Appeal under s. 38(1)(2) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c.13
Between:
Ho Cheng
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
PANEL: Ashley Deathe, Member Paul Stopciati, Member
APPEARANCES:
For the Appellant: Ho Cheng, Self-represented
For the Respondent: Demetrius Kappos, Counsel, Animal Welfare Services
Interpreter: Hoa Huang (Mandarin)
Heard by videoconference: October 27, 2022
OVERVIEW
1The appellant, Ho Cheng, is the parent of a Minor who took in her friend’s cat, Jerry. The cat became ill while in the Minor’s care.
2The Minor took the cat to the Vaughan-Richmond Hill Vet Emergency Clinic (the “Clinic”) on Thursday, September 8, 2022, where the cat was assessed by a veterinarian, Dr. Alison Claydon.
3On Friday, September 9, 2022, Dr. Claydon signed a Certificate of Veterinarian Advising the Removal of Animal or Euthanasia of the Animal under s.31(1)(a) of the Provincial Animal Welfare Services Act, 20191 (the “Act”), referred to as the “Removal Certificate” in this decision.
4Later that day, Animal Welfare Services (“AWS”) issued a Notice of Removal to the Minor and to the appellant under s.31 of the Act (the “Removal Notice”).
5Five days later, on September 14, 2022, the AWS issued a Notice of Decision to Keep in Care to the appellant (“Decision to Keep in Care”) on the basis that the cat may be placed in distress if returned to the appellant.
6Approximately three weeks later, on October 4, 2022, AWS issued a Statement of Account in relation to the care of the cat totaling $7,149.24 (the “first statement of account”). Two updated Statements of Account were issued by the respondent: October 6, 2022, totaling $7,248.16 (the “second statement of account”), and October 27, 2022, totaling $7,587.16 (the “third statement of account”).
7On October 5, 2022, the appellant first wrote to the Board to appeal the first statement of account in writing in accordance with s. 38(1)(2) the Act. On October 13, 2022, the appellant filed a completed Notice of Appeal regarding the first statement of account. Based on the submissions at the hearing and the content of the Notice of Appeal, the appellant’s position is that the statement of account should be varied because:
a. His daughter was looking after a friend’s cat and therefore not ultimately responsible for financial liability of the cat’s medical treatment;
b. The veterinary costs are unreasonable because the veterinarian improperly recommended medical care when humane euthanasia was an equivalent choice;
c. That AWS should not have sent the cat to be boarded when the cat was discharged from veterinary care; and
d. The appellant does not have the ability to pay the total amount of the statement of account.
8The appellant did not appeal the Removal Certificate, Notice of Removal, or Decision to Keep in Care.
9At the time of the hearing, the cat was still in the care of the respondent.
10At the hearing, the parties agreed that the appeal would address the updated statement of account dated October 27, 2022.
ISSUE IN DISPUTE
11The only issue to be decided by the Board is whether the October 27, 2022, statement of account should be confirmed, revoked, or varied.
RESULT
12We find that the October 27, 2022, statement of account should be varied as follows:
Boarding Costs:
$0
Veterinary Costs:
$1,049.70
HST:
$ 136.46
Total Costs:
$1,186.16
Evidence
Thursday, September 8, 2022: Visit to the Emergency Veterinary Clinic
13The Minor testified that she became concerned for the cat’s health and well-being after noticing the cat was vomiting, appeared lethargic, had a decreased appetite, and decreased interest in drinking. She called at least one other veterinarian before taking the cat to the Clinic for a walk-in appointment.
14Just before 5:00PM pm on Thursday, September 8, 2022, the Minor brought the cat to the Clinic. Due to COVID-19 protocols, she was unable to accompany the cat into the Clinic and all conversations between Dr. Claydon and the Minor occurred by telephone while the Minor was in the parking lot outside the Clinic.
15Dr. Claydon testified that she assessed the cat and identified that it had an enlarged bladder, and symptoms of dehydration. Based on her initial assessment, Dr. Claydon recommended diagnostic tests and obtained the Minor’s consent to complete bloodwork and imaging.
16In response to a question from the Board, Dr. Claydon testified that she did not question the Minor about her age or whether she was the owner of the cat.
17After obtaining the results of those diagnostics, Dr. Claydon assessed that the cat was experiencing a urinary obstruction and was in critical condition with “a potential to decompensate,” meaning, the cat’s condition could deteriorate and cause death at any moment. She testified that she told the Minor that it was necessary to intervene immediately to save the cat’s life. If treatment was impossible, then the only humane thing to do was euthanize the cat. Dr. Claydon estimated the cost of the medical treatment would be between $4,000 to $6,000.
18Dr. Claydon testified that the Minor responded that she could not afford the medical treatment and that she wanted to take the cat home and think about what to do. But when the Minor asked to take the cat home with pain medication, Dr. Claydon testified that she refused to release the cat.
19The Clinic notes include the following: “Owners refuse euthanasia or treatment. Informed owners that this amounts to cruelty and I will report as such.” The reference to “owners,” the Board was told, was because Dr. Claydon believed that the Minor’s mother was on the phone with her. The Minor testified that her mother was not on the line, but that she had called a friend’s mother to help her talk to the Clinic to let her take the cat home.
20Dr. Claydon emphasized at the hearing that she believed it was unethical or inhumane to release the cat with only pain medication because it would prolong the cat’s distress.
21Dr. Claydon called AWS’ emergency phone line and was told she would have to wait for someone to contact her the next day. She then called the police service.
22Dr. Claydon testified that she learned from the police that she could not force an owner to pursue treatment and that she could be charged with theft for refusing to release the cat. Dr. Claydon testified that upon learning this information, she called the Minor and left a voicemail saying she could take the cat home with pain medication but that it was against medical advice.
23The Minor testified that she had wanted to take the cat home from the Clinic and discuss whether to treat or to euthanize with her family. Because Dr. Claydon had refused to release the cat, the Minor left the parking lot that night and recalled feeling “overwhelmed.” She testified that she did not receive any voicemail messages from the Clinic because she did not have voicemail set up on her phone. She further stated that had she been given the opportunity to discuss the situation with her family, she would have opted for humane euthanasia because they did not have the ability to pay for treatment.
24When the Minor did not return that day, the Clinic initiated a minimum treatment plan for the cat due to his condition which included providing the cat with pain medication and periodically drained the cat’s bladder with a syringe so it would not rupture.
Friday, September 9 to Tuesday, September 13, 2022: Ongoing Medical Treatment
25In the morning of Friday, September 9, 2022, AWS Inspector Mike Gallagher (“Gallagher”), followed up on the cat’s situation with Dr. Claydon. Dr. Claydon was continuing to provide minimum life-saving treatment while Gallagher attempted to contact the Minor. Gallagher was unsuccessful at reaching the Minor at home. Initially, the Clinic provided the incorrect home address to Gallagher. Once that mistake was uncovered, attempts to contact the Minor at the correct address were also unsuccessful. Gallagher left the Minor a voicemail and sent a text message asking her to contact him.
26At approximately 2:30PM on Friday, September 9, 2022, Gallagher arrived at the Clinic and met Dr. Claydon in person to discuss the cat’s condition. Dr. Claydon testified that the cat was in distress at that time: the cat had a urinary obstruction that was painful and life threatening, was showing signs of kidney damage, and was at imminent risk of death.
27In response to a question from the Board, Gallagher indicated that he did not consider euthanasia because Dr. Claydon did not recommend it. When they met, Gallagher recalled Dr. Claydon’s opinion being that the cat was in “very severe distress” and “without medical intervention, would not likely survive.” Gallagher also testified that he understood that at this point in time the cat had a 50:50 chance of survival.
28Dr. Claydon signed the Removal Certificate on Friday, September 9, 2022, because, as she testified, treatment was necessary to alleviate the cat’s distress. Gallagher then gave consent to proceed with emergency stabilization but asked the Clinic to update him on the cat’s condition before proceeding with any surgery to unblock the urinary tract.
29The Minor testified that she contacted Gallagher in the afternoon on Friday, September 9, 2022, and that prior to that time she had been in school and was not permitted to use her phone. She also testified that she did not have voicemail set up on her phone and did not receive the voicemail messages left by the Clinic the previous night or Gallagher during the day. She responded to the text message from an unknown number at her first opportunity. She met with Gallagher at approximately 4:00PM at her home.
30The Minor testified that she told Gallagher the following:
a. She does not own the cat;
b. She could not afford the cost of the medical treatment recommended; and
c. The clinic had refused to return the cat to her the night before.
31Gallagher then provided the Minor with the Removal Certificate and Removal Notice.
32Dr. Claydon testified that the cat was stabilized later that day and the urinary tract was unblocked without surgical intervention. The cat stayed at the Clinic through the weekend to allow ongoing assessment and monitoring. On Sunday, the cat’s catheter was removed and on Monday the cat was able to urinate on his own.
33The cat was ready for discharge on Monday, September 12, 2022: according to Gallagher’s notes, Dr. Clayton advised him that the cat was well and “ready for discharge.” The Clinic’s discharge instructions included the following recommendations:
a. Keep the cat indoors for close monitoring of urine production;
b. Feed the cat a specific diet lifelong to prevent the risk of re-obstruction;
c. Give medication as prescribed; and
d. Monitor the cat for recurrent signs of urinary blockage and to contact a veterinarian for re-assessment if concerns of a repeat blockage are noted.
34Gallagher testified that he understood the cat would need to be monitored for urine production and that the veterinarian was recommending a re-examination in 7-10 days which could be done at any veterinary clinic.
35Gallagher’s notes also indicate that he was contacting potential boarding facilities at that time for the cat to be boarded.
36Neither the Clinic’s notes nor Dr. Claydon’s testimony indicated that the cat could not be monitored at home. The Clinic’s notes suggest that the cat was to be discharged to the owner’s care.
37The Minor testified that she did not have a conversation with Gallagher after Friday, September 9, 2022, regarding her ability to care for the cat upon discharge nor was she otherwise aware that the cat was to be boarded.
September 13, 2022, and ongoing: Boarding and the Statements of Account
38Gallagher testified that he selected a boarding service with Uxbridge Scugog Animal Services because it offered medical boarding and they normally charge a lower cost than other local boarding services.
39He picked up the cat from the Clinic and transported it be boarded on September 13, 2022. On the days that the cat was medically monitored, the daily fee was $35. The cat left medical boarding on September 30 and normal boarding charges started thereafter at $15/day. Gallagher testified that he understood that costs were an issue for the Minor because she had said that she could not afford the medical treatment costs of $4000 to $6000.
40The Decision to Keep in Care was issued on September 14, 2022, two days after the cat was ready for discharge and the day after the cat had started boarding with the Uxbridge Scugog Animal Services. The Decision to Keep in Care was issued on the basis that the cat may be placed in distress if returned.
41AWS issued three statements of account, the final of which was dated October 27, 2022, in the total amount of $7,587.16, the details of which are as follows:
Boarding Costs
$1087.55
Veterinary Costs
$6499.61
Total Costs
$7587.16
ANALYSIS
42A statement of account is in respect of the necessaries provided to relieve distress and the costs incurred if the respondent has taken an animal into its care. The owner or custodian is presumptively liable for the amount specified in the statement of account pursuant to s.35(3) of the Act.
43An owner or custodian of an animal may appeal a statement of account to the Board pursuant to s.38(2) of the Act. After the hearing, the Board may confirm, revoke, or vary a statement of account.
44The Act does not identify the factors to consider when the Board exercises its discretion to “confirm, revoke, or vary” the statement of account. The Board will use its discretion to determine the relevant factors on a case-by-case basis.
45The respondent agreed that it has the initial evidentiary burden to prove on a balance of probabilities that the charges reflected on the statement of account reflect the actual costs of necessaries provided and that these costs are reasonable such that the statement of account should be confirmed. If the respondent meets that onus, the burden then shifts to the appellant to prove that the statement of account should be varied or revoked.
46An animal is forfeited to the Crown if, after the Board provides notice of its decision, the owner or custodian fails to pay the confirmed or varied amount of the statement of account within 10 business days, as set out by s.35(4) of the Act and s.1(2) of the O. Reg. 447/19, “Ministerial Prescriptions.”
47The issue before the Board is whether the statement of account reflects charges for the necessaries to relieve the animal of its distress such that the appellant is liable to pay these amounts.
Ownership of the cat
48The appellant submitted that he did not own the cat.
49The Minor testified that she had started to look after a friend’s cat in July 2022. While she maintained that she did not own the cat, there was no evidence that this care-taking arrangement was temporary.
50On cross-examination, the appellant agreed that he viewed the cat as the family cat.
51The Act contemplates that either “custodian or owner” is financially liable for the cost of the necessaries provide to animal to relieve its distress, s. 35(1) and (3) of the Act.
52Based on the evidence, the appellant was, at the very least, the custodian of the cat at all relevant times and financially liable to pay a statement of account.
The Statement of Account
Veterinarian expenses
53On Thursday, September 8, 2022, Dr. Claydon assessed the cat to be in a life-threatening situation and gave the Minor the option to treat aggressively, with a cost of $4,000 – $6,000, or to humanely euthanize the cat. The costs incurred by this point in the emergency visit included imaging, bloodwork, and consult fees, amounting to $1,049.70 prior to tax. Those costs of diagnostics were necessary for Dr. Claydon to assess the cat’s condition.
54On Friday, September 9, 2022, Dr. Claydon advised Gallagher that the cat was in “very severe distress” and without medical intervention would likely die. Gallagher testified that he understood the cat had a 50:50 chance of survival at this time. The veterinarian recommended medical treatment on Friday, September 9, 2022, despite the following facts:
a. The Minor’s prior statement to Dr. Claydon that she was unable to afford the cost of the proposed treatment;
b. Dr. Claydon had recommended humane euthanasia in lieu of treatment the night before; and
c. The life-threatening condition of the cat was unchanged.
55Had the veterinarian released the cat to the Minor on Thursday, September 8, 2022, the majority of the veterinary costs as invoiced by the Clinic would not have incurred. The Minor testified that she would have opted for humane euthanasia.
56The Minor left the Clinic when she was told she was not allowed to take the cat home to consider her options. Dr. Claydon testified that she initially refused to return the cat to the Minor but, after speaking with police services, tried to contact the Minor and offer her an opportunity to take the cat home.
57The Minor testified that she did not return to the Clinic to pick up her cat because she did not receive Dr. Claydon’s message. At the hearing, she explained that she did not have voicemail set up on her phone. Given her quick response in returning Gallagher’s text on Friday, once she was finished school and permitted to use her phone, we accept her testimony that she did not receive the voicemail messages.
58We find that the costs of the emergency assessment, consult, and diagnostic tests that occurred on Thursday, September 8, 2022, were necessary for the veterinarian to determine the cat’s health status and provide advice concerning medical treatment. They are as follows:
Description
Price
Discount
Net Price
Emergency Exam & Consultation
129.50
Emergency Fee
121.70
Radiographs-Initial 2 Views
429.50
Blood Sample Collection and Evalu
54.00
19.29
34.71
Packed Cell Volume/Total Protein
39.50
8.59
30.91
Idexx Complete Blood Count-In H
109.50
21.72
87.78
Idexx Chem 17 – In House
159.50
40.63
118.87
Idexx Lytes (CI, K, Na, Na/K) – in H
73.63
8.60
64.03
Idexx SDMA – In House
41.00
9.30
31.70
Total
= 1,049.70
59We find that the medical treatments provided to the cat from September 9 to 13, 2022, were not reasonable. Specifically, the decision to treat the cat was unreasonable because of the high cost of treatment, the severity of the cat’s condition, the veterinarian’s recent advice to the Minor that humane euthanasia was an alternative, and the Clinic’s knowledge that the Minor could not afford to pay the medical costs.
Boarding costs as “Necessary”
60Section 1(1) of the Act defines “distress” as the state of being:
a. In need of proper care, water, food or shelter,
b. Injured, sick, in pain or suffering, or
c. Abused or subject to undue physical or psychological hardship.
61The boarding costs were incurred after the cat was discharged from the Clinic. Dr. Claydon’s opinion that the cat was in distress relates to the cat’s condition on Friday, September 9, 2022. From Dr. Claydon’s testimony and the Clinic’s notes, we understand that at the date of discharge from the Clinic, the urinary blockage had been cleared and the cat was urinating on his own. In other words, the symptoms that formed the basis of the veterinarian’s opinion that the cat was in distress on Friday, September 9, 2022, had resolved by the time the cat was discharged.
62Furthermore, Gallagher did not suggest in his testimony or his notes that there were concerns about the appellant’s ability to monitor the cat’s urination upon discharge. The Clinic’s notes suggests that the respondent planned to “work with” the “owner” to follow protocols.
63Even if, at the time of discharge, the cat required short-term monitoring, there was insufficient evidence before the Board that it was reasonable that the cat be boarded to provide this monitoring.
64We find that the respondent has not discharged their onus to show that the costs of boarding were reasonable in the circumstances.
Ability to Pay
65The appellant testified that he was unable to pay the full statement of account and submitted that the total financial liability be reduced as a result.
66He testified that he is employed installing countertops and he is financially responsible for the Minor, in addition to other family members. He testified that his monthly income hardly covers the monthly expenses (which includes a mortgage), and he has limited savings.
67The appellant testified that he is willing to agree to a payment plan with the respondent.
68In all the circumstances, we have not exercised our discretion to reduce the statement of account on the basis of the appellant’s inability to pay.
ORDER
69For all the reasons above, the Board varies the October 27, 2022 Statement of Account to $1,186.16 which is the $1,049.70 amount as particularized above in paragraph 53, plus applicable taxes.
Released: December 20, 2022
Ashley Deathe, Member
Paul Stopciati, Member