Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Lynn Freeman and Korey McDonough
Appellants
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Ziba Heydarian, Vice-Chair
Appearances
For the Appellants: Lynn Freeman, self-represented
Korey McDonough, self-represented
For the Respondent: Danielle Meuleman, Counsel
Heard by videoconference: August 29 and 30, 2024
BACKGROUND
1On June 26, 2024, Lynne Freeman and Korey McDonough, the Appellants, were served by Animal Welfare Services (AWS) with a Statement of Account (SOA #7) in the amount of $200,525.96, for the continued costs of care of over 83 cats and kittens under s. 35 of the Provincial Animal Welfare Services Act, S.O. 2019, c. 13. (PAWS Act).
2The animals were removed over the course of numerous inspections of the Appellants’ property in Innisfil, Ontario (Property), and many of the cats that were removed gave birth to kittens while in care.
3The history of the matter involves various appeals by the Appellants of numerous compliance orders, removal orders, decisions to keep the animals in the Chief Animal Welfare Inspector’s (CAWI) care, and multiple statements of accounts that were issued for the costs of boarding, treating, and caring for the animals.
4On July 11, 2024, the Appellant appealed SOA #7 to the Animal Care Review Board (Board), arguing that the costs incurred by AWS were unnecessary and unreasonable and that there was double jeopardy with prior SOAs. They also cited financial distress as the reason for being unable to pay SOA #7, requesting it to be varied on that basis.
5The appeal proceeded by way of a videoconference hearing on August 29 and 30, 2024, and closing submissions were to be submitted by September 20, 2024.1
ISSUE
6Should SOA #7, dated June 26, 2024, in the amount of $200,525.96, be revoked, confirmed or varied?
RESULT
7For the reasons that follow, I vary SOA #7 to $20,052.59. I find that the costs of providing care to the animals that had been removed were reasonable in the circumstances. However, I exercise my discretion under s. 38(9) of the PAWS Act to vary the SOA based on the Appellants’ financial circumstances and their limited ability to pay.
PRELIMINARY ISSUE
Appellants’ Adjournment Request
8At the start of the hearing on August 29, 2024, the Appellants indicated that they had submitted an adjournment request to the Board on or around August 18, 2024. Neither the Board nor the Respondent had received this request.
9The Appellants then made an oral request for an adjournment on the basis that they required more time to prepare, the Respondent had provided late disclosure, and certain witnesses were unavailable. They also cited medical reasons for the request.
10The Respondent did not consent to the adjournment and noted that they provided disclosure on time. Disclosure was provided to the Appellants by email on August 13, 2024, within the disclosure deadline, with a hard copy sent to them as a courtesy a few days later. The Respondent also stated that the Appellants had access to all of the substantive materials, other than the affidavit of Inspector Falls, on or before June 26, 2024.
11I denied the Appellants’ adjournment request as I was not persuaded that providing the Appellants with additional time to prepare for the hearing would be productive. These are the reasons for that decision:
- On August 18, 2024, the Appellants submitted a motion requesting an extension of their disclosure deadline to August 23, 2024. The grounds for this August 18 motion were essentially the same as the present adjournment request. The Board granted the Appellants’ motion on August 22, 2024, as the extension would cause no further delay to the proceedings.
- The adjournment request did not comply with Rule 16.2 of the Rules addressing oral requests for adjournments because the Appellant failed to show that there were any “exceptional circumstances” to warrant an adjournment, and the reasons provided were essentially the same as those argued in the prior motion on August 18, 2024.
FACTS AND ANALYSIS
12As mentioned above, the history of the matter is complicated and the Appellants appealed at least nine earlier statements of account before appealing SOA #7.
13The Board released a decision on March 8, 2022 (Freeman v CAWI, 2022 ONACRB 12) dealing with four of the earlier SOAs totalling $73,286.60, which were varied to $20,768.48. In regard to these invoices, the Board found there was insufficient evidence to justify the boarding costs and certain veterinary treatments.
14In its more recent decisions, the Board confirmed five SOAs (SOA #1-5), which were issued for the costs of caring for said animals, as follows:
- Freeman v CAWI, 2023 ONACRB 14896/14897/14909/14910, released on July 19, 2023 (re SOA #1 for $9,127.41),
- Freeman v CAWI, 2023 ONACRB 51, released on August 14, 2023 (re SOA #2 for $22,191.97),
- Freeman v CAWI, 2023 ONACRB 55, released on September 11, 2023 (re SOA #3 for $2,026.09 and SOA#4 for $22,943.92), and
- Freeman v CAWI, 2023 ONACRB 65, released on December 22, 2023 (re SOA #5 for $17,172.50).
15The Respondent submits that due to non-payment of SOA #1-5, all of the cats and kittens were subsequently forfeited to the Crown on or before January 11, 2024, pursuant to s. 35(4) of the PAWS Act.2
16On March 6, 2024, AWS issued a further Statement of Account (SOA #6) for $214,194.08 to cover the costs of caring for 86 cats. SOA #6 was revoked on March 27, 2024, due to errors, and AWS advised the Appellants that a new statement of account would be issued to cover any remaining costs of caring for the animals up to the dates of forfeiture.
17On June 26, 2024, Inspector Rachel Falls of AWS issued a final account, SOA #7, for $200,525.96, which included veterinary and boarding costs from 14 different facilities that had not previously provided invoices when AWS issued prior SOAs.
18SOA #7 lists the total for all outstanding boarding and veterinary costs the Respondent spent on the animals listed in Appendix A. The total amount is $200,525.96, but there is no breakdown for transportation, boarding, veterinarian, or animal care costs.
19Appendix A of SOA #7 refers to the 83 cats in an “Animal Inventory Log” and describes them as follows:
- AWS 1-29 (29 cats)
- AWS 31-39 (9 cats)
- AWS 41-43 (3 cats)
- AWS 46-65 (20 cats)
- AWS 67-78 (12 cats)
- 61 a, b, c, d, e (5 kittens born July 7, 2023 to AWS 61)
- 72 a, b, c, d, e (5 kittens born June 30, 2023 to AWS 72).
20The Respondent filed 62 pages of invoices that were included in SOA #7, which detail the boarding and veterinary costs for all the animals, and they provided an invoice summary, which indicated that the 83 cats and kittens were kept and/or treated at 14 various facilities. Each invoice was also marked up to show the vaccines, neuters, biopsies, lab tests, post-mortem tests, and costs of forfeited cats, among other expenses that were excluded, totalling $24,926.77, as well as some calculation errors as compared to SOA #6. Of note, SOA #6 included some, but not all, of the excluded costs that were deducted from SOA #7.
21The Appellant argued that the animal inventory log and invoices were grossly erroneous, and the identification of the animals was intentionally made confusing. I agree that the records were confusing in certain regards. For example, some facilities used their own animal-identifying numbers in addition to the AWS numbers assigned to each cat or kitten. However, it goes without saying that with the large number of animals at play, the voluminous medical records, along with the varied information provided by the different boarding facilities, the records were difficult to comprehend. There was no evidence to suggest that this was done maliciously. The Appellant failed to prove any particular errors on the invoices or statements of account, other than some inconsequential errors such as the ages of the cats being recorded improperly by certain vet clinics. I do not find this to be a sufficient basis on which to find the charges on SOA #7 to be unreasonable and to vary them.
22Furthermore, the Appellants provided no evidence to show that the number or identification of the cats was incorrect. I find that the identification of the Appellants’ 83 cats by AWS was accurate. The Respondent provided a comprehensive and detailed inventory log with pictures of all of the removed cats and the kittens that had been born in care.
23The main question in this appeal is whether the costs of care and treatment provided were reasonable in the circumstances, and if so should the SOA be varied on other grounds.
Boarding Charges on SOA #7
24For the reasons that follow, the Board finds that the boarding charges in SOA #7 were reasonable on their face.
25Pursuant to s. 35(1) of the PAWS Act, the Respondent may serve a statement of account on an animal’s owner or custodian if an inspector has provided an animal with necessaries to relieve distress and/or if the Respondent has taken an animal into CAWI’s care.
26Section 38(9) gives the Board authority to, among other things, confirm, revoke, or vary a statement of account.
27The Divisional Court has confirmed that while the burden of proof is on the Appellants to show that the SOA should be revoked or varied, the Respondent has an initial evidentiary burden to prove, on a balance of probabilities, that the SOA reflects the actual costs of necessaries and that these costs were reasonable: Windrift v. CAWI, 2022 ONACRB 24, paragraph 23; Ishankova v. CAWI, 2022 ONACRB 3; Flaro v. CAWI, 2022 ONACRB 5, paragraph 30.
28In support of its position, the Respondent called Inspector Rachael Falls, the lead inspector who engaged with the Appellant in 2023 onwards and issued the final SOA #7.
29Inspector Falls elaborated on the boarding fees and testified that the daily rates charged for boarding the cats ranged from a low of $15/cat to a high of $40/cat per day. One of the facilities, Alliston & District Humane Society, charged an even lower fee because they charged $50/litter for multiple kittens given that they were kept in one cage. She explained that all of the other facilities charged boarding rates per kitten rather than one group rate for the entire litter of kittens. Inspector Falls further confirmed there were no boarding fees or other fees charged on SOA #7 past the dates of forfeiture.
30I also considered the evidence of Dr. Ian Welch, a veterinarian who was qualified as an expert to speak to the charges on SOA #7. Dr. Welch testified that he researched the boarding rates charged in the supporting invoices to the SOA and that they were within the range of the fee guide published by the Ontario Veterinary Medical Association (OVMA). He explained that the OVMA Fee Guide is an annual publication of the average service fees for veterinarian services in Ontario, but these fees are not enforced or regulated, and they do not reference boarding fees for private boarding facilities, only veterinary boarding fees.
31Dr. Welch confirmed that he did not find the boarding fees to be out of the ordinary or excessive. In fact, he testified that many of the boarding fees he saw in the various invoices were below the OVMA fee guide, but this could be due to the location of the facilities being more rural and charging less.
32The Appellants did not put forward any specific evidence to show that the boarding fees were unreasonable. In cross-examination, the Appellants mainly questioned Dr. Welch about the method of removal and any harm that may have come to the cats by using, for example, grabbers or transporting them in cages.
33I find that the boarding charges reflected in SOA #7 are supported by detailed invoices and I accept the evidence of Dr. Welch and Inspector Falls, which confirmed that the boarding rates charged by the various facilities were reasonable and not excessive in the circumstances. Further, the Appellants did not provide any evidence to show that these charges were excessive, unnecessary, or unreasonable. For these reasons, I find SOA #7 to be reasonable with respect to the boarding fees charged.
Veterinary Charges on SOA #7
34For the reasons that follow, the Board finds that the veterinary charges in SOA #7 were also reasonable. This is supported by both the testamentary evidence of Dr. Welch and the documentary evidence submitted by the Respondent.
35Dr. Welch testified that while going through the medical records he distilled the commonalities in the treatment of the cats into two groups: a) preventative care, and b) treatment of various ailments. He stated that oral care was required for most of the cats as well as treatment for parasitism, eye care for some older cats, and cancer treatment for a few of the cats. There were also some pregnancy issues and additional care required for the kittens.
36When questioned by the Appellants, Dr. Welch reaffirmed that there was nothing he noticed outside of the usual standard of care. There were some problematic animals, such as Agaria, who had a neurological shaking condition, and Tiger Lily, who had possible heart failure, but Dr. Welch testified that these cases were well handled and the charges were expected and reasonable. He noted that many of the fees in the invoices were below those outlined in the standard fee guide, but this could be due to the geographical location of the facility being more rural.
37The Appellants testified that her cats were all well-loved and cared for and that any medical issues they had were caused during their removal because of the stress of being forcibly removed and caged by AWS. She claimed that this caused their subsequent medical issues, including a loss of appetite, heart murmurs, etc.
38In previous decisions, the Board upheld various compliance orders, notices of removal, and the decision to keep the cats in care, and all of these decisions confirmed that removal and taking them into care was necessary to relieve the cats’ distress: Freeman v CAWI 2023 ONACRB 65; Freeman v CAWI 2023 ONACRB 54; Freeman v CAWI, 2022 ONACRB 12. Therefore, any submissions regarding the circumstances of removal were not properly before me as this had already been decided.
39The Appellants also argued that the animals had been overvaccinated and harmed by some of the veterinary care provided. However, the Appellants did not provide any supporting evidence to show that the treatments were harmful (i.e., in terms of the animals being over-vaccinated), unnecessary, or that the veterinary charges were excessive or unreasonable.
40I reviewed the invoice summary, the invoices, and the corresponding medical records in great detail and could not find any inconsistencies. I do not intend to summarize each invoice in this decision, but I note that the invoices clearly describe the procedures, medications, and treatments provided to each individually identified cat, the corresponding prices for those services/treatments, and any costs that were excluded by AWS.
41I accepted the evidence of Inspector Rachel Falls, who confirmed that SOA #7 was the final SOA issued to the Appellants. She explained that SOA #6 had been revoked as there were certain items included in it that should not have been charged to the Appellants. According to Inspector Falls, the PAWS Act was amended in January 2024 to allow additional costs to be charged for care, including vaccines and neuters, but previously in 2023 AWS was only allowed to pass on the costs of necessities to relieve animals’ distress. Therefore, she advised the Appellants that SOA # 6 would be revoked and a new SOA would be issued at a later date once these erroneous charges had been corrected.
42Based on the uncontradicted evidence, I was satisfied that any charges past the date of forfeiture had been excluded, as well as any treatments that went beyond the cost of “necessaries” as a result of legislative changes to the PAWS Act.
43I accept the uncontradicted evidence of Dr. Welch, who testified that the veterinary treatments shown in the numerous invoices were justified, reasonable, and in line with the OVMA fee guide. I find that the veterinary charges reflected in SOA #7 reflect the necessary care provided to the animals. For these reasons, I find SOA #7 to be reasonable with respect to the veterinary fees charged.
Duplicate Charges
44The high cost of SOA #7 and the errors found in SOA #6, causing it to be revoked, made it important for me to review the accuracy of the invoices to ensure there were no further errors or duplicate charges.
45The Appellants argued there was double jeopardy in this case because the costs on SOA #7 were also included in SOA #6 and previous SOAs. The Appellants also argued that because there was a previous Board decision (Freeman v CAWI, 2024 ONACRB 89) deeming SOA #6 as moot, the charges were also moot. While in Board File No. ACRB 15750/15764, the Board dismissed the appeal of SOA #6 because it had been revoked, nowhere in the decision did it state the charges themselves were moot.
46I also considered Inspector Falls’ evidence on how she ensured that SOA #7 did not include any of the invoices that were previously charged in prior SOAs. This evidence reassured me that there was no duplication. Specifically, Inspector Falls explained that a chart had been created to track all the invoices, and everything had been cross-referenced with the animal inventory log as well. Inspector Falls elaborated that some of the institutions housing the animals had sent their invoices later than others, therefore there were overlapping dates. A column of “excluded costs” was included in red in the Invoice Summary to show the costs that had been deducted from the balance of SOA # 6, including but not limited to vaccine and neuter costs.
47I accept the Respondent’s position that SOA #7 is essentially the same as SOA #6 but with certain exclusions and deductions that were made on account of legislative changes and computational errors. There is no “double jeopardy” as claimed by the Appellants, and I found no evidence of duplicate charges from prior SOAs.
The Appellant’s Circumstances
48An owner or custodian of an animal may appeal a statement of account to the Board pursuant to s. 38(2) of the PAWS Act. After a hearing, the Board may confirm, revoke, or vary a statement of account: s. 38(9)3. and 3.1, PAWS Act.
49The Appellants testified that they were facing financial difficulties as they both had serious health concerns, were low-income, and were worried about losing their Property in the face of serious financial difficulties. They testified about the toll of these Board proceedings on them and their continued concern for the animals, all of which had now been forfeited to the Crown due to non-payment of prior SOAs.
50The Appellants relied on Jackson v. CAWI, 2021 ONACRB 4, to request that the account be reduced to zero, citing their strained financial position as showing an inability to pay the amount claimed on SOA #7.
51The Appellants filed supporting evidence of their financial situation by way of Notices of Assessment (NOAs) from the Canada Revenue Agency, which confirmed that their primary source of income is government pensions and other government support. Mrs.Freeman testified that she stopped working before the pandemic. Mr. McDonough had also stopped working for some years, and both had suffered serious medical issues, which had added significant costs over the past few years. Furthermore, Mr. McDonough was battling cancer and had been recently placed on medication to assist with extending his life.
52The Appellants also testified that while they currently owned their Property, they have a large mortgage on the house and the lender has backed out because they defaulted on their mortgage payments numerous times. They were at imminent risk of losing the Property due to financial distress.The Appellants submitted that based on this information, the Board should exercise its discretion to vary the SOA to zero dollars.
53The Respondent conceded that the Board should take into account the Appellant’s financial circumstances, but argued that this should be balanced with a recognition that the excessive costs on SOA #7 were the direct result of the Appellants’ choices to take in a large number of cats and allow some to remain unneutered or unspayed, thus leading to more kittens being born and the situation being exacaerbated further. As well, the Respondent argued that pursuing appeals of prior SOAs delayed the forfeiture of the animals and increased the costs of care.
54In response, the Appellants explained that while they started out with a few cats, they had to take in more animals after one family member passed away and another experienced a serious health event. Ultimately, due to difficult life circumstances and their desire to help their family’s animals, the number of cats multiplied and led to the situation that they were in when AWS was called.
55While I appreciate the Appellant’s testimony that they felt compelled to take in the cats, they did not explain why the cats had not been spayed or neutered to prevent their growing population. Furthermore, I note that in a prior Board decision (Freeman v CAWI, 2022 ONACRB 12, at para 252) the Appellants were strongly encouraged to surrender some cats to prevent the population from growing and further costs from accruing. There was no indication that the Appellants had mitigated the costs of caring for the cats, and this was factored into my decision.
56I find that despite various opportunities to mitigate the costs of care for the animals, for example by surrendering some of the cats while they continued their efforts for a select few, the Appellants did not take advantage of this and disregarded the Board’s prior rulings. The Appellants continued with appeals for all of the cats despite clear findings of distress and an inability to care for them. I find this to contradict the Appellant’s position that they had limited financial means because caring for over 80 cats would be a costly endeavour. This, coupled with the distress experienced by the cats, indicates that it would not be appropriate to revoke SOA #7 entirely.
57The Respondent also put forward previous decisions rendered by the Board (Freeman v CAWI 2023 ONACRB 55; 2023 ONACRB 51; 2023 ONACRB 65), which confirmed SOAs #1-5 despite the Appellants’ financial circumstances. However, I find these prior decisions are distinguishable as the Appellants had failed to provide any supporting evidence to substantiate their claims of financial hardship in those hearings.
58I agree with the Board’s reasoning in Jackson v. CAWI, 2021 ONACRB 4, and find it untenable that the Appellants would be able to pay SOA #7 as they simply do not have the financial means. The amount of $200,525.96 set out in this final SOA represents about four times the Appellant's combined annual income. The total of SOA #1-5 was roughly $73,461.89, which does not include numerous accounts that were rendered before 2023, and as a result of non-payment of said accounts the 83 cats in question were all forfeited.
59The Board in Jackson stated that:
[36] It is also helpful to consider the nature of the underlying financial obligation. The appellant’s only source of income, Ontario Works, comes from the government of Ontario. The debt is owed by the appellant to the government of Ontario. Repayment of the debt would amount, in effect, to a transfer from one pocket to the other pocket with no net gain to the government.
[37] The extremely tenuous prospect of repayment of the debt owed by the appellant, the onerous nature of this debt for the appellant, and the absence of any net gain to the government, to whom the debt is owed, also lead me to the conclusion that it is appropriate to vary both the Statement of Account and the Final Statement of Account to $0.
60The Board therefore exercises its power to vary SOA #7 based on the Appellants' limited ability to pay. While I agree with the Respondent’s argument that the devastating financial situation the Appellants are in was partly of their own doing, the Appellants have established that they face dire financial circumstances, a difficult medical situation, and are at risk of losing their Property.
61In light of these circumstances, it is not in keeping with the objectives of the PAWS Act, namely that accountability be promoted by imposing financial obligations that are not impossible for owners to pay, that the entire burden of this SOA be on the Appellants. I vary the SOA to ten percent of the original amount, being $20,052.59. This factors in the Appellants’ responsibility to mitigate the costs accruing by AWS in caring for their animals, but also acknowledges the extremely difficult financial situation that the Appellants find themselves in.
ORDER
62Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I vary the SOA and order that the costs of $20,052.59 be paid to the Minister of Finance.
Released: October 22, 2024
Ziba Heydarian, Vice-Chair
Group 1 (AWS1-40) removed May 10, 2023 – forfeited August 3, 2023 Group 2 (AWS51-59) removed June 15, 2023 – forfeited September 26, 2023 Group 3 (AWS60-74) removed June 21, 2023 – forfeited September 26, 2023 Group 4 (AWS75-78) removed August 2, 2023 – forfeited January 10, 2024 20 kittens born in care (AWS41-43) forfeited August 3, 2023 and (AWS46-50) forfeited September 26, 2023, and 10 kittens born in care (to AWS61 and 72) forfeited January 10, 2024.