RECONSIDERATION DECISION

Before: Jennifer Friedland

Date of Order: April 29, 2022

Tribunal File Number: 13751/ACRB

Case Name: Nataliya Ishankova v. Chief Animal Welfare Inspector

Written Submissions by:

For the Appellant: None received

For the Respondent: Kateryna Toderishena, Counsel

Overview

1On January 17, 2021 the Animal Care Review Board (the “Board”) released its decision in Nataliya Ishankova v. Chief Animal Welfare Inspector (the “Decision”).¹ The respondent, the Chief Animal Welfare Inspector, requests a reconsideration of that decision.

2The appellant, Nataliya Ishankova, was provided the opportunity to respond to the request for reconsideration but did not make any submissions. The respondent nonetheless submitted a reply.

3After reading the respondent’s submissions and reviewing the facts of the case and the Decision, the request for reconsideration is allowed in part as follows:

a) The member’s decision to vary the amount of the Statement of Account is confirmed; and

b) The member’s decision to order a payment schedule is set aside.

Background

4The facts of the case were not in dispute. According to the Decision, it was agreed that no witnesses would be called as the appellant admitted the facts contained in the respondent’s disclosure brief. Evidence was also admitted from the appellant pertaining to her financial circumstances. I have reviewed the materials that were before the hearing member as part of this reconsideration decision.

5The facts underlying this case can be summarized as follows:

6On November 24, 2022 a complaint was made to Animal Welfare Services (AWS) about a number of cats that were inside a U-Haul that had been parked “for a couple of days.” The AWS inspected and found 77 cats in the U-Haul. The appellant was present and consented to the search. The cats were observed to have no food and no litterboxes, and there was a strong smell of ammonia and feces. Many of the cats were wet. A remote connection was made to a veterinarian who authorized the removal of the cats to alleviate their distress pursuant to s. 31(1)(a) of the Provincial Animal Welfare Services Act, 2019 (the “Act”).² Three additional cats apparently belonging to the appellant were found elsewhere.

7All cats received medical attention and many required ongoing medical attention. The medical issues affecting the cats included upper respiratory infections, eye infections, flea infestations, internal parasites, muscle atrophy, neurological complications, severe ear mites, emaciation, dehydration, severe matting of the fur, and urine scalding. Once removed, a number of the cats were also discovered to have ringworm.

8The appellant was served with a Statement of Account on November 29, 2022 for $12,421.42. The Statement of Account was broken down into boarding costs of $25 per day per cat x 5 days for a total of $9,750; and veterinary costs specified as “Emergency Care” of $2,671.42.

9Being unable to pay the Statement of Account, the appellant appealed it. In her Notice of Appeal, she suggested having a select few cats returned which she could pay for. She was not otherwise seeking the return of her cats and did not appeal the removal order.

10The respondent served an updated Statement of Account prior to the hearing. The total amount of the updated Statement of Account considered on the appeal was $58,672.98 made up of $40,938.11 for boarding costs and $17,734.87 for veterinary bills.

11The appellant did not contest the amounts on the Statement of Account, nor the veterinary conclusion that the cats were in distress and required medical care. However, she did seek a variation of the accounts on the basis that she did not have the ability to pay them. She also acknowledged that she did not have the ability to pay for the future care of the cats.

12The appellant had been through a divorce and a flood. It was unclear how she came to have so many cats or how long the cats had been in the U-Haul, other than the inspector’s will say statement that they had been there for “a couple of days.” It was also unclear from the record whether the appellant was also living in the U-Haul at the time of the removal. The adjudicator did, however, conclude, that she faced a housing difficulty.

13The appellant also faced a language barrier. The member conducting the case conference prior to the hearing indicated that a Russian interpreter was required. This service was provided informally by her representative at the hearing.

14In the Decision, the adjudicator reviewed the appellant’s statements from the Ontario Disability Support Program (ODSP) showing a monthly payment of $1,169. Her net income in 2019 was $7,136.66. In 2020, it was $12,675.76.

15The appellant submitted that her ability to pay warranted a variation of the amounts owed.

16In its written final submissions at the hearing, the respondent submitted that ability to pay was irrelevant to determining if the Board should confirm, revoke, or vary a statement of account. The respondent submitted that the Board should be deciding the matter only based on the reasonableness of the necessaries provided to relieve the distress of the animals which in this case was not in dispute.

17The adjudicator summarized the respondent’s position at paragraph [18] of the decision as being that:

[The respondent] cannot be responsible for absorbing costs of this nature. There were significant health concerns for the cats. [The respondent] did not seek to punish the appellant, and the Statement of Account represents the cost of care for the cats while under AWS care at the shelter. In [the respondent’s] submission, the wellness of the animals is to be considered on a plain reading of the act and capacity to pay is not found as a criterion to consider under s. 39 of the Act. According to the AWS, the legislative intent of the Act is therefore to prevent neglect and cruelty and to provide a framework for accountability through removal of animals and accounts to relieve distress. The AWS submits that accounts should only be varied where distress was not demonstrated.

18The adjudicator concluded:

20I find that while the Act does not specifically state how the ability to pay is to be considered, it does not specifically bar it from being considered. The power accorded to the Board is to confirm, revoke or vary a Statement of Account. I find that this power has to be applied with a view to the legislative intent but also to the case-specific elements of the case.

21The most important consideration in this case is the distress experienced by the cats. This was not contested, and the evidence showed that it was serious and affected many animals. Thus, it would not be appropriate to revoke the Statement of Account entirely.

22Secondly, in considering the appellant’s circumstances, I find that she has accepted the harm done, has shown that she does receive a very limited income through ODSP payments and has demonstrated difficulties in navigating this situation. Her willingness to pay something was clear at the hearing, but her inability to pay everything was also clear.

23Thus, I find that the Appellant cannot satisfy the Statement of Account, even if she was given a substantial amount of time to pay. I vary the Statement of Account to ensure that the appellant contributes to the alleviation of the animals’ distress that were under her care and control. I vary the Statement of Account to $150 dollars a month for one year.

Request for Reconsideration

19The criteria for granting reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017, amended February 7, 2019) (the “Rules”). A request for reconsideration will not be granted unless one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;

c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

20Pursuant to Rule 18.4, upon reconsidering a decision of the Tribunal, the Tribunal may:

a) Dismiss the request; or

b) After providing responding parties an opportunity to make submissions:

i. Confirm, vary, or cancel the decision or order; or

ii. Order a rehearing on all or part of the matter.

Respondent’s Position

21The basis for the respondent’s request for reconsideration is two-fold.

a) The respondent submits that the Board does not have jurisdiction to vary the timeline for payment, submitting that the Act and O. Reg. 447/19 already prescribe a payment timeline of 10 days; and

b) The respondent submits that the Board acted outside of its jurisdiction and erred in law by considering the owner’s ability to pay as a relevant consideration. The respondent submits that ability to pay “is an irrelevant consideration that undermines the purposes and the scheme of the PAWS Act.”³

22The respondent submits that a different result would have ensued had the Board not committed the above alleged errors. It requests that the original Statement of Account be confirmed, with the timeline for payment as already set out in the Regulation.

Statutory Context

23The power to serve a statement of account is found in s. 35 of the Act which states:

Liability of owner or custodian for expenses

35 (1) 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.

Statement of account

(2) The statement of account must have printed or written on it the content of subsections 38 (2) and (5).

Obligation to pay

(3) An owner or custodian who receives a statement of account under subsection (1) is, subject to an order made under subsection 38 (9), liable for the amount specified in the statement.

Forfeiture on failure to pay account

(4) Subject to any agreement made under subsection (5), the animal is forfeited to the Crown if,

(a) the owner or custodian does not appeal the statement of account in accordance with subsection 38 (2) and fails to pay the stated amount within a prescribed period of time after receiving the statement of account; or

(b) the owner or custodian appealed the statement of account in accordance with subsection 38 (2) but failed to pay the confirmed or varied amount within a prescribed period of time after the Board provided notice of its decision.

Agreements

(5) Before the expiry of the relevant time period set out in clause (4) (a) or (b), the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both.

24The right to appeal a Statement of Account is set out in s. 38(2) of the Act which, together with s. 3 of O. Reg. 447/19, allows an owner to apply to the Board in writing to appeal the statement of account within 5-business days of being served with the SOA.

25Section 38(5) requires a notice to the Board to set out the remedy or action sought and the reasons for the appeal or application.

26Sections 38(6) and (7) together require the Board to fix a date for a hearing on an expedited basis which shall not be more than ten business days after receipt of a notice of appeal or application.

27On appeal, the Board has the powers provided to it under s. 38(9) of the Act which states:

Powers of Board

(9) After a hearing, the Board may do one or more of the following:

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

2. 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.

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

4. 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.

5. 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.

28With respect to forfeiture on failure to pay a Statement of Account, the prescribed period of time within which an owner or custodian must pay the amount stated on the account or varied or confirmed following an appeal to avoid forfeiture of the animals is 10-business days. This is set out in s. 1 of O. Reg. 447/19 as follows:

Forfeiture on failure to pay account

1. (1) For the purposes of clause 35 (4) (a) of the Act, 10 business days is the prescribed period of time within which the owner or custodian must pay the stated amount.

(2) For the purposes of clause 35 (4) (b) of the Act, 10 business days is the prescribed period of time within which the owner or custodian must pay the confirmed or varied amount.

ANALYSIS

29It is unclear from the Decision, whether the respondent made submissions on the Board’s jurisdiction to vary a Statement of Account based on ability to pay at the hearing, although the Decision does reflect some of the respondent’s arguments relating to statutory context that I will review below.

30With respect to whether the Board has jurisdiction to order a timeline for payment of account, there is no indication from the Decision that submissions were made before the Board on this issue at all, nor does the Decision reflect any analysis of whether the Board has such jurisdiction.

31While the purpose of a reconsideration is not to give an unsuccessful party a second opportunity to argue its case, the legal and jurisdictional issues raised by the respondent on this reconsideration arise regularly in cases before the Board and, in my view, warrant a thorough analysis. Moreover, Rule 18.4(b)(i) provides the Board the authority on a reconsideration to vary the Decision without ordering a rehearing of the matter.

32The Board’s ability to interpret its own statutory authority on a reconsideration was also recently considered by the Divisional Court in Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board and Chief Animal Welfare Inspector v. Jerica Gowland and the Animal Review Board ⁴ – two cases in which the respondent had applied for judicial review of the Board’s decision to reduce a Statement of Account to zero. In those matters, the Divisional Court declined to decide the issue raised by the respondent on the basis that the respondent had not requested a reconsideration of those decisions before seeking judicial review.⁵ The Court found that the reconsideration process was an adequate alternative remedy, saying:

37… the Board ought to be permitted the opportunity to interpret its home statute. …

44The Board is more than capable to deal with the issue of the varying of the statements of account in the two cases. The Board has the expertise to do so, and it would be a more economical use of judicial resources if these matters were first resolved there.

45These matters should go back to the Board for reconsideration.

33In consideration of the Divisional Court’s direction and pursuant to my authority set out in Rule 18.4(b)(i) I will therefore consider both issues raised by the respondent on this reconsideration to determine the appropriate result.⁶

Whether it is a legal error or outside the Board’s jurisdiction to consider an owner’s ability to pay

34As a starting point, based on a plain reading of the statute, I find that the Board has jurisdiction to vary a statement of account based on ability to pay.

35The Act provides in s. 38(9)3 that on an appeal of a Statement of Account, the Board may “confirm, revoke, or vary” the account and nothing in the Act limits the factors that the Board may consider in determining the correct result in any particular case.

36The member deciding this case similarly concluded that:

… while the Act does not specifically state how the ability to pay is to be considered, it does not specifically bar it from being considered. The power accorded to the Board is to confirm, revoke or vary a Statement of Account. I find that this power has to be applied with a view to the legislative intent but also to the case-specific elements of the case.⁷

Respondent’s submissions on ability to pay

37The respondent takes the position that ability to pay is an irrelevant consideration.⁸

38The respondent cites Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 108; and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at para. 15 for the proposition that the Board’s decisions must comply “with the rationale and purview of the statutory scheme under which it is adopted” and that an exercise of discretion “must accord with the purposes for which it was given.”⁹

39The respondent then submits that:

The legislative intent of the PAWS Act is to prevent animal neglect and cruelty and to ensure that animals are cared for responsibly with appropriate treatment and care. The PAWS Act provides a framework of accountability for owners who mistreat, abuse, or neglect their pets. This accountability is achieved through forfeiture of animals and the requirement for negligent owners to pay reasonable SOAs when government intervention is required to ensure proper care and to relieve distress.¹⁰

40The respondent further submits that the rationale of the SOA provisions of the Act “is to compensate the Chief Animal Welfare Inspector for reasonable expenses incurred in caring for the animals in distress and to promote accountability.”¹¹

41It submits that “the role of the Board’s in reviewing the SOA is to ensure that the costs are reasonable, accurate, and necessary.” It submits that the Board’s role “is not to make collections decisions on the behalf of the government or to serve as a debt management forum for the owners.”¹²

42The respondent notes that the “real cost” of relieving the distress of the appellant’s cats in this case “is not altered by her ability to pay it” and further that the Act already stipulates what happens if a person cannot pay the statement of account, namely forfeiture under s. 35(4).¹³

43The respondent submits that forfeiture “is a logical and consistent outcome where the owner is unwilling or unable to remedy the animal’s distress. This outcome achieves the Act’s purposes of promoting accountability and ensuring animal welfare.”¹⁴

44The respondent concludes its written request for reconsideration by submitting that:

The Board’s decision is contrary to and undermines the governing statutory scheme.

First, it undermines the accountability objective of the Act by allowing Ms. Ishankova to avoid paying the actual and reasonable costs of relieving the acute distress caused to 80 cats by her neglect.

Second, the decision undermines the animal welfare objective of the Act by allowing Ms. Ishankova to maintain ownership of the cats that she, by her own admission, cannot afford to care for.

As a result of the decision, the animals cannot be rehomed or adopted out because they still belong to Ms. Ishankova. The animals are now stuck in shelters indefinitely. AWS has to continue spending taxpayer dollars on caring for the cats on Ms. Ishankova’s behalf, indefinitely.

Lastly, an SOA is not a fine or a penalty that can be reduced based on the offender’s mitigating or aggravating circumstances, such as their financial circumstances. It is a real cost incurred by the government to care for the animal and to relieve its distress caused by the owner’s neglect or mistreatment. If the owner is unable or unwilling to pay for costs of providing the animals with basic necessaries, they lose their ownership rights through forfeiture. This is the intended effect of the Act that meets its purposes.

[The] Board’s jurisdiction stems entirely from the operating statute. Reducing a reasonable SOA to a fraction of the real cost and improperly extending statutory timelines for payment, is contrary to the Act and its purposes, and is therefore outside of the Board’s jurisdiction¹⁵.

Analysis - the intent and purpose of the Act

45The Act is relatively new legislation which does not state a purpose or an object.

46While I agree with the respondent’s general premise – that the purpose of the Act is to promote accountability and ensure animal welfare – these are two separate purposes that emerge from a review of the Act as a whole. It is a leap to suggest that these are the only two purposes of the Act and that these two purposes together must be read into every provision of the Act.

47This is plain from the face of the Act which has specific provisions that provide for accountability – namely the Offences and Penalties provisions set out in Part VIII of the Act. These provisions create minor and major offences, the latter of which include penalties for the offence of causing or permitting an animal to be in distress. The penalty for a person found guilty of such an offence can be significant: For a first offence, the person is liable to a fine of up to $130,000 and up to one year in prison, or both. For a second or subsequent offence, the person is liable to a fine of up to $260,000, two years in prison, or to both.¹⁶

48Thus, to the extent that the Act “provides a framework of accountability for owners who mistreat, abuse, or neglect their pets” as the respondent contends, that framework is found in the offence provisions of the Act.

49The Statement of Account provisions, on the other hand, are found in Part V of the Act under the heading “Protection of Animals.”

50The protection of animals sometimes requires an AWS inspector to remove an animal from where it is in order to provide it with necessaries to relieve its distress as permitted under s. 31 of the Act.

51The authority to then serve a statement of account for those necessaries pursuant to s. 35(1) of the Act is discretionary. The respondent may serve a statement of account. It is not required to serve a Statement of Account in every instance.

52Even when it does serve a statement of account, the respondent has the authority, pursuant to s. 35(5), to reduce the amount owing or to extend the time for paying or both.

53On its face, therefore, the Act contemplates that necessaries can be provided for animals in distress without the owner having to be held accountable for the whole of those costs or any of them.

54In circumstances where – as in this case – the AWS does seek to hold that owner accountable by serving a Statement of Account, the owner has a right to appeal that account to the Board.

55The liability of an owner for the costs of a Statement of Account, however, is not absolute. Pursuant to s. 35(3) of the Act, it is subject to an order of the Board under s. 38(9) of the Act following an appeal. Under that provision, the Board has the authority to confirm, vary, or revoke the account.

56The respondent seeks to limit the factors the Board can consider in determining the appropriate result in any particular case by insisting that the statement of account is part of a “framework of accountability for owners who mistreat, abuse, or neglect their pets.” In that framework, according to the respondent, “negligent” owners are required “to pay reasonable SOAs when government intervention is required to ensure proper care and to relieve distress.” In the respondent’s submissions, if an owner is unwilling or unable to do so, they forfeit their animal.

57In my view, the respondent’s starting premise is too narrow. The legislative intent of the Act is not necessarily to “prevent animal neglect and cruelty and to ensure that animals are cared for responsibly with appropriate treatment and care.” Sometimes it is simply to protect an animal at a particular moment in time for reasons that have nothing to do with cruelty or neglect.

58For example, in a recent case that was appealed to the Board a gentleman owned a cat, suffered a stroke and was taken by ambulance to the hospital. The man notified the authorities that his cat remained alone in his apartment. The AWS removed the cat and served the owner with a statement of account for boarding. Meanwhile the owner had communicated to the AWS that he was remaining in hospital and would need to surrender his pet. On the face of this appeal, it is difficult to see how the removal of this animal was because of the owner’s abuse, mistreatment, or neglect.¹⁷

59A recent decision of the Board further illustrates why the respondent’s “framework of accountability” is inapplicable in every case.

60In Hernandez Alcantara v. Chief Animal Welfare Inspector,¹⁸ the appellant was a single mother on ODSP with two children. Their family cat broke its leg through no fault of the appellant’s. She took the cat to a vet, paid $500 as a deposit and tried to raise additional funds for the surgery. Ultimately she could not obtain those funds so the vet called the AWS who removed the cat and authorized the surgery. When the surgery was complete, the AWS did not return the animal to the appellant, but instead kept it in boarding until serving a statement of account about a month later for a combined total for veterinary costs and boarding of $6,612.11.

61The appellant appealed the Statement of Account seeking the return of the cat and a reduction of the amount owing or a payment plan. The AWS has the authority to reduce the amount of the Statement of Account or extend the time for paying or both pursuant to s. 35(5) of the Act but took the position that the full amount should be paid or the cat should be forfeited. The AWS took this position while acknowledging that, upon forfeiture, it would surrender the cat to a shelter and would not recoup any of its costs.¹⁹

62The Member reduced the Statement of Account to zero, stating at paragraph 53:

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

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

63As the above case illustrates, issues relating to mistreatment, abuse, and neglect do not arise in all cases. ²⁰ Therefore, the respondent’s narrow “framework of accountability” is untenable.

64The statutory scheme is not only one of accountability and the statement of account provisions do not – on their face – stipulate otherwise. While liability for the amounts incurred may be the starting point of the provisions, it is not the end point. A person’s liability to pay a Statement of Account is subject to an order of this Board on appeal and nothing in the Act limits the factors the Board is able to consider in determining the correct result in any particular case.

65Moreover, the Act on its face, provides the AWS with discretion to not serve a Statement of Account. The Act on its face, further provides the AWS the discretion to reduce an amount of a Statement of Account pursuant to s. 35(5) of the Act. If the purpose of the Act and, by extension, the Statement of Account provisions, were, without exception, to hold “negligent” owners accountable, as the respondent contends, there would be no reason to provide such discretion. The issuing of a Statement of Account would be mandatory in every case.

66There being plainly on the face of the Act no basis to apply such a narrow “framework of accountability” to every case, there can equally be no basis to conclude that an appellant’s ability to pay is an “irrelevant factor” in every case such that the Board acts outside its jurisdiction if it considers that factor. The statute imposes no such limitations on what the Board may consider in deciding whether to confirm, vary, or revoke a Statement of Account.

67For the above reasons, I reject the respondent’s contention that the Board’s only role on appeal is to “review” a Statement of Account “to ensure that the costs are reasonable, accurate, and necessary.”

68I further reject the respondent’s contention that varying an account based on an owner’s ability to pay is contrary to and undermines the governing statutory scheme. The Act provides the AWS the discretion to do exactly that.

69The AWS may choose to fetter its own discretion because it has decided that every case reflects a legislative intent to hold an owner accountable for cruelty, abuse, negligence, and mistreatment. It may further pursue a Statement of Account regardless of whether it is reasonable or cost-effective to do so. But the Board would be shirking its duties if it simply rubber stamped such decisions without inquiry. The Board ought to, and has the authority to take a more principled, fact specific, approach to each case.

70I use the Alcantara as an example because if the respondent’s position regarding Statements of Account and the appellant’s ability to pay in this reconsideration were correct, it must prevail in that case as well as in the case before me and in all other such cases before this Board. However, Alcantara makes clear that ability to pay can justifiably be an important, if not determinative, factor in certain cases. On a plain reading of the Act, I find that it is within the Board’s jurisdiction to consider the ability of pay as a factor.

71Having concluded that the Board does have jurisdiction to vary an account based on ability to pay, it is unnecessary for me to consider whether in this particular case that factor ought to have been determinative of the outcome. The respondent does not take issue with the weight afforded this factor. Rather, it contends that the Board lacks the jurisdiction to have considered that factor at all. For the reasons given above, I disagree.

72Therefore, I find that no legal error was made by the hearing adjudicator in varying the Statement of Account based on the appellant’s ability to pay, nor did the Board act outside its jurisdiction in doing so. This aspect of the Decision is confirmed.

Whether the Board has jurisdiction to order a timeline for payment

73The adjudicator in in this case varied the Statement of Account based on ability to pay and allowed the appellant to pay the varied amount in 12 equal installments.

74The respondent notes that while s. 38(9) clause 3 allows the Board to vary a statement of account, O. Reg. 447/19 provides that the timeline to pay the confirmed “or varied amount” is 10-business days. In the respondent’s submission, this suggests that only the amount of the account can be varied, and that the timeline for payment cannot be so varied given that it is provided for in the Regulation. The respondent submits that the only authority to vary the timeline is by agreement in writing between the Chief Animal Welfare Inspector and the owner or custodian served with the Statement of Account, as set out in s. 35(5) of the Act.

75The respondent further submits that there is a rationale for not allowing a payment schedule, stating:

Once the animal is forfeited it can be rehomed or adopted out so that no more taxpayer dollars are spent to care for the neglected animal on behalf of a negligent or abusive owner who placed the animal in distress.

The decision of the Board undermines the intent and the statutory scheme of the PAWS Act. The decision creates an absurd scenario, where AWS is now required to continue caring for Ms. Ishankova’s 80 cats for the duration of the 12 months payment period and beyond. There is no prospect of the cats ever being returned to Ms. Ishankova since she herself admitted that she cannot care for them. Under the Act the animals cannot be returned into the conditions of distress. Yet, the Board effectively permitted Ms. Ishankova to maintain the ownership and to prevent any rehoming or adoption of the animals. This was not the effect contemplated by the Act.²¹

76The respondent suggests that part of what makes a payment plan “absurd” is the fact that the animals were not expected to be returned to the appellant. The respondent was therefore relying on the forfeiture provisions to stop the costs from continuing to accrue and to facilitate the surrender and adoption of the animals. It submits that a payment plan prevented this from happening.

77With respect, the absurdity complained of above arose in this case long before the matter was decided following the hearing. The appellant made clear in her Notice of Appeal that she was not seeking the return of all of her animals. Rather, she thought she might retrieve some of them and pay for those. However, for reasons not addressed at the hearing, this outcome was not pursued, even following the case conference where it was again raised as the appellant’s position, according to the Case Conference Order and Report dated December 10, 2021.

78Given the appellant’s position, it is unclear why the respondent would not have pursued voluntary forfeiture or surrender of the animals long before the matter even got to a hearing. Not having done so, the Statement of Account that was $12,671.42 five days after the removal became $58,672.98 by the time of the appeal and those costs clearly would continue to mount while the parties awaited the Decision. Indeed, according to the respondent’s submissions in reply, it served a further Statement of Account on the appellant on February 9, 2022 by which time costs had now mounted to $215,607.58.²² The absurdity of this scenario did not arise because the member ordered a payment plan.

79Nonetheless, I agree with the respondent that on a plain reading of the statute, ordering a payment plan is not an option available to the Board.

80The respondent points to Aucoin v. Chief Animal Welfare Inspector, 2021 ONACRB 9, in which the member wrote:

31…While s.38(9) gives this Board the power to confirm, revoke or vary a Statement of Account served under s. 35(1), I do not find that the PAWS Act gives authority to this Board to alter the payment provisions by extending time or allowing for installments, and I therefore decline to do so.

81In Alcantara, the member similarly concluded that she did not have the authority to order a payment plan. Other cases have made a similar finding.

82While the Board is not bound by its previous decisions, I find these decisions persuasive and consistent with a plain reading of the statute, such that the Board only has authority to vary the amount of a statement of account and not to vary the time for payment which is a prescribed period of time set out in the regulations and not open to the Board to adjust.

83Therefore, the payment schedule as set out in the Decision is set aside. The varied amount of the Statement of Account is payable within 10-days of the release of this order or the animals will be forfeited.

Conclusion

84I find that the Board has the jurisdiction to order the remedies available to it under the Act when a Statement of Account is appealed. This includes varying an account based on ability to pay where the circumstances may warrant it.

85For the reasons given above, I find that varying a Statement of Account based on ability to pay is consistent with the legislative intent and purpose of the Act which includes the protection of animals and is not simply a framework of accountability for owners who have neglected, abused, or mistreated their animals. Even with respect to owners where such facts are proven, on a plain reading of the Act the Board is not limited in the factors it may consider in deciding whether to confirm, vary or revoke a statement of account.

86Therefore, it is not a legal error for the hearing Member to have varied the Statement of Account based on the appellant’s ability to pay in this case. This aspect of the Decision is confirmed.

87With respect to the Board’s authority to order a payment plan, I find that the Board does not have the jurisdiction to make such an order. This aspect of the Order is therefore set aside.

ORDER

88The respondent’s request for reconsideration is allowed in part:

a) The Member’s order varying the amount of the Statement of Account from $58, 672.98 to $1,800 is confirmed.

b) The member’s order setting out a payment plan is set aside.

Released: April 29, 2022

______________________________

Jennifer Friedland, Acting Vice Chair

Footnotes

1. 12022 ONACRB 3.
2. 2S.O. 2019, c. 13.
3. 3Respondent’s submissions, paras 3-4.
4. 42022 ONSC 872 (“Jackson and Gowland”).
5. 5At the time of the respondent’s reconsideration request, the decision in Jackson and Gowland had not been released, a fact noted by the respondent at para 43 of its submissions. It was subsequently released on February 7, 2022.
6. 6The Divisional Court has also confirmed that a reconsideration under the Board’s Rules (which are shared with the Licence Appeal Tribunal) can be undertaken without deference to the original decision. The Board is permitted, without deference, to set aside an error of law but also a finding of fact if the alteration would likely have caused the Tribunal to come to a different result and on that basis to vary a decision, set it aside or order a rehearing. See Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, at paras 7 and 8, and Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.), at para 68.
7. 7Decision, para 20.
8. 8Respondent’s submissions, para 34.
9. 9Ibid., paras 29-30.
10. 10Ibid., para 31.
11. 11Ibid., para 32.
12. 12Ibid., para 33.
13. 13Ibid., para 34.
14. 14Ibid., para 35.
15. 15Ibid., paras 37-42.
16. 16Section 49(4) of the Act.
17. 17This case settled and is unreported, though the appeal is a matter of public record and a Case Conference Order and Report was issued on December 16, 2021. The case name is Shanoha v. Chief Animal Welfare Inspector, 2021 ONACRB 13745.
18. 182022 ONACRB 10 (“Alcantara”).
19. 19See Alcantara paras 26 and 48. Note that under s. 15(2) the predecessor legislation – the Ontario Society for the Prevention of Cruelty to Animals (repealed January 1, 2020) – the Society was specifically empowered to sell an animal and to reimburse itself from the proceeds for an unpaid SOA, holding the remainder in trust for the owner or other entitled person. Under the PAWS Act, as the respondent confirmed to the member in in Alcantara, there is no provision for sale of an animal and the AWS does not attempt to recoup its costs through forfeiture.
20. 20Notably, the respondent did not seek reconsideration of Alcantara and the timeline for doing so has now passed.
21. 21Respondent’s Submissions, paras 25-26.
22. 22Respondent’s Reply Submissions, para 2.