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ACRB Dicta - Statements of Account
MORE CASES
Part 2
. Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.
In these quotes, the court supports the tribunal in not considering the owner's pleading of impecuniosity when they did not submit any documentary evidence (presumably of their own financial situation):Was the Board’s decision with respect to ability to pay reasonable?
[83] In their closing submissions before the Board, Windrift requested that the Board consider the reasonableness of the amounts charged in the context of their ability to pay, a factor that has been considered in previous Board decisions.
[84] The Board found that it did not have to determine the question of whether ability to pay should be considered (the CAWI submitted it should not) as it found that Windrift filed no documentary evidence to support Ms. Spottiswood’s testimony on this issue.
[85] Windrift submits that the Board was unreasonable when it failed to accept the uncontradicted oral evidence of Ms. Spottiswood as to Windrift’s inability to pay. We disagree. There is nothing unreasonable about a tribunal refusing to accept evidence about impecuniosity that is unsupported by any documentary evidence. The question of the weight to be attributed to Ms. Spottiswood’s testimony on this point is a question for the Board to decide. Absent exceptional circumstances (which are not present here), it is outside the province of this Court on a reasonableness review to re-weigh evidence. . Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.
In this case, which involved both CAWI and an owner challenges to the ACRB's decisions regarding animal care cost 'Statements of Accounts', the normal evidentiary onus would lie on the applicant regarding the specific issues raised by them. Here however, the court endorsed the ACRB locating "initial evidentiary burden(s)" on CAWI - rather than the owner - to justify the account charges during the ACRB appeal:Was the Board’s finding as to the CAWI’s initial evidentiary burden reasonable?
[40] The CAWI’s position is that the Board acted unreasonably by placing an initial evidentiary burden of proof on the CAWI in Windrift’s appeal of the Statement of Account. Windrift’s position is that the Board acted reasonably. The Board took no position on this issue. The allocation of onus, the CAWI claims, is inconsistent with the purpose of the Act and undermines the animal protection and accountability objectives of the scheme.
[41] In the appeal, the Board found that the Chief Inspector had an initial evidentiary burden to prove, on a balance of probabilities, that the charges reflected in the Statement of Account reflect the actual costs of necessaries provided and that the care provided was reasonable. Once the Chief Inspector meets this initial evidentiary burden, the Board determined the onus would shift to Windrift to show, on a balance of probabilities, that the accounts should be varied or revoked.
[42] Additionally, the Board found, that in regard to the veterinary costs incurred while the dogs were in the CAWI’s care, the costs are reasonable only if the CAWI proved, on a balance of probabilities, that the amounts did not arise as a result of the care, or lack thereof, provided by the CAWI or any of the CAWI’s agents.
[43] We find that the Board's placing of an initial evidentiary burden on the CAWI is reasonable. We also find that the Board’s placement of an additional onus on the Chief Inspector regarding a portion of the veterinary bills (those incurred post triage) was reasonable in the circumstances of this case.
[44] As already noted, the Act provides that an animal owner served with a statement of account may appeal to the Board under s. 38 (2) of the Act. After a hearing, s. 38 (9) empowers the Board to confirm, revoke or modify a statement of account. Section 38 (6) and (7) of the Act require that all appeals be dealt with expeditiously. The hearings are conducted in accordance with its Rules of Procedure, the Act and the Statutory Powers Procedure Act, R.S.O 1990, c. S.22, (the “SPPA”). After holding a hearing, the Board has a broad discretion to confirm, revoke or modify the statement of account issued by the CAWI. The Act and the Regulations made under the Act do not set out how this discretion is to be exercised. There are no mandatory tests, procedures or factors that the Board must apply or consider in exercising its adjudicative function. Given the broad discretion and the absence of mandatory tests, procedures, or factors, the Board’s determination that the CAWI had the initial evidentiary burden is reasonable.
[45] Further, section 39 (1) of the Act allows the Board to “make rules governing the practice and procedure before it.” This includes the power to manage its hearings and control its own process. This is consistent with sections 25.0.1 and 25.1 of the SPPA. Relevant to these applications, section 39 (2) of the Act specifies that the Board may (a) provide for and require ... practices or procedures that are … alternatives to traditional adjudicative or adversarial procedures and (b)(ii) determine the order in which issues and evidence in proceeding will be presented. Thus, the Board’s determinations as to the CAWI’s initial onus was a reasonable exercise of the discretion it has to control its own process.
[46] The Board’s reasons, at paras. 10-22 of the Decision and paras. 21-30 of the Reconsideration Decision, for determining that the Chief Inspector had the initial evidentiary burden are rational, logical and cogent. The Board’s discretionary decision regarding process comports with the governing legislative scheme. The Board specifically addressed in the Decision and Reconsideration Decision that the Statement of Account was only three pages in length, and no details were provided as to what the amounts were for aside from very broad categories. The Board also considered the disclosure process and that the CAWI is in exclusive possession of all relevant documents related to the Statement of Account. The Board referred in its Decision to the CAWI calling witnesses to testify on the Chief Inspector’s behalf, who identified certain amounts on the Statement of Account that should not have been included. In closing submissions, the CAWI stated that at least one invoice included in the total transportation costs had neither been addressed at the hearing nor included in the Book of Documents. The Board’s placing the initial evidentiary burden on the CAWI in these circumstances is reasonable.
[47] The Board reasonably explains how “he who asserts must prove”, is not applicable in the appeal to the extent that the CAWI bears the initial evidentiary burden. The Board explained that in these circumstances if the CAWI did not have the initial evidentiary burden, Windrift could end up liable for unsubstantiated amounts simply because the CAWI had included them as the Statement of Account. It was reasonable and logical, on this basis, for the Board to conclude that the knowledge of the Statement of Account lies within the CAWI: see Pleet v. Canadian Northern Quebec R Co. (1921), 1921 CanLII 518 (ON CA), 64 D.L.R. 316, p. 319 (Ont. C.A.)).
[48] It was reasonable for the Board to rely on the Board’s decision in Freeman v. Chief Animal Welfare Inspector, 2022 ONACRB 12, which determined that the Chief Inspector is required to meet an initial evidentiary burden.
[49] The CAWI argued that since it was Windrift’s appeal they should bear the entire onus as the appealing party. We do not find the Board’s approach unreasonable. This was not an appeal in the ordinary sense. The animal owner has the right to appeal the Statement of Account, but the appeal takes the form of a hearing where evidence is heard and findings of fact are made. It is not an appeal argued on an appeal record. Further, as set out above, the Board has broad discretion to control its own process and procedure. The Board provides a rational basis for not relying on para. 44 of Vavilov in its Decision and in the Reconsideration Decision. This paragraph in Vavilov deals with the standard of review that a court applies when reviewing an administrative decision, and not with which party bears the initial evidentiary burden at an administrative hearing.
[50] The CAWI sought to rely on the Board’s decision in Shekandina v. Chief Animal Welfare Inspector, 2021 ONACRB 15. The Board in its Reconsideration Decision explained that it is not bound by the Board’s previous decisions. There is nothing unreasonable about this finding.
[51] Reading the Board’s decision as a whole, the Board did not place an onus on the Chief Inspector to disprove Windrift’s assertations. The Board simply stated that the CAWI has an initial evidentiary burden, to prove on a balance of probabilities, that the charges reflected on the Statement of Account reflect actual cost of necessities provided and that these costs are reasonable. The Statement of Account is from the Chief Inspector. The invoices were sent to the Chief Inspector for payment. Given this and given the other factors referred to above, the Board’s decision on this issue was reasonable.
[52] It was also reasonable for the Board to find in regard to the veterinary costs incurred after the initial veterinarian triage, that the CAWI must prove, on a balance of probabilities, that such amounts did not arise as a result of the care or lack thereof, provided by the CAWI or any of its agents. The Board’s reasons are logical and rational. The Board’s decision was in part based on the fact that Windrift had been granted an Order to allow a veterinarian, accompanied by a veterinarian technician, hired by Windrift to conduct an inspection of each of the living dogs that were removed, with such inspection to take place where the dogs were being housed. No inspections ever occurred. Windrift was denied access to the properties to inspect the dogs or their living conditions.
[53] As the Board points out, without the inspection, Windrift was at a considerable disadvantage when it came to discharging their onus that the veterinary bills be varied. To address this inequity the Board imposed an additional onus on the CAWI. In the circumstances of this case, this was a reasonable decision.
[54] In making its determination to impose an additional onus on the CAWI, the Board also noted that none of the 233 dogs were removed from Windrift due to any health issues. Regional Supervisor Munoz testified that the Animal Welfare Society did not identify “anything significant” from a health perspective regarding the dogs on the day they were removed. Further, some dogs were returned to Windrift and Regional Supervisor Munoz testified that when they were returned, there were concerns about their health. Some of the dogs suffered from Giardia. The Board had evidence before it that there was a Giardia outbreak at the kennel, two dogs were injured at a kennel and there was a streptococcus zooepidemicus kennel outbreak as well. One dog returned to Windrift was identified as “underweight” by Regional Supervisor Munoz. At least one kennel was not providing adequate care for the dogs. Eleven dogs had either been euthanized or died while in the custody of the CAWI.
[55] In all of these circumstances, the Board’s imposition of an additional onus is reasonable. Proof of causation does not undermine the accountability objective of the Act in the specific circumstances of this case. . Ontario (Chief Animal Welfare Inspector) v. Ishankova
In Ontario (Chief Animal Welfare Inspector) v. Ishankova (Div Court, 2023) the Divisional Court considered (and dismissed) a Chief Animal Welfare Inspector's (CAWI) judicial review of a Animal Care Review Board (ACRB) ruling that reduced "a statement of account respecting the cost of the necessaries" [under PAWS s.35(1)], here on the basis that the animal owner was impecunious:[1] Animal Welfare Services (“AWS”) removed 80 cats in distress belonging to Ms. Ishankova. AWS delivered a Statement of Account to Ms. Ishankova for the care of her cats in the amount of $58,672.98. Ms. Ishankova appealed the statement of account on the sole basis that she did not have the financial means to pay it.
[2] The Applicant seeks to quash the Decision of Adjudicator Matthew M. Létourneau, for the Board dated January 17, 2022 (the “Decision”), along with the April 29, 2022, Reconsideration Decision by Jennifer Friedland (the “Reconsideration Decision”). The Decision and Reconsideration Decision reduced the statement of account to $1,800 based solely on the owner’s inability to pay.
[3] Section 38(9) of the Provincial Animal Welfare Services Act, 2019[1] (the “PAWS Act”) empowers the Board after holding a hearing, to “confirm, revoke or vary a statement of account” served under s. 35(1). The Applicant submits that the Board misinterpreted the PAWS Act and does not have the jurisdiction to consider ability to pay as a factor. Alternatively, it submits that if the Board does have jurisdiction, the way it applied ability to pay in this case is unreasonable because the outcome defeated the purpose and the scheme of the PAWS Act.
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[15] The PAWS Act which received Royal Assent on December 5, 2019 establishes a comprehensive scheme for protecting animals in Ontario. Pursuant to ss. 2, 28, and 33, Animal Welfare Inspectors (“AWI”) appointed under the PAWS Act may, by consent or warrant, enter and search a place if they have reasonable grounds to believe it may contain an animal in distress. An AWI may, at any time, provide necessaries to an animal to relieve it from distress. The Chief Animal Welfare Inspector (“CAWI”) supervises AWI and is also responsible for regulatory enforcement under the PAWS Act and for providing necessaries and care to animals in its possession.
[16] The Board is an adjudicative tribunal established under the PAWS Act and is designated as a constituent tribunal of Tribunals Ontario. It hears appeals from various regulatory activities undertaken by AWI under the PAWS Act, including decisions and orders made by the CAWI[10].
[17] Subsections 31(1), (5), and (8) set out that an AWI may remove an animal for the purpose of providing the animal with necessaries to relieve it from distress.
[18] If an AWI has provided an animal in its care with necessaries to relieve its distress, or the CAWI has decided to keep an animal taken into its care under ss. 31(6), pursuant to ss. 35(1) of the PAWS Act, the CAWI may, “from time to time”, serve on the owner a statement of account respecting the cost of the necessaries.
[19] Under s. 35(1) of the PAWS Act, an owner who is served with a statement of account is liable for the specified amount and must pay it within ten business days unless they appeal the statement of account to the Board. If the owner fails to pay within the timeline, the animal is forfeited to the Crown. Subsection 35(5) sets out that the CAWI has the discretion to reduce the amount that is owed as well as extend the time period in which it must be paid.
[20] After holding a hearing, s. 38(9) of the PAWS Act empowers the Board to “confirm, revoke or vary a statement of account” served under s. 35(1). The Board may order the Minister to pay, to the owner, the costs of complying with a s. 30 treatment order. It may also order the owner to pay, to the Minister of Finance, the “whole or any part” of the cost of providing necessaries to an animal that was removed under s. 31(1) or kept by the CAWI under s. 31(6).
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The legislation
[49] The provisions in the PAWS Act which deal with the liability of an owner for necessaries provided an animal and a statement of account are set out at s. 35 which provides:Liability of owner or custodian for expenses
35 (1) If an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care, the Chief Animal Welfare Inspector may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.
Statement of account
(2) The statement of account must have printed or written on it the content of subsections 38 (2) and (5).
Obligation to pay
(3) An owner or custodian who receives a statement of account under subsection (1) is, subject to an order made under subsection 38 (9), liable for the amount specified in the statement.
Forfeiture on failure to pay account
(4) Subject to any agreement made under subsection (5), the animal is forfeited to the Crown if,
(a) the owner or custodian does not appeal the statement of account in accordance with subsection 38 (2) and fails to pay the stated amount within a prescribed period of time after receiving the statement of account; or
(b) the owner or custodian appealed the statement of account in accordance with subsection 38 (2) but failed to pay the confirmed or varied amount within a prescribed period of time after the Board provided notice of its decision.
Agreements
(5) Before the expiry of the relevant time period set out in clause (4) (a) or (b), the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both. [50] Section 38 deals with appeals from a statement of account. Subsection 38(2) of the PAWS Act provides:(2) An owner or custodian of an animal who is served with a statement of account may apply to the Board by notice in writing to appeal the statement of account within the prescribed period after being served the statement. [51] Subsection 38(9) of the PAWS Act provides:(9) After a hearing, the Board may do one or more of the following:
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3. Confirm, revoke or vary a statement of account served under subsection 35(1). Jurisdiction Argument
[52] Nothing in s. 38(2) limits the Board’s powers on an appeal from a statement of account.
[53] Subsection 38(9) does not limit what factors the Board can consider when exercising its power to “confirm, revoke, or vary” the statement of account. The Applicant’s argument that the legislative intent was to restrict the Board’s role in reviewing the statement of account to whether the amount has been properly calculated is inconsistent with the broad discretion granted to the Board in s. 38(9). I agree with the Applicant that the relevant factors the Board may consider must align with the rationale and purpose of the statutory scheme. However, there is no merit to the Applicant’s submission that the Board’s jurisdiction is limited to ensuring that the costs are reasonable, accurate and necessary.
[54] The authority to “vary” a decision has traditionally been interpreted as a broad discretion:The words “change”, “alter”, and “vary” (or any combination thereof) have a very broad meaning amounting to the ability for the reviewing body to substitute its own decision for the original including reversing it.[15] [55] In Shamji v. Workers’ Compensation Tribunal,[16] the British Columbia Court of Appeal confirmed that an appeal tribunal’s power to “vary” an underlying decision on appeal includes the authority to substitute its decision for the one made below.
[56] I am not persuaded by the Board’s reasoning that the accountability objective does not apply to the statement of account provisions in the PAWS Act. The fact that the CAWI, tasked with enforcing a statute, has enforcement discretion, does not negate the accountability objective of the statute. I agree with the Applicant that the accountability objective is engaged by the statement of account provisions. However, considering ability to pay is not necessarily inconsistent with promoting accountability. Accountability is just one of the objectives of the PAWS Act. Moreover, taking ability to pay into account could help ensure that the accountability provisions do not impose impossible-to-meet financial obligations on those with inability or limited ability to pay. Taking ability to pay into account may ensure that owners do not lose their animals solely by virtue of their inability to pay the statement of account. This may promote the objective of ensuring animal welfare. An owner may make greater efforts to pay the account if the amount is more manageable which may promote the objectives of accountability and ensuring animal welfare.
[57] Section 35 of the Paws Act gives the CAWI the discretion to reduce the amount that must be paid by an owner or to extend the time by which an owner is required to pay in order to avoid forfeiting their animal to the Crown. While the discretion rests at first instance with the CAWI, the PAWS Act gives the Board a broad oversight role over various CAWI enforcement activities. There are no express restrictions on the Board’s authority to “vary” a statement of account. This supports the reasonableness of the Board’s determination that it has the jurisdiction to consider an owner’s ability to pay as a factor when reviewing a statement of account.
Non Jurisdiction Argument
[58] I do not agree with the Applicant that the Board’s Order frustrates the purposes and scheme of the PAWS Act and is unreasonable. The Applicant argues that as a result of the Board’s decision, the animals could not be rehomed or adopted out because they still belonged to Ms. Ishankova, costing the taxpayers an additional $215,607.58. In fact, the statutory scheme provides that when an owner exercises the statutory right to appeal, the statement of account under s. 35(1) of the PAWS Act, the appeal acts as a stay and the animal is not forfeited pending the appeal.
[59] The Board found in the Reconsideration decision that it did not have jurisdiction to order a payment period beyond the ten-day payment period already prescribed by statute. Having not paid the $1,800 to which the Board varied the statement of account within ten business days after that decision, the animals would have been forfeited under s. 35(1) of the PAWS Act. But forfeiture of the animals had already occurred by virtue of the second statement of account which Ms. Ishankova did not pay or appeal. This outcome was in conformance with the PAWS Act and there was nothing about the Board’s Order that frustrated the purpose or scheme of the PAWS Act.
[60] With respect to the Applicant’s submission that the Board erred by eliminating nearly the entirety of the statement of account, deference is owed to the Board’s expertise. At para. 31 of Vavilov,[17] the Supreme Court states that ‘expertise remains a relevant consideration in conducting [a] reasonableness review.’ Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on ‘considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise’ (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it. . Guillaume v. Chief Animal Welfare Inspector
In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered a motion to stay [under CJA s.106] administrative decisions from the PAWS Animal Care Review Board (ACRB), pending a JR.
In these quotes the court considers (and accepts and applies) the respondent CAWI's submissions that the JR is moot since the PAWS statute [at s.35(4)(b)] conveys ownership of the subject animals to the CAWI once an animal-care 'Statement of Account' (SOA) is in default:[7] The Respondent takes the position that the motion for a stay of the Decision is moot. The Respondent submits that in this case, the animals were forfeited by operation of statute, long before the Applicant sought a stay. As a result, they are no longer the property of the Applicant.
[8] Under s. 35(1) of the Act, an owner or custodian is liable for expenses incurred by an inspector or the CAWI when necessaries are provided to relieve an animal of distress. Pursuant to s. 35(4), if the owner or custodian does not pay a SOA that has been varied or confirmed after an appeal to the ACRB, the animals are forfeited to the Crown. Under s. 1(2) of O. Reg. 447/19, the prescribed time period for payment of a SOA is ten business days.
[9] Since the ACRB dismissed the underlying appeals and confirmed the SOA, payment of the SOA was due ten business days later, or on August 18, 2023. The Applicant has made no payments to date. Nor has she negotiated an arrangement with the CAWI. Therefore, by operation of s. 35(4)(b) of the Act, the animals that were removed have been forfeited to the Crown. Forfeiture occurs by statute and is not subject to any further action by the Crown or CAWI. Once animals are forfeited to the Crown, they become the property of the Crown and the previous owner/custodian ceases to have any rights of ownership or possession over the animals. Subsection 63(1) of the Act provides that the CAWI is authorized by the Crown to “deal with the animal as if the [CAWI] were the owner[.]”
[10] Because the cats were forfeited to the Crown on August 18, 2023, they are no longer her property, and the issue of a stay is moot. While the Applicant submits that she served a notice of appeal within the 10-day period, and it was always clear that she intended to challenge the Decision, the Applicant did not take any of the available steps in relation to the SOA. Moreover, the Applicant was advised by Matheson J. in her direction dated August 21, 2023 that there was no automatic stay pending the outcome of a judicial review application. The Applicant did not bring her motion for stay until September 5, 2023.
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