Kathryn Everitt v. Chief Animal Welfare Inspector, 2024 ONACRB 112

Tribunals Ontario

Animal Care Review Board

Date: 2024-12-06

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

Between:

Kathryn Everitt Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Raymond Ramdayal, Member

Appearances:

For the Appellant: Kathryn Everitt, self-represented For the Respondent: Bailey Wintermute, Regional Supervisor, Animal Welfare Services; Jason Kirsh, Counsel

Heard by videoconference: October 16, 2024

OVERVIEW

1The appellant, Kathryn Everitt, is the owner of 47 animals in Ajax, Ontario. The animals include 10 cats, 19 rats, 9 birds, 4 degus, 2 hedgehogs, a guinea pig, a chinchilla and a tortoise.

2On May 28, 2024, Animal Welfare Services (AWS) received a call from central dispatch due to concerns about a hoarding situation and animal neglect. The complainant reported that there were feces all over the floor of the home and no litter boxes provided for the several cats present. The complainant also advised that the owner does not reside at the home and the animals are unattended. The odour and observable conditions from outside prompted the complainant to make the complaint. They also recommended anyone attending the home to wear a hazmat suit prior to entering.

3On June 3, 2024, Inspector T. Jackson, who also appeared as a witness at the hearing, attended the premises to investigate the complaint. At the time of her visit, she received no answer at the door. Inspector Jackson did note a very strong odour consistent with what was described by the complainant. A notice was posted on the door for the owner to contact AWS.

4Inspector Jackson did not receive a return call from the owner based on the notice she posted on June 3, 2024. She decided to re-visit the premises on June 5, 2024, at which time she observed the notice, which she left days before, still attached to the door. During this visit, Inspector Jackson was able to observe a kitten through a large window at the front of the house. She noted that the kitten appeared bright, alert and responsive but she was unable to determine its body condition. Inspector Jackson posted a second notice requesting the owner to contact AWS.

5On the same day, while off duty, Inspector Jackson received a phone call and voice message from the appellant. Inspector Jackson called back the following day at which time no one answered. She left a voice message. The appellant eventually called back and discussed the situation at her residence, the number of animals at the premises, and denied the allegation that they were neglected in any way. The appellant admitted that she was struggling with hoarding and advised Inspector Jackson that she had another legal proceeding currently before the courts with her condominium board related to the condition of the home.

6AWS arranged an inspection on June 13, 2024, to determine compliance with the Provincial Animal Welfare Services Act, 2019 (“PAWS Act”) and to ensure the animals were not in a state of distress. This date was eventually changed at the request of the appellant to June 18, 2024.

7On that date, Inspector Jackson attended the appellant’s home in the company of Inspector N. Trost. Both noted a strong smell of cat urine/ammonia upon walking onto the property and approaching the front door.

8Once the door was opened by the appellant, the inspectors observed a substantial amount of clutter, the smell of garbage, urine and feces. They also described a decaying smell and a significant number of flies throughout the premises.

9The inspection on June 18, 2024, resulted in AWS issuing an order to the appellant, requiring that she:

I. Provide the animals with daily access to adequate and appropriate food and water.

II. Provide the animals with adequate and appropriate sanitary conditions, free from garbage, urine and feces, toxic/harmful/substances, etc.

10The orders were issued with a compliance deadline of June 25, 2024.

11On June 19, 2024, Inspector Trost returned to the premises to follow up, specifically on the order to provide all animals with adequate and appropriate food and water. Inspector Trost determined that the appellant had complied with this specific direction and issued a Revocation of Order for this particular condition. However, the appellant had not complied with the balance of the order.

12On June 25, 2024, the appellant sent photos to Inspector Jackson trying to demonstrate that she had complied with the orders but needed additional time to make other changes.

13Due to logistical reasons, AWS could not reinspect the appellant’s premises until July 2, 2024. At that time, Inspector Jackson, in the company of Senior Investigator S. Collins, served a warrant to enter and inspect, in the presence of two police constables from Durham Regional Police, pursuant to section 24(4) and section 24(5) of the PAWS Act. The warrant was served due to Inspector Jackson’s growing concerns that the appellant would not allow AWS to enter and inspect on consent alone and the fact that the appellant had requested numerous date changes and extensions.

14Their inspection revealed additional concerns and orders which were sent to the appellant via email on July 5, 2024. On July 16, 2024, Inspector Jackson attended the premises, accompanied by Regional Supervisor B. James and Senor Investigator Collins to execute a distress warrant and conduct a compliance inspection. Despite the appellant’s efforts to once again stall and prevent the inspection, AWS attended to conduct their inspection in the presence of the appellant. On that day, they began the removal of the animals from inside the residence for non-compliance of issued orders to alleviate distress.

15Subsequent to the numerous visits and actions taken above, AWS incurred costs for the care and medical treatment of the animals. Two statements of account (SOAs) were issued to the appellant.

16The first SOA was served on the appellant on July 30, 2024, in relation to the treatment and diagnostics required to alleviate the distress found within the removed animals. This SOA was eventually paid in full by the appellant.

17The second SOA, which is the subject of this appeal, was served on the appellant on August 26, 2024. It involved the costs associated with providing care/necessaries for 10 cats of varying age and gender. These costs totalled $16,271.50 and are outlined in various invoices for boarding and veterinary care of the cats.

Preliminary Issue

18At the onset of the hearing, AWS advised that since the time disclosure was provided to the appellant and filed with the Board, there was one discrepancy which came to light regarding a cat known as Tessa. An invoice from Royal York Animal Hospital contained veterinary charges which AWS is not seeking payment for. As such, they requested that the SOA be varied to lower the total amount by $1,304.69. This results in a new SOA amount of $14,966.81.

19The appellant had no objection to the varying of the SOA to the lesser amount.

ISSUE

20The issue to be decided is:

I. Should the SOA dated August 26, 2024, revised to the amount of $14,966.81, be confirmed, revoked, or varied?

GROUNDS OF APPEAL

21The appellant’s grounds of appeal are that they are seeking a reduction in the amount owning due to financial hardship and limited ability to pay.

22The appellant also takes issues with whether some of the medical care/testing was needed, and whether the costs associated with that care were reasonable.

RESULT

23For the reasons that follow, I find that the SOA issued on August 26, 2024, with an updated amount of $14,966.81, related to the removal of animals from the appellant’s premises is reasonable and will not be reduced or varied.

POWERS OF THE BOARD AND THE LAW

24Section 38(9) of the PAWS Act gives this Board the authority, after a hearing, to:

I. Confirm, revoke or vary a statement of account served under s. 35(1).

25Section 38(2) of the PAWS Act allows for an appeal of a statement of account, which is served under 35(1) of the Act.

26The Board has the authority to hear evidence in the order it finds suitable.

27The burden is on the appellant to persuade the Board that the SOA should be varied. However, the respondent has the evidence regarding the reasonableness of the SOA and since the appellant is arguing that the sum is not reasonable, it is open to the Board to hear from the respondent first to establish the reasonableness of the SOA.

EVIDENCE AND ANALYSIS

Respondent’s Evidence

28Inspector Jackson testified about her first contact with the appellant in June 2024 and the circumstances which led to the removal of the animals. The unsanitary conditions, state of animal enclosures and living conditions, and condition of animals are not in dispute.

29Inspector Jackson testified that during her investigation, the appellant attempted to conceal the number of animals residing at the home. Visual inspection was complicated by the fact that the appellant was hoarding excess materials at the home. As a result, one of the things concealed in the home was a deceased animal.

30It was clear to me based on the evidence that the animals were removed for their health, safety and welfare. The care and boarding of those animals, including medical treatment, came at a cost which accumulated over time. The costs are outlined in various invoices which were submitted as documentary evidence for the hearing.

31The respondent also called Dr. B. Robertson as a witness who provided medical opinion and guidance on the interpretation and description of the invoices and condition of the animals. Dr. Robertson testified that the fees charged and reflected in the SOA were reasonable and, due to discounting, were substantially below market value. He went on to testify that Bay City Animal provided discounts or free services that would have likely added over $10,000 to the cost of care during the period of care for the animals.

32Dr. Robertson testified that while he did not examine the animals personally, his review of their medical records indicates that the procedures, testing, treatments, prescription diets and medications were provided in good faith based on the results of veterinary examinations and represented a logical diagnostic and therapeutic strategy to managing the animals.

33Both Inspector Jackson and Dr. Robertson testified that the boarding facilities used for housing the cats charged amounts which were within the standard range of boarding costs for that area of the city. Each of the boarding facilities had been used by AWS in the past.

34I placed significant weight on Dr. Robertson’s testimony that the medical treatments provided were necessary and within reason given his professional assessment. Had AWS not become involved in this investigation, there was nothing to suggest that the appellant would have sought medical treatment for the animals. Moreover, I am not convinced that the appellant had a reliable understanding of the number of animals present in her home and their health status at any given time, given the fact that she did not reside there consistently. In addition, the appellant, for the most part, merely asserted that the costs contained in the SOA were too high but did not elaborate or provide compelling evidence to support her claim.

APPELLANT’S EVIDENCE

35The appellant stated that she chose to file this appeal of the SOA for two reasons:

I. The total amount is very large and difficult for her to pay.

II. The different invoices associated with the SOA appear to include things that she would not have to pay for if she took the animals to her own veterinarian.

36The appellant testified that she was going through a very difficult period of her life which involves her struggle with mental health and the loss of her father during the pandemic. She testified that all of this contributed to a decline in her living conditions and that of the animals that resided at the home. She admitted to not being present consistently at the home due the fact it became so cluttered.

37During the hearing, the appellant showed a genuine care for the animals and a concern for their happiness and welfare in the end. She acknowledged that there was still remedial work needed at her premises. She also described steps she has taken to improve her personal health status.

38The appellant was forthcoming in her testimony stating that she came to the realization that she had taken on more animals than she could care for. She stated that she could barely take care of herself at the time. She describes the day she lost her animals to AWS as the second worst day of her life after losing her father. It has always been her hope to place the animals in safe and loving homes.

39The appellant states that for the past 10 years, she has been involved in animal rescue, predominantly focussed on cats. Because she operates as a charity, she has always had to consider costs such as veterinary care, maintenance of the animals, food, litter, etc. As a result, she questions some of the charges that accrued while in AWS’s care and some of the items represented on the invoices.

40The appellant argued that each cat had a comprehensive animal exam conducted. It is her position that this should include an ear-cleaning procedure, however, she notes that the veterinarian charged separately for this.

41The appellant also claims that there was a repetition of tests on the cats. For example, one cat, known as Felix, had two intestinal parasite scans. Another cat, Poppy, had two FIV/FELV snap tests and Tessa also had two viral tests. She questions the fact that these tests came back inconclusive and required repeating. During the respondent’s testimony, the rationale for those tests to be conducted were explained to the satisfaction of the Board including the fact that they were necessary based on the number of animals residing in the premises and that the attending veterinarian may have considered there to be a stronger need to test based on the suspicion of the disease being present in the animal population. The respondent also stated it is not uncommon for different labs to perform different tests depending on availability.

42The appellant went on to testify that some cats were given three medications which essentially do the same thing and are effective at treating skin conditions. There were also other issues regarding blood tests which she feels she should not have been charged for. The appellant offered no evidence to support her position on the above. The appellant is recognized as someone having experience with animal rescue, however, there was no medical evidence offered to contradict the medical testimony provided by the respondent’s consulting veterinarian.

43The appellant disagrees with the largest part of these invoices which relates to boarding costs. She was concerned that there were occasions that some cats were boarded by a vet clinic. This is generally more expensive than a typical boarding facility. She also raised speculation for some services on the invoice which were provided up to a 50% discount and others where the discount was much less.

44The above claims by the appellant were not supported by any formal documentation, proof through professional opinion such as that provided by the respondent.

45In the end, the appellant testified that she is working very hard to comply with the orders of AWS but she will likely not be able to re-pay the SOA.

46The appellant called her mother, Ms. C. Everitt, as a witness who described that her daughter has endured a difficult period spanning 4 years. This coincides with the loss of her father. She states that for a long time, the appellant forbade anyone from attending the home. Ms. C. Everitt explained that she began to grow concerned about her daughter’s mental health and welfare when she would drive past the house and see that her hoarding tendencies would spill out onto the porch.

47Ms. C. Everitt is hoping that the Board can show some compassion to her daughter. She testified that her daughter has gone through a difficult time but she is confident she will emerge well.

Should the Statement of Account related to the appellant’s cats be confirmed, revoked or varied?

48The first question before the Board is whether the costs captured in the SOA were reasonable. I find the respondent has proven on a balance of probabilities that the SOA was reasonable. I find that the respondent has satisfied the Board with a combination of the documentary evidence they submitted and the testimony of both Inspector Jackson and Dr. Robertson. Both witnesses presented as credible and gave reliable and compelling evidence on the state of the home, the conditions the animals were found in, and the necessity for thorough medical examination. The costs of the medical intervention were not only reasonable, but as described by Dr. Robertson, below market value in some cases.

49I am satisfied that the costs were reasonable on their face. The onus then lies with the appellant to persuade the Board that the SOA should be varied. I did not receive any convincing testimony or documentary evidence from the appellant to refute the invoices. I did receive testimony where in some cases it was the appellant’s belief that a test was not necessary or that a more expensive test was chosen, however, there was nothing that substantiated her claims.

50Furthermore, the testimony revealed that the cost for boarding was consistent and similar with other facilities. The appellant lacked substantial proof that would convince me otherwise. A standard and consistently applied amount for the cost of boarding has not been established, likely due to the various factors which influence the cost for care. In this case, the animals were being boarded in and around the City of Toronto which would likely carry a higher cost than a rural setting. This was confirmed through Dr. Robertson’s testimony.

51After considering the evidence provided by the parties, I find that the SOA presented by the respondent was reasonable. Dr. Robertson was able to provide direct evidence that the cats required the necessary treatment. I was further convinced by the testimony of Inspector Jackson that the SOA was properly served and in accordance with law.

52I did consider the appellant’s position that the SOA was too high for her to re-pay. I did not find her arguments compelling or persuasive. It was also revealed during the hearing that she is gainfully employed in a profession which pays well. The appellant did not provide any documentary evidence to support her claim that re-paying the SOA would result in financial hardship. It was also revealed that the appellant is involved in another legal matter with her condo board. She confirmed that the dispute is regarding the level of cleaning in the unit. She is not at risk of losing her home.

53I confirm the SOA presented by the respondent and find the appellant is responsible for paying this amount.

ORDER

54For the reasons above, the Board orders as follows:

I. The appeal of the Statement of Account dated August 26, 2024, is dismissed and the appellant pay the confirmed costs of $14,966.81 to the Minister of Finance.