Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Robert Buchan and Brian Buchan
Appellants
and
Chief Animal Welfare Inspector
Respondent
MOTION DECISION AND ORDER
Order Made By: Robert Patchett, Vice-Chair
Appearances:
For the Appellants: Robert Buchan, self-represented
For the Respondent: Jason Kirsh, Counsel
Mike Draper, Regional Supervisor Animal Welfare Services
Alyssa Dougherty, Senior Inspector Animal Welfare Services
Heard by Videoconference: March 31, 2026
OVERVIEW
1Robert and Brian Buchan (Appellants), appeal a Decision to Keep Animals in the Chief Animal Welfare Inspector’s care (CAWI’s)(DTK) twenty-five (25) cattle, three (3) goats, and four (4) cats (the animals).
2On January 26, 2026, Inspector Alyssa Dougherty and a veterinarian from Animal Welfare Services (AWS) conducted an inspection of the Appellants’ farm, and removed the animals based on observing issues with sanitation, housing, a lack of food and water for the animals, and overgrown hooves and horns on the goats. Inspector Dougherty issued a Notice of Removal pursuant to s. 31(1)(a) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the PAWS Act). The Appellants did not appeal the removal of the animals.
3On January 29, 2026, the CAWI issued a DTK to the Appellants pursuant to s. 31(6)(b)(i) of the PAWS Act on the basis that the CAWI had reasonable grounds to believe that the animals may be placed in distress if returned to the Appellants.
4On February 20, 2026, the CAWI served a Statement of Account (SOA) pursuant to s.35 of the PAWS Act on the Appellants. The Appellants did not file an appeal of the SOA.
5On February 12, 2026, the Appellants filed a Notice of Appeal with the Animal Care Review Board (ACRB) in regard to the January 29, 2026, DTK.
6On February 23, 2026, the parties attended a case conference in this matter.
7The ACRB convened a hearing on March 9, 2026, to consider the Appellants appeal of the DTK. The hearing was adjourned on request of the Respondents when the Appellants failed to appear.
8On March 26, 2026, the CAWI, the Respondent, submitted a motion seeking dismissal of the appeal of the DTK on the basis that the animals had been forfeited to the Crown as of March 14, 2026. The Respondent submitted that the ACRB had no jurisdiction to order the return of the animals to the Appellants since they are no longer the owner and therefore the appeal is moot.
9The ACRB had rescheduled the hearing for March 31, 2026. The motion to dismiss was considered at the outset of the hearing. The Appellants confirmed that they had received the Notice of Motion and had reviewed it prior to the hearing.
RESULT
10The Respondent’s motion is granted. The animals are now property of the Crown. The appeal of the DTK is dismissed because it is moot.
Motion to Dismiss the Appeal
11On March 26, 2026, the Respondent filed a motion seeking an order to dismiss the appeal of the DTK on the ground that the appeal is moot. The basis for the motion was that the animals had been forfeited to the Crown on March 14, 2026, pursuant to s. 35(4) of the PAWS Act because the Appellant did not appeal the SOA within the prescribed time period of 10 business days of it being served on them, nor did they pay the SOA with the prescribed time period of 15 business days.
12The Respondents submitted the affidavit of Alyssa Dougherty affirmed on March 25, 2026. The Respondent made oral submissions in support of the motion and relied on the motion materials filed in advance.
13The Appellants did not file written materials in advance of the motion hearing. I explained the nature of the motion and that it would be heard at the outset. They did not seek more time and proceeded with oral submissions. They submitted that they believed that they had broad outlines of an agreement regarding the SOA with the Respondent, and that only some minor changes to the agreement remained to be resolved.
Is there an agreement?
14The parties agreed that there is no agreement in writing signed by all of the parties. Section 35(5) of the PAWS Act provides that AWS may enter into a written agreement to extend time for payment or reduce the amount owing:
Before the expiry of the relevant time period set out in clause (4) (a) or (b), the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both.
15The Appellants submitted that they had hoped to avoid any hearing by negotiating with AWS in good faith. However, the Appellants did not protect their rights by submitting an appeal of the SOA while they continued to negotiate with AWS. It appears that the clock simply ran out before negotiations were concluded.
16The Appellants disagree that the animals should have been forfeited. However, they acknowledged that they did not file an appeal of the SOA that might have forestalled forfeiture during the negotiations.
17Given that the parties agreed that there is no written agreement in place, and an appeal of the SOA was not filed, I agree that the animals were forfeited on March 14, 2026.
Analysis
18I find that the appeal is moot and dismiss the appeal for the reasons that follow.
19The applicable framework on the issue of mootness was articulated by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC) (“Borowski”). The framework involves a two-stage analysis:
Is the dispute between the parties’ moot?
If so, should the Board exercise its discretion to hear the appeal?
20In Borowski, the Supreme Court of Canada described the doctrine of mootness as follows:
The doctrine of mootness is an aspect of general policy or practice that a court may decline to decide a case which raises merely 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 the 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: Is the appeal moot?
21I am satisfied by the Respondent’s submissions including:
- Forfeiture occurs by automatic operation of the statute and is not subject to any action taken by the Crown or the CAWI to initiate or finalize the forfeiture process. Specifically, Subsection 35(4) of the PAWS Act states that if the Appellant does not appeal or pay the SOA within the time periods set out in the legislation, the animal is forfeited to the Crown:
(4) Subject to any agreement made under subsection (5), the animal is forfeited to the Crown if,
(a) the owner or custodian does not appeal the statement of account in accordance with section 38 and fails to pay the stated amount within a prescribed period of time after being served the statement of account;
The legal effect of forfeiture is well settled. In Guillaume v. Ontario (Chief Animal Welfare Inspector), 2023 ONSC 5782 (Div Ct), the Divisional Court confirmed that once animals are forfeited to the Crown, they become the property of the Crown and the previous owner/custodian ceases to have any rights of ownership or possession over the animals and that pursuant to s.63(1) of the PAWS Act, the Chief Animal Welfare Inspector is thereafter entitled to deal with the animals as if they were the owner. They can then transfer ownership of animals or sell the animals to another owner who then assumes responsibility and care for the animals.
The dispute over the return of the animals disappears upon forfeiture, and the Board has no ability to order the return of the animals.
The finality of forfeiture has been confirmed in the Ontario Court of Appeal case of Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89, where the states “it is not possible to make an order unwinding this development”.
22I accept the Respondents evidence that the Appellant was served the SOA by AWS Investigator Allyssa Dougherty by email on February 20, 2026. The Appellants did not dispute this.
23The parties agreed that during February 26, 2026, Case Conference the issue of the SOA had been discussed. They indicated that at that time the parties were hopeful of entering into a mutual consent agreement to resolve all issues.
24The Appellant acknowledged that they neither appealed nor paid the SOA because they had hoped for a mutual agreement.
25I note that the SOA form itself provides the information regarding timelines for filing appeals with the ACRB as well as the consequence of forfeiture if an owner/custodian does not appeal an SOA or pay an SOA within the prescribed timeline under s. 35(4) of the PAWS Act.
26In the current circumstances, due to the forfeiture, the ACRB cannot order the return of the animals, and the appeal is therefore moot.
Step 2: Should the ACRB exercise its discretion and hear a moot appeal?
27Even where a matter is moot, the Board retains the discretion to hear it. According to Borowski, there are three factors to consider when deciding if the Board should hear a moot case:
The requirement of an adversarial context;
The concern for judicial economy; and
The need for courts and tribunals to demonstrate a measure of awareness for their proper law-making function. Meaning, whether deciding the matter would risk the tribunal exceeding its adjudicative role by issuing a decision in the absence of a dispute affecting the rights of the parties.
28Adversarial context. The animals were forfeited to the Crown on March 14, 2026, and the ACRB cannot “unwind this development” or order their return. An adversarial context may still exist if the Appellant has a direct interest in any remaining issues to be decided by the ACRB. In the current circumstances, it has been confirmed that there are no outstanding or impending appeals to the ACRB and therefore no adversarial context between the parties remains.
29Judicial Resources. There are no special circumstances that would warrant an expenditure of limited ACRB resources in this case. A determination of this appeal on the merits would have no practical effect on the parties since the ACRB cannot order the return of the animals. I am also not aware of any collateral consequences that would justify proceeding. In these circumstances, any determination on the merits would be purely hypothetical.
30Limited role as an adjudicative body. Pursuant to the Borowski case, the ACRB is 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. Given that I find no adversarial context and I do not find that hearing this case would be an efficient use of ACRB’s resources, there is no concern regarding an intrusion into the legislative sphere. Consequently, I will not provide a detailed analysis of this factor given that the ACRB will not be hearing this matter.
CONCLUSION
31I find that the herein appeal is moot given that the animals were forfeited to the Crown.
32After considering the Borowski framework, I decline to exercise the ACRB’s discretion to hear the moot appeal.
ORDER
33The Respondent’s motion to dismiss the appeal is granted.
34The appeal of the DTK is dismissed and the file is now closed.
Released: April 1, 2026
_________________________
Robert Patchett
Vice-Chair