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PAWS (Provincial Animal Welfare Services Act)
Legal Guide
Ch.4 - Animal Welfare Inspectors and Related- Overview
- Chief Animal Welfare Inspector (CAWI) and Animal Welfare Inspectors (AWI)
(a) Role of the Minister
(b) CAWI Duties
(c) AWIs
(d) Who May Employ AWIs?
(e) Understanding the AWI System
- Disclosure of Personal Information
(a) Overview
(b) General Purpose of Disclosure
(c) Specific Allowed Disclosure
- AWI Code of Conduct and Complaints
(a) Overview
(b) Mental Elements of Code Contravention
(c) Code of Conduct Duties
(d) Complaint Right
(e) Where CAWI OR Minister May Refuse to Investigate Complaint
(f) Procedure if Grounds to Investigate
(g) Sanctions After Report
- Police and First Nations Constables
- Legal Immunities
(a) Immunity for AWIs, Police etc Acting for the CAWI
(b) Civil Immunity
1. Overview
This chapters deals primarily with 'AWIs' (animal welfare inspectors) and the 'CAWI' (chief animal welfare inspector), but also with the roles of police in operating the PAWS regime.
The most significant take-away that I had on these issues is the odd 'employer-centered' AWI regime, where AWIs are not hired by a central provincial police body, but rather by any number of governmental and quasi-governmental bodies (ministries, municipalities or more) who can hire and fire them as they see fit. In my view this is a great handicap to the development of an experienced professional class of animal enforcers, and runs the risk of animal welfare law being subject to the individual budgetary requirements of these employers. More on this at s.2(c-e).
2. Chief Animal Welfare Inspector (CAWI) and Animal Welfare Inspectors (AWI)
(a) Role of the Minister
The Minister of the Solicitor-General shall appoint a 'chief animal welfare inspector' [CAWI] (and may appoint one or more deputy-chiefs) [PAWS 2(1)]. The Minister of the Solicitor-General has (at present) monitoring responsibility for the CAWI [PAWS 1(1), 3].
(b) CAWI Duties
. General
The CAWI shall have the following duties [PAWS 2(2)]:- to appoint animal welfare inspectors (AWIs),
- to supervise, direct and control AWIs in the performance of their duties and in the exercise of their powers,
- to ensure that AWIs receive appropriate training respecting their powers and duties,
- to handle complaints about AWIs (other than themselves),
- to arrange for the provision of necessaries to, and otherwise arrange for the care of, any animal in their care or otherwise in the possession of an AWI,
- to arrange for analyses in relation to the following:
. the management or allocation of resources related to this Act.
. the delivery of programs and services related to this Act.
. the evaluation of programs and services related to this Act. - to perform such other duties as are assigned to him or her by or under this or any other Act, including any duties prescribed by the Lieutenant Governor in Council.
The CAWI and any deputy CAWIs shall supervise and delegate the AWIs with respect to their duties and powers [PAWS 2(3-6)].
. Forfeitures
PAWS has several Crown 'forfeiture' provisions. If a PAWS Crown forfeiture takes effect, other than one involving a prohibited animal, the CAWI shall take the animal into it's care "and shall have the authority to deal with the animal as if the CAWI were the owner" [PAWS 63(1)].
Crown-forfeited prohibited animals shall be dealt with by the CAWI "in accordance with the regulations" [but there are no regulations yet] [PAWS 63(2), 64]. This reserving of prohibited animal 'management' to the regulations is no doubt due to the anticipated difficulty of managing the many different large and dangerous animals that are likely to fit into this class (that is, if and when the province gets around to prescribing them by other regulations). This lack of regulation is a fundamental problem with the two-year old PAWS statute at the date of writing.
(c) AWIs
Animal welfare inspectors (AWI) may be appointed, with or without conditions [PAWS 5(3)], by the CAWI from employees of the above 'institutions' [PAWS 5(1,4)]. This seems like an odd arrangement, but less so once you realize that all provincial Ministries and all municipalities are institutions.
Also, the CAWI and all deputy AWIs are AWIs "by virtue of their office" [PAWS 5(2)].
Again, it is essential to note that AWIs are all employees of some FIPPA (Freedom of Information and Protection of Privacy Act) 'institution' and public sector body, and not necessarily ones that you would expect. There are potentially hundreds of different AWI employers.
The CAWI may amend, suspend or revoke an AWI appointment (ie. without terminating their employment with the employer) [PAWS 5(6)]. Revocation does not take effect until the CAWI has given notice of their intent to revoke and "an opportunity to respond orally or in writing" (at the CAWI's choice of method of response) [PAWS 5(7)].
AWIs must take the prescribed training "if any" (no regulations are yet passed for this) [PAWS 6].
Every AWI is a peace officer for the purposes of enforcing this Act [PAWS 7(2)].
Every AWI who exercises a power under this Act shall, on request, identify himself or herself as an inspector, produce identification and explain the purpose of the exercise of the power [PAWS 7(3)].
An AWI shall comply with any direction from the CAWI [PAWS 7(4)].
(d) Who May Employ AWIs?
The Animal Welfare Inspector (AWI) system is unusual (and desperately legally-awkward) - it's not a unified province-wide system. Rather the first qualification of AWIs [see (c) below] is that they are employees of various "public sector bodies", which are listed in the Act as the following [PAWS 1(1), 5(1)]:- a Ministry, commission, board or other administrative unit of the Government of Ontario, including any agency thereof,
- a municipality,
- a local board as defined in subsection 1 (1) of the Municipal Act, 2001 or subsection 3 (1) of the City of Toronto Act, 2006,
- a municipally-controlled corporation as defined in section 223.1 of the Municipal Act, 2001, and
- a city-controlled corporation as defined in section 156 of the City of Toronto Act, 2006.
There's more. These 'public sector bodies' (let's call them "AWI employers") must also be "institutions" as that term is used in Ontario's freedom of information legislation, of which there are two statutes [PAWS 5(1)]. Those two statutes are the Freedom of Information and Protection of Personal Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA), both of which regulate use and disclosure of the information that comes into their hands in the course of their governmental duties.
The bodies that are governed by these statutes are called "institutions" in the M/FIPPA statutes. Either the provincial government finds that M/FIPPA 'institutions' are a useful government organizational category for 'public sector bodies', or it may be that past controversy over the old OSPCA not being covered by FIPPA legislation drove this structuring.
In any event, for FIPPA purposes:“institution” means,
. the Legislative Assembly,
. ministries of the Government of Ontario,
. Service Ontario,
. a hospital, and
. any agency, board, commission, corporation or other body designated as an institution in the regulations [scroll down to the Schedule, Reg 460/90]. And for MFIPPA purposes:“institution” means,
(a) a municipality,
(b) a school board, municipal service board, city board, transit commission, public library board, board of health, police services board, conservation authority, district social services administration board, local services board, planning board, local roads board, police village or joint committee of management or joint board of management established under the Municipal Act, 2001 or the City of Toronto Act, 2006 or a predecessor of those Acts,
(c) any agency, board, commission, corporation or other body designated as an institution in the regulations [see Reg 372/91: Institutions] (e) Understanding the AWI System
. Overview
The upshot of this novel system is that all governments (especially provincial Ministries and all of Ontario's 444 municipalities) are potential AWI employers. As well, the primary legal relationship of AWIs is with their employers - in particular, hiring/firing and paying their wages is in those employer's hands. In fact, termination of an AWIs employment with their employer terminates their AWI appointment without any further notice [PAWS 5(5)]. While all AWIs must meet the standards, training and duties established for AWIs in the Act (if and when they are specified in regulation), this fundamental employment relationship cannot be down-played.
As well, barring any other law (and I've canvassed the Municipal Act and the Ministry of the Solicitor General Act at 20 September 2021 and found nothing) the decision to make one of their present employees an AWI (or to hire an AWI anew) is entirely up to the public sector body 'institution'. If that's accurate it's a recipe for making PAWS enforcement essentially voluntary by any 'institution' (all of which invariably perceive themselves as financially hard-pressed to fulfil their existing duties).
Finally - as is explained in the next two sub-sections - this lack of central consolidation over the supervision of AWIs would lead to absurdly cumbersome information flows between the AWI employers and the CAWI (or Minister, as the case may be). I say would lead to absurdity, because the information flow between AWI employers and the CAWI cannot work at all as it lacks necessary facilitating regulations. I'll explain next.
. AWI Employers Shall Disclose Information to the CAWI
First, recognize the fact that because AWIs are employees of various public sector bodies (including Ministries) - a status that would normally render them owing a duty of confidentiality only to their employers - that you need a law that requires the AWI employer to disclose information about their AWI employees to the CAWI.
We have the following provision (but not much else) to facilitate this. AWI employers are required by PAWS to disclose prescribed information to the CAWI "at the frequency and in the manner set out in the regulations" that [PAWS 4(1-3):(a) is related to the administration of this Act; or
(b) is for the purpose of compiling information, including statistical information, to enable analysis in relation to,(i) the management or allocation of resources related to this Act,
(ii) the planning for the delivery of programs and services related to this Act, or
(iii) the evaluation of those programs and services. However, as is the case with most of PAWS law, no regulations have been passed to this effect - and thus no 'disclosable' information has been 'prescribed'. Thus, at present the CAWI has no right to receive disclosure of AWI information that relate to the employer's AWIs activities.Note: Do not confuse Reg 443/19 "Disclosure of Personal Information" as such a promulgated regulation for the above purposes - it addresses when the CAWI may disclose information that it holds to others, not when the employers must disclose to the CAWI. . Personal Information Disclosure by AWI Employers to the CAWI
There's yet more.
These employer-to-CAWI information disclosure 'duties' (if and when effective by the passage of facilitating regulations) have additional rules when the information sought is 'personal information', which is defined (as drawn from the FIPPA legislation) as:“personal information” means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except where they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. For such 'personal information' PAWS has these additional requirements for when AWI employer's information is given to the CAWI [PAWS 4(4-6)]:- if it "is related to the administration of this Act [PAWS 4(1)(a)], that the AWI employer shall direct the personal information to "a person or unit that is subject to direction by the CAWI or that is within the ministry of the Minister";
- if it is "for the purpose of compiling information, including statistical information" [PAWS 4(1)(b)], that "shall be provided to an inter-ministerial data integration unit or a ministry data integration unit within the meaning of subsection 49.1 (1) of the Freedom of Information and Protection of Privacy Act".
If and when the province sorts out even the basics of these necessary information flows, we can dream to hope that these additional complex, tedious and cumbersome systems might work. I for one am not holding out much hope.
3. Disclosure of Personal Information
(a) Overview
In Ontario's Freedom of Information and Protect of Personal Privacy Act (FIPPA) the province has duties to respect the confidentiality of 'personal information' that come into it's hands in the course of it's activities under rules that regulate it's use and disclosure. "Personal information" for these purposes is defined as [FIPPA 2(1), PAWS 1(1)]:“personal information” means recorded information about an identifiable individual, including,
. information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
. information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
. any identifying number, symbol or other particular assigned to the individual,
. the address, telephone number, fingerprints or blood type of the individual,
. the personal opinions or views of the individual except where they relate to another individual,
. correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
. the views or opinions of another individual about the individual, and
. the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. PAWS allows such personal information about an individual to be disclosed by the CAWI or their designate under Reg 443/19 ["Disclosure of Personal Information"] [PAWS 2(7,9), Reg 443/19, s.1(1)]. Nothing in Reg 443/19 restricts the power of the CAWI or his or her designate to disclose information other than 'personal information' [Reg 443/19, s.1(2)].
Where such personal information is disclosed by the CAWI to an 'institution' (a government agency or Ministry under FIPPA), the CAWI need not give notice to the subject individual of such disclosure [PAWS 2(10)].
(b) General Purposes of Disclosure
Such disclosure is allowed for the following purposes [PAWS 2(8)]:- protection of the public or a member of the public.
- protection of animals.
- keeping the public informed with respect to the activities of animal welfare inspectors under the Act in order to ensure public confidence in the administration of the Act.
- law enforcement.
- correctional purposes.
- administration of justice.
- enforcement of and compliance with any municipal by-law, federal or provincial Act or regulation, or any government program.
Before disclosing any personal information under this Regulation, the CAWI shall consider [Reg 443/19, s.3(1)]:- if information other than personal information will serve the purpose of the disclosure;
- if the amount of personal information to be disclosed exceeds what is reasonably necessary to achieve the purpose of the disclosure; and
- if the manner and intended scope of the disclosure exceeds what is reasonably necessary to achieve the purpose of the disclosure.
If the disclosure is for the purpose of reducing the risk to the safety or well-being of an individual, the CAWI shall consider whether it would be sufficient to meet that purpose by disclosing the personal information to [Reg 443/19, s.3(2)]:- a law enforcement agency;
- a children’s aid society; or
- a person or organization that provides health services, social services or educational services.
(c) Specific Allowed Disclosure
The following are the specific purposes which allow the CAWI (or their designate) to disclosure personal information [Reg 443/19, ss.4-10]:- Risk Individual will Cause Distress to an Animal
The below personal information may be disclosed if the CAWI reasonably believes that [Reg 443/19, s.4(1)]:. there is a credible risk that an individual will cause or permit an animal to be in distress; and
. disclosure of the personal information is likely to reduce that risk. The below information, if personal information, may be disclosed [Reg 443/19, s.4(2)]:. the identity of the individual involved. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. the risk to the animal.
. the location or locations at which the risk to the animal exists.
. the act or omission that is believed to have created the risk to the animal. - Risk to Animal from Animal
The below personal information may be disclosed if the CAWI reasonably believes that [Reg 443/19, s.5(1)]:. there is a credible risk that an animal will cause another animal to be in distress; and
. disclosure of the personal information is likely to reduce that risk. The below information, if personal information, may be disclosed [Reg 443/19, s.5(2)]:. the identity of the owner or custodian of the animal that is causing the risk to the other animal. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. the risk to the animal.
. the location or locations at which the risk to the animal exists. - Risk to Individual from Animal
The below personal information may be disclosed if the CAWI reasonably believes that [Reg 443/19, s.6(1)]:. there is a credible risk to the safety or well-being of an individual from an animal; and
. disclosure of the personal information is likely to reduce that risk. The below information, if personal information, may be disclosed [Reg 443/19, s.6(2)]:. the identity of any individual whose activity exposes the other individual to risk from the animal. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. the location or locations where the risk to the individual is to be found.
. the risk to the individual. - Risk to Individual from Other Individual
The below personal information may be disclosed if the CAWI reasonably believes that [Reg 443/19, s.7(1)]:. there is a credible risk to the safety or well-being of an individual from another individual; and
. disclosure of the personal information is likely to reduce that risk. The below information, if personal information, may be disclosed [Reg 443/19, s.7(2)]:. the identity of the individual who is at risk or who is causing the risk. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. the location or locations at which the individual who is at risk or the individual who is causing the risk is likely to be found.
. the risk to the individual. - Disclosure Respecting Complaints about AWIs
The below personal information may be disclosed if it relates to a complaint [see 4(d) below; PAWS 9(1)] and the CAWI reasonably believes that a failure to disclose the personal information may undermine public confidence in the administration of the Act [Reg 443/19, s.8(1)].
The below information, if personal information, may be disclosed [Reg 443/19, s.8(2)]:. the identity of the animal welfare inspector who is the subject of the complaint. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. a summary of the complaint.
. a statement as to whether the Chief Animal Welfare Inspector or the Minister has refused to cause the complaint to be investigated and the reasons for the refusal.
. the status and results of any investigation into the complaint.
. the measures, if any, imposed as a result of the complaint. - Disclosure Related to AWI Activities
The below personal information may be disclosed if the CAWI reasonably believes that [Reg 443/19, s.9(1)]:. the disclosure is made for the purpose of informing a person who has an interest in an animal of any actions related to the animal; or
. the CAWI reasonably believes that a failure to disclose the personal information may undermine public confidence in the administration of the Act. The below personal information, if personal information, may be disclosed [Reg 443/19, s.9(2-6)]:
- AWI Entry and Inspection
If an AWI enters and inspects a place [see Ch.6, s.2; PAWS 24(1)]:
. the place inspected
. the purpose of the inspection.
- AWI Orders
If an AWI makes an order [see Ch.6, s.4; PAWS 30(1)]:
. the identity of the person who is subject to the order. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. a description of the animal.
. the actions that the order requires the individual to take.
. the time within which any action required by the order must be performed.
- Distress Removal
If an AWI enters a place [see Ch.6, s.4(c,f); PAWS 31,34] to relieve (removal) an animal from distress or critical distress (enter a vehicle):
. the identity of the owner or custodian of the animal. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. a description of the place that was entered.
. a description of the animal.
. the steps taken to relieve the animal from distress or critical distress, if any.
- Appeals
If an owner/custodian makes an appeal to the Board [see Ch.7; PAWS 38(1)]:
. the identity of the owner or custodian. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. the nature of the appeal.
. any significant steps in the appeal.
. the outcome of the appeal.
- Offences
If an individual is charged with a PAWS offence [see Ch.9]:
. the identity of the individual. 'Identity', in relation to an individual, includes the individual’s name, a description of the individual or an image of the individual [Reg 443/19, s.2].
. the offence with which the individual is charged.
. the outcome of any significant judicial proceedings related to the offence.
- Disclosure for Law Enforcement or Administration of a Government Program
The personal information about an individual to one or more of the entities listed below if [Reg 443/19, s.10(1)]:. the individual is subject to an order [see Ch.6, s.4; PAWS 30(1)]
. an AWI has taken possession of an animal of which the individual is an owner or custodian [see Ch.6, s.4(c,f); PAWS 31,34]
. the individual is under investigation for, is charged with or has been found guilty of an offence under the Act [see Ch.9]. The entities to which personal information may be disclosed are [Reg 443/19, s.10(2)]:. any police service in Canada;
. any correctional or parole authority in Canada; and
. any person or agency engaged in the protection of the public, the administration of justice or the enforcement of, or compliance with, any federal or provincial Act or regulation, municipal by-law or government program. Personal information may only be disclosed under this section if the disclosure is required for the protection of the public, the administration of justice or the enforcement of, or compliance with, any federal or provincial Act or regulation, municipal by-law or government program [Reg 443/19, s.10(3)].
The disclosure of personal information under this section to an entity that is not engaged in the protection of the public or the administration of justice shall be in accordance with a procedure set out in a memorandum of understanding entered into between the Chief Animal Welfare Inspector and the entity [Reg 443/19, s.10(4)].
4. AWI Code of Conduct and Complaints
(a) Overview
Continuing with it's obvious theme of fussing over everything except animal welfare, the province has passed a regulation with it's 'Code of Conduct' (the 'Code') [Reg 445/19], set out below.
"Every AWI, including, for greater certainty, the CAWI and every deputy Chief AWI, shall comply with the prescribed code of conduct" [PAWS 7(1), Reg 445/19, s.1]. These amount to a range of ill-defined 'duties' that AWIs must not contravene.
(b) Mental Elements of Code Contravention
Borrowing on regulatory and criminal offence law, the Code sets an 'objective knowledge' standard for contraventions by AWIs. The act or omission of an AWI does not contravene the Code "if the inspector could not reasonably have known that the act or omission would cause the contravention" [Reg 445/19, s.3(1)].
And in a parallel to the 'ignorance of the law is no excuse' [CCC 19], every AWI "is deemed to be aware of the contents" of the Code [Reg 445/19, s.3(2)].
(c) Code of Conduct Duties
The following are the elements of the Code of Conduct:- Compliance With Act and Regulations
An AWI shall comply with the Act and the regulations [Reg 447/19, s.4].
- AWIs to Comply with Limitations Under Appointment
An AWI shall comply with any conditions or limitations that apply to the inspector’s appointment [Reg 445/19, s.5].
- AWI to Abide by CAWI Directions
An AWI shall comply with any direction from the CAWI [Reg 445/19, s.6].
- Conflicts of Interest and Preferential Treatment
An AWI shall not use or attempt to use his or her appointment as an inspector to directly or indirectly benefit himself, herself or a related person [Reg 445/19, s.7(1)]. An AWI shall not, in the performance of the inspector’s functions, give preferential treatment to any person or entity [Reg 445/19, s.7(2)].
- Confidentiality
An AW shall not disclose confidential information unless the inspector is authorized to do so by the CAWI or is required to do so by law [Reg 445/19, s.8].
For these purposes, “confidential information” means [Reg 445/19, s.2]:. information obtained in the performance or attempted performance of an animal welfare inspector’s functions that relates to a particular person, animal or place, or
. other information identified by the Chief Animal Welfare Inspector as confidential. - Gifts
An AWI shall not accept a gift in relation to the performance of the inspector’s functions [Reg 445/19, s.9(1)]. This rule is excepted if [Reg 445/19, s.9(2)]: . the gift is of nominal value;
. the gift is given as an expression of courtesy or hospitality;
. accepting the gift is reasonable in the circumstances; and
. the AWI promptly reports the gift to the CAWI. - No Undermining of Public Confidence
An AWI shall not act in a manner that undermines, or is likely to undermine, public confidence in the administration of the Act [Reg 445/19, s.10].
- No Distress in Course of Duties
An AWI shall not cause or permit an animal in the inspector’s care to be in distress in the course of performing the functions of an inspector [Reg 447/19, s.11(1)]. An AWI shall not cause an animal in the inspector’s care to be exposed to an undue risk of distress in the course of performing the functions of an inspector [Reg 447/19, s.11(2)].
- Rights and Professionalism
An AWI shall not treat any person in a manner that would contravene the Human Rights Code in the course of performing the functions of an inspector [Reg 445/19, s.12(1)].
An AWI shall not violate the rights of any person under the Canadian Charter of Rights and Freedoms in the course of performing the functions of an inspector [Reg 445/19, s.12(1)].
An AWI shall not use insulting language with any person, or otherwise treat any person in a manner that is abusive or unprofessional, in the course of performing the functions of an inspector [Reg 445/19, s.12(1)].
- Self-Identification
An AWI who exercises a power under the Act shall, on request, identify himself or herself as an inspector, produce identification and explain the purpose of the exercise of the power [Reg 445/19, s.13].
- Use of Force
An AWI shall not use force in the performance of the inspector’s functions except as authorized by law [Reg 445/19, s.14(1)]. An AWI shall not use more force than is reasonably necessary in the performance of the inspector’s functions [Reg 445/19, s.14(2)].
- Inspection or Search
An AWI shall not conduct an inspection or search except as authorized by law [Reg 445/19, s.15].
- Impairment
An AWI shall not perform or attempt to perform the inspector’s functions while impaired, whether through the consumption of drugs or alcohol or otherwise [Reg 445/19, s.16].
For these purposes, "related person" means any person who has one of the following relationships to the AWI or to the spouse of the AWI [Reg 445/19, s.2]:. a child or the spouse of a child.
. a grandchild or the spouse of a grandchild.
. a parent or the spouse of a parent.
. a grandparent or the spouse of a grandparent.
. a sibling or the spouse of a sibling. "Spouse" means:. a spouse as defined in section 1 of the Family Law Act, or
. either of two persons who live together in a conjugal relationship outside marriage. (d) Complaint Right
Members of the public may make a written complaint about the conduct of an AWI to the CAWI, and they may make a similar complaint about the CAWI to the Minister [PAWS 9(1-4)]. In either case the CAWI (or the Minister, as the case may be) has a duty to review the complaint "and determine whether there is cause for it to be investigated" [PAWS 10(1-2)].
These complaint rights apply "to a portion of a complaint as if it were a complaint, unless the context indicates otherwise" [PAWS 8] (I don't know what this means).Note:
The complaint right is deceptive (IMHO several things about PAWS are legally odd, suggesting it was done in a hurry), as it does not require that the making of a complaint relate to a Code violation, but it is only with a Code violation that PAWS allows sanctions against an AWI [PAWS 12(6)]. It seems only logical then that all the steps before a sanction is imposed [(c) 'Refusal to Investigate' and (d) 'Procedure if Grounds to Investigate', below] will be judged by Code-violation standards, that is - they will ask the question whether a Code violation has occured by an AWI, and if not then the complaint will be dropped. Therefore a complainant should logically strive to locate their complaint in specific Code terms. (e) Where CAWI OR Minister May Refuse to Investigate Complaint
Either the CAWI (or the Minister, as the case may be) have the discretion [may] refuse to cause an investigation of a complaint if any of the following apply [PAWS 11(1-4)]:- Events Over Six Months
The facts on which the complaint is based occurred more than six months before the complaint is made [PAWS 11(1)(a),(2)].
In determining this discretion they shall consider:. whether the complainant is a minor or under a disability within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005;
. whether the complainant is or was subject to an inspection, investigation or order PAWS in respect of the events underlying the complaint; and
. whether, having regard to all the circumstances, it is in the public interest for the complaint to be investigated. In assessing the public interest for these purposes the CAWI (or he Minister, as the case may be) shall consider [PAWS 11(4)]:. whether the conduct has been or is currently the subject of an investigation under this Act;
. whether the conduct could be more appropriately dealt with, in whole or in part, under another Act or law or in another adequate forum;
. whether a decision to not conduct an investigation would negatively impact public confidence in the administration of this Act; and
. whether an investigation is reasonably practicable, having regard to the information or evidence available. - Lack of Standing
The complainant was not affected by the conduct of the person who is the subject of the complaint [PAWS 11(1)(b),(3)].
Only the following persons shall be considered to have been affected by the conduct:
- a person at whom the conduct was directed.
- a person who saw or heard the conduct or its effects as a result of being physically present at the time and place where the conduct or its effects occurred.
- a person who:
. was in a personal relationship with a person described in paragraph 1 at the time that the conduct occurred, and
. suffered loss, damage, distress, danger or inconvenience as a result of the conduct.
- No Code Contravention
The complaint alleges conduct that does not, on its face, constitute a failure to comply with the Code [PAWS 11(1)(c)].
- Frivolous and Vexatious
In the opinion of the Chief Animal Welfare Inspector or the Minister [PAWS 11(1)(d),(4)]:. the complaint is frivolous, vexatious or made in bad faith, or
. having regard to all the circumstances, dealing with the complaint is not in the public interest. In assessing the public interest for these purposes the CAWI (or he Minister, as the case may be) shall consider [PAWS 11(4)]:. whether the conduct has been or is currently the subject of an investigation under this Act;
. whether the conduct could be more appropriately dealt with, in whole or in part, under another Act or law or in another adequate forum;
. whether a decision to not conduct an investigation would negatively impact public confidence in the administration of this Act; and
. whether an investigation is reasonably practicable, having regard to the information or evidence available.
If the CAWI (or the Minister, as the case may be) refuses to investigate a complaint, they "shall give notice of the refusal, with reasons, and of the substance of the complaint to" [PAWS 11(5)]: . the complainant;
. the person who is the subject of the complaint; and
. any other 'prescribed person' (regulation not yet used). (f) Procedure if Grounds to Investigate
Where the CAWI (or the Minister, as the case may be) [hereinafter 'they' or 'them'] finds "grounds to believe that the matter complained of warrants investigation", then they shall do the following [PAWS 12(1)]:- Investigate
Cause the complaint to be investigated.
- Notify the Complainant
Inform the complainant about the investigation and keep him or her apprised of the steps taken to resolve the complaint.
- Notify the Subject
Notify the person who is the subject of the complaint, and any other PRESCRIBED person, about the investigation and the substance of the complaint. They are not required to notify the subject of the complaint if in their opinion, it "may prejudice the investigation" [PAWS 12(2)].
If "the subject matter of the complaint is the subject of an investigation or proceeding under another Act or law, and the delay may last until the conclusion of the investigation or proceeding", they may delay any of the actions above [PAWS 12(3)].
The person who conducts such an investigation shall report their results in writing to them [PAWS 12(4)].
They shall notify the complainant, the subject "and any other prescribed person of the findings in the report" (there are no such prescribed persons yet) [PAWS 12(5)].
(g) Sanctions After Report
If "the report discloses evidence" (in the opinion of the CAWI or the Minister, as the case may be) that the subject of the investigation has not complied with the Code of Conduct" the CAWI or the Minister may [PAWS 12(6)]:- Reprimand
Reprimand the person who is the subject of the complaint.
- Suspension
Suspend the subject of the complaint’s appointment for a specified period or until he or she has complied with specified conditions.
- Conditions
Impose conditions on the person who is the subject of the complaint.
- Revocation
Revoke the appointment of the person who is the subject of the complaint.
Before doing any of the above, they shall "provide written notice of the proposed measures to the person who is the subject of the complaint and provide him or her an opportunity to respond orally or in writing, as the Chief Animal Welfare Inspector or the Minister may determine" [PAWS 12(7)]. Upon reviewing the subject's response they may "implement the proposed measures, impose a lesser measure or rescind his or her intention to implement them" [PAWS 12(8)]. They shall notify the complainant ["and any other prescribed person" (regulation not yet used)] of any sanctions taken [PAWS 12(9)].
5. Police and First Nations Constables
Police officers and first nations constables ('officers') have the powers of an AWI with respect to [PAWS 60(1)]:- Entry where animal is in distress [PAWS 28].
- Critical distress [PAWS 29].
- Taking possession of animal in distress [PAWS 31].
- Euthanization of animal [PAWS 32].
- Supply necessaries to animals [PAWS 33].
- Search warrants re offences [PAWS 41].
- Warrant to conduct tests [PAWS 42].
- Production orders [PAWS 43].
- Seizure [PAWS 44].
- Required self-identification [PAWS 47].
- Police assistance and use of force [PAWS 48].
The exercise of these powers by officers shall be reported by the police authorities to the CAWI [regulation not yet prescribed] [PAWS 60(2)].
If an officer takes possession of an animal in distress [under PAWS 31, see Ch.6, s.4] they shall promptly notify an AWI [PAWS 60(3)], and the AWI shall inspect the animal and determine whether to take possession of it [PAWS 60(4)].
6. Legal Immunities
(a) Immunity for AWIs, Police etc Acting for the CAWI
A police officer, First Nations Constable, AWI, or a person who is acting on behalf of the CAWI, is immune from the following offences if the animals, equipment or structures have been seized under this Act [PAWS 65]:- owning or possession of animal fighting equipment [PAWS 16(3)]) or animal fighting structure [PAWS 16(4)]),
- possessing a prohibited animal [PAWS 18],
- possessing a restricted animal without authorization [PAWS 20],
- possessing an orca for the purpose of causing it to be removed from Ontario in accordance with an Ontario Court of Justice order allowing the CAWI to remove the orca from Ontario [PAWS 19, 59(1)],
- convey in writing change of ownership contact information to AWIs [PAWS 30(6)], and
- convey in writing change in ongoing custody contact information to AWIs [PAWS 30(7)].
(b) Civil Immunity
It's common for regulatory statutes in Ontario to have civil immunity provisions in them, limiting civil liability to acts done in bad faith. In the PAWS statute the wording is the done by granting immunity for 'acts done in good faith', but the thrust is the same.
The immunity applies to personal liability to all AWIs, veterinarians, member of the ACRB or person acting in situations of critical distress re motor vehicles [See Ch.6, s.4, PAWS 34] "for any act done in good faith in the execution or intended execution of the person’s powers or duties under this Act or for any neglect or default in the execution, in good faith, of the person’s powers or duties under this Act" [PAWS 66(1)].
Despite Crown Liability and Proceedings Act, 2019, s.8(3), this good faith immunity does not relieve the Crown of any liability to which it would otherwise be subject [PAWS 66(2)].
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