Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.
Between:
Waldermar Kepski
Appellant
and
Chief Animal Welfare Inspector
Respondent
ORDER
Adjudicator: Edgar-Andre Montigny, Member
For the Appellant: Did not attend.
For the Respondent: Danielle Meuleman
Heard by Teleconference: April 6, 2023
BACKGROUND
1Waldermar Kepski, (the “appellant”) was the owner/custodian of the following animals (the “animals”):
o 3 adult female livestock guardian dogs,
o 4 livestock guardian puppies,
o 5 cattle, and
o 1 Arabian Stallion.
2On February 23, 2023, Animal Welfare Services (“AWS”) removed the animals from the appellant’s property near Sudbury, Ontario, after non-compliance with several Orders issued on January 11, 2023, and February 16, 2023, by AWS pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019 1 (the “PAWS Act”).
3The appellant filed several appeals before the Animal Care Review Board (the “Board”). All but one appeal was dismissed as they were filed after the prescribed time period had expired.
4The appeal of the Removal Order is properly before the Board.
5On March 7, 2023, the appellant was served with a Statement of Account (the “SOA") issued by Animal Welfare Services on March 6, 2023.
6There is no record of a Notice of Appeal of this SOA being properly filed with the Board.
7The parties participated in a case conference heard over four sessions on March 3, March 16, March 20, and March 27, 2023.
8Despite some discussion between the parties, no resolution could be reached.
ISSUES IN DISPUTE
9The issues to be decided are:
a) Should the animals removed on February 23, 2023, be returned to the appellant?
To answer this, the following must be answered:
b) Were the animals in distress at the time of their removal on February 23, 2023? If so, was it necessary for AWS to remove the animals to alleviate their distress?
GROUNDS OF APPEAL
10In his written submissions, the appellant argues that his animals were not in distress at the time of their removal and therefore it was not necessary for AWS to remove the animals.
PRELIMINARY MATTERS
a) Absence of appellant
11The appellant did not appear when the hearing began at 1:00 p.m. on April 6, 2023.
12The Board confirmed that a Notice of Hearing was sent to the appellant on or about March 27, 2023. The Case Conference Order was sent to the parties on April 3, 2023. The appellant provided written submissions in response to the Motion to Dismiss on the date scheduled.
13The hearing was adjourned until 1:30 pm, to allow the appellant time to contact the Board. An e-mail, including the link to the hearing, was sent to the appellant by respondent’s counsel. The Registrar of the Board was notified in case the appellant tried to contact them for assistance.
14At 1:30 pm, the appellant was still absent.
15Section 7 (1) of the Statutory Powers and Procedures Act, 2 states that
7(1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceedings.
16Given the appellant had ample notice of the hearing and given the Board had the appellant’s written submissions, I decided the hearing would proceed in his absence.
17The appellant has been provided opportunities to seek legal counsel to help him pursue this matter. The case conference in this matter was adjourned 3 times. At each appearance the respondent warned the appellant that non-payment of the SOA could lead to forfeiture of the animals. At each adjournment, the appellant was urged to obtain legal advice to help him respond to the question of forfeiture. Each time the appellant confirmed that he would seek legal advice. At each appearance the parties were encouraged to speak to find a resolution to this matter.
BACKGROUND
a) No Notice of Appeal Filed
18The appellant was served with an SOA on March 7, 2023. The deadline to file a Notice of Appeal of the SOA was five business days later, as stated in s. 38 (1) of the PAWS Act, namely March 14, 2023. There is no record that the appellant filed a Notice of Appeal of the SOA within this period.
19In his written submissions to the Board on the Motion to Dismiss the appellant stated that he “was under the impression’ that once the Notice of Appeal of the removal was submitted, it would cover the SOA. He asserted that the Board should accept or deem that a Notice of Appeal of the SOA was properly filed.
20The Board has only the powers given to it by the PAWS Act. The PAWS Act provides the Board with no discretionary power to deem a Notice of Appeal as properly filed in cases where no written notice was provided.
21The Board is therefore unable to deem a Notice of Appeal of the SOA as properly filed by the appellant.
22If no Notice of Appeal is filed, the SOA must be paid within the prescribed period.
b) No Payment of SOA
23An owner has ten business days to pay an SOA. As stated in O. Reg. 447/19, 3
(1) For the purposes of clause 35(4) of the [PAWS Act], 10 business days is the prescribed period of time within which the owner or custodian must pay the stated amount.
24For the appellant, the prescribed period to pay the account ended on March 21, 2023. As of March 27, 2023, no payment had been made by the appellant. No agreement had been entered into with the appellant pursuant to s. 38(4) of the PAWS Act.
c) Forfeiture
25The respondent submitted that, as the appellant failed to pay an SOA by the prescribed deadline, the animals in question were forfeited to the Crown pursuant to s. 35(4) of the PAWS Act which states:
Subject to any agreement made under subsection (5), the animal is forfeited to the Crown if:
a) the owner or custodian does not appeal the statement of account in accordance with subsection 38(2) and fails to pay the stated amount within a prescribed period of time after receiving the statement of account.
26This forfeiture formed the basis for the respondent’s Motion to Dismiss (“Motion”).
MOTION TO DISMISS
27The Motion was heard as a preliminary issue. Both parties made written submissions on the issue prior to the hearing.
28The respondent argued that the Board should dismiss the appeal of the removal order as moot as there is no longer any remedy available to the Board.
29Pursuant to s. 38(9) the only remedy available to the Board is to:
- Order that an animal removed under subsection 31(1) or (23) or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian.
30The respondent asserted that the appellant is no longer the owner of the animals in question. it is therefore not possible for the Board to order that the animals be returned to the appellant.
31The appellant’s submissions, as noted, argued that the Board should deem a Notice of Appeal of the SOA as filed.
32The Board finds that:
It has no authority under the PAWS Act to deem an appeal filed if no written Notice of Appeal was provided to the Board within the prescribed period.
The Board has no jurisdiction or involvement in the context of the operation of s.35(4).
The Board’s jurisdiction under s. 38(9) of the PAWS Act, is limited to ordering that an animal be returned to its owner/custodian.
33The Board finds that the animals subject to the removal order currently under appeal are, pursuant to the forfeiture provisions of the PAWS Act, no longer the property of the appellant. For this reason, the Board has no jurisdiction to order these animals returned to the appellant.
34An appeal should not be dismissed without a hearing unless there is very good reason. In this case, even if the appellant could meet his evidentiary burden, the Board cannot grant the remedy he seeks.
35While the Board has no further jurisdiction to order the return of the animals in this matter, the respondent retains the discretion to negotiate with the appellant about the return of the animals.
ORDER ON MOTION TO DISMISS
36For the foregoing reasons, the respondent’s Motion to Dismiss is granted and the appeal of the removal of the appellant’s animals, ACRB file 14651, is hereby dismissed.
Released on: April 20, 2023
__________________________
Edgar-Andre Montigny, Member
Footnotes
- Provincial Animal Welfare Services Act, 2019, S.O. 2019 Chapter 13.
- Statutory Powers and Procedures Act, R.S.O. 1990 C. s. 22.
- See Ontario Regulation 447/19 under the PAWS Act.