Penny Kerr v. Chief Animal Welfare Inspector, 2024 ONACRB 81

Court File and Parties

Date: 2024-03-25

Appeal under s. 38(1) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.

Between:

Penny Kerr Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator Panel: Ashley Deathe, Member Emma Rhodes, Vice-Chair

For the Appellant: Dan Petrascu, Paralegal For the Respondent: Danielle Meuleman, Counsel

Heard by videoconference: January 29, 30, and 31, 2024; written submissions received on February 7, 14 and 15, 2024

OVERVIEW

1A great deal of money is at issue in this appeal. Penny Kerr (appellant) disputes a Statement of Account (SOA) issued on September 14, 2023, which totals $166,937.62 in veterinary and boarding costs related to 34 dogs.

2The appellant operated a dog kennel and owned and cared for a total of 36 English and French Bulldogs. Those dogs resided at her properties in Chatsworth and Durham, Ontario. On December 2, 2022, Animal Welfare Services (AWS) removed dogs from both properties and kept them in the care of the Chief Animal Welfare Inspector (respondent).

3By March 13, 2023, the parties had signed a Minutes of Settlement which, in part, set out that the appellant would surrender 32 dogs to the respondent and one dog would be returned to her, there being three dogs that had been euthanized after removal. The parties also agreed that the appellant would withdraw four appeals that were before the Animal Care Review Board (Board) related to the removal of the dogs from the two properties and the two statements of account issued on December 14, 2022 and January 9, 2023. The appellant withdrew all four appeals, and those matters are no longer before the Board. The legal significance of that settlement is disputed by the parties and will be discussed later in these reasons.

4The SOA that is the subject of this appeal included the costs to care and house 34 dogs from December 2, 2022, to March 10, 2023.

5On September 19, 2023, the appellant appealed the SOA to the Board under s. 38(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 as amended (PAWS Act).

ISSUE

6The issue in this appeal is whether the SOA dated September 14, 2023, in the amount of $166,937.62, should be revoked, confirmed or varied.

RESULT

7For the reasons that follow, we order the SOA be varied to $159,988.67,

PROCEDURAL HISTORY & PRELIMINARY ISSUES

8The procedural history of this appeal is relevant context for our analysis of the issues in dispute:

• On September 25, 2023, the Board adjourned the scheduled case conference at the request of the appellant, who indicated that she needed time to retain new legal representation.
• On October 26, 2023, a second case conference was held with the appellant's new legal representative. A hearing was set for December 8, 2023.
• In a "Notice of Motion & Submissions" dated December 1, 2023, and amended December 11, 2023, the appellant moved to modify her grounds of appeal.
• On consent, the Board granted an adjournment of the December 8, 2023 hearing so that the appellant's motion to modify her grounds of appeal could be heard and a decision made in advance of the hearing.
• The motion proceeded in writing. On January 9, 2024, the Board denied the appellant's motion to modify her grounds of appeal with reasons: Kerr v. Chief Animal Welfare Inspector, 2024 ONACRB 69 (the "Motion Decision").
• Following the release of the Motion Decision, the appellant sought a further adjournment of the hearing, filed a request for summons to witness, and filed a request to cross-examine her own witness, also referred to as a Milgaard Application. The person whom the appellant requested the Board to summons was the same person whom the appellant wished to be granted the right to cross-examine. The Board denied these requests by Order dated January 24, 2024 (the "Procedural Orders").

9The hearing of the SOA appeal proceeded before the Board on January 29, 30, and 31, 2024, by video conference, with closing submissions filed in writing.

10At the outset of the hearing, the appellant raised the following three preliminary issues:

1. Whether the hearing should be adjourned to perfect service of a Notice of Constitutional Question;
2. Whether the Board should issue a summons to a potential witness; and
3. Whether one of the appellant's witnesses should be permitted to testify by audio only.

11The Board granted the accommodation request to permit a witness to testify by audio but denied the adjournment request and refused to exercise its discretion to issue the summons. We have summarized the reasons previously provided to the parties during the hearing.

1) Request to Adjourn the Hearing to file a Notice of Constitutional Question

12The Board denied the appellant's adjournment request that would have provided her additional time to perfect service of a Notice of Constitutional Question on the Attorneys General of Canada and Ontario. Rule 16.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (Rules) stipulates that an adjournment request made orally is granted only in "exceptional circumstances." The appellant did not persuade the Board that there were exceptional circumstances justifying the adjournment.

13Fundamentally, the appellant disagreed with the Board's Procedural Orders, which denied the appellant's Request to Issue a Summons to Stephen Wilson, Regional Supervisor with AWS to testify, and held that her Milgaard Application was moot. The Milgaard Application was, in essence, a request to declare Mr. Wilson to be a hostile witness. Had she been successful, such a declaration would allow the appellant to cross-examine her own witness.

14In the appellant's opinion, it was a violation of procedural fairness and denial of natural justice for the Board to refuse to exercise its discretion to issue a summons to Mr. Wilson thereby denying her the opportunity to examine a person with relevant information to the issue in dispute. It was her position that the alleged error violated her right to full answer and defence under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") which entitled her to a remedy under ss.24(1) of the Charter. The law requires that she provide notice of any constitutional question to the provincial and federal Attorneys General (Courts of Justice Act, R.S.O. 1990, c.43, 109(1)).

15When asked to clarify the scope and relevance of Mr. Wilson's expected evidence, the appellant confirmed that she intended to ask about the Minutes of Settlement and specifically about his understanding of the intent and meaning of paragraph 5 of the Minutes of Settlement. Mr. Wilson was a signatory on behalf of the respondent to that agreement.

16Paragraph 5 of the Minutes of Settlement states that the settlement did not preclude the respondent from issuing additional statements of account for the cost of necessaries provided to the dogs after their removal, pursuant to s.35 of the PAWS Act. However, the appellant's position is that the meaning of paragraph 5 is ambiguous and therefore, it is permissible to ask Mr. Wilson what was in his mind at the time the settlement was entered into by the parties.

17The respondent's position was that Mr. Wilson's knowledge and opinion concerning the text of any part of the written agreement is irrelevant to the appeal of the SOA. The Board's Motion Decision already denied the appellant's request to modify her grounds of appeal, which expressly raised the issue of whether the settlement foreclosed the respondent's legislated right to issue a statement of account (PAWS Act, s. 35). In these circumstances, there is no legal basis to go behind the words of the written agreement and inquire about what was in the mind of either one of the signatories.

18In the alternative, the respondent argued that the Board is not a "court of competent jurisdiction" to resolve constitutional questions as required by ss. 24(1) of the Charter and therefore notice need not be served on the Attorneys General.

19Whether or not the Board erred in refusing to issue the summons can be raised in a future reconsideration and judicial review of this appeal decision. Fundamentally, the appellant's proposed constitutional question is about the appellant's rights to natural justice in the hearing of this appeal. The question of whether the Board erred in making a procedural order that affected a party's rights is not properly before the hearing adjudicators.

20In the circumstances, the Board makes no determination on whether it is a court of competent jurisdiction to consider a constitutional question. The Board denied the appellant's request for the adjournment for the purpose of perfecting service of a Notice of Constitutional Question.

2) Request to Issue a Summons

21The appellant renewed her request for a summons, which was previously denied in the Board's Procedural Orders. The Board again declined to exercise its discretion to issue a summons to this proposed witness because we were not persuaded that that person's information was relevant to the disposition of the appeal of the SOA.

22The parties' submissions on this issue were made in the context of the related issue of the adjournment request, set out above. In sum, the appellant's position was that the respondent breached the settlement agreement by issuing the SOA and Mr. Wilson's information would help her prove that because he signed the Minutes of Settlement on the respondent's behalf and understands the intent of the parties when the settlement was made. The respondent's position was that the Board does not have the power to determine the validity of the settlement agreement and any alleged breach thereof.

23The Motion Decision previously addressed the relevance issue:

[17] [...] The appellant's motion material alleges breach of a settlement agreement by the respondent. Allegations about a breach of an agreement by the respondent cannot be resolved by the Board which, as a creature of statute, only has a mandate to hear appeals and applications as set out in s.38(1), (3) and (4) of the PAWS Act.

[18] The legislative time limit has long since passed to challenge the removal of the dogs on December 2, 2022 and the respondent's decision to keep them in care. Further, Mr. Robillard's affidavit establishes that in fact the appellant exercised her right of appeal of both and that these appeals were settled in writing in March 2023. While the appellant may have a right to challenge these settlements and the basis for them in another forum, this is not within the mandated of the Board. The Board's powers on a SOA appeal are to confirm, vary or revoke the SOA. The issue was clearly set out in the Board's Case Conference Reports and Orders with the consent of the appellant.

24Because the Board does not have the power to make a legal determination on the validity or fairness of the settlement agreed to by the parties on March 13, 2023, Mr. Wilson's information about the settlement is irrelevant and the appellant's request for summons was denied.

3) Accommodation Request for Witness to Testify by Audio Only

25The appellant also renewed her request that both herself and one of her witnesses, the veterinarian Dr. Fried, be permitted to testify by audio only due to various technological challenges.

26The respondent raised concern that if participating by audio only, the witnesses would be unable able to see the exhibits or reference any document during their testimony and cross-examination. Furthermore, the respondent stated it had no notice that Dr. Fried would be called as a witness and was concerned that it would be taken by surprise with any opinion or factual evidence that the appellant intended to elicit from him, and that this lack of notice would prejudice its ability to present its case.

27The appellant clarified that Dr. Fried would only provide factual evidence, not opinion evidence, in this matter and the line of proposed questioning concerned Dr. Fried's knowledge of the dogs' medical history, and his willingness to assist the appellant with the continued veterinary care of the dogs and with the future sale of her dogs.

28The Board ordered that the appellant and her witness, Dr. Fried, be permitted to testify by audio only, if necessary, and that the parties make submissions concerning the weight the Board should assign to their testimony in the event that these witnesses were unable to view exhibits or were otherwise unable to be taken to any documentation during their testimony-in-chief or cross-examination. Because the appellant was ultimately able to access both the audio and video functionality of the video-conferencing technology by the second hearing day, and before providing her testimony in chief, her request to testify by audio only was not pursued.

Conclusion on the preliminary issues

29The Board denied the appellant's request to adjourn the hearing and her request to the Board to issue a summons to Stephen Wilson but granted her request that she and Dr. Fried testify by audio only, subject to submissions as to the weight to be assigned to that testimony.

ANALYSIS

30The SOA included an explanation of the charges which is quoted below.

An animal welfare inspector has provided necessaries to:

Thirty four (34) dogs (English Bulldogs and French Bulldogs) removed from [the appellant's] care on December 02, 2022. Costs are from the date of removal to March 10, 2023 and do NOT include those for dogs "318A-Polly" or "333-Cassidy".

To relieve the distress of the animal(s) as described below:

Transportation Costs: Included $0.00

Boarding Costs: various daily rates, see invoices $118,119.71

Veterinary Costs: various procedures, see invoices $48,817.61

Animal Care Costs: Included $0.00

Miscellaneous Costs: Included $0.00

Total Costs: Dec 02, 2022 through March 10, 2023, minus dogs 318A and 333 $166,937.62 HST included

31There were approximately 95 pages of invoices, exclusive of tabs, that accompanied the SOA and which detailed the boarding and veterinary costs for the dogs.

32On an appeal of a SOA, the appellant may challenge the reasonableness of any of the costs included in a statement of account.

1) THE DOGS

33The 34 dogs who were the subject of the SOA ranged in age from 2 weeks to adult and included two pregnant females. The dogs had been living on two separate properties, the Durham property being used by the appellant to kennel the dogs and the Chatsworth property being her private home. The appellant had been breeding these dogs for private sale.

2) VETERINARY CARE & COSTS

34The SOA included veterinary care costs of $48,816.61. Based on the evidence, we have ordered those costs be reduced because some vaccinations were unnecessary, and one invoice included a charge that we found was unreasonable.

Veterinary Records

35The respondent filed voluminous medical records which were created by various institutions, including specialty centers like the Ontario Veterinary College and Guelph Animal Hospital, and other centers such as, but not limited to, Oak West Animal Clinic, Hamilton Burlington SPCA, North Heritage Animal Hospital, Owen Sound Veterinary, Highway #24 Veterinary Clinic, and Village Mobile Veterinary Services.

36We found that overall, the record-keeping was confusing because of the variability in the ways that the clinics entered and summarized information. In addition, the information recorded was, in many cases, difficult to understand. In part this was due to mistakes with respect to the dogs' ages, weights, and body temperatures. There were a few references to medication being misplaced and documented questions from those involved in the care of the dogs about whether a particular dog had been vaccinated or had received prescribed medication.

37The appellant highlighted the data errors contained in the records, the references to missing medication and some uncertainty around the medical treatment provided, and submitted these were sufficient grounds to doubt the quality of the veterinary care provided and the ensuing charges were unreasonable.

38The respondent submitted that the errors were not significant. They are best described as typographical errors because they had no effect on the quality of medical treatment provided.

39We find that the errors, while frustrating at times, are not sufficient grounds to vary these costs. The central question concerning the medical costs is whether the care and treatment provided to the dogs was reasonable in the circumstances.

40The reasonableness of the medical care and the issue of record keeping was addressed by the respondent's expert.

Expert Opinion Evidence

41Dr. Ian Welch, a registered veterinarian with experience in both general practice and academia, gave opinion evidence on the veterinary care provided to the dogs and the costs associated with that care.

42The appellant did not challenge the qualifications of the witness but asserted that his neutrality was compromised because he had previously completed work for the respondent. Accepting the submissions of the respondent, we found that a past contractual relationship with the party calling the witness, was insufficient, absent any other factors, to compromise this witness's neutrality and their ability to come to their decision independently and without bias. This conclusion is consistent with the appellate jurisprudence on this issue: Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

43The Board qualified Dr. Welch as an expert on veterinary care and the costs associated with that veterinary care. He had reviewed the SOA and the accompanying invoices from the veterinarians and veterinary clinics that examined and treated the dogs and provided a written opinion.

44Dr. Welch testified that while there was tremendous variation in the record keeping, he was able to understand what ailments the dogs presented with and what care was provided to them. Although he agreed that the records contained errors, like the body weight or temperature of some of the dogs, he testified that many of the errors appeared to be typographical in nature. In general, he was of the view that the veterinary care constituted preventative care, like vaccinations, and that the specific medical treatments provided addressed ailments such as dermatitis, dental issues, airway obstructions, upper respiratory disease, vomiting and parasitism, all of which are to be expected for this type of breed or because the dogs were living together in a group. In his opinion, all the medical care provided was reasonable.

45Dr. Welch also considered the reasonableness of the costs incurred for that medical care. He testified that while the line items for treatment did not always easily match up with the medical records, with effort, he was able to connect the diagnoses with the costs incurred.

46He cross-referenced those costs with the Ontario Veterinary Medical Association Fee Code, which is an annual publication of the average service fees for veterinarian services throughout the province. He did not find any service charges to be excessive, and those that were charged at amounts higher than the fee guide were not, in his view, unreasonable. He noted that those published averages are not enforced nor are they otherwise regulated. He cautioned that in his experience, there may be services provided by veterinarians in this province that the fee guide does not include.

47One of those irregular service fees was for a mobile charge of over $4,000.

Non-itemized charge of $4,095.90 was unreasonable

48An invoice dated December 6, 2022 contained an amount of $4,095.90 from Hwy #24 Veterinary Clinic. We found this non-itemized charge to be unreasonable.

49Dr. Welch testified that he contacted the clinic to better understand this charge. The clinic explained to him that they travelled to the shelter to do initial assessments of each of the 15 dogs on December 3, 2022. Dr. Welch understood that the clinic had decided to charge one mobile fee at an hourly rate for the 9 hours of work rather than charging for each dog's assessment individually. He testified that he was advised that the fee included costs for driving time to the shelter, cleaning the mobile clinic, and consumables used. He further testified that as an hourly rate was charged, there was "no way to figure [the $4095.90 invoice] out," but maintained that in his opinion it was not overly excessive. He further commented that he would have "estimated it could come in less than that" but could not specify by how much.

50In assessing the reasonableness of this charge, we considered that section 35(1) of the PAWS Act states that an animal's owner is liable for costs incurred to provide necessaries to relieve an animal's distress, or where the respondent has taken the animal into its care. As the invoice does not itemize how the costs were determined, the Board is unable to determine which costs were necessaries to relieve the dogs' distress. The expert's explanation concerning that invoice did not provide sufficient detail for the Board to assess the necessity of the costs. For example, the Board is unable to determine what amount of the hourly fee was associated with cleaning the mobile clinic, a service that is not necessary to relieve the animals' distress. As the Board is unable to determine the cost associated for the care that was provided for in the invoice, the amount of $4,095.90 will be deducted from the SOA.

Charges for double vaccinations were unreasonable

51The dogs were vaccinated against a number of common illnesses while in the respondent's care. We have found that some of those vaccinations were unnecessary because these dogs had been vaccinated prior to being removed from the appellant's properties and their vaccination history was known or ought to have been known by the respondent.

52The appellant's position is that all the vaccinations provided to the dogs were unnecessary because they had been appropriately vaccinated prior to being taken into the respondent's care.

53The appellant's vaccine records for the dogs showed that the dogs had received their DAPPv vaccine, which includes vaccines for Distemper, Adenovirus, and Parainfluenza-Parvovirus. The dogs' regular veterinarian, Dr. Fried, testified that he did not vaccinate the dogs for Bordetella, which Dr. Welch had previously explained prevents "Kennel cough." Dr. Fried further testified that the last time he vaccinated the dogs was in June 2022, and he administered the mixed vaccine with the rabies vaccine.

54Dr. Welch testified that DAPPv does not include a vaccination against Bordetella. He also testified that immunity for these illnesses would have expired by June 2023. By contrast, the rabies vaccines would be valid for three years.

55While in the care of the respondent, the dogs received the DAPPv vaccine, as well as vaccines for Bordetella and rabies. Dr. Welch testified that these vaccines were reasonable preventative medical care, for dogs that had an unknown vaccination history.

56He agreed, however, on cross-examination that seven doses for DAPPv for one of the dogs, administered in the span of a few months, was unusual.

57Inspector Robilliard authorized the removal of the dogs on December 2, 2022, and was at the appellant's properties during the removal. He testified that he did not remember if the appellant advised him if she had proof of vaccination when the dogs were being removed from her care.

58He also testified that the removal occurred on a Friday afternoon and he was focused on ensuring that the AWS followed careful procedure of identifying each of the dogs, at two different properties, before the close of the business day.

59The appellant testified to the emotional toll of the removal, but that she made every effort to assist the AWS officers on site, which included finding tables so that the officer would have a surface to work on, and providing access to exterior buildings to keep the animals out of the cold while AWS photographed and otherwise identified each dog for removal.

60The appellant testified that she advised Insp. Robilliard that the dogs were all vaccinated "and rabied," that she offered to provide the medical files proving same, but that neither he nor any of his colleagues were "interested."

61We find that the dogs, with the exception of the two puppies, were previously vaccinated with the mixed vaccine for rabies in June 2022. We also find that on a balance of probabilities, the appellant informed Insp. Robillard of this fact during the removal.

62In the circumstances, the vaccines for all but Bordetella were unnecessary, except for the puppies identified as 318B and 322A, which were unvaccinated when removed. The appellant otherwise had the appropriate supporting paperwork and told the Inspector as much.

63In Kafieh & Jefferies v. Chief Animal Welfare Inspector, 2023 ONACRB 58 ("Kafieh"), the Board varied a statement of account where the appellant proved that AWS had been provided with vaccination records for one dog but still included the charge for the duplicative vaccine on the statement of account. The appellants in Kafieh testified that they told the Inspector that other dogs were also vaccinated but could not provide the inspector with the records in a timely manner when asked.

64The facts in this case are distinguishable. Insp. Robillard testified that he did not ask for the records and did not recall whether the appellant informed him that all the dogs were vaccinated. The appellant testified that she did and that he seemed uninterested in the records. He also testified that he was focused on the identification process and removal of the dogs on a Friday afternoon. The fact that the appellant did not physically hand over the vaccination records to Insp. Robillard or any other employee of AWS during the removal is not fatal to the appellant's position that AWS knew or ought of have known that the dogs had been recently vaccinated and that those records were available.

65The respondent submits that the cost of each DAPPv and rabies vaccine is $24.41 + HST = $27.58, as charged by Hwy #24 Veterinary Clinic, which would total $1,765.12 if multiplied by 32 dogs.

66The Board reviewed each invoice and totaled the line item for DAPPv and rabies vaccines. Different veterinarians charged different rates for that vaccine. For example, Village Mobile Veterinary Services charged $35 + HST per DAPP Vaccine compared to $24.41 + HST charged by Hwy #24 Veterinary Clinic. Where an invoice simply referenced "vaccine" as the line item without specifying the specific vaccine, we included that vaccine cost in our calculations. We reject the respondent's submission that the total vaccine costs for DAPPv and rabies vaccines were $1,765.12. Rather, we find that the SOA should be reduced by $2,853.05 being the amount charged for the duplicative DAPPv and rabies vaccines inclusive of HST.

Calculation error that led to $7,143.05 being excluded from the SOA

67Insp. Robillard testified that there were some errors in his calculations of veterinary costs that were included in the SOA. Specifically, the total veterinary costs included in the SOA were $48,817.61, but the actual total costs as explained in the Summary of Invoices filed by the respondent were $55,960.65, a difference of $7,143.05. The respondent advised the Board that it was not asking for the SOA to include the extra $7,143.04 and would not be issuing another statement of account with respect to these costs but requested that the Board "consider this discount if a determination is made that any costs should be excluded from the SOA (such as the costs of vaccination for DAPPv and Rabies)."

68We find that asking the Board to consider this "discount" when determining if any costs should be excluded from the SOA, is tantamount to asking the Board to include the amount in the SOA. We decline to do so. We will confine ourselves to reviewing the charges included in the SOA and any charges excluded in error will not be considered in determining if the SOA should be varied.

3) BOARDING COSTS

69The SOA specifies that the total boarding costs incurred was $118,119.71.

70The appellant submits that the boarding costs should be reduced because the boarding services were "sub-standard" in general, and unnecessary for the dogs that were to be sold. To support her position, the appellant pointed to references made in the medical records to various environmental and husbandry issues. In particular, the appellant submitted that the boarding facilities were unsanitary, that the dogs were not adequately fed and lost weight as a result, and that there were insufficient efforts to prevent the dogs from being "stressed" and "confused". In addition, the appellant submitted that the boarding fees were too high, and that the Board ought to vary them to a reasonable amount.

71The evidence does not support the claim that the boarding facilities were unsanitary. Although the Board heard evidence that some of the dogs were noted to have dried stool stuck to fur on their tails, it was not established on a balance of probabilities that the condition was the result of the care provided by the boarding facilities. We considered, for example, Dr. Welch's testimony regarding the dog named Rolex, where he stated that it was unclear if the dog had dry stool on the tail when delivered to the boarding facility, that he did not know how long the feces had been on the tail, and that it could be "missed" because of its location on the tail.

72The appellant also submitted that the dogs suffered a, to use her words, a "dramatic" weight loss and that this was caused by the boarding facilities. However, the evidence does not support a finding of dramatic weight loss. Dr. Welch testified that any short-term weight change was not a point of concern as it is not uncommon due to the normal stress of moving dogs to a new environment. He added that some of the dogs may have also lost weight due to a Giardia infection. There was no evidence led as to the likely source of that infection. Dr. Welch explained that he would have to see long-term trends of weight loss to form an opinion that the weight loss was concerning. The medical records for the dogs covered a three-month period, and no long-term medical information was available. In sum, there was insufficient data for Dr. Welch to conclude that weight loss experienced by any of the dogs was concerning.

73Referring specifically to the dog named Bo, when asked about the dog's weight dropping from 19 pounds to 15 pounds, and then further to 14 pounds, Dr. Welch testified that the dog had whip worm, Giardia, and bloody diarrhea at the time of the weight loss. Dr. Welch testified that those infections could have led to this weight loss independent of environmental factors.

74Finally, the appellant submitted that the boarding facilities did not make sufficient efforts to prevent the dogs from being "stressed" and "confused" and that she considered the weight loss to be a sign of this. As explained previously, we accepted Dr. Welch's evidence that it was not uncommon for dogs to lose between 3 and 4 pounds when "moved around" and that this was "absolutely normal." Dr. Welch further testified that weight loss due to being moved is also tied to the personality of the individual dog, and that "some dogs don't mind" being moved. Regarding any confusion that the dogs may have experienced as a result of being called a different name once being brought to the boarding facilities, there is no evidence to support that this resulted in adverse health consequences and "stress." There was no evidence submitted by the appellant to support how the boarding facilities may have reduced any stress that the dogs may have experienced from being in a new facility and from any health conditions that they were experiencing at the time.

75We accept Dr. Welch's evidence and therefore reject the appellant's position that the boarding facilities were sub-standard. Although there was a weight loss for some of the dogs, we do not find that it was dramatic, nor that it was a result of unsanitary boarding facilities, nor do we find that the facilities added to the stress the dogs may have experienced as a result of the being seized by AWS.

76The appellant further submitted that the boarding fees of $40 per day per dog were unreasonable, and that boarding fees for a dog are on average $30 per day and it is typical for boarding facilities to make discounts for multiple dogs.

77Insp. Robillard testified that the facilities he chose were based on a colleague's recommendations and that the boarding rates charged in this case were within the industry standard. On cross-examination, he agreed that the prices charged for boarding are in the mid-range and there are facilities that charge less. He confirmed that boarding facilities are also selected based on whether they have resources to manage dogs with unknown demeanors, their cleanliness, whether they offer breed-specific food and enrichment, and provide fresh air. In other words, price was not the only consideration for choosing the boarding facilities.

78Based on Insp. Robillard's testimony, we find that the respondent took care to select these boarding facilities and the costs were reasonable. The appellant did not submit evidence that the boarding fees in that appellant's geographic location was $30 per day with discounts for multiple dogs.

79For these reasons, the SOA with respect to the boarding fees is confirmed.

4) OTHER GROUNDS TO VARY THE SOA

No submissions on the appellant's inability to pay

80In her Notice of Appeal of September 14, 2023, the appellant raised her inability to pay as a reason for the Board to vary the SOA, and the Motion Decision confirmed that the appellant could raise her financial circumstances and inability to pay as a ground of appeal given that it was included in her original notice of appeal. We also had available to us copies of the appellant's 2022 Statement of Old Age Security and 2022 Statement of Canada Pension Plan Benefits. However, we received no submissions on the effect of this information on the Board's decision to confirm, revoke or vary the SOA.

The Board does not have jurisdiction to adjudicate alleged breach of private law duty of care

81The appellant relied on Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, in arguing that the SOA should be varied or revoked. The appellant argued that the respondent "acted as if [it] had no duty of care towards the appellant," and "prevented the appellant from selling her property and by [its] actions contributed to the alleged prejudice he claims today." However, as held by the Board in the Motion Decision, this case is not helpful as it deals with the elements necessary to ground a private law duty of care in negligence advanced in the courts, and the Board's jurisdiction does not include common law rights and remedies. As previously stated in these reasons, we agree with the Board's reasoning in that Motion Decision and find that addressing a tort is outside the Board's jurisdiction.

82Referring to the duty to mitigate obfuscates the underlying question the appellant raises, which concerns the respondent's knowledge of a pending sale of the dogs.

AWS did not prevent the proposed sale of the dogs

83The parties agree that the appellant was unable to sell 10 dogs because they were in the care of the respondent. The buyers walked away. The issue for this Board is whether the respondent unreasonably prevented the sale, which then led to costs being incurred for those dogs. We find that the respondent did not prevent the sale of the dogs.

84The appellant submits that had she sold the dogs when she wanted to, the SOA would have been lower. Insp. Robilliard agreed that the SOA would have been "significantly reduced" had the appellant been able to sell the dogs that were seized. Insp. Robilliard testified that AWS was "open to all possibilities," including advising the appellant that there is a provision in the PAWS Act that allows her to apply to have the dogs returned. He also testified that he advised her that if she had a friend with a large facility, AWS could inspect it and the animals could be returned to her. He further testified that if the dogs were to be sold, AWS would "need to know where the dogs were sold" to confirm that the dogs would not be placed in distress.

85In further testimony, Insp. Robillard said that he discussed the potential sale of the dogs on many occasions with the appellant. For example, on February 3, 2023, he wrote to the appellant and set out AWS's response to the proposed sale of some of the dogs:

You also indicate in [a return plan for the dogs] that your plan is to have numerous dogs returned to you in order to facilitate their sale. You state specifically this is so prospective buyers can be shown the dog and gage [sic] its colour, conformation, personality and temperament, and that your son [...] will help you sell and transport the dogs to the buyers. You have further stated that 6 dogs are already sold, but you have previously told me some buyers are out of province. Can you please reconcile how you have screened these buyers and how those dogs would be delivered? As previously discussed, the ministry must be able to confirm any dogs sold are going to acceptable homes and will not be placed in a state of distress.

86Insp. Robilliard testified that the appellant did not provide answers to address AWS' concerns. He agreed that it could be a deterrent for a prospective buyer to know that the animal was in the respondent's care.

87The appellant testified that she had buyers for 10 of the dogs, but that once the dogs were in the respondent's care and that she could not release the dogs, "what was the point." The appellant explained what happened in her testimony:

I had to say [to prospective buyers] AWS seized the dogs and they told me that I could see the dogs, but told me after that that [AWS] would have to go to each place and investigate their premises to see if suitable. Some were horrified and they all turned to me and said no damn way, we aren't going to get involved if [AWS] is crawling all over us. The deals fell through and justifiably so.

88Although the appellant believed that her veterinarian, Dr. Fried, would assist her with the sale of the animals, when asked if he offered to help the appellant to sell the dogs after they were seized by AWS, Dr. Fried categorically denied it.

89The appellant relied on Ray v. Chief Animal Welfare Inspector, 2022 ONACRB 22 ("Ray"). In that decision, the appellant tried to have seized cattle sent to an auction house to stop the mounting boarding costs, but the Inspector would not release the cattle before the statements of account were paid. A representative of the auction house also testified that he spoke directly with the Inspector and told him that he could sell the seized cattle. The Board held that although there is no statutory obligation and no authority for AWS to sell animals that have not been forfeited to the Crown, "there is nothing in the legislation to prevent the parties from reaching an agreement to send the animals for sale and to hold the receipts in trust until the SOAs are settled or following a Board decision." The Board reduced the SOA, finding that the boarding costs could have been significantly reduced if the respondent had agreed to facilitate the sale of the cattle at the auction house. Although not binding on this panel, Ray can be distinguished from the present case in that AWS did not refuse to release the dogs pending payment of the SOA, and there were no confirmed buyers of the appellant's dogs. In fact, the appellant herself stated that the "deals fell through".

90The potential buyers withdrew their interest in purchasing the dogs once it became known to them that AWS was involved, as they, according to the appellant's evidence, did not want to deal with AWS. While there is evidence that AWS's involvement created a stigma that discouraged buyers from moving forward with a purchase, its involvement in a potential sale was incidental to the exercise of its statutory powers to remove the dogs under section 31 of the PAWS Act. The validity of the removal orders is not the subject of this appeal. Unlike in Ray, the respondent had explained to the appellant how it was prepared to facilitate the sale. It cannot be faulted for buyers being unwilling to engage with the provincial animal welfare agency exercising its powers under the PAWS Act. Although the appellant was willing to facilitate the sale of the dogs, she was unable to satisfy the respondent that the dogs would not be placed in distress if they were returned to her while she sought to have them sold to new homes.

Duty to sell the dogs and reduce the appellant's financial liability

91The Minutes of Settlement included an agreement to transfer ownership of the dogs from the appellant to the Crown.

92The appellant submits that when the respondent transferred the dogs to the boarding facilities, the inspectors who authorized those transfers, namely Inspectors Robilliard and John Brown, acted without any statutory authority as neither were the Chief Animal Welfare Inspector, as required by section 63(1) of the PAWS Act. When asked why the respondent had given the dogs away rather than sell them, Insp. Robillard responded, "that's a great question" and, "those decisions are not made by me."

93According to the Will Say of Insp. Robillard, the "ministry has only engaged in the sale of animals in very limited/specific cases (eg. Large number of commercial cattle) and AWS has no policies in place that permit the sale of animals"

94Although the appellant does not explain how the SOA should be reduced or varied if the Board were to find that Inspectors were acting outside their statutory authority, the Board finds that the transfer of ownership of the dogs to the boarding facilities occurred after the appellant transferred ownership of the dogs to the respondent. As a result, the Board makes no determination of whether the Inspectors were acting outside their authority when they transferred the dogs, and therefore, this issue has no bearing on the appeal of the SOA.

95There is no statutory authority requiring the respondent to sell the animals that have been forfeited to the Crown. In the absence of any agreement to the contrary, the respondent's decision to transfer the dogs to the boarding facilities without charge is not a relevant ground to reduce the SOA.

Conclusion on the grounds to vary the SOA

96The appellant questioned the reasonableness of the veterinary care and the costs incurred, with some success. She was, however, unsuccessful at challenging the boarding costs despite extensive submissions.

CONCLUSION AND ORDER

97For all the reasons set out above, the Board orders:

a. That the SOA be reduced by $2,853.05, which represents the costs of the unnecessary vaccinations; and b. That the SOA be reduced by $4,095.90 for the un-itemized fee from the mobile clinic.

98As a result, the appeal is allowed, and the SOA is varied to $159,988.67, payable to the Minister of Finance within the time limit prescribed by the PAWS Act.