Dwayne Zvaigzne v. Chief Animal Welfare Inspector, 2024 ONACRB 111

Animal Care Review Board

Date: 12/16/2024

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

Between:

Dwayne Zvaigzne Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

ADJUDICATORS: Susan Clarke, Managing Vice Chair Paul Stopciati, Member

For the Appellant: Dwayne Zvaigzne, self-represented For the Respondent: Tracy Lapping, Regional Supervisor, Animal Welfare Services; Yun (Alice) Liu, Counsel

Heard by Teleconference: October 21 and 22, 2024

BACKGROUND

1This proceeding concerns an appeal of a Decision to Keep, and an appeal of a Statement of Account issued to the Appellant, Dwayne Zvaigzne, who is the owner of a dog named Chance.

2On July 16, 2024, Animal Welfare Services (AWS) removed Chance from the Appellant’s care pursuant to s. 31(1)(c) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act). Removal occurred because the Appellant had not complied with an inspector’s Order requiring him to have a veterinarian examine Chance for overall body condition and general welfare with attention given to discharge from both eyes, and to have the nails trimmed. The Order also required documentation from the veterinarian to be provided to Inspector Jeremiah Hebert, and to follow any veterinarian instructions.

3On July 17, 2024, AWS issued a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care (DTK) to the Appellant informing him that they were keeping Chance in care pursuant to s. 31(6) of the PAWS Act, in order to provide ongoing medical care and supervision necessary to relieve the animal’s distress. AWS stated that a surgical procedure was required to correct a bilateral entropion, a condition in which the eyelid roll inwards and can cause permanent damage to the dog’s eye.

4On July 18, 2024, Inspector Hebert issued a Statement of Account (SOA #1) to the Appellant under s. 35 of the PAWS Act. The SOA was in the amount of $956.19 and covered veterinary care for Chance, as well as boarding costs for the period of July 16 to July 18, 2024. The Board notes that this covers up to and including the second day that Chance had been taken into the CAWI’s care.

5On August 7, 2024, the Appellant appealed the DTK and SOA #1 to the Animal Care and Review Board (Board).

6The Board scheduled a case conference for these two appeals for August 15, 2024; however, the Appellant did not attend this case conference, resulting in the Board issuing a Notice of Intention to Dismiss (NOID). The Appellant provided submissions to the Board on August 26, 2024, in which he advised that he could not join the case conference due to technical problems with his phone. The Board subsequently scheduled a second case conference for September 20, 2024.

7During the second case conference AWS informed the Board and the Appellant that a second SOA (SOA #2) had been served on the Appellant on September 5, 2024, and had not been appealed by the statutory deadline. The respondent further advised that if SOA #2 was not paid in full by September 26, 2024, the day of the case conference, the dog would be forfeited to the Crown pursuant to s. 35(4) of the PAWS Act. SOA #2 consisted of $1,244.92 for boarding costs from July 19 through August 19, 2024, and a follow-up veterinarian appointment. The Board notes that SOA #2 covers boarding starting the third day that Chance was in the CAWI’s care.

ISSUES IN DISPUTE

8The issues to be decided are:

1. Should the dog that was removed and is subject to the DTK issued on July 17, 2024, be returned to the Appellant (ACRB File Number 16117)?
2. Should SOA #1 issued on July 18, 2024, for $956.19 be confirmed, revoked, or varied (ACRB File Number 16121)?

RESULT

9For the reasons that follow, the Board

1. Dismisses the Appellant’s request for the return of his dog Chance.
2. SOA #1 issued on July 18, 2024, for $956.19 is varied to $160.00.

PRELIMINARY MATTER

The Board denies the Respondent’s Motion to Dismiss the appeal of the Decision to Keep

10On October 4, 2024, the Respondent submitted a Notice of Motion requesting that the Board dismiss appeal 16117/ACRB regarding the DTK because Chance had been forfeited to the Crown. The Respondent submitted that as a result of the forfeiture, the appeal was moot as the remedy requested by the Appellant, i.e., the return of the dog, was no longer available.

11The Board finds that while it cannot return the Appellant’s dog to him because it has been forfeited to the Crown, the appeal of the DTK is not moot.

12The Respondent submitted that as of October 4, 2024, the appellant had not appealed SOA #2, nor paid it within the statutory time frames. Pursuant to s. 35(4)(a) of the PAWS Act, Chance was forfeited to the Crown.

13The Board gave notice to the parties that the motion would be held in writing on October 18, 2024, and requested submissions from the Appellant; however, he did not file any.

14At the hearing of the DTK and SOA appeal, the Appellant was asked to confirm that he did not intend to file submissions on the motion, as the Board wished to ensure that he had an opportunity to provide his position. The Appellant submitted that he hadn’t opened the email with the Notice of Motion, or the Board’s email regarding the motion hearing, explaining that he was overwhelmed by the 5-6 emails he received a day.

15The Appellant acknowledged that the Respondent had advised him during the case conference that he was too late to appeal SOA #2, but that he believed that appealing the first SOA included any subsequent updates.

16In deciding whether to grant the Respondent’s motion, we considered that in a hearing of a DTK, three questions must be asked:

1. Was it necessary for the Respondent to keep the animal in its care to relieve the animal of distress, based on the information they had when the DTK was issued?
2. Did the Respondent have reasonable grounds to believe that the animal would be placed in distress if returned to the Appellant when the DTK was made?
3. Should the animal be returned to the Appellant?

17While the Board cannot give the Appellant the remedy he seeks, which is to order the return of his dog if he is successful on the DTK appeal, this does not make Appeal 16117/ACRB moot. The outcome of the first two questions set out above could influence the outcome of Appeal 16121/ACRB, which is for SOA #1. Specifically, SOA #1 includes boarding costs up to and including July 18, 2024, which is the second day that Chance was kept in the CAWI’s care. If the Board found, for example, that it wasn’t necessary for the Respondent to keep the animal in its care to relieve its distress, or that the animal would not have been placed in distress if returned to the Appellant, this would have reflected on the boarding charges in the SOA.

18For these reasons, the Board dismissed the Respondent’s motion to dismiss Appeal 16117/ACRB.

EVIDENCE AND ANALYSIS

19The Appellant appealed the DTK on the basis that he is capable of providing any required on-going medical treatment for Chance, and Chance is being negatively affected by being kept away from him, causing distress due to separation anxiety.

20The Appellant appealed the SOA on the basis that he has limited ability to pay.

It was Necessary for the Respondent to keep Chance in its Care

21The Board finds that it was necessary for the Respondent to keep Chance in its care for the reasons that follow.

22In an appeal of a DTK, the Respondent needs to establish the facts it relied on to establish that Chance was in distress, and that it was necessary to keep him in care to relieve his distress. The Respondent also needs to establish the facts it relied on to form reasonable grounds for its belief that Chance may be placed in distress if returned to the Appellant. Once it has, then the Appellant needs to show the Board that Chance would not be placed in distress if returned to him.

The Removal

23The Appellant did not appeal the dog’s removal, and for this reason the Board is not tasked with reviewing the removal. However, there is information regarding the removal that the Board determined was important because it affected the DTK, and subsequently the Board’s findings regarding that appeal and the appeal of SOA #1.

24Inspector Hebert testified that he attended the Appellant’s property on:

1. June 3, 2024, to conduct an inspection of the dog and noted that Chance’s eyes were both tearing. He took photographs of Chance’s eyes which he then sent to AWS veterinarian Dr. Bruce Robertson who advised that the dog should be examined by a veterinarian. He issued an Order to have Chance seen by a veterinarian by June 18th, and served it on the Appellant’s neighbour, who was caring for Chance while the Appellant was in hospital.
2. June 19th, and met with the Appellant, who confirmed that he was aware of the Order; however, the Appellant had been unable to take the dog to the veterinarian because he had been in the hospital. Inspector Hebert gave him a one-day extension to comply with the Order.
3. June 20th, and was advised by the Appellant that he had scheduled an appointment for July 15th with the SPCA Mobile Clinic and showed him an email from the clinic confirming this. He gave the Appellant an extension of time to comply with the Order, however he did not amend the Order.
4. July 16th, to conduct a compliance check. As Chance had still not been taken to a veterinarian, he removed the dog due to the Appellant’s failure to comply with the Order.

25Inspector Hebert testified that he contacted the SPCA Mobile Vet Clinic and was advised that the Appellant had an appointment for July 15th, but that he didn’t attend.

26Inspector Hebert testified that he took Chance to a veterinarian where he was diagnosed with bilateral entropion and scheduled for surgery on July 22, 2024.

27The Appellant disputed Inspector Hebert’s evidence, testifying that he:

1. Contacted the SPCA Mobile Vet Clinic (Mobile Vet) on June 18th and was told there was a clinic coming up but that they had no available appointments.
2. Checked other local veterinarians and was told they had no openings for 3 months.
3. Showed the inspector an email from the Mobile Vet saying they didn’t have any appointments available. He later found an email from the Mobile Vet in his Spam email folder, but that the header only said they were offering free vaccinations.

28Inspector Hebert testified that the Appellant explained to him on July 16th why he hadn’t attended the clinic, but he doesn’t recall the reason he gave, and he didn’t record it. He acknowledged that the Appellant told him he was giving Chance eye drops.

29The Board makes note that both parties agreed that access to veterinarians in Sudbury is challenging, and that for this reason AWS is willing to pay a substantial fee to a third party to find one when they need an animal to be attended to.

30The Board notes the discrepancy between the Appellant’s claim that he showed Inspector Hebert the initial email which he testified indicated there were no appointments available, and the Inspector’s claim that the email showed that an appointment was available. Neither person was able to substantiate their claim. The Board provided the Appellant additional time to submit the original email, but he failed to do so.

31Regardless, it appears that the Appellant failed to see what may have been a later email confirming an appointment. This may explain why Inspector Hebert was able to confirm that the Appellant had an appointment for July 15, 2024, but missed it.

32The Board notes that in both the case conference and the hearing it appears that the Appellant had difficulties with technology and that the process of appeals was challenging: he missed important emails – the SPCA mobile veterinary appointment, the respondent’s motion, and the ACRB’s request for submissions; and he missed appealing SOA #2 and didn’t appear at the hearing because he was confused by the Respondent’s request for an adjournment.

The DTK

33For the reasons that follow, the Board finds that Chance was in distress, and it was necessary that the CAWI keep him in care to relieve his distress, pursuant to s. 31(6) of the PAWS Act.

34Regional Supervisor Tracy Lapping, acting as the CAWI Delegate (Delegate Lapping) pursuant to s. 2(5) of the PAWS Act, testified that on July 16, 2024, Inspector Hebert submitted a “Written Request to Keep an Animal in Care” (Request) regarding the Appellant’s dog. The Request referenced s. 31(6) of the PAWS Act, and recommended she make a DTK because he believed that:

1. It was necessary to relieve the animal’s distress; and
2. There were reasonable grounds to believe that Chance could be placed in distress if returned to the Appellant.

35The Request included a short summary of Inspector Hebert’s attendances at the Appellant’s property, the Order, and Notice of Removal issued to the Appellant, and the Medical Report (redacted). The Request concluded by stating that “the Owner was provided numerous opportunities to bring Chance to a veterinarian for appropriate care and did not. Concern that on-going treatment for dog would not be complied with should Chance return to the residence”.

36The Board considered Delegate Lapping’s evidence that, based on the file she reviewed, her decision to keep the animal in care to relieve its distress was justified. The Board accepts that Delegate Lapping’s testimony that she did not believe that there were reasonable grounds to believe that Chance would be placed in distress if returned to the Appellant following his surgery.

37The Board accepts Delegate Lapping’s reasons documented on the DTK, which states that Chance “requires ongoing medical care and supervision in the form of multiple medications applied daily. Further, the subject dog has been prescribed a surgical procedure to remedy the condition in which the subject dog is suffering. The subject dog requires ongoing medical care as a result of failure to receive the minimum standards of care as outlined in Ontario Regulation 444-19”.

38The Board accepts Delegate Lapping’s testimony, that she based her decision on the information given to her by Inspector Hebert, and that she weighed the information with the risks – of the animal not receiving the necessary medications, and of the owner not showing up for surgery, and made her decision on that basis. She noted that she speaks in hypotheticals because she didn’t have any interaction with the Appellant.

39The Appellant disputed Delegate Lapping’s testimony, about his willingness to give Chance the medications prior to surgery, and to bring Chance in for the surgery, testifying firstly that he had been giving eye drops to Chance regularly to address his tearing eyes, and secondly that he had been willing to take him to the free clinic to comply with the Order and had made arrangements with friends for a ride there whenever an appointment became available.

40The Board considered the Appellant’s arguments regarding him providing eye drops to Chance and his willingness to take him to a veterinarian as evidence that he would continue to give eye drops, and that he would take him in for the surgery. However, it finds the CAWI’s consideration of the risks of him not taking Chance for the surgery to be more compelling.

41The Board considered the definition of distress in the PAWS Act, which states in s. 1(1) that distress is the state of being:

1. In need of proper care, water, food, or shelter,
2. Injured, sick, in pain or suffering, or
3. Abused or subject to undue physical or psychological hardship, privation or neglect.

42The Board also considered Ontario Regulation 444/19 Standards of Care and Administrative Requirements, made under the PAWS Act, which describes the basic standards of care for all animals. In s. 3(2) it states that every animal must be provided with adequate and appropriate medical attention.

43The Board accepts Dr. Robertson’s evidence, that based on a review of the medical report, Chance had a painful medical condition, and that surgery was urgently needed.

44In conclusion, the Board finds that Chance was in distress because he needed medical attention and the Appellant had not complied with the Order to have him seen by a veterinarian. The Board further finds that it was necessary for Delegate Lapping to issue a DTK for Chance because he was in distress, so that the CAWI could take measures to relieve his distress. Finally, the Board finds that it was necessary to keep Chance in care during the period between his veterinarian examination and his surgery, to ensure he received the necessary medication to alleviate his distress, and to ensure that he attended the scheduled surgery.

The Statement of Account (SOA #1)

45For the reasons that follow, the Board varies SOA #1 to $160.

46Section 35(1) of the PAWS Act states that the CAWI may from time to time serve a statement of account on the owner or custodian of an animal respecting any costs incurred in relation to the animal if they were incurred relating to:

1. An AWS inspector has taken steps to relieve the animal’s distress, which may include providing it with necessaries to relieve its distress under s. 33;
2. An AWS inspector has removed the animal from the place where it was under s. 31(1) or (2); or
3. The CAWI has kept the animal in its care under s. 31(6) or taken the animal into the CAWI’s care under s. 44(8).

47Section 35(2) describes a number of costs that are recoverable, and s. 35(3) describes that an owner/custodian is obligated to pay a SOA, unless otherwise ordered by the Animal Care Review Board.

48In this appeal of the SOA, the Respondent needs to satisfy the Board that actual and reasonable costs have been incurred. Once it has, then the Appellant needs to show the Board that the costs should be varied or revoked.

The charges on the SOA were for necessary care, but not all were reasonable

Veterinarian charges

49The Board finds the veterinarian charges were necessary (save for the error noted below) but does not find all of the charges reasonable. It varies the veterinarian charges from $844.32 to $605.66 including taxes, for the reasons that follow.

50SOA #1 indicates $844.32 for medical examination/treatment. The supporting invoice indicates charges for same-day priority care, medical examination, vaccination, canine kennel cough, and a number of drugs and ointment.

51The Respondent advised that it had discovered an error in SOA #1 and that one of the medicines should not have been included. It requested that the Board remove the charge for that. The Board calculated the SOA, if amended, would have totaled $668.77.

52Inspector Hebert testified that he did not choose the veterinary clinic, but that he used an “on call” veterinarian in the area, explaining that Sudbury has a shortage of veterinarians, and that any time he needs veterinary services he calls a third-party dispatch for an on-call veterinarian. He added that because of this, whenever an appointment is made, it is standard that an emergency fee is attached.

53Dr. Robertson testified that he reviewed the fees on SOA #1 and compared them to the Ontario Veterinary Medical Association’s 2024 Fee Guide (OVMA Fee Guide) for Small Animal Procedures. He advised that it is not a requirement that a veterinarian’s charges fall within the published range.

54Dr. Robertson testified that his role in the proceeding was to review the care provided for Chance, and to interpret the medical records to assess the procedures and determine whether the fees appear reasonable – adding that up to a 10% variance is reasonable.

55In Dr. Robertson’s view, the charges on the invoice were reasonable, although he noted the charges for:

1. Same Day/Priority Care $150.00 plus tax
2. Exam, medical $150.82 plus tax

remarking that the emergency fee is not in line with the OVMA Fee Guide, but that it is unknown if the clinic had to reschedule other appointments. He acknowledged that he hasn’t seen a lot of emergency fees charged, and it could be seen as unreasonable if it was based only because the call came that day. He added that in his opinion, any eye issue is an emergency.

56Dr. Robertson noted, and we accepted, that the charge of $52.62 for vaccinations was reasonable. We considered Dr. Robertson’s evidence that this it is typical to vaccinate animals when going into a shelter when the vaccination status is unknown.

57The Board finds that the examination, as well as the medications (except cyclosporin, included in error) were necessary to relieve Chance’s distress, and the vaccinations were necessary because Chance was going into boarding, and the population needed to be protected.

58The Board also reviewed the OVMA Fee Guide and notes that it recommends an examination/consultation fee of $144.50 and an examination/consultation fee (emergency) of $216.80. The OVMA Fee Guide did not have a separate charge for vaccinations.

59The Appellant submitted that it was unreasonable to charge more than 10% above the OVMA Fee Guide for Chance to be examined, based on Dr. Robertson’s testimony.

60The Board does not find that the examination and emergency fees were reasonable, and varies these charges from $300.82 to $216.80, reflecting the OVMA Fee Guide for a same day/priority care examination. The reason for this variance is that the OVMA Fee Guide recommends a 50% surcharge over a regular medical examination for an emergency examination on the same day. We find that it is unreasonable to charge what amounts to a 100% surcharge without explanation from the vendor.

61The Board notes that Dr. Robertson qualified his opinion, that he had not been made aware what steps the veterinarian may have had to take to fit in the emergency examination of Chance. However, it appears that by engaging with a 3rd party facilitator, veterinarians make appointments available as part of their willingness to be “on call”. The Board also notes that the Respondent did not call the vendor as its witness to support its fees, and in fact the vendor information was redacted from its invoice.

62In conclusion, the Board finds that the veterinarian charges should be varied to $605.66 including taxes.

Boarding charges

63For the reasons that follow, the Board finds the boarding charges were necessary and reasonable, confirming the amount of $111.87.

64SOA #1 indicates $111.87 in boarding charges for July 16, 17 and 18, 2024. The supporting invoice indicates the daily rate charged was $33, for total charges of $99 plus $12.87 in taxes.

65Inspector Hebert testified that he considers the boarding rate to be reasonable, and that boarding was provided with one of the AWS-approved local vendors. He explained that he chose the facility because it had available space at the time Chance was removed.

66While the Appellant argued that he could have taken care of Chance at home, this aspect of his evidence was addressed as part of the DTK appeal, where we found that Delegate Lapping’s reasons for keeping Chance in the CAWI’s care was justified. For that reason, this argument did not persuade us that the three days of boarding were not necessary or that they were unreasonable, and the Appellant did not make any other submissions challenging the daily rate charged.

67The Board finds that the boarding charges were necessary and reasonable, being well below the OVMA Fee Guide of $84.70 per day. For this reason, the Board confirms the boarding charges of $111.87.

68In conclusion, the Board varies the total charges on SOA #1 from $956.19 to $717.53 reflecting the veterinarian charges and the boarding charges.

The Appellant has Limited Ability to Pay

69For the reasons that follow, the Board finds that the Appellant has limited ability to pay the SOA. On that basis, it varies SOA #1 to $160.

70The Appellant testified regarding his personal circumstances, that his wife passed away a year ago and that he had been in the hospital recently. He further testified that he has disabilities and health conditions, and that Chance is his support dog.

71The Appellant testified that he has limited financial means, that he receives Ontario Disability Support Program payments of $1,200 per month, and has no other income save for a $200 per month survivor benefit after his wife passed away. He lives in a 2-bedroom house that is in his late wife’s name but needs $20,000 in legal fees to transfer the deed to his own name. In the meantime, he pays rent to the management company.

72The Appellant testified that he has the following expenses:

1. Rent - $550/month;
2. Hydro - $300/month;
3. Gas furnace - $120/month (last year);
4. Dog food for Chance - $120/month (before removed);
5. Eye drops for Chance - $30/month (before removed; however, he has this in stock and was not purchasing currently);
6. He doesn’t own a car;
7. He uses the food bank.

73The Appellant acknowledged that he was satisfied that Chance required surgery, and that he was willing to pay for it if a payment plan could be arranged, and that he could afford $40 per month. The Appellant provided no documentary evidence regarding his income and expenses.

74The Board has reviewed the financial position of the Appellant based on his stated income and expenses and notes that he appears to have approximately $430 per month remaining after expenses. However, we believe there are likely a number of expenses that were not included because the Appellant says he has $40 available after his monthly expenses. We calculate that the Appellant likely has closer to $160 per month left over after payment of basic expenses, considering the $40 the Appellant believes he has available, and the dog food he isn’t buying now. This leaves no money to pay the legal expenses to change the title on the house he lives in¹, and we have concerns regarding the stability of his housing situation. In the future, his accommodation costs could be significantly more if his housing situation changes.

75The Board reviewed Gibb v Chief Animal Welfare Inspector, 2024 ONACRB 84 and Loveys and Furnandiz v. Chief Animal Welfare Inspector, 2024 ONACRB 74. In these cases, the Board accepted oral testimony not supported by documentary evidence regarding the appellant’s financial circumstances, in one case because the oral testimony was credible and sufficient to establish a limited ability to pay. In the other case, the information provided about income and expenses was sufficiently detailed that the Board was able to make its findings. In the present case, we find the Appellant’s testimony credible and that he provided sufficient detail in his testimony to support his position that the SOA should be varied, based on his limited ability to pay. We find he has satisfied us that he has limited ability to pay the SOA and vary SOA #1 to $160 pursuant to its powers in s. 38(9) of the PAWS Act.

76The Board’s powers are limited under s. 38(9) of the PAWS Act, and we do not have the ability to order a payment plan.

CONCLUSION

77The Board finds that the Respondent had sufficient reason to keep Chance in its care while waiting for surgery.

78The Board varies SOA #1, removing the one cost included in error, and reducing the two charges for veterinary examination and emergency fee to the veterinary examination (emergency) fee established in the OVMA Fee Guide. The Board varies SOA #1 from $956.19 to $717.53 for this reason.

79Finally, the Board finds that the Appellant has limited financial resources to pay SOA #1. For this reason, the Board varies the amount payable for SOA #1 to $160.00.

ORDER

80The Board dismisses the appellant’s request for the return of his dog Chance.

81The Board varies SOA #1 issued on July 18, 2024, from $956.19 to $160.00.

Footnotes

1. 1See paragraph [71]