Walter Ray v. Chief Animal Welfare Inspector, 2022 ONACRB 8

Date: 2022-02-18

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Walter Ray Appellant

and

Chief Animal Welfare Inspector Respondent

MOTION DECISION

Facilitator: Susan Clarke, Member Animal Care Review Board

Appearances: For the Appellant: Robert W. Scriven, counsel, and Nicole Wozniak, observing For the Respondent: Rodney Braun, Regional Supervisor, and Inspector Daniel Pazder, Animal Welfare Services

Heard by teleconference: January 26, 2021

OVERVIEW

1This is a motion brought by the respondent, to dismiss appeals of two compliance orders, a Notice of Removal, and a Statement of Account before the Animal Care Review Board, on the basis that the Board has no jurisdiction to hear the appeals. The respondent claims that the appeals were not filed within the statutory time frame of five business days established by section 38 of the Provincial Animal Welfare Services Act, 2019 (the “Act”).

2The two compliance orders were served on the appellant, Walter Ray, on November 16, 2021 and on January 5, 2022.

3The Notice of Removal was served on the appellant on December 16, 2021.

4On January 10, 2022 a Statement of Account (the “SOA”) was served on Mr. Ray, delivered by Purolator.

5The appellant submitted a Notice of Appeal (the “NOA”) on January 17, 2021 to the Animal Care Review Board (the “Board”), appealing the SOA, the two compliance orders and the Notice of Removal.

6For the reasons given below, the respondent’s motion is granted with respect to dismissing the appeals of the two compliance orders and the removal order which were not filed in time. The motion is denied with respect to the appeal of SOA, which I find was filed in time and may proceed.

ISSUE

7The main issue is whether the appellant’s appeal is barred because he did not appeal before the expiry of the statutory five business day appeal period. This can be answered by asking the following questions:

1. Is the five-business day appeal period a procedural or jurisdictional issue?
2. When did the appeal period begin and end?
3. Was the appeal received by the Board within five business days?

QUESTION 1: IS THE FIVE BUSINESS DAY APPEAL PERIOD A PROCEDURAL OR JURISDICTIONAL ISSUE?

8The first question I must answer is whether the five-business day appeal period is a procedural or jurisdictional issue.

9Section 38(1) of the Act states that an owner or custodian of an animal may appeal the following to the Board within five business days after receiving notice of them:

1. An order from an animal welfare inspector.
2. A decision by an animal welfare inspector to remove an animal from a place.
3. A decision to take an animal into the Chief Animal Welfare Inspector’s care.

10Section 38(2) of the Act states that an owner or custodian of an animal who is served with a statement of account may apply to the Board by notice in writing to appeal the statement of account within the prescribed period after being served the statement.

11“Prescribed” is a defined term in the Act and means “prescribed by Regulations”. Ontario Regulation 444/19 Ministerial Prescriptions states in section 3 that the prescribed period of time to apply to the board for an appeal of a statement of account is five business days.

12The appellant’s position is that the appeal was filed within the statutory period of five business days established by section 38(1) of the Act.

13The respondent’s position is that the Board does not have jurisdiction to hear the merits of the appeal unless it determines that the appeal was filed within the statutory time frame of five business days established by section 38(1) of the Act.

14The respondent further argued that the appeals were not filed within the statutory time for filing an appeal, and the Board is without jurisdiction to hear the appeal or extend the time for filing the appeal, citing Weeks¹, Goloubeva², and Kamstra³.

15The respondent further argues that neither the Statutory Powers Procedure Act, nor the Board’s Rules of Procedure (the “Rules”) can create a jurisdiction to hear and decide an appeal where one does not exist in the Act, citing Kamstra⁴.

16The cases referred to in paragraphs [14] and [15] relate to the Ontario Society for the Prevention of Cruelty to Animals Act (repealed January 1, 2020; the “OSPCA”)), in force before the Provincial Animal Welfare Services Act. There is similarity in the wording of section 17 of the OSPCA with section 38(1) of the Act. These cases rely on the principle of administrative law that tribunals are creatures of statute with exclusive jurisdiction to exercise only those powers conferred upon them by the Ontario legislature. The analysis used in Goloubeva follows analysis used by the Ontario Court of Appeal in its decision Cheong v. The Minister of Finance⁵.

17I find the cases cited persuasive and accept the respondent’s position that extending the five-business day appeal period is a jurisdictional issue.

18The appeals submitted on January 17, 2022 for the compliance orders served on November 16, 2021 and January 5, 2022, and for the Notice of Removal served on December 16, 2021 were beyond the five-business day appeal period. The Board does not have jurisdiction to extend the appeal period for these appeals.

19I find the appeal submitted on January 17, 2022 of the SOA was filed within the five-business day appeal period so consideration of extending the appeal period was not required.

QUESTION 2: WHEN DID THE APPEAL PERIOD BEGIN AND END

20My ruling on the first issue does not dispose of the appeal. There is also a factual question as to when the appellant submitted his appeal of the Statement of Account.

21The question I must answer is when the appeal period began to run.

22The respondent advised that the SOA was served on January 10, 2022, and that the appellant’s NOA, filed on January 17, 2022 was not filed within the five-business day appeal period.

23The respondent submitted that the appeal period for the SOA served on January 10, 2022 expired on Friday January 14, 2022. It appears that the respondent is counting the five days as including the day the SOA was served.

24The appellant referred the Board to Rule 5.1 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission (effective October 2, 2017, amended February 7, 2019) (the “Rules”) which states “where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day”. He notes that as the SOA was served on January 10th, the first day to be counted is therefore January 11, 2022.

25Section 38(1) of the Act, and Ontario Regulation 447/19 refers to business days, and the definition in the Act is that this includes weekdays but not holidays.

26Considering all of the above, I find that the appeal period for the SOA began on January 11, 2022 and ended on January 17, 2022. The appeal therefore was received on the final day of the appeal.

QUESTION 3: WAS THE APPEAL RECEIVED WITHIN FIVE BUSINESS DAYS?

27Having answered the question of whether the appeal of the SOA was received on the last day of the appeal period, the next question is was it received on time.

28The respondent’s position is that the NOA was received as an email to the Board on January 17, 2022 after 5:00 pm (at 7:09 p.m.) and was therefore deemed not to have been received until January 18, 2022.

29The appellant’s counsel advised that the appellant and his friend Mr. Lunn faxed the NOA to the Board on January 17, 2022 at approximately 8:17 a.m. and “after repeated attempts to fax the NOA, Mr. Lunn and the appellant attempted to call the Board at or about 2:00 p.m. The Board returned their call at or about 4:30 pm” when they were advised that faxes were not being accepted because the offices were closed due to Covid, and the preferred method was to file by email as soon as possible.

30The appellant does not have a computer or scanner, so Mr. Lunn typed the NOA from the appellant’s handwritten version, and filed it by email at 7:09 p.m.

31The appellant referred the Board to Rule 6.1 of the Rules which states that faxing is an allowable method of filing documents with the Board; the website also indicates that appeals and applications can be filed by fax, and the NOA includes a fax number.

32The appellant also referred the Board to the McGreal v Chief Animal Welfare Inspector⁶ case where the adjudicator accepted an appeal after the deadline, however in this case the Regional Supervisor withdrew the issue whether the appeal had been filed on time or not.

33Rule 6.4 provides that a notice or document not submitted in accordance with the Rules is deemed to have been validly filed if the Tribunal is satisfied that its contents came to the attention of the person to whom it was intended within the required time period.

34Considering the above positions and references, I accept that the appeal was received by the Board within five business days, for the following reasons:

1. The Board had not updated its website, nor AWS its SOA form to reflect that appeals were no longer being received by fax machine. It is not the appellant’s fault that the appeal was not received before 5:00 pm on January 17, 2022, per Rule 6.5.
2. The Board was aware that the appellant was filing an appeal, on January 17, 2022 before 5:00 p.m., per Rule 6.4.
3. Rule 3.1 states that the Rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative to facilitate a fair, open and accessible process. On this basis, I vary Rule 6.5 which deems a document received after 5pm by the Board to have been received the following day, and accept a document received until 8:00 pm. I accept the submission of the appeal as having been received on the final business day of the appeal period.

ORDER

35The Motion to Dismiss the appeal of the SOA served on January 10, 2022 is denied and the appeal of the SOA may proceed.

36The Motion to Dismiss the appeal of the two compliance orders, dated November 16, 2021 and January 5, 2022 is granted.

37The Motion to Dismiss the appeal of the removal order dated December 16, 2021 is granted.

Released: February 18, 2022

_____________________________

Susan Clarke, Member

Footnotes

1. 1Jean Weeks v Ontario Society for the Prevention of Cruelty to Animals[1], 2018 ONACRB 2, at paras 7-9.
2. 2Nina Goloubeva v. Ontario Society for the Prevention of Cruelty to Animals[2], 2018 ONACRB 1, at paras 16, and 51.
3. 3Robert Kamstra v Ontario Society for the Prevention of Cruelty to Animals, 2019 ONACRB 1, at paras. 11-13
4. 4Robert Kamstra v Ontario Society for the Prevention of Cruelty to Animals, 2019 ONACRB 1, at para. 11
5. 5Cheong v. The Minister of Finance, 2004 CanLii 17750 (ONCA)
6. 62021 ONACRB 23```