Brian Del Mastro v. Chief Animal Welfare Inspector, 2023 ONACRB 35

Animal Care Review Board

Date: 2023-04-19

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

Between:

Brian Del Mastro Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Edgar-Andre Montigny

For the Appellant: Brian Del Mastro Jody Gutoski, paralegal Kimberley Farrell, paralegal

For the Respondent: Kateryna Toderishena, Counsel Inspector Ryan Withrow Regional Supervisor Nancy Driscoll Supervisor in Major Investigations Management Rachel Vanderkroonenberg

Heard By Videoconference: March 22, March 23, and March 24, 2023 and April 3, 2023

OVERVIEW

1. On December 9, 2022, Animal Welfare Inspector Ryan Withrow (Inspector Withrow) received a call from the Ontario Animal Protection Call Centre (“Call Centre”). He was informed that a number of dogs appeared to be abandoned inside an industrial-type property at 6701 Highway 7 in Kleinburg, Ontario (“the property”).

2. After attending “the property” to investigate, Inspector Withrow made the decision to remove the animals; a total of 24 dogs, from the “the property” as removal was necessary to alleviate their distress.

3. On December 14, 2022, the Chief Animal Welfare Inspector (CAWI) found that, given the conditions at “the property”, the animals would be placed in distress if returned to that location. The decision was made to keep the animals in care.

4. Statements of Account were subsequently issued to the appellant covering the cost of providing necessities to the animals.

5. Brian Del Mastro, the Appellant (“appellant”) filed Notices of Appeal on December 21, 2022, to the Animal Care Review Board (“Board”), pursuant to his rights under s. 28 of the Provincial Animal Welfare Services Act (“PAWS Act”)¹, appealing the following:

a. The December 10, 2022, decision by Inspector Withrow to remove 24 dogs.

b. The two December 14, 2022, decisions by the Chief Animal Welfare Inspector to take the animals into its care; and

c. Two Statements of Account dated December 16, 2022, for $17,462.21 (SOA #1) and February 7, 2023, for $82,688.09 (SOA #2)(combined with earlier appeal)

6. The hearing was conducted as a “hybrid” hearing. The respondent witnesses provided their evidence in the form of written affidavits. The videoconference hearing heard in person evidence of the appellant and its witnesses, and cross-examination of all witnesses. Closing submissions were made during the hearing.

ISSUES IN DISPUTE

7. The issues in dispute in this matter are:

• Should the animals removed on December 10, 2022, and subject to the December 14, 2022, Decisions to Keep in Care, be returned to the appellant?

• Should the SOA #1 and/or SOA #2 be confirmed, revoked, or varied?

RESULT

8. For the reasons that follow, the Board:

• Dismisses the appellant’s application for the return of the dogs.

• Confirms the statements of account issued on December 16, 2022, and February 7, 2023.

PRELIMINARY MATTER

9. At the start of the hearing, the respondent noted that one witness, Supervisor in Major Investigations Rachel Vanderkroonenberg (Supervisor Vanderkroonenberg) was not available for cross-examination during any of the 3 days scheduled for the hearing. The respondent sought to have additional hearing time scheduled to allow for cross-examination of this witness.

10. The appellant argued that the respondent had ample time to ensure their witnesses were available. The appellant’s representatives were unavailable for the entire week following the hearing. As a result of their unavailability, it would be necessary to wait until at least April 3, 2023, before the extra hearing time could be scheduled. The appellant argued that this was unreasonable, the delay would have a major prejudicial impact on the appellant, particularly because the SOA charges against him would continue to accumulate.

11. The appellant argued that since cross-examination could not occur, the affidavit evidence of the witness should be given little weight.

12. The witness was available as of March 27th. It is the appellant’s representatives who were not available until April 3rd.

13. The respondent offered to address the potential financial prejudice by staying the SOA charges from the scheduled end of the hearing on March 24, 2023, until the hearing was resumed.

14. Considering all the circumstances and balancing the need for expediency with the need to obtain the best evidence possible, the Board ordered the hearing adjourned on March 24, 2023, to continue on April 3, 2023, at 2:00 pm, for the purpose of hearing the cross examination of Supervisor Vanderkroonenberg.

15. This order is based, in part, on the respondent’s undertaking to stay any future SOA for the entire period from March 24th until April 3, 2023.

BACKGROUND

16. When Inspector Withrow attended “the property” after receiving the notification from the Call Centre. He heard barking inside an industrial type building. Construction workers in the area noted that they had seen no one at the “the property” since they started to hear the barking a few days before. It appeared the dogs may have been abandoned.

17. Inspector Withrow spent several hours at the “the property” attempting to find the owner of the building or the owner of the dogs and trying to determine the conditions of the animals. Mr. Withrow had other inspectors attend at the “the property” to assist.

18. Inspector Withrow testified that he had good reason to believe that the dogs were in critical distress due to his observations that the dogs appeared to lack food or water, or proper shelter. He did not know how long it had been since anyone had attended to the dogs.

19. Inspector Withrow was able to contact the owner of the property, Mr. Neilson, by telephone. Mr. Nielson was not the owner of the dogs. He reported that the dogs belonged to his friend Brian, but he could not provide contact information for Brian.

20. Initially, Mr. Neilson consented to Inspector Withrow entering the property with a key his wife would provide to police. However, when the key provided did not open the door, Mr. Neilson withdrew his consent. At that point Inspector Withrow had a locksmith attend “the property” to allow him to enter.

21. Once inside “the property”, Inspector Withrow confirmed that there were 24 dogs of various breeds in crates with hay, but no visible food or water. All the bowls found were empty. Many of the crates were too small for the size of dogs. The temperature inside the building was minus 1.5 degrees Celsius.

22. Veterinarian Dr. Robertson was shown inside “the property” using a cell-phone video. Dr. Robertson noted dogs housed in an industrial style building with a concrete floor. He noted that many animals appeared to be housed in small temporary travel crates that did not provide sufficient room to move around. Dr. Robertson advised that it was his opinion that the animals were in distress and that alleviating the distress of the animals necessitated their removal from “the property”. Dr. Robertson described the distress as lack of food and water, proper housing, light, supplemental heat, appropriate bedding, and exposure to hazardous materials, such as what appear to be containers of gasoline, engine parts, paint and other spray containers.

23. Based on his own observations as well as Dr. Robertson’s opinion, Inspector Withrow made the decision to remove the animals for the purpose of providing them with necessities to relieve their distress.

24. Each dog was examined as they were removed from “the property” and given a number. Two dogs were identified as in need of immediate veterinary attention; dog #256 had ocular concerns while dog # 300 had irritated skin and irregular gait. These animals were transported to 404 Veterinary Emergency and Referral Hospital for immediate attention.

25. The remaining dogs were brought to Kennel Club Boarding where they were examined by Dr. Robertson. He found that at least two of the dogs were pregnant.

26. Late in the evening, Richard Atkins, a friend of the appellant, appeared at “the property” stating he was there to provide food and water to animals as the appellant was not available. Given Mr. Atkins had only a one-liter bottle of water, AWS found that he was not prepared to properly care for so many animals.

ANALYSIS

27. Geddes v. Chief Animal Welfare Inspector,² confirms that the appellant bears the onus in these appeals. The appellant must establish on a balance of probabilities that the animals removed on December 10, 2022, and subsequently taken into the Chief Animal Welfare Inspector’s care should be returned to him.

28. The respondent is required to show on a balance of probabilities that the basis the decisions met the test for reasonable grounds as captured in s. 31(1) and 31(6) of the PAWS Act.

Removal

29. The appellant’s position was that the removal of his animals was not in accordance with the PAWS Act because:

• There was no evidence of critical distress to justify entry into the property.

• There was information available at the time to prove that the animals were not in distress.

30. A decision to remove an animal is tied to the definition of distress. Distress 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.

31. O. Reg/19, Standards of Care and Administrative Requirements³ (O. Reg 444/19), provides minimum care standards. For example, s. 3(1) regarding adequate and appropriate food and water; 3(3) care necessary to general welfare; 3(5) adequate and appropriate resting and sleeping areas; and 3(7) regarding the need for a pen or other enclosed structure in which animals are kept to be in good repair.

32. In Pryde v. CAWI, 2022 ONSC 6632 ⁴, 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”.

33. Section 31(1) of the PAWS Act allows an inspector to remove an animal from a place and take possession of it for the purposes of providing it with necessities to relieve distress where (paraphrased):

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 tor believing the animal is in distress and the owner is not present and can’t be found promptly; or

c) a order respecting the animal has been made under s. 30 of the PAWS Act and has not been complied with.

34. Inspector Withrow testified on cross examination that he relied on both s. 31(1)(b) and s. 31(1)(a). As he described, there were a number of dogs inside an industrial building with a cement floor.

a) There was no evidence that the dogs were being cared for, fed or provided with water.

b) The food and water bowls he could see were empty.

c) The dogs were in cages or crates. Some of them appeared to be travel crates, which left little room for the animals to move inside.

d) There was no sign “the property” was heated and the temperature was about 0 Celcius.

e) Inspector Withrow was unable to contact the owner of the animals.

critical distress

35. The appellant argued that as no critical distress existed, there was no basis for AWS to enter the “the property” and therefore no justification for the removal. On that basis the dogs should be returned to the appellant.

36. Section.29(1) of the Act, states:

an inspector may enter a place, other than a place or part of a place that is being used as a dwelling, without warrant and search for an animal if the inspector has reasonable grounds to believe that the animal in the location is in critical distress.

37. Critical distress is defined in the PAWS Act as distress that requires immediate intervention in order to prevent serious injury or to preserve life.

38. Inspector Withrow testified that the fact that several animals were locked in an industrial-type property with no food, no water, and no heat was sufficient to justify his entering the “the property” on the basis of a reasonable belief that the animals were in critical distress and in need of immediate attention to alleviate that distress.

39. The Board finds that the circumstances described by Inspector Withrow were sufficient to create reasonable grounds to believe that the animals were in critical distress.

40. Even if Inspector Withrow’s belief was incorrect, it would not follow that the animals would have to be returned to the appellant.

41. In Pryde v. Chief Animal Welfare Inspector, ⁵ the Divisional Court found that even if an initial removal may have unlawful, it is still possible that returning the animal may put the animals in distress.

42. The fact two dogs required immediate emergency veterinary attention, one to prevent an eye rupturing and the other to treat an infection confirms that the immediate intervention was required.

Did Inspectors ignore information that indicated removal was unnecessary?

43. The appellant argued that had Inspector Withrow done more to contact the appellant he would have been given sufficient information and explanation to assure him that the dogs were not in distress and therefore, removal was not required.

44. The appellant’s position was that his circumstances at the time, such as the fact that he was forced to leave the location he was illegally occupying on short notice, the fact that he was rushing to salvage his possessions, the fact that he was planning to leave for Nova Scotia and the fact that the housing the dogs at the building as a temporary situation, should all have convinced Inspector Withrow

that his dogs were not in distress and therefore they should not have been removed.

45. The appellant argued that once his friend Richard Atkins showed up at “the property”, inspectors should have been satisfied that the animals were being cared for and therefore they were not in distress.

46. On cross-examination Inspector Withrow and Inspector Driscoll asserted that the information provided by Mr. Atkins and the appellant was not sufficient to demonstrate that the dogs were not in distress.

47. The fact that the “the property” was only a temporary shelter did not alter the fact that there was not adequate and appropriate food and water; and not all animals had adequate and appropriate resting and sleeping areas. Inspector Withrow also noted that the contents of the building appeared to include hazardous products, such as gasoline, paint, spray cans and engine parts.

48. The fact that the appellant was being evicted, the fact he had nowhere else to bring the dogs on short notice, the fact he was planning to move the dogs to Nova Scotia, was all irrelevant. The information only helped explain how the animals were placed in distress.

49. The Board finds that the removal of the animals on December 10, 202 was in accordance with the PAWS Act and that it was necessary to alleviate the animals’ distress. The Board accepts the respondent’s evidence that the conditions in which the appellant’s animals were found supported a reasonable belief that the animals were in distress. The lack of food or water, the fact that several dogs were in crates too small for the size of the animal; the fact that there was no evidence that anyone was providing care to the animals and the fact that temperatures were dropping, and the building did not appear to be heated all justified this belief. A veterinarian advised that removal of the animals was necessary to alleviate that distress.

decision to keep in care

50. The appellant argued that it was not necessary to keep the dogs in care. He insisted that the animals could be returned to him. He provided evidence that he has a new home in Nova Scotia where he plans to bring the dogs where they would not be placed in distress.

51. Section 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,

(i) the animal may be placed in distress if returned to its owner or custodian, or

(ii) the animal may be trained to fight another animal if returned to its owner or custodian.

52. Regional Supervisor Nancy Driscoll (Supervisor Driscoll) testified that the information available at the time she made the Decision to Keep in Care indicated that the animals could not be returned to the appellant. There was no evidence that the conditions that had created their distress and led to their removal had changed. There was no evidence the appellant had any suitable location to bring the dogs to.

53. At the time the Decision to Keep in Care was made, the home in Nova Scotia was not ready to house the dogs. In fact, according to the appellant’s testimony, the Nova Scotia property was still not ready at the time of the hearing.

54. The Board finds that the Decision to Keep in Care made on December 14, 2022, was necessary to ensure that the animals were not returned to or placed in distress. At the time the decision was made, it was not possible to return the animals to the appellant as the appellant had no where to keep his animals. The Board accepts that given the information available at the time, the decision to keep the dogs in care was reasonable and necessary to prevent putting the animals back into a distress.

Section 38 (4) Application

55. The appellant argued that information provided was sufficient to demonstrate that the circumstances that led to the removal of his animals no longer exist, so the Board can order the return of the animals pursuant to s. 38(4) of the PAWS Act.

Section 38(4) of the PAWS Act allows:

An owner or custodian of an animal that has been taken into the Chief Animal Welfare Inspector’s care may apply to the Board by notice in writing to have the animal returned if the conditions that caused the animal to be kept in the Chief Animal Welfare Inspector’s care have ceased to exist.

56. The Appellant did not file an application under s. 38(4) for a revocation of an Order, although it was argued that his plea to have the dogs returned to him should be interpreted by the Board as a s. 38(4) Application.

57. I do not have to decide here whether the Board has the authority to imply or deem an application under s. 38(4) to have been filed.

58. The respondent noted that even if such an application had been filed, the information provided about the new location in Nova Scotia is not sufficient to determine whether the animals could be returned to the appellant without the animals being placed in distress.

59. The Board agrees that the appellant has not provided sufficient detail to allow the Board to determine, on a balance of probabilities, whether or not the animals would be placed in distress if returned to the appellant.

60. The respondent also noted concerns about the appellant’s ability to safely transport a large number of dogs such a distance. The plans to transport the animals as articulated by the appellant and his witnesses lacked detail. While the appellant repeatedly asserted that he “would do whatever it takes” more detail is required before AWS can determine if the dogs can be safely transported.

61. There were inconsistencies in the appellant’s testimony that put into question some aspects of the appellant’s information:

(a) The appellant stated that he was not breeding his animals and that he kept the males and females separate. Three of his dogs were pregnant at the time of their removal.

(b) Despite claims that the dogs could have been sent to Nova Scotia at the time of their removal in December, the appellant testified that the Nova Scotia property was not yet ready in March.

(c) While the appellant argues that he would leave for Nova Scotia as soon as he could claim his dogs, he also stated that he may remain in Toronto for some time to try and sell the puppies on Kijiji.

62. In summary, the Board finds that the appellant failed to demonstrate, on a balance of probabilities, that the Removal Order or the Decision to Keep in Care were not made in accordance with the PAWS Act. AWS provided ample evidence to support a reasonable belief that the dogs in question were in distress at the time of their removal and that returning the dogs to the appellant would likely place the animals in distress. There is not sufficient evidence to order the return of the dogs on the basis that the conditions that created their distress no longer exist.

STATEMENTS OF ACCOUNT

63. The appellant challenged SOA #1 and SOA #2 on the basis that the veterinary charges for vaccination and the costs of transportation to a boarding facility were excessive or unnecessary.

64. Section 38 (9) 3 of the PAWS Act states that the Board may:

3. confirm, revoke or vary a statement of account served under s. 35(1).

65. The respondent submitted that the SOAs covered costs of providing necessities to the 24 dogs removed from the property from December 10, 2022, until January 31, 2023. The total cost outstanding was approximately $100,149.50, including:

DATES	BOARDING	FOOD	TRANSPORTATION	VETERINARY COSTS	TOTALS*
Dec. 10-15 SOA #1	$8,454.66	Included above)	$3,971.95	$5,034.80	$17, 461.21
Dec 15-31 SOA #2	$17,280 + $3,600 (8 PUPPIES BORN Dec 20)	$1,536	$180 (to vet)	$80.00	$ 22,622
Jan 1-15 SOA #2	$21,600	$1,380	$225 (to vet)		$ 23,205
Jan 16-30 SOA #2	$23,040	$1,376.00	$217.42 (to vet)		$23,733.42

* not including GST of some $9,400.00

Veterinary charges

66. The Appellant argues that the charges for vaccinating the dogs, which were part of the examination provided by Dr. Robertson (a total of some $2,360.57) should be deducted from the SOA #1. The appellant’s witness Dr. Brar testified that he had already vaccinated the dogs for the appellant. The AW Inspectors, however, did not have access to this information.

67. Dr. Robertson testified that it was necessary to examine the dogs because of the unsanitary conditions they were found in. The dogs required vaccination if they were to enter a kennel environment.

68. While the appellant may have been able to prove that his animals had already been vaccinated, it was his responsibility to provide this evidence to AWS in a timely manner. The Board finds that the charges for vaccinations were necessary and reasonable in the circumstances.

Transportation costs

69. The appellant challenged the respondent’s transportation costs on the basis that it chose an unnecessarily distant location to kennel the dogs and argued that there were facilities closer to Kleinberg. AWS Supervisor Rachel Vanderkroonenberg explained that it is not always possible to reach kennels or other boarding facilities outside of business hours. Not all locations will have space to accept such a large number of animals. Not all boarding facilities have vehicles to allow them to pick animals up.

70. Otherwise, the appellant offered no evidence to demonstrate that the SOA’s were unreasonable or that the costs were not incurred providing necessities to the animals.

71. The appellant did not provide evidence to demonstrate that that services of the same nature and quality could have been obtained for all the dogs on the dates required for a lower cost.

72. For the reasons above, the Board confirms the statements of account issued on December 16, 2022, and February 7, 2023. The Board accepts AWS’s evidence that the charges included in the SOA were reasonable and necessary to relieve the animals’ distress and to provide necessities. The appellant has not demonstrated that any of the charges were unnecessary or excessive.

ORDER

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

• Confirms the December 10, 2022, Removal Order and the December 14, 2022, Decision to Keep in Care.

• Dismisses the appellant’s application for the return of the 24 dogs.

• Confirms the December 16, 2022, Statement of Account in the amount of $17,462.21.

• Confirms the February 7, 2023, Statement of Account in the amount of $82,688.09.

Released: April 19, 2023

__________________________

Edgar-Andre Montigny, Member

Footnotes

1. 1Provincial Animal Welfare Services Act, S.O. 2019, Chapter 13.
2. 2Geddes v. Chief Animal Welfare Inspector, 2022 ONACRB 31, a paras 17-19
3. 3O. Reg 444/119 Standards of Care and Administrative Requirements, made under the Provincial Animal Welfare Services Act, 2019, s.o. 2019, c. 13.
4. 4Pryde v. CAWI, 2022 ONSC 6632, at para. 16.
5. 5Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632, at para. 62.