Flaro v. Chief Animal Welfare Inspector, 2023 ONACRB 14256

Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

RECONSIDERATION DECISION

Before: Matthew M. Létourneau, Member

Date of Order: 08/24/2023

14256, 14257, 14258/ACRB

Case Name: Flaro v. Chief Animal Welfare Inspector, 2023 ONACRB 14256, 14257 & 14258

Written Submissions by: Kateryna Toderishena, counsel for Respondent

OVERVIEW

1A request for reconsideration was filed by the respondent Chief Animal Welfare Inspector (CAWI) in this matter.

2The respondent requests reconsideration of the Board’s decision of January 23, 2023, in which the Board:

a. revoked Animal Welfare Services’ decision to remove the appellant’s six dogs and one rabbit on August 23, 2022, pursuant to s. 30 of the Provincial Animal Welfare Services Act, 2019 (“PAWS Act);

b. ordered the return of the animals to the appellant; and

c. revoked the statement of account served to the appellant under s. 35(1) of the PAWS Act regarding the removal of the animals.

3The respondent submits that the Board made two errors of law that affected the results. First, the respondent submits that the Board made an error in interpreting the definition of “distress” as set out in the PAWS Act and as interpreted by the Divisional Court in Pryde v Chief Animal Welfare Inspector 2022 ONSC 6632 [Pryde]. Second, the respondent submits that the Board conducted a de novo hearing, including contextual evidence not known to the AWS inspectors on the day of investigation, instead of an appeal based on what was known to the AWS Inspectors at the time of the removal of the animals.

4The respondent also submits a list of errors of fact were made by the Board or procedural fairness errors that, but for the errors, would have led to a different result.

5The respondent is requesting that the Board’s Order be varied to uphold the respondent’s decisions to remove and to keep in care the appellant’s animals, and to uphold and confirm the statement of account.

6The appellant was not requested by the Board to make submissions in this reconsideration. The reconsideration request is denied for the reasons set out below.

7I conclude that the Board acted within its jurisdiction and did not violate the rules of procedural fairness, nor did it make any error of law or fact such that it was likely to have reached a different result but for the error.

RESULT

8The respondent's request for reconsideration is dismissed.

DECISION

9The Board found that the removed animals were not in distress. Despite the AWS’s decision to remove the animals and to keep them, the Board ordered their return to the appellant, Ms. Flaro, finding that this would not return them to a situation of distress. The Board also revoked the statement of account due to its findings on the first two issues.

10The Board found that there was adequate care in accordance with s. 3 of O. Reg. 444/19 (the “Regulation”) and made findings of fact that the animals had sufficient water, food, and shelter (see e.g. paragraph 32, which confirms the Board considered the definition of “distress” under the Act and the Regulation.

11At paragraph 33 of the decision, the Board states, “in considering the evidence on the day of the investigation by the Animal Welfare Inspectors, I find that there are not reasonable grounds for finding the animals were in distress on August 23, 2022”.

12The respondent suggests that the Board has misapprehended the test for distress or jurisdiction of the Board and made errors of fact and denied procedural fairness. The Board finds that the respondent’s request does not meet the criteria for a reconsideration under the Board’s rules and does not demonstrate any error of fact or law, nor any breach of procedural fairness.

13The grounds for a request for reconsideration are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:

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 head 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.

14The grounds that the respondent argues apply to this case can be summarized as follows:

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

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

c. The Board acted outside its jurisdiction or violated the rules of procedural fairness.

15I have reviewed the respondent’s reconsideration submissions and the Board’s decision in assessing whether the Board made an error or violated the rules of procedural fairness. I find that the respondent’s submissions do not point to any significant legal or evidentiary mistake that prevented a just outcome or warrant a reconsideration of its decision. Nor do I find that the Board acted outside of its jurisdiction or in a procedurally unfair manner.

Error of Law: Definition of Distress.

16The respondent submits that the definition of “distress” pursuant to the PAWS Act was misapprehended by the Board. The respondent contends that the Board “required” evidence of physical or psychological harm, which it views as a criterion not required by the Regulation, as interpreted in the Pryde decision. The Board’s analysis mirrors the Pryde framework, given the Board’s clear assessment of the definition of distress, the Regulation, including the standards of care and the analysis of the facts on the day of the investigation. The facts of Pryde are different, and the Board had to undertake a factual analysis of this matter, considering all evidence provided by the parties. It appears that it is this assessment of the facts that the respondent takes issues with.

17The Board did not add any requirement to the test as alleged by the respondent. There is no mention in the decision that the Board “required” evidence of the health of the animals to determine whether distress was founded or not. The Board considered the evidence to determine whether the respondent’s allegation of unsanitary conditions was supported and corroborated by the evidence on a balance of probabilities and could be grounded in the definition of “distress” as set out by the Regulation. In my assessment of the evidence, the allegations were not supported further to a view of all the evidence.

18For example, at paragraph 19, the Board, in reviewing the appellant’s witness testimony, found that the animals were “given water, food and shelter as required, daily”. The Board then goes on to say, at paragraph 21, that “the views on the state of care of the animals on the date of the investigation differs greatly between the parties”. Clearly the Board was trying to verify the differing views regarding the state of care on the day of the investigation by comparing to the varying accounts before, during and after the investigation.

19The AWS inspectors decided to remove the appellant’s animals because they found the animals lacked proper care, water, food or shelter further to their inspection and consultation with a veterinarian. The Regulation requires that that a standard of care be “adequate and appropriate” or “necessary.”

20The Board applied s. 3 of the Regulation in line with the Pryde decision, which was a decision considered at the time of the hearing. The appropriate standard of care in this decision was that which is set out in s. 3 of the Regulation, in conjunction with the definition of distress as set out at s. 1(1) of the PAWS Act.

21S. 3 of the Regulations set out the standards of care for all animals. This was applied and interpreted in the application of the Board’s decision. At paragraph 51, I found that it “was not reasonable to find the animals were in a state of distress prior to, nor on the day of the investigation. I find that the animals were fed, watered, free of disease, not showing signs of psychological harm, neglect and had (sic) rather, they had access to shelter and an environment that did not cause distress”. Factual findings were necessary in conducting an assessment of the definition of distress in application to the facts.

22Contrary to the respondent’s assertion, the Board did not hold that “distress” requires proof of medical or psychological harm or injury. The Board’s decision did not “require” proof of medical or psychological harm. The Board considered all available evidence, such as the witness testimony noted above, as well as the inspector’s reports, the veterinarian and the photographic and documentary evidence to corroborate its factual findings regarding the level of care provided to the animals.

23In its decision, the Board notes that there were two very opposing views on whether there was “proper care.” The respondent tendered evidence regarding sanitary living conditions, handling of the animals, sufficient water, food or protection from the elements in making their decision to remove the animals to relieve distress. However, the Board found it was not reasonable to conclude the animals were in distress, nor to remove the animals. After hearing the evidence and cross-examination of all the witnesses, I did not find that there was distress. I found instead that there was adequate care, and I disagreed with the concerns raised by the respondent.

24For example, water was said to be lacking for the animals. At paragraph 31 of the Board’s decision, I reviewed the evidence of whether there was adequate access to water and quoted s. 3 of the Regulation. The finding by the Board was ultimately that the animals had access to water, thus to proper care according to the Regulation and the meaning of Distress under the Act. I continued with this same framework in assessing the environment the animals were in.

25This and other findings were not contradicted in any way by the clear bill of health for the animals, as evidenced by the medical information and the fact that the animals were all hydrated. The respondent states that I erred in considering the health of the animals as this added a medical requirement to the test. I cannot agree that consideration of evidentiary observations of an animal’s health is irrelevant. I did not state that evidence of such was a legal requirement in the decision. The veterinary findings were factually relevant to finding that the conditions were sanitary, there was access to clean water, and there was protection from the elements.

26Contrary to the respondent’s interpretation, the Board did not state that medical evidence was a required element of a test. These facts were considered in the scope of the contradictory evidence on virtually all of the respondent’s claims. For example, when I heard evidence that there was a dry bowl, but also that the bowl was damp, the evidence of proper hydration helps to conclude, on a balance of probabilities, that the bowl had likely been filled prior to the inspectors’ direct observation, as the dogs were generally well hydrated after the veterinarian examined them. All relevant evidence was considered in the Board’s decision.

27The respondent states that the Board misapplied the test for distress when it said, “While the investigation raised concerns with compliance with the Regulation, these violations or the appellant’s behaviour are insufficient to ground a belief of distress or do not apply as stated above.” The respondent views this as some added legal criteria, which is not the case. The reference by the Board to “concerns” means that the respondent’s “allegations” or “unproven concerns” need to have an evidentiary basis. The Board has jurisdiction to review all evidence, and this is what was meant by this statement.

28The respondent seems to suggest that Pryde stands for the principle that a strict liability applies to assessing “distress” where one dry bowl would mean that the animals were in distress and the inspectors can then remove the animals. I do not agree that the definition of “distress” must be interpreted in this way. The safety, health and security of the animals is result sought here and the relevant criteria here, under s. 3 of the Regulation, includes “adequate and appropriate food and water”. This is what was assessed, contrary to the respondent’s suggestion that this was somehow a review of the inspector’s assumption or otherwise.

29In sum, I believe the proper legal test of distress was applied and there was no error of law in this regard.

Errors of Fact

30The respondent’s reconsideration submissions appear to be an attempt to retry the facts, which is not the purpose of a reconsideration. Further, they do not reveal any significant factual error such that the Board would have arrived at a different result.

31In the decision, the Board found that the animals were housed from the elements in the home that was, on a balance of probabilities, clean and offered a safe area with room in the principal housing area for the dogs. While there were concerns with the basement and the outdoors, I found that the dogs were mainly in the main room of the house, tended to throughout the day and well kept. There was indeed contradictory information, for example, about which water bowls were clean or not, whether a Dachshund should have had a blanket over its crate during the investigation, whether the outdoor area was proper, or whether there was crowding or unsafe conditions in the basement, among other. I assessed all the evidence on the points raised. In a fulsome review of the allegations made, I found, overall, the dogs all had access to water bowls in the home and they were being filled by the appellant and the witnesses attested to this being her regular practice. The veterinary evidence helped to corroborate this finding as the animals were all found to have good hydration. There was no evidence of malnutrition. Finally, on a balance of probabilities, the areas the dogs were in were safe and provided adequate care.

32I will add what follows in response to the alleged factual errors raised by the respondent:

a. The respondent wishes to have the lay witnesses’ testimony set aside as irrelevant. I find no reason to do so. I heard the evidence of both parties and reviewed and weighed all of the evidence presented, including lay witness testimony, which I found relevant.

b. The respondent makes reconsideration allegations that “clearly” show non-compliance in its view. I find this is an attempt to retry facts that were heard and disposed of in the hearing and the decision. I found that the care was adequate given that the animals had a dry, safe and spacious space inside the house, with access to water and food from a caregiver who was present all day, along with family members helping as well. I found, among other things, that where there are claims on the day of the investigation of matted fur, this was not sufficient to show distress. An empty water bowl alone is not sufficient to show distress. The cleanliness of fur on a day where there was commotion and coming and going was not a clear sign of distress either. While I accepted the veterinarian’s findings, I did state where I found that I preferred or considered other evidence in making my findings. The veterinarian’s expert opinion on the health of the animals was not contradicted by any other report, and found the animals in good health, which corroborates the Board’s findings of adequate care. When all competing claims and these were all evaluated, my findings were clear that the conditions were adequate on the day of the investigation, and I did not agree that the animals were in distress or would be placed back into distress.

c. I agree that Pryde requires a review of violations of the Regulation to determine distress. This is in order to ensure owners comply with the Regulation and, in the case of non-compliance, leading to distress, a basis of removal can be founded. In my reasons, I reviewed whether there was adequate care in compliance with the Regulation standards. I found s. 3 was complied with and that there were sanitary living conditions, a safe space in the house to protect from the elements, adequate water and food. As I found no initial distress, this weighed in favour of returning the animals to the appellant.

33The Board referred to the absence of previous compliance orders or investigations regarding these specific animals by the CAWI as a hurdle in logically assessing the factual basis distress before and during the investigation. To assess the respondent’s allegations regarding distress, witness testimony regarding the state of care was considered both before and during the investigation. Also, according to the respondents own evidence, there was shouting, yelling, banging at the door, calls, insults, running around, people coming and going during the day, and other events that added challenges to ascertaining the events that day. I do not have jurisdiction over the behaviour of the parties on the day of the investigation, but the animals were impacted by this behaviour and the series of events. The Board noted that it would consider evidence prior to the investigation to test whether the allegations of distress were affected in any way due to the events that day and to arrive on conclusion on a balance of probabilities. This analysis was necessary especially where the parties contradicted each other’s views, which was often. I sought points of comparison to logically analyze the allegations of the respondent and to corroborate the evidence that was contested at the hearing.

34I considered submissions regarding the previous compliance matters at the hearing and the parties were not prejudiced in my view in discussing how those matters related to different animals and what timeline led up to the investigation for the matter at hand.

35The Board’s purpose in this hearing under reconsideration was to determine whether the evidence was verifiable to the degree necessary to make a finding of “distress”, and whether distress would be present if the animals were returned.

36The Board determined that there was no finding of distress, and that there was no risk of distress if returned and the animals were ordered to be returned.

37I find that there were no significant errors of fact that would have altered the outcome of the decision.

Procedural Fairness

38The hearing allowed for fulsome participation by both parties and the hearing did not have any breach of procedural fairness. I reject the respondent’s contention that the discussions regarding previous CAWI cases with this appellant were discussed at the hearing in an unfair manner. Both parties were able to make submissions regarding this at the time it came up, including to make any objections, and in written submissions and any prejudice was remedied through the hearing process.

39Further, my consideration of the surprise element of the investigation was not a criticism by the Board, contrary to the respondent’s assertion.

40As noted by the respondent in its submissions, I intervened during the hearing, allowed parties to make submissions, and made orders to address the fairness of the situation or warn the parties.

41The respondent’s allegations are subject to review by the Board on the facts. It does not constitute a de novo hearing to assess the facts supporting the respondent’s allegations, following a fair hearing. I find that the hearing was fair and both sides had ample opportunity to test and provide support for their allegations. The Board made findings of fact which did not ground a finding of distress, as noted above.

Jurisdiction

42The respondent states that I erred in “revoking” the decisions to remove and keep in care and that the Act does not give the Board the power “revoke” the decisions to remove and keep in care.

43The Board identified its powers under s. 38(9) of the Act at paragraph 11 of the decision. The Board made no orders regarding the CAWI’s strategy, its approach to this matter or otherwise. Where the Board stated that it revokes the decision to remove the animals, the Board notes that is referring to its powers to order the return of the animals and communicates, in plain language, what the effect of its decision is, pursuant to paragraph 38(9)2) of the Act. The Board confirms its order for the animals to be returned and to revoke the statement of account. These powers were set out in the decision and are explicitly within the Board’s powers and are not an error of law or of fact.

CONCLUSION

44For the reasons noted above, I deny the respondent's request for reconsideration.

Matthew M. Létourneau Adjudicator Tribunals Ontario