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=Aminal Care Review Board= * Is it a court of Competent Jurisdiction? ==Statutory Powers Procedure Act, R.S.O. 1990, c. S.22== 25. (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless, ::(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or ::(b) the tribunal or the court or other appellate body orders otherwise. 1997, c. 23, s. 13 (21). :(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2 (1) of that Act is not an appeal within the meaning of subsection (1). R.S.O. 1990, c. S.22, s. 25 (2). <ref name="SPPA">Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, <https://www.ontario.ca/laws/statute/90s22#BK48>, retrieved on 2024-03-21</ref> ==Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board, 2022 ONSC 872 (CanLII)<ref name="Jackson"/>== [4] The Divisional Court has jurisdiction to hear applications for judicial review from the Board under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, ... [5] The parties agree that the standard of review is reasonableness. [6] Additionally, there is no standard of review for questions of procedural fairness. The question is whether the requisite level of procedural fairness was met by the Board. <ref name="Jackson">Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board, 2022 ONSC 872 (CanLII), <https://canlii.ca/t/jm855>, retrieved on 2024-03-21</ref> ==Judicial Review Procedure Act, R.S.O. 1990, c. J.1== 2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: ::1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. ::2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O. 1990, c. J.1, s. 2 (1). :(2) The power of the court to set aside a decision for error of law on the face of the record on an application for an order in the nature of certiorari is extended so as to apply on an application for judicial review in relation to any decision made in the exercise of any statutory power of decision to the extent it is not limited or precluded by the Act conferring such power of decision. R.S.O. 1990, c. J.1, s. 2 (2). :(3) Where the findings of fact of a tribunal made in the exercise of a statutory power of decision are required by any statute or law to be based exclusively on evidence admissible before it and on facts of which it may take notice and there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside the decision on an application for judicial review. R.S.O. 1990, c. J.1, s. 2 (3). :(4) Where the applicant on an application for judicial review is entitled to a judgment declaring that a decision made in the exercise of a statutory power of decision is unauthorized or otherwise invalid, the court may, in the place of such declaration, set aside the decision. R.S.O. 1990, c. J.1, s. 2 (4). :(5) The court may refuse to grant any relief on an application for judicial review. 2020, c. 11, Sched. 10, s. 1. ... 6 (1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court. R.S.O. 1990, c. J.1, s. 6 (1). :(2) An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice. R.S.O. 1990, c. J.1, s. 6 (2); 2006, c. 19, Sched. C, s. 1 (1). :(3) Where a judge refuses leave for an application under subsection (2), he or she may order that the application be transferred to the Divisional Court. R.S.O. 1990, c. J.1, s. 6 (3). :(4) An appeal lies to the Court of Appeal, with leave of the Court of Appeal, from a final order of the Superior Court of Justice disposing of an application for judicial review pursuant to leave granted under subsection (2). R.S.O. 1990, c. J.1, s. 6 (4); 2006, c. 19, Sched. C, s. 1 (1). <ref name="JRPA">Judicial Review Procedure Act, R.S.O. 1990, c. J.1, <https://www.ontario.ca/laws/statute/90j01>, retrieved on 2024-03-21</ref> ==Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13== 38 (1) An owner or custodian of an animal may appeal any of the following to the Board: ::1. An order from an animal welfare inspector. ::2. A decision by an animal welfare inspector to remove an animal from a place. ::3. A decision to keep an animal in or take an animal into the Chief Animal Welfare Inspector’s care. ::4. A statement of account. 2023, c. 12, Sched. 6, s. 10 (1). :(2) An appeal under subsection (1) shall be made by notice in writing and must be made within the prescribed period after being served the order, notice of decision or statement of account, as the case may be. 2023, c. 12, Sched. 6, s. 10 (1). :... :(9) After a hearing, the Board may do one or more of the following: ::1. Confirm, revoke or modify an order made under section 30. ::2. Order that an animal removed under subsection 31 (1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian. ::3. By order, revoke a statement of account. ::3.1 Confirm or vary a statement of account and order that the costs be paid, as confirmed or varied, to the Minister of Finance. ::4. Order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under section 30 be paid by the Minister to the owner or custodian. ::5. Order that the whole or any part of any costs described in subsection 35 (1) in relation to an animal, including but not limited to the costs set out in subsection 35 (2), be paid by the owner or custodian of the animal to the Minister of Finance. 2019, c. 13, s. 38 (9); 2023, c. 12, Sched. 6, s. 10 (6, 7). <ref name="PAWS">Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, <https://www.ontario.ca/laws/statute/19p13>, retrieved on 2024-03-21</ref> ==E.S. v. Joannou, 2017 ONCA 655 (CanLII)<ref name="E.S"/>== [83] <b><u>I reach this conclusion in light of the fact that s. 52(1) jurisdiction was removed</b></u>, but also for several other reasons: the strict timelines under which the Board operates; the limited dispositions available to the Board; the composition and expertise of the Board; the provisions for the appeal of the Board’s decisions; and the fact that, in making its decisions, the Board can and does take Charter rights into account. I will address each of these in turn. ... [94] <b><u>The Board’s function is primarily forward-looking and non-adversarial. Nothing in the relevant statutes suggests that the Board is to review and assess prior misconduct.</b></u> For example, s. 41(1) of the Mental Health Act provides that upon an application the Board is to determine whether or not the conditions for involuntary status “continue to be met at the time of the hearing”. The issue is not, therefore, whether the original determination was correctly made but rather whether the patient still meets the conditions. The process is more inquisitorial than fault- or blame-based. ... [96] Appeals from decisions of the Board are to the Superior Court pursuant to an expedited procedure. This further supports a legislative intention to limit the Board to the functions assigned to it by statute and to exclude s. 24(1) Charter jurisdiction. Significantly, on an appeal from the Board under the Health Care Consent Act or Mental Health Act, the Superior Court can receive new or additional evidence as it considers just: Health Care Consent Act s. 80(9); Mental Health Act s. 48(3). This is somewhat akin to the two-stage process discussed in <i>Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22</i><ref name="Tétreault-Gadoury"/>. <b><u>The appeal structure allows a party who appeals a Board decision to introduce additional evidence on the appeal, with the court’s consent. The issues before the Superior Court could potentially be broadened to include alleged Charter breaches and remedies sought.</b></u> [97] If necessary, it is open to an appellant to combine the appeal with an originating application to the Superior Court seeking Charter remedies. <b><u>This ability to rapidly appeal to the Superior Court and introduce fresh evidence is in contrast to the procedure for appealing decisions of the ORB, which was found to have s. 24(1) jurisdiction in Conway.</b></u> An appeal from the ORB is directly to the Court of Appeal, which is not a court of inherent jurisdiction, and the admission of fresh evidence is circumscribed by s. 672.73 of the Criminal Code. <ref name="E.S">E.S. v. Joannou, 2017 ONCA 655 (CanLII), <https://canlii.ca/t/h5h60>, retrieved on 2024-03-21</ref> <ref name="Patient">Ontario (Attorney General) v. Patient, 2005 CanLII 3982 (ON SCDC), <https://canlii.ca/t/1jtdp>, retrieved on 2024-03-21</ref> <ref name="Starson">Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 SCR 722, <https://canlii.ca/t/1g6p9>, retrieved on 2024-03-21</ref> <ref name="Tétreault-Gadoury">Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 SCR 22, <https://canlii.ca/t/1fsl8>, retrieved on 2024-03-21</ref> ==Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 33 (CanLII)<ref name="Pryde"/>== [29] On the submissions before me on this motion, I agree with the respondent and find that the Board is not a court of competent jurisdiction for the purposes of s. 24 of the Charter and, therefore, does not have jurisdiction to grant Charter remedies. While the parties do not take issue with the Board being able to decide questions of law which, in turn, creates the presumption that the Board is a court of competent jurisdiction for the purposes of s. 24(1) of the Charter according to Conway, the respondent submitted that the Board fails on the second stage of the three-step process set out in Conway and I agree. <b><u>Despite the Act not expressly excluding the Board’s ability to grant Charter remedies, I agree with the respondent that the Act clearly implies that the Board does not have Charter jurisdiction for the following reasons:</b></u> ::<b>(a) Since the decision in Johnson, which I am not bound by, the governing legislation of the Board has changed from the OSPCA Act to the Act. While the strict deadlines have not changed in terms of the Board being required to fix a date for the hearing not more than ten business days of an appeal being received</b>, the Act now states that the hearing shall be dealt with on an expedited basis and this language was not included in the OSPCA Act;[24] ::(b) The strict timelines under the Act for a Board hearing to begin are similar to the strict timelines of the Consent and Capacity Board under consideration in the E.S. decision. In E.S., the court held that delays were contrary to the objective of the governing legislation and that the tight timelines to commence a hearing were understandable and necessary given the nature of the matters that are decided upon by the Consent and Capacity Board.[25] Similar to the Consent and Capacity Board, the Board is mandated to ensure efficient and timely resolutions of the merits of proceedings before it[26] and are directed to expedite proceedings. <b><u>Also similar to the E.S. decision, the tight timelines under the Act are understandable and necessary given that the appeals before the Board involve relatively urgent situations of animals alleged to be in distress;</b></u> ::(c) I share the concerns raised in E.S. regarding the necessary delays that the task of enquiring into and deciding Charter remedies can lead to in light of the tight timeframes and directions to expedite matters under the Act. Indeed, this hearing was originally scheduled to begin over a month ago, but evidence still has yet to be called as the Board must deal with the numerous motions before it including those addressing the Charter. This matter is a clear example of the resulting inability to exercise the Board’s statutory function properly and promptly when required to address Charter grounds. Moreover, the Board’s argument in Johnson in favour of the Board having Charter jurisdiction that once the Board becomes familiar with Charter proceedings it would take the Board a fraction of the time to resolve a Charter issue over the time that it would take to go through a court proceeding[27] does not address how Charter proceedings significantly slow down what otherwise should be an expedited hearing process; ::(d) Like the distinction made in E.S. from the Conway decision, the Board does not schedule hearings well in advance like the Ontario Review Board which was the tribunal at issue in Conway. Here, and <b>similar to the Consent and Capacity Board, hearings are scheduled on very short notice and, as discussed above, the Board must fix a date for the hearing not more than ten business days of an appeal being received. Therefore, like the Consent and Capacity Board, this short timeline does not allow for compliance with Rule 11 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”) which requires the giving of a Notice of a Constitutional Question 15 days in advance of a hearing;</b> and ::(e) The Board is not empowered to grant a broad array of relief under s. 24(1) of the Charter. For example, it is likely, similar to the Consent and Capacity Board, that if requested, the Board would not be found to have the power to grant remedies such as costs or damages resulting from a Charter breach given that costs may only be awarded by the Board upon a finding that a party has acted unreasonably, frivolously, vexatiously, or in bad faith,[28] and there is no provision for the Board to award damages in the Act. As highlighted in E.S., if a tribunal did not have the power to grant the remedy sought as a result of a Charter breach then an appellant would be required to bring a proceeding in the Superior Court to obtain the requested remedy.[29] Therefore, when a tribunal, such as the Board, is limited in the type of remedy that it can grant pursuant to s. 24(1) of the Charter, there is a significant risk of bifurcated proceedings and uncertainty as to which decision-making body, the Board or the Superior Court, should carry out the fact-finding necessary to determine whether there was a Charter breach.[30] I agree with the court in E.S. that it is unlikely that the legislature would have intended such a result.[31] <ref name="Pryde">Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 33 (CanLII), <https://canlii.ca/t/jm5lp>, retrieved on 2024-03-21</ref> =References=

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