Tribunals ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission d’étude des soins aux animaux

Date: 2024-01-17

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

Between:

Mark Loveys and Robin Furnandiz

Appellants

and

Chief Animal Welfare Inspector

Respondent

AMENDED DECISION AND ORDER

Adjudicators: Anxhela (Angela) Peco, Member Alisa Chaplick, Member

Appearances:

For the Appellant: Mark Loveys and Robin Furnandiz, Self-Represented

For the Respondent: Joshua Matson, Regional Supervisor, Animal Welfare Services Alice (Yun) Liu, Counsel

Heard by videoconference: November 28, 2023

OVERVIEW

[ 1 ] Mark Loveys and Robin Furnandiz, the appellants, were the owners¹ of 19 Pyrenees type dogs that were removed from their property by Animal Welfare Services (AWS) on September 21, 2023, and placed in a boarding facility.

[ 2 ] On October 4, 2023, AWS served the appellants with a Statement of Account (SOA) requiring them to pay $7,600 for necessaries provided to relieve the dogs’ distress. The SOA consisted of boarding costs for the 19 dogs at a daily rate of $40/dog and covered the period of September 21-30, 2023.

[ 3 ] The appellants appealed the SOA to the Animal Care Review Board (Board) on October 8, 2023. They sought to have the SOA revoked on the basis that AWS should not have removed the dogs and that they have limited ability to pay. In the alternative, they sought a 50 percent reduction of the amount of the SOA. The Chief Animal Welfare Inspector, the respondent, sought to have the SOA confirmed.

[ 4 ] The matter proceeded to a videoconference hearing.

ISSUE

[ 5 ] Should the SOA from October 4, 2023, be confirmed, revoked, or varied?

RESULT

[ 6 ] For the reasons that follow, we vary the SOA to the amount of $3,800. We find that the expenses related to costs of providing care to the dogs that had been removed were reasonable in the circumstances. However, we exercise our discretion pursuant to s. 38(9)3.1 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act) to reduce the amount based on the appellants’ limited ability to pay.

PRELIMINARY ISSUE

[ 7 ] At the start of the hearing, the respondent advised that they had not received disclosure from the appellants by the deadline set out in the Board’s Case Conference Report and Order. The respondent objected to the appellants relying on information they had not previously disclosed and/or information that sought to challenge other AWS actions that were not the subject of this appeal, such as the executed search warrant and the removal of the dogs.

[ 8 ] We ruled that we would only permit testimony related to the appellants’ financial circumstances and their ability to pay. Although the appellants did not file a statement of anticipated evidence on this issue, the respondent had notice of this ground of appeal in the Notice of Appeal and in an email sent to the respondent and the Board on October 30, 2023, in which the appellants listed their monthly income and expenses. This result balanced the need to grant some procedural latitude to the self-represented appellants, while also ensuring that it would not result in any significant prejudice to the respondent.

ANALYSIS

[ 9 ] Section 35(1) of the PAWS Act makes an animal owner 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.

[ 10 ] Section 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.

[ 11 ] While the burden of proof on this appeal is on the appellants 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.²

[ 12 ] To that end, Inspector Lori Lamb and Regional Supervisor Joshua Matson testified for the respondent. They recounted the events that led to AWS’ removal of the appellants’ dogs, how the need for boarding care arose, and what boarding care consisted of.

[ 13 ] The respondent’s evidence showed that the dogs were removed pursuant to s. 31(1)(a) and (c) of the PAWS Act. Removal under s. 31(1)(a) requires a veterinarian to advise an inspector in writing that removal is required to alleviate an animal’s distress. Removal under s. 31(1)(c) stems from an owner’s non-compliance with an order issued by an inspector under s. 30.

[ 14 ] The respondent argued that both grounds were met. A veterinarian who had been present at the appellants’ property during an inspection issued a certificate advising removal.³ Inspector Lamb also testified that the appellants had been non-compliant with an order requiring them to administer flea treatment to the dogs and to have them examined by a veterinarian. As a result, AWS considered the dogs to be in distress and upon removal, the dogs were placed in a boarding facility.

[ 15 ] Inspector Lamb testified that boarding costs described as “rehabilitative care” in the facility’s invoice included costs for food, water, kennel cleaning multiple times a day, and socialization for the dogs. Both Regional Supervisor Matson and Inspector Lamb confirmed that the $40 daily rate charged by the boarding facility was the “industry standard” and “fell in the mid-range”.

[ 16 ] We accept the respondent’s witnesses’ evidence and find that the $7,600 in costs set out in the SOA reflected the actual costs of necessaries provided, as evidenced by the invoice issued by the boarding facility in that same amount. We also find that the type of service provided was necessary to keep the dogs healthy and safe and the expenses related to that care fell under one of the categories of costs set out in s. 35(2), namely “costs of providing care for an animal that has been removed.”

[ 17 ] Although the daily boarding rate was in the mid-range, and therefore not the lowest amount the respondent could have incurred for boarding the dogs, we find that Inspector Lamb’s criteria for selecting this specific boarding facility were reasonable. She considered the facility’s proximity to the appellants’ property, which would reduce transportation time for the dogs, as well as the fact that the facility had space to accommodate all the dogs without needing to separate them and had room on-site to complete veterinary exams.

[ 18 ] Having found that the respondent met the initial evidentiary burden, the onus then shifts to the appellants to prove, on a balance of probabilities, that the SOA should be revoked or varied.

[ 19 ] While the appellants did not dispute the supporting invoice, they sought to have the SOA revoked on the basis that the dogs should have never been removed and therefore no boarding costs would have been incurred. Respectfully, we are unable to consider this ground of appeal. In the absence of an appeal of the Notice of Removal, this Board cannot conclude whether the dogs were in distress or whether the removal was justified to alleviate that distress. The issues before us are limited to reviewing whether the charges in the SOA reflect the actual costs of necessaries provided to the dogs and that the care provided was reasonable, both of which we have confirmed.

[ 20 ] In the alternative, the appellants sought to have the SOA revoked or reduced by 50 percent based on inability to pay and they testified about their financial circumstances. With reference to the email dated October 30, 2023, Ms. Furnandiz reviewed the appellants’ sources of income. She reported $4,377 in monthly income and $4,289 in monthly expenses, leaving a balance of $88.

[ 21 ] The respondent submitted that there was no supporting documentation for the appellants’ financial situation, including the amounts listed in the email, and the Board should therefore decline to modify the SOA.

[ 22 ] Respectfully, we do not accept this submission. Although we did not receive supporting documentation from the appellants, we found Ms. Furnandiz’s testimony as to the appellants’ limited financial means to be reliable and we accepted that the appellants’ financial circumstances make it difficult for them to pay the full amount of the SOA. We heard testimony that the appellants were retired and living on a fixed income. The expenses they reported were reasonable and expected in the circumstances and included things such as groceries, utilities, fuel, insurance payments, farm equipment, and pet supplies for their remaining animals.

[ 23 ] When cross-examined, Ms. Furnandiz acknowledged that the appellants owned property that was not included in their itemized list of monthly income and expenses. We found that this omission was not an attempt to conceal the asset. In fact, when asked, Ms. Furnandiz readily accepted that the appellants owned property and we found her explanation for why she omitted the property from the list to be plausible. In particular, in cross-examination, Ms. Furnandiz noted that a land severance was required before she could sell the property. As a result, she was unsure when she could move forward with the sale and have access to the proceeds of that sale, estimating that it could take up to two years. For similar reasons, Ms. Furnandiz testified that she had also omitted debts that she owed from her list of income and expenses, information that would have supported the appellants’ position, as she was unsure of what the average monthly liability would be on that debt. We find that to the extent that there were omissions, they were driven by the same rationale and were not done in an attempt to conceal assets.

[ 24 ] On the appellants’ own evidence that they have $88.00 left over every month, we find that they have some ability to pay for expenses incurred related to their animals. We therefore decline to reduce the SOA to zero and instead reduce it by 50 percent. The 50 percent reduction balances the need for the respondent to recoup some of the costs reflected in the SOA while taking into account the appellants’ financial circumstances.

ORDER

[ 25 ] Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, we vary the SOA and order that the costs of $3,800 be paid to the Minister of Finance.

Released: January 17, 2024

Anxhela (Angela) Peco, Member

Alisa Chaplick, Member

Footnotes

1. 1Some of the dogs were ultimately returned to the appellants, while others were surrendered to the Crown. The Notice of Removal was not appealed to the Animal Care Review Board.
2. 2Windrift Adventures Inc. v Chief Animal Welfare Inspector, 2023 ONSC 4501.
3. 3The certificate did not explain the basis for the advice. The Notice of Removal indicated that the certificate was issued in relation to “fleas, [and] environmental [concerns]”.