Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
PENNY KERR
Appellant
and
Chief Animal Welfare Inspector
Respondent
MOTION ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
For the Appellant: Dan Petrascu, Paralegal
For the Respondent: Danielle Meuleman, Counsel
Heard in Writing:
January 5, 2024
OVERVIEW
1Penny Kerr (“appellant”) appealed a statement of account dated September 14, 2023 in the amount of $166,937.62 for care provided by the Chief Animal Welfare Inspector (“respondent”) from December 2, 2022 to March 10, 2023 to the appellant’s dogs removed from her care on December 2, 2022 (“ SOA”). This appeal was brought by the appellant under s. 38(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, as amended (“PAWS Act”) and is the appellant’s only appeal currently before the Board.
2As the appellant’s dogs are no longer in the respondent’s care, the respondent has confirmed during the course of this appeal that the amount of the SOA is not increasing.
3At the September 25, 2023 case conference the appellant was represented by Allen Wilford but indicated she needed time to retain new legal representation.
4The appellant attended the October 26, 2023 case conference with her new legal representative Dan Petrascu, paralegal, who was retained October 25, 2023.
5At the request of both parties, the Board granted an adjournment of the December 8, 2023 hearing so that this motion could be brought, responded to and heard in writing prior to the hearing of this appeal which is currently scheduled to begin late January, 2024.
APPELLANT’S MOTION TO “MODIFY THE GROUNDS FOR APPEAL”
Positions of the Parties
6The appellant’s “Notice of Motion & Submissions” dated December 1, 2023 and the appellant’s Amended “Notice of Motion & Submissions” dated December 11, 2023 (the “Motion”) both state that the appellant’s motion is to “modify the grounds for appeal in File No. 15245/ACRB”.
7The appellant seeks the following “remedy” in the Motion:
“a. The remedy the appellant is seeking is to convince this Honourable Court that the SOA issued by the respondent is unreasonable and exaggerated and should be revoked…The appellant is in no financial position to pay any amount to the respondent nor should her [sic], and we are seeking to convince the court to, under the powers of the board under Section 38(9(a), confirm, revoke or modify an order made under s. 30.
b. We know that falls under this Board’s powers, as confirmed by the Superior Court in Ontario (Chief Animal Welfare Inspector) v. Ishankova, 2023 ONSC 1284.
c. The respondent failed to his duty to mitigate his prejudice and we are seeking to convince the court to, under the powers of the board under Section 38(9)a) “confirm, revoke or modify an order made under s. 30”, revoke the Final Statement of Accounts.
d. Ultimately, considering the behaviour of the opposing party, and the unwillingness of the respondent to settle this matter out of the court, the appellant is seeking for cost compensation and disbursement compensation.”
8In support of the Motion, the appellant relies on the various materials listed in her Notices of Motion and various case law cited.
9In reply submissions the appellant requested further “remedy” as follows:
a. “The Appellant requests that the Board allows all the Appellant’s grounds of appeal as set out herein.
b. The Appellant request that the Respondent’s Anticipated Witnesses List be reinstated.
c. In the alternative, the Appellant seeks to bring a motion to subpoena the witnesses on the Respondent’s list.
d. The Appellant, considering the Respondent’s Bad Faith behavior set out above, requests that the Final Statement of Accounts be revoked AND that the Appellant be granted costs and disbursements and any other remedy this Honourable Tribunal might find appropriate.”
10The appellant also states that she relies on Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579 (“Aylmer case”), the complaint filed against two Inspectors, statement of Dr. Robertson and Respondent’s list of anticipated witnesses.
11The respondent takes no issue with the appellant raising the reasonableness of the costs set out in the SOA. However the respondent opposes the inclusion of issues related to dog 333 “Cassidy” and dog 318A “Polly” as there are no costs for the care for either dog included in the SOA. The respondent also opposes the issues that the appellant seeks to raise concerning alleged breach of the settlement agreement made in another Board file, return of certain dogs, compensation for loss of dogs, and other issues the appellant seeks to raise at the hearing. The respondent submits that this motion should be dismissed.
RESULT
12The appellant’s motion is denied for the reasons that follow.
ANALYSIS AND REASONS
13In her September 19, 2023 Notice of Appeal the appellant set out her ground of appeal as: “This issue was settled by mutual agreement and Penny Kerr has complied to the agreement, to the best of my financial ability”. In the remedy part of the Notice of Appeal the appellant wrote “This issue was settled in March 2023.” Copies of the appellant’s pension statements were attached.
14The Board’s October 30, 2023 Case Conference Report and Order set a hearing date of December 8, 2023, deadlines for disclosure of documents, and described the appellant’s ground of appeal as follows: The SOA was addressed as part of the “Minutes of Settlement and Written Agreement” between the appellant and the respondent signed by the respondent on March 12, 2023 and by the appellant on March 13, 2023 in Board file numbers 14457, 14481, 14482 and 14534 and should be revoked.
15The appellant seeks in this Motion to modify the grounds of appeal by now suggesting that the Board consider additional remedies which are summarized as:
a. The Board should determine if the dog named “Cassidy” which was euthanized by the respondent was one of the 36 dogs removed from the appellant on December 2, 2023. If Cassidy was not the appellant’s dog, order that the respondent return the appellant’s dog named “Imperial” or, in the alternative, apply $5,000.00 toward the SOA and deduct all boarding and veterinarian fees for Imperial from the SOA.
b. The Board should consider if the removal of some or all of the 36 dogs was lawful.
c. The Board should consider whether the veterinarian and boarding costs are reasonable, including whether the respondent should have mitigated the cost of care by selling the dogs and whether the dog named “Rolex” was neutered by the respondent and if so, whether financial compensation or credit toward the SOA is warranted.
16In response to the appellant’s motion the respondent filed the affidavit of Gary Robillard made December 22, 2023 which establishes that there are no costs of care included in the SOA for either Cassidy or Polly as these two dogs were the subject matter of the appellant’s previous appeals in other Board files which have already been disposed of by settlement. Mr. Robillard was not cross-examined on his affidavit and I accept his evidence. The appellant has not challenged the evidence of Mr. Robillard except with bald assertions.
17I accept the evidence of Mr. Robillard on this point. To re-open in this appeal when other Board files have already been settled is not within the mandate of the Board. The appellant’s motion material alleges breach of a settlement agreement by the respondent. Allegations about a breach of an agreement by the respondent cannot be resolved by the Board which, as a creature of statute, only has a mandate to hear appeals and applications as set out in s. 38(1), (3) and (4) of the PAWS Act.
18The legislative time limit has long since passed to challenge the removal of the dogs on December 2, 2022 and the respondent’s decision to keep them in care. Further, Mr. Robillard’s affidavit establishes that in fact the appellant exercised her right of appeal of both and that these appeals were settled in writing in March 2023. While the appellant may have a right to challenge these settlements and the basis for them in another forum, this is not within the mandate of the Board. The Board’s powers on a SOA appeal are to confirm, vary or revoke the SOA. This issue was clearly set out in the Board’s Case Conference Reports and Orders with the consent of the appellant.
19Despite the appellant’s submissions to the contrary, I find that the Board does not have the legislative authority to allow an appellant to expand the stated grounds of appeal after the prescribed period of time to appeal has elapsed. Here, the prescribed appeal period expired in September, 2023.
20If the appellant has questions about the details of care outlined in the SOA or the reasonableness of the costs in the SOA, this can likely be raised at the hearing, subject to the discretion of the hearing adjudicator, and the requirements of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version 1, (October 2, 2017), as amended (“Rules”). No amendment to the Notice of Appeal grounds or order of the Board is necessary. The reasonableness of the SOA will be the central issue at this hearing. The respondent has confirmed in its submissions on this motion that the respondent takes no issue with the appellant’s request to raise the reasonableness of the costs included in the SOA.
21In reply submissions to the Motion, the appellant requests that the Respondent’s Anticipated Witnesses List be reinstated, or in the alternative, the appellant seeks to bring a motion to subpoena the witnesses on the Respondent’s list.
22Although it is inappropriate for the appellant to request further relief in reply submissions as it deprives the respondent of an opportunity to respond, here the respondent has delivered a surreply in response. As a result, I have considered the appellant’s requests in her reply submissions. I have not considered the appellant’s “surreply to the respondent’s surreply” submitted January 3, 2024 because this document is outside the Board-directed time frame for submissions on the motion, there is no provision for it in the Rules, and it creates an unfairness to the respondent. I conclude as follows.
23It is not for the Board to advise either party what witnesses they may bring to the hearing. The appellant does not need to bring a motion to “subpoena” any witnesses, including those of the respondent. The availability of a summons to either party is clearly set out in the Rules.
24No amendment to the Notice of Appeal or order of the Board is necessary for the appellant to raise her financial ability. This is already referred to in her Notice of Appeal.
25No amendment to the Notice of Appeal or order of the Board is necessary for the appellant to request costs of this proceeding. The appellant has made the respondent aware of the intention to seek costs in her motion material. Rule 19.2 of the Rules provides that a request for costs made be made orally at the hearing.
26Although the appellant relies on the Aylmer case, this case is not helpful on this Motion as it deals with the elements necessary to ground a private law duty of care in negligence advanced in the courts. The Board’s mandate does not include tort.
27This is the appellant’s motion and the onus to establish reasonable grounds for the relief requested is on the applicant, an onus that I find she has failed to meet.
28The Board’s mandate is to facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative, and to promote the efficient, proportional and timely resolution of the merits of the proceedings before the Board as set out in Rule 3.1 of the Rules. Allowing the appellant to proceed with all her grounds of appeal as contained in her Notice of Appeal is consistent with this mandate.
CONCLUSION
29The appellant’s request to expand her grounds of appeal and/or remedies to include consideration of the dog named “Cassidy” is denied given that this dog was the subject of previous appeals that were withdrawn and no costs of care for that dog are included in the SOA.
30The appellant’s request to expand her grounds of appeal and/or remedies to include consideration of the lawfulness of the removal of the appellant’s dogs in December, 2022 is denied. This issue has not been appealed before me in accordance with the time frames provided in the legislation and is not before me. Further, it appears from the evidence that these issues have already been appealed to the Board and resolved. As a result, the Notice of Appeal here cannot be “amended” to provide a re-hearing or collateral attack on previously disposed Board appeals.
ORDER
31The appellant’s Motion is denied.
HEARING
32The hearing of this appeal remains scheduled to start January 29, 2024 at 9:30 a.m. by videoconference.
33Except for the provisions contained in this Order, all previous Orders made by the Tribunal remain in full force and effect.
34The conduct of the hearing remains subject to the discretion of the hearing adjudicator.
35If the parties reach an agreement on the issues in dispute, the appellant shall immediately advise the Board in writing.
Released: January 9, 2024
_________________________
Avril A. Farlam
Vice Chair