Tribunals ontario Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’Étude des Soins aux Animaux
Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019R.S.O. 2019, c.13
Between:
Gul Tanis
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances:
For the Appellant: Self-represented, assisted by Sevda Zaynali, friend
For the Respondent: Connie Mallory, Regional Supervisor, Animal Welfare Services
Heard by videoconference: September 22, 2021
OVERVIEW
1The appellant, Gul Tanis, appealed, pursuant to s. 38(2) of the Provincial Animal Welfare Services Act, 2019 (the Act), against a Statement of Account issued on August 22, 2021 for $350 for boarding and $1740.07 for veterinary care to relieve the distress of her cat, “Mia.”, for a total amount of $2090.07. The Statement of Account was subsequently revised on September 14, 2021, to a total amount owing of $2825.07. That Statement of Account will be considered in this appeal.
2The cat was removed from the appellant’s care on August 6, 2021 by Animal Welfare Services. The removal was not appealed as the appellant agreed that the cat was in distress at the time it was taken and that it required immediate care.
3In her Notice of Appeal, the appellant stated that she did not want to lose the cat as her family is very attached to Mia, and hopes for the return of her cat but cannot afford to pay the Statement of Account in full. She is a single mother with two children and is currently relying upon on government assistance as her source of income.
4At the hearing, the appellant, was assisted by her friend Sevda Zaynali, primarily as a translator.
ISSUE
5The only issue to be decided in this case is whether the Statement of Account, and for the purposes of this appeal, I will address the Statement of Account issued on September 14, 2021 which was submitted into evidence by the respondent, should be confirmed, revoked or varied.
RESULT
6For the reasons that follow, I vary the Statement of Account to $2300.07 and find that the services described were required for necessaries and care to relieve Mia’s distress.
LAW
7Section 35(1) of the Act provides that 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 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”.
8Section 35(5 ) provides that, “before the expiry of the relevant time period set out in Clause 4 (a) or (b) , the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both”.
9Section 38(2) provides a right of appeal of a statement of account.
10Section 38(9) gives the Board authority, among other things, to confirm, revoke or vary a statement of account served under s. 35(1).
11The respondent bears the burden of proving, on a balance of probabilities, that the Statement of Account should be confirmed.
EVIDENCE AND ANALYSIS
12Though the appellant does not dispute that Mia was in distress at the time of her removal, the events leading to the removal order and the issuance of the statement of account are important context for this decision.
13Mia had kittens in late July. The appellant explained to Inspector Gerow of Animal Welfare Services (“AWS”) when he attended at her home on August 6, 2021 that Mia had become ill shortly after giving birth. At that point, the appellant took Mia to see a veterinarian and received a prescription for antibiotics. The veterinarian also recommended that bloodwork and other tests be done, at a cost of approximately $1,300. The appellant testified that she could not afford to pay that amount but asked the veterinarian if a payment plan was possible. She was told it was not. As a result, she left with the antibiotics. Mia seemed to respond well for a couple of days but then her condition worsened again.
14The appellant decided to see her own family doctor to ask if he had any suggestions as to how she could access care for her cat. While one might question why she would do this, as the respondent’s representative did at the hearing, it does speak to the appellant’s intention to seek care for the cat. Her doctor suggested that she contact AWS which she did, leading to Inspector Gerow’s attendance on August 6, 2021. Inspector Gerow testified that the appellant allowed him to enter to see Mia. In his assessment, Mia was in an advanced state of distress; the cat was showing signs of infection, was unresponsive, and, in his view, near death. He told the appellant that Mia needed to be seen by a vet immediately.
15Inspector Gerow wrote a Compliance Order pursuant to s. 30(1) of the Act at 4:50 pm that day, requiring that the cat be examined by a vet; the appointment for which was to be made by 5:05 pm. He was giving the appellant 15 minutes to secure an appointment for Mia. Inspector Gerow stated that he was aware that there were language barriers in his communication with the appellant, but believed she understood that he was giving her 15 minutes to make a vet appointment because Mia was in a state of critical distress. Whether it was at all reasonable to expect that the appellant, with her limited ability to communicate in English, to obtain a vet appointment, without the assistance of anyone to facilitate matters for her, especially during Covid, in 15 minutes is questionable, The appellant did tell him at this point that she had no financial ability to pay vet fees and asked if government assistance was available.
16Inspector Gerow stated that the appellant was not able to make an appointment, so he prepared the Notice of Removal, dated August 6 at 5:05 p.m.
17In her evidence, the appellant stated that she did not understand the implications of the 15-minute time period indicated on the Compliance Order but in the circumstances, she felt she had no choice but to have Inspector Gerow take Mia. She did not want her to die.
18Inspector Gerow and Dr. Marjorie McIsaac, a veterinarian at the emergency vet hospital, both gave evidence about Mia’s medical care and the Statement of Account. When he left the appellant’s home with Mia, Inspector Gerow went to the vet hospital immediately. Mia was placed in the critical care unit. The cat was diagnosed with severe mastitis. She was sedated, received two courses of I.V. fluid therapy as she was severely dehydrated and received antibiotic and pain medication. Mia remained in the critical care unit until August 9, 2021. Dr. McIsaac described Mia as a challenging patient, largely attributable to the pain she was experiencing from the infection, making her difficult to handle.
19On August 9, 2021, Mia was moved to an AWS shelter which could provide an elevated care to her. Inspector Gerow stated that Mia still required ‘professional care” at this point due to the amount of medications that had to be administered to her several times a day. This required two people, and in Inspector Gerow’s opinion, it was beyond the ability of most animal owners to provide the level of care required. Mia remained at this shelter for 16 days at which time she had recovered sufficiently to be moved to their ‘standard board care”. Inspector Gerow stated that Mia was no longer in medical distress as of August 25, 2021 though she was still being treated with topical wound care, which could be done by one person. At the hearing, Inspector Gerow stated that with specific instructions the appellant may have been able to care for Mia at this point; it may have been difficult, but not impossible.
20Inspector Gerow testified that he spoke to the appellant on August 21 and 22, 2021. She inquired about Mia’s progress and wanted to visit her, which he said she could not. The appellant also asked him what would be required for her to get Mia returned to her family. She explained that the family was very attached to the cat, especially her older son who was experiencing health issues and who had been hospitalized for a few days. Inspector Gerow explained (through an interpreter who was present for most phone calls that he had with the appellant) that a statement of account would have to be settled before Mia could be returned to her and suggested that she might want to surrender the cat to AWS because the costs would be significant. He stated that the appellant then proposed a payment plan of $200/month, though at the hearing she stated that she would have only been able to offer $100/month given her financial circumstances. In any event, the respondent did not offer an instalment plan to her without any apparent explanation for the refusal.
21Regarding the appellant’s financial situation, the appellant submitted in evidence her 2020 tax return. It shows that she had an income of $7,194. She stated that she had worked part time at a day care centre but due to the pandemic and her son’s illness, she was no longer working. She did receive the government Canada Recovery Benefit in 2021 but that will be coming to an end later this year. She receives the government child benefits and rents out one of the rooms in her home for additional income.
Is the Statement of Account reasonable?
22As noted above, the first Statement of Account was issued on August 22, 2021. It set out veterinary costs of $1,740.07 and boarding costs of $25/day for 14 days (and ongoing) of $350. Inspector Gerow explained at the hearing that when he issued a revised and updated Statement of Account on September 14, 2021, he discovered that he had made a mistake on the cost of the first 14 days of boarding. The daily cost of boarding in the shelter for elevated level of care was $35. Therefore, the Statement of Account is as follows:
Boarding Costs: 21 days standard boarding $25/day - $525
Boarding Costs:16 days intensive care board $35/day - $560
Emergency vet care $1,740.07
Total costs $2,825.07
23Based on the evidence from Dr. McIsaac, I find that the veterinary costs of $1,740.07 are reasonable. Mia’s condition, as described by Dr. McIsaac, was critical and significant treatment and care were required. Without treatment, Mia would have died. I also accept, based on the evidence of Dr. McIsaac and Inspector Gerow that the elevated level of care required for Mia from August 9 -25, 2021 was reasonable and necessary given the ongoing treatment and medications that had to be administered for her recovery.
24Based on the evidence of Inspector Gerow, I do not accept that it was reasonable that Mia remained in boarding care beyond August 25, 2021. By that date, one person, namely the appellant, could have provided Mia with the medication required. Inspector Gerow stated that specific instructions could have been provided to the appellant, but he made no effort to do so. At that point, Mia was not in distress so as to require that she continue to be boarded at the AWS shelter. Based on his own evidence, Inspector Gerow was aware that the cost of Mia’s veterinary care and board costs were significant and particularly so in relation to the appellant’s ability to pay, a point that was conveyed to him on August 6, 2021. The appellant wanted the cat, which was no longer in distress, returned and requested that a payment plan be extended to her. Section 35(5) of the Act gives the Chief Animal Welfare Inspector the authority to enter into a written agreement for payment and the ability to reduce the amount to be paid. Inspector Gerow told her that alternative payment options would not be extended to her. The reasons for that position were not provided to the Board at the hearing.
25In the circumstances of this case, I find that it was not reasonable that AWS continued to incur costs after August 25, 2021, knowing that the appellant could not afford to pay, all the while telling her that the cat would not be returned until the Statement of Account was paid. The appellant was placed in an untenable position, which was neither reasonable nor fair. As the evidence shows, there is a limited ability to pay, but there is also an acknowledgement by the appellant that the cat required immediate care, and a willingness to pay, through a payment plan.
26I will address one point, raised by Inspector Gerow in his evidence as it relates to the return of Mia – his suggestion to the appellant in or about August 25, 2021 that she surrender of the cat, due to the significant costs for her care. The case conference report and order indicates that the respondent gave consideration to keeping the cat in care pursuant to s. 31(6) of the Act. The respondent’s representative, in submissions, suggested that if an owner cannot afford to care for their animal, they may be under an obligation to give them up, the inference being that the appellant may not have the financial resources to care for Mia in the future, potentially resulting in distress to the cat. Section 31(6) states that the Chief Animal Welfare Inspector may decide to keep an animal that was removed in their care if they have reasonable grounds to believe that the animal may be placed in distress if returned to the owner. However, the respondent confirmed on September 13, 2021, that the cat was not in distress and it would not be seeking to keep the cat in care. Yet, by refusing to come to any accommodation with the appellant, resulting in the accrual of more costs, the respondent may be seen as effectively presenting the appellant with no alternative but to surrender her cat without them having to exercise their powers under s. 31(6) of the Act.
CONCLUSION
27For the reasons set out above, I find that the Statement of Account in the amount of $2,300.07 is reasonable and was necessary to relieve Mia’s distress. I recognize that this amount, though varied from the original amount (in the September 14, 2021Statement of Account) remains a significant sum for the appellant.
28I urge the respondent to reconsider its position regarding a payment plan and to return the cat to the appellant. I agree with the respondent’s representative that there are situations in which expenses incurred by AWS relating to the care of animals, should be recouped. Cases from the Board have confirmed Statements of Account of significantly larger amounts. However, this is a case where the respondent’s exercise of discretion pursuant to s. 35 (5) would be appropriate in order to avoid an extremely punitive outcome for the appellant. This is an onerous debt for this appellant who relies on government assistance to support her family, and a debt owed to another branch of government which can only be paid through the amounts received by her from government. It would be fair and reasonable for the respondent, in circumstances such as these, to exercise the discretion given to it by the legislature.
ORDER
29For the reasons set above, the Board varies the amount owing on the Statement of Account dated September 14, 2021 to $2,300.07.
Released: October 14, 2021
Patricia McQuaid, Vice-Chair