CITATION: Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board 2022 ONSC 872 and Chief Animal Welfare Inspector v. Jerica Gowland and the Animal Care Review Board 2022 ONSC 873
DIVISIONAL COURT FILE NO.: DC-21-134/DC-21-154
DATE: 20220207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Backhouse and M. Smith JJ.
BETWEEN:
CHIEF ANIMAL WELFARE INSPECTOR
Applicant
– and –
TIMOTHY JACKSON AND THE ANIMAL CARE REVIEW BOARD
Respondent
Jason Kirsh, for the Appellant
– and –
JERICA GOWLAND AND THE ANIMAL CARE REVIEW BOARD
Respondent
Douglas Lee and Olivia Filetti, for the Respondents
HEARD at Toronto (by videoconference): January 18, 2022
McWatt A.C.J.S.C.J.
REASONS FOR DECISION
OVERVIEW
[1] The Applicant, Ontario as Represented by the Ministry of the Solicitor General (Chief Animal Welfare Inspector) has requested that two matters decided by Member Joanne E. Foot of the Respondent Animal Care Review Board (the “Board”) be heard together. There being no objection to that request, both matters are the subjects of these reasons.
[2] The individual Respondents, Ms. Jerica Gowland and Mr. Timothy Jackson, are not participating in this application.
[3] At our invitation, the Board has provided submissions to assist the Court.
The Court’s Jurisdiction
[4] The Divisional Court has jurisdiction to hear applications for judicial review from the Board under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1.
The Standard of Review
[5] The parties agree that the standard of review is reasonableness.
[6] Additionally, there is no standard of review for questions of procedural fairness. The question is whether the requisite level of procedural fairness was met by the Board.
The Legislation
[7] The Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (“PAWS Act”) received royal assent on December 5, 2019 following the passing of Bill 136, An Act to enact the Provincial Animal Welfare Services Act, 2019 and make consequential amendments with respect to animal protection.
[8] The Act establishes a comprehensive scheme for protecting animals in Ontario. Pursuant to sections 2, 28, and 33, Animal Welfare Services (“AMS”) Inspectors appointed under the Act may, by consent or warrant, enter and search a place if they have reasonable grounds to believe it may contain an animal in distress. An AMS inspector may, at any time, provide necessaries to an animal to relieve it from distress. The Chief AMS Inspector supervises animal welfare inspectors and is also responsible for regulatory enforcement under the Act and providing necessaries and care to animals in its possession.
[9] The Board is an adjudicative tribunal established under the Act and is designated as a constituent tribunal of Tribunals Ontario. It hears appeals from various regulatory activities undertaken by AMS inspectors under the Act, including decisions and orders made by the Chief AMS Inspector (PAWS Act, ss. 37-39).
[10] Sections 30, 38(1), (3), and (9) allow an inspector, with reasonable grounds to believe that an animal is in distress, to order the owner to take the necessary action to relieve the animal of distress. This can include having the animal examined and treated by a veterinarian. A section 30 order must be in writing and specify the time within which the owner must comply. A person who is served with a section 30 order may apply to the Board to have the order revoked if the animal has ceased to be in distress. Alternatively, the owner may appeal the order to the Board. After holding a hearing, the Board may confirm, revoke or modify the order.
[11] Sections 31(1), (5), and (8) set out that an AMS inspector may remove an animal for the purpose of providing the animal with necessaries to relieve it from distress. They may do so if a veterinarian advises that removal is necessary or if the inspector has reasonable grounds to believe that the animal is in distress and the owner is not present and cannot be promptly found. The inspector may also remove the animal if a section 30 treatment order has not been complied with. An inspector who removes an animal under section 31 must immediately serve written notice of the removal to the owner or custodian, if possible, and to the Chief AMS Inspector. The notice must contain information regarding the owner’s ability to appeal the action to the Board.
[12] Pursuant to sections 31(6)-(8) of the Act, the Chief AMS Inspector has the discretion to keep a removed animal to relieve it from distress or if it believes that returning the animal will place the animal in distress. If the Chief Inspector decides to keep an animal under section 31, it must immediately provide notice to the animal’s owner or custodian. The notice must contain information regarding the owner’s right to appeal the action to the Board.
[13] An owner whose animal is kept by the Chief Inspector under section 31(6) may apply to the Board to have the animal returned on the ground that the conditions that caused the animal to be kept no longer exist. As well, an owner whose animal has been removed under section 31(1) or kept under section 31(6) may appeal the action to the Board. After holding a hearing, the Board may order that the animal be returned to the owner. In doing so, the Board may make the animal’s return conditional on the owner taking further action as ordered by the Board:
[14] Pursuant to sections 38 (1) and (9) of the Act, an owner or custodian of an animal may appeal the following to the Board within five business days after receiving notice of them:
38(1) 1. An order from an animal welfare inspector.
A decision by an animal welfare inspector to remove an animal from a place.
A decision to take an animal into the Chief Animal Welfare
Inspector’s care.
Powers of Board
(9) After a hearing, the Board may do one or more of the following:
Confirm, revoke or modify an order made under section 30.
Order that an animal removed under subsection 31 (1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian.
[15] If an inspector has provided an animal with necessaries to relieve its distress, or the Chief AMS Inspector has taken an animal into its care under section 31(6), pursuant to s. 35(1) of the Act, the Chief Inspector may, “from time to time”, serve on the owner a statement of account respecting the cost of the necessaries.
[16] Under section 35(1) of the Act, an owner who is served with a statement of account is liable for the specified amount and must pay it within 10 business days unless they appeal the statement of account to the Board. If the owner fails to pay within the timeline, the animal is forfeited to the Crown. Of note, section 35(5) sets out that the Chief Inspector has the discretion to reduce the amount that is owed as well as extend the time period in which it must be paid.
[17] After holding a hearing, section 38(9) of the Act empowers the Board to “confirm, revoke or vary a statement of account” served under section 35(1). The Board may order the Minister to pay, to the owner, the costs of complying with a section 30 treatment order. It may also order the owner to pay, to the Minister of Finance, the “whole or any part” of the cost of providing necessaries to an animal that was removed under section 31(1) of the Act or kept by the Chief AMS Inspector under section 31(6).
THE FACTS OF THE TWO CASES
Jerica Gowland
[18] Ms. Gowland failed to comply with compliance orders, dated September 10, 2020 and October 13, 2020. As a result, an AMS Inspector issued a Notice of Removal of Animal(s) and removed seven cats on November 9, 2020.
[19] On November 16, 2020, Ms. Gowland filed a Notice of Appeal under ss. 38(1) and 38(2) of the PAWS Act appealing both the removal of the cats and having to pay a November 12, 2020 Statement of Account in the amount of $1,594.41for their care. She argued that her cats were not in distress at the time of their removal so she should not be required to pay for their care.
[20] Member Foot issued the Board’s decision on January 13, 2021 upholding the removal of the cats and varying the Statement of Account to $0, finding that Ms. Gowland had constrained financial circumstances and that an onerous financial obligation, in addition to losing the pets, was punitive and unreasonable.
[21] The Applicant seeks judicial review of that January 13, 2021 Order and Reasons for Decision varying Ms. Gowland’s Account to $0. The Applicant seeks an order quashing or setting aside the Board’s Order, but undertakes not to seek any costs from Ms. Gowland, thereby eliminating any live dispute between the parties.
Timothy Jackson
[22] On November 20, 2020, an AMS Inspector issued a Notice of Removal of Animal(s) and removed three dogs owned by Mr. Jackson, which had been left with his mother, who had failed to comply with the deadline of an AMS compliance order.
[23] On December 3, 2020, Mr. Jackson filed a Notice of Appeal under s. 38(2) of the PAWS Act. He requested that the Statement of Account, dated November 26, 2020 in the amount of $450, be reduced because he could not afford the entire amount. Mr. Jackson did not dispute the reasonableness of the Statement of Account, which was for the daily boarding costs for his three dogs.
[24] After the hearing, the Applicant submitted an updated Statement of Account, dated December 17, 2020, in the amount of $2,025.
[25] On January 29, 2021, Member Foot ordered the animals returned to Mr. Jackson and varied the two outstanding Statements of Account to $0. While the Member found both statements to be reasonable, she varied them due to what she found were Mr. Jackson’s constrained financial circumstances.
[26] The Applicant seeks judicial review of the January 29, 2021 Order and Reasons for Decision of Member Foot. The Applicant seeks an order quashing or setting aside the Board’s Order. However, it has undertaken not to seek the return of Mr. Jackson's dogs or the costs for their care, thereby eliminating any live dispute between the parties.
ISSUES
[27] The Respondent raises the following preliminary issues:
Should this Court decline to hear this application because it is moot?
Should this Court decline to consider the application because the Applicant did not request reconsideration decisions in either case pursuant to Rule 18.2 of its Common Rules of Practice and Procedure and the Respondent has not explained why the reconsideration process is not an adequate alternative remedy.
[28] The Applicant raises the following issues on judicial review:
Was the Board’s decision unreasonable?
Was the Applicant denied procedural fairness?
DISPOSITION
[29] For the reasons that follow, and without deciding the issue of mootness, the application is dismissed because the Applicant has not exhausted its alternative remedies in this matter.
ANALYSIS
The Respondent’s Issues
1. The Application is Moot
[30] Although the Court will not decide this issue because we are satisfied that the Respondent’s second preliminary objection is valid, I will briefly set out what the law of “mootness” is as it applies to this case.
[31] The Applicant challenges the Board’s decisions to vary the statement of account in both cases to zero. It alleges that the Board made several substantive and procedural errors in doing so. It also undertakes not to recover any monies incurred while caring for Ms. Gowland’s cats or to seek the return of Mr. Jackson’s dogs or recover any monies incurred while caring for his dogs. These undertaking, the Respondent maintains, effectively eliminates any live controversy or dispute between the parties, rendering these matters moot.
[32] The Applicant, nonetheless, asks this Court to quash the Board’s decisions and to provide guidance on the issues, which will have no practical effect on the parties’ rights.
[33] The doctrine of mootness provides that, absent issues that engage the public interest, the court should not decide an issue that is no longer live between the parties: Borowski v. Canada, 1989 123 (SCC), [1989] 1 S.C.R. 342.
[34] The doctrine of mootness is an aspect of general policy or practice that a court may decline to decide an application if it raises mere hypothetical or abstract questions that will not resolve an ongoing controversy affecting the rights of the parties. In spite of this policy, however, courts may exercise discretion to consider moot applications. The Applicant bears the onus of establishing that its moot application ought to proceed.
[35] In deciding whether to exercise its discretion, this Court must consider the following three factors established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC):
that a court’s competence to resolve legal disputes is rooted in the adversarial system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;
the Court must be mindful of the need for judicial economy. The special circumstances of the case, typically that the case raises an important question of a recurring nature but of brief duration making it elusive of review, or a matter of public importance, the resolution of which is in the public interest; and
the Court must maintain an awareness of its proper law-making function and avoid intruding into the role of the legislative branch. (See also Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801 at paras. 28, 41-43 (Div. Ct.); McCauley v. the Ontario Parole Board, 2021 ONSC 1874 at paras. 4-5(Div. Ct.)).
[36] In Canada (National Revenue) v. McNally, 2015 FCA 248 at paragraph 5, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the Court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.”
[37] I agree with the Respondent’s submission that the Board ought to be permitted the opportunity to interpret its home statute. To that extent, it does not matter, for the purposes of this decision, whether the two matters before us are moot or are not moot. The Applicant has not exhausted its adequate alternative remedies to judicial review by requesting the tribunal to reconsider its decision. And it has offered no reason why it has not.
2. The Applicant Has Not Exhausted its Adequate Alternative Remedies
[38] This Court has the discretion to decline to hear an application where the applicant has not exhausted adequate alternative remedies to the judicial review. In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68-71, the Court of Appeal for Ontario noted that this principle respects administrative decision-making and a legislative intent that a party exhaust internal review processes before asking a court to intervene.
[39] The failure by a party to request that a tribunal reconsider its decision, however, is not an absolute bar to judicial review. Whether reconsideration constitutes an adequate alternative remedy is context specific. In Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 42, the Supreme Court of Canada held that considerations regarding the adequacy of an alternative remedy include the nature of the error alleged, the convenience, expeditiousness and cost of the available remedy, the nature and remedial capacity of the other forum that could deal with the issue, the relative expertise of the alternative decision-maker, and economical use of judicial resources (Labourers’ International Union of North America, Local 183 v. The Daniels Group Inc., 2019 ONSC 3164 at paras. 5-12(Div. Ct.); United Brotherhood of Carpenters (Local 249) v. Matrix North American Construction Ltd., 2019 ONSC 5647 at paras. 39-42(Div. Ct.)).
[40] Pursuant to Rule 18.2 of its Common Rules of Practice and Procedure, Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), the Board may reconsider its own decision on its own initiative or at the request of a party on the following grounds:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
[41] Following a reconsideration, the Board may dismiss the request or confirm, vary or cancel the impugned decision. Alternatively, it may order that all or part of the matter be reheard (Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), Rule 18.4).
[42] In this case, the Applicant has not explained why the Board’s reconsideration process does not constitute an adequate alternative remedy beyond noting that the adjudicator committed the same or similar errors in another proceeding. The Respondent submits that, in the circumstances of this case, the Board’s reconsideration process constitutes an adequate alternative remedy. This Court ought to decline to consider the application on the ground that the Applicant failed to request a reconsideration.
[43] I agree.
[44] The Board is more than capable to deal with the issue of the varying of the statements of account in the two cases. The Board has the expertise to do so, and it would be a more economical use of judicial resources if these matters were first resolved there.
[45] These matters should go back to the Board for reconsideration.
[46] The Application is dismissed on the basis that this Court declines to hear it because the Chief Animal Welfare Inspector has not exhausted its alternative remedy.
Costs
[47] No costs are being sought by or against any party. None shall be ordered.
McWatt A.C.J.S.C.J.
I agree _______________________________
Backhouse J.
I agree _______________________________
M. Smith J.
Released: February 7, 2022
CITATION: Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board 2022 ONSC 872 and Chief Animal Welfare Inspector v. Jerica Gowland and the Animal Care Review Board 2022 ONSC 873
DIVISIONAL COURT FILE NO.: 154/21 & 134/21
DATE: 20220207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Backhouse and M. Smith JJ.
BETWEEN:
CHIEF ANIMAL WELFARE INSPECTOR
Appellant
– and –
TIMOTHY JACKSON AND THE ANIMAL CARE REVIEW BOARD
Respondent
– and –
JERICA GOWLAND AND THE ANIMAL CARE REVIEW BOARD
Respondent
REASONS FOR DECISION
McWatt A.C.J.S.C.J.
Released: February 7, 2022