Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Maureen Somers
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION & ORDER
Before: Ashley Deathe, Member Robert Dowhan, Member*
For the Appellant: Maureen Somers, Self-represented
For the Respondent: Regional Supervisor Victoria Croker, Animal Welfare Service (AWS) Inspector Rachel Falls, AWS Jessica Holroyd, Counsel
Heard by Telephone Conference: June 11 & 12, 2024, with written closing submissions due June 28 (Respondent), July 17 (Appellant), and July 24, 2024 (Reply)
*Robert Dowhan did not participate in the decision.
OVERVIEW
1This appeal is about whether Maureen Somers (the Appellant) must pay $10,435.34 to the Chief Animal Welfare Inspector (the Respondent) to cover the costs of care and distress relief for four horses named “Jessica,” “Cara,” “Gorgeous,” and “Candy” between January 18 and April 12, 2024.
2The Respondent served the Appellant with a Statement of Account dated April 18, 2024 (the “April SOA”) pursuant to s.35 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c.13 (PAWS Act). The total amount of $10,435.34 included the costs to transport the horses, provide medical, dental and other animal care services to the horses, as well as board the horses after they were removed from the Appellant’s care on January 18, 2024.
3The Appellant appealed the April SOA to the Animal Care Review Board (the Board) on April 24, 2024 and the matter proceeded to a two-day hearing on June 11 and 12, 2024 via telephone conference.
4At the close of the hearing, the Board ordered written submissions from the parties. A timetabling order was issued to the parties on June 17, 2024, in which the Board also directed the parties address a preliminary issue of statutory interpretation. The final deadline for the parties’ written submissions was July 24, 2024.
5Only the Respondent filed closing submissions. At the time of writing, the Board has not received the Appellant’s written submissions or any request from the Appellant to file submissions late.
PRELIMINARY ISSUE
6The preliminary issue to be decided is:
SUBSTANTIVE ISSUES
7The issues to be decided in the hearing are:
Should the April SOA be confirmed, varied, or revoked?
Is the Appellant entitled to costs?
RESULT
8The Board confirms the April SOA in the amount of $10,435.34 and dismisses the Appellant’s request for costs.
ANALYSIS
PRELIMINARY ISSUE
9For reasons that follow, I find that the April SOA was issued in accordance with s. 35 of the PAWS Act when it was served on the Appellant even though she was not an owner or custodian of the horses at the time of service of the April SOA.
10Two of the horses were euthanized on February 9, 2024, and the Appellant forfeited the remaining two living horses on April 12, 2024.
11Once a person forfeits their animal(s) they are no longer the “owner or custodian” but rather, the previous owner or custodian which extinguishes their rights of ownership and possession of the animals previously owned by them: Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782, at para. 9.
12Section 35(1) of the PAWS Act 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 any of the following circumstances […]
13Here, as the April SOA was issued after the horses were either euthanized or forfeited, the Board raised the issue of whether the Appellant’s ownership status at the time the April SOA was served was relevant to this appeal. The Board invited the parties to make submissions on this issue.
a) Principles of Statutory Interpretation
14The principles of statutory interpretation require that the words of an Act are to be given their ordinary meaning. The Supreme Court explained that words are to be read in their entire context, in their grammatical and ordinary sense, in harmony with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, at para. 21 [Rizzo Shoes].
15The Supreme Court in Rizzo Shoes also acknowledged that the statutory interpretation principles include a presumption against absurdity: Rizzo Shoes, para. 27. The label of absurdity may attach to interpretations which lead to consequences that undermine the purpose of a statute.
16The overarching purposes of the PAWS Act includes promoting accountability and ensuring animal welfare. These purposes were confirmed and applied by the Divisional Court in Ontario (Chief Animal Welfare Inspector) v. Ishankova, 2023 ONSC 1284 at para. 56.
17It is significant that the legislature refers to two legal categories of persons – “owners” or “custodians” -- throughout s. 35 and the rights and obligations of "owners" and "custodians" are the same.
18Neither “custodian” or “owner” is defined in the PAWS Act. The Board has previously held that a person is a custodian if they are temporarily caring for animals, providing protection, or maintenance. Unlike “ownership,” the category of “custodian” relies on a person being in possession of the animal. The threshold is not high, but it is likely more than a fleeting relationship: Biernacki and the Reptile Store v. Chief Animal Welfare Inspector, 2023 ONACRB 63, at para 17.
19If the animal’s custodian loses possession of that animal, then they are unlikely to meet the threshold of custodian.
b) Is ownership status a pre-condition of service of a SOA?
20If a person must be an owner of an animal at the time the SOA is served, the section appears to promote the prompt issuance of SOAs, in advance of any agreement to forfeit animals or statutory forfeiture due to non-payment of an earlier SOA. If an animal is euthanized, ownership would extinguish. If ownership is a pre-condition of service of a SOA, the costs incurred by the province for the care preceding euthanasia may be unrecoverable.
21While the timing of the decision to euthanize an animal and the resulting change in ownership status may be unpredictable, the act of forfeiture, whether by agreement or by statute, would be a predictable ownership change that the Respondent may consider when issuing statements of account.
22The legal implications of reading the “owner” category as a pre-condition for service of a SOA are not obviously absurd.
23Interpreting the “custodian” category as a pre-condition for service of a SOA, however, would lead to absurd consequences. An animal’s custodian could avoid financial accountability simply by not being in possession of the animals at the time the SOA was served. This would attach differing responsibilities to owners and custodians at the moment of removal. These contrasting legal consequences are inconsistent with plain and ordinary reading of s.35(1) the PAWS Act that treats these two categories of persons the same.
24Furthermore, the debt enforcement provisions, found at sections 35(6)-(7) of the PAWS Act, make clear that forfeiture does not extinguish the debt due to the Crown and that the Minister of Finance continues to have the power to enforce debt collection after forfeiture. The legislature intended that financial liability for animal care costs attach to the owner or custodian of the animal even if forfeiture extinguished the person’s ownership rights.
c) Is ownership status tied to the date the animal care costs incurred?
25The Respondent submits that the reference to owner or custodian in s.35(1) of the PAWS Act refers to ownership status at the time the animal care costs. This interpretation is supported when the opening lines of this section are read together with the numbered paragraphs which show that costs will be incurred after removal which would negate costs recovery against a custodian.
26The complete text of section 35(1) of the PAWS Act is set out below:
Liability of owner or custodian for costs
35 (1) The Chief Animal Welfare Inspector may, from time to time, 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 any of the following circumstances:
An animal welfare inspector has taken steps to relieve the animal’s distress, which may include providing it with necessaries to relieve its distress under section 33.
An animal welfare inspector has removed the animal from the place where it was under subsection 31 (1) or (2).
The Chief Animal Welfare Inspector has kept the animal in the Chief Animal Welfare Inspector’s care under subsection 31 (6) or taken the animal into the Chief Animal Welfare Inspector’s care under subsection 44 (8). 2023, c. 12, Sched. 6, s. 8 (1).
27Based on a plain and ordinary reading of the PAWS Act and having consideration of the overarching purposes of the PAWS Act, the Board finds that the “owner or custodian” referred to in s. 35(1) means the person who was the owner or custodian at the time the Respondent incurred the animal care costs. The Board finds there is sufficient support for this interpretation because it ensures that financial accountability equally attaches to animal owners and custodians and is most consistent with s. 35 read as a whole.
28The Board notes that the Respondent submitted it is procedurally unfair to consider an issue of statutory interpretation after the hearing because it deprives the parties from the opportunity to lead or cross-examine evidence. The Respondent also objected to the Board considering this preliminary issue because the Appellant did not raise it.
29The Respondent did not identify the evidence required to resolve this issue of statutory interpretation. The Board finds there is no factual dispute relevant to the disposition of this preliminary issue.
30While the Board acknowledges that the Appellant did not raise this issue, that does not relieve the Board from its responsibility to interpret its governing legislation.
31Further, the Board provided the parties with the opportunity to make submissions on this matter and has considered the submissions it received. Therefore, the parties have had an opportunity to be heard on the issue and their procedural rights have been protected.
32In sum, the Board finds that the April SOA was issued in accordance with s.35 of the PAWS Act because it was served on the Appellant who was the owner of the four horses at the time the costs were incurred.
SUBSTANTIVE ISSUES
33During the hearing, the Appellant made submissions concerning the lawfulness of past actions taken by the Respondent concerning these horses. In the next few paragraphs, I summarize the related appeals disposed of by the Board and explain why the order to remove the horses and the decision to keep those horses are not relevant to the disposition of the SOA Appeal.
Past appeals concerning the Respondent’s involvement with these horses
34The parties have appeared before the Board in two other proceedings concerning these horses.
35Animal welfare inspectors attended the Appellant’s property in October 2023, determined the horses were in distress, and ordered the Appellant take steps to alleviate their distress. In January 2024, the horses were removed from the property due to non-compliance with the earlier orders, and they remained in the Respondent’s care until they were euthanized or forfeited. Specifically, the horses had been the subject of the following orders and decisions:
Compliance Order (October 23, 2023),
Notice of Revocation and/or Replacement of an Order to the Owner or Custodian of Animal(s) (November 28, 2023)
Notice of Removal (January 18, 2024),
Decision to Keep in Care (January 19, 2024), and
Statement of Account date January 22, 2024 (the “January SOA”).
36The Board first heard an appeal of the Notice of Revocation and/or Replacement of an Order to the Owner or Custodian of Animal(s) dated November 28, 2024. That order required the Appellant to have all the horses assessed by a veterinary dentist, provide pain medication to the horse named “Cara,” and provide additional wind protection to all four horses by January 8, 2024. After the hearing, the Board modified that order by removing the requirement that the Appellant provide additional wind protection for the horses: See Somers v. Chief Animal Welfare Inspector, 2024 ONACRB 80 (the “Compliance Decision”).
37The Board was scheduled to hear three related appeals on April 16, 2024: the appeals of the Notice of Removal, the Decision to Keep in Care, and the January SOA. However, the parties resolved the issues in dispute, and the Board issued a Consent Order pursuant to s.38(11) of the PAWS Act which disposed of those three appeals.
38Two of the horses, Jessica and Cara, had been euthanized on February 9, 2024, and the Consent Order specified, in part, that the Appellant had agreed to forfeit the remaining two horses, Candy and Gorgeous, to the Respondent, effective April 12, 2024.
39Two days after the April 16 hearing date, the Respondent issued the April SOA.
The Relevance of the Removal and the Decision to Keep in Care
40At the outset of this hearing, the Appellant confirmed that it was her position that the animals were not in distress at the time of removal and ought not to have been removed or kept in care. I understand her argument to be that if the horses were never in distress, then all the costs incurred as a result of the removal and the decision to keep in care would have been unreasonable.
41Because the appeals of the Removal Order and the Decision to Keep in Care were disposed of by Consent Order on April 16, 2024. I am unable to make findings concerning the lawfulness of the removal or the decision to keep in care.
ISSUE 1: The April SOA is confirmed in the amount of $10,435.34
42The issue on appeal of a statement of account is whether the costs were incurred in providing reasonable and necessary care to the animals as permitted by s.35 of the PAWS Act.
43On April 18, 2024, the Respondent issued a SOA for $10,435.34, naming the Appellant as the owner and itemizing the following categories of costs:
Transportation Costs: $ 226.00
Boarding Costs: January 18-April 12, 2024, incl. feed costs $ 6,690.89
Veterinary Costs: $ 3,405.45
Animal Care Costs: Farrier services $ 113.00
Total Costs: $10,435.34
44The Respondent bears the initial evidentiary burden to show that the charges on the SOA are reasonable and reflect the actual cost of necessaries provided to alleviate the distress of the animals removed. If the Respondent meets this burden, the onus shifts to the Appellant to show that the accounts should be varied or revoked.
45The Respondent called Inspector Rachel Falls and two veterinarians who provided medical services to the horses: Dr. Gary Halbert, and Dr. Jayme Harvey-Micay. Dr. Harvey-Micay specializes in equine dentistry. The Respondent also called Dr. Nicola Jackson, a veterinarian who attended the Appellant’s property on the day the horses were removed and who authorized their removal, pursuant to s.31(1) (a) of the PAWS Act.
46The Appellant has not provided sufficient evidence to support her position that the April SOA should be varied or revoked. The Appellant did not file documentary evidence in advance or during the hearing. At the hearing she confirmed that only she would provide testimony in support of her position.
47During her testimony, the Board often directed the Appellant to focus on the issues in the appeal as she would refer to events from decades ago. Her testimony was not chronological and was otherwise difficult to follow. The Board provided the Appellant with latitude concerning the appeal’s subject matter so that the Appellant could present her case.
a) Transportation Costs Confirmed - $226.00
48The Respondent submitted invoices as evidence showing $226 was incurred to transport the four horses from the property to the boarding facility. This amount included the costs for fuel, round trip trailering, and handling of the horses. The amounts were subject to the Harmonized Sales Tax (HST). Inspector Falls evidence is that in her experience this rate is consistent with the reasonable costs for livestock transport. The Board confirms this cost.
b) Veterinary Costs Confirmed - $3,405.45
49The Board heard evidence regarding the need for the medical care for the horses after removal. The evidence from Inspector Falls and Dr. Gary Halbert was that all four horses had varying severities of parasitism, which required multiple rounds of treatment.
50Inspector Falls also testified that on January 22, 2024, Candy required emergency treatment after suffering an episode of colic believed to have been induced by her heavy parasite burden. Dr. Halbert explained how various forms of diagnostic assessments were required to properly identify issues and effectively address the causes of the distress. When Dr. Halbert examined the horses on February 9, 2024, he determined the most humane course of action was to euthanize the horses named “Cara” and “Jessica” and signed the Certificate of Veterinarian Advising the Removal or Euthanasia of Animal(s) pursuant to s.32(1)(b) of the PAWS Act.
51Additionally, Dr. Harvey-Micay, the veterinarian specializing in equine dentistry, testified about the dental examinations and treatments relevant to each horse.
52The Board is satisfied that these veterinary services costs were the actual costs incurred, and that the evidence of how the fees for the services were provided are reasonable because they fell within or below the amounts recommended by the Ontario Veterinary Medical Association Suggested Fee Guide.
53While the Appellant strongly disagreed with the opinions of the Respondent’s veterinarian, she did not persuade the Board that the Appellant’s opinions, as someone with decades of experience with horses, should be preferred over the professional opinions of two veterinarians who treated her horses. While the Case Conference Report and Order reflected the Appellant’s intention to call one veterinarian at the hearing, she did not do so.
54The Board prefers the evidence of the Respondent’s veterinarians’ opinions concerning the necessity of the medical care provided to the horses and the reasonableness of the costs incurred for that care over the Appellant’s.
c) Boarding and Feed Costs Confirmed - $6,690.89
55The Respondent entered evidence of invoices totally $6,690.89, detailing the boarding costs and specialized feed for the four geriatric horses with increased care requirements, inclusive of HST.
56The Template Budget for Horse Ownership (the “Template Budget”) included as an Appendix to the National Farm Animal Care Council Code of Practice for the Care and Handling of Equines (the “Code of Practice”) sets out the appropriate minimum costs of horse ownership based on 2013 dollars. That Template Budget identifies boarding costs to average $250-$1,000/month per horse.
57Inspector Falls testified that she contacted three different boarding facilities for quotes ranging from $25-30.00 per horse per day plus tax.
58The invoices show a daily boarding rate of $25.00 per horse. This is consistent with the daily rates charged by nearby facilities and when calculated monthly ($25 x 31 days = $775.00/month) that monthly cost is also consistent with the budgetary guidelines of the Code of Practice.
59The Appellant testified that she was aware that another unnamed facility charged less. However, an assertion is not enough to show that the $25.00 per day per horse for boarding reflected on the SOA was unreasonable.
60The $6,690.89 total also includes the cost of specialized feed required for Candy and Gorgeous from March 1, 2024, up to and including April 12, 2024, due to the horses’ dental issues.
61The costs incurred for feed is supported by the invoices and is reasonable given the dental concerns established by the medical evidence.
d) Animal Care Costs Confirmed - $113.00
62The SOA includes $113.00 incurred for farrier services for two of the horses. The invoices supplied show that the farrier charged $50.00 per horse plus HST. Inspector Falls testified that this cost is within the average range of farrier costs, in her experience, and that regular hoof care is essential to maintain hooves in a functional condition. A range of $25-50 per horse for farrier expenses is included in the Template Budget set out in the Code of Practice.
63This cost is reasonable and necessary since the Appellant, as the owner, was unable to provide this service while the horses were in the Respondent’s care and the costs is consistent with the Code of Practice. The Board confirms this cost.
e) Other Considerations – the Appellant’s Ability to Pay
64While not included in the Notice of Appeal, the Appellant referenced her concern that she would be unable to pay the April SOA at the outset of the hearing. The Respondent did not oppose this testimony. While the Appellant had not filed any documentary evidence in this matter, the Board allowed the Appellant to testify on this issue.
65The Appellant testified that she receives a monthly pension, has expenses including animal feed, and that she pays taxes which include property taxes. There being limited specifics and no documentary evidence filed on this point, the Board finds the Appellant has failed to discharge her burden to show that the April SOA should be varied on the basis of an inability to pay.
ISSUE 2: The Appellant’s requests for costs is denied
66In her Notice of Appeal, the Appellant indicated she wanted “monetary restitution and compensation for five related appeals proceeding this one.” At the hearing, the Appellant referred to wanting her “costs” of the past and current appeals.
67The Board does not have the general authority to order compensation to an owner or custodian.
68The Board’s authority to order money be paid to the owner or custodian arises when the owner has incurred costs of complying with an order made under s.30: See, s.38(9) of the PAWS Act. However, that is not the subject of this appeal.
69To the extent the Appellant is seeking costs from the Respondent, she must prove that the Respondent has acted unreasonably, frivolously, vexatiously, or in bad faith: Rule 19 of Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice & Procedure, Version 1 (October 2, 2017) (the Rules) and s. 17.1(2)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22. This is a high threshold.
70As stated above, the Appellant filed no documentary evidence in this appeal and did not provide any oral evidence on the costs incurred during the appeal process. Therefore, the Appellant has not specified what the Respondent has done that could be found to be unreasonable, frivolous, vexatious, or in bad faith.
71Without specific allegations and no evidence to support the general assertion that she be entitled to costs, the Board declines to exercise its discretion to award costs to the Appellant.
ORDER
72Pursuant to the powers of the Board under s. 38(9) of the PAWS Act.
The Board confirms the April SOA for a total amount of $10,435.45;
The Appellant is ordered to pay $10,435.45 to the Minister of Finance; and
The Appellant’s request for costs is dismissed.
Released: August 26, 2024
Ashley Deathe, Member