Yathavan Jotheeswaran v. Chief Animal Welfare Inspector, 2023 ONACRB 45

Date: 2023-06-05

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

Between:

Yathavan Jotheeswaran Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Panel: Peter Simmons, Member

Appearances:

For the Appellants: Yathavan Jotheeswaran, self-represented

For the Respondent: Brandon James (Regional Supervisor),

Michael Gallagher (Inspector),

Tamara Welch (Inspector), Animal Welfare Services

Jason Tam, Counsel

Heard By Videoconference: April 26, 2023

OVERVIEW

1Inspector Tamara Welch (“Welch”) of Animal Welfare Services (the “AWS”) responded to a complaint on February 7, 2023, concerning Yathavan Jotheeswaran (the “appellant”) and his treatment and interaction with one of his animals, a Yorkshire terrier dog. Welch attended 2 locations because of past complaints including the shelter where the appellant currently lived and his previous shelter residence.

2On February 8, 2023, Inspector Michael Gallagher (“Gallagher”) attended the shelter where the appellant was residing and spoke to him in person advising him of the concerns regarding the care of his dog and a second animal, a cat. AWS issued a Compliance Order (the “Order”) pursuant to s. 30(1) of the Provincial Animal Welfare Services Act (the “Act”)¹ to the appellant for both animals with a compliance date of February 15, 2023. The Order included that the appellant was to provide the animals access to appropriate sanitary conditions, to remove the animals from their cages on a regular basis to allow them access to appropriate exercise conditions, and to provide food and potable water in spill proof containers.

3On February 14, 2023, Welch and Gallagher spoke with the appellant in person and discussed new concerns surrounding his care, crating and treatment of both animals including that shelter staff had shared with them that they had observed him touching the dog in a sexual and inappropriate way.

4On February 22, 2023, Welch removed the appellant’s cat and dog, and issued a Notice of Removal (the “NOR”). The NOR was issued pursuant to clause 31(1)(a) of the Act, that a veterinarian had advised the AWS in writing that alleviating the animal’s distress necessitated their removal. A Certificate of a Veterinarian Advising the Removal or Euthanasia (the “Certificate”) of the animals was issued on February 22, 2023.

5On March 7, 2023, AWS served a Notice of Decision to Keep an Animal in the Chief Animal Welfare Inspector’s (the CAWI”) Care (the “Decision to Keep” or “DTK”) to the appellant concerning both animals.

6Also on March 7, 2023, AWS served a Statement of Account (“SOA”) in the amount of $1,156.27 to the appellant.

7The appellant appealed the DTK and SOA to the Animal Care Review Board (the “Board”) on March 13, 2023.

8The Board conducted a case conference on March 17, 2023, on both the DTK and SOA. As the matters did not resolve, the appeals were referred to a hearing.

9The video conference hearing on both matters occurred April 20, 2023.

PRELIMINARY MATTERS

10The respondent advised that the cat had passed away since being removed by AWS. The cause of death was not known. The DTK in this matter impacts the dog only.

11The respondent advised they are not revising the SOA because the costs pertaining to the cat were incurred prior to her passing.

THE ISSUES

12The issues in dispute in this matter are:

1. Should the dog, removed from the appellant’s care on February 22, 2023, and subject to the DTK of March 7, 2023, be returned to the appellant?

2. Should the SOA be confirmed, revoked, or varied?

RESULT

13For the reasons which follow I:

1. Dismiss the appellant’s appeal to have the dog returned to him; and

2. Confirm the SOA in the amount of $1,156.27

EVIDENCE AND ANALYSIS

Should the dog be returned to the appellant?

14For the reasons that follow, I find that that the dog should not be returned to the appellant.

15The animal was removed by AWS on February 22, 2023, due to concerns for its well-being, and that it was in distress. The concerns and issues included inadequate access to food and water, leaving the animal in an inadequately sized crate for extended periods, and inappropriate sexual touching.

16The concerns had been discussed with the appellant prior to the animal being removed. The decision to remove the animal was supported by a veterinarian’s Certificate that removal of the animal was necessary to alleviate the animal’s distress.

17“Distress” is defined in s. 1(1) of the Act 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.

18The respondent argued the DTK is necessary because they have reasonable grounds to believe that the dog will be placed in distress if returned to the appellant. The basic standards of care were not being met, the Order items were not completed by the compliance date, and efforts to educate the appellant on animal welfare, appropriate care for his animal and inappropriate behaviour with animals were ignored.

19The respondent provided a written statement from staff at a shelter where the appellant was living that he was observed yelling and being aggressive toward the dog. It also says the animal was kept in a crate that did not allow adequate access to water, food, or litter area when the appellant was absent for an approximate 6-hour period. At one point the animal was confined to a crate with the cat further restricting its ability to eat, rest, sleep or move naturally. The statement says the appellant had declined to re-crate the animal when a larger crate was offered. The statement also included that the animal was leashed to the cat when inside a crate. The appellant denied that a larger crate was offered.

20The respondent provided another written statement from staff at a shelter that said the appellant talked about his sexual interest with the dog, and that he requested a private shower area for himself and his dog. In the statement the staff also say they observed the appellant touching the dog’s genitals including penetration.

21AWS spoke to the appellant in person about his sexual interest in his dog and inappropriate touching. The appellant said that he was helping the dog defecate. He made no mention of sexual interest towards the dog when testifying or during cross examination.

22The appellant disagreed that the animal was in distress. He said his dog provided him with a great deal of comfort, and that he believed he was providing it with good care.

23Section 38(4) of the Act requires that an owner making an application for animals to be returned, be able to demonstrate that the conditions that caused the animal to be kept in the CAWI’s care have ceased to exist.

24I find that the appellant has not demonstrated that the conditions that caused the dog to be removed have ceased to exist for the following reasons:

1. The appellant did not acknowledge that the basic standards of care had not been met or that the dog was in distress. He offered no assurances that the basic standards of care would be provided to the dog, and that the conditions that caused distress including inadequate access to water, food, and no litter area had been removed.

2. The respondent’s case law submission supports their argument that the dog will be placed in distress if returned because the standards of care will not likely be met and proper care will not be provided. In Pryde v. CAWI, “...if the standards of care as set out in the Regulation are not met, then such care is not proper for the purposes of the Act and, as a result, such improper care amounts to distress.”²

3. I have also considered the issue of the appellant’s inappropriate, aggressive, and sexual interest toward the dog. This is supported by written witness statements from two different witnesses at the shelters, and in person discussions between AWS and the appellant.

Should the SOA be confirmed, revoked, or varied?

25For the reasons that follow, I confirm the SOA:

1. Section 35 (1) of the Act speaks to the liability of the owner for the costs of necessaries to relieve an animal its distress.

2. The appellant bears the onus of proof that he is unable to pay the SOA. The appellant appealed the SOA based on his inability to pay but provided no evidence to show that he was unable to pay. He testified that he has two sources of income (piece work at a mechanic’s shop, and Ontario Works), and that he has a personal debt that he pays down on an unscheduled timeline.

3. The respondent submitted they factored the appellant’s circumstances into the preparation of the SOA, and only charged for 2 days of boarding instead of 7. The costs in the SOA are in relation to the NOR issued on February 22, 2023. The SOA is supported by a detailed breakdown and invoicing of treatment, boarding and care provided to the animals.

ORDER

26Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I:

1. Dismiss the appellant’s appeal to have his dog returned to him.

2. Confirm the SOA in the amount of $1,156.27.

Footnotes

1. 1Provincial Animal Welfare Services Act (PAWS), 2019, S. 30
2. 2Pryde v. CAWI, 2022 ONSC 6632