Date: 2023-04-21

Appeals under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Parrots and Poodles Pet Palace c/o Walter Palubiski and Linda Clifford

Appellant

and

Chief Animal Welfare Inspector

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR:

Ashley Deathe, Member

APPEARANCES:

For the Appellant:

Walter Palubiski, Agent for Parrots and Poodles Pet Palace

For the Respondent:

Alanna Thompson, Counsel for Animal Welfare Services (AWS)

Jessica Fiore, Counsel AWS

Heard in writing:

April 17, 2023

BACKGROUND

1The Appellant has a total of eight appeals before the Animal Care Review Board (Board).

2The Appellant has a pet shop in Timmins, Ontario. Over the course of February and March 2023, Animal Welfare Services (AWS) removed various animals from that location, made the Decision to Keep animals in care, and issued Statements of Accounts to the Appellant. The issues on appeal are set out at paragraph 6 of the Case Conference Report and Order dated March 31, 2023.

3At the March 27, 2023 case conference, the Respondent requested that I dismiss three appeals (Board file nos. 14628/ACRB, 14643/ACRB and 14642/ACRB) on the basis that the Board has no jurisdiction because the appeals were filed after the five business day deadline set out in s. 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c.13 (the Act). The Appellant opposed the request.

4To allow the parties an opportunity to provide fulsome submissions on the Respondent’s request, I scheduled a written motion hearing to determine whether the following appeals should be dismissed.:

i. The Notice of Removal dated February 22, 2023, concerning 2 juvenile leopard geckos (14628/ACRB) (“Removal Notice”);

ii. The Decision to Keep in Care dated February 22, 2023, concerning the two adult common rates (14643/ACRB) (“Decision to Keep in Care”); and

iii. The Statement of Account dated February 23, 2023, totaling $902.80, concerning the two adult common rats (14642/ACRB) (“Statement of Account”).

RESULT

5The Respondent’s motion is granted. The appeals for Board file numbers 14628/ACRB, 14643/ACRB and 14642/ACRB are dismissed. The hearing scheduled for May 1 and 2, 2023, will proceed on the basis of the five remaining appeals (Board file nos. 14645, 14687, 14705, 14706 and 14707/ACRB).

ANALYSIS AND REASONS

The Board’s jurisdiction does not include discretion to hear late appeals

6This Board has previously considered the issue of late appeals and determined it does not have jurisdiction to hear late appeals: Nicholls v. Chief Animal Welfare Inspector, 2022 ONACRB 14411, and Ray v. Chief Animal Welfare Inspector, 2022 ONACRB 8, 2022 ONACRB 08.

7While not binding, I am persuaded by these decisions and conclude that the Board does not have jurisdiction to hear late appeals.

8Further, the Act does not grant the Board with the discretionary authority to extend the time in which a person may give notice to appeal under sections 38(1) or (2). The Board, like every administrative tribunal, derives its authority from statute. Unless the Act explicitly provides the Board with the authority to extend the time to accept incomplete filings, the Board does not have the jurisdiction to do so.

Board File No. 14628/ACRB: The appeal of the Removal Notice

9On February 22, 2023, AWS issued the Removal Notice for the 2 geckos.

10The deadline to appeal was March 1, 2023.

11The Registrar wrote to the Appellant on March 2, 2023, advising that it had received an “Intent to Appeal” the Removal Notice but that a completed Notice of Appeal needed to be filed and the date to do so was March 6, 2023: Respondent’s Book of Exhibits, Exhibit D.

12The Board received the Notice of Appeal on March 16, 2023.

Board File No. 14643/ACRB: The Appeal of the Decision to Keep in Care

13On February 22, 2023, AWS also issued the Decision to Keep in Care concerning the 2 rats. That decision arose from a removal order for these rats which is not under appeal.

14The deadline to appeal was March 1, 2023.

15The Registrar wrote to the Appellant on March 2, 2023, advising that it had received an “Intent to Appeal” the Decision to Keep in Care but that a completed Notice of Appeal needed to be filed and the date to do so was March 6, 2023: Respondent’s Book of Exhibits, Exhibit G.

16The Board received the Notice of Appeal on March 16, 2023.

Board File No. 14642/ACRB: The Statement of Account

17On February 23, 2023, AWS issued the Statement of Account totaling $902.90 regarding the care provided to 2 adult common rats and emailed that to the Appellant on the same day: Respondent’s Book of Exhibits, Exhibit I.

18The deadline to appeal was March 2, 2023.

19The Registrar wrote to the Appellant on March 2, 2023, advising that it had received an “Intent to Appeal” the Statement of Account but that a completed Notice of Appeal needed to be filed and the date to do so was March 6, 2023: Respondent’s Book of Exhibits, Exhibit K.

20The Board received the Notice of Appeal on March 16, 2023.

The three appeals were filed late

21The Respondent’s evidence is that the Appellant first wrote to the Board on March 2, 2023 indicating it intended to appeal the Removal Notice (14628/ACRB), the Decision to Keep in Care (14643/ACRB), and the Statement of Account (14642/ACRB) and that none of those messages indicating an “intention to appeal” met the statutory notice requirements for an appeal.

22The Respondent filed an email from the Registrar confirming that the Board received messages from the Appellant on March 2, 2023 regarding the intention to appeal the Removal Notice, the Keep in Care Decision, and the Statement of Account but that those messages did not include Notices of Appeal: Respondent’s Book of Exhibits, Exhibit C.

23No written submissions were provided by the Appellant to explain its position that the three appeals ought not to be dismissed.

24However, the Appellant submitted screenshots from a phone email app showing many messages were sent to the Board on February 23, 24, and 26, 2023. The titles of those messages range slightly but all are general: “Notice of appeal all orders,” “Notice of Appeal,” “Notice of Appeal 1 of 4,” Notice of Appeal order,” Notice of appeal 2 of 4,” Notice of Appeal 4 of 4b,” Notice of Appeal 4 of 4a,” “Notice of appeal continue.” It is impossible to decipher from these photographs which of these email messages relates to which appeal. Unfortunately, the Appellant did not provide the content of those messages as evidence on this motion.

25I accept that the Appellant’s photos filed on this motion show that the Appellant was attempting to start appeals of some of the decisions and orders made by AWS on various dates in February 2023. Because I do not know which emails in February relate to which appeals, I am unable to accept the screenshots over the evidence filed by the Respondent that the Registrar received the Appellant’s messages of intent to appeal the Removal Notice, the Decision to Keep in Care, and the Statement of Account on March 2, 2023.

26Because the Board has no discretion to extend the timeline for appeals, I dismiss the appeals of the Removal Notice (14628) and the Keep in Care Decision (14643) because they were not filed by March 1, 2023.

27The appeal of the Statement of Account was due on March 2, 2023. I find that the Appellant wrote to the Board indicating that it intended to appeal the Statement of Account on that date.

28The Respondent argues that a message of intent to appeal cannot meet the notice requirements set out under subsection 38(5) of the Act because it did not include the remedy sought nor the reasons for the appeal as prescribed by the Act.

29The Act proscribes the notice requirements for an appeal at subsection 38(5):

Notice requirements

(5) A notice to the Board must set out the remedy or action sought and the reasons for the appeal or application.

30The Notice of Appeal form was missing from the Appellant’s March 2, 2023 email to the Board indicating an intention to appeal the Statement of Account. The “Notice of Appeal” form is created by the Board for use by the parties in accessing its services. It informs the parties on what information is required for an appeal as required by the Act.

31The Board may liberally construe its rules to promote effective participation by the parties. But this does not mean that the Board may ignore the statutory notice requirements. There is no evidence before me that in the Appellant’s first message regarding this Statement of Account, the Appellant commented or otherwise attempted to state the remedy sought or the reasons for the appeal. In the absence of evidence, I am unable to find that the Appellant met the statutory notice requirements even without use of the Notice of Appeal.

ORDER

32The Motion to Dismiss the appeal of the Notice of Removal (14628/ACRB) is granted.

33The Motion to Dismiss the appeal of the Decision to Keep in Care (14643/ACRB) is granted.

34The Motion to Dismiss the Statement of Account (14642/ACRB) is also granted.