Julie Nicholls v. Chief Animal Welfare Inspector, 2023 ONACRB 56

Date: 2023-09-18

Board File Numbers: 14668/ACRB and 15080/ACRB

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

Between:

Julie Nicholls

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

For the Appellant: No one appeared

For the Respondent: Joanna Chan, Counsel

Observers: Andrew Gawur, ACRB Member; Ziba Heydarian, ACRB Member

Heard By Videoconference: August 23, 2023

OVERVIEW

1Julie Nicholls (the "appellant") appealed a Statement of Account ("SOA") dated February 24, 2023, in the amount of $41,815.28 issued to her by Animal Welfare Services (the "respondent") in Board file number 14668/ACRB. The SOA is in relation to 14 equines removed from the appellant's care on November 2, 2022.

2The hearing of the appeal was originally scheduled to be heard April 28, 2023, and June 26, 2023, but was adjourned both times at the request of the appellant.

3On June 26, both parties indicated that they expected another SOA to be issued to the appellant shortly and the appellant indicated she intended to appeal this SOA. Because the intended appeal of the forthcoming account would involve the same or similar questions of fact, law or policy, both parties agreed that it would be efficient and cost-effective to have the appeal of the February 24, 2023, SOA heard together with the appellant's intended appeal of the forthcoming SOA. The Board agreed and adjourned the hearing to August 23, 24 and 25, 2023, on a peremptory basis and notified both parties.

4The appellant was issued the anticipated SOA on July 19, 2023, in the amount of $24,654.33 and appealed this account in Board file number 15080. By Order made June 26, 2023, both appeals were to be heard together commencing August 23, 2023. Evidence at the hearing of both appeals was to be by written affidavits and cross-examination.

5The appellant's Notice of Appeals dated February 28, 2023, and July 25, 2023, set out her grounds of appeal which are summarized as follows:

1. Boarding fees are excessive,
2. Boarding fees are not in keeping with fees of comparable facilities,
3. Respondent failed to disclose important details and particulars about the fees,
4. Respondent failed to make reasonable efforts to secure more affordable care,
5. Other facilities were equipped and available to take her equines and one such facility has been used by the respondent in the past,
6. Veterinary and other fees were unnecessary and ought not to be borne by the appellant, and
7. Respondent provided substandard care as the condition of the equines has deteriorated since being in the care of the respondent.

6This hearing commenced on August 23, 2023.

ISSUE IN DISPUTE

7The issue in dispute in this matter is:

1. Should the SOAs be confirmed, revoked, or varied?

RESULT

8For the reasons that follow, I confirm the SOA dated February 24, 2023, in the amount of $41,815.28 and the SOA dated July 19, 2023, in the amount of $24,654.33.

LAW

9Section 35(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the "PAWS Act") provides that if an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector's care, the CAWI may from time to time, serve on the owner or custodian of the animal a SOA respecting the cost of necessaries.

10Section 35(5) provides that before the expiry of the relevant time period set out in Clause 4(a) or (b), the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both.

11Under s. 35(3) of the PAWS Act, an owner or custodian who receives a statement of account under s. 35(1) is liable for the amount specified in the statement, or as otherwise specified in an order issued by the Board under s. 38(9).

12Section 38(2) provides a right of appeal of a statement of account.

13Section 38(9) gives the Board authority to, among other things, confirm, revoke, or vary a statement of account served under s. 35(1).

14Under s. 35(4), if an owner appeals a statement of account and the Board varies or confirms the amount, and the appellant does not pay it within a prescribed period of 10 days from the date of the Board's Order, then the animal is forfeited to the Crown.

Appellant Failed to Attend the Hearing and Submitted No Evidence

15The appellant bears the onus to establish that the SOAs should be revoked, or varied. I find that the appellant has failed to meet this onus.

16The appellant failed to attend the hearing on August 23, 2023 and submitted no evidence in support of her appeal.

17On August 23, 2023, I waited 30 minutes for the appellant to attend the hearing even though the appellant had sent an email to the Board on August 22, 2023 confirming that she would not be able to move forward with the hearing.

18The respondent submitted that the appellant had abandoned her appeals according to the August 22, 2023 email she had sent and her failure to attend the hearing. The respondent submitted that I should find that the appellant's appeals had been abandoned and proceed with the hearing on the basis of the respondent's evidence, filed, and submissions. The respondent noted that the appellant has already been granted two adjournments, and that the most recent adjournment was peremptory on the appellant and that the appellant had agreed to the August 23, 2023 date for the hearing and yet failed to attend.

19I declined to find that the appellant had abandoned her appeal but proceeded with the hearing on its merits. The hearing proceeded in the absence of the appellant.

20I was left with no evidence to support the appellant's appeals.

Respondents Position

21The respondent's position is that the SOA dated February 24, 2023 in the amount of $41,815.28 and the SOA dated July 19, 2023 in the amount of $24,654.33 are appropriate and reasonable and both SOA should be confirmed.

ANALYSIS

Should the SOAs be confirmed, revoked, or varied?

22Based on the respondent's evidence filed at the hearing and the respondent's submissions I find that the SOA dated February 24, 2023 in the amount of $41,815.28 and the SOA dated July 19, 2023 in the amount of $24,654.33 should be confirmed.

23It is clear from the affidavits filed by the respondent that both SOA are reasonable for the services provided to the appellant's equines while in the care of the respondent. Both SOA give dates and detailed explanation of the costs of the care provided. More details of services and breakdown of costs and the medical need for the care provided are set out in the affidavits of Regional Supervisor Tracy Lapping affirmed June 14, 2023 and August 10, 2023, the affidavits of respondent's veterinarian Dr. Marcie Ninness affirmed April 17, 2023 and August 19, 2023, the affidavit of respondent's Senior Investigator Rachel Vandenkroonenberg affirmed April 19, 2023, the affidavit of respondent's farrier Doug Hurley affirmed June 8, 2023, the affidavit of respondent's veterinarian Dr. Nicola Cribb affirmed August 11, 2023 including the attached medical notes and Ontario Equine Hospital Report and costs statements.

24I find that the respondent has established through these affidavits, that after taking the equines into care, the respondent has provided the equines with necessaries, specifically boarding, food, veterinary, farrier, necessary transportation and other care, and has served on the appellant the SOAs respecting the cost of necessaries, all within the meaning of s. 35(1) of the PAWS Act.

25Further, it is clear from the affidavits filed that the respondent is not seeking all of the costs it has incurred and has voluntarily decided not to include all of the costs incurred in the SOAs. As a result, I find the amount of cost set out in both SOAs to be reasonable and necessary to relieve the distress of the appellant's equines and to provide care for the equine who was pregnant when taken into care and the foal born while in care.

26As the appellant did not attend the hearing, there was no evidentiary challenge to the affidavits filed by the respondent, no cross-examinations, and I see no reason to doubt any of the statements made by the respondent's affiants.

27Despite the fact that the onus is on the appellant to establish her grounds of appeal the appellant did not attend the hearing or provide any evidence for this hearing to support the statements in her Notices of Appeal.

28As a result, I find that the appellant has not established any basis on which the SOA's should be revoked or varied.

29Although the appellant did not attend this hearing and put forward no evidence in support of her Notices of Appeal, and did not cross-examine on any of the respondent's affidavits, I have considered the grounds set out in the Notices of Appeal and found them to be unproven.

30Having considered the totality of the evidence before me and all submissions made by the parties, I confirm the SOAs.

ORDER

31Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I confirm the SOA dated February 24, 2023, in the amount of $41,815.28 and the SOA dated July 19, 2023, in the amount of $24,654.33.

Released: September 18, 2023.

__________________________

Avril A. Farlam, Vice-Chair