Julie Nicholls v. Chief Animal Welfare Inspector, 2023 ONACRB 44

RECONSIDERATION DECISION - AMENDED

Before: Susan Clarke, Vice-Chair Edgar-André Montigny, Member

Date of Order: May 30, 2023 Tribunal File Numbers: 14411/ACRB and 14456/ACRB

Case Name: Julie Nicholls v. Chief Animal Welfare Inspector

Written Submissions by:

For the Appellant: Jennifer Friedman, Counsel

For the Respondent: Joanna Chan, Counsel

OVERVIEW

1The appellant, Julie Nicholls, filed a request for reconsideration on February 6, 2023 of the following two decisions of the Animal Care Review Board (Board):

1. Nicholls v. Chief Animal Welfare Inspector, 2023 ONACRB 31 – The “Keep in Care” Decision; and

2. Nicholls v. Chief Animal Welfare Inspector, 2023 ONACRB 32 – The “Statement of Account” Decision.

2In the two decisions, the hearings for which proceeded back-to-back, the Board upheld the decision of the Chief Animal Welfare Inspector, the respondent, to keep the appellant’s animals in care and confirmed the Statement of Account (SOA) in its entirety.

3The appellant now seeks reconsideration of the Board’s decisions in accordance with Rule 18 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). Specifically, the appellant asserts that the Board:

1. Acted outside its jurisdiction and violated procedural fairness.

2. Made errors of fact and/or law.

3. Heard false evidence that was only discovered after the hearing; and/or

4. Did not have new evidence before it that indicates that the appellant did not understand the proceedings, could not properly prepare for the hearing, and that she was too ill to participate in the hearing.

4The respondent’s position is that the request for reconsideration has no merit and the appellant failed to establish or satisfy any of the grounds for reconsideration.

RESULT

5The appellant’s request for reconsideration is dismissed.

ANALYSIS

6The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Rules which are:

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; and/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.

7The onus to establish that the grounds for reconsideration have been met rests with the appellant as she is the party requesting the reconsideration in this matter. An application for reconsideration is not an opportunity to reargue an appeal. The grounds for reconsideration are limited and specific.¹

8For the reasons that follow, I find that the appellant failed to establish any of the grounds for the Board to reconsider the decisions on a balance of probabilities.

Purported Violation of Rules of Procedural Fairness

9The appellant submitted that the rules of procedural fairness were violated in the hearings because:

1. Only some days of the hearing days were recorded.²

2. The respondent’s witnesses were not excluded during the hearings.

3. The appellant was precluded from having her employee assist her during the hearing.

4. The Board failed to accommodate the appellant’s disabilities.

5. The Board denied the appellant the opportunity to cross-examine on the issue of potential conflict.

10For the reasons that follow, we find that the that there was no violation of procedural fairness such that a reconsideration is warranted on this ground.

Recording of proceedings

11The appellant submitted that fundamental right to procedural fairness was compromised because only some days of the hearings were recorded.³

12The appellant does not explain how this amounted to a breech of procedural fairness.

13The Tribunal has no obligation to record hearings. Rule 13.2 of the Rules clearly states that “the tribunal will not audio or video record a hearing.” If a party wishes to make their own recording of the hearing, they must submit a request in writing to the Tribunal pursuant to Rule 13.3. The appellant made no such request. For these reasons, the Board finds that it did not breach procedural fairness regarding recording of the hearing.

Assistance from the appellant’s employee during the hearing

14The appellant asserts that the Board violated procedural fairness because she was specifically precluded from having her employee with her to assist with assembling and presenting documentation.⁴ This is not an accurate statement. The issue arose because it was apparent there was someone in the background speaking to the appellant while she was testifying. When asked who was speaking, the appellant reported that Kim Wintemute, her employee, was in the room assisting her. Ms. Wintemute was also a witness for the appellant.

15As Ms. Wintemute was not an instructing client or a legal representative, the respondent asked for an order excluding Ms. Wintemute during the appellant’s testimony. The request was granted. It was clearly improper to allow the appellant’s witness to assist the appellant with assembling and presenting documentation.

16The appellant protested that she needed help to organize her materials. The appellant’s statements did not suggest anything other than the normal and common concerns of self-represented parties. The appellant was offered breaks if she felt she needed time to organize her materials.

17For these reasons, the Board finds that it did not breach procedural fairness by excluding the appellant’s witness from the proceedings.

The respondent’s witnesses

18The appellant also asserts that the Board violated procedural fairness because the respondent’s witnesses were not excluded during the hearing.⁵

19The appellant did not request an exclusion of witnesses during the hearing. The issue was raised only on reconsideration.

20There may be reason to assume that a self-represented party may not be aware of the need for such a request. Such procedural issues are generally the realm of counsel. The appellant chose to present her case without the benefit of a representative. Fairness does not require that the appellant present her case as effectively as counsel might.

21The respondent argues that their witnesses, who were representatives of Animal Welfare Services (AWS), could not have been excluded because their presence was essential to instructing counsel.⁶ For this reason, it would be a violation of procedural fairness to exclude the witnesses.

22The fact that the respondent witnesses had provided their evidence in affidavit form prior to the hearing greatly reduced the risk that a witness would cater their testimony to agree with previous witnesses.

23The appellant was able to cross-examine these witnesses. She did not present any example of a respondent witness providing information that was inconsistent with the details provided in their affidavit,

24The appellant’s claims in this regard are entirely speculative.

25For these reasons, the Board finds that it did not breach procedural fairness by not excluding the respondent’s witnesses.

Accommodation

26The appellant states that the Board failed to accommodate her disability.⁷ She submitted that she was not equipped to understand the nature or consequences of the proceedings and that she was not able to properly prepare for the proceedings because:

(a) She had recently had knee surgery.

(b) She had Post-Traumatic Stress Disorder (PTSD).⁸

27In her Reply submissions, the appellant states that she advised the Board of her disability on November 1 and November 16, 2022.⁹

28The appeal was not filed until November 8, 2022. An e-mail was sent to the Board on November 16, 2022. It contained many files and links to files. Nothing clearly marked as an accommodation request.

29Beyond this statement, the appellant offered no detail as to the content of the communication or what specific accommodations the appellant was seeking; nor does the appellant report what response she received. The appellant does not report if she was given any instructions as to how to make a formal request for accommodation.

30As the appellant did not specify what particular accommodation she was seeking it is not clear that she sought more than could be provided by offering her breaks or extra time to prepare.

31There is a process to request accommodations. The mere mention of the issue in an e-mail or other communication is not sufficient. It is not sufficient that some form of request for accommodation is buried among other submissions.

32The Board’s website provides clear instructions on how to request accommodation. The instructions provide that an Accommodation Request Form must be completed and submitted to the Tribunal, ‘as soon as possible’ to allow the Tribunal to decide whether to grant the request. There is no record of the appellant submitting an Accommodation Request Form.

33If the appellant had any doubts about whether her request for accommodation had been received, she participated in a pre-hearing case conference on November 23, 2022, in which the parties were canvassed for any accommodations.¹⁰ The appellant neither requested an accommodation during the pre-hearing case conference, nor prior to or during the hearings.

34Further, the appellant did not request an adjournment of either hearing day because she was unwell. The hearings were held over several days. If after any day of hearing the appellant felt she was too unwell to proceed, she could have asked for the next day to be adjourned. No such request was made. The appellant attended and participated fully in all three days of hearing over the course of a week.¹¹

35The claim that the appellant was denied accommodation is not supported by the evidence.

36The appellant had ample opportunity to either complete an Accommodation Request Form or to request accommodation at the Case Conference. If she did not pursue any of the proper processes to make a request for accommodation, she cannot now claim that was denied accommodation.

37The Tribunal cannot impose accommodation on a person; a party must request it. It was the appellant’s obligation to inform the tribunal of her need for accommodation. She also had an obligation to do so according to the processes outlined by the Tribunal. It cannot be a denial of procedural fairness to not take a certain action if the Board was not actually asked to take such action.

38For the reasons above, the Board dismisses the request for reconsideration on the basis of Rule 18.2 (a), a violation of procedural fairness.

Denied Opportunity to Explore Potential Conflict

39The appellant listed the failure to deal with a potential conflict of interest as an error.¹² The matter is more properly defined as a denial of procedural fairness.

40The appellant asserted that the boarding facility selected for her horses was chosen because the AWS inspector had a prior relationship with facility, The appellant asserted that this choice resulted in her being charged more for boarding of her animals than was necessary.

41Beyond the bald assertion of a prior relationship, the appellant offered no evidence that the facility chosen, or the fees charged were in any way related to the alleged prior relationship.

42The appellant’s argument was that the Board erred, or denied her procedural fairness, when she was not provided the opportunity to cross-examine a witness, Inspector Lapping, on this purported conflict of interest.

43The appellant was allowed to pursue the issue on cross-examination. The witness stated that she had not boarded her own animals at the facility, and that her only relationship with it was professional.

44The Board asked the appellant to move on to another line of questioning when it became clear that her allegations of conflict were merely speculative, and her line of questioning was not aimed at an issue relevant to the Board’s decision. Pursuant to section 23(2) of the Statutory Powers and Procedures Act,¹³ the Board:

“may reasonably limit further examinations or cross examinations of a witness where it is satisfied that the examination or cross examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.”

45The respondent submitted that the appellant failed to provide sufficient evidence to allow the Board to engage in any comparison of costs or quality of services offered by other boarding facilities or to determine what impact the purported conflict of interest had on the SOA.

46Given the speculative nature of the appellant’s claims of conflict and the lack of evidence to support the claim, the Board is satisfied that Inspector Lapping’s prior relationship with the Boarding facility was not an issue that played or that should have played any role in the Board’s decision.

47For this reason, the Board dismisses the request for reconsideration based on the alleged ground of procedural fairness by not permitting the line of questioning regarding conflict of interest.

New Evidence Related to Disability

48The appellant also argued under sec 18.2 (d) that information about her disability was evidence that was not before the Tribunal, could not have been previously obtained by the appellant and would likely have affected the result.

49The appellant submitted that she:

1. Was not able to understand the nature and consequences of the proceedings.

2. Was unable to properly prepare for the proceedings as she had recently undergone knee surgery and was in significant pain leading up to the hearing.

3. Suffered from Post-Traumatic Stress Disorder which was exacerbated by the removal of her animals; and

4. Located relevant materials only after the proceedings were completed when she consulted with legal counsel.¹⁴

50As noted earlier (see paragraphs 26-34) evidence of the appellant’s disability was not before the Board because the appellant did not provide it.

51There was no evidence that the relevant materials located only after the proceedings were completed could not possibly have been obtained previously.

52The Board, therefore, dismisses the request for reconsideration on the basis outlined in Rule 18.2 (d); namely that evidence of the appellant’s disability was new evidence, that was not before the Tribunal, that could not have been obtained previously by the party seeking to introduce it and would likely have affected the result.

Alleged Errors of Facts and Law

53The appellant relied upon Rule 18.2(b) for its position that the Board made several errors of fact and/or law such that a reconsideration is warranted on this basis.

54To reconsider a decision under Rule 18.2(b), however, the Board must not only have made an error of law or fact, but that error must also be significant enough that the Board likely would have come to a different decision had the error not been made. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

55For the reasons that follow, we find that the Board did not make an error of law and/or fact and, therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.

Alleged Error: Certificate of Veterinarian

56The appellant argues that a veterinarian who advises AWS that it is necessary to remove an animal to alleviate its distress must observe that animal in order to issue the Certificate of Veterinarian.¹⁵

57As noted by the respondent, there is no such requirement. In the PAWS Act.¹⁶ AWS consulted with veterinarian Dr. Robertson via video conference with inspectors present at the appellant’s property. The appellant also had an opportunity to cross-examined Dr. Robertson on the details of this call.¹⁷

58The Board dismisses the request for reconsideration on the basis that the Board erred in failing to require that Dr. Robertson observe the subject animals. This issue was not raised at the hearing and a reconsideration is not intended to offer parties a chance to re-argue issues.

Alleged Error: The Board ignored evidence

59The appellant claims that Board ignored evidence that she presented, demonstrating that other closer and less expensive boarding facilities and transportation services were available for her animals.¹⁸

60The appellant had the burden to prove that the charges on the SOA were unnecessary or unreasonable. The appellant noted that other facilities, closer to her property, existed. She did not, however, offer evidence to demonstrate that any of these facilities were available to take her animals at the time of the hearing, or able to offer the services they required at a lower cost at the time of their removal. There is no merit to this claim.¹⁹

61The mere fact that another facility may have been able to board her animals, does not, in and of itself, prove that the charges on the SOA were unreasonable.

62The Board, in its decision, commented that some fees did seem high. High fees are not necessarily unreasonable. “Unreasonable” must be assessed on the basis of what was reasonable given the totality of the situation. The Board found that, even if some fees were rather high, the overall SOA was not unreasonable.

63This issue was raised at the hearing. The Board provided clear reasons in support of its decision.²⁰ The appellant does not identify an error in the Board’s decision but challenges the weight the Board gave to certain evidence. The Board is not required to mention every single item of evidence considered. Essentially the appellant is attempting to re-argue her case. The Board, therefore, dismisses the request for reconsideration as the Board did not disregard evidence about alternate boarding facilities, and therefore did not err.

The Tribunal Heard False Evidence

64The appellant relied on Rule 18.2(c), arguing that some of the evidence from the respondent’s witnesses was misleading and likely affected the result.²¹ In particular, the appellant claims that contrary to their testimony, the respondent’s witnesses:

1. Did not make reasonable inquires to locate a more proximate stable for the appellant’s animals.

2. Did not make reasonable inquires to secure more economical boarding.

65The respondent disagreed and asserted that no respondent witness gave false or misleading evidence. The appellant had ample opportunity to test all evidence during cross-examination.²²

66This claim assumes that CAWI has an obligation to locate the lowest priced services. No such legal obligation exists. The CAWI must locate appropriate services and boarding facilities. The respondent also noted that finding a facility able to accept animals on a particular day is the priority.

67The appellant argues CAWI failed to acknowledge that at least 2 boarding facilities were equipped and available to take her animals. This evidence was not before the Board during the hearings. The respondent was not able to respond to this allegation.²³

68The appellant argues that CAWI witnesses withheld pertinent photographs of the interior of the appellant’s barn.

69As outlined in the Board’s decision, the barn in question was subject to an Order Prohibiting Use and the Board had no jurisdiction to alter this. Therefore, the conditions inside the barn were not relevant. The barn could not be used to house the appellant’s horses regardless of the condition of or the number of stalls inside.

70The Board agrees with the respondent that the appellant’s claims concerning misleading or false evidence are unsubstantiated.

71The appellant has failed to prove on a balance of probabilities that the Board heard false or misleading evidence from a witness, discovered only after the hearing, that would likely have affected the result of the decisions. As such, the Board dismisses the request for reconsideration on the basis of criteria (d) of Rule 18.2.

Evidence not before the Tribunal

72The appellant also argued under Rule 18.2(d) that there was evidence not before the Tribunal 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.

73In addition to the arguments related to information about her disability, dealt with earlier, the appellant also argued that when she consulted with legal counsel after the hearing, she gathered additional materials that either were not in her possession at the time of the hearings and/or which she was ill-equipped to introduce at the time of the hearing.²⁴

74The test for the consideration of new evidence was set out by the Supreme Court of Canada in R. v. Palmer.²⁵ To be considered new evidence, the material:

a) Could not be, by exercise of due diligence, have been obtained for the trial.

b) Is relevant in that it bears upon a decisive or potentially decisive issue.

c) Must be credible in the sense that it is reasonable capable of belief; and

d) Is such that, if believed, it could have affected the outcome of the trial.

75The respondent submits that all the evidence the appellant states was not before the Board could have been obtained before the hearing.²⁶ This includes the evidence of the appellant’s disability dealt with earlier.

76As noted by the respondent,²⁷ having chosen to present her case herself without the assistance of a representative, the appellant cannot now, claim that she was unable to understand the nature or the consequences of the proceeding or that she was ill-equipped to introduce evidence at the hearing. As outlined in Davids v. Davids:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability.²⁸

77The Tribunal agrees that the appellant had ample and fair opportunity to prepare and present her case. The fact that additional information could have been presented is not a justification for reconsideration.

78The Board dismisses the request for reconsideration on the basis that there was new evidence that would likely have affected the result for the reasons above.

CONCLUSION AND ORDER

79For the reasons noted above, the appellant’s request for reconsideration is dismissed.

Released: July 5, 2023

Susan Clarke, Vice-Chair

Edgar-André Montigny, Member

Footnotes

1. 1Shelley Langstaff v. Chief Animal Welfare Inspector, 2020 ONACRB 8, at para. 31.
2. 2Reconsideration Requests (Feb. 6), para. 8 (a).
3. 3Reconsideration Request (Feb. 23) para. 7.
4. 4Reconsideration Request (Feb. 23) para. 7 clause (ii),
5. 5Reconsideration Request (Feb. 23) para 7 clause (ii)
6. 6Responding Submissions of the Chief Animal Welfare Inspector on Reconsideration, dated March 9, 2023, paras. 14-15 (Responding Submissions)
7. 7Reconsideration Request (Feb. 23) para. 12.
8. 8Post-Traumatic Stress Disorder
9. 9Reply Submissions of the Appellant, dated March 24, 2023, at para. 4.
10. 10See ACRB Case Conference Report and Order, November 23, 2022.
11. 11December 16, 19 and 22, 2023
12. 12Reconsideration Request (Feb. 23) para. 9.
13. 13Statutory Powers and Procedures Act, RSO 1990 c. S. 22.
14. 14Reconsideration Request, para. 12
15. 15Reconsideration Request (Feb 23) para 9 clause (ii)
16. 16Responding Submissions, paras. 21-22.
17. 17Responding Submissions, para. 22.
18. 18Reconsideration Request (Feb. 23) para 10 clause (i)
19. 19Responding Submissions, para. 25.
20. 20See paras. 31-38
21. 21Reconsideration Request (Feb. 23) para. 11.
22. 22Responding Submissions, para. 26
23. 23Reconsideration Request (Feb 23) para. 11.
24. 24Reconsideration Request (Feb. 23) para. 12.
25. 251979 CanLII 8 (SCC), 1979 CanLII8 (SCC); affirmed recently by the SCC in Barendrege v. Gebliunas, 2022 SCC 22.
26. 26Responding Submissions, paras. 28-30.
27. 27Responding Submissions, para. 31.
28. 28Davids v. Davids 1999 CanLII 9289 (ON CA), [1999] OJ No. 3930, at para. 36.