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ACRB Dicta - Hearing Illustrations. Guillaume v. Chief Animal Welfare Inspector
In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court illustrates some ACRB procedures, here in three appeals from AWI actions regarding a warrantless cat search and seizure where the appellant ultimately did not participate in the technically-delayed hearing:[11] The applicant appealed the notice of removal, the decision to keep the cats in care, and the statement of account. Appeals to the Board are hearings that permit parties to call witnesses, cross-examine and present arguments, as set out in s. 38 of the Act. The three appeals were consolidated and the applicant was given information about the Board process, including how to raise preliminary issues and Charter issues.
[12] The Board hearing was scheduled for early April 2023. The Board made preliminary rulings denying the applicant’s request for a court reporter or other recording and denying her motion to adjourn. The applicant then refused to participate and left. The Chief Animal Welfare Inspector moved to dismiss the appeals as abandoned. That motion was dismissed.
[13] With respect to the Charter issues, the applicant had not provided the notice of constitutional question that was required under the Board rules. After the Applicant left the above hearing, and it was adjourned, she then provided a notice of constitutional question. The Board allowed the filing of the notice and directed that the Applicant put forward those arguments at the re-scheduled hearing.
[14] The hearing was rescheduled for two days in June – June 5 and 6. At the outset of the hearing on June 5, there were technical difficulties such that the parties were in a different virtual hearing room from the adjudicator. In the hearing before this Court, the applicant submitted that the delay in commencement of the hearing was the fault of the adjudicator, which is contrary to the record.
[15] The hearing was stood down until 11:30AM, on notice to the applicant, and a proper link to the hearing was provided. In response, the applicant emailed to say she was unavailable at that time due to “unmitigated circumstances” and asked for an adjournment. The applicant did not provide any other explanation for the adjournment request. The hearing was delayed again, to 1PM. The applicant did not appear. The adjudicator nonetheless considered the applicant’s email request for an adjournment. The adjudicator considered the interests of both sides and declined the adjournment.
[16] The applicant submits that the delay in commencement of the hearing on June 5 caused her to experience health problems and that was the reason that she did not attend later in the day. However, the applicant neither said that at the time nor did she take steps to put that reason forward after the hearing. She had the right to seek reconsideration, where health issues could have been raised, and did not seek a reconsideration. Further, the applicant did not provide any medical documentation in support of that position either to the Board or to this Court in this application.
[17] After the applicant did not attend when the hearing began later in the day, the Chief Animal Welfare Inspector made another request that the appeal be dismissed on the basis that the appellant had the burden of proof, was not present and therefore would not be calling evidence. The request to dismiss was denied and the adjudicator called on the Chief Animal Welfare to call evidence. The Chief Animal Welfare Inspector called evidence on all the issues. Detailed reasons for decision were released on August 4, 2023, dismissing the appeals.
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[20] The applicant submits that her Charter rights were breached by unlawful entries into her apartment and she therefore wants her Charter arguments decided either by the Board or this Court.
[21] As set out in the reasons for decision, the Board did not make a decision about her Charter issues because she did not attend. Under the Board’s process, it was incumbent on her to make those arguments at the hearing. In the context of this application for judicial review, her submissions amount to a challenge to the Board’s decision to deny her adjournment request on June 5 and proceed in her absence.
[22] We are not persuaded that the denial of the email request for an adjournment on June 5 was either procedurally unfair or unreasonable. As set out in the Appeal Decision, there had already been one adjournment because the applicant left the prior hearing. The applicant had proper notice of the re-scheduled hearing and was on notice she needed to pursue her constitutional arguments at the hearing. The applicant had not shown that illness was the reason for the non-attendance. The adjudicator weighed relevant factors, including prejudice to the applicant, and decided not to exercise their discretion to adjourn the hearing again.
[23] There is also no basis to interfere with the Board’s decision to proceed in the applicant’s absence. The adjudicator noted the authority to do so under s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and considered the circumstances as summarized above.
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