Donovan v. Chief Animal Welfare Inspector, 2021 ONACRB 6

Tribunals Ontario Animal Care Review Board

Tribunaux décisionnels Ontario Commission D’étude Des Soins Aux Animaux

Date: 2021-03-01

Appeal under subsections 38(1) and 38(2) of the Provincial Animal Welfare Services Act, 2019 R.S.O. 2019, c. 13

Between:

Kate Donovan Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Helen Karpouzos, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Nicole Driscoll, Regional Supervisor, Animal Welfare Services, North Region Connie Mallory, Regional Supervisor, Animal Welfare Services

Heard by teleconference: February 2, 2021

OVERVIEW

1The appellant, Kate Donovan, appeals the removal of her twelve cats (the “cats”), including two adult females (“Meadow” and “Willow”), eight kittens, and two intact males (“Hunter” and “Snowflake”). She also appeals the Statement of Account issued to her on December 31, 2020.

2On December 29, 2020, the cats were removed as a result of the appellant’s noncompliance with an order issued to her on December 14, 2020 (the “Compliance Order”) by Animal Welfare Services Senior Investigator Robert Winter (“Senior Investigator Winter”) pursuant to section 30(1) of the Provincial Animal Welfare Services Act (the “Act”).¹ The Compliance Order required the appellant to ventilate and clean her apartment to eliminate the odour of ammonia by December 23, 2020.

3Senior Investigator Winter formed the belief that the appellant’s failure to satisfy the requirements of the Compliance Order caused the cats to be in distress. As a result, he served the appellant with a Notice of Removal on December 29, 2020, and removed the cats from her care.

4On December 31, 2020, the appellant was served with a Statement of Account in the amount of $1,185.19. The boarding costs included $15.00 per day for four kennels, which totaled $180.00. The veterinary costs included examination fees and the administration of a topical flea treatment to some of the cats, as well as an emergency fee. The veterinary costs on this Statement of Account totaled $1005.19.

5On February 2, 2021, the Appellant was served with an updated Statement of Account in the amount of $3,095.71. The fees were adjusted for additional boarding and veterinary care. The cost for boarding between December 29, 2020 and January 28, 2021 totaled $1,860. The veterinary bill increased to $1235.71 because one cat required medication in late January. As this account is most recent, I have considered it as part of this appeal.

6The appellant acknowledged that her residence was unsanitary and smelled of ammonia from cat urine, but denied that her cats were in distress. The appellant further submitted that she should not have incurred the costs of veterinary care because her cats were healthy and did not need to be examined by a veterinarian.

ISSUES

7The issues to be decided by the Board are:

a. Did Senior Investigator Winter have reasonable grounds to believe that the cats were in distress, and therefore lawfully issue the Compliance Order?

b. If so, did the appellant comply with the Compliance Order?

c. If not, were the cats lawfully removed from the appellant’s care?

d. Should an order be made for the return of the cats to the appellant’s care?

e. Should the Statement of Account be confirmed, revoked, or varied?

RESULT

8I am satisfied that Senior Investigator Winter had reasonable grounds to believe that the cats were in distress and that he was acting within his authority to issue a Compliance Order. I am further satisfied that the appellant did not comply with the Compliance Order and that the cats were lawfully removed from her care. I also find that the cats should not be returned to the appellant for the reasons outlined below. Finally, I do not find the emergency fee in the veterinary portion of the Statement of Account dated December 31, 2020 to be reasonable and am varying it to be reduced by $237.30.

POWERS OF THE BOARD AND THE LAW

9Section 38(9) of the Act gives this Board the authority, after a hearing, to:

a. Confirm, revoke or modify an order made under section 30;

b. Order that an animal removed under subsection 31(1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31(6) or 44(8), be returned to the owner or custodian; and

c. Confirm, revoke or vary a statement of account served under s. 35(1).

10Section 31(1)(c) of the Act states 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.

11Distress is defined in s. 1(1) as “the 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.”

12Section 38(1) of the Act provides a right of appeal of an order for removal under s. 31(1) and s.38(2) allows for an appeal of a statement of account, which is served under 35(1) of the Act.

13The respondent bears the burden of proving, on a balance of probabilities, that the removal of the cats was permitted under the Act and that the Statement of Account should be confirmed.

EVIDENCE AND ANALYSIS

Procedural Background

14Throughout the course of the hearing, the appellant alleged that she was not receiving a fair hearing because she was not permitted to call witnesses. For that reason, I believe it is necessary to offer background information with respect to how the hearing proceeded.

15The first day that the hearing was scheduled to proceed was on January 19, 2021. On that day, at the commencement of the hearing, both parties requested an adjournment for the following reasons:

a. The respondent requested an adjournment because the appellant had not provided any disclosure to date. The appellant acknowledged that she had not delivered the disclosure to the respondent because she was having technical difficulties and was unable to access her email.

b. The appellant requested an adjournment because she submitted that she had not received the respondent’s disclosure materials. The respondent advised that disclosure was sent to the appellant via email on January 15, 2021, and sent it to her again via email while the parties were on the conference line. The appellant denied having received the disclosure.

16The hearing was adjourned on consent of the parties to January 26, 2021 to give them more time to exchange disclosure and prepare for the hearing.

17On January 26, 2021, the hearing commenced by teleconference. At the outset, the appellant again requested an adjournment. Due to the appellant’s issues accessing the respondent’s disclosure via email, the respondent had made arrangements with her to deliver a hardcopy of it on January 23, 2021. The appellant acknowledged that she received the disclosure on that day but had not yet had the opportunity to review it to prepare for the hearing. In addition, the appellant had not provided any disclosure to the respondent due to her ongoing issues with her email. On January 26, 2021, three witnesses for the appellant called in to the teleconference, but she had not provided the respondent with a witness list or any information about what those witnesses were expected to say.

18The respondent opposed the adjournment request and asked that the hearing proceed without the appellant’s evidence. The respondent submitted that the appellant had sufficient time to disclose the evidence she intended to rely on at the hearing and failed to do so.

19In light of the appellant’s ongoing technical difficulties during a provincial lockdown due to COVID 19, a further adjournment was granted. However, the appellant was cautioned that any evidence that was not disclosed to the respondent, including a list of witnesses and a summary of their expected evidence by the deadline outlined in the Order to follow, would be excluded at the hearing and that the next scheduled date was being marked peremptory on her to proceed.

20The hearing date was rescheduled for February 2, 2021. On January 27, 2021, the Board released an Order that required the appellant to have her materials disclosed to the respondent and to the Board by Friday, January 29, 2021 at 12:00 pm (noon). The Order specified that any disclosure that was not received by the deadline would be excluded from the hearing.

21On February 2, 2021, the hearing commenced. The respondent still had not received any disclosure from the appellant. The appellant again indicated she had technical difficulties and was unable to send the disclosure via email. Instead, she sent numerous text messages to the respondent and several emails to the Board over the course of the weekend, after the deadline stipulated in the Order. Two of the appellant’s witnesses called in to the hearing. They were advised that their evidence was not going to be permitted pursuant to the Board’s Order dated January 27, 2021, and were directed to disconnect from the line.

22Despite assertions that her email was not functioning properly, the Board received numerous emails from the appellant from January 5, 2021 onward, which included her Notice of Appeal and several photographs of the cats and her apartment. On January 19, 2021, when the parties discussed the appellant’s difficulties with her email, I advised the appellant that the Board was able to communicate with her via email. The appellant said it costs her money to send additional emails to the respondent. I suggested that the appellant simply copy the respondent on any emails to the Board that contained her disclosure so that she did not have to incur any costs for sending duplicate emails. The appellant did not follow this suggestion.

23The hearing proceeded with the appellant testifying on her own behalf, and the respondent relying on the evidence of two witnesses, Senior Investigator Winter and Inspector John Duke (“Inspector Duke”).

Chronology of Events

24Senior Investigator Winter and Inspector Duke offered a chronology of events through their testimony, which was undisputed by the appellant. The respondent’s evidence was as follows:

25On October 16, 2020, Senior Investigator Winter received a complaint from the dispatch center alleging that the appellant had at least 10 cats in her apartment and that they were not being properly cared for. The complainant also expressed concern about one cat’s poor body condition and indicated that this cat had been treated for injuries to his head resulting from a fight with other cats within the appellant’s residence.

26On October 29, 2020, Senior Investigator Winter attended the appellant’s apartment. The appellant was not home, so he left a notice on the door asking her to call him, which she did on October 30, 2020. Senior Investigator Winter advised the appellant of the complaint and arranged a site visit for November 2, 2020 at 3:00 pm.

27On November 2, 2020, Senior Investigator Winter attended at the appellant’s apartment for the site visit but she was not home. The appellant contacted him later that day to apologize for not being home, and they rescheduled the site visit for November 4, 2020 at 3:00 pm.

28On November 4, 2020, Senior Investigator Winter again attended the appellant’s apartment. She did not invite him inside but left the door to her unit open and brought three cats into the hallway, one at a time. Senior Investigator Winter testified that the cats he observed appeared healthy so he did not have any concerns at that time, and no further action was taken.

29On November 12, 2020, Senior Investigator Winter received a further complaint via email from Amanda Wright, an employee with the Animal Hospital in Sault Ste. Marie. Ms. Wright attached three separate witness statements from two veterinary technicians, Stefhany Peterson and Donna White, and the veterinarian, Dr. Seabrook. The veterinarian technicians expressed concern about a puppy they witnessed the appellant physically mistreat when she took him to the animal hospital on November 10, 2020. Dr. Seabrook’s statement expressed concern over the appellant’s cat, Snowflake. She indicated he had suffered blunt force trauma to his face in 2018 and repeatedly attends the animal hospital with wounds from fighting with other intact male cats within the appellant’s residence.

30On November 18, 2020, Senior Investigator Winter attended the appellant’s residence accompanied by Inspector Duke. No one answered the door, so they left a notice asking the appellant to call them.

31On November 19, 2020, the appellant called Senior Investigator Winter and left him a voicemail notifying him that she was not going to cooperate with his investigation.

32On December 5, 2020, Senior Investigator Winter called the appellant and explained that he was required to follow up with the newest complaints before he could close her file. The appellant agreed to a site visit on December 7, 2020 at 3:00 pm.

33On December 7, 2020, the appellant notified Senior Investigator Winter via text message that she had a death in her family and would be unable to accommodate the site visit. They rescheduled the visit for December 11, 2020.

34On December 10, 2020, the appellant notified Senior Investigator Winter via text message that she was unable to accommodate the site visit for the following day because of an illness in her family. They rescheduled the visit for December 14, 2020 at 3:00 pm.

35On December 14, 2020, Senior Investigator Winter and Inspector Duke attended the appellant’s residence. The appellant invited them inside. While inside, they made the following observations:

(a) The apartment smelled strongly of ammonia, which caused their nasal passages to become irritated;

(b) The apartment was cluttered and dirty. There were empty, unwashed litter boxes sitting in the bathtub; and

36Externally, the cats appeared to be in good health. However, Senior Investigator Winter testified that he was concerned about the cats’ exposure to ammonia, which can cause internal damage. Inspector Duke testified that he was concerned about the exposure to ammonia and the psychological distress resulting from the unsanitary living conditions and the lack of access to a litter box.

37Based on these observations, Senior Investigator Winter issued a Compliance Order that required the appellant to ventilate and clean her apartment to eliminate the smell of ammonia by December 23, 2020 at 3:00 pm.

38On December 22, 2020, the appellant notified Senior Investigator Winter via text message that she could not air out her apartment or throw out her garbage because her neighbour was threatening her with violence. He did not respond to that message.

39On December 29, 2020, Regional Supervisor Nicole Driscoll notified Senior Investigator Winter of another complaint made by Andrea Caldwell via email to Chief Inspector Paula Milne. Ms. Caldwell runs a local animal shelter and complained about the unsanitary living conditions within the appellant’s apartment that she observed on December 28, 2020. Ms. Caldwell had attended at the appellant’s residence on that day to rescue a puppy. The appellant posted on social media that she was looking to rehome the puppy who had just killed a kitten within her residence. By this time, five complaints in total had been initiated against the appellant.

40On December 29, 2020, Senior Investigator Winter called the appellant and made arrangements for a site visit later that morning.

41Senior Investigator Winter and Inspector Duke attended the appellant’s apartment on December 29, 2020 at 10:00 am. They both testified that the smell of ammonia persisted in the apartment, there were two litter boxes that were completely full of feces and urine, and the apartment was noted to be very dirty. Based on their observations and the continued potent smell of ammonia, Senior Investigator Winter served the appellant with a Notice of Removal, and removed a total of twelve cats from her residence. All of the cats were taken to the animal hospital for examination.

42On December 31, 2020, Senior Investigator Winter and Inspector Duke made arrangements to meet the appellant outside of her apartment and served her with a Statement of Account, which totaled $1,185.19.

43On January 14,2021, Senior Investigator Winter and Inspector Duke conducted a site visit and observed staining on the floor from urine and feces, empty litter boxes in the bathroom, and noted a strong smell of ammonia. They determined that the appellant had still not satisfied the requirements of the Compliance Order, and declined to return the cats to her at that time.

a. Did Senior Investigator Winter have reasonable grounds to believe that the cats were in distress and therefore lawfully issue the Compliance Order on December 14, 2020?

44In her testimony, the appellant was unsure about specific dates and times but did not contest the dates provided by Senior Investigator Winter and Inspector Duke in their evidence. She provided background about various allegations of animal mistreatment made against her in the past, including the incident in which a kitten was killed by a dog she was housing.

45When directed to speak about the issues on this specific appeal, the appellant acknowledged that her apartment is unsanitary and smells of ammonia. Under cross-examination, the appellant explained that her two male cats frequently fight, which causes one of them to spray the couches, walls, and doors. She said that she spent over $300 in cleaning products but nothing worked. She admitted that some of her apartment was clean on December 29, 2020, but that the bathroom was still “a mess.” She testified that she is unable to properly ventilate the apartment due to its small size and poor airflow. She stated that there are only two small windows and the main door to the unit that she can open to circulate air, but that she cannot leave the main door open because the cats will run out of the unit.

46The appellant denied that there was urine and fecal staining on her floor, and testified that what Senior Investigator Winter and Inspector Duke thought was fecal staining was actually the pattern of her floor. She stated that it takes her longer to clean her apartment because she has physical limitations caused by an injury. The appellant also stated that she is scared to leave her unit to take out the garbage because of a hostile neighbour who she says threatens her with violence.

47Senior Investigator Winter testified that his concerns for the cats stemmed from the unsanitary living conditions and exposure to ammonia. Inspector Duke also cited concerns over the cats’ psychological wellbeing because they did not have a proper place to relieve themselves. At the time of the inspections, there were no external signs of health issues in any of the cats; however, Senior Investigator Winter and Inspector Duke believed the cats were neglected and in distress as defined in the Act. They also relied on the regulations under the Act, which require every animal to be provided with the care necessary for its general welfare as well as adequate and appropriate sanitary conditions and ventilation.²

48Based on the observations of Senior Investigator Winter and Inspector Duke of the unsanitary living conditions and the strong presence of ammonia on December 14, 2020, as well as the appellant’s admission that the apartment smelled of ammonia and required cleaning, I find that the respondent has proven, on a balance of probabilities, that Senior Investigator Winter had reasonable grounds to believe that the cats were in distress on December 14, 2020, and that the Compliance Order was lawful.

b. Did the appellant comply with the order, and if not, was the removal of the cats from the appellant’s care warranted?

49Pursuant to section 31(1) of the Act,

An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if,

50I have found that there were reasonable grounds for the issuance of the Compliance Order on December 14, 2020. The appellant was required to comply with its terms and conditions by December 23, 2020 at 3:00 pm. Specifically, she was required to ventilate and clean her apartment to eliminate the smell of ammonia. The Compliance Order clearly indicates that failing to comply with all of its the terms by the specified date may result in the removal of the animals who are the subject of the Compliance Order.

51The appellant acknowledged that the smell of ammonia persisted on December 29, 2020 because the cleaning supplies she used did not work and she is unable to properly ventilate her unit due to its small size and poor airflow.

52Senior Investigator Winter and Inspector Duke testified that little progress had been made in cleaning the apartment and eliminating the smell of ammonia by December 29, 2020. The appellant showed them a mop she had purchased, but it still had plastic covering it. Although two litter boxes were now made available to the cats, it was evident that they had not been cleaned in some time because they were completely full of feces and urine.

53I am satisfied that the appellant did not abide by the Compliance Order and that the removal of the appellant’s cats was reasonable for the following reasons:

a. The appellant was given a timeline of December 14to December 29, 2020 to clean her apartment sufficiently to eliminate the smell of ammonia but she failed to do so. The appellant herself acknowledged that the odour of ammonia persisted and that parts of her unit were still unsanitary.

b. Senior Investigator Winter and Inspector Duke had reasonable concerns for the cats’ wellbeing due to the presence of ammonia. Both Inspectors indicated that their airways became irritated during the site visits so much so that they were required to step out of the appellant’s unit for air.

c. Senior Investigator Winter and Inspector Duke had reasonable concerns for the cats’ psychological wellbeing given the number of cats in the residence and that they did not have a proper place to eliminate waste.

54The respondent has proven, on a balance of probabilities, that there were reasonable grounds to believe that the cats were in distress when the Compliance Order was issued and that the appellant did not comply with the Compliance Order. I am satisfied that the removal of the cats was necessary to alleviate their distress given the appellant’s failure to meet the requirements of the Compliance Order.

c. Should an order be made for the return of the cats to the appellant’s care?

55The appellant takes the position that all twelve cats should be returned to her because she maintains that they were not in distress. The Act does not list any factors to be considered in relation to whether lawfully-removed animals should be returned to their owners. In this particular appeal, I have considered the following:³

a. whether the conditions giving rise to the removal of the cats in the first place have been remedied;

b. whether the appellant has the ability and willingness to provide appropriate care for the cats in the future to prevent a recurrence of the conditions that led to their removal; and

c. whether the cats will be placed in distress if they are returned to the appellant.⁴

56I have no doubt that the appellant cares about her cats. She was so distressed when they were removed that the police had to be called because she threatened to commit suicide. I believe she made some efforts to clean her apartment over the month of December. However, there was evidence that the sanitary conditions of her home had not improved since the cats were removed. In fact, Senior Investigator Winter and Inspector Duke testified that on January 14, 2021, the appellant’s apartment was in worse condition than it had been on the prior visits. The appellant has acknowledged her difficulty in cleaning her residence and stated that it was nearly impossible to properly ventilate it. Based on the evidence, I do not believe that the conditions giving rise to the removal of the cats have been remedied.

57With respect to the appellant’s ability and willingness to provide appropriate care for the cats in the future, I have significant concerns. The appellant was given two weeks to remedy the living conditions but failed to do so. On two out of the three site visits, there were no litter boxes available to the cats and on the one occasion where litter boxes were available, they were not usable because they were completely full of feces and urine. By the appellant’s own admission, she does not regularly clean her apartment or take out the trash, and she is unable to ventilate it. She also testified that it is against her religion to spay/neuter animals, and that she is looking for alternative living arrangements, however, a viable plan for alternative living arrangements was not presented at the hearing.

58When I take into consideration the large number of cats the appellant houses in such a small unit, including intact adults who can reproduce, the ongoing unsanitary living conditions, and the continued exposure to ammonia, I find that that the appellant does not have the ability to provide the appropriate care for the cats in the future to prevent a recurrence of the conditions that led to their removal.

59For these reasons, I find that ordering the return of the cats to the appellant’s care will cause them distress and I decline to return them to her.

d. Should the Statement of Account be confirmed, revoked, or varied?

60In her Notice of Appeal, the appellant requested that the veterinary portion of the Statement of Account be forgiven because the cats were healthy and did not require veterinary care.

61At the hearing, the appellant testified that the cats did not require veterinary care and that Senior Investigator Winter would not permit her to try to find temporary placement for them on December 29, 2020. Under cross-examination, Senior Investigator Winter admitted that the appellant told him she could find somewhere to temporarily house the cats while she worked toward complying with the Compliance Order, but testified that he would not allow her to do so because the cats needed to be treated by a veterinarian for possible internal health issues.

62The animal hospital’s report indicated that the cats were examined on December 28, 2020. I believe this date to be an error because the cats were removed on December 29, 2020. The report indicated that a standard office fee was charged for all twelve cats that were examined; a fee for administering flea treatment to the cats who were older than eight weeks was charged to ensure the safety of other animals at the clinic because the clinic did not have the cats’ parasite control history; and an emergency fee of $210 was charged for examining the cats on an emergency basis. I find the emergency fee to be unreasonable for the following reasons.

63First, there was no evidence from either Senior Investigator Winter or Inspector Duke that the cats were visibly ill or injured. While I appreciate there was concern about internal illness and psychological distress, which I accept required veterinary attention, I heard no evidence that the cats required same-day emergency care.

64Second, I find that there was a lack of urgency in following up with the Compliance Order on December 23, 2020, which is relevant when considering whether emergency veterinarian fees should have been incurred. Under cross-examination, Senior Investigator Winter testified that he did not attend the appellant’s residence on December 23, 2020 to determine whether the terms of the Compliance Order had been met because the appellant texted him on December 22, 2020 to say that she had not been able to remove the trash or ventilate the apartment. He testified that he was giving the appellant more time to comply with the Compliance Order. I do not accept this evidence. Senior Investigator Winter did not respond to the appellant’s text message or notify her in any way that he was giving her more time to comply with the Compliance Order. He only followed up with her after he was made aware of further complaints made against her on December 28, 2020. It is unclear why then, on December 29, 2020, there was a sudden urgency to have the cats immediately taken to a veterinarian, particularly when there was no evidence that the cats’ health had changed.

65At the hearing, Senior Investigator Winter testified that one of the cats developed respiratory issues while in the care of Animal Welfare Services in late January, and was taken to the veterinarian. The cat was examined and medication was administered. Based on the Statement of Account dated February 2, 2021, the cost of this visit was $230.52. I find this cost to be reasonable in light of the fact that one of the cats fell ill and required medical attention.

66Finally, the appellant did not directly dispute the boarding fees but stated that she could have found alternative living arrangements for the cats while she complied with the requirements of the Compliance Order. Unfortunately, there was no evidence of an actual alternative plan and it was within Senior Investigator Winter’s discretion to determine whether this was a viable option. I do not find his decision to remove the animals to be unreasonable in light of the events that took place on the day of removal, including the need to call the police due to the appellant’s behaviour and threats of suicide. Furthermore, on January 26, 2021, when the appellant requested another adjournment, I reminded her that boarding fees continued to accrue. The appellant acknowledged her understanding and said she was able and willing to pay those fees.

67For the reasons above, I am varying the Statement of Account from $3,095.71 to $2858.41 to reflect the boarding fees, the initial veterinary bill excluding the emergency fee, and the most recent veterinary visit for one cat.

CONCLUSION

68I am satisfied that Senior Investigator Winter had reasonable grounds to believe that the cats were in distress and was acting within his authority to issue a Compliance Order. I am further satisfied that the appellant did not comply with the Compliance Order and that the cats were lawfully removed from her care. I also find that the cats should not be returned to the appellant because I do not believe that the conditions giving rise to the cats’ removal have been remedied or that the appellant has the ability to provide the appropriate care for the cats if they were to be returned to her. I find that, for the reasons noted above, that the cats will be placed in distress if they are returned to the appellant’s care.

69Finally, I find that the Statement of Account should be varied to exclude the emergency fee incurred on December 29, 2020 as there was no evidence that the cats required urgent veterinary care.

ORDER

70For the reasons set out above, the Board orders as follows:

a. The appeal is denied and the removal of the twelve cats pursuant to s. 31(1) of the Act is upheld.

b. The Statement of Account dated February 2, 2021 is varied to $2858.41 for the costs of boarding, the initial visit to the animal hospital less the emergency fee, and medical treatment of one cat.

Released: March 01, 2021

_________________________

Helen Karpouzos, Member

Footnotes

2019, S.O. 2019, c. 13
O. Reg. 4444/19, s. 3(3) and 3(6)(b) and (c)
Gowland v. Chief Animal Welfare Inspector 2021 ONACRB 2 at para 49
Supra note 1, at s. 31(6)(b)(i)