Gordon Gibb v. Chief Animal Welfare Inspector, 2024 ONACRB 84

Tribunals Ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

Date: 04/25/2024

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

Between:

Gordon Gibb Appellant

and

Chief Animal Welfare Inspector Respondent

AMENDED DECISION AND ORDER

Adjudicators: Alisa Chaplick, Member Emma Rhodes, Vice-Chair

Appearances:

For the Appellant: Gordon Gibb, Self-represented For the Respondent: Ryan Sparks, Regional Supervisor, Animal Welfare Services (AWS) Wynter Patchett, Inspector, AWS Danielle Meuleman, Counsel

Observers: Mark Sraga, ACRB Member Debra Backstein, ACRB Member

Heard by videoconference: February 27, 2024 (full-day) & March 6, 2024 (half-day)

BACKGROUND

1Gordon Gibb, the appellant, is the owner of three cats named Dusty, Booboo, and Sniffy (the Cats or the Cat as the context requires). Unfortunately, the appellant fell and broke his leg and he arranged for a friend to care for the Cats while he was treated in hospital. His friend, however, contacted Animal Welfare Services (AWS) as he was unable to care for the Cats any longer.

2AWS removed the Cats pursuant to Notices of Removal (NOR) dated December 22, 2023, which are not under appeal. AWS issued a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care dated Wednesday, January 3, 2024 (DTK).

3AWS then rendered a Statement of Account dated January 4, 2024 (SOA) in the amount of $1801.11, for having the Cats examined, treated, and kept at a veterinary clinic. Since this SOA was issued, the Cats have been transferred to a boarding facility and remain in care.

4The appellant appealed both the DTK and the SOA to the Animal Care Review Board (Board) by Notices of Appeal dated January 12, 2024. While we have added the appeal of the DTK as an issue in this matter, during the course of the hearing, the appellant stated that he is no longer appealing the DTK, as he is unable to provide a home for the Cats at this time, as discussed further below.

5The matter proceeded to a videoconference hearing; however, on consent of the respondent, the Board permitted the appellant to participate by telephone because he advised the Board that he lacked access to the necessary technology to participate by videoconference.

ISSUES IN DISPUTE

6The issues to be decided are:

1. Should the DTK be revoked, and the Cats returned to the appellant?
2. Should the SOA dated January 4, 2024 be confirmed, revoked, or modified?

RESULT

7For the reasons that follow, the Board:

1. Finds that the DTK dated January 3, 2024 was necessary as the Cats may have been placed in distress if returned to the appellant; and
2. Revokes the SOA dated January 4, 2024 in the amount of $1801.11.

EVIDENCE AND ANALYSIS

Issue 1 - Should the DTK be revoked and the Cats returned to the appellant?

8Section 31(6) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (PAWS Act) allows for the Chief Animal Welfare Inspector to keep an animal that was removed in care if it determines that doing so is necessary to relieve the animal’s distress or if the animal may be placed in distress if returned to its owner.

9Inspector Wynter Patchett testified for the respondent. She stated that the appellant’s friend called AWS on or around December 21, 2023, and told her that the appellant’s Cats were being housed in unsanitary conditions. Shortly thereafter, Inspector Patchett attended the hospital where the appellant was being treated for his fall and spoke with the appellant, who consented to her entry into his premises and signed a Consent Form, so that the Cats could be cared for.

10Inspector Patchett testified that she then attended his premises in Windsor, Ontario, and found that there was a sewage leak or flood at the premises. In addition, she testified that there was a lack of clean food and water for the Cats. Inspector Patchett testified that she then phoned Regional Supervisor Ryan Sparks (Regional Supervisor Sparks) and advised him of the condition of the appellant’s premises and sought approval to remove the Cats. It was her view that pursuant to s. 31(1)(b) of the PAWS Act, it was appropriate to remove the animals due to their being in distress, that the owner was not able to attend to their needs and on account of the unsanitary conditions of the appellant’s apartment. Regional Supervisor Sparks testified that he agreed the Cats needed to be removed from the appellant’s premises.

11The respondent entered into evidence photographs of the appellant’s premises taken by Inspector Patchett on December 22, 2023, which showed the unsanitary conditions of the premises. The photographs depicted brown liquid filling the bathtub, as well as insects, debris, and biofluids throughout the premises. Inspector Patchett testified that there was flooding throughout, with most areas completely submerged in what appeared to be raw sewage.

12Inspector Patchett issued a NOR dated December 22, 2023, at 4:28 p.m. for two of the Cats, Dusty and Sniffy, pursuant to s. 31(1)(b) of the PAWS Act. Inspector Patchett testified that she was only able to retrieve Dusty and Sniffy. In her attempt to retrieve the third Cat, Booboo, Inspector Patchett received an injury and required medical treatment. Inspector Patchett requested assistance, and Inspector Savannah Kort (Inspector Kort) was able to retrieve the third Cat, Booboo. Inspector Kort issued a Notice of Removal dated December 22, 2023, at 6:46 p.m. for Booboo, also pursuant to s. 31(1)(b) of the PAWS Act.

13Regional Supervisor Sparks testified that as a result of the information that he received from Inspector Patchett, a DTK was served on the appellant. The DTK dated January 3, 2024, was issued on the basis that the Cats may be placed in distress if returned to the appellant on account of the unsanitary living conditions at the time, and because of the lack of potable water in the premises.

14Although the appellant appealed the DTK of January 3, 2024, during the hearing he took the position that he was no longer disputing the respondent’s decision to keep the animals in care. In particular, he stated that he wanted the Cats to be kept in the respondent’s care at this time, and explained that since he was discharged from hospital, he has been living in various motels that do not allow for animals. Accordingly, he is unable to house and care for the Cats. The respondent agreed that the appellant is currently unable to provide a home for the Cats due to his living situation.

15The appellant further agreed that he consented to having AWS enter his home so that his Cats could be removed and cared for. The appellant agreed that when AWS removed the Cats, he was in hospital, and, although not his fault, his home was inhabitable as it was flooded. Although the appellant tried to have the Cats cared for by his friend while in hospital, the appellant agreed that it was necessary for the AWS to keep the animals in care as, unfortunately, his friend would not take care of the Cats. The Cats would have been placed in distress if returned to his home that was, at the time, submerged in raw sewage, and because there was no one available to care for them.

The DTK is Confirmed

16As a result of the appellant and respondent’s agreement on this issue, the DTK is confirmed. The Board agrees that the Cats would have been in distress if returned to the appellant. At the time of the removal, he was unable to care for the Cats, and his home was unsuitable for animal occupancy as it was submerged in raw sewage.

Issue 2 - Should the SOA be confirmed, revoked, or modified?

17In a Notice of Appeal dated January 12, 2024, the appellant, among other reasons, appealed the SOA on the basis “of his personal financial circumstances.” 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.

18Section 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.

19Inspector Patchett testified that on January 4, 2024, she attended the hospital that was treating the appellant and served him personally with the SOA. The SOA included costs for veterinary care at Lauzon Veterinary Hospital (Vet Hospital) as, according to the respondent’s evidence, the Cats had live external parasites and one of the Cats was diagnosed with an upper respiratory infection and required antibiotics.

20Inspector Patchett further testified that the Cats were boarded at the Vet Hospital from December 22, 2023 - December 30, 2023. The boarding fees were $50 per Cat per day, plus HST. The respondent acknowledged that the boarding costs for the Cats were on the high end, but stated there were no other viable boarding options at that time, given that it was the holiday season. Inspector Patchett testified that the Cats have since been moved to a facility where the boarding costs are lower.

21The appellant testified about his personal circumstances, including difficulties with his living situation and his health, all of which interfered with his ability to care for the Cats and his ability to pay for the SOA. He recounted that his basement rental apartment had flooded due to a plumbing issue and that the landlord had not addressed the problem. As a result, after he was discharged from hospital, he was unable to move back to his home because of the unsanitary and unsafe conditions. The appellant testified that he was essentially currently unhoused, was looking for a home, and was living at a motel that did not allow animals. He acknowledged that as of the date of the hearing, he did not have a place for the Cats to live. In further testimony, the appellant noted that he was going to be “kicked out” of the motel the morning that he was participating in the hearing. He did not indicate if he had another place to go.

22Although he has been discharged from hospital, the appellant testified that he continues to recover from his leg injury and has ongoing mobility issues. He testified that he has several significant medical conditions, takes daily medication, and lives with a heightened risk of heart attack. He testified that he was running out of money as he had to pay to live in a motel, so he was not sleeping on the street.

23The appellant also testified about his love for the Cats and expressed great concern for their well-being. He testified that he missed the Cats very much. The respondent did not dispute that Mr. Gibb is currently experiencing unique personal hardships.

The SOA is Revoked

24For the reasons that follow, the Board revokes the SOA in the amount of $1,801.11.

25Although the Board did not receive supporting documentation from the appellant regarding his inability to pay the SOA, we found his testimony regarding his current financial hardship to be reliable and credible, and that served as a basis for the Board to revoke the SOA. The Board finds that the appellant had special circumstances, which the Board weighed when deciding to revoke the SOA. In particular, we considered the appellant’s testimony that he is currently unhoused due to his rental residence being flooded, that he is paying for motels while he looks for permanent housing, that he is running out of money, that he has significant health concerns, and that he continues to suffer from a serious leg injury. The respondent did not dispute the appellant’s testimony regarding his current financial hardship.

26Given the facts and the special circumstances in this matter, the Board is of the view that the SOA should be revoked. The appellant was reliable and credible in his testimony that he is currently facing financial hardship due to his current housing status and health challenges. As noted above, in revoking the SOA, the Board considered the facts and circumstances of the case, which are unique to the appellant. The Board is satisfied that, on a balance of probabilities, the appellant is unable to pay the SOA.

ORDER

27Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:

1. Confirms the DTK dated January 3, 2024, made under s. 31(6) of the PAWS Act.
2. Revokes the SOA dated January 4, 2024, in the amount of $1,801.11.