Tribunals Ontario
Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO Commission d'étude des soins aux animaux
Date: 2022-01-17
Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, SO, 2019, c.13
Between:
Nataliya Ishankova Appellant
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Adjudicator: Matthew M. Létourneau, Member
Appearances: For the Appellant: Alex Dolgonos, Counsel For the Respondent: Michael Draper, Regional Supervisor Sara Munoz, Regional Supervisor
Hearing by teleconference: December 17, 2021
OVERVIEW
1The appellant, Nataliya Ishankova, appeals a Statement of Account issued under the Provincial Animal Welfare Services Act, 2019 (the "Act"). The Animal Welfare Services (AWS) removed seventy-seven cats from a van the appellant had rented. Specifically, the appellant appeals the Statement of Account served by email on November 29, 2021.
2The appellant did not contest the facts as presented by AWS in support of the removal of the cats and the fact of having delivered a Statement of Account. The basis of the appellant's appeal is that she does not have the financial means to make payment towards the Statement of Account due to financial difficulties and health challenges.
3The result is that the Statement of Account is varied to $1,800, to be paid over 12 months.
ISSUE
4The only issue to be decided in this case is whether the Statement of Account should be confirmed, revoked, or varied.
RESULT
5For the reasons that follow, I find that the Statement of Account should be varied.
LAW
6Section 38(9) of the Act gives this Board the authority, after a hearing, to among other things:
"3. Confirm, revoke or vary a statement of account served under subsection. 35(1)."
7Subsection 38(2) of the Act allows for an appeal of a statement of account which has been served under the Act.
8The appellant bears the onus to show that, pursuant to section 38(9)3 of the Act, the statement of account should be varied or revoked.
FACTS
9In finding the facts, as set out below, I have considered the disclosure package submitted by the AWS at the hearing. This included a case summary, will-say of Inspector Taylor Jackson, a PAWS Notice of Removal of November 24, 2021, PAWS Statement of Account of November 29, 2021 and December 8, 2021, as well as invoices, medical information and photographs from the veterinarian. I have also considered the documents submitted by the appellant, including an ODSP Statement, tax statements for 2019 and 2020. No witnesses testified, as the appellant accepted the evidence as presented. The parties both made submissions on the evidence.
10By way of background, Inspector Jackson received a call on November 24, 2021 regarding animals in distress. He attended an address in North York and discovered a UHAUL vehicle emanating a strong smell of ammonia and feces, which the Inspector could smell despite wearing a surgical mask. He approached the appellant, who was in the van and gave her consent to inspect the van. Inspector Jackson observed many cats of varying types in distress. They appeared to be in distress due to the conditions of the vehicle and the lack of sanitation and food. The van was unclean, there was no food, and no litterboxes. The appellant explained that her house was flooded, and she had gathered the cats to bring to a friend. A zoom call with a veterinarian provided a Veterinary Certificate of removal given the animals' distress. The animals were removed and brought to a nearby veterinarian hospital. The veterinarian confirmed the distress based on the cats' conditions and their surroundings. 77 cats were taken in at that time and dispersed among 4 sheltering locations for ongoing care. Three more cats were located in a garaged at the residence in Vaughan and were in a similar stated. They were brought in for care as well.
11The cats were provided care from the shelter staff to alleviate their distress and to avoid exposing the other cats at the shelter to disease, such as ringworm. 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.
12On November 29, 2021, a Statement of Account and Notice of Removal of the appellant's cats was served in an email to the appellant, and she confirmed receipt. A further Statement of Account dated December 8, 2021 was provided and was accepted by the appellant. As of the date of the hearing, the cats remained in shelters and continued to receive ongoing veterinary medical treatment. The total account was $58,672.98, made up of $40,938.11 for boarding costs and $17, 734.87 for veterinary bills. The appellant did not contest this amount. She agreed to the amounts and accepted their accuracy but stated that she did not have the means to pay them.
Ability to Pay
13The appellant did not contest the above facts, the circumstances on the day of the cats' removal, the conduct of the inspector, nor the Statement of Account. The appellant submits that she does not have the ability to pay the Statement of Account.
14The appellant submitted that she had recently been divorced without receiving any money from this, was on ODSP and was losing her apartment. She provided a statement showing her monthly payment of ODSP being $1,169.00. Her income in 2019 was $7,136.66 for 2019 and $12,675.76 for 2020.
15She needed to relocate the cats and did not want to simply release them. They were pets and she sought to rehome them. While she did not contest the evidence of distress, she states that she does not have the ability to pay the Statements of Account, nor any future care, given her income and circumstances.
16The appellant's submissions were that she was renting a property and the owners wanted possession. However, the Inspector's report stated that the appellant mentioned a flood where she was living and the address, she was at belonged to a friend. She also said she had a lease on a farm where she could re-house the cats. The documents provided did not clearly set out these housing issues, but I find the appellant faced a housing difficulty.
17The appellant submitted that she rented a UHAUL vehicle and cages for the cats and was trying to navigate a difficult situation related to her housing difficulties. She states that the picture painted by the AWS notes are not accurate to the extent that they infer that she was had ill intents with the animals. She submitted that she loves cats and intended no harm. She was financially strained due to her divorce and housing difficulties. She sought help from members of her community, but despite her efforts she did not succeed. She also submitted she had a language barrier. Despite the Statement of Account being otherwise reasonable – in that it was accurate and reflected actual costs incurred – the appellant submitted that her ability to pay (based on the disclosure provided) warrants a variation of the amounts owed.
18The AWS submitted in response that they cannot be responsible for absorbing costs of this nature. There were significant health concerns for the cats. They did not seek to punish the appellant, and the Statement of Account represents the cost of care for the cats while under AWS care at the shelter. In their submission, the wellness of the animals is to be considered on a plain reading of the act and capacity to pay is not found as a criterion to consider under s. 39 of the Act. According to the AWS, the legislative intent of the Act is therefore to prevent neglect and cruelty and to provide a framework for accountability through removal of animals and accounts to relieve distress. The AWS submits that accounts should only be varied where distress was not demonstrated.
19The appellant did state there were relevant cases from the Board where the ability to pay was considered. This criterion has been applied by the Board, such as in Jackson v. Chief Animal Welfare Inspector, 2021 ONACRB 4, where member Foot considered the reasonableness of the amounts charged in the context of the appellant's ability to pay and the source of income of the appellant.
20I find that while the Act does not specifically state how the ability to pay is to be considered, it does not specifically bar it from being considered. The power accorded to the Board is to confirm, revoke or vary a Statement of Account. I find that this power has to be applied with a view to the legislative intent but also to the case-specific elements of the case.
21The most important consideration in this case is the distress experienced by the cats. This was not contested, and the evidence showed that it was serious and affected many animals. Thus, it would not be appropriate to revoke the Statement of Account entirely.
22Secondly, in considering the appellant's circumstances, I find that she has accepted the harm done, has shown that she does receive a very limited income through ODSP payments and has demonstrated difficulties in navigating this situation. Her willingness to pay something was clear at the hearing, but her inability to pay everything was also clear.
23Thus, I find that the Appellant cannot satisfy the Statement of Account, even if she was given a substantial amount of time to pay. I vary the Statement of Account to ensure that the appellant contributes to the alleviation of the animals' distress that were under her care and control. I vary the Statement of Account to $150 dollars a month for one year.
DECISION AND ORDER
24For the reasons set out above, the Board orders as follows:
a. The Statement of Account is varied to $1,800.
b. The appellant is required to make payment of the Statement of Account in the amount of $150 per month for the 12 months commencing February 1, 2022.
Released: January 17, 2021
Matthew M. Létourneau