RECONSIDERATION DECISION

Before: Peter Simmons, Member

Date of Order: January 31, 2024

Case Name: Lynn Freeman v. Chief Animal Welfare Inspector

Written Submissions by:

Appellant: Lynn Freeman

Respondent: No submissions requested

OVERVIEW

1On August 15, 2023, the Appellant, Lynn Freeman, filed a request for reconsideration of a decision of the Animal Care Review Board (Board) issued on July 19, 2023: Freeman v. Chief Animal Welfare Inspector, 2023 ONACRB 14896/14897/14909/14910 (Decision).

2That Decision:

1. Confirmed a Compliance Order issued by Animal Welfare Services (AWS) to provide cats in the Appellants’ home with a clean and sanitary environment¹;

2. Dismissed the Appellant’s appeal of a Notice of Removal (NOR) related to 40 cats removed from the Appellant’s home; and

3. Confirmed a Statement of Account (SOA) for necessaries provided to the 40 removed cats in the amount of $9,127.41.

3The Appellant now seeks a reconsideration of the Board’s Decision in accordance with Rule 18 (Reconsideration of a Tribunal Decision) 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).

4The Appellant did not specify the remedy, or relief, sought through the reconsideration request. I infer from her submission that she seeks to have the Decision cancelled.²

5The Board did not seek submissions from the Respondent regarding its position on the reconsideration pursuant to Rules 18.3 and 18.4(a) of the Rules.

6I have been delegated responsibility to decide this matter in accordance with Rule 18.1.

RESULT

7The Appellant’s request for reconsideration is dismissed.

ANALYSIS

8The criteria for granting a reconsideration are set out in Rule 18.2 of the Rules as follows:

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.

9The Appellant has the burden to establish that one or more of these criteria are met.

10The Appellant submitted that the reconsideration should be granted based on Rule 18.2 (b), (c) and/or (d).

11For the reasons that follow, I find that the Appellant has not established any of the above grounds and I therefore dismiss the reconsideration request.

Rule 18.2 (b) – There is no error in law or fact

12I find that there was no error in law or fact.

13The Appellant’s written submission provided no clear reference, or detail, relating to an error of law by the Board, or how any legal error would have caused the Board to reach a different result.

14The Appellant’s submission argues that the Respondent’s evidence and testimony around animal identification was incomplete and that her cats were mistreated and switched by AWS.

15I infer from this that she believes the alleged incomplete identification process was an error in fact that affected the Decision.

16I note that this issue was raised at the hearing with the Board deciding that the Appellant had not established these claims.³ Accordingly, there is no error in fact made by the Board.

Rule 18.2(c) – There was no false evidence heard from a party, or witness

17I find there was no false evidence heard by the Board or that any was discovered after the hearing that affected the Decision.

18The Appellant submitted that AWS Inspector Rachel Falls (Inspector Falls), gave a false statement at the hearing concerning the search warrant executed on May 10, 2023. The Appellant submits the warrant was “faulty” because the May 5, 2023, date on the document is different than the date mentioned by Inspector Falls in her testimony.

19The warrant was signed by a Justice of the Peace on May 5, 2023, and includes an expiration date of May 10, 2023, which is the date it was executed by Inspector Falls and is consistent with her testimony.⁴

20The Appellant also submitted that Inspector Falls made a false statement that approximately 10 cats “lived” in the attic space of her home.⁵ The Appellant submits that 10 cats did not live in the attic and, “…only got there because of AWS chasing them up there”.

21The issue is about cat occupancy of the attic space. The Appellant argues that “lived” is an incorrect characterization. This however does not make it a false statement.

22Moreover, the Respondent’s photograph evidence, which the Appellant relied on in cross examination, indicated lengthy occupation by the cats in the attic space, which was accessible to them through holes in the ceiling that the Appellant had not properly sealed-off as required by a previously issued Compliance Order from March 21, 2023.⁶

23The Appellant’s submission that false evidence was heard by the Board is not supported and is an attempt to reargue her case.

Rule 18.2(d) There is evidence that was not before the Board when the decision was rendered that could have been obtained previously and would not have affected the result.

24The Appellant submitted that Inspector Falls had a “conflict of interest” that influenced the NOR, and by extension the Decision. She submits the conflict stems from Inspector Falls’ history of inspections and interactions with the Appellant beginning in early 2023, which imposed a “vexatious bias”. To support her allegations, she submitted an excerpt from a ‘will say’ statement from one of her other appeals before the Board.

25I find that the ‘will say’ excerpt is not relevant for these reasons.

26This ‘will say’ excerpt was available to the Appellant prior to the hearing on this matter. It is from an appeal heard by the Board on July 16 and 17, 2023. She could have but did not submit it as evidence at the hearing.

27Even if it were submitted as evidence the ‘will say’ involves AWS staff not involved with this matter, speaks to their proactive measures to mitigate perceived conflicts, and relates to a Keep in Care⁷ decision, which is neither a decision nor process associated with this matter.

28I also note that Inspector Falls was forthcoming at the hearing about her involvement with Appellant on matters related to her cats since the beginning of 2023.⁸

29Accordingly, the Appellant has not proven that the alleged conflict of interest and ‘will say’ are evidence that could not have been obtained previously or that they would have affected the Decision.

Appellant’s other arguments

30The Appellant’s submission includes other arguments. I have summarized them as follows:

1. She raised an issue of AWS conduct during inspections that led to damages in her home,

2. She said communication was problematic at times during the hearing, and the hearing process was unfair.

31The Appellant submitted that AWS’ conduct and behaviour leading up to and during inspections, and at the time of her cats’ removal, was inappropriate, abusive, and unfair.

32AWS Inspector conduct is not within the jurisdiction of the Board. The Appellant was advised of this at the hearing.⁹

33The Appellant did not select the box alleging a violation of procedural fairness on the reconsideration request form. However, her arguments say that the audio and visual “was plagued with lost signals” and that testimony was missed because of the technical difficulties. She also says the Respondent received the notice of hearing days before she did.

34Procedural fairness is a ground for reconsideration, so I considered it.¹⁰

35I understand the Appellant’s submission to be that the hearing process was not fair. I disagree for the following reasons.

36This hearing was originally scheduled as a videoconference hearing however it was changed to a teleconference hearing to accommodate the Appellant as she was experiencing technical issues.

37This matter was heard over two days and there were some occasional technical issues where the Appellant was disconnected. However, when this occurred, the hearing was paused to allow her to reconnect. When she reconnected, I summarized where the evidence or submission left off and we proceeded with the hearing.

38I would also note that the Board sent the notices of hearing to both parties at the same time, and I am satisfied that the Appellant had sufficient notice of the hearing, knew the case she had to meet, and had sufficient time to prepare.

39As a result, the Appellant has not established that the Board violated the rules of procedural fairness.

CONCLUSION

40A party may be dissatisfied, or disagree with a decision, but a reconsideration request is not another opportunity to reargue an appeal because they want a different outcome.

41The Appellant has not proven that an error fact or law was made, and that the Board reached a different decision because of it.

42The Appellant has not proven that false evidence was given and was only discovered after the hearing and affected the result.

43The Appellant has not proven that an alleged conflict of interest and ‘will say’ could not be obtained previously or that it would have affected the Decision.

44The Appellant has not proven that the Board violated procedural fairness.

45The Appellant has not proven, on a balance of probabilities, that a reconsideration should be granted in this matter based on the criteria set out in Rule 18.2.

46For the reasons noted above, the Appellant’s request for reconsideration is dismissed.

Footnotes

1. 1See paragraph 24 of the Board’s Decision dated July 19, 2023.
2. 2See Rule 18.1 (c) and 18.4(b)(ii).
3. 3See paragraphs 42 and 44 of the Board’s Decision dated July 19, 2023.
4. 4Ibid., para 12.
5. 5Ibid., para 3 and 24.
6. 6See paragraphs 20 and 22 of the Board’s Decision of July 19, 2023.
7. 7Notice of Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care Pursuant to Section 31(6) of the Provincial Animal Welfare Services Act, 2019 (PAWS Act).
8. 8See paragraphs 22 and 30 from the Board’s Decision of July 19, 2023.
9. 9The Appellant was referred to Parts III (Complaints) and IV (Powers of the Board) of the PAWS Act.
10. 10See Rule 18.2(a)