ANIMAL CARE REVIEW BOARD Tribunals Ontario
COMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX Tribunaux décisionnels Ontario
Appeal under section 38(1) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c.13
Between:
Jerica Gowland Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Joanne E. Foot, Member Animal Care Review Board
Appearances:
For the Appellant: Self-Represented For the Respondent: Michael Draper, Representative
Held by teleconference: December 7 and 9, 2020
OVERVIEW
1This in an appeal:
(a) under s.38(1) of the Provincial Animal Welfare Services Act, 2019 (the “Act”) of the Notice of Removal of Animal(s) made by Inspector Scott Frail, an Inspector with Animal Welfare Services, on November 9, 2020 (the “Removal Notice”); and
(b) under s. 38(2) of the Act of the statement of account dated November 12, 2020 in the amount of $1,594.41 relating to the care and treatment of the seven cats (the “Statement of Account”) following their removal.
2Pursuant to the Removal Notice, Inspector Frail removed seven cats, namely, “Tiger”, “Orville”, “Winston”, “Charlie”, “Sasha”, “Venom” and “Josie”, from the home of the appellant, Ms. Jerica Gowland, on the grounds that the cats were in distress. Approximately two months before their removal, Inspector Frail had issued compliance orders to Ms. Gowland for the purpose of relieving the distress of the cats.
3In her Notice of Appeal dated November 16, 2020, appealing both the removal of the seven cats and the requirement to pay the Statement of Account, the appellant disputes that the cats were in distress at the time of their removal. Given that the cats were not in distress, the appellant submits that it was unnecessary to remove them from her home and that she should not be required to pay the Statement of Account.
4The appellant also owns a dog which is not the subject of this appeal, but in respect of which compliance orders have been issued by Animal Welfare Services.
ISSUES
5The issues to be decided in this case are as follows:
(a) Were the seven cats in distress at the time that they were removed?
(b) Was entry by Animal Welfare Services into the appellant's home for the purpose of removal of the seven cats lawful?
(c) Should the cats be returned to the appellant?
(d) Should the Statement of Account be confirmed, revoked or varied?
RESULT
6For the reasons that follow, I make the following findings:
(a) the seven cats were in distress at the time of their removal and I confirm their removal;
(b) the entry by Animal Welfare Services into the appellant's home for the purpose of removal of the seven cats was conducted in a lawful manner;
(c) none of the seven cats should be returned to the appellant; and
(d) the amount of the Statement of Account is reasonable but is clearly beyond the means of the appellant to pay in whole or in part and, as a result, should be varied to $0.
LAW
7Section 24(1)(b) of the Act permits an animal welfare inspector to enter and inspect any place for the purpose of determining compliance with an order to relieve an animal’s distress under s. 30. Section 24(2) of the Act requires, if the place to be entered is a dwelling, that the inspector have a warrant or the consent of the occupier to the entry.
8Section 31(1)(c) provides that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if, among other things, an order respecting the animal has been made under s. 30 of the Act and the order has not been complied with.
9Distress is defined in s. 1(1) as “a state of being (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.”
10Section 38(1) provides a right of appeal of a decision for removal by an animal welfare inspector and s.38 (2) allows an appeal of a statement of account.
11The respondent bears the burden of proving, on a balance of probabilities, that the removal of the animals was permitted under the Act and that the Statement of Account should be confirmed.
12Section 38(9) gives the Board authority, among other things, to order that an animal be returned to the owner and to confirm, revoke or vary a statement of account served under s. 35(1).
EVIDENCE AND ANALYSIS
Chronology of Events
13Inspector Frail testified to a chronology of events, which was not disputed by the appellant. This timeline is helpful in understanding the issues before the Board.
14Inspector Frail and another inspector from Animal Welfare Services first visited the home of the appellant and her partner, Mr. Thomas Geneau, located at 433 Lakeshore Boulevard North, Sauble Beach on September 3, 2020. Finding no one at home, the inspectors left notices on the two doors requesting that the appellant call Animal Welfare Services.
15Inspector Frail next attended the home of the appellant on September 10, 2020. The appellant and Mr. Geneau were at home and permitted Inspector Frail to inspect the premises and assess the seven cats. Following his inspection and assessment, Inspector Frail issued compliance orders dated September 10, 2020 (the “Original Compliance Orders”) to the appellant to relieve the distress of the animals under s. 30 of the Act. Specifically, the appellant was ordered to:
a) have the seven cats examined by a veterinarian with special attention to internal and external parasites, vaccinations, and a general health assessment;
b) provide the veterinarian’s findings to Animal Welfare Services;
c) maintain clean and sanitary conditions in all areas of the dwelling that are accessible to animals;
d) provide three litter boxes in the home that are maintained in a clean and sanitary state;
e) reduce airborne parasite infestation and implement parasite prevention measures; and
f) reduce airborne ammonia levels to below 20 parts per million and improve ventilation.
16October 9, 2020 was the date set for compliance with the Original Compliance Orders. Inspector Frail again attended the appellant’s home on October 13, 2020 and issued further orders (the “Extended Compliance Orders”) to the appellant under s. 30 of the Act, extending the time for compliance with the Original Compliance Orders to November 9, 2020.
17Inspector Frail and another Animal Welfare Services inspector attended the home of the appellant on November 9, 2020. At that time, Inspector Frail issued the Removal Notice relating to the seven cats. The seven cats were removed that day and taken to the Walkerton-Hanover Veterinary Clinic.
Issue #1: Were the seven cats in distress at the time that they were removed?
18The appellant’s position is that she was caring for her cats well and that the seven cats were not in distress at the time they were removed from her home. I find that the evidence clearly shows that the animals were in distress at that time because (a) they were not receiving adequate care with respect to their flea and ear mite infestations, (b) that they were not receiving proper care in that they were living in unsanitary and unsafe conditions in the home of the appellant, and (c) that some of the cats were suffering and being neglected in relation to their open wounds occasioned by untreated flea allergy dermatitis.
September 10, 2020 Visit
19Inspector Frail first inspected the home of the appellant on September 10, 2020. On that occasion, he described the strong smell of ammonia outside and inside the house, which he attributed to urine. As well, he found the home to be extremely cluttered, noting that it appeared to be under renovation, with plywood and insulation lying about inside. Inspector Frail found it difficult to navigate through some parts of the home as a result of the clutter and the renovations. He also described a large number of airborne parasites, houseflies, in the home and animal feces on the floor of the home in various places. Inspector Frail found that at least one water bowl for the cats was empty. He also noted a cardboard box containing clay cat litter intended for future use had feces in the box. Another cardboard box measuring approximately 2.5 feet long by 1.5 feet wide by 1 foot deep was located on the floor. This contained no cat litter, only feces and was essentially full to the point of overflowing. Inspector Frail examined two litter boxes located elsewhere in the home. One containing clay litter was saturated and did not appear to have been cleaned in several days. The other litter box, located in the laundry room, did not appear to have been cleaned in several weeks.
20Inspector Frail assessed the seven cats and determined that each cat, other than Winston, was in good body condition. Winston struggled to a degree that he was unable to assess the animal. The inspector noted live fleas and/or flea dirt (excrement left by fleas) on each of the other six cats, Orville, Tiger, Charlie, Sasha, Venom and Josie.
21Inspector Frail returned to his vehicle to write up the Original Compliance Orders and noticed that live fleas were crawling on his uniform. As well, he reported that the mucous membranes of his eyes and nose were irritated by the ammonia in the air of the appellant’s home.
22Inspector Frail explained that he wrote the Original Compliance Orders to relieve the distress being suffered by the seven cats. He summarized that this distress was being caused by the parasitic infection (fleas) afflicting the cats and by the unsanitary conditions of the home owing to the animal waste on the floor and around the house. He was also of the view that the house was unsafe for the cats, his concern being that the clutter and renovation materials could collapse and cause injury to a cat.
23Inspector Frail testified that he explained to Ms. Gowland and Mr. Geneau the issues he had observed and explained the obligation under the Act to provide adequate care to the pets. He served the Original Compliance Orders on the appellant, explaining the changes that would have to be made to come into compliance. He also explained the consequences of non-compliance, including the possible removal of the animals. At this point, the appellant told Inspector Frail that she had had prior involvement with the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) when she was living in another location in Ontario and understood the potential consequences of a failure to come into compliance.
October 13, 2020 Visit
24Inspector Frail reported that the conditions in the appellant’s home found during his October 13, 2020 visit showed some improvement in that the renovations had progressed, a wall having been built between the living room and the sunroom. Most of the clutter had been removed and put in the sunroom, although some clutter remained in other parts of the home. The bedroom was cleaner, and the food and water available for the cats was adequate.
25However, conditions in the home remained unsanitary: a large garbage bag located on the kitchen floor was overflowing with trash and trash was located on the kitchen floor. Two fully saturated litter boxes were also located on the kitchen floor, and feces were found on plastic sheeting placed on floor in the living room/kitchen area. Inspector Frail requested that the appellant clean the litter boxes, which she did. As well, the odour of ammonia remained in the home to a degree that caused irritation to Inspector Frail’s eyes, nose and throat. The infestation of houseflies had not abated to any significant degree. The animal welfare inspector that accompanied Inspector Frail observed a crusty patch on the body of one of the cats.
26Most significantly, however, there had been no improvement in the condition of the cats from a month earlier in relation to the flea infestation. The Original Compliance Order to attend a veterinarian had not been complied with; the appellant explained that she could not afford to attend a veterinarian and that her hydro and car insurance were in danger of being cut off. The appellant indicated that she would be able to pay to attend a veterinarian after she received her ODSP payment at the end of the month. In consequence, Inspector Frail issued the Extended Compliance Orders, confirming the Original Compliance Orders but extending their time for compliance to November 9, 2020.
27Inspector Frail read the Extended Compliance Orders aloud and discussed the order with the appellant to ensure her understanding and confirmed that the animals would be removed on November 9, 2020 if the appellant had not achieved compliance. Inspector Frail testified that all reasonable grounds for believing that the cats were in distress on the September 10, 2020 visit continued to exist at the October 13, 2020 visit.
November 9, 2020 Visit
28At the outset of the November 9, 2020 visit, outside her home, the appellant presented rabies vaccination certificates for the seven cats issued by the Kitchener-Waterloo-Stratford-Perth Humane Society. However, no other medical records were provided confirming that the cats had been assessed by a veterinarian for parasites or outlining the findings of examinations of the cats or any treatments recommended or undertaken. The appellant confirmed that no parasite treatment had been given at that vet clinic. The appellant stated that the veterinarian at the Kitchener‑Waterloo-Stratford-Perth Humane Society expressed no concerns about the cats other than one cat having ear mites. Ms. Gowland told Inspector Frail that she had an appointment at the Sauble Beach Animal Hospital on November 15, 2020 to complete the balance of the veterinary care required by the Extended Compliance Orders. Inspector Frail immediately followed up with the Sauble Beach Animal Hospital and learned that no appointment had been made by the appellant.
29Upon entering the home, Inspector Frail again noted the strong odour of ammonia, which caused irritation to his eyes, nose and throat. He assessed the seven cats, all of which continued to show signs of flea infestation, with three cats showing signs of ear mite infestation. One of the cats had hair loss and scabs around her neck, likely from scratching.
30On this occasion, the two litter boxes were clean, the cat food and water were adequate although the dog water bowl was dry. Inspector Frail again observed feces on the floor in the back bedroom and in the sunroom. The clutter in the sunroom had not been cleared and included hazards for the cats including jagged shards of wood, insulation, nails, screws, and precariously piled ceiling tiles.
31Inspector Frail testified that he believed that removal of the cats from the appellant’s home was necessary to relieve their distress namely, flea and ear mite infestation which was causing discomfort and could lead to infection. As well, he viewed the conditions in the home as unsanitary and unsafe, the unsanitary conditions being a potential breeding ground for internal parasites. Finally, he concluded that the cats were being neglected in that the conditions identified had not been rectified in the two months since they were first brought to the attention of the appellant.
32While the appellant testified that she had done her best to achieve compliance with the Original Compliance Orders and the Extended Compliance Orders, neither the appellant nor Mr. Geneau disputed the evidence of Inspector Frail as to the findings he made during his three visits to her home.
Veterinary Examination on November 10, 2020
33Dr. Robin Thompson is a veterinarian with the Walkerton-Hanover Veterinary Clinic and gave testimony as an expert witness for the respondent. She has practiced veterinary medicine in Ontario for over eight years and works with both companion animals and large animals. I accept Dr. Thompson’s qualifications as an expert.
34Dr. Thompson examined all seven cats on November 10, 2020, the day following the day that they were removed from the appellant’s home. This included a nose‑to-tail physical examination, weight check, assessment of overall body condition and check of vital signs such as pulse rate and respiration.
35Dr. Thompson found that all seven cats had significant flea infestations and that four of the cats showed signs of ear mite infestation. Each of the cats was treated with a broad spectrum anti-parasite drug to address these issues. Three of the cats (Josie, Sasha and Venom) were suffering from flea allergy dermatitis. This is an allergic reaction to flea bites which causes intense itchiness. A cat suffering from flea allergy dermatitis often scratches vigorously, breaking the skin open, which can then become inflamed and/or infected. Sasha, who had the most severe case of flea allergy dermatitis and open wounds, was also treated with steroids to address the itchiness and antibiotics to address infection. One cat (Winston) had a mild ear infection which was treated and a small abrasion on his back which was cleaned and treated. Dr. Thompson reported that the parasitic infections are under control in all the cats and that the health of each of the cats has improved.
36Dr. Thompson confirmed that, in her professional opinion, the level of flea infestation of the cats and the flea allergy dermatitis in three of the cats showed that they were in need of proper care. She further expressed that the failure to deal with the open sores resulting from scratching caused by flea allergy dermatitis, something easy to see, amounted to neglect of these animals.
37The appellant did not question or dispute the evidence given by Dr. Thompson.
38Based on the flea infestation of the cats, their unsanitary living conditions and the other medical conditions disclosed and treated by Dr. Thompson, I find that each of the seven cats was in need of proper care and, as such, in distress at the time of removal from the appellant’s home on November 9, 2020. I further find that, other than obtaining the rabies vaccinations for the seven cats and buying two new litter boxes, the Extended Compliance Orders issued under s. 30 of the Act had not been met. Therefore, Inspector Frail was permitted to remove the seven cats under s. 31(1)(c) of the Act for the purpose of providing necessaries to relieve their distress.
Issue #2: Was entry by Animal Welfare Services into the appellant's home for the purpose of removal of the seven cats lawful?
39The appellant’s position is that the entry into her home on November 9, 2020 was not lawful as Inspector Frail did not have a warrant. I find that the entry by Inspector Frail into the appellant’s home on November 9, 2020 was lawful under s. 24(1)(b) and 24(2) of the Act as compliance orders were in existence at that time and consent was given by Mr. Geneau, who ordinarily resides in the home.
40As set out in paragraph [7] above, an animal welfare inspector is permitted to enter and inspect any place for the purpose of determining compliance with an order to relieve an animal’s distress under s. 30. This provision requires that the inspector have a warrant or the consent of the occupier if the place to be entered is a dwelling. Therefore, in determining whether entry by Animal Welfare Services into the appellant’s home on November 9, 2020 was permitted under s. 28(1) of the Act, it is necessary to determine (a) whether there were compliance orders issued under s. 30 existing at the time, and (b) whether Mr. Geneau is an “occupier” of the premises at 433 Lakeshore Boulevard North, Sauble Beach.
Existence of Compliance Orders
41It is not in dispute that the Extended Compliance Orders, orders made under s. 30 of the Act, remained in effect at the time Inspector Frail entered the home of the appellant and Mr. Geneau on November 9, 2020. He testified that the purpose of his visit on that day was to determine if the appellant had achieved compliance with the Extended Compliance Orders.
Existence of Consent
42The respondent submitted into evidence four completed Consent to Inspect forms dated, respectively, September 10, 2020, October 13, 2020, November 9, 2020 (12:20 p.m.) and November 9, 2020 (1:48 p.m.) The first three of these forms was agreed to orally by Ms. Gowland, the appellant. The final one was agreed to orally by Mr. Geneau, the appellant’s partner. The forms note that verbal rather than written consent was obtained owing to Covid‑19 protocols.
43Each Consent to Inspect form is identical, other than the portions that are completed at the time the form is presented relating to name, address, date, time, etc. It specifies, among other things, that the inspector is there to inspect the health of animals on the property and that the owner/occupier has the right to refuse to consent to the inspection of the property without a warrant.
44Inspector Frail testified that on the September 10, 2020 visit he read the Consent to Inspect form aloud to the appellant. He then asked her to tell him, in her own words, what the form said. On this basis Inspector Frail was satisfied that the appellant understood the Consent to Inspect form and had given informed consent to his inspection of the property without a warrant.
45Inspector Frail testified that he went through the same procedure reading the form aloud and having the appellant describe the contents and effect in her own words with the appellant during the October 13, 2020 visit and the November 9, 2020 visit. The appellant confirmed this to be the case for all three visits. The inspector also testified that Mr. Geneau was present throughout the process for the November 9, 2020 (12:20 p.m.) Consent to Inspect form process.
46During the November 9, 2020 visit, the appellant became extremely distressed and/or suffered a medical event that necessitated her being taken to hospital by ambulance. After the departure of the ambulance, Inspector Frail requested the consent of Mr. Geneau to enter the premises. At this time, Inspector Frail read the November 9, 2020 (1:48 p.m.) Consent to Inspect form aloud and asked Mr. Geneau to describe, in his own words, the effect of this form. Inspector Frail was satisfied that Mr. Geneau understood the effect of the document and proceeded to enter the home to remove the animals.
47It is not disputed by the appellant or by Mr. Geneau that he ordinarily resides at the premises at 433 Lakeshore Boulevard North, Sauble Beach. The term “occupier” is not defined in the Act and should, therefore, be given its ordinary or plain meaning. For instance, the Oxford Learner’s Dictionary defines “occupier” as “a person who lives in or uses a building …” These premises are his residence and, as such, I find that he is an “occupier” of the premises and was at the time of the removal of the seven cats. Therefore, I find that Inspector Frail received the consent of an occupier of the premises within s. 28(1) of the Act.
48In conclusion, I find that that the entry into the home of the appellant by Inspector Frail on November 9, 2020 was lawful under s. 24(1) and (2) of the Act. As described above, the removal of the seven cats at that time was permitted under s. 31(1)(c) of the Act. In consequence, Inspector Frail’s entry (and that of the other animal welfare inspector attending with Inspector Frail that day) for the purpose of removal of the seven cats was lawful.
Issue #3: Should the cats be returned to the appellant?
49The appellant takes the position that all seven cats should be returned to her. Alternatively, she requested the return of four cats, namely Orville, Sasha, Charlie and Tiger. The Act does not list any factors to be considered in relation to whether lawfully-removed animals should be returned to their owners. As a matter of common sense, however, I must consider whether the conditions giving rise to the removal of the animals in the first place have been remedied. Secondly, I must consider whether the appellant has the ability and willingness to provide appropriate care for the animals in the future to prevent a recurrence of the conditions that led to their removal in the first place. Lastly, subjective factors such as the appellant’s desire for the return of the animals and her need for the animals are factors worthy of consideration.
50In this case, the appellant stated her clear desire that all the cats be returned to her. Her testimony led me to believe that she is genuinely attached to the animals and that they are important to her. On the other hand, it is not clear that the sanitary conditions of her home have improved since the removal of the cats. As well, the evidence shows that she is unable to afford to keep seven cats and that she lacks the ability and/or willingness to comply with minimum standards of care required by her pets. These factors outweigh her strong desire for the return of the cats. As such, I decline to order the return of any of the seven cats.
Resolution of the Conditions Giving Rise to the Removal of the Cats
51Dr. Thompson’s clearly testified that all of the cats have been successfully treated for their parasite infestations. The cats suffering flea allergy dermatitis were improving and healing. I am prepared to find that the health issues of the seven cats have been adequately addressed, albeit by Dr. Thompson, not the appellant.
52In response to questions about the current state of cleanliness of her home, the appellant indicated that they had been “doing dump runs” and “cleaning non-stop”, that there are no feces on the floor and that the home no longer smells of ammonia. Inspector Frail stated that they had attempted to inspect the appellant’s home to determine its state of sanitation in relation to compliance orders issued for the appellant’s dog. He also indicated that the appellant had not made herself available for this inspection. Given that the animal welfare inspectors have been unable inspect the appellant’s home, I am unable to find that the sanitary conditions in her home have been adequately addressed.
Appellant’s Financial Ability to Care for the Cats
53The appellant lives under significant financial pressure. Neither she nor her partner are employed. She receives ODSP in the amount of $1,169 per month, of which $750 is paid directly to the landlord. This leaves $419 each month to cover food, medication, medical and dental expenses not otherwise covered, personal items, utilities, cell phone, car insurance, gas and other necessities. Mr. Geneau receives ODSP in the same amount, again with $750 paid directly to their landlord. To put this in context, their combined budget for all non‑housing expenses amounts to $838 per month or $10,056 per annum. This is a very modest amount to provide adequately for the appellant and her partner, without consideration of the amounts that are required to ensure the adequate care of seven cats, particularly costly veterinary visits and veterinary treatments.
54Consideration of the amounts set out in the quotation provided by the Walkerton-Hanover Veterinary Clinic on November 11, 2020 is a helpful illustration. The cost for examination of the cats by a veterinarian is about $78 per cat and is typically done annually. The anti-parasite medication was charged at about $32 for each cat. This medication is typically administered monthly for six months each year, which would total about $192 per cat. Therefore, the total for an annual examination and anti‑parasite medication, together with HST, would amount to about $305 per cat or $2,135 for seven cats. This amounts to over 42% of Ms. Gowland’s annual budget of $5,028 for all non‑housing items and, based on this evidence, cannot be considered sustainable.
55The appellant testified that she had been receiving somewhat regular financial assistance from a family member. Since that person passed away, she occasionally receives help from family members, but it is not something that is regular or that she is able to count on. As noted above, the appellant told Inspector Frail on October 13, 2020 that she had not taken the cats to a veterinarian as required by the Original Compliance Orders as she could not afford it and that they were, at the time, having difficulty paying their car insurance and utilities. As well, the appellant testified that the food for the seven cats is obtained from a food bank.
56I find that the appellant does not have adequate financial resources to maintain and provide adequate care for seven cats. She may, however, have the financial ability to care for a smaller number of cats, perhaps one or two.
Appellant’s Ability and/or Willingness to Provide Adequate Care for the Cats
57In this regard, several situations are worthy of consideration. The first is the appellant’s prior interaction with the OSPCA and the circumstances of that interaction. The second consideration is of the statements made by the appellant which bear on her assessment and/or understanding of the circumstances. Third, and most significant, are the actions actually taken by the appellant to come into compliance with the Original Compliance Orders and Extended Compliance Orders.
58On the first visit from Inspector Frail, when the Original Compliance Orders were issued, the appellant volunteered that she had previously been through the compliance process with the OSPCA, the predecessor to Animal Welfare Services. Inspector Frail was able to contact the inspectors involved at the time and obtain a copy of the incident report from December 2016. Inspector Frail testified that the incident report indicated unsanitary conditions, no water being provided to the cats and high ammonia levels in the home. The inspector involved indicated to Inspector Frail that the dwelling was cluttered, that conditions were “deplorable” and that the litter boxes were “disgusting”. The appellant eventually achieved compliance which I accept as evidence that the appellant had, or should have had, an understanding of the standards of care required for her cats.
59At various times the appellant has asserted that the cats were not in distress at the time of their removal in the face of overwhelming evidence that each was suffering a significant flea infestation and all were living in significantly unsanitary conditions. She also asserted to the animal welfare inspectors her belief that the fleas would go away on their own. The appellant also gave evidence about purchasing over-the-counter flea remedies. The evidence about what was purchased and what was administered is somewhat unclear and conflicting, but the appellant appears to have hoped that these efforts would be sufficient to achieve compliance with various compliance orders despite the clear wording that these needed to be veterinarian‑administered medications. She indicated to the inspectors on the day the cats were removed that she had made an appointment with the Sauble Beach Pet Hospital in order to complete the balance of the veterinary care ordered by the Extended Compliance Orders. Inspector Frail followed up with the Sauble Beach Pet Hospital and learned that no such appointment had been scheduled and that, in fact, the appellant had never attended that clinic with any of her animals.
60There is a clear divergence between the appellant’s view of the care she provides to her cats and their condition and the clear evidence provided by Inspector Frail and Dr. Thompson. It is unclear whether her views result from a lack of understanding of the care these animals require or because of an inability financial or otherwise to comply with the Extended Compliance Orders. Nonetheless, it does indicate that the appellant has not - for whatever reason - accepted responsibility for the condition of the cats and for the need to provide proper veterinary and other care.
61My final consideration relates to the action taken by the appellant to come into compliance. She had two months to come into compliance between day the Original Compliance Orders were issued and the day the cats were removed. She had, on at least two occasions, received instructions from the animal welfare inspectors as to what she needed to do to achieve compliance. To her credit, she was able to have the seven cats vaccinated and purchased the litter boxes required by the Original Compliance Orders and the Extended Compliance Orders. However, the sanitary and safety conditions of the home, while improved, remained unsatisfactory with clutter, construction debris and feces on the floor throughout the house. More importantly, the parasite infestation of the cats continued, unaddressed, and worsened significantly in the cats suffering from flea allergy dermatitis. In short, the appellant failed to comply with the Extended Compliance Orders.
Appellant’s Relationship with the Seven Cats
62The testimony of the appellant demonstrates that she loves her cats and is attached to them. She referred to them as “her babies”. More compellingly, Mr. Geneau testified that the cats “keep [the appellant] sane”. I accept that these animals are important to the appellant and to her mental health. Her strong connection to these animals and their positive effect on her mental health make a compelling case for the return of at least some of them. Unfortunately, these factors, no matter how strongly expressed, cannot be enough to override the basic needs of these animals. Though not specifically stated, the overriding purpose of the Act must be to ensure the appropriate care for animals and prevention of their neglect and abuse. This must take precedence over the needs of the appellant in this situation.
63I had hoped to be in a position to order the return of one or possibly two of the cats to the appellant; this would likely be helpful to her and she could conceivably afford one or two cats. However, I cannot ignore the fact that over a two-month period the appellant failed to comply with the compliance orders that did not cost money, but required only effort or a change in behaviour. Though she purchased litter boxes, she did not keep them clean at all times. Feces remained on the floor of the home, the housefly infestation remained and construction materials remained in the premises presenting a hazard to the cats.
64In conclusion, I must have regard to the fact that the appellant cannot afford to maintain and properly care for seven cats. As well, it appears that the appellant did not learn from her interaction with the OSPCA in 2016, allowing the same unsanitary conditions to evolve in her current residence. Finally, she demonstrated that she is unable or unwilling to take the steps necessary to maintain clean and sanitary conditions for the cats and provide veterinarian care when warranted.
65In these circumstances, it is not reasonable to return any of the cats to the appellant and I decline to do so.
Issue #4: Should the Statement of Account be confirmed, revoked or varied?
66Neither the Act nor the Regulations contain any guidance as to the grounds which the Board may consider in connection with the variance of an account. In consequence, I have considered the reasonableness of the Statement of Account on its face, that is, the amounts being charged in relation to the services provided to the seven cats. As well, I have considered the reasonableness of the amounts charged in the context of the appellant’s ability to pay and the source of income of the appellant.
Reasonableness of Statement of Account on its Face
67Dr. Thompson spent some time explaining the charges on her vet clinic quotation on a line-by-line basis. This quotation formed the basis of the Statement of Account. She testified that the amounts charged are equivalent to and, in some cases less than, the amounts charged by other vet clinics in the area. It appears to me that each of these amounts is reasonable. In consequence, I find that the Statement of Account is reasonable for the services provided to the seven cats.
Reasonableness of Statement of Account in Relation to the Appellant’s Ability to Pay
68The amount of the Statement of Account is $1,594.41, including boarding charges of $25 per day per cat, and I have found this amount to be reasonable. At the hearing, I requested that the respondent do a “ballpark” calculation to determine the boarding costs for the cats that had accrued after the date of the Statement of Account. These amount to at least an additional $5,000. It is clear that the appellant does not have the financial resources to pay either amount. The amount of the Statement of Account amounts to almost 32% of her annual income from ODSP, an amount which cannot be workable for her. Although the appellant and her partner indicated that they would to pay that amount in the future, these are likely more properly characterized as an expression of desire for the return of the animals than a realistic statement of what will be possible for them.
69The purpose of the Act is to ensure the appropriate care of animals and prevention of their neglect and abuse. It is reasonable to infer that this signals an intent by the legislators to provide financial resources to meet this end, beyond establishing a system for inspection, compliance and removal of animals. In cases where it is possible, expenses incurred by the Animal Welfare Services relating to the care of animals should be recouped from the owners of animals. However, this is not such a case. It is of concern that the appellant, who is lives in severely constrained financial circumstances, could have a debt of this magnitude one which she has no ability to pay - hanging over her head.
70It is also helpful to consider the nature of the underlying financial obligation. The appellant’s only source of income, ODSP, comes from the government of Ontario. The debt is owed by the appellant to the government of Ontario. Repayment of the debt would amount, in effect, to a transfer from one pocket to the other pocket with no net gain to the government.
71The extremely tenuous prospect of repayment of the debt owed by the appellant, the onerous nature of this debt for the appellant, and the absence of any net gain to the government, to whom the debt is owed, lead me to the conclusion that it is appropriate to vary the Statement of Account to $0. The appellant has suffered loss and forfeiture of her beloved pets; to add an onerous financial obligation is punitive and unreasonable.
ORDER
72For the reasons set out above, the Board orders as follows:
(a) The appeal is denied and the removal of the seven cats pursuant to s. 31(1) of the Act is confirmed.
(b) The Statement of Account dated November 12, 2020 is varied to $0.
Released: January 13, 2021
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Joanne E. Foot Member