David Pryor v. Ontario Society for the Prevention of Cruelty to Animals, 2015 CanLII 105971

ANIMAL CARE REVIEW BOARD

DATE: 2015-04-08

FILE: 9348/ACRB

CASE NAME: Pryor v. Ontario Society for the Prevention of Cruelty to Animals

IN THE MATTER OF AN APPEAL UNDER SUBSECTION 17(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O 1990, c. O.36, as amended

David Pryor Appellant

-and-

Ontario Society for the Prevention of Cruelty to Animals Respondent

DECISION

ADJUDICATORS: Marie Fortier, Presiding Member Eleanor White, Member

APPEARANCES: For the Appellant: Blaine Armstrong, Counsel

For the Respondent: Paula Thomas, Counsel

Heard in Espanola: February 20, 2015

INTRODUCTION

1This is an appeal by the Appellant, David Pryor (“Mr. Pryor”) to the Animal Care Review Board (the “Board”) for the revocation of an Order issued on January 22, 2015, by the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) under Section 13(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (the “Act”). The Order refers to three stallions that were in the possession of Mr. Pryor.

BACKGROUND

2Mr. Pryor is the owner of a farm (the “farm”) where he has been raising horses for a number of years.

3On April 4, 2013, the OSPCA removed 9 horses from Mr. Pryor’s farm, pursuant to s.14 (1) of the Act because the animals were found to be in distress. The three stallions in question were among the horses that were removed. Mr. Pryor appealed the removal of the horses to the Board and on April 17, 2013, during a teleconference with the OSPCA, a board member and Mr. Pryor, it was determined that the horses were no longer in distress and were available for return to him on payment of various costs related to their care.

4On April 18, 2013, the OSPCA delivered a statement of account to Mr. Pryor for the food, care and attention of the horses in the amount of $29,582.97. Mr. Pryor did not agree with the amount claimed. The OSPCA and Mr. Pryor could not come to a compromise on the appropriate amount for the cost relating to the care of the animals and the appeal was heard by the Board.

5In its decision released on June 27, 2013, the Board determined that the horses were properly removed in accordance with the Act and that they were to be returned to Mr. Pryor upon payment of the OSPCA’s account of $32,226.78.

6Mr. Pryor appealed the Board's decision to the Superior Court of Justice including the requirement that he pay the amount of $32,226.78.

7The horses remained in the care of the OSPCA and at the time of the hearing of the appeal before the Superior Court of Justice in the late summer and fall of 2014, the cost of their care was approximately $108,000.00.

8In his decision released November 12, 2014, (David Pryor v. OSPCA, 2014 ONSC 6485) Gordon, RSJ confirmed the Board’s findings that the horses were lawfully removed by the OSPCA on April 4, 2013. However, Gordon RSJ found that the horses were ready for return to Mr. Pryor on April 18, 2013 and that the amount properly recoverable by the OSPCA as of that date was $8,922.86 and not the $29,582.97 claimed. The OSPCA was ordered to return the horses to Mr. Pryor upon payment of the sum of $8,922.86.

9The sum of $8,922.86 was paid on November 24, 2014, and Mr. Pryor and the OSPCA agreed that January 22, 2015 would be the appropriate date to return the horses to the farm.

10While the stallions were in the care of the OSPCA, Mr. Pryor had made renovations to the barn on his farm and made three separate stalls for the stallions. Although not clear from the evidence, it would appear that the renovations were at the request of the OSPCA.

11On January 22, 2015, the OSPCA returned the horses to Mr. Pryor at the farm. At 2:47 pm, after the horses had been unloaded and stabled, the OSPCA issued an Order pursuant to Section 13(1) of the Act, which stated:

Horses must have some form of turnout or exercise. Allow daily turnout or exercise opportunities, ideally outdoors and with foraging opportunities as per the National Farm Animal Care Council Code of Practice for the Care and Handling of Equines.

The Above Order shall be complied with by: February 6, 2015 at 11:00 am.

…The animals shall not be moved, sold or otherwise disposed of without the prior knowledge of the Inspector/Agent.

12Section 13(1) of the Act provides where an inspector or agent of the OSPCA has reasonable grounds for believing that an animal is in distress, he or she may order the owner to take such action as may be necessary to relieve the animal of its distress.

13Mr. Pryor is appealing against the Order on the basis that there was no evidence that the animals were in distress at the time that the Order was issued. As the Act contemplates actual and not “deemed” or “constructive distress”, the Order should therefore be revoked.

14The OSPCA maintains that there was reason to believe that the animals were in distress and therefore the Order is valid.

15Following the Order, it was disclosed during a teleconference on February 2, 2015, that the stallions were no longer at Mr. Pryor’s farm. The OSPCA executed a search warrant on February 14, 2015 to inspect the farm and indeed found that the stallions were no longer there. Mr. Pryor declines to reveal the current location of the horses and did not testify at the hearing.

16The OSPCA seeks to keep the Order in effect until they can locate the horses and determine whether they are in distress. Additionally, they are asking the Board to order Mr. Pryor to disclose the whereabouts of the animals.

ISSUES

17Does Subsection 13 (1) of the Act provide for the issuance of orders based on “deemed distress” or “constructive” distress of the animals?

18Were the animals in distress at the time the Order was issued?

19Does the Board have jurisdiction to compel Mr. Pryor to disclose the location of the stallions?

DECISION

20For the reasons that follow, the appeal is allowed.

EVIDENCE

A. Appellant

21Constable Dave Millette and Witness 2 testified on behalf of Mr. Pryor.

Constable Millette

22Constable Millette is a member of the Ontario Provincial Police and has been for the past 29 years. He is currently posted to the Manitowaning Detachment.

23In addition to being an Officer with the Ontario Provincial Police, Constable Millette is a farmer and has owned a cow/cattle/calf operation on Manitoulin Island for the past 20 years.

24According to Constable Millette, he was on duty on January 22, 2015 and was asked by the OSPCA to attend Mr. Pryor’s farm to “keep the peace” while the OSPCA returned a number of horses.

25Mr. Pryor met Constable Millette at the property around 12:30 p.m. and shortly thereafter members of the OSPCA arrived along with 2 truckers hauling individual trailers with the horses and a “horse handler”.

26Inspector Michaud, the horse handler and Constable Millette were all led by Mr. Pryor to the stalls.

27Inspector Michaud and the horse handler examined the horse stalls and were “quite content and complimentary” about the work that had been done on the stalls and agreed that Mr. Pryor had met the requirements.

28In his testimony, Constable Millette said that he observed the animals as they were unloaded and walked by him and stated that they “appeared very healthy; they were beautiful animals and to watch them walk by, it was very impressive”. The horse handler and Mr. Pryor returned the horses to the stalls without incident.

29After the horses were returned to the stalls, the OSPCA served Mr. Pryor with a written order, which was explained to him. Constable Millette remained until the OSPCA left.

Witness 2

30Witness 2 is a friend of Mr. Pryor and has been to his farm a number of times to take photographs of the horses. She testified that she went to the farm on January 22, 2015 to take photographs of the return of the horses.

31Witness 2 took photographs of the stallions as they were being unloaded from the trailer as well as photographs of the stalls. The photographs were attached to an affidavit sworn by Witness 2 on February 11, 2015, which was filed as an exhibit at the hearing.

32There were no difficulties as the horses were being unloaded and brought down to the stables by the horse handler and Mr. Pryor.

33As to the condition of the stallions on January 22, 2015, Witness 2 stated at paragraph 12 of her affidavit, “Neither at 2:47 p.m. on January 22, 2015 nor at any time prior to that time during my observations of the stallions did the stallions appear to be in any discomfort or distress”.

B. Respondent

34Agent Tracy Lapping and Senior Inspector Lynn Michaud testified on behalf of the OSPCA.

Agent Tracy Lapping

35Agent Tracy Lapping is an Animal Cruelty Agent with the OSPCA in the Sudbury and District area. She has been employed with the OSPCA since 2003. Agent Lapping testified at length about her education and experience and was qualified as an Equine Expert. Her Curriculum Vitae was filed as an exhibit at the hearing.

36Agent Lapping has been dealing with issues related to Mr. Pryor and his horses for some time and provided a history of the OSPCA’s involvement. She explained why the animals came into the OSPCA’s possession and why they were ultimately returned to Mr. Pryor on January 22, 2015. The history is summarized in paragraphs 3 to 10 above.

37It was Agent Lapping’s evidence that she was involved in returning the horses to Mr. Pryor’s farm on January 22, 2015. The OSPCA started to load the horses into trailers at approximately 7:30 a.m. and arrived at the farm around 1:15 p.m. Agent Lapping was present throughout and saw either Mr. Pryor or the horse handler hand walking the stallions from the trailer to the barn.

38It was Agent Lapping’s understanding, via her supervisor, that upon the return of the stallions to the farm, the horses would not be staying but would be leaving shortly, possibly walking from one trailer to another.

39According to Agent Lapping, the OSPCA could not get a clear answer from Mr. Pryor about the number of days that the stallions were going to remain at the farm.

40When they arrived at the farm on January 22, 2015, Agent Lapping saw that the stalls had been renovated but indicated that no modifications were made to the property for outdoor management of the stallions.

41While the mares had access to a large pasture, the stallions did not have a segregated area to be turned out. Being confined in their stalls without a paddock or turnout area to exercise would create problems for the horses.

42According to Agent Lapping, it is important to provide space for the stallions in order to give them a mental and physical break. Stallions often get isolated because they tend to attack others, impregnate the mares and injure the geldings.

43Agent Lapping also expressed concern that the barn housing the stallions was in the middle of the pasture where the mares can see in and the stallions can see out. Being in close proximity of the mares would cause added distress particularly as they now are “healthy”.

44The stress of confinement can also cause problems for stallions, including ulcers and weight loss, aggression, cribbing, “stocking up” and heat in the hoof. It was established in cross-examination that the stallions did not have any of these problems and that these conditions arise when horses are in the stalls for a long term.

45Because of the lack of paddock or turnout area at the farm, the OSPCA decided that an Order should be issued to ensure some type of exercise for the stallions. Accordingly, on the instructions of her supervisor, Agent Lapping drafted the Order referred to in paragraph 11 above.

46In drafting the Order, Agent Lapping considered and referred to Section 6.1of the “National Farm Animal Care Council, Code of Practice for the care and Handling of Equines” (the “Code of Practice”) and Section 2(6) (a) of Ontario Regulation 60/09 (the “Regulation”) under the Act.

47The Code of Practice is a nationally developed guideline for the care and handling of equines and outlines equine care requirements and recommended practices. Section 6.1 of the Code of Practice deals with “Husbandry Practices” and provides details of the requirements and recommended practices for “Turnout, Exercise and Social Opportunities”. Agent Lapping used the language in Section 6.1 that was emphasized by the Board below in drafting the Order.

Section 6.1 of the Code of Practice States:

6.1 Turnout, Exercise and Social Opportunities

For the purpose of this Code, turnout means allowing horses “free time” (i.e. not under controlled exercise) in a dry lot, arena, pen or pasture. Turnout does not necessarily mean the horse is grazing. Exercise refers to physical activity (indoors or outdoors) and includes, but is not limited to, walking in-hand, riding, lunging and hand grazing. Social opportunities refer to occasions when horses can interact with other horses via sight, sound and/or direct contact (3). Horses are highly adaptable to many weather conditions (3) - keeping them outdoors or giving them frequent outdoor access is encouraged. There are several advantages to providing horses with turnout and social opportunities. Research shows that horses with turnout time have greater bone density than those that are strictly stalled (3). Horses with increased turnout and social opportunities have also shown themselves easier to train and handle (3). If given ample social opportunities (either turned out with other horses or group housed), horses learn training tasks more efficiently and perform fewer undesirable behaviours (e.g. biting, kicking, bucking) compared to stalled horses (3).

For a small percentage of horses, turnout may bring a risk of injury (depending on their temperament and whether they are accustomed to turnout). These horses may need to be transitioned to turnout over a period of time (e.g. transition from a stall to a small paddock and then to pasture).

REQUIREMENTS

Horses must have some form of exercise or turnout (Board’s emphasis) unless under stall rest for medical reasons or severe environmental conditions make this temporarily impossible. Refer to the above explanations for the terms exercise and turnout.

RECOMMENDED PRACTICES

a. turn horses out with other horses or other equine companions.

b. allow daily exercise or turnout opportunities, ideally outdoors and with foraging opportunities (Board’s emphasis).

c. build or renovate facilities to allow ample social opportunities (e.g. group housing or stall design that allows horses to have visual or tactile contact with other equines).

d. provide stall-bound horses with continuous access to enrichment devices (e.g. trickle feeders, nibble nets, horse toys).

48Ontario Regulation 60/09 made under the Act deals with the basic standards of care for all animals. Pursuant to this regulation, animals are to be provided with adequate space to exercise. Section 2(6)(a) of the Regulation states:

2. (6) Every animal must be provided with adequate and appropriate,

(a) Space to enable the animal to move naturally and to exercise;

49As noted above, where an agent of the OSPCA has reasonable grounds for believing that an animal is in distress, he or she may order the owner to take such action as may be necessary to relieve the animal of its distress. According to Agent Lapping, the OSPCA had reasonable grounds for believing that the stallions were in distress because:

a) The farm did not have an area to handle the horses for turnout or exercise and were therefore subjected to undue or unnecessary hardship. In order to maintain good health, the horses require exercise.

b) Mr. Pryor did not provide a timeline as to how long the horses would remain at the farm.

c) The horses had not received any exercise on January 22, 2015, and had been standing on horse trailers for several hours that day.

d) The exercise component of their day to day life would not be met and therefore distress was identified.

50Agent Lapping agreed with Mr. Armstrong during cross-examination that walking in-hand is also an acceptable form of exercise pursuant to s. 6.1 of the Code of Practice. However, she was of the view that walking in-hand through the pasture could be unsafe for the person walking the horse and for the other horses because of the proximity to the mares. Mr. Pryor would need someone to help keep the mares away while he is walking the horses.

51Although advised as early as February 2, 2015 that the stallions were no longer at the farm and that a paddock had not been built, Agent Lapping wanted to check compliance with the Order.

52Mr. Pryor would not allow Agent Lapping onto the farm following the Order. As she was unable to see the stallions from the roadway, she made three attempts to obtain a search warrant of Mr. Pryor’s farm. The first two applications were refused and the third application on February 13, 2015 was granted.

53Agent Lapping’s “will say” statement, filed as an exhibit, describes the reasons why the first two search warrants were refused. Neither her “will say” statement nor her testimony provided any insight as to the information that was provided by the OSPCA to support the third and successful application for a warrant. With respect to the first two applications for warrants, Agent Lapping’s “will say” statement says:

On February 9, 2015, I attended the Ontario Court of Justice to seek an Ontario S.P.C.A. Search Warrant. His Worship Justice Leclair reviewed the warrant and denied it based on the following reason:

• Confusion between the paragraphs 217 and 222 regarding events occurring during which year;

• Indicating a belief that the Society knowingly left the horses in distress on January 22, 2015;

• Indicating that there was no information that the horses had not been exercised or “turned out”.

Para 202: “On February 10, 2015, I attended the Ontario Court of Justice to seek an Ontario S.P.C.A. Search Warrant. His Worship Ross reviewed the warrant and denied it based on the following reasons:

• That the Society does not have new evidence that the horses are in distress;

• That the Society re-articulated the information and asked the court to review its decision.

54Agent Lapping attended the farm with the search warrant on February 14, 2015. The stalls were empty and there was no sign of the stallions.

Senior Inspector Michaud

55Senior Inspector Michaud (“Inspector Michaud”) has been an inspector with the OSPCA since 2010. In her position, she covers a large part of Northern Ontario including the Sudbury area.

56In addition to her oral testimony, Inspector Michaud’s “will say” statement and duty notes were filed together as an exhibit at the hearing.

57Inspector Michaud was part of the team that returned the horses to Mr. Pryor’s farm. It was her evidence that upon arriving at the farm, she drove the length of the highway and saw that renovations had been made to the shelter for the stallions.

58When she returned to the area of the farm where the horses were being unloaded, Mr. Pryor confirmed that he had built three stalls or “transfer stations” for the stallions to hold them for a short period. According to Inspector Michaud’s “will say” statement, Mr. Pryor then led Inspector Michaud, Agent Lapping and the horse handler to inspect the stalls. Inspector Michaud testified that there was nothing of concern about the stalls. Paragraph 190 of her “will say” statement states:

“Upon arriving at the shelter, I observed that there were now three good size stalls constructed of wood and cedar planks/branches with nails and wire. They were set far back into the shelter. There was some shaving for bedding, water buckets and mineral/salt blocks in each of the stalls. The ‘floor’ of the shelter had been dug down since April 2014.

59Inspector Michaud is familiar with Mr. Pryor and has had many conversations with him regarding the return of the stallions. Based on these conversations, it was her expectation that the stallions would be unloaded on January 22, 2015 and brought somewhere else. When it became apparent during the unloading of the stallions that they were not going to be leaving the property immediately, she questioned Mr. Pryor about the timing of the move. According to Inspector Michaud, Mr. Pryor’s answers were “vague and non-committal”, stating that the stallions would be leaving in “a few days” and that the horses would be going to different locations. Mr. Pryor refused the OSPCA’s offer to transfer the stallions immediately to their new destination.

60According to Inspector Michaud, Mr. Pryor’s vague answers about the timing of the move were of concern because there was no paddock or fenced areas away from the mares for the stallions to turn out. Although she admitted that she had prior notification that Mr. Pryor was moving the stallions, Inspector Michaud testified that she had no idea how long the stallions would be left without turnout.

61After viewing the housing arrangements for the stallions and concluding that there was no turnout or exercise opportunity for them, Inspector Michaud received instructions from her supervisor, Chief Mallory, to issue the Order as described in paragraph 11 above.

62Inspector Michaud testified that the stallions were in distress as defined by Section 1(1) of the Act. Section 1(1) of the Act states as follows:

“distress” means the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect.

63Inspector Michaud testified that her understanding of distress speaks to the horses’ basic need for proper care under the law. The stallions were being placed into holding stalls without access to turnout for exercise and accordingly they were being deprived of one of their basic needs, more particularly, the opportunity to exercise.

64Distress was identified, according to Inspector Michaud:

i. As soon as she looked at the shelter and saw that there was no turnout or apparent exercise opportunity for the stallions, and

ii. When she could not get information from Mr. Pryor about the timing of the move.

65In cross-examination, Inspector Michaud agreed that the Code of Practice deals with exercise as well as turnout and that walking in-hand is an acceptable form of exercise. However, because of the presence of the mares, Inspector Michaud stated that Mr. Pryor would need assistance with walking in-hand because she was “not sure how he could walk the stallions for exercise unless he had people keeping those mares at bay”.

66Inspector Michaud also agreed in cross-examination that Section13 (1) of the Act gives the OSPCA the authority to make Orders when the animal is in distress at the time. Furthermore, it was agreed that the stallions were not in distress in the trailer, when they were led to barn, nor when they were put into stalls.

SUBMISSIONS

A. Appellant

67Mr. Armstrong submits that the OSPCA focused on the lack of turnout in support of its conclusion that the stallions would be deprived of an opportunity for exercise pursuant to the Code of Practice and Ontario Regulation 60/09. In doing so, the OSPCA is only speculating that the stallions would be deprived of an opportunity for exercise because turnout is only one of the acceptable forms of exercise. Another acceptable form of exercise is walking in-hand with the stallions, which based on the evidence, Mr. Pryor is capable of doing.

68According to Mr. Armstrong, the language of Section 13(1) of the Act provides authority to the OSPCA to issue orders in situations where it has reasonable grounds for believing that an animal is in distress. The Act is drafted in the present tense and does not authorize an order based on constructive, deemed or future distress. Section 13(1) of the Act states:

13. (1) Where an inspector or an agent of the Society has reasonable grounds for believing that an animal is in distress and the owner or custodian of the animal is present or may be found promptly, the inspector or agent may order the owner or custodian to,

(a) take such action as may, in the opinion of the inspector or agent, be necessary to relieve the animal of its distress.

69There was no evidence that there was anything wrong with the stallions when they were off loaded, walked or stalled and therefore no evidence that the horses were in distress at the time that the Order was issued. Mr. Armstrong is asking the Board to revoke the Order as it was unsupported by the legislation.

70On a final note, Mr. Armstrong argued that compelling Mr. Pryor to disclose the current location of the stallions is beyond the Board’s jurisdiction.

B. Respondent

71Ms. Thomas argues that the Order is valid and the OSPCA is seeking to keep the Order in effect until they can locate the horses and determine whether they are in distress. Additionally, they are asking the Board to order Mr. Pryor to disclose the whereabouts of the animals.

72According to Ms. Thomas, the Order was reasonable, justified under the circumstances, and written in accordance with the Code of Practice and the Regulations.

73The understanding of the OSPCA was that the stallions were to go from the trailer to another location immediately. That did not turn out to be the case. Although Mr. Pryor went to some length to improve the structure, there was no turnout area for exercise. Ms. Thomas highlighted the evidence that stallions require turnout to alleviate physical and mental distress and drew the Board’s attention to the evidence showing the challenges of hand walking the stallions in the presence of the mares.

74Ms. Thomas maintains that distress was proven through the evidence of Inspector Michaud, more particularly, when she testified that the stallions were being placed into holding stalls without access to turnout for exercise. The stallions were being deprived of the opportunity to exercise, which is one of their basic needs. The stallions were therefore “subject to undue or unnecessary hardship, privation or neglect” pursuant to the definition of distress under Section 1(1) of the Act.

75It is Ms. Thomas’ submission that the OSPCA was exercising due diligence in their attempts to locate the stallions after they had been advised that they were no longer at the farm. It is a term of the Order that until it is revoked or modified, the animals are not to be “moved, sold or otherwise disposed of without the prior knowledge of the inspector/agent”. As Mr. Pryor moved the horses, the OSPCA must check compliance wherever the horses are kept to ensure that they are not in distress.

76The OSPCA is asking the Board to confirm the Order and to compel Mr. Pryor to disclose the name and contact information of the owners or custodians of the stallions.

77In support of the request for an order for disclosure, Ms. Thomas drew the Board’s attention to Sections 13(5) and 13(6) of the Act. According to Section 13(5), a person served with an order shall comply with its terms (which terms would include the moving or selling of the horses) until the order is modified, confirmed or revoked. Section 13(6) provides the authority to the OSPCA to enter the premises to determine compliance with the order. Section 13(6) states:

“If an order made under subsection (1) remains in force, an inspector or an agent of the Society may enter without a warrant any building or place where the animal that is the subject of the order is located…”.

78According to Ms. Thomas, the Board has jurisdiction to compel Mr. Pryor to disclose the location of the stallions as the Board has apparently made a similar order in another matter during a case conference.

REASONS

i. Does Subsection 13 (1) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o36/latest/rso-1990-c-o36.html) provide for the issuance of orders based on “deemed distress” or “constructive” or “future” distress of the animals?

79The OSPCA has the authority to issue compliance orders pursuant to Section 13(1) of the Act where there are reasonable grounds for believing that an animal is in distress. Section 13(1) of the Act states as follows:

13. (1) Where an inspector or an agent of the Society has reasonable grounds for believing that an animal is (Board’s emphasis) in distress and the owner or custodian of the animal is present or may be found promptly, the inspector or agent may order the owner or custodian to,

(b) take such action as may, in the opinion of the inspector or agent, be necessary to relieve the animal of its distress.

80The Board finds that the word “is” in paragraph 13(1) of the Act as emphasized above is plain and unambiguous and must be applied by the Board as written. The only meaning the text can plausibly bear for the word “is” is the present of “be”. Section 13(1) cannot be read to include that an animal “may be” or “will be” or “can be” in distress.

81It is the finding of the Board that Section 13(1) of the Act does not provide the authority of the OSPCA to issue Orders based on “deemed”, “constructive” or “future” distress. The Board finds that the animals must be in distress at the time that the Order is issued.

ii. Were the animals in distress at the time the Compliance Order was issued?

82Distress is defined in Section 1(1) of the Act as “the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect”.

83The evidence of all of the witnesses was very clear that the stallions were not in distress in the trailer, when they were led to barn, nor when they were put into the stalls. On the contrary, the evidence is clear that they were beautiful, healthy horses.

84According to Inspector Michaud, distress was “identified” when she discovered that there was no turnout or apparent exercise opportunity for the stallions and when she could not get information from Mr. Pryor about the timing of the move.

85The Board finds that there was no evidence upon which the OSPCA could properly find that the horses were in distress at the time the Order was issued.

86The lack of turnout or of a built paddock is not indicative of a lack of exercise. Section 6.1 of the Code of Practice speaks of “walking in-hand” as exercise and there is no evidence before the Board that Mr. Pryor could not or would not exercise the horses by walking in-hand. The fact that he may need help in doing so is not evidence that it would not be done.

87Despite Agent Lapping and Inspector Michaud’s concerns, there is no evidence before the Board that the stallions were going to stay on the farm for a long period. On the contrary, the evidence is clear that the stallions were on the farm on a temporary basis. Inspector Michaud’s own evidence was that Mr. Pryor referred to the three stalls as “transfer stations” for the stallions to hold them for a short period of time, maybe “a few days”.

88It is the Board’s view that the OSPCA issued the Order based on an assumption that the horses would not receive any exercise while at the farm and not based on any evidence of distress that was present at the time that the Order was issued.

iii. Does the Board have jurisdiction to order Mr. Pryor to disclose the location of the stallions?

89The powers of the Board are outlined in Section 17 (6) of the Act and state:

(6) After a hearing or, with the consent of the Society and the person who issued the notice under subsection (1) or (2), without a hearing, the Board may,

(a) respecting an order made under subsection 13 (1), confirm, revoke or modify the order appealed against;

(b) respecting the removal of an animal under subsection 14 (1), order that the animal be returned to the owner or custodian and may make an order in the same terms as an order may be made under subsection 13 (1);

(c) order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under subsection 13 (1) be paid by the Society to the owner or custodian; or

(d) order that the whole or any part of the cost to the Society of providing food, care or treatment to an animal pursuant to its removal under subsection 14 (1) be paid by the owner or custodian of the animal to the Society. R.S.O. 1990, c. 36, s. 17 (6); 2008, c. 16, s. 15 (4, 5).

90The Board finds that Section 17(6) of the Act does not confer it with jurisdiction to compel Mr. Pryor to disclose the current location of the stallions.

91It is to be noted that the Case Conference Order referred to by Ms. Thomas in her submissions was part of the terms and conditions of a settlement agreement (Board’s emphasis) between the parties and therefore not binding or relevant.

CONCLUSION

92For the reasons outlined above, and pursuant to the powers of the Board outlined in Section 17(6)(a) of the Act, the Board grants Mr. Pryor’s appeal and revokes the Order issued on January 22, 2015 by the OSPCA.

Marie Fortier Member, Animal Care Review Board

Eleanor White Member, Animal Care Review Board

Issued: April 8, 2015