ANIMAL CARE REVIEW BOARD

Safety, Licensing Appeals and Standards Division

cOMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX

Division de la sécurité, des appels en matière de permis et des normes

Date: 2019-05-10

Appeal under subsection 17(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36

Between:

Robert Kamstra

Appellant

and

Ontario Society for the Prevention of Cruelty to Animals

Respondent

MOTION DECISION AND ORDER

Facilitator: Laurie Sanford, Member Animal Care Review Board

Appearances:

For the Appellant: Self-represented

For the Respondent: Lynn Michaud, Senior Inspector, Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) Kamil Wierzbicki, Agent, Thunder Bay and District Humane Society (the “Humane Society”)

Held by teleconference: May 7, 2019

A. OVERVIEW

1On March 27, 2019, the Humane Society, acting on behalf of the OSPCA removed several exotic animals from the premises of Mr. Robert Kamstra and issued a notice of removal. The OSPCA also issued a compliance order regarding his dog. On April 3, 2019, that compliance order was extended and a new compliance order was issued. No further orders were issued by the OSPCA after April 3rd. On May 3, 2019, Mr. Kamstra appealed the removal of the animals and the compliance orders to the Animal Care Review Board (the “Board”). This is outside the statutory time limit for bringing an appeal.

2Mr. Kamstra requested an extension of time to bring his appeal on the grounds that the OSPCA did not advise him of his right to appeal. Mr. Kamstra asserts that the OSPCA offered to work with him to return his animals and only subsequently began imposing conditions for their return. The OSPCA did not consent to the extension of time and submitted that the Animal Care Review Board (the “Board”) does not have the jurisdiction to extend the time for bringing an appeal.

3For the reasons given below, I conclude that the Board does not have the jurisdiction to grant Mr. Kamstra the extension of time he seeks. Therefore, his appeal cannot proceed.

B. ISSUES AND ANALYSIS

4There are two issues to be determined in deciding whether or not to grant Mr. Kamstra’s request, or motion, for an extension of time to bring his appeal. First, does the Board have the jurisdiction to grant Mr. Kamstra an extension of time in which to bring his appeal? Second, if so, ought the Board to exercise its discretion in the circumstances of this case?

5On March 27, 2019, the Humane Society, acting on behalf of the OSPCA removed several exotic animals from the premises of Mr. Robert Kamstra and provided Mr. Kamstra with a notice of removal (the “Removal Order”) under section 14 of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (the “Act”). The OSPCA also provided Mr. Kamstra with a compliance order (“Compliance Order #1”) under section 13 of the Act directing Mr. Kamstra to take his dog to a veterinarian. On April 3, 2019, the OSPCA modified Compliance Order #1 by extending the compliance date to April 17, 2019. The OSPCA also issued a second compliance order (“Compliance Order #2) directing Mr. Kamstra to clean the area where several smaller animals were housed. On April 18, 2019, the OSPCA returned to inspect the premises but was denied entry. The agents left without modifying the compliance orders and without issuing any new compliance order.

6Mr. Kamstra stated that the OSPCA initially offered to work with him to have his animals returned. He alleges that the OSPCA did not advise him of his right to appeal. It was only after the passage of some time that the OSPCA began adding conditions to the return of the animals and began serving him with notices of the boarding costs for the removed animals, according the Mr. Kamstra. Mr. Kamstra also asserts that the OSPCA behaved unreasonably during visits to his premises.

7Mr. Kamstra contacted the Board on April 23rd, and was able, with difficulty, to download an appeal form. However, Mr. Kamstra was unable to successfully fax the form to the Board, despite two attempts. Mr. Kamstra again contacted the Board on May 2, 2019 and was successful in emailing an appeal form to the Board on May 3, 2019. Mr. Kamstra seeks to appeal the Removal Order, Compliance Order #1 and Compliance Order #2.

8Under subsection 17(1) of the Act, an owner of an animal that is the subject of either a removal order or a compliance order may, within five business days of receiving the order, appeal to the Board by notice in writing.

9There is no dispute that Mr. Kamstra received the Removal Order and Compliance Order #1 on March 27th. There is also no dispute that Compliance Order #1 was modified on April 3rd and Compliance Order #2 was issued on the same date. Therefore, the statutory deadline for appeal from the Removal Order was April 3, 2019 and the deadline for appeal from the Compliance Orders was April 10, 2019. Mr. Kamstra missed these deadlines in filing his appeal.

10It should be noted that, while the OSPCA may or may not have notified Mr. Kamstra orally of his right to appeal, the appeal right and how to exercise it is printed on the back of both removal orders and compliance orders.

11The Board was created by the Act. As a creature of statute, the Board has no jurisdiction to hear an appeal or grant the remedies available in the Act except in accordance with the Act and any other relevant legislation. A necessary first step for a hearing under the Act is giving the Board written notice of an appeal. The Act sets out clear time limits for giving such notice. There is nothing in the Act that grants the Board the authority to extend those time limits.

12The Statutory Powers Procedure Act, R.S.O. 1990 c. S.22 (the “SPPA”) gives the Board certain powers to control its own processes. The Board also has rules of procedure which serve the same purpose. However, neither the SPPA nor the Board’s rules of procedure can create a jurisdiction to hear and decide an appeal where one does not exist in the Act.

13Given that the Act does not grant the Board the authority to extend the time limit for bringing an appeal, I conclude that the Board lacks the jurisdiction to grant Mr. Kamstra the extension of time he seeks. As a result, his appeal cannot proceed. In light of this conclusion, it is unnecessary to consider the second issue of whether an extension ought to be granted in the circumstances of this case.

C. ORDER

14Mr. Kamstra’s motion for an extension of time to file his appeal is denied. Accordingly, his appeal cannot proceed.