Appeal under sections 38(1) and 38(2) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c.13
Between:
Taryn Camacho
Appellant
and
Chief Animal Welfare Inspector
Respondent
REASONS FOR DECISION AND ORDER
Adjudicator: Raymond Ramdayal, Member
Animal Care Review Board
Appearances:
For the Appellant: Taryn Camacho (self-represented)
For the Respondent: Sara Munoz, Regional Supervisor
Heard by teleconference: December 14, 2021
BACKGROUND
1The appellant appeals the removal of her three dogs from her home by Animal Welfare Services (“AWS”) for the purposes of relieving their distress. The dogs, all Bull Mastiff breeds, were removed from the appellant’s home on November 23, 2021, after the respondent served her with a Notice of Removal (“NOR”) order made pursuant to section 31(1)(c) of the Provincial Animal Welfare Services Act (“Act”). In addition to this, the appellant is also appealing a Statement of Account she was issued on December 3, 2021.
2The appellant’s involvement with AWS began on May 10, 2021 when an inspector from AWS attended the home after receiving a complaint regarding dogs and puppies being housed in unsanitary and dangerous living conditions. Two compliance orders were issued to the appellant on that day to address the sanitary conditions of the unit and to ensure the availability of potable drinking water for the animals. The appellant was given until May 25, 2021 at 12:00 p.m. to comply.
3A re-inspection was conducted by AWS on May 26, 2021 which revealed only minor progress on the cleaning and decluttering of the unit. However, the appellant informed AWS that arrangements had been made by a Children’s Aid Society (“CAS”) worker (who was working with the appellant) to obtain the assistance of VHA Home Healthcare who would facilitate the de-cluttering and professional cleaning of the unit.
4On day two of the scheduled cleaning appointment with VHA Home Healthcare, the appellant denied them access to her unit and declined all further services. Another meeting was arranged by the CAS worker to possibly reschedule the cleaning, however, the appellant failed to attend.
5In the months to follow, AWS tried to conduct a compliance check on the animals and condition of the unit. Their efforts were unsuccessful, so the AWS sought a warrant, which was executed on November 23, 2021. The resulting removal of the dogs is the subject of this appeal. The removal of the appellant’s dogs was to provide them with necessaries to relieve distress because of non-compliance with previous orders.
ISSUE
6The issues to be determined in this appeal are as follows:
a. Whether the removal of the appellant’s dogs was warranted; and
b. Whether the Statement of Account dated December 3, 2021 should be confirmed, revoked or varied.
RESULT
7For the reasons that follow, I find that:
a. The appellant’s dogs were in distress warranting their removal from the premises; and
b. The Statement of Account should be varied to $262.50.
LAW
8Section 24(1)(b) of the Act permits an animal welfare inspector to enter and inspect any place for the purpose of determining compliance with an order to relieve an animal’s distress under s.30. Section 24(2) of the Act requires, if the place to be entered is a dwelling, that the inspector have a warrant or the consent of the occupier to the entry.
9Section 31(1)(c) provides that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if, among other things, an order respecting the animal has been made under s.30 of the Act and the order has not been complied with.
10Distress is defined in s. 1(1) as “a state of being (a) in need of proper care, water, food or shelter, (b) injured, sick, in pain or suffering, or (c) abused or subject to undue physical or psychological hardship, privation or neglect.”
11Section 38(1) provides a right of appeal of a decision for removal by an animal welfare inspector and s.38 (2) allows an appeal of a statement of account.
12Section 38(9) gives the Board authority, among other things, to order that an animal be returned to the owner and to confirm, revoke or vary a statement of account served under s. 35(1).
PRELIMINARY ISSUES
Disclosure
13Oral evidence and testimony were relied on at the hearing. Both parties were given the opportunity to make submissions and respond to oral evidence. The appellant did not produce or rely on any documents in the hearing. With respect to the respondent’s disclosure, the respondent stated that disclosure had been provided to the appellant by email, however the appellant stated that she did not recall receiving it. She advised that she was nonetheless content to proceed without the documents. The respondent noted that there was nothing remarkable in the disclosure package and most of the documentation, including orders, would have been served personally to the appellant by the officer during inspection. Moreover, the photos that were taken by the inspectors and made an exhibit at the hearing were of the appellant’s home and were not disputed. The appellant raised no objection to these photos being entered in as an exhibit.
Appellant’s witness
14The appellant stated that she would have liked to call her CAS worker to attend and possibly testify at the hearing, however, she could not get in touch with her. I provided her options on taking a recess to try to locate her CAS worker, however, the appellant declined and wanted to proceed.
EVIDENCE AND ANALYSIS
Whether the removal of the animals was necessary to relieve their distress
15The respondent called two AWS inspectors, Inspector Ryan Withrow and Inspector Kyle Daya. The appellant testified on her own behalf.
16The testimony provided by the AWS Inspectors as well as the pictures taken, depict a home that is unsanitary, hoarded with various material, and dangerous for a dog to move about. The respondent further clarifies that this is not their first involvement with the appellant and that a removal order was also served back in October 2020 for similar conditions.
17Based on the evidence of the inspectors, I am satisfied that the appellant’s living situation warranted concern due to the extreme clutter of personal belongings. Material and items were piled as high as 7 feet in some places. In every room, including the front doorway, there were narrow walking paths that barely allowed a dog or human to pass.
18The inspectors further described that the dogs were living in a solarium area in two wire crates, which were damaged. There was also no evidence of visible potable water in the vicinity. The inspectors produced pictures that were admitted as exhibits. These photos substantiated their claims and I placed great weight on that evidence in understanding the seriousness and apparent hoarding that was occurring in the unit.
19The evidence satisfies me that the dogs did not have ample space to move around naturally in the appellant’s home. There were also objects that could injure, cut or bruise the animals, including broken pieces of metal, large pieces of debris, and heavy items that could fall on top of the animals.
20The evidence is clear that there was little improvement between the initial visits in May when Compliance Orders were first issued, and the condition of the residence upon the execution of the removal warrant on November 23, 2021.
21The oral evidence and photos persuade me that that the environment the dogs were in at the appellant’s home was causing them to be in a state of distress.
22In light of the appellant’s failure to comply with the compliance orders, I find that the removal of the dogs on November 23, 2021 was required under 31(1)(c) of the Act for the purpose of providing the necessaries to the animals to relieve them of the distress caused by the conditions in the appellant’s home.
23The removal would also allow the appellant the time to arrange for her unit to be de-cluttered and cleaned in order to provide a suitable and sanitary place for her dogs.
24The inspectors returned to the appellant’s unit on December 9, 2021 to see if she had complied with the orders served on November 23, 2021. They observed that a small amount of cleaning was completed. The unit was also more “walkable” but there were no substantial changes to the volume of material in the unit. Of note, the bathroom was the most improved while other areas of the unit, including the kitchen, was observed to be in the same poor condition. Photos taken from that day were provided as evidence. They supported the testimony of the inspectors.
25The appellant testified that she felt targeted by the AWS. She stated that the last time her dogs were taken by AWS in 2020, they returned being very skinny with patches of hair missing on their body. She contends that the dogs were in more distress when they were in the custody of AWS. She is very concerned that the same thing may happen again.
26The appellant also stated that she has been in an ongoing dispute with her property owner because she has a roach infestation and the hot water is leaking. The appellant was adamant in stating that her dogs were never deprived, and the removal of her dogs were the result of malicious neighbours complaining about her.
27The appellant described why she did not allow VHA Home Healthcare permission to continue their work, stating that they were doing more harm than good. She explained that they were making the conditions in the unit worse by throwing everything into the solarium area.
28The appellant has lived in the unit since April 15, 2016 and is asking for a transfer. So far, her requests have been denied.
29Despite her position that her dogs were not deprived of necessaries, she agreed in cross-examination by the respondent that the conditions of November 23, 2021 were not acceptable for animals to be living in.
30Based on the above, I find that the removal of the animals was necessary on November 23, 2021 to alleviate their distress. I further find that they cannot be returned at present, as the living circumstances at the appellant’s home have still not improved sufficiently such that the animals could be returned without being immediately back in distress.
Whether the Statement of Account should be confirmed, varied, or revoked.
31The appellant was issued a Statement of Account in the amount of $1,245.00 for boarding, veterinary and animal care costs. When weighed against her monthly income, as detailed below, there is a significant disparity and little doubt that she will be unable to pay this amount in full.
32The appellant is currently unemployed and receiving government assistance. She receives approximately $1,100 for ODSP and $1,100 for child tax benefit for her son (15 years old), and daughter (5 years old). Once she has paid for rent ($329.00), groceries ($500.00 – $600.00) per month, phone and internet bill, child expenses and other incidentals, she has very little money to spend. She also has no personal savings.
33The appellant testified that she should not be held responsible to pay the SOA because the animals were taken away from her and she disagrees that they were in a state of distress at the time. This does not change her statutory obligation to pay unless the Board determines otherwise. The result of non-payment is that the animals will be forfeited according to s.35(4) of the Act.
34While the appellant did not submit supporting documents showing her bank accounts, I accept the appellant’s testimony that she is in a difficult financial situation. Also, the respondent did not challenge the appellant’s testimony as she described her personal financial situation. The respondent had the opportunity to cross examine the appellant regarding her finances but did not.
35The photos clearly illustrated the appellant’s current living condition which are in a state of disarray with many personal effects strewn throughout the unit. There was no indication of anything of significant monetary value in the unit, confirming that she is living marginally and does not have a large disposable income.
36The respondent made very few submissions about the Statement of Account, stating only that the costs should not be absorbed by the respondent.
37I find that there was no evidence to support why veterinary care was required for the animals after removal. They were removed because they were at risk in the residence. They were not removed because they required any specific care. I find that the appellant should not be responsible for the respondent’s decision to take the dogs to a vet after removal.
38I find that the boarding costs are also not necessarily reasonable when weighed against the appellant’s means. There was no evidence to show why boarding was in the amount stated on the account.
39Finally, I find that repayment of the full amount of the statement of account by the appellant would be particularly onerous given her precarious financial situation.
40I find that the appellant should be held to some account regarding payment of the SOA. However, given the lack of clarity as to why some items were charged in the amounts stated on the account and given her monthly income and the expenses for the care of two school aged children, I find that varying the SOA to a lesser amount is reasonable in this case. Therefore, I find it appropriate to vary the SOA to $262.50 which is 25% of the boarding costs. Given the appellant’s monthly income and other expenses, and the respondent’s lack of evidence to support the specific costs claimed, this amount is reasonable.
ORDER:
41For the reasons set out above, the Board confirms the removal order and varies the Statement of Account to $262.50.
Released: February 4, 2022
______________________________
Raymond C. Ramdayal, Member