Date: 2024-06-27

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

Between:

Lynn Freeman

Appellant

and

Chief Animal Welfare Inspector

Respondent

MOTION DECISION & ORDER

Adjudicator: Ashley Deathe, Member

Date of Order: June 26, 2024

For the Appellant: Lynn Freeman, self-represented

For the Respondent: Jason Kirsh, Counsel Erin MacGillivray, Articling Student

Heard in writing: May 22, 2024

OVERVIEW

1The Chief Animal Welfare Inspector (Respondent) filed a motion requesting that the Animal Care Review Board (Board) dismiss Lynn Freeman’s (Appellant), appeal of a Statement of Account dated March 6, 2024 (the “SOA appeal”), and an application to return cats that were removed from the Appellant’s care on various dates in 2023 (the “return application”).

2The grounds for the motion are that the issues raised by the SOA appeal are moot and there are no special circumstances justifying the exercise of the Board’s discretion to hear the matter and the Board has no jurisdiction to order animals, which have been forfeited, returned to a previous owner.

3For the reasons that follow, I order that the SOA appeal be dismissed because it is moot and the return application be dismissed because it is outside the jurisdiction of the Board.

PROCEDURAL BACKGROUND

4The Appellant commenced the SOA appeal and return application in accordance with subsections 38(1) and (4) of the Provincial Animal Welfare Services Act, 2019, S.O, 2019, c. 13 (PAWS Act), respectively.

5The current proceedings are the most recent adjudicative matters arising from a series of interactions between the parties that occurred in 2023. Animal Welfare Services (“AWS”) previously attended the Appellant’s property to complete inspections authorized by the PAWS Act. Those inspections led to the removal of 68 cats (“the cats”) from the Appellant’s property. Twenty additional kittens were born from some of the cats taken into the Respondent’s care, and some cats and kittens died or were euthanized after removal. To date, the Board has heard 11 appeals concerning the removals of the cats, the Respondent’s decisions to keep the cats in care, and five statements of account issued to the Appellant in 2023.

6In its previous decisions released July 19, August 14, September 11, and December 22, 2023, the Board confirmed five statements of account issued to the Appellant in respect of the care provided to cats in 2023, specifically:

1. SOA #1 issued on May 16, 2023 for 7 days of boarding costs and some veterinary costs, upheld by the Board on July 19, 2023;

2. SOA #2 issued on June 9, 2023, for additional boarding costs and veterinary costs, upheld by the Board on August 14, 2023;

3. SOA #3 issued on June 26, 2023, for 5 days of boarding and upheld by the Board on September 11, 2023;

4. SOA #4 issued on June 27, 2023, for additional boarding costs and veterinary costs, upheld by the Board on September 11, 2023; and

5. SOA #5 issued on August 4, 2023, for further boarding costs, upheld by the Board on December 22, 203.

7The statutory deadline to pay each statement of account has passed without payment. As of October 1, 2023, the statutory deadline to pay was extended from 10 to 15 days (s.35(4)(b) of the PAWS Act and Ministerial Prescriptions, O. Reg 447/19). The Respondent asserts that all the cats removed from the Appellant’s care were forfeited to the Crown on or before January 11, 2024, because of the forfeiture provision, s.35(4)(b) of the PAWS Act, being the non-payment of SOAs #1-5.

8On March 6, 2024, Inspector Rachel Falls of the AWS issued a sixth SOA (SOA #6) to the Appellant which totaled $214,194.08 in boarding and veterinary care. The invoices referred to on SOA #6 as being included in a separate attachment were not included by the in the Respondent’s motion materials. The Appendix to the SOA #6 referred to 76 adult cats and 10 kittens as follows:

9The Appellant appealed SOA #6 to the Board on March 19, 2024. On March 27, 2024, Inspector Falls sent a Notice of Revocation of SOA #6 to the Appellant which included the following statements:

10A few days later, on April 2, 2024, the Appellant filed a written application to the Board for the return of the cats identified by Appendix A of SOA #6.

11The parties participated in a Case Conference on April 4, 2024, which concerned both the appeal of SOA #6 and the return application. In the Case Conference Report and Order (CCRO), released April 9, 2024, the Board scheduled a two-day hearing to take place between May 13 and 15, 2024, and included a deadline of May 8, 2024, for filing preliminary motions. Those dates were on consent of the parties. The CCRO also reflected the Respondent’s intention to bring a motion to dismiss both the SOA appeal and the return application on the basis that SOA #6 had been revoked and the Board lacked jurisdiction over animals that had been forfeited.

12On May 8, 2024, the Respondent filed a Motion to Dismiss the appeal. The Respondent submits that the SOA appeal is moot, because it was revoked and the Board has no authority to order cats returned when those same cats have already been forfeited to the Crown by operation of s.35 of the PAWS Act due to nonpayment of a SOA, and the animals are no longer in the custody of AWS.

13I ordered the hearing dates of May 14 and 15 adjourned, scheduled a timetable for both responding and reply submissions, and set down the motion to be heard in writing on May 22, 2024.

ISSUES

14The issue on this motion is whether to dismiss the SOA appeal and the return application and there are two necessary questions to consider:

1. Is the SOA appeal moot? If so, should the Board exercise its discretion to hear the appeal?

2. Does the forfeiture of the cats remove the Board’s jurisdiction to hear a return application?

RESULT

15The Respondent’s motion is granted. The Board is persuaded to dismiss the SOA appeal because it is moot and there are no special circumstances justifying the exercise of the Board’s discretion. The Board is also persuaded to dismiss the return application because it has no jurisdiction to order the return of animals to a previous owner.

ANALYSIS

Preliminary issue: The Appellant’s request for more time to respond

16In her responding submissions filed on May 17, 2024, the Appellant indicated that she was taken by surprise by the Respondent’s motion, and that she was unable to prepare a fulsome response due to the lack of time as well as her unfamiliarity with the Rules and applicable law. She also referred to having to cancel medical appointments because of the order to adjourn the hearing and the stress of having to manage these proceeding amidst an ongoing health condition. She asserts that the Respondent’s Affiant is biased. Finally, she requests more time to respond and costs of the motion.

17The Respondent opposes the Appellant’s request for more time because the adjournment of the hearing and the motion timetable effectively provided the Appellant with three additional days to respond rather than speaking to the motion at the outset of the hearing.

18The Appellant wrote again to the Board on May 22, 2024, after the Respondent filed its reply. Those additional filings were made after the deadline for Appellant’s response. The Appellant submits that the Respondent has failed to comply with the CCRO because the Respondent filed the motion after 12 p.m. on May 8, 2024, and alleges that the Respondent’s submissions to the Board are inaccurate. The Appellant further submits that the Respondent’s involvement with her animals has caused undue suffering and that she has been unfairly burdened by the Board’s Rules and Orders. In addition, the Appellant alleges that Respondent’s Affiant has misled the Board.

19To consider these additional submissions of the Appellant risks creating an unfairness to the Respondent. However, the Appellant has raised concern that the Respondent has not complied with an earlier order of this Board and this in the context of her request for more time to respond to the motion. I have considered that specific issue raised by the Appellant in the additional submissions to the Board dated May 22, 2024.

20I have not exercised my discretion to amend the motion timetable for the following reasons:

1. The appellant has had notice of the Respondent’s position that these proceedings ought to be dismissed and on what basis, since the April 4, 2024, Case Conference;

2. The parties agreed to a two-day hearing during the period of May 13-15, 2024, and consented to a motion filing deadline of May 8, 2024;

3. The April 9, 2024, CCRO specified that the parties consented to having any motions filed with the Board in accordance with Rule 15 “on or before May 8, 2024” and did not specify a time of day;

4. The Appellant did not provide details about how the hearing adjournment or motion timetable interfered with her medical care or what extension timeline she required; and

5. It is unclear how the Board’s order to adjourn the previously scheduled 2 days of hearing and to proceed with a motion in writing would have interfered with the Appellant’s medical care such that she could not respond to the motion within the scheduled time.

21I am not persuaded to amend the motion timetable to permit additional time for submissions from the Appellant.

Has the Respondent established grounds for dismissal of the SOA Appeal and the return Application?

22The Respondent filed an Affidavit of Inspector Falls, sworn May 8, 2024, which details the issuance and revocation of SOA #6, the status of cats removed, and the ongoing financial liability for past statements of account issued to the appellant and confirmed by the Board.

23The Appellant’s position is that the evidence filed in support of this motion is misleading.

24However, other than assertions that AWS acted contrary to the actions described in this Affidavit, the Appellant has not referred to specific events or statements or documents to contradict the Affiant. I have reviewed the Affidavit in full and accept it is an accurate account of the actions of AWS. I reject the Appellant’s unsupported submissions that the Affiant has mislead the Board.

1) Is SOA #6 moot? If so, should the Board exercise its discretion to hear the appeal?

25On appeal of a SOA, s.38(9) PAWS Act prescribes that the Board may confirm, vary, or revoke the SOA. The “best” outcome for the Appellant following the appeal of a SOA is that the Board order the SOA revoked.

26Because the Respondent has already revoked SOA #6, a decision by this Board will have no legal impact on the parties’ rights. Put another way, by revoking the SOA, the Respondent is no longer seeking to recoup the costs from the Appellant which it originally claimed in SOA #6.

27The Appellant asserts that because there is no written agreement between the parties concerning the SOA #6, the revocation does not stop the Respondent from enforcing the SOA #6. She relies on explanatory information included on the Notice of Withdrawal Form 0425E (2023/09). Specifically, that Form includes the following statement: the “Order that you appealed from may be enforced against you unless you have entered into a written agreement with the Chief Animal Welfare Inspector.”

28Where an appeal is withdrawn and an order exists, enforcement of that order may continue. However, enforcement is not possible where there is no order to enforce. A written agreement between the parties is unnecessary to prevent enforcement in these circumstances.

29Because the Respondent revoked the SOA#6 on March 27, 2024, the Appellant cannot be liable to pay it and a future SOA that has not been issued yet cannot be the subject to this appeal. Therefore, I find that there is no live controversy in this SOA appeal. The matter is moot.

30The Board may exercise its discretion to adjudicate a moot issue in exceptional circumstances. The Supreme Court of Canada has set out the test for when a decision maker may hear a moot appeal: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC) (Borowski). The decision maker must consider: (a) the presence of an adversarial context; (b) the economic use of judicial resources; and (c) the respect for court’s adjudicative role.

31In this case, none of those considerations support holding a hearing of the SOA Appeal.

32While there is a history of appeals before this Board involving these same parties, those matters have been resolved at the Board level. The Appellant states there are ongoing appeals, reconsiderations, and judicial reviews but the Respondent denies that there are any such proceedings. The Appellant’s reconsideration requests have been denied (most recently on April 29, 2024) and the Respondent submits that the Appellant’s attempt to file a judicial review application was unsuccessful. A history of litigation between the parties does not persuade me that there is an adversarial context concerning this dispute of these costs that would justify the Board stepping in to adjudicate a moot appeal of a SOA.

33Judicial economy may be served where a hearing on a matter that is moot would conserve resources and avoid duplicative proceedings. For example, an exceptional legal issue or matter of public importance may favour the hearing despite there being no longer a tangible dispute affecting the parties’ rights.

34There are no exceptional legal issues or matters of public importance raised in this appeal. The concerns of judicial economy weigh in favour of not exercising discretion to hear this matter.

35The third consideration, respect for the Board’s adjudicative role, further weighs in favour of not exercising discretion to hear a moot appeal.

36Section 38(9) of the PAWS Act establishes the Board’s powers on an appeal of a SOA. It cannot go beyond the authority of the PAWS Act; where an SOA has been revoked prior to the hearing of the appeal, there is no longer a s. 35 order for the Board to consider confirming, varying or revoking.

37There is no live controversy between the parties and I am not persuaded to exercise my discretion to hear the moot appeal.

2) Does the forfeiture of the cats remove the Board’s jurisdiction of a return application?

38The return application referenced the cats identified in Appendix A of SOA #6 which included the following descriptions:

39In her Affidavit, Inspector Falls explained that all those cats have been forfeited to the Crown on the following dates:

1. August 3, 2023: AWS 1 to 40 were forfeited to the Crown because of non-payment of SOA #1.

2. September 26, 2023:

a) AWS 41 to 43, AWS 46 to 51, and AWS 55 to 59 were forfeited to the Crown because of non-payment of SOA #4; and

b) AWS 60 to 74 were forfeited to the Crown because of non-payment of SOA #3.

3. January 10, 2024: AWS 75 to 78, AWS 61(a) –(e) and AWS 72(a) – (e) were forfeited to the Crown because of non-payment of SOA #5.

40Each time a forfeiture occurred, Inspector Falls wrote to the Appellant confirming which SOA had not been paid and which cats had been forfeited.

41A summary of the forfeiture dates and the identity of the cats is set out in an “Animal Inventory” summary table included with Inspector Falls’ Affidavit. That log identifies each adult cat by AWS identification number and provides both a written description and a photograph. The kittens are listed with their mother cat and sometimes assigned a letter and sometimes a number.

42While Inspector Falls does not state whether or when this inventory log was provided to the Appellant, the Appellant adopts the AWS animal numbering as set out in Appendix A of the SOA #6. I conclude that the Appellant accepts that she was the owner of each of the cats identified by the Respondent as noted in Appendix A of SOA #6.

43All of those cats have been forfeited to the Crown on or before January 11, 2024, being months before this return application was filed with the Board. The Affiant also attests to the status of the cats as follows: “AWS has transferred ownership of all the cats and kittens to other individuals/entities and no longer has ownership or custody of any of the animals.”

44The March 27, 2024 Notice of Revocation referenced possible future liability for costs incurred for animals “still in [the Respondent’s] care” which statement appears inconsistent with the Affiant’s evidence that all the Appellant’s cats have been forfeited to the Crown and are no longer in its custody.

45Based on the evidence filed in this motion, I find that all the cats removed from the Appellant’s custody on May 10, June 15, June 21, and August 2, 2023, and identified in the return application, being the animals listed in Appendix A of SOA#6, were forfeited to the Crown on the dates set out in paragraph [39] above, by operation of s.35(4)(b) of the PAWS Act following the non-payment of SOAs by the prescribed deadline.

46On a s.38(4) application, an “owner or custodian” may apply for the return of animals and s.38(9) of the PAWS Act authorizes the Board to order animals “be returned to the owner or custodian” following a hearing.

47A person’s legal status as owner or custodian of animals changes when those animals are forfeited to the Crown. The Divisional Court held that once forfeiture occurs, “the previous owner/custodian ceases to have any rights of ownership or possession over the animals” Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782, at para.9. The legal implication of forfeiture was also considered by the Ontario Court of Appeal which declined to grant a stay of the Board’s decision upholding a SOA because it was impossible to make an order unwinding forfeiture: Windrift Adventures Inc. v. Ontario (Animal Care Review Board) 2024 ONCA 89 at para.9.

48I find that none of the cats identified in the return application were owned by the Appellant when she filed her return application because they had been forfeited to the Crown prior to the filing of that return application.

49The Board cannot prevent, stay, or reverse the operation of the forfeiture provision of the PAWS Act.

50The forfeiture of the cats removed the Board’s jurisdiction to hear a return application, the Board has no authority to order the return of any of the cats to the Appellant who, by operation of the forfeiture provision of the PAWS Act, is the previous owner/custodian of those cats.

CONCLUSION

51The Respondent’s motion to dismiss both the SOA appeal and the return application is granted:

1. The appeal of SOA #6 is moot and there are no special circumstances justifying the exercise of the Board’s discretion to hear that appeal.

2. The forfeiture of the cats removed the Board’s jurisdiction to hear the return application, there being no authority to order the cats returned to a previous owner/custodian under s.38(9) of the PAWS Act.

ORDER

52The appeal of the Statement of Account dated March 6, 2024, being the sixth SOA issued to the Appellant, and the application for the return of eighty-six (86) cats are dismissed and the hearing dates vacated.

Released: June 27, 2024

__________________________

Ashley Deathe

Member, Animal Care Review Board