Elena Shekhurdina v. Chief Animal Welfare Inspector, 2021 ONACRB 15

Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

Date: 2021-07-20

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Elena Shekhurdina Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

ADJUDICATOR: Susan Clarke, Member

APPEARANCES:

For the Appellant: No one appearing

For the Respondent: Sara Munoz, Regional Supervisor, Animal Welfare Services

Heard by teleconference: July 9, 2021

REASONS FOR DECISION AND ORDER

A OVERVIEW

1Elena Shekhurdina ("appellant") appealed the Removal Order issued by Animal Welfare Services relating to the removal of her two dogs from her premises on June 16, 2021, and the Statement of Account dated June 18, 2021 in the amount of $601.14 for veterinarian care, grooming and boarding. The animals were removed on the basis that they were in distress. The removal followed a compliance order issued on March 8, 2021.

B PROCEDURAL HISTORY

2A case conference was held on June 28, 2021. The appellant was self-represented. The parties agreed to a hearing.

3The hearing was scheduled to take place on July 9, 2021 in compliance with the prescribed timelines of the Provincial Animal Welfare Services Act, 2019 ("Act"). The parties were ordered to complete disclosure and final submissions by July 2, 2021.

4The appellant did not file any materials, disclosure, submissions or otherwise, to comply with the Board's case conference order.

C ISSUES

5The issues before the Board are:

1. Whether the appeal has been abandoned;
2. Whether the dogs were in distress at the time of their removal and whether they should be returned to the owner; and
3. Whether the Statement of Account should be confirmed, revoked or varied.

D RESULT

6The appellant failed to join the teleconference hearing at the scheduled time on July 9, 2021. I requested Board staff to telephone the appellant at the number which she provided on her Notice of Appeal, and to email her at the address provided by her. These efforts to reach the appellant were unsuccessful. Therefore, being satisfied that the appellant had notice of this hearing, I have concluded that the appellant has abandoned her appeal.

E HAS THE APPEAL BEEN ABANDONED

7Section 38(1) and (2) of the Act provides a right of appeal of a decision for removal by an animal welfare inspector and of a statement of account, respectively.

8After a hearing, under s. 38(9) the Board has the authority, among other things, to order that an animal be returned to the owner and to confirm, revoke or vary a statement of account.

9Here, the appellant participated in the case conference at which time the hearing was scheduled and procedural matters related to the hearing were reviewed and discussed. A case conference order was issued to the parties confirming those details. The appellant provided no disclosure and no submissions in compliance with that order. On the day of the hearing, the Board made extensive efforts to contact the appellant when she did not appear, to provide her with the opportunity to participate in the hearing. The appellant did not submit a formal adjournment request form to the Board in advance of the hearing to indicate that she was not available on the scheduled date. Rule 3.4(d) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended ("Rules") states that the board may dismiss an appeal without a hearing if, the appellant is found to have abandoned the proceeding. Rule 3.5 requires that the board give notice of its intent to dismiss the proceeding. However, pursuant to Rule 3.1, a rule may be waived to ensure an efficient, proportional and timely resolution of a matter before it.

10I am exercising my discretion pursuant to Rule 3.1 to waive the requirement for notice pursuant to Rule 3.5 in the interests of securing a timely resolution. The appellant participated in the case conference and agreed to the procedural matters addressed in the case conference order. The respondent and witness were prepared to participate in the hearing at the scheduled time and had made submissions and served these on the appellant. It would be inefficient to further delay the proceedings.

11In this matter, given the issues before the board - the removal order and care for the dogs who were found to be in distress by Animal Welfare Services and the appellant's failure to pursue her appeal by taking any steps after the case conference on June 28th including attendance at the hearing, I find that the appeal has been abandoned, pursuant to Rule 3.4(d).

12Given my finding above I do not need to determine issues 2 or 3. Nevertheless, in the event I am mistaken, and due to the exceptional nature of this case, I have reviewed the respondent's materials and satisfied myself in any event, that the evidence provided by the respondent shows that the animals were in distress at the time of their removal, that they should not be returned and that the Statement of Account should be confirmed as set out below.

F WERE THE DOGS IN DISTRESS AT THE TIME OF THEIR REMOVAL AND SHOULD THEY BE RETURNED

13I am satisfied, based on the respondent's extensive evidence filed, that there were grounds for the removal of the animals on the basis that they were in distress as defined by the Act.

14Section 1 of the Act defines distress as:

a. In need of proper care, water, food or shelter b. Injured, sick, in pain or suffering, or c. Abused or subject to undue physical or psychological hardship, privation or neglect.

15The respondent filed extensive evidence to support their submissions. This evidence included:

a. A compliance order issued by Inspector Gallagher under section 30(1) of the Act on March 8, 2021, ordering compliance by March 15, 2021; b. A June 9, 2021 Ontario Court of Justice warrant pursuant to Section 28(2) and Section 28(3) of the Act, issued to the respondent to enter and search the appellant's dwelling, and to take further action permitted under the authority of the Act, to ascertain if the appellant's dogs were in a state of distress; c. A Notice of Removal issued by Inspector Gallagher under section 31(1) of the Act on June 16, 2021; d. The June 18, 2021 statement of account totaling $601.14; e. An invoice dated June 16, 2021 detailing veterinary costs for June 16, 2021 totaling $427.14, and brief description of condition of each dog, and treatment provided; f. An invoice dated June 23, 2021 detailing boarding costs for each dog for June 17 and 18, and for grooming costs for both dogs, totaling $174.00. The invoice also included boarding costs for June 19 to June 23, 2021 that are not reflected on the Statement of Account under appeal; g. A will say for Inspector Gallagher including photographs; and h. A will say for Inspector Collins including photographs.

16The evidence filed supports the following determinations:

a. The two dogs were regularly left on the apartment balcony for extended periods of time regardless of the weather conditions (between 12 to 24 hrs., from complaint filed March 2, 2021); b. When inside, the dogs were attached to furniture by three-foot lengths of chain; c. The dogs were dirty from urine and feces, and their abdomens and legs showed signs of urine scalding; d. The dogs were not provided with potable water or accessible food; e. The dogs lacked appropriate/effective shelter and lacked sanitary living conditions, both inside and outside; f. The docks lacked access to areas to move about naturally, and exercise; and g. The dogs required veterinarian care to address their overall body condition (showed signs of being malnourished), including possible urine scalding, and nail care.

17It is clear from the materials filed by the respondent that the dogs met the definition of distress as set out in the Act at the time of their removal.

18Given the appellant has not submitted evidence to support her appeal, there is no evidence before me on which I could determine that the conditions causing distress to have ceased to exist. Therefore, I cannot order their return to the owner.

G SHOULD THE STATEMENT OF ACCOUNT BE CONFIRMED, REVOKED OR VARIED?

19The appellant has the onus to show that the Statement of Account should be varied yet led no evidence to show that the costs were not fair or reasonable.

20The respondent's position is that the Inspectors were reasonable in removing the dogs from the owner, and the Statement of Account was reasonable. The invoice summary shows an accounting of the costs which closely matches the Statement of Account. These costs were for veterinary care, boarding and grooming costs. The discrepancy between the invoice summaries and the Statement of Account relates to the dates of the documents and that costs continue to mount daily for the care of the 2 dogs.

21I find that the cost of the care of the 2 dogs is reasonable. Therefore, I cannot order the Statement of Account to be revoked or varied.

ORDER:

22For the reasons set out above, the Board dismisses this appeal as abandoned.