Tessa Vivian v. Chief Animal Welfare Inspector, 2024 ONACRB 105

Tribunals Ontario / Tribunaux décisionnels Ontario

Animal Care Review Board / Commission d’étude des soins aux animaux

Date: 2024-11-13

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

Between:

Tessa Vivian Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Alisa Chaplick, Member

Appearances:

For the Appellant: Tessa Vivian, Self-Represented Marsha Crosier, Housing First for Youth Worker, Durham Youth Services, Appellant’s Support Person

For the Respondent: Victoria Crocker, Regional Supervisor, Central Region, Animal Welfare Services Yun (Alice) Liu, Counsel

Heard by videoconference: November 4, 2024

OVERVIEW

1Tessa Vivian (the “Appellant”) is the owner of a bully mixed breed, blue merle juvenile dog, named Cash.

2Cash was removed from the Appellant’s residence on August 22, 2024 and has been kept in the care of the Chief Animal Welfare Inspector (the “Respondent”).

3The Appellant was issued a Statement of Account (“SOA”) by Animal Welfare Services dated September 17, 2024 in the amount of $792.54.

4Included in the evidence was an invoice from the Kawartha Veterinary Emergency Clinic (“Invoice”) for veterinary care for Cash from August 22 - August 23, 2024. This Invoice included the costs of an examination of Cash, blood collection and processing, a complete blood count and medical boarding for 24 hours. The costs on the Invoice totaled $792.54, as also reflected on the SOA.

5In a Notice of Appeal dated September 25, 2024, the Appellant appealed the SOA to the Animal Care Review Board (“Board”). She seeks to have the SOA revoked or to receive a “significant decrease in [the] amount owing.” The Appellant advised that her reasons for appeal are that she is a 19 year old mother of two children, with limited funds. The Appellant stated that she cannot afford to pay the amount owing on the SOA.

6The Respondent seeks to have the SOA confirmed.

7The matter proceeded to a videoconference hearing.

ISSUE

8Should the SOA dated September 17, 2024, be confirmed, revoked, or varied?

RESULT

9For the reasons that follow, I vary the SOA to the amount of $396.27. I find that the expenses in the SOA were reasonable in the circumstances. However, pursuant to s. 38(9)3.1 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act) I reduce the amount by 50 percent based on the Appellant’s limited ability to pay.

PRELIMINARY ISSUES

Late Book of Authorities

10At the beginning of the hearing, counsel for the Respondent asked if she could submit a Book of Authorities on that day. She stated that she took carriage of this file one business day before the hearing and wished to refer to some authorities in her closing submissions.

11The Appellant did not object to this, so long as she and her support person, discussed below, were given sufficient time to review the Book of Authorities and given the opportunity to make submissions.

12Given that this request was on consent and given that the Respondent’s counsel was asked to act on behalf of the Respondent one business day before the hearing, I allowed the Respondent to submit a Book of Authorities on the day of the hearing. I gave the Appellant and her support person time to review the Book of Authorities and the Appellant’s support person confirmed that there was sufficient time to review the materials.

Appellant’s Support Person

13The Appellant requested the ability to bring her support person to the hearing as an accommodation. The Appellant’s support person was Marsha Crosier, a Housing First for Youth Worker with Durham Youth Services.

14This request was previously raised at a case conference on October 8, 2024. The Case Conference Report and Order (“CCRO”) indicated that the Appellant was seeking an accommodation and she was instructed to notify the Board in writing concerning the specific request to have her support person, Marsha Crosier, attend the hearing. The CCRO indicated that Ms. Crosier attended the case conference but did not provide legal advice.

15The Appellant did not notify the Board in writing of her request to have Ms. Crosier attend the hearing, as directed by the CCRO. Nevertheless, she asked that Ms. Crosier be allowed to attend at the start of the hearing. The Respondent consented, despite the Appellant not notifying the Board in writing that Ms. Crosier would be attending the hearing as a support person.

16At the hearing, the Appellant made a request for Ms. Crosier to be able to assist her with functions such as reviewing materials, questioning witnesses and making the closing statement. The Appellant stated that this was necessary given a health condition and her difficulty understanding and proceeding on her own. The Appellant and Ms. Crosier explained that at the case conference, Ms. Crosier assisted with similar functions such as reviewing materials, and Ms. Crosier spoke on the Appellant’s behalf. The Respondent objected to Ms. Crosier assisting with these functions at the hearing because there was no Declaration of Representative filed and no advanced notice to the Respondent.

17After considering both parties’ positions, I allowed Ms. Crosier to act as the Appellant’s support person including to assist the Appellant with functions such as reviewing materials, questioning witnesses and making the closing statement. I note that the Appellant having Ms. Crosier present as a support person at the hearing was on consent. With respect to the heightened functions such as reviewing materials, questioning witnesses and making the closing statement, I accepted the Appellant’s submissions about her health and her need for Ms. Crosier to have an expanded role in order for the Appellant to be able to participate in the hearing in a meaningful way. In making this decision, I also took into account the Appellant’s age of 19 years old. I found that not allowing Ms. Crosier to participate in the requested manner, noted above, would cause significant prejudice to the Appellant. I also note that the definition of a “support person” and the support person’s functions in this context are vague, the CCRO did not restrict Ms. Crosier’s functions at the hearing and the support person had a similar role at the case conference.

18With respect to the Respondent’s position that they did not receive advanced notice that Ms. Crosier would be taking on heightened responsibilities, I considered the Appellant’s submissions that Ms. Crosier took on a similar role at the case conference. As noted above, I find that the prejudice to the Appellant of not allowing Ms. Crosier to take on the responsibilities requested by the Appellant at the hearing would have been significant. As a result, I allowed Ms. Crosier to act as the Appellant’s support person with heightened responsibilities such as reviewing materials, questioning witnesses and making the closing statement. Ms. Crosier did not provide legal advice.

ANALYSIS

19Pursuant to Section 35(1) of the PAWS Act, an animal owner is liable for costs incurred by the Chief Animal Welfare Inspector in relation to the animal in circumstances where:

1. an inspector has taken steps to relieve the animal’s distress by providing it with necessaries;
2. an inspector has removed the animal under s. 31(1) or (2); or
3. the Chief Animal Welfare inspector has kept the animal in care or taken the animal into care.

20Section 35(2) of the PAWS Act explains that costs may include, among other things:

1. costs incurred to relieve the animal’s distress;
2. costs incurred in removing the animal or taking it into care;
3. costs of providing care for an animal that has been removed;
4. costs of providing care for an animal that has been kept or taken into care.

21While the burden of proof in this appeal is on the Appellant 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.¹

22To that end, Inspector Kat MacDonald testified for the Respondent. She recounted the events that led to AWS’ removal of Cash, how the need for veterinary care arose, and what the veterinary care consisted of.

23Inspector MacDonald’s evidence was that on July 28, 2024, she attended the property where the Appellant and Cash resided (the “Property”).² Inspector MacDonald stated that she observed that Cash was outside in the backyard and that there was trash in the yard, no apparent clean water and no shelter for Cash. Inspector MacDonald also had concerns that Cash’s body condition was too lean. Cash was deemed to be in distress.

24Inspector MacDonald issued an Order to the Appellant dated July 29, 2024 to have Cash examined by a veterinarian with special attention to body condition, including weight. The Order required the Appellant to provide Inspector MacDonald with documentation from the veterinarian outlining examination findings and treatment recommendations, as well as a statement of treatments the Appellant has carried out according to the veterinarian’s recommendations. Furthermore, the Order required the Appellant to clean up the trash in the yard and make it safe, sanitary and free from objects that may harm or cause a dog to be in distress. In addition, the Order required the Appellant to provide potable water outside and to provide an adequate doghouse outside. The completion date for the Order was August 9, 2024.

25The Respondent’s evidence was that Inspector MacDonald re-attended at the Property on August 22, 2024 and found no apparent attempt to comply with the Order. On the same day, Inspector MacDonald issued a Notice of Removal of Animal(s) (“NOR”) for Cash and proceeded to remove Cash on that day. The NOR was issued pursuant to section 31(1)(c) of the PAWS Act, based on the fact that an Order was made and had not been complied with.

26Victoria Crocker, Regional Supervisor and Delegate of the Chief Animal Welfare Inspector, issued a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care, dated August 27, 2024 (“Decision to Keep”), to the Appellant regarding Cash. The Decision to Keep states that the owner was unable to provide Cash with basic care necessary including food, water, shelter, medical attention and a clean living environment. The Decision to Keep states that Cash has a thin body condition which requires refeeding and deworming. He will require medical monitoring to ensure his condition improves. The Decision to Keep states that the owner had significant time to comply with the Order and was unable to make any improvements. The Respondent’s evidence was that Cash is still in the Respondent’s custody and that the total costs related to Cash are still unknown.

27As noted, included in the evidence was an Invoice for veterinary care for Cash from August 22 - August 23, 2024. This Invoice included the costs of an examination of Cash, blood collection and processing, a complete blood count and medical boarding for 24 hours. The costs on the Invoice totaled $792.54, as also reflected on the SOA.

28I accept Inspector MacDonald’s evidence and find that the $792.54 in costs set out in the SOA reflected the actual costs of necessaries provided, as evidenced by the Invoice issued in that same amount. I also find that the type of services provided were necessary to keep Cash healthy and safe and the expenses related to that care fell within s. 35(2) of the PAWS Act including, “[c]osts of providing care for an animal that has been removed” pursuant to s. 35(2)3 of the PAWS Act.

29Having found that the Respondent met the initial evidentiary burden, the onus then shifts to the Appellant to prove, on a balance of probabilities, that the SOA should be revoked or varied.

30The Appellant did not dispute the costs in the SOA as supported by the accompanying Invoice. In addition, the Appellant stated that she understood and accepted the removal of Cash. However, she sought to have the SOA revoked or reduced based on financial hardship and inability to pay and she testified about her financial circumstances. In addition, included in the evidence was an email from Ms. Crosier to the Appellant and Danielle Meuleman, the Respondent’s former counsel in this matter, with a copy to Regional Supervisor Crocker, dated October 22, 2024, regarding the Appellant’s financial position. The email attached the Appellant’s Notice of Assessment for the 2023 taxation year.

31The Notice of Assessment for the 2023 taxation year stated that the Appellant’s total income was $1,080, her total federal non-refundable tax credits were $4,500 and her total Ontario non-refundable tax credits were $1,107.

32In the Appellant’s oral testimony, she stated that she receives approximately $1,919 per month from a government support program and that she also receives Child Tax Benefits.

33With respect to financial obligations, Ms. Crosier’s October 22, 2024 email indicated that the Appellant has two young children. The Appellant pays car insurance, a phone bill, a monthly amount towards a loan repayment, a minimum monthly payment for a credit card, and gas money to get to and from her children’s appointments. The Appellant also contributes to groceries in her living environment and is trying to save money to move herself and her children into a different living environment. The email indicates that the Appellant is the main provider for her children.

34Furthermore, the Appellant’s testimony, as well as the October 22, 2024 email from Ms. Crosier, indicated that the Appellant was recently involved in a car accident which resulted in her having to sign over her car and borrow money from a family member to obtain another car.

35I find the evidence regarding the Appellant’s limited financial means to be reliable and accept that the Appellant’s financial circumstances make it difficult for her to pay the full amount of the SOA. The expenses that the Appellant reported were reasonable and her income is extremely low.

36I also considered the Respondent’s submission that while they do not deny that the Appellant is facing financial difficulties and is in a sympathetic situation, animal owners need to take accountability and this accountability is achieved, in part, by owners paying SOAs. The Respondent provided caselaw in which the Board considered lack of ability to pay and still confirmed the statement of account (Miller v. Chief Animal Welfare Inspector, 2024 ONACRB 91 and Lawson v. Chief Animal Welfare Inspector, 2023 ONACRB 61). These cases are not binding on me and I have made my decision based on the facts of the case before me.

37I have considered both parties’ evidence and submissions. I agree that the Appellant is facing financial difficulties but also agree that pet owners have to take accountability for their responsibilities as pet owners.

38Based on the Appellant’s own evidence, I find that she has some ability to pay the SOA. As a result, I decline to reduce the SOA to zero and instead reduce it by 50 percent. This 50 percent reduction balances the importance of accountability of pet owners and the need for the Respondent to recoup some of the costs reflected in the SOA, while taking into account the Appellant’s financial circumstances.

ORDER

39Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I vary the SOA and order that the Appellant pay $396.27 to the Minister of Finance.

Footnotes

1. 1Windrift Adventures Inc. v Chief Animal Welfare Inspector, 2023 ONSC 4501.
2. 2Inspector MacDonald testified that she also attended the Property on July 11, 2024 and deemed Cash to be in distress at that time. However, no orders from that attendance at the Property were entered into evidence at the hearing.