Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c 13.
Between:
Christine Hogg
Appellant
and
Chief Animal Welfare Inspector
Respondent
MOTION DECISION AND ORDER
Order Made By: Ziba Heydarian, Vice-Chair
For the Appellant: Christine Hogg, Self-represented
For the Respondent: Joanna Chan, Counsel
Heard by Videoconference: February 13, 2025
OVERVIEW
1On December 24, 2024, the Respondent Animal Welfare Services (AWS) served on the Appellant, Christine Hogg, an order (Order) relating to her female Great Dane dog named Sixx. The Order was issued pursuant to section 30(1) of the Provincial Animal Welfare Services Act, 2019, SO 2019, c 13 (PAWS Act).
2On January 9, 2024, the Appellant appealed the Order to the Animal Care Review Board (Board) under s. 38 of the PAWS Act seeking to have it revoked and requesting a return of her dog Sixx. She also did not appeal a subsequent Notice of Removal (NOR) and Statement of Account (SOA) issued to her by Animal Welfare Services (AWS).
3The Respondent moves to dismiss the Appellant’s appeal of the Order on the basis that Sixx was forfeited to the Crown on January 22, 2025, due to non-payment of the Statement of Account and therefore the appeal is moot as the Board has no remedy available to it.
BACKGROUND
4On December 23, 2024, the Appellant brought Sixx into the Niagara Veterinary Emergency Clinic (Clinic) after Sixx went into labor. The dog had complications during labor, including a torn vulva. The examining veterinarian recommended immediate surgery, but the Appellant declined and opted to take Sixx back to her home in Port Coborne, Ontario (Property).
5Thereafter, the Clinic called AWS to report the situation. On the morning of December 24, 2024, Inspector William Nunn from AWS attended the Appellant’s Property to investigate. During this visit, the Appellant advised that she could not afford surgery and would not be proceeding with the Clinic’s recommendations. Inspector Nunn proceeded to issue the Order requiring Sixx to be examined and treated by a veterinarian, with special attention to the birth complications, including tearing of the vulva. The Order also required the Appellant to provide the veterinarian documentation and treatment recommendations to AWS, all to be completed by 11:00 am that same morning.
6The Inspector followed up shortly thereafter, and around 1:52 p.m. on December 24, 2024, the Clinic called AWS staff to inform them that the Appellant could not afford the cost of the treatment that had been recommended for Sixx.
7Inspector Nunn attended the Clinic to speak with the Appellant and removed Sixx and her two puppies under section 31(1)(a) and (c) of the PAWS Act due to non-compliance with the Order and pursuant to a veterinarian certificate recommending same.
8Following removal, Sixx was given the necessary care and treatment required very promptly due to the urgency of the situation, and a Statement of Account was subsequently served on the Appellant by way of email on December 31, 2024, covering the costs of care.
9On January 9, 2025, the Appellant appealed only the Order to the Board pursuant to section 38 of the PAWS Act.
10The parties participated in a case conference on January 21, 2025, and a Case Conference Report and Order (CCRO) was released on January 28, 2025.
11January 15, 2025 was the deadline for the Appellant to appeal the SOA to the Board. If she did not appeal, then January 22, 2025 was the deadline by which she had to pay the SOA under the PAWS Act and its regulation, Ontario Regulation 447/19. The Appellant neither appealed nor paid the SOA by the respective statutory deadlines. Accordingly, on January 22, 2025, Sixx was forfeited to the Crown in right of Ontario pursuant to section 35(4)(b) of the PAWS Act.
12On January 30, 2025, the Respondent filed a motion with the Board requesting an order to dismiss the appeal of the Order, as the forfeiture meant that no further remedy would be available to the Board.
13The motion was scheduled to be heard at the commencement of the videoconference hearing on February 13, 2025.
ISSUES
14The issue on this motion is whether the Board can hear the Appellant’s appeal of the Order given that Sixx was forfeited to the Crown on January 22, 2025.
RESULT
15I grant the Respondent’s motion. The Appellant’s appeal of the Order is dismissed and will not proceed to a hearing.
IMPACT OF THE FORFEITURE ON APPEAL
16I find that the appeal of the Order is moot as Sixx was forfeited to the Crown as of January 22, 2025, and there is no further remedy available at law.
17Under the PAWS Act and its regulation, Ontario Regulation 447/19, forfeiture of an animal to the Crown may occur automatically if the owner or custodian of an animal does not take one of two actions after being served with a SOA:
a. appeal it to the Board within 10 business days, or
b. pay it within 15 business days.
18The Respondent argues, and I agree, that once an animal is forfeited to the Crown by statutory action under s. 35(4), the animal becomes property of the Crown and the Crown is authorized to deal with the animal as if they were the owner (Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782). No action is needed to finalize the process; the forfeiture occurs automatically, and the prescribed timelines, all of which have passed in this case, are not able to be waived, stayed, or amended by the Board.
19The powers of the Board are set out in section 38(9) of the PAWS Act. Under paragraph (1) of that subsection, the Board can confirm, revoke, or modify an order made under section 30. An appeal of a compliance order is a challenge of the care ordered to be provided, it is not a challenge of removal or Application to return the animal. The Appellant is not using the correct vehicle by appealing the Order. However, I considered the appeal as an implied combined Application for Return, as this was the primary request in her notice of appeal and oral submissions. That said, the Board does not have jurisdiction to order the return of the animal because Sixx has been forfeited due to non-payment of the SOA.
20Furthermore, the Respondent argued that the Board’s powers under section 38(9) are predicated on the basis that the owner or custodian still owns or has custodial rights to the removed animal. Given that Sixx was forfeited as of January 22, 2025, the Respondent argued that the Appellant no longer owns her, the Crown does, and therefore the Appellant ceases to have any further rights over the animal.
21Based on this, the Respondent requested that the Appeal of the Order be dismissed, as the Board has no jurisdiction to hear the appeal and there is no remedy available to it.
22I accept the Respondent’s argument that the remedy for the appeal of the Order is predicated on the statutory mechanism of forfeiture having not taken place. The appeal is moot and the Board’s jurisdiction is limited in this matter as no further remedies are available to it.
23In its submissions, the Respondent set out a two-step analysis to be applied by the Board when considering whether an appeal is moot (Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353):
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.
24In terms of step 1, I was convinced by the Respondent’s argument that the appeal is moot because after Sixx and her two puppies were forfeited as of January 22, 2025, any live issue or dispute expired on that date.
25Moving to step 2, the Respondent stated there were no special circumstances that would warrant hearing the appeal of the Order. The Respondent went on to argue that there is no adversarial context or uncertainty in the law about this issue, and the Board should not expend its scarce resources by hearing this moot appeal.
26While I sympathize with the difficult position that the Appellant faces, forfeiture is irreversible and therefore allowing the appeal of the Order and implied Application for Return to proceed would not lead to the relief being sought in this case. Furthermore, the Appellant provided no reason to convince me that the Board should exercise its discretion to hear the appeal and the issues are now academic because the Board has no jurisdiction to return Sixx to the Appellant as a remedy.
27The Appellant argued that she did not receive the SOA in her emails and was not aware she had to appeal it. However, she also went on to state that she was trying to come up with the money to pay the account and get her dog back. I find it hard to reconcile the Appellant’s position in this regard because according to her testimony she was aware that there was money owing.
28Furthermore, the Respondent provided evidence to show that on December 31, 2024, at 10:30 a.m., the Appellant was served with the SOA at the same email address she had provided on her Notice of Appeal for the Order. I compared the email address to ensure it matched with the email address the Board had been sending notices and correspondence to, and it did. Based on this, I was persuaded that the Appellant was properly served with the SOA by email on December 31, 2024.
29Accordingly, I conclude that the appeal is moot because there is no tangible and concrete dispute, and the remaining issues are academic.
30Overall, I find that in a matter such as this, where forfeiture occurs because of a failure to appeal or pay a SOA within the statutory deadlines, the Board does not have any further remedy available to it, so the appeal is dismissed.
ORDER
31The Respondent’s motion to dismiss is granted.
32The appeal of the Order is dismissed, and Board File No. 16627 is closed as the Board has no jurisdiction to order Sixx returned to the Appellant following forfeiture.
Released: March 10, 2025
________________________
Ziba Heydarian, Vice-Chair