Maninder Singh Binepal v. Chief Animal Welfare Inspector, 2022 ONACRB 7

Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’Étude des Soins aux Animaux

Date: 2022-02-07

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Maninder Singh Binepal Appellant

and

Chief Animal Welfare Inspector Respondent

AMENDED DECISION AND ORDER

Adjudicator: Susan Clarke, Member

Appearances: For the Appellant: Roman Botiuk, counsel For the Respondent: Sara Munoz, Regional Supervisor, and Senior Investigator Brittany Eade, Animal Welfare Services

Date and place of hearing: January 13, 2022 by videoconference

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Maninder Binepal, is appealing a Statement of Account (“SOA”) issued by Senior Investigator Brittany Eade pursuant to section 35 of the Provincial Animal Welfare Services Act, 2019 (the “Act”)¹ in respect of care provided to his dog “Cooper” who was removed by AWS from an emergency veterinarian clinic on November 27, 2021. The removal was not appealed by the appellant.

2In his Notice of Appeal (“NOA”), the appellant stated that he was requesting that the amount owing on the Statement of Account be reduced to the cost of euthanasia.

3In a letter dated December 8, 2021, submitted with his NOA, the appellant stated that he does not have the financial capacity to pay the Statement of Account, which was approximately $10,000, and that he never authorized the intervention necessary for the dog’s recovery. He questions why AWS did not take steps to present euthanasia as an option, knowing the appellant could not afford the high level of medical intervention provided. He further notes that he advised the clinic that he was abandoning the dog.

ISSUES TO BE DECIDED

4The issue to be decided by the Board is whether the Board should confirm, revoke, or vary the Statement of Account.

RESULT

5For the reasons that follow, I vary the Statement of Account to the amount of $10,352.10. While I find that the medical services described were required for necessaries and care to relieve Cooper’s distress and that there is no basis to reduce that amount in the circumstances of this case, I find that the boarding was not warranted past December 6, 2021 when Cooper could have been put up for adoption. For that reason, I have reduced the boarding costs to reflect the first five days of boarding only.

PRELIMINARY ISSUES

6Ms. Munoz raised an issue that the NOA was submitted using the name “Manjit Binepal” who is the appellant’s father and not the owner of Cooper. She asked to have the appeal dismissed on the grounds that the appeal was not submitted per the requirement in section 38(2) of the Act, which only allows an owner or custodian to file an appeal.

7Mr. Botiuk countered that this was an administrative error, and that Manjit Binepal was a business client and had engaged him for his son’s case.

8I informed the parties that I would finish hearing the evidence and that following the hearing, I would provide the opportunity for written submissions on the issue of whether the appeal should be dismissed on the grounds raised by the respondent.

9Ms. Munoz later contacted the Board and advised that the respondent would not file any submissions on the issue and consented to the hearing proceeding.

FACTS

10At the hearing, I heard evidence from the following people:

For the respondent I heard from:

• Dr. Wendy Hessing, a veterinarian at the Emergency Veterinary Clinic Highway 10 in Brampton who signed the Certificate of a Veterinarian advising that the removal of Cooper was necessary to relieve it of its distress.
• Dr. Alison Little, a veterinarian neurologist at the Animal Health Partners Emergency and Specialty Hospital in Toronto, who treated Cooper when transferred from the emergency clinic.
• Senior Investigator Brittany Eade who investigated the initial complaint from the emergency clinic on November 27, 2021, served the Notice of Removal on the appellant, and authorized treatment to relieve Cooper of his distress. She later also served the Statement of Account on the appellant.

For the appellant I heard from:

• the appellant himself; and
• Gurvinder Binepal, the appellant’s mother.

11A number of exhibits were admitted into evidence. These included Medical Records from the emergency clinic and from the specialty hospital and supporting invoices from both clinics. An invoice from Brampton Animal Services was also admitted.

12On November 25, 2021 the appellant and his cousin “Noni” took Cooper to the emergency clinic for treatment. The clinic provided medications, which the appellant gave to Cooper for two days, however his condition worsened.

[13] On November 27, 2021:

• at 1:00 a.m., the appellant and/or his cousin “Noni” returned to the emergency clinic with Cooper. The appellant was evasive about who dropped the dog off and what contact numbers were provided, answering “I don’t remember” when cross-examined. The clinic notes show they had Noni as the contact, though it is apparent they also had the appellant’s address and previous address on file and presumably also his phone number.
• The appellant testified that the emergency clinic told him that the veterinarian would call him, and that there were two options: one was have the Veterinarian keep the dog until he could be seen by a specialist, for a fee of $1500 - $2000; the other was for him to take the dog to the specialist in the morning. The appellant told the clinic he would talk with his family about the $1500 - $2000 estimate and call back.
• The appellant claims that he did not authorize treatment, nor did he discuss euthanasia with the vet.
• The emergency clinic took contact information for Noni Binepal, who identified himself as the owner. The vet said they would contact him after the examination.
• The emergency clinic examined Cooper and then attempted to contact the owner several times to discuss treatment. The calls went straight to voice mail, and it appeared the owner had left the parking lot. The clinic made several calls over the next six hours, and left messages.
• Sometime around 9:00 a.m. Cooper was administered one dose of narcotic to relieve Cooper’s pain after establishing that Cooper had been abandoned. The Veterinarian was not asked to explain how the clinic knew Cooper had been abandoned. Medical records indicate that the clinic “received a text from the owner surrendering the dog”.
• The emergency clinic contacted various agencies to see who might take responsibility for Cooper’s care.
• At 11:00 a.m. the clinic contacted the Animal Welfare/Protection Call Centre saying Cooper had been abandoned and required medical attention. The Inspector contacted the clinic and was given two addresses for the appellant.
• The Inspector attended the first address and was advised by the current owner that he purchased the property in April 2021 and had no contact with the previous owners. The Inspector then attended the second address where a woman acknowledged that the appellant was her son, and that he owned a dog and had taken him to a veterinarian clinic. She provided a telephone number for the appellant and the Inspector called and texted without reaching the appellant or being able to leave a voicemail message.
• At 12:59 p.m., the appellant telephoned the clinic to say he was the owner of the dog, and that “Noni” was a family friend who dropped the dog off the previous evening at his direction, and that he was surrendering the dog. The clinic recorded his telephone number and provided it to the Inspector.
• Dr. Wendy Hessing signed the veterinarian certificate that allowed the Inspector to remove the animal from the appellant’s possession under section 31(1)(a) of the Act for the purpose of providing it with necessaries to relieve its distress. The Inspector then authorized the veterinarian to provide the necessary care.
• At 1:04 p.m. the Inspector reached the appellant at the phone number provided by the emergency clinic (which was different from that provided by his mother) and advised him that she had removed Cooper to relieve his distress. He asked if she would find Cooper a new home, and she responded that she would ensure Cooper got the medical care required and that she would provide him with a copy of the Notice of Removal and a Statement of Account for the costs incurred.

14On November 28, 2021 the Inspector transported Cooper to the veterinary hospital.

15On November 29, 2021 the Inspector issued a Notice of Removal to the appellant when she met with him and his mother. She advised that she would serve a Statement of Account later. Later that day Mr. Roman Botiuk left a voicemail for the Inspector advising that he was the appellant’s lawyer.

16On December 2, 2021, the Inspector transported Cooper from the veterinary hospital to a boarding facility as he no longer required ongoing medical treatment. He had an appointment to return later for a re-examination.

17On December 6, 2021, a Statement of Account was delivered to the appellant’s address and accepted by Gurvinder Binepal, the appellant’s mother.

Veterinarian Care and Invoices

18The emergency clinic medical records indicate that they treated Cooper on November 27 and 28, 2021. The charges for their services are $2,154.90. Other than pain medications given to the dog, all other charges were for procedures and medications authorized by AWS after taking custody of Cooper.

19The veterinary hospital’s Neurology Discharge Summary dated December 1, 2021 and signed by Dr. Alison Little, noted that Cooper was diagnosed with “steroid responsive meningitis arteritis”. A notation in the file indicated that the owner had cost concerns and that the animal was taken over by AWS.

20A subsequent Neurology Discharge Summary dated December 16, 2021 and signed by Dr. Alison Little, recommended medications and a recheck on January 6, 2022. The recheck findings were that Cooper had responded to treatment and his neck pain had resolved. The charges for the veterinary hospital’s services were invoiced from November 28 to December 2, 2021 and totaled $7,925.42.

21The respondent’s disclosure included a Statement of Account dated December 3, 2021 in the amount of $10,080.32 for veterinary services. It also included an updated Statement of Account dated December 23, 2021 in the amount of $10,802.79 which included additional charges of $584.10 for boarding (22 days) and $138.37 for the neurology re-check appointment. At the case conference, the parties agreed that the updated Statement of Account would be added to the original appeal.

22An invoice from Brampton Animal Services dated December 20, 2021 indicates a total charge of $570.03 for boarding Cooper for 19 days. There is a discrepancy in the charges and number of boarding days reflected on the Statement of Account dated December 23, 2021 and those on the invoice. It is possible this is due to the Inspector extrapolating the charges from the invoice of December 20, 2021 to the date on the Statement of Account.

Ability to Pay

[23] The appellant testified that at various times he made people aware that he did not have the ability to pay for the care of his dog:

• On April 27th he told the veterinarian staff
• On April 27th he told the Inspector when she called him
• On April 29th he told the Inspector when she met with him

24The appellant worked for two Peel District School Boards until Covid hit its peak. Since then he has worked at his family restaurant without pay. The appellant moved in with his parents a few months ago, and they finance his expenses (e.g. phone). He does not have $10,000 in savings.

25Mrs. Binepal testified that the family owns a restaurant, and during Covid have barely been able to pay the restaurant monthly rent of $2,900. Ms. Binepal works part time for a bus company, but nobody else in the family works outside of the restaurant.

26Ms. Munoz questioned Mrs. Binepal about the purchase of their home and their expenses. Mrs. Binepal responded that the home was purchased about 9 months ago for $2.1M, and their monthly expenses including mortgage, taxes, groceries etc. are about $9000. Mr. Botiuk did not object to this line of questioning.

POSITION OF THE PARTIES

27Ms. Munoz stated that the removal of the dog was to provide it with the necessessaries to relieve its distress, and that under the Act they had the authority to do this if a veterinarian certificate had been issued. The dog had health issues and required significant care to address these. AWS should not be responsible to absorb the costs.

28Ms. Munoz noted that the appellant did not give clear evidence to the emergency clinic regarding his intentions when he dropped Cooper off, which ultimately resulted in AWS being involved. The appellant failed to look at alternative arrangements such as surrender to an agency. The appellant could not be located prior to AWS removing Cooper from his care, which resulted in a delay with service of the Notice of Removal.

29AWS’ position is that the appellant’s ability to pay is irrelevant and that the Board should base its decision on the reasonableness of the Chief Animal Welfare Inspector providing the necessaries to Cooper based on plain reading of the Act. Ms. Munoz urged me to note that the Act provides a framework for owner’s accountability, forfeiture of animals, and payment of a Statement of Account when government intervention is required. She submits that the rationale for serving a Statement of Account is to ensure AWS is compensated for reasonable expenses incurred to relieve animals of distress. Ms. Munoz asked the Board to confirm the Statement of Account to compensate the Crown for services rendered.

30Mr. Botiuk acknowledges that the dog was improperly dropped off at the veterinarian clinic. He states that despite this, when the appellant had made it clear he was abandoning the dog indicating that he did not have the financial ability to pay the bill, he questions why AWS approved the veterinarian’s quote, rather than considering euthanasia. He further raised the issue that service of the Notice of Removal occurred on November 29, 2021 and until that date the appellant should be liable for the costs, but not after.

31Mr. Botiuk recognized that Cooper required medical care and that AWS authorized treatment after the Inspector took custody. He questioned whether AWS could have authorized a more basic level of care. He suggests that AWS could have advised the veterinarian not to do any work after learning of the appellant’s inability to pay.

LAW

32Clause 31(1)(a) of the Act states that an AWS inspector may remove an animal for the purpose of providing it with necessaries to relieve its distress if a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal. Section 31(5) states that the Inspector shall immediately serve written notice to the owner of the removal.

33Section 31(5) of the Act states that an AWS inspector who has removed an animal under section 31(1) or (2) must immediately serve written notice of this action on the owner or custodian.

34Section 31(8) of the Act states that the notice served on the owner or custodian must include the content of subsections 38(1), (4) and (5), which is information relating to appeals of compliance orders, and decisions to remove an animal from a place, and decisions to take an animal into the Chief Animal Welfare Inspector’s care, and application to have an animal returned.

35Section 35(1) of the Act states that where an Inspector has provided an animal with necessaries to relieve its distress the Chief Animal Welfare Inspector may from time to time serve on the owner or custodian a statement of account respecting the cost of the necessaries.

36Section 35(3) of the Act states that an owner or custodian who receives a statement of account is liable for the amount specified in the statement (subject to an order of the Board varying the amount or revoking an account following an appeal).

37Section 35(5) allows the Chief Animal Welfare Inspector to enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both.

38Section 35(4) states that subject to an agreement under 35(5), the animal is forfeited to the crown if the account is not paid within a prescribed period of time.

39Section 38(9) of the Act gives the Board the powers following a hearing to confirm, revoke or vary a statement of account.

ANALYSIS

40I base my analysis and decision on the relevant facts above.

Communication

41After considering the appellant’s actions on November 27, 2021 I find that he took no action to control the cost of Cooper’s care and should be held responsible for the costs incurred. These actions include providing Noni’s contact information to the emergency clinic, failing to follow up with the clinic as he said he would, and avoiding their calls and messages. It is his own actions that resulted in him being unable to provide more specific direction on Cooper’s treatment or to explore the option of euthanasia.

42He further chose to abandon Cooper at the emergency clinic, without educating himself on how to properly surrender Cooper.

43Ultimately these actions led to the Inspector removing Cooper and authorizing the emergency clinic to provide services to relieve him of his distress.

The costs of relieving Cooper of his distress

44Mr. Botiuk has asked that I consider reducing the Statement of Account to exclude the expenses incurred after the Inspector served the Notice of Removal on November 29th. I have considered the wording of section 31(1) and (5) and find that while the Inspector failed to provide service of the Notice of Removal “immediately” in accordance with the Act, she did advise him immediately by telephone on November 27th that she had removed Cooper and that he was being provided medical care to relieve him of his distress and that the appellant would be responsible for the costs. I find that the date of service of the Notice of Removal relates more to the appellant’s rights of appeal, rather than limiting the costs. Section 31(5) which speaks to immediate service of the written notice on the owner, is followed by section 31(8) which speaks to the notice having information on the process of filing an appeal. In fact, he did not appeal the Notice of Removal.

45I further find that the Statement of Account reflects only the costs authorized by the Inspector after she took possession of Cooper on November 27th. Once AWS has taken possession of an animal under s. 31(1) for the purpose of providing it with necessaries to relieve its distress, the Act authorizes the AWS to provide a Statement of Account respecting the cost of those necessaries. Section 35(3) then provides that the owner is liable for those costs (subject to my determination on this appeal).

The Reasonableness of the Statement of Account

46I find that under the Act, once the Inspector removed Cooper, the AWS was responsible to ensure treatment to relieve him of distress. This could have included euthanasia if recommended by the veterinarian as being humanely necessary. In her testimony, Dr. Little advised that was not an option.

47The veterinarian presented to AWS the recommended treatment, and it was approved. I find the charges for the services are reasonable based on a review of the invoices and the testimony and that they were necessary to relieve Cooper’s distress.

48The question remains whether the treatment was the only option, and if the approach approved by AWS was reasonable knowing that the appellant had expressed an inability to pay. Section 32(1) allows an inspector to authorize euthanasia either with the consent of the owner, or if a veterinarian has advised the inspector in writing that it is his/her opinion that euthanizing an animal is the most humane course of action. I heard that the appellant abandoned the animal and provided no input regarding Cooper’s treatment. I also heard the Veterinarian state that euthanization was not an option. In this case the advice of the veterinarian was to provide the treatment that was, in fact, provided in order to alleviate the animal’s distress. Had the appellant wanted to pursue euthanasia as an option, he ought to have discussed this option with the emergency clinic rather than avoiding responsibility for his animal. I am satisfied that treatment was the appropriate action given that euthanasia was not necessary in the veterinarian’s opinion, and the appellant provided no input.

49With respect to the costs of boarding the animals, the invoices provided reflect the cost to AWS of boarding the animal for 22 days, from December 2, 2021 when he was transferred from the veterinary hospital to the boarding facility when he no longer required medical care, until December 23, 2021 when the Statement of Account was prepared.

50The Notice of Removal was served on the appellant on November 29, 2021. The appeal period expired on December 6, 2021. On December 7, 2021 AWS was aware that there would be no appeal of the removal and that the appellant had abandoned Cooper. At this point AWS could have arranged for Cooper’s adoption knowing that the appellant had no claim on him.

51Section 35(1) states that an Inspector may serve a Statement of Account on the owner or custodian to reflect the cost of providing an animal with necessaries to relieve its distress. It would appear that on December 2, 2021 Cooper was no longer in distress as he was released from the veterinary hospital and moved to the boarding facility. I question why he was retained in boarding beyond December 6, 2021 when the appeal period for the removal had passed, rather than being put up for adoption. For that matter, I question why the Inspector did not advise the appellant of the proper procedures to surrender Cooper as of the moment he knew the appellant’s intention was to give him up.

52After considering the issue of the boarding charges, I find that boarding charges from December 7 through 23, 2021 should not fall to the appellant to pay. I therefore vary the Statement of Account to $10,352.10 to reflect a reduction of the boarding charges to $132.75 (5 days at $26.55).

The appellant’s ability to pay

53The appellant also seeks a reduction of the Statement of Account on the basis that he does not have a means to pay it. The respondent submits that I can only consider the reasonableness of the account and the owner’s ability to pay should not be a factor. However, the Act does not specify the factors I may consider in deciding whether a Statement of Account should be confirmed, varied or revoked and thus I do not agree that I am limited to considering only the reasonableness of the account.

54In this case, however, I find that the evidence is insufficient to persuade me that the appellant lacks the means to pay the Statement of Account, either directly or with assistance from his parents. I therefore need not consider whether I might reduce the account on this basis.

55From the testimony of the appellant and his mother, I am aware that he advised the clinic and the Inspector that he lacked financial ability to pay for Cooper’s care. Despite this, I am not convinced that the family lack means. I recognize that Covid has affected their income but note that during this period they were able to sell a restaurant and also to purchase a new home. I also note that the family financially supports the appellant, while not paying him for working in the restaurant. At the very least, I am satisfied that they would have the ability to loan the appellant the amount owing, if necessary.

CONCLUSION

56For the reasons set out above, I accept that the removal of Cooper was necessary for the purpose of relieving his distress. I vary the Statement of Account to the amount of $10,352.10 to reflect the cost of the necessaries provided for that purpose, having removed the cost of boarding after December 6, 2021.

57The respondent is reminded that, pursuant to s. 35(5) it may enter into a written agreement with the appellant to reduce the amount owing pursuant to my decision or allow further time to pay the amount, which is otherwise due within the prescribed period of 10 days from this decision.

58Failure to pay the amount owing results in forfeiture of the animal.

ORDER

59Pursuant to the powers of the Board under section 38(9) of the Act, the Board varies the Statement of Account to the amount of $10,352.10.

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, S.O. 2019, Chapter 13