Joshua Lapointe v. Chief Animal Welfare Inspector, 2023 ONACRB 49

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

Between:

Joshua Lapointe Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

For the Appellant: Joshua Lapointe, Self-represented For the Respondent: Jason Tam, Counsel

Observers: Peter Simmons, ACRB Member Ziba Heydarian, ACRB Member

Heard By Videoconference: June 20, 2023

OVERVIEW

1Joshua Lapointe (the “appellant”) is the owner of 22 dogs Boston Terrier type dogs which were located at his Kingston residence (the “property”). The property is owned by the appellant’s father, who also lives there.

2On April 27, 2023 the appellant was assaulted, taken to hospital in Kingston, and admitted to hospital with two mandible factures. The appellant underwent surgery on April 29, 2023 for his left mandible fracture and was discharged according to the hospital discharge summary on April 30, 2023.

3After the appellant had been taken to the hospital, Animal Welfare Services (“AWS”) attended at the property in response to a phone call from one Lisa Lamonte.

4Inspector Scott Brown issued a compliance order regarding 15 dogs to the appellant’s father on April 27, 2023 at 4:12 p.m. (the “CO”).

5The CO states that it is issued to “Michael Lapointe”, 66 Connaught St., Kingston.

6The CO orders “Michael Lapointe”, to take action to relieve the distress of “15” dogs by April 28, 2023 at 11:30 a.m. as follows:

1. Provide adequate quantity of food to all dogs and obtain a supply of food in the quantity to assure all dogs will be fed in immediate future;

2. Provide clean potable water to all dogs;

3. Provide clean/sanitary space free of hazardous debris.

7On April 28, 2023 the appellant’s 22 dogs were removed by the AWS, expressly based on the failure to comply with the CO as set out in the NOR.

8Inspector E. Goettling signed a Notice of Removal to the Owner or Custodian of Animals dated April 28, 2023 at 2:09 p.m. (the “NOR”) which states that it is issued to “Joshua Lapointe Jr.” and confirms the removal of 22 dogs. Inspector E. Goettling posted the NOR on an interior door at the property.

9The NOR gives as the reason for removal of 22 dogs the failure to comply with the CO in the 19 hours and 18 minutes allowed for compliance, specifically, “Section 31(1)(c): An order issued by an inspector on April 27, 2023 at 4:12 p.m.”.

10After the appellant was discharged by the hospital post-surgery on April 30, 2023, he returned to the property and found his 22 dogs had been removed by the respondent.

11On May 4, 2023 the appellant appealed the following to the Board:

a. The April 27, 2023 CO issued to “Michael Lapointe”, concerning “15” Boston Terrier type dogs (Board file no. 14877/ACRB); and

b. The April 28, 2023 NOR issued to “Joshua Lapointe Jr.” concerning “22” Boston Terrier type dogs (Board file no. 14878/ACRB).

12The appellant’s Notice of Appeal states his grounds of appeal as follows:

“I want the board to kindly consider the fact that i was assaulted and not even aware what they had done, my father even told them (expressly stated) the fact that i was just assulted and in intensive care…. maybe inform people so they have a fair chance to respond….paying the costs of teh vets is more than fair….but to hold someone in extortion is legal liability and bad form….”

RESPONDENT’S PRE-HEARING MOTION TO DISMISS THESE APPEALS

13Prior to the hearing, the respondent brought a motion to dismiss both appeals on the basis that the Board has no jurisdiction because the appeals were filed late, specifically after the five business day deadline set out in s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “PAWS Act”).

14The respondent’s motion was heard by another Board member and denied in written reasons given in a May 25, 2023 Amended Order. The Board found that serving the CO and NOR on the appellant’s father was not proper service in accordance with the s. 68 of the PAWS Act and that the appellant was only made aware of them when he returned home on April 30, 2023.

RESPONDENT’S MOTION AT THE HEARING TO DISMISS THESE APPEALS

15The respondent brought a motion dated May 30, 2023 seeking an Order dismissing these appeals on the ground that the appeals are moot as there is no remedy available to the Board because the appellant did not file an appeal of the statement of account dated April 30, 2023 and the animals were forfeited ten business days after non-payment, specifically on May 15, 2023, under s. 35(4)(a) of the PAWS Act.

16I heard the respondent’s motion to dismiss at the beginning of the hearing.

17I note that in both the respondent’s written and oral submissions on this motion, the respondent conceded that there has been a willingness to pay expressed by the appellant.

18The appellant did not consent to this motion.

19After considering the submissions made, and the respondent’s motion materials including the May 29, 2023 affidavit of Regional Supervisor Rodney Braun, I orally denied the respondents motion with written reasons to follow. These are my reasons.

20I do not view these appeals as moot. The appellant has put in issue that he was “…not even aware what they had done and …maybe inform people so they have a fair chance to respond”. This is a procedural fairness or due process ground of appeal and continues to be a live issue between the parties. The appellant is entitled to have his appeals heard by the Board.

21Further, if it turns out that there has been a lack of procedural fairness or due process with the CO and/or the NOR that is sufficiently fundamental that the appeals should succeed, I do not accept the respondent’s submissions that the Board is unable to grant a remedy to the appellant because the appellant has not appealed subsequent processes, such as the statement of account dated April 30, 2023. It is clear that the lawfulness of the respondent’s actions is relevant in appeals before the Board.¹ Fundamental flaws in the CO and/or NOR may or may not affect the subsequent proceedings taken by the respondent. This is a determination I can only make after hearing the evidence of both parties about the CO and the NOR.

22Even if the issues in this appeal could be said to be moot, which I have found they are not because there are still live issues to be decided, specifically whether the CO and/or NOR comply with the process mandated by the legislation, the Board ought to be permitted the opportunity to interpret its home statute as Associate Chief Justice McWatt has said before.² The two cases cited by the respondent have not persuaded me otherwise. The appeals before me are not a collateral attack on the CO and/or the NOR as in R. v. Irwin, 2020 ONCA 776 as the respondent suggests. The appeals are more accurately described as a direct challenge on the CO and NOR, made properly and as of right under the PAWS Act, as the Board has already found in its May 25, 2023 Order.

23I am not prepared at this early stage in the hearing to dismiss the appellant’s appeals without allowing the appellant an opportunity to present his evidence and submissions.

RESPONDENT’S OBJECTION THAT THE APPELLANT HAS NOT DISCLOSED DOCUMENTS AND STATEMENTS OF ANTICIPATED EVIDENCE

24The respondent objected to proceeding with the hearing on June 20, 2023 because the appellant has not made disclosure of documents or given statements of anticipated evidence of his witnesses.

25The appellant indicated he had no documents other than what he sent in with his appeals and has no witnesses other than himself.

26I ruled that the hearing should proceed on June 20, 2023. I accept the appellant’s admission that he has no documentary disclosure to give to the appellant. Here, I find that a statement of anticipated evidence is not necessary from the appellant as his position is set out in his appeal documents. Further, it is appropriate to grant some procedural latitude to this self-represented appellant. This is unlikely to result in any significant prejudice to the respondent.

CLARIFICATION OF ISSUES BEFORE ME AT THE HEARING

27The Board’s May 30, 2023, Case Conference Report and Order (the “CCRO”) set out the issues for the hearing as: Firstly, should the 22 dogs removed on April 28, 2023 be returned to the appellant, and secondly, why were 22 dogs removed when the compliance order was for 15 dogs?

28The Board’s May 30, 2023, CCRO was expressly made subject to the hearing adjudicator’s discretion so it can be changed by the hearing adjudicator.

29This appeal hearing concerns the appeal of the compliance order and the NOR. The Board’s two appeal files have been consolidated.

30Prior to opening statements of either party and prior to hearing any testimony, I advised the parties that I was of the view that there should be another issue added in order to address the appeal of the compliance order because the two issues set out in the Board’s CCRO both relate to the NOR.

31In order to clarify the issues before me, I proposed to add for clarification “Should the compliance Order dated April 27, 2023 be confirmed, revoked or modified by the Board?”. I sought submissions on this from both parties, although the Board’s powers on an appeal of a compliance order are clearly set out in the PAWS Act. In the interests of procedural fairness to both parties, I raised this with them and asked for submissions on whether or not each party agreed to the addition of this issue.

32The respondent opposed the addition of this issue on the basis that the compliance order may not have been properly appealed in that perhaps “Michael Lapointe,” to whom it is addressed, should have appealed the compliance order.

33I note that “Michael Lapointe” is not a known person.

34The appellant agreed to the addition of this issue.

35After hearing and considering the submissions of both parties, for clarification, I advised both parties that I had added as an issue for the hearing “Should the compliance order dated April 27, 2023 be confirmed, revoked or modified by the Board?” and that this issue is in addition to the two issues set out in the Board’s May 26, 2023 case conference report and Order.

APPELLANT’S REQUEST FOR ACCOMODATION

36At the beginning of the hearing, the appellant attended the videoconference hearing by Zoom but indicated he did not have a working camera on his computer. The respondent consented to the appellant attending this videoconference hearing through audio only.

37Given that the appellant had filed a Request for Accommodation as part of his appeal, before opening statements were made or witnesses testified, I asked whether the appellant had any other specific requests for accommodation and he confirmed that he did not and was prepared to proceed with the appeals on June 20, 2023. The hearing proceeded.

ISSUES IN DISPUTE

38The issue in dispute in this matter are:

1. Should the compliance order dated April 27, 2023 be confirmed, revoked, or modified by the Board?

2. Should the 22 dogs removed on April 28, 2023 be returned to the appellant?

3. Why were 22 dogs removed, when the CO was for 15 dogs?

RESULT

39For the reasons that follow, I find that:

1. The compliance order dated April 27, 2023 is revoked.

2. The 22 dogs removed on April 28, 2023, plus the five puppies born to one of the 22 dogs after removal, are to be returned to the appellant.

THE LEGISLATION

Respondent’s Power to Issue a Compliance Order

40Distress is defined in s. 1(1) as “a state of being (a) in need of proper care, water, food or shelter, (b) injured, sick, in pain or suffering, or (c) abused or subject to undue physical or psychological hardship, privation or neglect”.

41Section 30(1) of the PAWS Act provides that an animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector be necessary to relieve the animal of its distress, which may include having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

42Section 30(2) requires the order to be in writing and have printed on it information about the right of appeal to the Board. Section 30(3) requires that the order shall specify the time within which any action required by the order shall be performed. Section 30(4) provides that every person who is served with an order under this section shall comply with it in accordance with its terms until it is revoked by an animal welfare inspector or the Board, or as modified by the Board under s. 30(4.1).

Respondent’s Power to Remove Animals

43Section 31(1)(c) provides that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if, among other things, an order respecting the animal has been made under s. 30 and the order has not been complied with.

44Section 31(5) provides that an animal welfare inspector who has removed an animal under section 31(1) or 31(2) shall promptly serve written notice of his or her action on the owner or custodian of the animal, if known, and on the Chief Animal Welfare Inspector.

Respondent’s Power to Supply Animal With Necessaries

45Section 33 provides that an animal welfare inspector who is lawfully in any place and finds an animal in distress may, in addition to any other action he or she is authorized to take under this Act, supply the animal with necessaries to relieve its distress.

Owner’s Right to Appeal Compliance Order and/or Notice of Removal

46Section 38 provides that an owner or custodian of an animal may appeal, among other things, an order from an animal welfare inspector and a decision by an animal welfare inspector to remove an animal from a place, subject to time limits set out in s. 38 (1) and (2). Owners or custodians may also seek other relief under s. 38 (3) and (4).

Powers of the Board After Hearing Appeal

47Section 38(9) of the Act gives this Board the authority, among other authorities, after a hearing, to:

a. Confirm, revoke or modify an order made under s. 30;

b. Order that an animal removed under s. 31(1) or (2), or that was taken into care by the Chief Animal Welfare Inspector under s. 31(6) or 44(8), be returned to the owner or custodian.

Respondent’s Power to Issue Statement of Account

48Section 35(1) of the PAWS Act provides that if an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care, the CAWI may from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of necessaries.

49Under s. 35(3) of the PAWS Act, an owner or custodian who receives a statement of account under s. 35(1) is liable for the amount specified in the statement, or as otherwise specified in an order issued by the Board under s. 38(9).

50Section 38(2) provides a right of appeal of a statement of account.

51Section 38(9)3 gives the Board authority to, among other things, confirm, revoke, or vary a statement of account served under s. 35(1).

52Under s. 35(4), if an owner appeals a statement of account and the Board varies or confirms the amount, and the appellant does not pay it within a prescribed period of 10 business days from the date of the Board’s Order, then the animal is forfeited to the Crown.

The Positions of the Parties on the CO

53The appellant appeals on the grounds that he was “…not even aware what they had done, my father even told them (expressly stated) the fact that i was just assulted and in intensive care…. maybe inform people so they have a fair chance to respond.” In summary, the appellant’s position is that he was not made aware of what the respondent was doing because he was in the hospital at the time and, not being informed, did not have a fair chance to respond.

54The respondent’s position is that the appellant has the onus to show that the CO should be revoked or modified and the appellant has not provided that evidence.

EVIDENCE AND ANALYSIS

The April 27, 2023 CO is Revoked

55I find that the CO should be revoked because it is not in compliance with the requirements of the PAWS Act for the following reasons:

56Firstly, the CO is not addressed to the owner of the dogs, the appellant Joshua Lapointe, in accordance with s. 30(1) of the PAWS Act. It is addressed to “Michael Lapointe.” There is no evidence before me that “Michael Lapointe” is the owner or custodian of the dogs.

57“Michael Lapointe” is an unknown person. The appellant testified that his father’s name is Joshua C. Lapointe. The appellant’s evidence on this point was not shaken on cross-examination by the respondent and I accept it. The appellant is in a better position to know his father’s name than the respondent.

58Secondly, the CO is not addressed to the custodian of the dogs in accordance with s. 30(1) of the PAWS Act. The Board has already found this. In her May 25, 2023 Amended Motion Decision and Order in paragraph 24, Vice-Chair Clarke found “As I have determined that the appellant’s father was not the custodian of the dogs it follows that serving the Compliance Order and the Notice of Removal on the appellant’s father was not proper service because service was not done in accordance with s. 68 of the Act.” According to the testimony of Inspector Goettling, the method of service of the NOR was by taping it to an interior door at the property when he completed the removal of the dogs. Inspector Goettling testified that he did this because the appellant’s father had left the property during the removal and he and the other inspector remained in the appellant’s home with Lisa Lamonte’s husband, Jamie Lamonte and a tenant.

59The CO is not addressed to the “owner or custodian” of the dogs. It is addressed to a “Michael Lapointe.” Inspector Brown, who signed the CO addressed to “Michael Lapointe” was not a witness at the hearing.

60The respondent’s witness was Inspector Eric Goettling. Inspector Goettling, an experienced animal welfare inspector, testified that he received a phone call from Lisa Lamonte who expressed concern for the dogs and told him that the appellant was being held in the Kingston hospital for mental health reasons. Inspector Goettling testified that he and another inspector went to the property. When he arrived at the property, Inspector Goettling noticed that an individual had just come out of the property and asked him for his name. This individual said his name was Michael Majors. After initially leaving the property, Inspector Goettling returned to the property with his colleague, spoke to Michael Majors, Lisa Lamonte, and Mr. Lapointe senior, who was identified as the appellant’s father. Inspector Goettling testified that both Ms. Lamonte and Mr. Lapointe senior identified that the appellant was the owner of the dogs and said that no one was able to take care of them.

61Given that s. 30 allows an order to be made to an “owner or custodian,” the respondent should have named the owner or custodian on the CO. Here I find that the respondent did neither.

62Thirdly, the CO was wrong in the number of animals listed by approximately 30 percent. The CO describes 15 dogs. Inspector Goettling testified that he counted 15 dogs on April 27, 2023. When he went back the next day there were 22 dogs. The appellant testified that he owns 22 dogs.

63Fourthly, the time for compliance in the CO is not reasonable. Inspector Goettling testified that 24 hours to comply with the CO would be reasonable. The CO did not give 24 hours to comply but only allowed 19 hours and 18 minutes, starting at 4:12 p.m. on April 27, 2023 and ending at 11:30 a.m. on April 28, 2023. Further, this unreasonably short period of time was imposed at a time when Inspector Goettling said he had been told that the appellant was in the Kingston hospital and was expected to be there for several days.

64Fifthly, the Board in its May 25, 2023 Order has already found that the CO was not properly served in accordance with s. 68 of the PAWS Act. Nothing in the evidence before me leads me to find that the Board’s May 25, 2023 finding is incorrect.

65Sixthly, the CO was based on an inadequate inspection conducted April 27, 2023. The CO incorrectly identities the number of dogs alleged to be in distress. No photographs of the dogs were taken on April 27, 2023 and no written notes of the inspectors were filed at the hearing. Inspector Goettling’s testimony was not corroborated by any other witness. This leaves me with insufficiently persuasive evidence that the dogs were actually in distress on April 27, 2023.

66Without some form of written evidence, photographic evidence, veterinary evidence, testimony of the second inspector present April 27, 2023, or other corroboration, I do not find the testimony of Inspector Goettling sufficient to establish that any of the dogs were in distress on April 27, 2023. According to the testimony of Inspector Goettling, the photographs submitted in evidence were taken on April 28, 2023, not taken on April 27, 2023 when the CO was issued. Inspector Goettling testified that no photographs were taken until April 28, 2023 but he said that the photographs are representative of the condition of the dogs a day earlier and that he dogs were in distress. The post-CO photographs show only two dogs, one in a crate and one in a chest. There are no photographs of food and water although Inspector Goettling testified that there was food on the property on April 28, 2003 and there had been some cleanup done.

67Seventhly, the respondent made no attempt to inform the appellant about the CO, let alone serve him with the CO even though the respondent knew he was in the hospital, and it would not have been difficult to go there or seek contact with the appellant by remote means, including telephone. Although Inspector Goettling testified that he had been told by Ms. Lamonte that the appellant was in the hospital in Kingston and was expected to be there several days, he made no effort to inform the appellant of the CO. Inspector Goettling attempted to explain this by saying that, in his experience, he would not be able to gain access to the appellant at the hospital because he was being held for mental health reasons.

68However, the discharge summary from the hospital put in evidence by the respondent shows the appellant was admitted because of his two mandible factures. The appellant underwent surgery on April 29, 2023 for his left mandible fracture. Further, the discharge summary records that although there were mental health concerns during admission at the hospital and the appellant was “formed”, this was cancelled after psychiatric assessment. Inspector Goettling, rather than try to contact the appellant or make inquiries at the hospital, chose instead to rely on what turned out to be wrong information from Ms. Lamonte.

69The cumulative effect of the errors in the CO as outlined above leads me to find that the CO is so fundamentally flawed that it is not in compliance with the PAWS Act.

70The appellant submitted that he is home at the property now and is willing and capable of caring for the dogs and I accept his submission.

71As a result, and having considered the totality of the evidence before me and all submissions made by both parties, I revoke the compliance order.

The 22 Dogs Removed on April 28, 2023 Plus the Five Puppies Born to One of the 22 Dogs Post-Removal Are Returned to the Appellant.

72Section 31(1)(c) provides that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if, among other things, an order respecting the animal has been made under s. 30 and the order has not been complied with.

73On a plain and purposive reading of s. 31, I find that the removal of an animal based on non-compliance with a CO made under s. 30 requires that the CO itself must not have been revoked. Once it has been revoked, the CO is no longer in effect and further proceedings based on it cannot be taken. Otherwise, there would be no need for the legislature to have specified the details of compliance order procedure in the PAWS Act. I have already found that the CO was not in compliance with the PAWS Act. Here, the removal was not made because of distress but because of non-compliance with the CO. It follows that this particular removal is based on a faulty CO.

74I find that 22 dogs removed on April 28, 2023, plus the five puppies born to one of the 22 dogs post-removal, are to be returned to the appellant. Based on the evidence and findings set out above, the respondent did not have the right to remove the 22 dogs described in the NOR, or the 15 dogs described in the CO on the grounds of non-compliance with the CO because the CO is a nullity and has no legal force and effect, having now been revoked.

75Similarly, the statement of account dated April 30, 2023 put in evidence before me by the respondent, even though not appealed, is of no legal effect because it seeks payment of costs incurred by the respondent for 22 dogs after removal. I note however, that Inspector Goettling testified that after the April 30, 2023 statement of account was issued, Inspector Haaima served it on a “tenant of some sort” at the property. Inspector Goettling said that he has no record of the name of the person who was served or when. Inspector Haaima did not testify.

76The NOR is states that the animals have been removed pursuant to the Act based on “Section 31(1)(c): An order issued by an inspector on April 27, 2023 @ 4:12 pm.” The April 27, 2023 at 4:12 p.m. CO is now revoked. As a result, the respondent’s submission that the dogs have been forfeited must fail. There is no longer any valid legal basis for the NOR, the April 30, 2023 account, or any other account, and no forfeiture can be based on it, nor can the respondent rely on any other proceedings it has taken since the CO such as a decision to keep in care, if one has been made, as the respondent suggested in closing submissions.

ORDER

77Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I order that the compliance order dated April 27, 2023 is revoked. I also order that the 22 dogs removed on April 28, 2023, plus the five puppies born to one of the 22 dogs after removal, are to be returned to the appellant.

Footnotes

1. 1See for example: Pryde v. CAWI, 2022 ONSC 6632 (Div. Ct.) at para 63; Steele v. CAWI, 2021 ACRB 10, paras. 137 and 141 (ONACRB).
2. 2Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board, 2022 ONSC 872 at para. 37 (Div. Crt.)