Tribunals Ontario

Animal Care Review Board

Date: 2021-10-27

Appeal under subsection 38(2) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Ginny Stokes Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Member

Appearances: For the Appellant: Self-represented For the Respondent: Michael Draper, Regional Supervisor, Animal Welfare Services

Held by teleconference: September 28, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Ginny Stokes (the “appellant”) is appealing the statement of account issued on August 17, 2021, arising from the removal of the appellant’s cat, Simba, from her property on July 28, 2021, by Animal Welfare Services (“AWS”), and Simba’s subsequent care to relieve his distress. This care included intervention to relieve his immediate distress, followed by amputation of his left hind leg to relieve his ongoing distress.

2Ginny Stokes previously appealed the removal of her cat Simba from her property (ACRB file 13504). The decision, dated September 22, 2021, found the removal was warranted pursuant to the Provincial Animal Welfare Services Act¹ (the “Act”), and made no order for its return to the appellant.

ISSUES TO BE DECIDED

3The issue to be decided by the Animal Care Review Board (the “Board”) is whether the Board should confirm, revoke, or vary the statement of account.

RESULT

4For the reasons that follow, I confirm the statement of account issued on August 17, 2021, in the amount of $8,271.73.

THE STATEMENT OF ACCOUNT

5On August 17, 2021, the AWS issued a statement of account (the “SOA”) to the appellant, reflecting the following costs:

1. Boarding Costs $ 100.00
2. Veterinary Costs $8,171.73 Total $8,271.73

EVIDENCE AND ANALYSIS

Appellant’s Evidence and Submissions

6The appellant took the position that her cat Simba was taken from her home for urgent care but was crated at the veterinarian’s facility for over 14 days, accumulating a substantial fee. She stated further that she had not wanted to use Campus Estates Animal Hospital (“Campus Estates”) where Simba was taken because their costs for the amputation of his hind leg quoted were double the amount quoted by Silvercreek Animal Hospital (“Silvercreek”), another local veterinary clinic she found.

7The appellant stated in her Notice of Appeal that she agreed that the amount in the SOA was “somewhat reasonable”, but that it was beyond her means to pay in whole or in part, and requested that the SOA be varied to $0.

8The appellant gave the following information to support her appeal:

1. She was given an invoice on August 4, 2021 for $2,950.37, for Simba’s care and some tests, but that it was out of her control to make decisions about tests or drugs that were completed at AWS’s direction.
2. Silvercreek’s quote to amputate Simba’s leg on August 3, 2021, ranged from $2,247.72 to $2,425.22, while Campus Estates’ quote on August 5, 2021, ranged between $3,412.68 and $3,965.58.
3. The only other financial update regarding Simba’s health she received was the SOA issued on August 17, 2021 for about $8,000.00 which she felt was incredibly high.
4. She made a payment proposal on August 30, 2021, based on her financial situation and Silvercreek’s quote, offering $3,000.00 total based on 6 monthly payments of $500.00 each. The Inspector responded on August 31, 2021, saying that AWS was unable to accept the payment proposal. He did not offer a counterproposal.

9In cross-examination, the appellant responded that:

1. She only contacted Silvercreek once and did nothing to follow up on their quote for her cat’s amputation, or to provide medical records to them.
2. She acknowledged that when given the two options, euthanasia or amputation, she told the Inspector that she wanted Simba’s leg to be amputated and didn’t want him euthanized. She authorized a biopsy to determine if the cancer had spread, and whether an amputation was viable. This was uncontested. She understood it would take up to 5 days for the biopsy results.
3. She provided no evidence of financial hardship to AWS, but in response to the respondent’s questions explained: i. She is employed as a nurse with an annual income of $97,000.00 in 2020. ii. She has three adult daughters, two of whom are employed; she helps them financially. iii. She didn’t think she needed to provide evidence of financial hardship, as it was personal information. iv. She rents her home, and has no savings and no credit card, and can’t qualify for a loan. v. She is in debt ($100,000.00), which she is still trying to pay off 6 years after the death of her spouse, and is also paying back-taxes. vi. Her payment proposal was based on what she could afford, and what she thought the total should be ($3,000.00).

10She discussed the varying quotes from Silvercreek and Campus Estates, acknowledging:

1. She was told by Silvercreek’s representative that the quote was approximate because the veterinarian hadn’t examined Simba or seen his medical records.
2. The difference of $1,200.00 between the quotes was for post-surgical care, which was not included in Silvercreek’s quote.

11The appellant responded during cross-examination that she objected to the pre-surgery costs. She stated that she didn’t consent to the $3,000.00 amount and she thought Campus Estates charged more than other vets.

12The appellant continued in her discussion regarding the SOA, stating that Silvercreek would not accept a payment plan for the surgery, and she was prepared to pay the $2,400.00 quoted for the amputation. She noted that AWS didn’t accept her payment proposal, but that she could have paid $2,400.00 to the Ministry.

13In response to my questions, the appellant replied:

1. Regarding the surgery, and the SOA: i. She wasn’t aware the costs associated with Simba’s care and lodging were rising and didn’t understand how $3,000.00 could have accumulated in the first 6 days for care before the surgery. ii. The amputation quotes from both veterinarian facilities were similar and she was willing to pay for this plus some care up to $3,000.00 total. iii. She felt she could have provided the post-operative care at home.
2. Regarding her options, euthanasia or amputation, and why she authorized testing and amputation if she couldn’t afford it, she responded that: i. She didn’t recall discussing the costs of amputation initially with Dr. Harris (Simba’s veterinarian) and doesn’t know why she told the Inspector that she couldn’t afford $2,700.00 on July 28, 2021 following Dr. Harris’ report to AWS. ii. She wasn’t aware of the industry standards for the costs for euthanasia or amputation. iii. She felt that Campus Estates charged more than other local veterinarians.
3. Regarding her concerns related to the breakdown of costs in the SOA: i. Care to relieve distress from July 28 to August 10: a. The testing was authorized by AWS, but not by her. b. She only authorized the biopsy but did not ask for a quote. ii. Surgical costs, including preparation, the appellant acknowledged: a. That there were additional necessary costs, including post-operative care. b. That Campus Estates charges included post-operative care. c. That Silvercreek did not provide post-operative care in their quote.
4. Regarding her financial ability to pay, the appellant provided various payment options: i. Initially she had saved $2,400.00, but she used it to help her daughter pay her car loan. ii. She could now pay $500.00 per month. The appellant submitted that she can also pay $1,000.00 from her daughter’s credit card immediately. iii. She then offered that she could pay $2,000 initially, and then $500 per month for 6 months.

Respondent’s Evidence and Submissions

14The respondent submitted that the costs reflected in the SOA for Simba’s care and boarding are the actual costs, and that the Ontario public is currently paying for.

15The respondent called Inspector Gary Robillard (the “Inspector”), who provided a chronology of events, supported by documentation, including his directions to Campus Estates to relieve Simba of his immediate distress, and subsequently to amputate Simba’s leg. In particular, he noted the following:

1. On July 28, 2021, he gave instructions to Campus Estates to take whatever steps were necessary to relieve Simba’s distress.
2. He was advised on July 29, 2021 by Dr. Katie Morin of Campus Estates that various tests were needed to analyze the tumor in Simba’s leg and determine if cancer had spread beyond his leg. If cancer had spread, amputation would not be appropriate. He authorized the tests (blood work, x-rays, and fine needle aspiration of the tumor).
3. He was advised on August 3, 2021, by Dr. Tanya Hnatejko of Campus Estates that she recommended humane euthanasia.
4. He contacted the appellant on August 4, 2021, with an update regarding Simba’s tests to date and the available options and recommendation.
5. He contacted Dr. Morin on August 4, 2021 with the appellant’s wishes and was advised again that euthanasia was recommended. He requested a financial statement to date.
6. He contacted the appellant on August 5, 2021 with the veterinarian’s recommendation for euthanasia. He explained a biopsy could take 3-5 days; the appellant said she was prepared to wait. He also told her costs to August 3, 2021 were $2,950.37 and sent her a copy of the invoice.
7. He received an email from Ali Stokes on August 5, 2021 stating that the family had found a veterinarian at Silvercreek willing to do the amputation without needing a prosthetic and had scheduled surgery for August 9th; if the biopsy indicated the cancer had spread, they would euthanize Simba.
8. He contacted Silvercreek who confirmed only that a consultation appointment had been made, and that they had not seen the medical records, and that they did not provide overnight care.
9. Over the period of August 5, 2021 through August 10, 2021 there were numerous communications with the appellant advising her that the cancer had not spread and amputation was possible, and asking her to transfer Simba’s medical records to Silvercreek, and that he required Silvercreek to provide a detailed plan of care to him. At the same time, he asked Silvercreek for confirmation that they had received Simba’s medical records, that the amputation was booked, and for details of post-operative care and overnight accommodation and was told that Silvercreek had not heard anything further from the appellant.
10. On August 10, 2021 the Inspector authorized Campus Estates to proceed with the amputation as he was the legal guardian of Simba and had not received further information regarding Silvercreek. Later that day he e-mailed Ali Stokes stating that amputation was still a valid option, and that per her family’s preference for amputation, he had directed Campus Estates to amputate Simba’s leg to permanently relieve his distress.
11. On August 30, 2021 he received a payment proposal from Bridget Stokes (one of the appellant’s daughters) for $3,000 total to be paid in monthly installments of $500. He responded on August 31, 2021 declining their proposal.

16The appellant declined to cross-examine the Inspector.

17In response to the Board’s questions, the Inspector stated the following:

1. The appellant was always aware that euthanasia and amputation were the available options, and that the veterinarians initially recommended euthanasia. She provided input into the decision regarding the biopsy and amputation.
2. The appellant was always aware of the rising costs while waiting for the test results, and how long the test results would take.

18The respondent called Ashley Rampersad, Office Manager and Veterinarian assistant at Silvercreek. She testified that she provided a preliminary quote and would have needed to receive medical records to provide a more specific quote. She added that the quote did not include follow-up care.

19The respondent called Dr. Brown, Veterinarian and owner of Campus Estates. She testified at length regarding Simba’s distress and medical condition, and the need for testing if she was to authorize amputation. She provided a list of all the tests required, and the daily care provided to Simba during this period including pain medication, antibiotics, and cleaning and re-bandaging his leg. She noted that Simba also required sedation during re-bandaging because it was a painful procedure for him.

20Dr. Brown testified that her clinic charges fees in accordance with the Ontario Medical Veterinarian Association fee guide (the “OMVA fee guide”), and that her clinic is competitive with others located in Guelph.

21Dr. Brown testified that the drugs administered to Simba were the reasonable standard for pain control for surgery and confirmed that all medical treatment provided by her clinic was absolutely medically necessary.

22The appellant declined to cross-examine Dr. Brown.

23In response to the Board, Dr. Brown testified that initially she recommended euthanasia because of the extent of Simba’s tumor. She explained that she wouldn’t recommend amputation without knowing if the cancer had spread, since cancer will often go to the lungs, and that secondary cancers start growing at a fairly rapid rate, giving the pet a fairly short life expectancy and causing undue suffering.

24On agreement of the parties, Dr. Brown agreed to prepare a summary of the veterinarian charges reflecting initial care costs, testing to determine if amputation was viable, and surgery.

25The respondent submitted Dr. Brown’s written summary on October 4, 2021. The summary indicates the veterinary costs of $8,171.73 reflected in the SOA on are based on the following:

1. Total professional fees² $7,231.57, including i. Initial examination and stabilization $1,969.58 ii. Pre-surgical evaluation $1,241.20 iii. Surgical fees $4,020.79³
2. HST $ 940.16

26Dr. Brown summarized the costs for initial examination and stabilization of Simba when he was first brought to Campus Estates, for a total of $1,969. This included the following items: initial emergency care to relieve Simba’s distress, including examination, bandage changes, and daily administration of medication leading up to surgery, and ongoing boarding costs (rather than daily hospitalization costs) including the period for pre-surgical evaluation.

Analysis

27Section 31(1) of the Act states that an AWS inspector may remove an animal for the purpose of providing it with necessaries to relieve its distress.

28Section 35(1) of the Act states that if an AWS inspector has provided an animal with necessaries to relieve its distress, it may serve the owner with a SOA respecting the cost of providing these.

29Section 38(9) of the Act gives the Board powers to confirm, revoke or vary a statement of account served under subsection 35(1).

30I find that the post-operative boarding costs of $100 charged in the SOA are reasonable. While the appellant felt she could have provided this care, the matter was decided previously in Board File 13504 that she could not.

31I find that the total veterinary costs of $8,171.73 charged in the SOA are reasonable. This is supported by Dr. Brown’s testimony and the financial summary she provided on October 4, 2021. Dr. Brown’s testimony was unchallenged.

32I further accept the respondent’s position that only the fees charged by the veterinarian were passed on to the appellant in the SOA. This is supported by its documentary evidence of the supporting invoices.

Boarding Costs

33The appellant did not dispute the boarding costs but noted that she felt she could have provided the remaining post-operative care at home. This matter was decided in the hearing of the Board’s File 13504 where it was found in Issue 4 that the appellant was not able to adequately provide the necessary post-operative care for Simba. As a result, the appellant could not offer an alternative to the boarding costs, and I find them reasonable.

34The boarding costs of $100 reflected in the SOA are based on a daily rate of $20 starting August 13, 2021 and reflect 5 days boarding with additional post-operative care at a sanctuary called Cats Anonymous. Submissions did not include an invoice supporting this, however the Inspector testified that boarding was for post-operative recovery.

Initial Examination and Stabilization

35I find that the care provided in the initial examination and stabilization to relieve Simba of his immediate distress were necessary and reasonable. This is supported by Dr. Brown’s testimony, and the financial summary she provided on October 4, 2021. Dr. Brown’s testimony was unchallenged.

36I have reviewed the respondent’s evidence, including the Inspector’s testimony. On July 28th the Inspector told Campus Estates to provide whatever steps were necessary to relieve Simba’s distress. Based on their recommendations, he authorized blood work, x-rays and fine needle aspiration of the tumor, as he had the authority to do under section 31(1) of the Act.

37Although it is not necessary for an appellant to consent to the treatments provided while the AWS has care over the animal, in this case the appellant played an active role in Simba’s care and consented to certain procedures.

38The appellant only objected on the basis that she had no role in authorizing the tests before the biopsy and that she could have provided Simba’s care at home. She could not point to any specific cost that she felt was out of line.

39The appellant provided no evidence against these other than to say she wasn’t consulted, and she found the costs excessive. The matter of her being permitted to care for Simba at home during the testing period was not possible as he had been removed by the Inspector to relieve him of his distress, which was ongoing.

Pre-surgical Evaluation

40I find that the fees charged for Pre-Surgical Evaluation are reasonable.

41I find that the tests conducted to determine Simba’s candidacy for amputation were medically necessary, supported by Dr. Brown’s testimony that she would not perform amputation without first determining if the cancer had spread. I accept Dr. Brown’s testimony that the cost of the tests is based on the OMVA fee guide and the clinic rates were competitive with other clinics in their area. I further accept that the costs of the biopsy, albeit a small part of the testing costs, was authorized by the appellant. During that time, Simba required ongoing boarding and care.

42I also find that that the respondent was Simba’s legal guardian, and custodian responsible for his care. I also understand that he authorized the initial tests recommended by Campus Estates to determine whether amputation was viable, or whether Simba should be euthanized.

43I find that the Inspector followed the appropriate course of action in authorizing the tests. The Inspector’s responsibilities are described in section 31(1) of the Act, authorizing him to remove Simba for the purpose of providing him with the necessities to relieve him of his distress.

44I find that approximately half of the boarding costs at Campus Estates were related to the appellant choosing to proceed with the biopsy knowing it could take up to 5 days to receive the results. She caused a further delay in the amputation by several days through failing to respond to the Inspector with the information to enable him to transfer Simba to her preferred clinic.

45I am not swayed by the appellant’s complaint that the charges were “high”, nor that she was not consulted. The Act does not require her to be consulted, except to authorize euthanasia.

Surgical Fees

46I find that the surgical fees are reasonable and supported by the evidence.

47The appellant challenged the surgical fees initially, providing a quote from Silvercreek for the surgery and indicating that Campus Estate’s costs were almost double.

48Silvercreek’s preliminary quote was not comparable to that of Campus Estates, having included only the surgery and not the medications, hospitalization and monitoring services that were included in Campus Estate’s fees.

49I considered the evidence of both Ashley Rampersad and Dr. Brown and am persuaded that the accuracy of the quotes was affected by physical examination of the animal, and circumstances during and after surgery, none of which was available to Silvercreek in preparing their preliminary quote.

50The appellant acknowledged that the two quotes were not dissimilar in the amounts charged for the same services, and that Silvercreek’s quote did not include post-operative care, and also that Campus Estates had some additional and necessary costs.

The Appellant’s Financial Ability to Pay

51I confirm the statement of account served under subsection 35(1), in the amount of $8,271.73. I find that the appellant is responsible for the costs associated with Simba’s care after he was removed from her home on July 28, 2021 based on the obligation to pay described in section 35 of the Act.

52I do not find that the appellant is unable to pay the amount of $8,271.73 in the SOA.

53At various times in the hearing, the appellant offered contradictory evidence on what amount she could pay. She expressed a willingness to pay some of the cost, but throughout the proceedings maintained that she could only afford $500 per month and did not wish to make a commitment beyond 2021, although she did not provide reasons or substantiation for either.

54I have no evidence before me that the appellant suffers from financial hardship, to prove that she cannot afford to reimburse AWS for Simba’s care, as required in section 35 of the Act.

55During both her testimony and her closing statement, the appellant made her financial priorities clear – she has debts to pay and needs to help her daughters with their expenses. The costs associated with Simba’s care however are also her debts, which she was partially responsible for incurring. This includes the costs described above – the time for the biopsy tests (to confirm that amputation was a viable option), and the additional costs of boarding and care services while she delayed in responding to the Inspector’s requests for information about Simba’s care if he was to be transferred to Silvercreek for the amputation procedure.

56I note that section 35(5) gives the Chief Animal Welfare Inspector the power to enter into a written agreement with the owner to extend the time for payment, before the expiry of the prescribed period of time⁴ following issuance of this decision (10 business days). I would strongly suggest that the respondent consider entering into a payment plan or delayed payment deadline with the appellant.

ORDER

57Pursuant to the powers of the Board under section 38(9) of the Act, the Board confirms the statement of account in the amount of $8,271.73.

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, S.O. 2019, Chapter 13
2. 2On agreement of the parties during the hearing, an Interim Order was issued ordering the respondent to submit a post-hearing summary of veterinarian costs provided by Dr. Nicolle Brown based on the categories that follow below. A copy of the summary was provided to the appellant.
3. 3On October 4, 2021 AWS submitted a correction to the surgical fees, noting that the amount of $204.20 for sedation during cytology on August 11, 2021, in the amount of $204.20 had not been included. The surgical fees reflect this addition.
4. 4Ontario Regulation 447/19 Ministerial Prescriptions