Saturday, January 30, 2010

In other words

Last Tuesday, the latest in what will be a long series of court battles to be waged over several months, if not years, in the OSPCA's attempt to help clean up the Toronto Humane Society was decided upon by Justice Brown. Probably many of you have already read the newspaper articles but in case you're interested, the complete text of Justice Brown's decision can be found here. I've excerpted some highlights from that decision and followed each section with my incredibly loose interpretation of what the section means in language more befitting of my pay grade (probably less than the Justice's).

[60] Section 11.1(1) of the OSPCA Act requires every person who owns or has custody or care of an animal to provide the animal with adequate and appropriate food, water, medical attention, necessary care, resting and sleeping areas, sanitary conditions, ventilation, and enclosures: Ont. Reg. 60/09, section 2(1). The materials filed before me raise serious questions as to whether the THS has been operating its animal care facility in accordance with the prescribed standards of care. Although disputes exist in the evidence about the extent, duration, and timing of such failures, the evidence certainly rises to the level of seriousness required to grant interim relief. Whether one places the evidentiary threshold at the level of mere issue to be tried, or serious question to be tried, or strong prima facie case, the applicants have met the threshold on the record before me.

Yo, THS! I smell something stinky and from here I can't tell if it's just coming off your shoes or maybe you haven't taken a bath in a month or if you slipped and fell into an eight foot deep pit of elephant dung. Whatever. I'm thinking you seriously need a clean-up and to help you with the odor-get-gone, I'm assigning you a nanny.

[69] I am disappointed that THS’ controller did not address directly in her first affidavit the evidence filed by the OSPCA that one of its major vendors of medicines had ceased shipments because of an overdue account and that Toronto Hydro was on the verge of turning off the lights because of arrears on its accounts. Ms. MacDonald’s evidence in her first affidavit on any outstanding payables was quite unhelpful:

WTF? No drugs? No juice? What kinda party is that? Lame-O party, that's what kinda party that is. And no, the carrot sticks ain't helpin.

[71] As part of its record on this motion THS filed a copy of its application to quash the search warrant. I have read that application. It disclosed that two other pieces of litigation initiated by THS are outstanding – an application for judicial review of the decision of the OSPCA to suspend THS’ affiliate status, and a defamation action against the Hamilton SPCA for statements made by the latter in a fundraising document. As a result, it appears that presently the THS is using charitable funds to pay legal fees for four pieces of litigation: (i) the defence of the present application; (ii) the defence of the criminal charges laid against its officers and the related motion to quash the search warrant; (iii) the application to restore its affiliate status with the OSPCA, and (iv) the defamation action.

Dear Donors,
Thanks for the lovely golf clubs and spa vacation in Oahu.
Your THS Legal Team

[72] Finally, the business approach taken by the THS on its appeal to the ACRB from the compliance orders greatly troubles me. The THS is a charity; it states that its only source of revenue comes from public donations. The OSPCA issued two compliance orders against THS; both were revoked within a week. THS was found to have spent a mere $231.70 to comply with those orders. Nevertheless, the THS insisted the ACRB proceed to hear its appeal, resulting in a lengthy proceeding. The legal costs incurred by the THS on that appeal were not before me. However, I find it remarkable that a charitable organization would insist on proceeding with the appeal of revoked orders, thereby incurring legal costs which one must assume were paid out of charitable donations, when the maximum financial recovery available on the appeal was a few hundred dollars. Such conduct by THS raises serious questions about the ability of its Board of Directors and senior management to assess the appropriateness of spending significant amounts of charitable donations when measured against the financial benefits achievable by the expenditures, and raises concerns about the corporation’s ability to manage its assets prudently in furtherance of its charitable purposes.

P.S. Donors, we love you. We really do.
Your THS Legal Team

[77] I conclude that the evidence raises serious questions as to whether the THS is managing its financial resources in a manner appropriate to pursuing its charitable purposes. First, the evidence contained in the record, even as supplemented by Ms. MacDonald’s affidavit filed this morning, does not provide the court with a clear statement of the current financial situation of the Society – it does not permit a comparison of recent income against liabilities nor an understanding of projected short-term cash flow. Second, in recent months THS has not kept its account with Toronto Hydro current. Third, THS exceeded a credit limit from a drug supplier. Fourth, as I noted above, Ms. MacDonald’s January 19 daily cash report raised questions about the extent to which the Society had to draw upon its line of credit, or capital, to fund its on-going operations. As noted, the Society’s investments and marketable securities have declined by about $600,000 over the past 12 months.

Post-It note on THS accountant's fridge: Pay the hydro with the Visa. Pay the drug supplier with the Mastercard. Pay the Visa and the Mastercard with the American Express. Pay the American Express with the Canadian Tire money from the donors' jar. Yeah, that should work. Can someone spot me a ten for lunch? I'm a bit short on cash.

[83] Under the present arrangement where the OSPCA has control of the animal care facilities, the animals are receiving adequate care. By contrast, it is quite unclear whether the Board or senior management have formulated a realistic plan to provide adequate care to the large number of animals present in the facility in the event the OSPCA is required to leave. I reach this conclusion because of the following paragraphs contained in Mr. Hambley’s affidavit:
19. When the OSPCA’s execution of the search warrant is completed, and the THS has the opportunity to assess its veterinary needs, it intends to continue the employment, or to hire on a full-time or contractual basis, the number of veterinarians necessary to care for the animals at the 11 River Street premises. In this regard, it will follow any recommendations made by the College of Veterinarians of Ontario, by its independent veterinary expert Dr. Dana Allen, and by its Chief Veterinarian.
20. As President, I am prepared to undertake to the Court that when the OSPCA completes its search and departs from the 11 River Street premises, the THS will hire new veterinarians or assume the contracts of the OSPCA’s contract veterinarians, if appropriate, until such time as this application can be fully argued on a full and fair record. To the extent that THS requires further veterinary support in the interim, it will continue to use the services of Beaches Veterinary Hospital and other third party veterinary clinics.

[84] As I read that evidence from Mr. Hambley, the THS has not yet assessed its veterinary needs in the event the OSPCA leaves, and it will either seek or follow future advice from experts in that regard. Its expert, Dr. Allen, is only starting his work in that regard. In sum, the Board and senior management of the THS has not yet presented an operational animal care plan or a plan that would enable the THS to regain accreditation from the College of Veterinarians of Ontario.

One word: Quit ferschrissakes.
Oops, that was more than one word.
One word: Quit now.
Shit, two words this time. Try again.
One word: THS board of directors, just quit already why dontcha and leave us alone so we can get on with properly taking care of the animals.
Really gaffed it that time. This one word thing is hard.
Alright. One more time. Last try.
One word: Quit.

[85] I cannot ignore the evidence of Ms. MacDonald from the OSPCA that its concerns about the welfare of the animals in the THS facility are “so grave” that should the OSPCA be ordered to vacate the premises, it will have no choice but to exercise its authority under the OSPCA Act and seize all of the animals under the care and control of the THS. Section 14 of that Act authorizes the Society to remove an animal from any place for the purpose of providing it with food, care or treatment or to relieve distress where certain conditions are met, including the advice by a veterinarian, who has examined the animal, that the health and well-being of the animal requires its removal.

See, the OSCPA is like the bears and the THS is like Goldilocks and as long as Goldilocks makes nice and doesn't break shit, the brat gets to stay in the bears' house but as soon as she starts having tantrums and getting into other people's porridge and skanking up their bedrooms then the bears get angry and send her off to live with her parents in Scarborough, or jail.

This analogy may make no sense now but give it time to sink in and then suddenly one day, while you're at a funeral or watching the final scene of Titanic where whatshisnuts is turning into a human popsicle, you'll burst out laughing.

[93] I order that until the hearing of the main application on February 10, 2010, or such further time as this court may direct, the OSPCA shall remain in control of that portion of the premises of the THS which are devoted to the care and treatment of animals, and I further order that no employee or director of the THS shall interfere in any way with the activities of the OSPCA in that regard.

Simon Says, Do not cross this line.

[94] In its application materials the OSPCA proposed the appointment of Mr. Bryan Tannenbaum, a Chartered Accountant with Deloitte & Touche LLP, as receiver and manager of the THS. Although such relief was not requested on this interim motion, I have not been impressed with the quality of evidence filed by the THS through the two affidavits of its controller; it posed more questions than it answered. Given the urgency of the matter and the serious questions raised by the evidence about the current financial status of the THS, I am not prepared to leave it to the charity to place before the court the evidence it chooses about its financial health. I therefore draw on the inherent jurisdiction of this court to supervise charities and section 10(1) of the CAA to appoint Mr. Bryan Tannenbaum to act as monitor of the business and financial affairs of the THS, and to inquire into and to report on the charity’s financial health,

Doesn't Tannenbaum mean Christmas tree? Well merry Christmas THS. Let's see what Christmas brings you.


Joanne said...

"Such conduct by THS raises serious questions about the ability of its Board of Directors and senior management to assess the appropriateness of spending significant amounts of charitable donations when measured against the financial benefits achievable by the expenditures, and raises concerns about the corporation’s ability to manage its assets prudently in furtherance of its charitable purposes."

Read….start packing….you are on your way out the door!!!

"I have not been impressed with the quality of evidence filed by the THS through the two affidavits of its controller; it posed more questions than it answered."

Ouch, one never wants the judge hearing your case to utter the words "I have not been impressed………" Guess the little shell game backfired this time…….

Read.....start packing….you are on your way out the door!!!

Now, if there is anyone at THS who cannot see the writing on the wall, let me make it clear….


Oops, hang on..I hear the THS process server knocking on my door......


Cathrine said...

haven't commented much on this issue, as one does not get a reliable independent perspective from half a world away. Perhaps I am naive, but I think a judge's opinion is fairly independent of whatever emotions and politics might be involved.

His Honour's comments are utterly damning. If the OSPCA is not putting together its arguments for charges of financial malfeasance and animal cruelty against the entire board before this, they certainly should be now!

And, it is clear the animals, the ones that matter, should never be returned to the care of an organisation with this history. Close it down and start afresh.

Social Mange said...

Cathrine, thank you for an objective perspective. Many of us who are close to the THS debacle are very emotional about it; it's heartening to see that someone not emotionally invested in this matter reads the judge's comments as I did.

I agree with you, the judge hearing this matter is independent of the politics and emotions. And His Honour's comments about THS's submissions are truly damning.

Cracks are appearing in the walls of Fortress THS...

Fred said...

Cathrine, this is just the tip of the iceberg. Wait 'til the rest of it comes out in future court dates.

Anonymous said...

Of course the 4 legal actions do not include the multitude of other legal proceedings, including suing the former Communications person for $1.5 million, sending threatening letters to former employees involved in the protest, labour board proceedings...

Anonymous said...

What an interesting case, it must have given the Judge a headache! Let's count:
1 Judge;
2 applicants (OSPCA and J.Mac.),
16 respondents: THS corp, and 15 Directors;
2 applicants given intervenor status: OPGT and L.Mac. for ART;
8 lawyers: 2 for board, one for Trow; one for OPGT and two for ART.

I notice a couple of things: the THS apparently got rid of it's old accountant Lee, for a new shill MacDonald who writes neat things like, from paragraph 69, "If there are isolated examples of a particular account being paid late, I believe there would be reasonable explanations for these". In other words, the THS and the Board, rather then give a full and honest accounting, making it understandable and transparent has forced the court, at the THS expense, to appoint a lawyer/accountant to compell them to do so. They will also, in all likelihood, have to pay the entire court costs and lawyers' costs.
In addition to this huge expense (think $500/hour for two weeks), there are the other litigation going on that was not mentioned: the letters threatening SLAPP suits to whistle-blowers and critics, the Bandit case; the sizeable labour relations case. And, I wonder, are these former charged employees still on the payroll? My guess would be yes, or they are kept on for a couple of months.
It looks to me like the OSPCA, with it's two lawyers at least on this case and various others, hasn't been very thorough: there is also the at least $100,000 in bank charges, at least $60,000 in fines from the WSIB (I believe). But, really, notwithstanding the aforementioned, the OSPCA don't have to be, because the THS is such a terribly mismanaged place, from top to bottom, there is so much litigation to choose from, so much frivolous and vexatious and absurd litigation, that they can miss half of it and, with the non-help of their financial disclosure, make a case for relief by the Superior Court, with no problem. As they did.

It appears as if the THS Board and management are alleged to have permitted animal cruelty, or participated in it, and obstructed justice, and permitted or did impersonate Peace Officer.

The Board should quit, the management/supervisors who were lucky enough not to be charged should quit and YIELD TO A NEW BOARD AND MANAGEMENT!