Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Chelsey Flanders and Parker (Lexa) Mogck
Appellant
and
Chief Animal Welfare Inspector
Respondent
MOTION ORDER
Decision Made by: Susan Clarke, Managing Vice Chair Mark Sraga, Member
Oral Submissions:
For the Appellant: Chelsey Flanders and Parker (Lexa) Mogck, Self-represented
For the Respondent: Chief Animal Welfare Inspector
Danielle Meuleman, counsel
Motion consideration date: October 15, 2024
BACKGROUND
1Chelsey Flanders and Parker (Lexa) Mogck, the Appellants, are the owners of 5 dogs,12 cats, and a horse (collectively the “Animals”).
2On June 5 and 6, 2024, Animal Welfare Services (AWS) found that the Appellants’ cats, dogs, and horse were in distress and removed them, and issued Notices of Removal on June 5 and June 6, 2024. The Appellants appealed the decisions to remove the Animals to the Animal Care Review Board (Board) on June 5 and June 7, 2024.
3On June 21, 2024, AWS issued a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care (DTK) for one cat and all the dogs. Also on June 21, 2024, a second DTK was issued by the Chief Animal Welfare Inspector (CAWI) for the horse. Both DTKs were appealed to the Board on June 23, 2024.
4On June 24, 2024, the Appellants submitted an Application to the Board to return the Animals under s. 38(4) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act).
5The DTK appeals and Applications were heard together by the Board, and a decision was issued on September 19, 2024 (Flanders/Mogck v. Chief Animal Welfare Inspector, 2024 ONACRB 98). The Board dismissed the appeals and declined to grant the Applications to return the Animals to the Appellants.
6On August 14, 2024, AWS issued a Statement of Account (SOA) pursuant to s.35 of the PAWS Act for costs incurred to care for the Animals and relieve their distress.
7The Appellants appealed the SOA to the Board on August 28, 2024. The appeal of the SOA was heard by the Board on October 15 and 16, 2024.
NOTICE OF MOTION
8On October 8, 2024, the Respondent filed a Motion with the Board seeking to prohibit the Appellants from calling its counsel, Danielle Meuleman, as a witness in the proceeding. The motion was a response to the Appellant’s List of Witnesses filed on October 7, 2024 with the Board, which named Ms. Meuleman as a witness.
9The Respondent’s grounds for the motion are that the Appellants filed no will say in their disclosure or Book of Documents, and it was unclear what evidence the Appellants expected from Ms. Meuleman’s testimony. A further ground for the motion was that Ms. Meuleman is counsel for the Respondent, the opposing party, and it would be a conflict of interest for her to both represent a party and give evidence as a witness at the proceeding. The Respondent filed a Book of Authorities to support its position.
10The Appellants responded to the Notice of Motion by email on October 8, 2024, stating that they did not consent to the motion. They stated that Ms. Meuleman’s testimony is highly relevant to their case, although they did not explain why, stating only that they believe Ms. Meuleman has misled the Board in previous hearings and that she has stalked them on social media.
11The Board held a Motion Hearing on October 15, 2024.
RESULT
12The Respondent’s motion is granted. Danielle Meuleman is excluded from testifying as the Appellant’s witness in the Board’s File Number 16212/ACRB.
ANALYSIS AND REASONS
The Board has no authority to hear complaints
13The Appellants gave their reasons for naming Danielle Meuleman as a witness because they believe she is stalking them, and that they want to give her an opportunity to justify her actions. They also stated that she had misled the Board in past hearings and may do so in this and future hearings.
14The Board’s powers are described in s. 38(9) of the PAWS Act, and do not include the authority to hear complaints against the Respondent’s counsel. The authority for hearing complaints against counsel lies with the Law Society of Ontario (LSO).
15The Board finds that it has no jurisdiction to hear complaints against lawyers, and for this reason, there is no purpose in the Appellants calling Ms. Meuleman as their witness.
The Respondent was not requested to attend the hearing as a witness
16Ms. Meuleman submitted that the Appellants did not request that she attend the hearing as a witness at the case conference and that they never made mention in their disclosure, reply disclosure, or Book of Documents about their reasons for including her as a witness. Ms. Meuleman submitted that witness statements are required to be filed with the Board before a hearing.
17The Board agrees with Ms. Meuleman’s argument that she had no notice of being called as a witness. The Board was also unaware of the Appellant’s intent to call Ms. Meuleman as a witness until the Appellants filed their List of Witnesses on or around October 7, 2024.
18The Board finds that the Appellants did not submit a Request for Summons for the Board’s approval as required by rule 8.2 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure (Rules). However, it is important to note that even if a Request for Summons had been filed, it would have likely still been denied as the anticipated evidence is not relevant to the appeal and lies outside of the Board’s jurisdiction as found above.
Counsel can’t be both a witness against her client and represent her client
19Ms. Meuleman relied on LSO v. William Ndze Fuhgeh, 2021 ONLSTA 24, and Lepan v Lofranco, 2021 ONSC 1757, to support her position that she cannot act as both a witness against her client and represent her client at the same time.
20Ms. Meuleman submitted that the Appellants were aware from the Respondent’s Declaration of Representative filed with the Board that she would be counsel for CAWI. The Board agrees with the Respondent’s position that Ms. Meuleman cannot act as both a witness against her client and represent her client. This is contrary to the LSO’s Rules of Professional Conduct (lso.ca/about-lso/legislation-rules/rules-of-professional-conduct)
21As we have already decided that the evidence the Appellants wish to introduce by including Ms. Meuleman as a witness is not relevant to the merits of the case 16212/ACRB, Ms. Meuleman cannot be called as a witness by the Appellants.
ORDER
22Danielle Meuleman is excluded from testifying as a witness for the Appellants in the Board’s File Number 16212/ACRB.
Released: October 24, 2024
___________________________
Susan Clarke Managing Vice Chair
___________________________
Mark Sraga, Member