Kevin Bachner v. Chief Animal Welfare Inspector, 2025 ONACRB 142

Date: 04/04/2025

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

Between:

Kevin Bachner

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

ADJUDICATOR: Susan Clarke, Vice-Chair

For the Appellant: Kevin Bachner (Did not Attend)

For the Respondent: Hoursa Yazdi, Counsel

Heard by Videoconference: March 21, 2025

OVERVIEW

1On January 10, 2025, Kevin Bachner, the Appellant, appealed the removal of his dog, Nyvek, to the Animal Care Review Board (the Board). Nyvek was removed by Inspector Vanessa Pasquale of Animal Welfare Services (AWS) on January 9, 2025,

2The parties participated in a case conference on January 21, 2025 and a 1-day videoconference hearing was scheduled for February 7, 2025.

3The Appellant did not attend the scheduled hearing on February 7, 2025 and, as a result, the Board issued a Notice of Intent to Dismiss (NOID) the appeal as abandoned pursuant to Rule 3.5 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules).

4On February 18, 2025, the Appellant emailed the Board and indicated that he wanted his dog returned. As a result, the Board did not dismiss the appeal as abandoned and the hearing was rescheduled for March 21, 2025.

ISSUE

5The issue in dispute is:

1. Was Nyvek in distress at the time of removal, and was it necessary for AWS to remove him to relieve his distress?

RESULT

6The Respondent’s motion to dismiss the appeal of the removal of the dog Nyvek based on mootness is granted and, as a result, this appeal is dismissed.

PROCEDURAL ISSUES

The Appellant did not attend the rescheduled hearing

7The rescheduled hearing was convened on March 21, 2025; however, the Appellant did not attend.

8The Board’s Case Management Officer (CMO) tried contacting the Appellant by phone and email with no success.

9A Notice of Rescheduled Hearing was emailed to the parties on March 6, 2025 which confirmed the hearing date of March 21, 2025 and time of the hearing, and the call-in details. The Notice advised that the Board might proceed in the absence of a party and make a decision without further notice if a party fails to attend the hearing. The Notice also provided instructions about requesting an accommodation if needed. The email address used for the Appellant was the one provided on his appeal, and in his response to the NOID.

10As the Appellant did not attend the hearing, even though he had received the Notice of Rescheduled Hearing (after not attending the hearing scheduled for February 7, 2025). He also did not submit an Adjournment Request or respond to the CMO’s phone messages or email messages. As a result, I ordered the hearing to proceed pursuant to s. 7 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 at 9:52 a.m. I also requested that the CMO continue to telephone the appellant hourly in the hopes that he might still join the hearing. However, at no time did the Appellant attend the hearing.

The Respondent’s Motion to Dismiss

11On February 26, 2025, the Respondent filed a motion to dismiss the appeal without a hearing on the grounds that the appeal was moot.

12The Board scheduled the Respondent’s motion to be heard at the start of the hearing on March 21, 2025. The Appellant was invited to file responding submissions by March 7, 2025 but filed no written submissions.

13At the hearing, I heard the Respondent’s motion and reserved my decision.

14The Respondent’s motion to dismiss the appeal without a hearing is granted for the reasons that follow.

15The Respondent’s motion sought an Order to dismiss the appeal of the removal of the Appellant’s dog without a hearing on the ground that the appeal is moot as the dog had been forfeited to the Crown on or before February 12, 2025 pursuant to s. 35(4) of the Provincial Animal Welfare Services Act, 2019 (the PAWS Act). The Respondent’s position is that the motion should be granted because the Board cannot grant the remedy of returning the dog to the Appellant because the Appellant is no longer the dog’s owner.

16The Respondent’s submissions regarding the motion included the following:

1. Factual background, supported by an Affidavit of Inspector Anita Schenk, AWS;

2. Submissions regarding statutory forfeiture under the PAWS Act resulting in the dog becoming the property of the Crown;

3. Case law, including Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782, to support its position that following forfeiture to the Crown, an animal becomes the property of the Crown, and the previous owner/custodian ceases to have any rights of ownership or possession over the animals (para. 9);

4. Previous Board dismissals of appeals and applications involving forfeited animals and the issue of mootness; and

5. Submissions as to why the Board should not exercise its discretion to hear the case, after determining that it is moot.

17The leading case on mootness is Borowski v. Canada (Attorney General), [1989] 1 SCR 342 (Borowski). In Borowski, the Supreme Court of Canada outlined a two-step analysis used to determine whether to hear an allegedly moot case. It requires consideration of the following two issues:

1. Is the dispute between the parties’ moot?

2. If so, should the Board exercise its discretion to hear the appeal?

18In Borowski, the Supreme Court of Canada described the doctrine of mootness at p. 353 as follows:

An aspect of a general policy or practice that a court may decline to decide a case which merely raises a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when then court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy affects the rights of the parties, the case is said to be moot.

19The Supreme Court went on to outline three factors to be considered when a court or tribunal is considering whether to exercise its discretion to hear a moot case:

1. The requirement of an adversarial context;

2. The concern for judicial economy; and

3. The need for courts and tribunals to demonstrate a measure of awareness for their proper law-making function.

20I find that the dog, Nyvek, was forfeited to the Crown on or about February 12, 2025. I further find that as a result of the forfeiture, the Board has no jurisdiction to order Nyvek returned to the Appellant because he is no longer the owner. As a result, I agree with the Respondent that the appeal of the removal of Nyvek is now moot given that there is no live controversy as, regardless of any findings I might make on the appeal, I do not have the authority to order the return of the Appellant’s dog to him.

21The onus rests on the party seeking to have the appeal (the moot matter) heard – in this case the Appellant – to demonstrate why the Board should hear moot matters.

22As the Appellant did not make written submissions on the Motion, nor attend the hearing to make oral submissions, he has not addressed why I should exercise my discretion to hear the appeal even though it is moot. I therefore decline to exercise my discretion to hear the moot matter, including considering Borowski’s three factors described in paragraph 19 above.

23For all these reasons, the Respondent’s motion to dismiss the appeal without a hearing is granted.

ORDER

24The Respondent’s motion to dismiss the appeal of the removal of the dog Nyvek based on mootness is granted and, as a result, this appeal is dismissed.