Hurley v. Ontario Society for the Prevention of Cruelty to Animals, 2015 CanLII 106095

ANIMAL CARE REVIEW BOARD

DATE: 2015-05-25

FILE: 9433/ACRB

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

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

Rebecca Hurley Appellant

-and-

Ontario Society for the Prevention of Cruelty to Animals Respondent

DECISION AND ORDER

ADJUDICATORS: Louise Menard, Presiding Member Dr. Eleanor White, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Connie Mallory, Chief Inspector

Heard in Sault Sainte Marie: March 31, April 1, 20 and 21, 2015

DECISION AND ORDER

I. DECISION

1. This is a decision of the Animal Care Review Board (the “Board”) with respect to an appeal by the Appellant, pursuant to the Ontario Society for the Prevention of Cruelty to Animals Act (the “Act”) regarding the removal of twenty four horses and a goat by the Ontario Society for the Prevention of Cruelty to Animals (the “Respondent” or “OSPCA”) from the Appellant’s farm.

2. For the reasons listed below, it is the decision and order of the Board as follows:

A. The Appellant’s animals were removed in compliance with Section 14(1) (a) and (c) of the Act.

B. Lady and Tom, and the identified horses with low body condition score, shall remain with the Respondent, at the Appellant’s expense, until the treating veterinarian deems them healthy for return.

C. The goat and the horses deemed healthy by the treating veterinarian shall be returned to the Appellant on the following conditions:

(i) the Appellant shall ensure that the horses have access to water, mineral blocks and free choice good quality hay at all times.

(ii) the Appellant shall ensure that the horses are examined by a veterinarian for nutrition and herd management within sixty days of their return and that treatment recommendations be followed, and that a report be provided to the OSPCA with the examination findings and treatment recommendations. The Appellant must comply with the treatment recommendations.

(iii) the Appellant shall ensure that the goat has access to water and free choice good quality hay at all times.

D. The Appellant shall pay the amount of the Statement of Account in the amount of $17,389.61 owing up to April 21, 2015.

E. The Appellant shall also pay $213.46 per day in boarding costs and any additional expenses incurred relating to care or treatment of animals from April 22, 2015 onward.

II. BACKGROUND

3. On February 9, 2014, the Respondent received an email report of horses with overgrown hooves and being in poor body condition located at the Appellant’s property.

4. On April 9, 2014, Agent Tracy Lapping (qualified as an expert in equine care and management) and Agent-in- training Alanna Gotziaman drove to the Appellant’s farm and made observations from the roadway. The property consisted of a large field and a wooden type barn structure. There was debris in the yard and a couple of motor vehicles parked near the residence. She did not observe any animals on the property. She left a “while you were out” tag and posted it on the “No Trespassing” sign on the gate.

5. Having received no response from the Appellant, Agent Lapping re-attended the property on May 2, 2014. Upon arrival, she observed some horses from the public roadway and she noted the horses appeared to be in poor body condition. The horses presented as being thin with negative crease over their hips and hindquarters. Certain horses’ hooves appeared to be elongated and chipped. She left a “while you were out” tag and posted it on the “No Trespassing” sign on the gate. She left the property at 11:41 a.m.

6. On that same day, Agent Lapping applied for a warrant to enter upon the farm property. At 5:30 p.m., the search warrant was executed. Dr. Good, a veterinarian retained by the OSPCA to examine the horses, accompanied Agent Lapping.

7. Agent Lapping observed a large number of horses who appeared to be underweight. She visually assessed them to have a body score of 2 on a Body Score Range of 1 to 5.

8. Dr. Good examined the animals and the premises and assessed body condition scores for each of the horses on the property. Of note was a large Belgian-type horse with a wound under her left lower jawbone. The wound was infected and there was green mucous like substance coming from the wound.

9. Dr. Good and Agent Lapping agreed that certain horses were in “distress” as defined by the Act. As a result of their observations of the animals and their environment, Agent Lapping issued three Orders on May 2, 2014. Firstly, with respect to all horses it was ordered that they are:

(a) to be provided with adequate, good quality, free choice hay at all times;

(b) to be provided with adequate access to salt and mineral blocks;

(c) to be provided with adequate access to dry resting areas;

(d) to take a pooled fecal sample for veterinary analysis and to de-worm findings;

(e) and have hooves trimmed by an experienced farrier and to return them to an appropriate length and shape.

Items (a), (b), (c) were to be complied with by May 5, 2014 at 11:00 a.m., items (d) and (e) were to be complied with by Tuesday May 13, 2014 at 4:00 p.m.

10. Secondly, Agent Lapping issued an Order pertinent to the nine horses that were identified as having a body condition score of 2.25 or less as referenced above to have:

(a) veterinarian exam with attention to overall body condition;

(b) follow-up of veterinarian’s treatment recommendation and provision of a report of exam findings and subsequent treatments to the investigating officer.

The time compliance was set for May 13, 2014 at 4:00 p.m.

11. A third Order specifically dealt with the Belgian type horse identified as “Lady”, who had been observed with an injury to her lower left jaw. It directed the Appellant to clean the wound under the horse’s chin with an appropriate wound care product. Time compliance was set for May 5, 2014.

12. On May 5, 2014, Agent Lapping and Agent Gotziaman returned to the farm to determine whether the Orders were being met. She found that the horses were being provided with hay, salt licks and dry resting areas. Agent Lapping noted that Lady’s wound had been cleaned; however, there was no improvement in the condition of the wound. She also stressed to the Appellant, the importance of securing veterinary and farrier care for her horses.

13. On May 5, 2014, Agent Lapping, due to the Appellant’s compliance, issued a Revocation Order that related to the issues of:

(a) providing adequate, good quality hay, free choice hay at all times;

(b) providing adequate access to salt and mineral blocks;

(c) providing adequate access to dry resting areas.

14. On May 16, 2014, Agent Lapping returned to the farm to determine whether the remaining Orders were being met. She observed that the wound under Lady’s chin was not improving. She then issued a Modification Order directing that a veterinarian examine Lady by May 30, 2014 at 4:00 p.m.

15. On that same day, Agent Lapping issued a Modification Order extending the time compliance for the horses identified on May 2, 2014, as needing to be seen by a veterinarian to May 30, 2014 at 4:00 p.m.

16. On June 4, 2014, Agent Lapping attended the Appellant’s property with Agent Gotziaman and Dr. P.J. Rocheleau, a veterinarian. This visit had been pre-arranged with the Appellant and the Respondent as there was still non-compliance with the outstanding Orders.

17. Dr. Rocheleau examined each horse on the property. After discussion with the Respondent, the following Order was issued:

(a) Lady to be seen by a veterinarian with special attention to her overall body condition and an injury to her lower left jawbone. Compliance was set for June 24, 2014 at 10:00 a.m.;

(b) Nineteen horses on the property have their teeth floated by a veterinarian to correct dental problems and abnormalities with a compliance date of June 24, 2014, at 10:00 a.m.;

(c) A horse identified as “Princey” to be examined by a veterinarian with special attention to respiratory issues. Follow the treatment recommendations of the veterinarian consulted;

(d) All animals to be provided with free choice hay at all times.

18. On June 4, 2014, Agent Lapping issued a Revocation Order with respect to the May 2, 2014 Order compelling the Appellant to have the horses examined by a veterinarian with attention to overall body conditions as the horses had been examined by Dr. Rocheleau at the OSPCA’s expense.

19. Various attempts were made by Agent Lapping to verify compliance of the outstanding Orders. Over the summer of 2014, there was an exchange of emails between the parties and several attempts by Agent Lapping to attend the property.

20. On July 9, 2014, Agent Lapping sent out a copy of a Modification Order via registered mail providing the Appellant with an extension of time compliance of her orders to July 31, 2014. This registered letter was never retrieved by the Appellant.

21. On July 28, 2014, Agent Lapping was advised by email that the Appellant had secured the services of a veterinarian. Dr. Tai of DeLuna Equine Veterinary Services was scheduled to attend August 28 and 29, 2014. Due to a family emergency, the veterinarian was unable to attend the farm. In October 2014, Agent Lapping stressed to the Appellant the importance of securing the services of a veterinarian for her horses.

22. On October 9, 2014, Agent Lapping sent out a copy of a Modification Order via registered mail providing the Appellant with an extension of time for compliance of the Orders to October 31, 2014 at 4:00 p.m. This letter was not retrieved by the Appellant.

23. On November 25, 2014, Agent Lapping arrived at the Appellant’s property. She observed horses in the pasture and was pleased to see that the horses’ body condition had improved due to their having access to grass all summer.

24. On two subsequent occasions, Agent Lapping attempted to visit the Appellant’s property. The Appellant was not present and both times Agent Lapping posted a “while you were out notice” tag and left it on the “No Trespassing” sign on the gate.

25. On January 28, 2015, Agent Lapping forwarded a copy of the quote from Espanola Animal Hospital (Dr. Rocheleau) pertaining to providing dental/veterinary services to the Appellant’s horses.

26. On January 30, 2015, Agent Lapping sent out a copy of a Modification Order by registered mail. The compliance time was extended for five business days from the receipt of the Modification Order. The Appellant received the letter on February 7, 2015.

27. On February 25, 2015, Agent Lapping obtained a warrant for the Appellant’s property. On March 2, 2015, Agent Lapping accompanied with Agent Patterson and a Sault Ste. Marie police officer attended at the Appellant’s property. The Appellant was not at home. Agent Lapping posted the warrant on the front door of the dwelling. Thereafter, Agents Lapping and Patterson entered the areas where the livestock and horses were kept. They observed a pig in good body condition with some redness of the skin on his lower limbs. There was a goat with overgrown hooves and several horses in poor body condition. She noted that there were varying degrees of hoof care required for the horses. She also noted that the horse, Lady, still had an infected wound on her lower left jaw. A second horse identified as “Tom” had extremely overgrown hooves and a wound on his neck behind his left ear.

28. In another paddock, Agent Lapping observed four horses and only one horse had good body condition. The water in the troughs was frozen and the feed that was present was hay of poor quality.

29. On March 2, 2015, Agent Lapping conversed with her supervisor, Senior Inspector Lynn Michaud to inform her that the Appellant was in non-compliance of the outstanding Modification Orders. The Respondent decided to attend at the property with a veterinarian for further assessment of the animals.

30. On March 5, 2015, Agent Lapping accompanied by Sr. Insp. Lynn Michaud, Agents Nicole Driscoll and Patterson, Dr. Bruce Robertson, and horse handler Dennis Walker attended the Appellant’s property.

31. On March 5, 2015, the animals (except the pig) on the Appellant’s farm were removed for non-compliance of an Order under section 13 of the Act and on the written recommendation of a veterinarian.

32. Subsequently, the Appellant filed an appeal with the Board.

III. ISSUE

33. The issue before the Board is whether the Appellant’s animals were removed in compliance with Section 14(1) (a) and (c) of the Act.

IV. THE LAW

34. Section 14 (1) (a) and (c) of the Act provide as follows:

14 (1) An inspector or an agent of the Society may remove an animal from the building or places where it is and take possession thereof on behalf of the Society for the purpose of providing it with food, care or treatment to relieve it distress where,

(a) a veterinarian has examined the animal and has advised the inspector or Agent in writing that the health and wellbeing of the animal necessitates its removal;

(c) an order respecting the animal has been made under section 13 and the order has not been complied with.

35. Distress is defined in Section 1 of the Act as follows:

36. In this Act …

“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 hardship or unnecessary hardship, privation or neglect;

V. JURISDICTION

36. The Board’s powers are set out in section 17(6) of the Act, which provides as follows:

17 (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); or

(c) order that the whole or any part of the cost of complying with an order or providing, food, care or treatment to an animal be paid by the Society.

VI. RESPONDENT’S CASE

Tracy Lapping

37. Tracy Lapping is employed with the Sudbury Branch of the OSPCA and has been an Agent since 2003. Agent Lapping has been involved with the Appellant since May 2, 2014. Over the period of ten months, she attended the Appellant’s premises to ensure compliance of Orders that were issued on May 2, 2014 and June 4, 2014 respectively. She understood that the Appellant had difficulty securing the services of a veterinarian and had extended the compliance dates several times to help facilitate the Appellant in her search. She had given the Appellant verbal and written notice on many occasions of the importance of securing a veterinarian and the importance of having her animals treated.

38. On February 18, 2015, Agent Lapping sent an email to the Appellant requesting information of her vet appointment that is required for the horses. She never received a response from the Appellant.

39. On March 2, 2015, she attended the Appellant’s premises with Agent Patterson and a Sault Ste. Marie police officer. The Appellant was not at home. She posted a copy of the warrant on the front door of the residence. She entered the property and made observations of the animals. She had concerns and reported them to her supervisor Sr. Insp. Lynn Michaud. A decision was made to attend the property with a veterinarian for further assessment of the animals.

40. On March 5, 2015, accompanied with Sr. Insp. Michaud, Agents Patterson and Driscoll, Dr. Bruce Robertson, and a Sault Ste. Marie police officer, she executed a search warrant at the Appellant’s property.

41. Agent Lapping testified that her observations on March 5, 2015 were similar to those of March 2, 2015. She made the following observations:

(i) twenty horses in the first paddock were without hay; four horses in the second paddock had hay;

(ii) water in troughs was frozen;

(iii) horses were eating the manure on the ground;

(iv) minimal urine stains on the ground;

(iv) horses with varying degrees of distortion of the hooves, being overgrown and cracked;

(v) most horses were in poor body condition;

(vi) the horses were displaying listless and lethargic behaviour.

42. Following a conversation with Dr. Bruce Robertson, Sr. Insp. Michaud and based on their observations on the farm, it was determined that the removal of all horses and a goat would take place as a result of non-compliance of outstanding Orders and the recommendation of a veterinarian that the animals needed medical care and treatment. Agent Lapping completed a Notice of Removal and served it to the Appellant. Agent Lapping explained the contents of the document and appeal options to the Appellant.

43. In cross-examination, Agent Lapping recalled a conversation with the Appellant who advised her that her horses’ hooves were trimmed by her husband and from time to time by another farrier on a rotational basis. She stated however that she still issued the Order for farrier care as she observed that many horses’ hoofs were in need of trimming.

44. She acknowledged that the Appellant had made a request for Dr. Good’s and Dr. Rocheleau’s reports. She indicated in an email that she would provide said reports to the Appellant. However, she did not do so as she was informed that it was not OSPCA’s procedure to do so.

45. She stated that the Appellant notified her of the August 28 and 29, 2014 appointments with Deluna Equine Vet. She also confirmed she was told that the veterinarian did not attend at the Appellant’s premises due to a family emergency. She did remind the Appellant that in an email dated September 16, 2014 that she requested the re-scheduled date. She also recalled a conversation in which she reminded the Appellant she must obtain a veterinarian.

46. She was aware that Sr. Insp. Michaud had made a request from the Espanola Animal Hospital for a dental quote for nineteen of the Appellant’s horses. She recollects sending the quote by email to the Appellant on January 28, 2015 and sending it a second time on February 11, 2015. She testified that she was not aware of any attempts by the Appellant to engage the services of Dr. Rocheleau.

Bruce Robertson, DVM

47. Dr. Bruce Robertson graduated from the University of Guelph in 1994. He obtained a degree of Veterinary Medicine. He is licensed by the College of Veterinarians of Ontario. He specializes in the health management of large groups of animals. He was duly qualified as an expert witness.

48. On March 5, 2015, at the request of the Respondent, Dr. Robertson attended the Appellant’ s farm to assist in the assessment of the living conditions and welfare of the animals on the premises and to determine if there was compliance of the outstanding Orders.

49. He stated that on the day of the attendance, the temperature was minus 30C. When he entered the first paddock where twenty horses were housed, he noted that no hay was present and the water in the troughs was frozen. The horses were not responsive or interested to the arrival of the OSPCA Agents and himself which is not usual horse behaviour. The horses were browsing and eating manure that was on the ground. He stated that it was extremely abnormal for horses to eat manure.

50. In the second paddock where four other horses were housed he did observe that hay was provided and that the water in the troughs was frozen.

51. Dr. Robertson stated that in both paddocks there was a general lack of urine staining in the snow for the large number of horses that were present. He also noted that the urine staining was very dark which is suggestive of a lack of water ingestion. This was very concerning to Dr. Robertson.

52. Brief exams were performed on the animals on the property. It was determined that all horses examined had abnormal findings on dental exams and would require further dental examination and treatment.

53. During the dental exams, Dr. Robertson noted that none of the horses examined had a normal level of saliva production and he noted that a number of horses had eyes that appeared dry and showed signs of dehydration.

54. Dr. Robertson noted specific medical concerns in three animals. A horse named Tom had a full thickness abrasion behind the left ear. This was a result of his halter being too tight and cutting through the skin. This injury was very painful to the horse. He noted that Tom was very thin and gave him a body condition score of 1.75 (using a 1 to 5 scale). A second horse named Lady had a draining tract on the lower left mandible. He suspected that there was a chronic infection most likely secondary to a tooth abscess and further evaluation and medical therapy would be required. Thirdly, he noted the goat to be emaciated and the mucous membrane in its mouth to be white. The tentative diagnosis was inadequate feeding possibly complicated by parasitism.

55. Dr. Robertson assessed the general body condition of the herd of horses to be a 2 (on the 1 to 5 scale). He would expect in a normal healthy herd to have a body score of 3.5. The poor body condition score indicates a problem. It was his opinion that the low body condition score at the herd level is due to inadequate nutrition, lack of water, and a failure of providing dental care.

56. Dr. Robertson testified that in his opinion, that all of the animals on the farm were in distress as defined in the Act. All of the horses had dental pathology that required treatment. Hay and fresh water were not provided. The lack of hay debris and the manure browsing behaviour of the horses suggested that insufficient nutrition was provided. The poor body condition and the behaviour of the horses suggest that this was a chronic situation not a temporary one. Dr. Robertson also noted a lack of compliance with the Orders. Dr. Robertson believed there were sufficient grounds for the removal of the animals for evaluation, treatment and care. He signed a Certificate of Veterinarian and served it to Agent Lapping.

57. On cross-examination, Dr. Robertson stated that he did not observe any extension cords near the water troughs. He stated that, if the Appellant had a water heating system, it should have been activated for the benefit of the horses.

58. He stated that he was not aware of the Appellant’s attempts to secure a veterinarian.

59. He testified that in his opinion, the body condition score of the herd was due to a long-standing systemic problem of poor feeding. The failure to provide hay for one day is not the reason for poor body condition.

60. Dr. Robertson considered the care given to the horses was substandard due to inadequate food, water, and lack of dental and hoof care.

Nicole Driscoll

61. Nicole Driscoll is an Agent with the OSPCA and has been investigating reports of animal cruelty since 2007. Her role in this investigation was to take photographs and videos of the animals at the Appellant’s farm.

62. She attended at the farm on March 5, 2015. Her testimony and photographic and video evidence confirmed the observations of Agent Lapping, Sr. Insp. Lynn Michaud and Dr. Robertson.

63. She left the premises at 3:30 p.m. and proceeded to the foster farm.

64. On cross-examination, she testified that all the OSPCA personnel, Dr. Robertson and the horse handler all followed bio security protocol and that all of these individuals wore the required protective coveralls.

65. She also testified that she was present when the farrier Doug Hurley trimmed the horses’ hooves. She confirmed that two Belgian horses had to be sedated for hoof treatment.

Shawn Ford

66. Shawn Ford is the Director of Finance and Information Technology employed by the Respondent. He has been in this position since July of 2009.

67. In his testimony, Mr. Ford explained how the OSPCA’s phone and email systems operated. He explained that there are two published numbers to reach the OSPCA phone system. Calls are answered with an automatic system where the caller is presented with a number of options including being forwarded to the Animal Cruelty Call Centre Hotline, accessing the organizational directory or speaking with the operator. A caller that accesses the organizational directory can enter the name of the employee and the call is transferred to that employee’s extension.

68. Mr. Ford stated that the system for inbound emails to the OSPCA domain is first passed through the firewall system and if deemed safe they then enter the network. The email is routed to the email server and then delivered to the appropriate mailbox. Mr. Ford confirmed that the recipient could edit and delete emails. However, he stressed that the email firewall and email server track all historical email activity regardless of changes made by users. He also confirmed that only restricted IT administrators have access to the email firewall, email server or system backups.

69. At the request of Senior Inspector Michaud, Mr. Ford obtained an extract of the logs from the OSPCA’s server for emails received by the two email addresses and . The initial log extracts dating back to January 27, 2015 showed that there was:

(a) one email from to Agent Lapping on February 10 , 2015 at 10:55 p.m.;

(b) three emails from to Senior Inspector Michaud on March18, 2015 at 3:43 p.m., March 18, 2015 at 3:51 p.m. and March 19, 2015 at 12:31 a.m.

70. Mr. Ford presented a threat report with a data range from February 17, 2015 to March 24, 2015 as an exhibit to the hearing and explained that the analysis of results showed no intrusion was made into the OSPCA network.

71. On cross-examination when asked if the email system is 100% effective, he explained that there is the possibility that an outbound email does not get out to the recipient. One must look at recipient’s server to determine if an email has been received.

Douglas Hurley

72. Douglas Hurley has been a farrier for 30 years after completing two years of equine studies at Humber College and a further year of study at Wolverine Farrier School. He holds an Equine Canada Level One Coaching certificate in discipline of hunter/jumper. He was qualified as an expert in farrier services and treatment of equine hooves.

73. On March 5, 2015, he attended at a foster farm to provide assistance with farrier care for two Belgian type horses.

74. He testified that these two horses’ hooves were extremely overgrown. He noted some hoof wall separation, deformities in the white line of the hoof and that their heels were contracted. He removed three inches of excess hoof, indicating that it had been months since their last trim.

75. On March 9 and 10, 2015, he re-attended at the foster farm and completed trims on twenty-two horses. He stated that the hooves of these horses were of varying degrees of overgrowth and they were all due for hoof care.

76. Mr. Hurley also stated that the individual who was doing the trimming of these horses was not experienced and that the manner in which the horses’ hooves were trimmed could cause them discomfort. He stated that a horse is only as good as its hooves. In his opinion, the horses had not received appropriate treatment.

77. In cross-examination, Mr. Hurley acknowledged that to a certain degree, everyone trims hooves differently except in the racehorse industry.

78. He also testified that a horse’s hooves should be trimmed every four to six weeks. Some horses can go six to eight weeks. It depends on how the horse is worked.

79. He stated that the horses were well behaved. He indicated to the Appellant that it was not a life and death matter that the horses’ hooves be trimmed on March 5, 2015; however, the horses were past due for a trimming.

Lynn Michaud

80. Lynn Michaud is a Senior Inspector with the OSPCA. She is familiar with the Appellant as she was involved in a hearing the Appellant had before the Board in 2012.

81. On June 15, 2014, in a telephone conversation with the Appellant, Sr. Insp. Michaud advised the Appellant of the proposal that the OSPCA hire Dr. Rocheleau on her behalf, which would allow him to provide the medical/dental needs identified with her horses. This could be done if the Appellant agreed to pay for such services in advance. The Appellant refused the offer and advised Sr. Insp. Michaud that the services of a veterinarian had been secured.

82. In September 2014, Sr. Insp. Michaud and the Appellant had an exchange of email correspondence. Sr. Insp. Michaud requested that the Appellant provide an update on the plan for her veterinarian to provide services to the horses on the ranch pursuant to the outstanding Orders. The Appellant stated that she was still attempting to secure the services of the veterinarian from southern Ontario. At this time, Sr. Insp. Michaud forwarded the Appellant’s email to Agent Lapping for information sharing purposes and for future follow up.

83. On January 11, 2015, Sr. Insp. Michaud received an email from the Appellant. She was informed that the Appellant was not able to procure the services of a veterinarian and inquired if the OSPCA offer to utilize Dr. Rocheleau for her veterinary needs was still an option.

84. There was a further exchange of emails and a request from the Appellant for details on pricing for what the dental care would cost. On January 18, 2015, Sr. Insp. Michaud forwarded the Appellant’s email to Agent Lapping for follow up. She had no further contact with the Appellant until March 5, 2015.

85. On March 2, 2015, Sr. Insp. Michaud had a telephone conversation with Agent Lapping regarding the outcome of the search warrant executed on the Appellant’s property. They discussed the distress issues Agent Lapping had identified with focus on concerns for two emaciated ponies and two horses requiring medical care. They discussed a plan for a follow up warrant with a veterinarian and possible removal of animals.

86. On March 5, 2015, accompanied with OSPCA personnel, Dr. Bruce Robertson and Sault Ste. Marie police officers, she attended the Appellant’s premises.

87. During the search of the Appellant’s premises, the Appellant repeatedly stated that she and her friend, C.M., had left voice mail messages to Agent Lapping on March 3, 2015 to discuss the warrant of March 2, 2015 and engaging the services of Dr. Rocheleau. The Appellant also claimed that they had emailed Sr. Insp. Michaud and Agent Lapping regarding the veterinary appointment request.

88. Sr. Insp. Michaud oversaw the execution to the warrant. Her observations confirmed those of Dr. Bruce Robertson and Agent Lapping. Throughout the assessment of the animals on the property, Dr. Robertson and Sr. Insp. Michaud discussed the animals’ state and overall health, as it related to the presence of distress. Dr. Robertson recommended the removal of all the horses and the goat.

89. The process of removal of animals had commenced when C.M. arrived at the premises. She and the Appellant continued to insist that they attempted to reach Agent Lapping on March 3, 2015. After much discussion and research of telephone logs, it was determined that indeed there were two voice mails left for Agent Lapping at the provincial head office toll free number. Sr. Insp. Michaud testified that even if the messages had been received, the decision to attend at the Appellant’s premises on March 5, 2015 would not have changed.

90. A Statement of Account dated April 21, 2015 together with supporting documents for a total of $17,389.61, was served to the Appellant. It included costs incurred post removal of the animals from the Appellant’s property. The costs were for Lady’s dental surgery, veterinary expenses, food, and boarding costs to date.

91. Sr. Insp. Michaud advised the Board that the goat and fifteen horses could be returned to the Appellant. Lady, the Belgian Mare, has undergone her dental surgery and is recuperating. Several horses still have low body conditions’ scores and are not ready for return.

92. In cross-examination, Sr. Insp. Michaud confirmed that she was aware that the Appellant had secured an appointment with a veterinarian to attend her premises in late August 2014. She also acknowledged that Dr. Tai was not able to attend due to a family emergency.

93. She stated that she was aware that Agent Lapping forwarded to the Appellant the quote from Dr. Rocheleau for dental work. Sr. Insp. Michaud testified that she was not aware of any response to Agent Lapping’s email of February 18, 2015 or any requests by the Appellant to have the OSPCA book an appointment with Dr. Rocheleau. She did acknowledge emails and conversations regarding the possibility of engaging Dr. Rocheleau.

94. She advised the Appellant that the horses and goat were not removed solely due to the non-compliance of the dental treatment. The horses and goat were removed due to their poor body condition, certain horses’ need for medical care and hoof treatment. There was also a lack of hay and water.

Carl R. McNicoll, DVM

95. Dr. McNicoll graduated from the University of Guelph in 2008. He obtained a degree of Veterinary Medicine. He is licensed by the College of Veterinarians of Ontario and presented his curriculum vitae.

96. Dr. McNicoll testified that he first became involved in this matter once the animals were removed from the Appellant’s farm. His major concerns with these animals were primarily body condition and lack of dental care. He noted that some horses required treatment for lice and rain rot.

97. Pursuant to the request of the OSPCA, the horses that were priority were immediately assessed and treated. As of the date of his testimony, fourteen horses have received dental treatment. The remaining eleven horses will be assessed and treated as quickly as possible.

98. Dr. McNicoll testified that the horse named Lady had been previously evaluated with a chronic draining tract on the left mandible as well as significant weight loss. There was no swelling where the drainage tract was located and no pain on palpation was noted. However, some very foul smelling discharge was noted. Lady’s teeth were floated and evaluated. She was diagnosed with a chronic deep-seated tooth abscess. It was his opinion that Lady needs to be surgically treated for this condition. He recommended that Lady be sent to Milton Equine Hospital for surgery. Arrangements have been made for Lady to be sent to the Hospital the second week of April 2015.

99. Dr. McNicoll made the following recommendations before the animals could be returned to the Appellant’s farm:

100. Lady must undergo her dental surgery and can be returned once she is deemed healthy.

101. The dental work must be completed on the remaining eleven horses.

102. De-worming and vaccinations must be up to date.

103. Horses must have access to water, mineral blocks and free choice hay.

104. A regular herd health management plan for the horses is required.

105. In cross-examination, Dr. McNicoll testified that he never attended the Appellant’s farm and was not present at the removal of the horses. He stated that as an associate at the clinic, he was aware that a dental quote was provided to the Appellant in January 2015. He was not a participant in any communications between the clinic and the Appellant. Lastly, he did not have an opinion if the dental work could have been completed at the Appellant’s farm.

VII. APPELLANT’S CASE

101. The Appellant presented her case by way of her own testimony and the testimony of J.R., D.M. and C.M. The Appellant did not call any expert evidence.

J.R.

102. J.R. has been involved with Circle Ranch for the past two years. He has helped the Appellant with fence mending, shelter repair, snow removal, feeding and watering and grooming of the horses. He is always willing to help the Appellant care for her horses.

103. J.R. testified that he attended the farm on August 28 and 29, 2014. The Appellant had arranged for DeLuna Equine Veterinary Services to attend the farm and provide dental care and any other required treatment for the horses. The veterinarian failed to appear. He and other individuals who were at the farm attempted to contact the veterinarian but were not successful. He later found out that the veterinarian did not attend due to a family emergency.

104. J.R. stated that he came to the farm on March 5, 2015 with the intention of helping the Appellant with the snow removal of the laneway. When he arrived, he noticed the OSPCA personnel and he was unable to do any chores.

105. He testified that the Appellant’s horses are always pleasant and energetic. On the day of the removal, he stated that the horses were very agitated.

106. He testified that he never observed any of the horses limping. They all looked healthy to him. He believed that the Appellant took very good care of all of her animals. He saw the Appellant apply a “blue spray” medication to Lady’s wound on numerous occasions.

107. On cross-examination, Mr. J.R. stated that when he groomed the horses he never observed any visible injuries. When shown pictures of Tom with the injury at the back of his ear and Lady with the lower left jaw injury, he acknowledged that there was no “blue spray” on the wounds and it did not appear that these horses had been treated for their injuries.

D.M.

108. D.M. has been friends with the Appellant and her husband for the past eighteen years. She has been at the ranch many times over the years and is very familiar with the Appellant’s feeding and watering routine of the horses. She has helped Albert Hurley in trimming horses’ hooves, and worked on fence and shelter repairs. She has assisted the Appellant with the functions that are held at the ranch such as birthday parties, weddings and riding lessons.

109. D.M. stated that the horses are working horses. They are used for sleigh rides and riding lessons. The horses can be fine one day and on the next day, may get a wound. The horses sometimes kick each other. Over the years, she has observed the Appellant applying a “blue spray” and/or “yellow ointment” on the horses’ wounds and injuries.

110. D.M. was at the ranch at times when Agent Lapping attended the premises. She was aware that there were some Orders that had been served to the Appellant. She testified that she was at the ranch on August 28 and 29, 2014 with C.M. and J.R. awaiting the arrival of the veterinarian.

111. She explained that she and the Appellant attempted to secure the services of a veterinarian. They placed calls to veterinarians as far as Thunder Bay, Sudbury and Michigan.

112. She testified that in February 2015, she called Dr. Rocheleau’s office to inquire if the cost of sedation was included in the quote he had prepared for the dental treatment of the Appellant’s horses. She was told that due to potential conflict of interest that she was advised to contact the OSPCA directly.

113. D.M. said she was aware of the heating devices that the Appellant used in the water troughs. They did not keep the water completely thawed; however, they normally worked fine. There would be some ice buildup in cold weather.

114. D.M. acknowledged that some of the horses were down in their weight and required some hoof care.

115. On cross-examination, D.M. confirmed that she had no formal horse education. Her experience comes from her love of horses and time spent at the Appellant’s farm. She confirmed that on the weekend prior to the removal of the horses, that she had groomed the horse named Tom. She was aware of the mild irritation that he had on his nose. When she was shown a picture showing the wound behind his ear, she claimed that she did not notice it at the time of grooming.

116. When presented with the video showing the horses eating manure she agreed that this was not normal horse behaviour.

117. D.M. stated that she observed the Appellant treating Lady’s wound several times during the summer. She indicated that the wound would get better and then flare up again. She acknowledged that it was not acceptable to let a wound fester for several months.

C.M.

118. C.M. is a journalist. She has been a reporter for the past fifteen years and is now an overnight editor for a local online newspaper. She also is in partnership with other news websites. She has known the Appellant for the past five years.

119. C.M. visits the farm on a regular basis. She has helped in the care of the horses over the years. She grooms them, waters and feeds them, rides them and provides them with many treats. She has helped the Appellant’s husband with the farrier care, fencing and shelter repairs and the hauling of water.

120. She has spent many hours doing research on horses, feeding and deworming practices. She has looked at many YouTube videos on hoof trimming. She claims to be knowledgeable about a horse’s hay requirements.

121. She testified that she was present on August 28 and 29, 2014 and was there waiting for the arrival of the veterinarian. She also stated that on behalf of the Appellant, she attempted many times to reach DeLuna Equine Veterinary Services to reschedule a new appointment. She never received a phone call or email from the veterinarian. She ceased contacting them in September 2014.

122. She testified that she printed a list of veterinarians from the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) web site and provided it to the Appellant. She did not personally call for any veterinarian; however, she was aware of the efforts made by the Appellant and D.M. to procure a veterinarian.

123. She stated that on March 3, 2015, she attempted to contact Agent Lapping to discuss the warrant that was left on the Appellant’s front door and arrange for an appointment with Dr. Rocheleau. She placed the call at the OSPCA’s head office and left a message at 8:58 a.m. She was also present when the Appellant placed a call to Agent Lapping at 1:48 p.m. that same day. The Appellant also left a voice mail.

124. C.M. came to the Appellant’s premises on March 5, 2015 after the OSPCA’s arrival. She tried to explain to the OSPCA that she and the Appellant attempted to contact them on March 3, 2015. She stated that the OSPCA did not believe her and that there was no record of their messages.

125. C.M. presented a series of photographs taken by her on March 5, 2015. The purpose of these photographs was to show the good body conditions of the horses as well as the horses’ hooves. There were pictures showing the bales of hay on the trailer on the laneway and pictures showing the horses had “nice feet”.

126. C.M. testified that it had been a long hard winter. She did observe that some horses were thin; however, they were being taken care of. Certain horses did require some hoof trimming however she did not see any horses with impaired gait. The Appellant was addressing all of the horses’ needs. It is her belief that none of the horses and the goat was in critical distress which she takes to mean to be in imminent danger of significant suffering or death.

127. In cross-examination, C.M. confirmed that she has no formal equine training. She also acknowledged that for one to do a proper body condition score of a horse that one must palpate the horse.

128. She stated that she was aware of the June 15, 2014 OSPCA offer to have Dr. Rocheleau treat the Appellant’s horses. She also acknowledged that it would have been prudent for the Appellant to use the services of Dr. Rocheleau once it was evident that Dr. Tai would not be attending at the farm and that the Appellant had not procured another veterinarian.

129. She agreed that it is abnormal behaviour for a horse to eat manure. However (she surmised) maybe a horse did so as it needed minerals.

Rebecca Hurley

130. The Appellant and her husband have owned the farm since 1985. In 1995, they started a business with their horses. They offered trail rides, riding lessons, and held many functions such as birthday parties, weddings and even funerals at the farm. Many of their animals have been involved in movies.

131. She testified that she has a routine for horse care; however, it may change from time to time due to circumstances. It is her practice to wake up at 4:00 a.m. and help her husband with his business. She then returns to the farm at 6:00 to 6:30 a.m. and proceeds to take care of her horses. She waters and feeds them several times per day and tends to do whatever needs to be done at the farm. She does not work outside the home and takes care of her animals through the day.

132. She recounted that the winter had been harsh and that there had been a lot of snow. Due to the weather conditions, she had obtained more water troughs and heaters to meet the needs of her horses. She acknowledged that sometimes there is an ice buildup in the troughs. It is just crusty and she breaks the ice with an axe. Most of the troughs have water heaters that are connected to extension cords that feed into the barn. She explained that the extension cords run across the laneway. When there is snow removal to be done, she unplugs the cords as they are in the way.

133. On March 5, 2015, she testified that she fed and watered her horses at 7:00 a.m. Later that morning she was attempting to clear the laneway of snow and warming up a hose that was frozen. She was then planning to put big round hay bales into the paddocks. The OSPCA came onto her property before she could complete her tasks.

134. She also testified that it is her practice to provide grain and black sunflower seeds to the horses that require extra caloric intake. The whole herd is not grained every day. It depends on whether the horse is working or not.

135. She explained that her husband and another farrier provided the hoof care. The horses’ hooves are trimmed on a rotational basis. Certain horses were in need of a trim and were scheduled to be done. Her Belgian horse, Tom, was due for a trim on the weekend prior to removal, however, something happened and her husband could not do the trim. She stated that her husband never had to sedate any of her horses in order to do a trim.

136. She testified that the horses in the large paddock are provided with natural shelter of trees as well as a three-sided shelter facing south. It is her experience that her horses rarely use the man made shelter and she has never seen any of her horses lie down in the shelter. Her horses will lie down in the fields. She has never seen an equine facility that provides bedding for their shelters.

137. She testified that she agreed to Dr. Rocheleau coming to her farm to examine her horses on June 4, 2014. She believed he was going to examine only the nine horses listed in the May 2, 2014 Order. She was surprised that he assessed the entire herd and recommended that nineteen horses have their teeth floated. She asked him to do the work that day at the farm but states that Dr. Rocheleau declined to do so as it would be a conflict of interest since the OSPCA was his client.

138. She testified that the fact that Dr. Rocheleau did not do the dental work or treat Lady’s wound on her lower jaw shows that her horses were not in extreme distress. It is the responsibility of a veterinarian to provide the care. Lady was not a “bone rack”. She always ate and drank her water. She was happy.

139. The Appellant described her many attempts to secure the services of a veterinarian. She confirmed that in June 2014, Sr. Insp. Michaud had offered the services of Dr. Rocheleau; however, she preferred to have an independent veterinarian and had made appointments with DeLuna Equine Veterinary Services for August 28 and 29, 2014. Unfortunately, Dr. Tai was unable to attend due to a family emergency. From that time, she and her friends, D.M. and C.M., attempted to find another veterinarian but to no avail. She reached back to Sr. Insp. Michaud in September 2014 to see if Dr. Rocheleau was still available. There was an exchange of emails and she confirms that she did receive Dr. Rocheleau’s dental quote in February 2015. She required some clarification on the pricing and asked her friend, D.M., to call his office for further information. D.M. told her that she had to deal with the OSPCA to get an appointment.

140. She testified that at the time, her father was very ill and she could not recollect if she contacted the OSPCA to make an appointment with Dr. Rocheleau. It was her understanding that the OSPCA would be making the appointment.

141. On March 3, 2015, after seeing the warrant posted on her door, she attempted to contact Agent Lapping to discuss the warrant and make an appointment with Dr. Rocheleau. She did not reach Agent Lapping, however, she did leave a voice mail.

142. On March 5, 2015, she told Agent Lapping and Sr. Insp. Michaud that she tried to reach them on March 3, 2015. She also explained that she wanted to comply with the Orders; however, she was not able to get a veterinarian. The Appellant claims she made every possible attempt to obtain the services of a veterinarian.

143. On the date of removal, it was the Appellant’s opinion that the OSPCA did not use proper biohazard protocol. It was her opinion that the blue coveralls worn by certain individuals were not acceptable. The OSPCA did not need to remove her animals. All the dental and hoof work and medical treatment could have been provided at the farm. Hay and water was available to all the animals.

144. On March 24, 2015, the Appellant sent an email to a dental surgeon named Dr. Watt to see if he would be willing to care for her herd of horses. He agreed to do so. The Appellant wanted Dr. Watt to see Lady and give a second opinion regarding her treatment plan. She emailed the OSPCA requesting the location of the foster where her horses are being held. She was advised by the OSPCA to have Dr. Watt communicate with Dr. Rocheleau. She testified that Dr. Watt did not feel comfortable talking directly with Dr. Rocheleau.

145. In cross-examination, the Appellant stated that she has no formal education in equine management. She did take a course in nutrition and that she has life experience. She acknowledged that Tom required hoof care. She stated that she was not aware that the two horses, Lady and Tom, were sedated at the foster farm due to their pre-existing injuries. She did not agree that her horses were in poor body condition.

146. She acknowledged the June 15, 2014 offer from the OSPCA. She stressed that she attempted to get her own veterinarian and even agreed to use Dr. Rocheleau’s services. She did acknowledge that she did not comply with the outstanding Orders.

147. When presented with pictures of snow covered water troughs, she disagreed that the water was frozen. It was her position that there was a hole on the surface that enabled the horses to drink the water from the trough. When shown pictures of the horses eating manure, she did not find this behaviour to be unusual. In her experience, horses will eat manure for minerals, and bacteria for the hindgut.

148. When shown a picture of Tom’s ear wound, the Appellant claimed the wound was not there on the previous weekend and that is was a fresh wound. The Appellant acknowledged that it is the responsibility of the animal owner to provide care and treatment to the animal.

VIII. FINDINGS OF THE BOARD

149. The Board finds the Appellant’s animals were properly removed in accordance with subsection 14(1) (a) and (c) of the Act for the reasons set out below and, therefore the removal was justified.

150. In order to satisfy section 14 (1) (a), there are two requirements:

a. The first requirement is that a veterinarian must have examined the animal and advised the Agent in writing the health and welfare of the animals necessitates their removal.

b. The second requirement is that the removal must be for the purpose of relieving the animal of its distress.

151. The Board finds that Agent Lapping acted reasonably with respect to the issuance of Orders on May 2, 2014 and June 4, 2014. She worked diligently with the Appellant. She issued many Modification Orders extending the compliance time for all Orders.

152. The Board recognizes that the Appellant made many attempts to secure the services of a veterinarian but was not successful until after the date of removal of March 5, 2015. The Board also notes that the Appellant failed to exercise the option offered by the OSPCA to use the services of Dr. Rocheleau. The Appellant stated many times that she intended to use his services however, she never directed the OSPCA to make the appointment for Dr. Rocheleau to come to her farm.

153. The Board is persuaded by the expert testimony of Dr. Bruce Robertson and Dr. Carl McNicoll that the Appellant’s horses’ and goat’s body condition were likely due to the lack of proper nutrition over a long period of time.

154. In any area where the evidence of the Appellant conflicts with that of the Respondent, the Board accepts the evidence of the Respondent.

155. The Board accepts the evidence of Dr. Bruce Robertson that he examined the animals and advised Agent Lapping, in writing, that the health and welfare of the animals necessitated their removal.

156. The Board further accepts the evidence of Agent Lapping that the advice from Dr. Robertson supported her belief that the animals were in distress, as defined in the Act.

157. The Board finds that the evidence supports Agent Lapping’s belief and the Board finds that her belief that the health and welfare of the animals necessitated the removal of the animals to relieve their distress was reasonable.

IX. DECISION AND ORDER

158. For the reasons listed below, it is the decision and order of the Board as follows:

A. The Appellant’s animals were removed in compliance with Section 14(1) (a) and (c) of the Act.

B. Lady and Tom, and the identified horses with low body condition score, shall remain with the Respondent, at the Appellant’s expense, until the treating veterinarian deems them healthy for return.

C. The goat and the horses deemed healthy by the treating veterinarian shall be returned to the Appellant on the following conditions:

(i) the Appellant shall ensure that the horses must have access to water, mineral blocks and free choice good quality hay at all times.

(ii) the Appellant shall ensure that the horses are examined by a veterinarian for nutrition and herd management within sixty days of their return and that treatment recommendations be followed, and that a report be provided to the OSPCA with the examination, findings and treatment recommendations. The Appellant must comply with the treatment recommendations.

(iii) the Appellant shall ensure that the goat has access to water and free choice good quality hay at all times.

D. The Appellant shall pay the amount of the Statement of Account in the amount of $17,389.61 owing up to April 21, 2015.

E. The Appellant shall also pay $213.46 per day in boarding costs and any additional expenses incurred relating to care or treatment of animals from April 22, 2015 onward.

ANIMAL CARE REVIEW BOARD

Louise Menard, Presiding Member

Dr. Eleanor White, Member

Issued: May 25, 2015