Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.
Between:
Nataliya Ishankova
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
MEMBER: Jennifer Friedland, Member
APPEARANCES:
For the Appellant: Ekaterina Miropolskaia, Paralegal
For the Respondent: Shane Sukerman, Student-at-Law
Heard by teleconference: June 6, 7, 9, 14 & 15, 2022
A. OVERVIEW
1Seven cats and seven newborn kittens were removed from the appellant Nataliya Ishankova’s residence on March 11, 2022 by Animal Welfare Services (AWS). The cats were removed pursuant to s. 31(1) of the Provincial Animal Welfare Services Act, 2019 (“PAWS Act” or “Act”).1 This provision allows AWS to remove an animal from where it is and take possession of it in certain circumstances if the animal is in distress. The appellant did not appeal the removal.
2The appellant was known to AWS. In November 2021, less than four months prior, AWS had removed approximately 80 cats belonging to the appellant from a U-Haul.2 The appellant appealed the Statement of Account in that case but did not dispute that the cats were in distress (though she retreated from that position at the hearing before me). The appellant was successful on her previous appeal in having the Statement of Account reduced based on her ability to pay.
3On this occasion, the AWS gained access to the appellant’s home without consent and without a warrant, using a locksmith. The animals were then removed based on observations made by AWS of the conditions of the cats and the condition of the appellant’s home which, among other concerns, was cluttered, unsanitary and filled with bags containing old clothes and bedding. The apartment also smelled strongly of ammonia. The observations of the inspectors were passed on by phone together with some photos to Dr. Robertson, a veterinarian retained by AWS. Dr. Robertson certified that the cats and kittens were in distress and that the only way to alleviate that distress was to remove the animals. The cats and kittens were taken to be examined at an emergency clinic.
4The veterinarian who examined the animals after their removal testified that two of the cats had an upper respiratory infection and required antibiotics and separation from the other cats. However, there were no significant health issues with the other cats, apart from some moderate urine staining/scalding. The veterinarian prescribed a probiotic, de-wormer, and flea treatment for all cats, based on concerns from AWS about the condition of the cats removed from the U-Haul, including the possibility that they might have ringworm. The veterinarian’s opinion was that the animals did not require hospitalization and that the medications, including the antibiotics, could be administered by the owner – though admittedly he was not necessarily referring to this particular owner when he answered that question. All cats were in healthy body condition. None were dehydrated. All seven kittens were healthy and viable.
5After the emergency examination, the appellant’s cats were all placed in boarding. The Chief Animal Welfare Inspector (“CAWI” or “the respondent”) did not make a decision to keep the animals in care pursuant to s. 31(6) of the Act at that time. They were simply kept in boarding.3
6At the hearing, I invited submissions from the respondent as to the basis for its authority to keep an animal in care without making a decision to keep in care under s. 31(6). The respondent submitted that this issue was irrelevant and outside the Board’s jurisdiction to consider. I will address this issue below.
7On April 4, 2022, AWS served a Statement of Account on the appellant pursuant to s. 35(1) of the Act. The account was for $8,416.00 reflecting the cost of the vet care and boarding from the date of removal to March 31, 2022. The appellant appealed the Statement of Account and sought the return of her animals. At the hearing, the appellant also raised issues with respect to her treatment by AWS including that they entered her house without a warrant; they did not ask her any questions about her animals; and they did not give her any opportunity to address AWS’s concerns or show that she could provide care for the cats herself.
8The respondent objects to the appellant being allowed to seek the return of her animals at this hearing but submits in any event that they should not be returned. With respect to the Statement of Account, the respondent’s position is that the statement of account should be confirmed as reflecting the reasonable costs of necessaries provided to the animals to relieve their distress. The respondent submits that ability to pay should not be a factor considered by the Board and that, in any event, the appellant was given the benefit of a reduced statement of account the last time she was before the Board and ought not to obtain that benefit a second time based on her ability to pay. The respondent further submits that whether the inspectors improperly entered without a warrant is irrelevant because the appellant did not appeal the removal.
9The respondent also objected to having to justify any of its actions including having to prove that the costs included in its Statement of Account were reasonable and authorized under the Act. Although the respondent put in its case first and presented evidence to support its account, it contends that it should not have to have done this and that the burden should rest solely with the appellant to establish that the account should not be confirmed.
B. ISSUES
10The issues that arise on this appeal are as follows:
a) Who bears the burden of proof on an appeal before the Board;
b) Should the Statement of Account be confirmed, revoked or varied;
c) Can the appellant argue for the return of her animals on this appeal; and if so, should the animals be returned;
d) Are the circumstances of the removal relevant to this appeal, and if so, was the warrantless entry into the appellant’s house authorized under the Act; and was the removal authorized; and
c) Does the respondent have the authority to keep an animal in care without making a decision to do so pursuant to s. 31(6) of the Act and does the Board have jurisdiction to consider that issue on this appeal.
C. RESULT
11For the reasons outlined below, I find that the burden rests on the respondent to justify the Statement of Account and show that the costs were reasonable and necessary for the purposes authorized under the Act. Assuming it meets that burden, the account will be confirmed unless the appellant can satisfy the Board that it should be varied or revoked.
12With respect to the Statement of Account, I find that the veterinary costs (other than a small portion of those costs as outlined below) are proper and were for the purpose of alleviating the distress of the animals by ensuring that they had adequate and appropriate medical care.4 Thus I am confirming those costs in the amount of $2,814.88. I do not find it appropriate to reduce that amount based on the appellant’s ability to pay.
13I am not allowing any of the boarding costs. In addition to finding that only two of fourteen animals removed were in distress according to the vet who examined them, and that all cats could potentially have been cared for by the appellant, I find that AWS is not authorized to keep an animal in care without the CAWI or her designate having made the determination that such care is necessary under s. 31(6) of the Act. Simply keeping the animals without making a formal decision, deprives an appellant of the right to appeal the decision and seek the return of the animals under s. 38(1). It also deprives an appellant of their further right to apply for the return of their animals under s.38(4) of the Act. I find the appellant should not be responsible for costs of the care of the animals in these circumstances.
14I find the facts of the removal to be relevant to the context of this case and thus I describe those circumstances below. I find that the removal was authorized under the Act, but entry into the appellant’s home without a warrant was not.
15With respect to whether the appellant can seek the return of her animals on this appeal, for reasons given orally at the start of the proceedings and expanded on below, I allowed this issue to proceed at the hearing with the result that I am ordering that the animals be returned subject to an order that I will make under s. 38(10) imposing conditions.
16It will become clear in my description of the facts that it is by no means certain that the appellant will be able to comply with the conditions I impose; but since she has yet to be given the opportunity to show whether this is the case, it is my view that she should be given the opportunity.
17Ultimately, while I share the concerns of AWS about the capacity of the appellant’s ability to care for her cats, this Board cannot just rubber stamp decisions of AWS where such decisions are not in compliance with the Act.
18In that regard, a recurring theme in this decision is the reminder of the Board’s role noted by the Court in Hurley v. O.S.P.C.A.5 This was a decision of the Superior Court under the predecessor legislation to the PAWS Act. The Court said that:
… the ACRB and this Court must ensure that provisions in the Act that protect the rights of animal owners are taken seriously and scrupulously adhered to by the OSPCA [now AWS].
19I find this direction from the Superior Court applicable in the case before me, and it has informed my decision.
D. FACTS
20In this case I heard from the following witnesses who testified on behalf of the respondent:
Inspector Taylor Jackson, the lead AWS inspector in this case;
Inspector Rachel Vandenkroonenberg, a senior AWS inspector involved in the removal;
Inspector Bronti Frattini, the AWS inspector who took photos of the appellant’s dwelling and of the cats prior to removal and at the emergency vet clinic;
Dr. Bruce Robertson, the veterinarian who authorized the removal of the cats under s. 31(1)(a) of the Act. Dr. Robertson also provided boarding for one night at his veterinary facility. He was also on the medical director at Peterborough Humane Society where the cats were sent for longer-term boarding;
Dr. Justin Levasseur, the veterinarian who examined the cats after removal at VCA Canada 404 – a veterinary emergency and referral hospital; and
Michael Draper, a senior regional supervisor for AWS who was designated by the respondent to make the decision to keep in care pursuant to s. 31(6)(b)(i) of the Act when it was finally made on May 12, 2022.
21For the appellant, I heard from:
The appellant, through a Russian interpreter; and
Dr. Davod Kafai, a veterinarian, who provided care for one or more of the appellant’s cats approximately five years ago.
22I also received various exhibits, including photographs from both parties, veterinary reports and records, financial disclosure from the appellant, invoices, a letter of support from a former veterinarian of the appellant, emails and other items.
23From the above testimony and exhibits I find the facts described below on a balance of probabilities. I also address the issues arising in relation to the removal in this portion of the decision as it is helpful to understand the statutory provisions relating to distress and AWS authority in relation to animals in distress as part of the background.
Background
24The AWS went to the appellant’s home on March 11, 2022 in response to a tip received the day before that the appellant was there and may have had one or more cats in her possession, some of which were described by the tipster as “sickly.”
25Both Inspectors Jackson and Vandenkroonenberg had been involved in the previous case involving the appellant where 80 cats had been removed just four months earlier, 77 of them from a U-Haul. At the previous appeal, the appellant did not dispute the fact that those cats were in distress. This distress was summarized at paragraph 11 of Member Létourneau’s decision as follows:
… The cats required intensive care, given the poor condition they were in. The veterinarian inspected all the cats at the hospital and assessed that they were suffering from upper respiratory infections, eye infections, flea infestations, internal parasites, muscle atrophy, neurological complications, severe ear mites, emaciation, dehydration, severe matting of the fur, and urine scalding, with some cats needing intensive veterinarian care to alleviate the critical distress of the animals.6
26Inspector Kroonenberg and the veterinarian who ultimately authorized the removal also had involvement with the appellant even before the U-Haul incident. Inspector Vandenkroonenberg, who came to AWS from the former OSPCA7, recalled investigating complaints in or around 2018 concerning the appellant and specifically, that the appellant was selling cats in an unhealthy condition. Inspector Vandenkroonenberg recalled going to the appellant’s house and noticing that some of her cats had upper respiratory problems. Inspector Vandenkroonenberg testified that she had issued compliance orders to the appellant at that time but when she returned to follow up, the appellant had moved.
27With the background of the distress of the animals in the recent U-Haul incident in mind, along with the prior information about the appellant’s care for her animals, Inspectors Jackson and Vandenkroonenberg went to the house where they had been informed the appellant was now living with more cats that appeared sickly.
AWS arrival at the appellant’s property
28The inspectors described their arrival at the property and their attempts to gain access to appellant’s residence, which was a basement unit. The inspectors knocked but the appellant did not answer; however, they could hear her inside, shuffling items around. The inspectors tried to look through the windows but the windows had been covered with blankets. A neighbour confirmed that the windows had not been covered the day before. According to Inspector Vandenkroonenberg, the neighbour also said that she had seen the appellant with her cats and that they appeared thin and unhealthy to her, though the neighbour apparently could not elaborate. The inspectors continued to knock at the appellant’s door. They also tried to phone her and text her. They could smell an odor of ammonia and they heard a cat sneeze. Eventually they decided to execute a “critical distress entry.” They called the York Regional Police and a locksmith, gained entry into the appellant’s dwelling and went inside. The appellant was standing behind the door when they entered.
Whether the warrantless entry was authorized
29The appellant complains that AWS did not have the grounds to enter without a warrant. The respondent argues that whether AWS had such grounds does not matter, since the appellant did not appeal the removal. I find the context of the removal relevant for a number of reasons, including that it has been raised by the appellant and therefore, as a matter of fairness, warrants consideration. Moreover, as noted above, I am mindful of the Court’s direction in Hurley, that the Board “must ensure that provisions in the Act that protect the rights of animal owners are taken seriously and scrupulously adhered to…”8 I find in this case that the AWS did not have the authority under the Act to enter the appellant’s dwelling without a warrant. Whether there is a remedy for this breach is another matter which I will address in my analysis.
AWS powers in relation to animals in distress
30Animal Welfare Inspectors have certain powers in relation to animals in distress pursuant to the Act.
Distress
31“Distress” is defined in section 1 of the Act. It means the state of being,
(a) in need of proper care, water, food or shelter,
(b) injured, sick, in pain or suffering, or
(c) abused or subject to undue physical or psychological hardship, privation or neglect;
32Section 3 of Regulation 444/19 describes what “proper care” involves. It states that:
(1) Every animal must be provided with adequate and appropriate food and water.
(2) Every animal must be provided with adequate and appropriate medical attention.
(3) Every animal must be provided with the care necessary for its general welfare.
(4) Every animal must be transported in a manner that ensures its physical safety and general welfare.
(5) Every animal must be provided with an adequate and appropriate resting and sleeping area.
(6) Every animal must be provided with adequate and appropriate,
(a) space to enable the animal to move naturally and to exercise;
(b) sanitary conditions;
(c) ventilation;
(d) light; and
(e) protection from the elements, including harmful temperatures.
AWS authority to search for animal in distress
33Under s. 28 of the Act, where AWS has reasonable grounds to believe that an animal may be in distress they can enter and search a place with the consent of the occupier.
34In this case, at the stage where AWS first entered the appellant’s home, they clearly did not have her consent as she was refusing to even open the door.
35Where there is no consent, AWS can still gain entry to a dwelling, however they need to obtain a warrant or meet the requirements of the Act for a warrantless entry.
36Entry with a warrant is provided under s. 28 (1) of the Act. A warrant is available, including for a dwelling, where an inspector satisfies a justice that there are reasonable grounds to believe an animal is in distress in that location. Section 28(4) allows the inspectors to apply for a telewarrant where it would be impracticable to appear personally before a justice to apply for a warrant.
Authority to enter a dwelling without a warrant
37The only authority to enter a dwelling without a warrant is pursuant to s. 29 (2) of the Act. This provision allows an inspector to enter a dwelling without a warrant and search for an animal if the inspector has reasonable grounds for belief that,
a) an animal in the place is in critical distress; and
b) the time required to obtain a warrant under section 28 may result in serious injury or death to the animal.
Critical Distress
38“Critical distress” is defined in s. 1 of the Act. It means “distress that requires immediate intervention in order to prevent serious injury or to preserve life.”
39I accept that in this case AWS had reasonable grounds to believe that an animal was in distress in the appellant’s dwelling, given their prior experience with the appellant and the more recent information received from the complainant and the neighbours that she was again with cats that appeared sickly. Inspector Vandenkroonenberg also testified that she heard a cat sneeze when they were outside the appellant’s door.
40However, distress is not the same as critical distress. When the appellant continued her refusal to answer the door and let the inspectors in, the proper course was to apply for a warrant; not to elevate the concern to “critical distress” without basis. Moreover, even if the inspectors did have reasonable grounds to believe the cats were in critical distress, the Act only allows for warrantless entry in those circumstances where the time required to obtain a warrant would result in serious injury or death of the animals.
41With respect to the issue of critical distress, I find that the inspectors did not have reasonable grounds to believe that the cats were in critical distress, which has a particular definition in the Act and is distress that requires immediate intervention. In this case, the information the inspectors learned at the scene only corroborated what they had already known from their informant the day before, which was that the appellant was again in possession of cats and some appeared sickly. Upon receiving that information the day before, they did not rush that minute to investigate on the basis that the cats might be in critical distress. Instead, they went the following day. I cannot conclude that hearing a cat sneeze when they got to the door provided additional grounds to believe those cats were now in critical distress requiring “immediate intervention.”
42Even if the inspectors did reasonably believe the cats were in critical distress, section 29(2) of the Act requires them to turn their mind to whether there was time to obtain a warrant, which could also have been a telewarrant. This is the law.
43None of the evidence from any of the three officers who testified suggested they even turned their minds to obtaining a warrant, let alone how long it might take to get one, including a telewarrant.
44Inspector Jackson testified that he had no experience with a telewarrant and that the entry was authorized by their Regional Senior Supervisor, Sara Munoz. Ms. Munoz did not testify, however she was an observer at this hearing. Inspector Vandenkroonenberg also only testified about making a “critical distress entry” with no suggestion that they attempted or turned their mind to obtaining a warrant.
45In my view, the inspectors cannot have formed reasonable grounds to believe that the time required to obtain a warrant would result in serious injury or death to the appellant’s animals if they did not even turn their mind to the feasibility of a warrant.
46I therefore agree with the appellant that AWS’ entry into her home without a warrant was unlawful. The inspectors should have applied for a warrant or at least turned their mind to whether they had time to obtain one. I will consider below whether there is any remedy for this breach. Suffice to say here that the whole idea of getting a warrant is for when people don’t want to let you in.
Inside the appellant’s home
47The situation inside the appellant’s apartment was described by Inspectors Jackson and Vandenkroonenberg and supported by photographs taken by Inspector Frattini.
48The appellant’s dwelling was small (approximately 300 square feet). It was overcrowded and cluttered with various items, garbage, and garbage bags. The garbage bags were filled with what appeared to the inspectors to be clothes and dirty bedding. There were cat crates and litter boxes stacked up. There was a bucket containing liquid which the inspectors thought was a cleaning agent. The kitchen was almost entirely filled with bags and clutter and garbage. There was no kitty litter apparent, though there were many flattened cardboard boxes on the floor throughout the apartment. There were some trays and bowls containing food which looked to the inspectors to be a mix of quinoa and water. The inspectors testified that no other cat food was apparent nor is any visible in the photos, nor was water for the cats apparent. Inspector Jackson noted a garbage bag against the furnace, which he took to be a fire hazard.
49The vet who later authorized the removal of the cats (Dr. Robertson) and the vet who examined the cats (Dr. Levasseur), as well as Michael Draper who later made the decision to keep the animals in care, all testified that they had been told there was urine and feces on the floor throughout the apartment, however I do not recall any of the inspectors on scene testifying to this and there is no feces or urine apparent on the floor in any of the photographs.
50The inspectors described a smell of feces and a strong smell of ammonia, which is indicative of stale urine. They did not measure the amount of ammonia in the air, but said it was quite overpowering.
51The appellant testified that the smell of stale urine and feces was from the clothes and bedding which she had just taken from storage and that were soiled from her prior circumstances.
The Cats
52There were seven cats and seven newborn kittens in the apartment. The newborn kittens were on the futon in a crate that had no bedding and had a bowl of the apparent quinoa mix in the corner of it. The other cats were all under the futon bed. Two were white cats that were pregnant. Two were variously described as “Ragdolls” though the vet called them Balinese. Two were Maine Coons.
53The Maine Coons appeared to have eye infections. Their eyes were yellow and oozing puss. Inspector Vandenkroonenberg testified that the Ragdolls also appeared to have discharge in their eyes, and that their breathing was raspy, like a paper bag. She was concerned that the cats were displaying symptoms of an upper respiratory infection.
54Officer Jackson described the kittens as “drenched” which he opined was just like the cats in the U-Haul, many of which were wet with urine. However, Inspector Vandenkroonenberg described that the kittens were just “still wet from birthing.” The appellant explained that she had been helping with the birth of the kittens which is why she could not come to the door.
55Some of the newborn kittens had red pieces of wool tied around them. Inspector Vandenkroonenberg stated that in her experience an owner might tie a string around a cat to separate males from females, or to indicate which among a litter may have already been sold. In this case, she saw that the strings were on both male and female cats, leading her to conclude that they had been marked for sale. She cut off most of the pieces of string but one was tied around a kitten’s neck. She thought it was too tight and left it for the vet to cut.
56The appellant testified that the string was to distinguish between kittens from two different litters. She maintained that two cats had given birth in her apartment and she needed to keep track of the litters. I do not accept this explanation for the string. The vet who later examined the cats confirmed that only one cat had given birth. The other two were still pregnant. He disagreed with the appellant’s suggestion that one of the pregnant cats could have given birth to some of her kittens in one spot and the rest days later. I find Inspector Vandenkroonenberg’s explanation more likely, that the string was there to distinguish cats already marked for sale.
57The inspectors testified that that they wanted the cats seen by a vet. They did not issue a compliance order to require that the appellant take the cats to the vet herself. Inspector Vandenkroonenberg emphasized that in her opinion, immediate attention was needed. She testified that the main concern at the time was the breathing of the cats. She explained that the colour of the discharge from the eyes and the difficult breathing were serious issues that required immediate intervention. In her opinion, these symptoms could rapidly go from a crackle in the lungs to death.
58Inspector Vandenkroonenberg called Dr. Robertson who is a veterinarian regularly retained by AWS to determine whether removal is required to alleviate an animal’s distress. She provided Dr. Robertson with her observations of the appellant’s premises and the condition of the cats. She also sent photographs of the cats and the premises to Dr. Robertson. He, in turn, issued a certificate of removal, confirming that the cats needed to be removed for the purpose of alleviating their distress.
59Dr. Robertson testified at the hearing and described what he had been told. He also went through the photographs he had been shown and which had been admitted as exhibits. He described having a suspicion that there may have been an upper respiratory tract condition in some of the cats. He also had concerns about their diet based on the food that was apparent. He found that the condition of their housing was inappropriate, particularly given the air quality described. He did not believe that the dwelling could be aired out in a timely manner. He concluded that the totality of the circumstances required the removal of the animals.
60The Veterinarian Certificate authorizing the removal was in evidence. The preprinted provision allows the vet to tick a box which says, “I am advising that alleviating the distress of the animal(s) necessitates the removal of the animal from the place where it currently is pursuant to section 31(1)(a) of the PAWS Act.” On this certificate, in unidentified handwriting the word “critical” was inserted before the word “distress” and the word “immediate” was inserted prior to word removal. No witness testified about these additions, nor did Dr. Robertson testify that the animals were in “critical distress.” Rather, his conclusion was that they were in distress and that alleviating their distress required removal based on the totality of the circumstances
Was the removal authorized?
61The appellant submits that the animals never should have been removed. She complains that AWS did not ask her any questions, for example about what food she was feeding the cats or whether she had taken them to the vet. They also did not ask how long she had been living there. The inspectors admitted that they did not ask her any questions nor did they consider issuing a compliance order prior to removal, relying instead on the veterinarian certificate.
62The respondent submits that the circumstances surrounding the removal are irrelevant because the removal was not appealed and, therefore, must be taken to be correct. I disagree. There is a very short turn-around of 5-business days between removal and when a person has to file an appeal of that removal and there may be any number of reasons why a person may not have done so. I do not think the failure to appeal a removal should be taken as acquiescence that the removal was authorized. Even if I am wrong about that, the circumstances surrounding the removal may be relevant to AWS decisions that followed and whether a Statement of Account should be confirmed, varied or revoked. I will therefore consider this issue.
63In this case, I do not find that it was improper for AWS to facilitate the removal of the cats by calling Dr. Robertson without asking questions of the appellant or giving her the opportunity to take the cats to the vet herself. Although AWS had the discretion under s. 30 of the Act to issue a compliance order, I see nothing wrong with the fact that they proceeded instead to obtain a veterinarian opinion. I accept Dr. Robertson’s basis for certifying in this case that alleviating the animals’ distress necessitated their removal. I further find that he was entitled to rely on the observations and opinion of Inspector Vandenkroonenberg in coming to that conclusion.
64For her part, Inspector Vandenkroonenberg admitted that “about half” of her concern about the cats was based on the information she had from the U-Haul encounter where the cats were found (and admitted by the appellant at that hearing) to have been in distress. I find that it was not improper for Inspector Vandenkroonenberg to rely on that knowledge in deciding to obtain the opinion of a veterinarian as to whether the cats should be removed, rather than issuing compliance orders.
After removal – to VCA Emergency Clinic for “triage”
65The appellant’s cats were removed from her dwelling and taken to a 24-hour emergency clinic where they were examined by Dr. Justin Levasseur, a veterinarian, who testified for the respondent in this case.
66Dr. Levasseur had also been involved in examining the cats from the U-Haul and was aware that there was a possibility that they could have ringworm. Therefore, additional precautions were taken as ringworm is highly contagious and can also spread to humans according to Dr. Levasseur.
67Dr. Levasseur described the condition of each cat, referring to his notes on each cat’s chart which were made the same day as the examinations. He testified that he corrected the notes right away if there were errors. I am relying on the evidence of Dr. Levasseur as to the state of the cats when he examined them, which was within two hours of removal.9
68Dr. Levasseur explained how to read his charts. I do not intend to replicate all of his findings, but I will summarize his conclusions.
69All cats had the following examinations performed by Dr. Levasseur: whole body, head, eyes, ears, mouth, thorax, abdomen, pelvic region, digestive, integument, lymphatic system, musculoskeletal, nervous system, reproductive, respiratory, and urinary.
70Other than the conditions listed below, the results of the above-listed examinations were normal for all cats including with respect to their respiratory well-being. Specifically, for each cat the doctor noted, “normal respiratory effort” and “normal bronchovesicular sounds” which somewhat undermines Inspector Vandenkroonenberg’s evidence that their breathing required immediate intervention. All cats also had a normal body composition score, meaning that none were skinny, which was the purported concern raised in the complaint that initiated the investigation. The body condition of the cats as described by Dr. Levasseur also undermines the inspectors’ hearsay evidence that the neighbour had observed the cats as being skinny.
71Dr. Levasseur’s notes and testimony showed the following:
Cat 1 – The cat that had just given birth (white) – she had fecal material on her hind-end in the perianal region and the area was erythaimic (inflamed). She also had urine scalding – noted as “urine was present and wetted both hindlimbs, tinging the colouration of her fur to yellow in colouration.”
Cat 2 – One of the pregnant cats (white) – she had fecal staining (taken to be from diarrhea), dermatitis around her perianal region, and urine concentration on her hind legs.
Cat 3 – The other pregnant cat (white) – she had “mild serous discharge” from one eye. Dr. Levasseur testified that the discharge could have been caused by the stress of removal and pregnancy.
Cat 4 – This is one of the cats that the inspectors identified as “Ragdoll.” In Dr. Levasseur’s opinion, they were Balinese – shorter hair. This cat had no issues.
Cat 5 – The other Balinese – this cat had moderate alopecia along both ears and no issues otherwise.
Cat 6 – One of the Maine Coons – this cat had purulent conjunctival discharge in both eyes which is a sign of an upper respiratory infection and is contagious and painful. Two types of antibiotics and two types of ointment were prescribed. This cat also had concentrated urine, covering all 4 limbs and wetting its fur. Dr. Levasseur agreed this could have been caused from the cat peeing in his carrier during removal.
Cat 7 – The other Maine Coon – this cat had the same conditions as Cat #6 and was prescribed the same medications.
The kittens from Cat 1 – the kittens were all fine, viable, latching and suckling. One kitten had one of the wool strings around its neck which the doctor described as being “a little tight” and was removed.
72All cats received Revolution (for heartworm disease, intestinal parasites and fleas), Panacur (a dewormer); a probiotic; and Malaseb (a shampoo).
73The above medications were ordered based on the information from AWS that the cats were seized from “a hoarding situation” and that “this house previously housed a colony of cats” who tested positive for ringworm.
74Although there was hearsay evidence from Inspector Vandenkroonenberg that one of the cats was later diagnosed with ringworm, there was no veterinarian evidence or documentation in support of that diagnosis at this hearing, nor any costs in relation to that alleged outcome on this Statement of Account.
75The probiotic was provided out of “concern for malnutrition in previous home” according to Dr. Levasseur’s notes and testimony.
76Dr. Levasseur testified that other than the two Maine Coons, none of the cats were in distress and that the treatment for the two Maine Coons was to keep them separate and on antibiotics. In re-examination, he was asked whether he knew the definition of distress as set out in the legislation. Dr. Levasseur testified that he did know the definition of distress under the Act and confirmed that he was giving his opinion in relation to that definition when he stated that the cats were not in distress.
77Dr. Levasseur testified that other than the Maine Coons the others were all in acceptable condition with the only abnormality being urine staining or scalding in the pregnant cats, which he described as “moderate.”
78Dr. Levasseur further testified that the cats did not require hospitalization or specific care. They could be treated by the owner, including the Maine Coons. He did not expect that the Maine Coons would require surgery.
79Dr. Levasseur submitted a bill for $2,731.60 for his examination of the animals and the treatments prescribed. The invoice does not show that the amount was paid by AWS. It also shows that there was a previous balance of $15,649.34 owing from AWS to this clinic which was not explained. The respondent acknowledges that there is an error on this account in the form of an overcharge of $121.72 for medications.
After triage – to Dr. Robertson’s for boarding
80The inspectors testified that by the time Dr. Levasseur had finished his examinations, it was very late. The cats were therefore boarded at a facility owned by Dr. Robertson. He attended sometime after midnight and arranged for water and food for the cats. A bill for the cost of emergency boarding was submitted in the amount of $280 plus HST for overnight boarding of the cats (i.e. $40 per cat – with nothing charged for the kittens).
From Dr. Robertson’s Facility to the Peterborough Humane Society
81The following day, the cats were taken to the Peterborough Humane Society (PHS) where Dr. Robertson is the Chief Medical Supervisor. He testified that he had little information about the cats’ general well-being at that shelter, although the invoice from PHS shows that AWS was invoiced for two veterinary exams by Dr. Robertson at $75 each. The reason for those two examinations, the dates of the examinations, which cats they were for, and the results of the examinations were not provided in evidence.
82Dr. Robertson confirmed that the care at PHS was mainly boarding, other than for the two Maine Coons who eventually received surgery, though not during the period at issue on this appeal.
Statement of Account
83The Statement of Account was served on the appellant on April 4, 2022. It covered costs from the day of removal to March 31, 2022 and was for $8,416.00. The appellant appealed the Statement of Account.
Decision to Keep in Care
84On May 12, 2022, some two months after the animals were removed, the CAWI through her delegate made a decision to keep the cats in the care of AWS. The decision was made by Mr. Mike Draper who is a senior regional supervisor for AWS. The basis for the decision was Mr. Draper having reasonable grounds to believe that the animals may be placed in distress if returned to the appellant pursuant to s. 31(6)(b)(i) of the Act.
85Mr. Draper testified that his decision was based on his review of the brief relating to the current removal and the brief relating to the cats in the U-Haul. He concluded that the circumstances were similar, that the cats would not have access to adequate food, water, bedding or kitty litter if returned and that the home was poorly ventilated. He determined that there was a pattern of conduct with respect to the appellant and the conditions her cats were exposed to which, in his opinion, fell below the standard of care. On that basis, he formed reasonable grounds to believe the animals would be placed in distress if returned to the appellant. He also considered that the appellant would not be able to provide care for the cats, given her financial circumstances.
86The decision to keep in care refers to 7 cats and 6 kittens. I do not recall any testimony regarding what happened to the other kitten that had been removed.
87I asked Mr. Draper what the authority was of AWS to keep the cats in boarding prior to making the decision to keep in care. The witness said that he did not wish to have a legal discussion.
88Prior to closing arguments, I informed the respondent that I would be seeking its submissions on the authority to keep the cats in care absent a decision to have done so under the Act. I will address this issue in my analysis below.
The Appellant’s Evidence
89As noted above, the appellant complained about the inspectors’ entry without a warrant and that her cats were taken without the inspectors asking her any questions. She testified that she was not asked what she was feeding the cats or whether they had been to the vet. She testified that she would have liked the opportunity to learn what needed to be done on behalf of her cats and to do it.
90The appellant gave various explanations for why her house was a mess and smelling strongly of cat feces and ammonia. She testified that she had only just moved in and that the smell came from the bags of items that she had recently retrieved from storage. She explained that her cats are trained to use the toilet and also that she uses cardboard instead of kitty litter which she then empties into the toilet. She produced a photograph of a cat appearing to use a toilet.
91The appellant explained that she fed her cats raw meat and proper cat food. She said there was water in the taps and that they did not go without water. She further noted that Dr. Levasseur did not say that any of the cats were dehydrated.
92The appellant testified that she knew the Maine Coons had an eye infection and that she had come to Toronto to take them to the vet. She claimed she had already taken them to the vet once but did not produce documentation of any such visit, nor did she call a vet to testify to any current care. At a different point in her testimony she gave a different reason for being in Toronto – namely, to be near her father.
93The appellant also claimed that her cats were vaccinated and produced some proof of some vaccinations for some cats but those vaccination cards did not show that they were for the cats at issue on this appeal.
94The appellant called one of her former vets as a witness to testify to her ability to care for her animals. While this doctor did recall the appellant and recalled that she was a caring person, he had not seen the appellant for at least four or five years and it was unclear how many of her cats he had actually treated. No veterinary records were submitted with respect to this veterinarian’s care.
95The appellant also put in a letter from a different previous vet, again attesting to her ability to care for animals, however this letter was from 2012.
96The appellant put in various other exhibits, such as photos of cat passports and a receipt for the U-Haul. She testified that some of her cats came from Ukraine and were of pure pedigree and a champion line.
97Prior to closing, and over the objection of the respondent, I allowed the appellant to file some further photographs in as exhibits. These were of various vaccination cards that could not be linked to any particular cat and were not recent. She also put in an email, purportedly from her landlady, saying that she had only just moved in the day before the removal. I accept the appellant’s testimony that she only recently moved in, though the email is of little weight. As the respondent points out, it appeared to be sent from the appellant’s own email address.
98The appellant also had various explanations about how she came to have had so many cats a few months prior in the U-Haul, though none of those explanations were particularly clear. At the last hearing before the Board, the member concluded that she faced a housing crisis at that time. There was also evidence that the appellant had been through a fire and a flood at her previous residences, though again the timing is not clear.
99The appellant tried to dispute evidence that she had agreed to at her earlier hearing about the cats in the U-Haul being in distress, but this evidence was not convincing and I did not let her continue down that road for long given the agreed facts at the prior hearing that all of those cats were in distress at the time of their removal.
100The appellant’s testimony on the whole was difficult to understand. Not because she faced a language barrier, which she did, to an extent,10 but because she refused to, or simply could not, explain herself or answer questions in a straightforward way. I found the appellant’s evidence for the most part, to be unhelpful. She tended to circle around the questions asked or give explanations that contradicted what she had said previously.
101With respect to her financial circumstances, the appellant at one point testified that she divorced in 2018 and that her house had been sold at that time for $3.4 million. She gave that evidence in the course of explaining that she therefore had “lots of money” to care for the cats. I asked her to clarify whether she did or did not have that money, given her submission that she could not afford to pay the Statement of Account. She replied to me, “what a stupid question.” Then she stated that she was on ODSP. The appellant did submit her tax returns and ODSP stubs which – assuming she does not in fact have savings from the sale of her house or from other sources – did show that she was fairly impecunious11.
102The appellant gave no evidence about whether she had cleaned up her apartment since the removal nor was it clear whether she even still resided at that address.
E. LAW & ANALYSIS
Preliminary Issue – Who bears the burden in appeals before the ACRB
103The question of who bears the burden on an appeal before the Board is an issue that arises regularly before the Board, particularly with respect to a Statement of Account.
104The respondent argues that on an appeal of a Statement of Account, the appellant bears the burden of proof on a balance of probabilities to show that the Statement of Account should be varied or revoked. The respondent argues that because the appellant is the moving party, and it is her appeal, it should be her burden.
105In support of its position the respondent refers me to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 12 at paragraph 44 where the majority said:
… 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.
106The respondent argues that given the use of the word “appeal” in the statute, normal appeal procedures should apply and the appellant should therefore bear the burden. The respondent relies on Smith v. Nevins13 in support of this proposition, quoting the near century-old case at page at page 638 that “he who asserts must prove.”
107In my view, the respondent is taking Vavilov out of context. The portion of the paragraph not cited by the respondent14 and the case as a whole, makes clear that the Court in Vavilov is considering the word “appeal” in the context of an appeal to a Court. It is not referring to an appeal that triggers a hearing by an administrative tribunal in the first instance as that word is used in the PAWS Act.
108In the context of the PAWS Act specifically, there is, in my view, a convincing reason to presume that the legislature meant something different at a hearing of an appeal before the Board than the procedure used on an appeal to a Court. Section 38(8) specifically refers to the procedure before the Board. This section entitles the parties to hear evidence, cross-examine, and call witnesses among other things. It establishes that an appeal under the PAWS Act proceeds as a hearing, not as an appeal to a Court. The Act is silent as to who bears the burden at that hearing.
109The respondent referred me to previous cases of the Board in which the burden of proof was found by this Board to rest with the appellant on an appeal of a Statement of Account.15 In my view, for reasons expanded on below, those cases are wrong.
110In Freeman v. Chief Animal Welfare Inspector16, I stated that the respondent bears the initial evidentiary burden to justify its account. I referred to the Superior Court’s decision in OSPCA v. Straub17 in support of this position. Straub considered the predecessor legislation and found that:
32Although 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.
111The respondent submits that Straub put the onus on the appellant because it was an action for the recovery of amounts owing and therefore, as the plaintiff, the OSPCA bore the burden of proof. However, I do not see the Court’s commentary in Straub as referring to the plaintiff as the moving party but rather to the plaintiff as the OSPCA more generally (or here, the AWS). Regardless of the forum, if AWS wants its account to be paid by the owner or custodian it needs to show it acted reasonably and must justify the charges included in the account.
112The Court in Straub also cites at paragraph 12, the decision of Sheets v. OSPCA in which the obligation of the Society to justify its costs is also noted. In that case, the Court said:
I think the Society for the Prevention of Cruelty to Animals must be taught that if they are going to seize animals, they will have to keep records of the cost of maintaining those animals, and if they do not keep those costs, and keep records, and be able to show a proper basis for the charges that they are asking, that they are going to suffer as a consequence.
113In addition to my own decision in Freeman, numerous other cases before the Board have placed the burden on the respondent.18
114As well, there appears to be no dispute that where a removal order is appealed, it is the respondent’s burden to show that the removal was authorized under the Act. I see no principled reason why an appeal of a Statement of Account should be any different.
115The Superior Court in Hurley also confirmed the propriety of hearing from the Respondent first. In Hurley, the Court conducted a hearing de novo of an appeal before the Board (which was the process of an appeal to the Court under the OSPCA). At paragraph 12 of that decision, the Court held that,
As the appeal is configured as a trial de novo, the respondent put its case in first, so that the appellant would have every opportunity to test it, and meet it with her own evidence.19
116In addition to leading its case first at the de novo hearing in Hurley, the Court also clearly placed the burden on the respondent to justify its actions, stating at paragraph 154 that “the evidence of the respondent satisfies me, on the balance of probabilities that ….” [my emphasis].
Fairness requires the respondent to bear the initial evidentiary burden
117As a matter of fairness, it also makes sense to place the initial evidentiary burden on the respondent to justify its actions on an appeal before the Board before the appellant should bear any burden. This is because it is only the respondent who is in possession of the information pertaining to its decision.
118In many cases, as in this case before me now, the owner will have no understanding at all as to why the animals were taken, where they were taken, what care was provided to them or why. The idea a party in that position should have to prove that the costs were unreasonable, or unauthorized, or not for the purpose of necessaries, for example, is simply unreasonable, and places the appellant in an impossible and unfair position.
119I am including at Schedule A, a copy of the Statement of Account in this case. It gives totals, it does not break down the costs that went into each item, nor does it provide specifics or reasons for those costs. It also does not attach invoices or proof of payment, nor does it even include the names of the people or places who provided the claimed necessaries.
120It is not a fair process, in my view, to impose an onus on an appellant to build a case based on information that is not in the appellant’s possession. Particularly, as here, where the consequences of the appeal are significant. A statement of account can be enormous. Further, if the owner does not pay within a prescribed period, their pets are forfeited.
121I asked Mr. Sukerman for the respondent’s position as to how the appellant could prove something that is not in their power to prove, given that typically no information is provided to an owner as to what costs were incurred or why, nor is the owner invited to participate in the decision making as to the costs incurred. The respondent answered that if an appellant does not know why they are appealing, they should not appeal.
122The Chief Animal Welfare Inspector was in attendance at the hearing and was provided the opportunity to consult with Mr. Sukerman to confirm or clarify its position for the record. After obtaining his client’s instruction, Mr. Sukerman confirmed the Chief Animal Welfare Inspector’s view that it should not have to do anything at all other than put in its Statement of Account reflecting costs it says it incurred for necessaries. The CAWI submits that the appellant should have to pay that account in full, notwithstanding that she may have no information whatsoever about what the costs were for or why or when they were incurred and under what authority. It is further the CAWI’s view that if an appellant appeals the Statement of Account, she must bear the sole burden of showing that the account was not reasonable or for the provision of necessaries or that it should be varied or revoked for some other reason, again notwithstanding that the appellant would have no such information on which to challenge those costs.
123When asked how an owner could possibly acquire the information about the costs included in a Statement of Account, the respondent maintained that the owner would have to request the information or make inquiries to uncover the information on which the account was based. The respondent submitted that the appellant would have to obtain the invoices and other relevant information, to learn where the animals had been taken and what necessaries had been provided to them and to conduct its own analysis of whether those costs were reasonable, etc. With that information in hand, the owner could then assess whether it should appeal the Statement of Account, and if it chooses to do so, it would bear the burden of putting forward the evidence to show that the account as it stands in its bare bones on the Statement of Account should be varied or revoked.
124Implicit in the respondent’s submission, is that the appellant should also have to have done this research and obtained the documentation necessary to know whether it should appeal within the 5 business days it is given to appeal under the Act.
125With respect, the respondent’s position betrays a lack of consideration for the principle of fairness and fails to take account of reality. In my view, fairness demands that the party in sole possession of the relevant information bear the initial evidentiary burden.
126I note that the burden is also on the respondent in most appeals before the Licence Appeal Tribunal (LAT) where an appellant has appealed a decision of a regulating authority to take a particular action in relation to that person’s licence. In such cases, the onus is on the respondent to put in its case first and satisfy the decision-maker that its decision or proposal should be confirmed or carried out.20 The LAT is governed by the same rules of practice and procedure as the Animal Care Review Board.
The Board is entitled to control its procedure, including the order of evidence
127Finally, I note that s. 39(2)(b)(ii) of the PAWS Act authorizes the Board to make rules governing the process and procedure before it. The rules that the Board may make are broad and include the authority to determine the order in which the issues and evidence in a proceeding will be presented.
128While there is no specific rule of the Board respecting the order in which issues and evidence will be called at a hearing, the Board’s Rules do govern proceedings before the Board21 and Rule 3.1(a) provides that the rules will be liberally interpreted and applied and may be waived, varied, or applied on the Tribunal’s own initiative, or at the request of a party, to “facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative” (my emphasis).
129The Statutory Powers Procedures Act22 at s. 25.0.1 also authorizes the Board to determine its own procedures and practices including the power to make orders with respect to the procedures and practices that apply in any particular proceeding.
130In my view, fairness requires the respondent to call its case first and to justify the costs it is asking the Board to confirm.
Conclusion on burden of proof
131Under the PAWS Act, a Notice of Appeal triggers a hearing before the Board. At such a hearing, it falls to the respondent to justify its actions and show that those actions or decisions were authorized under the Act. With respect to a Statement of Account, it must prove that the costs were for the provision of necessaries in one of the contexts allowed under the Act and that they were reasonable and appropriate in the circumstances. For that purpose, the respondent must call its case first. If it does not meet this burden, the statement of account will not be confirmed. This is consistent with the Court’s comments in Straub, and in Sheets, and in Hurley – all of which are decisions of a Court and are binding on this Board. This procedure is also consistent with many prior decisions of the Board as to who bears the burden. It is also consistent with the discretion afforded to the Board under the Rules and the SPPA; and it accords with the principle of fairness.
Whether the Statement of Account should be Confirmed, Revoked or Varied
132The Statement of Account is for $8,416.00. It is dated April 4, 2022, but states that it covers costs as of March 31, 2022, which is 20 days from the date of the removal.
133Pursuant to s. 35(1) of the Act, if an animal welfare inspector has provided an animal with necessaries to relieve its distress, or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care, the Chief Animal Welfare Inspector may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.
134Following a hearing, the Board may confirm, revoke, or vary a Statement of Account pursuant to s.38(9) of the Act. The statute does not limit the Board’s discretion with respect to the factors that can be considered in making this determination in any particular case.
135As noted above, the respondent has the onus to justify the costs included in a Statement of Account to be successful in having it confirmed.
136Here, the respondent has adjusted one error on one of the invoices included on the Statement of Account in the form of an overcharge. Other than that, the respondent’s position is that the costs are all reasonable and should be paid.
137The appellant disputes the reasonableness of the costs, asserting that her animals never should have been taken and that AWS should not have entered her house without a warrant. She further claims that she lacks the ability to pay the account.
138In the factual background above, I found the removal to be authorized, even though the entry without a warrant was not.
139As I will discuss, below, however, the legitimacy of the removal does not in and of itself authorize the costs that follow.
Allowable costs in a Statement of Account
140Section 35 does not afford the CAWI free licence to incur costs in relation to animals that were removed. Rather, those costs must be in relation to “necessaries” and are authorized in only two circumstances:
where an animal welfare inspector has provided an animal with necessaries to relieve its distress; and
where the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care.
141With respect to the Statement of Account at issue before me, the CAWI did not make a determination that it was necessary to keep the animals in care pursuant to s. 31(6) until two months after the removal.
142As a starting point, therefore, the costs claimed in this Statement of Account must be in relation to necessaries provided to relieve the animals’ distress; they cannot be in relation to keeping the animals in care as no such decision had been made at the time this Statement of Account was served.
The meaning of necessaries
143The respondent points to the Statement of Account provisions in the previous legislation to note that the costs that could be claimed under the OSPCA were for “food, care and treatment.” Under the PAWS Act, the legislature has used the word “necessaries,” which the respondent submits is somewhat broader. I was invited to apply the Black’s Law Dictionary definition of necessaries:
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.
144In my view, the above definition does not expand the meaning beyond what was in the old statute – being “food, care or treatment" – since care as defined in the Regulations would include shelter; and treatment would include medical treatment.
145I turn now to the specific items claimed:
Dr. Robertson’s costs of issuing the Certificate of Removal - $100 + HST = $113
146Dr. Robertson issued an invoice to AWS that included a bill for $100 plus HST for his telephone call with Inspector Vandenkroonenberg and his signing the certificate of removal.
147The respondent submits that this cost is properly part of the “necessaries” provided to relieve the animals’ distress because the necessaries that were ultimately provided could not have been provided without that consultation. I am not persuaded by that logic. I find that Dr. Robertson’s retainer to provide an opinion to AWS about an animal’s removal does not fit the definition of necessaries. In support of this position, I rely on the reasoning of the Superior Court in Pryor v. OSPCA23 where the court considered whether the OSPCA, under the predecessor legislation, could claim the cost of transportation of animals following removal in its Statement of Account. The Court concluded at paragraph 51 that removal is for the purpose of providing food, care, or treatment and that the OSPCA therefore contemplates that the provision of necessaries follows removal. Under the PAWS Act, the structure of the provision is the same: an inspector may remove an animal from where it is and take possession of it “for the purpose of providing necessaries…” Thus costs that are incurred prior to the removal are not allowable in a Statement of Account.
148As a result, I find that AWS’ phone call with Dr. Robertson and his involvement in certifying the removal is not part of the necessaries provided to the animals to relieve their distress. That cost should not be contained in a Statement of Account.
Costs of Dr. Levasseur’s examination and medications prescribed
149The respondent notes an error in the invoice from the VCA Emergency Clinic that reduces the amount of the invoice by $121.72.
150I am satisfied that Dr. Levasseur’s examination was necessary to relieve the animals distress insofar as distress includes being in need of medical care. While the appellant suggested that her animals had recently been to the vet, I am not persuaded of this fact, as outlined in my review of the facts above.
151Given the condition of the cats in the U-Haul last November and the possibility that the cats taken on March 11, 2022 had been together with those cats and could have been suffering from similar health issues, including ringworm, and given the observations that at least some of the cats appeared to have upper respiratory infections, I find the cost of this veterinarian examination was necessary and for the purpose of relieving the animals’ distress. Dr. Robertson in signing the certificate of removal further confirmed that it was necessary to have these animals seen by a vet.
152I note further, that had AWS issued a compliance order to take the animals to the vet, that cost also would have been borne by the appellant, pursuant to s. 30.
153The respondent put in the invoice for Dr. Levasseur’s account as well as the medical records showing exactly what examinations were conducted, and what was prescribed. I am satisfied that this bill is reasonable. Dr. Levasseur did not charge for his examination of the kittens.
154Even though many of the medications were precautionary – for example flea and worm treatment because of the cats’ alleged previous living conditions, or probiotics because of concerns about diet with the U-Haul cats – I am satisfied that these were proper and reasonable expenses in the circumstances.
Boarding at Dr. Robertson’s Facility and at Peterborough Humane Society
155In considering whether to confirm the costs claimed for boarding in this case, I must consider whether boarding was a necessary to relieve the animals’ distress.
156Dr. Levasseur testified that other than the two Maine Coons, the cats were not in distress. In re-examination, he confirmed that when he referred to distress, he understood the definition as set out in the Act.
157The seven kittens were healthy. Their mother had some fecal scalding that could be addressed with shampoo but no other issues. The two pregnant cats were also fine, other than some fecal staining (not scalding). The Balinese were both healthy. All of the cats had a healthy score on the body-composition scale. None of the cats were noted to have trouble breathing and none were dehydrated.
158All cats were prescribed Panacur and Revolution for parasites and worms, which was preventative and not because they were diagnosed as having parasites or worms. They were also given probiotics and shampoo. The two Maine Coons were prescribed antibiotics and ointments for their eyes and needed to be kept separate from the others but Dr. Levasseur confirmed that all medications could be administered by the owner, including for the Maine-Coons and that none of the animals required hospitalization, though some would require follow up.
159Why in light of those conclusions were the animals taken to boarding after the examination by Dr. Levasseur instead of being returned to the appellant? The answer was clear from the evidence. The AWS had concerns based on their prior interactions with the appellant and their observations of her current residence that she would not be able to provide appropriate care for those animals. The condition of her house, the lack of ventilation, the possibility the cats would not receive appropriate food or water, and would be subject to unacceptable levels of ammonia with little room to move around were all factors that meant the animals could be placed at risk if returned to the appellant. Moreover, it was uncertain whether the appellant could or would administer the medications prescribed for the animals or keep the Maine Coons separate from the other cats, or attend for follow up veterinary appointments as required.
160However, these are precisely the factors that would have allowed the respondent to have made a decision to keep the animals in care pursuant to s. 31(6) which the respondent did not make until two months after the removal and after the Statement of Account at issue on this appeal was served. In my view, AWS does not have authority to keep the animals in boarding without making that decision in accordance with the Act.
AWS authority to keep an animal in care without making a decision to keep in care under s. 36(1) of the Act.
161The relevant portion of section 31(6) reads as follows:
The Chief Animal Welfare Inspector may decide to keep an animal that was removed under subsection (1) if
(a) the Chief Animal Welfare Inspector determines it is necessary to relieve the animal’s distress; or
(b) the Chief Animal Welfare Inspector has reasonable grounds to believe that,
(i) the animal may be placed in distress if returned to its owner or custodian …
162As noted above, Mr. Draper made a decision as the designate of the CAWI on May 12, 2022 to keep the animals in care – some two months after the animals were removed. I asked him what the respondent’s authority was for keeping the animals in care prior to that decision having been made, but Mr. Draper was unable to answer, which is fair, as this is a legal question. After his testimony, and prior to the return of the proceedings the following day, I informed Mr. Sukerman that I would be asking for his legal submissions on that issue during his closing submissions.
163The respondent submitted on closing that the decision to keep an animal in care without making a decision to keep in care under the Act was an issue that was not before me on this appeal. The respondent submitted that it was a “complex policy decision” that was outside the jurisdiction of this Board to consider.
164With respect, the respondent’s authority to keep an animal in care is not a matter of policy. It is a matter of law. And the decision to keep an animal in care must be guided by the legislation.
165Moreover, this issue is relevant to whether an appellant should be liable for the costs of keeping an animal in care if that decision was not made in accordance with the Act.
166Here the statute says that the CAWI can make a decision to keep an animal in care under s. 31(6) in two scenarios – both of which might have applied in this case: One basis is if the CAWI has determined it is necessary to relieve the animals’ distress. The other is if the CAWI has reasonable grounds to believe that returning the animals will placed them in distress. It is informative that the authority to remove an animal from where it is and the authority to keep an animal that has been removed in the respondent’s care, are subsections of the same provision – sections 31(1) and 31(6). This suggests that once the initial necessaries have been provided, a decision has to be made whether to return the animals or keep them in care. There is no authority to keep an animal in care without making that decision. To do so deprives an owner of the right to appeal that decision and the ongoing right to seek the return of their animals under s. 38(4).
167The right to appeal a keep in care decision is set out in s. 38(1). An appeal must be made within 5 business days of the decision. But even if the decision is not appealed, or it is appealed but the animals are not returned, an owner or custodian has an ongoing right to apply for the return of the animals under s. 38(4) of the Act and there is no time limit for doing so. The request can be made, “if the conditions that caused the animal to be kept in the Chief Animal Welfare Inspector’s care have ceased to exist.”
168There is no authorized limbo period where the CAWI can unofficially keep an animal in boarding until some arbitrary future time when the respondent will make the “complex policy decision” that it will now officially make the decision it has, by its actions, already made. Where are the appellant’s rights in the interim? How long is the respondent entitled to keep the animal without making such a decision? One week, three weeks, two months – as in this case? Maybe a year in other cases? And throughout the entirety of that time, the appellant has no right of appeal, no avenue to apply for the return of her animals, no right to any information, no right to know where the animals are or why they are there, no input into the cost of that care, and yet purportedly liable for those amounts once a Statement of Account is issued. Plainly, the respondent does not have such arbitrary, unspecified authority under the Act.
169In this case, I am not allowing the boarding costs. There was insufficient evidence to persuade me that it was necessary to place the animals in boarding to relieve their distress. Other than the two Maine Coons, the remaining 5 cats and 7 kittens were not in distress according to the veterinary examination. Dr. Levasseur further confirmed that all animals could have been returned to the owner with instructions for how to administer the medication and a requirement to keep the Maine Coons separate from the others.
170It is clear from the evidence that the animals were not returned because AWS had no confidence that the appellant could provide the prescribed treatment, or adequate care and I would agree with that assessment. But knowing that a decision to keep in care could be made under s. 31(6)(b)(i) is not the same as actually making the decision. Only the latter action affords the appellant the rights to which she is entitled under the Act; namely the right to appeal the decision under s. 38(1) and/or to apply for the return of the animals if the conditions that led to the decision have seized to exist.
171The unfairness to an owner of the respondent not making a proper decision under the Act is compounded when the CAWI then serves a Statement of Account in relation to necessaries provided during the time the animals are kept in care. Yet those costs were incurred by the AWS making a decision in such a manner that deprives an owner of the right to challenge it.
172The approach taken by AWS of keeping an animal in care without making the decision to do so under s. 31(6) also means that a decision that is meant to be made by the Chief Animal Welfare Inspector on principled grounds as set out in s.31(6) of the Act is instead made by an inspector. Yet this is an important decision with serious cost consequences and often personal consequences to an owner. To allow AWS inspectors to simply place an animal in boarding after removal for some arbitrary unspecified time is to allow a decision that is meant to be made by the CAWI only on specific grounds to be made instead by an inspector without any such required grounds and again without any recourse for an owner to challenge that decision. This is not in keeping with the legislation in my view.
173In this case, there is no doubt that the concerns of the Inspectors were well-founded. Given the past conduct of the appellant in relation to animals in her possession and the current circumstances of her living conditions, it is plain that the decision to keep the animals in care could have been made virtually immediately under s. 36(1)(b). Had this been done, the appellant would have been entitled to appeal the decision and even if she had not appealed the decision or was unsuccessful on appeal, she would have had an ongoing right to apply for the return of her animals under s. 38(4) at any time if she could remedy the circumstances that led to the decision. She was denied that due process. She should not be liable for the costs of care during that period.
174For the reasons set out above, I vary the Statement of Account to $2,814.88, which reflects only the cost of the examination by Dr. Levasseur and the medications provided to the animals, including the additional medications provided when they were at PHS, less the amount that the respondent acknowledges was an over-charge. No amounts are included for boarding.
The appellant’s ability to pay
175I agree with the respondent that an owner who has already reaped the benefit of a reduced statement of account based on ability to pay on an earlier appeal, ought not to enjoy that benefit a second time absent a very compelling reason.
176There is no such compelling reason here. I accept that the appellant may well have difficulty paying for the vet costs incurred in the Statement of Account, however the role of AWS should not be to subsidize the cost of providing adequate care for one’s animals. The evidence is clear that the appellant has owned cats for many years, and she is familiar with the need to provide vet care to her animals. I do not accept her evidence that she had already taken these particular cats or any of them to the vet. I find that it is appropriate that she bear the cost of this vet care.
177Moreover, the appellant was aware from the previous case with her cats in the U-Haul that keeping animals in a small space with poor ventilation could lead the animals to be in distress. Whether the smell of ammonia in her apartment was from the bags of old clothes or not, I accept the Inspectors’ testimony that the levels were high and it is evident that the appellant was not addressing that issue.
178Given the above, and given that the appellant was given the benefit of an adjustment when she appealed the Statement of Account after the U-Haul cats were taken, my view is that she ought not to receive that benefit a second time.
179Regardless of the appellant’s financial situation, she will have to pay the $2,814.88 of vet care within 10 business days of the release of this order, or her cats will be forfeited. While the CAWI does have the discretion under s. 35(5) to enter an agreement with the appellant to extend the time for paying this amount or reducing it, it is clear that the CAWI would not be doing so in this case.
Conclusion re: Statement of Account
180For the reasons given above the Statement of Account is varied to reflect the cost of medical care as follows:
Veterinary Costs per Statement of Account, April 4, 2022
$3,186.60
- less $100 for Dr. Robertson’s advice to AWS re: removal
-$100
- Less $150 for Dr. Robertson’s exam at PHS for which no evidence was provided
-$150
- Less $121.72 reflecting the overcharge on the VCA invoice
-$121.72
Varied amount
$2,814.88
Whether the Animals should be returned
Preliminary issue – the Board’s authority to order the return of the animals
181The respondent objected to the appellant being allowed to argue for the return of the animals at this hearing given that this was initially an appeal of a statement of account only. The respondent submits that because the appellant did not appeal the removal, the return of the animals is not before me to consider. For the reasons that follow, I overruled the respondent’s objection at the beginning of the hearing after receiving submissions from both parties.
The Board’s powers after a hearing
182Section. 38(9) provides that after a hearing, the Board may do one or more of the following:
Confirm, revoke or modify an order made under section 30.
Order that an animal removed under subsection 31 (1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian.
Confirm, revoke or vary a statement of account served under subsection 35 (1).
Order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under section 30 be paid by the Minister to the owner or custodian.
Order that the whole or any part of the cost to the Chief Animal Welfare Inspector of providing necessaries to an animal pursuant to its removal under subsection 31 (1) or (2) or the determination to keep an animal in the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8) be paid by the owner or custodian of the animal to the Minister of Finance.
183On a plain reading of this section, I find it is open to the Board to order the return of an animal removed under 31(1) or kept in care under 31(6) regardless of the appeal process that triggered the hearing.
184To the respondent’s complaint that it was not prepared to proceed on this issue, I note the following: the appellant’s Notice of Appeal of the Statement of Account makes clear she is seeking the return of her animals. The May 11, 2022 Case Conference Report and Order (CCRO) also makes clear that she continued to request this remedy at that stage of the proceedings. The CCRO also contemplates that the appellant could raise the issue of return of the cats at the hearing if she set out her grounds by a certain date. She did provide her grounds, albeit late and they are not particularly clear, but there can be no surprise to the respondent that the appellant would be requesting the return of her animals at this hearing.
185The respondent submits that if the appellant wanted her animals returned she should have appealed the removal and notes that the appellant did not even appeal the keep in care order once it was finally made. The appellant’s representative advised that she did not think it was necessary to appeal that latter decision since a hearing had already been scheduled for the appeal of the Statement of Account where she would be entitled to raise the issue of return of the animals as acknowledged in the CCRO. I accept this reason. With respect to not having appealed the removal, the Act does not contemplate that an owner would never be able to apply for the return of their animals just because the removal was not appealed.24
186In any event, despite raising its objection multiple times, including after my ruling had been made, the respondent also acknowledged that the appellant had an ongoing right under s. 38(4) of the Act to apply for the return of her animals at any time now that the decision to keep in care had finally been made under s. 31(6). The respondent further acknowledged that once the appellant had applied under 38(4) of the Act for the return of her cats, she would be entitled to a hearing and at that hearing, the same witnesses and much of the same evidence would be called. Meanwhile the costs of caring for the cats would continue to accrue for one party or the other. This is not an efficient use of Board’s or the parties’ resources25.
187Thus I allowed the issue of the return of the animals to proceed at this hearing. Section 38(9) of the Act gives the Board the power to return animals after a hearing without limiting the type of hearing where this power can be exercised. The respondent also has an ongoing right under s. 38(4) to apply for the return of the animals once a keep in care decision has been made and efficiency favours that decision being made now.
188Although I found that the respondent ought not to have been surprised that the return of the animals might be an issue at this hearing, I nonetheless allowed the respondent additional time to prepare for this issue if required, including the ability to seek an adjournment to ensure procedural fairness to both parties. I also assured the respondent that it could have leeway to call evidence in reply if issues arose in respect of the return of the cats for which it had not prepared. The respondent did end up spitting its case in this regard, calling its inspectors and the veterinarians first, and Mr. Draper after the appellant had called her witnesses and testified.
189Having concluded that the appellant may seek the return of her cats on this hearing, I turn now to my analysis of this issue.
Should the Cats be Returned?
190To be clear, I share the respondent’s concerns that the appellant may not be able to provide adequate care for her cats if they are returned. While the circumstances that led to her having so many cats in the U-Haul last November remain unclear other than the finding in the prior case that she faced a housing difficulty at the time, she nonetheless had more cats than she could evidently care for and all were in distress when they were found. While the current set of cats were fewer in number, one of those cats had just had kittens and two of the others have since had kittens. If the cats are returned, the appellant will already have exponential growth to contend with. There is no evidence that she has adequate living arrangements to provide a basic standard of care for such a number of cats.
191I am content with the appellant’s explanation that she only just moved into the home where the inspectors attended, and that at least some if not most of the smell of ammonia and feces was from items recently retrieved from storage that retained the smell from the hoard of cats previously owned by the appellant. Nonetheless, her home was unsanitary as shown in the photos, and lacking ventilation at that time, which does not meet the basic standard of care set out in the Regulation.
192As well, it is unclear where the appellant even lives now.
193I also have concerns about the appellant’s ability to provide adequate and appropriate medical attention for her cats. This too is a basic standard of care required under the Regulation.
194All that being said, however, it is also the case that only two of the 14 cats removed were in distress according to the veterinarian who examined them.
195Moreover, the appellant does not have a prohibition against owning animals – as might have been ordered by a Court, for example, if she had been charged under the offence provisions in s. 49 of the Act and convicted.26
196I have also found that the appellant was treated unfairly by the respondent in at least two regards in this case – one is in having AWS enter her home without a warrant when the grounds for warrantless entry were not met. The other is in keeping the cats in boarding when most of them were not in fact in distress, and without having made the decision to do so as required under the Act, which would have provided the appellant the opportunity to challenge that decision.
197Ultimately, while I share the concerns about the appellant’s ability to provide for her animals, I find that in all the circumstances it is fair to give her the opportunity to try.
198Section 38(10) allows the Board to make an order to return an animal subject to compliance with a further order issued by the Board in the same terms as an order under s. 30. This means that I may order the appellant to take such actions as may, in my opinion, be necessary to ensure that the animals are not in distress when returned. This order may include, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.
199The appellant should note that pursuant to s. 38(10), the terms of my order can be enforced as if it were a s.30 order issued by an Animal Welfare Inspector. Failure to comply with such an order can result in the removal, again, of the animals pursuant to s. 31(1)(c) of the Act and can result in other potential penalties under the offence provisions of the Act if AWS decides to pursue charges against the appellant and she is found guilty.
200The terms of my order are set out below, and include, among other things, the requirement that the appellant provide an adequate and appropriate living space for the cats that meets the standards of care set out in s. 3 of Regulation 444/19. This includes providing the cats a home with adequate ventilation and light, access to kitty litter, access to appropriate food and water, suitable bedding, and sanitary conditions. The appellant shall also provide adequate and appropriate medical treatment for her cats as further described below.
F. CONCLUSION
201For the reasons given above, the Statement of Account is varied to $2,814.88. Assuming the Statement of Account is paid within 10 days of the date of the release of this decision (and subject to any further statements of account being served which may be appealed), the cats shall be returned to the appellant subject to the conditions outlined below in my Order.
202This case has provided the opportunity for the Board to examine the interplay between various provisions of the Act and to consider the actions of AWS against its powers as set out under the Act. Although the concern of AWS is with the protection of animals, the Board nonetheless has a role to play to “ensure that provisions in the Act that protect the rights of animal owners are taken seriously and scrupulously adhered to” by the respondent.27
203In this case, the distress of the cats in the U-Haul was serious and provided reasonable grounds for the respondent to be concerned that future cats owned by the appellant might be at risk of distress. But these concerns did not authorize warrantless entry into the appellant’s dwelling, nor did it authorize AWS to keep the animals in care for months without making a decision to do so under s. 31(6). The decision to keep an animal in care is a decision that must be made by the CAWI or her designate on specific grounds. It cannot be made by an inspector on unspecified grounds in a context that deprives the appellant of her right to challenge that decision under s. 38 (1) of the Act or to otherwise pursue the return of her animals under s. 38(4).
G. ORDER
204The Board Orders as follows:
The Statement of Account dated April 4, 2022 is varied to $2,814.88.
If the appellant fails to pay the varied Statement of Account within 10 business days from the date of the release of this order, the animals will be forfeited to the Crown per s. 35(4)(b) of the Act, unless the parties otherwise agree in writing.
Once the Statement of Account is paid (and subject to the respondent serving a further statement of account which may be appealed), the animals shall be returned to the appellant pursuant to s. 38(9) and 38(10) of the Act subject to the following conditions:
a) The appellant will provide proper care for all animals in her possession as set out in s. 3 of Regulation 444/19 including, but not limited to, providing every animal with adequate and appropriate:
i. Food and water;
ii. Medical attention;
iii. Access to kitty litter;
iv. Resting and sleeping area;
v. Space to enable the animals to move naturally and to exercise;
vi. Sanitary living conditions, free of fecal matter and urine;
vii. Ventilation;
viii. Light; and
ix. Protection from elements.
b) The appellant shall, at her own expense, continue any current medical treatment that any cats are receiving at the time of their return, including administering any prescribed medications and arranging for any follow up appointments as may be necessary;
c) In addition to the above, the appellant shall ensure that all cats are examined by a veterinarian at least once every 18 months;
d) The appellant shall provide AWS with documentation from the veterinarian outlining the examination findings, and the treatments recommended and undertaken;
e) In the alternative to (d), above, the appellant may provide AWS with the contact information for the veterinarian and sign any consent forms necessary for AWS to obtain information from the veterinarian directly; and
f) The appellant shall allow one or more AWS inspector(s) to enter and inspect her premises or any animals in her possession on 24 hours written notice by email or in person.
- This Order does not limit the power of AWS to enter the appellant’s residence at any other time on consent, with a warrant, or without a warrant where the conditions of a warrantless entry are met.
Released: September 9, 2022
Jennifer Friedland, Member
Footnotes
- R.S.O. 2019, c. 13.
- 77 cats were in the U-Haul, 3 were located elsewhere. The facts of the case were not in dispute and can be found at Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 3 (“Ishankova #1”). See also the Board’s reconsideration of that decision at Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 16 (“Ishankova Reconsideration”)
- The CAWI did make such a decision on May 12, 2022 approximately two months after the removal.
- There were no veterinary costs charged for the kittens.
- 2015 ONSC 7784 at paragraph 166, (“Hurley”)
- Ishankova #1, supra note 2 at paragraph 11.
- The Ontario Society for the Prevention of Cruelty to Animals.
- Hurley, supra note 5.
- A willsay statement by Dr. Levasseur was referred to later in the hearing by Mike Draper as a “report” that he relied on in forming his grounds to keep the animals in care. I advised the parties that I would not be relying on this willsay/report for my decision as it was not referred to or made an exhibit during Dr. Levasseur’s testimony. The parties did not object.
- The appellant testified with the aid of a formal interpreter. The interpreter was not present prior to her testimony, however during that time she responded to questions in English and also asked questions in English.
- The appellant’s 2021 tax return showed an income of $14,028.00
- 2019 SCC 65 (“Vavilov”)
- 1924 CanLII 70 (SCC)
- The paragraph continues: “Accepting that the legislature intends an appellate standard of review to be applied when it uses the word “appeal” also helps to explain why many statutes provide for both appeal and judicial review mechanisms in different contexts, thereby indicating two roles for reviewing courts” [my emphasis]
- See Flaro v. Chief Animal Welfare Inspector, 2022 ONACRB 5 para 30; Shekhurdina v. Chief Animal Welfare Inspector, 2021 ONACRB 15 para 19, Hobson and Rodrigues v. Chief Animal Welfare Inspector, 2021 ONACRB 19 para 70.
- 2022 ONACRB 12 (“Freeman”)
- 2009 CanLII 25138 (ON SC) (“Straub”)
- See for example: Jackson v Chief Animal Welfare Inspector, 2021 ONACRB 4, at para 8; Gowland v Chief Animal Welfare Inspector 2021 ONACRB 2, at para 11; Camacho v. Chief Animal Welfare Inspector, 2022 ONACRB 17 (reconsideration) at para 46; Tanis v. Chief Animal Welfare Inspector, 2021 ONACRB 22 at para 11; Donovan v Chief Animal Welfare Inspector, 2021 ONACRB 6, at para 13; Michon v. Chief Animal Welfare Inspector, 2021 ONACRB 14, at para 18.
- Supra note 5.
- See for example appeals pursuant to s. 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (which also uses the word “appeal”) but where the burden is on the respondent to show that its decision to suspend the appellant’s driver’s licence should be confirmed.
- The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”).
- R.S.O. 1990, c. S.22 (“SPPA”).
- 2014 ONSC 6485
- One reason why a removal may not be appealed is where an owner agrees with the removal. See for example, Tanis v. Chief Animal Welfare Inspector, 2021 ONACRB 22. In that case, the appellant did not dispute that her cat had an infection, was in distress, and required vet care. Thus she agreed that the Inspector should take the cat to the vet and had no basis to appeal the removal.
- I directed the appellant’s representative to send a request in writing to the Board seeking the return of the animals to satisfy the requirements of s. 38(4), though I do not believe this was necessary given my finding that s. 38(9) allows the Board to order the return of an animal regardless of what appeal avenue triggers the hearing.
- Under s. 49 of the Act, a person may be charged with breaching the standards of care for an animal, and putting an animal at risk of distress or permitting distress, among other offences. Upon conviction, these offences can carry significant fines or jail time or both. They can also result in a Court prohibiting a person from owning, having custody or care, or living with any animal, or any kind of animal, for any period of time, including for the remainder of a person’s life. The appellant is not and was not subject to any such prohibitions.
- Hurley, supra 5.