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Administrative - Onus

. 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.
. Monteiro v. CEO Financial Services Regulatory Authority

In Monteiro v. CEO Financial Services Regulatory Authority (Div Court, 2023) the Divisional Court considered pension claims by a long-term night-school teacher lacking credentials. Here the court considers who bears the evidentiary onus in an administrative procedure:
Issue No. 2: Did the Tribunal err in law in finding that the Appellant bore the legal onus of proving that he had been granted an LOP for each year in which he claimed Credits for the Services?

[44] The Appellant claims that the Tribunal improperly shifted the onus of proof of his entitlement to Credits onto him, rather than place the onus onto the CEO to disprove his entitlement. He relies on the fact that boards of education such as the TBE, were required to apply to the Minister of Education for LOPs for non-qualified teachers, not the teachers themselves. Thus, the Appellant contends that he should not have to prove that he was granted an LOP for each year that he offered unqualified teaching services. Rather, the OTPPB should have to prove the negative, that he did not receive the LOPs.

[45] That argument does not align with settled law on the point. As Macaulay, Sprague and Sossin write in Practice and Procedure Before Administrative Tribunals[15], “[t]he general rule is that whoever asserts a proposition bears the onus of proving it”. An exception may occur when “the other side … actively has done something to block the ability of the first person to satisfy the legal burden”.[16] There was no evidence before the Tribunal that TBE or any other publicly funded school board for which the Appellant provided unqualified teaching services did anything of the sort. In fact, the record demonstrates that the TDSB made three different sets of searches for the records that the Appellant sought. The TDSB described two such searches as “thorough” and another as “exhaustive”.

[46] This court affirmed Hunte v. Ontario (Superintendent of Financial Services)[17], a decision of the Tribunal that the person claiming entitlement to pension benefits has the burden of proving that entitlement on a balance of probabilities. The Tribunal wrote:
60 We do not accept these submissions. The fundamental burden of proof that an applicant has an entitlement from a pension plan is on that applicant. That burden does not shift. It is possible, of course, that if the evidence of the party bearing the ultimate burden of proof raises a prima facie case that must be answered, what is usually called "the evidentiary burden" may shift to another party in the course of a hearing. But in our view, the Applicant has failed to adduce evidence sufficiently persuasive to shift the evidentiary burden, particularly on the key issue of whether he took a Cash Refund Benefit in 1982 when he left the Plan. Accordingly, we draw no inference from Canada Life's failure to produce complete records from the 1970s and 1980s.
[47] Based on those authorities, I find that the Tribunal correctly determined that the onus rested on the Appellant to prove his pension entitlement. That onus did not shift to the CEO.


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