John Geddes v. Chief Animal Welfare Inspector, 2023 ONACRB 41

RECONSIDERATION DECISION

Before: Susan Clarke, Vice-Chair Peter Simmons, Member

Date of Order: May 15, 2023 Tribunal File Number: 14171 and 14172/ACRB

Case Name: John Geddes v. Chief Animal Welfare Inspector

For the Appellant: Eric Gillespie, Counsel

For the Respondent: Kateryna Toderishena, Counsel Danielle Meuleman, Counsel

OVERVIEW

1The appellant, John Geddes, filed a Request for Reconsideration of the December 30, 2022 decision¹ of the Animal Care Review Board (Board). The decision addressed:

1. Appeals of eight Notices of Decision of the Chief Animal Welfare Inspector, the respondent, to Keep an Animal in Care (Decisions to Keep in Care) of various animals who were removed by Animal Welfare Services (AWS) from the appellant’s property on April 29, 2022;

2. Appeals of seven Statements of Account (SOA) issued by AWS for necessities provided to the removed animals; and

3. A return of removed animals.

2In the decision, the Board:

1. Found that a number of the animals removed on April 29, 2022 as set out in the decision should not be returned to the appellant because the conditions were such that to return the animals would be to place them back into a situation of distress. The Board noted that some of the animals had already been returned by AWS to the appellant in September 2022; and

2. Confirmed the following SOAs in full:

(i) SOA #1 issued on June 13, 2022 in the amount of $30,637.63;

(ii) SOA #2 issued on June 27, 2022 in the amount of $12,752.05;

(iii) SOA #3 issued on June 29, 2022 in the amount of $15,245.53;

(iv) SOA #4 issued on July 7, 2022 in the amount of $5,882.24;

(v) SOA #5 issued on July 7, 2022 in the amount of $3,412.74;

(vi) SOA #6 issued on July 19, 2022 in the amount of $8,588.00; and

(vii) SOA #7 issued on July 19, 2022 in the amount of $28,541.16.

3The appellant is requesting that the request for reconsideration be granted because the Board:

1. Made erroneous findings of fact, resulting in procedural unfairness, constituting an error of law²;

2. Failed to consider the appellant’s evidence, as required by the rules of natural justice and procedural fairness, resulting in a further error of law³;

3. Failed to consider the appellant’s legal submissions, as required by the rules of natural justice and procedural fairness, resulting in a further error of law⁴; and

4. The Board’s reasons are deficient because it failed to consider or reference any of the evidence or law filed by the appellant; a further failure of procedural fairness and a further error in law⁵.

4As a remedy, the appellant requests that the appeal be reheard before a different Board panel.

5The respondent submitted that none of the issues raised by the appellant would lead the Board to reach a different outcome. It submitted that a rehearing of the matter by a different panel is unwarranted and should be dismissed, and that a different panel would likely reach the same result based on the available evidence.

RESULT

6The appellant's request for reconsideration is dismissed. The Board finds that it did not:

1. Violate the rules of procedural fairness; or

2. Make an error in law or fact such that a different result would have been reached had the error not been made.

ANALYSIS

7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 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 (“Rules”). The grounds are as follows:

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

2. 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;

3. The Board heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

4. There is evidence that was not before the Board when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.

The Board did not breach procedural fairness

8Procedural fairness relates to taking steps to ensure a fair process. The appellant linked each of the four grounds (or “Errors”) for reconsideration as being breaches of procedural fairness. It is unclear how the first ground is one of procedural fairness. For this reason, the first ground (or “Error #1”) will be addressed later under the heading of “Erroneous Findings of Fact”.

The Board considered the appellant’s evidence (Error #2 in appellant’s request for reconsideration)

9The appellant submitted that the rules of natural justice and procedural fairness require that the evidence of a party be at least considered, and the failure to do so is an error of law. The appellant submitted that the Board made no reference to the affidavit of Dr. Mike DeGroot, DVM⁶ and that this evidence was important to the decision.

10Dr. DeGroot’s affidavit included eight exhibits (totalling only 10 pages, not including the signed Commissioner pages). The exhibits included four brief reports: the first was Dr. DeGroot’s observations of the animals removed on April 29, 2022 and largely confirmed AWS’s evidence. Another report regarded a visit to the zoo to observe proposed housing facilities for the possible return of the animals. Other reports were regarding animals and their housing (but not for the animals removed). Two letters related to veterinary services Dr. DeGroot’s clinic could provide. The remaining exhibits included DeGroot’s curriculum vitae and acknowledgement of an expert’s duty.

11The Board agrees with the appellant that it did not reference Dr. DeGroot’s affidavit and exhibits in its reasons for decision. This does not mean that the Board did not consider DeGroot’s affidavit, because it did. The Board found that the evidence was not relevant to the decision and therefore did not include it in its reasons. The Tribunal is not required to address or reference every piece of evidence put before it, particularly if it is not relevant.

12The Board agrees with the respondent that the appellant made no reply to the respondent’s submissions, failing to provide any specific evidence about whether the removed animals would be placed in distress if returned, and failing to address the reasonableness of the costs reflected in the Statements of Account, both of which were issues on appeal to be decided.⁷

13While the Board did not make note of Dr. DeGroot’s affidavit, the omission was not an error of law. As such the Board dismisses the appellant’s request for reconsideration.

The Board considered the appellant’s case law (Error #3 in appellant’s request for reconsideration)

14The appellant submitted that the Board violated the rules of natural justice and procedural fairness when it failed to reference in the decision any of the law cited and the numerous issues raised by him.⁸ The appellant submitted that the Board did not acknowledge, assess, or set out the arguments of any of the extensive law put before it, and provided no explanation of why the appellant’s law was rejected. The appellant submitted that at a minimum, the law central to a party’s case should at least be considered, and that failure to do so is a further error of law.

15The hearing was conducted as a hybrid hearing, with written evidence-in chief, and with cross-examination and closing arguments by videoconference. The appellant submitted a single affidavit, that of Dr. DeGroot; the respondent declined to cross-examine him. The respondent submitted over 1000 pages of documentary evidence; the appellant chose only to cross-examine Regional Supervisor Connie Mallory, Chief Animal Welfare Inspector delegate (Mallory), asking if Mallory ever attended the zoo or spoke with the appellant, which she had not.

16In closing submissions, the respondent reviewed the evidence as it related to the decisions the Board had to meet. The respondent spoke about hearsay, acknowledging that Mallory did not attend the property or speak to the appellant, but relied on the records and interviews with the Inspectors. The respondent quoted case law, but also noted that the Statutory Powers and Procedures Act⁹ (SPPA) allows the Board to accept hearsay, but that it should scrutinize it and attribute weight. The respondent submitted that double-hearsay, as in Manikam,¹⁰ is a denial of natural justice in that there is no opportunity to test it. The respondent pointed out that in the case at hand, there were extensive detailed affidavits of the decision-maker of all materials considered, and that Mallory was cross-examined. The respondent noted that all the witnesses were excused by the appellant, accepting their affidavits and all the exhibits by not examining them.

Board decisions

17In his closing submissions, the appellant referenced four Board decisions stating these reflect the Board’s current position but noting that these aren’t binding. The Board agrees with the respondent, which submitted in its responding submissions,¹¹ that Board decisions are non-binding and distinguishable, and that the Board is not required to consider and respond to every non-binding decision put forward by the parties or to address the inconsistencies. The Board also agrees with the respondent that each case must be decided on its own, frequently unique, merits and circumstances.

18The cases cited by the appellant were distinguishable from this appeal and did not lend to the Board’s decision. The Board chose not to write a detailed assessment of the cases in its decision to show why they were distinguishable. Choosing not to discuss cases that are not relevant to a decision is not an error in law.

Verney, Iannarella, Paramount

19In closing submissions, the appellant also referenced three court decisions: Verney,¹² Iannarella,¹³ and Paramount,¹⁴ but stated that he would not address them. The respondent submitted that Verney, Iannarella and Paramount relate to the Browne v. Dunn rule, an issue not raised by either party as this could only apply to a witness on examination and in cross-examination. The Board agrees that these cases do not appear to support any of the issues and arguments raised on this hearing; for this reason, the Board did not address them.

Straub

20In closing arguments, the appellant referenced Straub,¹⁵ submitting that because the respondent in that case failed to call anyone with firsthand knowledge in this case, the court did not award boarding costs.

21The respondent submitted that Straub is distinguishable from this case on a number of key aspects¹⁶. These include that the decision was based on the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA Act), no longer in effect; the decision stood for the principle that SOA charges must reflect the actual cost of caring for the animals, the care provided must be reasonable, and the Ontario Society for the Prevention of Cruelty to Animals should keep records of costs and the care provided to the animals. The Board does not support the argument that Straub is distinguishable; while the OSPCA Act is no longer in force, the principles are still valid.

22The Board was not persuaded by the appellant that the Straub case supported his position that the SOA should not be confirmed because there was no firsthand testimony regarding the boarding costs for the current appeal. The appellant did not fully describe the reasons in Straub which also included that the only costs allowed were those that the plaintiff proved.

23In Straub the adjudicator expressed concerns with the plaintiff’s lack of record-keeping, the lack of justification of the flat boarding rate charged, and the lack of evidence as to how the rate was developed. The respondent submitted that even if Straub is applicable, the respondent had fully complied with these requirements by adducing exhaustive evidence of twelve witnesses, with supporting documentation, speaking to the care provided to the animals and outlining the necessity and reasonableness of each charge on the SOA in great detail. The respondent submitted that the appellant did not adduce any evidence to the contrary and only chose to cross-examine Regional Supervisor Mallory who made the Keep in Care decisions.

24The Board agrees with the respondent that the evidence it provided to support the SOAs was exhaustive. While the respondent’s evidence was not firsthand, it was evidence.

25The Board chose not to write a detailed assessment of the Straub case in its decision because it was deemed not relevant to the decision. Not doing so, when there is no relevance to the decision is not an error in law.

Manikam

26In closing submissions, the appellant referenced Manikam, submitting that allowing hearsay can deny natural justice. The appellant submitted again that not one witness gave testimony regarding boarding costs, and that the entire case is based on hearsay. The appellant submitted that if hearsay is to be accepted, then the “Baker” factors should be applied.

27The respondent submitted that the definition of hearsay was not in dispute; and that it had directly addressed and distinguished the Manikam decision in its closing submissions on the issue of admissibility of hearsay. It submitted that Manikam dealt with quadruple hearsay,¹⁷ which was not the case in this hearing. It further submitted that the majority of the evidence adduced by the respondent was direct evidence and not hearsay. The direct evidence was supported by extensive records.

28The Board noted that the hearsay argued by the parties was that of Mallory regarding the Decisions to Keep in Care, and the SOAs regarding the boarding charges. The Board reviewed the arguments, Manikam, and the SPPA, and found that Mallory’s decision was based on a considerable amount of evidence (Veterinary Records of all the animals, Statements of two attending veterinarians, and an Affidavit of John Geddes and records provided by him in response to a Records Demand) and interviews with the inspectors, and that she was prepared to be cross-examined on her decision.

29The appellant was able to cross-examine the various witnesses on their affidavits but chose not to. The witnesses included the two inspectors, Senior Investigator Carly Atrooshi (Atrooshi) and Inspector Maryanne Pryer, and eight veterinarians, including AWS consultant Dr. Graham Crawshaw, and attending veterinarians Dr. Jennifer Farr, Dr. John Sallaway, Dr. Kelly Ferguson, Dr. Cheryl Laite, Dr. Tom McQueen, Dr. Robin Roscoe, and Dr. Lee Parker. Their exhibits included their invoices and reports of their medical findings.

30Atrooshi included the SOAs and the supporting invoices in the exhibits to her affidavit, and explanations throughout her affidavit outlining the expenses incurred for each animal.

31The Board considered Manikam and found it distinguishable from this appeal. In Manikam, introducing the hearsay evidence of a police officer who was not the on-scene officer, who did not witness the event but took a statement from the complainant, who had competing motives from that of the appellant, was prejudicial to the appellant. The decision describes the principle reason for the exclusion of hearsay in the absence of contemporaneous cross-examination in paragraph 29:

“It is cross-examination that may best expose defects in perception and memory, as well as ambiguity in communication and want of sincerity”.

32The Manikam decision stated the following in paragraph 31:

“The reliability requirement is generally met when it can be demonstrated that there is “(i) no concern about the truth of the statement because of the circumstances in which the statement was made; or (ii) no real concern arising from presentation of the statement as hearsay because the circumstances permit the testing of its truth and accuracy by means other than contemporaneous cross-examination” (Watt’s Manual, at p. 424)”.

33The Board considered the Manikam decision and decided that it had no concern regarding Mallory’s Decisions to Keep in Care, given the documented evidence and her interviews of the inspectors on which she based her decisions. As an administrative tribunal, the Board is not bound by strict evidentiary rules and is allowed to accept hearsay evidence provided it assess the weight to be given to it. The Board evaluated Mallory’s evidence and found it probative, persuasive, and credible, and thus gave it full weight. It was not necessary that she attend the zoo, nor that she interview the appellant. Mallory was proximal to the case, and as said earlier, the appellant had an opportunity to interview her more closely or any of the other witnesses but elected not to.

34Atrooshi’s affidavit and exhibits documented visits of the boarding facilities both prior to the boarding of the animals, and follow-up checks on them once the animals were settled. Her affidavit provided explanations of all the costs reflected in the invoices supporting the SOAs. Unlike in Manikam, the evidence was factual, and the Board had no concern regarding ambiguity or sincerity. While the appellant was unable to cross-examine the boarding facilities, it was clear that the costs were incurred and were justified.

35The Board chose not to write a detailed assessment of the Manikam case in its decision because it was deemed not relevant to the decision. Choosing not to provide a detailed assessment, when there is no relevance to the decision is not an error in law.

36The panel did not consider the “Baker” factors. While the appellant highlighted the paragraphs in the Manikam decision that addressed the Baker factors, the appellant did not provide direction on how he wanted the Board to apply them.

37In summary, while the Board reviewed all the case law presented by the appellant, none of it was considered relevant to the appeals. The Board finds that while it neglected to acknowledge the case law submitted by the appellant, this was not an error in law. It agrees with the respondent that this does not constitute an error that would alter the decision¹⁸. For these reasons the Board dismisses the request for a reconsideration.

The Board did not provide “deficient” reasons (Error #4 in appellant’ request for reconsideration)

38The appellant submitted that as the Board failed to consider or reference any of his evidence or law filed, that the reasons it provided are therefore deficient. He submitted that this is a breach of procedural fairness and an error in law. To support the appellant’s position, the appellant submitted that the decision in Ontario College of Teachers v. Bouragba,¹⁹ which found a trial judge is not obliged to discuss all of the evidence on any given point, provided that the reasons show that they grappled with the substance of the live issues on the trial.

39The appellant also submitted²⁰ that the Bouragba decision stands for the proposition that reasons must be adequate and adds that the Supreme Court of Canada has stated in Baker that “reasons facilitate meaningful judicial review by shedding light on the rationale for a decision.”²¹ The Court in Bouragba also states the importance of reasons to show the parties that the applicable issues have been carefully considered, and that they are invaluable in appeals.

40The Board agrees with the respondent that the Board grappled with the substance of the live issues in these appeals.²² The decision provided a detailed overview of the facts, the issues, the parties’ positions, and the respective onuses, and made specific findings regarding each animal.

41The Board agrees with the respondent that the appellant’s submission that the appellant’s “evidence and law form no part of the decision” is incorrect. Throughout the decision, references were made to the appellant’s evidence, positions, and arguments. Indeed, in the decision, the Board stated, “in conclusion, while the Appellant raised several arguments, they provided no compelling evidence. There was nothing to persuade the Board to do anything other than confirm the amounts, which were supported by the respondent.”

42The Board considered the respondent’s evidence to support the Decisions to Keep in Care²³ including a detailed assessment of specifics regarding distress of each animal, and evidence that the appellant had not complied with certain requirements in Ontario Regulation 444/19, “Standard of Care and Administrative Requirements”, and the concluding statement from Mallory that the appellant had “no clear or obvious plan for adequate space for the juvenile Eland, suitable indoor enclosure for the Lemurs, and no indication of an enclosure for the Macaws.” The Board did not reference the appellant’s evidence in its reasons because the appellant’s evidence was not contrary to the respondent’s, indicating that “the conditions that caused the animals to be kept in the Chief Animal Welfare Inspector’s care had ceased to exist” (s. 38(4) of the Provincial Animal Welfare Services Act, 2019²⁴ (PAWS Act).

43In the Board’s decision, onus was considered,²⁵ and ultimately the Board was satisfied that the respondent showed, on the balance of probabilities, that the basis for issuing the Decisions to Keep in Care were met. The Board was also satisfied that the respondent showed that the charges on the SOAs were reasonable and reflected the actual cost of necessaries provided to the animals removed. The appellant on the other hand, was required to establish on a balance of probabilities that the animals should be returned to them and the SOAs should be revoked or varied, which he did not.

44The Board considered the respondent’s evidence supporting the SOAs, and the issues raised by the appellant in his closing arguments. We note that while the appellant raised issues regarding reasonableness, he did not elaborate on the issues and provided no documentary support for his position. Further, the appellant chose not to cross-examine a single witness on the issues to be determined. The appellant presented no evidence to support his position that the SOA was unreasonable. While the appellant cited one of the ACRB decisions (Ray²⁶), noting certain key issues on which the Board decided in the appellant’s favour, he failed to acknowledge that those issues were decided based on clear evidence; he presented no evidence to support an alternate finding in this case.

45The Board was satisfied that the respondent met the initial evidentiary burden, showing that the charges on the SOA were reasonable and reflected the actual cost of necessaries provided to alleviate the distress of the animals removed. The appellant provided several objections, but as the moving party, it was necessary that he established on a balance of probabilities that the SOAs should be revoked or varied. He failed in this regard.

The Board did not make “erroneous findings of fact” (Error #1 in appellant’s request for reconsideration)

46The appellant submitted that the Board misapprehended key evidence and made the following factual findings that were not supported by the evidence.²⁷ Specifically, the appellant alleged that:

1. In paragraph [31] of the decision, the Board incorrectly found that the appellant “was aware of concerns of the AWS through previous Orders issued in October and November 2021, and April 2022, and yet did nothing to address these before the animals were removed following the compliance deadlines;” and

2. Questions were asked of Regional Supervisor Mallory regarding the care of the removed animals and their current condition. The decision, however, states the question arose during cross-examination, when in fact it was raised by the presiding Chair.²⁸

47The appellant submitted that there was evidence before the Board that the appellant had complied with all previous Orders, and that no Orders were outstanding in relation to any of the animals that were removed. He reminded the Board that this was one of the central concerns that was raised at the initial hearing regarding the removal of the animals²⁹.

48The Board reviewed the referenced decision in the appellant’s request for reconsideration and found that it was Geddes v. Chief Animal Welfare Inspector, 2022 (ONACRB 23), a decision published in August 2022. Factual findings in other Board decisions, even involving the same parties as in this appeal, do not constitute evidence in this hearing absent agreement of the parties to treat them as evidence in the hearing.

49The respondent submitted³⁰ that:

1. While the Board referred to “orders,” it was referring to Compliance Orders issued under s. 30 of the PAWS Act and a Notice of Non-Compliance (Notice) issued on November 22, 2021 in relation to various animals at the property;

2. The Appellant had complied with some, but not all of the issues identified in the Notice on or before the removal of the animals on April 29, 2022, and that these past orders and the Notice, together with the detailed report from Dr. Crawshaw’s October 1, 2021 inspection provided to the appellant in the fall of 2021 were clear direction from AWS that all animals on the property needed to be provided with food, water, and a sanitary living environment to ensure that they were not in distress;

3. The absence of outstanding orders is irrelevant to the appeals and issues that were before the Board as that matter had already been adjudicated and upheld in a previous hearing³¹;

4. The Board’s decision as a whole is supported by the substantial and uncontested evidence presented by the respondent, supporting the Decisions to Keep and the SOAs.

50The Board acknowledges the appellant’s claim that there were no outstanding Orders in relation to any of the animals that were removed. However, this did not amount to an error of fact that would affect the outcome of the decision.

51The Board considered the appellant’s claim that the Board made an error by stating that the question about the animal’s condition was asked during cross-examination, when it was raised by the presiding Chair. For a reconsideration to be granted, an error of law or fact has to have been made such that a different result would likely have been reached if the error had not been made. Whoever asked this question is not material to the decision, and the application is therefore rejected.

52The Board finds that it made no error of fact such that it would have reached a different result. The hearing related only to appeals of the Decisions to Keep in Care, a revocation of determination (return of the animals), and Statements of Account. The errors of fact identified were not considerations in the analysis or decision on these matters. As such, the Board dismisses the request for reconsideration on the ground of error of fact.

CONCLUSION

53In conclusion, the Board has reviewed each of the appellant’s claims of errors made and has determined that there was no error in law made, and no error of fact made such that it would have reached a different result. Further, there was no breach of procedural fairness.

54The Board finds that none of the criteria for a reconsideration are met.

55For these reasons, the appellant’s request for reconsideration is dismissed.

Released: May 15, 2023

____________________

Susan Clarke, Vice-Chair

_____________________

Peter Simmons, Member

Footnotes

1. 1John Geddes v. Chief Animal Welfare Inspector, 2022 ONACRB 31 (the “decision”).
2. 2Appellant’s Request for Reconsideration, January 23, 2023, para 5
3. 3Supra Note 2, para 6
4. 4Supra Note 2, para 8
5. 5Supra Note 2, para 9
6. 6Supra note 2, para 6.
7. 7Respondent’s Responding Submissions, February 3, 2023, para 6.
8. 8Supra note 2, paras 7 – 8.
9. 9R.S.O. 1990, Ch. S22
10. 10Manikam v. Toronto Community Housing Corp. 2019 ONSC 2083, [2019] O.J. No. 1620
11. 11Supra note 7, para 24
12. 12R. v. Verney (Ont. C.A.), 1993 CanLII 14688 (ON CA), [1993] O.J. No. 2632, para 28 (Verney)
13. 13Iannarella v. Corbett, 2015 ONCA 110, [2015] O.J. No 726, paras 95-97 (Iannarella)
14. 142462192 Ontario Ltd. V Paramount Franchise Group Inc., [2019] O.J. No 294, paras 48-50 (Paramount)
15. 15Ontario Society for the Prevention of Cruelty to Animals v. Straub, 2009 CanLii 25138 (ON SC) (Straub), paras 32 and 40-43.
16. 16Supra note 7, para 25
17. 17Supra note 7 para 27. The Manikam decision is regarding “double” hearsay, however the respondent wrote “quadruple”
18. 18Supra note 7, para 28.
19. 19Ontario College of Teachers v. Bouragba, 2019 ONCA 1028 (Bouragba) at para 36.
20. 20Appellant’s Reply Submissions, February 10, 2023, para 6
21. 21Baker v. Canada, (1992) 2 S.C.R. 817, at para 39. (Baker)
22. 22Supra note 7, para 34.
23. 23Supra note 1, paras 20 - 34
24. 24S.O. 2019, Ch. 13
25. 25Supra note 1, paras 17 - 19
26. 26Ray v. Chief Animal Welfare Inspector, 2022 ONACRB 22 (Ray)
27. 27Supra Note 2, para 5
28. 28Supra note 1, para 4
29. 29Supra note 2, paras 2 and 3
30. 30Supra Note 7, paras. 9 - 15
31. 31Geddes v. Chief Animal Welfare Inspector, 2022 ONACRB 23