Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission d’étude des soins aux animaux

RECONSIDERATION DECISION

Before: Ashley Deathe, Member Emma Rhodes, Vice-Chair

Date of Order: 05/28/2024

15245/ACRB

Case Name: Penny Kerr v. Chief Animal Welfare Inspector

Written Submissions by:

For the Appellant: Dan Petrascu, Paralegal

For the Respondent: Danielle Meuleman, Counsel

OVERVIEW

1The appellant, Penny Kerr, filed a request for reconsideration on April 11, 2024 of the Animal Care Review Board’s (Board) decision of Kerr v. Chief Animal Welfare Inspector, 2024 ONACRB 81 (Decision).

2In the Decision, the Board reduced the Statement of Account (SOA) issued by the Chief Animal Welfare Inspector (CAWI) on September 14, 2023 from $166,937.62 to $159,988.67. The SOA stemmed from the removal of 36 English and French Bulldogs from the appellant’s property, and the subsequent decision of the CAWI to keep the animals in its care.

3The appellant now asks the Board to reconsider its decision in accordance with Rule 18 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). Specifically, the appellant asserts that the Board:

a. Acted outside its jurisdiction and violated the rules of procedural fairness; and

b. Made errors of fact and/or law.

4The respondent’s position is that the request for reconsideration has no merit and the appellant failed to establish or satisfy any of the grounds for reconsideration.

RESULT

5The appellant’s request for reconsideration is dismissed.

ANALYSIS

6The onus for establishing that the grounds for reconsideration have been met rests with the appellant as she is the party requesting the reconsideration. A request for reconsideration is not an opportunity to reargue an appeal. The grounds for reconsideration are limited and specific.

7The criteria for granting reconsideration are set out in Rule 18.2 of the Rules. A request for reconsideration will not be granted unless one of more of the following criteria are met:

The Tribunal acted outside its jurisdiction or violated the rules procedural fairness;
The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
There is evidence that was not before the Tribunal 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.

8For the reasons that follow, we find that the appellant failed to establish on a balance of probabilities any of the grounds for the Board to grant the reconsideration.

The Board did not violate rules of procedural fairness

9The appellant submits that the rules of procedural fairness were violated in the hearing because the Board erred in dismissing the Summons to a Witness Application and the “Milgaard Application” (Kerr v. CAWI, 2024 ONACRB 15245, Procedural Order dated January 24, 2024). The appellant submits that her constitutional right to a fair trial under section 7 of the Canadian Charter of Rights and Freedoms has been infringed.

10The appellant did not explain how the Board’s decision impacted the fairness of the hearing. The Board refused to issue a summons because the appellant’s proposed witness would not provide evidence material to the issues within the Board’s jurisdiction. The Board found that, as a result, the appellant’s Milgaard Application to declare the proposed witness a hostile one was moot. The appellant was not prevented from leading relevant evidence. Her rights to procedural fairness were not infringed and the Board did not act outside of its jurisdiction in declining to issue the summons.

The Board did not make errors of law or fact

11The appellant submits that the Board made a series of errors in law and in fact. Specifically, the appellant submits that:

The Board erred in ruling that a private duty of care applies only in tort law.
The Board erred in ruling that CAWI did not prevent the appellant from selling her property.
The Board erred in finding that the boarding costs were reasonable.

12The appellant has not persuaded the Board that any of its conclusions were based on an error of fact or law. In her reconsideration request, the appellant essentially argues that she does not agree with the Board’s findings of fact and law in the Decision, which is not a proper basis for the Board to grant a request for reconsideration.

The Board’s conclusion that adjudicating an alleged breach of duty of care is outside of the Board’s jurisdiction is not an error

13The appellant submits that there is a clear private duty of care between the respondent and the appellant and the Board erred by concluding that no such duty exists. She submits that that the Board erred in finding that a private duty of care only applies in tort law.

14As outlined in paragraph 81 of the Decision, the Board found that any alleged breach of a duty of care and the ability to adjudicate same is outside of the Board’s jurisdiction. That is not to say the respondent is without statutory obligations in the performance of its delegated powers. However, the Board’s jurisdiction to assess the reasonableness of any costs included in a statement of account does not include the power to reduce a statement of account on the basis that AWS breached a duty of care.

15The appellant’s reconsideration request on the basis that the Board erred in not reducing the statement of account as a result of an alleged breach of a duty of care is therefore dismissed. The appellant did not discharge her onus on a balance of probabilities that the Board erred in law in finding that it is outside of the Board’s jurisdiction to confirm, revoke or modify a statement of account under s. 38 of the Provincial Animal Welfare Service Act, 2019 S.O. 2019, c. 13 as amended (PAWS Act) on the basis that the CAWI allegedly breached a duty of care to the appellant.

The Board’s conclusion that CAWI did not prevent the appellant from selling her property is not an error

16The appellant’s position that there was a duty of care owed to her is related to her submission that the respondent had a duty to mitigate the costs of caring for the animals in its care. The Board found that the appellant was not prevented from selling animals while the animals were in the care of the CAWI and that legislation does not require the CAWI to sell animals that are surrendered to it for the purposes of offsetting the financial liabilities of the animals’ previous owner.

17The Board considered all the evidence of the attempts by the appellant to sell her dogs while they were in the care of the CAWI. The Board’s reasons for finding that AWS did not prevent the proposed sale of the dogs and that the CAWI is not required to sell the animals after forfeiture are outlined in paragraphs 83-95 of the Decision.

18The appellant’s evidence of the estimated sale price of a dog would only have been relevant if the Board determined that the SOA ought to have been reduced to account for the loss of opportunity of the sale of any of the animals.

19On a reconsideration request, the Board may not re-weigh the evidence. Although the appellant submitted that the Board made an error of fact, she did not identify any evidence that the Board misconstrued or failed to consider, but rather, argued that she did not agree with the Board’s findings of fact. The appellant has, therefore, failed to show, on a balance of probabilities, that the Board erred in finding that the respondent did not prevent the appellant from selling her animals, and the reconsideration request on this basis is dismissed.

The Board’s decision to confirm the boarding costs is not an error

20The appellant submits that the Board erred in finding that the boarding costs were reasonable and that the conditions were not sub-standard.

21The Board’s reasons for finding that the boarding costs were reasonable and conditions were not sub-standard were based on the evidence before it, as outlined in paragraphs 69-79 of the Decision.

22The appellant has failed to show, on a balance of probabilities, how any of the criteria as set out in Rule 18.2 of the Rules has been met, thereby justifying a reconsideration. The appellant did not point to any evidence that the Board misconstrued or failed to consider in finding that the boarding costs were reasonable and that the boarding facilities were not sub-standard. The appellant’s request for reconsideration on the basis that the Board erred is therefore dismissed.

CONCLUSION

23The appellant has not discharged her onus to show that any of the Rule 18.2 criteria has been met. The Board did not violate the appellant’s rights to procedural fairness, nor did it wrongly limit its jurisdiction by determining that adjudicating common law duties of care is outside its scope of legislated authority. In weighing the evidence before it, the Board did not make errors of fact or law. Instead, the appellant has attempted to reargue her appeal.

ORDER

24The appellant’s request for reconsideration is dismissed.

Released: May 28, 2024

___________________

Emma Rhodes Vice Chair Tribunals Ontario