Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

Date: 2024-02-14

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

Between:

April Stirling Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Alisa Chaplick, Member

Appearances:

For the Appellant: April Stirling, self-represented For the Respondent: Ryan Sparks, Regional Supervisor, Animal Welfare Services (AWS); Jason Kirsh, Counsel

Heard by videoconference: January 29, 2024

OVERVIEW

1April Stirling, the appellant, is the owner of a brown English Mastiff mix dog commonly known as Say-D.

2Animal Welfare Services (AWS) issued two Statement of Accounts (SOAs) to the appellant regarding Say-D as described below. The appellant did not appeal the first SOA to the Animal Care Review Board (Board). However, the appellant appealed the second SOA to the Board, pursuant to a Notice of Appeal dated December 21, 2023. In the Notice of Appeal, she sought the revocation of the second SOA.

3The SOA for Say-D, which is under appeal, is dated December 12, 2023 and has charges as follows: $801.36 for Boarding Costs and $120.72 for Medication and an Exam, equaling a total of $922.08.

4The matter proceeded by a videoconference hearing.

ISSUE

5Should the SOA dated December 12, 2023, be confirmed, revoked, or varied?

RESULT

6For the reasons that follow, I confirm the SOA dated December 12, 2023 in the amount of $922.08. I find that the SOA was reasonable under the circumstances and in accordance with the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act).

PRELIMINARY ISSUE

7The respondent did not file the materials it wished to rely on at the hearing with the Board, until the morning of the hearing. The appellant did not object to the late filing. The Board weighed the possible probative value of the materials and the fact that the appellant did not object to the late filing. The Board allowed the respondent to rely on the materials that were filed late, which were critical to the Board's ability to adjudicate this matter.

ANALYSIS

8Section 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.

9Section 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.

10While the burden of proof in this appeal is on the appellant to show that the SOA should be revoked, 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.¹

11I find that the respondent met this initial burden and proved, on a balance of probabilities, that the SOA reflected the actual costs of necessaries and that these costs were reasonable as described more particularly below. I also find that the type of services provided were necessary to keep the dog healthy, and the expenses were related to relieving Say-D’s distress and providing her with care, which fell properly within s. 35(2) of the PAWS Act.

12Inspector Timothy Jacob testified for the respondent in this matter. Inspector Jacob recounted the events that led to AWS’ removal of the appellant’s dog and how the charges in the SOA arose.

13Inspector Jacob’s evidence was that on November 3, 2023, he received a call from a confidential caller who reported that a dog at a specified address in Port Lambton, Ontario, looked very skinny and the caller could see the dog’s ribs.

14On that day, in response to the call, he arrived at the appellant’s premises and met with the appellant’s daughter, who brought the dog, Say-D, outside. The appellant’s daughter told Inspector Jacob that Say-D ate a lot but had been getting thin lately, which concerned her. Due to Say-D’s lowering weight, Inspector Jacob issued an order to the appellant’s daughter to have Say-D examined by a veterinarian, with special attention to her thin body, among other things (the “Order”). The Order had a completion date of November 8, 2023 at 11:00 am.

15Inspector Jacob testified that after the Order was issued, the appellant advised him that she was having trouble finding a veterinarian who had availability to see Say-D.

16In addition, Inspector Jacob testified that the appellant advised him that on November 7, 2023, she took Say-D to the hospital and made it through triage but did not wait to see a veterinarian.

17On November 8, 2023, at 11:05 am, Inspector Jacob returned to the premises and noticed that Say-D was much thinner than she was during his previous visit. Inspector Jacob advised the appellant that he was concerned for Say-D’s health and would be removing her to take her to the veterinarian. Inspector Jacob issued a Notice of Removal and called Chatham-Kent Veterinary Hospital, which said they could see Say-D. Inspector Jacob also called the local kennel, which had room for Say-D if the veterinarian deemed it necessary.

18Inspector Jacob stated that on November 9, 2023, he received a text message from the kennel stating that the technician at the kennel believed that Say-D might have Pyometra, an infection of the uterus that can be life threatening.

19Say-D had hysterectomy surgery due to the Pyometra at Wallaceburg Animal Hospital and Inspector Jacob was advised that five pounds of infection was removed. Say-D was prescribed medications. A prior SOA, not before the Board in this matter, was issued for Say-D’s surgery.

20On November 10, 2023, the appellant was provided with a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care dated November 10, 2023 (“Keep in Care”) and Say-D was transported from the hospital to the kennel. The Keep in Care stated that keeping the animal in care was necessary to relieve the animal’s distress. The Keep in Care also stated that, due to previous non-compliance from the owner, there were grounds to believe that a follow-up appointment for Say-D and any recommendations made at that appointment may not be followed.

What was the breakdown of costs in the SOA under appeal?

21As noted above, the SOA lists the following charges: $801.36 for boarding costs and $120.72 for medication and exams, equaling a total of $922.08.

22With respect to boarding costs, the respondent provided an invoice to show that Say-D was boarded at a kennel in Chatham, Ontario for 20 nights, from November 8-28, 2023, at a cost of $32 per night, with a total cost of boarding of $640. The invoice also contained charges of $69.17 for dog food. The total cost of the boarding and dog food, including taxes, was $801.36.

23With respect to medication, the respondent provided an invoice from the Chatham-Kent Veterinarian Hospital dated November 22, 2023. The invoice showed a balance due of $120.72 for the medications “APO GABAPENTIN” and “MELOXADIN SUSP.”

24Taken together, the $801.36 in boarding and dog food costs and the $120.72 in medication costs equalled the total cost of $922.08 reflected in the SOA.

25Inspector Jacob’s evidence was that the boarding costs in the amount of $32 per night are in line with industry standards and other kennels in the area. The appellant did not dispute this evidence at the hearing.

26As noted above, the information provided by the respondent meets the initial evidentiary onus to establish that the costs were reasonable.

27Say-D was returned to the appellant’s home on November 28, 2023, with an Order, after being deemed healthy by the Chatham-Kent Veterinary Hospital.

28On December 12, 2023, Inspector Jacob returned to the appellant’s premises and found that Say-D appeared to be continuing to improve. As a result, he completed a Revocation Notice, ending the most recent Order issued.

Did a possible late diagnosis of Say-D impact the SOA under appeal?

29The appellant argued that there was a delay in Say-D being diagnosed with Pyometra and, as a result, the appellant was told she had to pay for things in an SOA that were not necessary for Say-D. For example, the appellant questioned the number of antibiotics given to Say-D while she was in the respondent’s care which the appellant was charged for. In response, the respondent stated that there was no opinion evidence brought by the appellant to dispute the SOA. The respondent also stated that the charges in the SOA post-dated Say-D’s surgery so any merit to the appellant’s argument would possibly apply to the earlier SOA that was not before this Board. However, it did not apply to the SOA before the Board that is the subject of this appeal.

30I agree with the respondent that while this argument may have merit with respect to the earlier SOA, it does not have merit regarding the SOA under appeal, given the timing of the charges covered by the SOA under appeal.

Was the appellant double-billed for Say-D’s boarding?

31The appellant argued that she was billed for an extra night of boarding on the SOA. She submitted that she was billed for Say-D staying at the boarding facility for 20 days when, in fact, Say-D was in the hospital for one of those nights because she needed intravenous medication. The respondent, on the other hand, stated that the appellant was charged for the day in question because Say-D spent part of that day at the boarding facility.

32There is no evidence before me regarding the billing practices of the boarding facility where Say-D stayed. I find the respondent’s argument that Say-D was charged for the day because she spent part of that day at the boarding facility to be reasonable. I therefore find that the appellant did not establish that she was charged for an extra night of boarding.

Can the appellant appeal based on ability to pay?

33During the hearing, the appellant stated that she wished to dispute the SOA on the ground of ability to pay, stating that she had previously been unaware that she was able dispute the SOA on that basis. The respondent objected to the appellant disputing the SOA on this ground. In particular, the respondent advised that it did not have sufficient notice of this ground of appeal and, as a result, took issue with the appellant being able to raise it at this hearing.

34I did not permit the appellant to submit evidence regarding ability to pay, which would effectively introduce a new ground for appeal at the hearing stage and would be unduly prejudicial to the respondent as they would not have ample opportunity to respond.

Conclusion

35I accept the respondent’s witnesses’ evidence and find that the costs of $922.08 reflected the actual costs of services provided from November 8-28, 2023 as evidenced by the supporting invoices issued in the same amount. As noted above, I also find that the type of services provided were necessary to keep the dog healthy, and that the expenses were related to relieving Say-D’s distress and providing her with care, which fell properly within s. 35(2) of the PAWS Act.

36Having found that the respondent met the initial evidentiary burden, the onus then shifted to the appellant to prove, on a balance of probabilities, that the SOA should be revoked. I find that the appellant did not meet this burden for the reasons noted above.

37I find that the charges in the SOA reflect the actual costs of necessaries provided to Say-D and that the charges were reasonable.

ORDER

38Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I confirm the SOA and order the appellant to pay the costs of $922.08 to the Minister of Finance.

Footnotes

1. 1Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501.