Appeal under subsection 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13
Between:
Maciej Biernacki and the Reptile Store
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION
Adjudicator: Edgar-Andre Montigny, Member
Appearances:
For the Appellant: Maciej Biernacki, self-represented.
For the Respondent: Adrien Iafrate, counsel for the respondent
Held by Videoconference: October 18 and October 25, 2023.
REASONS FOR DECISION
A. OVERVIEW:
1On September 12, 2023, Senior Specialty Compliance Inspector Nicole Pratt (“Inspector Pratt”) and Senior Investigator Timothy Marostega (“Investigator Marostega”) of Animal Welfare Services (“the Respondent”), attended The Reptile Store (“the Store”) on King Street East in Hamilton, a business owned by Maciej Biernacki (“the Appellant”) for the purpose of performing an inspection.
2During the inspection, store staff drew the inspectors’ attention to a Red Phased Green Backed Iguana (“the Iguana”), explaining that the animal had been abandoned at the Store. The Iguana appeared to have an injured foot.
3Inspector Pratt issued a Compliance Order to “The Reptile Store – Mike Biernacki,” requiring the Appellant to have the Iguana seen by a veterinarian. The Appellant was also required to report any surrender or euthanization of the animal and to ensure that any new owner was provided with the veterinarian’s report. The compliance date was set for noon on September 19, 2023.
4On September 19, 2023, Investigator Marostega attended the Store and found the Iguana was still in the Store and had not been seen by a veterinarian. Investigator Marostega found that the Appellant had failed to comply with the September 12, 2023, Compliance Order and that the animal was in distress.
5Investigator Marostega removed the Iguana and issued a Notice of Removal to the Appellant. The Iguana was taken to the Burloak Animal Hospital where it received care to relieve its distress, including surgery to amputate injured digits from the right front foot.
6On September 23, 2023, Investigator Marostega served the Appellant with a Statement of Account (SOA) in the amount of $1,349.05 for necessities to relieve the Iguana of distress, including medical care and boarding.
7The Appellant appealed the SOA on September 29, 2023.
ISSUES IN DISPUTE
8The primary issue in dispute is:
a) Should the SOA issued September 26, 2023, in the amount of $1,349.05 be confirmed, revoked or varied?
9To answer this question it is necessary to decide the secondary issue:
b) is the Appellant responsible to pay the SOA because he was the owner or custodian of the animal?
10For the reasons that follow:
a) I find that the Appellant was custodian of the Iguana and;
b) I confirm the SOA issued September 26, 2023, in the amount of $1,349.05.
ANALYSIS
a) Statements of Account and Custodians
11The Provincial Animal Welfare Services Act, 2019 1 (“PAWS Act”) s. 35 (1) states:
35(1) If an animal welfare inspector has provided an animal with necessities to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Officer’s care, the Chief Animal Welfare Inspector may from time to time serve on the owner or custodian of the animal a statement of account respecting the costs of the necessities. (emphasis added)
12The Respondent does not assert that the Appellant was the owner of the Iguana. The Respondent served the SOA on the Appellant on the basis that the Appellant was the custodian of the animal.
13The Appellant challenged the finding that he is responsible to pay the costs of the Iguana’s care and boarding, since he argued that he was neither owner nor custodian of the animal.
b) How to Define Custodian
14The PAWS Act does not offer any definition of the term “custodian.” However, two decisions of the Board have addressed the issue of how to determine if a person is a custodian – Lapointe and Blais.
15In Lapointe v. Chief Animal Welfare Inspector 2023 ONACRB14877/14878 (“Lapointe”), the Board found that in a situation where the father of a dog owner had the care of his son’s animals “thrust upon him by circumstances”; the temporary provision of care to the animals, such as visiting them to provide food and exercise, did not make the father the custodian of the animals.
16In Blais v. Chief Animal Welfare Inspector 2021 ONACRB 16 (“Blais”), the Board adopted the dictionary meaning of custodian, “a person that is responsible for caring for, protecting and maintaining something.”
17In either matter, the threshold is not high. All that is required for person to be a custodian is that the person cares for, protects, and maintains an animal for more than a brief period and/or on a part-time basis.
18The Appellant and his witnesses Chelsea Zimmerman and Dylan Powell testified that the Iguana had been thrust upon the Appellant by circumstances. The animal was brought to the Store in a box and abandoned. The Appellant argued that he had no choice in the matter but to provide it with shelter and care.
19However, the Appellant’s witnesses also testified that the Iguana was kept in the Store, housed in a Store enclosure, while being fed and monitored.
20It was not clear exactly how long the Iguana was in the Store. Inspector Pratt testified that she was told by staff on September 12, 2023, that the animal had be in the Store "about a week.” The Appellant’s witness Dylan Powell testified that the Iguana had only arrived the evening before. Mr. Powell’s testimony on this issue was vague and inconsistent. He admitted that it was a busy time at the Store and the details were not clear. Inspector Pratt’s testimony was clear and consistent. I accept that the Iguana was in the store “about a week” before the AWS Inspectors arrived on September 12, 2023.
21Unlike the situation described in Lapointe, the Appellant was not simply spending an hour or so at a time to provide food or exercise to the animal. I find that the situation met the definition of custodian set out in Blais, The Appellant had control of the Iguana and he had taken responsibility for caring for, protecting and maintaining it. In this respect it is difficult to see how the Iguana was in a position any different from that of any other animal in the Store under the Appellant’s care and control.
22The Appellant and his witnesses acknowledged that the Store took in animals and cared for them when an owner could no longer maintain the animal. The Store had a form for people to sign to confirm their wish to surrender their animal to the Store. As described by the Appellant’s witnesses, at the time of the AWS Inspection on September 12, 2023, there were at least two other animals in the Store, a snake and a tortoise, that were being cared for after having been abandoned at the Store.
23The Appellant testified that he tried to locate a new home for the Iguana. He and his witnesses also testified that AWS agreed that the Iguana could be surrendered to AWS if the Appellant was unable to find a new home for the animal. On cross-examination the Appellant’s witness Mr. Powell acknowledged that he assumed that the Iguana could be surrendered to AWS and although he asserted that this had been implied by Inspector Pratt, he admitted that no-one from AWS had actually said that.
24To the contrary, Inspector Pratt testified that she informed staff at the Store on September 12, 2023, that if they did not wish to assume responsibility for the Iguana, the Iguana could be delivered to the Hamilton Animal Services. The Appellant did not pursue this option.
25By keeping and maintaining the Iguana and continuing to provide care to the animal for a number of days, the Appellant met the definition of a custodian.
26Given the above, I find that the Appellant was the custodian of the Iguana and consequently the Appellant was properly served with the SOA issued on September 26, 2023.
STATEMENT OF ACCOUNT.
27Section 38(1) of the PAWS Act outlines the Board’s powers to confirm, revoke or vary a SOA served under S. 35(1) of the PAWS Act.
28Having confirmed that the SOA was properly served on the Appellant as he was custodian of the Iguana, it is necessary to determine if the SOA itself should be confirmed, revoked or varied.
29The Respondent submitted that the SOA covered costs of providing necessities to the Iguana removed from the Store on September 19, 2023.
30Inspector Pratt testified as to the content of the SOA, confirming when it was issued and served upon the Appellant.
31Dr. Lisa McKinnon testified about the veterinary services provided. She produced a detailed report on what veterinary services were provided to the Iguana. She explained why the digits on the right front foot had to be amputated. She outlined the long recovery period required by Iguanas.
32Together the AWS witnesses confirmed that the SOA covered necessities such as food and shelter and necessary veterinary care and treatment.
33The Appellant did not challenge the necessities provided to the Iguana or the associated charges.
34The Board finds that the charges included in the SOA of September 26, 2023, reflect the necessities to relieve the Iguana’s distress and were reasonable. The Appellant did not demonstrate that any of the charges were unnecessary or excessive.
DECISION:
35I confirm the Statement of Account issued September 26, 2023, in the amount of $1,349.05.
Released: December 4, 2023
Edgar-Andre Montigny
Footnotes
- Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13