Lynn Freeman v. Chief Animal Welfare Inspector, 2023 ONACRB 55

Date: 2023-09-11

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:

Riel Hishon, Counsel

Jason Kirsh, Counsel

Connie Mallory, Regional Supervisor;

Linsay Hay, Senior Investigator;

Rachel Falls, Inspector; Animal Welfare Services

Heard By Videoconference: July 21, 2023

OVERVIEW

1Lynn Freeman (the “appellant”) has appealed two Statements of Account (“SOA”) issued by Inspector Rachel Falls (“Inspector Falls”) of Animal Welfare Services (“AWS’).

2The appealed SOAs are the third and fourth SOAs issued to the appellant by AWS. Statement of Account #3 (“SOA #3”) was issued June 26, 2023 in the amount of $2,026.09.¹ SOA #3 was issued for the purpose of recovering the costs to the Chief Animal Welfare Inspector (the “CAWI”) of providing necessaries to 15 cats that had been removed by AWS from the appellant’s home on June 21, 2023.² SOA #3 is for boarding costs only.

3Statement of Account #4 (“SOA #4”) was issued on June 27, 2023, in the amount of $22,943.92 and is for boarding, veterinary, and animal care costs associated with 28 cats³ removed from the appellant’s home on May 10, 2023, and June 15, 2023.

4The appellant separately appealed SOA #3 and SOA #4 to the Animal Care Review Board (the “Board”) on July 4, 2023. She argued that both SOAs should be reduced to zero dollars because the costs are unreasonable. The parties agreed to hear the matters together.

THE ISSUES

5The issues in dispute in this matter are:

1. Should SOA #3 dated June 26, 2023, be confirmed, revoked, or varied?

2. Should SOA #4 dated June 27, 2023, be confirmed, revoked, or varied?

RESULT

6For the reasons that follow, the Board:

1. Confirms SOA #3 served on June 26, 2023, in the amount of $2,026.09;

2. Confirms SOA #4 served on June 27, 2023, in the amount of $22, 943.92.

EVIDENCE AND ANALYSIS

Preliminary Issue: Which party has the burden of proof?

7The parties disagreed on who bears the burden of proof. The appellant submitted that the respondent bears the burden of proof to show that the costs of providing necessaries to her cats in the SOAs are justified and reasonable and that the invoices support those costs. The respondent submitted that the burden rests with the appellant to prove to the Board that the costs in the SOAs are unnecessary or unreasonable to compel the board to vary or revoke either, or both, SOAs.

8Recent Board decisions show that the appellants bear the burden of proof to prove to the Board that the SOAs should be varied or revoked. The respondents also have an initial evidentiary burden to show that charges on SOAs are reasonable and reflect actual costs of necessaries⁴ in this case for the appellant’s cats.

9I find that the respondent has an initial evidentiary burden of proving that the costs itemized in SOA #3 and SOA #4 have been incurred for necessaries to relieve the appellant’s cats of distress and that they are reasonable, and that the costs incurred while in the care of AWS are also reasonable and justified.

10I also find the appellant bears the overall burden of proving that SOA #3 and/or SOA #4 should be varied or revoked.

Issue 1: Should SOA #3 be confirmed, revoked, or varied? (14997/ACRB)

11For the reasons that follow, the Board confirms SOA #3 in the amount of $2,026.09.

12Section 35(3) of the Provincial Animal Welfare Services Act (the “Act”) says that the owner is liable for the costs of necessaries to relieve an animal of its distress.

13Inspector Falls testified that 15 cats were removed from the appellant’s home on June 21, 2023 to relieve them of distress, and that a veterinarian had also issued a Certificate of a Veterinarian Advising the Removal or Euthanasia of Animals (“certificate”) for this same reason.⁵ She also testified that removal was also due to the appellant’s non-compliance by the completion date of May 31, 2023 of a Compliance Order served by AWS on May 10, 2023 requiring a clean and sanitary environment for the appellant’s cats.

14The appellant argued that it was unnecessary for AWS to have removed her cats from her home.⁶ She further argued that the boarding facility where her cats were taken by AWS was not suitable for cats because it was a dog boarding facility. She referenced a supporting invoice to SOA #3 from ‘Dogs Sports Centre’ as evidence. She also argued that AWS selected the facility called ‘Dogs Sport Centre’ strictly out of convenience and that the costs shown on the invoices from this facility are unreasonable and excessive.

15Inspector Falls testified that the costs on SOA #3 reflect boarding costs for 6 days⁷ for 15 cats (11 cats and 4 kittens) that were removed from the appellant’s home on June 21, 2023.

16Inspector Falls testified that AWS does not have its own boarding facilities. She also said that the one facility involved in boarding the 15 cats was, like others used by AWS, selected from an AWS vendor list after being assessed for cleanliness, facility safety and their willingness to accept all of the cats.

17Inspector Falls testified that AWS does not set rates and those shown on the supporting invoice to the SOA #3 are those charged by the service provider and include $25/day for each adult cat and a $15/day maternity rate⁸ for the kittens. She testified that the rates are mid-range for the industry and are consistent with the Ontario Medical Veterinary Association (“OMVA”) fee guide⁹ used by AWS when reviewing costs charged by services providers.

18I find that the AWS has the authority under the Act to serve a SOA respecting the cost of necessaries provided to an animal to relieve distress.¹⁰

19I find further that the costs reflected on SOA #3 directly relate to the boarding of the 15 cats removed from the appellant’s home on June 21, 2023, and that it is supported by a detailed invoice itemizing the boarding rates for adult cats, maternity care rate (group of kittens), and food for the cats, and that the boarding rates are reasonable and consistent with the OMVA guide.

20Further, the appellant did not provide any evidence to support her argument that the costs in SOA #3 are excessive, unnecessary, or unreasonable and should result in a varying or revocation.

Issue 2: Should SOA #4 be confirmed, revoked, or varied? (15033 ACRB)

21For the reasons that follow, the Board confirms SOA #4 in the amount of $22,942.92.

22Section 35(3) of the Act says that the owner is liable for the costs of necessaries to relieve an animal of its distress.

23The appellant argued that the costs in SOA #4 are unreasonable because they are all not justified, and AWS’ accounting is improper.

24The appellant said that details were redacted from certain medical treatment records, and invoice numbers were missing from some supporting invoices. She provided as evidence a medication treatment history with certain sections redacted, and a supporting invoice to SOA #4 with no invoice number.

25Inspector Falls testified that SOA #4 shows a clerical error of 57 cats, but the correct number is 28 cats. Also, the invoicing only reflects 28 cats. She explained the reason for the clerical error was that she anticipated including additional invoices for boarding care concerning another group of cats previously removed from the appellant’s home in SOA #4 but did not include them.

26Despite the error, I am satisfied that the total on SOA #4 is consistent with the supporting invoices reflecting 28 cats and not 57 cats.

27Inspector Falls testified that the costs in SOA #4 are for the boarding, veterinary care, and treatment of 28 cats of various colours and sexes, which were removed from the appellant’s home on May 10, 2023, and June 15, 2023. The cats were removed because they were in distress and previously issued Compliance Orders from February, March and April 2023 had not been complied with by the completion dates.¹¹ She testified that the care and treatment each cat received depended on the cats’ assessed conditions and included such treatments and procedures as dental surgery, prescribed antibiotics and medications, infection and parasite treatment, treatment for skin issues, x-rays, eye surgery, upper respiratory care, and blood work.

28I asked Inspector Falls who approves the procedures and/or treatments for the cats. Inspector Falls testified that she reviews the recommended procedures or treatments with the veterinarian involved and gives the authorization to proceed. Inspector Falls is also a Registered Veterinary Technician with 15 years of experience in the field.

29Inspector Falls testified that required surgeries, such as dental work, are not always scheduled the next day due to surgeon availability, which sometimes results in additional boarding costs for the days between assessment and surgery.

30The appellant argued that not all procedures were necessary and that her cats were being double vaccinated. She also said that some of the respondent’s documents lacked specific invoice numbers while others were redacted making the identification of her cats questionable.

31I find that AWS has the authority under the Act to serve an SOA reflecting the cost of necessaries provided to an animal to relieve distress.¹²

32I find that the costs shown on SOA #4 were for necessaries to relieve the cats of distress, and to provide care after their removal from the appellant’s home including boarding and individualized treatment and ongoing care. AWS had established on May 10, 2023, that the cats were in distress which was further supported by a certificate from a veterinarian issued the same day, and removal was necessary to relieve them of distress.¹³

33I find that the costs on SOA #4 are supported by detailed invoices and medical records from the various service providers showing the rates charged, and corresponding medical records detailing the procedures and treatment provided to each individually identified cat. The rates are consistent with the fees shown in the OMVA guide.¹⁴

34The appellant did not provide any supporting evidence to show that the cats were double vaccinated, or that the costs on SAO #4 were incorrect or unnecessary and should result in a varying or revocation. For, instance, the fact that an invoice lacks a specific invoice number does not invalidate it. I also note that the invoices clearly identify the services provided, quantities, and prices.

35As well, the initial redacted documents provided by the respondent were resolved when they resubmitted unredacted copies in their disclosure documents.

The appellant’s financial circumstances

36The appellant argued that the SOA #3 in the amount of $2,026.09 and SOA #4 in the mount of $22,943.92 should be revoked because they are excessive.

37The law gives the authority to the Board to confirm, revoke or vary an SOA when served under S. 35(1) of the Act.¹⁵

38The appellant says that she receives a government pension and other government support as her primary source of income. She also refinanced her home. It is currently listed for sale, but she says it has seen no recent activity.

39The appellant provided no supporting evidence of her financial hardship to show that she us unable to pay SOA #3 or SOA #4.

40The respondent testified that they considered the appellant’s financial circumstances and elected not to include every cost from the invoices in the SOAs. For example, rabies vaccinations are not included, and various discounts were passed on to the appellant as noted in the invoices. One animal hospital, for example, gave $575.00 in complimentary services.

41I am not satisfied that, on a balance or probabilities, that the appellant is unable to pay the SOA #3 and SOA #4 given that she has an ongoing source of income.

SUMMARY

42The following is a summary of the findings of the 2 appeals heard together at this hearing:

1. AWS has the authority to serve SOAs respecting the cost of necessaries provided to an animal to relieve its distress.¹⁶

2. The respondent served SOA #3 reflecting boarding costs for 15 cats removed from the appellant’s home on June 21, 2023 on the appellant, because the cats were in distress. She had also not complied with an Order issued May 10, 2023, requiring an improved sanitary environment for the cats. I am satisfied that the costs in SOA #3 were for necessaries to relieve the cats’ distress.

3. SOA #4 was served on the appellant for the boarding, veterinary care, and treatment for 28 cats removed from her home on May 10 and June 15, 2023, because they were in distress, and the appellant had not complied with previous Orders from February, March and April 2023.

4. SOA #3 and SOA #4 are confirmed.

ORDER

43Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:

1. Confirms the Statement of Account (SOA #3) made under s. 35(1) of the Act served on June 26, 2023, in the amount of $2,026.09;

i. Orders the appellant to pay $2,026.09 to the Minister of Finance within 10 business days of release of this Order;

2. Confirms the Statement of Account (SOA #4) made under s. 35(1) of the Act served on June 27, 2023, in the amount of $22,943.92;

i. Orders the appellant to pay $22,934.92 to the Minister of Finance within 10 business days of release of this order.

Footnotes

1. 1Pursuant to the Provincial Animal Welfare Services Act (the “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. 2SOA # 1 and SOA #2 were previously served on the appellant and are not part of this hearing. Separate hearings were held before the Animal Care Review Board (the “Board”) on June 1 and 2, 2023 regarding SOA #1 and on June 28 for SOA #2 .
3. 3AWS corrected a clerical error on the SOA at the hearing. The actual number for invoicing purposes for SOA #4 is 28 cats.
4. 4Ishankova v. CAWI, 2022 ONACRB 3, paragraph 8, 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.
5. 5Section 31(1)(a) of the Act.
6. 6The appeal of the removal of the cats was heard by the Board on July 13 and 14, 2023.
7. 7June 21 to 26, 2023 inclusive.
8. 8A maternity rate is a fee for a group of kittens (a litter) versus charging for each kitten individually.
9. 9Ontarion Medical Veterinary Association (OMVA) fee guide, 2023. The fee guide is intended primariliy for veterinarians, however, related industry services also use the guide for fee guidance and structuring.
10. 10Section 35(1) of the Act.
11. 11The appeals of the removal of the cats was heard by the Board on July 2, 2023 and July 13, 14, 2023.
12. 12Section 35(1) of the Act.
13. 13See footnote 5.
14. 14See footnote 9
15. 15Section 38(9) of the Act.
16. 16Section 35(1) of the Act.