Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

Date: 2022-04-22

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

Samara Flaro Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Harriet Lewis, Member

Appearances: For the Appellant: Edmund Boeve, Counsel For the Respondent: Aisha Amode, Counsel

Held by videoconference: March 22, 2022

BACKGROUND

1On October 26, 2021, Animal Welfare Service (“AWS”) removed eleven dogs, (2 males, 6 females and 3 puppies), 1 domestic kitten and 1 rabbit from the premises of Samara Flaro (“Ms. Flaro” or “the appellant”). The removal was carried out “to alleviate the animals’ distress”, pursuant to section 31(1) of the Provincial Animal Welfare Services Act 2019 (“the Act”). Ms. Flaro appealed the removal and two statements of account for boarding, care and treatment of her animals. Those accounts, (“the first and second accounts”) covered the period from the removal on October 26 to November 19, 2021 and totalled $15,453.13.

2A hearing of the appeal was scheduled to begin on December 13, 2021. On November 24, 2021, the Chief Animal Welfare Inspector (“the Chief Inspector” or “respondent”) issued a notice of a Decision to Keep the Animals in Care (the “keep-in-care decision”) pursuant to sub-clause 31(6)(b)(I) of the Act. The appellant did not appeal that decision.

3The appeal of the removal and the first and second accounts began before me on December 13 and continued for three days, completing on December 15, 2021. The decision, released on January 24, 2022, Flaro v. Chief Animal Welfare inspector, 2022 ONACRB 5, “the Flaro decision”] confirmed both the removal order and the first and second accounts. Those accounts have not been paid.

4On January 31, 2022 the appellant was served with a further account in the amount of $34,687.56 for the boarding, care and veterinary treatment of the animals from November 20, 2021 through January 24, 2022 (“the third account”). She has appealed the third account, and this is the decision on that appeal.

5The appellant asks that the third account be varied or set aside on two grounds:

i. Because she has not appealed the keep-in-care decision her animals were forfeited at the end of the statutory appeal period.

ii. She has no ability to pay the account.

6The respondent maintains that the third account was for the provision of necessaries and is reasonable. The respondent acknowledges that an appellant’s inability to pay has been taken into consideration by this Board in an appeal of an account. However, it argues that even if that is the case, an account should only be varied or revoked in exceptional circumstances, and that those circumstances are not present in this case.

7At the Case Conference for this appeal, the parties agreed to a hearing with written submissions, followed by a video conference for cross-examination of the witnesses and closing arguments, and it was so ordered.

ISSUES TO BE DECIDED

8The issue to be decided by the Board is whether the third account should be confirmed, revoked or varied.

RESULT

9For the reasons which follow, I find that the third account should be varied to $6,240.

LAW

10Section 31(1) gives an animal welfare inspector the power to remove an animal in distress from a place for the “purposes of providing it with necessaries to relieve its distress”.

11Distress is defined in s. 1(1) as “a state of being (a) in need of proper care, water, food, or shelter; (b) injured, sick, in pain or suffering; or (c) abused or subject to undue physical or psychological hardship, privation or neglect.”

12Section 31(6)(a) and (b)(i) gives the Chief Inspector the power to decide to keep in its care, an animal that was removed for distress, if it is necessary to relieve the animals distress, or if the Chief Inspector has reasonable grounds to believe that an animal will be placed in distress if returned to its owner or custodian.

13When an animal is removed for distress or taken into the care of the Chief Inspector, the Chief 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.” (s.35(1)).

14Subject to a decision of this Board on an appeal, the owner or custodian is liable to pay an account respecting the cost of necessaries (s.35(3)). Subject to an agreement between the Chief Inspector and the owner or custodian, an animal is forfeited to the Crown if the owner doesn’t appeal the account within 5 business days of its service, and the account is not paid within a prescribed period of time after receiving it (s.35(4)(a)). That prescribed period for payment is 10 business days after the account is served.

15The Board has authority after a hearing to confirm, revoke or vary a statement of account (s.38(9)3), or to order that the whole or any part of the cost of the necessaries provided by the Chief Inspector to keep an animal in care be paid by the owner or custodian to the Minister of Finance (s.38(9)5). If the account is confirmed or varied, the appellant must pay the amount within 10 days of the date of the appeal decision or forfeit the animals.

16The respondent has the burden of showing that the costs itemized in an account have been incurred for necessaries to relieve an animal’s distress and are reasonable. The appellant bears the onus of convincing the Board that there are reasons why an account should be varied or revoked.

EVIDENCE AND ANALYSIS

17The parties each submitted written evidence and argument, called one witness for cross examination, and made oral submissions at the conclusion of the evidence.

18Senior Investigator Rene Baker (Ms. Baker) who testified for the respondent, had overseen the removal of the appellant’s animals. The respondent’s documents included Ms. Baker’s “will say” statement, a copy of the third account, a copy of a February 16, 2022 “invoice” from the Kingston Humane Society, (the “Kingston document”), and several printed pages of internet posts from 2019 and 2020, apparently concerning Ms. Flaro’s dogs and puppies.

19Ms. Baker’s “will say” gave a brief history of the removal of the appellant’s animals and reiterated the results of the removal appeal. It also confirmed the service on the appellant of the third account, and the receipt on February 16, 2022, of the Kingston document which she referred to as “a detailed breakdown of the costs incurred by the Kingston Humane Society in caring and providing medical care to the animals between November 20, 2021 to January 24, 2022”.That document appears to have been produced as evidence of the charges listed in the third account and itemizes 3 things. The first is a $40 per day fee for boarding 13 animals (11 dogs, a rabbit and something called “DMH dilute, FN 6M” which appears to be the appellant’s kitten), from November 20, 2021 through January 24, 2022 totalling $33,800. The second and third items are two medical procedures: one consisting of diagnostics and treatment for a lump on one of the dogs, ($690.07) and one for diagnostics and treatment of an ear infection in the kitten ($197.49), for a total of $887.56.

20Ms. Baker also referred to the materials reproduced from the internet. One of those was a posting on Yellowpages.ca from an unknown (and she admitted, untraceable) individual, alleging that the appellant had sold her/him “a puppy with broken bones from a bite” which required surgery.

The reasonableness of the account

21When asked about the details behind the $40 per day boarding fee reflected in the Kingston document, Ms. Baker stated that she assumed that the charge was for food and lodging and that the fee charged is the standard boarding fee charged by that not-for-profit facility. No other evidence was given with respect to the costs itemized in the Kingston document, a fact which causes concern to the Board. Given the onus on the respondent to justify the third account, a document delivered some 3 months after the third account and containing a mistake on its face, does not satisfactorily discharge the burden on the respondent to show its actual costs for boarding and medical care of the animals over the period of the third account.

22Some evidence of the costs actually incurred by the Chief Inspector for medical care should have been provided by an affidavit explaining the nature and necessity of the treatment, the date on which such treatment was provided, evidence that the amount being claimed is reasonable and that the account has been paid by the respondent. Other than identifying the animals and the series of treatments, no information was provided to indicate when the treatments were given and whether the full amount of the account had been paid by AWS.

23I have compared the charges on the Kingston document with the detailed listing of the animals and their condition in both the respondent’s written submission and the Flaro decision. I note an error: the Kingston document purports to charge boarding fees for 4 male dachshunds. The respondent’s written submission confirms that 1 male and 3 female dachshunds were removed from the appellant and taken into AWS custody. I also note that no date was given for the veterinarian treatments. While the error in listing the sex of the animals is not material, the fact that the Kingston document is inaccurate and incomplete is troubling in light of the onus being on the respondent to demonstrate the details of the charges it intends to pass on to the appellant. Supporting evidence should be routine in cases such as this.

24The appellant did not argue that the charges represented by the Kingston document were unreasonable, but in the absence of evidence about those charges, I find that charging the appellant for the amount shown on the Kingston account as a whole is unreasonable and unfair for the reasons that follow.

Inability to Pay

25There is compelling evidence that the appellant’s financial circumstances are such that she is unable to pay the account and will not be able to pay it for the foreseeable future if at all. The inability to pay as a ground for variance has now been established by the cases put before me in this hearing: Jackson v. Chief Animal Welfare Inspector, 2021 ONACRB 4, Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 3 (CANLIII), and Freeman v. Chief Animal Welfare Inspector, 2022 ONACRB 12,

26The appellant’s affidavit, her testimony and her counsel’s submission, all address her financial circumstances. In making its case the respondent has focussed on the fact that Ms. Flaro agreed in cross examination that she had sold some retriever puppies for $1,200 each. She estimated that while her income from the sales in 2021 was $7,000 she also maintained that she made little profit from the sales. Her submission is based on evidence that she is $114,617.83 in debt (net of the third account), and that the third account itself represents $148% of her annual income from the Ontario Disability Support Plan, (“ODSP”) which is now her only source of income.

27Exhibits appended to Ms. Flaro’s affidavit provide confirmation of her straitened financial circumstances as follows:

i. Her mortgage balance is approximately $72,000: Confirmed by the 2020 “Annual Mortgage Statement” for her premises from the RFA Bank of Canada.

ii. She receives $2,150 Monthly from the Ontario Disability Support Program: Confirmed by the “Statement of Assistance” and T5 from the Ontario Disability Support Program for November 2020 and 2021 respectively.

iii. In 2020 she received Government of Canada social assistance payments of $2,312: T5 attached.

iv. The 2021 realty tax on her home and premises was $1,542.31: Tax bill from the Township of Alnwick/Haldimand. The assessed value of her premises for tax purposes is shown on that bill as $121,000.

v. She owes $150.88 to the Government of Ontario pursuant to restitution orders: ARO collection invoice dated December 3, 2021 attached. No further explanation included.

vi. She has only partially paid a May 2021 account from the Northumberland Hills Hospital for radiology, a knee brace and crutches: Invoice attached.

vii. Her TD credit card statement due December 10, 2021, shows a high balance and monthly interest nearly equal to one quarter of her monthly income.

viii. She has a TD line of credit. Her statement for November 2021 shows a monthly interest obligation and remaining credit of less than two months of her income.

ix. She has not paid the Ministry of Finance the outstanding balance for the first and second AWS accounts totalling $15,456.13.

x. There was a small balance in her TD bank account at November 30, 2021, a third of which is her November ODSP benefit.

28The appellant also testified to some additional expenses such as additional food, hydro and vehicle insurance.

29It is clear from this evidence that the appellant has no funds with which to discharge the obligations she currently has or any others.

The accounts for necessaries are not intended to be used to punish

30In its written submission the respondent argues that “given the accountability and compensatory intent of the SOA scheme under s.35 of the Act, SOAs should be confirmed and should only be varied or revoked in exceptional circumstances … and even if Ms. Flaro’s ability to pay is considered, this is not such a case that the Board should exercise its discretion to revoke the SOA.” The submission reads “while it is not contested that Ms. Flaro is on social assistance, there is also established evidence that Ms. Flaro was carrying on the business of breeding and selling dogs and that she was essentially profiting from her mistreatment of the animals”. [Emphasis added]

31In making that statement, the respondent relies on Ms. Flaro’s admission that she had been breeding and selling dogs which was stated in paragraph 2 of the Flaro decision. That paragraph reads: “[t]he appellant admits to carrying on the business of breeding and selling dogs from the premises without a kennel licence”.

32The Flaro decision found that there was evidence that the animals had been inappropriately confined and not given enough or proper food or sufficient access to water resulting in health problems and distress. There was also evidence that on at least one occasion, the appellant struck one of her animals in anger. However, there was no finding that Ms. Flaro was “profiting from her mistreatment of the animals”, in the sense of not caring about them, except insofar as some of them were for sale. To the contrary, there was substantial evidence from one witness and five written character references that attested to Ms. Flaro’s knowledge about animals in general and her love for her animals in particular. Paragraph 82 of the Flaro decision reflects that evidence as follows:

I do not doubt that the appellant loves her animals. It is apparent however that she does not have the ability to care for them properly or the premises to either house so many as pets or to operate a breeding kennel. It is questionable as to whether her detailed attention to the food she has been providing is informed by knowledge of their real nutritional needs. There was little evidence that they have been receiving necessary or proper veterinary care post their puppy vaccinations. Crating of some of the dogs, while understandable in the circumstances of having so many and all being either intact males or females, in containers that are too small for the size and needs of the animals and has caused them both physical problems and, (in the case of the puppies), emotional distress. As a result, the animals have become in need of the care that their removal is providing.

33There was no finding in the Flaro decision that the appellant intended to “mistreat” her animals for profit or at all. Notwithstanding, the respondent’s submission appears to ask this Board to find that because the appellant was operating an un-licenced breeding operation, she was intentionally engaging in cruelty to her animals. Part VIII of the Act is designed to address issues such as licence status and cruelty to animals. Those allegations are not within the purview of this Board.

The animal’s forfeiture

34By the time of the hearing of this appeal, the animals had been forfeited by operation of the Act, either because of the appellant’s failure to pay the first and second accounts (confirmed by the Flaro decision), or by the appellant’s decision not to appeal the keep-in-care order.

35At the removal hearing, the previous counsel for the respondent made a preliminary argument that the appellant’s animals had already been forfeited to the Chief Inspector by the appellant having failed to file a separate appeal of the second statement of account as she had for the first. For the reasons noted in that decision, the appeal proceeded regardless.

36Counsel for the appellant argues that Ms. Flaro’s decision to not appeal the keep-in-care order resulted in the forfeiture of the animals 5 days after that order when the period set for filing an appeal expired, (i.e., on November 29, 2021). [I note that the Act specifies “five business days” after the order, which would, in this case, give the Chief Inspector ownership and control of the animals as of December 1, 2021, rather than November 29]. Ms. Flaro confirmed that she considered the animals to be forfeited as of that time. Counsel thus argues that the appellant should not be liable for costs beyond the date when her appeal right expired. On that basis he urges that if the third account is not revoked by the Board, it should be varied to reflect the time of the appellant’s forfeiture.

37I find that argument compelling both on its logic and for reasons of fairness given the appellant’s circumstances. Ms. Flaro appealed the removal order within the appropriate time as it was her right to do. It took all of November and half of December before her removal appeal was heard, and the remainder of December and most of January to render a decision on its merits. In the interim, on November 24, 2021, before the hearing of the removal appeal, the Chief Inspector took the extra step of taking the animals into custody and care to prevent their return. The appellant did not appeal that decision.

38I was not directed by the parties to any case law that addressed the issue of whether individuals can invoke the processes in the Act for requesting return of their animals notwithstanding the failure to appeal a keep-in-care order. The Act is not clear about an owner’s rights to return of animals if they do not appeal. What is clear in this case is that Ms. Flaro did not appeal, and it was reasonable for her to think that she had forfeited the animals by not doing so. Since she did not pay the first or second accounts, the animals would have been forfeited in any event.

The Board has discretion to vary an account

39While the Chief Inspector is given the authority to seek restitution from an animal owner or custodian for costs incurred for necessaries to relieve distress, the wording of s. 35(1) is clear that the issuing of accounts is discretionary, not mandatory. Section 35(5) provides that the accounts can be reduced and or the time for payment can be extended by the Chief Animal Welfare Inspector and s.38(2) allows statements of account to be appealed.

40It falls to this Board to decide to confirm, vary or revoke the third account. The Board has discretion as to which option to take. The Act does not provide grounds for the exercise of the three options and the decision is within the Board’s discretion. As noted above, the Board has determined that its discretion may be exercised by varying an account if the appellant has no ability to pay and/or if the respondent has not met the onus of proving that the expenses have actually been incurred, and are reasonable and for the purpose of providing necessaries.

41In this case, the appellant’s animals have been removed and now are forfeited. Necessaries were supplied while in care to relieve their distress. The first and second accounts for those necessaries were confirmed in the Flaro decision.

42The appellant’s financial information convinces me that she is unable to pay off her current obligations and is unlikely in the foreseeable future to be able to pay off the third account. Much of the obligation under the third account has arisen from the appellant’s exercise of her right of appeal and should the account be confirmed, it would be more like a penalty than a justifiable account for the cost of necessaries. For someone such as Ms. Flaro, with poor health, a disability, and so few resources, it would be particularly unjust to confirm the third account as it stands. I therefore find a variance based on the logic of the appellant’s argument to be a fair balance between the parties’ interests in this matter.

43I am varying the third account to allow boarding charges from the last date covered by the second account, until the expiry of the appeal period for the keep-in care order, that is for the 12 days from November 20 to December 1, 2021 inclusive. As the respondent has not met the onus of showing that the veterinarian services shown on the third account were provided to the animals prior to the expiry of the keep-in-care appeal period (and the likely forfeiture as of December 2, 2022), I am disallowing those charges and also varying the third account accordingly.

ORDER

44Pursuant to s. 38(9) of the Act, and for the reasons set out above, the Board orders as follows:

1. The Statement of Account of January 31, 2022 is varied to $6,240.00.