ANIMAL CARE REVIEW BOARD
Safety, Licensing Appeals and Standards Tribunals Ontario
A request for return of an animal under the Ontario Society for the Prevention of Cruelty to Animals Act, R.O. 1990 c. O36
Between:
C.F.G. Appellant
and
Ontario Society for the Prevention of Cruelty to Animals Respondent
DECISION AND ORDER
Member: Marisa Victor
Appearances:
For the Appellant: C.F.G., Appellant
For the Respondent: Jennifer Bluhm, Deputy Chief and Agent for the OSPCA, Agent for the Respondent
Place and date of hearing:
Kitchener, March 16, 2017
DECISION AND ORDER
A. OVERVIEW
The Appellant, C.F.G. is requesting the return of her animals that were removed pursuant to two Notice of Removal orders issued by Shay De Wolfe, Inspector for the Animal Welfare Agency, South Central Ontario under the Ontario Society for the Prevention of Cruelty to Animals Act (the “OSPCA Act”). The removal orders issued on October 6 and October 18, 2016 are in respect to two Great Pyrenees-type dogs named “Dog 1” and “Dog 2”. The Appellant is the owner of the dogs.
After testimony had begun, the parties came to an agreement and presented an agreed statement of facts (the “ASF”, appendix A) to the Board. Based on the ASF, the parties consented to the return of both animals and the terms for the return of the animals (the “Release Conditions”, appendix B).
The hearing continued on the remaining issue of costs. The parties presented evidence and submissions, including an agreement as to the amount of costs. The parties disagreed on the time allowed for the payment of costs.
The issues before the Board were:
(a) Should an order be made for the return of the animals and, if so, upon what terms?
(b) Should the owner be ordered to pay to the Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA” or “Society”) the whole or any part of the costs of providing food, care or treatment to the animals pursuant to their removal?
On the consent of the parties, the Board is satisfied that the animals should be returned to the Appellant, and an Order should be issued pursuant to the terms consented to by the parties.
The evidence presented by the parties convinced the Board that an order for costs should be made for payment by the Appellant to the Society.
B. BACKGROUND INFORMATION
The Society removed Dog 1 under the authority of a removal order issued under s. 14(1)(c) of the OSPCA Act, on October 6, 2016. The Society later removed Dog 2 under the authority of a removal order issued under s. 14(1)(c) of the OSPCA Act, on October 18, 2016. Both dogs were removed from the Appellant’s place of residence.
At the time of the removals, the Appellant was living in a vehicle. Dog 1’s primary living space was outside in a treed area and Dog 2 was living inside a horse trailer.
The Appellant testified that she is the past victim of sexual assualt and suffers from chronic anxiety and post-traumatic stress syndrome. She stated that in August 2016 she was the victim of another violent attack, which resulted in three broken verterbrae in her neck, brain injury and required surgery. As a result of that attack she now also suffers from short term memory loss, difficulty expressing herself, difficulty with fine motor skills as well as emotional damage. The Appellant testified that she has lived on government funding since 2013 due to her inability to work and existing health issues. She receives approximately $707/month.
Based on what is stated in the ASF, there is no dispute that the animals were in distress and rightfully seized by the OSPCA.
The OSPCA has had custody of the dogs for approximately four months since the removals took place. The total cost to the OSPCA for providing food, care and treatment was $6,226.73 for Dog 1 and $5,187.45 for Dog 2.
The OSPCA and the Appellant presented an agreement to the Board that the OSPCA would seek a total of $1,273.12 in costs. The OSPCA was asking for the funds to be paid within three weeks of the hearing or else the animals would be forfeited.
The Appellant asked for more time to pay the costs. She testified that she could pay $50 per month to the Society for their care of Dog 1 and Dog 2 based on her current government income. She was seeking several months more to pay in the hopes that she could obtain the remaining amount through a possible future settlement from the Criminal Injuries Compensation Board (the “CICB”). She has not yet begun proceedings before the CICB.
C. ISSUES
- The issues before the Board were:
(a) Should an order be made for the return of the animals and, if so, upon what terms?
(b) Should the owner be ordered to pay to the OSPCA the whole or any part of the costs of providing food, care or treatment to the animals pursuant to their removal?
D. POWERS OF THE BOARD
- The Board’s powers are set out in section 17(6) of the OSPCA Act. The relevant portions provide as follows:
17 (6) After a hearing, or with the consent of the Society and the person who issued the notice under subsection (1) or (2), without a hearing, the Board may:
(b) respecting the removal of an animal under subsection 14(1), order that the animal be returned to the owner or custodian and may make an order in the same terms as an order may be made under subsection 13(1); or
(d) order that the whole or any part of the cost to the Society of providing food, care or treatment to an animal pursuant to its removal under subsection 14(1) be paid by the owner or custodian of the animal to the Society.
E. LAW & ANALYSIS
(a) Should an order be made for the return of the animals and, if so, upon what terms?
The overriding consideration with regard to return of the animals is the well-being of the animals and the need to alleviate distress of the animals.
Pursuant to the powers of the Board under s. 17(6) of the OSPCA Act, the Board is satisfied that it is appropriate to release the animals to the Appellant on the consent of the parties and on the Release Conditions as agreed upon by the parties.
Under s. 17(6)(b) the Board may only order conditions as may be made under s. 13(1) of the OSPCA Act. Those conditions relate to the alleviation of distress of an animal.
The payment of costs to the OSPCA does not relate to alleviation of animal distress. Therefore, the payment of costs to the OSPCA is not a condition for the return of the animals.
(b) Should the owner be ordered to pay to the OSPCA the whole or any part of the costs of providing food, care or treatment to the animals pursuant to their removal?
Pursuant to s. 17(6)(d) of the OSPCA Act, the Board may order the owner to pay “the whole or any part of the cost” incurred by the OSPCA. Based on the plain language of this provision, which sets out no specific criteria or restrictions, the Board’s powers in deciding the amount that the owner should pay is discretionary.
Primary liability for expenses incurred for the provision of food, care or treatment of animals seized by the OSPCA rests with the owner pursuant to s. 15(1) of the OSPCA Act.
It is up to the Appellant to convince the Board that the costs incurred, either in whole or in part, should be shifted back to the OSPCA.
In determining whether to shift the costs to the OSPCA in any particular case, some factors to consider include:
(a) Whether the Society acted in bad faith or abused its authority;
(b) Whether the Society was negligent in its decision to seize the animal and subsequently incurred costs for their food, care or treatment;
(c) Whether the Society failed to comply with provisions in the OSPCA Act, or acted outside its authority;
(d) Whether the Society failed to return the animals to the owner at the earliest reasonable opportunity; or
(e) Whether the cost order is reasonable in the circumstances.
In this case, there is no evidence before the Board that would apply to items (a) through (d). The Appellant has not succeeded on any of those grounds.
Despite the fact that the parties consented to the amount, based on the evidence of the Appellant, the Board is convinced that a cost award of $1,273.12 is unreasonable in the circumstances of this case.
The evidence before the Board was that the Appellant is caught in a dire financial, physical and emotional situation. Furthermore, her significant health issues, including psychological conditions, mean she has no reasonable prospect of obtaining employment so as to pay the agreed upon costs at a future date.
This is not to say that the Society has been unreasonable. Indeed, they have lowered their demand for costs to a mere 10 percent of the actual costs incurred. But in the circumstances of this case, whether the cost award is $1,200 or $12,000, it is clear the Appellant will never have the means to pay such a significant sum given her monthly income. Furthermore, if she was to pay this amount, it would cripple any ability she has of being able to care for the animals appropriately, let alone herself.
The expectation that the Appellant might obtain future compensation from the CICB is speculative at best and not a reasonable position.
On the facts before the Board in this particular case, it is clear that a cost award in the amount agreed upon would cause extreme hardship to the Appellant and that in turn would have a similar affect on the animals at issue. This would do a disservice to the animals the OSPCA Act is meant to protect.
However, the Board finds that the OSPCA is still entitled to some reimbursement of its costs. The Board, in exercising its discretion to award costs, finds that it is appropriate that the Appellant make a payment to the OSPCA that is within her means.
The Appellant testified that she is able to pay $50 per month for the care of the animals. The Board therefore orders that the Appellant pay $100 in costs to the OSPCA. The Appellant will have two months from the date of this order to pay the costs.
Animal care is always expensive and financial difficulties are routinely a concern for those whose animals have been appropriately seized by the OSPCA. This decision should not be seen as setting a precedent that ability to pay in itself will make a cost award unreasonable; however, the Board is of the opinion that the costs awarded in this case are reasonable in the circumstances.
G. CONCLUSION:
The Board finds that the animals should be returned to the Appellant on the agreed upon Release Conditions.
An award of cost is appropriate in this case and the Appellant shall pay to the OSPCA $100.
ORDER:
Pursuant to the powers of the Board under section 17(6) of the OSPCA Act, the Board orders that:
(a) The animals are to be returned to the Appellant on consent of the parties.
(b) The Appellant shall adhere to the Release Conditions as agreed upon by the parties and attached at appendix B.
(c) The Appellant shall pay the OSPCA $100 in costs and shall have two months from the release of this decision to pay the costs.
Released: March 28, 2017
____________________________ Marisa Victor, Member
APPENDIX A
Agreed Statement of Facts
(a) The Order dated September 17, 2016 at 1:04 pm regarding a Great Pyranees-type dog known as Dog 1 submitted at exhibit 5, page 1, was issued under the authority of section 13(1) of OSPCA act.
(b) The Appellant further agrees that she was unable to comply with said order, specifically relating to a follow-up with a veterinarian if Dog 1’s ears did not improve after 7 days of treatment.
(c) The veterinary report from Dr. VanDeventer, is dated September 18, 2016, is 3 pages in length, and is accepted by both parties as exhibit 6.
(d) The Appellant did comply with other items in the September 17 order regarding Dog 1: having her examined by a veterinary and following home treatment recomendations of Dr. VanDeventer.
(e) The Appellant acknowledges that due to her inability to comply with said order, the OSPCA was authorized to remove Dog 1 under the authority of s. 14(1)(c) of the OSPCA Act.
(f) Further, the Appellant acknowledges that the order dated October 6, 2016 at 4:32 pm, at exhibit 7, was properly issued by the OSPCA under authority of s. 13(1).
(g) The Appellant agrees that she was unable to comply with said order issued by Agent De Wolfe.
(h) The Appellant acknowledges that due to non-compliance with said order, Dog 2 was properly removed by OSPCA under the authority of s.14(1)(c).
(i) The agreement of final costs for combined costs for both dogs, is amount is $1273.12.
Appendix B
Agreed Terms of Conditions for Release
Each dog must have access to a well constructed shelter that is weather proofed and large enough for the dog to sit down, stand up, turn around and stretch out to the length of its body.
Each shelter shall be facing out of the wind and be raised off of the ground.
Each dog shall be tethered using a chain, rope or similar device.
Each dog shall be securely tethered in a manner that allows it to move safely and unrestricted except by its length.
Each dog shall be provided with a proper fitting nylon collar that is in good condition.
Each dog shall have access to fresh, clean water in a spill proof container at all times.
Each dog shall be fed an adequate and appropriate amount of good quality dog food daily.
Fecal matter shall be cleaned up daily from all areas where dogs have access.
Dogs housed inside pens, sheds, trailers shall have adequate and appropriate space to enable each dog to move naturally.
Dogs shall be housed in a manner that provides them with sanitary conditions, ventilation, light and protection from the elements.
Each dog shall be provided with an appropriate and adequate resting area whether housed inside a pen, shed or trailer or outside.
Property shall be inspected by an official of the Ontario SPCA prior to dogs returning home.