Tribunals Ontario
Animal Care Review Board
Tribunaux décisionnels Ontario
Commission d’étude des soins aux animaux
16011/16012/16025/16026
RECONSIDERATION DECISION
Before: Peter Simmons, Member; Paul Stopciati, Member
Tribunal File Number(s): 16011/16012/16025/16026/ACRB
Case Name: Chelsea Flanders and Parker (Lexa) Mogck v. Chief Animal Welfare Inspector
Written submissions by:
For the Appellants: Chelsea Flanders and Parker (Lexa) Mogck, self-represented
For the Respondent: Danielle Mueleman, Counsel
OVERVIEW
1On September 19, 2024, Chelsey Flanders and Parker (Lexa) Mogck, the appellants, filed a request for reconsideration of a decision of the Animal Care Review Board (Board), which was issued on September 19, 2024: Flanders/Mogck v. Chief Animal Welfare Inspector, 2024 ONACRB 98 (Decision).
2In the Decision, the Board:
a. Dismissed the appeal of the Keep in Care decision for the appellants’ five dogs and one cat (ACRB File 16011);
b. Dismissed the appeal of the Keep in Care decision for the appellants’ horse (ACRB File 16012);
c. Dismissed the application for return of the appellants’ five dogs and one cat (ACRB File 16025); and
d. Dismissed the application for the return of the appellants’ horse (ACRB File 16026).
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“Rules”). To grant a request for reconsideration, the Board must be satisfied that one or more of the following criteria are met:
a. The Board acted outside its jurisdiction or violated the rules of procedural fairness;
b. 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;
c. The Board 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 Board 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.
4The appellants seek a reconsideration of the Decision under Rule 18.2(a), (b), and (d). Specifically, the appellants submit that:
a. The Board acted outside its jurisdiction when considering and weighing certain evidence to reach its Decision;
b. The Board made errors in law or fact in its Decision;
c. There was evidence and case law that was not available at the time of the hearing and would have affected the outcome.
5The respondent’s position is that the appellants have failed to establish any grounds for reconsideration and that the reconsideration request should be dismissed.
RESULT
6The appellants’ request for reconsideration is dismissed.
PROCEDURAL ISSUE
7The appellants filed a motion to strike the respondent’s submissions in response to the appellants’ reconsideration request. The Board dismisses the appellants’ motion.
8On October 29, 2024, the appellants submitted a Notice of Motion (NOM) requesting “the dismissal” of the respondent’s reconsideration submissions dated October 28, 2024, because the respondent’s submissions did not conform to the criteria for submissions, including maximum page limit, font size, and page boarders, as laid out in the Board’s direction to the parties, dated October 17, 2024.
9On October 29, 2024, the respondent provided the Board with a reformatted version of their reconsideration submissions that conformed to the submissions criteria.
10Given that the respondent’s corrected version of its reconsideration submissions is consistent with the content of its original submissions, with adjustments to format that now conform to the Board’s instructions, the appellants’ motion is moot and, therefore, dismissed.
ANALYSIS
11The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position or merely disagree with the Board’s decision or with the weight assigned to the evidence. The requestor must instead demonstrate how or why the decision falls into one or more of the criteria set out in Rule 18.2.
12For the reasons that follow, the Board finds that the appellants have not met any of the criteria under Rule 18.2 for the Board to grant a reconsideration of the Decision.
Rule 18.2 (a) – The Board did not act outside its jurisdiction
13We find that the Board did not act outside of its jurisdiction and, therefore, a reconsideration of the Decision is not granted on this basis.
14The appellant submits the Board acted outside its jurisdiction by:
a. Considering testimony and evidence about the appellants’ apartment, specifically, its size and it being inadequate for 12 cats, five dogs, and two adult persons;
b. Giving weight to the lack of verified evidence of their animal care knowledge and animal care training;
c. Not acknowledging certain dogs as service dogs; and
d. Giving consideration to the appellants’ history of non-compliance with Animal Welfare Services (AWS) orders and the appellants’ unwillingness to cooperate with AWS.
15We disagree with the appellants’ submissions for several reasons. Section 38(9) of the PAWS Act spells out clearly the powers of the Board. The Provincial Animal Welfare Services Act, 2019, S.O. 2019, c.13 (PAWS Act) does not restrict what evidence the Board can and cannot consider and how it may exercise its jurisdiction relating to factual findings.
16The appellants' submissions do not point to the Board acting outside of its jurisdiction. Instead, the appellants appear to disagree with the Board’s findings of fact and the weight given to evidence received about various issues. Disagreeing with how the Board received and weighed evidence is not a ground to grant reconsideration of a decision.
17The appellants also assert, with respect to the Board’s jurisdiction, that the Board did not consider the appellants’ steps in preparing for the animals’ return and that they would not be returned to an environment of distress. In their submission, the appellants state that they were unable to obtain clarification from AWS on “what would be needed to return the dogs and cat.” This is not a jurisdictional issue concerning the Board.
18For all these reasons, the appellants’ request for a reconsideration of the Decision based on the Board acting outside of its jurisdiction under Rule 18.2(a) is dismissed.
Rule 18.2(b) – The Board did not make any errors of law or fact that would have affected the result of the Decision
19We find that the Board did not make any errors of law or fact that would have affected the result of the Decision.
20In this matter, the appellants submit that the Board made the following errors of law or fact:
a. When it found the testimony of Dr. Welch was credible and that the animals should remain with AWS;
b. By stating at paragraph [16] of the Decision that the location of the June 5, 2024, incident was an “urban neighbourhood;”
c. By finding that the dogs and cats1 that were in the appellants’ care were found in the cargo area of the appellant’s U-Haul moving truck, that it was unsanitary in that area, and that the animals lacked water;
d. By summarizing Dr. Welch’s opinion as finding that the cat, Rose, had a “challenging health” condition;
e. By finding that the dogs weight loss is unexplained at paragraph [24] of the Decision;
f. By omitting SI Yearly and RS Atrooshi in the Decision as it relates to the appellants’ perjury motion;
g. In setting out the events on June 5, 2024, and AWS’ response to a call and the removal of the animals;
h. In “determining whether or not dog breed association [sic] standards hold any significance against that of a singular vet;” and
i. In stating at paragraph [17] of the Decision that the animals were removed by Windsor-Essex County Humane Society (WECHS) and not AWS, and that they were not examined upon their arrival at the respective veterinary clinic.
21We find that the Board did not err in the Decision when it found the testimony of Dr. Welch to be credible and that the animals should remain with AWS. The appellants’ submission is a disagreement with the Board’s finding, and they provided no persuasive submissions to demonstrate an error. Moreover, their submissions conflicts with the evidence, specifically, the report of Dr. Welch, which was entered as an exhibit.
22There is no factual error by the Board concerning the events on June 5, 2024, and AWS’ response to a call and the removal of the animals. The Decision includes a summary of the relevant evidence, and there is no disputing the date of removal, the reason for the removal, and the involvement of AWS in that process.
23There is no error in fact in the Board’s decision where it noted that the location of the June 5, 2024, incident is an “urban neighbourhood.” On that date, AWS responded to a call concerning a moving-type vehicle (U-Haul) and livestock trailer containing one horse. The will-state of AWS Senior Investigator Ryan Sparks (SI Sparks) shows the municipal address in Windsor, Ontario that AWS responded to, and the DTK, which is entered as an exhibit, shows the livestock trailer as being “parked on an urban residential street.” The appellants’ submission that it took place in a parking lot of a city park within a neighbourhood is not a relevant distinction and would not have affected the Decision in any case.
24There is no error in fact when the Board stated in the Decision that the dogs and cats were in the cargo area of the appellant’s U-Haul moving truck and that it was unsanitary. AWS arrived at approximately 9:30 am on June 5, 2024, in response to the call where they discovered 12 cats and four dogs in the rear cargo area of the appellant’s moving truck. The will states of AWS Inspectors Kort and Yearly, and the DTK, that is entered as an exhibit, note at the time of their inspection a strong smell of urine and feces on the floor of the rear cargo area of the truck, and inadequate water for all 12 cats and four dogs.
25The Board did not err in fact or law in its summary of Dr. Welch’s evidence or his opinion of the cat, Rose. The appellants’ submission that Rose had “challenging health conditions” is inconsistent with Dr. Welch’s testimony that her condition was “very serious.” Further, and contrary to the appellants’ submission, Dr. Welch did not give any of the appellants’ animals a “clean bill of health.”
26There is no factual error in the Board finding in the Decision that the dogs’ weight loss was unexplained. As the appellants submit, they testified “to the best of our (their) ability” on the weight loss of their dogs, and neither they nor the respondent could point to specific factors that led to weight loss, hence the Board’s conclusion that it is unexplained.
27The Board acknowledges the omission of SI Yearly and RS Atrooshi in the Decision as it relates to the Appellant’s “perjury motion.” Prior to the hearing, the appellant’s filed a “perjury motion” with the Board. In its Decision, the Board only referenced SI Sparks. The motion was addressed prior to any testimony and evidence being given and was denied because it did not satisfy Board Rule 15.1(c). It had no relevance to or effect on the Decision.
28The appellants submit that the Board made a factual error in referencing SI Sparks removing the five dogs and 12 cats. In the Decision the Board wrote that SI Sparks removed these animals.2 The evidence shows that Sparks was present to issue the Notice of Removal and it was SI Yearly who removed the five dogs and 12 cats. This was a minor factual error that did not affect the outcome.
29The appellants submit that the Board made a factual error in “determining whether or not dog breed association [sic] standards hold any significance against that of a singular vet.” The appellants have mischaracterized the Decision and have a disagreement with the weighing of evidence. In paragraph [29] of the Decision, the Board stated that the appellants’ testimony that included reference to breed standards, “is less reliable than the opinion of an expert veterinarian with 30+ years veterinary experience who had examined the medical reports from an independent veterinary hospital.” This is not a factual error made by the Board.
30The appellants submit that the Board made a factual error when stating that the 12 cats were taken to WECHS by AWS. The Decision does not make this finding or statement. It says AWS took the animals to Lauzon Veterinary Hospital. The animals were the five dogs in AWS’ care. AWS had arranged for WECHS to transport the 12 cats to its (WECHS) facility. There is no factual error.
31The appellants submit that when AWS arrived on the morning of June 5, 2024, four of the five dogs were in the cargo section, and one was in the cab. This factual discrepancy, however, is not material enough to have affected the Decision because a single dog in the cab of the truck did not affect the respondent’s decision to remove all the dogs who, along with the cats, were deemed to be in critical distress.
32The appellants also submit that there is case law supporting their submissions on factual errors. However, they failed to identify any in this section of their submission, and by their own admission noted, “we the Appellants cannot directly find at this given time.”
33For these reasons, the appellants’ request for a reconsideration of the Decision based on errors of fact or law made by the Board under Rule 18.2(b) is dismissed. There were two minor factual errors made by the Board, but they were not material enough to affect the Decision.
Rule 18.2(d) – There was no evidence submitted by the appellant that was not available at the time of the hearing
34We find there is no new evidence in the appellant’s submission that would have affected the result. Any new evidence the appellant’s submitted was available at or prior to the hearing.
35The appellants submit that a formulated feeding plan and schedule for their animals; a commitment to veterinary care along with intentions to comply with and follow future AWS orders and directions; and that they (the appellants) would provide consent to AWS to speak to their (the appellants’) veterinarians is all new evidence and was not available at the hearing.
36The appellants’ submissions are not new evidence. At the hearing, the appellants’ testimony focussed on the food they intended to feed their animals moving forward, and they provided receipts of raw food purchase as evidence in anticipation of the animals being returned. A feeding plan and process was clearly in the making and was before the Board when rendering the Decision.
37The appellants submit that the testimony of Ms. Flanders would have influenced the Decision. Again, this is not new evidence. On Day 3 of the hearing, Lexa Mogck advised the Board and respondent that Chelsey Flanders had taken ill and was unable to attend the hearing. The Board asked for and received consent from Ms. Flanders that same day that Lexa Mogck could testify on her behalf, which was done for the remainder of the hearing and with consent from the respondent.
38The appellants submitted case law references in this section of their submission but did not explain how these cases supported their arguments. They further submit that this case law was “unable to be heard” at the time of the hearing. The case law cited by the appellants in their submission is not new evidence. It was publicly available prior to the hearing, and they were not prevented from referencing it during the hearing.
39For these reasons, the appellants’ request for a reconsideration of the Decision based on there being new evidence that could not have been obtained previously by the appellants and would likely have affected the result under Rule 18.2(d) is dismissed.
Other considerations
40The appellants’ submission also includes several other references and objections to the Decision. The remainder of the appellants’ submissions are focused on matters that were raised at the hearing and addressed accordingly. As a result, the request for a reconsideration is not granted on its other submissions that do not fall under Rule 18.2.
CONCLUSION
41We find that the appellants have not proven that a reconsideration should be granted in this matter based on the criteria set out in Rule 18.2.
ORDER
42For the reasons set out above, the appellants’ request for reconsideration is dismissed.
Released: December 23, 2024
Peter Simmons, Member
Paul Stopciati, Member