Barbara Miller v. Chief Animal Welfare Inspector, 2024 CanLII 59782

Date: 2024-06-28

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

Between:

Barbara Miller Appellant

and

Chief Animal Welfare Inspector Respondent

AMENDED DECISION AND ORDER

Adjudicator: Peter Simmons, Member

Appearances:

For the Appellant: Barbara Miller, Self-represented

For the Respondent: Eloise Jones, Regional Supervisor, Animal Welfare Services (AWS); Bailey Wintermute, Senior Investigator, AWS Anita Schenk, Inspector, AWS; Adrien Iafrate, Counsel

Heard By Videoconference: May 13, 2024

OVERVIEW

1Barbara Miller, the Appellant, appealed a Statement of Account (SOA) in the amount of $7,491.28 to the Animal Care Review Board (Board) on April 12, 2024.

2The Appellant became the owner of a German shepherd-type dog, named Shya in late 2023. The Appellant’s daughter, Jessica Watkins (Ms. Watkins) and son, Alexander Watkins (Mr. Watkins) reside with her, and are also custodians of Shya.

3On January 4, 2024, Animal Welfare Services (AWS) Inspector Anita Schenk (Inspector Schenk) attended the Appellant’s residence to investigate a complaint concerning Shya and a perceived injured leg. She issued a Compliance Order (Order), on the Appellant, pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019 S.O. 2019, c. 13 (PAWS Act), requiring that Shya be seen by a veterinarian. The Appellant had until January 9, 2024, to comply with the Order.¹

4On January 30, 2024, Inspector Schenk executed an Inspection Warrant² on the Appellant because attempts by AWS on January 8, 10 and 11, 2024, to follow-up on compliance of the Order were unsuccessful. AWS Senior Investigator Bailey Wintermute (Senior Investigator Wintermute), who was also present, verbally extended the compliance date of the Order to February 1, 2024.

5On February 1, 2024, Inspector Schenk served a Notice of Removal (NOR) pursuant to s. 31(2) of the PAWS Act on the Appellant and removed Shya because she had not complied with the Order.³

6Following the removal on February 1, 2024, Shya was taken to Birchmount Animal Hospital (Birchmount) for examination to diagnose the injured leg. Senior Investigator Wintermute was subsequently advised that Shya’s leg was broken, and a surgery consult was recommended.

7On February 7, 2024, after an independent veterinary consult AWS veterinarian Dr. Kyle Goldie (Dr. Goldie) concluded that amputation of Shya’s leg was the most humane course of action for Shya.⁴

8On February 8, 2024, Inspector Schenk served the Appellant a Notice of Decision of the Chief Animal Welfare Inspector (CAWI) to Keep an Animal in the CAWI’s Care (DTK) pursuant to s. 31(6)(a) and (b) of the PAWS Act.⁵

9On February 12, 2024, Shya underwent surgery, and her leg was amputated. She was boarded at Guelph Humane Society until she was returned to the Appellant on March 8, 2024.

10On April 12, 2024, Inspector Schenck served a Statement of Account (SOA) pursuant to s. 35(1) of the PAWS Act in the amount of $7,491.28 for boarding and veterinary costs between February 2, 2024, and March 8, 2024, on the Appellant.⁶

11On April 12, 2024, the Appellant appealed the SOA to the Board.

12The Board held a case conference on April 24, 2024, and the matter proceeded to a videoconference hearing on May 13, 2024.

ISSUE IN DISPUTE

13The issue in dispute in this matter is:

1. Should the SOA issued April 12, 2024, in the amount of $7,491.28 be confirmed, revoked, or varied?

RESULT

13For the reasons that follow, I:

1. Confirm the SOA of April 12, 2024, in the amount of $7,491.28.

PRELIMINARY MATTERS

Appellant’s non-compliance with Board Rule 9.4

14I confirmed with the Appellant that she was the owner of Shya, and that she, Mr. Watkins, and Ms. Watkins, live together in a basement apartment, and collectively provide care to Shya. I also note that early in the hearing the Appellant expressed discomfort in articulating herself. On consent, Ms. Watkins acted on behalf of the Appellant.

15The Respondent submitted that the Appellant had not complied with Board Rule 9.4 by not providing disclosure or a witness list⁷. The Respondent acknowledged however, that the Appellant had provided bank statements for separate resolution discussions prior to the appeal.

16At a break in the hearing, I allowed the Appellant to prepare and submit a summary of what her witnesses would be testifying to, which was agreeable to the Respondent.

EVIDENCE AND ANALYSIS

17The onus in this appeal 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.⁸

18Section 35(1) of the PAWS Act states that AWS may serve on an animal owner or custodian a statement of account respecting costs incurred by the Chief Animal Welfare Inspector (CAWI) 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 CAWI has kept the animal in its care under s. 31(6) or taken the animal into care under s. 44(8).

19Section 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; and

5. costs of taking any prescribed action in relation to an animal.

20Section 35 (3) of the PAWS Act says that an owner or custodian who receives a statement of account under subsection (1) is, subject to an order made under subsection 38 (9), liable for the amount specified in the statement.

Shya was in distress and removal from the Appellant’s care was necessary

21The Respondent’s evidence shows that on January 4, 2024, Brampton Animal Services captured Shya, who was roaming free, and took her to Northtown Veterinary Clinic (Northtown) because she had a noticeable limp. After an examination, the dog was released back to the Appellant with a treatment plan and pain medication. A complaint about “a dog [Shya] in distress” was called in to the Ontario Animal Protection Call Centre who relayed the details to AWS Dispatch.⁹

22On January 4, 2024, Inspector Schenk served an Order on the Appellant in person requiring that Shya be seen by a veterinarian by January 9, 2024, and for the Appellant to provide AWS with documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken by the veterinarian. Inspector Schenk said she also discussed financial resources potentially available to the Appellant, i.e., the Farley Foundation, and Progressive Animal Welfare Services because the Appellant said she was unable to get veterinary help due to financial constraints.¹⁰

23On January 8, 2024, Inspector Schenk’s call to the Appellant to confirm that Shya was booked for a veterinarian appointment was unanswered. Her calls and visits to the Appellant’s home on January 10 and 11, 2024, were also unanswered.

24On January 30, 2024, Inspector Schenk executed an Inspection Warrant on the Appellant in person and asked if Shya had seen a veterinarian. The Appellant confirmed that Shya had not been to a veterinarian, and they were waiting for an “inheritance” to arrive which would help with the fees.

25Senior Investigator Wintermute, who was also present on January 30, 2024, asked if the inheritance would be enough to cover costs for the appointment and treatment. The Appellant said she “…hoped it would.” Senior Investigator Wintermute observed Ms. Watkins calling to make a veterinary appointment for February 1, 2024, and she verbally extended the compliance date for the Order to February 1, 2024, to allow sufficient time to comply.

26On February 1, 2024, Inspector Schenk confirmed with the veterinary clinic by telephone that the Appellant canceled Shya’s scheduled appointment earlier that day because they were not feeling well. The Appellant did not reschedule the appointment. Inspector Schenk served the NOR on the Appellant in person and removed Shya because of noncompliance of the Order.¹¹ Shya was immediately taken to Birchmount Animal Hospital (Birchmount).

27In the afternoon of February 1, 2024, Shya was x-rayed at Birchmount where a fracture was diagnosed with an improperly healed femur and fragments in the joint capsule. Dr. Crystal Tse, of Birchmount, recommended a surgery consult.

Recommended surgery for Shya

28On February 2, 2024, Shya was discharged from Birchmount with prescription medication and moved to Guelph Humane Society (GHS) where she was boarded until February 5, 2024, the day of her scheduled surgery consult.

29On February 5, 2024, Shya was taken to Mississauga-Oakville Veterinary Emergency Hospital (MOVEH) for a surgery consult. Dr. Laura Nutt (Dr. Nutt) provided two treatment options for Shya’s leg – amputation or repair.¹² She testified that repairing a broken femur that has begun to heal incorrectly and where muscle has been inactive, as it had with Shya, presents several potentially high-risk post-surgery problems including muscle atrophy that can lead to amputation otherwise inflicting unnecessary and prolonged distress on the animal.

30On February 7, 2024, AWS veterinarian Dr. Goldie relayed to Senior Investigator Wintermute that amputation was the most humane course of action for Shya. Later that day, Inspector Schenk served a DTK on the Appellant in person.¹³ She testified that the DTK was partly influenced by the need for medical intervention to relieve Shya’s distress which she perceived to be compromised by the Appellant’s financial constraints.¹⁴ AWS Regional Supervisor Christopher Chew approved the surgery quote from MOVEH.

31On February 12, 2024, Shya’s leg was amputated, and on February 13, 2024, she was transported to GHS for boarding and recovery until her re-check at MOVEH on February 28, 2024. During this period, the referring veterinarian from MOVEH imposed instructions for minimum movement for Shya, and four prescribed medications (Gabapentin, Cephalexin, Meloxicam, and Trazadone).

32On February 28, 2024, Dr. Nutt performed a post-surgery assessment on Shya and recommended a recovery program with continued and discretionary use of the previously prescribed drugs, and a gradual return to exercise after one week. Shya was returned to GHS for continued boarding.

33On March 8, 2024, Shya was discharged from GHS and returned to the Appellant because she was no longer in distress and had recovered sufficiently from surgery.

Should the SOA be confirmed, revoked, or varied?

34I confirm the SOA in the amount of $7,491.28 for the reasons that follow.

35I find the SOA was properly served on the Appellant in accordance with s. 35(1) of the PAWS Act that permits the Respondent to serve on the owner or custodian of an animal a statement of account respecting any costs incurred in relation to the animal if the costs were incurred in relation to an animal that has been removed by AWS and kept in the Respondent’s care.

36I also find that s.35(3) of the PAWS Act, 2019 states that an animal’s owner or custodian is liable for the amount set out in a statement of account.

37The Appellant said they were told about surgery and related costs for Shya “after the fact.” She said that it was only after Shya had been taken into AWS care that she became aware that surgery was a possibility and involved significant costs.

38The Respondent’s evidence indicates that before Shya’s amputation the possibility of surgery and related costs was discussed between the Appellant and Inspector Schenk. On January 30, 2034, Ms. Jenkins told Inspector Schenk that Northtown had provided her with a quote of $8,000 for a procedure including amputation.¹⁵ On the same day, Senior Investigator Wintermute discussed costs and affordability for examination and treatment with the Appellant, prior to a scheduled veterinary visit at the Animal Care Clinic on February 1, 2024.¹⁶

39The Appellant argued that Shya could have been returned immediately after surgery, which would have helped limit boarding costs. She said they were capable of looking after Shya and could administer the prescription medications. She submitted no persuasive evidence that they had, or could, properly administer multiple medications correctly, or in accordance with veterinarian’s directions or that they had, or could, limit Shya’s movement and activity to ensure proper recovery.

40Dr. Nutt testified that he had recommended a gradual return to exercise post-surgery for Shya because the Appellant lived in a basement apartment with stairs, and proper and supervised post-surgery recovery could not be assured.

41The Respondent’s evidence shows that the prescription stemming from Shya’s first examination on January 4, 2024, was not properly administered by the Appellant. What is more, through the Appellant’s own admission they stopped the prescribed pain medication for Shya without consulting a veterinarian.¹⁷

42The Respondent submitted that AWS returned Shya to the Appellant on March 8, 2024, to limit further boarding costs, which was the day she was released following her recovery period.

43The Respondent’s veterinary witnesses, Drs. Tse and Nutt, discussed their respective involvement with Shya including the examinations, performed procedures, prescribed medications, and wellness care. They testified individually and walked through in detail the invoices for the services and treatment provided at their clinics.

44The SOA is supported by detailed invoices for services and treatment provided at Birchmount (1 invoice), MOVEH (2 invoices), and GHS (2 invoices), along with the detailed medical records and history showing the care and treatment provided to Shya between February 2, 2024, and March 8, 2024.¹⁸

The breakdown of invoices and services is as follows:

Service Provider and Date Provided

Service Provided

Discounts/No Charge

Total

Birchmount 1/2/24 to 2/2/24

Exam/consultation, x-rays, vaccinations, medications

Overnight boarding and vaccine consult – N/C

$ 1,169.84

MOVEH 2/5/24 2/12/24 to 2/13/24

Surgery consult Surgery

Discount (5%) ($61.38) ($770.73)

$ 277.44 $ 3,720.00

GHS 2/2/24 to 2/14/24 2/15/24 to 3/8/24

Boarding/Medication Admin Boarding/ Medication Admin

$ 764.50 $ 1,559.50

45The Respondent argued that surgery was necessary to relieve Shya’s distress and that amputation was the most humane choice. The Respondent provided details of the timeline and rationale for taking Shya into their care, and the decision process that led to amputation over repair, including the original examination with x-rays performed by Dr. Tse and the surgery consult performed by Dr. Nutt. The Respondent also explained the various costs associated with the examinations, surgery, medications, and boarding and confirmed that discussions and decisions about Shya involved AWS veterinarian Dr. Kyle Goldie, Regional Supervisor Christopher Chew, Senior Manager Mike Dempster, Senior Investigator Wintermute, and Inspector Schenk at various junctures.

46I asked Dr. Nutt about the MOVEH invoices and why they showed discounts. She explained that AWS referrals result in unsolicited discounts to some services. She explained that veterinarian offices often offer a discount program of some kind, however it typically does not include prescribed medications.

47I asked Inspector Schenk if she had reviewed the invoices from the service providers, i.e., MOVEH and Birchmount, and compared the fees or rates in the invoices against the Ontario Veterinary Medical Association fee guide (Fee Guide).¹⁹ She replied that she had reviewed the invoices and believed the costs to be reasonable.

The Appellant’s Ability to pay

48The Appellant argued financial hardship, and that funds to pay the SOA are unavailable because neither she nor her children are employed. The Appellant added she has a hearing disability, and Mr. Watkins has been without work since 2019 and has limited prospects.

49The Appellant said that her and her children’s individual monthly incomes come from government programs and assistance including Ontario Works for Ms. Miller, GST rebates for Mr. Watkins, and a child tax benefit for Ms. Watkins. The total is approximately $1500 per month and is used to pay monthly rent of $1400, and food at $300 for a month. She added that they also make use of a food bank. The bank statements for 2024 provided by the Appellant show them as being in an overdraft situation each month.²⁰

50The Respondent argued that the SOA reflects actual costs of necessaries provided and that they are reasonable.

51The Respondent also argued the Appellant has the ability to pay the SOA because of the combined household incomes.

52When the Respondent asked the Appellant about the inheritance as a potential source of funds to pay for the SOA, the Appellant said that it would be used to pay for food, including Shya’s, and for other household expenses. She provided no details about the amount of the inheritance, or that it had been received.²¹

53The Respondent submitted that they had previously offered payment plan options of $100-$200 per month to the Appellant to satisfy the SOA, that she declined. At the hearing, the Respondent again offered a payment plan, to which the Appellant said that “…they could not even afford $50 month even if two of them found work.”

CONCLUSION

54The Appellant is not at fault for Shya’s injury although she was aware of the physical handicap when she took possession of her. What is more, the severity and age of the injury was unknown when Shya was taken by AWS to Northtown on January 4, 2024. This matter is about the costs to have Shya’s injury addressed, which the Appellant is liable for while Shya was in AWS care.²²

55I find that the Respondent met the initial evidentiary burden and has proven, on a balance of probabilities, that the SOA reflected the actual costs of necessaries and that these costs were reasonable. Further, the costs did not arise because of the care, or lack of care, provided by the Respondent.²³

56I am persuaded by the Respondent’s evidence that it was their involvement that led to Shya being treated, which resulted in surgery, boarding and medication costs. I also accept that their decisions came after well-informed discussion and consultation that considered the Appellant’s non-compliance of the Order and financial situation. It is clear from the Respondent’s evidence that AWS had no confidence that the Appellant would pursue proper treatment for Shya, or that the Appellant would commit to appointments or administering prescription medications. She knew the leg to be injured and did not follow prescription medication instructions, and cancelled and did not reschedule an appointment to have Shya’s leg properly assessed by a veterinarian despite an AWS Order to do so.

57I reject the Appellant’s argument that they first became aware of surgery options ‘after the fact.’ The evidence shows that she had discussions with both Inspector Schenk and Senior Investigator Wintermute about costs for veterinary assessments and possible procedures before the surgery.

58I am not persuaded by the Appellant’s argument that certain boarding costs could have been avoided had they been allowed to look after Shya at earlier junctures such as the period following her surgery. The evidence shows that the Appellant had proven unreliable in administering medications having arbitrarily stopped a prescription medication for Shya after her initial assessment at Northtown. As well, her basement level residence would require Shya to use stairs contrary to the gradual return to activity to ensure proper recovery recommended by the surgeon.

59I find that the SOA includes discounts totalling $832.11 benefiting the Appellant and are the direct result of AWS’ involvement in the matter that may not have been applied had the Appellant sought treatment for Shya.

60Past decisions of the Board are not binding on me; however, they can be persuasive as they are in this matter. In Tanis v. CAWI 2021 the Respondent was urged to reconsider its position regarding a payment plan with the Appellant otherwise exercising its discretion afforded to it pursuant to s. 35(5) of the PAWS Act in.²⁴

61In this matter, the Appellant did not reject outright a payment plan from the Respondent; rather the amount per month was objectionable. The opportunity for payment plan discussions still exists. The Appellant is also free to initiate conversations with their veterinarian to access potential financial assistance.

ORDER

62Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I order that the costs of $7,491.28, be paid to the Minister of Finance.

Footnotes

1. 1Exhibit 8 - Respondent’s Evidence Brief. The Order is not under appeal.
2. 2Will State of Inspector Schenk - Respondent’s Evidence Brief, page 49.
3. 3Exhibit 9 - Respondent’s Evidence Brief. The NOR is not under appeal.
4. 4Will State of Senior Investigator Wintermute – Respondent’s Evidence Brief, page 12
5. 5Exhibit 10 - Respondent’s Evidence Brief. The DTK is not under appeal.
6. 6Exhibit 13 - Respondent’s Evidence Brief.
7. 7Licence Appeal Tribunal, Animal Care Review Board, and Fire Saftely Commission’s Common Rules of Practice and Procedure, Version 1 (October 2, 2017) as amended – Rule 9.4 “Failure to comply with disclosure rules”
8. 8See Windrift v. CAWI, 2023 ONSC 4501, paragraph 76
9. 9Will state of Inspector Schenk - Respondent’s Evidence Brief, page 47
10. 10Will state of Inspector Schenk - Respondent’s Evidence Brief, page 48. Inspector Schenk also testified that the Order was served because she was not certain the Appellant would take Shya to a veterinarian knowing that costs may be involved.
11. 11Exhibit 8 - Respondent’s Evidence Brief
12. 12Exhibit 2 - Respondent’s Evidence Brief, page 127
13. 13Exhibit 10 - Respondent’s Evidence Brief
14. 14Exhibit 10 - Respondent’s Evidence Brief, page 107
15. 15Duty Notes of Inspector Schenk – Respondent’s Evidence Brief, page 62
16. 16Will State of Senior Investigator Wintermute – Repondent’s Evidence Brief, page 9
17. 17Will State of Inspector Schenk - Respondent’s Evidence brief, page 50
18. 18Exhibit 2 and 3 - Respondent’s Evidence Brief.
19. 19Ontario Veterinary Medical Association (OVMA) 2023 Ontario Suggested Fee Guide. Boarding facilities may set their own rates. The GHS rates are within the industry range of $25-60/day
20. 20See paragraph 15. The appellant had previously provided 3 months of bank statements from 2024 showing overdraft status each month to the Respondent.
21. 21Will State from Senior Investigator Wintermute – Respondent’s Evidence Brief, page 8
22. 22See s. 35(1) of the PAWS Act.
23. 23See Windrift Adventures Inc. v CAWI 2023 ONSC 4501 para 42
24. 24See Tanis v. CAWI 2021 ONACRB 22, para 28