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ACRB Dicta - Statements of Account (2). Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.
In these quotes the court illustrates the PAWS administrative and ACRB appeal procedures:[2] In September of 2021 the Chief Animal Welfare Inspector (“CAWI”) removed all the dogs from the Windrift properties and decided to keep them in her care. CAWI then issued a Statement of Account dated January 18, 2022 to Windrift seeking payment incurred for the monies spent by CAWI to care for Windrift’s 229 dogs. The account was in the amount of $1,114,720.27 and included charges incurred for transporting the dogs to boarding facilities, boarding charges from those facilities and veterinary costs incurred while they were in care.
[3] Under the provisions of the Provincial Animal Welfare Services Act, 2019, S.O. 2019 c. 13 (the “Act”), unless appealed, Windrift was obliged to pay the amount due within 10 days. Windrift appealed and the Board held twenty days of hearings during February to April of 2022. In the Decision, the Board varied the Statement of Account such that no amount was allowed for transportation or veterinary costs and the boarding costs were considerably reduced. The result of the Board’s variation is that Windrift is obligated to pay CAWI $506,760.00.[4] In their application for judicial review, Windrift asserts that the Board erred in allowing any amount for boarding costs and erred in failing to find that Windrift did not have the financial ability to pay the account in question. In support of their application Windrift sought to file fresh evidence.
[5] In her application for judicial review, the CAWI submits that the Board erred when it failed to allow the full amount claimed for boarding and erred when it disallowed the amounts charged for transportation and veterinary bills. She also argues that the Board erred in imposing an initial evidentiary burden on the CAWI to demonstrate that the costs incurred were reasonable.
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Background
[8] Windrift operates its commercial dog sledding and horse-riding business at two Ontario properties—one is located in the Township of Oro-Medonte and the other is in the Township of Severn. In February of 2021, Animal Welfare Services (“AWS”) conducted an inspection of Windrift’s properties to determine compliance with standards of care for animals who are kept for a commercial purpose.
[9] On February 25, 2021, AWS made several compliance orders under the Act related to the length of the dogs’ tethers and the size of the dog houses. These orders outlined certain measures required to be taken for the approximately 230 sled dogs on the Windrift properties.
[10] Windrift appealed the compliance orders to the Board. The Board confirmed the orders, with the exception of the order related to the size of the shelters, which it varied. In denying Windrift’s appeal the Board found that the dogs were in distress within the meaning of the Act.
[11] Both Windrift and the CAWI sought reconsideration of certain aspects of the Board’s determinations. Both requests were refused.
[12] On September 23, 2021, the AWS conducted an inspection of Windrift’s properties to see if they had complied with the compliance orders. When the inspectors determined that Windrift had done nothing to comply with the orders, they decided to remove the dogs from both properties for the purpose of providing them with necessaries to relieve their distress. Pursuant to s. 2 of the Act, AWS inspectors may, at any time, provide necessaries to an animal to relieve it from distress.
[13] The word “distress” is defined under the Act as:the state of being,
(a) in need of proper care, water, food or shelter,
(b) injured, sick, in pain or suffering, or
(c) abused or subject to undue physical or psychological hardship, privation or neglect. [14] The word “necessaries” is not defined under the Act.
[15] On September 30, 2021 the CAWI decided to keep the dogs in her care for the purpose of continuing to provide them with necessaries in order to relieve their distress.
[16] Windrift appealed both the decision to remove the dogs and the decision to keep the dogs. After a lengthy hearing, the Board upheld both decisions. It ordered the return of several puppies that it found were not in distress and ordered that the remaining dogs should be returned once Windrift had lengthened the tethers and fixed the doghouses. To date Windrift has done neither and thus the dogs remain in the CAWI’s care.
[17] Windrift brought judicial review applications in relation to the Board’s decisions. This Court dismissed those applications.
[18] If an inspector has provided an animal with necessaries to relieve its distress, or if the CAWI has taken an animal into its care, s. 31(6) of the Act authorizes the CAWI to “from time to time”, serve on the owner a statement of account respecting the cost of necessaries.
[19] On January 18, 2022, the CAWI issued a Statement of Account to Windrift, in the amount of $1,114,720.27, for the cost of necessaries provided to the dogs while in her care during the period from September 2021 to January 2022. The “necessaries” included in the Statement of Account related to costs incurred for transporting the dogs to boarding facilities, boarding costs and veterinary services provided to the dogs while in care.
[20] Under s. 35 of the 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 or appeal within the timeline, the animal is forfeited to the Crown.
[21] On January 24, 2022, the Statement of Account was appealed to the Board. After holding a hearing, s. 38(9) of the Act empowers the Board to “confirm, revoke or vary a statement of account.”
[22] On August 18, 2022, after a 20-day hearing held during the period from February 7 to April 8, 2022, the Board partially confirmed the Statement of Account and varied the amount owing to $505,760.00. The Board disallowed all of the costs associated with transportation and veterinary services and substantially reduced the boarding costs. . Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.
In these quotes the court considers the ACRB's dealing with specific board, transportation and veterinary expenses:The CAWI’s position re the Board’s decision on boarding fees
[63] The CAWI challenges the Board’s decision with respect to boarding costs because of its position that the Board unreasonably placed an initial evidentiary onus on the CAWI to justify those costs and show that they were reasonable. This argument has already been dealt with and dismissed.
[64] If the CAWI is also challenging the Board’s conclusion that the CAWI had a duty to act responsibly when incurring costs for necessaries such as boarding fees and that they did not do so in the case at bar, we find that that conclusion is a reasonable one, given the evidence before the Board as to the hugely disparate amounts charged by different facilities and the lack of any explanation as to why these amounts were so different. As this case demonstrates, the amounts incurred for boarding can result in a large burden for owners, one they may not be able to meet. If they do not pay the amounts, the burden falls on the taxpayers of Ontario. The only person who is in a position to take steps to control those costs without sacrificing the welfare of the animals in question is the CAWI.
[65] Windrift’s main argument with respect to boarding fees is that the Board awarded over half a million dollars worth of boarding fees without having any evidence that the care provided at the kennels met the required standard of care.
[66] It is not correct to say that the Board had no evidence as to the standard of care that the dogs received at the kennels in question. First, as the Board noted, Regional Supervisor Munoz testified as to the care that the dogs received at the kennels in question, “including grooming, food, potable water, indoor and outdoor housing, access to outdoors to relieve themselves, exercise, socialization, enrichment, run time, and play time.” Second, her evidence was supported by the information contained in the invoices produced by the CAWI, invoices that showed charges for these items. Finally, the invoices and the testimony from the veterinarians spoke to how if the dogs required medical attention, they received that medical attention.
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[70] For these reasons we find that the Board’s decision with respect to boarding costs was a reasonable one.
Was the Board’s decision with respect to transportation costs reasonable?
[71] The CAWI’s position is that the Board erred by unreasonably interpreting s.35(1) of the Act in a narrow way, without regard to the text, context of the Act, the statutory provision and/or the principles of statutory interpretation. Specifically, the CAWI claims that the Board unreasonably found that transportation costs for the removal of the dogs were not recoverable against Windrift because transportation costs for removal are not necessaries under s.35(1). The Board offered an alternative analysis, stating that if it was wrong and transportation costs are necessaries, then the costs are unreasonable because the transportation fell below the standard of care for animals and because in two instances transportation could have been provided by the Animal Welfare Serivces no cost. The CAWI’s position on this alternate analysis provided by the Board, is that the analysis was tainted by the Board’s unreasonable interpretation of the onus of proof discussed above.
[72] It is not necessary for this court to consider whether the Board unreasonably interpreted s. 35(1) of the Act, as in its alternative analysis, the Board provided reasonable and cogent reasons for its determination that even if transportation costs are necessaries, the CAWI had not established that the care provided (the transportation) was reasonable. Specifically, the Board referred to the transportation amounts from Luckhart not being payable because the method of transportation “fell far below the prescribed standards of care for animals in Ontario” (at para. 39 of Decision). The Board had before it evidence that the dogs began to be removed from one location at 1:40 PM and at 8:25 PM were not fully unloaded. No water had been provided to the dogs and Regional Supervisor Munoz had no information about when the dogs had last received food prior to their removal. She also testified that there was no way for the dogs to relieve themselves once loaded in the truck aside from doing so in their crates which were not lined with absorbent material. She also acknowledged in cross-examination that the crates were not tied down or otherwise secured in the Luckhart truck. The Board considered a photograph taken just before the doors of the truck were closed showing the crates stacked on top of each other with a large empty space on the second row, which void could “easily allow” the crates to shift.
[73] The Board also reasonably determined that with regard to the North Bay and District Humane Society invoice, the Animal Welfare Society could have provided the transportation and if they had, no fee would have been included on the Statement of Account for such services (at para. 55 of the Decision). Further, the Board reasonably determined that the CAWI failed to provide sufficient details to support the amount of the Shawn and Wendy Mack invoice (at para. 59 of the Decision). Regional Supervisor Munoz did not provide a breakdown as to how much of the invoiced time was in transporting the dogs as opposed to waiting. Further, no information was provided as to how many dogs were transported by Shawn and Wendy Mack or where any dogs were transported to. Regional Supervisor Munoz testified that the Animal Welfare Society could have transported the dogs to the boarding facilities at no cost.
[74] The Board’s alternative analysis decision was reasonable. As set out above, the Board’s finding that the CAWI had the initial evidentiary burden was also reasonable.
Was the Board’s decision with respect to veterinary costs reasonable?
[75] The CAWI’s position is that the Board unreasonably found that the veterinary care amounts are only reasonable as necessaries if the Chief Inspector can show that the costs did not arise from her lack of care, or the services were provided to relieve distress of the dogs for conditions caused by Windrift. It argues that the Board erred by unreasonably reading a “causation” element into s. 35(1).
[76] As set out above, we have determined that it was reasonable for the Board to find that the CAWI had the initial evidentiary burden to prove, on a balance of probabilities, that the charges reflected in the Statement of Account reflect actual costs and that the care provided was reasonable. The Board provided logical and cogent reasons as to why it determined that the triage veterinary costs did not reflect reasonable care of the dogs (at paras. 87-98 of the Decision). The Board considered Regional Supervisor Munoz’s evidence and did not accept that the triage could not have been completed at the Windrift properties. No reason was provided as to why the triage had to take place in a “controlled environment.” The Board found that the triage provided was not to provide necessaries but to provide treatment so that the dogs could be housed at indoor kennels. The Board had evidence before it in this regard from Regional Supervisor Munoz, Dr. Fleming and Dr. Robertson. The Board did not consider these treatments necessary or recoverable against Windrift as the Animal Welfare Society took no steps to investigate the dogs being boarded outdoors. Even if part of the treatment was for necessaries and part for pre-indoor kenneling requirements, the Board was not provided with a breakdown upon which to allocate expenses.
[77] The Board also found that medicines on-hand at the triage went unused.
[78] The Board added the “causation” aspect, only in regard to the veterinary bills incurred after the triage. As set out above, we have determined that this was reasonable in the specific circumstances of this case, particularly that Windrift was denied the opportunity to have a veterinarian of their choice inspect each of the living dogs that had been removed. This right was granted to Windrift by order of September 23, 2021.
[79] With regard to the post-triage veterinary costs, the Board’s decision to reduce them to zero was not unreasonable. The Board gave thorough, rational and cogent reasons for doing so. Its decision is entitled to deference. Much of the evidence the Board had before it in this regard is summarized above under onus. The CAWI did not prove on a balance of probabilities that the post triage veterinary costs did not arise as a result of their care or lack thereof, provided by the CAWI or its agents. The dogs were not removed for health issues. Some dogs were returned with illnesses from outbreaks at the kennels where the CAWI placed them. Some dogs had to be relocated from one kennel to another as the first kennel was not providing adequate care. Windrift was denied access to the dogs. The CAWI had no evidence that any of the conditions for which the dogs received subsequent veterinary care after triage were present prior to the dogs being removed. No witness testified for the CAWI that the cause of any conditions for which the dogs received post triage veterinary care arose from issues from when the dogs were in Windrift’s care.
[80] The Board also considered that only two of the invoices were for services rendered from close to the triage. The Board considered these two invoices—September 24 and 27, 2021—in detail. Regarding the September 24, 2021 invoice, Regional Supervisor Munoz simply read the invoice and offered no further explanation. The September 27, 2021 invoice was provided for care four days after the dog was removed. Part of the invoice was for treatment for fleas and yet the triage examination made no note of the dog having fleas.
[81] The Board gave cogent reasons for rejecting the invoices for dog M-42. The Board did not accept that it was reasonable for veterinary care for one dog to exceed $18,000.
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