David Romkes v. Chief Animal Welfare Inspector, 2023 CanLII 72549

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

Between:

David Romkes

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

For the Appellant: David Romkes, Self-Represented

For the Respondent: Danielle Meuleman, Counsel

Observers: Emma Rhodes, Ziba Heydarian and Ron Katz, ACRB Members

Heard By Videoconference: June 13 and June 30, 2023

OVERVIEW

1David Romkes (“appellant”) appealed a statement of account dated April 18, 2023 for the period September 9, 2022 to January 13, 2023 in the amount of $38,374.44 (“SOA”). The SOA reflects the costs of necessaries provided to the appellant’s animals including 21 rabbits, 3 horses, 19 chickens, and a rooster (“appellant’s animals”). The SOA includes boarding costs of $35,001.00, veterinarian costs of $2,887.18, animal care costs for the rabbits ($315.00 for deworming and mites), and farrier costs ($169.50).

2The appellant asked that he be assisted at the hearing by Carol-Anne Zilavec, an uninsured paralegal, with respect to computer functions and documentation because the appellant said he has limited computer skills. The respondent did not object and I allowed this assistance to be provided to the appellant throughout the hearing as required by the appellant.

3The appellant’s animals were forfeited on January 13, 2023 pursuant to s. 35(4)(b) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (“PAWS Act”).

4The 22 grounds for the appellant’s appeal of the SOA, in summary, are:

1. Financial hardship;

2. The total amount of the SOA is not an accurate reflection of the individual costs listed on it;

3. The appellant surrendered his animals on September 12, 13, and 15, 2022 in texts to Inspector Chew, and the SOA should be varied based on this;

4. Whispering Hearts Horse Rescue (“Whispering Hearts”), the facility where the animals were boarded, was advised that the appellant surrendered his animals on various dates;

5. The appellant was advised that his animals were forfeited on January 12, 2023 by registered mail on January 13, 2023, but Whispering Hearts submitted invoices until January 23, 2023, and these were incorrectly including in the SOA;

6. Inspector Chew failed to mitigate the costs of caring for the appellant’s animals following the appellant’s surrender of them;

7. Inspector Chew failed to allow the appellant to mitigate his costs when he did not allow him to continue to sell his animals, per his September 12, 2022 request by text;

8. Pursuant to the Decisions to Keep dated September 9 and 14, 2022, SOA should not have accrued after these dates in accordance with s. 35(1) of the PAWS Act;

9. Section 38(9) of the PAWS Act errs in law as it does not comply with sections 31(1), 31(6), and 35(1), and the appellant should not be billed for any costs or necessaries after the Decisions to Keep were issued;

10. It was not necessary to remove any of the animals and keep them in care as none of the Orders issued by the Inspector had expired or were breached. As a result, the respondent incurred costs of providing necessaries at their own expense and could have reduced these by not removing the animals. The respondent could have instead provided support and medicine on-site at the property if necessary;

11. The onus is on the respondent to prove that the animals were not fed adequately;

12. AWS failed to act with due diligence to advise the appellant when his animals were relieved of their distress, and unnecessarily ran up the SOA costs;

13. Dr. Zakrajsek, veterinarian, has a perceived conflict of interest in this matter, and her involvement should be nullified and unbillable including her professional advice to remove the animals. The appellant has filed a formal complaint with the College of Veterinarians;

14. Dr. Zakrajsek committed perjury during her testimony in the hearing of an appeal regarding a previous statement of account issued to the appellant, and her testimony should be dismissed;

15. The SOA is extraordinarily excessive and grossly erroneous;

16. The animals that were removed were not in distress, and the SOA needs to reflect this;

17. AWS has not confirmed that the amounts invoiced to the appellant by Whispering Hearts are specifically only for his animals;

18. The costs of boarding the animals are significantly higher than the value of the animals, if sold, leading to an absurdity that was not the intent of the legislation;

19. The rabbits that were euthanized were not sick, and AWS has not provided any details to the contrary and he should not be charged for this;

20. AWS did not contact the appellant immediately after the rabbits were euthanized, in accordance with s. 32(2) of the PAWS Act. As such he should not have to pay for the euthanizing;

21. AWS’s claim of “future” distress is not a valid basis to confiscate the appellant’s animals, and he should not have to pay for their care; and

22. All Orders were complied with and/or the appellant still had time to comply.

5In his appeal, the appellant also requests costs of $5,000.00 to compensate him for taking time off work, his legal fees, and the cost of issuing an application for judicial review.

PRELIMINARY MATTERS

Appellant’s Motion to Exclude Respondent’s Book of Documents

6I denied the appellant’s motion to exclude the respondent’s evidence orally at the hearing for reasons to be delivered later in writing. These are my reasons.

7The appellant’s motion dated May 29, 2023 seeks an Order of the Board to exclude the respondent’s book of documents served and filed May 23, 2023 on the basis of non-compliance with the Board’s May 1, 2023 Case Conference Report and Order (the “CCRO”), procedural fairness and prejudice to the appellant.

8The appellant submits that although the CCRO required the parties to exchange a single PDF copy of documents that is electronically indexed, tabbed and page numbered by May 23, 2023, the respondent’s book of documents is not “electronically indexed” by which the appellant expected to receive the document book with a “clickable” table of contents as defined in an article he found on the internet. The appellant submits that he had to hire Shelby Schafranek at a cost of $475.00 to put his documents in the format required by the CCRO because he did not have the skills to do so himself. The appellant submits that the respondent has the skills to do this and did not. Therefore, the appellant requests that the respondent’s book of documents be excluded from the evidence at this hearing.

9The respondent’s position is that the respondent complied with the CCRO requirement that the documents be electronically indexed. Rather than making the index page itself “clickable” the PDF document contains bookmarks which provide electronic indexing which can be accessed by clicking on the bookmark feature. Bookmarking is a form of electronically indexing and tabbing. The CCRO did not prescribe the method of indexing. The internet article quoted by the appellant is not a definitive authority. Further, if the appellant had contacted the respondent after receiving the respondent’s book of documents provided to him on May 11, 2023 and asked for assistance, respondent’s counsel would have explained this to him and would have changed the format if the appellant found it difficult to deal with. Instead, the appellant filed a motion to exclude the book of documents completely. Still further, there has been no prejudice to the appellant who decided to obtain help because of his own lack of computer skills and his failure to ask the respondent for help with the format of the documents.

10I am not prepared to exclude the respondent’s evidence because I find that the respondent’s book of document complies with the requirement in the CCRO that the documents be electronically indexed. I accept the respondent’s submissions that Bookmarking is a form of electronically indexing and tabbing. The CCRO did not prescribe the method of indexing. The internet article quoted by the appellant is not a definitive authority. There has been no resulting prejudice to the appellant who decided to obtain help because of his own lack of computer skills. The cost he incurred is related to his own lack of computer skills and possibly his own misunderstanding of what was required and not to any actions of the respondent. The appellant attended the hearing with the respondent’s documents and Ms. Zilavec to assist him in using the computer and in organizing documents. The respondent did not object to Ms. Zilavec doing so.

11The respondent complied with the CCRO requirement for delivery of documents in both time and format. The documents were electronically indexed and tabbed as required. I accept the respondent’s submission that there is more than one way of electronically indexing documents and the CCRO did not require any specific format. I find there is no prejudice to the appellant. The appellant has the respondent’s documents available to him today for the hearing. The cost that the appellant incurred to put his own documents in electronic format is not related to the respondent’s book of documents but a choice he made to hire assistance so that he could comply with the CCRO.

Appellant’s Motion to Exclude Dr. Ian Welch’s Report and Supporting Documents

12The appellant sent an email to the Board prior to the hearing enclosing a document titled Notice of Intent to Challenge Dr. Ian Welch’s expert report. This was treated as an oral motion.

13I denied the appellant’s motion to exclude Dr. Welch’s expert report orally for written reasons to be given later. These are my reasons.

14The appellant submits that contrary to Rule 10 and previous Order of the Board, specifically Rule 10.2(d), Dr. Welch’s report and supporting documentation should be ordered by me to be excluded from this hearing. The appellant submits that the expert witness statement itself was not signed when it was originally sent and the signed version was served and filed six days late. It should have been served and filed 20 days prior to the hearing being May 24, 2023. The expert report was not served and filed until May 30, 2023. The appellant submits that I should strictly interpret Rule 10 and exclude this report. The appellant also submits that Dr. Welch’s report will not assist me in this hearing because the OVMA fee guide cited does not relate to the cost of horses, rabbits, chickens, roosters or turkeys.

15The respondent submits that the lack of signature on the copy of the report sent to the appellant May 11 has since been rectified and a signed copy sent to the appellant May 30 after it was brought to the respondent’s attention. Otherwise, the information, other than the missing signature, is identical to the previous copy so the appellant had all the information and there is no resulting prejudice to the appellant. Further, the respondent submits that the appellant filed his own book of documents a day late and asked for permission for late filing. The issue raised about the OVMA fee guide can be dealt with in cross-examination of Dr. Welch if the appellant wishes to pursue it, submissions can be made as to the weight of Dr. Welch’s evidence, and ultimately Dr. Welch’s report and testimony will be weighed by the Board.

16I accept and agree with the submissions of the respondent. The appellant has had the information in Dr. Welch’s unsigned report since May 11 and a signed copy of the report May 30. Because the information intended to be relied on by the respondent has been available, albeit in an unsigned form, since May 11, I find there is no prejudice in allowing the report to be put forward at the hearing. Rule 3 of the Rules allows me to liberally interpret, vary or apply Rule 10 to facilitate a fair, and open and accessible process and to allow participation by all parties, and also to ensure efficient, proportional and timely resolution of the merits. I find that allowing the report of Dr. Welch to be put forward at this hearing helps to accomplish these goals. There is no prejudice to the appellant who can cross-examine Dr. Welch and make submission on the weight to be put on his report and testimony if he wishes. Further, the appellant has been granted latitude in the filing of his documents for the hearing.

[17]

SOA Reduced to $37,424.44

18The SOA and attached invoice documentation contained a relatively minor calculation error and the respondent reduced the total costs claimed of $38,374.44 to $37,424.44.

ISSUE IN DISPUTE

19The issue in dispute is whether the SOA, in the reduced amount of $37,424.44 should be confirmed, revoked, or varied.

RESULT

20For the reasons that follow, I confirm the SOA in the amount of $37,424.44.

LAW

21Section 35(1) of 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 statement of account respecting the cost of necessaries.

22Under 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).

23Section 38(2) provides a right of appeal of a statement of account.

24Section 38(9) gives the Board authority to, among other things, confirm, revoke, or vary a statement of account served under s. 35(1).

25Under 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.

EVIDENCE AND ANALYSIS

The SOA is Confirmed in the Amount of $37,424.44

26I find that the SOA is fair and reasonable and should be confirmed in the amount of $37,424.44 for the following reasons.

27The invoice summary gives an accounting of the costs which closely matches the SOA. The costs are primarily comprised of boarding costs with additional costs for veterinary costs of $2887.18, deworming and mite treatment for the rabbits of $315.00 and farrier costs of $169.50, for a total of $37,424.44.

28The appellant relied on his own testimony and his cross-examination of the respondent’s veterinarian Dr. Ian Welch, Brenda Thompson, manager of Whispering Hearts who provided the care and respondent’s Inspector Christopher Chew, to establish that the SOA should not be confirmed. Carol-Anne Zilavec also testified but only about the appellant’s financial circumstances.

29The appellant’s evidence about the cost of care of the animals was unpersuasive and was based primarily on the appellant’s view that the cost of the care was too high, unnecessary and, in the case of the 21 rabbits, 2 turkeys, 1 rooster and 19 chickens, out of proportion to the value of the animals. The PAWS Act does not have a proportionality requirement.

30The appellant’s testimony that the cost of the care was too high is self-serving and unsupported by any expert evidence. I prefer the evidence of Dr. Welch, Brenda Thompson and Inspector Chew who testified that the costs are reasonable given the poor health of the animals when they were removed.

31The appellant’s testimony that the cost of the care was unnecessary is self-serving and unsupported by any expert evidence. I prefer the evidence of Dr. Welch, Brenda Thompson and Inspector Chew, all of whom testified that the care given to the animals was necessary because of their physical condition at the time they were taken into care by the respondent.

32The appellant’s testimony that the cost of the care of the rabbits, turkeys, rooster and chickens was out of proportion to the value of these animals is also unpersuasive. The appellant also submitted that the costs of boarding the animals are significantly higher than the value of the animals, if sold, leading to an absurdity that was not the intent of the legislation. I do not accept the appellant’s submission on this point. There is no basis for the appellant’s assertion that the cost of care should be related to the value of the animals. Again, there is no requirement in the PAWS Act for proportionality of cost of care to the value of the animals. I see no basis for disallowing any of the cost of the care of these animals because of their value.

33The appellant challenged the validity of Dr. Welch’s evidence because he did not treat the animals and his opinion was based on a document review of others who treated the animals, and because the fee schedule does not cover all of the types of animals treated while in care. I do not accept this submission. I do not find that this affects the great weight I attribute to Dr. Welch’s opinion given his experience, expertise and thorough review of the records given to him. Dr. Welch testified that he used the fee guide as a general reference only in determining whether the charges are reasonable. Dr. Welch testified that he thoroughly reviewed the costs and found that all of the fees charged for the veterinary services, including surgery on one of the horses, were reasonable for the care provided. Dr. Welch also testified that it is not uncommon for underweight horses to require veterinary care post-surgery and that he did not see any negligence on the part of Whispering Hearts in the care given to the horse as the appellant suggested.

34Further, from the submissions of the respondent, it appears that the necessity for Dr. Welch to opine based on documentary review was caused by the appellant’s challenge to the professionalism of the treating veterinarian and proceedings in another forum against her and allegations of lack of professionalism made in this proceeding. Dr. Welch completed a paper review, provided an expert report and was cross-examined by the appellant. I accept and prefer Dr. Welch’s expert evidence in this hearing and prefer it over the appellant’s evidence wherever the two conflict. The appellant has no training or expertise in veterinary science.

35I also place great weight on the testimony of Inspector Chew and Brenda Thompson. Inspector Chew was kept informed by the veterinarian and by Ms. Thompson who was providing care for the animals at her boarding facility.

36Ms. Thompson testified about the care given to the animals at Whispering Hearts which is a charity. Ms. Thompson explained how the costs were arrived at and the type of care given. I find the daily boarding costs, the veterinarian costs and the farrier, deworming and mite treatment costs all to be fair and reasonable.

37The care given and the costs are also corroborated in the documentary evidence before me.

38None of the evidence given by the respondent’s witnesses was shaken in cross-examination by the appellant and I accept their evidence.

39The appellant said that he surrendered the animals to the respondent and any costs after that are those of the respondent. However, Inspector Chew and Ms. Thompson said that no surrender was agreed to. The communications sent by the appellant to the respondent indicate that the appellant’s opinion was that if the animals had been removed by the respondent, then he is no longer responsible for the cost of their care. For example, in September, 2022 the appellant sent a text to the respondent “You can keep the animals but do not send me any bills. If there are no bills there will be no appeals.” Inspector Chew testified that he found this confusing because the appellant appeared to attach a money condition to his suggestion that the respondent keep the animals. Similarly, Ms. Thompson testified that no surrender agreement was made by her with the appellant and a surrender agreement would have had to be in writing and agreed to by Whispering Hearts and contain details of the arrangement.

40I find that no surrender was agreed to here between the appellant and the respondent, or even between the appellant and Whispering Hearts. The respondent was entitled to issue the SOA. I prefer the evidence of Inspector Chew and Ms. Thompson over that the appellant. A surrender of the animals would require, at minimum, agreement on the terms of surrender in writing, a meeting of the minds of the parties, a transfer of ownership of the animals, and a clear agreement on the costs. Inspector Chew said the respondent is not in the business of selling animals. Ms. Thompson said Whispering Hearts is a charity and surrenders, which are rarely done at Whispering Hearts, need to be clearly documented and all terms agreed to because taking on animals involves cost.

41The appellant also said that the respondent failed to allow him to mitigate his costs by not allowing him to continue to sell his animals as the appellant requested. The appellant brought forward no significant evidence that the animals were going to be sold, except his own testimony. No written agreements of purchase and sale were put forward and no proposed purchaser testified. Even after the animals were removed and in the care of the respondent, the appellant could have perhaps negotiated a return of the animals, or some of them, if he had buyers for them. The appellant did not do so. In this particular case I see no basis for the argument that the respondent failed to allow the appellant to mitigate his costs by not allowing him to continue to sell them. The animals were removed because they needed medical care and attention and there is no mitigation principle in this situation.

42Although the appellant submits that the appellant was advised that his animals were forfeited on January 12, 2023 by registered mail on January 13, 2023, but Whispering Hearts submitted invoices until January 23, 2023, this is not now consistent with the evidence. The SOA is for boarding and other costs from September 9, 2022 to January 13, 2023. The respondent acknowledged this error and the reduction to $37,424.44 is as a result of the correction of all charges after January 13, 2023. January 13, 2023 was the first day the animals were forfeited and the cost of care of the animals for that day is not unreasonable. Until that day, the appellant says he was unaware of the forfeiture.

43Although the appellant submits that, pursuant to the Decisions to Keep dated September 9 and 14, 2022, SOA should not have accrued after these dates in accordance with s. 35(1) of the PAWS Act, this is an incorrect statement of the law. Section 35(1) of 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 statement of account respecting the cost of necessaries. Further, under 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).

44Although, the appellant submits that s. 38(9) of the PAWS Act “errs in law” as it does not comply with sections 31(1), 31(6), and 35(1), and the appellant should not be billed for any costs or necessaries after the Decisions to Keep were issued, this submission is legally incorrect. The legislation cannot “err in law”. The Decision to Keep is not before me. The respondent is allowed by the legislation to look to the appellant for costs incurred after removal of the animals as set out in s. 35(1) and (3), subject to the appellant’s rights of appeal.

45The appellant submits that it was not necessary to remove any of the animals and keep them in care as none of the Orders issued by the Inspector had expired or were breached. The appellant further submits that, as a result, the respondent incurred costs of providing necessaries at their own expense and could have reduced these by not removing the animals. The respondent could have instead provided support and medicine on-site at the property if necessary. I do not agree with these submissions. There is no Notice of Removal or Keep in Care decision appealed before me. The only issue under appeal before me is the SOA. Given the respondent’s evidence about the medical care given to the animals in the SOA, the respondent was under no obligation to leave the animals “on-site at the property” in order to reduce costs. The veterinarian costs incurred as detailed by Dr. Welch, the boarding and other costs detailed by Inspector Chew and Ms. Thompson were necessary and reasonable.

46Although the appellant submits that the respondent failed to act with due diligence to advise the appellant when his animals were relieved of their distress, and unnecessarily ran up the SOA costs, this submission is not supported by any evidence before me. I am not persuaded that the respondent had any duty here to “act with due diligence to advise the appellant when his animals were relieved of their distress” or “unnecessarily ran up the SOA costs”. To the contrary, the evidence of the respondent’s three witnesses and the documentation filed about the SOA and quantum and basis on which the costs were incurred persuade me of the contrary, that the costs incurred were not only necessary but fair and reasonable. The appellant, up until the animals were forfeited, always had the option of paying the costs of care and requesting return of the animals. The appellant failed to do so, leaving the respondent with no choice but to care for the animals at a cost.

47Although the appellant submits that the animals that were removed were not in distress, and the SOA needs to reflect this, there is no appeal before me regarding the removal or whether the animals were in distress when removed and no evidence before me that leads me to conclude care costs of the animals were not necessary and reasonable or that the SOA should be reduced.

48Although the appellant submits that the respondent has not confirmed that the amounts invoiced to the appellant by Whispering Hearts are specifically only for his animals, Ms. Thompson testified that the amounts invoiced are for the appellant’s animals and I accept her testimony. Further the PAWS Act only allows the respondent to charge for animals in its custody.

49Although the appellant submits that the rabbits that were euthanized were not sick, the respondent has not provided any details, the respondent did not contact him immediately after the rabbits were euthanized in accordance with s. 32(2) of the PAWS Act, and he should not be charged for this, the appellant brought forward no evidence to establish any of these submissions. Even if he had, there is no basis for SOA reduction for failing to notify immediately after, even if that had occurred. Here the records filed by the respondent establish that a veterinarian euthanized three rabbits on September 9, 2022 for medical reasons. The Notice of Euthanasia of the three rabbits is dated September 12, 2022.

50None of the appellant’s 22 grounds of appeal have been established by evidence that persuades me that the appellant’s appeal should succeed. The appellant submits that I should reach the same conclusion as the other Board decisions he cited. However, those decisions are not binding on me and are confined to their facts.

Appellant’s Ability to Pay

51Having considered the evidence and submissions of both parties, I find that the SOA should not be reduced.

52The appellant submitted financial information about his income and expenses. He testified that he cannot afford to pay the SOA, has no savings and has debts due to divorce and other family situations.

53Ms. Zilavec testified that she and the appellant live together. The appellant pays her $835.00 a month for rent and $700.00 a month in repayment of $35,000.00 she has loaned him. Ms. Zilavec testified that she helped him when the appellant was between jobs, has helped him with $10,000.00 for car repairs. She said that the appellant tried to pay her every month but in some months he defaults.

54The respondent did not make any significant submissions about the appellant’s ability to pay.

55The appellant is gainfully employed, has employment income and I find that the SOA is within the ability of the appellant to pay. It is clear from the evidence before me that the animals needed medical attention and that the appellant had taken on the ownership of more than 40 animals and that came with associated costs. The do not accept the appellant’s submission that payment of the SOA would cause him undue hardship. Based on the testimony of the appellant, Ms. Zilavec and the documentation the appellant filed, he is able to, most months, make other significant monthly payments and has the ability to pay the SOA.

56Under s. 35(5) the respondent can enter into an agreement with an owner to reduce the amount owing on an SOA, or extend the time for payment, or both, even after an amount has been confirmed by the Board.

57The appellant submitted that his appeal should be successful based on all the 22 grounds of appeal listed in his Notice of Appeal.

58The respondent submits the opposite.

Appellant’s Submissions on the [PAWS Act](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html)

59The appellant made the following submissions regarding the legislation:

60Section 35(1) of the PAWS Act does not explicitly state or permit the respondent to render a statement of account after it issues a Decision to Keep.

61Section 31(1) of the PAWS Act explicitly states and/or permits an Animal Welfare Inspector to remove an animal into its “care” as defined in s. 31(6) of the PAWS Act;

62Section 31(6) of the PAWS Act explicitly states and/or permits the respondent to convert “care” to “keep” an animal that was removed under 31(1);

63Section 31(6) of the PAWS Act explicitly distinguishes between “keep” and “care”;

64Section 38(9) of the PAWS Act errs or contradicts s. 31(1), 31(6) and 35(1) in permitting the Board to order costs after a Decision to Keep is rendered;

65Section 38(1) of the PAWS Act explicitly states that an owner can appeal a decision to take an animal into the respondent’s “care;” and

66Section 38(4) of the PAWS Act explicitly states that an owner of an animal that has been taken into the respondent’s “care” may apply to the Board to have the animal returned if the conditions that caused the animal to be kept in the respondent’s “care” have ceased to exist.

67I find that none of these submissions about the PAWS Act persuade me that any of the appellant’s grounds of appeal should succeed. The relevant provisions of the PAWS Act are clear and unambiguous. The relevant provisions in this appeal are s. 35(1) 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 statement of account respecting the cost of necessaries and s. 35(3) which provides that 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)

Costs

68The appellant requests costs of $5,000.00 to compensate him for taking time off work, his legal fees, and the cost of issuing an application for judicial review.

69I am not satisfied that there is any basis to award costs to the appellant in the amount of $5,000.00 or any other amount. The appellant does not allege and I find no basis in the evidence that the respondent’s conduct has been unreasonable, frivolous, vexatious or in bad faith as required by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended February 7, 2019, (the “Rules”) during the conduct of the proceeding. This is a high bar to meet and the appellant has not met it. Further, costs of an application for judicial review are not compensable under Rule 19 which is specific to Board proceedings. I decline to exercise my discretion to award costs to the appellant.

ORDER

70Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I confirm the SOA in the amount of $37,424.44.