Evelyn MacGillivary v. Chief Animal Welfare Inspector, 2025 ONACRB 182

Date: 10/06/2025

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

Between:

Evelyn MacGillivary Applicant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

ADJUDICATOR: Susan Clarke, Vice-Chair

For the Appellant: Evelyn MacGillivary, Applicant Daniel McDermott, Applicant’s son

For the Respondent: Bailey Wintermute, Regional Supervisor, Animal Welfare Services Erin MacGillivary, Counsel

Heard by Videoconference: August 27, 2025

OVERVIEW

1Evelyn MacGillivary (Applicant) is the owner of 31 cats that lived with her in her residence in Toronto, Ontario. The Applicant has applied to the Animal Care Review Board (Board) for the return of her cats who were removed from her residence by Animal Welfare Services (AWS), and for the revocation of an Order issued by AWS.

2On June 1, 2025, AWS Inspector Bronti Frattini issued an Order on the Applicant pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act), ordering “sanitary conditions to be practiced” and litter boxes be provided for her cats. Compliance was ordered by June 6, 2025, at 12:00 p.m.

3On July 4, 2025, AWS executed a warrant (Animal in Distress) to enter the Applicant’s residence and removed 31 cats pursuant to s. 31(1)(b) and (c), respectively, of the PAWS Act because:

1. AWS Inspector Bronti Frattini had inspected the cats and had reasonable grounds for believing they were in distress, and the owner was not present and could not be found promptly; and
2. The Order issued on June 1, 2025, had not been complied with.

4A Notice of Removal (NOR) was issued pursuant to s. 31(5) of the PAWS Act on the Applicant and on her son, Daniel McDermott. Neither the Order nor the decision to remove the cats were appealed to the Board.

5On July 9, 2025, the Chief Animal Welfare Inspector (Respondent) signed a Decision to Keep in Care (DTK) pursuant to s. 31(6) of the PAWS Act for the cats, and later served it on the Applicant and her son. The DTK was also not appealed to the Board.

6On July 13, 2025, the Applicant submitted an Application for Revocation of an Order or Return of an Animal to the Board for both a Revocation of an Order (Board File No. 17379/ACRB), and for the return of the cats (Board File No. 17374/ACRB), (collectively, the Applications).

7On July 21, 2025, AWS issued a Statement of Account (SOA) pursuant to s. 35 of the PAWS Act, in the amount of $22,874.46 for veterinary and boarding costs incurred for the care of the cats, and later served it on the Applicant and her son (as explained below, I found that the SOA was served on July 26, 2025). The Applicant appealed the SOA to the Board on August 26, 2025 (File 17572/ACRB).

8At the case conference held on July 25, 2025, the parties consented to have the two Applications (i.e. 17379/ACRB and 17374/ACRB) heard at the same time pursuant to s. 9.1(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

9A hearing scheduled for August 13, 2025, for the two Applications was adjourned at the hearing. The videoconference hearing was rescheduled to August 27, 2025. An Adjournment Order was issued on August 19, 2025, which included an order for motions to be filed no later than August 15, 2025.

10On August 15, 2025, the Respondent filed a motion to dismiss the Applications on the grounds that the cats would be forfeited on August 16, 2025, and the Board had no jurisdiction in the matter.

11The Board scheduled the Respondent’s motion to be heard on August 27, 2025, at the start of the merits hearing.

12On August 25, 2025 (at 10:50 p.m.), the Applicant filed a motion to have the Respondent held in contempt of abusing the process of the courts and process of properly filing documents, regarding issues with service of the SOA.

13The Board did not schedule the Applicant’s motion to be heard at the merits hearing, however when I asked the parties to raise any preliminary matters, the Applicant did not raise this matter. Nevertheless, the issue regarding the service date of the SOA was addressed and my findings are below.

ISSUES IN DISPUTE

14The substantive issues before the Board were set out in the case conference report and order as:

1. Application for Revocation of Order: Should the June 1, 2025, Order be revoked as the cats cease to be in distress?
2. Application for Return: Have the conditions that caused the cats to be kept in or taken into the Respondent’s care ceased to exist such that the cats should be returned to the Applicant?

RESULT

15The Application for Return of the 31 cats is dismissed because it is moot. The Board has no jurisdiction to return the 31 cats to the Applicant, as they have been forfeited to the Crown.

16The Application for Revocation of the Order is dismissed because it is moot. The Respondent revoked the June 1, 2025, Order during the hearing.

PRELIMINARY ISSUES

The Applicant’s Son is not an Applicant; he is her Representative

17The style of cause on the June 1, 2025, Order identified the Applicant, Evelyn MacGillivary as the owner/custodian of the cats. The NOR identified the Applicant and her son, Daniel McDermott (Applicant’s Son) as the owners/custodians of the cats.

18At the hearing I noted that the Applicant’s Son was not named as an Applicant, and asked what his interest was in the proceeding. The Applicant’s Son clarified that he was not an Applicant, but was acting as the Applicant’s Representative. The Applicant and her son advised that the Applicant was paralyzed and confined to her bed, and that having her son act as her representative allowed her to fully participate in the hearing.

19The Respondent raised an initial concern with the Applicant’s Son being both the Applicant’s Representative and her witness, but withdrew its objection.

20I accepted the Applicant’s Son as her Representative. I noted that the Law Society of Ontario (S.30.5 of By-law 4) exempts family members from the need to be licensed to practice law.

21The Applicant’s Son agreed to submit a completed Declaration of Representative Form (DOR) to the Board by the end of the hearing. To date, the Applicant’s Son has not submitted a DOR to the Board. However, there is no legal requirement to submit a DOR, and the parties had an opportunity at the hearing to make submissions on whether the Applicant’s Son could act as her Representative.

The Respondent’s Pre-Hearing Motion to Dismiss the Application for Return of the Cats

22On August 15, 2025, the Respondent filed a motion seeking an order to dismiss the Applications on the ground that they were moot. To support its motion, the respondent submitted that the cats would be forfeited to the Crown on August 16, 2025, pursuant to s. 35(4) of the PAWS Act because the Appellant did not:

1. Appeal the SOA within 10 business days after it was “deemed served” on the Applicant by courier on July 24, 2025 (PAWS Act, s. 38(2) and O. Reg. 316/23); and/or
2. Pay the SOA within the prescribed time period of 15 business days following service of the SOA.

23On August 19, 2025, the Respondent filed a supplementary affidavit from AWS Inspector Bronti Frattini confirming forfeiture of the cats on August 16, 2025.The Applicant did not object to the affidavit being entered into evidence, objecting only to the accuracy of the date of forfeiture based on when the SOA was served.

ANALYSIS

24I find that the Applications are moot, and dismiss the Applications for the reasons that follow.

1. The date that the SOA was served on the Applicant was July 26, 2025

25I find that the SOA was served on the Applicant on July 26, 2025, for the reasons that follow.

a) Service of the SOA was not deemed effective on July 24, 2025

26I find that the SOA was not served on the Applicant on July 24, 2025.

27The Respondent submitted in its motion, that “deemed service” occurred on July 24, 2025, referencing O. Reg. 316/23 under the PAWS Act (O. Reg. 316/23) where deemed service is the second day following pick up for next-day courier service.

28The Respondent’s motion materials included an Affidavit from AWS Inspector Bronti Frattini dated July 21, 2025 (in Schedule A), in which he affirmed that service was effective on July 24, 2025, having given the SOA (and DTK and NOR) to a courier for delivery on July 21, 2025 (Exhibit H – Certificate of Service). The Exhibit included Table 1 (not referenced, but is an excerpt from O.Reg. 316/23), that indicates service is deemed effective by a courier on the second day after the day the courier picks it up, in the case of next-day courier.

29I accept the Respondent’s evidence that it while it made arrangements for the courier to pick up the SOA on July 21, 2025, it was not picked up until July 22, 2025 (Exhibit I of Inspector Frattini’s Affidavit is a Purolator record indicating the courier picked up the package for delivery on July 22, 2025).

30Based on O.Reg. 316/23, service would then be deemed effective on July 24, 2025.

31The Applicant rebutted the deemed service. In her responding submissions to the motion and in oral submissions, she submitted that the courier did not deliver the SOA to her, and that it was returned to the Respondent.

32Deemed service is a rebuttable presumption, and here, there is unequivocal evidence that the SOA was not delivered to the Applicant. The Respondent’s motion materials (Inspector Frattini’s Affidavit, Exhibit I) include the tracking slip of the courier, as required in the Certificate of Service. It provides a record of 17 entries from when the label was submitted electronically to Purolator on July 17, 2025 (at 2:15 p.m.), the package picked up on July 22, 2025, first attempt at delivery on July 23, 2025, to package deemed undeliverable on August 5, 2025 (at 5:34 p.m.), to be returned to sender.

33The Certificate of Service Form (Exhibit H), Section 5 for using courier service, makes note that “a copy/photo of the envelope as sent out by courier and the tracking information showing date of receipt” is required. Schedule A did not include a copy/photo of the envelope.

34Service can’t be considered to be “deemed” where there is contradictory evidence regarding when it was actually received. I find, based on the Respondent’s Exhibit I, that the SOA was not delivered to the Applicant by courier, and was therefore not effective on July 24, 2025, despite the deeming provisions of O.Reg. 316/23.

35The Respondent’s own evidence is sufficient to prove on a balance of probabilities that the Applicant did not receive the SOA via courier on July 24, 2025.

b) The SOA was deemed served on the Applicant on July 26, 2025

36I find that service of the SOA on the Applicant is deemed effective on July 26, 2025.

37The Respondent’s Schedule A included a copy of an email from Regional Supervisor Bailey Wintermute dated July 26, 2025, at 11:40 a.m. to both the Applicant and her son (Exhibit “J”) with the following attachments:

1. Notice of Removal (signed July 4, 2025);
2. Notice of Decision to Keep (signed July 9, 2025); and
3. Statement of Account (signed July 21, 2025).

38Pursuant to section 2 and the Table in O. Reg. 316/23, an Order, Notice, or SOA is deemed served on the date of an email if they are served via email.

39The Applicant testified that the email was not received by her or her son. Despite this, the Applicant agreed that the email addresses of both the Applicant and her Son were correct on the July 26, 2025, email, and conceded that she provided the email addresses to the Respondent at the July 25, 2025, case conference. She also acknowledged that, despite her earlier position that the contents were secure (“encrypted”), and she was unable to access them, that they were not secure. She stated that she was confused between the July 26, 2025, email and another email sent to the Applicant with the Respondent’s disclosure on August 15, 2025.

40I find that the SOA was served on the Applicant by email on July 26, 2025, on the date shown in the email message, based on O. Reg. 316/23.

41Furthermore, I do not agree with the Applicant’s position that the effective service date of the SOA was August 15, 2025, which is the date that the Applicant received the Respondent’s hearing Documents.

42I disagree with the Respondent’s Reply submissions to the motion, where it submitted that the Applicant cannot expand the grounds of her Applications, and her attempt to do so is a collateral attack on the SOA. At no point did the Applicant challenge the quantum of the SOA, or the nature of the expenses. The Applicant’s Responding submissions challenged the service date of the SOA, which was the basis of the forfeiture. I find that the Applicant was entirely within her rights to challenge the service date.

2. The Cats were forfeited on August 19, 2025

43I find that the Cats were forfeited pursuant to s. 35(4)(a) of the PAWS Act on August 19, 2025, for the reasons that follow.

44I do not accept the Respondent’s evidence in its written motion, that the cats were forfeited on August 16, 2025. This is because, as determined above, the service date and therefore the forfeiture dates were incorrectly established in the written motion.

45After advising the parties of my findings regarding service of the SOA, the Respondent amended the motion as follows, leaving all else in its motion unchanged:

1. Date of Service of the SOA July 26, 2025;
2. Statutory Deadline to appeal the SOA August 11, 2025
3. Statutory Deadline to pay the SOA August 18, 2025
4. Forfeiture of cats August 19, 2025

46While the Applicant filed an appeal of the SOA with the Board, it was filed on August 26, 2025, after the statutory deadline of August 11, 2025, which was 10 business days (pursuant to Ontario Regulation 447/19, under the PAWS Act (O.Reg. 447/19)) after service of the SOA.

47The Respondent submitted that the Applicant has not paid the SOA as of the date of the hearing, and in any case has missed the statutory deadline of 15 business days (pursuant to O. Reg. 447/19) after service of the SOA. The deadline to pay the SOA was August 18, 2025.

48I find that the Cats were forfeited on August 19, 2025, as the Applicant neither appealed the SOA, nor paid it within the prescribed timelines.

3. The Applications are Moot

49I find that the Applications are moot, for the reasons that follow.

50The leading case on mootness is Borowski (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 (“Borowski”)). As Borowski is binding on me, I will apply it in my analysis. The Supreme Court’s decision in Borowski sets out a two-step analysis used to consider mootness:

1. Is the dispute between the parties’ moot?
2. If so, should the Board exercise its discretion to hear the appeal?

51In 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.

Step 1(a) – Is the Application for Return of the Cats moot?

52I find that the Application to return the 31 cats to the Applicant is moot for the reasons that follow.

53I am persuaded by the Respondent’s submissions, which include the following:

1. 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;
2. 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 to the Crown; and
3. Case law, including Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782 (para. 9), 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

54The SOA form provides information regarding filing appeals with the Board, the consequences of forfeiting an animal when an owner/custodian does not appeal a SOA, or pay the SOA within the prescribed periods under s. 35(4). The SOA form also provides information that an owner/custodian may enter into a written agreement with the Respondent to extend the payment period or reduce the amount to be paid, or both under s. 35(5) of the PAWS Act.

55In conclusion, I find that the Board has no power to return the cats to the Applicant because they were forfeited on August 19, 2025, and she is no longer the owner. For this reason, I find the Application for the cats’ return to be moot.

Step 1(b) – Is the Application for Revocation of the Order moot?

56I find the Application for Revocation of the Order is moot for the reasons that follow.

57The Respondent’s submissions regarding mootness were limited to forfeiture.

58In response to my question regarding submissions related to their motion to dismiss the Application for Revocation of the Order, they provided the following oral submissions:

1. The Order has become irrelevant because it references the 31 cats, now forfeited;
2. The Order is addressed to the Applicant as the owner; she is no longer the owner.

59The Respondent concluded by submitting that the issue of Revocation of the Order was merely an academic question as there is no available remedy, and no tangible impact on the outcome. Following their oral submissions, the Respondent orally withdrew the Order.

60On the basis that the Order has been revoked by the Respondent, the Application for Revocation of the Order is moot as there is no remedy the Board can provide.

Step 2 – Should the Board exercise discretion to hear the Applications even though they are moot?

The Borowski Framework

61While there is no live controversy remaining because the Applications are moot, the Board may exercise its discretion and hear a moot appeal based on the Borowski framework.

62Borowski outlines three factors to consider in determining whether to exercise 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.

63For the reasons that follow, I have considered these factors and choose not to exercise my discretion to hear the moot appeal.

Adversarial context

64I disagree with the Respondent that adversarial context disappears solely because the cats are now forfeited. While the live controversy no longer exists as the Board lacks jurisdiction to render a decision to return the 31 cats, an adversarial context may still exist if the Appellant has a direct interest in any remaining issues between the parties to be decided.

65While the Applicant submitted that I should hear the merits of her Applications because it is her intent to appeal my decision regarding forfeiture and she expects my decision to be overturned, I do not agree that intention to appeal my decision on this matter constitutes a “remaining issue”.

66The Applicant also referred me to her recent appeal of the SOA. While this could possibly be viewed as a remaining issue, I do not believe determining that the cats could have been returned would influence the SOA, which was for expenses to relieve the cats of their distress. The Application for their Return was filed on July 14, 2025, and while the SOA was dated July 21, 2025, the final day of boarding the SOA reflects is July 13, 2025, which was the day before her Application for Return.

67Furthermore, any adversarial context that might have existed related to the Application for Revocation of the Order disappeared when the Order was revoked by the Respondent.

68For these reasons, I find that no adversarial context remains.

The Board’s resources

69I agree with the Respondent that it would be an inefficient use of the Board’s resources to hear the Applications, given that they are moot and there is no adversarial context remaining.

The Board’s awareness of its limited role, as an adjudicative body

70The third factor of the mootness framework under Borowski requires the Board to consider its proper law-making function to avoid intruding into the role of the legislative branch by pronouncing judgments in the absence of a dispute affecting the rights of the parties. This factor is especially significant where the matter in dispute requires an abstract interpretation of the legislation.

71Although I am not convinced that the Applications before me would require me to provide an abstract interpretation of the PAWS Act, given my findings that there is no adversarial context between the parties and that hearing the Applications would not be an efficient use of the Board’s resources, I do not find the third Borowski factor determinative. In my view, the purpose of this factor is to provide a check on adjudicative law-making where a decision maker is otherwise inclined to hear a moot matter. In this case, I am not inclined to do so based on my findings regarding the first two Borowski factors. Accordingly, since there is no risk of intruding into the role of the legislative branch, an in-depth analysis of the third Borowski factor is not required.

72To conclude, I grant the motion, and decline to exercise my discretion to hear the merits of the Applications despite their mootness.

THE APPLICANT’S MOTION

73On August 26, 2025 (I note here that the Applicant filed her motion after 5:00 p.m., and it was therefore not received until August 26, 2025), the Applicant filed a Motion with the Board submitting that the Respondent was in “contempt of abusing the process of the courts and process of properly filing documents”, and “informed the crown under false and millicious pretence” [malicious pretense] that I received services on July 21 which was incorrect as services was sent back to them/left at the post office.”

74The motion was submitted after the deadline of August 15, 2025, ordered in the Board’s Adjournment Order, and was not scheduled for a Motion Hearing.

75Furthermore, when I canvassed the parties for preliminary matters, and later, following my ruling on the Applications being moot, the Applicant did not raise the issue of her motion. As a result, it was not heard by me.

76The issue raised by the Applicant in its motion, regarding when the Respondent served the Applicant the SOA has been addressed above where I considered the three alternate dates of service presented by the parties, and deemed service as July 26, 2025.

Conclusion

77I find that the Application for Return of the 31 cats is moot given that the Board lacks jurisdiction to return them, as they were forfeited to the Crown.

78I further find that the Application for Revocation of the June 1, 2025, Order is moot given that the Respondent revoked it during the hearing, following the pre-hearing motion regarding forfeiture of the cats.

79After considering the Borowski framework, I decline to exercise my discretion to hear the moot Applications.

ORDER

80The Respondent’s motion is granted. The Applications are dismissed.