Lawson v. Chief Animal Welfare Inspector, 2023 ONACRB 61

Date: 11/30/2023

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

Between:

Johnathon Lawson

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Vice-Chair

For the Appellant: Johnathon Lawson, Self-represented

For the Respondent: Riel Hishon, Counsel Regional Supervisor Brandon James, and Inspector Tamara Welch, Animal Welfare Services

Heard by Teleconference: November 15, 2023

OVERVIEW

1Johnathon Lawson, the appellant, owns “Chester,” a 10-year-old black Labrador dog.

2On May 17, 2023, Inspector Tamara Welch of Animal Welfare Services (AWS) responded to a call about a dog requiring medical care at the appellant’s home. She served an Order made pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the PAWS Act) on the appellant, ordering that he have Chester examined by a veterinarian for his infected eyes and for a wellness check, and to follow all vet recommendations. A compliance date of May 31, 2023 was ordered.

3On June 6, 2023, Inspector Welch attended the appellant’s home to conduct a compliance check on Chester. Chester’s eyes were in worse condition than on May 17, 2023, and the appellant told her he had not found a veterinarian. Inspector Welch provided the appellant with information about various veterinarians who provided low-cost examinations, including the Humane Society. She gave the appellant a verbal extension for compliance with the Order to June 13, 2023.

4Inspector Welch attended the appellant’s home again on June 13, 2023 and found that while the appellant was able to show a receipt for a veterinarian visit, he did not have the prescribed medication for Chester.

5On September 14, 2023, Inspector Welch again attended the appellant’s home. He was not there, and Chester was produced by Allan Dier, the co-habitant of the appellant’s home. She found Chester’s condition had worsened and determined he was in distress. She removed Chester pursuant to s. 31 of the PAWS Act. Inspector Welch served a Notice of Removal to the Owner or Custodian of Animal(s) (the NOR) on Mr. Dier on September 14, 2023 as she deemed Mr. Dier to be the custodian of Chester in the appellant’s absence. The NOR was addressed to both Dier and the appellant. The NOR was served in person on the appellant on September 27, 2023.

6Inspector Welch took Chester to a veterinarian’s office on September 14, 2023 where his eyes were immediately treated. Chester’s lymph nodes were also aspirated as the veterinarian identified that they were extremely swollen. A cytology test was performed to identify the cause of the swollen lymph nodes.

7On September 15, 2023, Inspector Welch then took Chester to a medical boarding facility where he received a second medical consultation, medical treatment, and boarding. On September 20, 2023 Chester was diagnosed with lymphoma. Chester’s medical conditions continue to be managed with medications and ongoing care.

8On October 17, 2023, the appellant was served with 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 in Care) for Chester. The Decision to Keep in Care was signed by Regional Supervisor Brandon James as a delegate of the Chief Animal Welfare Inspector (CAWI or the respondent) on October 16, 2023.

9On October 17, 2023, the appellant was also served with a Statement of Account (SOA) pursuant to s. 35(1) of the PAWS Act for the emergency veterinarian visit, medical boarding, and ongoing medical care for Chester from September 14 through September 28, 2023. The total amount of the SOA was $2,413.78.

10The appellant appealed the Decision to Keep in Care and the SOA separately on October 26, 2023 to the Animal Care Review Board (the Board).

11A case conference was held on November 7, 2023 regarding both appeals.

12The hearing proceeded before the Board on November 15, 2023 on the appeals of the Decision to Keep in Care and the SOA, and the appellant’s request for the return of Chester who remained in the care of the respondent.

PROCEDURAL MATTERS

The Hearing Format

13At the commencement of the hearing at 9:30 a.m., no one appeared on behalf of the appellant. Case Management staff for the Board contacted the appellant and assisted him with technical issues trying to join the videoconference. The Tribunal waited for forty-five minutes before the appellant joined the videoconference, however he was unable to connect to the audio feature. At 12:00 p.m. the hearing resumed by teleconference.

Hearing Documents

14The appellant advised that he had submitted disclosure to the respondent on November 10, 2023. However, he did not file anything with the Board.

15On consent of the parties, the appellant submitted his hearing document (a 2-page letter) to the Board, and copied to Inspector Welch.

The Issues in Dispute

16At the start of the hearing, I reviewed the Exhibits with the parties. The respondent advised that the appellant had verbally withdrawn his appeal of the SOA during the case conference and that the Notice of Appeal of the SOA should be removed from the Exhibits List.

17As the Case Conference Report and Order made no mention of the verbal withdrawal, and a written Notice of Withdrawal was not submitted by the appellant, I questioned the appellant regarding his understanding of withdrawing his appeal of the SOA.

18The appellant confirmed that he took responsibility to pay the SOA. When I asked if he had already paid the SOA, he responded that he needed a payment plan. I asked if he was aware that s. 35 of the PAWS Act meant that if he withdrew his appeal of the SOA and had not paid within 15 business days of being served¹ the SOA, that he forfeited Chester. The appellant responded that he was not aware of this provision, and that the whole point of his appeals was to get Chester back.

19I advised the parties that my powers under s. 38(9) of the PAWS Act were limited to confirming, revoking or varying a SOA served under s. 35(1) and that I could not make an order regarding a payment plan. I further advised that under s. 35 of the PAWS Act, if the appellant appealed the SOA, he would forfeit Chester only if he had not paid within 15 business days of the release of my decision, where I might confirm, vary, or revoke the SOA. I advised that at any time up until the release of my decision, the parties could negotiate a settlement, and that under s. 35(5) the respondent may enter into a written agreement with the appellant to extend the time for payment or reduce the amount to be paid, or both, before the expiry of the time period described in s. 35(4)².

20The appellant then confirmed that he wished to continue his appeal of the SOA. The respondent did not object, but asked for time to submit supporting documents. As the appellant did not object, I ruled that these could be submitted. The respondent submitted two invoices as new exhibits during the lunch recess.

ISSUES IN DISPUTE

21The issues to be decided are:

1. Have the conditions that caused the respondent to make the Decision to Keep in Care ceased to exist such that Chester can be returned to the appellant?

2. Should the Statement of Account dated October 17, 2023 in the amount of $2,413.78 be confirmed, revoked, or varied?

RESULT

22I find that:

1. The conditions that caused the respondent to make the Decision to Keep in Care have not ceased to exist, and that returning Chester to the appellant may place him in distress; and

2. The Statement of Account is confirmed in the amount of $2,413.78.

ANALYSIS

ISSUE 1: Have the conditions that caused the respondent to make the Decision to Keep in Care ceased to exist such that Chester can be returned to the appellant?

22For the reasons that follow, I find that the conditions that caused the respondent to make the Decision to Keep in Care have not ceased to exist, and that returning Chester to the appellant may place him in distress.

23Section 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.

24Section 3(2) of Ontario Regulation 444/19, “Standards of Care and Administrative Requirements” (O. Reg. 444/19), provides that every animal must be provided with adequate and appropriate medical attention. Section 3(6)(e) provides that every animal must be provided with protection from the elements, including harmful temperatures. Further, if the standards of care as set out in the Regulation are not met, then such care is not proper for the purposes of the PAWS Act and as a result such improper care amounts to distress.³

25Section 31(1) of the Act permits an animal welfare inspector to 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 certain conditions are met including:

(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.

26Section 31(6) of the PAWS Act states that the respondent may decide to keep an animal that was removed under pursuant to s. 31(1) in its care if:

1. The CAWI determines it is necessary to relieve the animal’s distress; or

2. The CAWS has reasonable grounds to believe that the animal may be placed in distress if returned to its owner.

The Removal

27Inspector Welch testified that on September 14, 2023, Chester’s eyes had worsened. She provided photographs taken the day of the removal, and following his first veterinarian treatment that same day.

28The appellant testified that he had taken Chester to “the Chip Truck” operated by Toronto Animal Services, and they examined Chester and gave him eye drops. Regrettably, Chester destroyed the eye drop container, and the appellant was unable to get more. The appellant also testified that he was later able to have Chester examined by the Scarborough Animal Hospital, but that he could not afford the medication prescribed after paying for the examination and procedures.

29I am satisfied that Chester was in distress on September 14, 2023 because his eyes continued to be infected. While the appellant had taken Chester to be examined by a veterinarian, he had not administered medication continuously to treat his eye infection. I make this finding of distress because Chester was (a) in need of proper care, and (b) sick, which are included in the definition in s. 1 of the PAWS Act. Chester was also in distress because he was not receiving adequate and appropriate medical attention, a requirement described in s. 3(2) of Ontario Regulation 444/19.

30I am satisfied that Inspector Welch removed Chester to relieve his distress, pursuant to clause 31(1)(c) of the PAWS Act, that the appellant had not complied with the Order to follow all of the recommendations of the veterinarian who examined Chester, which included to provide and administer medication to the dog’s infected eyes.

The Decision to Keep in Care – Necessary to Relieve Distress

31Inspector Welch testified that Chester continues to require medication and regular examinations for his eyes, because they were left untreated for so long. Chester is also receiving medication for his lymphoma which was diagnosed while in care. The medication is not to treat the condition, but to make him comfortable.

32Regional Supervisor Brandon James (Regional Supervisor James), delegated the authority of the CAWI to make Decisions to Keep in Care, testified that he made the Decision to Keep in Care based on the recommendations of Inspector Welch, which included that the appellant had indicated that he was unable to pay for the medications. For this reason, he believed the appellant was unable to provide for Chester’s needs, to relieve his distress.

33I am satisfied that the CAWI issued the Decision to Keep in Care because Chester continued to be in distress, and it continues to be necessary that the CAWI keep Chester in care to relieve his distress by providing him medical treatment.

The Decision to Keep in Care – The Animal may be Placed in Distress if Returned

34Inspector Welch testified that Chester would be placed in distress if returned to the appellant, because the appellant might not be able to continue the medical treatments for Chester, including medications and veterinarian examinations. She was also concerned that because the appellant is currently “homeless” (Inspector Welch’s testimony, however the appellant is living in a tent), Chester would not be provided an appropriate living environment for Chester.

35Regional Supervisor James testified that his Decision to Keep in Care was based on Inspector Welch’s recommendations, which included the appellant’s inability to pay for Chester’s treatment and his current living arrangement.

36The appellant testified that he had had an acrimonious relationship with Mr. Dier, who has shared his home since October 1, 2020, and that he has been trying to get the authorities at Toronto Community Housing Corporation (TCHC) to evict him since December 27, 2020. Mr. Dier has affected his ability to pay for Chester’s care because he can never go out, indicating that Mr. Dier brings other dogs into the townhouse presenting risks to Chester. He testified that he has now filed a letter with TCHC to get rid of Mr. Dier, and if he is successful, he will be able to move back home and provide a suitable environment for Chester. Without Mr. Dier, the appellant will also have more money to provide for Chester’s needs. It was unclear how Mr. Dier’s absence might affect the appellant’s financial circumstances.

37The appellant also testified that he recently got an increase in his Ontario Disability Support Program (ODSP) allowance, and is trying to get employment to pay for the SOA and Chester’s care.

38I am satisfied that the CAWI had reasonable grounds to believe that to return Chester to the appellant might put him back into distress. While the appellant promised to give Chester the care he needs, including medication and veterinarian follow-up appointments, his previous history was that he was unable to provide the necessary care. All in all, Chester went four months without being treated, other than four days of eye drops from a free clinic.

39The appellant has given no concrete evidence that he is able to afford care for Chester. While at one point he indicated that he could have $200 per month, and later up to $500 per month to pay the SOA, and could then pay for Chester’s care, it is not clear how his financial circumstances have changed since when he first took Chester to a veterinarian’s and could not pay for the prescriptions. At that time, he told the veterinarian he would have his ODSP cheque in two weeks and could pay then. He also indicated he could provide a home for Chester, but only after CMHC evicts Mr. Dier, and he can return to the townhouse. For now, he lives in a tent, and this is not a good environment for a sick dog, and does not meet the Standard of Care in s. 3(6)(e), as set out in paragraph [24].

ISSUE 2: Should the Statement of Account dated October 17, 2023 in the amount of $2,413.78 be confirmed, revoked, or varied?

40For the reasons that follow, the Statement of Account is confirmed in the amount of $2,413.78.

41Section 35(1) of the PAWS Act states that an animal’s owner is liable for necessaries to relieve its distress, or where the respondent has taken the animal into its care.

42Inspector Welch reviewed the SOA and the invoices from the veterinarian who examined and treated Chester on September 14, 2023, and from the medical boarding facility who cared for Chester from September 14 to 28, 2023. She explained the detailed entries and explained that boarding was necessary while Chester was treated for distress, and that the boarding charges were discounted by the boarding facility and reasonable.

43Inspector Welch stated that she personally chose the two care providers. She explained that the boarding facility did not have an opening until September 15, 2023, and it was necessary that Chester be seen immediately on September 14, 2023, thus explaining the two separate invoices.

44The appellant did not dispute Inspector Welch’s evidence, testifying that he accepts responsibility for the SOA and does not disagree with the amount. He asked only for a payment plan, saying he could spare either $200 or $500 a month from his ODSP cheque.

45When cross-examined, the appellant said that his housing was paid for by ODSP, and that he could obtain food from various services available to him. His current monthly expenses are between $300-$350 which is paid towards a storage unit for his articles while he is living in a tent, and $50 for his cell phone. From his monthly $900 ODSP cheque, he only had $500 left for expenses related to Chester.

46I am persuaded by the respondent’s evidence that the expenses supporting the SOA were necessary and reasonable to relieve Chester’s distress.

47While it is clear to me that the appellant has limited financial means, he took full responsibility for the expenses incurred to provide Chester the necessities to relieve his distress.

48For these reasons, I confirm the SOA in the amount of $2,413.78.

49The parties have been advised of the limitations of the Board’s powers in terms of not being able to order a payment plan which the appellant has requested. However, if the appellant is able to reserve between $200 - $500 each month to pay the SOA and care for Chester, I hope the parties can reach an agreement as per section 35(5) of the PAWS Act.

OTHER CONSIDERATIONS

50While my decision is that Chester cannot be returned to the appellant at this time, s. 38(4) of the PAWS Act provides that an owner or custodian of an animal may apply to the Board in writing to have an animal returned if the conditions that caused the animal to be kept in the CAWI’s care have ceased to exist. There is no time limit to making such an application. This may not be necessary if the parties can work together to negotiate terms that would facilitate Chester’s return to the appellant.

CONCLUSION AND ORDER

51I find that the conditions that caused the respondent to make the Decision to Keep in Care have not ceased to exist. As a result, Chester will not be returned to the appellant at this time as returning him may place him in distress.

41The Statement of Account dated October 17, 2023 is confirmed in the amount of $2,413.78.

Released: November 30, 2023

Susan Clarke, Vice-Chair

Footnotes

1. 1The appellant was served the SOA on October 17, 2023. On November 7, 2023, without an appeal of the SOA, s.35(4)(a) of the PAWS Act, the owner would have forfeited his dog if he hadn’t paid the SOA.
2. 2S. 35(4)(b) of the PAWS Act provides for payment of the confirmed or varied amount on the SOA within 15 business days after the Board releases its decision.
3. 3Pryde v Chief Animal Welfare Inspector, 2022 ONSC 6632, para 52.