ANIMAL CARE REVIEW BOARD
Safety, Licensing Appeals and Standards Tribunals Ontario
cOMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
An appeal made under s. 17(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.O. 1990 c. O36
Between:
Nina Goloubeva
Appellant
and
Ontario Society for the Prevention of Cruelty to Animals
Respondent
MOTION DECISION
Facilitator: Marisa Victor, Member
Animal Care Review Board
Appearances:
For the Appellant: Self-represented
For the Respondent: Connie Mallory, Chief Inspector, Ontario Society for the Prevention of Cruelty to Animals (OSPCA)
Brian Shiller, Counsel
Held by teleconference May 30, 2018 and June 5, 2018
Overview
1On May 1, 2018, the respondent, Ontario Society for Prevention of Cruelty to Animals (OSPCA), issued a Notice of Removal under s. 14(1) of the OSPCA Act (the Removal Order) removing 31, dogs, 7 puppies and 3 cats from the home of the appellant.
2The appellant seeks to appeal the Removal Order.
3A preliminary motion was brought at the case conference regarding whether the appellant had a right to continue her appeal given that her notice of appeal was received by the Animal Care Review Board (the Board) on May 24, 2018, after the five-day appeal period had expired.
4The motion arguments took place during the two case conferences held on May 30, 2018 and June 5, 2018, following which written submissions were accepted.
5I find that the appeal period is a jurisdictional issue. Further, I find that the five-day appeal period did not begin to run until May 7, 2018. As such, the time to apply for an appeal had expired when the appellant’s son began the appeal by contacting the Board on May 16, 2018.
6The motion is granted, the appeal cannot proceed.
ISSUE
7The main issue is whether the appellant’s appeal is barred because the appellant did not appeal before the expiry of the five-day appeal period. This can be answered by asking the following two questions:
a. Is the appeal period a jurisdictional issue or a procedural requirement?
b. When did the appeal period begin to run?
Issue A: The Appeal Period iS A JURISDICTIONAL ISSUE
8The first question I must answer is whether the five-day appeal period is a procedural or jurisdictional requirement.
9Section 17(1) of the Act states:
The owner or custodian of any animal who considers themselves aggrieved by an order made under subsection 13 (1) or by the removal of an animal under subsection 14 (1) may, within five business days of receiving notice of the order or removal, appeal against the order or request the return of the animal by notice in writing to the chair of the Board. (emphasis added)
10The respondents argue that the five-day appeal period is jurisdictional because s. 17(1) is a substantive condition of the appeal right and nothing in the OSPCA Act speaks to the Board’s ability to waive the appeal period.
11In the alternative, the respondents state, if the five-day appeal period is procedural, the OSCPA has not consented to an extension of the appeal period as allowed under s. 4(1) of the Statutory Powers Procedure Act (SPPA). Without that consent, the Board has no procedural ability to waive the length of the appeal period.
12To support their position, the respondents have provided one case: Viau v Ontario (Superintendent of Financial Services).1 In that case, the Ontario Financial Services Tribunal (OFST) considered whether the 15-day appeal period contained in subsection 10(4) of the Mortgage Brokerages, Lenders and Administrators Act 2006, S.O. 2006, c. 29 was a jurisdictional or procedural requirement. The language of that section states: “The person or entity may appeal the Superintendent's order to the Tribunal in writing within 15 days after the order in subsection (1) is received by the person or entity.” The language is quite similar to s.17(1) of the OSCPA Act.
13In Viau, the OFST stated the well-known principle of administrative law that Tribunals are a creature of statute with exclusive jurisdiction to exercise only those powers conferred upon it by the Ontario legislature. There is no inherent jurisdiction to conduct legal proceedings.
14In keeping with that principle, the OFST found that the express statutory right to appeal, and the time allowed for that appeal, was an issue of jurisdiction. Further, the OFST found that ss. 4(1) of the SPPA does not alter that principle. An administrative Tribunal cannot grant itself authority to conduct a proceeding where it lacks the jurisdiction to do so.
15The appellant submitted to the Board that the legislation does not account for the “human factor” and the effect the loss of her dogs will have on her. Unfortunately, I was not able to consider these arguments as they were not