Tribunals ontario
Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission d’étude des soins aux animaux
RECONSIDERATION DECISION
Before:
Avril A. Farlam, Vice-Chair
12/01/2023
14853 ACRB
Case Name:
David Romkes v. Chief Animal Welfare Inspector
Written Submissions by:
For the Appellant:
David Romkes, Self-represented
For the Respondent:
Danielle Meuleman, Counsel
OVERVIEW
1A request for reconsideration and also an amended request for reconsideration were filed by the Appellant in this matter.
2It arises out of the Tribunal’s August 10, 2023 decision (the “Decision”) in which the Respondent’s statement of account dated April 18, 2023 in the amount of $38,374.44 (the “SOA”) was confirmed in the amount of $37,424.44.
3The issue that was before the Tribunal was whether the SOA should be confirmed, revoked or varied.
4The Tribunal found that the SOA should be confirmed in the amount of $37,424.44.
5The Appellant started his submissions with a request for an extension of time to submit the June 30, 2023 transcript and, if denied, states that he is providing a typed copy of his closing statement for reference. I see no basis for an extension of time of the reconsideration from the 21 days provided in Rule 18 of the Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, 2017, rev. 2019 (the “Rules”). A transcript is not necessary and granting this request would unduly delay this reconsideration.
6The Appellant submits that the Tribunal:
i. Acted outside its jurisdiction or violated the rules of procedural fairness, and
ii. Made errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
7The Appellant is seeking an order:
a. Cancelling and/or revoking Tribunal’s Decision, or
b. Varying the Tribunal’s Decision
8The Respondent submits that all of the issues raised on reconsideration were fully considered by the Tribunal and no errors of law or fact are apparent. None of the issues raised by the Appellant would lead the Tribunal to reach a different outcome.
9I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
10The Decision is varied to order that the Appellant pay the SOA in the amount of $37,424.44 less the cost of care of the animals for the day of January 13, 2023 being $307.00, for a total payment of $37,117.44. The balance of the Appellant's request for reconsideration is dismissed.
BACKGROUND
11The sole issue at the hearing was the quantum of costs in the SOA. The Appellant did not appeal the removal of the animals or the keep in care decisions.
12The Respondent provided evidence from Inspector Christopher Chew, veterinarian Dr. Ian Welch and Brenda Thomson, Director of Whispering Hearts Horse Rescue where the animals were boarded. The Appellant and his friend Ms. Zilovec testified at the hearing.
ANALYSIS
13The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Rules. A request for reconsideration will not be granted unless one or more of the criteria set out in Rule 18.2 are met.
14Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
15The grounds that the Appellant argues apply to this case are as follows: Under Rule 18.2 (a), that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, and under Rule 18.2 (b), that 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.
16More specifically, the Appellant submits that the Tribunal made numerous violations of jurisdiction, procedural fairness and errors of fact and law as set out below.
Tribunal Did Not Act Outside Jurisdiction or Violate Rules of Procedural Fairness/ There is no Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
17I find the Appellant has not established that the Tribunal acted outside jurisdiction or violated rules of procedural fairness.
18Although the Appellant submits that I made an error in finding that January 13, 2023 is the first day of forfeiture of the animals, this finding is not in error. It is consistent with the evidence, s. 35(4) of the PAWS Act and the respondent’s submissions on reconsideration. The Appellant had appealed a statement of account delivered before the one in issue in this appeal. The Tribunal’s decision in that appeal was released on December 28, 2022. Ten business days following December 28, 2022 is January 12, 2023 and therefore the date of forfeiture is the following day as set out in paragraph 42 of the Decision. There is no error.
19I also find that the Appellant has not established any error of law or fact was made in the Decision such that the Tribunal would likely have reached a different result had the error not been made with one exception.
20I found in the Decision that the animals were forfeited on January 13, 2023. To clarify, January 13, 2023 is the first day that the appellant no longer owned the animals. As a result, the appellant is not required to pay for the cost of care of the animals once forfeited and his liability for the cost of care ended January 12, 2023 despite his reconsideration submission that his liability for the cost of care ended earlier. Therefore, I vary the Decision to deduct the cost of care for January 13, 2023 as set out on the SOA which totals $307.00 for the rabbits, chickens, rooster, turkeys, two horses and one stallion for one day. The Decision is varied to order that the Appellant pay the SOA in the amount of $37,424.44 less the cost of care of the animals for the day of January 13, 2023 being $307.00, for a total SOA payment of $37,117.44.
21The Appellant alleges bias summarized as persistently favouring the Respondent, making rulings against the Appellant, by expressing a “strong dislike for the Appellant”, by “not considering any of the Appellant’s authorities”, and by ultimately confirming the SOA and the Appellant’s obligation to pay it.
22The Appellant did not raise the issue of bias prior to, at the beginning of the hearing, or during the hearing, only after the Decision was released. Deciding the ultimate issue in this appeal in favour of the Respondent and not the Appellant is not evidence of bias and was made for the fulsome reasons set out in the Decision. Rulings made during the appeal, some of which were in favour of the Appellant and against the Respondent, were made fairly and the Appellant has not demonstrated otherwise.
23The Appellant submits that his amended Notice of Appeal sent to the Tribunal on May 1, 2023 and its 24 grounds of appeal was not considered, only his Notice of Appeal and its 22 grounds of appeal.
24The Appellant’s amended Notice of Appeal was sent to the Tribunal after the time for appeal had expired. It was sent after the Appellant had attended the Tribunal’s April 27, 2023 case conference at which the issues in dispute were defined as firstly, whether the SOA should be confirmed, revoked or varied, and secondly, whether the appellant is entitled to costs in the amount of $5,000.00 because the Respondent acted unreasonably, frivolously, vexatiously or in bad faith. The Tribunal’s May 1, 2023 Case Conference Report and Order (“CCRO”) lists the Appellant’s 22 grounds of appeal.
25There is no record in the CCRO that the Appellant indicated he would be bringing a motion to file an amended Notice of Appeal and he did not do so, although the Appellant brought other motions both during and subsequent to the case conference. Following the case conference, the Appellant simply sent an amended Notice of Appeal to the Tribunal.
26At the hearing, the Appellant’s Notice of Appeal was marked as an exhibit. The Appellant did not ask that his amended Notice of Appeal be marked as an exhibit and did not seek leave to file it at any time during the hearing.
27As a result, the amended Notice of Appeal was not before the Tribunal at the hearing. However, because both parties have made reconsideration submissions on the two “new grounds” in the amended Notice of Appeal, I have considered it now and find that although it was not before me at the hearing, the issues it raises were the subject of both testimony and submissions at the hearing.
28The amended Notice of Appeal describes two “new grounds”. Having reviewed them, I find that they are not new grounds but are duplicative of other grounds raised by the Appellant which were canvassed at the hearing and dealt with in the Decision. The two “new grounds” are as follows:
New ground 10: “The Notices of Decision of the Chief Animal Welfare Inspector to Keep an Animal in the Chief Animal Inspector’s Care were not appealed and therein resulted in the forfeiture of the animals 5 business days after that order when the period set for filing an appeal expired (September 16, 2022 for the rabbits and September 21, 2022 for the 3 horses, 19 chickens, 1 rooster and 2 turkeys).”
New ground 19: “The costs of necessaries have not been proven and/or reasonable.”
29“New ground 10” is a statement of fact and the Appellant’s understanding of the law, not a ground of appeal. Further, it duplicates grounds 8 and 9 in the Appellant’s Notice of Appeal. The Appellant submits in ground 8 that because of the Decisions to Keep, he should not be responsible for costs after September 9 and 14, 2022. The Appellant submits in ground 9 that he should not be billed for any costs after the Decisions to Keep. The Appellant’s submissions on grounds 8 and 9 were dealt with in paragraphs 43, 44, 45 of the Decision.
30“New ground 19” is a statement of the ultimate issue before the Tribunal at the hearing. Further, it duplicates ground 15 in the Appellant’s Notice of Appeal. The Appellant’s submissions on ground 15 were dealt with in paragraphs 29, 30, 31, 32, 33, 34, 36, 37, 38, 41, 45, 46, 47, 48, 49, 50 of the Decision.
31The Appellant submits that the Tribunal did not consider his authorities. It is well established that the Tribunal need not refer to every piece of evidence or legal authority cited during the hearing. Not referring to authorities does not establish that they were not considered in reaching the Decision and is not an error or violation of jurisdiction or procedural fairness.
32Although the Appellant submits that it was an error to allow the Respondent’s expert witness Dr. Welch to testify in accordance with his report, this was not an error, but rather an order made following the Appellant’s oral motion at the hearing to exclude this evidence. The order was made for the reasons set out in paragraphs 12 to 16 of the Decision and there is no error in it.
33Although the Appellant submits that the Tribunal exceeded its jurisdiction in confirming the SOA, this is incorrect. The Appellant is re-stating in a somewhat new way the submissions he made at the hearing concerning statutory interpretation. These submissions were dealt with in the Decision at paragraphs 59 to 67 and is consistent with other decisions made by the Tribunal.
34Although the Appellant submits that the Tribunal exceeded jurisdiction because the Tribunal did not refer the Superior Court decision in Ontario Society For the Prevention of Cruelty to Animals v. Straub, again, not referring to this decision does not establish that it was not considered. In any event, the Decision found that the SOA was fair and reasonable as set out in paragraph 26 for the reasons that follow in paragraphs 27 through 50 of the Decision. The Decision is consistent with more recent decisions of the Divisional Court concerning the current legislation.
35Although the Appellant submits that the Tribunal should have determined “when the animals were relieved of distress”, this is not required by the legislation as set out in paragraph 43 of the Decision.
36Although the Appellant submits that proof of payment of the costs is required, the Tribunal found that the costs were incurred as established by the evidence put forward by the Respondent as set out in paragraph 46 of the Decision.
37Although the Appellant submits that not awarding costs to the Appellant under Rule 19.5 was an error, it was a reasonable and appropriate exercise of discretion under Rule 19.5 made after considering the Appellant’s evidence and submissions and for the reasons set out in paragraphs 68 and 69 of the Decision.
38The Appellant submits that the Decision refers to the wrong rabbit(s) being euthanized, and this appears to be correct. However, this is not an error that is material nor an error of fact such that the Tribunal would likely have reached a different result had the error not been made, within the meaning of Rule 18.2(b). The identity of the rabbit euthanized does not alter the fact that this cost was reasonably incurred given the testimony of Dr. Welch, the veterinary records regarding its health and the evidence regarding the cost.
39Although the Appellant submits that the Decision “contradicts the evidence of the Appellant’s hardship and inability to pay and as a result, came to a conclusion that is outside the realm of possible outcomes, this is incorrect. As set out in paragraphs 28, and 51 to 56 of the Decision, the evidence of the Appellant and his witness Carol-Anne Zilavec was considered but found not to be persuasive. This is consistent with the mandate of the Tribunal and the exercise of the Tribunal’s discretion. There is no error.
40Although the Appellant submits that the Tribunal erred in “calculation” of the costs including the “whole SOA”, this is incorrect. The quantum of the SOA was established in evidence by the Respondent’s SOA, breakdown of costs, invoices and testimony of the Respondent’s witnesses as set out in paragraphs 27, 33, 34, 35, 36, 37, 38, 46, 48 and 49 of the Decision. The SOA claim was reduced by the Respondent and accepted by the Tribunal as set out in paragraph 18 of the Decision.
41Dissatisfaction with the result contained in the Decision does not establish that a Decision violated the rules of procedural fairness, or that an error of law or fact was made such that the Tribunal would likely have reached a different result had the error not been made, or establish that the appellant has evidence not before me when rendering my decision, could not have been previously by the appellant that would likely have affected the result.
42I find that the appellant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Because the appellant has requested reconsideration, the onus is on him to establish his grounds and he has failed to do so. The appellant’s reconsideration submissions appear to be an attempt to reargue his case in a new way. Dissatisfaction with the Decision is not a ground of reconsideration. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION
43For the reasons noted above, I vary the Decision to order that the Appellant pay the SOA in the amount of $37,424.44 less the cost of care of the animals for the day of January 13, 2023 being $307.00, for a total payment of $37,117.44. The balance of the Appellant's request for reconsideration is dismissed.
Released: December 1, 2023
___________________
Avril A. Farlam
Vice Chair
Animal Care Review Board
Tribunals Ontario