Dominic Ivor Khan v. Chief Animal Welfare Inspector, 2024 ONACRB 114

Decision and Order

Date: 2024-12-19

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

Adjudicator: Peter Simmons, Member

Appearances:

For the Appellant: Domenic Ivor Khan, Self-Represented

For the Respondent: Eloise Jones, Regional Supervisor, Animal Welfare Services (AWS); Danielle Meuleman, Counsel

Heard By Videoconference: October 30, 2024

OVERVIEW

1This matter involves an appeal of a Statement of Account (SOA #2) served on Domenic Ivor Kahn (appellant) on September 18, 2024, by Animal Welfare Services (AWS) in the amount of $68,284.85.

2For context, on May 28, 2024, AWS removed twenty-one horses from the property of Domenic Ivor Khan (appellant) and relocated them to a boarding facility. The horses were removed because AWS had determined that the horses were in distress and had concerns for the horses’ safety.¹ A veterinarian had issued a certificate to AWS advising that removal of the horses was necessary to relieve their distress.

3On June 13, 2024, AWS issued a Decision to Keep (DTK) for all the removed horses. On July 18, 2024, AWS issued a first Statement of Account (SOA#1) to the appellant. The appellant appealed both the DTK and SOA#1 to the Animal Care Review Board (Board).

4The Board released its decision concerning the DTK on October 1, 2024, and the SOA#1 on October 31, 2024. Prior to these decisions being released, AWS issued the second Statement of Account (SOA#2) to the appellant in the amount of $68,284.85, for costs relating to boarding, veterinary care, and animal care for the twenty-one horses for the period of July 1 to August 30, 2024, inclusive.

5The appellant appealed SOA#2 to the Board on October 2, 2024. A case conference was held on October 10, 2024.The matter proceeded to a videoconference hearing on October 30, 2024.

ISSUE IN DISPUTE

6The only issue before me is whether SOA#2 should be confirmed, revoked, or varied.

RESULT

7For the reasons that follow, I confirm SOA#2 in the amount of $68,284.85.

ANALYSIS

8Section 35(1) of the Provincial Animal Welfare Services Act, 2019 (PAWS Act) states that the Chief Animal Welfare Inspector (CAWI)(respondent) 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 which may include providing it with necessaries, where an AWS inspector has removed the animal, or when the CAWI has kept the animal in its care.

9The SOA#2 pertains to costs incurred by the CAWI for veterinary care, animal care, and boarding provided to the appellant’s twenty-one horses (7 yearlings, 4 colts, 9 mares and 1 stallion) between July 1, 2024, and August 30, 2024, inclusive.

10In this matter, the onus is on the appellant to show that SOA#2 should be revoked or varied; however, the respondent has an initial evidentiary burden to prove, on a balance of probabilities, that SOA#2 reflects the actual costs of necessaries for the horses and that these costs were reasonable.²

11The SOA#2 shows cost groupings for veterinary care, animal care³, and boarding, each of which are dealt with separately in this decision.

The veterinary costs are reasonable and uncontested

12The SOA#2 includes costs totaling $9,938.25 for veterinary care.

13AWS Inspector Jennifer Lee (Inspector Lee) provided a detailed explanation of the veterinary care costs incurred, including fees, vaccinations, assessments, and examinations, and how these fees and costs compared to those found in the Ontario Veterinary Medical Association 2024 Suggested Fee Guide for Large Animal Procedures (Fee Guide).⁴ This guide is used by veterinarians in the industry and is a generally accepted credible resource.

14Inspector Lee testified that, overall, the fees charged by the veterinarian are below the ranges noted in the “large animal–equines” section of the Fee Guide. She highlighted the following fees to illustrate the differences between the charges on the invoices and those in the Fee Guide:

Procedure	OVMA Fee Guide	SOA#2
Mobile fee/Call fee	$103.00-115.00	$68.96
After hours (6pm-9pm or 9pm-7am) call	$150.00-196.00	$54.50 (5pm-10pm and Saturday)
After hours/weekend surcharge	$150.00	$54.50
Routine float (teeth)	$153.90	$75.45
Vaccination(s)	Flu, encephalitis, Rhino, herpes, Tetanus, West Nile Total $365 (approx.) if billed separately	$101.00 (Vetera Gold)5
Ultrasound	$211.90	$74.75

15I asked Inspector Lee to explain the surcharges on the invoices. She said it is common for after hours and weekend calls to include a premium charge because the service is outside normal business hours. Premiums are shown in the Fee Guide and Inspector Lee said those shown on the invoices are less than Fee Guide rate.⁶

16The appellant indicated during the hearing and in his closing submissions that he is not disputing or appealing the veterinary care portion of the SOA#2.

17I find that the veterinary services totaling $9,938.25 to be reasonable. The rates and charges are properly supported by detailed invoices from the veterinarian, and the fees and costs are less than what is recommended in the relevant sections of the generally accepted Fee Guide.

The animal care costs are reasonable and uncontested

18The respondent explained the animal care costs, which are exclusively farrier services, and spoke to a report prepared by the farrier (Invictus Farrier Services) that detailed that their findings, assessment, and care provided.

19The appellant stated during the hearing that he is not disputing or appealing the animal care costs.

20I find that the animal care costs of $1,616.60 are reasonable. They are properly referenced and detailed in the supporting invoices from the boarding facility, who arranged the farrier services to ascertain the condition of the horses’ hooves to assist in determining appropriate care.⁷

The boarding costs are reasonable and are disputed by the appellant

21The appellant disputes the boarding costs of $56,730. His primary argument concerning boarding is that he is being billed for indoor instead of outdoor boarding, and that the rate for the indoor boarding is excessive and “exorbitant.”

The respondent’s choice of boarding facility

22The appellant testified that he outdoor boards his horses, who live, feed, and sleep outdoors at his farm. He stated that not only are his horses unfamiliar with indoor boarding, but the extra services that they now receive, such as stall cleaning and bedding, are unreasonable and unjustified costs because he believes them to be unnecessary and has never provided them to his horses, and there is no valid reason for them to be provided now.

23The appellant also argued that AWS never gave him options on boarding type when the horses were removed. He added that the horses could have been relocated to closer and less expensive facilities and there is no reason for them to continue to remain at the boarding facility where they are currently located.

24The appellant did his own internet searches of other boarding facilities in and around the Greater Toronto Area (GTA) and up to 125km from his farm, which offer indoor and/or outdoor board. He submitted evidence of text message screen shots between himself and several of the farm/boarding facility owners that he had contacted and spoken with.

25I asked the appellant if he had visited any of the facilities he had researched or contacted, and whether he had contacted AWS after the issuance of the DTK to discuss horse relocation. In both cases he confirmed he had not.

26Under cross examination, the appellant acknowledged that he did not ask any of the boarding facilities he spoke with about capacity and whether any of the facilities could take all twenty-one horses but did say that most indicated that they had space for at least “a few.”

27The respondent explained that the selected boarding facility does not outdoor board, and that it was chosen because it was known to AWS and had immediate capacity for the twenty-one horses on short notice, which was not the case for any local facility. They added that the boarding facility chosen by AWS could also segregate the horses, which AWS believed was necessary because of the unknown health status of the horses, and the unpredictable nature of the stallion who posed a potential risk to the other horses and boarding facility staff.

28I find the respondent’s choice of boarding facility was reasoned and rational. The horses were removed because they were in distress, and their safety and security were not assured due to an unsecure paddock at their home farm. AWS was familiar with the boarding facility they selected, having previously inspected it, and it had the capacity to accommodate all the horses immediately in a suitable, safe, and protected environment.

The indoor boarding charges and rates

29The appellant argued that the daily rate he was charged for is indoor boarding and is unreasonable and exorbitant, as it resulted in a monthly cost of $1200 to $1500. He argued that a monthly rate of $300 for outdoor board and $600 for indoor boarding is more reasonable. His evidence is derived from the same internet searches he used to support the indoor/outdoor board argument. He cited several facilities to illustrate the range of pricing for monthly indoor and outdoor boarding rates including:⁸

Location	Boarding type	Monthly rate
Cayuga (Haldimand)	Outdoor	$425/mos.
King Township (GTA)	Indoor Outdoor	$950/mos. $550-700/mos.
Hamilton (GTA)	Outdoor Indoor	$400/mos. $700-750/mos.
Wellandport (Niagara Region)	Indoor	$475/mos.
Sebringville (Perth County)	Outdoor	$500/mos.
Hillsburgh/Oakville (GTA)	Outdoor	$500/mos.
Town of Erin (GTA)	Outdoor	$500/month
Wellesley Township (Waterloo)	Outdoor	$475/mos.
Arthur (Perth)	Outdoor/hybrid	$350/mos.

30The appellant said that while there are variations in the monthly rate because different boarders provide different services, their rates are much lower than what is in SOA#2.

31Under cross examination, the appellant said he did not inquire about daily rates when discussing details with the facility owners he contacted.

32The respondent argued that the daily rates detailed in SOA#2 differ depending on the horses’ needs and that certain horses required extra care due to their body condition, and food/caloric demands. They explained that only one horse, the stallion, is charged at $50/day whereas the others are charged at $40/day or $45/day accordingly.

33The respondent submitted that when it comes to reasonableness, which is what the Board is determining in this matter, horse boarding cannot be viewed in isolation of the other charges in SOA#2, specifically, veterinary and animal care. They referenced the veterinary costs as an example of how reasonable those service charges are when compared to the ranges in the Fee Guide, and that the appellant is not appealing them.

34The respondent further argued that the horses being boarded at the same facility is cost effective resulting in both consistency in care and no variation in charges. By extension, they submit, there are no variations in veterinary callout fees, for example, because the horses are located together.

35I was not persuaded by the respondent’s argument that costs should not be viewed in isolation. The reasonableness of one cost bundle does not necessarily mean that others are also reasonable. The appellant’s decision not to dispute the veterinary or animal care costs does not necessarily mean that he, or the Board, must accept them as reasonable, hence the importance of assessing them individually and collectively.

36I was not persuaded by the appellant’s evidence and arguments that his horses are unnecessarily boarded indoors versus outdoors.

37The appellant may perceive the boarding rates to be high, but that in and of itself does not make them unreasonable considering what is included through the rate. A high daily rate does not necessarily translate into one that is unreasonable.

38The appellant’s converting of the respondent’s daily rates into monthly rates for comparison purposes did not bring any persuasive weight to his argument. I also note he had not made an application for the return of his horses under s. 38(4) of the PAWS Act as a possible means to mitigate boarding costs.

39I find, therefore, that the boarding costs of $56,580.00 are reasonable.

Appellant’s request for a payment plan

40In his closing submissions, the appellant requested that if the Board decides that he owe any amount from SOA#2, that he be allowed to pay it through a form of payment plan, specifically, $1000/month until it is paid.

41The Board does not have authority to order any payment plans. The appellant is free to speak with the respondent about written agreements and repayment options.⁹

CONCLUSION

42The appellant did not prove why SOA#2 and more specifically, the boarding costs, should be varied or revoked. The respondent however, met their evidentiary burden and proved on a balance of probabilities that SOA#2 reflected the actual costs of necessaries.

43Having considered all the relevant evidence, I find that the boarding costs, veterinary care costs, and animal care costs are justified and reasonable.

ORDER

44Pursuant to the powers of the Board under s.38(9) of the PAWS Act, I order the costs of $68,284.85 be paid by the appellant to the Minister of Finance.

Released: December 19, 2024

______________________

Peter Simmons, Member

Footnotes

1. 1The removal of the horses was due, in part, to the condition of the appellant’s paddock/farm fencing that was in disrepair. See Khan v. CAWI, 2024 ONACRB 94
2. 2See Windrift v. CAWI, 2023 ONSC 4501, paragraph 76
3. 3Animal Care in this matter is farrier services exclusively.
4. 42024 Ontario Suggested Fee Guide for Large Animal Procedures - Equine Call Fees and Examinations, pg.6
5. 5Vetera Gold XP – combination vaccine for flu, encephalitis, Rhino, herpes, Tetanus, West Nile
6. 6See Table in para [14] of this Decision.
7. 7Farrier services were provided to horses at different stages after the initial intake.
8. 8The appellant’s evidence included screen shots of boarding facilities with advertised locations and monthly rates, and his verbal testimony of other facilities he had spoken to, e.g. a location in Fort Erie.
9. 9See Sections 35(4)and (5) and 38(9) of the PAWS Act