Robert Kafieh and Jennifer Jefferies v. Chief Animal Welfare Inspector, 2023 ONACRB 58

DECISION AND ORDER

Date: 10/11/2023

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

Between:

Robert Kafieh and Jennifer Jefferies Appellants

and

Chief Animal Welfare Inspector Respondent

Adjudicator: Susan Clarke, Vice-Chair

For the Appellant: Robert Kafieh, Self-represented Jennifer Jefferies, Self-represented

For the Respondent: Danielle Meuleman, Counsel Regional Supervisor Connie Mallory, and Inspector Christina Lalonde, Animal Welfare Services

Observers: Ziba Heydarian, ACRB Member Alisa Chaplick, ACRB Member Andrew Gawur, ACRB Member Meryn Steeves, ACRB Member

Heard by Videoconference: September 5 and 6, 2023

OVERVIEW

1Robert Kafieh and Jennifer Jefferies, the Appellants, are the owners or custodians¹ of eight dogs located at their residence and place of business in Jarvis², Ontario (the subject property). At the subject property:

1. Mr. Kafieh runs a business called “Kane and Serena Pet Services” where he boards and trains dogs, and runs a Day Camp for dogs; and
2. Ms. Jefferies runs a business called “Fight Against Breed Racism” where she rescues dogs and adopts them out.

2Inspector Christina Lalonde of Animal Welfare Services (AWS), along with other inspectors and veterinarians, attended the subject property on several occasions between June 28, 2023 and July 26, 2023. Inspector Lalonde also issued several compliance orders relating to the Appellants’ dogs at the subject property.

3On July 26, 2023, Inspector Lalonde, veterinarians Dr. Emily Zakrajsek and Dr. Jennifer Farr, and three other AWS employees attended the subject property. The purpose of their attendance was to conduct a compliance check on previous orders issued related to standards of care for the dogs. In addition to the veterinarians and their assistants, Fort Erie Society for the Prevention of Cruelty to Animals (“SPCA”) also attended.

4On July 26, 2023, Dr. Zakrajsek issued a Certificate of a Veterinarian Advising the Removal or Euthanasia of Animals (“certificate”) to Inspector Lalonde advising that the removal of the dogs known as Layla, Gigi, and Milo was necessary to alleviate their distress.

5On July 26, 2023 Dr. Farr also issued a certificate to Inspector Lalonde advising that the removal of 6 dogs (Thea, Blink, Hans, Hank, Milo #1, and Milo #2) was necessary to alleviate their distress. During the hearing, Dr. Zakrajsek explained that there are two Milos, one of whom was examined by both veterinarians.

6Inspector Lalonde removed the eight dogs identified in the two Veterinarian’s Certificates on July 26, 2023, and issued a Notice of Removal (NOR) pursuant to s. 31(1)(a) of the PAWS Act. The Appellants appealed the NOR to the Animal Care Review Board (Board) on August 1, 2023.

7On August 1, 2023, the Appellants were served a copy of a Notice of Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care pursuant to s. 31(6) of the PAWS Act (Decision to Keep) for the eight dogs that were removed from the subject property. The Appellants did not appeal the Decision to Keep; the deadline for appealing this expired on August 9, 2023.

8On August 15, 2023, the Appellants were served a Statement of Account (“SOA”) in the amount of $5,149.86 for boarding and veterinary costs for the eight dogs. The Appellants appealed the SOA to the Board on August 21, 2023.

9Case conferences were held on August 8, 2023 and on August 25, 2023. The hearing proceeded before the Board on September 5 and 6, 2023 regarding the appeal of the NOR and SOA, and the Appellants’ request for the return of the dogs remaining in the care of the Respondent.

PROCEDURAL MATTERS

The Appellants’ Adjournment Request

10On September 1, 2023, the Appellants filed a request to the Board seeking an adjournment of the hearing. The Chief Animal Welfare Inspector, the Respondent, emailed the Board advising that they did not consent to the request.

11The Appellants’ adjournment request was heard at the start of the hearing. Mr. Kafieh submitted that he did not have sufficient time to meet the disclosure deadlines for either appeal. In response, the Respondent submitted that the Appellants had three disclosure deadlines set out in two Case Conference Reports and Orders that the Appellants consented to, adding that they had sufficient time to prepare. The Respondent further submitted that any delay in a hearing would result in accumulating boarding costs of $1,120 per week, something the Appellant Mr. Kafieh, had already said he could not afford to pay.

12I denied the Appellants’ adjournment request as I was not persuaded that providing the Appellants with additional time to prepare for the hearing would be productive given that they had already missed several deadlines.

The Appellants’ Witnesses and Will-Say Statements

13At the start of the hearing, the Appellants submitted that they had filed two Will-Say statements to the Board and to the Respondent that morning from their witnesses. This was in contravention of the deadline of August 22, 2023 as provided for in the August 21, 2023 Case Conference Report and Order regarding the removal of the dogs, and August 30, 2023 as provided for in the August 28, 2023 Case Conference Report and Order regarding the SOA.

14Nevertheless, I provided the Appellants until the end of the first hearing day to submit their Will-Says for their witnesses. The Respondent agreed to advise the Board on September 6, 2023 if they disputed any of the proposed witnesses.

15On September 6, 2023, the Respondent advised the Board that they objected to the Appellants calling Dr. Melnichouk, their veterinarian, as a witness. The Respondent submitted that it had insufficient time to prepare their witnesses to respond to Dr. Melnichouk’s medical summary of his examination and treatment of the dogs on July 27, 2023.

16I agree with the Respondents submissions and, as a result, I denied the Appellants’ request to call Dr. Melnichouk as a witness to testify at the hearing. I also advised that I had reviewed Dr. Melnichouk’s Will Say statement, and decided that it was hearsay, based on information provided him by the Appellants, and included complaints which were outside the Board’s jurisdiction to address.

Complaints against Animal Welfare Services

17Throughout the hearing, the Appellants and their witnesses made complaints regarding AWS Inspectors and their consulting veterinarians.

18I advised that the Board has no jurisdiction regarding complaints against the AWS, and that there were procedures described in Part III of the Provincial Animal Welfare Services Act, 2019³ (PAWS Act) for this.

ISSUES IN DISPUTE

19The issues to be decided are:

1. Were the eight dogs in distress at the time of their removal on July 26, 2023? If so, was it necessary for AWS to remove the dogs to alleviate their distress?
2. Have the conditions that caused the dogs to be removed ceased to exist such that the dogs can be returned to the Appellants? Can the dogs be returned to the Appellants pursuant to s. 38(9) of the PAWS Act?
3. Should the Statement of Account dated August 15, 2023 in the amount of $5,149.86 be confirmed, revoked, or varied?

RESULT

20I find that:

1. The dogs were in distress at the time of their removal on July 26, 2023, and that it was necessary for the Respondent to remove them to alleviate their distress;
2. The conditions regarding heat exhaustion, lack of water, and unacceptable housing conditions, which caused the dogs to be in distress at the time of their removal have ceased to exist because the dogs are not at the subject property. The appeal of the Notice of Removal to have the remaining four dogs returned is dismissed because there is insufficient evidence that the conditions that caused the dogs to be removed have been corrected.
3. The Statement of Account is varied, from $5,149.86 to $5,025.56.

ANALYSIS

ISSUE 1: Were the eight dogs in distress at the time of their removal on July 26, 2023? If so, was it necessary for AWS to remove the dogs to alleviate their distress?

21For the reasons that follow, I find that the dogs were in distress at the time they were removed because they were suffering from undue physical hardship caused by extreme heat, and it was necessary for their removal to alleviate their distress as the conditions of the elevated temperatures in the dog’s housing could not be immediately addressed. I find the dogs were also in distress due to lack of water and unacceptable housing conditions.

22Section 1 of the PAWS Act defines distress as the state of being:

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.

23Section 3(6)(e) of Ontario Regulation 444/19, “Standards of Care and Administrative Requirements” (Regulation), provides that every animal must be provided with adequate and appropriate protection from the elements, including harmful temperatures. Further, if the standards of care as set out in the Regulation are not met, this has been found to constitute “distress” for the purposes of the PAWS Act.⁴

24I heard testimony from Inspector Lalonde who provided a history of inspections at the Appellants’ property, in which she issued orders pursuant to s. 30(1) of the PAWS Act to remedy the conditions found regarding the dogs’ standards of care, and only partial compliance by the Appellant. Inspector Lalonde testified that the purpose of the July 26, 2023 inspection was to have an independent veterinarian, Dr. Jennifer Farr, examine the dogs because discrepancies were found between medical reports of AWS consulting veterinarian Dr. Emily Zakrajsek, and the Appellants’ veterinarian, Dr. Sergey Melnichouk regarding several dogs.

25I reviewed the medical records of Dr. Farr and Dr. Zakrajsek, and the testimony of Dr. Zakrajsek and accept their evidence that at least five of the dogs removed were suffering from distress due to the heat, and needed to be removed to a facility where the temperature was consistent with the environmental temperature range of 10 – 20 ^oC recommended by the Canadian Veterinarian Association for most dogs. The remaining three dogs had little to no water. Despite Mr. Kafieh advising that water was checked hourly, I place greater weight on Inspector Lalonde’s testimony where she said each of the dogs drank copiously when she directed the Appellant to give them fresh water. On such a hot day, the water bowls should never have been empty. Even if I give weight to Mr. Kafieh’s position that the dogs were excited and knocked their bowls over, which I do not, the water should have been replenished. I also note that inadequate water was the cause of earlier orders, so this is not a new issue.

26I find Dr. Zakrajsek’s medical report and testimony compelling:

1. The majority of the dogs removed were taken based on distress from hyperthermia. In each case, the dogs had at minimum two or more of the following: high recorded temperatures in an enclosed space; no access to fresh drinking water; brachycephalic conformation⁵; plush or double coated which meant that they were unable to dissipate heat effectively; and increased internal temperatures above 39.5 ^oC. Some of the symptoms noted were excessive panting, increased respiratory sounds, increased internal temperatures, and one dog collapsed.
2. There was compelling evidence of heat stroke and/or impending heat stroke in the majority of the dogs removed. Heat stroke is a potentially lethal condition with many known risk factors. The number of risk factors present, along with active symptoms of heat stroke on this property, support Dr. Zakrajsek’s decision to recommend removal of the dogs to alleviate their distress.

27I accept Dr. Farr’s recommendation that the three dogs who were not diagnosed with heat exhaustion should still have been removed for lack of water and unacceptable housing conditions, and that they were panting heavily indicating that they were suffering from the heat.

28Inspector Lalonde submitted that she removed the eight dogs on the basis of the certificates issued her by Dr. Zakrajsek and Dr. Farr, in accordance with clause 31(1)(a) of the PAWS Act, which states that an inspector may remove an animal and take possession of it for the purpose of providing necessities to relieve its distress if a veterinarian has advised the inspector in writing that it is necessary to relieve its distress.

29I note that the July 26, 2023 inspection did not result in removal of all of the Appellants’ dogs. Seven of the dogs removed were from the garage kennel, which housed eighteen dogs in total. The eighth dog was from the garden shed.

30In response to Mr. Kafieh’s issues:

1. Inspector Lalonde acknowledged that she recorded the temperatures taken, the locations and the times, in her duty notes. While the Appellant was able to monitor the temperatures of the dog kennels from inside his residence, he said he had not recorded them on July 26, 2023.
2. Inspector Lalonde acknowledged that the air conditioners were working, but that they were ineffective for the heat experienced that day. The temperatures she recorded were all well in excess of the recommended temperature range for most dogs.
3. Regarding the concerns that AWS came prepared to remove the dogs and had many staff in attendance, I accept Inspector Lalonde’s statement that for approximately 35 dogs to be examined, it was necessary to have several inspectors available for efficiency. While I agree with the Appellant that it seems unusual to have a trailer on hand in case removal was necessary, in this case it appears that this was a fortuitous decision.
4. Inspector Lalonde explained the discrepancy regarding the time recorded on the NOR being before Dr. Farr’s recorded time on her certificate, stating that she prepared the NOR after reviewing the certificates, and then noticed that Dr. Farr’s had not been time stamped. She then had Dr. Farr stamp it.
5. While Inspector Lalonde stated that the dogs were all removed due to heat exhaustion, it does not appear that Appendix A of the NOR was inaccurate so much as incomplete when it did not reflect her entire testimony regarding her reasons for removing the dogs.

31In summary, I accept that Dr. Farr and Dr. Zakrajsek provided sufficient examinations of the dogs and their living conditions to determine that they should be removed in order to provide them with necessities to relieve their distress.

32I am satisfied that the dogs were removed to relieve their distress, pursuant to clause 31(1)(a) of the PAWS Act. Dr. Zakrajsek and Dr. Farr provided Inspector Lalonde signed certificates advising that alleviating the dog’s distress necessitated their removal. Inspector Lalonde removed the dogs and provided a NOR to the Appellant pursuant to s. 31(5) of the PAWS Act.

ISSUE 2: Have the conditions that caused the dogs to be removed ceased to exist such that the dogs can be returned to the Appellants? Can the dogs be returned to the Appellants pursuant to s. 38(9)?

33For the reasons that follow, I find that the dogs cannot be returned to the Appellants.

34As the dogs were removed because of heat exhaustion, lack of water, and unacceptable housing conditions causing their distress, these conditions no longer exist because the dogs were removed from the subject property. The dogs are no longer in distress.

35The Appellants appealed for the return of the dogs, submitting that they provide water to the dogs hourly, that the air conditioning of the garage kennel has been supplemented, and the dog kennels have been improved. They provided no documentary evidence to support their testimony.

36The Respondents provided no evidence regarding improved water supplies, air conditioning or housing conditions.

37I am not persuaded by either party that the conditions that relate directly to the removal of the dogs have been improved. On this basis I dismiss the appeal for the return of the dogs under s. 38(9) related to the removal under s. 31(1) of the PAWS Act.

38My finding does not reflect on the Decision to Keep made by the Respondent. That matter is not before the Board as the Appellants did not appeal it, nor file an Application to the Board pursuant to s. 38(4) to have the dogs returned if the conditions that caused them to be kept in the Chief Animal Welfare Inspector’s care have ceased to exist.

39While the Appellants have lost the right to make an appeal of the Decision to Keep, having failed to make the appeal within the five business day appeal period, there is no time limit for making an Application for Revocation of Determination. In order to file an Application, the Appellants should review the requirements described in s. 38(4) of the PAWS Act. They should also make note of the forfeiture deadline described under the following issue.

ISSUE 3: Should the Statement of Account dated August 15, 2023 in the amount of $5,149.86 be confirmed, revoked, or varied?

40The Statement of Account in the amount of $5,149.86 is varied to $5,025.56 for the reasons that follow.

41The Statement of Account was issued on August 15, 2023 for the total amount of $5,149.86. Included in this amount are charges for boarding of the 8 dogs for a total of $3,100.00, and veterinary costs in the amount of $2,049.86.

Boarding Charges

42I have reviewed the invoices for boarding of the dogs and note that they are consistent with typical boarding fees presented by the Respondent, and with Mr. Kafieh’s fees for boarding. They are accurate, reflecting the number of days each dog was boarded and the level of care required. The total sum of $3,100 is confirmed.

43Mr., Kafieh expressed concern with the care provided by the shelter, noting the dogs smelled strongly of urine and may have had feces on them when picked up by their owners. He called upon Aryan Heidari, the owner of Blink and Jennifer Jefferies, regarding complaints from Layla’s new foster parent, that when they picked the dogs up, they smelled of urine. Layla’s foster parent also reported that a claw had been pulled out. A photo was sent to Inspector Lalonde who said it had happened overnight.

44The Appellants provided no other photographic or video evidence to support their claims, even though they submitted they had documented the condition of the dogs. I prefer the evidence of Ms. Redfern, AWS Strategic Advisor, who inspects the facilities regularly and on August 3, 2023 when the eight dogs were there. She testified that the dogs were well cared for and clean while in the Respondent’s care.

45Mr. Heidari spoke to Blink’s changed behaviour and loss of appetite; however, I note that this may have been due to Blink’s inexperience in living with Mr. Heidari, having never been with him except for weekly visits at the Appellant’s property.

46Ms. Jefferies testified that Layla’s new foster parent reported that she had a different personality when she was returned from the shelter – very scared, uneasy and anxious, I am not convinced that this was due to the shelter as Layla’s foster placement was new.

47In conclusion, there was no evidence that the boarding facilities used for the dogs was inadequate. I am satisfied by Ms. Redfern’s testimony that the dogs received appropriate shelter, food and water, exercise and stimulation.

Veterinary Charges

48I have reviewed the invoices for tests and medications for the dogs and accept that they are fair. While the Appellants submitted that the anxiety medications were not necessary as the dogs could have been handled in such a way that these were unnecessary, I acknowledge that the shelter is not staffed by dog trainers and may not have the same expertise as Mr. Kafieh, nor should they be expected to.

49Jennifer Jefferies testified that she receives veterinary services at reduced rates, between 20-50% discounted. I note that the veterinary expenses do not include any charges for veterinary services other than the cost of vaccination, heartworm tests and medications. Ms. Jefferies provided no documentation to show that the rates she receives include these services.

50The Appellants expressed concern that the dogs were double vaccinated.

51Jennifer Jefferies testified that she is the only one with access to the dog’s medical records, except for Layla’s which were on the garage shelter table to go to her new foster parent. These indicated that Layla had been fully vaccinated on July 21, 2023. Robert Kafieh provided these to Inspector Brown on July 26, 2023.

52Robert Kafieh testified that he was unable to give the medical records for the other dogs to AWS when they requested them on July 26, 2023, but said he could provide them within 24–48 hours.

53I am concerned that the dogs may have been vaccinated when it was not required. However, the Appellants did not provide any medical records other than Layla’s to AWS to ensure this did not happen. The dogs were removed on July 26, 2023 and vaccinations were given on July 28 and 31, 2023. Had the Appellants provided the records to AWS, they could have prevented the double-vaccination.

54For these reasons, I vary the veterinary charges from $2,049.86 to $1,925.56, as Mr. Kafieh gave Inspector Brown Layla’s medical documents which indicated that she had been recently vaccinated and had the heartworm test. I have reduced the charges by the documented amount of the vaccination and heartworm test and GST.

Ability to Pay

55Mr. Kafieh submitted that he was financially strapped, as he helps pay for the rescue services of Ms. Jefferies’ dogs, and their supplies from his business profits. I did not consider this submission of his further because he provided no documentary evidence to support an inability to pay.

56In conclusion, I vary the total amount of the Statement of Account from $5,149.86 to $5,025.56.

57Pursuant to clause 35(4)(b) of the PAWS Act, the Appellants forfeit their animals if they fail to pay the varied amount within 10 business days of this decision. Subsection 35(5) provides for the parties to enter into a written agreement to extend the time for payment or reduce the amount to be paid, or both before the expiry of the time period in clause 35(4)(b).

CONCLUSION AND ORDER

58For the reasons above, I find that:

1. The dogs were in distress at the time they were removed, and it was necessary to remove them from the Appellant’s property to relieve their distress;
2. The remaining four dogs cannot be returned to the Appellants, because there is insufficient evidence that the conditions that caused them to be removed, being air conditioning, sufficient water and adequate housing conditions, have been corrected.
3. The SOA is varied, from $5,149.86 to $5,025.56.

Released: October 11, 2023

Susan Clarke, Vice-Chair

Footnotes

1. 1Thea, Gigi, Blink, and Layla have private owners. The remaining four dogs are rescues of Ms. Jefferies.
2. 2The Notice of Removal provided this address. However, in his testimony, Robert Kaffieh stated that his address is in Selkirk, Ontario.
3. 3S.O. 2019, Ch. 13
4. 4Pryde v CAWI, 2022 ONSC 6632.
5. 5Dr. Zakrajsek defined “brachycephalic confirmation”as shortened noses and skulls in certain dog breeds, making them more prone to respiratory disorder and have a decreased capacity to regulate temperature.