Pryor v. Ontario Society for the Prevention of Cruelty to Animals

89 O.R. (3d) 478

Court of Appeal for Ontario,

Feldman, MacFarland and Watt JJ.A.

February 14, 2008

Appeal -- Limitation period -- Statute requiring that appeal from decision of board be brought within 15 business days from receipt of decision -- Board faxing unsigned decision to appellant's lawyer and subsequently sending signed decision by registered mail -- Limitation period not starting to run until signed decision was served on appellant.

Civil procedure -- Judgments and orders -- Statute requiring that appeal from decision of board be brought within 15 business days from receipt of decision -- Board faxing unsigned decision to appellant's lawyer and subsequently sending signed decision by registered mail -- Limitation period not starting to run until signed decision was served on appellant. [page479]

Section 18(2) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 provides that an appeal from a decision of the Animal Care Review Board must be launched within 15 business days from receipt of the decision. The Board faxed an unsigned copy of its decision to the appellant's lawyer on December 19, 2006. On January 10, 2007, service of the signed decision was served on the appellant by registered mail. The appellant filed and served a notice of appeal within 15 business days of January 10. The Society moved to dismiss the appeal on the ground that it was not filed within the time prescribed by the Act. The motion was granted. The appellant appealed.

Held, the appeal should be allowed.

The motion judge erred in law in concluding that the signing of the decision was an "administrative procedure". Where a board reserves a decision and subsequently releases its decision, there is no decision until it is signed. Furthermore, faxing an unsigned copy of the decision to counsel for the appellant did not meet the requirements of s. 17(7) of the Act.

APPEAL from the order of Del Frate J. (2007), 2007 CanLII 31568 (ON SC), 86 O.R. (3d) 759, [2007] O.J. No. 3028 (S.C.J.), dismissing an appeal.

Statutes referred to Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36, ss. 17(7), 18(3) [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[1] Endorsment by THE COURT: -- The appellant objected to the seizure of four horses from his property.

[2] As was his right he moved for the return of his horses before the Animal Care Review Board. That body heard the appellant's application December 14, 2006.

[3] On December 19, 2006, an unsigned copy of what purported to be the Board's decision was faxed to counsel for the appellant.

[4] The decision was in fact signed by the two hearing members on December 22, 2006, and on January 4, 2007. By letter January 3, 2007, the appellant's counsel requested a signed copy of the Board's reasons and expressed concern about the possible prejudice to the appellant's rights of appeal.

[5] On January 10, 2007 service of the signed decision of the Board was served on the appellant by registered mail in accordance with the provisions of s. 17(7) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36.

[6] The appellant filed and served his notice of appeal on January 24 and 29 respectively --- all within 15 business days of January 10, 2007.

[7] The motion judge erred in law in concluding that the signing of the decision was an "administrative procedure". Where a [page480] board reserves a decision and subsequently releases its decision there is no decision until it is signed.

[8] Furthermore, faxing a copy of an unsigned version of the decision to counsel for the appellant does not meet the requirements of s. 17(7). It is not open to the court to ignore the clear language of a statute. Where service is specified to be effected in a particular way, the direction is to be followed.

[9] By letter dated February 6, 2007 in accordance with s. 18(3) of the Act, the appellant's solicitor requested a hearing date and by letter dated May 16, 2007, the court responded and fixed the date for hearing for August 21, 2007.

[10] The statute does not provide any direction as to how the appeal is to be "perfected" as that term is defined in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 -- it merely provides that the appellant or any one served with the Notice of Appeal may apply to fix a date on two days notice, and the appeal is to be a new hearing. There is no requirement to "perfect" the appeal within 30 days. Unfortunately, the legislation is vague in relation to what, if any, materials are to be filed on the "new hearing".

[11] Counsel for the appellant complied with the statutory scheme as laid out in the Act. The appeal is allowed, the order of Del Frate J. is set aside and the matter is remitted to the Superior Court to fix an early date for the hearing of the appeal.

[12] Costs of the appeal to the appellant on the partial indemnity scale fixed at $6,500 plus GST. Costs below to the appellant fixed in the amount of $2,000.

Appeal allowed.