ANIMAL CARE REVIEW BOARD
DATE:
2016-04-26
FILE:
10070/ACRB
CASE NAME:
Downard 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
Dorthy Downard
Appellant
-and-
Ontario Society for the Prevention of Cruelty to Animals
Respondent
DECISION AND ORDER
ADJUDICATOR:
Louise Menard, Member
APPEARANCES:
For the Appellant:
Gayle Downard, Agent
For the Respondent:
Steven Toy, Senior Inspector
Heard in Lindsay:
March 14, 2016
Part I: Overview
The Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA” or “Society”) removed three dogs and a cat from the Appellant’s residence. The OSPCA alleges that the animals were in distress due to environmental factors, lack of medical care, neglect and failure to take the animals to the veterinarian pursuant to a compliance order. The OSPCA submits that it was necessary to remove the animals to relieve their distress.
The Appellant appeals the removal of her animals to the Animal Care Review Board (the “Board”). The Appellant asserts that the animals were happy and did not need to be removed. The Appellant intended to have her animals examined by a veterinarian in the near future.
For reasons given below, I find that the animals were in distress, and that the removal was necessary to relieve the animals’ distress. The animals were in distress due to their living environment, lack of medical care, neglect and the failure to have the animals seen by a veterinarian. The Appellant had not complied with an order that required her to have her animals examined by a veterinarian.
The Board orders that the animals be returned to the Appellant, subject to the conditions and payment of costs set out below.
Part II: The Law
Section 14(1) of the Ontario Society for the Prevention of Cruelty to Animals Act (the “Act”) allows an OSPCA inspector or agent to remove an animal in order to provide it with food, care or treatment to relieve its distress where certain conditions are met. That section provides as follows:
(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 its distress where,
(a) a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and well-being of the animal necessitates its removal;
(b) the inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or
(c) an order respecting the animals has been made under section 13 and the order has not complied with.
“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.
Part III: Issues
- This appeal raises two issues:
(a) Was removal of the animals necessary to relieve their distress?
(b) Was an order respecting the animals made under section 13 and not complied with?
Part IV: Jurisdiction
- 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 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.
Part V: Analysis
On January 27, 2016, Donna Neales, an agent with the OSPCa, received a complaint about animals in the Appellant’s care. She was told that two small dogs were covered in feces; a Rottweiler dog was always tied to a short tether within the house and a cat which had holes in its ears.
Agent Neales attended the Appellant’s premises on February 1, 2016 and observed debris all around the property. She also noted a large amount of feces at the side door of the home. She knocked on the door of the premises and the Appellant answered the door. The Appellant asked Agent Neales to leave.
Agent Neales returned to the property accompanied by a Kawartha Police Officer. The Appellant allowed Agent Neales to see two of the animals in her care. The small Shih-Tzu dog had a very bad odour; his coat was matted and dirty. His eyes were crusted with a brown substance and his nails were extremely long and curling into the pads. The Rottweiler had good body weight however also had a bad odour. Her coat was dull and dirty.
Given the condition of the Shih-Tzu and Rottweiler and that Agent Neales was unable to see the other two animals and their living environment, she issued a compliance order under section 13(1) of the Act requiring the Appellant to have her animals examined by a veterinarian with special attention to body condition, parasites and skin conditions.
On February 10, 2016, Agent Neales received a call from Debbie Lance, the owner of a dog grooming business, advising her that a man and a woman dropped off a Shih-Tzu named Teddy for grooming. Ms. Lance was concerned about the terrible condition that the dog was in. At the hearing, she and her employee, Amanda Sullivan, testified that Teddy’s coat was severely matted and covered in feces. The dog’s nails were overgrown and embedded in the foot pads. Amanda Sullivan presented photographs which she took that day showing the condition of the dog.
On February 29, 2016, Agent Neales obtained a warrant and attended at the Appellant’s property to check compliance with the order issued on February 1, 2016.
Agent Neales testified that she noted a foul odour upon entering the Appellant’s home. There was debris everywhere, the floors were very dirty and covered with fecal matter. Two of the dogs had dirty and matted coats, and the cat was also dirty and continually scratching its ears. The Rottweiler’s coat was dirty and dull. She testified that she believed the animals to be in distress due to the unsanitary conditions and overall neglect of the animals.
The Appellant informed Agent Neales that she did take her dog Teddy to the groomer; however, she was not able to take the animals to the veterinarian due to financial constraints.
Due to the Appellant’s failure to comply with the outstanding compliance order, the unsanitary living conditions and the overall neglect of the animals, Agent Neales removed the animals from the Appellant’s home and transported them to the shelter.
On March 2, 2016, the animals were examined by Dr. Claude Morris, a veterinarian retained by the OSPCA. Dr. Morris found that the Shih-Tzu had severe dental disease and its fur was matted and had a foul odour. The second dog had long fur that was entirely covered in mats that were embedded with dirt. The dog was also found to have a heart murmur. The Rottweiler had a short lower jaw causing the teeth to misalign and allowing the lower canines to impact on the roof of the mouth. He recommended that the Rottweiler be seen by a veterinary dental specialist to determine future treatment. The cat suffered from many lesions and untreated parasite infections.
Dr. Morris testified that the dental disease, the foul odour and matted fur of the dogs which reflect the neglect of grooming and cleaning, as well as the wounds and the parasitic infection of the cat, put these animals in distress and they were therefore appropriately removed.
The Appellant acknowledged that she did not take her animals to be examined by a veterinarian. She testified that she recently had health problems and some financial constraints.
The Appellant testified that she tried to groom the two dogs but was not successful. She intended to treat the cat’s ears with some medication. She kept the Rottweiler on the short tether as she was a difficult dog for a woman of her age to manage.
In closing submissions, the Appellant stated that she was prepared to surrender the two small dogs and the cat; however she wanted to keep the Rottweiler for protection and security.
Part VI: Conclusion
Subsection 14(1) of the Act allows an agent of the Society to remove and take possession of an animal for the purpose of providing it with food, care or treatment to relieve its distress, where one or more of three conditions set out in that section are met. In this case, the evidence demonstrates that the Appellant’s animals were in distress as that term is defined in the Act, and an order respecting the animals had been made under section 13 and was not complied with.
Agent Neales’ testimony supports a finding that the animals were in distress due to the physical environment in which they lived, neglect and lack of medical attention. I find that Agent Neales had reasonable grounds to believe that the animals were in distress and to issue the compliance order of February 1, 2016 under section 13(1) of the Act. The order provided a reasonable amount of time for compliance. The Appellant did not request an extension of time by which to have her animals examined by a veterinarian.
I find that the removal of the animals under section 14(1) of the Act was necessary to relieve the animals’ distress. Multiple witnesses testified about the poor condition of the Appellant’s animals. Agent Neales testified that the Appellant’s animals were in poor physical condition, lived in an unsanitary environment and were neglected. The testimony of Ms. Lance and Ms. Sullivan (the groomer and her employee) confirms that the Appellant’s Shih-Tzu was in terrible condition. Their evidence is supported by photographs showing the poor condition of the dog. Finally, Dr. Morris’ examinations of the Appellant’s dogs and cat confirmed that the animals had multiple physical problems. He testified that the condition of the animals demonstrated neglect. In Dr. Morris’ view, the animals were in distress and therefore appropriately removed.
The Appellant also had not complied with the order issued by Agent Neales that required her to have the animals examined by a veterinarian, meaning the condition set out in section 14(1)(c) of the Act has been met.
Part VII: Order
- The Board orders that the three dogs and cat be returned to the Appellant subject to the following conditions:
(a) The Appellant’s premises are to be cleared of debris and cleaned. The OSPCA will be allowed to enter the premises to ensure the work has been completed.
(b) The Appellant is ordered to consult with a veterinarian of her choice and have her animals examined with special attention to dental issues and parasites. She is to follow all recommendations and provide a copy of the written report to the OSPCA.
(c) Payment of the statement of account in the amount of $6,050 owing up to and including March 14, 2016 with an additional $100 for each day thereafter in boarding costs.
ANIMAL CARE REVIEW BOARD
Louise Menard, Member
Released: April 26, 2016