Cindy G. Hernandez Alcantara v. Chief Animal Welfare Inspector, 2022 ONACRB 10

Tribunals Ontario

Animal Care Review Board

Date: 2022-02-25

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Cindy G. Hernandez Alcantara 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, Senior Investigator Carly Atrooshi, Inspector Shaleigh Emberson, and Stephen Wilson, Regional Supervisor (observing) Animal Welfare Services

Date and place of hearing: January 31, 2022 by teleconference

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Cindy Hernandez Alcantara, is appealing a Statement of Account (“SOA”) in the amount of $6,612.11 for the care of her kitten “Luno” after he was removed by Animal Welfare Services (“AWS”). She wants Luno returned to her family.

2In her Notice of Appeal (“NOA”) dated January 21, 2022, the appellant requested a payment plan for a reasonable regular amount and a reduction of the amount owing.

ISSUES TO BE DECIDED

3The issue to be decided by the Board is whether the Board should confirm, revoke, or vary the SOA.

RESULT

4For the reasons that follow, I vary the SOA to the amount of $0.00 (zero dollars). I find that the medical services described were required for necessaries to relieve Luno’s distress, however, in the circumstances of this case, support the exercise of my discretion under section 38(9) of the Provincial Animal Welfare Services Act¹ (“Act”) to reduce the amount of the SOA.

5The main reason for varying the SOA to this degree is on consideration of the appellant’s financial circumstances, and that the appellant would be required to forfeit Luna to the AWS if she fails to pay the SOA. For these reasons, I have reduced the SOA based on an evaluation of what the appellant can afford. I do not believe she should forfeit Luna when she has no financial resources to draw on due to hardships resulting from an unfortunate series of circumstances caused by the pandemic.

FACTS

6The hearing was conducted by written submissions, with cross-examination and closing statements heard orally. The appellant did not submit any written statement other than that on the NOA. The respondent’s written submissions included evidence from the following people:

• Dr. Ardis Ardiel, a veterinarian at the Ardiel Animal Hospital
• Dr. Cindy Lennox, a veterinarian at the Ardiel Animal Hospital
• Dr. Meghan Kirsch, a veterinarian at Mississauga Oakville Veterinary Emergency Hospital
• Inspector Shaleigh Emberson, who investigated the initial complaint from the emergency clinic and who served the Notice of Removal on the appellant, and authorized treatment to relieve Luno of his distress. She later also served the Statement of Account on the appellant.

[7] A number of exhibits were also submitted: For the appellant, the exhibits include:

• a rent receipt for her residence ($1,300 for January 2022), and
• a letter from the Director of the Ontario Disability Support Program of the Ontario Ministry of Community and Social Services verifying that the appellant receives a monthly allowance and benefits ($1,661.00).

For the respondent, the exhibits include the following:

• Veterinarian’s Certificate (for removal) signed by Dr. Cindy Lennox, dated December 15, 2021,
• Notice of Removal, dated December 15, 2021,
• Statement from Inspector Emberson,
• Statement from Dr. Ardiel, Ardiel Animal Hospital,
• Statement from Dr. Lennox, Ardiel Animal Hospital,
• Ardiel Animal Hospital medical records for Luno, including radiographs,
• Invoice from Ardiel Animal Hospital (Dec. 15 – 19, 2021),
• Mississauga Oakville Veterinary Emergency Hospital, medical history for Luno,
• Mississauga Oakville Veterinary Emergency Hospital, Discharge Instructions for Luno (Dec. 21, 2021), and
• Mississauga Oakville Veterinary Emergency Hospital, Invoice for Surgery to repair Luno’s fractured leg (Dec. 21, 2021).

8On December 14, 2021 Ms. Hernandez Alcantara took her 7 month old kitten Luno to a veterinarian clinic to attend to its broken leg. She told them Luno caught his leg in a desk around 4:00 a.m. that morning. She left the cat at the clinic for evaluation, paying a $500 deposit for their services. After Luno’s examination, Ms. Hernandez Alcantara was told that his fractures required surgical treatment, and the clinic would refer Luno to a specialist to do the procedure. She was given an estimate of $3000 - $6000 for the surgery. Ms. Hernandez Alcantara said she did not have the funds for the surgery and inquired about a payment plan, or other financial support. Several funding options were discussed; unfortunately, none of the options discussed were available to her. She was reportedly frantic and was apparently given one day to arrange some form of financing to pay for Luno’s treatment.

9On December 15, 2021:

• Dr. Ardiel contacted AWS Dispatch, advising that Luno had an injured leg and required a specialist surgeon which the owner could not afford.
• Dr. Ardiel further advised that the kitten should not be released back to the owner without the surgery, and that it was in a lot of pain.
• The Inspector contacted the Ardiel Animal Hospital and spoke with Dr. Lennox regarding Luno and followed up by sending a copy of a Certificate of Veterinarian Advising the Removal of Animal form to the veterinarian. Dr. Lennox signed the form authorizing Luno’s removal by the Inspector on December 15, 2021.
• The Inspector served a Notice of Removal pursuant to clause 31(1)(a) of the Act on Ms. Hernandez Alcantara by e-mail.
• The Inspector then contacted the Ardiel Animal Hospital and advised them that Luno was now under the care of AWS and all care decisions were to go through the Inspector.

10On December 16, 2021 both the Inspector and the Ardiel Animal Hospital reached out to various veterinarian surgeons trying to arrange surgery for Luno at the earliest opportunity. Initially Ardiel offered to contact two surgeons they were familiar with however these attempts were unsuccessful.

11From December 16 through December 17, the Inspector placed numerous calls to veterinarian surgeons, initially asking about orthopedic surgery, and eventually about amputation of the fractured leg when it appeared that none of the clinics/hospitals had openings for orthopedic surgery until January 2022. Eventually the Inspector was able to find an opening for surgery at the Mississauga Oakville Veterinary Emergency Hospital.

12On Sunday December 19, 2021 the Inspector transported Luno from the Ardiel Animal Hospital to the Emergency Hospital. The Inspector received a quote for the surgery and obtained approval from Regional Supervisor Draper.

13On December 20, 2021 Dr. Kirsch contacted the Inspector and advised the surgery was successful and that Luno could be discharged the next day. Dr. Kirsch advised that Luno’s bandages would be required to be changed weekly, and an X-ray would be required at four weeks post-operation, and that the pins might need to be removed at six to eight weeks post-operation.

14Luno was discharged from the Emergency Hospital on December 21, 2021. After reviewing the discharge instructions including the requirement for medication three times daily, the Inspector determined that a boarding facility with veterinary staff on site would be necessary for Luno’s recovery and medical care. The Inspector located the necessary services at Guelph Humane Society, and had their quoted services approved by Mr. Draper. Luno was transported to the Humane Society the same day.

15Throughout this period, the Inspector sent emails to the appellant regularly advising her of Luno’s status. However, there was no discussion about whether Luno could rehabilitate in the appellant’s care instead of in a boarding facility.

16The Inspector served a Statement of Account in the amount of $6,612.11 on the appellant by e-mail, on January 19, 2022 pursuant to section 35 of the Act. The SOA included $5,182.66 for vet care, $581.95 for medication and bandage changes, and $847.50 for boarding.

Veterinarian Care and Invoices

17Ardiel Animal Hospital medical records indicate that they treated Luno on December 14 through December 18, 2021. The charges for their services, billed on January 3, 2022 are $146.15, and there is a note that all other charges were paid by the appellant for services (from her $500 deposit).

18Mississauga Oakville Veterinary Emergency Hospital medical records indicate Luno was treated by them on December 19, 20 and 21, 2021. On December 20, 2021 they provided a quote to AWS including a proposed treatment plan, noting that $2,691.83 had already been incurred. The charges for their services were invoiced on December 21, 2021 for $7,413.68 total. A separate invoice dated January 18, 2022 at $314.66 is for a follow-up X-ray (radiology). The total outstanding, including the previous invoice was reported as being $8,269.90.

19An invoice from the Guelph Humane Society dated January 20, 2021 indicates a total boarding charge of $1,555.49 for thirty-one days at $25/day plus itemized charges for veterinary services, bandage changes and daily medication administration, charges for medication and parasite (flea) treatment for the period December 21, 2021 through January 20, 2022.

20The SOA dated January 19, 2022 is in the total amount of $6,612.11. Based on the information itemized in the above paragraphs, none of the amounts in the SOA is reflective of the invoiced amounts. For example, boarding costs were $775 plus tax, which should be $875.75 (not the $847.50 in the SOA). The veterinary costs of the two clinics were $7,559.83. If the veterinary costs of GHS are included, it totals $7,763.23 (not the $5,182.66 in the SOA). The Animal Care Costs, including medication, bandages and presumably the services to provide these should total $476.34 (not the $582.95 in the SOA).

The appellant’s circumstances.

21Ms. Hernandez Alcantara is a single mother with two young children. Luno is 7 months old, and she only owned him for two months before he was injured. Dr. Ariel’s report indicates that staff were told by the appellant that Luno broke his leg when he caught it in a desk at 4 a.m. the morning of December 14, 2022. The clinic medical records indicate that Ms. Hernandez Alcantara was frantic. She knew it was crucial that he be seen by a vet.

22Ms. Hernandez Alcantara apparently told staff that the $500 she paid as a deposit for Luno’s care was the money she had saved for her family Christmas, and that she would have to cancel Christmas now.

23Through cross-examination by Mr. Draper, and my own questions, the following information was elicited from the appellant:

• She cares for her two children and is a single mother.
• Her sources of income include monthly Ontario Disability Support assistance, and child allowance. She can’t work because of a disability.
• Her expenses include rent, hydro, a storage locker, several small loans, and an outstanding student loan. She also pays for her cell phone, internet, groceries, and clothing for her children.
• When necessary, she takes advantage of the Food Bank and other agencies for assistance.
• She has no savings; these and various short-term loans were used to pay for staying in a motel for several months when the home they were renting was sold by the owner and they had to leave. The family stayed in a motel until suitable accommodation was found. Expenses were incurred for moving, for first and last month’s rent, and for ongoing storage of their belongings.
• Her financial circumstances within the last 6 months changed because of losing their home; before this she only had a student loan.
• She could reduce her monthly expenses by $350 by getting rid of her storage locker. To do this she needs to pay off the outstanding amount and rent a truck to move her belongings. The storage locker is distant, she has no car, she has no money to pay off the debt and rent a truck, and the cold weather have all created barriers to do this to date. Her mother, by no means solvent herself, has helped Ms. Hernandez Alcantara occasionally, and might be able to help with the cost of paying off the debt owing on the storage locker and renting a moving truck. If she could vacate the locker, that would free up $350 per month which she could use to pay off the SOA.

Luno’s medical status, and prospects for release to the appellant

24Mr. Draper, with the Inspector’s assistance, advised that Luno’s medical care has been completed, and his distress has been relieved. He advised that AWS is not seeking to keep Luno in their care, and that he may be released to the appellant provided the SOA is paid.

25I questioned Mr. Draper about AWS’s willingness to accept a payment plan. He advised that they were not unwilling to do this on principle, but that they required a significant deposit paid, and would look at the ability of the person to pay on a regular basis without going into default.

26When I questioned Mr. Draper about the process of forfeiture if the appellant were unable to pay the SOA, he explained that Luno would be surrendered by AWS to an adoption agency. He reassured Ms. Hernandez Alcantara that there was no risk of euthanasia. He admitted that there is no process for the AWS to recoup any of their costs through forfeiture. Any “profit” made if the cat is adopted goes to the shelter, which is not associated with AWS.

27I questioned Mr. Draper about whether AWS received a payment from adoption, and he admitted there was no fee or payment for surrender and that the AWS recouped none of its costs through this process. He noted that the adoption agency then spends additional funds for spaying/neutering, inoculation, and microchipping the animal, only recovered in part by the adoption fee.

POSITION OF THE PARTIES

28Mr. Draper reminded me that the appellant is not disputing the cost of care for Luno but is requesting a payment plan. He noted that Luno required extensive medical care for his fractured leg, in the amount of approximately $6,600 which taxpayers would otherwise have to bear. The expenses were to pay contractors for essential care. He asked the Board to uphold the full amount of the SOA, based on reasonable expenses.

29Mr. Draper advised that in this case the Board is asked to look at the appellant’s financial position. He suggested that where the Board has jurisdiction to modify the SOA in relation to ability to pay, it must go through a financial means test and ask if the appellant is able to make regular payments.

30Mr. Draper stated that while he is sympathetic to the appellant’s circumstances, her current expenses outweigh her income and she has no financial means to make a payment plan.

31Mr. Draper suggests that if the appellant’s financial circumstances change, and she has a true ability to pay the SOA, the Board should allow the Ministry to make a payment agreement later. He requests that the Board not reduce the SOA.

32The implication of Mr. Draper’s proposal is for Luno to be kept at the boarding facility with daily charges accruing until some unknown future date when the appellant may be in a better financial position to start paying off the SOA. By my calculations, this amounts to approximately $1700 by March 1, 2022 which is when the appellant believes she might be able to have cancelled her storage locker and be able to redirect the $350/month from that towards the SOA.

33Ms. Hernandez Alcantara asks the Board to create a solution that would mean she wouldn’t have to relinquish Luno. She understands that currently she does not have the ability to pay the SOA in total but would like the ability to pay through a payment plan. Her circumstances may improve in March if she can reduce her expenses. She does not dispute the SOA but asks it to be reduced.

LAW

34Section 35(1) of the Act states that where an Inspector has provided an animal with necessaries to relieve its distress the Chief Animal Welfare Inspector may from time to time serve on the owner or custodian a statement of account respecting the cost of the necessaries.

35Section 35(3) of the Act states that an owner or custodian who receives a statement of account is liable for the amount specified in the statement (subject to an order of the Board varying the amount or revoking an account following an appeal).

36Section 35(5) allows the Chief Animal Welfare Inspector to 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.

37Section 35(4) of the Act states that subject to an agreement under 35(5), the animal is forfeited to the Crown if the account is not paid within a prescribed period of time, which is ten business days after the Board decision is released. Section 35(5) states 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 of an animal to extend the time for payment or reduce the amount that is to be paid, or both.

38Section 38(9) of the Act gives the Board the powers following a hearing to confirm, revoke or vary a statement of account. The Act provides no limitations on or guidance regarding the Board’s authority to vary the SOA under section 38(9).

ANALYSIS

39I base my analysis and decision on the relevant facts above.

Responsibility

40Ms. Hernandez Alcantara originally appealed Luno’s removal because she wanted to make sure he was returned to her. After the case conference, when she understood the purpose of AWS removing Luno, she withdrew the appeal of the removal and proceeded only with the appeal of the SOA and her request for Luno’s return to her family.

41Ms. Hernandez Alcantara does not dispute that the medical care was necessary to relieve Luno’s distress and was grateful to AWS for ensuring he received the care he needed. Her appeal was only to ask the Board’s assistance to arrange a suitable payment plan. Throughout both the case conference and the hearing, she was very emotional about the circumstances that led to Luno’s removal and his continued separation from her family.

Ability to Pay

42After considering the appellant’s financial position, I find that Ms. Hernandez Alcantara has no financial ability to pay the SOA at the current amount of $6,612.11. She has no savings, nor ability to take on a loan of this magnitude. She relies on family and small loans to help her out with day to day expenses, but her family does not have the means to assist with the SOA.

43The appellant’s financial position is relatively recent. Within the last few months only, she lost her home when her landlord sold it. She was required to live in a motel for a number of months until she could find suitable accommodation. The expenses incurred while she lived in a motel, plus the costs of securing a new residence and moving, and the cost of storing her family belongings have been ruinous. The appellant is working to reduce her recent debts and hopes to be in a better financial position within a few months.

44The appellant currently is in the unfortunate position where her monthly debts exceed her income. It is on this basis that Mr. Draper is not willing to accept a payment plan. I agree with Mr. Draper, and find that the appellant does not have the ability to enter into a payment plan within the foreseeable future. Furthermore, it is not within my powers as described in 38(9) of the Act to order a payment plan.

Reducing the SOA

45I have reviewed the various invoices, and while I have noted a few discrepancies, the charges themselves appear reasonable. I find that the invoices support the SOA.

46I have reviewed the appellant’s testimony, and note that she does not dispute the removal, or the care of Luna, or her responsibility for the SOA.

47I appreciate that the appellant cannot afford to pay the SOA in full, or even a reduced amount unless the reduction is substantial. I note that the appellant has asked as a remedy to have a payment plan and possibly a reduction of the SOA. She did not provide any specifics of how much she could afford on a monthly basis, nor what amount the SOA should be reduced to. I note that her income is based on social assistance and even with this she is accruing small loans to meet her monthly expenses; her debt is therefore increasing monthly.

48Mr. Draper has advised me that forfeiture to the Crown results in AWS surrendering the animal to an adoption agency, and that there are no fees collected for this. In fact, the adoption agency then spends further funds to prepare the animal for adoption.

49I have reviewed the elements of this case and am swayed in my decision by the circumstances leading to the SOA, by Ms. Hernandez Alcantara’s good intentions, by her financial situation, and by AWS’s protocols when an animal is forfeited. Luna was injured early one morning while he was playing, not at the appellant’s hand or through carelessness on her part. Throughout the proceedings, it was evident that Ms. Hernandez Alcantara has an overwhelming love of Luno and wants him reunited with her family. Ms. Hernandez Alcantara wanted to do what is right, first by ensuring that Luna was properly cared for by taking him to a veterinary clinic, and by acknowledging her responsibility to pay the cost. She requested a payment plan both from the clinic and later from AWS; she didn’t accept the clinic’s suggestion to surrender Luno and doesn’t want to risk forfeiting him to AWS for non-payment of the SOA.

50Despite Ms. Hernandez Alcantara’s willingness to pay for Luno’s care with a payment plan, I am advised that AWS will not accept this because her debts outweigh her income on a monthly basis. I have reviewed these, and even though she is certain that she would be able to afford a payment plan within a few months, the expected reduction in expenses would likely only have the effect of reducing the current monthly financial gap. She has basic financial responsibilities, mainly the shelter and care of her two children.

51Mr. Draper advised that AWS wants the Board to uphold the full amount of the SOA, based on reasonable expenses incurred for treatment of Luno. He suggested that he wasn’t prepared to negotiate a reduced amount because Ms. Hernandez Alcantara hadn’t appealed the SOA amount.

52I heard Mr. Draper describe that Luno would be forfeited to the Crown if Ms. Hernandez Alcantara fails to pay the SOA or varied amount, after ten business days of releasing my decision. I also heard that AWS would receive no monies for surrendering Luno to an adoption agency.

53Considering my powers to vary the SOA to an amount that Ms. Hernandez Alcantara can afford today given her current financial situation, I therefore vary the SOA to $0.00 (zero dollars). While Ms. Hernandez Alcantara made no submissions regarding what she could afford to pay if the SOA was reduced, it is clear that her monthly expenses outweigh Ms. Hernandez Alcantara’s monthly income. I considered the possibility that her financial situation could improve when she terminates her rental storage unit, and her willingness to accept responsibility for the SOA, however I don’t have the authority to order a payment plan and Mr. Draper stated that AWS was unwilling to provide one.

54Luno’s forfeiture would not only be devastating for the appellant, but also would have no net gain for AWS. It does not seem fair to me that Ms. Hernandez Alcantara should lose Luno because she can’t afford to pay the SOA. When I balance the appellant’s personal circumstances, including that she was not at fault for Luno’s injury, nor that she was negligent, and the events leading to her current financial situation, and compare it with the process following forfeiture, it seems just to vary the SOA.

CONCLUSION

55For the reasons set out above, I vary the Statement of Account to the amount of $0.00 (zero dollars).

ORDER

56Pursuant to the powers of the Board under section 38(9) of the Act, the Board varies the Statement of Account to the amount of $0.00.

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, S.O. 2019, Chapter 13