Alysha McNamara v. Chief Animal Welfare Inspector, 2025 ONACRB 136

Animal Care Review Board

Date: 03/18/2025

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

Between:

Alysha McNamara Appellant

and

Chief Animal Welfare Inspector Respondent

MOTION DECISION AND ORDER

Adjudicators: Peter Simmons, Vice Chair

For the Appellant: Alysha McNamara, Self-represented For the Respondent: Hoursa Yazdi, Counsel

Heard in Writing: March 5, 2025

OVERVIEW

1The Appellant, Alysha McNamara, appeals a keep in care decision (Decision to Keep)¹ issued by the Chief Animal Welfare Inspector (CAWI) (Respondent) on January 23, 2025. The Decision to Keep relates to “Dobeey,” a Doberman Pinscher type dog that belonged to the Appellant. The Appellant asks that Dobeey be returned to her by order of the Animal Care Review Board (Board).

2The Respondent has filed a motion to dismiss the Appellant’s appeal of the Decision to Keep on the basis that the appeal is moot because Dobeey was forfeited to the Crown and the Board no longer has jurisdiction to order her return to the Appellant as a remedy.

ISSUES

3To determine 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

4I 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 January 17, 2025, Inspector Jamie Boudreau (Inspector Boudreau) of Animal Welfare Services (AWS) attended the Appellant’s property in response to a complaint. The Appellant was not home, and Inspector Boudreau posted a “While You Were Out” (WYWO) notice and tape sealed the door.

7On January 18, 2025, AWS Senior Investigator Rene Baker (SI Baker) attended the Appellant’s property with Kingston Police Service. The tape door seals and WYWO notice were intact. SI Baker entered the property and found Dobeey to be in critical distress, observing no available water, an unsanitary environment, torn bedding, and an absent owner. SI Baker removed Dobeey pursuant to s. 31(1)(b)(1) of the Provincial Animal Welfare Services Act, 2019 (PAWS Act). A Notice of Removal (NOR) was left at the property.

8On January 20, 2025, Inspector Boudreau prepared a Statement of Account (SOA) pursuant to s. 35(1) of the PAWS Act in the amount of $186.45 for necessaries provided to Dobeey since his removal. The SOA was issued to the Appellant the same day.

9On January 23, 2025, pursuant to s. 31(6) of the PAWS Act, a Decision to Keep was issued by AWS Regional Supervisor Joshua Matson for Dobeey because he believed that Dobeey would be at risk of distress if returned to the Appellant.

10February 4, 2025, was the deadline for the Appellant to appeal the SOA to the Board. If she did not appeal the deadline for the Appellant to pay the SOA was February 11, 2025. These timelines are set out in a regulation under the PAWS Act.²

11On February 11, 2025, the Appellant appealed the Decision to Keep to the Board. In her appeal materials, the Appellant requested that Dobeey be returned to her.

12The Appellant neither appealed nor paid the SOA by the respective statutory deadlines. As a result, Dobeey forfeited to the Crown in right of Ontario pursuant to section 35(4)(a) of the PAWS Act on February 11, 2025.

13On February 24, 2025, the parties participated in a case conference in relation to the appeal of the Decision to Keep. At the case conference, the Respondent raised the issue of mootness in relation to the Appellant’s Decision to Keep appeal due to forfeiture. The parties consented to the Board hearing the Respondent’s Motion to Dismiss in writing on March 5, 2025. Also on February 24, 2025, the Respondent filed its motion asking the Board to dismiss the Appellant’s appeal of the Decision to Keep.³

ANALYSIS

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

14For the reasons that follow, I 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 the Board cannot order Dobeey to be returned to the Appellant as a remedy if she were successful on her appeal of the Decision to Keep.

15Under the PAWS Act, forfeiture of an animal to the Crown occurs 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.⁴

16There is no dispute that a SOA was prepared and served on the Appellant on January 20, 2025.

17I have considered the Appellant’s written submissions and evidence on the motion that she did not understand that forfeiture was a possibility if she failed to pay or appeal the SOA. In her submissions, she confirms that she received the SOA on January 20, 2025, and had conversations with AWS on the same day. She also indicated that she believed she filed an SOA appeal on February 5, 2025, but admits to possibly using the wrong form for the appeal. She provided no evidence that shows she appealed or paid the SOA. I also note that the Appellant indicated in her written submissions that she did not check her mail routinely during the period of her appeal process.

18The Appellant’s evidence includes several letters and emails from acquaintances. While this evidence attests to the Appellant’s character and otherwise unremarkable relationship with Dobeey, they provide no mention or indication of any attempt by the Appellant to appeal or pay the SOA that would refute the Respondent’s position.

19The Respondent submitted that page 1 of the SOA issued to the Appellant states that she had a right to “appeal the SOA to the Board within ten (10) business days of receiving the SOA” and that the animal “will be forfeited to the Crown if you fail to pay the total specified above ($186.45) within fifteen (15) business days of receiving this SOA.”

20The Respondent’s evidence shows that AWS properly served on the Appellant the SOA that explicitly states that forfeiture is a consequence of failure to appeal and/or pay a statement of account.

21The Respondent submits in their evidence that the Appellant did not appeal the SOA within the prescribed timeline, and even as late as February 19, 2025, which is the date when their submissions for this motion for dismissal were prepared, the entire balance of $186.45 was still owing.

22The Respondent also submitted that even if the Appellant could meet her evidentiary burden on the related Decision to Keep appeal, the Board cannot grant the remedy she seeks because forfeiture effectively changed the ownership, as was the case in Rock v CAWI 2024 ONACRB 66 that the Respondent submitted as a relevant case.

23I do not have any submissions from either party to indicate the SOA was discussed at the case conference of February 24, 2025, and therefore cannot make any findings or inferences in that regard.

24I accept that the Appellant misunderstood the dates and/or the potential effect of failing to pay or appeal the SOA to the Board and am persuaded by her submissions that she did not check her mail with any regularity and may have used the wrong form(s). These, along with her providing no evidence of an appeal of the SOA or correspondence between herself and the Board concerning the SOA up to and including February 11, 2025, which was the last date to make payment provide an explanation why the SOA was neither appealed nor paid.

25Even though I accept the Appellant’s explanations about not checking her mail and potentially using an incorrect form as reasons for why she was unable to file an SOA appeal, it does not change my conclusion regarding the Board’s jurisdiction.

26Forfeiture is both automatic and permanent, and the Board has no power under the PAWS Act to reverse or undo it once it occurs.⁵ A previous owner/custodian of an animal ceases to have any rights of ownership or possession over the animal once forfeited to the Crown.⁶

27Accordingly, I conclude that the Board does not have jurisdiction to return an animal to a previous owner, after it has been forfeited to the Crown.

28As a result, the Board cannot return Dobeey to the Appellant as a remedy if she were successful on her appeal of the Decision to Keep because she is no longer his owner, and she no longer has rights in relation to him.

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

29For the reasons that follow, I find that the appeal of the Decision to Keep is moot and the Board will not exercise its discretion to hear the appeal.

30In their submissions, the Respondent set out an argument that the appeal of the Decision to Keep is moot as there is no remedy available to the Board. The Appellant failed to appeal or pay the SOA within the prescribed periods in the Ontario Regulations.

31To support their argument the Respondent cited several past Board decisions including Guillaume v CAWI, 2023 ONSC 5782 (para 10) where a motion was rendered moot due to forfeiture.⁷

32The Respondent further submitted that once forfeiture has occurred, the owner of the animal is the Crown. Accordingly, this means the previous owner ceases to have any rights of ownership or possession of the animal, and the CAWI is then authorized to deal with the animal as if it were the owner.

33To determine if the matter is moot, I applied a two-step analysis⁸:

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

34I accept the Respondent’s submission that the dispute in this matter is whether Dobeey can be returned to the Appellant and that the dispute no longer existed once Dobeey was forfeited to the Crown, and the Appellant ceased to have any rights in relation to him.

35In my view, this issue is now academic because the Board has no jurisdiction to return Dobeey to the Appellant as a remedy, and there are no other remedies available to the Appellant under the PAWS Act. Accordingly, there is no tangible and concrete dispute and as a result the matter is no longer live. I conclude, therefore, that the appeal of the Decision to Keep is moot.

Step 2: If the first question is in the affirmative, and the matter is moot, should the Board decide to exercise its discretion to hear a moot appeal?

36I am persuaded by the Respondent’s submissions that the Board should not exercise its discretion to hear the moot appeal of the Decision to Keep because the Board has consistently dismissed appeals and reconsideration requests of animal removals and decisions to keep as moot under similar circumstances, especially when the animal(s) have been forfeited.⁹

37I also accept the Respondent’s submission that even if the Appellant could meet her evidentiary burden on the Decision to Keep appeal, the Board cannot grant the remedy she seeks, as was the case in Rock v CAWI, 2024 ONACRB 66.

38The Appellant made no submissions on the issue of mootness.

Special circumstances to hear a moot appeal

39I have also considered the following three factors in determining whether there are “special circumstances” that would warrant the Board’s exercising 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.

40There is no adversarial context in the present case. This matter has been found to be moot and as a result is no longer live. There is therefore no adversarial relationship between the parties.

41In respect of the concern for judicial economy, neither party identified nor raised special circumstances that would justify the Board expending its limited resources to hear the appeal of the Decision to Keep. I am not bound by past Board decisions, however, the Respondent’s submissions as set out in paragraphs [37] and [38] were persuasive and do not then support the use of Board resources to hear this matter. Moreover, the language of the PAWS Act is clear regarding forfeiture, as is the corresponding loss of a previous owner/custodian’s rights in respect of the forfeited animal.

42Regarding the need for the Board to be sensitive to its role as the “adjudicative branch,” there were no submissions from either party in relation to this factor. I note that the Board’s role is not to intrude on statutory mechanisms, but to resolve disputes and adjudicate live issues. A moot appeal does not allow me to exercise the powers of the Board under s. 38(9) of the PAWS Act.

43Based on my consideration of the factors set out above, I 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.

CONCLUSION AND ORDER

44While I am sympathetic to the Appellant’s situation, the Respondent’s motion to dismiss the appeal of the Decision to Keep is granted because it is moot, and because 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.
2. 2PAWS Act, s 35(4); Ministerial Prescriptions, O Reg 447/19, ss 1(1), 1(2), 3. I note that the Respondent confirmed delivery of the SOA on January 22, 2025.
3. 3The Respondent’s completed Notice of Motion (NOM) form is dated February 20, 2024, and their attachment is dated February 24, 2025. The Board received the NOM on February 24, 2025.
4. 4PAWS Act, s 35(4); Ministerial Prescriptions, O Reg 447/19, ss 1(1), 1(2), 3.
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.
7. 7Guillaume v CAWI, 2023 ONSC 5782 (para 10). Divisional Court held that forfeiture rendered moot a motion seeking a stay of various Board decisions.
8. 8Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342
9. 9Cases submitted by the Respondent in support of their argument: Kepski v CAWI, 2023 ONACRB 37; Rock v CAWI, 2024 ONACRB 66, Sauer v. CAWI 2023 ONACRB 60. Guillaume v Chief Animal Welfare Inspector, 2023 ONSC 5782;