Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONACRB 40

Date: 2023-05-08

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

Between:

Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde, Cody Pryde, Adrienne Spottiswood and Thomas Pryde for Tate Pryde

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

For the Appellant: Eric K. Gillespie, Counsel John May, Counsel

For the Respondent: Danielle Meuleman, Counsel Kateryna Toderishena, Counsel

Observer: Rocco Iamello, ACRB Member

Heard By Videoconference: March 6 and 15, 2023

OVERVIEW

1Windrift Adventures Inc., Adrienne Spottiswood, Thomas Pryde, Georgina Pierce, Clayton Cauchy, Renata Sauder, Jillian Pryde, Cody Pryde, Adrienne Spottiswood and Thomas Pryde for Tate Pryde, (the "appellants") are the owners of 111 dogs removed from 2401 Telford Line, Severn and 118 dogs removed from 5753 Line 8 N, Oro-Medonte (the "dogs") by Animal Welfare Services (the "AWS") on [DATE]. The dogs remain in the care of AWS as of the date of this Order.

2The appellants appealed a Statement of Account dated February 10, 2023, in the amount of $1,524,640.00 served to the appellants respecting the cost of necessaries for keeping the dogs in care from January 18, 2022 to December 31, 2022 (the "SOA").

3The appellant's Notice of Appeal states four grounds of appeal as follows:

1. There was no proper basis for the removal of the animals;
2. The dogs have not been provided with proper necessaries and/or with adequate care;
3. The amounts charged are not appropriate; and
4. There was no proper basis for not returning the dogs.

4At a case conference on February 28, 2023, the appellants confirmed that they would not be calling evidence or making submissions at the hearing on their first ground of appeal as it is a "place holder" pending the outcome of other ongoing, related appeals, and they would not be calling evidence at the hearing regarding their fourth ground. It was also agreed by both parties that the evidence in chief from the witnesses would be by affidavits, with provision for cross-examination on March 6, 2023.

5The appellants did not appeal on the grounds of inability to pay and submitted no evidence about this at the hearing.

6I was advised by counsel for both parties that there are other pending legal proceedings between the parties regarding the animals. However, this appeal is limited to the SOA.

PRELIMINARY MATTERS – Appellant's Four Motions

7The appellants requested at the outset of the hearing that their four motions served March 3, 2023 be heard. The first motion was to strike paragraph 19 of the Affidavit of Senior Manager Sara Munoz affirmed March 2, 2023 (the "Affidavit"). The second motion was for further documentary disclosure from the respondent. The third motion was for an inspection of the animals and all related records. The fourth motion was for an order permitting the appellant to call four witnesses at the hearing.

8Before any of the motions were heard on their merits, or leave granted for any of the four motions to be heard on short notice, and after a brief recess, both counsel requested that I dispose of the first motion by making an Order on consent of both parties that paragraph 19 of the Affidavit be struck.

9I granted leave to the appellants to file their first motion with short notice and then ordered that paragraph 19 of the Affidavit be struck.

10Following the granting of this consent Order, the appellants withdrew their second, third and fourth motions and the hearing proceeded.

ISSUE IN DISPUTE

11The issue in dispute in this matter is whether the SOA should be confirmed, revoked, or varied.

RESULT

12For the reasons that follow, I confirm the February 10, 2023, SOA in the amount of $1,524,640.00.

LAW

13Section 35(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the "PAWS Act") provides that if an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector ("CAWI") has taken an animal into its care, the CAWI may from time to time, serve on the owner or custodian of the animal a SOA respecting the cost of necessaries.

14Section 35(5) provides that before the expiry of the relevant time period set out in Clause 4(a) or (b), the Chief Animal Welfare Inspector may 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.

15Under s. 35(3) of the PAWS Act, an owner or custodian who receives a statement of account under s. 35(1) is liable for the amount specified in the statement, or as otherwise specified in an order issued by the Board under s. 38(9).

16Section 38(2) provides a right of appeal to the Board of a statement of account.

17Section 38(9) gives the Board authority to, among other things, confirm, revoke, or vary a statement of account served under s. 35(1).

18Under s. 35(4), if an owner appeals a statement of account and the Board varies or confirms the amount, and the appellant does not pay it within a prescribed period of 10 days from the date of the Board's Order, then the animal is forfeited to the Crown.

Facts and Positions of the Parties

Appellants' Positions

19The appellants' submissions can be summarized as:

i) In this SOA appeal, the onus is on the respondent to prove on a balance of probabilities that actual and reasonable costs have been incurred. Once this initial evidentiary burden has been satisfied, then the onus of proof shifts to the appellant. The respondent has not satisfied the initial onus.

ii) There has been no disclosure by the respondent other than the SOA itself.

iii) There is evidence the animals have suffered harm while in care including hookworm and death.

iv) Findings of fact made in another case decided by another Board adjudicator about these animals and these parties are directly relevant and should be relied on by me at this hearing.

v) There is a Browne v. Dunn problem with the evidence in this hearing.

vi) There are many "prima facie issues" with the invoices as listed by the appellants in its document entitled "Kennel invoice issues 2nd SOA" submitted during closing argument.

vii) The respondent has not controlled the costs for the animals in a reasonable manner as another adjudicator has suggested in another decision (i.e. put the animals outdoors, in shared accommodation);

viii) There is no evidence before me as to what was paid and to whom for what services.

ix) The invoices are not to Ms. Munoz and she has no first-hand knowledge of them.

x) The findings of fact in another Board adjudicator's decision and motion Order in another appeal to the Board should be followed by me including that Ms. Munoz "misled" the Board. As a result, I should conclude that Ms. Munoz "perjured" herself in that appeal and refuse to accept her evidence here.

xi) There is only hearsay evidence before me about the costs in the SOA. There is no evidence from inspectors.

Respondent's Position

20The respondent's position is that it is seeking partial payment of the cost of boarding the dogs, at the reduced rate of $20.00/dog/day and that this cost is appropriate and reasonable.

Respondent's Evidence - March 2, 2023, Affidavit of Sara Munoz, paras. 1-18

21The respondent filed an affidavit of Sara Munoz, employed by the Ontario Ministry of the Solicitor General, Public Safety Division, Animal Welfare Services as a Senior Manager for Training, Public Education and Partnerships, affirmed March 2, 2023 containing 19 paragraphs and exhibits totaling some 418 pages (the "Affidavit"). Paragraph 19 was struck at the beginning of the hearing by me on consent of both parties. The Affidavit and attached exhibits, with paragraph 19 struck, is the only evidence before me at the hearing.

22The appellants chose not to challenge Ms. Munoz evidence by cross-examining on the Affidavit although cross-examination had been provided for in the February 28, 2023 case conference report and Order, time was scheduled for cross-examination to take place at the hearing on March 6, 2023, and Ms. Munoz was present at the hearing on March 6, 2023.

23The appellants chose not to challenge Ms. Munoz' evidence by putting forward any evidence of their own. The written list titled "Kennel invoice issues 2nd SOA" submitted by the appellants during closing argument is not evidence. However, I have considered it as part of the appellants submissions as set out below.

Findings of Fact Based on the Affidavit

24Based on the undisputed facts established by the Affidavit, I accept all of the evidence in the Affidavit and find that the facts in this appeal are as set out in the Affidavit. The most salient facts are summarized below.

25Ms. Munoz is an experienced Senior Manager who has employment experience in various capacities with animals since 2007. Ms. Munoz's involvement in this matter since November 2020 includes inspections of the dogs prior to removal, removal of the dogs, and the issuance of a statement of account prior to the one in issue in this appeal.

26Over 200 sled dogs were removed from the sled dog business of the appellant Windrift Adventures Inc. ("Windrift") on September 23, 2021 pursuant to s. 31(1) of the PAWS Act and taken to various not-for-profit and commercial animal boarding facilities in Ontario as no single boarding facility could accommodate that many dogs together. All of the dogs remain in the care of the respondent except for 12 dogs that were returned to Windrift and 15 dogs that have died or been euthanized while in the respondent's care due to medical reasons.

27On behalf of the respondent, on January 18, 2022, Ms. Munoz issued the first statement of account pursuant to s. 35(1) of the PAWS Act in the amount of $1,114,720.27 to the appellants as custodians and/or owners of the dogs. This statement of account included costs incurred by AWS for transportation, boarding and veterinary care for the dogs from their removal on September 23, 2021 to January 17, 2022. Following the hearing of an appeal, the Board reduced this account to $1,022,688.36 on August 18, 2022 after finding that $20.00 per day for boarding is the "most reasonable" daily boarding rate.¹ This decision of the Board is, at the time of writing, currently before the Divisional Court on judicial review.

28Ms. Munoz served the second account, the SOA which is the subject of this appeal, to the appellants on February 10, 2023 in the amount of $1,524,640.00. In deciding what costs to include in the SOA, Ms. Munoz decided at this point in time to only include boarding costs at the rate of $20.00 per day, being the rate approved by the Board in the appeal of the first statement of account. The appellants were notified of this in the February 10, 2023 cover letter served with the SOA and supporting invoices. The letter states:

"In consideration of the decision of the Animal Care Review Board in Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2022 ONACRB 24, which is currently subject to a Judicial Review, this Statement of Account contains boarding costs only, at the rate that was approved by the Board of $20 per dog per day. This Statement of Account covers the costs of boarding from January 18, 2022 to December 31, 2022. As…per the enclosed invoices, the actual costs of boarding are well over $20 per dog per day. Furthermore, Animal Welfare Services has incurred and continues to incur ongoing costs to address and treat various health issues present in this Windrift dog population including cancer, hip dysplasia, mammary masses, etc."

29In the letter, the respondent reserves the right to issue subsequent statements of account. No subsequent statements of account to the one that is the subject of this appeal, if any have been issued, are included in this appeal before me.

30The daily rates for all boarding costs are identified by facility and show what is included. Boarding costs at some facilities include food. At some facilities food and taxes are extra. Some facilities are tax-exempt and taxes are not part of the cost. Daily rates at the various boarding facilities used range from a low of $24.00 plus food and taxes and $30.00 tax exempt to a high of $40.00-$50.00 plus food and taxes.

31None of the actual boarding rates charged are as low as $20.00, which is the amount shown in the SOA.

32Some 346 pages of itemized boarding facility invoices that show the actual costs incurred by AWS for the dogs, for the time period in the SOA, and referenced to the respondent's internal file number are an exhibit to the Affidavit (the "invoices") and are in evidence before me. All invoices are addressed to AWS.

33Some of the invoices include charges in addition to daily boarding services for the dogs such as tests, veterinary services, transportation, medications, bathing, grooming, special food, and pick up and drop off services. The SOA itself does not include any of the charges for these services and is calculated only on the boarding rate per day of $20.00 per dog. The SOA identifies each dog, shows the boarding facility where each dog is housed, shows the costs of each boarding facility at the rate of $20.00 per day, shows the number of days and the calculated cost of $20.00. In addition, the SOA shows the daily boarding cost per day invoiced by each boarding facility and whether or not the facility is tax exempt.

34In cases where a dog had died, the date of death is shown. Where a dog has been hospitalized, the dates and reasons are shown and charges arising from hospitalization are shown. Where a dog requires a boarding situation specific to its needs, the invoices show that this care is being provided, such as, for example, raw food or special accommodation because a dog does not "play well with others".

35Ms. Munoz inquired into the costs of other dog boarding facilities used by AWS in the past years and found that costs vary from $40.00/dog/day (tax exempt) to $50.00/dog/day (tax exempt) to $40.00-$100.00/dog/day (tax exempt) and believes that the boarding costs charged in this particular case is consistent with the range of fees rendered for housing of domestic dogs in Ontario.

36Given that, at any time, Windrift can make arrangements to bring their properties into compliance with the PAWS Act and the Standards of Care and obtain return of the dogs, as a result of this uncertainty, Ms. Munoz does not believe it is feasible to negotiate long terms rates with the boarding facilities.

ANALYSIS

Should the SOA be confirmed, revoked, or varied?

37I find that the respondent has established through Ms. Munoz's Affidavit that, after taking the dogs into care, the respondent has provided the dogs with necessaries, specifically boarding, food and other care while the dogs have remained in the CAWI's care, and has served on the owners or custodians as identified by Windrift the SOA respecting the cost of necessaries, all within the meaning of s. 35(1) of the PAWS Act.

38It is clear from a review of the SOA and the supporting invoices that the respondent is seeking at this time only partial reimbursement of the actual costs incurred. The daily boarding rate of $20.00 is lower than any of the actual boarding costs incurred, in some cases by as much as 40 or 50 percent. Further, I have already found as a fact that Ms. Munoz inquired into the costs of other dog boarding facilities used by AWS in past years and found that costs vary from $40.00/dog/day (tax exempt) to $50.00/dog/day(tax exempt) to $40.00-$100.00/dog/day (tax exempt) and she believes that the boarding costs charged in this particular case is consistent with the range of fees rendered for housing of domestic dogs in Ontario. I accept this conclusion reached by Ms. Munoz based on her experience and her involvement in this matter. The appellants brought forward no evidence to the contrary and did not challenge Ms. Munoz' evidence in this regard even though it was open to them to cross-examine. As a result, I find $20.00/dog/day is reasonable in these particular circumstances.

39Although the appellants did not put forward any evidence at this hearing, their counsel made a number of submissions, none of which I find persuasive for the following reasons.

Appellants' Submissions

i) Burden of Proof

40Without accepting the appellants' submission that the onus is on the respondent to prove on a balance of probabilities that actual and reasonable costs have been incurred, I find that if the respondent bears this evidentiary onus, it has been met by the Affidavit.

41If the evidentiary onus is on the appellants, I find that they have not met it. The only evidence before me at this hearing is the Affidavit filed by the respondent. No evidence was brought forward by the appellants at all and the appellants chose not to challenge the Affidavit in cross-examination. Instead, the appellants' counsel made submissions in support of the appellants' contention that they should not have to pay the SOA. Counsel submissions are not evidence. Further, factual findings in other Board decisions, even involving the same parties as in this appeal, do not constitute evidence in this hearing absent agreement of the parties to treat them as evidence in this hearing. There is no such evidentiary agreement here and I decline to make findings of fact based on previous decisions of the Board that are not binding on me.

ii) Disclosure

42Although the appellants submit that there has been no disclosure by the respondent other than the SOA itself, I note that the uncontradicted evidence of the respondent in the Affidavit includes more than 300 pages of documentation supporting the expenses incurred in respect of the appellants' 200 dogs for the period of January 18, 2022 to December 31, 2022. The appellants could have sought disclosure of more documentation by way of a motion either prior to or at the hearing. In fact, the appellants brought a motion for disclosure at the beginning of this hearing, on short notice, but withdrew it before the hearing proceeded. In these circumstances, the appellants' argument that disclosure is lacking is unpersuasive.

iii) There is Evidence that the animals have suffered harm while in care

43The Affidavit details the care and consequent expenses the animals received for the time period in question. Although the care records show that over the period of almost one year in care, a relatively small proportion of the dogs have died, had to be euthanized and/or have required medication, hospitalization and other treatment for various conditions, there is no evidence from either party that this is the result of inappropriate care or infliction of harm. The animals were boarded at professional boarding facilities, received care as detailed, including some veterinary care. I accept the respondent's submission that the animals received appropriate care as explained in the Affidavit. There is no evidence to attribute any deaths to the respondent. The fact that dogs died while in CAWI's care does not demonstrate that CAWI caused the deaths.

iv) Board findings of fact in another appeal should be relied on here

44Although the appellants submit that findings of fact made in another appeal heard by another Board adjudicator about these dogs and these parties are directly relevant and should be relied on by me at this hearing, I disagree. Other Board decisions are not binding on me and this appeal has been decided on the one issue before me based on the evidence before me and the submissions made here.

v) There is a Browne v. Dunn[^2] problem with the evidence in this hearing

45Although the appellants' counsel suggested that there is a Browne v. Dunn problem with the evidence in this hearing, there is no basis for this submission and I reject it. Here, no cross-examination of any witness took place, let alone a cross-examination that relied on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness.

vi) There are many "prima facie issues" with the invoices

46Although the appellants submit that there are many "prima facie issues" with the invoices as listed by the appellants in its document titled "Kennel invoice issues 2nd SOA" submitted during closing argument, I find this submission unpersuasive. The appellants brought forward no evidence of any of the issues listed in its written argument and failed to elicit any evidence by way of cross-examination in support of what it refers to as "issues."

vii) The respondent has not controlled the costs

47The appellants' submission that the respondent has not controlled the costs for the animals in a reasonable manner as another Board adjudicator has suggested in another decision (i.e. put the animals outdoors or in shared accommodation) is not a persuasive argument for reduction of the SOA before me. The respondent is seeking only part of the cost actually incurred. There is no evidence before me that any controls or alternate boarding arrangements could reduce the partial commercial cost sought here of $20.00/dog/day. The appellants submitted that they could care for the dogs at their own properties for much cheaper. In response to this submission, I agree with the respondent that it has always been open to the appellants to make arrangements to bring their properties into compliance with the PAWS Act and the Standards of Care regulation to obtain return of their dogs.

viii) There is no evidence as to what was paid and to whom for what services

48Although the appellants submit that there is no evidence before me as to what was paid and to whom for what services, this submission is contrary to the evidence before me. I have already found that approximately 346 pages of itemized boarding facility invoices detail the services provided, to whom and what was charged. These are invoices detailing the costs incurred by AWS for the care of the dogs during the time period covered by the SOA. All invoices are referenced to the respondents internal file number and addressed to AWS. Details are given for charges in addition to daily boarding services for the dogs such as tests, veterinary services, transportation, medications, bathing, grooming, special food and pick up and drop off services. The SOA identifies each dog, shows the boarding facility where each dog is housed, shows the costs of each boarding facility, shows the number of days, the actual cost and the calculated cost of $20.00 and whether the facility is tax exempt. Dates of death and hospitalization are shown, where applicable, and charges arising from veterinary or other special care are all detailed.

49Section 35(3) of the PAWS Act provides that the appellants are liable for the amount specified and does not expressly require proof of payment. In this particular case, I find that proof of payment is not required. It is clear that AWS must pay for the amount invoiced, which significantly exceeds the partial payment sought in the SOA. It is clear from the Affidavit that the costs have been incurred and the respondent is liable for the cost, whether or not it has already been paid by the respondent.

ix) The invoices are not to Ms. Munoz and she has no first-hand knowledge of them.

50The invoices are addressed to AWS, not to Ms. Munoz personally which is appropriate given her employment and the wording of s. 35 of the PAWS Act. The Affidavit confirms that Ms. Munoz served the SOA that is the subject of this appeal and decided what costs to include in the SOA. Given this, I am satisfied that Ms. Munoz has first-hand knowledge of the invoices.

x) I should conclude that Ms. Munoz "perjured" herself in another Board appeal and refuse to accept her evidence here

51The appellants submit that the findings of fact in another Board adjudicator's decision and motion Order in another appeal to the Board should be followed by me including that Ms. Munoz "misled" the Board. As a result, I should conclude that Ms. Munoz "perjured" herself in that appeal and refuse to accept her evidence here. I find this submission without merit. Again, other Board decisions are not binding on me, including any findings of fact they might contain. However, it appears that no Board decision concludes that Ms. Munoz "perjured" herself. If another Board adjudicator felt misled by anyone, such a view is not binding on me and I decline to follow it. I am deciding this appeal on the one issue before me based on the evidence before me and submissions made here. Here, I find no basis to refuse to accept the Affidavit and no evidence that I should do so was put forward by the appellants.

xi) There is only hearsay evidence before me about the costs in the SOA

52The appellants submit that there is only hearsay evidence before me about the costs in the SOA and there is no evidence from inspectors. This submission is unpersuasive. The invoices were rendered to AWS, the employer of Ms. Munoz. I have already found that Ms. Munoz has first-hand knowledge of them in the course of her involvement in this matter. If the invoices are hearsay, the Board can accept hearsay evidence and I have accepted it as sufficient to establish the services rendered and costs incurred on a balance of probabilities, consistent with s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 which gives tribunals evidentiary flexibility.

53The appellants submitted some case law in support of their submissions, several of which involve other tribunals hearing cases under legislation other than the PAWS Act. The Board cases involving some or all of the appellants in this appeal are not binding on me and I decline to follow them. The Hurley³ and Straub⁴ cases were decided under legislation no longer in force which contained different legislative provisions. There is no issue that the principles set out in Vavilov⁵ apply and are reflected in these reasons for my decision.

54Lastly, in their Notice of Appeal the appellants state that there was no proper basis for the removal of the dogs, and there was no proper basis for not returning the dogs. There was no evidence brought forward by the appellants regarding these issues before me. I understand from counsel they are being dealt with elsewhere.

55Having considered the totality of the evidence before me and all submissions made by the parties, I confirm the SOA.

ORDER

56Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I confirm the SOA dated February 10, 2023 in the amount of $1,524,640.00. which is payable by the appellants to the respondent.

Footnotes

1. 1Windrift Adventures Inc. et al v. Chief Animal Welfare Inspector, 2022 ONACRB 24 at para. 71 (ACRB).
2. 3Hurley v. O.S.P.C.A., 2015 ONSC 7784.
3. 4Ontario Society for The Prevention of Cruelty to Animals v. Straub, 2009 CanLII 25138 (ON SC).
4. 5Vavilov v. Canada (Citizenship and Immigration), 2018 FCA 65.```
5. 2Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.).