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PAWS - Animal Care Review Board. Ontario (Chief Animal Welfare Inspector) v. Ishankova
In Ontario (Chief Animal Welfare Inspector) v. Ishankova (Div Court, 2023) the Divisional Court considered a Chief Animal Welfare Inspector's (CAWI) judicial review of a Animal Care Review Board (ACRB) ruling that reduced "a statement of account respecting the cost of the necessaries" [under PAWS s.35(1)], here on the basis that the animal owner was impecunious:[1] Animal Welfare Services (“AWS”) removed 80 cats in distress belonging to Ms. Ishankova. AWS delivered a Statement of Account to Ms. Ishankova for the care of her cats in the amount of $58,672.98. Ms. Ishankova appealed the statement of account on the sole basis that she did not have the financial means to pay it.
[2] The Applicant seeks to quash the Decision of Adjudicator Matthew M. Létourneau, for the Board dated January 17, 2022 (the “Decision”), along with the April 29, 2022, Reconsideration Decision by Jennifer Friedland (the “Reconsideration Decision”). The Decision and Reconsideration Decision reduced the statement of account to $1,800 based solely on the owner’s inability to pay.
[3] Section 38(9) of the Provincial Animal Welfare Services Act, 2019[1] (the “PAWS Act”) empowers the Board after holding a hearing, to “confirm, revoke or vary a statement of account” served under s. 35(1). The Applicant submits that the Board misinterpreted the PAWS Act and does not have the jurisdiction to consider ability to pay as a factor. Alternatively, it submits that if the Board does have jurisdiction, the way it applied ability to pay in this case is unreasonable because the outcome defeated the purpose and the scheme of the PAWS Act.
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[15] The PAWS Act which received Royal Assent on December 5, 2019 establishes a comprehensive scheme for protecting animals in Ontario. Pursuant to ss. 2, 28, and 33, Animal Welfare Inspectors (“AWI”) appointed under the PAWS 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 AWI may, at any time, provide necessaries to an animal to relieve it from distress. The Chief Animal Welfare Inspector (“CAWI”) supervises AWI and is also responsible for regulatory enforcement under the PAWS Act and for providing necessaries and care to animals in its possession.
[16] The Board is an adjudicative tribunal established under the PAWS Act and is designated as a constituent tribunal of Tribunals Ontario. It hears appeals from various regulatory activities undertaken by AWI under the PAWS Act, including decisions and orders made by the CAWI[10].
[17] Subsections 31(1), (5), and (8) set out that an AWI may remove an animal for the purpose of providing the animal with necessaries to relieve it from distress.
[18] If an AWI has provided an animal in its care with necessaries to relieve its distress, or the CAWI has decided to keep an animal taken into its care under ss. 31(6), pursuant to ss. 35(1) of the PAWS Act, the CAWI may, “from time to time”, serve on the owner a statement of account respecting the cost of the necessaries.
[19] Under s. 35(1) of the PAWS Act, an owner who is served with a statement of account is liable for the specified amount and must pay it within ten 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. Subsection 35(5) sets out that the CAWI has the discretion to reduce the amount that is owed as well as extend the time period in which it must be paid.
[20] After holding a hearing, s. 38(9) of the PAWS Act empowers the Board to “confirm, revoke or vary a statement of account” served under s. 35(1). The Board may order the Minister to pay, to the owner, the costs of complying with a s. 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 s. 31(1) or kept by the CAWI under s. 31(6).
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The legislation
[49] The provisions in the PAWS Act which deal with the liability of an owner for necessaries provided an animal and a statement of account are set out at s. 35 which provides:Liability of owner or custodian for expenses
35 (1) If an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care, the Chief Animal Welfare Inspector may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.
Statement of account
(2) The statement of account must have printed or written on it the content of subsections 38 (2) and (5).
Obligation to pay
(3) An owner or custodian who receives a statement of account under subsection (1) is, subject to an order made under subsection 38 (9), liable for the amount specified in the statement.
Forfeiture on failure to pay account
(4) Subject to any agreement made under subsection (5), the animal is forfeited to the Crown if,
(a) the owner or custodian does not appeal the statement of account in accordance with subsection 38 (2) and fails to pay the stated amount within a prescribed period of time after receiving the statement of account; or
(b) the owner or custodian appealed the statement of account in accordance with subsection 38 (2) but failed to pay the confirmed or varied amount within a prescribed period of time after the Board provided notice of its decision.
Agreements
(5) Before the expiry of the relevant time period set out in clause (4) (a) or (b), the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both. [50] Section 38 deals with appeals from a statement of account. Subsection 38(2) of the PAWS Act provides:(2) An owner or custodian of an animal who is served with a statement of account may apply to the Board by notice in writing to appeal the statement of account within the prescribed period after being served the statement. [51] Subsection 38(9) of the PAWS Act provides:(9) After a hearing, the Board may do one or more of the following:
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3. Confirm, revoke or vary a statement of account served under subsection 35(1). Jurisdiction Argument
[52] Nothing in s. 38(2) limits the Board’s powers on an appeal from a statement of account.
[53] Subsection 38(9) does not limit what factors the Board can consider when exercising its power to “confirm, revoke, or vary” the statement of account. The Applicant’s argument that the legislative intent was to restrict the Board’s role in reviewing the statement of account to whether the amount has been properly calculated is inconsistent with the broad discretion granted to the Board in s. 38(9). I agree with the Applicant that the relevant factors the Board may consider must align with the rationale and purpose of the statutory scheme. However, there is no merit to the Applicant’s submission that the Board’s jurisdiction is limited to ensuring that the costs are reasonable, accurate and necessary.
[54] The authority to “vary” a decision has traditionally been interpreted as a broad discretion:The words “change”, “alter”, and “vary” (or any combination thereof) have a very broad meaning amounting to the ability for the reviewing body to substitute its own decision for the original including reversing it.[15] [55] In Shamji v. Workers’ Compensation Tribunal,[16] the British Columbia Court of Appeal confirmed that an appeal tribunal’s power to “vary” an underlying decision on appeal includes the authority to substitute its decision for the one made below.
[56] I am not persuaded by the Board’s reasoning that the accountability objective does not apply to the statement of account provisions in the PAWS Act. The fact that the CAWI, tasked with enforcing a statute, has enforcement discretion, does not negate the accountability objective of the statute. I agree with the Applicant that the accountability objective is engaged by the statement of account provisions. However, considering ability to pay is not necessarily inconsistent with promoting accountability. Accountability is just one of the objectives of the PAWS Act. Moreover, taking ability to pay into account could help ensure that the accountability provisions do not impose impossible-to-meet financial obligations on those with inability or limited ability to pay. Taking ability to pay into account may ensure that owners do not lose their animals solely by virtue of their inability to pay the statement of account. This may promote the objective of ensuring animal welfare. An owner may make greater efforts to pay the account if the amount is more manageable which may promote the objectives of accountability and ensuring animal welfare.
[57] Section 35 of the Paws Act gives the CAWI the discretion to reduce the amount that must be paid by an owner or to extend the time by which an owner is required to pay in order to avoid forfeiting their animal to the Crown. While the discretion rests at first instance with the CAWI, the PAWS Act gives the Board a broad oversight role over various CAWI enforcement activities. There are no express restrictions on the Board’s authority to “vary” a statement of account. This supports the reasonableness of the Board’s determination that it has the jurisdiction to consider an owner’s ability to pay as a factor when reviewing a statement of account.
Non Jurisdiction Argument
[58] I do not agree with the Applicant that the Board’s Order frustrates the purposes and scheme of the PAWS Act and is unreasonable. The Applicant argues that as a result of the Board’s decision, the animals could not be rehomed or adopted out because they still belonged to Ms. Ishankova, costing the taxpayers an additional $215,607.58. In fact, the statutory scheme provides that when an owner exercises the statutory right to appeal, the statement of account under s. 35(1) of the PAWS Act, the appeal acts as a stay and the animal is not forfeited pending the appeal.
[59] The Board found in the Reconsideration decision that it did not have jurisdiction to order a payment period beyond the ten-day payment period already prescribed by statute. Having not paid the $1,800 to which the Board varied the statement of account within ten business days after that decision, the animals would have been forfeited under s. 35(1) of the PAWS Act. But forfeiture of the animals had already occurred by virtue of the second statement of account which Ms. Ishankova did not pay or appeal. This outcome was in conformance with the PAWS Act and there was nothing about the Board’s Order that frustrated the purpose or scheme of the PAWS Act.
[60] With respect to the Applicant’s submission that the Board erred by eliminating nearly the entirety of the statement of account, deference is owed to the Board’s expertise. At para. 31 of Vavilov,[17] the Supreme Court states that ‘expertise remains a relevant consideration in conducting [a] reasonableness review.’ Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on ‘considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise’ (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it. . Pryde v. Chief Animal Welfare Inspector
In Pryde v. Chief Animal Welfare Inspector (Div Court, 2022) the Divisional Court considered an 'alternative adequate remedy' (AAR) argument in a JR. Here the argument was that the applicant had not availed themselves of a rule-available reconsideration at the Animal Care Review Board. The court declined to apply to AAR argument against the applicant, in part because it would further a multitude of proceedings (SS: that's refreshing):[13] The Respondent and the Board rely on Chief Animal Welfare Inspector v. Jackson, 2022 ONSC 872 (Div. Ct.), in which this Court declined to hear an application for judicial review because the Applicant failed to request reconsideration. In Jackson, the Board reduced accounts of $1,594.41, $450.00, and $2,025.00 rendered to an owner after three dogs were removed from his care, based on a finding that the owner did not have the means to pay those accounts.
[14] Our facts are different. This not a one-issue case. The record is voluminous. Sending part of the case back for reconsideration would not dispose of the matter but would potentially lead to further proceedings in parallel to the judicial review of the Compliance Decision. This would fragment the proceedings, add cost, and delay a final disposition of all issues necessary to decide the fate of the animals. Dismissing the review of the Enforcement Decision in this case would be an injustice and would perpetuate conflict. The applicants have been clear throughout that they wish to challenge the Enforcement Decision and we would not deprive them of the opportunity to do so because they pursued a sub-optimal approach to challenging the decision – thus, the choice for us, in this case, is whether to require the applicants to return before the Board with a request for reconsideration, or whether to hear the application for judicial review of the Enforcement Decision now, without the Applicants having had recourse to the reconsideration process before the Board.
[15] As the court noted in Jackson, this court has discretion to permit a party to seek judicial review where it has not sought reconsideration. The court considers the nature of the alleged grounds for review, the remedial capacity of the tribunal, the expertise of the tribunal and economical use of judicial resources and any other matter bearing on whether this court should exercise its jurisdiction: see also Strickland v. Canada (Attorney General), 2015 SCC 37 (CanLII), [2015] 2 S.C.R. 713 at para. 42. In the circumstances of this case, including the history of the litigation, the decision of this court to hear the judicial review of both applications together, the impact of further delay on living animals, the costs involved in the ongoing care of those animals, the ability of this court to determine the issues, and the comprehensive record filed, all weigh in favour of hearing both applications on the merits now. Further delay would not be in the interests of the parties, the animals involved, or the administration of justice.
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