Rob Robinson v. Chief Animal Welfare Inspector, 2024 CanLII 139414

Animal Care Review Board

Date: 11/12/2024

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, RSO 2019, c 13.

Between:

Rob Robinson Appellant

and

Chief Animal Welfare Inspector Respondent

MOTION DECISION AND ORDER

Adjudicators: Tassia Poynter, Member Peter Simmons, Member

For the Appellant: Rob Robinson, Self-represented For the Respondent: Tracy Lapping, Regional Supervisor, Animal Welfare Services; Jason Tam, Counsel

Heard by Videoconference: September 25 and October 3, 2024

OVERVIEW

1Rob Robinson (Appellant) appeals a keep in care decision¹ (Decision to Keep) issued by the Chief Animal Welfare Inspector (Respondent) on August 20, 2024. The Decision to Keep relates to Trinket, a 13-year-old Pomeranian dog that belonged to the Appellant. The Appellant asks that Trinket be returned to him by order of the Animal Care Review Board (Board).

2The Respondent moves to dismiss the Appellant’s appeal of the Decision to Keep on the basis that the appeal is moot because Trinket was forfeited to the Crown and the Board does not have jurisdiction to order her return to the Appellant as a remedy.

ISSUES

3In determining whether to grant or dismiss the Respondent’s motion, the Board must determine the following:

a. Does the Board have jurisdiction to return an animal to a previous owner after it has been forfeited to the Crown?

b. Is the appeal of the Decision to Keep moot? If so, should the Board exercise its discretion to hear the appeal?

RESULT

4We grant the Respondent’s motion.

5Accordingly, the Appellant’s appeal of the Decision to Keep is dismissed and will not proceed to a hearing.

BACKGROUND

6On July 26, 2024, Inspector Jeremiah Hebert of Animal Welfare Services (AWS) attended the Appellant’s property and served a Compliance Order on the Appellant in person. The Compliance Order required that the Appellant have Trinket examined by a veterinarian for body condition and general welfare with special attention to a mass on her lower abdomen. A deadline of August 13, 2024, was given for the Appellant to meet the requirements of the Compliance Order.

7On August 14, 2024, Inspector Hebert returned to the Appellant’s property to determine if the Appellant had complied with the Compliance Order and concluded that he had not. As a result, Inspector Hebert served a Notice of Removal on the Appellant in person and removed Trinket from the Appellant’s care.

8Also on August 14, 2024, Trinket was examined by a veterinarian. Based on that veterinarian’s assessment and recommendation, Trinket underwent a successful inguinal hernia surgery later the same day.

9On August 21, 2024, Regional Supervisor Tracy Lapping of AWS served the Decision to Keep on the Appellant via email. The Decision to Keep stated that Trinket would be kept in care because she required ongoing medical care and supervision following the surgery.

10On August 23, 2024, the Appellant appealed the Decision to Keep to the Board. In his appeal materials, the Appellant requested that Trinket be returned to him. The Appellant did not file a separate application for revocation of an Order or Return of an Animal under section 38(3) and/or 38(4) of the PAWS Act.

11Also on August 23, 2024, the Respondent served a Statement of Account² (SOA) on the Appellant via email requiring him to pay $3,500.62 for the costs associated with Trinket’s care.

12On September 4, 2024, the parties participated in a case conference in relation to the appeal of the Decision to Keep. The matter did not resolve and proceeded to a hearing on September 25, 2024.

13September 9, 2024 was the deadline for the Appellant to appeal the SOA to the Board, and September 16, 2024 was the deadline for the Appellant to pay the SOA. These timelines are set out under the PAWS Act and its regulations. The Appellant neither appealed nor paid the SOA by the respective statutory deadlines. As a result, Trinket was forfeited to the Crown in right of Ontario on September 16, 2024, pursuant to section 35(4)(b) of the PAWS Act.

14On September 23, 2024, the Respondent filed this motion asking the Board to dismiss the Appellant’s appeal of the Decision to Keep.

ANALYSIS

Does the Board have jurisdiction to return an animal to a previous owner after it has been forfeited to the Crown?

15For the following reasons, we find that the Board does not have jurisdiction to return an animal to a previous owner after it has been forfeited to the Crown. This means that we cannot order that Trinket be returned to the Appellant as a remedy.

16Under the PAWS Act, forfeiture of an animal to the Crown may occur automatically if the owner/custodian of an animal does not take one of two actions after being served with a SOA:

a. appeal the SOA to the Board within 10 business days, or

b. pay the SOA within 15 business days.³

17There is no dispute that the Appellant was served with a SOA on August 23, 2024, via email. There is also no dispute that the Appellant neither appealed nor paid the SOA, which led to Trinket’s forfeiture on September 16, 2024.

18We considered the Appellant’s evidence on the motion that he was unaware that forfeiture could occur unless he either appealed or paid the SOA. The Appellant testified that Inspector Hebert provided him with information on the process of appealing the Decision to Keep to the Board but that he received no further information in relation to appealing the SOA to the Board. Moreover, the Appellant testified that when the SOA was served on him via email, he had difficulty reading the document on his cellphone, which was his only means of viewing the document, and that he was unable to print the document.

19The Appellant’s evidence was that following the case conference of September 4, 2024, in relation to the appeal of the Decision to Keep, he understood the next steps would be for him to attend the hearing of his appeal of the Decision to Keep, state his case and that “everything would be put on the table” at that time. The Appellant explained that he did not realize he had to file a separate appeal with the Board in relation to the SOA. In other words, the Appellant thought that the appeal of the Decision to Keep was “global” and would resolve all issues relating to Trinket, including issues relating to the SOA.

20The Respondent submitted that it was the Appellant’s duty to take adequate steps to inform himself of his rights and that he did not do so.

21We accept that the Appellant misapprehended the scope of his appeal to the Board even though:

a. there was nothing in the Board’s Case Conference Report and Order that suggested the appeal of the Decision to Keep encompassed an appeal of the SOA, and

b. the documents that the Respondent properly served on the Appellant explicitly reference forfeiture as a consequence of failure to appeal or pay a statement of account in several places.⁴

22Even though we accept the Appellant’s explanation, it does not change our conclusion regarding the Board’s jurisdiction.

23Section 38(9) of the PAWS Act sets out what the Board can do in relation to matters that come before it.

24Forfeiture is both automatic and permanent, and the Board has no power under the PAWS Act to undo it once it occurs.⁵ Further, a previous owner/custodian of an animal ceases to have any rights of ownership or possession over the animal.⁶

25Accordingly, we conclude that the Board does not have jurisdiction to return an animal to a previous owner after it has been forfeited to the Crown.

26As a result, the Board cannot return Trinket to the Appellant as a remedy because he is no longer her owner and has no rights in relation to her.

Is the appeal of the Decision to Keep moot? If so, should the Board exercise its discretion to hear the appeal?

27For the following reasons, we find that the appeal of the Decision to Keep is moot and that the Board will not exercise its discretion to hear the appeal.

28In their submissions, the Respondent set out a two-step analysis⁷ to be applied by the Board in considering whether the appeal of the Decision to Keep is moot:

Step 1: Determine whether the required tangible and concrete dispute has disappeared, rendering the issues academic.

Step 2: Even if the first question is answered affirmatively, and the matter is moot, the [Board] then decides whether to exercise its discretion to hear a moot appeal.

Step 1: Has the required tangible and concrete dispute disappeared, rendering the issues academic?

29We accept the Respondent’s submission that the concrete dispute in this case is whether Trinket should be returned to the Appellant and that this dispute disappeared when Trinket was forfeited to the Crown and the Appellant ceased to have any rights in relation to her.

30We note that outside of the issue of whether Trinket should be returned to the Appellant, there is another issue that the Board could rule on in the appeal of the Decision to Keep. Specifically, the Board could decide:

a. Whether the Respondent had reasonable grounds to believe that keeping Trinket in their care was necessary to relieve her distress.

31In our view, this issue is now academic because the Board has no jurisdiction to return Trinket to the Appellant as a remedy and there are no other remedies available to the Appellant under the PAWS Act.

32Accordingly, we conclude that the appeal of the Decision to Keep is moot because there is no tangible and concrete dispute.

Step 2: Should the Board exercise its discretion to hear a moot appeal?

33We accept the Respondent’s submission that the Board should not exercise its discretion to hear the moot appeal of the Decision to Keep.

34The Respondent submits that the burden is on the Appellant to convince the Board to make an exception to the general practice of not hearing moot appeals.

35The Respondent further submits that the Board should consider three factors in determining whether there are “special circumstances” that would warrant the Board’s exercise of its discretion to hear the appeal of the Decision to Keep even though it is moot. They are:

a. the presence of an adversarial context;

b. the concern for judicial economy; and

c. the need for the [Board] to be sensitive to its role as the “adjudicative branch” in our political framework.

36The Respondent’s position is that there are no special circumstances that would justify the Board expending its resources to hear the appeal of the Decision to Keep. We agree.

37In respect of the presence of an adversarial context, the Respondent submits that there is no adversarial context. An adversarial context for the purpose of this analysis means that the parties continue to have an adversarial relationship even after there is no longer a live controversy between them.⁸ We agree that there is no such relationship or adversarial context between the parties in this case.

38In respect of the concern for judicial economy, the Respondent submits that there is no uncertainty in the law that would justify the Board using its resources to hear the appeal of the Decision to Keep. We agree that the language of the PAWS Act is clear regarding forfeiture and the corresponding loss of a previous owner/custodian’s rights in respect of the forfeited animal. As a result, hearing the appeal of the Decision to Keep would not affect the rights of the parties.

39In respect of the need for the Board to be sensitive to its role as the “adjudicative branch,” the Respondent made no submissions in relation to this factor and the Board does not consider it to be relevant in this case.

40Based on our consideration of the factors set out above, we conclude that there are no special circumstances that would justify the Board exercising its discretion to hear the moot appeal of the Decision to Keep and therefore we decline to do so.

CONCLUSION AND ORDER

41While we are sympathetic to the Appellant’s circumstances, we grant the Respondent’s motion to dismiss the appeal of the Decision to Keep because it is moot, and the Board has no jurisdiction to order the return of an animal to a previous owner once it has been forfeited to the Crown.

Footnotes

1. 1Notice of Decision of the Chief Animal Welfare Inspector to Keep an Animal(s) in the Chief Animal Welfare Inspector’s Care, issued pursuant to section 31(6)(a) of the Provincial Animal Welfare Services Act, 2019, RSO 2019, c 13 (PAWS Act).
2. 2The SOA is dated August 21, 2024.
3. 3PAWS Act, s 35(4); Ministerial Prescriptions, O Reg 447/19, ss 1(1), 1(2), 3.
4. 4Affidavit of Tracy Lapping sworn September 23, 2024, Exhibit B (Notice of Removal of Animal(s) dated August 14, 2024), Exhibit C (Notice of Decision to Keep dated August 20, 2024, issued August 21, 2024), Exhibit D (Statement of Account dated August 21, 2024, issued August 23, 2024).
5. 5Windrift Adventures Inc. v Ontario (Animal Care Review Board), 2024 ONCA 89 at para 9.
6. 6Guillaume v Chief Animal Welfare Inspector, 2023 ONSC 5782 at para 9.
7. 7Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353.
8. 8Ibid, at 345.