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PAWS Dicta - Forfeiture. Guillaume v. Ontario (Chief Animal Welfare Inspector)
In Guillaume v. Ontario (Chief Animal Welfare Inspector) (Div Court, 2024) the Divisional Court considered (and dismissed) a CJA 21(5) set aside motion of an earlier unsuccessful court stay motion of a ACRB order dismissing an appeal as moot:[7] In the Stay Decision, Nishikawa J. accepted the Chief Inspector’s submission that the applicant’s motion to stay should be dismissed as moot: Stay Decision, at paras. 7-10. She reasoned that because the applicant failed to pay the Statement of Account within the required period of ten business days after the Board Decision, the animals were forfeited to the Crown under s. 35(4) of PAWSA. The motion judge also found that in the event the stay motion was not moot, the three-part test for granting a stay (set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311) had not been met, on the evidence before her: Stay Decision, at paras. 5-6, 11. While it was conceded that the judicial review application raised a serious question (satisfying the first element of the stay test), the motion judge found that the applicant had not demonstrated that (i) there would be irreparable harm if the stay was not granted, or that (ii) the balance of convenience favoured granting the stay.
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[9] The applicant submits that the motion judge erred in her findings relating to both mootness and the test for staying the Board Decision.
[10] With respect to mootness, the applicant challenges the motion judge’s conclusion that the animals were forfeited to the Crown before she brought her stay motion. The motion judge justified that conclusion on the basis that the applicant did not pay the Statement of Account (or negotiate an arrangement with the Chief Inspector) within the required period of ten business days after the Statement of Account was issued: see Stay Decision, at paras. 8-10. Among other things, the applicant argues that she served her Notice of Appeal within the required ten-day business day period, with the result that there was an automatic stay of the Board Decision under s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). The applicant argues that because the Board Decision requires the payment of money to satisfy the Statement of Account, it was automatically stayed when the Notice of Appeal was filed. The applicant also argues that instead of striking her Notice of Appeal, it was open to Matheson J. to treat it as a Notice of Application for Judicial Review, in which case she would have had the benefit of the automatic stay under s. 25(1) of the SPPA.
[11] We see no merit in those submissions. Section 25(1) of the SPPA provides an automatic stay of a tribunal decision that is under appeal, but only if there is a right of appeal from the tribunal decision. There was no statutory appeal from the Board Decision in this case. The fact that the decision being challenged provides for the payment of money does not create a right of appeal and is not relevant under s. 25(1). As well, even if the Notice of Appeal was treated as a Notice of Application for Judicial Review as the applicant suggests, there would be no automatic stay since a judicial review application does not give rise to an automatic stay of the tribunal decision and no stay application was brought within the required ten business day period (as the motion judge correctly stated in the Stay Decision, at para. 10). In these circumstances, we see no error of law or a palpable and overriding error of fact arising from the motion judge’s conclusions relating to mootness. . Guillaume v. Chief Animal Welfare Inspector
In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered a motion to stay [under CJA s.106] administrative decisions from the PAWS Animal Care Review Board (ACRB), pending a JR.
In these quotes the court considers (and accepts and applies) the respondent CAWI's submissions that the JR is moot since the PAWS statute [at s.35(4)(b)] conveys ownership of the subject animals to the CAWI once an animal-care 'Statement of Account' (SOA) is in default:[7] The Respondent takes the position that the motion for a stay of the Decision is moot. The Respondent submits that in this case, the animals were forfeited by operation of statute, long before the Applicant sought a stay. As a result, they are no longer the property of the Applicant.
[8] Under s. 35(1) of the Act, an owner or custodian is liable for expenses incurred by an inspector or the CAWI when necessaries are provided to relieve an animal of distress. Pursuant to s. 35(4), if the owner or custodian does not pay a SOA that has been varied or confirmed after an appeal to the ACRB, the animals are forfeited to the Crown. Under s. 1(2) of O. Reg. 447/19, the prescribed time period for payment of a SOA is ten business days.
[9] Since the ACRB dismissed the underlying appeals and confirmed the SOA, payment of the SOA was due ten business days later, or on August 18, 2023. The Applicant has made no payments to date. Nor has she negotiated an arrangement with the CAWI. Therefore, by operation of s. 35(4)(b) of the Act, the animals that were removed have been forfeited to the Crown. Forfeiture occurs by statute and is not subject to any further action by the Crown or CAWI. Once animals are forfeited to the Crown, they become the property of the Crown and the previous owner/custodian ceases to have any rights of ownership or possession over the animals. Subsection 63(1) of the Act provides that the CAWI is authorized by the Crown to “deal with the animal as if the [CAWI] were the owner[.]”
[10] Because the cats were forfeited to the Crown on August 18, 2023, they are no longer her property, and the issue of a stay is moot. While the Applicant submits that she served a notice of appeal within the 10-day period, and it was always clear that she intended to challenge the Decision, the Applicant did not take any of the available steps in relation to the SOA. Moreover, the Applicant was advised by Matheson J. in her direction dated August 21, 2023 that there was no automatic stay pending the outcome of a judicial review application. The Applicant did not bring her motion for stay until September 5, 2023.
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