Parrots and Poodles Pet Palace v. Chief Animal Welfare Inspector, 2023 ONACRB 46

Date: 2023-07-07

Appeals under s. 38(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.

Between:

Parrots and Poodles Pet Palace c/o Walter Palubiski and Linda Clifford

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

ADJUDICATOR:

Ashley Deathe

For the Appellant:

Walter Palubiski, Agent for Parrots and Poodles Pet Palace

For the Respondent:

Alanna Thompson, Counsel for Respondent

Jessica Fiore, Counsel for Respondent

Alison Green, Regional Supervisor AWS

Erin Brûlé, Senior Investigator for Animal Welfare Service (AWS)

Elizabeth Robbins, Clerk

Heard by videoconference:

May 1, 8, and 9, 2023

OVERVIEW

1The Appellant Parrots and Poodles Pet Palace is a pet shop in Timmins, Ontario, which is operated by Walter Palubiski. Over the course of January to March 2023, Animal Welfare Service (AWS) inspectors attended the store, issued compliance orders, removed various animals from that location, made decisions to keep animals in care, and issued Statements of Accounts to the Appellant under the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the Act).

2The five appeals before me concern the following:

1. A Removal Order for the starred agama, February 25, 2023;

2. The Decision to Keep in Care for the two leopard geckos, March 13, 2023;

3. The Statements of Account concerning:

i. Starred agama for $1,574.67;

ii. Leopard geckos for $811.38; and

iii. Common rats for $369.25.

3The Appellant initially commenced eight appeals, but three were dismissed on procedural grounds following a motion heard in writing: See, Parrots and Pet Poodles Pet Palace c/o Walter Palubiski and Linda Clifford v. Chief Animal Welfare Inspector, 2023 ONACRB 38 (“Dismissal Motion”).

4The hearing was originally scheduled for May 1 and 2, 2023. However, technical problems prevented the Appellant from filing of a Witness List, making necessary disclosure, and from receiving the Respondent’s Book of Documents.

5On consent of the parties, I ordered the hearing adjourned by one week, resuming May 8 and 9, 2023, to allow for service of the Respondent’s documents by courier to the Appellant and for the Appellant’s documents to be served on the Respondent and the Board by means other than email if necessary.

6At the time of the hearing, the leopard geckos were still in the care of the Respondent, and the common rats had been forfeited to the Crown due to failure to pay a Statement of Account that is not under appeal at the time of the hearing. The starred agama had also died while in the care of the Respondent.

ISSUES

7The issues to be determined are:

Removal under s.31(1) of the Act

a. Was the agama in distress at the time of its removal on February 25, 2023? If so, was it necessary for the Respondent to remove it to alleviate its distress?

Decision to Keep in Care under s.31(6) of the Act

b. Did the Respondent have reasonable grounds to believe that it was necessary to keep the two juvenile leopard geckos in care to alleviate their distress at the time that the March 13, 2023, Decision to Keep in Care was made?

Statements of Accounts under s.35 of the Act

c. Should the following Statements of Accounts be confirmed, revoked, or varied:

i. March 8, 2023, in the amount of $1,574.67 for the starred agama;

ii. March 14, 2023, in the amount of $811.38 for the two juvenile leopard geckos; and

iii. March 14, 2023, in the amount of $369.25 for the two adult common rats.

RESULT

8Based on the evidence before me, I find:

Removal under s.31(1)

1. The agama was in distress at the time of its removal on February 25, 2023 and it was necessary for the Respondent to remove it to alleviate its distress.

Decision to Keep in Care under s. 31(6)

2. The Respondent did not have reasonable grounds to believe that it was necessary to keep the two juvenile leopard geckos in care, to alleviate their distress when it made the decision on March 13, 2023.

Statements of Accounts

3. The Statements of Accounts are confirmed:

i. March 8, 2023, in the amount of $1,574.67 for the starred agama;

ii. March 14, 2023, in the amount of $811.38 for the two juvenile leopard geckos; and

iii. March 14, 2023, in the amount of $369.25 for the two adult common rats.

ANALYSIS

9In addition to the oral testimony received from Walter Palubiski, his adult daughter and pet store employee Crystal Palubiski, Inspector Erin Brûlé and veterinarian Dr. Phillipe Levis, I also reviewed the documentary evidence including medical reports and photographs of the animals.

10I qualified Dr. Levis as a participant expert whose specific education and training in veterinary medicine were sufficient expertise supporting his opinion evidence on the health status of the animals that he examined in these appeals.

11Some of the Appellant’s testimony and argument related to how AWS inspectors performed their duties or were motivated towards the Appellant. The procedure and authority to review complaints concerning the conduct of an animal welfare inspector are addressed under Part III of the Act and are not within the jurisdiction of the Board.

ISSUE 1: The starred agama was in distress on February 25, 2023

12Section 1 of the Act defines distress as:

1. In need of proper care, water, food or shelter;

2. Injured, sick, in pain or suffering; or

3. Abused or subject to undue physical or psychological hardship, privation or neglect.

13Several AWS inspectors had attended the pet store and issued some compliance orders throughout January and February, 2023, for various animals. Inspector Erin Brûlé first attended the pet store on February 22, 2023 to complete a compliance check of previously issued compliance orders.

14The previous compliance orders did not relate to the agama.

15When Brûlé first attended the pet store, she was concerned that the agama was severely emaciated since she could see its skeletal structure and it did not appear to have any fat reserves. It also appeared to be dehydrated. She recalled that Crystal Palubiski, an employee, voiced concern that the agama was “struggling.” Brûlé took photos of the agama and sent them to a colleague, Senior Investigator Nicole Pratt, whom Brûlé testified had more knowledge of reptiles than she did. The purpose of sending these photographs was to ask that colleague for a second opinion on the urgency of veterinary care.

16Brûlé issued a compliance order for the agama to be examined by a veterinarian by noon the next day, February 23, 2023. She also ordered that the animal not be sold, rehomed, or surrendered until the animal had been medically cleared by a veterinarian.

17Brûlé testified that she had originally wanted the veterinary care to occur on the same day as her inspection, but due to the scarcity of veterinarians in Northern Ontario, she extended compliance deadline to the following day. She testified that she was aware there were some veterinarians who offered telemedicine and that she had mentioned this to Palubiski.

18When Brûlé returned to the pet store to follow up on compliance on February 25, 2023, she learned from another store employee that the agama had not received veterinary care. Prior to attending at the store that day, Brûlé had received emails from Palubiski stating that the agama was to be returned to the reptile supplier in Quebec.

19On February 25, 2023, Brûlé removed the agama from the pet store after observing again that it was in very poor body condition and the compliance order had not yet been complied with, despite the fact that two days had passed since the deadline.

20After removal, she took the agama to the South Porcupine Animal Hospital (the “Animal Hospital”) and met with veterinarian Dr. Levis.

21Dr. Levis testified that the agama appeared lethargic during the physical exam, was notably emaciated, and the appearance of his scales was indicative of a poor shed. He assessed the agama’s body condition to be 1 out of the 9-point scale. He was unable to get a fecal sample upon examination so he could not differentiate whether the poor condition was the result of parasites or inadequate animal husbandry practices. He treated the agama it with liquids, by injection, and force fed it with a compound high in fat and calories. He recommended it be placed in specific conditions in a tank with monitoring and care. Follow-up veterinary assessments were provided on February 27 and March 2, 2023.

22Dr. Levis also testified that the agama was in such poor condition he considered recommending euthanasia. He explained that for reptilian species which tend to be long living, he often focuses on improving animal husbandry. In this particular case, he recalled struggling with the decision given the very poor body condition on the agama. Because it was suspected to be a young reptile, Dr. Levis ultimately recommended feeding with close monitoring for weight gain and improvement.

23When the agama’s condition did not improve appropriately despite the changes to care, Dr. Levis recommended the Respondent send the animal to an exotic animal specialist in Southern Ontario. The agama died, however, before receiving further diagnostics or treatment.

24Upon review of the necropsy report, Dr. Levis noted that the likely main cause of death was from a parasite, cryptosporidium, which affects the lining of the stomach and small intestine such that the reptile cannot digest food properly. This particular parasite results in a grave prognosis for a reptile. In his opinion, “the agama was severely unwell for a long period of time.”

25Dr. Levis was also asked about whether his clinic was accepting new patients. He testified that during the COVID-19 emergency, his clinic restricted visits from new clients. However, there is no blanket denial for new referrals in place this year. He states that because his clinic is one of the few that will see exotic species, he indicated he is available for new referrals.

26The Appellant’s position is that the agama was not in distress at the time it was removed and that if it needed veterinary care, it was reasonable for him to return the reptile to his supplier given the scarce availability of veterinarians in Northern Ontario.

27Palubiski testified that he had cared for the agama for over a year and that it was given fresh food daily. Any concerns about its physical appearance including issues with scales or sluggishness, could be explained by it just coming out of “brumation,” which Palubiski testified to be akin to hibernation for reptiles.

28However, his daughter, Crystal, testified that she had been concerned about the agama for “a while”.

29Given the location of this pet store in Northern Ontario, Palubiski testified that veterinarian care is scarce, and that he has been unable to secure veterinary care for the exotic animals he sells. Palubiski testified that he was denied access to Dr. Levis’ Animal Hospital sometime in the past. No evidence was presented that he made efforts to access care at that Animal Hospital for the agama after the compliance order was issued on February 22, 2023.

30Palubiski testified that he has an arrangement with his reptile supplier that allows him to return whatever animals he has received from them that are deemed to be unwell. He conceded that he did not know, however, whether the supplier provides the returned animals with veterinary care.

31Crystal also testified that veterinary care was scarce in Timmins and because of this, she sends her own pets to Ottawa to access veterinary care when family members travel there from time to time.

32I find that the evidence overwhelmingly supports a finding that the agama was in distress because it needed medical care at the time of the removal order. I also find that it was necessary to remove the animal to relieve its distress because Palubiski had not arranged veterinary care contrary to the compliance order, preferring to return it to the supplier.

33While past experience having difficulty accessing veterinary care explains Palubiski’s approach, it does not sufficiently justify his actions in this case. He provided no evidence that he attempted to seek out telemedicine or virtual care appointments, as Brûlé had suggested to him, nor that made efforts to seek out urgent medical care from the Animal Hospital, and it was unclear what, if any, veterinary care the supplier promised to provide to the agama.

ISSUE 2: It was unreasonable to believe that it was necessary to keep the two juvenile leopard geckos in care to alleviate their distress at the time the Decision to Keep in Care was made.

34Section 31(6) of the Act states that the Respondent may decide to keep an animal in care in two circumstances:

(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.

35The Decision to Keep in Care was made on March 13, 2023, under section 31(6)(a), by Regional Supervisor Nicole Driscoll who provided the following reasons:

The leopard geckos have been examined by a veterinarian and were diagnosed with pinworm. The veterinarian believes the pinworm is attributing to their low body condition. The leopard geckos have been prescribed a Fenbendazole treatment, to be administered every two weeks for a total of three treatments. The leopard geckos are under the care of a veterinarian to ensure the pinworm parasite is resolved and to monitor their weight.

36I find that the Appellant has proven on a balance of probabilities that it was not necessary to keep the two juvenile leopard geckos in care to alleviate their distress at the time the Decision to Keep in Care was made.

37On February 16, 2023, Rachel Vandenkroonenberg, Regional Supervisor, issued a compliance order requiring the Appellant to obtain veterinary care for two leopard geckos to assess their overall health and thin body condition. The compliance date was February 21, 2023 by 11 a.m. That order was served by courier.

38Brûlé testified that she spoke with Palubiski on February 21, 2023 by phone to ensure he had received prior orders and understood what was expected of him. She recalled that he informed her at that time that he was of the opinion the animals did not require veterinary care and that he would not be taking them to the veterinarian.

39When Brûlé attended the pet store on February 22, 2023, she observed the two leopard geckos were young, underweight, and had thin tails. The thinness of the tails was notable because, as she explained, geckos hold fat reserves in their tails.

40The geckos were removed by AWS on February 22, 2023 and taken directly to Dr. Levis’ Animal Hospital for a veterinary assessment. Dr. Levis assessed these animals and observed the geckos to have a poor body condition, rating them a 3 out of the 9-point scale. Otherwise, their physical exam was fairly normal. He explained that his major concern was that they were thin and it was unknown at the time of the assessment whether parasite or the care of the geckos was the cause. He collected a fecal sample to test for parasites. On March 4, 2023, Brûlé learned that they had tested positive for pinworm and required 3 treatments of medication every 14 days.

41Brûlé explained that the geckos needed to remain in the Respondent’s care while receiving the medical treatment because AWS “needed to be sure the treatment would be provided.” She stated that she was concerned that the Palubiski would not follow the specific recommendations of the veterinarian.

42Dr. Levis also testified that the reptiles needed to be monitored for weight gain but did not indicate whether the necessary care required close monitoring or specific training which Palubiski lacked.

43On cross-examination Dr. Levis confirmed that he had not seen the photographs of the tank from which the geckos had been removed.

44When served with the compliance order directing the geckos to receive veterinary care, Palubiski was resistant to comply. He did not accept that the geckos were in distress based on their behaviour and his understanding of the possible causes for a thin tail in a gecko. Crystal also testified that, in her experience as a pet store employee, the geckos had not exhibited any behaviours she associated with distress: they were hunting, eating, and drinking as expected. This is consistent with Dr. Levis’s opinion that but for their thin appearance, the physical exam of the geckos was normal.

45I find that Palubiski was not opposed to providing necessary medical treatment: he testified that if he had suspected the geckos had parasites he would have treated. He (wrongly) believed that the geckos were healthy because they did not exhibit problematic behaviour and erroneously rationalized their thin tails as a benign physical feature.

46Dr. Levis’s opinion that the geckos had poor body condition and the diagnostic confirmation of pinworms shows that these reptiles did require medical treatment.

47Respondent’s counsel spent some time at the hearing on the topic of the original cost of those leopard geckos being $29.99 each which was a discounted cost as their status at the time the Appellant received them was labelled “imperfect.”

48Palubiski testified that he understood the “imperfect” label could mean missing a limb, be of small size, or other cosmetic issue. He was dealing with a supplier he found reputable which, in his experience, did not send the pet store animals who were sick. He added that sometimes animals arrive experiencing some stress through travel.

49Palubiski did not accept the Respondent’s suggestion that by purchasing these particular animals he ought to have known they had medical needs, nor did he accept the suggestion that the cost of the gecko was an indication that he would not spend money to address the care of these animals.

50I accept the Appellant’s evidence on this point. The fact that Appellant received a discount for these leopard geckos is not evidence that these geckos were sick.

51Brûlé testified that she compiled her notes and findings for Regional Supervisor Driscoll and recommended that the geckos stay in the care of AWS until they were free of parasite. On March 13, 2023, Driscoll issued the Decision to Keep in Care on the basis that the leopard geckos needed ongoing care to alleviate their medical distress.

52I find that the treatment prescribed was not so complicated or invasive that it could not be handled by the pet store employees during business hours.

53I am not persuaded by the Respondent’s evidence that keeping the geckos was necessary to relieve their distress.

54I find that the Respondent’s decision to keep the geckos in care was unreasonable at the time it was made (March 13, 2023) because the treatment did not require close monitoring or care outside of business hours. I accept Palubiski’s testimony that he was willing to provide necessary medical treatment, and I find that the pet store employees had the capacity to monitor weight gain and additional clinical symptoms during their already established care routines.

ISSUE 3: The Statements of Accounts

55The Appellant’s position is that the three Statements of Account were unreasonable because the subject animals should not have been removed or kept in the Respondent’s care, or those amounts should be reduced or varied because they are not reasonable.

56The Respondent redacted the names, logos, and/or addresses of the persons or entities that provided the care itemized on the accounts. During the hearing, the Appellant argued it was unfair that he was not provided with that specific information prior to the hearing. The Respondent’s position is that these specifics should be kept confidential because some of the animals are still in care and identifying information could allow owners to contact the service providers and leave those providers open to unreasonable negative attention. The Respondent did not lead evidence that there was a specific risk of this happening in this case.

57This Appellant raised this disclosure concern while the Respondent’s evidence was being heard. I share the Appellant’s concerns that the lack of disclosure shields the identity of potential witnesses and potentially undermines an appellant’s ability to fully dispute the reasonableness of the charges.

58Despite the timing of the Appellant’s objections regarding the disclosure, I ordered the Respondent to reveal the basic information about the service providers. The Appellant did not continue with this line of questioning but raised other arguments concerning the Statements of Accounts.

Agama

59I found that the Respondent properly exercised its power under the Act to remove the agama because it was in distress.

60The Appellant asserted that the costs incurred were unreasonable, but bald assertions are not sufficient to meet the Appellant’s burden on this appeal.

61I find the costs of medical care and boarding of the agama from February 25 – March 5, 2023 were reasonable; I accept that these charges reflect the true costs of caring for the animal and were necessary to relieve its distress.

62The Statement of Account of $1,574.67 for the agama is confirmed.

Leopard geckos

63The Statement of Account dated March 14, 2023, includes:

Boarding Costs (See invoices 1, 2, 3): $345.00

Veterinary Costs (see invoices 4, 5): $466.38

64The costs concern services provided prior to the issuance of the Decision to Keep in Care dated March 13, 2023.

65This Board has previously addressed allowable costs in a Statement of Account that are incurred prior to a decision to keep in care and held:

Allowable costs in a Statement of Account

140Section 35 does not afford the CAWI free licence to incur costs in relation to animals that were removed. Rather, those costs must be in relation to “necessaries” and are authorized in only two circumstances:

1. where an animal welfare inspector has provided an animal with necessaries to relieve its distress; and

2. where the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector’s care.

141With respect to the Statement of Account at issue before me, the CAWI did not make a determination that it was necessary to keep the animals in care pursuant to s. 31(6) until two months after the removal.

142As a starting point, therefore, the costs claimed in this Statement of Account must be in relation to necessaries provided to relieve the animals’ distress; they cannot be in relation to keeping the animals in care as no such decision had been made at the time this Statement of Account was served.

Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 25

66In this case, medical costs were incurred to complete a veterinary assessment and to acquire medication to relieve the animals’ distress. Those costs were necessary to relieve the animals’ distress.

67However, I do not accept that boarding the animals was necessary to relieve their distress. While Dr. Levis prescribed specific environment requirements for the geckos, he testified that he did not assess the living conditions that the geckos had been removed from and I accept the Appellant’s evidence that the geckos housing was adequate as was its access to food and water.

68I disallow the boarding costs of $345.00. The Statement of Account is varied to $466.38 which is the total cost of the medical care incurred.

2 adult common rats

69The Statement of Account under appeal concerning the costs of providing the necessaries to the two adult rats that had been removed from the pet store on February 15, 2023 was dated March 14, 2023 for boarding costs totaling $369.25.

70The Respondent issued a Decision to Keep in Care on February 22, 2023 and an earlier statement of account for these rats, neither of which is the subject of this appeal.

71The Appellant’s position is that the Statement of Account for the rats is unreasonable on its face because:

1. It is unreasonable to spend such money on two common rats that were not intended for re-sale, and those animals had been dropped off in their condition at the pet store anonymously; and

2. The Appellant could have treated them with an over-the-counter product but was not given a reasonable opportunity to do so.

72I find the Statement of Account reflects the costs of necessaries because the rats were suffering from a severe mite infection that required urgent medical treatment and close monitoring outside of regular business hours.

73Palubiski testified these rats were anonymously dropped off at the pet store overnight but acknowledged that he accepted them into care. The Act directs responsibility for an animal’s welfare without distinction to owners or custodians of that animal: See the applicability of compliance orders to “owner or custodian” s.30(1), and liability for expenses incurred to relieve distress to be served on “owner or custodian” s.35(1).

74I accept Dr. Levis’s testimony that the over-the-counter product that Palubiski wanted to use to treat the mites would be ineffective to treat the severity of the mite infection.

75Dr. Levis prescribed antibiotics which needed to be provided to the rats every 12 hours, and the evening dose of the medication fell outside regular business hours.

76The costs set out in the Statement of Account relate to necessaries of boarding those rats for 7 nights in addition to overnight attendance by staff. Given the severity of the animals’ mite infection in this case, I accept it the medical treatments necessitated the boarding costs in this case.

77The March 14, 2023 Statement of Account for the rats totaling $369.25 is confirmed.

CONCLUSION AND ORDER

78For the reasons above, I find that:

a. The agama was in distress at the time it was removed and it was necessary for the Respondent to remove the agama to alleviate its distress; and

b. The Statements of Account for the agama, and the rats are confirmed and the Appellant is liable to pay those amounts within 10 business days of the release date of this decision.

79I also find that Respondent’s decision to keep the two leopard geckos in care made on March 13, 2023, was unreasonable and I vary the Statement of Account for the leopard geckos to $466.38.