Tribunals ontario Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux
Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.
Between:
Janet Biswas Appellant
and
Chief Animal Welfare Inspector Respondent
MOTION DECISION AND ORDER
Order Made By: Debra Backstein, Member
For the Appellant: Janet Biswas, Self-Represented
For the Respondent: Jason Kirsh, Counsel Kateryna Toderishena, Counsel
Motion held in writing: November 7, 2024
BACKGROUND
1This is a motion to dismiss brought by the Chief Animal Welfare Inspector (CAWI), the Respondent, in the context of an appeal of a Statement of Account (SOA), filed by Janet Biswas, the Appellant.
2On August 26, 2024, Animal Welfare Services (AWS) issued a SOA in relation to the costs of caring for 47 exotic birds (the “Birds”), which were removed from the Appellant’s residence on July 11, 2024, pursuant to s.31(1)(a) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act).
3The Appellant appealed the removal of the birds on August 12, 2024, outside of the time limits prescribed by s. 38(1)(2) of the PAWS Act, and as such the filing of the appeal of the removal was denied by the Animal Care Review Board.
4The Appellant appealed the SOA on August 30, 2024. The grounds for the appeal of the SOA were listed as:
a. The removal of the birds by AWS was unlawful because the AWS inspector did not identify themselves and their reason for attending the Appellant’s residence.
b. The removal of the birds on July 11, 2024, was unlawful because AWS chose to remove the birds under s. 31(1)(a), rather than issuing a compliance order under s.30.(1) of the PAWS Act.
c. The removal of the birds was unlawful because AWS violated s.8 of the Charter by acting unreasonably and engaging in unreasonable search and seizure.
5The remedy sought by the Appellant was that the Board declare s.31(1)(a) of the PAWS Act, of no force and effect on the basis that it violates s.24(1) and s.52 of the Charter because:
a. S.31(1)(a) of the PAWS Act does not require the reasons for seizure;
b. S.31(1)(a) of the PAWS Act does not require reasons for why a seizure is required as opposed to a “less invasive order” under s. 30(1);
c. The overreach of s.31(1)(a) of the PAWS Act cannot survive the test under s.1 of the Charter as it is not a reasonable limit.
ISSUES
6When determining whether to dismiss the appeal of the SOA, the Board must consider:
Does the Board have jurisdiction to hear the merits of the removal as part of the grounds for an appeal of a SOA?
If the Board can hear the merits of a removal as grounds for an appeal of a SOA, does the Board have jurisdiction to consider Charter issues?
If the Board has the jurisdiction to consider Charter issues, does the Board have jurisdiction to grant a general declaration of invalidity of legislation?
RESULT
7The Respondent’s motion is granted. Having received both oral and written submissions of the parties, the Board finds that it does not have jurisdiction to hear the merits of a removal as grounds for an appeal of a SOA. Given this finding, there is no need for the Board to address the Charter issues raised by the Appellant in the NOA. The Appellant’s appeal of the SOA is dismissed.
8The Appellant is the owner of the birds which she had in her home in Trenton, Ontario (the “Property”).
9AWS attended the Property and found the conditions to be unsanitary and hazardous. AWS issued a Notice of Removal (NOR) for the birds dated July 24, 2024, a Notice of Decision to Keep the Animals (DTK) in the CAWI’s care dated July 29, 2024, and a SOA dated July 24, 2024, in the amount of $27,025.05 pursuant to s.35 of the PAWS Act.
Previous Appeals
10The Appellant appealed the DTK (ACRB File Number 16131), the SOA (ACRB File Number 16132) and filed an Application for the Return of the Animals (ACRB File Number 16133).
11A case conference was held for these matters on August 15, 2024, wherein the Board was advised the SOA was to be revoked and a new SOA was to be issued.
12A hearing for the DTK and the Application for Return of the Animals commenced on September 6, 2024, and continued September 13, 2024, September 25, 2024, and September 26, 2024. The Board’s decision in relation to ACRB File Number 16131 and 16133 was released on October 21, 2024.
Appeal of the SOA
13On August 26, 2024, AWS issued a new SOA in the amount of $70,975.54, for costs incurred to relieve the birds’ distress, including care, boarding, and transport costs.
14The Appellant appealed the SOA to the Board on August 30, 2024, based on the grounds stated in paragraph [4]
Motion to Dismiss
15The parties participated in a case conference on September 11, 2024, in relation to the appeal of the SOA dated August 26, 2024 (ACRB file number 16229). At the commencement of the case conference, the Respondent, supported by the AGO in relation to the Charter issue that was raised, advised of their intention to bring a motion to dismiss the appeal on the basis that the Board does not have jurisdiction to hear the merits of a removal, as grounds for an appeal of a SOA.
16The Board ordered the case conference adjourned to October 9, 2024, to allow for the motion to be brought and responded to by the Appellant. Oral submissions would also be made at the continued case conference.
17On October 9, 2024, at the resumption of the case conference, oral submissions were provided by the Respondent. The Appellant confirmed that there were no further arguments being made beyond the removal being questioned and the Charter arguments as found in the NOA. Pending the outcome of the motion, a 1.5-day hearing was scheduled for November 19, 2024, November 20, 2024, and November 22, 2024.
Respondent’s Position
18The Respondent’s motion submissions included:
a. The PAWS Act provides for avenues of appeal for NOR, DTK and SOAs. Each of the appeals are in different subsections of the PAWS Act and each appeal has a corresponding time limit by which to file the appeal.
b. The Board does not have jurisdiction to extend the time limits for appeals. The Appellant failed to appeal the NOR within the required time limit and therefore the NOR is valid.
c. The PAWS Act does not permit late appeals to be argued and revived as part of different appeals and an attempt to do so is “an impermissible collateral attack”. This was established in the Supreme Court of Canada case, R. v. Consolidated Mayburn Mines Ltd. , 1998 CanLII 820 (SCC). This case states that a person who has failed to avail themselves of the appeal mechanisms provided by the Act in relation to an instrument, cannot later collaterally attack the validity of that instrument in a different proceeding.
d. The Appellant’s attempt to challenge the removal as part of a SOA appeal constitutes a collateral attack.
e. Collateral attacks oppose objectives of the PAWS Act and are “contrary to the principle of finality” as collateral attacks permitted outside of the prescribed appeal deadlines would mean that no decision or order could ever be considered to be final.
Appellant’s Position
19The Appellant’s submissions included:
a. Th appeal of the SOA was not an attempt to revive the removal appeal. An owner or custodian of an animal that is the subject of an order under s.31 of the PAWS Act may appeal a decision pursuant to s.38(1) of the PAWS Act, and the same remedies can apply to an appeal of a SOA as apply to an appeal of a NOR.
b. The underlying grounds that give rise to an appeal of a SOA can be shared with underlying grounds that support a NOR appeal.
c. If an appeal of a SOA is successful on the basis that the removal was unconstitutional, AWS would not be entitled to recover their fees. It would be absurd to state that because the Appellant’s Charter rights were infringed by the Respondent during the removal, that she is not entitled to a remedy because the Appellant raised the question in a different but connected appeal.
20Several other Charter arguments were made by the Appellant which will not be addressed as the Board finds that they are not relevant to this motion.
ANALYSIS
21Pursuant to s.38(2) of the PAWS Act, the Board has the power to confirm, vary or revoke a SOA. The objective of an appeal of a SOA is to assess the validity of a SOA and determine whether there is a basis to vary it.
22The Appellant’s grounds for appealing the subject SOA dated August 26, 2024, do not address varying or revoking the SOA, but instead focuse solely on the validity of the initial removal on July 11, 2024.
23The Appellant’s SOA appeal is an attempt to revisit the NOR which the Board previously determined was past the timeline for appeal.
24The Board notes that each appeal has a time limit within which an appeal can be filed. The Board does not have the ability or jurisdiction to extend filing deadlines or to consider an appeal of a NOR when the time limit has passed.
25Upon review of the case law, in particular, the Supreme Court of Canada case of R. v. Consolidated Mayburn Mines Ltd., 1998 CanLII 820 (SCC), the Board finds that the grounds on appeal for the SOA dated August 26, 2024, appear to be nothing more than a collateral attack. The Appellant missed the time limit to appeal the NOR and cannot now attempt to challenge the removal through an appeal of the SOA.
26The Board has found that collateral attacks are not permitted. As found in Kerr v. Chief Animal Welfare Inspector, 2024 ONACRB 69, the Board rejected amending a Notice of Appeal “to provide a re-hearing or collateral attack on previously disposed Board appeals”.
27The Charter issues added to the Appellant’s grounds for appeal appear to be nothing more than a red herring in these circumstances, and they do not change the fact that the basis for removal and the NOR cannot be argued in an appeal of a SOA.
28Given the Board’s finding that it cannot hear the merits of a removal as grounds for an appeal of a SOA, the issue of whether the Board has jurisdiction to consider Charter issues or whether the Board has jurisdiction to grant a general declaration of invalidity of legislation does not need to be addressed.
CONCLUSION
29The Respondent’s motion to dismiss the appeal of the SOA is granted.
ORDER
28The appeal of the SOA is dismissed.
29The hearing scheduled for November 19, 2024, November 20, 2024, and November 22, 2024, is vacated.
30As per the attached Motion Decision, file 16229/ACRB is now closed, and no further events will be scheduled.
Released: November 14, 2024
Debra Backstein Member, Animal Care Review Board