Joshua LaPointe v. Chief Animal Welfare Inspector, 2025 ONACRB 117

Tribunals Ontario

Animal Care Review Board

Date: 2025-01-03

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

Between:

Joshua LaPointe Appellant

and

Chief Animal Welfare Inspector Respondent

MOTION DECISION AND ORDER

Adjudicator: Alisa Chaplick, Vice-Chair

Appearances:

For the Appellant: Joshua LaPointe, Self-Represented For the Respondent: Michael Lycett, Regional Supervisor, Central East, Animal Welfare Services (AWS) Christina Haaima, Inspector, AWS Jason Tam, Counsel

Heard by videoconference: December 12 & 13, 2024

OVERVIEW

1Joshua LaPointe (the "Appellant") was the owner of a Boston Terrier type dog named Lincoln. Lincoln was located at the Appellant's residence in Kingston, Ontario.

2On October 10, 2024, a Notice of Removal of Animal(s) ("NOR") was issued to the Appellant in relation to Lincoln pursuant to section 31(1)(c) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 ("PAWS Act"). On October 31, 2024, a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector's Care ("DTK") was issued to the Appellant in relation to Lincoln pursuant to section 31(6) of the PAWS Act.

3The Appellant appealed both the NOR (Board File Number – 16360/ACRB) and the DTK (Board File Number – 16413/ACRB) to the Animal Care Review Board ("Board"). The Appellant also made an Application for Revocation of an Order or Return of an Animal ("Application for Return") for Lincoln to the Board dated October 10, 2024 (Board File Number – 16348/ACRB). The Appellant was served with a Statement of Account ("SOA") for Lincoln on October 17, 2024 as described below.

4The Chief Animal Welfare Inspector (the "Respondent") moves to dismiss the Appellant's appeals of the NOR and DTK and to dismiss the Appellant's Application for Return (collectively "the Appeals and the Application"). The Respondent argues that Lincoln was forfeited to the Crown and the Board does not have jurisdiction to order his return to the Appellant as a remedy.

ISSUES

5In deciding 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. Are the Appeals and the Application moot? If so, should the Board exercise its discretion to hear the Appeals and the Application?

RESULT

6The Motion was held by videoconference on December 12 and 13, 2024. Following the parties' submissions, I made an oral ruling granting the Respondent's Motion on December 13, 2024, with a written Motion Decision and Order to follow. This is the written Motion Decision and Order.

7The Respondent's motion is granted and the Appeals and the Application are dismissed. These matters will not proceed to a hearing on the merits with respect to Lincoln as Lincoln has been forfeited to the Crown and the Board has no jurisdiction to return him.

BACKGROUND

8On October 10, 2024, an inspector with Animal Welfare Services ("AWS") issued an order to the Appellant (the "Order") pursuant to section 30(1) of the PAWS Act.

9The Order contained 11 items that the Appellant was required to comply with. Some items related to all the dogs the Appellant owned at that time, a total of approximately 26 additional Boston Terrier type dogs, which were also located at his residence in Kingston, Ontario. These additional dogs are not at issue in this matter.

10Item 1 of the Order related to Lincoln and required the Appellant to have Lincoln examined by a veterinarian with special attention to multiple open wounds, apparent external parasites, possible skin issues and a protruding eye by 4:00 pm on the same day.

11The Appellant took Lincoln to an animal hospital that day. The Respondent argued that the Appellant declined veterinary treatment for Lincoln, contrary to the Order.

12As noted above, on October 10, 2024, a NOR was issued to the Appellant in relation to Lincoln pursuant to section 31(1)(c) of the PAWS Act. The NOR states that the removal occurred because, pursuant to section 31(1)(c) of the PAWS Act, an Order issued by an inspector on October 10, 2024 was not complied with.

13On October 10, 2024, the Appellant appealed the NOR to the Board. On October 31, 2024, a DTK was issued to the Appellant in relation to Lincoln pursuant to section 31(6) of the PAWS Act. The DTK stated that Regional Supervisor Lycett determined that keeping Lincoln in the Respondent's care was necessary to relieve his distress. On November 4, 2024, the Appellant appealed the DTK to the Board.

14As noted above, AWS served the Appellant with a SOA for Lincoln on October 17, 2024. The SOA was for boarding and veterinary costs associated with the care of Lincoln, totaling $1,006.78.

15The Respondent moves to dismiss the Appeals and the Application. The Respondent argues that the Board does not have jurisdiction to order the return of Lincoln to the Appellant as a remedy, because Lincoln was forfeited to the Crown. Accordingly, the Respondent argues that the Appeals and the Application are moot.

ANALYSIS

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

16Typically, the Board can order the return of an animal to the owner in a successful appeal of a NOR and/or a DTK and as a remedy in an Application for Return. However, the Board does not have the jurisdiction to return an animal to a previous owner after it has been forfeited to the Crown. As Lincoln has been forfeited to the Crown, I cannot order that he be returned to the Appellant as a remedy in this matter.

17Pursuant to the PAWS Act¹, forfeiture of an animal to the Crown occurs automatically if the owner or custodian of an animal does not take one of two actions after being served with a SOA:

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

2. pay the SOA within 15 business days.²

18In this matter, the Appellant was served with a SOA for Lincoln on October 17, 2024. The Appellant neither properly appealed the SOA nor paid the SOA within the time periods mentioned above. This led to Lincoln's forfeiture to the Crown on November 7, 2024.

19The Ontario Court of Appeal has found that once an animal has been forfeited under the PAWS Act, "...[it] is not possible to make an order unwinding this development."³ In addition, the Ontario Divisional Court has found that once forfeiture occurs, the previous owner or custodian, "...ceases to have any rights of ownership or possession..."⁴ Based on reasoning of the Ontario Court of Appeal and the Ontario Divisional Court, which is binding on the Board, the Appellant no longer has any rights of ownership or possession over Lincoln.

20The Appellant's evidence was that he attempted to appeal the SOA within the requisite time period, but the appeal was not processed by the Board because of a technical error in which he forgot to attach the appeal. There is also evidence that the Appellant has attempted to submit a late filing of the appeal.

21In a decision of the Board dealing with similar issues, Robinson v. Chief Animal Welfare Inspector⁵ ("Robinson"), the Board considered arguments made by the appellant in that case regarding misunderstanding or lack of knowledge which caused that appellant to fail to appeal or pay a statement of account within the required time periods. The panel in Robinson stated that even if they accepted that appellant's arguments regarding lack of understanding and knowledge, the Board's jurisdiction is limited.

22Similarly, in the present motion, I accept the Appellant's arguments regarding his attempt to appeal the SOA; however, this does not alter my finding regarding the Board's lack of jurisdiction once an animal is forfeited to the Crown. Even if the Appellant was successful in his appeals of the NOR and/or the DTK, or in his Application for Return, the Board could not return Lincoln to the Appellant as a remedy because the Appellant is no longer the owner of Lincoln and has no rights in relation to Lincoln.

Are the Appeals and the Application moot? If so, should the Board exercise its discretion to hear the Appeals and the Application?

23For the following reasons, I find that the Appeals and the Application are moot and the Board should not exercise its discretion to hear the Appeals and the Application.

24In their submissions, the Respondent stated that to determine if a matter is moot, a decision-maker should apply the following two-step analysis set out by the Supreme Court of Canada:⁶

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 the case.

25I have considered these steps and their application to the present matter below:

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

26I accept the Respondent's submission that the concrete dispute in this case was whether Lincoln should be returned to the Appellant. I also accept the Respondent's argument that this dispute disappeared on November 7, 2024, when Lincoln was forfeited to the Crown and the Appellant ceased to have any rights in relation to him.

27I note that outside of the issue of whether Lincoln should be returned to the Appellant, there are other issues that the Board could rule on in the Appeals and the Application. Specifically, the Board could decide the following:

a) Was Lincoln in distress at the time of his removal? If so, was it necessary for AWS to remove Lincoln to alleviate his distress?;

b) Did the Respondent have reasonable grounds to believe Lincoln may be placed in distress if returned to the Appellant?; and

c) Was it necessary for Lincoln to remain in the Respondent's care to relieve his distress?

28In my view, these issues are now academic because the Board has no jurisdiction to return Lincoln to the Appellant as a remedy and there are no other remedies available to the Appellant in relation to Lincoln under the PAWS Act.

29Accordingly, the Appeals and the Application are moot because there is no tangible and concrete dispute.

Step 2: Should the Board exercise its discretion to hear the moot Appeals and Application?

30The Respondent stated that typically a decision-maker will not entertain a matter that is moot. However, under special circumstances a decision-maker may find that it is in the interests of justice to hear a moot matter. The Respondent argued that, in this instance, the Board should not exercise its discretion to hear the moot Appeals and Application. The Appellant did not make any submissions specifically on the issue of whether special circumstances exist in this case, which would warrant the Board hearing the moot Appeals and Application.⁷

31I accept the Respondent's submission that the Board should not exercise its discretion to hear the moot Appeals and Application in this case.

32The Respondent argued 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 Appeals and the Application even though they are moot. They are as follows:

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.⁸

33As noted, the Respondent's position is that there are no special circumstances that would justify the Board expending its resources to hear the Appeals and the Application in this matter. I agree with the Respondent's position on this issue. I note the Respondent's submission that, as of the date of the motion in this matter, there were 10 days set by the Board to hear all of the matters related to the Appellant's animals. In addition, I note that the hearing of these matters (16348, 16360 and 16413/ACRB) was set for 3 days. The 3-day hearing on the merits did not proceed because of my oral decision regarding lack of jurisdiction and mootness.

34I agree with the Respondent that the law is clear regarding Lincoln's forfeiture to the Crown in this case and I believe this militates against a finding that special circumstances exist which should compel the Board to hear the moot matters. The Board has limited resources and must be careful with respect to how these resources are used. Conducting a 3-day hearing on moot matters would not be an effective use of the Board's resources in this instance.

35With respect to the presence of an adversarial context, the Respondent submits that there is no adversarial context. The Appellant did not make submissions on this issue. 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.⁹ I find that there is no continuing adversarial relationship between the parties in this case. Although the Appellant has other matters before the Board, those matters do not impact this motion. There is no adversarial context remaining with respect to the Appeals and the Application that are the subject of this motion because, as noted above, Lincoln has been forfeited to the Crown.

36With respect to 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 Appeals and the Application. The Appellant did not make submissions on this issue. I find that the language of the PAWS Act and the caselaw is clear regarding forfeiture and the corresponding loss of a previous owner or custodian's rights with respect to a forfeited animal. As a result, there is no uncertainty in the law that would justify hearing the Appeals and the Application.

37The parties made no submissions regarding the need for the Board to be sensitive to its role as the "adjudicative branch" and the Board does not consider this to be a relevant factor in the present motion.

38Based on my consideration of the factors set out above, I conclude that the Board should not exercise its discretion to hear the moot Appeals and Application in this matter.

ORDER

39While I am sympathetic to the Appellant's circumstances, I grant the Respondent's motion to dismiss the Appeals and the Application because they are moot. The Board has no jurisdiction to order the return of an animal to a previous owner once it has been forfeited to the Crown. As Lincoln has been forfeited to the Crown, he cannot be returned to the Appellant.

Released: January 3, 2025

Alisa Chaplick, Vice-Chair

Footnotes

1. 1(4) 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 section 38 and fails to pay the stated amount within a prescribed period of time after being served the statement of account; or (b) the owner or custodian appealed the statement of account in accordance with section 38 but failed to pay the confirmed or varied amount within a prescribed period of time after the Board provided notice of its decision.
2. 2PAWS Act, s. 35(4); Ministerial Prescriptions, O Reg 447/19, ss. 1(1), 1(2) and 3.
3. 3Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89 at para 9.
4. 4Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782 at para. 9.
5. 5Robinson v. Chief Animal Welfare Inspector, 2024 ONACRB 16192, unreported.
6. 6Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353.
7. 7Ibid.
8. 8Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 18.
9. 9Ibid at para. 17.