Appeal under sections 38(1) and 38(2) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c.13
Between:
Austin-Charles St-Jacques Appellant
and
Chief Animal Welfare Inspector Respondent
REASONS FOR DECISION AND ORDER
Adjudicator: Raymond Ramdayal, Member Animal Care Review Board
Appearances: For the Appellant: Austin-Charles St-Jacques (self-represented) For the Respondent: Michael Draper, Regional Supervisor
Heard by teleconference: November 25, 2021
BACKGROUND
1On or about October 5, 2021, a complaint was made to the Toronto Police Service about an individual abusing his dog while walking at Sugar Beach in the City of Toronto. Police attended the scene and the appellant was subsequently arrested on two charges related to abusing of his dog and the dog’s malnourished condition.
2Police contacted Animal Welfare Services (AWS) and issued a Notice of Removal (NOR) which was served to the appellant on the scene. The dog was then transported by police to a shelter where custody was transferred to the respondent. From there, the animal was taken to a veterinary hospital for urgent care and received boarding to cover the necessaries pertaining to food and shelter.
3Once the veterinary care was complete, a Statement of Account (SOA) was served on the appellant on October 12, 2021, for providing the dog with medical care and boarding for six days for the total amount of $1,820.76. This amount was later adjusted at the hearing to $1,402.53, as a result of a billing error.
4At this time, the dog remains in the care of AWS and is being housed in a shelter. The appellant appeals the SOA on this appeal.1
ISSUE
5The issue to be determined in this appeal is whether the SOA should be confirmed, varied or revoked.
RESULT
6For the reasons that follow, I confirm the Statement of Account of October 12, 2021, as it reflects services and necessaries for the animal. The appellant is required to pay the account in full.
LAW
7Section 31(1)(c) provides that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if, among other things, an order respecting the animal has been made under s. 30 of the Act and the order has not been complied with.
8Distress 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.”
9Section 38(1) provides a right of appeal of a decision for removal by an animal welfare inspector and s.38 (2) allows an appeal of a statement of account.
EVIDENCE AND ANALYSIS
Removal of the animal from the appellant’s custody
10On October 5, 2021, the appellant was arrested by police after they received a complaint that he was punching his dog and pulling on its ear. The police investigation confirmed the allegations and the appellant was charged and taken into custody. The appellant’s dog, Millie, was taken by Provincial Animal Welfare Services to Veterinary Emergency Clinic (VEC) in Toronto where she was seen by an attending emergency veterinarian. She was later transported to Mississauga Animal Services and then back to another urgent care centre (Mississauga-Oakville Animal Hospital) after she experienced worsening gastric symptoms including vomiting and diarrhea.
11An SOA was issued on October 12, 2021 in the amount of $1,820.76 for veterinary care provided to Millie at both hospitals, as well as for boarding. It is the respondent’s position that their intervention and course of action was necessary to safeguard and protect Millie and, hence, that the associated costs are reasonable.
12The appellant explained that he received the invoices for veterinary care and boarding. In his testimony, he stated that the bills appear reasonable for the care received. The treatment is clearly itemized on each of the invoices.
Veterinary costs and boarding fees
13It is the appellant’s position that the treatment for Millie was not necessary. While he was clear in stating that he does not necessarily dispute the amount of the vet bill, he contends that the itemized vet invoice shows that the medical issues treated were not the result of the animal being harmed.
14The appellant denies having struck his dog on the day of his arrest and notes that the medical evidence does not support that he did so. He further disputes that the medical care was provided as a result of his alleged actions.
15On cross examination, the appellant confirmed that he spoke with other veterinarians who advised that the charges for veterinary care to Millie were reasonable. For that reason, the appellant raised no concerns with the costs associated with veterinary medical care.
16During the hearing, the appellant began to dispute that the animal was not in distress and had to be reminded that the subject of the appeal, as confirmed by him, was related to the SOA and not the removal.
17During his testimony, the appellant did not dispute the fact that the dog was experiencing vomiting and diarrhea and stated that he agreed that treatment is warranted in those circumstances. It was clear to me that the appellant understood that his dog was ill. However, he feels that the treatment performed on the animal should have been focussed on the potential injury from the alleged abuse he purported on Millie. To that end, he feels there was none.
18During his testimony, the appellant stated that he does not believe that a boarding fee of $33.05 per day is reasonable. When probed on why he thought it was not reasonable, he stated that it was because the dog should not have been taken from him in the first place. I understand this to be not an opinion on cost but based rather on his continuing view that the dog was not in distress.
19Although it is not an issue to be determined at this hearing, I accept that Millie was in distress on the day she was removed and that officers and AWS took the necessary steps to alleviate it of that distress and sought professional medical treatment accordingly.
20The appellant’s acceptance of the vet fees confirms that he does not dispute the veterinary costs but only the boarding fees. He feels that the animal should not have been kept for as long as it did and, therefore, he should not be held responsible for all the costs associated with its boarding. The appellant acknowledged that boarding was necessary in light of the fact that the animal was in the care of AWS and required treatment for the immediate health conditions it was experiencing.
Witnesses (AWS staff)
21The respondent called several witnesses, including Ms. Brittany Eade, Senior Investigator with AWS. Ms. Eade recounted the facts and explained that she was working on the night of October 5, 2021 when a call was received from Toronto Police Service with a description of a dog that was being abused and appeared malnourished. The dog needed to be taken for veterinary care at VEC Toronto. The NOR was served by police at the scene of the incident at Sugar Beach.
22Millie was examined at VEC Toronto and was reported to be stable. The attending veterinarian administered anti-anxiety medication as a means of calming her very anxious state. She presented with a small superficial wound near her ear and overgrown nails. Veterinary reports were included as part of the respondent’s disclosure.
23Once Millie was released, she was taken to a boarding facility to recover. However, her gastric condition worsened, and she was taken back to an urgent care clinic for assessment.
24During cross examination, the appellant asked why Millie was take to VEC and not another, less expensive facility for examination. Ms. Eade explained that no other clinic was open at that time and they are also required to go to the closest institution capable of handling such emergencies.
25Ms. Eade stated that the decision to seek immediate care for Millie was also based on the observations of the police officer. Based on the testimony, I find that it was necessary to remove the animal in distress and take possession for the purposes of providing it with necessaries to relieve its distress, including medical treatment as required. The attending veterinarian administered anti-anxiety medication to Millie and performed a “clip and clean” procedure around the injured ear.
26The respondent’s next witness was Ms. Rachel Laughlin, an Animal Welfare Inspector with AWS. Ms. Laughlin recounted that she was working the following morning after the incident at Sugar Beach. She reviewed the file and the circumstances from the police incident that occurred overnight.
27Ms. Laughlin states that she was advised by the vet that Millie had a small incision on her ear, a nervous temperament, and that bone was found in her stool. Ms. Laughlin arrived at the VEC to pick up Millie and observed her to be timid. Millie was then transported to Mississauga Animal Services for further recovery.
28During the day, Millie continued to display symptoms of unwellness including gastric disturbance, vomiting and diarrhea. Her condition progressively became worse and her behavior grew more fearful and anxious. She also refused to eat anything.
29Millie was taken to another veterinary clinic, Mississauga-Oakville Veterinary Emergency Hospital, on October 6 as her condition had become concerning and her gastric symptoms had grown worse. She was given anti-nausea medication and monitored. Her condition improved and her vomiting subsided.
30There are two veterinary invoices for treatment provided from VEC at 920 Yonge Street in the amount of $526.18; and, the other from Mississauga-Oakville Veterinary Emergency Hospital at 2285 Bristol Circle in the amount of $1,096.28. There is also an invoice from Mississauga Animal Services for boarding fees.
31At the hearing, the respondent confirmed that the outstanding amount owing for the medical treatment and boarding (after error adjustment) was $1,402.53. The respondent further stated that the amount charged to the appellant for boarding fees was common for a medium dog Millie’s size.
Witnesses (veterinarians)
32The respondent also called Dr. Yu Qing Sun from VEC in Toronto as a witness. She confirmed that she conducted an examination of the dog when it first arrived on October 5, 2021. She stated that Millie was skittish and it was difficult to conduct a thorough exam given her level of anxiety. She also confirmed that the dog had a wound near her right ear and was experiencing diarrhea while at the clinic. She was unable to provide a medical opinion on whether Millie would have been experiencing the same diarrhea at home or if it was the result of the anxiety from that night.
33As previously stated, Millie was administered anti-anxiety medication and was prescribed antibiotics to help with the diarrhea. In her professional opinion, Dr. Sun stated with certainty that treatment for Millie was necessary given her condition.
34The appellant countered by stating that the reason for Millie’s anxious behaviour was because she was in unfamiliar surroundings and did not want to be touched. This is plausible; however, I find that regardless of the cause of the symptoms, they were sufficient to warrant medical intervention to relieve the animal of its discomfort and distress.
35The last witness called by the respondent was Dr. Meaghan Perkins-McVey from the Mississauga-Oakville Veterinary Emergency Hospital. Dr. Perkins-McVey examined Millie on October 6. She was observed to be anxious with a decreased appetite. Dr. Perkins-McVey described her body condition to be low or underweight. She was, however, alert and responsive. She presented as nervous and needed to be muzzled to protect staff from being bitten.
36During cross examination, the appellant asked Dr. Perkins-McVey whether she knew the cause of Millie’s diarrhea. The Doctor stated that there could be numerous reasons, including a foreign body obstruction, something ingested, food allergies, bacterial overload, or parasites. I do not accept the appellant’s argument that the respondent failed to prove, or ought to have proven, that the diarrhea was related to distress and removal of the animal. The appellant had chosen not to appeal the removal order and based on the evidence before me, the removal was necessary to remove the animal’s distress. I accept the evidence that the appellant’s actions led to the distress of his dog and find that the NOR was properly issued in accordance with the sections noted in paragraph [9].
37Dr. Perkins-McVey did not observe a cut near Millie’s ear but did state that her condition was one requiring emergency care since vomiting and diarrhea can cause dehydration.
Findings
38It is clear that extensive care was required in this case for Millie and that the hospital visits were necessary based on the animal’s symptoms and conditions. Based on the testimony, it would appear that the appellant also understands the need for veterinary care the night of the incident and in the following days.
39To that end, the appellant stated early on in his testimony that he believed the veterinary costs to be reasonable. He formulated this opinion after consulting with other veterinarians who he independently sought out and consulted. However, his main argument remains that he should not be held responsible for the boarding costs since none of the treatment was related to relieve the distress that he was charged with perpetrating on the animal on the night of Oct 5, 2021.
40To some extent, I accept the appellant’s argument that the veterinary care received may have been for pre-existing conditions that were not the result of the night he was charged with abusing Millie. However, that does not change the fact that the dog required immediate veterinary treatment that evening. This is the same treatment and care that the appellant stated he would have sought anyway during his testimony.
41The question that arises is whether the animal needed to be in the custody of AWS for this medical treatment to occur. Given the fact that the appellant was taken into custody that evening, AWS and/or Toronto Police Service would have a certain obligation to take over as the custodian of the animal. In addition, both agencies were satisfied that the animal was in some form of distress which needed to be addressed through urgent veterinary care.
42I do not accept the appellant’s position that it may not have been necessary for the animal to receive care. As a matter of fact, treatment from the veterinarians ultimately alleviated Millie’s symptoms and she began to do better until being discharged.
43I find that the time spent in boarding was necessary given the circumstances of this case and how Millie came into the custody of AWS. I am also satisfied that the amount charged for daily boarding and necessaries are not exorbitant but rather reflect what other agencies would charge for a medium dog the size of Millie.
44I accept the fact that the SOA amount was modified to a lesser amount due to a mistake in billing. This coupled with the fact that a discount was already applied demonstrates to me that the cost for boarding is reasonable, and perhaps even less that the general public would pay for similar treatment for similar dogs.
45After careful consideration, I accept the respondent’s recommendation that the Board uphold the statement of account.
ORDER
46For the reasons set out above, the Board confirms the Statement of Account in the amount of $1,402.53.
47Subject to an agreement with the Chief Inspector pursuant to s. 35(5) of the Act to reduce the account or to allow the appellant to pay in instalments, the appellant is required to make payment of the Statement of Account within 10 days of the date of this Order.
Released: January 17, 2022
Raymond C. Ramdayal, Member