Tribunals Ontario
Animal Care Review Board
Tribunaux Décisionnels Ontario Commission D’étude Des Soins Aux Animaux
Date: 2021-01-29
Appeal under section 38(2) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c.13
Between:
Timothy Jackson 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: Connie Mallory, Representative
Held by teleconference: December 17 and 18, 2020
OVERVIEW
1This in an appeal under s. 38(2) of the Provincial Animal Welfare Services Act, 2019 (the "Act") of the statement of account dated November 26, 2020 in the amount of $450 (the "Statement of Account"). The Statement of Account relates to the daily boarding costs for the appellant's three dogs, Angie, Diesel and Lokie, following their removal from the premises where the appellant's mother lives.
2Following completion of the hearing, the respondent submitted an updated statement of account dated December 17, 2020, which bears the words "Final Statement", in the amount of $2,025, reflecting boarding charges for 27 days (the "Final Statement of Account").
3In his Notice of Appeal dated December 3, 2020 the appellant requests that the Statement of Account be reduced as he cannot afford the entire amount. He does not dispute the reasonableness of the Statement of Account.
ISSUE
4The only issue to be decided in this case is whether the Statement of Account and the Final Statement of Account should be confirmed, revoked or varied.
RESULT
5For the reasons that follow, I find that each of the Statement of Account and the Final Statement of Account should be varied to $0 and that the three dogs should be immediately returned to the appellant.
LAW
6Section 38(2) of the Act provides a right of appeal of a statement of account.
7Section 38(9) gives the Board authority, among other things, to confirm, revoke or vary a statement of account served under s. 35(1).
8The respondent bears the burden of proving, on a balance of probabilities, that the Statement of Account should be confirmed.
EVIDENCE AND ANALYSIS
Chronology of Events
9Inspector Karmel Smith, an Inspector with Animal Welfare Services, testified to a chronology of events, which was not disputed by the appellant. This timeline is helpful in understanding the issue before the Board.
10On Wednesday, November 18, 2020, Inspector Smith attended at 247 Long Point Road near Lyndhurst, Ontario to investigate a complaint made by Ms. Jean Weeks that the dogs had been abandoned. Ms. Weeks is the owner of the property at 247 Long Point Road. Also living at 247 Long Point Road are Mr. Dwayne Weeks, Ms. Weeks' son and Ms. Karen Jackson, wife of Mr. Weeks and mother of the appellant.
11On November 18, 2020, Inspector Smith issued compliance orders relating to the appellant's three dogs then residing at Ms. Weeks' home (the "Compliance Order"). The Compliance Order was served on Ms. Weeks, Mr. Weeks and Ms. Jackson in person. Inspector Smith served the Compliance Order on the appellant by text message later that day and spoke with him by telephone. The Compliance Order required, among other things, that the dogs be provided appropriate shelter from the cold and fresh drinking water and that the basement be cleaned in order to be appropriate for the dogs. The deadline for compliance with the Compliance Order was set for 12 p.m. on Friday, November 20, 2020.
12Inspector Smith was off duty on Friday, November 20, 2020. On that day, Animal Welfare Services Inspector Maryanne Pryer attended at 247 Long Point Road. During that visit, she issued a Notice of Removal of Animal(s) dated November 20, 2020 (the "Removal Notice") and removed the dogs with the assistance of another Animal Welfare Services inspector. Inspector Pryer served the Removal Notice on Ms. Weeks only.
13On November 26, 2020, Inspector Smith spoke to the appellant and served on him, in person, the Removal Notice and the Statement of Account.
Other Background Information
14In the fall of 2020, the appellant found himself without a place to live. At some point, he secured permanent rental accommodation, his occupancy was to begin on December 1, 2020. In the meantime, he was living in a motel in Westport, Ontario with his girlfriend. He was unable to keep his three dogs at the motel.
15The appellant had asked his mother to look after the three dogs. The appellant testified that his mother, who lives in the home of Ms. Weeks at 247 Long Point Road, agreed. The appellant stated that he was paying his mother money for the dogs' care and that she had agreed to care for the dogs until December 1, 2020, when he could move to his new rental accommodation.
16We accept that the appellant's mother, with the agreement of Ms. Weeks, agreed to look after the three dogs. It is not clear how long this arrangement was to have remained in place. Ms. Weeks told Inspector Smith that she had agreed to keep the dogs for two weeks, that the dogs had been there for almost three months and finally that the dogs were to be removed by the beginning of hunting season, on November 2, 2020. Notwithstanding the inconsistent evidence, it is clear that the arrangement for the dogs at Ms. Weeks' home was to be temporary.
17It appears that the dogs had overstayed their welcome at Ms. Weeks' home. On November 17, 2020, Ms. Weeks called Animal Welfare Services indicating that the dogs had been abandoned and that she was no longer willing to care for them. Inspector Smith advised Ms. Weeks to surrender the dogs to a local shelter. Ms. Weeks indicated that she was unwilling to do so as the appellant and his partner had objected to that course of action.
18The appellant told Inspector Smith that he had secured permanent rental accommodation beginning on December 1, 2020. Inspector Smith explained to the appellant during their call on November 18, 2020 that if the Compliance Order was not complied with by the deadline on November 20, 2020 the dogs could be removed and that charges would accrue for their boarding. I accept that this was communicated to the appellant. I also accept that Inspector Smith recommended during that conversation that the appellant remove the dogs himself and find them another place to stay until December 1, 2020. It is not in dispute that the appellant was not given notice of the removal of the three dogs at or immediately prior to the time of the removal and I find that he did not have actual notice that his dogs had been removed from the home of Ms. Weeks until November 26, 2020.
19The appellant does not work and depends upon his Ontario Works payment of $1,300 per month to cover all of his expenses. He testified that he had incurred expenses of about $2,600 in connection with his move to his new rental accommodation and that, as a result, he had, at the time of the hearing, no money to pay the Statement of Account but would have some funds after the end of the month. He testified that he offered to pay the Statement of Account in installments, but that Animal Welfare Services would not accept payment plans.
Issue: Should the Statement of Account be confirmed, revoked or varied?
20Given the failure of Animal Welfare Services to inform the appellant at the time his dogs were being removed, the inflexible approach taken by Animal Welfare Services to the situation as a whole, and the financial circumstances of the appellant, I find that the Statement of Account should be varied to $0.
21Neither the Act nor the Regulations contain guidance as to the grounds the Board may consider in connection with the variance of a statement of account. In this case, I have considered four factors, as follows:
a) the appellant's circumstances at the time that the dogs were removed;
b) the conduct of Animal Welfare Services in relation to the removal of the three dogs from the home of Ms. Weeks;
c) the reasonableness of the Statement of Account on its face, that is, the amounts being charged in relation to the services provided to the three dogs; and
d) the reasonableness of the amounts charged in the context of the appellant's ability to pay and the source of income of the appellant.
Circumstances of the Appellant
22On the day that the dogs were removed from the home of Ms. Weeks, the appellant found himself in difficult and unfortunate circumstances, being without a permanent place to live. This circumstance was compounded by the fact that he lives under significant financial constraints, being dependent upon Ontario Works as his only source of income.
23While his living situation was about to improve with the anticipated move to rental accommodation on December 1, this improvement caused greater financial stress. He had incurred costs of about $2,600 in relation to the move and his new leased housing.
24The appellant is attached to and cares for his dogs and very much wishes for their return.
Conduct of Animal Welfare Services in Relation to the Removal of the Three Dogs
25I am troubled by the manner in which Animal Welfare Service handled this matter. It appears to me that there was an absence of fair process and procedure in relation to the removal of the three dogs, an absence of internal coordination at Animal Welfare Services and a lack of consideration of the big picture and what might constitute the best outcome in the circumstances.
26The most significant failure by Animal Welfare Services in their handling of this matter was the failure to notify the appellant of the removal of his dogs at the time it was happening on November 20, 2020. The appellant was not provided notice until November 26, 2020 six days later. I accept that he had no actual notice of their removal until that time. By November 26, 2020 all the charges set out in the Statement of Account had accrued. The accrued amount of $450 was simply beyond the financial ability of the appellant by the time he became aware that charges were accruing. The delay in providing timely notice to the appellant was procedurally unfair and, as a practical matter, precluded any action that the appellant might have taken had he known to remove the dogs himself and/or make alternative arrangements for their care. This failure taints all charges accruing for the care of the dogs arising after their removal.
27The respondent argues that the appellant was informed on November 18, 2020, at the time that Inspector Smith served the Compliance Order, that his dogs could be removed on November 20, 2020 if compliance with the Compliance Order had not been achieved. The appellant does not dispute that he received this information. However, this information provided in advance of the actual removal cannot be regarded as an adequate substitute for actual notice of the removal of his dogs at or immediately prior to or at the time of their removal.
28The failure to provide actual notice is exacerbated by evidence the Board heard that the appellant attempted to contact Animal Welfare Services on November 20, 2020, the day of the removal. Specifically, he texted Inspector Smith, who suggested that he get in touch with her supervisor, Senior Inspector Rene Baker. He then contacted Senior Inspector Baker but did not receive a call back from her. On Saturday, November 21, 2020 the appellant sent a text to Inspector Smith but still was not told that his dogs had been removed.
29There is other evidence of a lack of internal coordination at Animal Welfare Services. For instance, Inspector Smith testified that she did not know why Inspector Pryer failed to notify the appellant of the removal of the dogs on November 20, 2020. She also testified that she did not know why the dogs were removed by Inspector Pryer on November 20, 2020 but that she "assumed" the Compliance Order had not been complied with.
30This is a situation that would have benefited greatly from the exercise of discretion and judgment by the Inspectors and Animal Welfare Services with a view to ensuring the best outcome. The situation was somewhat atypical in that the owner of the dogs was not the person directly responsible for their living conditions. It is clear that Ms. Weeks' prime motivation was getting rid of the dogs, not improving their living situation. It is also clear that there was a difficult family dynamic at play, which gave rise to the contact with Animal Welfare Services in the first place. As well, it was known that the situation was temporary as the appellant would have new accommodation in less than two weeks and the matter would be fully resolved in short order. Finally, it was clear that the appellant had no actual control over the care provided to the dogs at the home of Ms. Weeks.
31My understanding is that the dogs continue to remain in the custody of Animal Welfare Services – about 60 days from the time of their removal. It is unfortunate that Animal Welfare Services did not attempt a solution that would have balanced the interests of the appellant and those of Ms. Weeks given that a permanent solution was clearly in sight – just twelve days away.
Reasonableness of Statement of Account on its Face
32The respondent did not offer any evidence in relation to the amounts charged for the care of the three dogs in the Statement of Account. It appears that the boarding charges are $25 per day per dog, or a total of $75 per day. As above, the appellant did not object to the Statement of Account on the basis of it being unreasonable. It appears to me that the charge of $25 per dog each day is reasonable having regard to the cost of food and time spent exercising and feeding each dog every day. Therefore, I find that the amount of the Statement of Account is reasonable for the boarding provided to the three dogs.
Reasonableness of Statement of Account in Relation to the Appellant's Ability to Pay
33The amount of the Statement of Account is $450, reflecting boarding charges of $25 per day per dog. I have found this amount to be reasonable. Subsequent to the hearing, the respondent submitted an updated statement of account dated December 17, 2020, which purports to be a "Final Statement" in the amount of $2,025, reflecting boarding charges for 27 days (the "Final Statement of Account").
34The appellant does not work. He receives approximately $1,300 per month from Ontario Works. He testified that he had moving-related expenses in December of $2,600. Payment of the $450 set out in the Statement of Account represents about 35% of his monthly income and is clearly beyond his financial ability to pay in a single payment. The amount of $2,025 set out in the Final Statement of Account represents about 13% of the appellant's annual income and, as such, is truly onerous. He simply does not have the financial resources to pay this amount.
35There are likely cases where the expenses incurred by 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 lives in constrained financial circumstances, could have a debt of this magnitude one which he has very little ability to pay hanging over his head.
36It is also helpful to consider the nature of the underlying financial obligation. The appellant's only source of income, Ontario Works, 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.
37The 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, also lead me to the conclusion that it is appropriate to vary both the Statement of Account and the Final Statement of Account to $0.
ORDER
38For the reasons set out above, the Board orders that:
(a) The amount of the Statement of Account dated November 26, 2020 is varied to $0 and that the three dogs be returned immediately to the appellant.
(b) The amount of the Final Statement of Account dated December 17, 2020 is varied to $0.
Released: January 29, 2021
_______________________
Joanne E. Foot Member