Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

RECONSIDERATION DECISION

Before: Susan Clarke, Vice-Chair

Date of Order: 01/05/2024

File: 15110 & 15163/ACRB

Case Name: Kafieh and Jefferies v. Chief Animal Welfare Inspector

Written Submissions by:

For the Appellant: Robert Kafieh, Appellant

For the Respondent: Danielle Meuleman, Counsel

OVERVIEW

1On November 1, 2023 Robert Kafieh, the Appellant, filed a request for reconsideration (Request) of a decision of the Animal Care Review Board (Board) dated October 11, 2023: Kafieh & Jefferies v. Chief Animal Welfare Inspector, 2023 ONACRB 58. Kafieh filed the Request on his own behalf; Jefferies was not named in the Request¹.

2In the decision, the Board found the following:

1. The dogs were in distress at the time of their removal on July 26, 2023, and it was necessary for AWS to remove them to alleviate their distress;
2. The conditions regarding heat exhaustion, lack of water, and unacceptable housing conditions, which caused the dogs to be in distress at the time of their removal, have ceased to exist because the dogs were not at the subject property. However, the appeal of the Notice of Removal to have the remaining four dogs returned to the Appellant was dismissed because there was insufficient evidence that the conditions that caused the dogs to be removed had been corrected; and
3. The August 15, 2023 SOA was varied from $5,149.86 to $5,025.56.

3In his Request submissions, the Appellant submits that the Tribunal violated the rules of procedural fairness in the decision and/or made an error of law or fact in the decision such that the Tribunal would likely have reached a different result had the error not been made.

4The Appellant is seeking an order:

1. Cancelling the Board’s order such that the SOA would not be collectable from Robert Kafieh, Jennifer Jefferies, or their businesses; or
2. In the alternative, varying the Tribunal’s order as follows: The Appellant seeks an Order from the Board compelling the Respondent to provide separate and detailed SOAs to Robert Kafieh, Jennifer Jefferies, or to their respective businesses that detail specific costs for boarding and veterinary services for the unique set of dogs for which each business was responsible, and that the combined amount not exceed $5,025.56.

RESULT

5The Appellant's request for reconsideration is denied.

ANALYSIS

6The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Board’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless 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; and/or

d) There is evidence that was not before the Board when it rendered its decision, that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.

7In order to interfere with a decision under Rule 18.2(b), I must not only have made an error of law or fact, but that error must also be significant enough that I 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.

8The grounds that the Appellant argues applies to this case are as follows:

a) The Board acted outside its jurisdiction or violated the rules of procedural fairness; and/or

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.

9Specifically, the Appellant submits that the Tribunal made an “error in law and fact, as well a violation of the principles of natural justice and procedural fairness, for the adjudicator to have not rejected the SOAs submitted into evidence, by the Respondent, as these did not provide separate SOA’s to be paid by each business or its operator.”²

Error in Law and Fact

10On November 2, 2023 James Kafieh³ filed a “corrected” Request, following an email from Jennifer Jefferies⁴. In his amended Request, the Appellant stated that the dogs should have been described in the initial Request as follows:

a) “Kane and Serena Pet Services”, operated by Robert Kafieh, cared for and was responsible for five dogs (Milo, Milo 2, Thea, Blink, and Gigi); and

b) “Fight Against Breed Racism”, operated by Jennifer Jefferies, cared for and was responsible for three dogs (Layla, Hans and Hank).

11The issue being raised in the Request is one of ownership and custody.

12In his Request, the Appellant submits that paragraph [1] of the Board’s decision at first instance acknowledged that there were two distinct businesses being operated on the property. He further submitted that the two appellants, Robert Kafieh and Jennifer Jefferies, had no business or social relationship since before the first inspection by AWS, and that Ms. Jefferies and her business have since moved to another location.

13The Appellant also submitted that AWS always knew the two businesses were responsible for separate and unique sets of dogs. He submitted that the invoices submitted by the Respondent in support of the SOA are specific to each dog. The Appellant further submitted that the Respondent never provided clear separate SOAs to be paid by each business (or Mr. Kafieh and Ms. Jefferies) for costs associated with the boarding and veterinary care of each business’ separate and unique set of dogs.

14In its Responding submissions, the Respondent opposed the request for reconsideration. The crux of the Respondent’s argument is that at no point during the case conference, the hearing, or in submissions made at the hearing, did either of the appellants raise the issue now being raised on reconsideration – ownership and custody of the eight dogs. The Respondent also noted that this was not an issue identified on the Appellants’ Notice of Appeal of the decision to remove the dogs or the Notice of Appeal of the SOA.

15The Respondent noted that the Board was aware that two businesses were being run on the subject property, and that Mr. Kafieh was responsible for day-to-day care of all eight dogs. The Respondent also highlighted that I found both Appellants to be the “owners or custodians” of all eight dogs.

16The Respondent submitted that “it is not up to the Respondent or the Board to anticipate every potential issue with a decision that is under appeal, bring forward fulsome evidence on every issue and render a decision that addresses every possible issue.”⁵ It added that had it known that custody of the eight dogs was disputed by the Applicant, its witnesses could have provided more detailed background in their statements and testimony of interactions with the Appellants.

17While I find that the Appellant’s issue regarding ownership/custodianship has merit, I agree with the Respondent that the issue was never raised in the Notices of Appeal, the two Case Conferences, or at any point during the 2-day hearing. Indeed, neither Appellant raised the issue that the SOA should not have been issued to them jointly or that they each managed a distinct set of dogs.

18In his Reply submission, the Appellant stated that the SOA was at issue before me, and that I varied it.⁶ I agree that the SOA was at issue. However, the issues that Mr. Kafieh raised did not include that the SOA should not have been jointly issued due to ownership/custodianship. Instead, the issues raised were limited to the following:

a) The daily boarding rates were too high;

b) Concerns with the care provided by the boarding facility;

c) The dogs did not require all the medications provided to them;

d) The veterinary services should have been discounted;

e) The dogs were double vaccinated; and

f) Ability to pay.

19In conclusion, I find that the Appellant’s submissions regarding ownership or custodianship of the dogs is a new argument that could have been introduced during the hearing but, for whatever reason, it was not. I agree with the Respondent, that it is not up to the Board to anticipate arguments. Therefore, I am not prepared to address this Request as part of the Board’s reconsideration process. A reconsideration request is not an avenue to advance new arguments or make new requests that a party could, but did not, make before the Board during the hearing of the matter.

Violation of the Principles of Natural Justice and Procedural Fairness

20The Appellant also submits that I violated the principles of natural justice and procedural fairness. He provided no basis for raising this ground in the Request. However, in his Reply submissions, he stated that it was my error in not “recognizing the requirement, in equity and natural justice, to divide the SOA amount between the two businesses so that each would pay the true cost for the dogs for which each was specifically responsible.”⁷

21As stated above, the Appellants never provided information at the hearing that their respective businesses were each responsible for a discrete group of dogs. As such, I had no information before me to divide the varied SOA between them. This is not a violation of the principles of natural justice and procedural fairness, and this ground is accordingly dismissed.

The Remedy Requested

22The Appellant has requested as a remedy that I cancel my Order regarding payment of the SOA because of the errors he suggests I made. As I find that I made no error, there is no basis to grant this request.

23The Appellant requested in the alternative that I vary my Order and require the Respondent to issue separate SOAs to the Appellants based on the dogs that each of their businesses are responsible for. The Board is a creature of statute and has no inherent jurisdiction. As a result, it has no powers absent those expressly provided by statute. My powers regarding SOAs are described in s. 38(9) of the PAWS Act, and are limited to confirming, revoking, or varying a SOA. My decision included varying the total sum of the SOA. Even if I had granted the Appellant’s request for reconsideration, which I have not, the Appellant has not pointed to any authority that permits me to order the remedy he seeks, namely, to provide a precise allocation of a SOA between individuals.

CONCLUSION AND ORDER

24For the reasons noted above, the Appellant's request for reconsideration is denied.

Footnotes

1. 1On October 11, 2023 Jennifer Jefferies e-mailed the Board advising that she was withdrawing her name from other appeals having to do with livestock, and any new future appeals. She advised that she maintained an interest in proceedings regarding the removal of her dogs by Animal Welfare Services (AWS). In the email, Jefferies notified the Board that she would be moving out of the Selkirk residence, and that she was no longer in a relationship with Kafieh and that their personal circumstances had changed.
2. 2Appellant’s Request for Reconsideration, submitted on November 1, 2023, paragraph 10.
3. 3The Appellant is Robert Kafieh. It is assumed that he also goes by the name James Kafieh, given the wording of his email.
4. 4Jennifer Jefferies was the co-Appellant to the original appeal (ACRB Files 15110 & 15163)
5. 5Respondent’s Responding submissions, submitted on November 20, 2023, paragraph 22.
6. 6Appellant’s Reply submissions, submitted on November 27, 2023, paragraph 8.
7. 7Ibid, paragraph 9.