CITATION: Ontario (Chief Animal Welfare Inspector) v. Ishankova, 2023 ONSC 1284
DIVISIONAL COURT FILE NO.: DC100/22
DATE: 20230224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ MacLeod, Backhouse and Lococo JJ.
B E T W E E N:
CHIEF ANIMAL WELFARE INSPECTOR
Applicant
Kateryna Toderishena, for the Applicant
- and -
NATALIYA ISHANKOVA
Respondent
- and -
ANIMAL CARE REVIEW BOARD
Respondent
Self-represented
Douglas Lee and Olivia Filetti, for the Respondent Animal Care Review Board
HEARD at Toronto (by videoconference)
on February 21, 2023
BACKHOUSE J.
REASONS FOR DECISION
Overview
[1] Animal Welfare Services ("AWS") removed 80 cats in distress belonging to Ms. Ishankova. AWS delivered a Statement of Account to Ms. Ishankova for the care of her cats in the amount of $58,672.98. Ms. Ishankova appealed the statement of account on the sole basis that she did not have the financial means to pay it.
[2] The Applicant seeks to quash the Decision of Adjudicator Matthew M. Létourneau, for the Board dated January 17, 2022 (the "Decision"), along with the April 29, 2022, Reconsideration Decision by Jennifer Friedland (the "Reconsideration Decision"). The Decision and Reconsideration Decision reduced the statement of account to $1,800 based solely on the owner's inability to pay.
[3] Section 38(9) of the Provincial Animal Welfare Services Act, 2019[^1] (the "PAWS Act") empowers the Board after holding a hearing, to "confirm, revoke or vary a statement of account" served under s. 35(1). The Applicant submits that the Board misinterpreted the PAWS Act and does not have the jurisdiction to consider ability to pay as a factor. Alternatively, it submits that if the Board does have jurisdiction, the way it applied ability to pay in this case is unreasonable because the outcome defeated the purpose and the scheme of the PAWS Act.
[4] The Board submits that the Decisions are reasonable and the application should be dismissed.
[5] At the outset of this hearing, Ms. Ishankova requested an adjournment to combine this proceeding with another proceeding and to obtain legal counsel. Based on the Direction of Justice Corbett of January 27, 2023 that Ms. Ishankova was not entitled to raise the issue of counsel at the hearing, having not done so earlier, the request for an adjournment was denied.
[6] This application was dismissed at the hearing with reasons to follow. For the reasons set out below, the Applicant has not established that the Decisions were unreasonable.
Background
[7] AWS removed 77 cats in distress belonging to Ms. Ishankova from a U-haul vehicle Ms. Ishankova had rented. A further three cats were removed from elsewhere on the property. Ms. Ishankova did not contest the facts as presented by AWS in support of the removal of the cats. AWS served a statement of account on Ms. Ishankova for the cost of caring for the cats. The total account was $58,672.98, made up of $40,938.11 for boarding costs and $17,734.87 for veterinary bills. Ms. Ishankova accepted the accuracy of the amounts claimed, but appealed on the basis that she had no ability to pay due to financial difficulties and health challenges.
[8] A second statement of account was issued for the continuing care of the cats totalling $215,607.58 (costs of boarding and medical care from November 24, 2021 – February 9, 2022). Ms. Ishankova did not appeal or pay it. As a result, the cats were forfeited by the operation of the the PAWS Act.
[9] On appeal of the first statement of account, Ms. Ishankova indicated that she relied on the cats for her business. She further submitted that she was recently divorced, was receiving social assistance (ODSP), and was losing her apartment. At the hearing she also indicated that she had a lease on a farm to re-house the cats.
[10] The Board relied on a previous decision, Jackson v. Chief Animal Welfare Inspector,[^2] where the Board reduced the statement of account to nil based on the appellant's ability to pay.
[11] In this case the Board reduced the statement of account from $58,672.98 to $1,800, a 97% reduction, to be paid over 12 months, while the cats remained in AWS' care.
[12] On January 31, 2022, the Applicant sought a reconsideration of the Decision on two grounds: (1) that the Board did not have jurisdiction to order a payment period since a payment period was already prescribed by statute, and (2) the Board erred in law and acted outside its jurisdiction by reducing the statement of account based on the owner's ability to pay.
[13] On April 29, 2022, the Board issued its Reconsideration Decision which allowed reconsideration on Issue 1 but upheld the Decision on Issue 2.
[14] In finding that it was correct in varying the statement of account based solely on the ability to pay, the Board gave the following additional reasons:
(a) The PAWS Act does not limit what factors the Board can consider when exercising its power under s. 38(9) to "confirm, revoke, or vary" the Statement of Account.[^3]
(b) The purposes of the PAWS Act as a whole include promoting accountability and ensuring animal welfare. The Board concluded that the accountability purpose does not extend to the statement of account (Part V of the PAWS Act) because those sections are discretionary. The Board held that the accountability objective of the PAWS Act was instead limited to the sections outlining provincial offences (Part VII of the Act).[^4] The Board found that only the animal welfare objective applies to the Statement of Account sections.[^5]
(c) Since the PAWS Act gives AWS discretion on whether to issue a statement of account, the PAWS Act contemplates that necessaries can be provided to animals without holding the owner accountable.[^6] The Board held that if the purpose of the PAWS Act was to hold "negligent" owners accountable there would be no reason to provide AWS with this discretion.[^7]
(d) The Board relied on two previous cases where animals were removed for reasons other than neglect or cruelty (animal's distress was caused by an accident or an owner's absence due to a medical emergency) to conclude that the purpose of the PAWS Act was not necessarily to "prevent animal neglect and cruelty and to ensure that animals are cared for responsibly with appropriate treatment and care."[^8] The Board concluded that since the accountability purpose was not engaged, ability to pay can be used by the Board to vary the statement of account.[^9]
The Legislation
[15] The PAWS Act which received Royal Assent on December 5, 2019 establishes a comprehensive scheme for protecting animals in Ontario. Pursuant to ss. 2, 28, and 33, Animal Welfare Inspectors ("AWI") appointed under the PAWS Act may, by consent or warrant, enter and search a place if they have reasonable grounds to believe it may contain an animal in distress. An AWI may, at any time, provide necessaries to an animal to relieve it from distress. The Chief Animal Welfare Inspector ("CAWI") supervises AWI and is also responsible for regulatory enforcement under the PAWS Act and for providing necessaries and care to animals in its possession.
[16] The Board is an adjudicative tribunal established under the PAWS Act and is designated as a constituent tribunal of Tribunals Ontario. It hears appeals from various regulatory activities undertaken by AWI under the PAWS Act, including decisions and orders made by the CAWI[^10].
[17] Subsections 31(1), (5), and (8) set out that an AWI may remove an animal for the purpose of providing the animal with necessaries to relieve it from distress.
[18] If an AWI has provided an animal in its care with necessaries to relieve its distress, or the CAWI has decided to keep an animal taken into its care under ss. 31(6), pursuant to ss. 35(1) of the PAWS Act, the CAWI may, "from time to time", serve on the owner a statement of account respecting the cost of the necessaries.
[19] Under s. 35(1) of the PAWS Act, an owner who is served with a statement of account is liable for the specified amount and must pay it within ten business days unless they appeal the statement of account to the Board. If the owner fails to pay within the timeline, the animal is forfeited to the Crown. Subsection 35(5) sets out that the CAWI has the discretion to reduce the amount that is owed as well as extend the time period in which it must be paid.
[20] After holding a hearing, s. 38(9) of the PAWS Act empowers the Board to "confirm, revoke or vary a statement of account" served under s. 35(1). The Board may order the Minister to pay, to the owner, the costs of complying with a s. 30 treatment order. It may also order the owner to pay, to the Minister of Finance, the "whole or any part" of the cost of providing necessaries to an animal that was removed under s. 31(1) or kept by the CAWI under s. 31(6).
Issues
[21] Issue 1: Did the Board have jurisdiction to vary the statement of account solely based on the owner's ability to pay?
[22] Issue 2: If the Board does have such jurisdiction, was its decision to reduce the statement of account to $1,800 reasonable?
Court's Jurisdiction
[23] The Divisional Court has jurisdiction to hear applications for judicial review from the Board under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1.
Standard of Review
[24] The Supreme Court of Canada established in Vavilov v. Canada (Minister of Citizenship and Immigration)[^11] that reasonableness is presumptively the appropriate standard of review for decisions of administrative decision makers.
[25] The Applicant and the Respondent Board agree that the standard of review is reasonableness.
Position of the Parties
Applicant's Position:
[26] The Applicant submits that the Board's decision was unreasonable as the Board does not have the jurisdiction to consider "ability to pay." In the alternative, if the Board does have that jurisdiction, the Applicant suggests that the Board's decision was still unreasonable.
Jurisdiction Argument
[27] The Applicant argues that the Board's interpretation of the PAWS Act and its powers on a statement of account appeal is unreasonable and wrong in law. It is outside of the Board's jurisdiction to consider "ability to pay" as a factor; and the Applicant submits that the Board's analysis is irrational and lacks internal coherence.
[28] Section 38(9) of the PAWS Act does not specify the factors that the Board should consider when determining whether to exercise its power to "confirm, revoke, or vary" a statement of account. The PAWS Act gives the Board discretion, which the Applicant submits is limited. The Applicant cites Vavilov for the proposition that an exercise of discretion "must accord with the purposes for which it was given."[^12]
[29] The Applicant submits that the legislative intent of the PAWS Act is to prevent animal neglect and cruelty and to ensure that animals are cared for responsibly with appropriate treatment and care. The PAWS Act provides a framework of accountability for owners who mistreat, abuse, or neglect their pets. The Applicant cites debates from the Hansard,[^13] as well as a "plain and contextual" reading of the at-issue provisions in the PAWS Act, which the Applicant submits is to promote accountability, ensure animal welfare, and compensate the CAWI for reasonable expenses incurred in caring for the animals in distress.
[30] The Applicant submits that based on the entire statutory context, the Board's power to "confirm, vary or revoke" a statement of account is relatively constrained. The statutory language chosen by the Legislature is not highly qualitative or open-ended, which would otherwise suggest flexibility for the decision-maker. The Board's conclusion that the accountability objective is not engaged by the statement of account provisions is incorrect and unreasonable given the statutory scheme as described above.
[31] The portion of the PAWS Act that deals with provincial offences is also discretionary, yet the Board concluded that those provisions is where the accountability objective lies. The fact that a government entity, tasked with enforcing a statute, has enforcement discretion does not negate the clear accountability objective of the statute.
[32] The Applicant submits that the Board's role is not to question whether CAWI should have issued the statement of account or taken a different enforcement step. The PAWS Act instead confers on the Board a limited discretion to review the statement of account itself and ensure that it is compliant with the PAWS Act.
[33] The Board's role in reviewing the statement of account is to ensure that the costs are reasonable, accurate, and necessary. The Board's role is not to make collections decisions on the behalf of the government or to serve as a debt management forum for the owners. The Board's role is not to substitute AWS' enforcement decisions with its own. No such power is conferred on the Board under the PAWS Act.
[34] The owner's ability to pay is not a proper or relevant consideration in assessing reasonableness of a statement of account or whether it is compliant with the PAWS Act. The Applicant argues that the real cost of relieving the animals' distress caused by someone like Ms. Ishankova is not altered by her ability to pay it. The PAWS Act already stipulates what must occur if the owner is unwilling or unable to pay for the real and reasonable costs of care – the animal is forfeited under ss. 35(4).
Non-Jurisdiction Argument
[35] Should the Court find that financial circumstances can be relevant in assessing the reasonableness of a statement of account, the Applicant submits that the Board erred by eliminating nearly the entirety of the statement of account. This outcome frustrates the purposes of the PAWS Act and is therefore unreasonable.
[36] First, the Applicant suggests this decision undermines the accountability objective of the PAWS Act by allowing the owner to avoid paying the actual and reasonable costs of relieving the acute distress caused to 80 cats by her neglect and cruelty.
[37] Second, the decision undermines the animal welfare objective of the PAWS Act by allowing the owner to maintain ownership of the cats that she, by her own admission, could not afford to care for.
[38] As a result of the decision, the animals could not be rehomed or adopted out because they still belonged to Ms. Ishankova. As a result, AWS had to continue to care for the cats in boarding facilities on Ms. Ishankova's behalf, incurring an additional $215,607.58 over the next couple of months.
[39] Lastly, the Applicants argue that a statement of account is not a fine or a penalty that can be reduced based on the offender's mitigating or aggravating circumstances, such as their financial circumstances. It is a real cost incurred by the government to care for the animal and to relieve its distress caused by the owner's neglect or mistreatment. If the owner is unable or unwilling to pay for costs of providing the animals with necessaries, they may lose their ownership rights through forfeiture. This is the intended effect of the PAWS Act that meets its purposes.
[40] The Board also considered irrelevant factors in its analysis which makes the decision irrational and therefore unreasonable. Such irrelevant factors included previous statements by AWS on other cases, AWS's decision not to pursue voluntary forfeiture of the cats, and consideration of the "without prejudice" discussion that took place on December 9, 2021.
The Board's Position
The Owner's Ability to Pay
[41] The Board argues that the PAWS Act neither requires nor prohibits the Board from considering any specific factor in exercising its discretion to vary a statement of account on an appeal. The PAWS Act affords the Board a broad discretion and does not limit or prescribe how that discretion may be exercised.
[42] The Board points to ss. 38(2) of the PAWS Act, which provides broad remedial powers in an appeal including an appeal of a statement of account.
[43] The Board further cites case law to support that to "vary" a decision, as permitted under ss. 38(9), has been interpreted as a broad discretion.[^14]
Legislative Intent Respecting Ability to Pay
[44] The Board suggests that the Applicant proposes an interpretation of the PAWS Act that prescribes or prohibits factors for the Board's consideration on an appeal of a statement of account. The Board argues that before granting any remedy requested by the Applicant, the Court must be satisfied that the Applicant's proposed interpretation finds legislative support.
[45] The Board points to the Hansard as evidence that the PAWS Act permits consideration of an owner's ability to pay for statement of accounts. Section 35 of the PAWS Act gives the CAWI the discretion to reduce the amount that must be paid by an owner in order to avoid forfeiting their animal to the Crown. Importantly, when Bill 136 was first introduced to the Legislature, the CAWI did not have that discretion. There was also no such discretion under the predecessor legislation.
[46] During debate at second reading, Opposition members repeatedly raised concerns about owners being deprived of their animals on the basis that they could not afford to pay veterinarian bills. They indicated that a statutory scheme in which an owner would lose their pet due to an inability to pay would be one that revictimizes the poor.
[47] An amendment was approved, and the version of Bill 136 introduced for third reading conferred a discretion on the CAWI to reduce the statement of account or to extend the time by which an owner was required to pay before losing their animal.
[48] The Board submits that the Hansard evidence suggests that ss. 35(5) of the PAWS Act was specifically added to ensure that owners would not lose their animals solely by virtue of their inability to pay the statement of account. While the discretion rests at first instance with the CAWI, the Legislature gave the Board a broad oversight role over various CAWI enforcement activities and did not place any express restrictions on the Board's authority to "vary" a statement of account.
Analysis
The legislation
[49] The provisions in the PAWS Act which deal with the liability of an owner for necessaries provided an animal and a statement of account are set out at s. 35 which provides:
Liability of owner or custodian for expenses
35 (1) If an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector's care, the Chief Animal Welfare Inspector may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.
Statement of account
(2) The statement of account must have printed or written on it the content of subsections 38 (2) and (5).
Obligation to pay
(3) An owner or custodian who receives a statement of account under subsection (1) is, subject to an order made under subsection 38 (9), liable for the amount specified in the statement.
Forfeiture on failure to pay account
(4) Subject to any agreement made under subsection (5), the animal is forfeited to the Crown if,
(a) the owner or custodian does not appeal the statement of account in accordance with subsection 38 (2) and fails to pay the stated amount within a prescribed period of time after receiving the statement of account; or
(b) the owner or custodian appealed the statement of account in accordance with subsection 38 (2) but failed to pay the confirmed or varied amount within a prescribed period of time after the Board provided notice of its decision.
Agreements
(5) Before the expiry of the relevant time period set out in clause (4) (a) or (b), the Chief Animal Welfare Inspector may enter into a written agreement with the owner or custodian to extend the time for payment or reduce the amount that is to be paid, or both.
[50] Section 38 deals with appeals from a statement of account. Subsection 38(2) of the PAWS Act provides:
(2) An owner or custodian of an animal who is served with a statement of account may apply to the Board by notice in writing to appeal the statement of account within the prescribed period after being served the statement.
[51] Subsection 38(9) of the PAWS Act provides:
(9) After a hearing, the Board may do one or more of the following:
- Confirm, revoke or vary a statement of account served under subsection 35(1).
Jurisdiction Argument
[52] Nothing in s. 38(2) limits the Board's powers on an appeal from a statement of account.
[53] Subsection 38(9) does not limit what factors the Board can consider when exercising its power to "confirm, revoke, or vary" the statement of account. The Applicant's argument that the legislative intent was to restrict the Board's role in reviewing the statement of account to whether the amount has been properly calculated is inconsistent with the broad discretion granted to the Board in s. 38(9). I agree with the Applicant that the relevant factors the Board may consider must align with the rationale and purpose of the statutory scheme. However, there is no merit to the Applicant's submission that the Board's jurisdiction is limited to ensuring that the costs are reasonable, accurate and necessary.
[54] The authority to "vary" a decision has traditionally been interpreted as a broad discretion:
The words "change", "alter", and "vary" (or any combination thereof) have a very broad meaning amounting to the ability for the reviewing body to substitute its own decision for the original including reversing it.[^15]
[55] In Shamji v. Workers' Compensation Tribunal,[^16] the British Columbia Court of Appeal confirmed that an appeal tribunal's power to "vary" an underlying decision on appeal includes the authority to substitute its decision for the one made below.
[56] I am not persuaded by the Board's reasoning that the accountability objective does not apply to the statement of account provisions in the PAWS Act. The fact that the CAWI, tasked with enforcing a statute, has enforcement discretion, does not negate the accountability objective of the statute. I agree with the Applicant that the accountability objective is engaged by the statement of account provisions. However, considering ability to pay is not necessarily inconsistent with promoting accountability. Accountability is just one of the objectives of the PAWS Act. Moreover, taking ability to pay into account could help ensure that the accountability provisions do not impose impossible-to-meet financial obligations on those with inability or limited ability to pay. Taking ability to pay into account may ensure that owners do not lose their animals solely by virtue of their inability to pay the statement of account. This may promote the objective of ensuring animal welfare. An owner may make greater efforts to pay the account if the amount is more manageable which may promote the objectives of accountability and ensuring animal welfare.
[57] Section 35 of the Paws Act gives the CAWI the discretion to reduce the amount that must be paid by an owner or to extend the time by which an owner is required to pay in order to avoid forfeiting their animal to the Crown. While the discretion rests at first instance with the CAWI, the PAWS Act gives the Board a broad oversight role over various CAWI enforcement activities. There are no express restrictions on the Board's authority to "vary" a statement of account. This supports the reasonableness of the Board's determination that it has the jurisdiction to consider an owner's ability to pay as a factor when reviewing a statement of account.
Non Jurisdiction Argument
[58] I do not agree with the Applicant that the Board's Order frustrates the purposes and scheme of the PAWS Act and is unreasonable. The Applicant argues that as a result of the Board's decision, the animals could not be rehomed or adopted out because they still belonged to Ms. Ishankova, costing the taxpayers an additional $215,607.58. In fact, the statutory scheme provides that when an owner exercises the statutory right to appeal, the statement of account under s. 35(1) of the PAWS Act, the appeal acts as a stay and the animal is not forfeited pending the appeal.
[59] The Board found in the Reconsideration decision that it did not have jurisdiction to order a payment period beyond the ten-day payment period already prescribed by statute. Having not paid the $1,800 to which the Board varied the statement of account within ten business days after that decision, the animals would have been forfeited under s. 35(1) of the PAWS Act. But forfeiture of the animals had already occurred by virtue of the second statement of account which Ms. Ishankova did not pay or appeal. This outcome was in conformance with the PAWS Act and there was nothing about the Board's Order that frustrated the purpose or scheme of the PAWS Act.
[60] With respect to the Applicant's submission that the Board erred by eliminating nearly the entirety of the statement of account, deference is owed to the Board's expertise. At para. 31 of Vavilov,[^17] the Supreme Court states that 'expertise remains a relevant consideration in conducting [a] reasonableness review.' Being attentive to a decision maker's demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers' specialized expertise may lead them to rely, when conducting statutory interpretation, on 'considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise' (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker's reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.
[61] The Applicant has not established that the Decisions were unreasonable.
Conclusion
[62] This application is dismissed.
Costs
[63] In accordance with the agreement of the parties, no costs are ordered.
RSJ MacLeod
I agree _______________________________
Backhouse J.
I agree _______________________________
Lococo J.
Released: February 24, 2023
CITATION: Chief Animal Welfare Inspector v. Ishankova, 2023 ONSC 1284
DIVISIONAL COURT FILE NO.: DC100/22
DATE: 20230224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ MacLeod, Backhouse and Lococo JJ.
B E T W E E N:
CHIEF ANIMAL WELFARE INSPECTOR
Applicant
- and –
NATALIYA ISHANKOVA and
ANIMAL CARE REVIEW BOARD
Respondents
REASONS FOR JUDGMENT
Backhouse J.
Released: February 24, 2023
[^1]: Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 ("PAWS Act").
[^2]: Jackson v. Chief Animal Welfare Inspector 2021 ONACRB 4.
[^3]: Reconsideration, at paras. 35, 64.
[^4]: Reconsideration, at para. 48 [B239].
[^5]: Reconsideration, at para. 46-47, 49-51 [B239].
[^6]: Reconsideration, at para. 53 [B240].
[^7]: Reconsideration, at para. 65 [B242].
[^8]: Reconsideration, at para. 57 [B240].
[^9]: Reconsideration, at para. 70 [B243].
[^11]: Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65.
[^12]: Vavilov at para.8.
[^14]: FRP at para. 43, citing McCauley & Sprague, Practice and Procedure Before Administrative Tribunals, at 35; Shamji v. Workers’ Compensation Appeal Tribunal, 2018 BCCA 73 at para. 61, citing Djakovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 BCSC 1279.
[^15]: McCauley & Sprague, Practice and Procedure before Administrative Tribunals, at 35.
[^16]: Shamji v. Workers’ Compensation Tribunal, 2018 BCCA 73 at para. 61, citing Djakovic v. British Columbia (Workers’ Compensation Appeal Tribunal, 2010 BCSC 1279. See also Re Rush and Township of Scugog et al, 1978 1319 (ONSC); Overseas Missionary Fellowship v. 578369 Ontario Ltd. (C.A.), 1990 6771 (ON CA).
[^17]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.