appellant’s animals as having been forfeited given that she had clearly been making inquiries about where and how to pay the varied SOA amount and then submitted this request for reconsideration. This is not to say that AWS would not have been legally entitled to have considered the animals forfeited given that s.35(4) requires payment within 10-business days of a Statement of Account varied on appeal. However, as a matter of fairness, and given that the SOA was varied to an amount that the appellant could afford to pay and her clear indication that she was trying to pay the varied amount and have her animals returned, one would hope the AWS would have exercised its discretion under s. 35(5) to simply extend the time for paying the amount in such circumstances.

26While I am dismissing the appellant’s reconsideration request on the basis that she has not established any of the grounds for reconsideration, I do urge the AWS to communicate with the appellant about the return of her animals, or to tell her what has happened to them. While indicating that the SOA had not yet been paid, the respondent did not indicate that the animals had been forfeited. At the very least, one would have expected them to have alerted the appellant that her dogs had been surrendered under the forfeiture provisions, if that were the case.

Respondent’s Request for Reconsideration

27The respondent’s request for reconsideration is two-fold and relates only to the Board’s findings and order in relation to the Statement of Account, as follows:

i) The respondent submits that the Board acted outside its jurisdiction and erred in law by basing its decision on the owner’s ability to pay. The respondent submits that an owner’s ability to pay is an irrelevant consideration that undermines the purposes and the scheme of the Act; and

ii) The respondent submits that the Board erred in reducing the SOA on the basis that veterinary care was not required. The respondent submits that the animals were removed from a dangerous environment, without access to potable water and that an assessment by a veterinarian was justified to determine what the animals required to relieve their distress.

28The respondent submits that a different result would have ensued had the Board not committed the above alleged errors.

29The respondent requests that the Board’s order be varied to restore the original SOA.

30I find that neither ground meets the criteria for a reconsideration.

The Board has jurisdiction to vary a statement of account based on ability to pay

31The Board has had a number of opportunities to consider its authority to vary a Statement of Account based on an appellant’s ability to pay.

32See for example, Jackson v. Chief Animal Welfare Inspector (statement of account reduced from $2,025 to zero),¹⁰ Gowland v. Chief Animal Welfare Inspector (statement of account reduced from $1,594.41to zero),¹¹ Ishankova v. Chief Animal Welfare Inspector (statement of account reduced from $58,772.98 to $1,800),¹² and Hernandez Alcantara v. Chief Animal Welfare Inspector (statement of account reduced from $6,612.11 to zero).¹³

33The respondent applied for judicial review of the decisions in Jackson and Gowland¹⁴ challenging the Board’s authority to have reduced the statements of account to zero in both cases. The Divisional Court dismissed the respondent’s application on the basis that the respondent had not exhausted its alternative remedy of seeking reconsideration. The Court noted that “the Board is more than capable to deal with the issue of the varying of the statements of account in the two cases” and that “the Board has the expertise to do so …”¹⁵

34The respondent recently sought a reconsideration of Ishankova above.¹⁶ The respondent’s submissions in that reconsideration request were virtually identical to the submissions now before me. Primarily, the respondent advances and relies on a narrow interpretation of the Act as being grounded on a framework of accountability in order to argue that the Board is precluded from taking into account an appellant’s financial circumstances when considering whether to vary a statement of account pursuant to s.38(9)3 of the Act.

35The reader is referred to the analysis and conclusion in the Ishankova reconsideration which I adopt and rely on here.

36For the reasons set out in the Ishankova reconsideration request, the Board disagrees with the respondent’s position and finds that the Board does have the authority to vary an account based on an appellant’s ability to pay.

37Specifically, the Board does not agree with the respondent’s narrow interpretation of the Act which asks the Board to regard the Statement of Account provisions solely through “a framework of accountability for owners who mistreat, abuse, or neglect their pets.” As set out in the Ishankova reconsideration, not every case that comes before the Board involves issues relating to negligence mistreatment or neglect of animals and “accountability” is not the overarching framework of the Act nor is holding owners accountable its only purpose. As stated in the Ishankova reconsideration:

The statutory scheme is not only one of accountability and the statement of account provisions do not – on their face – stipulate otherwise. While liability for the amounts incurred may be the starting point of the provisions, it is not the end point. A person’s liability to pay a Statement of Account is subject to an order of this Board on appeal and nothing in the Act limits the factors the Board is able to consider in determining the correct result in any particular case.

Moreover, the Act on its face, provides the AWS with discretion to not serve a Statement of Account. The Act on its face, further provides the AWS the discretion to reduce an amount of a Statement of Account pursuant to s. 35(5) of the Act. If the purpose of the Act and, by extension, the Statement of Account provisions, were, without exception, to hold “negligent” owners accountable, as the respondent contends, there would be no reason to provide such discretion. The issuing of a Statement of Account would be mandatory in every case.

There being plainly on the face of the Act no basis to apply such a narrow “framework of accountability” to every case, there can equally be no basis to conclude that an appellant’s ability to pay is an “irrelevant factor” in every case such that the Board acts outside its jurisdiction if it considers that factor. The statute imposes no such limitations on what the Board may consider in deciding whether to confirm, vary, or revoke a Statement of Account.¹⁷

38The respondent further submits that “forfeiture is a logical and consistent outcome where the owner is unwilling or unable to remedy the animal’s distress.” For reasons set out in the above cases, the Board disagrees. Sometime forfeiture is illogical, unfair, and grossly disproportionate to a person’s ability to pay.¹⁸ The Board has the discretion to vary a Statement of account in such circumstances.

39As stated in Ishankova,

For the reasons given above, I find that varying a Statement of Account based on ability to pay is consistent with the legislative intent and purpose of the Act which includes the protection of animals and is not simply a framework of accountability for owners who have neglected, abused, or mistreated their animals. Even with respect to owners where such facts are proven, on a plain reading of the Act the Board is not limited in the factors it may consider in deciding whether to confirm, vary or revoke a statement of account.¹⁹

40Thus I find that the Board has the jurisdiction to vary a Statement of Account based on an appellant’s ability to pay.

41I further find that it was not a legal error for the member to have considered ability to pay as a factor in this case and to have varied the statement of account on that basis.

42The respondent’s request for reconsideration on this ground is dismissed.

The Board did not err in fact in relation to the necessity of veterinary care

43In the Decision, the member found that there was no evidence to support why veterinary care was required for the animals after the removal. The member noted that the animals were not removed because they required any specific care. The member concluded that, “the appellant should not be responsible for the respondent’s decision to take the dogs to a vet after removal.”²⁰

44In its request for reconsideration the respondent submits that the above finding was an error of fact and contrary to the Board’s other findings of fact, which the respondent identifies as follows:

The Board found that the dogs’ living conditions were dangerous, unsanitary, and hoarded (para 16). The Board further found that there were objects that could injure, cut or bruise the animals, including broken pieces of metal (para 19). There was no visible potable water (para 18).²¹

45The respondent then submits that “an assessment by a veterinarian was necessary based on the facts of this case.”²² In support of that conclusion the respondent makes the following hypothetical submission:

Given their living circumstances, the dog [sic] could be suffering from painful, dangerous and distress-causing health conditions such as dehydration or injuries. These circumstances necessitated an assessment by a veterinarian to determine what necessaries the animals required to relieve their distress. Without such an assessment AWS would be unable to fulfill the purpose for which the animals were removed – to relieve their distress. Also, as can be inferred from the invoices filed before the Board, an assessment by a veterinarian is part of the standard procedure at the Boarding facility.²³

46While there is no transcript of the evidence heard by the Board in this case, it is clear from the decision that that no veterinarian was called by the AWS nor does the Decision provide any indication that any of the AWS inspectors noted any specific medical concern that required removal for medical attention. Conjecture is not evidence and hypotheticals are not evidence. It was the respondent’s onus to prove that the costs it sought to be recouped through the SOA were reasonable, necessary, and incurred for the purpose of relieving the animals’ distress.

47I have no basis to interfere with the members finding that there was “no evidence to support why veterinary care was required for the animals after removal.” I note that the member reiterates this finding in his conclusion by stating, “…the lack of clarity as to why some items were charged in the amounts stated on the account,” and pointing to “the respondent’s lack of evidence to support the specific costs claimed.”²⁴ It is evident that the member did turn his mind to this lack of evidence.

48Moreover, even if I were to accept the respondent’s submissions as evidence on this reconsideration, I am not persuaded that it would have changed the outcome. The member did not dispute that the costs were incurred. He concluded only that the appellant should not be responsible for them. This is a conclusion that would have been open for him to reach even if there was evidence about the reason for taking the dogs to the vet as the respondent now submits.

ORDER

49The appellant’s request for reconsideration is dismissed.

50The respondent’s request for reconsideration is dismissed.

Footnotes

1. 12022 ONACRB 6 (the “Decision”).
2. 2Ibid., at para 30.
3. 3Ibid., at para 31.
4. 4Ibid., at para 36.
5. 5Ibid., at para 37.
6. 6Ibid., at para 38.
7. 7Ibid., at para 40.
8. 8Ibid., at para 29.
9. 9Ibid., at para 23.
10. 102021 ONACRB 4 (“Jackson”).
11. 112021 ONACRB 2 (“Gowland”).
12. 122022 ONACRB 3 (“Ishankova”).
13. 132022 ONACRB 10 (“Alcantara”).
14. 14Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board 2022 ONSC 872 and Chief Animal Welfare Inspector v. Jerica Gowland and the Animal Care Review Board 2022 ONSC 873 (“Jackson and Gowland”).
15. 15Ibid., at para 44.
16. 162022 ONACRB 16 (“Ishankova Reconsideration”)
17. 17Ibid., at paras 64-66.
18. 18This is particularly the case where an animal could otherwise be returned. See Alcantara for example where the appellant tried to raise funds for surgery for her cat’s broken leg, paid $500 toward that cost but could not find the funds for the rest. The vet called AWS to authorize the cat’s removal to have the surgery performed. The AWS then put the cat in boarding, instead of arranging its return and stopping all costs. It then issued an SOA, which included the additional boarding costs and took the position that the SOA should be paid in full or the cat forfeited. The respondent then continued to incur costs while it fought the appellant’s appeal of the SOA despite acknowledging that it would recoup none of its costs through forfeiture. For reasons set out in that decision, the SOA was varied to zero and the cat was returned to its home.
19. 19Ishankova Reconsideration at para 85.
20. 20Decision, at para 37.
21. 21Repondent’s submissions at para 24.
22. 22Ibid., at para 26.
23. 23Ibid., at para 25.
24. 24Decision, at para 40.