Lynn Freeman v. Chief Animal Welfare Inspector, 2023 ONACRB 65

Date: 2023-12-22

Appeals 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: Connie Mallory, Regional Supervisor, Animal Welfare Services (AWS);

Victoria Crocker; Regional Supervisor, AWS;

Rachel Falls, Inspector, AWS

Riel Hishon, Counsel

Heard By Teleconference: October 23, 25, and 31, 2023

OVERVIEW

1On March 21, 2023, Inspector Rachell Falls (“Inspector Falls”) of Animal Welfare Services (the “AWS”) attended the home of Lynn Freeman (the “Appellant”) for a scheduled inspection and served on her a Compliance Order to repair holes in the ceiling of her home. The holes allowed the cats in the home to access the ceiling and attic space, which posed various hazards to the cats, specifically exposure to insulation. The Compliance Order was issued pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019 (the “PAWS Act”).

2On May 10, 2023, Inspector Falls returned to the appellant’s home to execute a distress warrant in response to a complaint from May 7, 2023, and subsequent AWS attendance at the Appellant’s home on May 8, 2023. AWS removed 40 cats of various descriptions on the basis that the cats were in distress. Inspector Falls served a Notice of Removal (the “NOR”) on the Appellant. The NOR was issued pursuant to s. 31(1)(a) and (c) of the PAWS Act. A Compliance Order requiring improvement to the sanitary conditions of the home, was also served on the Appellant pursuant to s. 30 (1) of the PAWS Act.¹

3On June 15, 2023, Inspector Falls attended the home of the Appellant to execute a second distress warrant and removed 9 cats that were in distress.² She served the Appellant a NOR pursuant to s. 31(1)(c) of the PAWS Act.

4On June 21, 2023, Inspector Falls again attended the home of the Appellant, served a NOR on her, and removed another 15 cats of various descriptions. This NOR was issued pursuant to s. 31(1)(c) of the PAWS Act.³ A Compliance Order requiring 3 cats, that were not removed, to be examined by a veterinarian was also served on the Appellant pursuant to s. 30(1) of the PAWS Act.⁴

5On August 2, 2023, Inspector Falls attended the home of the Appellant with a warrant to inspect the home to determine compliance of past Compliance Orders served on March 21, 2023, May 10, 2023, and June 21, 2023.⁵ She found that the Compliance Orders had not been complied with and removed 4 additional cats of various descriptions. Inspector Falls served a NOR pursuant to s.31(1)(c) of the PAWS Act on the Appellant.⁶

6On August 3, 2023, Inspector Falls served on the Appellant a Notice of Decision to Keep an Animal(s) in the Chief Animal Welfare Inspector’s (the “CAWI”) Care (the “Keep in Care Decision”) concerning the 4 cats removed on August 2, 2023, pursuant to s.31(6) of the PAWS Act.⁷

7On August 4, 2023, Inspector Falls served a Statement of Account (the “SOA”) pursuant to s. 35(1) of the PAWS Act in the amount of $17,172.50 on the Appellant for the purpose of recovering the costs to the CAWI of providing necessaries to:⁸

1. The 5 cats removed from the Appellant’s home on June 15, 2023;⁹

2. The 14 cats removed from the Appellant’s home on June 21, 2023, plus 2 litters born in care (2 litters @ 5 kittens per litter = 10 kittens)¹⁰;

3. The 4 cats removed from the Appellant’s home on August 2, 2023.¹¹

8The Appellant appealed the NOR of August 2, 2023, and the Keep in Care Decision of August 3, 2023, to the Animal Care Review Board (the “Board”) on August 10, 2023. The Appellant appealed the SOA of August 4, 2023, to the Board on August 11, 2023. The parties consented to joining these appeals at the case conference held on September 19, 2023.

9A two-day hearing was scheduled for September 19 and 20, 2023, and was converted on consent to a case conference to set new hearing dates.

10A teleconference hearing on the NOR, KIC and SOA occurred on October 23, 25 and 31, 2023.

PRELIMINARY MATTERS

Appellant’s Two Motions to Adjourn

The first Adjournment request submitted September 18, 2023

11On September 18, 2023, the Appellant submitted a request to the Board to adjourn the hearing scheduled for September 19, 2023, because she was “medically stressed,” which had prevented her from preparing disclosure documents for the September 12, 2023, deadline the week prior. The Appellant’s adjournment request was heard on September 19, 2023, as a preliminary matter and was denied for the following reasons:

1. The Appellant requested the adjournment 24 hours prior to the scheduled hearing of September 19, 2023. Despite having missed the disclosure exchange date of September 12, 2023, which she argued was for the same reason for requesting an adjournment on September 19, 2023, that being a medical issue to which she provided few particulars on, she gave no prior notice to the Board she was intending to request an adjournment.

2. Her adjournment request, dated September 18, 2023, did not include “…at least 3 alternative dates, within 30 days of the hearing date to be adjourned, agreeable to the Respondent…”, which is required under Rule 16.1 (c) “Requests for Adjournments” in the Board’s Common Rules of Practice and Procedure (Rules).

3. On consent of the parties, however, the hearing date of September 19, 2023, was converted into a case conference to discuss new hearing dates, disclosure exchange dates, joining files, and any requested accommodations. The parties consented to new hearing dates of October 23 and 25, 2023.

The Second Adjournment Request on October 23, 2023

4. On October 23, 2023, at the beginning of the hearing, the Appellant again sought an adjournment. The ground for adjournment was the same as that used on September 19, 2023. The adjournment request was denied for the following reasons:

(a) No prior notice was given to the Board, or to the Respondent, that an adjournment was contemplated despite the Appellant missing the new and agreed disclosure exchange date of October 16, 2023, for the same reason she submitted at the September 19, 2023, adjournment request being a medical issue. She did not provide any specific instructions from a medical note she submitted that would compel the Board to adjourn the hearing;

(b) The Respondent did not consent to the adjournment as required in the Rules;

(c) In accordance with the Rules, the Appellant did not provide 3 alternative dates in accordance with the Rules (see 11.2 above).

(d) I advised the Appellant that the hearing would proceed because she had not complied with the Rules, and her medical note was no different than that used at previous adjournment requests that were denied. I said she was free to submit a new adjournment request at the beginning of the next hearing day.¹²

The Third Adjournment Request on October 31, 2023

5. On Day 3 of the hearing¹³, the Appellant again sought an adjournment, and provided the Board with a note from her physician dated October 24, 2023. The note’s content was identical to that of the note provided at the September 19, 2023, and October 23, 2023, adjournment requests, only the note had a new date. It did not contain any added details, instructions, or restrictions to compel the Board to consider the request. The request to adjourn was denied for the following reasons:

(a) The Respondent did not consent to the adjournment as required in the Rules,

(b) the Appellant did not provide 3 alternative hearing dates (See 11.2 above) as required by the Rules.

Appellant’s request for accommodation

6. On September 19, 2023, the originally scheduled commencement date for the hearing, the Appellant requested, as an accommodation, that the hearing be recorded by the Board. The Appellant offered no extraordinary or exceptional circumstances to compel the Board to record the hearing other than her recent illness. The Board exercised its discretion in accordance with Rule 13.3 of the Rules and authorized the parties to record for their use only, the hearing, which began on October 23, 2023.

Appellant’s Constitutional question raised on October 31, 2023

7. On Day 3 of the hearing during the Appellant’s testimony she submitted, for the first time, that her Charter rights¹⁴ were being denied but did not cite a specific Charter right, identify how it was affected, or explain how it was connected to the appeals before the Board.

a) The Appellant gave no prior notice to the Board or to the Respondent that she intended to raise a Constitutional (Charter rights) issue at any point prior to the hearing. In addition, when I asked if she had complied with Rule 11¹⁵ of the Rules regarding serving Notice of a Constitutional Question, the Appellant replied that she had not.

b) Accordingly, the issue had not been raised in accordance with the Rules, and appropriate and legal notice, as required by the Courts of Justice Act,¹⁶ had not been served. I did not have jurisdiction to hear this argument, and therefore, did not.

THE ISSUES

12The issues in dispute in this matter are:

1. Were the 4 cats that were removed on August 2, 2023, in distress?

2. If so, was removal of the 4 cats on August 2, 2023, necessary to alleviate distress?

3. Should the 4 cats, removed from the appellant’s care on August 2, 2023, and subject to the Keep in Care Decision of August 3, 2023, be returned to the appellant?

4. Should the SOA of August 4, 2023, in the amount of $17,172.50 be confirmed, revoked, or varied?

RESULT

13For the reasons that follow, I:

1. Find that the 4 cats that were removed on August 2, 2023, were in distress.

2. Find that it was necessary to remove the 4 cats on August 2, 2023, to alleviate their distress. I therefore dismiss the appeal of the removal.

3. Dismiss the Appellant’s appeal of the Keep in Care Decision and decline to return the cats to the Appellant; and

4. Confirm the SOA dated August 4, 2023, in the amount of $17,172.50.

EVIDENCE AND ANALYSIS

ISSUE 1: Were the 4 cats removed on August 2, 2023, in distress?

14I find that the 4 cats removed on August 2, 2023, were in distress for the reasons that follow.

15Section 1 of the PAWS Act defines distress as:

a. In need of proper care, water, food or shelter;

b. Injured, sick, in pain or suffering; or

c. Abused or subject to undue physical or psychological hardship, privation, or neglect.¹⁷

16Section 3, O.Reg.444/19: Standards of Care and Administrative Requirements, (the “Regulation”) sets out basic standards of care for all animals. The Regulation states that every animal must be provided with adequate and appropriate food and water, care for its general welfare, a proper resting and sleeping area, sanitary conditions, protection from the elements, and adequate space, light and ventilation.

17Section 13 of the PAWS Act requires that every person who owns or has custody or care of animals are required to comply with the minimum standards prescribed in the PAWS Act and in the Regulation. If they do not, the animals are, by definition, “in distress.”¹⁸

18I find that the 4 cats were in distress on August 2, 2023. The Appellant had not complied with previously served Compliance Orders from March 21, 2023, May 10, 2023, and June 21, 2023, all of which were served on her by AWS to relieve the cats’ distress. In her testimony, Inspector Falls described that the cats were in need of proper care and were suffering from neglect. These Orders had not been complied with, and the cats as a result were in distress.

Non-compliance of previously served Compliance Orders

19On August 2, 2023, Inspector Falls attended the Appellant’s property to assess compliance of Compliance Orders previously served on the appellant from March, May, and June 2023:

Table 1

Compliance Order	Compliance Order (or part)	Date Served	Compliance Date	Compliance Achieved
March 21, 2023	Repair holes to ceiling	March 21, 2023	April 18, 2023	No
May 10, 2023	Provide a clean and sanitary environment in the home	May 10, 2023	May 31, 2023	No
June 21, 2023 (*)	3 cats (unable to be captured/remained at appellant’s home) to be examined by a veterinarian	June 22, 2023	July 3, 2023.	Order revoked on August 18, 2023, because cats had been removed on August 2, 2023

Notes: (*) The hard copy of the Compliance Order was issued June 22, 2023.

20Inspector Falls testified that the Compliance Orders of March 21, 2023, May 10, 2023, and June 21, 2023, issued to relieve distress of all cats in the dwelling had not been complied with by their respective compliance dates. The Compliance Orders were issued pursuant to s. 30 of the PAWS Act and provided in writing to the Appellant.

21Inspector Falls testified that as of August 2, 2023, non-compliance of the 3 outstanding Compliance Orders had persisted over several weeks. Specifically, she said that when she attended the Appellant’s property on August 2, 2023, the Appellant’s home was in a state similar to that observed on May 10, 2023, when the initial group of 40 cats was removed and the Compliance Order to provide a sanitary environment was served on the Appellant. She provided photographic evidence from August 2, 2023, that showed cat feces and urine on the furniture and floors in various parts of the Appellant’s home.

22Inspector Falls testified that the conditions the 4 cats were living in were poor, and contributed to the cats’ distress, and is indicative of a lack of proper care required by the Regulation. She argued that the 4 cats required necessaries such as a clean and physically safe environment, and veterinary attention and care to relieve their distress because the conditions that underpinned previous removals had neither changed nor been sufficiently improved.¹⁹

23Under cross examination, Inspector Falls testified that one of the Compliance Orders (March 21, 2023) required the Appellant to repair holes in the ceiling to prevent her cats from accessing the attic space. She said when she attended the Appellant’s home on scheduled visits, the ceiling hole was blocked (not repaired), however when she inspected the home during unannounced visits such as that on June 21, 2023, the ceiling hole was open.

24Inspector Falls testified that the Appellant was ordered through a Compliance Order issued June 21, 2023, to take 3 cats that could not be captured and removed by AWS that day to a veterinarian for assessment. She said the Appellant took 3 cats after the compliance date, but one of the 3 was the wrong cat.²⁰ These cats, along with a fourth, were removed on August 2, 2023.

25The Appellant submitted that the cats were not in distress, and that she takes care of them. She argued that she has complied with all AWS issued Compliance Orders, and that none are outstanding. She said she has cleaned her home.

26The Appellant argued that the cats get into the attic space when doors to certain rooms in her house are open, which, she said, is because AWS accessed the rooms and did not close the doors.

27The Appellant testified that she took her cats to the veterinarian, as required by the Compliance Order, but provided no evidence of which cats she took, or when this occurred.

Other indicators of distress

28Inspector Falls said the 4 cats in the Appellant’s home showed signs of sickness including diarrhea, gaping mouths, hair loss, poor skin condition and eye diseases when she attended the Appellant’s home on August 2, 2023.

29Inspector Falls testified that there were 6 to 8 litter boxes in the house, which she acknowledged is adequate for the number of cats, however the litter substrate was limited and, in some cases, non-existent. She said that cats are clean and fastidious creatures and prefer to ‘dig and cover’ when relieving themselves. She said a thin layer of substrate does not allow this and the cats will then defecate elsewhere including on the floors, and both on and under furniture. She also said the litter boxes in the home were ‘relatively clean,’ which is an indicator that the cats are not using them, again, because there is little or no substrate. She testified that she had several discussions with the Appellant since February 2023 about inadequate litter in the litter boxes and issued a Compliance Order requiring the Appellant to provide litter in the litter boxes in the home. Inspector Falls later revoked the Compliance Order but testified that adequate litter levels were not sustained.²¹

30Under cross examination, Inspector Falls testified that she performed ammonia tests at the Appellant’s home during inspections and referred to photographic evidence taken by her on August 2, 2023, showing ammonia readings. She acknowledged that there are no universally accepted standards for ammonia testing, but that AWS inspectors routinely perform tests to test for animal exposure to ammonia.

31When Inspector Falls was asked if she had revoked any Compliance Orders, she said she had, on several occasions, including one involving litter substrate. However, the 3 Orders that underpinned the NOR of August 2, 2023, specifically those of March 21, 2023, May 10, 2023, and June 21, 2023, were outstanding as of the date of removal.²² Inspector Falls also testified that she had provided the Appellant with hard copies of the Compliance Orders.

32I was persuaded by the Respondent’s testimony and evidence that the Compliance Orders previously issued had not been complied. Specifically, the evidence and testimony show that a hole in the ceiling had not been repaired, and the Appellant’s home environment is unsanitary. And while the ammonia readings taken by Inspector Falls show elevated levels in the home, the information yielded from these readings is inconclusive and does not bear on the overall conclusion.

33I was also persuaded by the Respondent’s testimony that the Compliance Order to have 3 cats taken to a veterinarian for examination had not been complied with. The Appellant missed the compliance date, and when she did take the cats for assessment, one of the cats was the wrong cat.

34Based on the testimony and evidence before me, I find that the 4 cats removed on August 2, 2023, were in distress because previously issued Compliance Orders served on the Appellant to alleviate distress were not complied with.

ISSUE 2: Was removal of the 4 cats on August 2, 2023, necessary to relieve their distress?

35I find that removal of the 4 cats on August 2, 2023, was necessary to relieve their distress for the reasons that follow.

36Section 31(1) of the PAWS Act says an animal welfare inspector may 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, an order respecting the animal has been made under s. 30 of the PAWS Act and the order has not been complied with.²³

37Inspector Falls argued that removal of the cats on August 2, 2023, was required in order to provide them necessaries to relieve their distress.

38Having found that the cats were in distress,²⁴ I find that AWS removed the cats for the purposes of providing them necessaries to relieve their distress. I find further find that the removal was done in accordance with s. 31(1)(c) of the PAWS Act, because Compliance Orders from March 21, 2023, May 10, 2023, and June 21, 2023, all made under Section 30 of the PAWS Act, and which are not part of this appeal, had not been complied with.

39While the Appellant argued that the cats were removed without reasonable grounds, and she said no photographic proof was provided by the Respondent that the cats were in distress, I find that the Respondent provided sufficient evidence of distress as defined in the PAWS Act because the cats were not receiving proper care, in part, because they were not being provided a sanitary, safe and hazard free environment, and the Compliance Order requiring examination by a veterinarian had not been complied with.

40The Appellant said she had taken the cats to the veterinarian as required by the Compliance Order, but she provided no evidence about which cats were taken for assessment, or when.

41The Appellant made no overtures or commitments to making any permanent changes or improvements that would mitigate the distress experienced by her cats. What is more, she denies having any outstanding Compliance Orders despite Respondent evidence to the contrary.

42I find the Respondent’s evidence persuasive that removal of the cats was necessary to provide necessaries including a sanitary environment to relieve the cats’ distress. The testimony of Inspector Falls and the photograph evidence showed feces and urine in various locations in the Appellant’s home, which supports the Respondent’s testimony that the unsanitary and unsafe conditions in the Appellant’s home are ongoing issues and are part of a pattern of noncompliance having been previously identified in Compliance Orders of March 21, 2023, and May 10, 2023, which contributes to the cats’ distress and therefore requiring removal in order to provide necessaries to relieve distress. I was also persuaded by the Respondent’s testimony that the cats would not likely receive the required veterinarian attention to relieve distress because the Appellant missed the compliance date to take certain cats for assessment.

ISSUE 3: Should the 4 cats, removed from the Appellant’s care on August 2, 2023, and subject to the Keep in Care Decision of August 3, 2023, be returned to the appellant?

43I dismiss the appeal of the CAWI’s decision of August 3, 2023, to keep the 4 cats removed on August 2, 2023, for the reasons that follow.

44Subclause 31 (6)(b)(i) of the PAWS Act says:

“The CAWI may decide to keep an animal that was removed under subsection (1) or (2) in the CAWI’s care if, the CAWI has reasonable grounds to believe that the animal may be placed in distress if returned to its owner or custodian.”

45I find that the cats removed from the Appellant’s home on August 2, 2023, may be placed in an environment causing, or leading to, distress, if returned to the Appellant.

46Inspector Falls testified that when she attended the Appellant’s home on August 2, 2023, the conditions in the home had not improved significantly from previous inspections to warrant a revocation of related, and previously issued, Compliance Orders from March 21, and May 10, 2023. Inspector Falls said she received no indication from the Appellant that conditions would improve, or that the Compliance Orders would be complied with. Because of this she felt she had reasonable grounds to believe that the cats would be placed into an environment of distress if returned to the Appellant.

47Inspector Falls testified that a Keep in Care Decision is influenced by the NOR. She referenced the Decision to Keep in Care Request and Notice Package²⁵ used by AWS, which details the rationale for the Keep in Care Decision such as the outstanding Compliance Orders, the ongoing issue with feces and urine throughout the home, ceiling space access, and exposure to attic insulation.

48Inspector Falls testified that she was not confident that the Appellant would ensure ongoing or required medical treatment or follow the recommendations of a veterinarian given the Appellant’s failure to respond to the Order from June 21, 2023, requiring veterinary assessment for 3 cats.

49Regional Supervisor Victoria Crocker (“RS Crocker”), delegated the power of the CAWI to make KIC decisions through the Act,²⁶ testified that the Keep in Care Decision was issued in accordance with both s. 31 (6) (a) and (b)(i) of the PAWS Act.

50RS Crocker testified that she was aware of the history of Compliance Order issues with the Appellant because of her supervisory position and because she reviewed the file. She said she is aware of the Appellant’s history with AWS that includes the removal of 70 cats from the Appellant’s home in 2023, and the serving of 14 Compliance Orders also in 2023, of which 3 were non-compliant as of August 2, 2023.

51Under cross examination, RS Crocker said that the NICHE report contained the details about the Appellant taking a wrong cat to a veterinarian for examination per the Compliance Order from June 21, 2023.

52RS Crocker testified that she was aware that the Appellant has rejected discussions with AWS about spaying, neutering, or surrendering any of her cats on various occasions since February 2023.

53The Appellant said the conditions influencing the past orders, such as the house cleanliness, no longer exist. She said the 4 cats removed on August 2, 2023, should be returned as there is no basis to keep them from her. She provided no persuasive evidence to support her argument, or to refute the photograph evidence of the Respondent showing cat feces in various locations throughout the home including the attic space, or proof that the hole in the ceiling had been repaired permanently.

54I am not persuaded by the Appellant’s arguments that the information relied on by the Respondent to formulate a KIC order was dated, as she provided no evidence to support her argument.

55When the Appellant was questioned about the current condition of the home, she did not respond other than to say an AWS re-inspection could determine the condition.

56I am persuaded by the Respondent’s evidence that shows the cats in the house were living in unsanitary conditions, which they argue has not changed significantly from the date of the Compliance Order served on May 10, 2023, and is not likely to. I acknowledge the Appellant’s argument that revocations of other orders have been issued, however, the Compliance Orders relevant to the Keep in Care Decision including providing a sanitary environment, and a necessary repair to a hole in the ceiling were not revoked. What is more, no assurances were provided by the Appellant that either of these would be addressed.

57I am also persuaded that the Appellant will not ensure ongoing veterinary care for the cats, which is necessary for their health, because she missed a compliance date and incorrectly identified her own cat to be taken.

58I found that there was no persuasive evidence that the removal of the cats via the NOR was unreasonable or unwarranted. The Respondent’s Keep in Care Decision is informed by the NOR along with other relevant history involving the Appellant. The Respondent proved they had reasonable grounds to believe the 4 cats removed on August 2, 2023, will be placed in distress if returned to her, in part, because of the Appellant’s history of non-compliance of Orders issued by AWS to alleviate the cats’ distress including making repairs to the home, providing a sanitary environment, and to have cats seen by a veterinarian. The Appellant provided no persuasive evidence or argument that she will address the outstanding matters, or that she has a plan to do so. In fact, she believed that all Compliance Orders including those outstanding had been complied with despite Respondent evidence to the contrary. The statutory standard for the Respondent’s ‘reasonable grounds’ is based on credibly based probability²⁷ which was supported by their evidence and testimony. The Board cannot order the return of the cats to an environment that would place them distress, which would be the case here, because the conditions underpinning the cats’ distress which led to their removal and a Keep in Care Decision remain unchanged.

59I therefore dismiss the appeal of the CAWI’s decision of August 3, 2023, to keep the 4 cats removed on August 2, 2023.

ISSUE 4: Should the SOA of August 4, 2023, be confirmed, revoked, or varied?

60I confirm the SOA served on August 4, 2023, in the amount of $17,172.50 for the reasons that follow.

61Section 35 (1) of the PAWS Act says, “If an animal welfare inspector has provided an animal with necessaries to relieve its distress or the CAWI has taken an animal into the CAWI’s care, the CAWI may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.”

62Section 35 (3) of the PAWS Act says, “An owner or custodian who receives a statement of account under subsection (1) is, subject to an order made under subsection 38 (9), liable for the amount specified in the statement.”

63I found that the removal of 4 cats on August 2, 2023, was necessary because the cats were in distress, and the removal resulted in the provision of necessaries to relieve the distress.

64Inspector Falls testified that the SOA captures costs pertaining to the boarding and care for:

a. The 5 cats removed from the Appellant’s home on June 15, 2023,²⁸

b. The 14 cats (and 2 litters) removed on June 21, 2023, and

c. The 4 cats removed on August 2, 2023.

65Inspector Falls testified that 5 cats previously removed from the Appellant’s home and boarded at an SPCA facility in July 2023 were transferred to another facility because the SPCA was unable to care for cats with FIV, and because those cats posed risks to other cats in their care. She said the transfer of cats from one facility to another resulted in a lower daily boarding fee which worked to the benefit of the Appellant.²⁹

66Inspector Falls testified that the rates charged by the boarding facility (Dog Sports Centre) includes the daily care of adult cats, kittens, and food, are in line with the recommended fees in the schedules of the Ontario Veterinary Medical Association (“OVMA”) Fee Guide 2023 that she referred to.

67The Appellant argued that the SOA is unreasonable and should be reduced to zero dollars. The Appellant did not provide any substantive argument or evidence regarding any aspect of the SOA.

68The SOA is supported by detailed invoices for the boarding, treatment, and care. I was persuaded that the SOA reflects items that were necessary and reasonable.

69I was not persuaded that the SOA should be reduced to zero dollars or reduced at all. The Appellant did not persuasively challenge any item in the SOA. And while the Appellant receives an income through a government pension and income supplement, her evidence and testimony did not suggest that she was unable to pay, and she did not provide any basis for varying the SOA. She has therefore not met the onus of showing why the account should not be confirmed.

70For these reasons, I confirm the SOA dated August 4, 2023, in the amount of $17,172.50.

ORDER

71Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I:

1. Dismiss the Appellant’s appeal of the removal of the cats;

2. Dismiss the Appellant’s appeal of the Keep in Care Decision;

3. Decline to return the cats;

4. Confirm the Statement of Account made under s. 35 (1) of the PAWS Act dated August 4, 2023, in the amount of $17,172.50; and

5. Order the appellant to pay $17,172.50 to the Minister of Finance within 10 days of the release of this Order.

Released: December 22, 2023

___________________________

Peter Simmons, Member

Footnotes

1. 1Not all cats in the Appellant’s home were removed on May 10, 2023; some avoided capture hence the Compliance Order requiring an improvement to the sanitary environment for the remaining cats. The appeals of the NOR for the 40 cats and the Compliance Order to provide a sanitary environment were heard June 2, 2023 (ACRB File Nos. 14896/14897/14909/14910).
2. 2See footnote 1. The 9 cats removed on June 15, 2023 were cats not removed on May 10, 2023.
3. 3The appeal of the NOR of June 21, 2023 was heard on July 14, 2023 (ACRB File Nos. 14999/15006/15007/15008/15027).
4. 4Similar to May 10, 2023, not all cats in the appellant’s home could be captured on June 21, 2023. The Compliance Order was for 3 cats that could not be captured, and remained behind.
5. 5Inspector Falls testified the warrant was necessary because the appellant was verbally abusive and told Inspector Falls to leave the property when she attempted to conduct a compliance inspection on July 27, 2023.
6. 6See footnote 3 – the 3 cats from June 21, 2023 were removed on August 2, 2023 along with a newly discovered fourth cat. Section 31(1)(c) of the Act says, “An animal welfare inspector may 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 an order respecting the animal has been made under section 30 and the order has not been complied with. 2019, c. 13, s. 31 (1); 2023, c. 12, Sched. 6, s. 5 (2).
7. 7Clauses 31(6)(a) and (b) of the Act say, “The CAWI may decide to keep an animal that was removed under subsection (1) or (2) in the CAWI’s care if the CAWI determines it is necessary to relieve the animals’ distress; and, “…the CAWI has reasonable grounds to beileve the animal may be placed in distress if returned to its owner or custodian.”
8. 8Section 35(1) of the Act says, “If an animal welfare inspector has provided an animal with necessaries to relieve its distress or the CAWI has taken an animal into the CAWI’s care, the CAWI may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.”
9. 9Nine cats were removed from the Appellant’s home under a NOR on June 15, 2023. Five of the removed cats were boarded at an SPCA facility until relocated on July 13, 2023 where they remained until forfeited on August 2, 2023. The other 4 cats of the 9 removed were suspected as pregnant and boarded elsewhere and are not part of the SOA under appeal in this decision.
10. 10Fifteen cats were removed on June 21, 2023. One cat died in care on June 25, 2023.
11. 11The SOA involves cats removed on 3 separate occasions (June 15 and 21, 2023, and August 2, 2023) totalling 33 cats (23 adults and 10 kittens). The NOR and KIC, which are addressed in this decision, are related only to the 4 cats removed on August 2, 2023.
12. 12The appellant submitted a physician’s note dated Septmber 12, 2023 at the September 19, 2023 hearing with her request for adjournment. The same note was submitted on October 23, 2023. The appellant was advised that she may request an adjournment with an updated medical note provided to the Board at the next hearing date.
13. 13On day 2 of the hearing (October 25, 2023), the parties consented to a 3rd hearing day and adjourned until October 31, 2023
14. 14Constitution Act, 1982, Part 1 - Canadian Charter of Rights and Freedoms (“Charter Rights”)
15. 15Rule 11 says, that “Notice of a constitutional question shall be served on the Attorney General of Canada, the Attorney General of Ontario and all other parties, and delivered to the Tribunal in the following circumstances: the constitutional validity of an Act of the Legislative Assembly of Ontario or Parliament of Canada (or of a regulation or by‐law made under such an Act) or of a rule of the Common Law is in question; and/or a remedy is claimed under section 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario. A Notice of Constitutional Question Form must be delivered as soon as the circumstances requiring the notice become known and, in any event, at least 15 days before the question is to be argued.
16. 16Courts of Justice Act, S. 109 (1).
17. 17See s. 1 of the PAWS Act
18. 18See Pryde v. CAWI, 2022 ONSC 6632, para 52.
19. 19While necessaries are not defined by the Act, its foundational legislation, the OPSCA Act, 1990, included food, care, or treatment as necessaries to be provided to animals found in distress. Ontario Society for the Prevention of Cruelty to Animals Act, R..S.O., 1990, c.36, S. 12.1(3)
20. 20The Compliance Order was served on the Appellant on June 21, 2023. The Order was revoked on August 18, 2023 after the cats were removed from the Appellant’s care on August 2, 2023.
21. 21Compliance Order issued on June 22, 2023, and revoked on July 24, 2023.
22. 22See Table 1 in paragraph 19 in this decsion.
23. 23See s. 31(1) (c) of the PAWS Act.
24. 24See paragraph 34 in this decision.
25. 25Compilation of background and details contained within the ‘Decision to Keep in Care Request and Notice Package’
26. 26Powers of the CAWI delegated to RS Crocker pursuant to the s. 31(6) and 31(7) and 44(8) of the PAWS Act
27. 27R v. Sadikov, 2014 ONCA 72 para 81.
28. 28The 5 cats were initially boarded at an SPCA facility. Those costs are the subject of a separate appeal. The cats were then relocated to a different boarding facility, and the costs for the period of July 14, 2023 to August 2, 2023 is reflected in the SOA under appeal here.
29. 29See footnote 9.```