Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Hogan McMillan
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
ADJUDICATOR: Susan Clarke, Vice-Chair
For the Appellant: Hogan McMillan (Did not Attend)
For the Respondent: Alice Liu, Counsel
Heard by Videoconference: March 25, 2025
OVERVIEW
1On February 6, 2025, Hogan McMillan, the Appellant, appealed the removal of his dog Hulk, requesting its return, to the Animal Care Review Board (Board). The Appellant’s dog was removed by Inspector Ryan Withrow of Animal Welfare Services (AWS) on January 29, 2025, pursuant to s. 31(1)(a) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act).
2The parties participated in a case conference on February 20 and 25, 2025 and consented to a two-day videoconference hearing to be held on March 25 and 26, 2025. During the case conference, the Board granted the Appellant’s accommodation request to provide him access to a Public Access Terminal (PAT), which would allow him to participate in the videoconference hearing as he has no access to a computer.
3On March 4, 2025, the Chief Animal Welfare Inspector, the Respondent, filed a request to adjourn the hearing because its counsel was not available on the scheduled hearing dates. The Board issued an Order on March 7, 2025 denying the request.
4On March 7, 2025, the Respondent filed a motion to dismiss the appeal of the Respondent’s decision to remove the Appellant’s dog on the grounds that the dog had been forfeited to the Crown pursuant to s. 35(4)(a) of the PAWS Act and, as a result, the Board no longer had jurisdiction to return the dog to the Appellant. The Board scheduled the Respondent’s motion to be heard at the start of the hearing on March 25, 2025.
ISSUES
5The issues in dispute are:
a) Was the dog in distress at the time of its removal on January 29, 2025?
b) If so, was it necessary for AWS to remove the dog to alleviate its distress?
RESULT
6The Appellant’s appeal of the removal of his dog is dismissed.
PRELIMINARY AND PROCEDURAL ISSUES
a) The Appellant did not attend the scheduled hearing
7The hearing was scheduled to start at 9:30 a.m. on March 25, 2025. However, the Appellant was not in attendance.
8The Board’s Case Management Officer (CMO) tried contacting the Appellant by email, as the Board had no record of a phone number for the Appellant from his Notice of Appeal. The CMO did not receive any email response from the Appellant. The CMO confirmed that the Appellant was not at the PAT.
9On March 3, 2025, the Board had emailed both parties the Notice of Hearing as well as information regarding using the PAT, which advised that a party should arrive at least half an hour before the hearing. On March 10, 2025, the Board emailed the Notice of Motion Hearing to the parties. The Appellant therefore had three weeks’ notice of the hearing and the location of the PAT.
10The Appellant did not submit an adjournment request and did not respond to the CMO’s email messages on March 25, 2025. I was satisfied that the Appellant had received notice of the videoconference hearing and, as a result, ordered the hearing to proceed at 10:00 am pursuant to s. 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA). I also requested that the PAT remain available and ready for the Appellant should he attend. However, at no time did the Appellant communicate with the Board or the Respondent on the day of the hearing before it concluded.
b) The Respondent’s Motion to Dismiss
11On March 7, 2025, the Respondent filed a motion seeking an Order to dismiss the appeal of the decision to remove the Appellant’s dog on the ground that the appeal is moot. The basis for this was that the dog had been forfeited to the Crown on or about March 7, 20251 pursuant to s. 35(4) of the PAWS Act because the Appellant did not:
a) Appeal a Statement of Account (SOA) issued to him on February 13, 2025; and/or
b) Pay the SOA within the prescribed time period of 15 business days pursuant to s. 35(4) of the PAWS Act.
12The Board scheduled the Respondent’s motion to be heard at the start of the hearing on March 25, 2025. The Appellant was invited to file responding written submissions in advance by March 17, 2025 but he did not do so.
13At the hearing, I heard the Respondent’s motion and dismissed it orally, with written reasons to follow.
The Respondent’s position on the motion
14The Respondent’s position is that the motion should be granted because the Board cannot grant the remedy of returning the dog to the Appellant, since the Appellant is no longer the dog’s owner.
15The Respondent’s written submissions supporting the motion include the following:
a) Factual background, supported by an Affidavit of Inspector Ryan Withrow, AWS;
b) Submissions regarding statutory forfeiture under the PAWS Act resulting in the dog becoming the property of the Crown:
i. The Appellant’s animal was forfeited to the Crown on or about March 7, 2025 pursuant to s. 35(4) of the PAWS Act, given that he didn’t appeal the Statement of Account (SOA) served on him on February 14, 2025, nor pay it within the prescribed time periods of 10 business days and fifteen business days, respectively; and
ii. Forfeiture occurs by statutory action and is not subject to any action taken by the Crown or the Respondent to initiate or finalize the forfeiture process. Once an animal has been forfeited to the Crown, it becomes the property of the Crown, and the previous owner/custodian ceases to have any rights of ownership or possession over the animals. Section 63(1) of the PAWS Act provides that the Respondent is then authorized by the Crown to “deal with the animals as if the CAWI were the owner.” The Respondent can then transfer ownership of animals or sell the animals to another owner who then assumes responsibility for the care of the animals.
iii. The dispute over the return of the animal disappeared on forfeiture, and the Board has no jurisdiction to order the return of an animal once it has been forfeited.
c) Case law, including Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782, to support the Respondent’s 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);
d) Previous Board dismissals of appeals of removal decisions and keep in care decisions involving forfeited animals and the issue of mootness; and
e) Submissions on why the Board should not exercise its discretion to hear the case, after determining that it is moot.
16In regard to mootness, the Respondent made the following oral submissions:
a) If the decision of the Board will have no practical effect on the rights of the parties, the Board should decline to hear the case;
b) There is no live controversy remaining as the animal has been forfeited;
c) There is no adversarial context given that the appellant has not appeared at the hearing;
d) There is no uncertainty in the law; and
e) It is an unnecessary expense for both parties to hold a hearing given that there is no available remedy, and an inefficient use of the Board’s limited resources.
Motion Analysis
17The leading case on mootness is Borowski v. Canada (Attorney General), [1989] 1 SCR 342 (Borowski). While the Respondent did not reference Borowski, it did make submissions related to Borowski’s 2-step analysis. As Borowski is binding on me, I will apply it in my analysis.
18In Borowski, the Supreme Court of Canada outlined a two-step analysis used to consider mootness:
a) Is the dispute between the parties’ moot?
b) If so, should the Board exercise its discretion to hear the appeal?
19In Borowski, the Supreme Court of Canada stated in paragraph 353 that:
The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.
20The Supreme Court went on to outline three factors to be considered in determining whether to exercise discretion to hear a moot case:
a) The requirement of an adversarial context;
b) The concern for judicial economy; and
c) The need for courts to demonstrate a measure of awareness for their proper law-making function.
Step 1 – Is the appeal moot?
21I accept the Respondent’s evidence that the Appellant’s dog is forfeited by statutory mechanism due to the Appellant’s inaction. Furthermore, I accept that the Appellant was aware that the dog could be forfeited if he did not exercise his rights to appeal the SOA or pay it within the prescribed time periods, as this information was provided on the SOA issued to him on February 14, 2025.
22I find that the appeal is moot, as the Board lacks the jurisdiction to provide the remedy the Appellant seeks, which is to return the dog. He is no longer the owner, as the dog was forfeited to the Crown pursuant to s.35(4)(a) of the PAWS Act on or about March 7, 2025.2
23While there is no live controversy remaining, the Board may exercise its discretion and hear a moot appeal if it would have the effect of resolving some controversy pursuant to Borowski.
Step 2 – Should the Board exercise discretion to hear the appeal, even though it is moot?
24As noted in paragraph [20] of this decision, Borowski outlines three factors to consider in determining whether to exercise discretion to hear a moot case. For the reasons that follow, I have considered these factors and exercised my discretion to hear the moot appeal.
Adversarial context
25I disagree with the Respondent that adversarial context disappeared because the Appellant failed to attend the hearing and, as the Respondent characterized it, abandoned his appeal. The Appellant did not file a withdrawal of his appeal or contact the Board to indicate that he would not be proceeding with his appeal. I am also aware that the Appellant faces various challenges, including that he does not have his own phone or computer, making communication difficult. His Notice of Appeal did not provide a telephone number, and his Request for Accommodation was for access to a computer because he does not own one.
26While the live controversy no longer exists as the Board lacks jurisdiction to render a decision to return the animal, an adversarial context still exists. The Appellant has a direct interest in the issues to be decided as described in the Case Conference Report and Order (CCRO) issued on February 25, 2025, and as described in paragraph [5] above.
27Collateral consequences to findings on these issues may still exist. The Respondent issued the SOA on February 13, 2025, and the dog was forfeited on or about March 7, 2025. Pursuant to s. 35(1) of the PAWS Act, the Appellant is still liable for costs incurred during the interval between these two dates. The outcome of any findings could have a bearing on the quantum of future SOAs if appealed.
The Board’s resources
28I find that the question of whether the dog should have been removed is not hypothetical, given that it may have a bearing on the quantum of future SOAs issued if appealed. Therefore, I find that hearing the moot appeal is not an inefficient use of the Board’s resources.
29Furthermore, the Respondent was present and ready to proceed, having filed a Book of Documents of its evidence (BOD), and its witness was in attendance at the hearing.
The Board’s awareness of its limited role, as an adjudicative body
30The Board’s role is to adjudicate disputes regarding animal welfare. In this case, it has no jurisdiction to order that an animal removed under s. 31 of the PAWS Act be returned to the Appellant, because the animal was forfeited.
31However, as discussed above in paragraphs [26] through [28], a dispute remains regarding whether the dog was in distress, and whether it was necessary to remove the dog to alleviate its distress. The findings on these issues could influence subsequent SOAs.
Conclusion
32I find that while I have found that the appeal is moot, there is sufficient reason to exercise my discretion to hear the appeal given that an adversarial context remains.
33The Respondent’s motion to dismiss the appeal as moot is dismissed.
c) The Respondent’s Motion to dismiss the appeal as abandoned or issue a Notice of Intention to Dismiss is denied
34Following my decision on the Respondent’s motion to dismiss the appeal as moot, I was prepared to move to the merits hearing. However, the Respondent then made an oral motion asking the Board to dismiss the appeal as abandoned or, in the alternative, to issue a Notice of Intent to Dismiss.
35In support of its request, the Respondent reasoned that it was almost two hours since the hearing was scheduled to begin, and the Appellant had not attended nor responded to the CMO’s attempts to reach him. Further, the Respondent submitted that the Appellant had consented to the hearing date but had also not filed any submissions.
Motion Analysis
36The Board dismisses the motion for the reasons that follow.
37The Board had no indication that the Appellant had abandoned his appeal as the Appellant attended the case conference, participated in scheduling the hearing, and had not filed either a withdrawal of his appeal or an adjournment request.
38The Board was aware that the Appellant does not have a phone or a computer and is therefore unable to contact the Board if experiencing difficulties in attending the PAT for the hearing.
39The Board has the power to proceed with a hearing in the absence of a party pursuant to s. 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA).
Conclusion
40The Respondent’s motion to dismiss the appeal as abandoned and/or to issue a Notice of Intention to Dismiss is dismissed.
MERITS HEARING
41When the Respondent was called to present its case, it stated that it would not make an opening statement and would not call any evidence. When questioned, it confirmed that it would not rely upon any documents or enter any exhibits, and closed its case without making any submissions.
42The Appellant, being absent, made no submissions.
Analysis
43At the time I dismissed the Respondent’s motion to dismiss the appeal on the basis that it was moot, I was not aware that I would not be hearing evidence in the merits hearing. The Respondent had submitted its BOD to the Board as ordered in the CCRO. Its witness was in attendance at the hearing.
44It is unclear to me what evidence of the Respondent’s I should review because counsel did not point me to any documents in the BOD or enter any exhibits or make any submissions.
45The Appellant neither submitted a BOD, nor made oral submissions.
46I therefore have no foundation on which to grant the Appellant’s appeal.
47While I did not dismiss the appeal because of mootness, or because of the Appellant’s absence from the hearing, I dismiss the appeal on the basis that I heard no evidence.
ORDER
48The Appellant’s appeal of the removal of his dog is dismissed.
Released: May 22, 2025
___________________________
Susan Clarke, Vice-Chair
Footnotes
- In the Motion to Dismiss, the Respondent listed both March 6 and March 7 as the date of forfeiture. While the Statement of Account was issued on February 13, 2025, the Certificate of Service indicates it was served on the Appellant by email on February 14, 2025. Forfeiture is therefore on or about March 7, 2025 and the Respondent confirmed this orally during the hearing.
- Ontario Regulation 447/19 Ministerial Prescriptions, states in paragraph 1(2) that for the purposes of clause 35(4)(a) of the PAWS Act, 15 business days is the prescribed period of time within which the owner or custodian must pay the stated amount (of the SOA) if not appealing the SOA. Section 35(4)(a) of the PAWS Act states that an animal is forfeited to the Crown if the SOA is not paid within the prescribed period after being served the SOA. The actual date of forfeiture is not certain as the Respondent was unable to verify if forfeiture occurred the day following the final day of the prescribed period, or the following business day.