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PAWS (Provincial Animal Welfare Services Act)
Legal Guide
Ch.7 - Animal Care Review Board- Overview
- Appeals and Applications
(a) Appeals
(b) Applications
(c) Board Hearing Procedures
(d) Board Powers
(e) Notice of Board Decision
(f) Service of Documents
1. Overview
Under the old OSPCA Act there was an appeal tribunal, the Animal Care Review Board ('ACRB', or 'the Board'). The ACRB is continued in the PAWS Act [PAWS 37(1-3, 5), 70(4)]. It may sit with one or more members [PAWS 37(4)], and have employees [PAWS 37(6)].
It hears appeals and applications of many of the situations that are dealt with in Ch.6, s.4 ["Distress Powers"], where an AWI gives notice to the owner/custodian of an animal of such actions as making orders, taking possession and euthanasia.
With appeals, it is the giving by the AWI of such a notice that triggers these appeal rights ('10 business days') [Reg 447/19, s.3].
There are also 'application' rights which are triggered by the termination of the conditions that led to the animal being seized - ie. "if the animal has ceased to be in distress" [PAWS 38(3)] and "if the conditions that caused the animal to be kept in or taken into the Chief Animal Welfare Inspector’s care have ceased to exist" [PAWS 38(4)].
This is the ACRB website.
2. Appeals and Applications
(a) Appeals
Owners/custodians of animals may appeal the following matters to the Board, by notice in writing given 10 business days "after being served the order, notice of decision or statement of account, as the case may be" [PAWS 38(1-2); Reg 447/19, s.3]:- Orders
An order from an AWI, within 10 business days after receiving notice of it.
An appeal of such an order does not stay it's operation [PAWS 38(13)].
- Removals
A decision by an animal welfare inspector to remove an animal from a place, within 10 business days after receiving notice of it.
- CAWI Transfers
A decision to to keep an animal in or take an animal into the CAWI’s care, within 10 business days after receiving notice of it.
- Statements of Account
Upon being served with a statement of account they may apply to the Board by notice in writing to appeal it within 10 business days.
(b) Applications
. General
As noted above, there are also 'application' rights which are triggered by the termination of the conditions that led to the animal being seized - ie. "if the animal has ceased to be in distress" [PAWS 38(3)] and "if the conditions that caused the animal to be kept in or taken into the Chief Animal Welfare Inspector’s care have ceased to exist" [PAWS 38(4)].
'Applications' can be an awkward and delicate procedure. Because commencing an application is not subject to the appeal '10 business day' time limit, but because of the inherent uncertainty as to when 'ceasing to be in distress' starts, it can be practically best to commence an application as soon as is possible. But that's not all of your concerns.
. Forfeitures
More importantly, PAWS has several 'forfeiture' provisions which can easily - and without notice to the owner/custodian - have the effect of changing ownership of the animal, thus rendering the application (or appeal) pointless, and resulting in the loss of the animal forever. These 'forfeiture' provisions include those explained at these sections of the Guide:- Ch.6: Protective Search, Seizure and Powers, s.5 Liability of Owner/Custodian for Distress-Related Necessities, (d) Forfeiture on Failure to Pay;
- Ch.6: Protective Search, Seizure and Powers, s.6 Animal Forfeitures;
- Ch.8: Enforcement Search, Seizure and Powers, s.3 Other Search and Seizure Methods, Forfeitures'.
. Forms of Applications
There are two forms of application:- Revocation of Order, When Spent
After the owner/custodian receives an AWI order they may apply to the Board by notice in writing to have the order revoked, "if the animal has ceased to be in distress" [PAW 38(3)].
- Return of Animal, When CAWI Transfer Spent
If an animal has been kept in or taken into the CAWI's care, the owner/custodian may apply to the Board by notice in writing to have the animal returned, "if the conditions that caused the animal to be kept in or taken into the Chief Animal Welfare Inspector’s care have ceased to exist." [PAWS 38(4)].
(c) Board Hearing Procedures
. Appeals and Applications
The Board procedures for both 'appeals'and 'applications' are quite similar. "A notice to the Board (ie. an 'appeal/application notice') must set out the remedy or action sought and the grounds for the appeal or application" [PAWS 38(5)].
Within five business days of receiving an appeal/application notice, the Board shall [PAWS 38(6)]:- fix a time, date and place at which the Board "will commence the proceedings regarding the matter, which proceedings may commence by conducting a pre-hearing conference"; and
- notify the CAWI and the owner/custodian who filed the appeal notice of the time, date and place of the hearing.
The matter shall be dealt with on an expedited basis, and the date fixed for commencing the proceedings "shall be not more than 10 business days after the receipt of the notice" [PAWS 38(7)].
Subject to the ACRB Rules of Practice, at a hearing, the CAWI and the owner/custodian are entitled to hear evidence, cross-examine, call witnesses, present arguments and be represented by persons authorized under Law Society By-Law 4, Part V, s.30 to represent them [PAWS 38(8)].
. ACRB Rules of Practice
These Rules are governed by the Statutory Powers Procedure Act (SPPA) [Administrative Law (SPPA) Legal Guide], and by additional provisions set out in PAWS 39. In the event of conflict with PAWS, the regulations and the ACRB Rules of Practice prevail over the SPPA [PAWS 40].
Failure to comply with these rules is not grounds for setting aside a Board decision on judicial review, unless the failure or the exercise of a discretion causes a substantial wrong which affects the final disposition of the matter [PAWS 39(6)].
(d) Board Powers
The Board may, after a hearing, do any of the following [PAWS 38(9)]:- Distress Orders
Confirm, revoke or modify an order.
- Return of Animal
Order that an animal removed, or that was taken into the CAWI's care, be returned to the owner or custodian.
- Statement of Account - Revoke
By order, revoke a statement of account.
- Statement of Account - Confirm or Vary
Confirm or vary a statement of account and order that the costs be paid, as confirmed or varied, to the Minister of Finance. Such orders for the payment-of-money may be enforced by filing certified copies of them with the sheriff "as if it were an execution issued by the Superior Court of Justice" [PAWS 38(10.2), SPPA 19(3)].
- Costs Reimbursement to Owner/Custodian
Order that the whole, or any part of the cost, to the owner/custodian of an animal of complying with an order be paid by the Minister to the owner or custodian. Such orders for the payment-of-money may be enforced by filing certified copies of them with the sheriff "as if it were an execution issued by the Superior Court of Justice" [PAWS 38(10.2), SPPA 19(3)].
- Costs Reimbursement to Minister of Finance
Order that the whole or any part of any costs for distress-related owner/custodian's liability [as set out in "Ch.6: Protective Search, Seizure and Powers, 5. Liability of Owner/Custodian for Distress-Related Necessities, (a) Circumstances of Debt"] "be paid by the owner or custodian of the animal to the Minister of Finance." Such orders for the payment-of-money may be enforced by filing certified copies of them with the sheriff "as if it were an execution issued by the Superior Court of Justice" [PAWS 38(10.2), SPPA 19(3)].
The Board may make a removal order subject to compliance with a further order issued by the Board in the same terms as a distress order [Ch.6, s,4 "Distress Orders"], which shall be deemed to have been made as a distress order [PAWS 38(10)].
The Board may use any of these powers without a hearing if the parties (ie. the CAWI and the appellant) consent to it [PAWS 38(11)].
(e) Notice of Board Decision
The Board shall promptly serve notice of its decision together with written reasons on the CAWI and the owner/custodian of the animal [PAWS 38(12)].
(f) Service of Documents
PAWS spells out several acceptable methods and rules for service of "orders, notices or statements of account" - both by PAWS officials and by parties, as the case may be - as follows [PAWS 68(1-2); Reg 316/23, s.1-2]:- Personal Service
This means direct physical service on an individual. It is normally effective immediately (excepting complications respecting sleep, incapacity, etc).
- Registered Mail
Registered mail service is effective "on the fourth day after it was mailed.
If the effective date is a holiday, service is instead effective on the next day. "Holiday" means:(a) any Saturday or Sunday,
(b) New Year’s Day,
(c) Family Day,
(d) Good Friday,
(e) Easter Monday,
(f) Victoria Day,
(g) Canada Day,
(h) Civic Holiday,
(i) Labour Day,
(j) Thanksgiving Day,
(k) Remembrance Day,
(l) Christmas Day,
(m) Boxing Day, and
(n) any special holiday proclaimed by the Governor General or the Lieutenant Governor. - Courier
Courier service is effective:
- on the day after the day the courier picks it up, in the case of same-day courier service;
- on the second day after the day the courier picks it up, in the case of next-day courier service.
- Fax
Fax service is effective on the day shown on the first page of the fax message (assuming it is accurate).
- Electronic Mail
Electronic mail is effective on the day shown on the first page of the email message (assuming it is accurate).
- Regular Mail
Regular mail service is effective "on the seventh day after it was mailed". Use of 'regular mail' for PAWS-related service is often ill-advised due to this relatively long delay.
Note that 'regular mail' is not an accepted method of service for a distress-related "Order to owner of animals, etc." [under PAWS s.30] [Reg 316/23, s.1(2)].
If the effective date is a holiday, service is instead effective on the next day. "Holiday" means:(a) any Saturday or Sunday,
(b) New Year’s Day,
(c) Family Day,
(d) Good Friday,
(e) Easter Monday,
(f) Victoria Day,
(g) Canada Day,
(h) Civic Holiday,
(i) Labour Day,
(j) Thanksgiving Day,
(k) Remembrance Day,
(l) Christmas Day,
(m) Boxing Day, and
(n) any special holiday proclaimed by the Governor General or the Lieutenant Governor. - Service on a Corporation
For corporations, service is allowed:
- by leaving the document with an officer, director or agent of the corporation, or
- if it is not practicable to leave the document with an individual (as above), leaving the document at any place of business of the corporation with a person who appears to be managing the place.
This method of service is effective "on the day the document is left with the person".
- Where Person Absent
"If the person to be served cannot conveniently be found, leaving the document at the person’s last known or usual place of residence with an individual who appears to be at least 18 years of age and a member of the same household as the person."
This method of service is effective "on the day the document is left with the person".
- Notice re Taking Possession of Animal in Distress (Vehicular)
Notices served on an owner/custodian of an animal under the "Notice re Taking Possession of Animal in Distress" provision [PAWS 31(5)] - when the animal has been removed from a motor vehicle - may be made by "affixing the notice to the motor vehicle in a conspicuous location at the time of removal".
This method of service is effective "on the day the notice is affixed to the motor vehicle".
- Notice re Taking Possession of Animal in Distress (Non-Vehicular)
Notices served on an owner/custodian of an animal under the "Notice re Taking Possession of Animal in Distress" provision [PAWS 31(5)] - when the animal has been removed from a place other than a motor vehicle - may be made by "leaving the notice in a conspicuous location at the place at the time of removal", and - if the identity and address of the owner or custodian are known - mailing a copy of the notice to the owner or the custodian no later than the day following the removal.
This method of service is effective:
- if no copy of the notice is mailed because the identity or address of the owner or custodian is unknown, on the seventh day after the notice was left in a conspicuous location at the place from which the animal was removed;
- if a copy of the notice is mailed by registered mail, on the fourth day after it was mailed;
- if a copy of the notice is mailed by regular mail, on the seventh day after it was mailed.
- Service on Legal Counsel
If a person has consented in writing to being served through their legal counsel, serving the document on such counsel by any method may include:
- service "personally or by registered mail, courier, fax, electronic mail or other prescribed method in accordance with the regulations" [PAWS 68(1)]; or
- regular mail - but note that regular mail is not an accepted method of service for a distress-related "Order to owner of animals, etc." [under PAWS s.30] [Reg 316/23, s.1(2)].
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