Animal Care Review Board
Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.
Between:
Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde, and Cody Pryde
Appellants
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Lindsay Lake, Vice-Chair
Appearances:
For the Appellant: Eric Gillespie, Counsel; John May, Counsel; Yasmeen Peer, Counsel; Natasha Papulkas, Counsel; Sarah Quildon, Legal Assistant
For the Respondent: Kateryna Toderishena, Counsel; Jason Kirsh, Counsel
Court Reporters: Lindsay Bevan; Barbara Pollard
Heard by videoconference: February 7, 8, 16, 17, 2022; March 3, 7, 9, 10, 11, 21-25, 29, 30, 2022; April 4, 5, 6, 8, 2022
OVERVIEW
1Windrift Adventures Inc. is a dog sledding and horse-riding business that operates out of two locations in Ontario – 5753 Line 8 N, Oro-Medonte (Moonstone) and 2401 Telford Line, Severn (Severn). Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde, and Cody Pryde,1 the appellants, all own dogs that were living at the two properties.
2Following an inspection on September 23, 2021, all of the dogs from both properties were removed pursuant to s. 31(1) of the Provincial Animal Welfare Services Act, 2019 (Act).2 On September 30, 2021, the Chief Animal Welfare Inspector, the respondent, subsequently decided to keep all of the dogs in its care pursuant to s.31(6) of the Act.
3Both the removal and the decision to keep in care were appealed to the Animal Care Review Board (Board). In Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector,3 I found, amongst other things, that ordering the return of all but eleven puppies to the appellants would be returning them to a situation of distress such that they could only be returned after the appellants complied with my order regarding the dogs’ tethers and the dog houses.4
4The respondent then issued a Statement of Account dated January 18, 2022 to the appellants in the amount of $1,114,720.27 (Statement of Account) in relation to approximately 111 dogs of various breeds, age, and sex removed from the Severn location, and approximately 118 dogs of various breeds, age, and sex removed from the Moonstone location.
5On January 24, 2022, the appellants filed an appeal of the Statement of Account to the Board. A hearing in this matter was commenced before the Board on February 7, 2022 and concluded on April 8, 2022.
ISSUE IN DISPUTE
6The sole issue in dispute in this matter is whether the Statement of Account should be confirmed, revoked, or varied.
RESULT
7The Statement of Account is varied as follows:
Transportation Costs: $Nil
Boarding Costs: $505,760.00
Veterinary Costs: $Nil
Total Costs: $505,760.00
ANALYSIS
8Under s. 35(1) of the Act,5 the respondent may, from time to time, serve on the owner or custodian of an animal a statement of account if an animal welfare inspector (AWI) has provided an animal with necessaries to relieve distress and/or if the respondent has taken an animal into the respondent’s care. The statement of account is in respect of the costs of the necessaries provided and the owner or custodian is presumptively liable for the amount specified in the statement of account pursuant to s. 35(3).
9An owner or custodian of an animal may appeal a statement of account to the Board.6 After a hearing, the Board may confirm, revoke, or vary a statement of account.7 An 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.8
Onus of Proof
10At the outset, the parties did not agree whether the onus is on the appellants or the respondent to prove that the Statement of Account should be confirmed, revoked, or varied.
11The appellants’ position is that while the ultimate onus rests with them, the respondent has an initial evidentiary burden to first prove the Statement of Account before the onus shifts to the appellants. To support their position, the appellants relied on the Board’s decision of Freeman v. Chief Animal Welfare Inspector (Freeman).9 In Freeman, the Board held:
With respect to the SOAs, the respondent is required to show that the charges reflect the actual cost of necessaries provided to alleviate the distress of the animals and that the care provided is reasonable. Once the respondent meets its evidentiary burden, the onus will shift to the appellant to show…that the orders should be varied or revoked, and on what basis.10
12In making its determination, the Board in Freeman followed the Ontario Superior Court of Justice decision of Ontario Society for the Prevention of Cruelty to Animals v. Straub (Straub).11 In Freeman, the Board compared the previous provision of the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA Act)12 that addressed statement of accounts to the current sections of the Act and found that the provisions were similar, noting that the court in Straub held:
Although s.15(1) provides that the owner or custodian is liable for the amount specified in the plaintiff’s statement of account, it does not relieve the plaintiff of the obligation to act reasonably and to justify the charges included in its account. Those charges must reflect the actual cost of caring for the animals and the care provided must be reasonable.13
13In Freeman, the Board found no basis to distinguish between the liability of an owner to pay damages for an unpaid statement of account, as was the issue in Straub, and the respondent having to produce evidence to justify the statement of account that it was asking to be confirmed.14
14The respondent disagreed that it bears any onus regarding the Statement of Account. The respondent submitted that this is the appellants’ appeal and, as such, they bear the entire onus as the moving party. The respondent submitted that this approach is consistent with the legislature’s use of the word “appeal” in the Act which suggests that “normal procedures” apply.
15To support its position, the respondent first relied upon the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov (Vavilov).15 The respondent submitted that any such initial preliminary burden upon it would go against Vavilov, in which the court stated:
More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217.16
16The respondent also relied upon the Board’s decision in Shekhurdina v. Chief Animal Welfare Inspector (Shekhurdina).17 In Shekhurdina, the Board held that the appellant in that matter had the onus to show that the statement of account should be varied.18
17The respondent also submitted that Straub, followed by the Board in Freeman, was distinguishable. In Straub, the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) was the moving party and, according to the respondent, correctly had the burden in that matter. Thus, the respondent submitted that the reasoning in Straub does not apply in this matter where the moving party is the appellants.
18I find that the respondent’s position that the onus of proof is solely on the appellants untenable. In this matter, the Statement of Account was three pages in length. No invoices were attached to substantiate the amounts set out on the Statement of Account and no details were provided as to what the amounts were for aside from very broad categories (i.e., transportation costs, boarding costs, and veterinarian costs). When I asked the respondent how the appellants would know how the amounts claimed on the Statement of Account were established, the respondent stated that the appellants would know the case that they have to meet through the disclosure process. While this submission is certainly not evidence, it did indicate to me that the only time detailed information would be provided to the appellants was after they initiated their appeal. The respondent submitted that such information may be provided if requested from the respondent outside of the appeal process but, again, these submissions are not evidence.
19In any event, several times during the hearing witnesses called to testify on behalf of the respondent identified certain amounts that were included on the Statement of Account that should not have been.19 Even in closing submissions upon my inquiry as to the total transportation amount listed on the Statement of Account, the respondent stated that at least one invoice included in the total transportation amount had neither been addressed at the hearing nor included in its Book of Documents of Boarding and Miscellaneous Invoices.20
20The respondent’s concession in closing submissions after a 20-day hearing that it had not presented all of the evidence to support the transportation costs claimed on the Statement of Account is illustrative of the very issue. If I were to accept the respondent’s position that it has no preliminary evidentiary burden, it remains unclear to me how the appellants would be able to prove, for example, that the one invoice supporting a portion of the transportation amount which was not entered into evidence at the hearing by the respondent should be varied or revoked. In essence, if I were to accept the respondent’s position, the appellants would be liable for this unsubstantiated amount simply by the act of it being included in the amounts on the Statement of Account without anything further from the respondent.
21I also find that imposing an initial evidentiary burden on the respondent would not conflict with the decision in Vavilov. The excerpt relied upon by the respondent in Vavilov pertains to determining the standard of review that applies when a court reviews the merits of an administrative decision, not regarding which party bears the onus in an administrative hearing. It is also not clear from the decision in Shekhurdina, which was also relied upon by the respondent, whether the issue of which party bears the onus was raised given that the only party who appeared for the proceeding was the respondent.
22I do acknowledge the respondent’s position that the OSPCA commenced the proceeding in Straub, but this does not change the court’s statement that the charges on the statement of account in that matter must reflect the actual costs of caring for the animals and that the care provided must be reasonable. I am persuaded by and adopt the Board’s decision in Freeman and find that there is no significant difference between s. 35(1) of the Act and s. 15(1) of the OSPCA Act that would justify a departure from the requirement of evidence regarding a statement of account as required by the court in Straub.
23For all of these reasons, I agree with the appellants and the Board’s decision in Freeman that the respondent has an initial evidentiary burden to prove on a balance of probabilities that the charges reflected on the Statement of Account reflect the actual cost of necessaries provided and that these costs are reasonable such that the Statement of Account should be confirmed. Only once the respondent meets its evidentiary burden will the onus shift to the appellants to prove that the Statement of Account should be varied or revoked on a balance of probabilities.
The Statement of Account
24The total amount of the Statement of Account that was served on the appellants in this matter was $1,114,720.27. The relevant excerpts of the Statement of Account are as follows:
An Animal Welfare inspector has provided necessaries to: approximately 111 dogs of various breeds, age, and sex removed from 2401 Telford Line, Severn [and] approximately 118 dogs of various breeds, age, and sex removed from 5753 Line 8, Oro-Medonte to relieve the distress of the animal(s) as described below:
Transportation Costs: $20,296.00
Boarding Costs: $969,986.59
Veterinary Costs: $124,437.68
Animal Care Costs:
Miscellaneous Costs:
Total Costs: $1,111,720.27
25On March 17, 2022, Ms. Toderishena, co-counsel for the respondent, provided the following amended amounts for the Statement of Account:
Transportation Costs: $19,166.00
Boarding Costs: $881,776.59
Veterinary Costs: $121,725.77
Total Costs: $1,022,688.36
26The respondent requested that the Board confirm the Statement of Account in the amount of $1,022,688.36. The appellants submitted that the Statement of Account should be varied to $Nil.
27For the reasons that follow, the Statement of Account is varied as follows:
Transportation Costs: $Nil
Boarding Costs: $505,760.00
Veterinary Costs: $Nil
Total Costs: $505,760.00
a) Transportation Costs
28Four invoices for transportation amounts were entered as evidence during the hearing, the particulars of which are as follows:
| Invoice Date | Invoicing Company | Invoice Amount |
|---|---|---|
| September 27, 2021 | Luckhart Transport Ltd. | $12,260.50 |
| September 29, 2021 | Shawn & Wendy Mack | $4,666.90 |
| November 1, 2021 | North Bay and District Humane Society | $1,211.60 |
| November 10, 2021 | Luckhart Transport Ltd. | $1,130.00 |
| Total: | $19,269.0021 |
29The respondent advised that the November 10, 2021 invoice from Luckhart Transport Ltd. (Luckhart) should not be included in the Statement of Account. As a result, the total amount of the invoices before me regarding transportation is $18,139.00.
30For the reasons that follow, I find that the respondent failed to prove on a balance of probabilities that the amount of $20,296.00 or the amended amount of $19,166.00 for transportation costs on the Statement of Account represents the costs of necessaries such that either of the total transportation amounts should be confirmed. As a result, I vary the transportation amount on the Statement of Account to $Nil.
31If I am wrong and transportation are “necessaries,” I still find in the alternative that the transportation amounts included on the Statement of Account are varied to $Nil because:
(i) The care provided to the dogs during transport by Luckhart fell below the prescribed standards of care in Ontario; and
(ii) The respondent has failed to prove on a balance of probabilities that the remaining transportation amounts are reasonable such that they should be confirmed.
i) Transportation Amounts for the Removal are not Necessaries
32The three invoices for transportation dated September 27, 2021, September 29, 2021, and November 1, 2021 pertain to the removal of the dogs on September 23, 2021 from the Severn and Moonstone properties.
33The respondent submitted the Superior Court of Justice decision of Pryor v. OSPCA (Pryor)22 where the court found that trucking expenses for the removal of animals was not recoverable against the animal owners.23 The court held:
To begin with, the applicable provisions of the [OSPCA] Act differentiate between removal, on the one hand, and food, care and treatment on the other. For example, in section 14(1), removal is authorized for the purpose of providing the animal with food, care or treatment. Accordingly, the section contemplates that the provision of food, care or treatment follows removal. Section 14(1.2) allows a justice of the peace or provincial judge to make an order for payment of food, care or treatment to an animal pursuant to its removal, indicating again that the [OSPCA] Act regards removal and food, care or treatment as separate events. Section 17(6)(d) makes this same differentiation using these same words. In addition, the imposition of statutory liability should generally be clear and unequivocal. Indeed, it would have been an easy matter to provide specifically that an owner is liable for the costs of removal of animals. The failure to do so supports my view that costs of removal are not recoverable and are not to be included as costs of food, treatment or care. Accordingly, I would disallow the claim for removal costs.24
34The respondent’s position was that Pryor did not apply in this matter because the legislature had expanded the types of costs that are recoverable by way of a statement of account in the Act by using the word “necessaries” instead of the former language of “food, care or treatment.”
35“Necessaries” is not defined in the Act. The respondent, however, submitted that the definition of “necessaries” as set out in the Black’s Law Dictionary (11th ed. 2019) should be the one that is adopted by the Board which is as follows:
necessaries (14c) 1. Things that are indispensable to living <an infant's necessaries include food, shelter, and clothing>. • Necessaries include whatever food, medicine, clothing, shelter, and personal services are usu. considered reasonably essential for the preservation and enjoyment of life, to the extent that a person having a duty of protection must furnish them. — Also termed necessities; necessities of life. 2. Things that are essential to maintaining the lifestyle to which one is accustomed <a multimillionaire's necessaries may include a chauffeured limousine and a private chef>. • The term includes whatever is reasonably needed for subsistence, health, comfort, and education, considering the person's age, station in life, and medical condition, but it excludes (1) anything purely ornamental, (2) anything solely for pleasure, (3) what the person is already supplied with, (4) anything that concerns someone's estate or business as opposed to personal needs, and (5) borrowed money.
36Even if I agreed with the respondent and adopted any one of the definitions of “necessaries” as set out in the Black’s Law Dictionary and applied it to this matter, the explanation provided in Pryor as to why transportation amounts are not recoverable by way of a statement of account is not affected. For instance, the Act, similar to the OSPCA Act, differentiates between removal and necessaries. Section 31(1) of the Act uses the same wording as s. 14(1) of the OSPCA Act – i.e., that removal is authorized for “the purpose of” providing the animal with necessaries. Therefore, s. 31(1) of the Act contemplates that the provision of necessaries follows removal as was the case with s. 14(1) of the OSPCA Act.
37Section s. 38(9)5. of the Act also uses the same phrasing as its predecessor legislation and allows the Board to order that the whole or any part of the cost of the respondent of providing necessaries to an animal “pursuant to its removal,” which, like the OSPCA Act, indicates that the legislature via the Act views removal and necessaries as separate events.
38I endorse the Court’s statement in Pryor that it would have been an easy matter for the legislature to explicitly state that an owner or custodian is presumptively liable for costs of removal of animals, including costs for transportation, or included in the definition of “necessaries” transportation costs especially in light of the legislation being updated since the decision in Pryor was released. In this matter, as in Pryor, the failure of the legislature to do so supports a finding that transportation amounts for the removal of the dogs is not recoverable against the appellants because they are not “necessaries.”
ii) The September 27, 2021 Luckhart Invoice and Prescribed Standards of Care
39Even if I am wrong and the transportation amounts are “necessaries,” I agree with the appellants’ submission that the transportation amounts from Luckhart are not payable because the transportation provided by Luckhart fell far below the prescribed standards of care for animals in Ontario.
40Regional Supervisor Munoz testified that on September 23, 2021, 233 dogs were removed from the Severn and Moonstone properties following an inspection at the two locations by AWS on the same date. Regional Supervisor Munoz was only present at the Moonstone property and, therefore, only had first-hand knowledge of the events that occurred at that location. Similar to Straub, no witnesses with firsthand knowledge to the events that occurred regarding transportation from Severn on September 23, 2021 were called to testify at the hearing.25
41Regional Supervisor Munoz testified that once it was determined that the dogs were going to be removed, the dogs were provided with an identification number for trucking purposes and then taken to a registration station at the Moonstone property where they were logged and photographed. All but three dogs26 were put into black-wire crates and loaded into a truck and trailer used to transport livestock species that was operated by Luckhart. Regional Supervisor Munoz initially testified that when the dogs were loaded into the truck that they were “secured for transport.”
42After the dogs were loaded into the Luckhart truck at the Moonstone property, Regional Supervisor Munoz testified that they were taken to a rented space at the Toronto International Centre where they were unloaded, triaged, and provided access to water. The dogs were then reloaded into crates and then loaded back into vehicles for transport to boarding facilities.
43In cross-examination, Regional Supervisor Munoz testified that the removal of the dogs at the Moonstone property began at 1:40 p.m. on September 23, 2021 and that when she arrived at the triage location at 8:25 p.m., the Luckhart truck from the Moonstone property was not fully unloaded. Regional Supervisor Munoz could not provide a time when the removal of the dogs began at the Severn property and could also not provide a time when the truck transporting animals from Severn arrived at the Toronto International Centre only stating that it “arrived shortly after her.”
44Regional Supervisor Munoz could also not provide any information as to when the dogs started to leave the triage location to be transported to the boarding facilities. The only detail that she was able to provide was that at 2:32 a.m. on September 24, 2021, the last vehicle left the Toronto International Centre to transport the last load of dogs. No evidence was provided as to when any of the dogs arrived at any of the boarding facilities which were located all across Ontario.
45In cross-examination, Regional Supervisor Munoz confirmed that no water was provided to the dogs while they were in the Luckhart truck, she had no information on when the dogs had last received food prior to their removal as she deemed this information as not important, and that there was no way for any of the dogs to relieve themselves once loaded in the truck aside from doing so in their crates that were not lined with any absorbent material. Her testimony that the crates were cleaned at the triage centre so that the dogs were “not in their excrement at any time” leads me to conclude that at least some of the dogs had relieved themselves in their crates while held in the Luckhart truck.
46Additionally in cross-examination, Regional Supervisor Munoz contradicted her earlier testimony that the crates were “secured for transport” when she confirmed that the crates were in fact not tied down or otherwise secured to the bed of the Luckhart truck. I also do not accept Regional Supervisor Munoz’s testimony that “there was no need to” have the crates tied down because they were loaded in a manner that was “quite tight” such that “they could not slide anywhere.” Regional Supervisor Munoz’s testimony is contradicted by a photo that was taken of the dogs loaded in the Luckhart truck at the Moonstone property right before the doors on the Luckhart truck were closed. This photo shows that crates were stacked on top of each other with a large vacant space on the second row.27 Such void could easily allow the crates on the second row to shift in transport. I also do not accept Regional Supervisor Munoz’s testimony that “no crates shifted throughout transport” because she was not at the triage facility when the truck from the Moonstone property arrived to make such an observation.
47Section 3 of O. Reg. 444/19, “Standards of Care and Administrative Requirements,” requires every animal in Ontario to be provided with adequate and appropriate food, water, and sanitary conditions, and that every animal be transported in a manner that ensures its physical safety and general welfare.
48I find it alarming that Regional Supervisor Munoz, who arrived at the Moonstone property “early in the morning” on September 23, 2021, did not deem it important to know when the dogs were last fed (which was 2:00 p.m. on September 22, 2021 according to Ms. Adrienne Spottiswood’s evidence) and provided no evidence as to when the dogs actually received any food at the boarding facilities.
49The evidence that I do have before me indicates that the dogs that were loaded first at the Moonstone property were put on the Luckhart truck at approximately 1:40 p.m. and still were not unloaded by 8:25 p.m. This is almost 7 hours without access to water and a washroom break. Regional Supervisor Munoz’s testimony that the crates were cleaned at the triage centre also leads me to conclude that the dogs were not provided with sanitary conditions during transport and no material, such as straw, was provided for absorption when an animal relieved themselves in their crates. Indeed, the dog identified as S-28 was reported to have been urine soaked28 as well as S-98 having bad diarrhea in its crate29 when they were triaged.
50Further, while Regional Supervisor Munoz initially testified that the Luckhart trucks, which were generally used to transport livestock, were cleaned, and disinfected when they arrived on site at both properties (despite only being present at the Moonstone property), she later provided testimony the trucks had been removed of shavings and had no remnants of animal excrement – she only assumed that the trucks had been disinfected.
51Most significantly, Regional Supervisor Munoz testified that taking the entirety of the situation into account, she had no concerns with how AWS handled the removal of the dogs from the two properties and the level of care provided to the dogs during this process, which included the subsequent events until the animals reached their final destinations. She did, however, agree that such level of care of animals would not be acceptable on a day-to-day basis.
52O. Reg. 444/19 does not exempt AWS from the prescribed standards of care or state that AWS does not need to provide standards of care when animals are removed. There is simply no qualification provided in the regulation and, as submitted by the respondent in its closing submissions, laws are not suggestions.
53As Regional Supervisor Munoz conceded that the care provided by AWS to the dogs during the removal was not acceptable on a day-to-day basis, it follows that the transportation amounts invoiced by Luckhart transportation costs are not reasonable and are not recoverable as against the appellants.
iii) North Bay and District Humane Society November 1, 2021 Invoice
54The November 1, 2021 invoice from North Bay and District Humane Society included mileage and costs for staff to drive the North Bay and District Humane Society’s truck and trailer to transport the removed dogs from the triage centre back to its location.
55Regional Supervisor Munoz testified that the North Bay and District Humane Society offered to assist with the transportation of animals and, had it not, AWS would have had to provide a trailer to take certain animals to North Bay. Regional Supervisor Munoz also testified that if AWS provides transportation services, no fee would be included on the Statement of Account for such services.
56Therefore, I find that the respondent has failed to prove that the amount charged by the North Bay and District Humane Society for $1,221.60 for transportation is reasonable given that the AWS could have provided the service at no cost. Simply because a cost was incurred for AWS’s convenience does not equate to reasonableness such that it is recoverable against the appellants.
iv) The Shawn and Wendy Mack September 29, 2021 Invoice
57I also find that the respondent failed to prove on a balance of probabilities that the September 29, 2021 invoice from Shawn and Wendy Mack in the amount of $4,666.90 is reasonable and, therefore, it is not recoverable as against the appellants.
58Regional Supervisor Munoz testified that Shawn and Wendy Mack supplied two trucks and trailers that were waiting at the Triage location to transport animals from the Triage to their boarding facilities. The invoice shows that 15 hours were charged for the first truck and trailer and 14.5 hours for the second truck and trailer. Regional Supervisor Munoz, however, did not provide a breakdown as to how much of the invoiced time was for transporting the dogs as opposed to “waiting” at the Triage location. No information was provided as to how many dogs were transported by Shawn and Wendy Mack or where they were transported to.
59In addition to failing to provide sufficient particulars to support the amount of the Shawn and Wendy Mack invoice, I also find that these costs are not reasonable based on Regional Supervisor Munoz’s testimony that had AWS transported the dogs to the boarding facilities that this service would have been provided at no cost. Again, simply because a cost was incurred for AWS’s convenience does not equate to reasonableness such that it is recoverable against the appellants.
b) Boarding
60The largest portion of the Statement of Account is for boarding in the amount of $969,986.59, which was later reduced by the respondent to $881,776.59.
61For the reasons that follow, I vary the boarding costs on the Statement of Account to $505,760.00.
i) Daily Fees
62Similar to Straub,30 the respondent called no witnesses with firsthand knowledge as to the daily boarding fees.
63Regional Supervisor Munoz was the only witness that testified to the kennel invoices. She testified that the invoices included charges that each boarding facility charged per day for each animal and that these daily amounts were determined by each facility. When asked why the facilities charged different daily rates, Regional Supervisor Munoz stated that she could only speculate as to why, suggesting that the daily rates were all “somewhat within reason of each other.” Regional Supervisor Munoz also testified that, to her knowledge, the rates charged to the respondent were the same rates charged to the public noting, without specific details, that some facilities elected to charge the respondent a lesser rate than what the public would pay.
64I do not agree that the daily rates charged by the kennels were “somewhat within reason of each other” as suggested by Regional Supervisor Munoz. The daily rates charged by the kennels varied from $20.00 per day per dog at Animal Care Centre Lobo31 to $55.00 per day per dog at the Kennel Club Boarding.32 Daily boarding amounts that are more than double other facilities’ daily rates are not “within reason of each other.” Moreover, the appellants led evidence that the respondent was being charged more than the posted public rate at Shadowbrook Kennels,33 a discrepancy that Regional Supervisor Munoz could not explain.
65Additionally, no evidence was led by the respondent as to what the daily amounts invoiced for boarding actually included. The closest evidence to this was Regional Supervisor Munoz’s testimony that since the dogs were removed, they have received care at the kennels including grooming, food, potable water, indoor and outdoor housing, access to outdoors to relieve themselves, exercise, socialization, enrichment, run time, and play time. Regional Supervisor Munoz, however, also testified that she had no information when AWS had last inspected any of the kennels that dogs were boarded at and provided no evidence as to when, or if, she had ever attended at any of the locations.
66Additionally, several, but not all, kennels invoiced separate amounts in addition to daily boarding rates for grooming,34 food,35 collars,36 blankets, toys, and bones.37 Country Paws Boarding Inc. also charged a separate rate to provide “one-on-one” time for one of the dogs boarded at that facility.38 The respondent failed to provide an explanation to substantiate why only some of the kennels invoiced for such services and items over and above the daily boarding rates invoiced while other did not.
67The respondent is aware that the costs it incurs for boarding animals is, pursuant to the Act, presumptively payable by owners or custodians of animals. If the Board finds that such amounts are not recoverable against owners or custodians, the amounts are ultimately paid by the taxpayers of Ontario. Therefore, it is incumbent upon the respondent to act responsibly when approving costs and invoices, and not simply provide free range for service providers, such as kennels, to charge whatever fee they see fit for services.
68As such, I agree with the appellants that AWS failed to act responsibly in this matter by failing to:
(i) Negotiate daily boarding rates and discounts for multiple dogs or for the length of stay. This includes:
(a) Failing to negotiate a lower daily rate or request any rate reduction at any of the facilities before the dogs were boarded despite AWS informing the kennels in advance that it was likely that the dogs would be boarded for some period of time; and
(b) Failing to negotiate a lower daily rate as of the hearing given that the dogs had been boarded at that time for several months;
(ii) Investigate whether different types of “suites” were available that may have had a lower daily fee. For example, Regional Supervisor Munoz did not know if there were any other types of suites available at Winter Hill Canine Cottage which may have had a lower daily fee than “Deluxe Suites;”39
(iii) Investigate whether two dogs could be boarded together in one suite to reduce boarding fees. Regional Supervisor Munoz testified that this was not done because AWS did not know the individual dogs, their personalities, and which dogs would do well kenneled together. As of the date of the hearing, however, Regional Supervisor Munoz confirmed that AWS has not consulted with the appellants at all since the dogs were removed which could have been a way to obtain such information; and
(iv) Investigate whether there were any outdoor locations that could board the dogs, given Regional Supervisor Munoz’s acknowledgement that the dogs removed were outdoor dogs. Taking further steps could have included exploring, for example, whether another sled dog business or a farm could have assisted with boarding.
69Nevertheless, more is required from the appellants than bald attacks on the practices of AWS to establish that amounts included on a statement of account are unreasonable. For example, evidence could have been called to demonstrate what a farm, outdoor kennel, or another sled dog company would have charged to board the dogs. No such evidence was before me.
70Additionally, while the appellants relied upon the decision in Freeman to support their position that the Statement of Account, including daily boarding fees, should be varied to $Nil because there is no evidence to substantiate the amounts on the Statement of Account, Freeman is distinguishable on this issue. In Freeman, the respondent failed to submit any invoices to substantiate the boarding amounts included on the statement of account.40 Here, the respondent, at a minimum, has provided invoices regarding the daily boarding amounts.
71I accept that it is reasonable that the respondent would incur fees to kennel the dogs once removed from the two properties. On the evidence before me, I find that the $20.00 per day per dog that was charged by Animal Care Centre Lobo is the most reasonable daily rate as the respondent failed to provide any evidence to substantiate the varying daily boarding rates of the kennels located all across Ontario. Applying the $20.00 per day boarding amount without any additional fees for grooming, food, etc., to 218 dogs (229 dogs listed on the Statement of Account less the 11 dogs that have died or been euthanized as of the end of this hearing) and multiply this by the 3 months and 24 days that the dogs have been kept in the care to the date of the Statement of Account (116 days total), the daily boarding fees total $505,760.00.
ii) Transportation Costs Listed on the Boarding Invoices
72There were also various amounts invoiced by the kennels for pick-up and drop-off services and transportation of dogs as follows:
| Kennel/Facility41 | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| Kennel Club Boarding | October 31, 2021 | Pick up or Drop Off Service | $150.00 |
| Kennel Club Boarding | October 31, 2021 | Pick up or Drop Off Service | $100.00 |
| Kennel Club Boarding | November 30, 2021 | Pick up or Drop Off Service | $90.00 |
| Oakville & Milton Humane Society | December 22, 2021 | Mileage to Mississauga Oakville Emergency Hospital | $35.40 |
| Rainbow District Animal Services | October 27, 2021 | Transport S-12 to WAH42 September 30th for emergency treatment 26.5 km X 2 X 0.53/km 2 hours @ $30.00 per hour |
$87.98 |
| Rainbow District Animal Services | December 3, 2021 | Transport of S-16 November 19th to Grey Street for surgery 76.9km X 2 X $0.53/km 2 hours @ $30.00 per hour |
$141.51 |
| Transport of S-45 to WAH November 22nd for examination 26.4km X 2 X $0.53/km 1 hour @ $30.00 per hour |
$57.98 | ||
| Rainbow District Animal Services | January 7, 2022 | Transport S-42 to WAH December 22nd for examination 26.4km X 2 X $0.53/km 1 hour @ $30.00 per hour |
$57.98 |
| Pick up of S-42 December 23 26.4km X 2 X $0.53/km 1 hour @ $30.00 per hour |
$57.98 | ||
| Transport of S-42 to WAH December 27th for blood work 26.4km X 2 X $0.53/km 1 hour @ $30.00 per hour |
$57.98 | ||
| Wenrick Kennels Inc. | October 27, 2021 | Transportation to Weldon Animal Hospital (WAH) for emergency treatment | $87.98 |
| Wenrick Kennels Inc. | December 3, 2021 | Transportation for surgery to Grey Street | $141.50 |
| Transportation to WAH for examination | $57.98 | ||
| Wenrick Kennels Inc. | January 7, 2022 | Transportation to WAH for examination | $57.98 |
| Pick-up from WAH | $57.98 | ||
| Transportation to WAH for examination | $57.98 | ||
| TOTAL | $1,298.21 |
73I find that the transportation costs set out above in paragraph [72] are not reasonable. In addition to the reasons set out above in paragraphs [32] to [38] that transportation amounts are not “necessaries” and, therefore, are not recoverable as against the appellants, Regional Supervisor Munoz testified that the transportation amounts set out in paragraph [72] were as a result of the boarding facility providing transportation for treatment and returning the dogs to the kennel. Regional Supervisor Munoz further testified that these transportation services were provided by the kennels when an AWS inspector may not have been available to provide transportation to take a dog to an appointment. Regional Supervisor Munoz, however, confirmed that there would be no amounts claimed on the Statement of Account had AWS provided transportation for the dogs rather than having the kennels provide such service.
74Absent more specific evidence about why AWS could not provide transportation services, especially for veterinary services booked well in advance, I find that it is not reasonable that the appellants bear the burden of fees invoiced as a result of convenience for AWS.
iii) Amounts for Assisting Veterinarians on the Boarding Invoices
75The invoices reflect various amounts for assistance provided to veterinarians at the kennels including:
| Kennel/Facility | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| Animal Care Centre Lobo | December 23, 2021 | Two persons providing vet assistance at Countryside Kennel for 6 hours including transportation/drive time | $406.80 |
| Country Paws Boarding Inc. | January 12, 2022 | Additional 2 staff assisting with vet care for 4 hours | $140.00 |
| Rainbow District Animal Services | October 27, 2021 | Assist with vet visit to Animal Shelter October 3, 2021 2 hours @ $30.00 per hour |
$60.00 |
| Wenrick Kennels Inc. | October 27, 2021 | Assist with vet visit to Animal Shelter October 3, 2021 | $60.00 |
| TOTAL | $666.80 |
76I find that the respondent failed to prove on a balance of probabilities that these amounts were reasonable and, as a result, they are not recoverable as against the appellants for the following reasons:
(i) Regional Supervisor Munoz did not speak to the $406.80 amount on the Animal Care Centre Lobo invoice including why two persons from Animal Care Centre Lobo were required to travel to Countryside Kennel to provide assistance as opposed to having staff at Countryside Kennel provide assistance especially when the amount invoiced includes travel time;
(ii) Aside from reading the January 12, 2022 invoice from Country Paws Boarding Inc. into the record, Regional Supervisor Munoz provided no information as to when or why these services were provided;
(iii) Similarly, Regional Supervisor Munoz read from the October 27, 2021 invoice from Rainbow District Animal Services regarding the assistance provided to a veterinarian only adding that AWS had a veterinarian attend the boarding facility to make it easier to examine the animals and this $60.00 amount was related to this visit; and
(iv) While Regional Supervisor Munoz testified that the amount invoiced by Wenrick Kennels Inc. on the October 27, 2021 invoice for providing assistance to a veterinarian on October 3, 2021 at the shelter, the only information that she provided in addition to the information set out on the invoice was that the veterinarian would come to the facility to make it easier to examine the animals and these charges were associated with it. No information was provided by Regional Supervisor Munoz as to which veterinarian came to the facility, why they required assistance, and what assistance was provided by the kennel staff.
iv) Vaccine and Medicine Administration Amounts on the Boarding Invoices
77The boarding invoices also reflect certain amounts for vaccines and medicine administration including:
| Kennel/Facility43 | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| Brooklin Kennel | December 13, 2021 | AWS – DHPP 1 Year Vaccine X 8 | $248.00 |
| North Bay and District Humane Society | November 1, 2021 | Vaccines | $200.00 |
| Prednisolone Eye Drops for M-17 | $38.08 | ||
| TOTAL | $486.08 |
78Regional Supervisor Munoz testified that amount for vaccines on the December 13, 2021 invoice from Brooklin Kennel were for booster vaccines for each of the dogs at the kennel. She also testified that she believed that the amount for vaccines included on the November 1, 2021 invoice from North Bay and District Humane Society were for booster vaccines because there were given three to four weeks “later,” and that the eye drops would have been prescribed by a veterinarian and staff at the kennel would administer them in accordance with the directions on the prescription.
79I find that these amounts are not reasonable such that they are recoverable as against the appellants. In addition to my comments in paragraphs [89] to [93] below regarding amounts for vaccines, it is not clear what these vaccines are for and I place no weight on Regional Supervisor Munoz’s testimony that they are booster shots. If they were booster shots, why were some given in November and others almost six weeks later in December? Should they not have been given at the same time? Further, are these fees for the actual vaccine or for administration of the vaccines? Who is administering the vaccines? These questions all went unanswered at the hearing.
80Additionally, there is no evidence before me what the eye drops for M-17 were for and if this amount was for the eye drops, or administration of the eye drops – it is simply not clear on the evidence before me.
v) Intake/After-Hours Drop-off Amounts
81I find that any amounts that appear on the kennel invoices for intake or after-hours drop off when the dogs arrived at their location to not be recoverable as against the appellants. AWS’ inability to transport the dogs to kennels during normal operating hours is not a necessary.
vi) Country Paws Boarding Inc.
82Country Paws Boarding Inc. included various other amounts on their invoices as follows:
| Invoice Date | Service Description | Amount Invoiced |
|---|---|---|
| November 3, 2021 | Product items for Mom and new pups, heat lamp, pee pads | $255.45 |
| December 1, 2021 | One-on-one time for Honey for Depression and Lethargy – some improvement seen (S-110) | $209.79 |
| December 7, 2021 | Pee pads | $251.68 |
| December 17, 2021 | Greenie Pill pockets | $13.99 |
| December 31, 2021 | Additional Charges – Security for 5 nights | $875.00 |
| January 11, 2022 | Additional staffing for extra medications administration and care of dogs who underwent surgery | $250.00 |
| January 25, 2022 | Additional Charges for cleaning and extra care for dogs | $500.00 |
| TOTAL | $2,355.91 |
83I find that none of the charges invoiced by Country Paws Boarding Inc. are recoverable against the appellants for the following reasons:
(i) Regional Supervisor Munoz testified that the heat lamp could be optional and, therefore, it is not a necessity;
(ii) The only explanation for the one-on-one time for S-110 provided by Regional Supervisor Munoz was that this dog seemed depressed in her kennel so the staff spent additional time with her to ease her comfort in the kennel. No evidence was led that S-110 was in distress or that these fees were for necessaries provided to S-110 but were rather to provide greater comfort to the dog;
(iii) Regional Supervisor Munoz testified that the fee for the Greenie Pill Pockets was to assist with the administration of medications provided to the dogs. No evidence was led as to what medication was being administered to the dogs and for what reason;
(iv) The $875.00 fee for “Security for 5 nights” is not payable and is not a necessary. Only upon my questions about this fee did Regional Supervisor Munoz indicate that it should not be included on the Statement of Account. Regional Supervisor Munoz testified that Country Paws Boarding Inc. had a suspicious vehicle show up after hours at its location and hired security in response to this incident, which was not directly related to this matter; and
(v) No further information was provided by Regional Supervisor Munoz in her testimony regarding the additional staffing for extra medications administration and the care of dogs who underwent surgery on the January 11, 2022 invoice as well as the additional charges for cleaning and extra care for dogs included on the January 25, 2022 invoice. In fact, Regional Supervisor Munoz simply read from the invoices and failed to provide details such as which dogs these fees pertained to, which medications were being administered and how often, what types of cleaning were required and why, etc. Simply listing items with no further explanation is not sufficient evidence to determine whether the amount amounts were reasonable.
vii) Other Amounts Including on Kennel Invoices not being claimed by the Respondent
84The respondent has also confirmed that it is not seeking recovery for the following amounts invoiced and, as such, they are not recoverable as against the appellants:
| Kennel/Facility | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| Country Paws Boarding | October 19, 2021 | Medications 28 dogs X 2 times a day for 5 days | $210.00 |
| Country Paws Boarding | December 12, 2021 | Medication administered, dewormer, antibiotics, anxiety meds | $163.50 |
| Peterborough Humane Society | September 24, 2021 | Lodging/Parking expense and photocopying | $585.30 |
| TOTAL | $958.80 |
c) Veterinary Care
85The total amount of veterinary care set out on the Statement of Account was $124,437.68 which was later amended by the respondent to $121,725.77.
86For the reasons that follow, I:
(i) Find that the respondent failed to prove on a balance of probabilities that the veterinary care amount of either $124,437.68 or $121,725.77 included on the Statement of Account is reasonable such that either amount should be confirmed; and
(ii) Vary the veterinary amount included on the Statement of Account to $Nil.
i) Amounts Invoiced for the Triage
87Regional Supervisor Munoz testified that after the dogs were removed and loaded onto the Luckhart trucks, the dogs were taken to a rented space at the Toronto International Centre where they were unloaded and triaged. The triage included being examined by one of five veterinarians whose services were retained by AWS with any findings being recorded on triage Examination Report Card forms supplied by AWS. The majority of the dogs were then vaccinated, treated for fleas and ticks, and given dewormer. The dogs were then returned to their crates and transported to their boarding destinations.
88The following amounts were invoiced in relation to the triage:
| Veterinarian/ Facility | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| Whitney Rose, RVT | October 5, 2021 | RVT Services and Travel Fee | $531.10 |
| Renee Fleming, DVM | October 5, 2021 | Veterinary Services and Travel Fee | $1,375.00 |
| JB Robertson Veterinarian Medicine P.C. | March 11, 2021 | Various fees for medication, vaccines and dewormer at Triage | $23,920.74 |
| March 11, 2021 | Kilometers, preparation and stand-by time and professional services | $2,296.6844 | |
| Georgina Veterinary Clinic | October 29, 2021 | House call, mileage, examination, veterinary services, technical support; Dispensing fee, midazolam, and torbugesic for M-70 | $3,361.6245 |
| Hamilton/Burlington SPCA | October 13, 2021 | Mileage (2 vehicles), staff support, fees for Dr. Farr and Dr. Rockx, fees for 4 additional staff members, fees for sedation for collar to be cut off of one dog, various medical supplies, and sharps disposal fee | $2,993.50 |
| Peterborough Human Society | September 24, 2021 | Fees for three staff to attend the triage as requisitioned by Dr. Robertson including mileage | $757.8846 |
| The International Centre | September 24, 2021 | Hall rental, set-up including tables and chairs, and “bundled services” | $6,729.15 |
| TOTAL | $41,965.67 |
89I find that none of the amounts listed above regarding the triage are for providing necessaries or are reasonable and, as a result, they are not recoverable as against the appellants.
90During the hearing, I inquired why the triage could not have taken place at the Severn and Moonstone properties as opposed to incurring substantial invoiced amounts for items such as the rental of the Toronto International Centre as well as veterinarian stand-by time. Regional Supervisor Munoz testified that the triage took place at the Toronto International Centre so that the dogs could be “examined in a controlled environment,” to not extend AWS’ time at the properties, and to essentially reorganize the dogs to disburse them according to which boarding location they were being transported to.
91I do not accept that the triage could not have been completed at the Severn and Moonstone properties or that any reason was provided to support Regional Supervisor Munoz’s testimony that a “controlled environment” was required. The dogs were either tethered or housed in pens at the two properties47 and there is no evidence that they would not otherwise be “controlled.” Indeed, AWS inspectors went from dog to dog at both locations for the purpose of measuring the tethers, the dogs, and the dog houses,48 such that an examination could have taken place then or in a similar fashion after the decision to remove was made. Indeed, there was also a history of AWS having veterinary examinations of the dogs occur at the properties. Dr. J. Bruce Robertson, veterinarian, testified that he had attended the properties on at least one prior occasion in February 2021 to conduct an examination which he described as similar in nature to the brief examinations provided at the triage.49 Additionally, AWS’ failure to provide appropriate transportation for the dogs such that they would not have needed to be reorganized at the triage centre for transport to their boarding locations does not fall to the feet of the appellants. This is in addition to taking several hours to load the dogs at the property, then unloading them at the triage location, to simply reload them again for transport.
92I further find that the purpose of the triage was not to provide necessaries to the dogs, but rather was to provide preventative treatment to house the dogs at indoor kennels. The triage examinations were described by Dr. Robertson as “rapid-paced,” lasting between 2 to 5 minutes per dog, and were not full physical examinations. Dr. Robertson’s evidence is consistent with the testimony of Dr. Renee Fleming, veterinarian, who was also present at the triage. Dr. Fleming testified that she examined approximately 80 dogs during the triage which would equate to her spending on average of just over 5 minutes per dog based on her October 5, 2021 invoice for 7 hours of time for providing veterinary services on September 23, 2021.50
93The 2 to 5 minutes that the veterinarians spent with each dog at the triage not only included the “rapid-paced” examination but also administration of vaccinations, flea, and tick treatment, and dewormer. Regional Supervisor Munoz testified that these treatments were “standard” for animals to receive upon intake to a boarding situation. Dr. Fleming and Dr. Robertson also testified that such treatment was “routine” for animals entering a boarding situation. Moreover, no fecal float tests were performed at the triage location to determine if any of the dogs arrived with internal parasites and actually required deworming treatment. Further, Dr. Fleming confirmed that the vaccines administered at the triage were not mandatory in Ontario, and none of the triage forms reported seeing live fleas or ticks on the dogs that would warrant treatment. As a result, I find that the vaccinations, the flea, and tick treatment, and the dewormer were all for the purpose of the dogs entering the kennels and not for providing necessaries to treat any presenting illness or conditions. As such, I find these amounts neither to be for the purposes of providing necessaries nor reasonable or recoverable against the appellants especially given that AWS took no steps to investigate whether any outdoor boarding was available to accommodate the dogs as discussed above in paragraph 68.
94Additionally, medications were on-hand at the triage that were pre-ordered by AWS and went unused. This is further evidence that supports my finding that the triage was not for the purpose of proving necessaries to the dogs. In an invoice dated November 11, 2021, the following medicines were invoiced by JB Robertson Veterinary Medicine PC that Dr. Robertson testified were not used at all at the triage:
| Medication | Invoiced Amount |
|---|---|
| Prednisone | $24.25 |
| Claro Otic | $813.45 |
| Convenia | $740.00 |
| Dexamethasone | $21.50 |
| Epiclor | $52.20 |
| Inhibit Ointment | $53.00 |
| Total | $1,707.40 |
95I find that none of the amounts listed above in paragraph [94] are recoverable as against the appellant and it remains unclear why, even after Dr. Robertson’s testimony that all of the medications went unused, that these amounts were still included in the Statement of Account and being sought by the respondent.
96Even if I am incorrect in my finding that the purpose of the triage was not to provide necessaries to the dogs such that some of the amounts invoiced for the triage would be reasonable (i.e., for the “rapid-paced” examinations), the veterinarians and other veterinarian technicians/staff failed to provide a breakdown or any information as to the time spent in on the examinations as opposed to the amount of time spent administering vaccines, flea, and tick treatment, and dewormer. As a result, there is no evidence before me upon which I could allocate any invoiced amounts for examinations as opposed to the pre-kenneling standard procedures such that I could determine what amounts would be reasonable and, therefore, recoverable against the appellants.
97There were also two other types of amounts invoiced for the triage that I find are not recoverable against the appellants. First, there were amounts invoiced for animals that were sedated at the triage. Dr. Farr testified to an entry on the October 13, 2021 invoice from the Hamilton/Burlington SPCA for injectable sedation for a canine requiring collar to be cut off.51 Dr. Farr testified that a large male dog, that was described as aggressive, was reported by AWS inspectors to have an imbedded collar in his neck. Dr. Farr confirmed that the dog was sedated but that the collar was not imbedded. The triage examination report card for M-70, however, noted that the dog was “sedated for exam @ 8:55 pm due to aggressive temperament.” No report was made that the sedation was due to the collar and sedating a dog for temperament alone is not a necessary given that the collar was ultimately not imbedded. I place greater weight on the triage examination report card as to the reason for the sedation (i.e., the dog’s aggressive temperament) as opposed to Dr. Farr’s testimony because the triage examination report card was made contemporaneously with the event. As a result, these amounts are not recoverable as against the appellants.
98Second, amounts for a dispensing fee, midazolam, and torbugesic for the dog identified as M-70 were listed on an October 29, 2021 invoice from the Georgina Veterinary Clinic where Dr. Lawrence Woodley, veterinarian, worked.52 The triage examination report card for M-70, however, was completed, and testified to, by Dr. Farr. The “M-70” also appears to have been added after the original invoice from Georgina Veterinary Clinic was created. In any event, it remains unclear which dog, if any, was sedated by Dr. Woodley as reflected on the Georgina Veterinary Clinic invoice and, as such, these amounts are not recoverable against the appellants.
ii) Causation
99In their closing submissions, the appellants raised the issue of causation. The appellants agreed that if a problem requiring veterinary care arose while the dogs were in their care, then it is reasonable that they would be liable to pay for such veterinary amounts. If, according to the appellants, the condition requiring veterinary care was caused by something that happened while the animals were in the custody of the respondent, then the appellants should not have to pay for these amounts because the condition could not have been said to have been “caused” by the appellants.53
100In its closing submissions, the respondent did not respond to or address the issue of causation as raised by the appellants.
101Neither the Act nor O. Reg. 444/19 contain guidance as to the grounds that the Board may consider in varying a statement of account. Such considerations will likely also vary on a case-by-case basis. On the evidence before me in this matter, I agree with the appellants that in order for the veterinary amounts included on the Statement of Account that are dated after the triage to be found to be reasonable, the respondent must prove on a balance of probabilities such amounts did not arise as a result of the care, or lack thereof, provided by the respondent or any of its agents.
102I make this finding as none of the 233 dogs were removed from the appellants due to any health issues. Regional Supervisor Munoz testified that AWS did not identify “anything significant” from a health perspective regarding the dogs on September 23, 2021 prior to their removal. This testimony is consistent with the evidence from AWS Inspectors in the Pryde, Spotswood and Pierce v. Chief Animal Welfare Inspector54 matter that the dogs were removed as a result of non-compliance with Compliance Orders that addressed tether lengths and insulation of dog houses.55 Indeed, no evidence was presented that there were any compliance orders outstanding regarding any health issues at the time of the removal. Given this information alone, a claim for over $120,000.00 as against the appellants for amounts invoiced for veterinarian care is “not supportable by any standard of reasonableness.”56
103Following the release of my decision in Pryde, Spotswood and Pierce v. Chief Animal Welfare Inspector,57 some dogs were returned to the appellants. Regional Supervisor Munoz conceded that when the dogs were returned, there were concerns about the dogs’ health as their stool samples showed that some of the returned dogs were suffering from Giardia. Indeed, a Giardia outbreak was subsequently identified at one kennel, two dogs were injured at a kennel, and there was a streptococcus zooepidemicus kennel outbreak as well. Further, an additional photograph of the dog identified as S-49 which was taken upon being returned to the appellants was described as “underweight” by the Regional Supervisor Munoz when it was put to her that the dog was emaciated by appellants’ counsel.
104It was also clear that at least one kennel, Countryside Kennels, was not providing adequate care for the dogs. Regional Supervisor Munoz testified that AWS relocated the dogs that were initially boarded at Countryside Kennels to other facilities because Countryside Kennels was neither providing adequate bedding which could have led to potential safety issues nor sufficient outdoor/exercise time for the dogs.
105It is also not lost on me that as of the end of the hearing, 11 dogs had either been euthanized or died while in the custody of the respondent.
106The appellants also brought a motion at the outset of this hearing seeking permission for a veterinarian and/or veterinarian technician hired by the appellants to inspect each of the removed dogs’ general health and living conditions. The respondent opposed this motion.
107Orally to the parties on February 17, 2022, and in a Motion Decision and Order dated February 25, 2022,58 I granted the appellants’ request to allow a veterinarian accompanied by a veterinarian technician to conduct an inspection of each of the living dogs that were removed from the two properties on September 23, 2021 regarding their general health and living conditions on certain conditions.59 In the Motion Decision and Order, I stated:
Moreover, the Respondent has been clear that it is maintaining its position that it can bill by way of an [statement of account] for any necessaries provided to the dogs, including the necessaries that it became aware of after the dogs were removed, and that it is not restricted to bill only for what its inspectors saw in the field without the assistance of a veterinarian on September 23, 2021…if the Respondent is successful in advancing its position, I find that fairness, as well as my obligation under r. 3.1(a) to facilitate a fair process that allows for effective participation by all parties, dictates that that the Appellants should also have an opportunity to have the dogs inspected by their own experts.60
108For various reasons, which I elaborated orally on later in the hearing, I ordered the inspection to take place at the locations where the dogs were being housed.
109As a result of my Motion Decision and Order, the appellants sought to have a representative inspection of four kennels (totaling 120 dogs), but no inspections ever occurred.
110Regional Supervisor Munoz testified that she personally contacted all of the kennels that were housing the appellants’ dogs on February 18, 2022 and indicated that while she could not provide legal advice or direction regarding my Motion Decision and Order, she nonetheless stated that it was each facility’s prerogative on how to respond to the inspection requests.
111Each of the four kennels that the appellants sought to inspect later refused the inspection as I ordered for various grounds including insurance coverage issues.
112In light of all of the events in this matter, if I did not agree with the appellants’ position that causation is something that the respondent needs to prove on a balance of probabilities, how would the appellants discharge their onus of proving that the veterinary bills dated after the triage on the Statement of Account should be varied? The dogs were not removed for any health reasons and the appellants, despite taking active efforts, had no access to inspect the dogs or their living conditions. Indeed, while the four representative kennels refused the appellants’ inspection of the dogs, veterinarian after veterinarian who testified on behalf of the respondent at the hearing confirmed they attended kennels where they were not employed to inspect the appellants’ dogs and/or to provide veterinary services. The access issues related to the dogs is illustrative of the inequity of this situation as against the appellants to be able to meet their burden of providing that the veterinarian amounts dated after the triage should be varied or revoked. As a result, I agree with the appellants and find that, as part of the reasonableness of the veterinarian amounts dated after the triage date and included on the Statement of Account, the respondent must prove on a balance of probabilities that such amounts did not arise as a result of the care, or lack thereof, provided by the respondent or any of its agents.
113In this matter, no evidence was led by the respondent that any of the conditions for which the dogs received subsequent veterinary care after the triage were present prior to their removal. No veterinarian was present during the removal and the Examination Report Cards that were completed at the triage were completed after the dogs had been held for several hours without food and water and were transported to the triage in a manner which I found fell far below the prescribed standards of care for animals in Ontario as discussed above in paragraphs [39] to [53]. Indeed, none of the veterinarians called as witnesses for the respondent testified as to the cause of any of the conditions or provided evidence that the animal’s post-triage veterinary needs arose from latent issues from when the dogs were in the appellants’ care.
114Even if I accepted that at least the conditions identified on the Examination Report Cards completed at the triage were pre-existing or, at a minimum, not attributable to the care provided by the respondent and/or its agents during the removal, which I do not, only two of the invoices for veterinary services have a temporal relationship with the date of the removal of the dogs – a September 24, 2021 invoice from Walkers Line Veterinary Hospital and a September 27, 2021 invoice from the Ilderton Pet Hospital. Aside from these two invoices, all of the other invoices reflect service dates of October 9, 2021 to dates into January 2022. There is no evidence before me that any of the veterinary services provided from October 9, 2021 and onward were to relieve any distress or conditions caused by the appellants as the dogs had not been in their care for, at a minimum, 16 days.
iii) The September 24 and 27, 2021 Invoices
115The September 24, 2021 invoice from Walkers Line Veterinary Hospital in the amount of $1,447.21 was for veterinary services provided to the dog identified as S-80 and a puppy identified as “S 80 Puppy.” S-80 was noted on the Examination Report Card at triage as having suspected congenital heart failure due to untreated dental disease.
116The only witness who provided testimony regarding the September 24, 2021 invoice, however, was Regional Supervisor Munoz who simply read the contents of the invoice into the record and offered no further explanation. As a result, I find that the respondent failed to prove on a balance of probabilities that this invoice was reasonable because no further evidence was provided as to the services rendered, if there were a diagnosis, or if any further follow-up treatment was required. It is also unclear what dog “S 80 Puppy” is referred to as there is no corresponding Examination Report Card with such identifier and, therefore, any amounts on this invoice for “S 80 Puppy” are not confirmed.
117The September 27, 2021 invoice from the Ilderton Pet Hospital was for the total amount of $475.84. It shows that seven puppies and the dog identified as S-50 were administered Revolution ($192.57) and that the following veterinary care was provided to the dog identified as S-49:
| Service Description | Amount Invoiced |
|---|---|
| Consultation/exam (including ear cleaning and ear cytology) | $93.00 |
| Tonopen Tonometry/Alcaine | $55.00 |
| Fluorescein Stain | $35.00 |
| Prednisolone Ophth 1% 5ML | $21.74 |
| Advantage Multi 55 Pkg6 | $23.79 |
| TOTAL | $228.53 |
118Dr. Kimberly Anderka, a veterinarian who works at the Ilderton Pet Hospital, testified as to the care provided to the appellants’ dogs at that location by her and her colleagues. Dr. Anderka testified that S-49 was diagnosed with an inflammation inside the eye, prescribed Prednisolone (steroid eye drops), and had a flea infestation. S-49’s ears were also cleaned and checked for mites and yeast, which were both negative. Dr. Anderka explained that the Tonopen Tonometry was an instrument used to measure interocular pressure, the fluorescein stain is used to look at organisms found on the skin, and that Advantage was a treatment for fleas as well as for heartworm and deworming. Dr. Anderka also testified that the seven puppies were found to have fleas “by the kennel” and, due to their age, were administered Revolution, which is also a flea treatment.
119The Examination Report Card for S-49 noted that S-49’s eye needed to be checked “ASAP” for suspected uveitis, but S-49’s ears were noted as appearing normal. S-49’s coat and skin were also reported as appearing normal and there was no note of any fleas. None of the Examination Report Cards for the seven puppies or for S-50 noted any fleas. Dr. Anderka did not testify as to when the flea infestation arose.
120As the dogs had been under the care of the respondent for 4 days, and the Examination Report Card for S-49 was completed after the removal of the dogs, I find that the respondent has failed to prove on a balance of probabilities that both the flea infestation and S-49’s eye infection for which these dogs received treatment did not arise from the care provided by the respondent or any of its agents.
121For all of these reasons, I find that the respondent has failed to prove on a balance of probabilities that the amounts invoiced for veterinary services after the removal did not arise as a result of the care, or lack thereof, provided by the respondent or any of its agents. As a result, these amounts are not confirmed and are varied to $Nil.
iv) Dog identified as M-42
122I would be remiss to not comment on AWS’ actions regarding the dog identified as M-42. The following are the invoices submitted by the respondent in relation to M-42:
| Veterinarian/ Facility | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| Princess Animal Hospital | October 12, 2021 | Various | $3,879.39 |
| Princess Animal Hospital | October 15, 2021 | Various | $3,325.13 |
| Ontario Veterinary College | November 3, 2021 | Various | $10,799.42 |
| TOTAL | $18,003.94 |
123Dr. John-Paul Settimi, veterinarian, attended the hearing and testified about the care that he and his team provided to M-42 at the Princess Animal Hospital. Dr. Settimi testified that M-42 received care at the Princess Animal Hospital from October 10, 2021 to October 14, 2021 as his diabetes mellitus was not regulated. M-42 also had severe abdominal pain and a severe ocular infection with yellow discharge coming from his eyes. Further testing revealed that M-42 also had Cushing’s Disease. As a result of questions that I put to Dr. Settimi, he confirmed that there were inconsistencies in the dates of care provided to M-42 verses what was recorded on the invoices that he could not reconcile.
124Dr. Aleksandra Milaszewska, veterinarian, also testified at the hearing regarding the treatment that she and her team provided to M-42 at the Ontario Veterinary College (OVC). Dr. Milaszewska testified that M-42’s case was “unusual,” and that he was transferred to the OVC for further testing to diagnose the extent of his illness. Dr. Milaszewska testified that M-42 was in extreme pain and further testing showed that he had liver pathology. Dr. Milaszewska testified that M-42 was suspected to have hyperadrenocorticism and that she could not comment on the cause of this condition. M-42 received care at OVC for 8 days and was euthanized on October 21, 2021.61
125The Examination Report Card for M-42, which is undated and has no information regarding the veterinarian that completed this card, noted no health concerns aside from a neck wart and recommended that he be groomed/receive a medical bath. M-42 also had a pain score of 0.
126The total amounts invoiced for M-42’s care exceeded $18,000.00. In comparison, the cost of euthanasia of another dog as set out on the December 6, 2021 invoice from the Hamilton/Burlington SPCA was $265.15. While it may have been reasonable to allow some amounts for an investigation into M-42’s condition at the outset rather than opting for euthanasia immediately, approval by AWS for veterinary care in excess of $18,000.00 for one dog far exceeds any realm of reasonableness.
v) Other Veterinary Amounts Invoiced that are not being claimed by the Respondent
127The respondent has also confirmed that it is not seeking recovery for the following veterinary amounts invoiced and, as such, they are not recoverable as against the appellants:
| Veterinarian/ Facility | Invoice Date | Service Description | Amount Invoiced |
|---|---|---|---|
| 404 Veterinary Emergency and Referral Hospital P.C. | December 29, 2021 | Various charges for S-104 | $1,243.50 |
| January 6, 2022 | Various charges for S-104 | $1,454.13 | |
| January 6, 2022 | Medipaw Boot for S-104 | $78.40 | |
| Cranberry Hill Animal Hospital | September 25, 2021 | Various charges for M-36 | $255.98 |
| JB Robertson Veterinarian Medicine PC | November 3, 2021 | Mileage, travel time, and professional services re: Kennel visit | $2,051.36 |
| London Regional Veterinary Emergency and Referral Hospital | October 6, 2021 | Various charges for S-73 | $1,348.09 |
| October 8, 2021 | Various charges for S-33 | $497.20 | |
| October 8, 2021 | Plasma-Lyte A Injection for S-33 | $13.56 | |
| Mississauga-Oakville Veterinary Emergency Hospital | October 14, 2021 | Various charges for S-73 | $4,618.41 |
| Niagara Veterinary Emergency Clinic | October 14, 2021 | Various charges for S-5 | $8,594.12 |
| October 16, 2021 | Various charges for S-6 | $12,424.49 | |
| Oxford County Veterinarian Clinic | October 29, 2021 | Various charges for S-6 | $1,055.22 |
| University of Guelph Laboratory Services | October 25, 2021 | Various charges for S-33 | $977.00 |
| November 9, 2021 | Various charges for M-42 | $754.00 | |
| TOTAL | $35,365.46 |
The Appellants’ Ability to Pay
128As part of their closing submissions, the appellants’ requested that I consider the reasonableness of the amounts charged in the context of the appellants’ ability to pay which has been considered in previous Board decisions relied upon by the appellants.62
129In response, the respondent submitted that an ability to pay is not a proper consideration when determining whether a statement of account should be varied or revoked given that such consideration would undermine the objective of the Act. The respondent also objected to consideration of the appellants’ ability to pay as this ground of appeal, in its opinion, was not articulated in advance of the hearing.
130I do not need to reconcile whether consideration of an appellant’s ability to pay is a proper consideration as to whether a statement of account should be varied or revoked or if the appellants’ provided proper notice of their ability to pay as a ground of an appeal because no financial evidence was submitted as evidence for the hearing. While I appreciate Ms. Spottiswood’s testimony on this issue, there is simply no documents to support her position that the appellants are unable to pay the Statement of Account.
131As a result, even if I agreed with the appellants that ability to pay is a relevant consideration as to whether I should vary or revoke the Statement of Account, I find that the appellants have failed to prove on a balance of probabilities that they are unable to pay the varied amount of the Statement of Account.
The Appellants’ Request for no Further Statement of Accounts to be Issued
132In their closing submissions, the appellants requested that I make an order that no further statement of accounts be issued by the respondent to the appellants in relation to their dogs that remain in the care of the respondent. The appellants rightly noted that while this appeal has commenced until the release of this decision, other invoices are accruing regarding the dogs. The appellants submit that there is no escape from endless statements of accounts being served upon them as the cycle simply repeats itself.
133While I appreciate the appellant’s frustration, the Board is a creature of statute and I only have the powers conferred upon me under s. 38 of the Act. None of these powers include the ability to preclude the respondent from issuing any further statements of accounts. As a result, I find that I have no jurisdiction to grant the appellant’s request to order that no further statements of accounts are issued against them by the Chief Animal Welfare Inspector in relation to this matter.
ORDER
134Pursuant to the powers of the Board under s. 38(9) of the Act, I order that the Statement of Account is varied as follows:
Transportation Costs: $0.00
Boarding Costs: $505,760.00
Veterinary Costs: $0.00
Total Costs: $505,760.00
Released: August 18, 2022
Lindsay Lake, Vice-Chair
(i) Brooklin Kennel invoiced for “Food X 5” in the amount of $342.15 on its October 14, 2021 invoice which was for “8 pets for 30 nights” but invoiced for “Food X 6” in the amount of $410.58 for the same number of pets and nights on its November 15, 2021 invoice. The amount invoiced for food rose to $662.53 on Brooklin Kennel’s invoice dated January 12, 2022 which was again for the same number of dogs and nights as the previous invoices that I have referred to; (ii) The invoices at City Limits Dog Boarding Inc. show an invoiced amount of $439.95 for “our food charge” for 10 dogs for 29 days on the October 22, 2021 invoice and $791.91 for 9 bags of food for 10 dogs for 31 nights on its November 22, 2021 Invoice.; and (iii) Kennel Club Boarding also had an increase of 10 Hills Sensitive Stomach Dog Food for 18 dogs for 31 days in its October 31, 2021 invoice to 20 Hills Sensitive Stomach Dog Food for the same number of dogs for 30 days in its November 30, 2021 invoice. Additionally, no evidence was led as to why the food amounts varied for each kennel over the various months while the dogs were in their care when the number of dogs housed at the kennel did not change. Where there was an increase in dogs at the kennels, such increase was not proportionate to the increase in the amount of food that was invoiced for. For example, the amount of the food invoiced by Country Paws Boarding went from 6 bags of food for 30 dogs for 9 nights in the October 19, 2021 invoice for a total of $392.68, to 20 bags of food and 5 cases of canned food for a total of $1,709.75 for 56 dogs for 8 nights in the November 3, 2021 invoice. While there was an increase in dogs between these two invoices, the number of dogs did not double but the amount invoiced for food more than quadrupled with no explanation.
- No medications were provided to M-35 at the triage despite having ear infection medication on hand. The appellants submitted that the respondent’s actions of allowing M-35 to continue on with its transport to its boarding facility without any veterinary intervention at the triage suggested that M-35 did not have a serious ear infection at that time and that he was not in distress;
- Ms. Spottiswood testified that a “Master List” was provided to AWS approximately 8 days after the dogs were removed that set out protocols, if any, for each the dogs such as checking for health issues, eating habits, etc. This Master List indicated that the dog identified as M-35 should have his ears checked daily, cleaned, and treated as necessary;
- Dr. Farr testified in relation to an invoice from the Hamilton/Burlington SPCA dated October 15, 2021. This invoice was for veterinary services provided to M-35 in the total amount of $675.46. Dr. Farr testified that M-35 had a severe ear infection such that he was required to be sedated so that a culture could be taken and to allow for his ears to be cleaned; and
- It was not until 22 days after the removal that M-35 received veterinary care for his ear which, by that time, was so severe that he required sedation for treatment and half day hospitalization. Further, no evidence was presented that M-35’s ears were cleaned every day as outlined by Ms. Spottiswood in the Master List. Based on the facts set out above, it is the appellants’ position that they did not cause M-35’s condition that ultimately required sedation some 22 days after M-35 was in the care of the respondent such that the amounts for M-35’s veterinary care set out in the October 15, 2021 Hamilton/Burlington SPCA invoice would be recoverable against them.
Footnotes
- Another child of Adrienne Spottiswood and Thomas Pryde owns some of the dogs living at the two properties. Section 1(4) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 provides that where the owner or custodian of an animal is a minor, the owner or custodian for the purposes of the Act is deemed to be the minor’s parents/guardians. Therefore, the name of this child is omitted from this decision.
- S.O. 2019, c. 13.
- 2021 ONACRB 25.
- Ibid. at paras. 62-64.
- S.O. 2019, c. 13.
- Section 38(2) of the Act.
- Section 38(9)3. of the Act.
- Section 35(4) of the Act and s. 1(2) of O. Reg, 447/19, “Ministerial Prescriptions.”
- 2022 ONACRB 12.
- Ibid. at para. 41.
- 2009 CanLII 25138 (ON SC).
- R.S.O. 1990, c. O.36.
- Supra note 11 at para. 193.
- Ibid. at para. 194.
- 2019 SCC 65, [2019] 4 SCR 653.
- Ibid. at para. 44.
- 2021 ONACRB 15.
- Ibid. at para. 19.
- For example, Dr. Kim Anderka, veterinarian, testified that the November 22, 2021 invoice from the Ilderton Pet Hospital should not have two amounts included on it for the dogs indenitied as 74 and 74A ($106.72). Regional Supervisor Munoz also testified that a Noevmber 9, 2021 Invoice from the University of Guelph Laboratory Services should not have been included in the Statement of Account ($754.00).
- Book of Documents regarding the Boarding and Miscellaneous invoices, undated, Exhibit 7.
- The discrepancies between the total amount of the four invoices and the total transportation costs on the amended Statement of Account was not explained at the hearing.
- 2014 ONSC 6485.
- Ibid. at para. 51.
- Ibid.
- Supra not 11 at para. 42.
- The three dogs that were not transported by Luckhart were provided transportation via AWS vehciles. Regional Supervisor Munoz testified that one of the three dogs was in heat, the second was “identified as having an injury,” and she could not confirm the reason for the third dog being transported separately.
- Exhibit 40.
- Examination Report Cards for Severn, page 28.
- Testimony of Dr. Jennifer Farr, veterinarian.
- Supra note 11 at para. 42.
- Supra note 20 at tab 1.
- Ibid. at tab 7.
- Ibid. at tab 14 and Exhibit 44, Shadowbrook Website Screen Shot.
- Animal Care Centre Lobo charged $20.00 or $30.00 per dog once for “bath and nails” services from September 24, 2021 to January 27, 2022, whereas Kennel Club Boarding charged $50.00 per dog for “bath and brush” services on at least two occasions, and for 3 dogs three occasions, between September 24, 2021 and January 31, 2022. Wenrick Kennels Inc. charged anywhere from $40.00 to $60.00 per dog for grooming, brush outs, nails, and flea baths and the only information provided on the Wenrick Kennels Inc. invoices as to why the rates varied was that the rates were based on “breed and coat condition.” Indeed, some kennels listed no fees on the invoices for grooming and bathing services.
- For those that did invoice separate amounts for food, no evidence was led as to why the food amounts varied for each kennel over the various months while the dogs were in their care when the number of dogs housed at the kennel did not change. For example:
- Kennel Club Baording October 31, 2021 invoice for $386.28 and the Rainbow District Animal Services October 27, 2021 invoice for $143.88.
- Kennel Club Boarding November 30, 2021 invoice in the amount of $384.77.
- Supra note 20 at at tab 5G.
- Supra note 20 at tab 15.
- Supra note 9 at para. 199.
- There is an invoice from Kennel Club Boarding dated January 31, 2022, which is dated outside of the scope of the Statement of Account, that has several pick up and drop off services as well as wait times listed on it along with associated fees which appear to be for appointments from January 5, 2022 to January 21, 2022. Unfortunately, I am unable to determine which amounts invoices apply to the date range covered by the Statement of Account and, therefore, I find that the amounts set out on Invoice #3520-KCB for pick up and drop off service including wait times to not be payable as against the appellants.
- Waldon Animal Hospital.
- There is an invoice dated February 1, 2022 from North Bay and District Human Society that includes amounts for individual veterinary exams, bloodwork, fecal test, and medication for M-19 (Metronidazole), M-1 (Metronidazole), and M-1 Drontal Plus. Regional Supervisor Munoz testified that this invoice was not included on the Statement of Account and, therefore, I have no jurisidiction to make any determination regarding it.
- The March 11, 2021 Invoice from JB Robertson Veterinarian Medicine P.C. also included amounts for travel time, a per diem charge for meals, and hotel reimbursement. The respondent confirmed that it was not seeking these amounts as against the appellants. Thus, the $2,296.68 for the “amount invoiced” is the total amount of the invoice less these amounts not being claimed by the respondent.
- Note: there is a remaining fee for Clavaseptin medication on this invoice from the service date of October 8, 2021 that is not related to the triage.
- The original amount of this invoice was $1,343.18 which included amounts not longer being sought by the respondent including $165.88 for mileage, $545.30 for loding and parking expenses, and $40.00 for photocopies.
- Supra note 3.
- Ibid.
- See Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 12 at para. 30.
- Book of Documents regarding the veterinary invoices, undated, Exhibit 8, tab 8A.
- Ibid. at tab 13A.
- Ibid. at tab 10A.
- As an example, the appellants referred to the dog identified by the respondent as M-35. On the Examination Report Card for M-35, which is undated and has no information regarding the veterinarian that completed this card, the dog’s ears are noted as infected, having a narrow canal, having an odor/discharge, and inflamed. The appellants suggest that M-35’s ear issues did not rise to the level of distress at the time of the removal such that any amounts respecting the cost of necessaries invoiced for M-35’s ear issues can be recovered against them for the following reasons:
- Supra note 3.
- Ibid. at paras. 54-56.
- Supra note 11 at para. 41.
- Supra note 3.
- Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2022 ONACRB 11.
- Ibid. at para. 6(d).
- Ibid. at para. 27.
- Medical Record – OVC Ultrasound report for the dog identified as “Hickory” dated October 17, 2021, Exhibit 35, page 1.
- For exmaple, see: Jackson v. Chief Animal Welfare Inspector, 2021 ONACRB 4 at paras. 21-23 and 33-37; and Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 3 at paras. 13-23.