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SPPA - Tribunal s.25.1 Rules. 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. . Metro Toronto Housing Authority v Godwin
The Ontario Court of Appeal case of Metro Toronto Housing Authority v Godwin [also cited as Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority] (Ont CA, 2002) suggests that s.25.1 and s.25.0.1 are to be read widely to provide tribunals with broad procedural rules-making authority beyond the specific rule-making authorities otherwise set out throughout the SPPA. In Godwin the Court of Appeal endorsed the jurisdiction of the Rental Housing Tribunal to accept the evidence of 11 tenants - in a representative action involving hundreds of tenants - to stand as the evidence for the tenants' collective case, something not specifically anticipated nor allowed for in the SPPA.
While the result in Godwin turned as well on specific provisions of the Tenant Protection Act and a general procedural rule made by the Rental Housing Tribunal under that Act and the SPPA, the Court of Appeal endorsed an expansive and liberal interpretation of the procedural rule-making discretion given to an SPPA-governed tribunal:... because the SPPA applies to certain types of hearings held by the Tribunal, including a hearing of the type initiated here, the Tribunal's power over its own procedures and processes is confirmed by s. 25.0.1 of the SPPA and the rule-making authority conferred on the Tribunal under s. 164 of the [Tenant Protection] Act and s.25.1 of the SPPA. While each case of this nature will have to be considered in the context of the multiple layers of law and rules that it may exist within, the Godwin case suggests that the s.25.1 rule-making power (while it must be exercised in a manner consistent with the specific procedural rule-making authorities set out throughout the SPPA [SPPA s.25.1(3)]) will be interpreted as being otherwise unrestricted to those specific provisions.
. Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board
In Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board (Ont Div Ct, 2013) the court quashed an application by a public interest organization to judicially review a rule made under s.25.1. The applicant argued that the rule, which allowed the tribunal to allow counsel or an advocate to testify in some circumstances, was procedurally unfair. The court quashed the application on the reasoning that each case in which the rule was applied should be assessed on it's individual circumstances and merits, as procedural unfairness could not be assumed to arise in all of them.
. Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority [aka Godwin]
In Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority (Ont CA, 2002) the Court of Appeal, in a leading SPPA s.25.1 ['tribunal-made rules'] case (which holds that SPPA s.25.1 powers are to be broadly construded), held that - in an administrative context involving multiple parties - the evidence of some of them only may be adequate, and the evidence of each of them was not necessarily required (here it was multiple tenants making tenant-rights applications before a predecessor of the current (2023) LTB):[1] The issue in this case concerns the jurisdiction of the Ontario Rental Housing Tribunal (the “Tribunal”) to permit the applicants in a multi-party residential tenancy hearing under s. 32(1) cl. (6) of the Tenant Protection Act, 1997, S.O. 1997, c. 24 (the “Act”) to lead oral evidence from a group of tenants who formed a subset of a larger number of tenants claiming rent abatements from their landlord, in lieu of calling each individual tenant to testify.
I. THE FACTS
[2] In the summer of 1999, the Metropolitan Toronto Housing Authority (now known as the Toronto Community Housing Corporation) (the “Authority”) undertook repairs to the balconies and exteriors of apartments in a building in Toronto reserved as student family housing for the University of Toronto. Numerous tenants of the building alleged that the repairs resulted in disruption and inconvenience to them and interfered with the enjoyment of their rental premises. As a result, on July 20, 1999, the respondent Sarah Godwin and more than 300 other tenants (the “Tenants”) applied under the Act for a determination that the Authority, as landlord, had substantially interfered with the reasonable enjoyment of their rental units and for a consequential rent abatement. Initially, the application was signed by Ms. Godwin, through her agent, with an attached list of names and telephone and apartment numbers of the other applicants.
[3] On September 16, 1999, counsel for the Tenants informed the Tribunal that the Tenants wished to present oral evidence in support of their claims against the Authority by calling eleven tenants to testify on behalf of all of the Tenants, instead of calling each involved tenant as a witness (the “Tenants’ Proposal”). The Tenants also intended to rely upon documentary evidence, including surveys completed by approximately 160 of the Tenants. The Authority objected to the Tenants’ Proposal, alleging that the Authority would be prejudiced by it. The Authority also sought an order from the Tribunal severing the applications to require a separate hearing concerning each application and asserted that the Tribunal lacked jurisdiction to combine the applications.
[4] By interim order dated September 24, 1999, a member of the Tribunal directed that the Tenants’ applications be combined under s. 173 of the Act and that the Tenants’ Proposal could proceed. That interim order also required the Tenants to provide the Authority and the Tribunal, prior to the hearing, with written notice of: a) the names of the eleven witnesses who would be testifying at the hearing, b) a description of the facts and evidence to which the witnesses would testify, and c) a list of signatures of those tenants who wished to be parties to the application. The Authority did not seek a stay or judicial review of that interim order.
[5] Thereafter, disclosure was made by the Tenants and the Authority of their respective anticipated evidence. By letter to the Tribunal dated November 16, 1999, the Authority asserted that the eleven tenants proposed to be called as witnesses by the Tenants were not representative of all of the Tenants and argued, accordingly, that viva voce evidence would be required at the hearing from all of the Tenants.
[6] When the hearing commenced on November 19, 1999, the Authority renewed its objection to the Tenants’ Proposal on the basis that it, in effect, contemplated a representative application before the Tribunal and that the Tribunal lacked jurisdiction to permit such an application. That objection led to a further interim order by a member of the Tribunal, dated December 31, 1999 (the “Challenged Order”), by which the Tribunal ruled that it would not disallow the Tenants’ Proposal.
[7] The Authority applied for leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 to seek judicial review of the Challenged Order before a single judge of the Superior Court of Justice on an urgent basis. By order dated March 24, 2000, Justice O’Driscoll granted leave, quashed the Challenged Order on jurisdictional grounds and prohibited the Tribunal from continuing the rent abatement hearing as a “representative proceeding”. The Tribunal, with leave of this court, appeals that decision. On October 12, 2000, the Tenants settled their claims against the Authority through mediation. As a result, the hearing did not proceed. Nevertheless, they support the Tribunal on this appeal. For the reasons that follow, I would allow the appeal.
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(b) The Tribunal’s Authority Under the Statutory Powers Procedure Act
[11] By operation of s. 184(1) of the Act, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”) applies to tenant applications under s. 32(1) cl. (6).
[12] The Tribunal derives authority under the SPPA in diverse ways to determine its own procedures and to govern its own processes. Under the SPPA, in its discretion, the Tribunal may:(1) make rules of general or particular application governing the practice and procedure before it (s. 25.1);
(2) determine its own procedures and practices and, for that purpose, may “make orders with respect to the procedures and practices that apply in any particular proceeding” (s. 25.0.1(a)) and “establish rules under s. 25.1” (s. 25.0.1(b));
(3) make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes (s. 23(1));
(4) admit as evidence at a hearing any oral testimony and any document or other thing relevant to the subject-matter of the proceeding, unless such evidence is inadmissible by reason of any privilege, the Act or any other statute, and may act on such evidence and exclude anything unduly repetitious (ss. 15(1) and (2)); and
(5) make interim decisions and orders and impose conditions on such decisions or orders (ss. 16.1(1) and (2)). (c) The Tribunal’s Rules of Practice
[13] In accordance with its powers under s. 164 of the Act and s. 25.1 of the SPPA, the Tribunal has developed Rules of Practice. Rule 2.2 provides that a member of the Tribunal “may decide the procedure to be followed for an application and may make specific procedural directions or orders at any time and may impose such conditions as are appropriate and fair”. Section 2 of the SPPA requires that rules made under s. 25.1 receive a liberal interpretation to “secure the just, most expeditious and cost-effective determination of every proceeding on its merits”. (See, to similar effect, Rule 1.1 of the Tribunal’s Rules of Practice).
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[18] In addition, because the SPPA applies to certain types of hearings held by the Tribunal, including a hearing of the type initiated here, the Tribunal’s power over its own procedures and processes is confirmed by s. 25.0.1 of the SPPA and the rule-making authority conferred on the Tribunal under s. 164 of the Act and s. 25.1 of the SPPA. The Tribunal’s discretion to formulate suitable procedures and directions for the hearing of applications, including tenant applications, is also enunciated in Rule 2.2 of the Tribunal’s own Rules of Practice.
[19] The statutory framework that governs the Tribunal’s jurisdiction in connection with applications, including applications for rent abatements, argues for an expansive view of the Tribunal’s jurisdiction over the presentation of evidence before the Tribunal. In my view, a liberal interpretive approach should govern interpretation of a remedial statute such as the Act, in a manner consistent with its tenant protection focus. In addition, both s. 2 of the SPPA and Rule 1.1 of the Tribunal’s Rules of Practice contemplate that the rules of the Tribunal, including Rule 2.2, are to receive a liberal construction.
....
[31] Without approval by the Tribunal of the Tenants’ Proposal, the Tenants would have been obliged to lead viva voce evidence at the hearing from numerous, perhaps hundreds, of the Tenants. Alternatively, multiple hearings to adjudicate each tenant’s claim would have been necessary. Under either scenario, lengthy and repetitious evidence would have been required, at great cost, on many common issues. Such an impractical result, in my view, would offend s. 171 and the remedial purpose, goals and tenant protection focus of the Act as a whole. The Act seeks to avoid a multiplicity of similar proceedings. Section 15 of the SPPA empowers the Tribunal to exclude unduly repetitious evidence.
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[37] An applicant in a rent abatement hearing before the Tribunal bears the burden of demonstrating entitlement to the abatement and compliance with s. 13 of the Act where that section applies. That burden may be satisfied in a variety of ways which do not invariably require the testimony of the applicant. It may be that the failure by an applicant to testify will result in the dismissal of a claim for rent abatement. A dismissal in those circumstances, however, flows from an insufficiency of proof by the applicant of his or her claim. It does not flow automatically, or necessarily, from an election not to testify. The Authority’s interpretation of s. 13 presupposes that a claimant under s. 13 can be compelled to testify in order to permit cross-examination on the duty to mitigate losses established under s. 13. That argument, in my view, is misconceived. Stated simply, testimonial compulsion forms no part of s. 13 of the Act, whether for cross-examination or other purposes. It follows that s. 13 cannot be understood or interpreted as conferring a right of cross-examination.
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