Randy Atta v. Chief Animal Welfare Inspector, 2024 CanLII 76486

Date: 2024-08-15

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

Between:

Randy Atta Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Robert Dowhan, Member Peter Simmons, Member

Appearances:

For the Appellant: Randy Atta, Self-represented

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

Heard By Videoconference: July 4, 2024

OVERVIEW

1Randy Atta, the Appellant, appealed a Statement of Account (SOA) in the amount of $4,629.40 to the Animal Care Review Board (Board) on May 22, 2024.

2The SOA was served by Animal Welfare Services (AWS) for veterinary services provided to the Appellant’s dog, Stormy, a four-year old female intact American Bully-type dog.

3On May 11, 2024, the Appellant took Stormy to Toronto Animal Health Partners (TAHP) because she was having difficulty giving birth. Later that same day, Stormy was transferred to Vaughan-Richmond Hill Veterinary Emergency Clinic (VRHVEC) for surgery.

4On May 12, 2024, Stormy was admitted to VRHVEC and Dr. Diane Ho of VRGVEC signed a “Certificate of a Veterinarian Advising of the Removal or Euthanasia of Animals” (Certificate)¹ because Story was in critical medical distress.

5Also on May 12, 2024, AWS Inspector Jennifer Lee, served a Notice of Removal (NOR) pursuant to s.31(1)(a) of the Provincial Animal Welfare Services Act, 2019 S.O. 2019, c. 13 (PAWS Act) on the Appellant for Stormy.²

6On May 15, 2024, Inspector Tamara Welch (Inspector Welch) served on the Appellant a Notice of Decision to Keep an Animal in the Chief Animal Welfare Inspector’s (Respondent) Care (Keep in Care decision) pursuant to 31(7) of the PAWS Act signed by AWS Regional Supervisor Brandon James.³

7Also on May 15, 2024, Inspector Welch served on the Appellant via email a SOA pursuant to s.35(1) of the PAWS Act for veterinarian services provided to Stormy between May 12-14, 2024, in the amount of $4,629.40.⁴

8The Board held a case conference on June 7, 2024, and the matter proceeded to a video-conference hearing on July 4, 2024.

ISSUE IN DISPUTE

9The issue in dispute in this matter is:

1. Should the SOA issued May 15, 2024, in the amount of $4,629.40 be confirmed, revoked, or varied?

RESULT

10For the reasons that follow, I:

a. Confirm the SOA of May 15, 2024, in the amount of $4,629.40.

PRELIMINARY MATTERS

Writing of the decision

11One of the adjudicators on the hearing panel is unable to participate in writing the Decision. Pursuant to s.4.4.(1) of the Statutory Power and Procedures Act, this decision was written by the remaining panel member.

EVIDENCE AND ANALYSIS

12According to section 35(1) of the PAWS Act, an animal owner or custodian is liable for costs incurred by the Respondent 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 Respondent has kept the animal in its care under s. 31(6) or taken the animal into care under s. 44(8).

13Section 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.

14Section 35(3) of the PAWS Act states that an animal’s owner or custodian is liable for the amount set out in a statement of account subject to an order of the Board pursuant to s.38(9) of the PAWS Act.

Should the SOA be confirmed, revoked, or varied?

15I find the SOA was properly served on the Appellant in accordance with s. 35(1) of the PAWS Act, which 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.

16The SOA is supported by detailed invoices and medical records showing the care and treatment provided to Stormy at both TAHP and VRHVEC from May 12 to May 14, 2024.

17In her testimony, Dr. Diane Ho reviewed each item in the SOA, and her Expert Report included details related to the invoices as well as an opinion of the costs. ⁵

18The Appellant testified that he was a dog breeder and that Stormy had become pregnant unintentionally when she was left unsupervised with an unneutered dog.

19The Appellant provided no documentary evidence or persuasive testimony to indicate that the SOA or the supporting invoices were unreasonable or excessive or that Dr. Ho’s testimony was inaccurate or incomplete.

20The Appellant did not provide a coherent rationale for why he should not be responsible for the costs incurred for the care of Stormy. When pressed by the panel he said that the costs (the SOA) were more then he thought it should be but provided no cost comparison evidence to support his opinion.

Surgery for Stormy and necessary removal from Appellant’s care

21The Respondent’s evidence shows that Stormy was brought to TEHP by the Appellant on May 11, 2024, because her labour had stalled, and she was experiencing a complicated and potentially dangerous labour.

22Stormy was experiencing dystocia with one lodged puppy and five to six within her abdomen. TAHP recommended to the Appellant a Caesarian-section (C-section) for Stormy to alleviate the stalled labour. The Appellant declined the surgery and opted for an alternative of Oxytocin (2IU’s) that was administered by TAHP which helped produce two puppies; one was not viable and the second was alive and began nursing.

23The Respondent’s evidence shows that the Oxytocin did not change Stormy’s condition, prompting TAHP staff to discuss the C-section option with the Appellant again because of the risk to her health and that of any unborn puppies. The Appellant concurred that the C-section was prudent, and Stormy was transferred to Vaughan-Richmond Hill Veterinary Emergency Clinic (VRHVEC) where the surgery could be performed.

27Dr. Ho testified that Stormy’s labour was not progressing, and a C-section became the only course of treatment that would alleviate her distress. She issued the Certificate and said AWS was contacted when the Appellant was unable to provide the funds necessary to continue the care for Stormy.

28Staff at VRHVEC spoke with the Appellant about the C-section and it being the appropriate action among the alternatives because Stormy was in distress and required treatment. The Respondent’s evidence shows that VRHVEC discussed the estimate for Stormy’s surgery with the Appellant including his signed consent for VRHVEC to perform the C-section surgery, and his agreement to the terms of the surgery estimate to be performed on Stormy.

29The Respondent testified that that AWS took possession of Stormy while she was at VRHVEC to allow the necessary emergency surgery to proceed, since the Appellant was not able to pay for it on that day. The C-section was performed on Stormy later in the day on May 12, 2024. One viable puppy was delivered along with two non-viable. Stormy remained in the care of the Respondent post-surgery because of concerns with her body temperature and signs of possible infection.

30I find that removing Stormy from the Appellant’s care was appropriate, lawful, and necessary care because she was in distress and the Appellant did not have the funds to pay for the surgery.

31I find further that Dr. Ho’s testimony is credible. She was the veterinarian at VRHVEC who performed the C-section on Stormy. She has first-hand knowledge of the procedure and the fees charged, which she said are within the typical and normal ranges with other clinics in or around the Region.

32The Appellant submitted that he tried to secure the funds to cover the costs of the treatment for Stormy by applying to LendCare⁶ and asking family for assistance but was unsuccessful.

33The Appellant has not provided any evidence that his financial circumstances would prevent him from paying the SOA.

CONCLUSION

34The Appellant signed a consent and procedure estimate for $4,739.51 on May 12, 2024, for VRHVEC to perform a C-section and spay Stormy. Despite his attempts he was unable to pay VRHVEC for the surgery, care, and services.

35I find that the Respondent has proven, on a balance of probabilities, that the SOA reflected the actual costs of necessaries and that these costs were reasonable.

36I was not persuaded that the SOA should be revoked or varied simply because the Appellant feels the costs for Story’s surgery are excessive.

ORDER

37Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I confirm the SOA in the amount of $4,629.40.

Released: August 15, 2024

_________________________

Peter Simmons, Member

Footnotes

1. 1Exhibit 4 – Respondent’s Evidence Brief
2. 2Exhibit 6 – Respondent’s Evidence Brief. There is no appeal of the NOR before the Board at this hearing.
3. 3Page 11 – Respondent’s Evidence Brief. There is no appeal of the Keep in Care before the Board at this hearing.
4. 4The SOA was served on the Appellant in person on May 16, 2024.
5. 5Exhibits 1,2 and 5 – Respondent’s Evidence Brief
6. 6LendCare – third party loan financing for veterinary care, treatment and emergency prodecures.