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PAWS (Provincial Animal Welfare Services Act)
Legal Guide
Ch.10 - Administrative Penalties- Overview
(a) General
(b) Purposes
(c) Whole System Unavailable for Lack of Necessary Appointments and Regulations
- Procedures
- Penalty Amounts
- Limitation
- Reviews
(a) Commencing a 'Review'
(b) Findings on Review
(c) Collection and Enforcement
Note:
As is noted [in s.1(c)] below, the administrative penalty review system is currently ineffectual due to lack of necessary review 'entity' appointments in the regulations. When (and if) this omission is remedied the review system is intended to function as set out in this section.
1. Overview
(a) General
Lately, regulatory statutes are favouring 'administrative penalties' over the more traditional 'offences' which are prosecuted under the POA. These administrative penalties are fines assessed by the CAWI.
(b) Purposes
The purposes of administrative penalties are [PAWS 51(2)]:. to encourage compliance with this Act and the regulations.
. to prevent a person from deriving, directly or indirectly, any economic benefit as a result of a contravention of this Act or the regulations. The primary difference between administrative penalties and prosecutable POA offences is that that former do not attract Charter s.7 [life, liberty and security of the person] application, because only offences can impose incarceration. Administrative penalties are the 'new' administrative law sanctions, which we can expect provincial regulatory authorities to embrace vigorously in all fields.
(c) Whole System Unavailable for Lack of Necessary Appointments and Regulations
Unfortunately, like so much of the rest of PAWS, the administrative penalty system fails for lack of required regulations being promulgated.
The problem is this. 'Reviews' of notices of contravention (which initiate administrative penalties) [see s.5 'Reviews', below] (they are commonly called 'appeals') may be required by the recipient of an administrative penalty by filing it with "an entity prescribed by the Lieutenant Governor in Council" [PAWS 51(6)]. However, no such 'entity' has been yet named in any PAWS regulation and so the administrative penalty regime lacks this basic statutory review element and is therefore legally ineffectual. Any assessed 'notices of contravention' would be blatantly vulnerable to an administrative 'fairness' (Baker) judicial review application [see Administrative Law].
Second, many of the contraventions that ostensibly allow for the imposition of administrative penalties cannot yet be assessed because (again) the regulatory infrastructure that is required for them does not yet exist. For example, the Act provides that they may be assessed on contravention of the following [PAWS 51(1)]:- 'Restricted Animal' Authorizations
A condition of an authorization issued with respect to restricted animal possession or breeding [see Ch.5, PAWS 20].
- 'Prescribed Activities' Authorizations
A condition of an authorization issued with respect to 'prescribed activities' [see Ch.1, PAWS 21], or
- Any Regulation Provision
A provision prescribed by the Lieutenant Governor in Council.
As is explained in those chapter references, the first two of these lack necessary regulation to make them effective - ie. you could not contravene them even if you wanted to. The third is essentially any regulatory contravention, and as such - given the status of the regulations at 01 October 2021 - they only can apply to:- Standards of Care and Administrative Requirements [Reg 444/19]
- Code of Conduct [Reg 445/19]
- Disclosure of Personal Information [Reg 443/19].
Of these three regulations, only 'standards of care' contraventions can be expected to attract any substantial degree of application of administrative penalties.In short, while these statutory provisions are technically 'in force', they are largely ineffectual for lack of necessary supporting regulation.
2. Procedures
The assessing of an administrative penalty is done by the issuance by the CAWI of a 'notice of contravention' "setting out his or her belief and requiring the person to pay the administrative penalty prescribed for the contravention in question" [PAWS 51(1)].
The CAWI may issue a notice of contravention to a person even though [PAWS 57(1)]:. an order has been made or may be made against the person [see Ch.6, PAWS 30]; or
. the person has been or may be prosecuted for or convicted of an offence with respect to the same contravention [see Ch.9]. A notice of contravention shall [PAWS 51(5)]:- contain or be accompanied by information setting out the nature of the contravention;
- set out the amount of the penalty to be paid and specify the time and manner of the payment; and
- inform the person of his or her right to apply for a review of the notice by an entity prescribed by the Lieutenant Governor in Council.
3. Penalty Amounts
The amount of an administrative penalty (if and when issued) prescribed for a contravention shall reflect the purposes referred to in s.1(b) (above) [PAWS 51(3)].
4. Limitation
A notice of contravention shall not be issued under this section more than one year after the contravention first came to the knowledge of an animal welfare inspector [PAWS 51(4)].
5. ReviewsNote:
As is noted [in s.1(c)] above, the administrative penalty review system is currently ineffectual due to lack of necessary review 'entity' appointments in the regulations. When (and if) this omission is remedied the review system is intended to function as set out in this section. (a) Commencing a Review (aka Appeal)
A person who receives a notice of contravention may require an 'entity' (they mean a legal body, which hasn't been named yet) "prescribed by the Lieutenant Governor in Council to review the notice of contravention". A review shall be commenced by applying to the prescribed entity in a form approved by the CAWI, and the 'entity' shall conduct the review "with the regulations made by the Lieutenant Governor in Council" [none of these have yet been passed either] [PAWS 51(6,8)]:. within 15 days after receipt of the notice of contravention; or
. if the prescribed entity considers it appropriate in the circumstances to extend the time for applying, within the period specified by the prescribed entity. (b) Findings on Review
Upon a review, the 'entity' may [PAWS 51(9)]:- find that the person did not contravene the provision of this Act or of the regulations specified in the notice of contravention and rescind the notice;
- find that the person did contravene the provision of this Act or of the regulations specified in the notice of contravention and affirm the notice; or
- find that the person did contravene the provision but that the prescribed penalty is excessive in the circumstances and amend the notice by reducing the amount of the penalty.
A decision by the 'entity' is final [PAWS 51(10)]. This is an attempt at a 'privative' clause, which will normally not be respected by the courts - an aggrieved party has the right of Judicial Review
(c) Collection and Enforcement
If no review is requested, "the person shall pay the penalty within 30 days after the day the notice of contravention was served" [PAWS 51(7)].
If a review is requested, and the 'entity' finds that the notice of contravention is upheld [or reduced in amount under PAWS 51(9)(c)], then "the person shall pay the penalty required by the prescribed entity within 30 days after the day of the entity’s decision" [PAWS 51(11)].
The administrative penalty shall be paid to the Minister of Finance [PAWS 51(12)].
Additional PAWS collection and enforcement provisions are located at these cites:s.52 Enforcement of administrative penalty
s.53 Crown debt
s.54 CAWI may authorize collector
s.55 Collector’s powers
s.56 Settlement by collector
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