Ninef Hanna v. Chief Animal Welfare Inspector, 2024 ONACRB 86

Date: 2024-05-02

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

Between:

Ninef Hanna Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicators: Peter Simmons, Member

Appearances:

For the Appellant: Ninef Hanna, Self-represented

For the Respondent: Eloise Jones, Regional Supervisor, Animal Welfare Services (AWS);

Anita Schenk, Inspector, AWS

Danielle Meuleman, Counsel

Heard by Videoconference: April 3, 2024

OVERVIEW

1Ninef Hanna, the appellant, has appealed a Statement of Account (SOA) in the amount of $2,344.60 to the Animal Care Review Board (the Board). The SOA was served by Inspector Anita Schenk (Inspector Schenk) of Animal Welfare Services (AWS) on February 13, 2024, for veterinarian services.

2The appellant is the guardian of the owner (Owner), of a Maltese-type dog, Pamuk. The Owner is a minor.¹

3On February 8, 2024, the Owner took Pamuk to Toronto Animal Health Partners (TAHP) because he was experiencing seizures and was unresponsive.

4Pamuk was seen by the attending veterinarian at TAHP, and his condition was monitored while at TAHP. The underlying cause for his symptoms was not known by the Owner, and they could not be immediately identified by the veterinarian.

5Pamuk’s condition was declining and TAHP contacted AWS out of concern for his health because the Owner wished to leave TAHP with Pamuk against the advice of the veterinarian.

6On February 8, 2024, Inspector Schenk served a Notice of Removal (NOR) pursuant to s.31 (a) of the of the Provincial Animal Welfare Services Act, 2019 S.O. 2019, c. 13 (PAWS Act, 2019) on the Owner and Ronza Esho (Ms. Esho).² The NOR was served in response to Inspector Schenk being provided a Certificate of a Veterinarian Advising the Removal or Euthanasia of an Animal

(Certificate)³ signed by TAHP veterinarian Dr. Hanna Gendron (Dr. Gendron). Pamuk was at TAHP when the Certificate was issued, and removal initiated.

7Between February 8 and 9, 2024, Pamuk remained at TAHP and received examinations, blood tests, oxygen, a neurological consultation, and treatment including medication.

8Pamuk was returned to the Owner on February 9, 2024, because he had responded to the treatment and recovered.

9On February 14, 2024, Inspector Schenk served a SOA pursuant to s.35(1) of the PAWS Act, 2019 on the appellant.⁴

10On February 15, 2024, the appellant appealed the SOA to the Board on behalf of himself, Ms. Esho and the Owner who are all listed on the SOA.

11The Board held a case conference on March 8, 2024, and the matter proceeded to a videoconference hearing on April 3, 2024.

ISSUE IN DISPUTE

12The issue in dispute in this matter is:

1. Should the SOA issued February 13, 2024, in the amount of $2,344.60 be confirmed, revoked, or varied?

RESULT

13For the reasons that follow, I:

1. Vary the SOA of February 13, 2024, in the amount of $2,344.60 to $2,162.88.

EVIDENCE AND ANALYSIS

14The burden of proof in this appeal is on the appellant to show that the SOA should be revoked or varied. The respondent, however, 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.⁵

15Section 35(1) of the PAWS Act, 2019 makes an animal owner or custodian liable for costs incurred by the Chief Animal Welfare Inspector (CAWI) 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 CAWI has kept the animal in its care under s. 31(6) or taken the animal into care under s. 44(8).

16Section 35(2) of the PAWS Act, 2019 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.

17Some context and detail are necessary to understand what led AWS to serve the SOA.

Pamuk was in distress and removal from the Owner’s care was necessary

18The respondent’s evidence shows that Pamuk was brought to TAHP by the Owner on February 8, 2024, because he was vomiting and had collapsed. TAHP records and communication logs show that the Owner did now know the cause of Pamuk’s illness but advised that Pamuk had been taken to Vellore Woods Animal Hospital (Vellore Woods) the same day, and they referred the Owner to TAHP.⁶

19The respondent’s evidence indicates that Pamuk was immediately examined upon his arrival at TAHP where the underlying cause of his condition was not immediately known. Dr. Gendron spoke with the Owner about Pamuk’s symptoms, specifically, that he was unresponsive, unstable and a neurological assessment may be required.

20The respondent’s evidence shows that Dr. Gendron spoke to the Owner around 4:30 p.m. She provided an update on Pamuk indicating that his condition was more critical than when he arrived, and he has been provided a hypertonic saline as a temporary measure while the underlying cause to his condition was sought. The evidence also shows that the Owner wished to leave TAHP and take Pamuk back to Vellore Woods for further care.⁷

21The respondent’s evidence shows that around 4:45 p.m. Dr. Gendron again spoke with the Owner and advised that she contacted Vellore Woods and confirmed they could not accommodate Pamuk. She also advised the Owner that removing Pamuk would prolong his suffering and likely result in his death. She also raised the humane euthanasia option, but it was declined by the Owner. TAHP log records show that the Owner was insisting on taking Pamuk home against medical advice.

22Inspector Schenk testified that AWS triage received a call from TAHP out of concern for Pamuk’s health and that the Owner wished to leave TAHP with Pamuk.

23At around 5:52 p.m. Inspector Schenk discussed the situation with Dr. Gendron and was advised a brief time later that the Certificate had been issued because Pamuk was deemed to be in distress by Dr. Gendron and removing him from the Owner’s care was necessary to alleviate his distress.

24At approximately 6:00 pm. the appellant and Ms. Esho arrived at TAHP and joined the Owner.

25The respondent testified that around 6:26 pm and prior to Pamuk’s removal by AWS, AWS Regional Supervisor Brandon James (RS James) contacted Dr. Kyle Goldie (Dr. Goldie)⁸ and advised that the Certificate had been signed. They concurred that treatment including a neurology consultation should proceed, and that Dr. Gendron would contact Dr. Goldie to discuss Pamuk’s situation further.

26At 6:30 p.m., Inspector Schenk served a Notice of Removal (NOR) on the Owner and Ms. Esho pursuant to s.31(1)(a) of the PAWS Act, 2019 and took possession of Pamuk while at TAHP.

27At around 6:43 p.m. Dr. Goldie discussed the details of Pamuk’s condition with Dr. Gendron. In his Expert Report⁹ Dr. Goldie stated Pamuk was receiving oxygen, had suspected intracranial issues, and non-responsive pupils. He contacted RS James a brief time later to advise against discharging Pamuk based on clinical signs.

28At approximately 7:00 p.m. and with Pamuk in the care and possession of AWS, Dr. Goldie authorized Dr. Gendron to proceed with the treatment and neurological consultation. Around this same time, the appellant, Ms. Esho, and the Owner departed TAHP. Pamuk remained at TAHP.

Should the SOA be confirmed, revoked, or varied?

29I vary the SOA of $2,344.60 to $2,162.88 for the reasons that follow. This is a reduction of $181.72 relating to the ‘Ward level 2 per unit’ fee.

30I find the SOA was properly served on the appellant, in accordance with s. 35(1) of the PAWS Act, 2019 that 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.

31I also find that s.35(3) of the PAWS Act, 2019 states that an animal’s owner or custodian is liable for the amount set out in a statement of account.

32The appellant argued the Owner was denied the opportunity to seek a lower cost for Pamuk’s care.

33The appellant further argued that Pamuk’s condition was not fully explained to him, leading him to question the costs in the SOA.

34The SOA is supported by detailed invoices and medical records showing the care and treatment provided to Pamuk between February 8 and 9, 2024.¹⁰

35Dr. Goldie reviewed each item in the SOA and his Expert Report included details related to the invoices as well as his opinion of the costs. He used the Ontario Veterinary Medical Association 2024 Suggested Fee Guide (Fee Guide) for rate and fee comparison where applicable.

36Dr. Goldie’s Expert Report also includes opinion on certain charges in the SOA that have no comparator in the Fee Guide. He provided details and explanations on these items testifying that based on his experience these costs are reasonable and consistent with industry practices. These non-comparator charges include:

1. Emergency Fee - priority patient - $93.92

2. Chem 15 clip - serum biochemistry test - $101.77

3. CBC - complete blood count test and analysis - $80.00

37When asked specifically about the ‘Ward level 2 per unit’ fee of $181.72, which has no comparator in the Fee Guide, Dr. Goldie said it is ‘presumably’ for a different level of hospitalization care for Pamuk once moved out of ICU. This is consistent with the comments in his Expert Report. The respondent provided no other evidence concerning this charge in the SOA.

CONCLUSION

Prioritizing urgent care for Pamuk

38Pamuk’s condition was enough of a concern that the Owner felt compelled to take him to a veterinarian. The respondent’s evidence shows that Pamuk was in poor condition from unknown cause(s) when he was brought to TAHP where he received prompt treatment after being referred from another animal hospital.

39The removal of Pamuk from the Owner’s care was appropriate, lawful, and necessary under the circumstances. The situation required emergency care because he was in distress, which is confirmed by the Certificate.

40I reject the appellant’s argument that the Owner was denied obtaining a second opinion for Pamuk. His health was the priority, and the Certificate was issued because his distress required relief, which was not assured had the Owner left TAHP with Pamuk as they wished to do. Furthermore, had Pamuk been removed against the medical advice of Dr. Gendron he would have suffered further and likely died.

41I also reject the appellant’s argument that Pamuk’s condition was not fully explained. The respondent’s evidence shows that the Owner was kept fully informed of Pamuk’s condition throughout the time he was at TAHP, and Dr. Gendron had a telephone conversation with the appellant before he arrived at TAHP¹¹. What is more, through his own admission the appellant said he did not review the medical records or contact Dr. Gendron with any questions about the treatment provided to Pamuk.

Statement of Account

42I acknowledge that Dr. Goldie was not involved in the preparation of TAHP invoices or records used to support the SOA. The respondent asked him to review the medical records and invoices concerning the care provided to Pamuk

and provide an opinion on that care, and the reasonableness of the costs in the SOA.

43I find that the respondent met the initial evidentiary burden and has proven, on a balance of probabilities, that the SOA reflected the actual costs of necessaries and that these costs were reasonable apart from one charge for $181.72.

44I find that the charge of $181.72 for ‘Ward level 2 per unit’ fee was not supported.

45The SOA includes costs that are cross-referenced and compared with the Fee Guide. The SOA also includes costs that have no Fee Guide comparator but were adequately explained and particularized with one exception; the ‘Ward level 2 per unit’ fee of $181.72 which is insufficiently detailed and unclear and has been deducted from the SOA.

ORDER

46Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I vary the SOA and order that the costs of $2,162.88 be paid to the Minister of Finance.

Footnotes

1. 1The testimony of AWS Inspector Schenk indicates the appellant identified himself as the Owner’s guardian.
2. 2The NOR is not in dispute and is not before the Board. Ronza Esho is the older sister of the Owner, and partner of the appellant.
3. 3Exhibit 4 – page 9 of the Respondent’s Document Brief. Certificate of a Veterinarian Advising the Removal or Euthanasia of an Animal advises that alleviating the distress of the animal necessitates its removal of the animal from where it currently is, pursuant to s. 31(1) of the PAWS Act, 2019.
4. 4Exhibit 3 (page 11 and 12 of respondent’s Document Brief). The SOA is dated February 13, 2024, and was discussed on that same day by telephone between Inspector Schenk and the appellant. On February 14, 2024, Inspector served the SOA on the appellant in person.
5. 5See Windrift v. CAWI, 2023 ONSC 4501, paragraph 76
6. 6Exhibit 2 (page 32 of respondent’s Document Brief)
7. 7Exhibit 2 (pages 32 and 34 of respondent’s Document Brief)
8. 8Dr. Kyle Goldie – Regional Veterinarian with Provincial Animal Welfare Services
9. 9Exhibit 1- pages 22 to 30 of the respondent’s Document Brief.
10. 10Exhibit 2 and 3 of the respondents Document Brief.
11. 11Page 41 respondent’s Document Brief