Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Kevin Cao
Appellant
and
Chief Animal Welfare Inspector
Respondent
MOTION DECISION AND ORDER
Order Made By: Ziba Heydarian, Vice-Chair
For the Appellant: Kevin Cao, Self-represented
For the Respondent: Joanna Chan, Counsel, and Tucker Seabrook, Articling Student
Heard by Videoconference: April 14, 2026
BACKGROUND
1Kevin Cao, the Appellant, is the owner of five rabbits located at his property in Keswick, Ontario (Property), where he operated a breeding business. The rabbits were removed by Animal Welfare Services (AWS) on March 10, 2026, pursuant to s. 31(1)(c) of the Provincial Animal Welfare Services Act, 2019, SO 2019, c 13 (PAWS Act). The Notice of Removal (NOR) issued to the Appellant indicated that the ground for removal was a failure to comply with an order that was issued to the Appellant by AWS on January 26, 2026.
2The Appellant appealed the NOR to the Animal Care Review Board (Board) on March 18, 2026 (Board File No 18403/ACRB) and the matter proceeded to a videoconference hearing on April 14, 2026.
Motion to Dismiss
3At the outset of the NOR hearing, the Board heard a motion filed by the Respondent to dismiss the NOR appeal on the grounds that the animals have been forfeited, leaving no live controversy affecting the parties’ rights and rendering the appeal moot. The Respondent’s position was that the rabbits were forfeited to the Crown on April 14, 2026, pursuant to s. 35(4)(a) of the PAWS Act, because the Appellant failed to:
- Appeal the Statement of Account (SOA) within the prescribed time period of 10 business days; or
- Pay the SOA within the prescribed time period of 15 business days.
ISSUE
4The issues on this motion are, given that the rabbits were forfeited to the Crown on April 14, 2026:
- Whether this appeal is moot, and
- Whether the Board should hear the Appellant’s appeal of the NOR.
RESULT
5The Appellant’s appeal of the NOR is dismissed, as the rabbits were forfeited to the Crown. As a result of forfeiture, the appeal is moot. The Board will not exercise residual discretion to hear this moot appeal.
BACKGROUND
6On January 26, 2026, AWS received several calls regarding concerns about the welfare of rabbits kept in dirty cages at the Property.
7On January 26, 2026, AWS inspector Lindsay Hay attended the Property, and served the Appellant with an order under section 30(1) of the PAWS Act (the “Order”) to provide the rabbits with access to water, resting mats to support all four feet of each rabbit, regularly clean cages, and appropriate space for the number of animals to exhibit natural behavior. The deadline for compliance was February 3, 2026.
8On February 6, 19, and 28, 2026, AWS attended the Appellant’s Property for follow-up inspections, after the Appellant had reported that he was in compliance with the Order. During each inspection, AWS was not satisfied that the conditions for compliance with the Order had been met. As a result, on March 1, 2026, AWS issued a notice of non-compliance to the Appellant via email.
9On March 10, 2026, AWS returned to perform an inspection; and once again AWS was not satisfied that the Order had been complied with. AWS issued an NOR under section 31(1) of the PAWS Act to take the five rabbits into care. The rabbits were assessed and cared for by a veterinarian, and it was determined one rabbit was pregnant, which subsequently delivered while in care on March 11, 2026.
10A subsequent decision to keep in care (DTK) was made by AWS Regional Supervisor Victoria Crocker on March 18, 2026. Furthermore, on March 19, 2026, the Appellant was served with a SOA pursuant to s.35 of the PAWS Act, in the amount of $2209.20 The SOA included costs for all the rabbits that were removed on March 10, 2026, in addition to the kits who were born in the care of the Chief Animal Welfare Inspector on March 11, 2026.
11On March 10, 2026, the Appellant engaged the Board inquiring the process to commence the Appeal of the NOR. The Board opened File No 18403 on March 12, 2026, and provided the Appellant with the resources to complete the appeal. On March 18, 2026, the Appellant submitted a complete Notice of Appeal to the Board, appealing the NOR.
12The DTK and SOA were not appealed. The Respondent claims that the animals were forfeited to the Crown on April 14, 2026, as the SOA was not appealed within 10 days or paid with 15 days as required under s.35 of the PAWS Act.
ANALYSIS
13In filing an appeal of the NOR, the Appellant was seeking a return of the rabbits as a remedy. However, I find that the Board has no authority to order the animals to be returned in these circumstances, as they were forfeited to the Crown.
14The powers of the Board are set out in s. 38(9) of the PAWS Act. Under paragraph (2) of this subsection, the Board can order that an animal that has been removed be returned to the owner or custodian.
15Section 35(4) of the PAWS Act states that an animal is forfeited to the Crown if the owner or custodian does not:
- Appeal the SOA within 10 business days after it was served; or
- Pay the SOA within 15 business days following service.
16The Respondent’s motion materials included an affidavit of Inspector Lindsey Hay, which states the following:
(a) The Appellant was served with the SOA on March 19, 2026, and this was established by the certificate of service attached to the affidavit.
(b) The Appellant did not appeal the SOA within the statutory 10-day period.
(c) The Appellant did not pay the SOA within the statutory 15-day period, which expired on April 13, 2026.
(d) The rabbits were forfeited to the Crown on April 14, 2026.
17The Appellant did not challenge the substance of Inspector Hay’s affidavit or make any submissions regarding non-payment of the SOA. I accepted the facts as set out in the Inspector’s affidavit as they are uncontested.
18The Appellant stated in his submissions that he only wished to appear before the Board to dispute the requirement of a resting plate in the rabbits’ cage. He stated that if he bred more rabbits in the future he did not intend to use a resting plate, and that he would put the rabbits on a regular feeding schedule.
19In response, the Respondent stated that the expert report of Dr Robertson shows that the rabbits were in distress, and if the Appellant planned to continue running his business of breeding rabbits he must ensure he is complying with the PAWS Act and corresponding Regulations.
20In Schedule A of the Motion to Dismiss the Respondent argues, and I agree, that once an animal is forfeited to the Crown by statutory action pursuant to s. 35(4) of the PAWS Act, the animal becomes property of the Crown and the Crown is authorized to deal with the animal as if they were the owner (Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782). No action is needed to finalize the process; the forfeiture occurs automatically and the prescribed timelines are important, all of which have passed in this case.
21In addition, the Ontario Court of Appeal found that once an animal has been forfeited, “it is not possible to make an order unwinding this development” (Windrift Adventures Inc. v. Ontario (Animal Care Review Board, 2024 ONCA 89)
22The doctrine of mootness as set out in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 states that a decision-maker may decline to decide a case that presents no “live controversy” affecting parties’ rights. This requires a two-part analysis to first determine if the dispute between the parties is moot, that is, whether the live controversy between the parties has ended, and second to decide whether the court should exercise its discretion to hear the case based on the considerations set out on Borowski, namely:
i. The presence of an adversarial context; ii. The concern for judicial economy; and iii. The need for the Court to be sensitive to its role as the adjudicative branch in our political framework.
23The Respondent argued that the appeal of the removal is moot and there are no special circumstances to warrant hearing the appeal of the NOR.
24With respect to the first part of the analysis, I accept the Respondent’s uncontested evidence, as set out in the affidavit of Inspector Lindsey Hay, that the rabbits were forfeited because the SOA was neither paid nor appealed within the prescribed timelines under the PAWS Act.
25I also accept the Respondent’s submission that forfeiture is final and irreversible. As a result, even if the Appellant were successful in challenging the NOR, the rabbits could not be returned. In these circumstances, no effective remedy is available, and the appeal of the NOR would serve no practical purpose. Accordingly, I find that there is no live controversy and the appeal is moot.
26For this second-part of the analysis, the Appellant provided no reasons to persuade me that the Board should exercise its discretion to hear the moot appeal. In fact, the Appellant stated that he did not object to the motion but only attended the hearing to dispute the requirements of the Order (in regards to rabbits requiring a resting plate) as outlined above.
27I accept the Respondent’s argument that in this case there is no adversarial context because even if the Board finds the Appellant successful on the NOR appeal, it cannot order the animals to be returned to him.
28I am also not aware of any collateral consequences to the parties and there are no special circumstances presented from either side to justify expenditure of limited Board resources to hear the moot appeal.
29In a matter where forfeiture occurs because of a failure to appeal or pay a SOA within the statutory deadlines, the Board does not have any further remedy available to it with respect to a return and the Appeal is moot. As the rabbits are now property of the Crown, forfeiture eliminates any live controversy between the parties and the Board declines to exercise its discretion to proceed with the appeal.
30The Respondent also submits that the appeal should be dismissed on the basis that the Board lacks jurisdiction to hear this matter. As the appeal is dismissed on the basis of mootness, there is no need to consider the question of the Board’s jurisdiction.
ORDER
31The Respondent’s motion to dismiss the NOR appeal of File No. 18403 is granted and the appeal is dismissed.
Released: June 10, 2026
Ziba Heydarian, Vice-Chair