Brenda Xavier v. Chief Animal Welfare Inspector, 2023 ONACRB 34

Date: 2023-02-16

Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.

Between:

Brenda Xavier

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Edgar-Andre Montigny

For the Appellant: Suzanne Verge

For the Respondent: Daniela Meuleman, Counsel Inspector Hannah Patterson, Inspector Elizabeth White, and Regional Supervisor Connie Mallory, Animal Welfare Services

Heard By Videoconference: January 26, 2023

OVERVIEW

1Brenda Xavier ("appellant") appealed a Notice of Decision of the Chief Animal Welfare Inspector (CAWI) (the respondent) to Keep an Animal in Care ("Decision to Keep in Care"), issued on November 22, 2022, to the Animal Care Review Board ("Board"). The Decision to Keep in Care was regarding four husky type dogs that had been removed from the appellant's apartment on Lang's Road ("Lang's Road") in Ottawa. Three dogs were removed on October 3, 2022, and one additional dog was removed on October 5, 2022 by Animal Welfare Inspector Hannah Patterson and Animal Welfare Inspector Elizabeth White of Animal Welfare Services ("AWS").

2The appellant also appealed a Statement of Account in the amount of $7,301.55, issued by AWS on November 22, 2022 ("SOA") in relation to the care and boarding of the four removed dogs.

3A case conference was held on January 3 2023 and the matter proceeded to a videoconference hearing on January 26, 2023.

ISSUES IN DISPUTE

4The issues in dispute in this matter are:

(a) Should the four dogs removed from the appellant's apartment on October 3 and 5, 2022, and subject to the November 22, 2022 Decision to Keep in Care, be returned to the appellant?

(b) Should the SOA be confirmed, revoked, or varied?

RESULT

5For the reasons that follow, the Board:

(a) Dismisses the appellant's appeal for the return of the four dogs;

(b) Confirms the November 22, 2022 Decision to Keep in Care; and

(c) Confirms the November 22, 2022 Statement of Account.

BACKGROUND

6Inspector White and Inspector Patterson attended at Lang's Road on September 21, 2022 after an anonymous call was made to the Ontario Animal Protection Call Centre regarding the welfare of dogs at the appellant's address. At that time, the appellant asked the two Inspectors to return the next day, which they did. The appellant provided consent on September 22, 2022 for the Inspectors to enter the apartment.

7On September 22, 2022, Inspector White and Inspector Patterson observed ten husky type dogs in the appellant's one-bedroom apartment. They noted a strong odor of urine and ammonia that was apparent as soon as they got off the elevator on the appellant's floor. Once inside, the Inspectors noticed urine stains on the walls of the apartment. Testing revealed high levels of ammonia in the apartment. Photos of the apartment showed various damage on doors and baseboards that appeared to be due to chewing. The Inspectors testified that the appellant explained to them that she did not bring the dogs outside for washroom breaks due to harassment from the neighbors.

8The appellant told the inspectors that the situation had arisen because her female dog, Pumpkin, had become pregnant, not once, but twice in a short period of time, producing most of the dogs seen in the apartment. The appellant explained that she intended to sell or otherwise find homes for the puppies. She did not explain why so many of the dogs were still in her apartment several months later.

9Pursuant to s. 30 of the Provincial Animal Welfare Services Act, 2019 ¹ ("PAWS Act"), Inspector White issued a Compliance Order ("CO") regarding the ten dogs on September 22, 2022 with a compliance date of October 3, 2022. CO required the appellant to:

(a) Ensure all animals are provided adequate space as outlined in the Kennel Codes of Practice;

(b) Provide clean potable water at all times;

(c) Provide appropriate bedding;

(d) Provide clean and sanitary living environment free from urine, feces, and hazardous material;

(e) Adequately ventilate to lower the high ammonia levels;

(f) Ensure adequate enrichment/exercise provided; and

(g) Ensure all dogs are housed in a manner that ensures their safety and well-being and prevents dog on dog attacks.

10Inspector White and Inspector Patterson visited Lang's Road on October 3, 2022 to check on compliance with CO. On this date, they found only three dogs remained in the apartment. The appellant reported that the other dogs had been moved to temporary shelters at various locations. Ammonia levels were checked by the Inspectors and were found to still be at unsafe levels. There was also still no ventilation. Inspector White determined that it was necessary to remove the remaining three dogs from the apartment to relieve their distress.

11On October 5, 2022, Inspector White and Inspector Patterson attended at Lang's Road after the appellant informed them that another dog had been returned to her. The inspectors found that the CO had still not been complied with as far as providing ventilation and lowering the levels of ammonia. Given ammonia levels were still high, the inspectors decided that it was necessary to remove the last dog from the apartment to relieve its distress.

12On November 22, 2022, after reviewing the file, Regional Supervisor Connie Mallory made the decision to keep the four dogs removed from Lang's Road in the respondent's care as she believed that the animals would be placed in distress if returned to the appellant.

13On October 5, 2022, the appellant was served with an initial statement of account for $484.77 for the three dogs removed on October 3, 2022. This SOA was paid by the appellant. A second statement of account for $3,796.80 was issued on October 20, 2022. A third statement of account for $3,792.90 was issued on November 1, 2022.

14The appellant appealed the October 20 2022 and the November 1, 2022 statements of account.

15Due to errors in the accounts, the respondent rescinded the statements of account above and the current SOA, for a total of $7,301.55 outstanding, was issued on November 22, 2022 to replace the previous statements.

16It was confirmed at the Case Conference of January 3, 2023, that the appeals of the October 20 2022 SOA and the November 1, 2022 SOA would be heard as an appeal of the final SOA issued on November 22, 2002, and that this matter would be heard together with the appellant's appeal of the respondent's November 22, 2022 Decision to Keep in Care.

17On hearing the evidence presented by the parties it is clear that the four dogs removed from Lang's Road on October 3 and October 5 2022, and subject to a Decision to Keep in Care, issued on November 22, 2022, cannot be returned to the appellant.

ANALYSIS

Decision to Keep in Care

18Section 31(6) of the PAWS Act provides that the respondent Chief Animal Welfare Inspector may decide to keep an animal that was removed under subsection 31(1) in its care 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 the animal may be placed in distress if returned to its owner or custodian.

19Distress is defined in s.1(1) of the PAWS Act as 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

20Further, Ontario Regulation 444/19 "Standards of Care and Administrative Requirements" [the Regulation] ² provides minimum standards of care for animals. Section 3(1) provides standards of care for adequate and appropriate food and water, s. 3(2) sets out standards for space and enabling an animal to move naturally and to exercise, as well as sanitary conditions and ventilation, and s. 3(3) pertains to care necessary for an animal's general welfare.

21In Pryde v. CAWI, 2022 ONSC 6632, the Divisional Court found that "owners are required to comply with the minimum standards prescribed in the PAWS Act and the Regulation, and, if they do not, their animals are, by definition, in distress."

22The appellant was keeping at one time 9 or 10 large animals in a small apartment. When neighbours complained about the animals, the appellant's response was to stop bringing the dogs outside to avoid harassment. This meant that the dogs were not getting proper exercise or fresh air and they were confined in a small space in which they also urinated and defecated, which is all contrary to ss. 3(1) to 3(3) of the Regulation, particularly s. 3(2). On several occasions the levels of ammonia in the apartment were tested and found to be unacceptably high.

23The appellant has not since provided any evidence that she can safely house the four dogs. She indicated that she now rents a room in an apartment. It is not possible for her to keep her dogs there. The appellant did not offer any clear evidence that she has any plan in place to house the dogs elsewhere.

24A key factor in the decision of Regional Inspector Mallory to keep the animals in care was the fact that the appellant had no suitable location to return the dogs to.

25In any event, the appellant cited s. 31(1)(a) of the PAWS Act, and Flaro v. CAWI, 2022 ONACRB 5 (at para. 25) to argue that it is necessary for AWS Inspectors to first consult with a veterinarian before removing an animal. I do not agree with the appellant's interpretation. Section 3. 1(1) of the PAWS Act states:

An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessities to relieve its distress if,

(a) a veterinarian has advised the inspector in writing that alleviating the animal's distress necessitates its removal;

(b) the inspector has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or

(c) an order respecting the animal has been made under section 30 and that order has not been complied with (my emphasis added).

26In Floro at para 25, it also states that AWS can rely on the opinion of a veterinarian, "among other things".

27In this case, the CO had been issued with a compliance date of October 3, 2022. Given that the Inspectors found on October 3, 2022 that the order has not been complied with and the animals were in distress as a result of the appellant failing to comply with sections 3(1), 3(2) and 3(3) of the Regulation, the AWS inspectors had legal grounds to remove the animals to provide necessaries to relieve the distress.

28I am also not persuaded by the appellant's evidence that Inspector White and Inspector Patterson had somehow misled her when she granted consent to enter her apartment or to remove the dogs. It was clear from the testimony of the two inspectors that the appellant was given instruction about how to comply with the CO. The dogs were removed because the inspectors found that CO had not been complied with completely and the situation was such that the remaining dogs were in distress as a consequence.

29In conclusion, the Board agrees with the finding of respondent CAWI that the appellant's dogs would be placed in a distress if they were to be returned to the appellant's care. Therefore, I confirm the Decision to Keep in Care.

Statement of Account

30Section 38 (9) of the PAWS Act states that the Board may confirm, revoke or vary statements of account served under s. 35(1). The Board may further order that the whole or any part of the cost to the respondent providing necessaries to an animal pursuant to its removal under s. 31(1), or the determination to keep an animal in the respondent's care under s. 31(6) be paid by the owner or custodian of the animal to the Minister of Finance.

31The respondent submitted that the SOA covered costs of providing necessities to the 4 dogs removed from Lang's Road from October 5 to November 4, 2022. The total cost outstanding was $7,301.55.

32The costs were broken down into boarding costs of $6,407.10, veterinary costs of $402.90, and $976.32 for animal care costs. Further details were provided about the cost per day per dog; for boarding the fee per day per dog was $45.00 plus an additional $4.00 per day per dog for food.

33The veterinarian costs were detailed as including an initial assessment, vaccinations and anti-anxiety medication.

34The animal care costs, in addition to food, included costs for bathing the dogs twice.

35Regional Supervisor Mallory testified that the boarding facility has been used by the respondent before. The daily rate of $45 per dog is in line with other boarding facilities in the province that charge fees in the range of $25 to $50 per day per animal.

36The appellant cross-examined Regional Inspector Mallory but did not challenge any specific fee or offer any evidence to counter any aspect of the statement of account. The appellant questioned whether it was necessary to provide anxiety medication to the dogs but did not provide any actual evidence to explain why the decision to use anxiety medications was unreasonable. The appellant also suggested that the anxiety was due to the animals being moved and was not due to anything that happened before the move. Inspector White and Inspector Patterson, however, both testified that at least one of the dogs was nervous and anxious before they were removed from the apartment.

37In her closing statement the appellant asked for more time to pay the SOA. Section 35(5) of the PAWS Act allows the respondent to enter into an agreement with the owner or custodian of an animal to extend the time for payment, etc. Therefore, it is not within the jurisdiction of the Board to order that such an agreement be entered into and I cannot provide the relief sought by the appellant.

38The Board confirms the statement of account issued November 22, 2022. The respondent provided accounts that demonstrate that the costs were reasonable and incurred to provide necessaries to animals that had been removed pursuant to CO and which were subject to a Keep in Care Decision. The appellant offered no evidence sufficient to challenge any of the fees or charges outlined in the SOA.

ORDER

39Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:

(d) Dismisses the appellant's appeal for the return of the four dogs;

(e) Confirms the November 22, 2022 Decision to Keep in Care;

(f) Confirms the November 22, 2022 Statement of Account; and

(g) Dismissed both of the appeals in this matter.

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019 S.O. 2019 Chapter 13.
2. 2O. Reg 444/119 Standards of Care and Administrative Requirements, made under the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.