Tribunals Ontario
Animal Care Review Board
Date: 2023-04-18
RECONSIDERATION DECISION
Before: Ashley Deathe, Member
Date of Order: 04/18/2023
Tribunal File Number: 13977/ACRB
Case Name: Nataliya Ishankova v. Chief Animal Welfare Inspector
Written Submissions by:
For the Appellants: Ekaterina Miropolskaia, Paralegal
For the Respondent: Shane Sukerman, Counsel
OVERVIEW
1On September 29, 2022, the Respondent, the Chief Animal Welfare Inspector, filed a request to reconsider the Board's Decision1 dated September 9, 2022. That decision varied the Statement of Account issued to the Appellant, Nataliya Ishankova, by reducing the total from $8,416.00 to $2,814.88 and ordering the return of the Appellant's seven cats and seven newborn kittens to her, subject to a number of conditions (the Decision).
2The Respondent's reconsideration request is for an amended order denying the return of the animals on the grounds that the Board acted without jurisdiction, violated the Respondent's procedural fairness rights, and committed errors of law or fact such that the Board would likely have reached a different result had the errors not been made.
3In her submissions, the Appellant objected to the Respondent's request and requested costs2 pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the "Board's Rules").
RESULT
4The Respondent's request for reconsideration is granted and the Decision is varied by striking paragraph [204] (3)a)-f). The Appellant's request for costs is denied.
PROCEDURAL ISSUE: MOOTNESS
5The parties agree that the Appellant paid the varied Statement of Account as ordered by the Board in the Decision.
6In the Respondent's reply submissions dated November 24, 2022, the Board was advised that a new Statement of Account totaling $49,095.00, covering additional costs incurred for providing necessaries to the animals while in the Respondent's care, had been served on the Appellant on September 29, 2022.
7The Board was further advised by the Respondent that the Appellant failed to pay the September 29, 2022, Statement of Account within the prescribed timelines and did not appeal it. Therefore, the same animals that the Board had ordered returned to the Appellant were forfeited to the Crown on October 14, 2022, by operation of s. 35(4)(a) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c.13 (the "Act"). What this means for the Respondent's reconsideration request is that a determination of this reconsideration request is of no practical effect: these animals can no longer be ordered returned – or not returned - to the Appellant.
8With reference to this new information, the Board invited the parties to provide additional submissions on whether the request for reconsideration was moot and if so, whether the Board should exercise its discretion to consider the matter.
9In their submissions dated January 10, 2023, the Respondent conceded that there was no longer a live issue between the parties on this reconsideration request. However, the Respondent's submitted that the Board ought to exercise its discretion to hear the matter because:
(a) The issue of the animals' return had been fully litigated over the course of a five-day hearing with multiple witnesses, documentary and photograph evidence, and extensive submissions (Respondent's Submissions dated January 10, 2023, para. 18);
(b) There are special circumstances justifying the use of the limited resources of this Board; and
(c) There are issues of public importance to be decided.
10In her submissions dated January 10, 2023, the Appellant acknowledged that the animals were forfeited to the Crown but made no argument as to whether the Board ought to exercise its discretion to hear the reconsideration.
11The Supreme Court of Canada discussed the doctrine of mootness in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, at p. 353 S.C.R., Justice Sopinka said:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.
12The Court pointed out that a court may still exercise its discretion to decide a matter that has been rendered moot further to certain principles: adversarial context, judicial economy, and the proper law-making function of the courts (Borowski, at pp. 358-63 S.C.R.). The Court also directed that the exercise of discretion is not a rigid application of these criteria:
In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa (p. 363).
13I find that the issue of return of the animals was fully litigated before the Board over five days of hearing (June 6, 7, 9, 14 and 15, 2022): The Board issued its decision after receiving extensive evidence and argument from the parties. The grounds of the reconsideration request include concerns that the Board acted without jurisdiction, violated the Respondent's procedural fairness rights, and committed errors of law or fact such that the Board would likely have reached a different result had the errors not been made.
14In support of its argument that there are special circumstances justifying the use of adjudicative resources in resolving an appeal that is moot, the Respondent argued that it would be onerous to insist on a live controversy. It reasoned that the expedited appeals process set out under the Act, including automatic forfeiture of animals where Statements of Account are not paid, would mean that most appeals would be moot by the time of reconsideration (Respondent's Submission dated January 10, 2023, at para. 21). The Respondent asserted that "to ensure a live controversy for the purpose of a reconsideration request, AWS would be required to refrain from issuing subsequent Statements of Account to ensure that automatic forfeiture under s.35(4) would not occur" (Respondent's Submissions dated January 10, 2023, at para.22).
15I do not share the Respondent's concerns that to withhold a Statement of Account in these circumstances would have been onerous. The legislation empowers the Respondent to use its discretion when issuing Statements of Account (Act, s.35(1)). Indeed, the Respondent withheld issuance of new or amended Statements of Account to this Appellant through the months-long appeal process until after the Decision was issued in September 2022.
16The Respondent also argued that the reconsideration request concerned the proper interpretation of the Act relating to the return of animals and that the resolution of this issue was of great importance to the Respondent and to animal owners in Ontario. However, the importance is somewhat diminished because a Board's decision is not binding on future matters before the Board and the issues raised by this reconsideration are not likely to evade review by this Board should I decline to exercise discretion.
17The issue of the return of the animals is moot. However, I am satisfied that the issue of the animals' return was fully litigated at the hearing such that I am persuaded to exercise my discretion to hear the reconsideration request despite it being moot. In the context of this reconsideration request, this factor outweighs the absence of the general importance of this matter or special circumstances.
ANALYSIS
18The Board's authority to reconsider its own decisions is set out in Rule 18 of the Board's Rules.
19In particular, Rule 18.2 stipulates that the Board's discretion to reconsider a decision may be exercised only if 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.
20Upon reconsidering a decision, the Board may dismiss the request; or, after providing the responding parties an opportunity to make submissions, confirm, vary, or cancel the decision or order; or order a rehearing on all or part of the matter (Rules, 18.4).
21In support of its reconsideration request, the Respondent submits that the Board acted without jurisdiction, violated the rules of procedural fairness, and committed errors of law or fact such that the Board would likely have reached a different result had the errors not been made.
22For the reasons that follow, I am persuaded to exercise my discretion pursuant to Rule 18 of the Board's Rules to grant the reconsideration request. I find that the Board:
a. denied the Respondent's right to procedural fairness; and
b. made an error of law such that it would likely have reached a different result regarding the return of the animals had the error not been made.
The Board had jurisdiction to adjudicate the issue of the animals' return
23The Respondent submits that the Board acted without jurisdiction when considering the Appellant's request to have her animals returned because the hearing in this matter was limited to an appeal of the Statement of Account. The Respondent made this objection at the hearing and the Board received submissions from both parties before overruling the Respondent's objection (Decision, para. 181).
24At paragraph [184] of the Decision, the Board noted that the Appellant's Notice of Appeal of the Statement of Account referenced the Appellant's desire to have her animals returned. The May 11, 2022, Case Conference Report and Order directed that the Appellant could particularize her grounds for seeking the return of her animals at the hearing if she did so by a certain date. The Board concluded that the Appellant, "did provide her grounds, albeit late and they are not particularly clear, but there can be no surprise to the respondent that the appellant would be requesting the return of her animals at this hearing" (Decision, para. [184]).
25At paragraphs [185] to [187] of the Decision, the Board summarized the parties' positions on whether the Board had jurisdiction to order the return of the animals. The Board determined that the issue of return of the animals was properly before it by function of s. 38(4) and s.38(9) of the Act (Decision, para. [187]). Subsection 38(4) of the Act requires the Appellant to send a request in writing to the Board seeking the return of the animals. This request first appeared in the Notice of Appeal together with the appeal of the Statement of Account. The Board also directed the Appellant's representative to write to the Board confirming the request (Decision, Footnote 25).
26I find that it was within the Board's jurisdiction to consider ordering the return of the animals under s.38(4) of the Act. Therefore, a reconsideration of the Decision is not warranted on this basis.
Denial of procedural fairness
27The Respondent further submits that a reconsideration of the Decision is warranted because it was denied procedural fairness. Specifically, the Respondent argues that it had no notice that the Appellant would raise the issue of the animals' return, or the lawfulness of the critical distress entry.
28The Board addressed the Respondent's concerns about the issue of the animals' return being included at the hearing and issued directions to ensure that its rights to procedural fairness were safeguarded. The Board stated at paragraph [188] of the Decision:
Although I found the respondent ought not to have been surprised that the return of the animals might be an issue at this hearing, I nonetheless allowed the respondent additional time to prepare for this issue if required, including the ability to seek an adjournment to ensure procedural fairness to both parties. I also assured the respondent that it could have leeway to call evidence in reply if issues arose in respect of the return of the cats for which it had not prepared. The respondent did end up spitting [sic] its case in this regard, calling its inspectors and the veterinarians first, and Mr. Draper after the appellant had called her witnesses and testified.
29The Respondent submitted that it was also taken by surprise that the Board would consider the lawfulness of the critical distress entry. The Respondent asserts it was denied the opportunity to present evidence on this matter, and the Board should not have considered the propriety of the critical distress entry as a factor in the decision. Specifically, the lack of notice that the critical distress entry would be considered by the Board was prejudicial to the Respondent because:
It did not call Regional Supervisor Sara Munoz to testify about the basis for her decision to execute a critical distress entry; and
The inspectors who testified at the hearing were not given the opportunity to enter evidence in support of the critical distress entry through direct testimony.
30Based on my review of the Decision, the Respondent argued that the critical distress entry was irrelevant to the appeal; the Board acknowledged the Respondent's position at paragraph 29 of the Decision:
Whether the warrantless entry was authorized
The appellant complains that AWS did not have the grounds to enter without a warrant. The respondent argues that whether AWS had such grounds does not matter, since the appellant did not appeal the removal. I find the context of the removal relevant for a number of reasons, including that it has been raised by the appellant and therefore, as a matter of fairness, warrants consideration. Moreover, as noted above, I am mindful of the Court's direction in Hurley, that the Board "must ensure that provisions in the Act that protect the rights of animal owners are taken seriously and scrupulously adhered to…"^8^ I find in this case that the AWS did not have the authority under the Act to enter the appellant's dwelling without a warrant. Whether there is a remedy for this breach is another matter which I will address in my analysis. [Footnotes omitted]
31The Board expanded its analysis of this issue at paragraphs [38] to [46] of the Decision.
32In response to the suggestion that the Respondent would have called Regional Senior Supervisor Munoz had it known the issue of "critical distress entry" would be considered, the Appellant points out that Regional Senior Supervisor Munoz was an observer at the hearing. The Board made a similar observation at paragraph [44] of the Decision stating:
Inspector Jackson testified that he had no experience with telewarrant and that the entry was authorized by their Regional Senior Supervisor, Sara Munoz. Ms. Munoz did not testify, however she was an observer at this hearing. Inspector Vandenkroonenberg also only testified about making a "critical distress entry" with no suggestion that they attempted to turn their minds to a warrant.
33The Board considered the unlawfulness of the critical distress entry as part of its reasons for ordering the animals be returned (See Decision, paras. [190]-[200]). Specifically, this issue is referenced at paragraph [196] of the Decision.
34The Respondent had the opportunity to make submissions on whether the issue of return of the Appellant's animals was properly before the Board and whether the lawfulness of the critical distress entry was relevant to the hearing.
35I have found that the Board took measures to safeguard the Respondent's procedural rights throughout the hearing as regards the return issue. In particular, the Board offered the Respondent the "ability to seek an adjournment to ensure procedural fairness to both parties," and the Board assured the Respondent it "could have leeway to call evidence in reply if issues arose in respect of the return of the cats for which it had not prepared" (Decision, para. 189). I note that the Respondent did not seek an adjournment.
36However, the Decision does not include the same procedural safeguards regarding the critical distress entry issue. I find that the Respondent did not have sufficient notice that the critical distress entry would be an issue and did not have a meaningful opportunity to lead evidence on this issue.
37The Board referenced the unlawfulness of the critical distress entry as partial support for its finding that the Respondent treated the Appellant unfairly. Although not determinative, that unfair treatment was one of many factors which the Board referenced in support of its order to return the animals.
38Therefore, I find that the Respondent was denied its right to procedural fairness when the Board considered the lawfulness of the critical distress entry and considered this finding when ordering the return of the animals. As a result, a reconsideration of the decision is warranted on this ground.
The Board erred in law
39The Respondent also submits that a reconsideration is warranted in this matter because the Board erred in fact and/or law by ordering the animals returned to the Appellant as the Board did not receive evidence from the Appellant that the conditions that caused the animals to be in distress had ceased to exist.
40At paragraphs [58] to [60] of the Decision, the Board summarized the evidence from Dr. Bruce Robertson, the veterinarian who authorized the removal of the cats under s.31(1)(a) of the Act. Dr. Robertson had concerns about the cats' diet, the condition of the cats' housing— particularly given the overpowering smell of ammonia observed—and he did not believe the dwelling could be aired out in a timely manner. Dr. Robertson opined that the animals were in distress and alleviating their distress required removal and, as a result, he issued a certificate of removal. At paragraph [63] of the Decision, the Board accepted the Dr. Robertson's basis for certifying that alleviating the animals' distress necessitated their removal.
41Further, at paragraph [191] of the Decision, the Board concluded that the home from which the cats had been removed from was unsanitary and lacked ventilation such that it did not meet the basic standard of care set out in the O. Reg. 444/19: Standards of Care and Administrative Requirements made under Provincial Animal Welfare Services Act, 2019, S.O, 2019, c.13. The Board found there was "no evidence that [the appellant] has adequate living arrangements to provide a basic standard of care for such a number of cats" (Decision, para. [190]). Nevertheless, the Board ordered the Respondent to return the cats subject to compliance with a further order issued by the Board (Decision, paras. [197] to [220]).
42In her submissions, the Appellant argues that because the Respondent did not adduce evidence that she was unable to care for her cats, the cats ought to have been returned (Appellant's Submissions dated November 18, 2022). This, however, is not the test.
43The animal's owner bears the evidentiary onus for seeking the return of their animals be it through a s.38(4) application or through another appeal route to show that the conditions that caused distress ceased to exist. Should the animal's owner fail to discharge their onus, their application for the return of their animal will be unsuccessful.
44Here, the Board crafted a solution - the Board ordered a return of the animals subject to certain terms that are detailed at sub-paragraphs [204] 3) a)-f) of the Decision. In sum, the Board ordered the cats to be returned following payment of the varied Statement of Account and that the Appellant provide an adequate and appropriate living space for the cats that includes adequate ventilation and light, access to kitty litter, access to appropriate food and water, suitable bedding, and sanitary conditions. The Board also directed the Appellant to provide adequate and appropriate medical treatment to the animals and to allow inspection by AWS on 24 hours written notice.
45It is apparent from the Decision that the Appellant did not meet her onus of providing evidence that she had adequate housing for her animals. As a result, I find that the Board did not have evidence that the conditions that caused distress had ceased to exist when it ordered the animals returned. Accordingly, I find the Board's decision and order to return the animals to the Appellant was an error of law. Therefore, a reconsideration of the Decision is also granted on this basis.
COSTS
46The Board's jurisdiction to award costs is set out under Rule 19 of the Board's Rules.
47Rule 19.1 of the Board's Rules provides that a party may make a request to the Board for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 directs that the party's request for costs must be made prior to the release of the Board's decision or order.
48In support of her request for costs, the Appellant asserts that her language barrier is grounds for a costs order. She also states that she incurred debt to finance the legal costs and the expenses associated with attending the hearing and language interpretation.
49The Board's Rules limit the amount of costs to $1,000 for each full day of attendance at a motion, case conference, or hearing (Rule 19.6). This rule particularizes the general legal meaning of costs, which term is understood to mean certain allowable expenses and services incurred relevant to a proceeding. The Appellant has filed documentation showing the purchase price of certain cats and the other expenses presumably incurred in the course of obtaining the cats. A costs award does not indemnify or compensate a party for general financial loss.
50The Respondent's position is that a costs order is unjustified because the Appellant's request is out of time, having been made after the Board released the Decision, and, in the alternative, that the Appellant has not provided any evidence that the Respondent's conduct was unreasonable, frivolous, vexatious, or in bad faith. The Respondent notes that at the hearing, the Board signalled concern that the Appellant was attempting to re-litigate a past proceeding (Respondent's Submissions dated November 24, 2022, at para. 11). It also emphasizes that it was the Respondent that made submissions that the Board appoint an interpreter for the Appellant at no cost to the Appellant (Respondent's Submissions dated November 24, 2022, at para. 10). The Respondent submits that a costs order against it is unjustified.
51From her submissions, it is unclear whether the Appellant is requesting a costs order against the Respondent as regards its conduct during the appeal hearing, the request for reconsideration, or both. The Appellant requested generally that she receive "reimbursement of legal proceedings" at paragraph 5 of her submissions dated November 18, 2022, and that the Respondent "cover [the Appellant's] legal proceeding costs" in her submissions dated January 10, 2023.
52The Board released its decision and order, the Decision, in the appeal hearing on September 9, 2022. To the extent that the Appellant is requesting costs related to the appeal hearing and not the reconsideration, her request is out of time (Rule 19.2). In any event, she has not proved on a balance of probabilities that the Respondent's conduct reached the high threshold required for a costs order (Rule 19.1).
53I will now consider the Appellant's request for costs as it relates to the Respondent's request for reconsideration.
54While the Respondent acknowledged that events that happened after the Decision in this matter was released have rendered the issue of the animals' return moot, it was the Board that exercised its discretion to hear the request for reconsideration and granted that request. In all the circumstances, the Respondent's request for a reconsideration was not unreasonable, frivolous, vexatious, or in bad faith.
55The Appellant's request for costs in the underlying appeal is denied because it is out of time and, in any event, she has not proved the Respondent's conduct reached the high threshold of acting in an unreasonable, frivolous, vexatious, or bad faith manner. The Appellant's request for costs of the reconsideration is denied because the Appellant has similarly failed to prove on a balance of probabilities that the Respondent's conduct meets the high threshold of unreasonable, frivolous, vexatious, or bad faith manner in this matter.
CONCLUSION AND ORDER
56For the reasons noted above, the Respondent has proven on a balance of probabilities that the Board breached the rules of procedural fairness and erred in law such that it would likely have reached a different result had the error not been made. The Respondent's request for reconsideration is granted.
57However, I will not send this matter back to a rehearing as the animals have been forfeited to the Crown. Instead, I vary the Decision by striking paragraph [204] (3)a)-f) from the Decision.
58The Appellant's request for costs is denied.
Released: April 18, 2023
__________________
Ashley Deathe
Member
Tribunals Ontario – Animal Care Review Board
Footnotes
- Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 25.
- The total costs order requested by the Appellant was unclear. The Appellant initially requested $4,500 in legal expenses in Submissions dated November 18, 2022, but requested $3,500 in legal expenses in Submissions dated January 10, 2023. The Appellant also requested that she be compensated for various losses including: the value of the cats removed (two male cats valued each at $5,000 USD, 3 female cats valued each at $1,200 CAD, seven kitten valued each at $1,000 CAD), the transport costs of 4 cats from Ukraine at $1,500 per ticket, and "cat carriers" totaling $31,000 CAD.