Appeal under subsection 38(2) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 and Regulations thereto, as amended.
Between:
Kristi Maki
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
PANEL: Luisa Ritacca, Member
APPEARANCES:
For the Appellant: Kirsti Maki
For the Respondent: Connie Mallory, Regional Supervisor, Animal Welfare Services
Heard via teleconference on: May 29, 2020
OVERVIEW
1On March 27 and April 9, 2020, Inspector Pollyanna Reed from Animal Welfare Services attended the farm owned by the appellant, Kirsti Maki, to conduct a welfare inspection of the animals housed there, including several dogs, a mare, a llama, numerous sheep and cattle. Inspector Reed issued several compliance orders requiring adequate shelter, food and water for the livestock, removal of debris from livestock pens and other enclosed structures and areas, and having a veterinarian examine a dog and two ewes and then provide documentation outlining findings, treatments recommended and undertaken. An order was also issued for a farrier to trim the adult mare’s hooves.
2Inspector Reed attended the farm again on March 31st, April 2nd and April 7th and issued Notices of modification of the orders to reflect the appellant’s attempts at compliance and amending the compliance dates. On April 9th, 2020, Inspector Reed attended the farm and issued a Notice of Removal of the Animals, and removed the cattle, sheep, a llama, a mare and several dogs. The animals were boarded at various facilities. Ms. Maki appealed the removal. Case conferences were held resulting in the release of the animals to the appellant on the basis that Ms. Maki had arranged for transportation to sale yards approved by the Animal Welfare Inspector.
3Three Statements of Account (the “Statements”) were issued by the Animal Welfare to the appellant on April 23rd, 25th and May 14th, 2020 in connection with the transportation of the animals back to Ms. Maki and the various sale yards, boarding, veterinary and miscellaneous costs. Ms. Maki was not charged for the transportation costs incurred by the respondent in the removal of her animals on April 9th.
4Ms. Maki is appealing all three Statements under ss. 38(2) of the Provincial Animal Welfare Services Act, 2019 (the “Act”). At the hearing she confirmed that her appeal is limited to the transportation, boarding and miscellaneous (extra feed) costs included in each of the Statement. She does not take issue with the veterinary costs included.
ISSUES TO BE DECIDED
5The only issue before the Board on this appeal is whether the transportation, boarding and miscellaneous costs included in the Statements are reasonable in all of the circumstances.
6The appellant did not argue that the respondent did not have the authority to incur the costs or that the costs were not necessary.
LAW
7Pursuant to ss. 35(4) of the Act, 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.
8The owner or custodian of the animal, who is served with such a statement, can, pursuant to section 38(2) appeal to the Board.
9In the present circumstances, the transportation, boarding and feed costs included in the Statements were incurred as a result of the seizure of the animals.
EVIDENCE
10At the outset of the hearing, the parties agreed that there was no issue before me as to the appropriateness of the removal order. The appellant confirmed that her appeal was limited to the amounts charged for the various items included in the Statements. She did not take issue with the fact that costs were incurred, but only that the transportation, boarding and miscellaneous (extra feed) costs were excessive.
11Inspector Reed testified as to each of the charges included in the Statements. She used invoices received to support the charges and explained that the charges were in fact incurred by the respondent.
12With respect to the transportation fees, Inspector Reed testified that the decision to transfer the animals was made following a case conference on April 23rd, 2020. The animals were moved on April 24th and April 27th, at the request of the appellant. Inspector Reed testified that the appellant was eager to have her animals returned as she had already made arrangements for their sale. Inspector Reed explained that given the short-notice, she was not in a position to “shop around” to confirm whether she was paying the lowest transportation rate, but instead went back to the same company she used for the initial removal of the animals. The transportation fees as included in the Statements are as follows:
(i) April 23rd, 2020 Transport to Massey (cattle and sheep) $1000.00
(ii) April 25th, 2020 Transport to Massey (mare) $200.00
(iii) May 14th, 2020 Transport to and from vet clinic (pregnant ewe) $339.00
Total $1539.00
13Inspector Reed testified that following receipt of Ms. Maki’s notice of appeal, she sought a breakdown of the fees charged by the transport company. In the breakdown, the transport company confirmed that the actual costs associated with the transport of the animals exceeded the costs actually charged to the respondent. Inspector Reed calculated that the transport costs effectively amounted to approximately $100.00 per hour, given the travel distance and the number of trips required.
14In her testimony, Ms. Maki stated that in her view the transport costs were excessive. In support of her view, Ms. Maki produced an email she received from Jackie Emiry, a dairy farmer, who has experience boarding her cattle to other farmers on occasion. In the email, Ms. Emiry expressed the view that transport costs normally range from $50.00 to $100.00 per hour.
15In the course of her testimony, Ms. Maki also noted that the Canada Revenue Agency (CRA) calculates mileage for the purposes of allowed tax deductions at a rate of $0.59 per kilometre for the first 5000 km, and $0.53 thereafter. Ms. Maki explained that in her experience, some transport companies use the CRA allowance as the fees it charges to customers. Ms. Maki did not provide me with any names of transport companies who operate in this manner.
16With respect to the boarding and feed costs, Inspector Reed testified that the costs included in the Statements could be broken down as follows:
(i) Cost of boarding and feed for cattle: $12.84/cattle/day
(ii) Cost of boarding sheep: $2.30/sheep/day
(iii) Cost for additional sheep feed: $0.24/sheep/day
(iv) Cost of boarding and feed for llama (1): $13.33/day
(v) Cost of boarding for mare (1): $13.33/day
(vi) Cost of additional feed for mare (1): $2.34/day
17Inspector Reed testified that there were additional costs associated for the sheep feed because several of the sheep removed required specific feed to account for their various ages. Similarly, additional costs were incurred for the feed for the mare as it required specialty feed given her advanced age.
18Ms. Maki testified that in her view, the boarding costs were unreasonable and it was particularly unreasonable to be charged separately for the feed, in relation to the sheep and mare. Ms. Maki produced a second email from Ms. Emiry, who set out in her email that she normally pays between $2.00 to $3.00 per day, per animal for boarding cattle and that based on a discussion she had with an unnamed farmer, $2.10 per day per five sheep would be reasonable. Further, Ms. Emiry writes that horse boarding ranges from $4.85 per day per horse to $11.30 per day per horse. It is not clear where Ms. Emiry obtained the information set out in her email.
19Ms. Maki did not produce any direct evidence from animal boarders or any documentation, other than the email from Ms. Emiry.
20Finally, Ms. Maki noted in her testimony that the respondents could have taken the necessary feed from her premises at the time of the removal of the animals, which would have saved on the costs incurred. It was not clear from Ms. Maki’s testimony, however, what feed was available and whether it was the feed necessary for each animal.
RESULT
21I find that the costs incurred by the respondent and set out in the Statements served on the appellant were reasonable in all the circumstances.
22There was no issue before me as to the respondent’s decision to remove the appellant’s animals on April 9th, 2020. While the appellant has not been charged for the costs incurred for the removal, she was charged for the costs of the animals’ boarding, veterinary care, and ultimate transport back to the appellant so that she could complete the sale of the animals.
23There was simply no evidence before me to establish that the costs of either the transport or boarding (including feed) were excessive or unreasonable.
24In support of her position, the appellant relied on second and third hand information contained in email messages. There was no way for me to assess the veracity of the information, which was set out as information collected by Ms. Emiry from a variety of sources. It was not clear whether Ms. Emiry or her other sources were aware of the condition of the animals at issue; or the number which were transported and boarded.
25As the respondent argued, it has the obligation to ensure that animals taken into its care are properly transported and boarded. There are costs associated with doing so, which may reflect costs higher than what Ms. Maki was expecting or what she is used to. That does not make the costs unreasonable.
26I note that in particular with respect to the transportation costs, Ms. Maki conceded that $100.00 per hour was appropriate. This is the same amount included in the Statements. As the respondent made clear, the transport company it used did not charge for all of its usual fees. This resulted in a savings for the respondent and an amount consistent with what Ms. Maki conceded she would have expected.
DECISION AND ORDER
27For all of the reasons set out above, it is the decision and order of the Board that the appellant’s appeal of the Statements is dismissed and the Statements are therefore confirmed.
28The appellant is required to make payment as set out in the Statements.
Date of Release: June 3, 2020
Luisa Ritacca, Member