Court of Appeal for Ontario

DATE: 20241119 DOCKET: M55521 (COA-24-OM-0079)

Gomery J.A. (Motions Judge)

BETWEEN

Valerie Guillaume Moving Party

and

Chief Animal Welfare Inspector and Animal Care Review Board Responding Parties

Counsel: Valerie Guillaume, acting in person Jason Tam, for the responding party, Chief Animal Welfare Inspector Douglas Lee, for the responding party, Animal Care Review Board

Heard: in writing

Endorsement

[1] The moving party seeks to set aside the Registrar’s October 9, 2024, order dismissing her motion for leave to appeal a decision by the Divisional Court on February 28, 2024.

[2] The motion is dismissed, for the reasons that follow.

Background

[3] The motion arises from actions taken by the Chief Animal Welfare Inspector under the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13 (the “Act”). The moving party appealed the removal by Animal Welfare Services (“AWS”) of 41 cats from her home and the issuance of a statement of account of almost $24,000 for their ongoing care after their removal. The Ontario Animal Care Review Board found that the cats were in distress due to unsanitary conditions and lack of access to food and water; that it was necessary to remove them because they were alone and without care after the appellant lost access to her apartment unit; and that the moving party, who ultimately refused to participate in the hearing, had not led evidence that the animals would not be at risk of distress if returned to her: Guillaume v. Chief Animal Welfare Inspector, 2023 ONACRB 52. The Board also confirmed the AWS’s statement of account.

[4] The moving party applied for judicial review of this decision. Pending its adjudication, she moved for a stay of the Board’s order. Sitting as a single judge of the Divisional Court, Nishikawa J. dismissed the motion for a stay on the basis that it was moot: Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782. Under s. 35(4) of the Act, animals seized by the AWS are forfeited to the Crown if the owner or custodian of the animals, within 10 days of confirmation of the account by the Board, does not pay its statement of account or fails to negotiate an agreement with the Chief Inspector, obviating the need for payment. The moving party had not paid the statement of account or reached an agreement, nor had she brought her motion for a stay in the ten days following the Board’s decision. As a result, she no longer had any entitlement to a return of the cats.

[5] Nishikawa J. held that, although the decisions on appeal require the payment of money, this did not give rise to an automatic stay. Even if the motion for stay were not moot, she would not have granted it, because the moving party had not shown that she would suffer irreparable harm in the absence of a stay or that the balance of convenience favoured a stay.

[6] The moving party brought a motion to set aside Nishikawa J.’s order before a panel of the Divisional Court under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court dismissed the motion: Guillaume v. Ontario (Chief Animal Welfare Inspector), 2024 ONSC 1087. It identified no error of law or palpable and overriding error of fact in Nishikawa J.’s conclusion on the mootness issue, her finding that the order was not automatically stayed, or in her application of the RJR-MacDonald criteria for a stay.

[7] The moving party filed a notice of motion for leave to appeal the Divisional Court panel’s decision to this Court within the statutory timeline. She did not perfect her motion within the required deadline, however. Having received a notice of intention to dismiss for delay from the court in June 2024, she brought a motion for an unspecified extension of time.

[8] On August 28, 2024, Pepall J.A. granted the moving party an additional 30 days to file her motion record and factum. Although she expressed doubt about the merits of the proposed appeal, she found that, since the respondents did not take a position on the motion, it did not appear that they would suffer any prejudice if it were granted. In these circumstances, she concluded that the interests of justice favoured granting a short extension of time.

Analysis of the motion to set aside

[9] I conclude that the overall interests of justice do not favour setting aside the Registrar’s order dismissing the motion for leave to appeal.

[10] The considerations on a motion to set aside a Registrar’s order are similar, but not identical, to the considerations on a motion to extend a deadline to perfect an appeal or leave motion. The overarching consideration in these types of motion is the justice of the case. Relevant factors include the merits of the appeal or proposed appeal; whether the moving party had an intention to appeal within the required deadline to do so or, in the case of a failure to perfect within the deadline, whether the moving party has maintained an intention to pursue an appeal; the length of the delay and any explanation for it; and any prejudice caused to the responding party as a result of the delay: Graff v. Network North Reporting and Mediation, 2020 ONCA 319, at para. 8, leave to appeal refused, [2020] S.C.C.A. No. 431; Sickinger v. Sickinger, 2017 ONCA 760, at para. 13.

[11] The test on a motion to set aside a Registrar’s order is, however, more demanding than the test on a motion for an extension to perfect: “More justification must be shown by a party moving to aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal”: Sickinger, at para. 14, citing Langer v. Yorkton Securities Inc. (1986), 57 O.R. (2d) 555 (C.A.), at p. 558. I would add that, where a party has already been granted an extension of time, a request for further time may be harder still to justify.

[12] Some factors weigh in favour of granting the motion. Based on the history of the case, the moving party formed an intention to appeal the Divisional Court’s decision and has maintained her intention to do so since filing her notice of appeal. The respondents do not contest the moving party’s motion.

[13] Other relevant factors do not weigh in favour of setting aside the Registrar’s order, however.

[14] There is no evidence supporting the moving party’s request. She has not filed an affidavit in support of her motion. Her notice of motion asserts that court staff unreasonably refused to accept materials that she attempted to file on September 26, 2024, that they have conspired to prevent her from perfecting her appeal, and that she has ongoing health issues that have made it difficult for her to comply with filing deadlines. She has not filed anything to substantiate these assertions.

[15] Although some allowance may be made for the fact that the moving party is self-represented, she was put on notice, through the August 28 endorsement, that the failure to provide evidence in the proper form may be a sufficient basis on which to dismiss the motion: Teitler v. Dale, 2021 ONCA 577, at para. 10. This is furthermore not the first time that the moving party has been alerted to the need to file affidavit evidence in support of a motion. Nishikawa J. found that she had not proved irreparable harm because she had not filed an affidavit in support of her motion to stay.

[16] Given this history, no consideration can be given to the moving party’s assertions in the notice of motion. There is therefore no explanation for her failure to perfect the leave motion since the August 28 order.

[17] On the basis of the materials before me, I cannot find that the proposed appeal has any merit. The moving party asserts that the respondents breached her Charter rights by entering her apartment and removing the cats, and that the provisions of the Act entitling them to do so are unconstitutional. The primary issue on the proposed appeal, however, would be whether Nishikawa J. erred in finding that a stay of the Ontario Animal Care Review Board’s decision would be moot. The moving party has not identified any reviewable error made by the Divisional Court on this issue.

[18] This case is distinguishable from cases such as Derakhshan v. Narula, 2018 ONCA 658, 142 O.R. (3d) 535, or Issai v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391. In those cases, the delays involved could be counted in days rather than months; the moving parties presented evidence explaining their failure to meet filing deadlines; no extensions of time had previously been granted; and the Registrar had not issued a dismissal order. Derakhshan and Issai furthermore concerned appeals as of right, as opposed to a motion for leave to appeal. The impact of denying further time in those cases was undeniable, even if the merits of the appeals appeared slight. Here, given that the proposed appeal’s lack of merit makes it unlikely that the moving party could obtain leave even if given more time to do so, dismissing the motion has less impact.

[19] Having weighed the relevant considerations and having stepped back to consider the overall justice of the case, I conclude that the motion should be dismissed. There are minimum requirements that a moving party must meet to establish that a Registrar’s order should be set aside. Those requirements have not been met here.

[20] The motion is accordingly dismissed.

“S. Gomery J.A.”