Date: 2022-02-23

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Matthew Cotnam

Appellant

and

Chief Animal Welfare Inspector

Respondent

REASONS FOR DECISION AND ORDER

MEMBER: Jennifer Friedland, Acting Vice Chair

APPEARANCES:

For the Appellant: Shaun D. Harvey, Paralegal

For the Respondent: Craig McManus, Regional Supervisor,

Heard by videoconference: January 27 and February 3, 2022

OVERVIEW

1The appellant appeals from a decision made on December 8, 2021 by a delegate of the Chief Animal Welfare Inspector to keep his dog in care pursuant to s. 44(8) of the Provincial Animal Welfare Services Act, 2019 (the PAWS Act). The dog is a female pittbull-type dog, born approximately March 30, 2021 named “Gucci.”

2The animal had initially been seized by the police pursuant to s. 44(1) of the PAWS Act on February 27, 2021 following the appellant being charged with an offence under the PAWS Act. The particular provision under which he was charged was not specified at this hearing, though it is not in dispute that the charges arose from a complaint alleging that the appellant had abused the dog. The matter is proceeding in the Ontario Court of Justice (Provincial Offences Court). Mr. Harvey confirms that the appellant will be challenging the allegations and pleading not guilty.

3The respondent’s decision to take the animal into care arose after the seized dog was ordered returned to the appellant by a Justice of the Peace on November 9, 2021 pursuant to s.159 of the Provincial Offences Act (POA). The respondent’s authority to keep an animal in care despite a court order to return it is set out in sections 44(8) and (9) of the PAWS Act. These provisions together allow the respondent to make such a decision where it has “reasonable grounds to believe that the animal may be placed in distress or trained to fight another animal if returned to its owner.” In such cases, the respondent’s decision will prevail over the court order to return the animal made under s.159 of the POA.

4In this case, the decision to keep the dog in the respondent’s care was made by Connie Mallory, a Regional Supervisor for Animal Welfare Services (AWS) who had been delegated by the Chief Animal Welfare Inspector to exercise this power pursuant to s. 2(5) of the PAWS Act.

5Ms. Mallory testified that she made the decision after reviewing information received from the police that included witness statements and four short video clips purportedly made by the complainant who made the initial allegation to the police. I say purportedly because, as shall be outlined below, there was a paucity of evidence led by the respondent that might establish the reliability of these videos. Nonetheless, based on Ms. Mallory’s review of the videos and her understanding of what they portrayed, she formed the opinion that they showed the appellant dragging his dog, flipping over his dog, and punching his dog. On that basis she concluded there were reasonable grounds to believe that the dog would be placed in distress if returned to the appellant. She thus made the decision to keep the animal in care pursuant to s. 44(8).

STATUTORY CONTEXT AND BURDEN OF PROOF

6The parties agree that an appeal of the respondent’s decision comes to me as a hearing de novo. This means that I do not owe deference to the respondent’s decision. Instead I must assess the evidence for myself and determine whether there are reasonable grounds to believe that the animal may be placed in distress if returned.

7Distress is defined at section 1 of the PAWS Act as meaning: the state of being,

(a) in need of proper care, water, food or shelter,

(b) injured, sick, in pain or suffering, or

(c) abused or subject to undue physical or psychological hardship, privation or neglect;

8In terms of what constitutes “reasonable grounds to believe,” this standard has been legally defined as requiring something less than a balance of probabilities (meaning that I need not be satisfied that it is more likely than not that the animal may be placed in distress if returned). At the same time, it has to be “more than mere suspicion.”¹ Moreover, for reasonable grounds to exist, there must be an “objective basis for the belief which is based on compelling and credible information.”²

9The parties agreed that the respondent would call its case first. In my view, this is the correct approach. It is the respondent’s onus to establish the facts it relies on to form reasonable grounds for belief that the dog may be placed in distress if returned.

10In this case, for the reasons set out below, I find that the respondent has failed to meet this burden.

RESULT

11Based on the evidence put before me at this hearing, I am not satisfied there are reasonable grounds to believe that the appellant’s dog will be placed in distress if returned. I therefore order the animal’s return pursuant to s. 38(9)2 of the PAWS Act.

FACTS

12The whole of the appellant’s case consisted of the testimony of Ms. Mallory and the video clips she watched purporting to show the appellant abusing his dog.

Preliminary Issue – Appellant’s Objection to the Videos

13At the start of the hearing, Mr. Harvey objected on behalf of the appellant to the admission of the video clips. His objection was based on the fact that the respondent was not intending to call the author of the videos or any witnesses who might have first-hand knowledge of when the videos were made or by whom, or what or who the clips purported to show.

14I held a voir dire before deciding the issue in order to obtain evidence from Ms. Mallory about the context of her receiving the videos. She described that the videos were part of information she received by email from the police, together with some witness statements, though she could not identify which particular police officer sent the materials nor did she speak to any police officer familiar with the case, nor did she speak to the person who was said to have taken the video. She felt that the information received from the police was nonetheless reliable because the police had a duty of care. The respondent did not elaborate on what was meant by duty of care in this context though I took the meaning to be that the contents of what the police sent to the respondent should be presumed to be accurate and reliable.³

15I decided ultimately to allow the video tapes to be admitted based on the broad powers of the Board to receive and act on evidence as provided by section 15 of the Statutory Powers Procedures Act (SPPA).⁴ Under this provision, which governs the admission of evidence at these proceedings, the Board may:

…admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

a) any oral testimony

b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence …

16I concluded that the videos were relevant, at least from the respondent’s perspective, given that it was on the basis of the contents of the videos that Ms. Mallory made the decision to keep the appellant’s dog in care.

17Under section 15(4) of the SPPA, I am further permitted to accept a copy of a “document or other item” where satisfied as to its authenticity. I interpret this provision as referring to the authenticity of the copy of the item being tendered as an exhibit, not the authenticity of the original video. Here, Ms. Mallory testified on the voir dire that the video being tendered as an exhibit was an authentic copy of the video she watched and upon which she based the decision now under appeal. On that basis, I was satisfied that the copy being tendered as an exhibit was an authentic copy of the video viewed by Ms. Mallory that led to her decision.

18As I informed the parties at the time of making my ruling, my admitting the video clips as an exhibit did not mean that the reliability of the videos was no longer an issue at the hearing. The parties were reminded that they would be free to make submissions at the end of the hearing as to the weight the videos should be afforded, particularly given the potential issues raised by the appellant’s objection.

19Ultimately, I found I could ascribe little weight to the videos, given their frailties, as I will describe below.

The video evidence

20The video evidence consisted of four very short clips of less than a minute each.

21They show a view through the window of what appears to be an apartment building. The vantage point would likely be a building across the way from the one shown in the video though there was, in fact, no evidence to establish where the videos were taken from.

22There is a man observed in each video. The respondent concedes that there is no way to make out the identity of this man from the footage itself given the distance of the shot and the direction that the man is facing in each of the clips.

23In one video, identified as 8EB25DD1, the man is observed walking from one room into another. The room he walks into appears to be a kitchen. He comes to the bottom left of the film frame, does something out of frame, and then drags something a few feet across the floor. The film does not obviously show that this is a dog, but taken together with the other video clips, I am satisfied that it is one. The dog is flipped over, and the man appears to hold the dog down, or possibly kneel next to it. They are on the floor in front of what appears to be kitchen cabinets, possibly in front of a dishwasher.

24In video 5282EB88, the same man, in what looks like the same clothing, appears to flip the dog up and over onto the ground and then kneel on it. They are in the same spot in front of the dishwasher. The man’s right arm shows a punching movement toward the dog, three times. The dog is only partially visible in the clip and it is not clear that there is contact with the dog, though one might assume that there was.

25Video DE788700 shows the man and what one may assume is again the dog in the same spot on the floor in front of the dishwasher, though again the dog is only partially visible. The man is observed leaning over the dog. He then makes a punching motion toward it twice with his right hand, again without contact being visible. He then leans his head down over the dog.

26In video 401D9364, the man and the dog are in the same spot again. The man appears to be holding the dog down and/or sitting beside the dog. He raises his right arm and lowers it, but it is unclear if the dog has been hit.

27There is no sound on any of the videos.

28On the basis of these video clips and other information that Ms. Mallory apparently gleaned from the police materials, the respondent formed the opinion that the videos were of the appellant and showed him abusing his dog. Ms. Mallory concluded that the assaults on the dog were unprovoked and that the dog was at serious risk of harm if returned.

29With respect to how she identified the appellant as the person in the video, Ms. Mallory explained that she arrived at this conclusion based on the information provided by the police. However, she did not – or possibly could not – say what information it was that convinced her of that purported detail. I can infer only that her conclusion was drawn from her information that it was the appellant who was charged with an offence on February 27, 2021 and therefore he had to be the person in the video.

30In terms of when the video was taken, Ms. Mallory testified, and the videos confirm, that each clip is date-stamped February 28, 2021. This is the day after the incident is alleged to have taken place. Ms. Mallory surmised that the date stamp on the video camera was likely off by a day, but this was her conjecture, it was not based on information she may have received from any source. Needless to say, conjecture is not evidence.

31Ms. Mallory acknowledged that she did not interview the person who purportedly took the video. She was of the view that she did not need to, having read the person’s statement to the police. Again, however, the content of that statement was not relayed to me at this hearing. Nor was the statement tendered as an exhibit for me to read for myself. Thus even if I were inclined to rely on the double hearsay evidence of what an unknown person may have said to the police at an unknown time in an unknown context that was reduced to writing and read by Ms. Mallory, the content of any such statement was not put before me.

32No statements from the police were sought to be admitted either, nor were any police officers called to testify about their knowledge of the video or how or why they believe the appellant is the person shown on those clips. As with the person who allegedly took the video, no hearsay statements from the police were even tendered that might establish the link between the videos and the appellant that the respondent appears to be relying on.

33When asked why the respondent did not call the taker of the video or any of the police officers who may have been involved in this case, Mr. McManus indicated that since those witnesses would be testifying at the provincial offence trial, they did not think they should be “doubling up” and calling them at this proceeding.

34It is evident that this was a deliberate choice the respondent made to the detriment of its own case on this appeal.

35The video is unreliable on its face having a date stamp that is in the future from when it was purportedly taken.

36Ms. Mallory did not speak to any of the alleged witnesses nor to the police apparently involved in investigating this incident. Nor, as mentioned above, did she present hearsay evidence such that I could know what they may or may not have said about the alleged incidents.

37I am ultimately left with four very brief video clips of an unidentifiable person, said to be the appellant, appearing to punch a dog, flip it over and restrain it, maybe taken on the same day, perhaps taken years earlier, maybe taken of someone other than the appellant, possibly of his dog, maybe of his apartment. There was evidence that there was information in the police brief that satisfied Ms. Mallory that we were looking at the appellant hitting his dog on February 27, 2021 but none of the information that might have established that fact was conveyed to me at this hearing.

ANALYSIS

38Section 15 of the SPPA allows me to act on any manner of evidence, including hearsay evidence, but even hearsay evidence needs to be tendered before it can be acted on. For reasons that are somewhat inexplicable, the respondent did not present even the double hearsay evidence that may have been available in the police brief to establish that the video had anything to do with the appellant and his dog.

39Given the paucity of the evidence led by the respondent at this hearing, it was not surprising that after cross-examination of Ms. Mallory and the close of the respondent’s case, Mr. Harvey opted not to call his client.

40In closing, Mr. Harvey submitted that there was no reliable evidence connecting his client to what was seen in the video. I agree. For some reason, the respondent declined to tender any such evidence.

41The respondent meanwhile asks me to rely on the opinion of Ms. Mallory and her unsubstantiated conclusion that the video was of the appellant abusing his dog, and on that basis to uphold the respondent’s decision to keep the animal in care.

42As set out above, “reasonable grounds to believe” will exist where there is an “objective basis for the belief which is based on compelling and credible information.”

43I cannot find there is an objective basis for believing in this case that the appellant’s dog may be placed in distress if returned. I cannot objectively arrive at such a belief due to the lack of compelling and credible information before me.

44It is informative to compare the evidence in this case, to the evidence relied on in the decision of Xu v. Chief Welfare Inspector, 2022 ONACRB 1⁵, a recent decision of the ACRB which was also an appeal of a decision to keep an animal in care.

45In that case, ten video clips were presented in evidence showing the appellant abusing two puppies in a garage over the course of approximately a month, including by repeatedly hitting a dog, punching a dog, subjecting it to backhand blows, hitting a dog with a feed bowl, and kicking a dog. The videos had been shown to a vet who formed an opinion that the abuse constituted distress and on that basis the puppies were removed. Subsequent to their removal, a delegate of the Chief Welfare Inspector made a decision to keep the puppies in care having formed reasonable grounds to believe that they may be placed in distress if returned to the appellant.

46The evidence in Xu showed that the delegate’s decision was based on the videos and also on AWS interviews conducted with the person who took the video and another neighbour, both of whom had witnessed ongoing abuse by the appellant of his dogs. These witnesses were interviewed after the dogs had been removed but before the delegate made the decision to keep them in care. Both interviews were admitted as exhibits and played at the hearing. As well, the respondent’s delegate commented on the contents of those interviews, drawing out details he found significant such as the witnesses’ observations that the abuse had continued over a period of months.

47The respondent in Xu also presented evidence from the initial incident reports which indicated that there had been a number of previous reported incidents involving observations of the appellant abusing his dogs. This incident report was also tendered as an exhibit at that hearing.

48On top of the evidence in Xu of historical and ongoing abuse of the dogs, and hearsay evidence from the person who took the videos as well as another neighbour, the respondent in Xu also called expert evidence through the veterinarian who had signed the initial removal certificate. That veterinarian explained the connection between the abuse seen on the video and possible psychological harm to the puppies if they were returned. He described that even if the appellant were to stop beating his dogs, they might still be traumatized in his presence.

49In short, there was a plethora of compelling and credible information presented in Xu to provide an objective basis for the belief that the dogs may be placed in distress if returned to their owner. On the basis of that evidence, the adjudicator upheld the respondent’s decision to keep the animals in care and they were not returned to the appellant.

50Contra this case, where I have four video clips taken at an unknown time from an unspecified location by an unnamed person in an unknown context and no information to link what they show to the appellant or to any history of abuse, nor is there any expert evidence to explain why – even if there were such evidence – it would provide reasonable grounds for belief that the animal may be placed in distress if returned.⁶

51In short, based on the information before me as described above, I do not have reasonable grounds to believe that the dog may be placed in distress if returned to the appellant. There was little in the way of compelling or credible information presented in this case to provide an objective basis for me to arrive at that conclusion.

52I therefore order the respondent to return Gucci to the appellant forthwith pursuant to the Board’s powers under s. 38(9)2 of the PAWS Act.

53As a final comment, and because it is of course possible that the video was of the appellant hitting his dog and possibly recently, he should be mindful of Ms. Mallory’s comments that there are no circumstances where hitting or flinging a dog around would be considered appropriate in a disciplinary situation or even while roughhousing. Abuse of a dog constitutes distress and could lead to the dog’s removal should it occur.

ORDER

54Pursuant to s.38(9)2 of the PAWS Act, the respondent is ordered to return Gucci to the appellant.

Released: February 23, 2022

______________________________

Jennifer Friedland, Acting Vice Chair

Footnotes

1. 1See 2203099 Ontario Ltd. o/a Jax Bar & Grill v. Registrar, Alcohol and Gaming, 2013 CanLII 51164 (ON LAT) and Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 (“751809”).
2. 2751809, supra, at para. 18, citing Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114. The above definitions have been applied by multiple courts including the Supreme Court of Canada in an immigration law context. They have also been applied at Licence Appeal Tribunal which shares Rules of Procedure in common with the ACRB and determines appeals in relation to licensing and registration under various statutes commonly referred to as public protection legislation. I see no basis to distinguish between public protection legislation and animal protection legislation in terms of the applicability of the legal standard for “reasonable grounds to believe” and I adopt that definition here.
3. 3At this point in the proceedings – prior to my ruling on whether the video clips would be admitted – the parties took the opportunity to discuss settlement in a zoom breakout room. When they returned, and before I was made privy to those discussions, the parties consented to my hearing the appeal if settlement failed, which it ultimately did. The parties’ consent was required under Rule 14.3 of the Board’s Rules which prohibits a member who participated in a case conference from hearing a matter unless the parties consent, and by s.5.3(4) of the Statutory Powers Procedure Act (SPPA) which prohibits a member who participated in settlement discussions from deciding a matter unless the parties consent. The terms on which the parties might have settled did not factor into my determination of the result in this case.
4. 4R.S.O. 1990., Ch s. 22
5. 52022 ONACRB 1 (“Xu”)
6. 6I need not decide here whether expert evidence is required in all such cases. Ms. Mallory has a 35-year history at the top echelons of animal protection work and may well be qualified to give an opinion as to whether there are reasonable grounds to believe an animal may be placed in distress if returned to an owner. In this case, however, as outlined above, there was much more lacking than just an expert’s opinion linking what was seen in the videos to possible future harm if the dog were returned.