Lynn Freeman v. Chief Animal Welfare Inspector, 2023 ONACRB 51

Date: 2023-08-14

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

Between:

Lynn Freeman Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Peter Simmons, Member

Appearances:

For the Appellant: Lynn Freeman, Self-represented

For the Respondent: Connie Mallory, Regional Supervisor; Linsay Hay, Senior Investigator; Rachel Falls, Inspector; Megan Archer, Inspector, Animal Welfare Services Jason Kirsh, Counsel Riel Hishon, Counsel

Heard By Videoconference: June 28, 2023

OVERVIEW

1Lynn Freeman (the “appellant”) has appealed a Statement of Account (the “SOA #2”) in the amount of $22,191.97 issued by Inspector Rachell Falls (“Inspector Falls”) of Animal Welfare Services (the “AWS”) on June 9, 2023.¹ SOA #2, which was the second Statement of Account issued by AWS to the appellant, was issued for the purposes of recovering the costs to the Chief Animal Welfare Inspector (the “CAWI”) of providing necessaries to 40 cats that had been removed² by AWS from the appellant’s home on May 10, 2023 and sent to various boarding facilities.³ The SOA #2 covers the period from May 17 to June 6, 2023 only, and includes some invoiced amounts from boarding facilities who had not provided all their invoices in time for the preparation and issuance of SOA #1.

2The appellant appealed SOA #2 to the Animal Care Review Board (the “Board”) on June 16, 2023. The appellant argued that SOA #2 should be reduced to zero dollars because the costs are unreasonable, and not all the cats included on the SOA #2 belong to her.

THE ISSUE

3The issue in dispute in this matter is:

1. Should the SOA #2 of June 9, 2023, be confirmed, revoked, or varied?

RESULT

4For the reasons that follow, the Board:

1. Confirms the SOA #2 served on June 9, 2023, in the amount of $22,191.97.

EVIDENCE AND ANALYSIS

Preliminary Issue: Which party has the burden of proof?

5The parties disagreed on who has the burden of proof. The appellant feels that the respondent bears the burden of proof to show that necessaries were required for her cats and that the invoices support those costs. The respondent believes that the appellant has the burden to prove the costs in the SOA #2 are unnecessary to compel the Board to vary or revoke it.

6I agree with the respondent’s arguments that recent Board decisions show that the appellants have the burden of proof to show that statements of account should be varied, and that respondents have an initial evidentiary burden to show that charges on a statement of account are reasonable and reflect actual costs of necessaries.⁴

7I find that the respondent has an initial evidentiary burden of proving that the costs itemized in SOA #2 have been incurred for necessaries to relieve the animal’s distress and that they are reasonable.

8However, the appellant bears an overall burden of proof of showing that the SOA #2 should be varied or revoked.

Issue 1: Should the SOA #2 be confirmed, revoked, or varied?

9For the reasons that follow, the Board confirms SOA #2 in the amount of $22,191.97.

10Section 35(3) of the PAWS Act⁵ says that the owner is liable for the costs of necessaries to relieve an animal of its distress

The total number of cats is 40

11The appellant argued that AWS did not correctly catalogue the number of cats removed from her residence on May 10, 2023, and that the SOA #2 includes invoices for cats that do not belong to her.

12The appellant argued that costs shown on the invoices are not her responsibility because the identity of the cats is inaccurate, and cats that do not belong to her are included on the invoices. She also argued that the AWS’ cataloguing of her cats was incorrect and that the total number of cats removed on May 10, 2023, had been referenced as both 40 and 42.

13The respondent said that AWS removed 40 cats from the appellant’s home on May 10, 2023⁶ because the cats were in distress, and past orders issued by AWS from February 8 and 16, 2023, March 21, 2023, and April 5, 2023, had not been complied with. A signed Certificate of a Veterinarian Advising the Removal or Euthanasia of the Animal(s) was provided to AWS also on May 10, 2023. The removal of the cats resulted in boarding, treatment, and veterinary care that included blood collection, C-section, radiographs, antibiotics, and FIV⁷ tests depending on the conditions of the individual cats.

14The respondent acknowledged that a total of both 40 and 42 cats had been referenced on the day of removal and said the difference is attributed to a pair of cats that were counted twice, and the correct total number is 40. The respondent said their identification and cataloging process is thorough as proven by the written inventory of the removed cats, which they provided as evidence, that totaled 40 and which also showed invoices matching to the 40 cats. The respondent also showed where service provider errors on invoices including cats not belonging to the appellant were corrected and that these errors were not included in the invoice total.

15I find that the identification of the appellants’ 40 cats by AWS was accurate. The respondent provided a written inventory of 40 cats removed.⁸ The appellant provided no evidence to support her argument that the number or identification of the cats was incorrect.

16I also find that the costs in SOA #2 are supported by detailed invoices for boarding, treatment, and care for the 40 cats. I find further that the costs pertaining to cats not belonging to the appellant⁹ were excluded from any total, and that invoices showing previously billed amounts on SOA #1 are clearly identified and not included in the SOA #2.

The costs of caring for the cats

17The appellant argued that the costs for the boarding, care, and treatment of her cats are not all necessary, and that they are unreasonable because her cats had been previously examined.

18Inspector Falls said that all cats were examined within 24 hours of removal. She said few cats were deemed healthy and that most of the cats required follow-up care one week after their initial exam.

19Inspector Falls said that only necessaries are on the SOA #2 and costs such as transporting of cats to the facilities, which she said is not a necessary, is not included. She provided evidence through an invoice showing where the transportation amount had been deducted.

20Inspector Falls said that not every cost was added to the SOA #2. She showed evidence in the form of an invoice noting that kittens born in care were not added to the invoices. She also showed several invoices where costs were discounted at the source or were deducted from the invoice total.

21I find that SOA #2 reflects costs directly related to boarding and medical expenses for the 40 cats removed from the appellant’s home on May 10, 2023. SOA #2 covers the period from May 17 to June 6, 2023, as well as some invoiced amounts from boarding facilities who had not provided all their invoices in time for the preparation and issuance of SOA #1.

22I find further that the appellant’s cats were given care in accordance with the veterinarian examinations that were conducted within 24 hours after the cats’ removal and the follow-up care after initial assessments. There is no indication of duplication or unnecessary treatment that led to extra or unnecessary charges. The respondent’s evidence and testimony showed medical records that the conditions of certain cats resulted in a range of health treatments and actions including antibiotics, dental work, euthanasia, and follow-up and/or on-going care. The appellant provided no compelling evidence to support her argument that her cats received unnecessary care or were given duplicate treatments.

Rate difference between boarding facilities

23The appellant argued the rates charged by the boarding facilities are unreasonable and inconsistent citing that some invoices include HST while others do not.

24The respondent said that removal of the cats was required to relieve them of distress and that the relief included the provision of necessaries at various boarding facilities who charge different rates.

25Inspector Falls said that AWS does not set rates for boarding facilities. She said that rates are not standardized across the industry and boarding facilities are free to set their own rates which typically includes boarding, crate cleaning, grooming, and administering of required and prescribed medications.

26Inspector Falls said AWS reviews the rates of facilities when assessing invoices, and that the rates charged by boarding facilities are consistent with the rates in the Ontario Veterinary Medical Association (OVMA) guide.¹⁰ She said that none of the rates charged by the boarding facilities exceed the rates shown in the guide. She also said that businesses such as veterinary clinics may charge applicable HST whereas registered charities do not. The respondent’s summary of invoices showed where HST was charged.

27The appellant submitted that a 2022 Board decision that she was involved in, specifically, Freeman v. CAWI, 2022 ONACRB 12 was relevant.¹¹ That case involved various appeals including appeals of statements of account. The member in that case reduced several of the statements of account because AWS had not provided evidence to support boarding costs or costs related to distress relief.¹²

28The appellant also relies on the Ontario Superior Court decision called Sheets v. OSPCA cited in the 2022 Board decision that said,

“The plaintiff had to prove two things: to prove that the rate it charged for the care of the birds and animals was reasonable, and that it incurred, or paid out, the amount claimed.”¹³

29While I am bound by the court decision, the facts in this case are different. I am satisfied that the AWS has proven that the rates charged were reasonable and it incurred the costs claimed. Detailed invoices submitted as evidence by the respondent show the service and care provided to the individual AWS identified cat. I was persuaded by Inspector Fall’s testimony because she had knowledge of the care and services provided. She is a registered veterinary technician and reviewed the detailed invoices supporting the costs which are also in keeping with those recommended in the OVMA guide used by professionals in the industry.

30I find that the SOA #2 was supported by detailed invoices and statements from the various service providers showing the rates charged by the facilities, and that the rates are reasonable and consistent with the fees shown in the OMVA guide.¹⁴

Litter Rates

31The appellant argued that litter rates should not include adult cats because it is a group of kittens.

32The respondent said that boarding facilities have litter rates and adult cat rates, and that the litter rate does not include an adult cat. The respondent’s invoice evidence showed the difference between the litter rate and adult cat rate.

33I find that the rates charged for litters and adult cats are separate and distinct, and they are clearly identified on the invoices.

The appellant’s financial circumstances

34The appellant said she has spent a great deal of money “defending herself” over the past few years, and incurred costs taking her cats to veterinarians because of AWS orders. She also said she had “…26 animals spayed and neutered…” but did not provide any evidence to indicate when this occurred.

35In response to my questions about sources of income, the appellant said she is not working, and she receives a Canada pension, and a guaranteed low-income supplement from the government. She also said her house is for sale.

36The appellant asked that the statement of account be reduced. She did not say/demonstrate that she could not pay the statement of account, nor did she provide any documentary or compelling evidence to support her testimony about costs she has incurred, or about her financial circumstances.

SOA #2 is confirmed

37The appellant did not provide any persuasive evidence regarding any aspect of the SOA #2 to support her argument that the costs are incorrect or unnecessary and should result in a varying or revocation of the SOA #2.

38The appellant submitted no persuasive or documentary evidence or argument that that she is unable to pay the SOA #2.

39I am persuaded by the evidence of the respondent, specifically, the inventory and cataloguing proof of the total number of cats being 40, the cross referencing on the invoices to individually identified cats, and the supporting invoices for all costs in the SOA #2.

ORDER

40Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:

1. Confirms the Statement of Account made under s. 35(1) of the PAWS Act served on June 9, 2023, in the amount of $22,191.97; and

2. Orders the appellant to pay $22,191.97 to the Minister of Finance within 10 business days of the release of this Order.

Released: August 14, 2023

________________________

Peter Simmons, Member

Flaro v. CAWI, 2022 ONACRB 5, paragraph 30. Shekhurdina v. CAWI, 2021 ONACRB 15, paragraph 19. Hobson and Rodrigues v. CAWI, 2021 ONACRB 19, paragraph 70. Geddes v. CAWI, 2022 ONACRB 31, paragraph 19.

Footnotes

1. 1Pursuant to the Provincial Animal Welfare Services Act (PAWS Act) , S.O. 2019, c.13, s. 35(1), that says, “If an animal welfare inspector has provided an animal with necessaries to relieve its distress…. the CAWI may….serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.”
2. 2A Notice of Removal (the “NOR”) had been issued on the appellant by AWS on May 10, 2023, pursuant to Section 31(1)(a) and (c) of the PAWS Act.
3. 3AWS served SOA # 1 on the appellant for the boarding, treatment and care of the 40 cats removed on May 10, 2023. The SOA #1 covered the period of May 10-16, 2023 only. It was an interim SOA issued by AWS to keep the claimed costs from escalating. SOA #1 is not part of this hearing. A separate hearing was held before the Animal Care Review Board (the “Board”) on June 1 and 2, 2023 regarding SOA #1 and the NOR. The appeal for SOA #2 had not been submitted until June 16, 2023.
4. 4Ishankova v. CAWI, 2022 ONACRB 3, paragraph 8. See also:
5. 5PAWS Act, S.O. 2019, c. 13, s. 35(3).
6. 6See footnote 2.
7. 7Feline Immunodeficiency Virus
8. 8The number of removed cats on May 10, 2023 was 40. On May 20, 2023, 1 of the removed cats was euthanized.
9. 9Cats associated with another ACRB file were treated by the same veterinarian. The invoice distinguishes the costs of the 2 ACRB files.
10. 10Ontario Veterinary Medical Association (OVMA) Fee Guide, 2023.
11. 11Freeman v. CAWI, 2022 ONACRB 12
12. 12Ibid., paragraph 233
13. 13Freeman v. CAWI 2022 ONACRB 12 , paragraph 210 (See Sheets v. OSPCA (1984) O.J. No. 1339 (Div.Ct.) in OSPCA v. Straub, 2009 CanLII 25138 (ON SC), paragraph 40)
14. 14The fee guide is intended primariliy for veterinarians, however, related industry services also use the guide for fee guidance and structuring.