Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Valerie Guillaume
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator
Ashley Deathe
Appearances:
For the Appellant:
None
For the Respondent:
Jason Tam, Counsel
Ryan Withrow, Inspector Animal Welfare Services (AWS)
Brandon James, Regional Supervisor, AWS
Heard By Videoconference:
June 5, 2023
OVERVIEW
1The three consolidated appeals before me relate to actions taken by the Animal Welfare Services (AWS) pursuant to its powers set out under the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13 (the Act) to:
Order the removal of forty-one cats from the appellant’s home on February 6, 2023, pursuant to s. 31(1) of the Act;
Issue the Decision to Keep in Care of those forty-one cats, dated February 16, 2023, pursuant to s. 31(6) of the Act;
Issue the Statement of Account, dated February 21, 2023, totaling $23,969.95, pursuant to s. 35(1) of the Act.
2At the originally scheduled hearing (April 4 and 5, 2023), the appellant refused to participate in the hearing after I ruled on preliminary motions. The appellant exited the hearing before evidence was called. The respondent Chief Animal Welfare Inspector then moved to dismiss the appeals as abandoned and, in the alternative, as an abuse of process.
3I dismissed the motion, on notice to the appellant, because I was persuaded by the appellant’s submissions that she had not abandoned her appeals: see, Guillaume v. Chief Animal Welfare Inspector, 2023 ONACRB 14596 (“Dismissal Motion”).
4Accordingly, the hearing of these appeals was re-scheduled to two days on June 5 and 6, 2023 and a Notice of Hearing was sent to the parties by email.
5The appellant Valerie Guillaume did not attend this hearing and requested an adjournment. For reasons set out in this decision, I declined to exercise my discretion to adjourn the proceedings and directed that the hearing would proceed in her absence.
6At my invitation, the respondent proceeded to call evidence on all the issues in dispute in these appeals. However, the respondent’s position is that the ultimate burden of proof rests on the appellant in these appeals. More specifically, the respondent submits that because the appellant has not attended the hearing and called no evidence, she has failed to discharge her onus and, therefore, I ought to dismiss these appeals.
7As I will explain further below, I chose not to dismiss these appeals without hearing evidence on all issues.
RESULT
8For the reasons that follow, I decline to order the animals returned to the appellant and confirm the Statement of Account.
PRELIMINARY ISSUE 1: Proceeding in the absence of the appellant
9The Legislature has conferred decision-making powers onto Animal Care Review Board (the Board) as set out in the Act. In exercising these powers, the Board is also governed by the Statutory Powers and Procedures Act, R.S.O. 1990, c.S.22 (“SPPA”).
10Section 7 of the SPPA permits that where a party has been given due notice of a hearing and that party fails to attend, the tribunal may proceed in the absence of that party:
Effect of non-attendance at hearing after due notice
7 (1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
11The SPPA also gives the tribunal the power to adjourn a hearing on its own motion or where “the adjournment is required to permit an adequate hearing to be held.” The text of that section of the Act is as follows:
Adjournments
21 A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.
12Within the context of animal welfare, the Board may also consider whether the adjournment request impacts the expedited timeline for hearings established by s.38(7) of the Act.
13The Board’s Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, Version I (effective October 2, 2017) as amended (the Rules) establish the process for requesting an adjournment, in writing (Rules 16.1). In “exceptional circumstances” a request maybe made orally, with consent of the Board (Rules 16.2).
14The hearing of the present appeals was scheduled to commence on June 5, 2023, 9:30AM by videoconference and the Zoom meeting details were provided with the Notice of Hearing dated May 26, 2023 and emailed to the parties. This hearing was scheduled for 2 consecutive days. For reasons unknown, at the scheduled start time, neither party appeared in the same Zoom meeting room as me.
15At my direction, the Registrar re-sent the Zoom meeting details to both parties by email. By 9:50AM the respondent’s counsel, instructing client, and witness had joined the correct Zoom meeting room.
16The appellant, however, did not appear.
17I was advised by counsel for the respondent that the appellant was in email communication with him that morning and had been copied on the Registrar’s email re-sending the Zoom link.
18I authorized a brief delay of proceedings to resolve the issue of the appellant’s attendance in the correct Zoom meeting room. I directed that the hearing would commence at 11:30AM and that the Registrar was to send an email to the appellant confirming that her attendance at the hearing was required at that time.
19The appellant replied to the Registrar’s email as follows:
The Appellant is not available for a hearing at 11:30 a.m, please have the member rescheduled the hearings, for another date. I was at the hearing since 9:30 a.m and waited for more than one hour to get into the Zoom meeting. Due to unmitigated circumstances, I will not be able to attend the hearing at 11:30 a.m.
Please have the member scheduled another video conference hearing, on the matter.
Should an appeal be needed later on, that decision, would also be appealed under section 25(1) of the Statutory Powers Procedure Act, which is also an automatic stay, of any such order.
20I was provided with a copy of that email by the Registrar and read that email out loud to respondent’s counsel who advised that he had not received it, nor had he received any adjournment request. He further indicated opposition to any further adjournment of these appeals.
21I authorized the hearing be delayed until 1PM so that additional time could be spent by the Registrar to contact the appellant by email and phone. I also took time to review correspondence between the Registrar and the appellant that had been sent that day.
22The appellant did not state or suggest, for example, that her internet access was of concern. She did not provide any explanation for her adjournment request.
23I am mindful of the prejudice to the appellant by proceeding in her absence. Without attending the hearing, the appellant is unable to call evidence and her appeals are at risk of being dismissed. I also note that there is also prejudice to the respondent by authorizing further delay in a proceeding that has been ongoing since the Notices of Appeals were filed at the end of February 2023. The respondent continues to incur costs to house and care for the animals. However, prejudice to either of the parties is not determinative of an adjournment request.
24By the time the delayed hearing was to begin at 1 PM, I was not satisfied that there were “exceptional circumstances” to justify further delay in this matter as required for an adjournment request made orally (Rules, 16.2), nor was I satisfied that an adjournment was otherwise “required to permit an adequate hearing to be held” as s.21 of the SPPA directs. My decision not to exercise my discretion to adjourn the hearing was based on the following:
The appellant had received proper notice of the hearing, which included a written explanation for the consequences of the non-attendance at a hearing by a party;
The initial misdirection into the wrong Zoom meeting room was quickly identified by me, the respondent, and the Registrar. The Appellant also identified something was amiss and contacted the Registrar by email to raise concern about the late start of the hearing. The misdirection was easily and quickly resolved, as evidenced by the respondent’s prompt attendance in the Zoom meeting room after the link was re-sent in an email to both parties;
The appellant did not provide any explanation for why she did not appear or could not appear in the correct Zoom meeting room after the Registrar emailed the link multiple times over the course of the morning and offered assistance with the technology;
The appellant did not contact the Registrar by phone or email at any time for assistance on June 5, 2023, despite a half-day delay to start the hearing; and
The appellant did not inform the respondent of her adjournment request, did not make the request in a timely manner, and did not give a reason for her position that the “member should adjourn.”
25For all these reasons, I chose not to exercise my discretionary power under s.21 of the SPPA or the Rules to order an adjournment.
26The hearing commenced at 1PM. The hearing concluded by 4PM. The appellant did not make further contact with the Registrar or respondent’s counsel at any point before the close of the hearing on June 5, 2023.
PRELIMINARY ISSUE 2: Burden of Proof
27The respondent’s position is that an appellant has the ultimate burden to bring their case and provide evidence in support of their appeal. The respondent submits that I ought to have dismissed the appeals due to the appellant’s failure to attend.
28The SPPA grants tribunals broad powers to control its processes: see s.25.0.1 of the SPPA. This is mirrored in the Act at s.39 which states that the Board can determine the order in which the evidence and issues are presented. The Board may also direct the respondent to give evidence on an issue where the appellant has not.
29I have considered the respondent’s position and I do not agree that the appellant’s appeals ought to be dismissed on the basis of her non-attendance.
30The appellant has sought the return of her animals and the revocation of the Statement of Account. Pursuant to the powers under the SPPA and the Act, I find that the Board has the authority to direct the respondent to call evidence first without displacing the ultimate burden of proof when adjudicating any type of an appeal before it.
31I invited the respondent to call evidence in this matter. The respondent elected to do so, which evidence I heard and considered.
THE ISSUES
32The appellant filed three appeals, the issues to be determined are:
Removal under s.31(1)
- Were the cats in distress at the time of their removal on February 6, 2023? If so, was it necessary for the respondent to remove them to alleviate their distress and was the removal done in accordance with the Act?
Decision to Keep in Care under s.31(6)
- Did the respondent have reasonable grounds to believe that the forty-one cats removed from the appellant’s home may be placed in distress if they were returned to the appellant at the time that the February 16, 2023, Decision to Keep in Care was made?
Statement of Account under s.35
- Should the Statement of Account dated February 21, 2023, totaling $23,969.95 be confirmed, varied, or revoked?
ANALYSIS
ISSUE 1: The Removal under s.31(1)
33An animal welfare inspector may take possession of an animal in distress in the following circumstances:
31.(1) An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if,
a) a veterinarian has advised the inspector in writing that relieving the animal’s distress necessitates its removal;
b) the inspector has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or
c) an order respecting the animal has been made under section 30 and the order has not been complied with.
34The animals in this case were removed on the basis of an inspection pursuant to s.31(1)(b) of the Act.
35Section 1 of the Act defines distress as:
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.
36The basic standard of care for all animals is further particularized in s. 3 of the Standards of Care and Administrative Requirements Regulation (O. Reg. 444/19) (the Regulation). That section states that every animal must be provided with adequate and appropriate food and water, resting and sleeping area, sanitary conditions, and protection from the elements.
Events leading up to and including the removal of 41 cats on February 6, 2023
37Because the appellant did not appear, she was unable to call evidence in this matter.
38Inspector Ryan Withrow testified that he first met with the appellant on January 25, 2023, having received a call that the cats in her care were living in unsanitary conditions. She denied him entry to her residence, an apartment in Markham Ontario, at that visit. He testified that he planned to return to make a further attempt to inspect the appellant’s residence.
39Before he could reattend, he learned that the appellant did not have access to her unit due to her being in police custody.
40He testified that he learned about this and a number of events concerning the appellant from an email sent to him by Inspector Taylor Jackson with AWS, including:
a. On Saturday, February 4, 2023, York Regional Police had entered the unit with AWS under a critical distress entry and observed 30+ cats inside the 1-bedroom apartment in unsanitary conditions with no access to food or water. The cats were not removed at that time, however, photographs of the interior of the unit were taken and unspecified amount of food and water were put out.
b. On February 5, 2023, Inspector Jackson attended the unit, but was unable to make contact with the appellant so he posted a “While You Were Out” notice taped to the door of her unit.
c. That the appellant was in police custody and that he had no details as to when she might be released.
41While this is hearsay evidence, I find it is admissible under the Board’s broad powers to admit evidence pursuant to s.15 of the SPPA; this evidence is relevant to the Withrow’s decision to enter the unit on February 6, 2023, to inspect the animals. These details are consistent with his Will Say prepared on February 21, 2023, by Withrow.
42Withrow attended the appellant’s residence at 12:00pm on Monday, February 6, 2023, in the company of two other AWS inspectors. The landlord provided him access to the appellant’s front door. During that visit, he observed that the notice posted by Inspector Jackson was still taped to the door of the appellant’s unit. In response to my question, Withrow explained that a person could not enter the unit without removing the taped notice.
43He unsuccessfully tried to reach the appellant by phone.
44He then called Regional Supervisor Brandon James who approved Withrow’s access to the unit on the basis of critical distress entry (s.29 of the Act) to the unit to assess the conditions of the animals inside.
45In response to my question of whether he considered getting a warrant to enter the unit, Withrow indicated that in his experience, the process for obtaining an entry warrant is lengthy, anywhere from a few days to a few weeks. Further, in response to my question about whether he considered obtaining a telewarrant, he stated his belief that a telewarrant would not have expedited the process of obtaining a warrant. He emphasized that “there was no time to spare” since the appellant was in police custody, an unknown number of cats were alone in the unit, and he had no knowledge of her release date.
46Withrow testified that he entered the unit at 1:36PM together with Senior Investigator Baily Wintermute and Inspector Bronti Frattini using personal protective equipment (PPE) and respirators due to the suspected high level of ammonia. In response to my question, Withrow confirmed that he did not test the ammonia levels, but he noted the strong odour of ammonia and observed a build up of feces on the floor which made him apply his PPE.
47Upon entering the appellant’s unit, Withrow observed the following:
a. It was a small bachelor apartment with an approximate space of 10ft by 10ft.
b. There was one window in the unit, and he does not believe it was open.
c. There were feces covering the floor of the apartment.
d. He noticed 5-10 cats in the unit with another thirty (30) or more under the bed.
e. There was a deceased cat in the middle of the floor with its head crushed. No necropsy was completed on this kitten and it is unknown whether the head trauma occurred post-mortem.
f. There was no food or water available for the cats and no litter boxes.
48He took photographs of the unit, which I have reviewed. Those photographs show the number of cats, garbage and feces throughout the apartment, and empty water and food bowls.
49Forty-one cats and one deceased cat were removed from the unit and transported to an animal shelter. A notice of removal was placed on the door of the unit at 3:25PM that same day.
Critical distress entry
50Before discussing the removal, I will address the issue of the inspector’s entry into the appellant’s home.
51From my review of the Notices of Appeal, the appellant’s submissions filed prior to the originally scheduled hearing (April 5, 2023), and the Notice of Constitutional Question (“NCQ”) (April 17, 2023), the appellant has raised the issue of whether the entry into her residence was lawful.
52The appellant may have intended to raise various constitutional arguments related to the method and purpose of entry into her home, as set out in her Notice of Constitutional Question. The Dismissal Motion directed the appellant that submissions on the constitutional question would be made in argument at the re-scheduled hearing. However, those arguments were not advanced at the hearing due to the appellant’s non-attendance and I have made no determination on the constitutional question raised.
53In any event, the respondent’s position is that the legality of the entry into the unit is outside the jurisdiction of the Board in these appeals and objected to the Board hearing evidence from Withrow on this point. While the appellant was not present to advance argument on this issue, I considered whether the issue of entry was relevant the appeals before me.
54I pointed respondent’s counsel to the recent Divisional Court case in Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632 and asked for submissions on its applicability.
55The respondent’s position is that Pryde did not state that I may consider whether the issue of entry was authorized under the Act. He argued that a complaint concerning the legality of entry into a dwelling was akin to a complaint concerning the conduct of inspectors. Those complaints are dealt with by a different section of the Act and are not within the Board’s jurisdiction.
56In my view, Pryde confirmed that the Board can examine whether AWS acted in accordance with the Act when carrying out the removal of animals:
61[…] While the Act does not explicitly state that the Board must make a finding as to whether the removals by an Inspector under s. 31 were made in accordance with the Act, what would be the purpose of providing an appeal of that decision and access to all of the procedural protections a hearing before the Board provides if those questions were not in issue? Questions of distress and responding to distress are logically connected to the basis for a removal decision.
62That said, the Board’s conclusion is reasonable that findings about the legality of an inspector’s removal decision will not be sufficient, by themselves, to determine whether an animal should be returned to its owner. The initial removal may have been unlawful but returning the animal could still put the animal in distress. The initial removal may have been lawful, but there may be no continuing impediment to returning the animal.
63As noted by the Board in Steele, the case relied upon by the respondent on this issue, the question of whether the removal was lawful “is relevant to the final determination as to whether the animal should be returned” and is “evidence [the Board] may consider.” The Board in Steele went on to make an express finding that “the evidence does not show an unlawful removal” and concluded that this finding “does not assist the appellant in showing that the horse should be returned to her.” (Steele v. Chief Animal Welfare Inspector, 2021 ONACRB 10, paras. 137, 141). Based on Steele, the lawfulness of the removal and retention of an animal is relevant to the question of whether the animal ought to be returned to the owner.
72Part III of the Act provides a mechanism for complaining about Animal Welfare authorities’ conduct in the fulfillment of their duties. While in certain cases, depending on the facts, evidence of how the removal was carried out may be relevant to questions on appeal before the Board, in this case the Board did not unreasonably conclude that once the decision to remove the sled dogs was taken on September 23, 2021, the conduct of the authorities after that point was not relevant to the issues on the appeal and the findings required in the Enforcement Decision
[Emphasis Added]
57I find that the legality of the entry into the appellant’s unit is logically connected to the removal, such that it may be relevant to the question of whether to return the animals.
Conclusion
58The Act grants inspectors the extraordinary power to enter a person’s home without a warrant conditional on an inspector’s reasonable belief that the animal’s welfare be so seriously at risk that “immediate intervention” is required and that the time to obtain a warrant “may result” in serious injury or death (See definition of “critical distress” and s.29(2) of the Act). An inspector’s subjective assessment of each situation is anticipated by the Legislature’s use of the phrase “may result”.
59Withrow testified that he entered the unit on February 6, 2023, to conduct an inspection without a warrant because he believed the circumstances supported a “critical distress” entry under s.29(2) of the Act. Specifically, he believed the cats’ welfare was at risk because there were 30+ cats in the unit, they did not have consistent access to food and water, the owner could not provide care, and there as no evidence that the owner had arranged for temporary care.
60Withrow had testified that he understood that the animals had been given an unspecified amount of food and water on Saturday during the attendance at the unit by York Regional Police and AWS.
61Withrow also testified that he believed the second branch of s.29(2) “critical distress entry” was met: That “the time required to obtain a warrant under section 28 may result in serious injury or death to the animal.” He stated that there “was no time to spare.”
62Based on the evidence before me, I find that Withrow was reasonable in his belief that the cats were in critical distress based on their lack of access to constant food and water, the owner’s indeterminate absence, and suspected unsanitary conditions.
63If all that was required was a reasonable belief of critical distress, the second requirement that an inspector consider the time to obtain a warrant, would be unnecessary (s.29(2) of the Act).
64While I am troubled by the inspector’s reliance on a general belief rather than specific information that the warrant process takes too long will, I am satisfied that he turned his mind to whether the time to obtain a warrant “may result in serious injury or death to the animal” and reasonably believed that it would. There were 30+ cats in an apartment unit, without constant access to food and water. I accept that the risk to their well-being was cumulative over time and that Withrow was reasonable to believe that additional time spent to obtain a warrant, in this case, would add to that risk.
The animals were in distress and it was necessary to remove them
65I am persuaded that the animals were in distress because they were found to be in unsanitary conditions, lacking access to food and water and adequate ventilation, all of which is contrary to the regulated standards of care (O.Reg 444/19). Furthermore, I find that the appellant’s indeterminate absence necessitated the removal of those animals to relieve their distress.
ISSUE 2: It was reasonable to keep the cats in the care of the Respondent on February 16, 2023
Events following removal of the animals and leading to the decision to keep the animals in care
66Withrow testified that the appellant called him on February 8, 2023, advising that she had received the notice of removal and was now living at a different address.
67On February 14, 2023, Withrow testified that he wrote to the appellant requesting an opportunity to inspect the new property to confirm it was suitable for the number of cats she requested be returned.
68He received an email from the appellant the next day stating that she had moved again and was attempting to secure housing for March 1, 2023.
69He advised Regional Supervisor Nicole Driscoll, who was the Chief Animal Welfare Inspector delegate, of his correspondence with the appellant.
70He testified that the cats were assessed by a veterinarian but that none of the cats required medical care while in the care of the respondent.
71Regional Supervisor Driscoll determined that it was necessary to keep the forty-one cats in care for the following reasons:
After reviewing the email correspondence between Inspector Withrow and the animal owner, I have reasonable grounds to believe Valerie Guillaume is transient. It is my understanding that she has been evicted from [street address removed], Markham and is no longer residing at [street address removed], Brampton. Ms. Guillaume was in possession of 41 cats at the time of removal and has not identified an appropriate, permanent address for the cats to be returned. Based on the photographs reviewed, it is my opinion that all of the cats were in a state of distress and would be placed in a state of distress if returned to the owner or custodian.
72I find that it was reasonable for the respondent to determine that it was necessary to keep the cats in care on February 16, 2023, given that the appellant indicated that she was in the process of moving homes and did not confirm where the animals would be living if they were returned to her nor that she could provide proper care.
Conclusion on whether to order the return of the animals
73In deciding whether I should exercise the power to return the animals under section 38(9) of the Act, I am mindful of the overarching principles of animal welfare. Section 15(3) of the Act states: “No person shall knowingly or recklessly cause an animal to be exposed to an undue risk of distress.”
74The removal of the animals was necessary: I found the animals were in distress at the time of the inspection (February 6, 2023) and it was necessary to remove them to relieve their distress. Furthermore, at the time the Decision to Keep in Care was made (February 16, 2023), the appellant could not house and provide adequate care for those cats.
75I have no information from the appellant to show that she is able to house and provide adequate care for this number of cats.
76In all the circumstances, I decline to order the animals returned.
ISSUE 3: The Statement of Account is confirmed
77The Statement of Account includes boarding fees for 16 days of care and immediate veterinary assessment.
78The Act prescribes that owners are liable for the costs incurred to care for their animals if those animals are in the care of AWS when the necessaries are required.
79I find that the costs set out in the invoices reflect the actual costs of necessaries and are reasonable. I have no information from the appellant that would persuade me to vary or revoke the Statement of Account.
CONCLUSION & ORDER
80Pursuant to the powers of the Board under s.38(9) of the Act, the Board declines to make an order for the return of the animals to their owner, Valerie Guillaume because:
a. The animals were in distress at the time they were removed due to the unsanitary conditions and lack of access of food and water;
b. It was necessary to remove the animals to relieve their distress because they were alone and without care after the appellant lost access to her unit; and
c. The appellant has not led evidence so I cannot find that the animals would not be at risk of distress if returned to her.
81The Board confirms the Statement of Account, which is payable within 10 days of the date this Decision and Order is released
Released: August 4, 2023
Ashley Deathe, Member