Date: 2022-03-08

Appeals under section 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Lynn Freeman

Appellant

and

Chief Animal Welfare Inspector

Respondent

REASONS FOR DECISION AND ORDER

MEMBER: Jennifer Friedland, Acting Vice Chair

APPEARANCES:

For the Appellant: Sandra Rowbotham, Paralegal Michelle Scott, Paralegal

For the Respondent: Connie Mallory, Regional Supervisor,

Heard by videoconference: December 20 & 22, 2021;

January 17, 18, 20, 21, 24 & 31, 2022

1This case involves an appeal of several actions and orders taken by Animal Welfare Services (AWS) in relation to numerous cats belonging to the appellant.

2It is a sad and difficult case. Sad for both the animals and the appellant.

3I have no doubt the appellant is a loving and caring person. Her husband stands with her and supports her. They are both in their late 60s and retired. The husband is in poor health and has cancer.

4Over the years, they had a manageable number of cats, and in those years those cats received regular care, including spaying and neutering. Then the appellant and her husband acquired more cats: the husband’s mother died and they took in her cats; the appellant’s sister died and they took in her cats. Then one female cat could not – in the appellant’s opinion – be spayed due to an allergy. Eventually, and for obvious reasons, the cat population grew.

5And grew.

6By the time Animal Welfare Services (AWS) became involved in June 2021, there were more than 80 cats living with the appellant and her husband.

7The problems that can arise with a cat population of that size are manifold. Feces and cat urine cause ammonia levels to rise and can cause illness in the cats. With so many cats to look after, attention to each particular cat is difficult. As shall be described below, it is apparent that the appellant did not notice that the cats she loved and thought she was caring for were in fact suffering. Although they had food and water, toys and scratching posts, they also had respiratory illness, lowered immunities, eye infections, dental problems, and fleas; as well as other ailments.

8AWS issued various compliance orders in June, July, and September of 2021 pursuant to the Provincial Animal Welfare Services Act, 2019 (the Act).¹ Some were for specific care to individual cats. Others were for flea treatment. The most significant order issued in this case was made on June 15, 2021. It required all cats to be provided with adequate ventilation to reduce ammonia levels in the home.

9On October 4, 2021, under the authority of a warrant and upon the recommendation of a veterinarian, AWS removed as many cats as they could capture on that day for the purpose of alleviating the distress of the cats.

10It is the appeal of that removal that first brought this case before this Board.

11After the first removal on October 4, 2021, further compliance orders were issued in relation to some of the remaining cats and with respect to providing a sanitary environment. Those orders were also appealed.

12The appellant was later served with a Statement of Account (SOA), and then another, and then another, for the boarding costs and veterinary care provided to the cats that were removed. Those SOAs were also appealed.

13Finally, on November 23, 2021, the AWS removed 32 more cats from the appellant’s home. This removal was also appealed, as was a further SOA served on December 6, 2021.

14After three case conferences, a change in the appellant’s representation, a switch from a plan to have a written hearing to an oral hearing once further cats were removed, and after various frustrations on both sides with respect to delivering and accessing the respondent’s disclosure and other details relating to scheduling, the hearing finally commenced before me on December 20, 2021, and continued for eight days in total.

15As of the last day of the hearing on January 31, 2022, the appellant still had at least 30 cats in her home.

16Ultimately, the appellant wants her animals back. She disputes that they should have been taken in the first place and feels she has been treated unfairly. At the very least, she seeks the return of her older cats.

17The respondent’s position is that as long as there are still 30 or more cats in the appellant’s house, the overpopulation problem will recur leading to higher ammonia levels and a resurgence of symptoms of distress.

18The Statements of Account, as served, reflect costs in the amount of $73,286.60 as of December 6, 2021. The respondent’s position is that these SOAs should be paid in full regardless of whether the cats are returned. The appellant objects to all costs associated with the removals.

B. ISSUES

19The issues to be decided by the Board are as follows.

i. Were the 38 cats removed on October 4, 2021 in distress as that term is defined under the Act?

ii. If so, was it necessary to remove those cats in order to alleviate that distress?

iii. Were the 32 cats removed on November 3, 2021, in distress as that term is defined under the Act?

iv. If so, was it necessary to remove those cats in order to alleviate that distress?

v. Should the compliance orders issued on October 9 (provide a sanitary environment) and October 27, 2021 (take a particular cat, Cody, to the vet) be confirmed, revoked, or modified?

vi. Should the Statements of Account be confirmed, revoked or varied?

vii. Should any or all of the cats be returned?

C. RESULT

20The veterinary evidence describing the conditions of the home and the conditions of the cats removed on October 4, 2021, was overwhelmingly persuasive. I have no hesitation in finding that it was necessary to remove the cats for the purpose of relieving their distress on that day.

21The veterinary evidence satisfies me that the animals were in fact suffering distress in the dwelling, which desperately needed cleaning and a reduction in ammonia.

22The compliance order dated October 9, 2021, is varied, requiring compliance within 48 hours of the release of this decision and varying the language such that the cats that remain in the home must be provided with a sanitary living environment in which fecal matter and urine is cleaned daily from kitty litters and all other surfaces.

23The compliance order dated October 27, 2021, was complied with and is now moot as the cat that it pertained to was removed on November 23, 2021;

24The evidence was insufficient to prove that the cats were in distress on November 23, 2021. I also am not satisfied that there was non-compliance with an Order to justify their removal on that day pursuant to the authority under which they were taken (which was s. 31(1)(c) of the Act). The house was much cleaner on that day and the ammonia levels were 5ppm which, while not perfect, were the levels to be achieved as set out in a Case Conference Report and Order (CCRO) following the first removal.

25My finding with respect to the November 23, 2021 removal, however, does not mean the cats can be returned. The appellant still has more than 30 cats in her home, the majority of which are still not spayed or neutered.

26I am ordering the return of four of the appellant’s oldest cats which will be subject to the order regarding a sanitary living environment and to the continuing order regarding proper ventilation to reduce ammonia levels.

27With respect to the Statements of Account, each of the accounts appealed in this case have been varied based on there being no evidence to support the amounts claimed for boarding. The respondent did not provide any invoices in relation to those costs nor lead any evidence to support the basis for the amounts claimed. In this regard, as further amplified below, I apply the Court’s analysis in Ontario Society for the Prevention of Cruelty to Animals v. Straub.² This case, which I find binding on this Board, makes it very clear that the respondent ought not take for granted that its SOAs will be confirmed by this Board without evidence. One of the SOAs has also been minimally varied with respect to veterinary costs.

28The amounts owing on the Statements of Account have been calculated on a per cat basis. This requires the appellant to pay the proportionate amount of the varied statements of account with respect to the four cats that will be returned within 10-days of this Order or they will be forfeited (unless the respondent agrees to reduce the amount or vary the time to pay or both as they have the authority to do under s. 35(5) of the Act).

29The remaining cats will also be forfeited if the varied Statement of Account for those cats is not paid within 10-days of the release of this Order.

30The varied amount of the Statements of Account for the four cats to be returned is $1,186.76.

31The varied amount of the Statements of Account for the remaining cats is $19,581.72.

D. LAW & STATUTORY CONTEXT

32Under s. 28(1) of the Act, an Animal Welfare Inspector (AWI) may enter and search a place with the consent of the occupier if the inspector believes on reasonable grounds that an animal in distress is to be found there.

33“Distress” under the Act means the state of being:

(a) in need of proper care, water, food or shelter,

(b) injured, sick, in pain or suffering, or

34Proper care and shelter is further defined in Ontario Regulation 444/19 which sets out standards of care and provides at s. 3 that:

3 (1) Every animal must be provided with adequate and appropriate food and water.

(2) Every animal must be provided with adequate and appropriate medical attention.

(3) Every animal must be provided with the care necessary for its general welfare.

(4) Every animal must be transported in a manner that ensures its physical safety and general welfare.

(5) Every animal must be provided with an adequate and appropriate resting and sleeping area.

(6) Every animal must be provided with adequate and appropriate,

(a) space to enable the animal to move naturally and to exercise;

(b) sanitary conditions;

(d) light; and

(e) protection from the elements, including harmful temperatures.

(7) If an animal is confined to a pen or other enclosed structure or area,

(a) the pen or other enclosed structure or area, and any structures or material in it, must be in a state of good repair;

(b) the pen or other enclosed structure or area, and any surfaces, structures and materials in it, must be made of and contain only materials that are,

(i) safe and non-toxic for the animal, and

(ii) of a texture and design that will not bruise, cut or otherwise injure the animal; and

(c) the pen or other enclosed structure or area must not contain one or more other animals that may pose a danger to the animal.

(8) Every animal that is to be killed must be killed by a method that is humane and minimizes the pain and distress to the animal; an animal’s pain and distress are deemed to be minimized if it is killed by a method that produces rapid, irreversible unconsciousness and prompt subsequent death.

35Under s. 30(1) of the Act:

An animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

36Section 31(1) of the Act permits an animal welfare inspector to 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,

(a) a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal;

(b) the inspector has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or

37Section 35(1) addresses the cost of providing necessaries to an animal that has been removed under the above section. This section does not mandate that those costs be covered by the owner. Rather, it is discretionary, stating as follows:

If an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care, the Chief Animal Welfare Inspector may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.

38All of the above decisions and orders may be appealed to the Board pursuant to s. 38(1) of the Act within five business days.

39The Board’s powers, after a hearing, are set out in s. 38(9) of the Act. After a hearing, the Board may do one or more of the following:

Confirm, revoke or modify an order made under section 30.
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.
Confirm, revoke or vary a statement of account served under subsection 35(1).
Order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under section 30 be paid by the Minister to the owner or custodian.
Order that the whole or any part of the cost to the Chief Animal Welfare Inspector of providing necessaries to an animal pursuant to its removal under subsection 31(1) or (2) or the determination to keep an animal in the Chief Animal Welfare Inspector’s care under subsection 31(6) or 44(8) be paid by the owner or custodian of the animal to the Minister of Finance.

40Pursuant to s. 38(10), if the Board makes an order to return an animal, it may make the return subject to compliance with a further order issued by the Board in the same terms as an order under s. 30.

41With respect to who bears the burden of satisfying me that any of the above orders should be made, the legal burden ultimately rests on the appellant. However, the respondent bears an initial evidentiary burden of proving that its orders and decisions were made in accordance with the Act. With respect to the SOAs, the respondent is required to show that the charges reflect the actual cost of necessaries provided to alleviate the distress of the animals and that the care provided is reasonable. Once the respondent meets its evidentiary burden, the onus will shift to the appellant to show why the animals should be returned or that the orders should be varied or revoked, and on what basis.

42The respondent acknowledges that it bears this initial evidentiary burden and thus called its case first.

E. FACTS AND ANALYSIS

43The respondent called four witnesses in this case:

i. Inspector Green – the lead senior inspector who engaged with the appellant from the onset of the AWS involvement and throughout, including serving the compliance orders, notices of removal, and statements of account;

ii. Victoria Crocker – a senior inspector for AWS who was called for the purpose of putting in photographs of the appellant’s residence on the dates of the two removals – October 4 and November 23, 2021;

iii. Dr. Robertson – a veterinarian whose only involvement in the case was to attend the appellant’s residence on October 4, 2021. He issued the certificate authorizing the removal of the cats on that day after forming the opinion that it was necessary to do so to alleviate their distress. He was qualified as an expert in veterinary medicine at the hearing. He testified about the state of the house on October 4, 2021, the smell of ammonia, the effect of ammonia on the health of cats, and other issues. He also provided an expert report; and

iv. Dr. Avery – a veterinarian who was also qualified as an expert in veterinarian medicine at the hearing. She operates a mobile veterinary unit and triaged the cats removed on October 4, 2021. She gave evidence concerning their medical condition at the time of removal.

44In addition to the above witnesses, the respondent relied on various documents admitted as exhibits; including, veterinary invoices, reports and notes; various orders, warrants, certificates, statements, and notices served on the appellant; and various photos.

45The appellant’s evidence was called in a unique way as she expressed anxiety about testifying. Therefore, with the consent of Ms. Mallory, it was agreed that the appellant’s testimony would be received by way of a conversation instead of a traditional examination-in-chief and cross-examination. The appellant was put under oath at the beginning of this conversation and invited to tell her story. She described her history with the cats, her efforts at compliance, her plans going forward and other details relevant to my determination of this appeal. I asked a number of questions that I felt needed answering. The appellant’s representative had the opportunity to draw out any further information she deemed relevant. The respondent was also given the opportunity to ask any and all follow-up questions that she felt necessary to ask.

46I am satisfied that the above approach was procedurally fair to both parties. The fairness of this approach was specifically addressed before it was adopted, and the parties were given the opportunity to make submissions on whether to proceed in this fashion or otherwise.

47The appellant also submitted a number of photographs, receipts and other items which were admitted in evidence and which I will review where relevant.

48From the above witnesses and exhibits, the following facts and findings emerge:

History of the cats

49The precise dates and circumstances of how the appellant’s cats came to multiply to the point where there were over 80 of them in June 2021 are not clear. The appellant believes the problem started when she took in an already pregnant female and one of that litter could not be spayed due to a vaccine allergy. The appellant acknowledged that the decision not to spay this cat was her own choice and not a recommendation from the vet.

50The appellant believes that her one unspayed cat became pregnant from a neighbourhood cat named Oreo. She described wanting to spay and neuter the other cats but needing a payment plan that her vet would not offer. She also described facing certain obstacles due to Covid-19 restrictions.

51In closing, Ms. Mallory submitted a calculation showing how quickly cats will multiply given their gestation period and when they are able to become pregnant. This exponential growth is clearly what happened next with respect to the appellant’s cats. Although the precise timing was not clear, the majority of the cats removed on October 4, 2021, were estimated to be under 2 years of age.³

52At the same time as her cat population was growing, the appellant’s personal circumstances were worsening. She explained that she was engaged in personal litigation during that period with the Office of the Public Guardian and Trustee. She states she ultimately prevailed in that litigation which ended in January 2020 but until then, and for a number of years, her assets were frozen, and she faced significant stress as a result.

53The appellant testified that she provided her cats with regular vet care. I have no difficulty finding that this was true, historically, when she had fewer cats.

54I am also satisfied that even once the population began to grow, she still sought vet care when she became aware of any issues with the cats.

55Still, it is clear that the majority of the cats born in the appellant’s household did not receive veterinarian attention after they were born or thereafter unless a specific issue was noticed by the appellant or until ordered by the AWS once that agency became involved.

56It is evident from the appellant’s testimony that she believed her cats were well cared for. The fact that this turned out not to be the case will be discussed below.

57In terms of the care that the appellant did provide: there is no dispute that the cats had adequate food and water. The photos also show that there were scratching posts and toys in the house. As well there were numerous boxes of kitty litter, which the appellant emptied and cleaned daily. The appellant had also installed a cat door and a custom-built “caterie” or “catio” which allowed the cats to be outside. This structure was attached to the house and provided an upper-level runway for the cats along the top of the house near the eaves with access to areas below and to the side of the house as well, where the cats could lounge and play outdoors. The appellant also had names for each of her cats. They were not simply, “a hoard.”

58But now I must turn to the problems that can arise when there are that many cats in one dwelling and that did arise in this case.

The state of the appellant’s home – June to October 2021

59The appellant’s house is a small bungalow. It has a laundry room, a bedroom, and an open kitchen/living area opening onto a back patio (distinct from the catio). It was not apparent from any of the evidence that there was a basement.

60By the time of the AWS involvement in June 2021, it was evident that the appellant had no control over where in the house the cats roamed. Although there were litter boxes, it is evident that not all of the cats used them.

61A number of cats had found their way into the rafters in the bedroom. The appellant explained that in or around November 2019 part of their roof collapsed. They eventually obtained the funds to repair it (the exact date was not clear). In the meantime, little by little with the rains, the ceiling above the bedroom began to come down and the cats went up.

62By October 4, 2021 – the date of the first removal of the cats – the scene in the bedroom was bleak. The appellant and her husband had purchased a new mattress. It was still covered in plastic. The appellant thought the cats were drawn toward defecating on plastic and they did. When the photos were taken on October 4, 2021, that mattress was covered with cat feces, together with bits and pieces of the ceiling and insulation from where the ceiling had collapsed above .

63The appellant says she cleaned the feces from the bed daily and just hadn’t had time to do so on October 4th before the AWS arrived. Even assuming that is true, there were also feces in the corner of the room as well and elsewhere under and on the furniture, most of it appearing old.

64Outside of the bedroom, there was also a problem with cat feces. There were feces in the main living area, under and in the cabinets, and in some places on the furniture as well as in the bathroom and laundry room.

65It is fair to say, based on the photos alone, that on October 4, 2021, the house was in terrible condition. The ceiling had fallen in and there were dried feces everywhere. The appellant and her husband were sleeping on the couch in the living room due to the conditions in the bedroom. There were cats everywhere as well, including peeking out from the rafters. It is clear that the cats had been defecating in numerous places other than in the multiple litter boxes that the appellant set out. I accept her evidence that she cleaned those litter boxes every day. Nonetheless, there was no way for her to control where else the animals did their business.

66The AWS witnesses who were in the house on October 4, 2021 testified that the smell of feces, urine and ammonia was overwhelming. They could not breathe. Dr. Avery, who provided vet care from her mobile unit outside the house, and never even went inside, testified that the smell from the house was apparent even from the curb.

67As the cats were being collected, two kittens were found dead in a cupboard. I asked the appellant how she would not have noticed the smell of a dead animal other than if that smell was so overwhelmed by the smell of feces, urine, and ammonia in the home. The appellant answered that she believes she must have developed “nose blindness” by then.

68The ammonia levels on the day the cats were removed was 20 parts per million. The impact of ammonia levels that high was well explained by Dr. Robertson – the vet who signed the first removal certificate. This evidence will be reviewed below. I will first address the chronology of AWS involvement to that point.

69Ms. Rowbotham in her closing submissions raised what she called a “lack of jurisdiction” or “declining jurisdiction” on the part of the AWS by which she apparently meant that if the situation in the appellant’s home were as bad as the respondent says, then the AWS should have taken the cats when they first came to the house in June 2021. Ms. Rowbotham submits that their failure to do so should weigh in favour of her client and support the appellant’s view that the situation on October 4 was not as bad as the AWS says.

70I have alluded above to my finding that the situation was, in fact, “that bad” on October 4, 2021, regardless of what the AWS did or did not do before that day. Still, it is worth setting out that chronology.

AWS History of Involvement

71The situation in the appellant’s home came to the attention of the AWS by way of a complaint on June 1, 2021, of a strong odour and cats in cages. Inspector Green attended on June 2, 2021 with a partner. There was no answer. They left a note to call. The appellant called the following day.

72I will not detail every communication between the AWS and the appellant that thereafter ensued. However, I will, as a minimum, refer to the dates that an Inspector attended at the house and whether Compliance Orders were issued at those times.

June 8, 2021 – Compliance Order – kittens and flea treatment

73Inspector Green and her partner reattended at the appellant’s residence on June 8, 2021. The appellant did not invite them in but showed them around the house and the “catio.” The appellant brought out some kittens to show the Inspector. Inspector Green had concerns about the kittens’ eyes and issued an Order under s.30 to take those kittens to the vet. Inspector Green also noticed that some of the cats in the “catio” had fur loss. She issued an order for flea treatment as well. Compliance was required by June 15, 2020.

June 15, 2021 – Compliance Orders – Layla and Snuggles & adequate ventilation

74Inspector Green and her partner returned to the appellant’s home on June 15, 2021. The appellant showed that she had purchased flea treatment and produced the invoice showing that she had taken the kittens to the vet. She invited the inspectors inside. Inspector Green described a strong smell of ammonia. She tested the air and found there was 20ppm of ammonia. She found it difficult to breathe inside the home. She testified that she cautioned the appellant about the risk of inadequate ventilation and the impact of ammonia on the cats’ health. They also discussed population control. Inspector Green noticed that there was a tarp covering part of the ceiling.

75On this date, Inspector Green issued orders for two cats to be taken to the vet, one had difficulty breathing, the other was drooling and had staining around the mouth, suggesting to Inspector green that it had dental concerns. She also issued an order with respect to all cats such that they be provided with adequate ventilation to reduce ammonia levels in the home. Compliance was required by June 21, 2021.

June 21, 2021 – ammonia 10 ppm – no orders issued

76Inspector Green returned on June 21, 2021 to check compliance. The appellant had been cleaning and the ammonia level was down to 10ppm. The appellant said she had taken Layla and Snuggles to the vet as ordered and learned they had a respiratory infection. She showed Inspector Green the medication and eyedrops. Inspector Green requested the vet reports, which the appellant subsequently sent by email on June 28, 2021.

July 12, 2021 – Compliance Order – “Star,” “Taz” & 5 kittens

77Inspector Green attended the appellant’s home again on July 12, 2021. She tested the ammonia levels and found they were again at 20ppm. She saw certain cats with hair loss. She discussed the need for ventilation with the appellant and also discussed flea control. She again issued orders requiring that specific cats be taken to the vet with compliance required by July 20, 2021.

78On July 17, 2021, the appellant left a message for Inspector Green saying she was trying to apply for a loan and get professional cleaning help.

79Inspector Green left a message on June 26, 2021 with the appellant following up on obtaining vet reports and asking about the ventilation.

August 3, 2021 – no Compliance Orders issued

80Inspectors Green and Falls attended for an unannounced visit on August 3, 2021. No compliance orders were issued at that time. The appellant was upset that the Inspectors had shown up announced. She indicated that her husband was starting cancer treatment and they had faced financial difficulties. Inspector Green followed up on whether the kittens had received treatment and requested the vet reports. The appellant expressed concern that people were gossiping about her. She was upset that her vet had provided expired medication.

81The appellant called Inspector Green on August 9, 202 to report on the kittens. She explained she was still looking for money to assist with spaying and neutering and flea treatment. She expected to be obtaining funds on August 18, 2021. She said she had requested records from the vet.

82There were emails back and forth around this time between the appellant and Inspector Green about scheduling a further inspection. They agreed to a visit on September 7, 2021.

September 7, 2021 – Compliance Orders for “Taz,” “Crystal,” “Peach,” “Oscar,” and “Tuffy”

83Inspector Green and her partner returned to the appellant’s home on September 7, 2021. The appellant consented to them entering. Inspector Green observed five cats that she thought required vet care. She issued orders to that effect with compliance required by September 13, 2021.

84Inspector Green testified that it was on this occasion that she spoke to the appellant about the possibility of removal. She could not recall the appellant’s response.

85I asked Inspector Green to elaborate on what she told the appellant regarding the prospect of removal. Inspector Green testified that she would have explained only that it was a possibility and that non-compliance could result in charges and the potential removal of cats.

86Inspector Green confirmed that this was the only occasion that she spoke to the appellant about the possibility of removal or the cost of removal.

87I asked Inspector Green whether, in her view, the appellant understood in practice what it would mean if the cats were removed. Inspector Green testified that she did not recall.

88I asked Inspector Green whether she had informed the appellant about the potential cost consequences of having the cats removed. Inspector Green acknowledged she did not go into detail as to how the cats would be removed or the costs. She said it was difficult to discuss because the appellant was “going on about other people and blaming them.”

89Between September 7 and October 4, 2021, the day that AWS attended to remove the cats, Inspector Green had some further communication with the appellant about the Orders to take the cats to the vet.

90I am satisfied, based on the vet reports filed at this hearing, that the appellant had done what she was ordered to do on each occasion in terms of taking the cats identified to the vet. However, there was clearly some difficulty with her providing the reports as required in the Orders. There was also miscommunication between Inspector Green and the appellant and the vets. For example, on a phone call on September 15, 2021 between the appellant and Inspector Green to discuss whether certain cats had been to the vet, the appellant said she had appointments booked for September 28. Inspector Green testified that she then called the vet and was advised that there were no upcoming appointments booked – which was clearly a fact held against the appellant. And yet, the records produced at the hearing show that the appellant did in fact have her cats seen at that vet on September 28.

91I accept that from the appellant’s perspective, she was doing everything she could to comply with the Orders. I am mindful that these Orders were coming one after another while her husband was just starting chemotherapy.

92It is also obvious that the appellant did not appreciate that removal was imminent nor was it adequately explained what might happen if removal was carried out. It would be beneficial, in my view, for the AWS to find a process that is more effective and informative in terms of describing the potential consequences of non-compliance with Orders.

93I recognize that the Act concerns itself with the protection of animals, and there is no requirement under the Act for inspectors to provide specific information about the process or the consequences of non-compliance where animals may be in distress. Still, as here, there were four months between the AWS’ first attendance and the removal to which I will next turn. In those four months, from the appellant’s perspective, she was endlessly scrambling to comply with the Orders during which time, as Inspector Green acknowledged, there was no meaningful engagement with the appellant about the consequences of non-compliance.

94In such circumstances, it is not surprising that the appellant felt that the AWS had “no right” to take her cats on October 4, 2021. She is wrong about that. Still, I find it is important to acknowledge the appellant’s perspective and to be mindful of the impact on an individual when agents of the state execute a removal in the manner to which I will now turn.

October 4, 2021 – Removal

95On the authority of a warrant obtained on September 28, 2021,⁴ Inspector Green attended the property on October 4, 2021. On this date, she was accompanied by four other AWS Inspectors (Inspectors Crocker, Fall, Banks, and Kirkwood) and two police officers as well as possibly one or more municipal by-law enforcement agents (the evidence was not clear). Also in attendance was Dr. Robertson, a veterinarian retained by AWS. According to the appellant, she was made to wait outside and was not even allowed to use her bathroom for the duration of the removal which was at least 6 hours.

96Dr. Robertson described that his role in attending that day was to review the living conditions and overall quality of life of the cats in the residence and determine whether they met the definition of distress under the Act.

97Dr. Robertson described that he was immediately aware of the air quality, calling it “exceedingly poor.” It caused his own lungs, throat, and eyes to become irritated, and he described having to go outside at regular intervals for fresher air. Dr. Robertson testified that it was immediately obvious to him that the ammonia levels were high.

98Later testing revealed that the ammonia level inside the appellant’s home was between 20-30ppm on that day.

99Dr. Robertson described the house as being in a state of squalor with feces, the smell of urine, and a significant accumulation of dust and other debris . The ceiling was down in two places and he observed cats in the rafters. He palpated a random selection of cats and noted that they had poor body condition, fleas, and upper respiratory infections. He observed that many cats had ocular and nasal discharge. While he did not notice any cats in severe respiratory distress, he did observe wheezing.

100Within minutes he signed the veterinarian certificate authorizing the cats’ removal.

101Dr. Robertson’s opinion was that the animals were in distress. The primary contributor to the animals being in distress in his opinion was the “highly unsanitary environment” where feces and urine had accumulated to the point where ammonia was at a very high level. Dr. Robertson described the impact of high ammonia levels on the health of a cat, explaining how it contributes to advanced dental disease due to ammonia concentration in the saliva. He further explained that ammonia is an immune suppressant and causes upper respiratory infection.

102Dr. Robertson thought that the distress of the cats could not be alleviated if left in the home. He thought it was clear that the appellant could not manage to provide individual care to the cats. He explained that a cat’s health will generally improve once no longer exposed to high levels of ammonia.

103AWS was able to capture and remove 38 cats in total on that day.

Photos

104Inspector Crocker took photos of the appellant’s home on the day of the removal day and of the cats once caged.

105I have already summarized the state of the home as reflected in these photos above at paragraphs 62 and following.

106In addition to the two kittens found dead in the cupboard on this date, there was another dead cat found in a garbage bag behind or in the washing machine. The appellant explained, and I accept, that this was a cat that she had had to have put down following a vet visit. She had kept the body because she was intending to bury it.

107The appellant was distraught over the actions of the AWS that day. In addition to not being allowed in her house, she was further distressed by what she described as rough treatment of her cats as they were removed.

108She was not asked about any of the cats’ histories nor asked to identify any of the cats that were caged and being identified by the letters on their crates instead of, or together with, their names.

Triage – October 4, 2021 – Dr. Avery

109Another veterinarian, Dr. Stephanie Avery, who operated a mobile unit, had been retained to attend at the appellant’s premises on October 4, 2021 in anticipation of the removal. She had been contacted by one of the inspectors who was a friend of hers and asked to attend for the purpose of providing immediate examinations of the cats once removed.

110Dr. Avery examined every cat brought to her which was 38 in total. I will not review each examination. Dr. Avery’s notes of each examination were ordered produced and reviewed in detail. Her report was also entered as an exhibit. Dr. Avery struck me as extremely knowledgeable and very helpful at explaining her findings.

111Dr. Avery found that of the 38 cats examined, only one cat had a report of healthy and without any problems. She explained how body condition is assessed on a scale of 1-9 where five is ideal. Only eight cats scored at ideal. There were 18 % that scored at 2/9, 34% that scored 3/9, and 26% that scored 4/9. No cats were overweight.

112Dr. Avery described finding many health problems with the cats, including fleas, skin problems, upper respiratory infections, eye infections, oral infections of the gingiva and tongue, swollen lymph nodes, dehydration, heart murmurs, swellings of jaws from suspected dental abscesses, missing teeth, tartar and periodontal disease.

113She noted that many cats were suffering from more than one issue. Many also had pot bellies which she thought were likely due to intestinal parasitic infections.

114One older cat had a cancerous growth under the jaw and other issues, including a painful abdomen, leading Dr. Avery to the conclusion that euthanization was the most humane course of action with respect to that cat.

115Certain cats were recommended to receive urgent follow up care, most of those for dental care. All were recommended to be tested for feline leukemia and feline immunodeficiency virus. Dr. Avery explained that due to so many of the cats having such severe dental and gingivitis and missing teeth, it was likely they did not have any vaccinations. She noted that a high majority of the cats also had upper respiratory infections that may be consistent with other diseases.

116Some of the respiratory infections observed were mild and some were quite severe. According to Dr. Avery’s report, the problems included: “clear or purulent eye and nasal discharge, nasal congestion, conjunctivitis, enlarged submandibular lymph nodes, sneezing, open mouth breathing from congestion and tongue ulcers.”

117There were six cats that had active skin infections and other health issues that warranted an antibiotic injection.

118All cats except two kittens received flea treatment and a prescription for de-worming.

119Dr. Avery described the eye infections of some cats in detail. For example, one had discharge and infection in the eyes such that the eyelids were nearly completely fused closed physically. Dr. Avery further described an approximately 2-year-old cat with an eye that had ruptured. She estimated it had been that way for a week Dr. Avery recommended immediate hospitalization and enucleation of the eye for this cat.

120The dental problems, according to Dr. Avery’s report, ranged from mild to very severe and included: “missing and misaligned teeth, gingivitis, stomatitis, glossitis, tartar accumulation, root lesions, and periodontal disease, malocclusions and gingival hyperplasia with infection and wounds from the trauma of the malocclusion (likely from inbreeding), and masses under the jaws and swelling of the bones of the lower jaw associated with severe dental abscesses or cancer”.

121Like Dr. Robertson, Dr. Avery also concluded that the observed distress of the cats was caused by them living in an unsanitary, overpopulated environment with high levels of ammonia and without adequate veterinary care, including vaccinations.

122The appellant’s representative invited me to find that neither vet’s opinions were reliable.

123With respect to Dr. Robertson, Ms. Rowbotham submitted that his evidence was unreliable based on his having stated in cross-examination that he had no prior involvement in the case when, in fact, he had met up with Inspector Green and her team at a gas station on the way to the appellant’s house. I was invited to disbelieve the whole of his evidence based on this purported inconsistency. I decline to do so. I am satisfied that meeting with the AWS en route to the site does not constitute “prior involvement” in the case. I do not find Dr. Robertson’s evidence biased, pre-determined, or unreliable on that, or any other, basis.

124With respect to Dr. Avery, Ms. Rowbotham suggests that her evidence should also be treated with suspicion as she too was retained by the AWS. The appellant submits that any injuries noticed by Dr. Avery with respect of the cats was likely caused by the rough manner in which she alleges the cats were handled on removal.

125Ms. Rowbotham in fact brought a notice of constitutional question at the start of the hearing alleging various infringements of the appellant’s rights arising out of this and the subsequent removal. Ultimately, those charter claims were abandoned, and no legal submissions were made.

126As already stated, I appreciate that from the appellant’s perspective – not knowing that removal was imminent, not knowing what it entailed, clearly not knowing that her cats were suffering and believing that she had in fact been compliant with the orders – the removal was overwhelming for her and difficult.

127Nonetheless, I have no hesitation in concluding, based on the evidence, that on October 4, 2021 the cats that were removed were in distress and that their removal was necessary to relieve that distress.

October 9, 2021 – Compliance Order – Sanitary Living Environment

128The appellant retained counsel to appeal the removal. There was then some communication with Inspector Green about how she could get the cats back, which, according to Inspector Green, would include cleaning up her house and paying the Statement of Account.

129Inspector Green issued a further compliance order on October 9 requiring all cats to be provided with a sanitary living environment that was free of fecal matter and urine. The compliance date was October 13, 2021.

130At the same time, a number of the previous compliance orders issued in relation to specific cats were revoked – those cats having been removed.

131The appellant appealed the October 9th compliance order seeking further time to comply and to secure a professional cleaning company.

October 13, 2021 – No further Compliance Order issued

132The appellant contacted Inspector Green on October 13, 2021 and described her efforts to retain a cleaning service. She invited Inspector Green to come to the house which she and her husband had been working hard to clean. Inspector Green attended that day and noted a number of improvements including furniture having been removed and that surfaces were much cleaner. Still, the ammonia levels remained at 20ppm on that day according to Inspector Green. She described having further conversations with the appellant about spaying and neutering the remaining population of cats and bringing down the ammonia levels.

133A Statement of Account was served on October 14, 2021 and appealed. All of the SOAs will be discussed below together.

134A case conference was held on October 20, 2021. The prospect of having the cats returned was discussed. The Case Conference Report and Order dated October 22, 2021 noted the AWS requirement that ammonia levels be reduced to 5ppm before the cats could be returned.

135It should be noted that the appellant disputed the accuracy of the ammonia testing on various ground including that Inspector Green licked her fingers before pulling the testing strip from the pack which would have contaminated it. Overall, however, I find no basis to doubt that the strips accurately reflected the ammonia levels in the house at the time the tests were taken. I accept the evidence of Dr. Robertson, Inspector Green, and Inspector Crocker regarding the testing, the process for testing, and the confirming smell signifying the presence of a high level of ammonia.

October 27, 2021 – Compliance Order – “Cody”

136Inspector Green returned to the appellant’s house on October 27, 2021 in keeping with the process discussed at the case conference.

137The ammonia levels were still at 20+ppm according to Inspector Green and she noted feces still apparent in the house. She issued a compliance order with respect to a cat, named Cody, to be seen by a vet before November 2, 2021. Cody was observed to have a poor coat and possible dental disease as well as fleas. Inspector Green again discussed flea treatment for the cats with the appellant.

138The appellant complied with the order and took Cody to the vet whose recommendation was that she undergo dental surgery. However, as Cody was pregnant, it was recommended that the surgery wait for three months.

139On November 1, 2021, Inspector Green revoked certain other orders that had been issued in June for care of cats that were now in the care of AWS.

140The open orders as of that day, according to Inspector Green, were the order to provide adequate ventilation, to clean the house of feces/urine, to provide flea medication to the cats, and to follow up with “Cody.”

141Another case conference was held on October 28, 2021 following the appellant’s appeal of the October 14, 2021 SOA.

November 3, 2021 – Compliance Order – “Sydney” and Litter

142A further inspection took place on November 3, 2021 again following the process agreed to at the case conference.

143Inspector Green noted that the ammonia levels were still high at 25ppm and that there were still feces in places other than the litter boxes.

144Inspector Green also observed that one of the cats had just had kittens. The kittens appeared lethargic and possibly dead. A compliance order was issued to take those kittens to the vet.

145The appellant explained that they had already taken the cat and kittens to the emergency vet the night before. Nonetheless, she headed off again to the vet in order to comply with the Order.

November 8, 2021 – No Compliance Order

146Inspector Green attended again on November 8, 2021 to deliver a USB containing disclosure for the hearing.

147The appellant was upset, having received notice that one of the cats taken on October 4, 2021 had been euthanized. She said she wished that she had never let the Inspectors into her house in the first place. She told them never to come back again.

148No compliance orders were issued on that day.

149On November 15, 2021 the appellant emailed Inspector Green a receipt for further flea treatment.

November 23, 2021 – Removal

150Under the authority of another warrant, and again accompanied by multiple other inspectors and police officers, Inspector Green attended the appellant’s home again on November 23, 2021 to remove the remaining cats.

151No veterinarian was in attendance on this occasion.

152The removal was purportedly for non-compliance with the s. 30 Orders previously issued with respect to the ventilation, fleas, and sanitation.

153Inspector Crocker again took photos.

154Inspector Green tested the ammonia levels, which were at 5ppm.

155The photos taken on that day show extensive improvement in the home. There was still some feces other than in the litter boxes but it was a minimal amount compared to the earlier removal. Further, I accept the appellant’s testimony that any feces that was still outside of a litter box was just because she had not yet come to that area to clean before the AWS arrived.

156No evidence was led with respect to the condition of the cats taken on that day.

157Due to the lack of any veterinary evidence at the time of the removal or subsequently, there is insufficient evidence for me to conclude that this removal was for the purpose of relieving distress on the basis that a s. 30 order had not been complied with.

158On the day of the removal, the ammonia levels were down to the level that was noted in the Case Conference Report and Order dated October 22, 2021 as being a suitable level for the return of the cats – namely, 5ppm.

159The house, while not perfect, had vastly improved in terms of cleanliness based on the photos.

160There were still some areas of the house where cats had left feces outside of the kitty litter and there were areas of the house that were still in disrepair, including the ceiling still having a hole in it. Given its prior state, however, the clear reduction in ammonia on the day of the removal, proof of ongoing flea treatment, and substantial compliance with the orders written since the first removal, I do not agree that the appellant was in non-compliance on November 23, 2021 to warrant the removal of the cats on that basis.

161This is not to say that the cats were not in distress. They may well have been. However the respondent did not lead sufficient evidence to establish that fact. The AWS did not bring along a veterinarian on November 23, 2021 to assess the remaining cats in light of the now reduced ammonia levels and improvement in sanitary conditions. Nor did the respondent provide evidence of what care, if any, was provided to the cats after their removal.

162I do note that on January 30, 2022, the day before closing submissions, the respondent sent to the Board and the appellant four photographs, an excel spread sheet showing the cats that the appellant had identified as being the older cats that she really wants back, and a document which Ms. Mallory referred to as a “veterinary report.” The document is titled “AWS Cats November 23, 2021” and describes issues purportedly relating to the examination of cats. However, it is not signed, it is not dated, it is not a certified copy, there is no indication of who wrote it, it is not on the letterhead of any veterinarian, and it was not put into evidence through a witness. I am not prepared to give this document any weight, nor was I asked to.

163The cats taken on November 23, 2021 were again crated and named with letters without any effort to ascertain their correct names.

November 23, 2021 – Compliance Order – 2 orange DMH type cats

164A final compliance order was issued on the day of the last removal for two cats that had avoided capture but that Inspector Green had concerns about due to body condition and eyes for one, and body condition and fur loss for the other.

165The evidence satisfies me that the appellant was largely compliant with this order as well, in that she took these two cats to the vet. However, the order specified that the vet had to send a photo of the cat to Inspector Green, which the vet did not do. Inspector Green questioned whether the appellant had taken the correct cats to the vet.

166Between November 23, 2021 and the last date of this hearing on January 31, 2021, Inspector Green had twice gone to the appellant’s house, but no one answered. She left two notices on the door, but the appellant did not call back. Inspector Green testified that she expected that she would have to go back soon in order to check on the ventilation and hygiene issues as they relate to the cats still in the house. She also wanted to follow up on the two cats noted in the last compliance order.

167The appellant stated that she still has approximately 30 cats in the house. She is aware that she needs to gain control of the population.

168The appellant also says that she has looked at places to surrender the cats but is afraid of sending them to a shelter that might put the cats down.

169Shortly after the AWS involvement in June, the appellant put her name on some wait lists for spaying and neutering the cats. By the time of closing submissions, she was able to advise that she had appointments set in the coming weeks for this procedure.

F. Conclusion with respect to the removals and the compliance orders

170As stated above, I am satisfied that the removal on October 4, 2021 was for the purpose of providing the cats with necessaries to relieve their distress.

171I appreciate that the appellant felt wronged by the process but there is no question that the state of the home, the intense amount of feces and urine, the high levels of ammonia, and the 80 or more cats in the house on that date had created an environment that was putting the animals in distress. That they were in fact in distress was proven through the testimony of Dr. Robertson, Dr. Avery and the evidence relating to the follow-up veterinary treatment that most of the cats required.

172The appellant’s appeal of the compliance order dated October 9, 2021 which required the appellant to provide the cats with a sanitary living environment free of fecal matter and urine, is varied in two ways: 1) the compliance date shall now be 48 hours from the date that this decision is released; and 2) the requirement is that the cats must be provided with a sanitary living environment in which fecal matter and urine is cleaned daily from kitty litters and all other surfaces. In my view, it is not possible to comply with an order that the environment be “free of fecal matter and urine”. After all, a cat must do its business somewhere. Dr. Robertson noted that the important task is to clean the urine and the feces before it becomes stale which is what produces the ammonia.

173If the appellant needs to hire someone to assist with cleaning, she should do so.

174The appellant’s appeal of the compliance order relating to Cody is moot as Cody was removed and is not being returned.

175The removal on November 23, 2021 was not proven to be in accordance with the Act as the respondent failed to provide evidence that the cats were in distress on that day (although they may well have been). The ammonia levels were at 5ppm as required by the AWS as set out in the Case Conference Report and Order dated October 22, 2021, and the house was much cleaner even if not perfect. Without evidence about the condition of the cats removed, I am unable to conclude that their removal was necessary for the purpose of relieving their distress on that date.

G. Whether the cats should be returned

176Despite my finding above regarding the removal on November 23, 2021, I agree with Ms. Mallory that to return the cats taken on that day would be to risk them being placed in distress.

177Section 15(3) of the Act states that “no person shall knowingly or recklessly cause an animal to be exposed to an undue risk of distress.”

178The appellant admitted that as of the end of this hearing she still had at least 30 cats in her house.

179Based on the evidence, the majority, if not all, of those cats would still not be neutered or spayed.

180Ms. Mallory ran a calculation describing how easily this population would again become out of control, assuming they remained largely unspayed and unneutered. She noted that on the assumption that half are female and can reproduce at six months, there could be more than 70 cats in eight months and over 150 in less than a year-and-a-half.

181As Ms. Mallory states, and I agree, the appellant cannot have this many cats in the home without the sanitation problem again overtaking the appellant’s ability to clean up after them and without the appellant falling short in terms of noticing if her animals require care. As noted by Inspector Green, even the 30 or more cats that are in the house now are at risk of being removed if the ammonia levels have risen or if the cats are in distress and not being taken to the vet. I am not going to order the return of multiple more unspayed and unneutered cats into what is already an untenable situation.

182I therefore decline to order the return of the majority of the cats.

183I am, however, ordering that four specific cats be returned, these are: “Oscar,” “Tuffy,” “Cher,” and “V.” These are the appellant’s oldest cats. They are already spayed or neutered and/or too old to reproduce. As I further describe below, I am satisfied that the condition of the appellant’s home has improved sufficiently to accommodate the return of four cats without undue risk. They will be subject to the order to live in a sanitary environment.

184The appellant is also reminded that the order requiring sufficient ventilation to reduce the ammonia levels is still an open order that must be complied with.

185There is also still an open order requiring ongoing treatment of fleas that must be complied with.

186As set out in my analysis regarding the Statement of Account below, I have carved out the amount of the SOAs that the appellant will have to pay in order to avoid forfeiture of the four cats I am ordering returned.

H. Statements of Accounts

187Under s. 35(1) of the Act, an animal welfare inspector who has provided an animal with necessaries to relieve its distress may, from time to time, serve on the owner with a statement of account respecting the necessaries.

188Following a hearing, the Board has the authority to confirm, vary, or revoke an account.

189The respondent submits that the issue to be addressed on an appeal of a statement of account is only whether the account is reasonable. I disagree. Nothing in the Act limits the factors that the Board can consider in exercising its authority under s. 38(9) to vary an account.

190Where reasonableness of the account does factor into the analysis, in my view, is with respect to the initial evidentiary burden which is the respondent’s to bear to justify its Statement of Account.

191In similar cases under the predecessor legislation, the Ontario Superior Court of Justice has confirmed that the onus is on the respondent to justify the charges included in its account.

192For example, in Straub, the Court considered a claim brought by the Ontario Society for the Protection of Cruelty to Animals (OSPCA), which is now AWS, for payment of a statement of account as provided for under s. 15(1) of the Ontario Society for the Prevention of Cruelty to Animals Act.⁵ That provision is very similar to s. 35(1) and (3) of the Act. The earlier provision reads:

15(1) Where an inspector or an agent of the Society has provided an animal with food care or treatment, the Society may serve upon the owner or custodian of the animal by personal service or by registered mail to the owner’s or custodian’s last known place of address a statement of account respecting the food, care or treatment and the owner or custodian is subject to subsection 17(6) liable for the amount specified in the statement of account.

193In Straub, the Court found that:

32Although s. 15(1) provides that the owner or custodian is liable for the amount specified in the plaintiff’s statement of account, it does not relieve the plaintiff of the obligation to act reasonably and to justify the charges included in its account. Those charges must reflect the actual cost of caring for the animals and the care provided must be reasonable.

194I see no basis to distinguish between the liability of an owner to pay damages for an unpaid Statement of Account, as was the issue in Straub, and the AWS having to produce evidence to justify the Statement of Account it is asking me to confirm on this appeal.

195The liability of an owner under 15(1) of the Ontario Society for the Prevention of Cruelty to Animals Act was “respecting food, care or treatment.” In the Act, it is “with respect to the cost of the necessaries” to relieve its distress. I find there is no significant difference between the two phrases to justify any departure from the requirement for evidence as set out by the Court in Straub.

196With those principles in mind, I turn to the facts in this case relating to the Statements of Account.

197The relevant excerpts of the Statements of Account served on the appellant in this case are as follows:

October 14, 2021

An Animal Welfare inspector has provided necessaries to: 37 cats to relieve the distress of the animal(s) as described below:

Transportation Costs:

Boarding Costs:

$30/day x 16 cats x 11 days (additional fees to follow for 21 cats)

$5,280.00

Veterinary Costs:

$6,364.63 + $1687.17 + $1,1126.05

$9,177.85

Animal Care Costs:

Miscellaneous Costs:

Total Costs:

$14,457.85

October 22, 2021

An Animal Welfare inspector has provided necessaries to: 37 cats to relieve the distress of the animal(s) as described below:

Transportation Costs:

Boarding Costs:

$30/day x 16 cats x 8 days $35/day x 21 cats x 19 days

$17,805

Veterinary Costs:

$808.14 + 1,878.77 + 26.27

$2,713.18

Animal Care Costs:

Miscellaneous Costs:

Total Costs:

$20,518.18

October 22, 2021 – Estimate to November 3, 2021⁶

An Animal Welfare inspector has provided necessaries to: 37 cats to relieve the distress of the animal(s) as described below:

Transportation Costs:

Boarding Costs:

$30/day x 16 cats until Nov 3 $35/day x 21 cats x 19 days

$32,385.00

Veterinary Costs:

$808.14 + 1,878.77 + 26.27

$2,713.18

Animal Care Costs:

Miscellaneous Costs:

Total Costs:

$35,098.18

October 29, 2021

An Animal Welfare inspector has provided necessaries to: 37 cats to relieve the distress of the animal(s) as described below:

Transportation Costs:

Boarding Costs:

Veterinary Costs:

$2411.21 + $8260.42 = 505.39 (additional costs to follow)

$11,177.02

Animal Care Costs:

Miscellaneous Costs:

Total Costs:

$11,177.02

December 6, 2021

An Animal Welfare inspector has provided necessaries to: 34 cats to relieve the distress of the animal(s) as described below:

Transportation Costs:

Boarding Costs:

$25/day (Nov 23rd – Nov 30th)

$6,169.05

Veterinary Costs:

$6,384.50

Animal Care Costs:

Miscellaneous Costs:

Total Costs:

$12,553.55

Boarding Costs

198The only information about Boarding costs presented at this hearing was the statement of those costs on the face of the SOAs. There was no evidence led to substantiate those costs.

199No invoices were provided as proof of the boarding costs.

200No evidence was led to establish where the cats were boarded or why it would cost between $25 and $35 per day to care for one cat.

201No evidence was provided to show that the AWS in fact paid the costs claimed.

202Inspector Green did not describe the costs associated with the boarding other than when she got to the December 6, 2021 SOA, she noted it was a “different boarding facility” that cost $25 per day.

203Why is $35 per day the cost at one facility? $30 at another? And $25 at another?

204Why were the cats not placed in foster care instead of in a facility?

205What efforts were made by the AWS to find alternative housing for the cats that was not $25 to $35 a day?

206Are there not people in the province happy to provide shelter for animals in distress on a volunteer basis?

207Suffice to say, I do not know the answers to the above, though Ms. Mallory did remark that the agency used to have a bit more leeway to keep costs low when it had the “bricks and mortar” of the OSPCA behind it. But Ms. Mallory is not a witness in this case.

208In sum, I find myself unable to confirm a Statement of Account when there is no evidence before me to substantiate the amounts claimed.

209I adopt the reasoning of the Court in Braun with respect to the boarding costs in this case.

210In Braun, W.A.Jenkins J. stated,

33A major part of the plaintiff’s account is the charge of $15 a day for the care and feeding of each of the birds and animals removed by the plaintiff. Ms. Tanti testified that the claim of $15 a day is based on a standing order issued by the plaintiff to its agents requiring them to charge that amount. That order was not produced at the trial and there is no evidence as to how it was arrived at.

34A charge of $15 a day for the care of the birds and small animals is, in my view, excessive. I do not believe that a cost of $15 a day for the care of each of the 25 ferrets, 16 quail and 12 budgies is reasonable.

35The plaintiff also filed invoices for the care of the ponies and donkeys at a rate of $15 a day for each animal. A charge of $450 a month to pasture or even board a pony or donkey is also excessive.

39The largest part of that account is made up of charges the plaintiff alleges it incurred or paid for boarding the birds and animals. Those charges were arrived at by applying a flat rate of $15 a day, for each bird and animal, regardless of the actual cost of maintaining it. At the trial, the plaintiff made no effort to justify this rate and no evidence was presented as to how the rate was arrived at.

40In Sheets v. OSPCA, [1984] O.J. No. 1339 (Div. Ct.), the court said in upholding the trial judge’s decision:

The learned judge found that the applicant’s evidence was not acceptable and he went on to say this:

I think the Society for the Prevention of Cruelty to Animals must be taught that if they are going to seize animals, they will have to keep records of the cost of maintaining those animals, and if they do not keep those costs, and keep records, and be able to show a proper basis for the charges that they are asking, that they are going to suffer as a consequence.

41The plaintiff had to prove two things. It had to prove that the rate it charged for the care of the birds and animals was reasonable and that it incurred or paid out the amount claimed. A claim of over $165,000 for the care of these birds and animals is not supportable by any standard of reasonableness. In addition, the plaintiff failed to prove that it in fact incurred or paid out the total amount claimed.

42The plaintiff called very little evidence as to what care was actually provided. In addition, the plaintiff failed to call anyone with firsthand knowledge as to what amounts were actually incurred or paid for the care of these birds and animals and who received those amounts.

43I am not allowing any amount for boarding costs. I am, however, allowing the accounts which the plaintiff has proved, and which total $5,028.

211Similarly, I do not have evidence before me to justify the cost of boarding the cats as set out in the Statements of Account and, therefore, I am not allowing any amount for boarding costs. As in Straub, however, I will allow the accounts that the respondent has proven.

212I will turn now to the elements of the Statements of Account for which there was evidence.

Veterinary Bills

213The respondent did provide supporting documentation for the cost of the veterinary care provided to the cats after they were removed. The vet bills were admitted in evidence and reviewed by Inspector Green in her testimony.

214The vets themselves did not testify. I am satisfied in this particular case that it was not necessary for them to do so. Here, multiple cats were seen by multiple vets and it would be inefficient to require each of them to testify as to the treatment provided, particularly since Dr. Avery – who did the initial triage assessment of the cats – did testify. She clearly identified which cats required follow up treatment and I am satisfied from the invoices provided that they line up (in most cases) with the follow-up care recommended by that expert witness.

215For example, in Dr. Avery’s notes for “Cat A” – one of the animals removed on October 4, 2021 – she writes, “needs immediate dental care.” The note specifies what the issues were (here a “dental abscess”) and those issues were further explained in her testimony. Thus I am able to link this recommendation with the invoice dated October 12, 2021 showing a dental exam for “Cat A.”

216I do not intend to review each invoice here. I will state only that I have reviewed each invoice and noted the cat that received the treatment. Subject to my specific comments and deductions below, I am satisfied that the veterinary care provided to the cats removed on October 4, 2021 was overall necessary to alleviate the distress of the animals as found by Dr. Avery on that day.

217The total vet costs for the animals removed on October 4, 2021 as set out in the four Statements of Account (dated Oct 14, 22, 22, and 29) that were appealed is: $23,068.05.⁷

218I make the following comments regarding the invoices:

Dr. Avery’s Invoice

219The respondent relies on an invoice in the amount of $6,364.63 for the triage services provided on the day of removal for all of the cats. A careful review of the subsequent vet bills shows that at least 21 of the 38 cats examined on October 4, 2021 received almost immediate follow up care by other vets. I see no basis for the appellant to bear the costs of two examinations of one cat within days of each other. During the hearing I asked Ms. Mallory why this was a cost that had to be borne by the appellant and she replied that it should be paid because it was a cost that the AWS incurred.

220In my view, while Dr. Avery’s attendance may well have been the most efficient and sensible way to assess the cats’ needs on the day of removal, that does not make the assessment itself necessary to relieve the distress of the animals. It is the subsequent treatment that did that.

221I note further that Dr. Avery charged travel time at $250 per hour which is not to say the charge is unreasonable or ought not to have been paid by AWS (assuming it was), only to say that the vet’s travel time also does not fall under the category of “necessaries” required to alleviate an animal’s distress.

222Accounting for the above, I will allow the cost of the examination of the 16 cats for which I can see no follow up examinations. I agree that it was proper to assess the cats at least once.

223However, I will not allow travel time. That should be a cost of removal that is not passed on to the appellant similar to Dr. Robertson’s time. Ms. Mallory confirmed there is no invoice being submitted for his role in the removal.

224Thus, in total I find that the reasonable cost of the necessaries provided by Dr. Avery to relieve the distress of the cats is the total bill of $5,632.40 (before HST) less $250 (travel time) less $1,785 (the cost of examining the 21 cats at $85 whose distress was relieved by subsequent care). All other charges appear reasonable enough. Thus $3,597.40 + 467.66 HST = $4,065.06.

Other invoices

225I accept generally that the other veterinary invoices submitted in evidence in this case reflect necessary care provided to the animals identified.

226I query the reasonableness on one of the bills of dental surgery at the cost of $50 per minute. However as the overall cost of the bill appears reasonable for the work performed on this cat (surgery, extraction, x-rays), and is in keeping with the cost of similar work per cat from the other vets, I ultimately conclude it is reasonable and was necessary based on the identification of issues testified to by Dr. Avery.

227With respect to the invoices for costs on the December 6, 2021 Statement of Account, the respondent has not met its burden of showing that any of the costs were reasonable or necessary given my finding that the removal was not authorized on the basis put forward by the AWS. Even if I am wrong in that conclusion, no evidence was led to describe the distress, if any, of the cats removed on November 23, 2021.

228There was no triage on that day nor any examination by a vet. Furthermore, the AWS did not submit any invoices with respect to the veterinary costs set out in the December 6, 2021 Statement of Account.

229Additionally, Inspector Green did not testify to any care received by the cats from the November 23, 2021 removal. There is also nothing in her will say pertaining to any cats receiving care from the November 23rd removal.

230As noted above, there was only an alleged “vet report” that was undated, unsigned, not on letterhead, and purporting to be with respect to the cats removed November 23, 2021 that was submitted by AWS the day before closing. Perhaps the Statement of Account reflects the costs of that examination by whoever may have completed it, if it was in fact completed.

231Here I will just echo the Court in Weeks as discussed above. AWS

…must be taught that if they are going to seize animals, they will have to keep records of the cost of maintaining those animals, and if they do not keep those costs, and keep records, and be able to show a proper basis for the charges that they are asking, that they are going to suffer as a consequence.

232In short, I have no basis to conclude that the December 6, 2021 Statement of Account reflects the cost for necessaries to relieve the animals of their distress. I am varying this account to zero.⁸

Summary on Statement of Accounts

233Based on the above,

October 14, 2021 SOA

$14,457.85

-$2,299.57 (Dr. Avery’s Bill not proven to be for necessaries)

-$5,280 (no evidence to support boarding costs)

Total varied to:

$6,878.28

October 22, 2021 SOA (using 2nd estimated SOA)

$35,098.18

-$32,385.00 (no evidence to support boarding costs)

Total varied to:

$2,713.18

October 29, 2021 SOA

$11,177.02

No boarding costs

Confirmed:

$11,177.02

December 6, 2021 SOA

$12,553.55

-$6,169.05 (no evidence to support boarding costs; removal not proven to be for the purpose of alleviating distress)

-$6,384.50 (no evidence to support vet costs; removal not proven to be for the purpose of alleviating distress)

Total varied to:

234Total confirmed amount of the Statements of Accounts = $20,768.48

Payment of the Statements of Account – per cat

235Finally I turn to the issue of payment of the above varied or confirmed Statements of Account and the return of some or all of the cats.

236I do not find it fair to lump all cats together in a Statement of Account such that the appellant’s potential inability to pay for the whole of the account must result in forfeiture of the four animals that I am ordering to be returned as set out above.

237The Statement of Account as a whole reflects care provided to 38 cats removed on October 4, 2021 and 32 cats removed on November 23, 2021 for a total of 70 cats.

238I have made the payment proportionate to the amount owing. Thus, $20,768.48 (the confirmed amount of the SOAs) divided by 70 (the number of cats seized altogether) = $296.69 per cat

239It is too difficult otherwise to figure out which cat is Tuffy, which is Oscar, Cher or V and then attempt to trace what medical care that specific cat may have received.

240I will note that this is solely due to the AWS having clearly made no effort to identify the cats in a manner that would make them identifiable, despite the cats having names and the appellant being on site at the time of removal to have been able to have named them. Even if there are reasons for not ascertaining the animals’ actual names from the appellant, and even acknowledging that there may be difficulty describing each cat on site while the cats are being crated and removed, still there is no reason not to properly describe and identify them at a future time.

241Instead, the only system for identifying the cats are the Removal Logs from both removals. These were produced in evidence and show that the cats were put in crates, in most cases two to three to a crate, with a minimal description of each cat by colour and type. Thus, the cats come to be identified by the letter on the crate and for the most part not even sub-labeled (for example, the three cats in crate “J” are all identified as “J”). Only four of the 70 cats removed are even identified by sex (all four female, presumably pregnant or lactating). To try now to determine, for example, which cat was the cat identified as “J” on a veterinary invoice for treatment October 7, 2021 is not a task I intend to undertake. Though I have found the vet invoices subsequent to the day of removal to be sufficiently linked to the cats removed to confirm those amounts, I have managed to do so only by painstakingly reviewing Dr. Avery’s notes (which, incidentally, only became exhibits when she referred to them in her testimony – they were not initially produced), not by virtue of there being any proper record keeping, as the Court in both Weeks and Straub suggest is required.

242All of which to say, the respondent must work with the appellant to find Tuffy, Oscar, Cher and V. Hopefully, as they are the older cats, the respondent can manage this. If for any reason, those particular cats cannot be located or are no longer living, the appellant may identify substitute cats to be returned such that four cats are returned in total. The veterinary invoices show that some of the cats were neutered subsequent to removal. If the above-named cats are not returned, the substitute cats should be cats that are already neutered or spayed.

243Further, these four cats are not to be forfeited along with the other cats if the appellant is unable to pay the total varied amount of the Statements of Account within the prescribed period of 10 days.

244Rather, the appellant must pay the proportionate varied amount of $296.69 per cat or $1,186.77 for all four of these cats to avoid forfeiture.

245There is nothing in the Act that says the cost of necessaries to relieve the distress of one animal is tied to the cost of necessaries to relieve the distress of another. In fact, s. 35(1) of the Act refers to “an” animal, in the singular. The habit of combining all costs on one Statement of Account may well be sensible when there are multiple animals, just for efficiency’s sake, but that does not mean that the cost of necessaries for each particular animal cannot or should not be separated out. Where the animals are properly identified in terms of the care provided, this ought not to be difficult to do and should be part of basic record keeping practices in any event. Where, as here, those records are shoddy, the only manner of calculating the cost per cat is proportionately, as I have done here.

CONCLUSION

246I have stated above that the appellant clearly loved, and still loves, her cats. I have no hesitation in stating that when she had a manageable number of cats, she was able to provide them with appropriate care. However, on the evidence before me, that regular care fell to the wayside in the last number of years. Even if there are reasons for that – Covid-19 restrictions, money problems, waiting lists, etc. – the most logical explanation is that the number of cats in her care was simply no longer manageable.

247I find that the appellant was not able to appreciate that her animals were in distress as a result of the situation in her home, though they clearly were. The cats taken on October 4, 2021 were clearly in distress based on the evidence.

248The cats taken November 23, 2021 may also have been in distress, though the respondent did not call evidence to prove that fact. I am also not satisfied there was non-compliance with the s.30 Orders sufficient to show that the removal of the cats that day was for the purpose of providing necessaries to relieve distress that was not proven. This is particularly the case given that the ammonia levels were at 5ppm on that day. Also, Dr. Robertson testified that once ammonia levels drop, a cat’s health will often improve.

249Notwithstanding my finding with respect to the cats removed on November 23, 2021, I decline to order their return or the return of any of the cats taken on October 4, 2021 other than “Oscar”, “Tuffy”, “Cher,” and “V” or the four substitute cats.

250The exact number of cats still in AWS’s care is not certain. 70 were taken but some were euthanized and others had kittens. The number is likely still around 70. I find that to return all of the cats would be to place those cats, and the ones still in the appellant’s home, in an unsanitary environment almost immediately. This would lead to the increase of ammonia levels and the return of the issues caused by ammonia as described by Dr. Robertson and Dr. Avery. I further find that the appellant would not – despite her good intentions – be able to clean up after all the cats within 24 hours which is the timeline Dr. Robertson gave for how long feces and urine can remain before it starts giving off ammonia. The appellant would equally be incapable of controlling fleas with so many cats nor would she be able to recognize when any particular cat may require medical attention. This is clear from the fact that when those cats were in her care, the appellant was unable to appreciate that some of them were in dire need of medical attention and/or had even passed away.

251The concerns raised by the above scenario is to say nothing of what would happen once all the cats began to multiply.

252I strongly encourage the appellant to surrender the cats still in her care so that she can commit her attention to the older cats expected to be returned. By keeping all of her cats – especially if they are still not spayed or neutered – the appellant is risking the AWS again issuing compliance orders, possibly obtaining warrants to remove the cats and then serving further SOAs such that the appellant may shortly find herself back before the Board.

253I do find that the appellant has clearly made progress. By the end of the hearing, I heard about the ceiling having been repaired, I saw photos showing that the house was clearly much cleaner, and the ammonia levels continue to be low, at least according to the appellant. I accept this evidence while noting that the AWS had not yet been to the house to verify her account.

254I am relying on those improvements to justify the return of the four cats.

255The only compliance order that remains outstanding that was appealed is the October 9, 2021 order relating to providing a sanitary environment for the cats free of urine and feces as varied above. This order will continue in relation to the four cats returned.

256The Statements of Account are varied to $20,768.48 (the confirmed amount of the SOAs) divided by 70 (the number of cats seized altogether) = $296.69 per cat.

257According to the Act, the appellant is liable for the varied amount of the SOA to be paid within the prescribed period of 10-days or else the cats will be forfeited to the Crown (subject to the respondent’s discretion under s. 35(5) of the Act to agree in writing to extend the time for paying or reduce the amount owing or both).

258However, as set out above, the Statements of Account are to be considered on a cat-by-cat basis. Therefore, the amount owing for the four cats ordered returned can be paid separately per cat in order to avoid forfeiture of those particular cats if the whole of the bill cannot be paid.

259The amount owing on the varied Statements of Account for four cats is: $296.69 per cat or $1,186.76.

260The remaining amount owing on the varied Statements of Account for the remainder of the cats is $19,581.72. Under the Act, these cats will be forfeited if the account is not paid within the prescribed period of 10-days.

ORDER

261Pursuant to s.38(9) of the Act, the Board makes the following orders:

i. The October 9, 2021 order made under s. 30 is varied as follows:

Provide cats with a sanitary living environment. Fecal matter and urine must be cleaned daily from kitty litters and all surfaces.

The time for compliance is within 48 hours of the release of this decision and ongoing;

ii. The Statement of Account dated October 14, 2021 is varied to $6,878.28;

iii. The Statement of Account dated October 22, 2021 is varied to $2,713.18;

iv. The Statement of Account dated October 29, 2021 is varied to $11,177.02;

v. The Statement of Account dated December 6, 2021 is varied to $0;

vi. The varied amount of the combined Statements of Accounts is: $20,768.48 or $296.69 per cat.

vii. The varied Statements of Account may be paid on a per cat basis.

viii. Four cats shall be returned to the appellant, “Oscar,” “Tuffy,” “Cher,” and “V” or as the appellant may choose to substitute;

ix. The varied amount of the Statements of Account for the four cats to be returned is $1,186.76. This amount must be paid within the prescribed period of 10-days to avoid forfeiture of those cats (unless the respondent agrees in writing to reduce the amount owing or to extend the time for paying that amount or both.)

x. The varied amount of the Statements of Account for the remaining cats is $19,581.72. This amount must also be paid within the prescribed period of 10-days to avoid forfeiture of those remaining cats.

Released: March 8, 2022

Jennifer Friedland, Acting Vice Chair

Footnotes

S.O. 2019, c. 13.
2009 CanLII 25138 (ON SC)(Straub)
According to the vet’s estimates on the day of removal: 5 cats were over 8-yrs old; 12 cats were between 3 and 6-yrs old; 14 cats were between 1-2 yrs old; and 7 kittens were under a year old.
The respondent did not produce the Information to Obtain the Warrant and resisted providing it upon request. I therefore ordered its disclosure. However, ultimately the AWS was unable to produce the copy that was in fact relied on to obtain the warrants.
R.S.O. 1990 c. 0.36.
This SOA is the same as #2 however this SOA shows a boarding estimate to November 3, 2021
The vet costs are repeated on the 2nd SOA served on October 22, 2021 and are therefore not included in this total.
One final note regarding the invoices and accounts: while the Board ought not have to do the Respondent’s accounting, I note that there were eight invoices submitted in Exhibit #2 (the Respondent’s Documents Vol. 2) that relate to care provided to animals before the November 23, 2021 removal. However the charges are not reflected on any of the Statements of Account before me. They total $9218.24.

Lynn Freeman v. Chief Animal Welfare Inspector, 2022 ONACRB 12

Case Summary

B. ISSUES

C. RESULT

D. LAW & STATUTORY CONTEXT

E. FACTS AND ANALYSIS

History of the cats

The state of the appellant’s home – June to October 2021

AWS History of Involvement

June 8, 2021 – Compliance Order – kittens and flea treatment

June 15, 2021 – Compliance Orders – Layla and Snuggles & adequate ventilation

June 21, 2021 – ammonia 10 ppm – no orders issued

July 12, 2021 – Compliance Order – “Star,” “Taz” & 5 kittens

August 3, 2021 – no Compliance Orders issued

September 7, 2021 – Compliance Orders for “Taz,” “Crystal,” “Peach,” “Oscar,” and “Tuffy”

Photos

Triage – October 4, 2021 – Dr. Avery

October 9, 2021 – Compliance Order – Sanitary Living Environment

October 13, 2021 – No further Compliance Order issued

October 27, 2021 – Compliance Order – “Cody”

November 3, 2021 – Compliance Order – “Sydney” and Litter

November 8, 2021 – No Compliance Order

November 23, 2021 – Removal

November 23, 2021 – Compliance Order – 2 orange DMH type cats

F. Conclusion with respect to the removals and the compliance orders

G. Whether the cats should be returned

H. Statements of Accounts

Boarding Costs

Dr. Avery’s Invoice

Other invoices

Summary on Statement of Accounts

Payment of the Statements of Account – per cat

CONCLUSION

ORDER

Footnotes