Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Dominic Ivor Khan
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Peter Simmons, Member
Appearances:
For the Appellant: Dominic Ivor Khan, Self-Represented
For the Respondent: Brandon James, Regional Supervisor, Animal Welfare Services (AWS); Jason Kirsh, Counsel
Heard By Videoconference: September 5 and 6, 2024
OVERVIEW
1On May 28, 2024, Animal Welfare Services (AWS) removed 21 horses from the property of Dominic Ivor Khan (appellant) and relocated them to a boarding facility. The horses were removed because a veterinarian had issued a certificate advising that removal was necessary to relieve the animals’ distress.1
2On July 18, 2024, AWS served on the appellant a Statement of Account (SOA) in the amount of $38,902.44 for transportation, boarding, veterinary and animal care costs related to the removed and relocated horses. The appellant appealed the SOA to the Animal Care Review Board (Board) on August 01, 2024.
3The Board held a case conference on August 20, 2024, and the matter proceeded to a videoconference hearing on September 5 and 6, 2024.
ISSUE IN DISPUTE
4The only issue before me is whether the SOA should be confirmed, revoked, or varied.
RESULT
5For the reasons that follow, I vary the SOA to $38,499.69.
ANALYSIS
6The SOA pertains to costs incurred by the Chief Animal Welfare Inspector (CAWI) (respondent) for the transport, board and care provided to the appellant’s twenty-one horses (7 yearlings, 4 colts, 9 mares and 1 stallion) that were removed from the appellant’s farm on May 28, 2024, and which subsequently became the subject of the respondent’s Decision to Keep (DTK).
7The CAWI removed the twenty-one horses because they were in distress and a veterinarian had advised that they be removed to relieve their distress. The CAWI had concluded that removal was urgent and that the horses distress had been caused by a combination of contributing issues relating to standards of care including that several of the horses had escaped the appellant’s fenced property around May 27, 2024, and were found outside the paddock.
8Section 35(1) of the Provincial Animal Welfare Services Act, 2019 (PAWS Act) states that the CAWI may serve on an animal owner or custodian a statement of account respecting costs incurred where an AWS inspector has taken steps to relieve the animal’s distress by providing it with necessaries, where an AWS inspector has removed the animal, or when the CAWI has kept the animal in its care or taken them into their care.
9In this matter, the onus is on the appellant to show that the SOA should be revoked or varied. The respondent, however, 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.2
The transportation costs to relocate the horses were reasonable
10The appellant argued that the respondent unnecessarily relocated his horses to a boarding facility well beyond the immediate region. He further argued that there were facilities closer to his farm that the respondent could have taken his horses to, and in failing to relocate the horses to a closer farm they were transported approximately 100kms away resulting in excessive and unnecessary transport/trailer costs.
11AWS Inspector Jennifer Lee testified that no local facilities were available on the day the horses were removed adding that the appellant made no mention to AWS inspectors of any local farms or facilities where the horses could be boarded. Inspector Lee also testified that the horses were transported to a boarding facility familiar to AWS and that the boarding facility was immediately able to provide the care and boarding to the horses without delay.
12The respondent explained that three trailers were required due to the number of horses (21), and the total trailer costs of $2,552.00 was for two round trips for each trailer along with associated layover and boarding time. They added that the boarding facility operated out of two locations approximately 11 kms apart, which is reflected in a difference in the trailering charge on the detailed supporting invoices to the SOA provided in the respondent’s evidence.
13When the appellant was asked at the hearing about boarding facilities or farms familiar to him that are local or closer to his farm that could have been used for temporary boarding, he was unable to provide names or addresses.
14I find that the respondent incurred reasonable costs to relocate the horses to a facility and that these costs reflect what is permitted under s.35(2) of the PAWS Act, specifically, the costs incurred in removing the animals or taking them into care.
15I find further that the respondent took reasonable steps in a time of urgency to transport the horses who were in distress to a known and available boarding facility within 100kms. The appellant did not submit any persuasive evidence to indicate that a boarding facility closer to his farm was immediately available to the respondent on the day the horses were removed.
16In his closing submissions, the appellant said the respondent acted in bad faith by choosing a boarding facility far away from his farm, and in doing so they did not act in the public interest because they could have sourced a facility closer to his and failing to do resulted in additional costs. The appellant referenced case law with his submission, that along with his argument I did not find to be persuasive.
The indoor boarding costs are reasonable
17The appellant disputes the boarding costs of $31,110.00, arguing firstly that the indoor method of boarding where his horses were relocated differs significantly from his, which is outdoors, and is unnecessarily more expensive. He said his horses are not, and do not need to be, kept indoors adding that the additional features provided through indoor boarding such as stall cleaning, individual handling, and bed checks are both unfamiliar to his horses and not what they require.
18The appellant also argued that separating the horses into stalls is stressful on them, adding that isolating the single stallion, specifically, from his fellow colts resulted in an unnecessary and unjustifiable additional $5/day for the one horse.
19The respondent said that the boarding facilities where the appellant’s horses were taken to does not outdoor board. The horses are kept indoors overnight and are turned-out each morning to a pasture where they remain for much of the day. The respondent added that the practice of separating the stallion from others is a decision of the boarding facility that serves to protect other horses from potential injury out of hierarchy disputes within the group, and to mitigate the risk of impregnating mares all while ensuring the safety of the staff.
20The appellant’s argument concerning the boarding rates of $40/day, $45/day, and $50/day is that they are excessive, at the higher end of industry ranges, and are not justified. He testified his daily costs are $8-10/day, which he illustrated through an income/expense budget spreadsheet showing costs and a revenue stream through room leases. Accordingly, he said he should not have to pay for services that are included in the higher rates because his horses are boarded outdoors, and do not, for example, have stalls to be cleaned or beds to be checked. He said the same argument applies to food related costs as much of their food and nutrition is “free” because his horses graze in a natural pasture.
21The respondent submitted that boarding facilities set their own rates, and, in the case of this facility, the rates include security, socializing the horses, health checks, supplements, feed costs, free hay, stall cleaning, bedding, and individual horse record administration. The respondent added that the applied rate depends on the needs and level of care required by the horse. Specifically, the basic rate of $40/day applies to the seven yearlings, $45/day applies to the four colts and nine mares who required care, and the $50/day rate applies to the one stallion who requires individual turn-out.
22Inspector Lee testified that the rates charged by the boarding facility are consistent with other facilities in the area (south-west Ontario) who offer similar care. The respondent added that rates in this SOA are comparable to those referenced in other Board decisions where it has found them not to be unreasonable.3
23I was not persuaded by the appellant’s testimony and arguments that the boarding rates are excessive and should be closer to his own estimated daily rate. Through his own admission the appellant did not research outdoor boarding rates and he did not provide any credible indoor or outdoor boarding cost comparators to support his arguments that the rates are unreasonably high. The type and style of boarding at his farm is quite different that that provided at the boarding facility, and it is no surprise that the cost is higher where additional services and care, such as stall cleaning, grooming, individual turn-out, and bedding are included.
Professional veterinary services were reasonable and appropriate
24The appellant argued that much of the $4,477.69 for veterinary services is unnecessary because his horses were removed not for medical concerns, but that they were in distress and, therefore, medically related costs beyond those incurred during the initial intake should not be charged to him. He added that his horses were healthy, and no specialized care was required.
25The appellant also argued that AWS knew he did not breed his horses and therefore pregnancy checks, for example, were not necessary. He also argued that the parasite test was unnecessary because his horses do not mix with others. He added that the test fee was high and since the first test yielded low results that a second parasite test is, therefore, unnecessary and he should not be billed for it. He did not dispute the cost for tetanus vaccination.
26The respondent argued that the horses had not received routine care for some time and previously issued orders from May 23, 2024, were only partially completed by the appellant. They further argued that the fecal sampling, deworming medicine, tetanus for certain horses due to lacerations caused by the property fencing, and wellness checks of the herd were therefore required. They clarified that a second parasite test was not included in this SOA.
27The appellant submitted no persuasive evidence as to why the veterinary services were unnecessary. I heard no evidence from the appellant that he communicated his preferences, specific needs, or treatments for his horses, and there is no indication that he was prevented from enquiring about what services would be provided and/or administered to his horses.
28I find that there is no compelling argument from the appellant that the veterinary services were not required, excessive or unreasonable. The appellant offered no reliable evidence, such as comparable veterinary evidence, that veterinary services were unnecessary, or that costs were too high.
29I find further the respondent provided detailed invoices with individualized veterinarian notations pertaining to each horse that support the veterinary costs noted in the SOA.
The farrier services (trimming) are reduced to $360.00
30The SOA included costs of $559.35 for farrier services to trim the hooves of 9 horses. The appellant acknowledged that his horses were overdue for a hoof trim. He said he had planned for farrier service in response to a previous AWS order however, AWS removed his horses before he could comply. His primary argument around the farrier costs is that he pays less than the $62.15 per trim reflected in the SOA. During the hearing, the respondent indicated their willingness to accept a $40 per horse fee for farrier services. The effect of this is a reduction in farrier services (trimming) from $559.35 to $360.00.
31The appellant also argued that the cost for a report prepared by the farrier after the hooves were trimmed that was included in the SOA was unnecessary. He submitted that it is not standard in the industry, and he should not have to pay for its undertaking and preparation. The cost of the report is $203.40.
32The respondent argued that the farrier’s report is an assessment of hoof condition from horse intake and was both necessary and prudent given the overdue status of hoof trimming and the issues around the standards of care. They added that the report revealed that ten horses had thrush, and 3 had abscesses in their hooves.
33I find the farrier report to be a necessary baseline for the respondent to assess the hoof health of the horses who were in their care as of May 28, 2024. The appellant had not recently engaged a farrier, leaving the respondent uncertain as to the condition of the hooves. It is not unreasonable, therefore, for the respondent to have an assessment performed to ascertain the state of the horse’s hooves to determine the level of care or treatment that may be required which, in this case revealed that several horses required attention.
34The SOA as it relates to farrier services is reduced to $360.00 as consented to by the respondent.
The SOA period of coverage from May 28 to June 30, 2024, inclusive is confirmed
35The appellant submitted that the SOA should cover only the period up to June 12, 2024. He said the DTK was served on June 12, 2024, and because it was under appeal, he should not be expected to pay for the period of June 13-30, 2024, arguing the latter period may be affected by the appeal decision.
36The appellant’s appeal of the DTK was decided by the Board on October 1, 2024. In that decision, the Board denied the return of the horses to the appellant.
37Section 35 of the PAWS Act allows for the CAWI to serve a statement of account for any costs incurred in relation to animals to, among other things, providing care for an animal that the CAWI has kept in care.4 The CAWI incurred costs to care for each horse after June 12, 2024, and which did not cease as of the date of service of the DTK. I find that the SOA should cover the costs incurred from May 28 to June 30, 2024, inclusive.
CONCLUSION
38The appellant did not meet his burden to prove why the SOA should be varied or revoked. The respondent however, met their initial evidentiary burden and proved, on a balance of probabilities, that the SOA reflected the actual costs of transport, boarding, veterinary and animal care and that these costs were reasonable.
39The appellant’s horses have been in the CAWI’s care since May 28, 2024. There is nothing in the PAWS Act that prohibits the respondent from issuing an SOA at a time of their choosing or for periods during which they have incurred costs they intend to recover.
40I was provided no persuasive evidence that any rate or service provided to the appellant’s horses was excessive or unnecessary, or that the costs were unreasonable.
ORDER
41Pursuant to the powers of the Board under s.38(9) of the PAWS Act, I order the costs of $38,499.69 to be paid by the appellant to the Minister of Finance.
Released: October 31, 2024
______________________
Peter Simmons, Member
Footnotes
- The Notice of Removal (NOR) was served on him on the appellant on May 30, 2024. He appealed to the Board on June 12, 2024. On July 30, 2024 the Board confirmed the removal, and the appeal was dismissed. On June 12, 2024, the Chief Animal Welfare Inspector (CAWI) issued a Notice of Decision to Keep Animals(s) in the CAWI’s Care on the appellant. The appellant’s appeal of the DTK was heard by the Board on July 31- August 9, 2024. The Board confirmed the DTK on October 1, 2024, and the horses will not be returned to the appellant.
- See Windrift v. CAWI, 2023 ONSC 4501, paragraph 76
- Nicholls v CAWI 2023 ONACRB 32
- See S. 35(1) and S.35(2)