ANIMAL CARE REVIEW BOARD
File: 10167/ACRB
Case Name: Parent 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
Barbara Parent Appellant
-and-
Ontario Society for the Prevention of Cruelty to Animals Respondent
DECISION AND ORDER
Adjudicators: Laurie Sanford, Presiding Member Santina Moccio, Member Raymond Ramdayal, Member
Appearances: For the Appellant: No one appearing For the Respondent: Steve Toy, Senior Inspector, OSPCA
Heard in Kingston: May 13, 2016
Part I: Overview
[1]. In April 2016, the Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”) served the Appellant, Ms. Parent, with a Compliance Order requiring her to take her cat to a veterinarian. In the belief that Ms. Parent had not complied with the Order, the OSPCA removed her cat and, after an examination by a veterinarian, had the cat euthanized. Unaware of the euthanization, Ms. Parent appealed the Compliance Order and the Notice of Removal to the Animal Care Review Board (the “Board”).
[2]. Having heard the evidence and reviewed the documents filed, including the Notices of Appeal filed by Ms. Parent, and for the reasons given below, we direct that none of the costs of care for Ms. Parent’s cat, called Little Sis, including the euthanization costs, will be paid by Ms. Parent.
Part II: Law
[3]. The Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36, as amended (the “Act”) sets out a legislative scheme that addresses the issue of the humane treatment of animals in Ontario. The Act provides that no one shall “cause an animal to be in distress”. Distress in the Act is defined 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”.
[4]. Where the OSPCA believes an animal to be in distress, it may pursue a number of options. In the present case, the relevant options are the right to issue what are commonly referred to as “Compliance Orders” under section 13 of the Act and the right to remove animals under section 14.
[5]. Compliance Orders may be issued when an OSPCA agent “has reasonable grounds for believing” that an animal is in distress. These orders may require action to relieve the distress or may require the animal to be examined and treated by a veterinarian. Compliance Orders must be in writing and may be modified or extended. On April 4, 2016, the OSPCA issued a Compliance Order directing Ms. Parent to take Little Sis to a veterinarian and to follow the veterinarian’s recommendations. On April 5, 2016, the OSPCA orally extended the Compliance Order for a day.
[6]. On April 7, 2016, the OSPCA removed Little Sis from Ms. Parent’s apartment. Under section 14 of the Act, the OSPCA may remove an animal and take possession of it under certain circumstances. The removal must be for the purpose of providing the animal with “food, care or treatment to relieve its distress” and one of three conditions set out in section 14 must be met. The relevant condition in this case, the OSPCA alleged, was that a Compliance Order has not been met.
[7]. Section 14 of the Act also authorizes the OSPCA to euthanize an animal, subject to certain conditions. In this case, a veterinarian examined Little Sis and advised the OSPCA, under subparagraph 14(2)(b), that euthanization was the most humane course of action. Under subsection 14(3), the OSPCA must advise the owner in writing “forthwith” of the euthanization.
[8]. The owner or custodian of the animal which has been removed under section 14 may appeal the removal to the Board. Following a hearing, the Board issues a decision and order. In this case, given that Little Sis has been euthanized, the only jurisdiction left to the Board is the discretion to order that all or part of the cost of the OSPCA’s providing food, care or treatment, including euthanization, of the animal removed be paid by the owner or custodian.
[9]. Under Rule 6.1 (1) of the Board’s Rules of Practice, when a person has been notified of a hearing and does not attend, the Board may proceed in that person’s absence. This rule is authorized under subsection 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that: “Where notice of an oral hearing has been given to a party to a proceeding...and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding”.
Part III: Issues and Analysis
Jurisdiction
[10]. Ms. Parent was given written notice of the hearing, which included notice that if she did not attend, the hearing might proceed in her absence. Ms. Parent did not appear at the hearing. After waiting for thirty minutes, the Board gave the OSPCA the option of either withdrawing their claim for the costs of care and euthanization of Ms. Parent’s cat Little Sis and moving to have the appeal dismissed or pursuing their claim and proceeding with the hearing. The OSPCA elected to maintain their claim for costs and proceed. The Board proceeded with the hearing under Rule 6.1(1) of the Board’s Rules of Practice referred to above.
Background
[11]. In her Notice of Appeal, Ms. Parent set out the events leading up to the first visit of the OSPCA on April 4th and this account is not disputed by the OSPCA. In the fall of 2015, Ms. Parent detected a problem with her cat and took her to a veterinarian who treated the cat with an injection of vitamin B12, which, Ms. Parent believes improved Little Sis’ condition greatly. The positive effects of the injection wore off over the next two months.
[12]. At some point between the visit to the veterinarian in October and the first visit by the OSPCA on April 4, 2016, Ms. Parent became convinced that Little Sis was suffering from pernicious anemia and would recover with regular injections of vitamin B12. She apparently had increasing difficulty finding veterinarians who would treat Little Sis with the injection. Ms. Parent became convinced that all veterinarians of Eastern Ontario wished to conceal this comparatively inexpensive treatment from the public in favour of more expensive treatment options. Ms. Parent eventually became convinced that the veterinary community was intent on “destroying” her by harming or “murdering” her cat. She believes that this conspiracy is abetted by the local police force and, more recently, by the OSPCA.
[13]. OSPCA Agent Rene Baker first visited Ms. Parent on April 4, 2016. Ms. Parent explained her convictions about the veterinary conspiracy against her to Agent Baker. Agent Baker, who testified at the hearing, saw Little Sis only briefly during this call. Agent Baker observed the cat hunched over, which Agent Baker testified can be an indication of pain. Ms. Parent told Agent Baker that the cat was sluggish and lethargic.
[14]. Agent Baker issued a Compliance Order on April 4th requiring Ms. Parent to take Little Sis to a veterinarian by noon the following day and to follow the veterinarian’s recommendations. Further, Ms. Parent was required to provide the OSPCA with a written report by the veterinarian. Ms. Parent disputed the Compliance Order. According to Agent Baker, Ms. Parent was “not happy” that Agent Baker was in her home as a “uniformed presence”. OSPCA Agents wear black police-style uniforms under bulky black bullet-proof vests. Ms. Parent apparently told Agent Baker that she now regarded the OSPCA as involved in the conspiracy against her and Little Sis.
[15]. The following day, April 5th, Agent Baker returned to Ms. Parent’s apartment. Ms. Parent was on the telephone making an appointment to take Little Sis to a veterinarian on April 6th. Agent Baker testified that she thought Little Sis was looking somewhat better and orally extended the Compliance Order until April 6th.
[16]. The April 5th visit did not end well. According to the testimony of Agent Baker, Ms. Parent became hostile and told Agent Baker that she never wanted to see the OSPCA Agent again.
[17]. On April 6, 2016, Agent Baker received a telephone call from the veterinarian with whom Ms. Parent had made the appointment the day prior. This veterinarian advised Agent Baker that Ms. Parent had not attended for her scheduled appointment. Concerned about Ms. Parent’s expressed wish to never see her again and the resistance that Ms. Parent had shown on her earlier visits, Agent Baker decided to obtain a search warrant to enter Ms. Parent’s apartment. This search warrant was issued on April 7th. Agent Baker requested police assistance in executing the search warrant, and she and two police officers attended Ms. Parent’s apartment on April 7th.
[18]. Unbeknownst to Agent Baker, Ms. Parent had taken Little Sis to yet another veterinarian on April 6th. This veterinarian recommended a course of testing and treatment which was estimated to cost $1,000. Ms. Parent declined this treatment. The veterinarian provided a written report which included an alternate treatment plan. The plan called for a last effort to maintain the cat’s weight. If the plan did not work, Ms. Parent was to return on April 8th to have Little Sis euthanized.
[19]. When Agent Baker and the two police officers arrived at Ms. Parent’s home on April 7th, according to her Notice of Appeal, Ms. Parent advised Agent Baker that she had taken Little Sis to a veterinarian on April 6th and that Little Sis was eating well with noticeable improvement.
[20]. Agent Baker testified that she telephoned the office of the latest veterinarian from Ms. Parent’s apartment. Agent Baker spoke to someone at the veterinarian’s office. She did not obtain the name of the person but speculates that it was the receptionist. Based on this telephone conversation, Agent Baker concluded that Ms. Parent had declined the treatment recommendation of the veterinarian, and accordingly she advised Ms. Parent that the OSPCA was removing Little Sis because the Compliance Order had not been met. At that point, according to Agent Baker, Ms. Parent became “incredibly hostile” and pushed one of the police officers present. Agent Baker testified that Ms. Parent “had to be taken out of the home” while her cat was removed. After the removal, Agent Baker testified, Ms. Parent was “physically assaultive” and “verbally abusive”.
[21]. Agent Baker apparently did not ask Ms. Parent for the written report of the veterinarian. According to Agent Baker’s testimony, she never spoke to Ms. Parent about the treatment plan the veterinarian had recommended. Agent Baker was concerned that Little Sis’ “suffering was going to continue”, according to her evidence. Agent Baker testified that she needed to be sure that Ms. Parent would follow through on the veterinarian’s recommendations and that, based on her history, Agent Baker was concerned that she wouldn’t follow through. Agent Baker was also concerned that Ms. Parent had not followed the veterinarian’s preferred course of treatment, involving further testing and treatment. She testified that in the past when she has concluded that a veterinarian’s second course of action is going to cause an animal pain, she has “acted on that conclusion”. We understand that to mean that Agent Baker has taken action under the Act when she is persuaded that, despite veterinary treatment, the animal will remain in distress.
[22]. Ms. Parent wrote about the events of April 7th in her Notice of Appeal. She states that she did not refuse to take her cat to a veterinarian or refuse hospitalization. Her understanding was that if Little Sis would not eat or drink, she was to take her back on Saturday, April 9th for euthanization. Ms. Parent did not believe that Little Sis was in pain and felt that she was being compelled to agree to the plan. On April 7th, Ms. Parent wrote that Agent Baker was “intent” on taking Little Sis and would not listen to her. She conceded that she was speaking “angrily” to Agent Baker and that, after the police tried to keep her from showing Little Sis to Agent Baker, she screamed at them. She describes herself as 66 years old and weighing 130 pounds. She wrote that she was treated as a criminal. She acknowledges that she pushed one of the police officers in an effort to get him out of her doorway. She writes that she was gripped tightly enough to leave a bruise.
Euthanization
[23]. After Little Sis was removed, the OSPCA took her to a local veterinarian (the “OSPCA Vet”), who testified at the hearing. The OSPCA Vet was qualified as an expert in veterinary medicine. She produced pictures of Little Sis, which she testified indicated an unhealthy, dehydrated cat. Concerning Ms. Parent’s diagnosis of pernicious anemia, the OSPCA Vet testified that this is a condition suffered by humans. The OSPCA Vet was not aware of any cases where cats suffered from it. The OSPCA Vet administered a number of diagnostic tests and kept the cat overnight while attempting to rehydrate the cat intravenously. Vitamin B was also administered. The diagnostic tests were not conclusive but the OSPCA Vet was of the opinion that Little Sis could have been suffering from acute anemia and/or cholestasis, an inflammation that affects the production of bile. The OSPCA Vet testified that Little Sis tested positive for feline leukemia or “FELV”. The OSPCA Vet spoke with one of the earlier veterinarians who treated Little Sis and was aware that Little Sis’ brother also suffered from FELV. This condition was described by Ms. Parent, in her Notice of Appeal, as “AIDS”. It was not clear whether the FELV was the primary medical problem or, as the OSPCA Vet described it, “the straw that broke the camel’s back”.
[24]. On the morning of Friday, April 8th, although Little Sis showed slight improvement in hydration the cat also showed signs of “profound cholestasis”, according to the veterinarian. Attempts to feed Little Sis failed. She displayed signs of suffering from nausea despite the anti-nausea medication that she was being administered. Accordingly, the OSPCA Vet signed an order to have Little Sis euthanized.
[25]. Regarding Ms. Parent’s belief that Vitamin B12 would have dealt with the problem, the OSPCA Vet said that if Vitamin B12 had been administered as part of an overall treatment plan starting last fall, there is a chance that the treatment might have worked. To be effective, three conditions would have to have been met. First, the treatment would have had to have been repeated on a weekly basis for some period of time. Second, Little Sis would have to have been regularly monitored during the time to ensure that she was not continuing to lose weight. If, for example, Little Sis had a suppressed immune system due to FELV, then the administration of B12 alone would not necessarily have cured the cat, according to the OSPCA Vet. Finally, the drug prednisolone would also have been required for the anemia. The OSPCA Vet testified that Ms. Parent had discontinued the prednisolone which had been prescribed for Little Sis. The vitamin B12 injection given to Little Sis on April 6th was an appropriate treatment, according to the OSPCA Vet. We accept the evidence of the OSPCA Vet about the possible issues facing Little Sis and the treatment offered to the cat.
[26]. In the opinion of the OSPCA Vet, the removal of Little Sis on April 7th was warranted as the cat was in need of immediate treatment. This opinion appears to contradict the treatment plan of the veterinarian who examined Little Sis on April 6th and who called for the return of Little Sis on April 8th if the cat was not improving. We note that both the veterinarians who examined Little Sis in early April agreed that if the cat did not show significant improvement by April 8th, it would be necessary to euthanize her.
[27]. Ms. Parent appealed both the Compliance Order issued by the OSPCA and the removal of Little Sis by the OSPCA. The euthanization of Little Sis removes the remedies available to Ms. Parent. The Board has no power to either revoke the Compliance Order or to return Little Sis. The only discretion available to the Board is the discretion to apportion all, some or none of the costs of the care and euthanization to Ms. Parent.
Costs
[28]. The OSPCA incurred costs of $698.17 for the care and euthanization of Little Sis after the cat’s removal. The OSPCA is seeking an Order directing Ms. Parent to reimburse the OSPCA for those costs. For the reasons given below, we conclude that Ms. Parent should not bear these costs.
[29]. The Board has a number of concerns about the OSPCA’s conduct of this case. First, while the initial Compliance Order appears to have been issued in accordance with the Act, the extension of the Compliance Order on April 5th, while well intentioned, was done orally and not in writing, as the Act requires. The Act confers significant powers on the OSPCA during the time a Compliance Order is in effect. Among other things, the OSPCA can enter a premise without a warrant while a Compliance Order is outstanding. Given these broad powers, it is important that Compliance Orders be issued, extended, modified or revoked in accordance with the Act.
[30]. Secondly, the Removal Order was problematic. Having extended the Compliance Order, the OSPCA then moved on April 7th to remove Little Sis. However, at that time, the cat was subject to a veterinarian’s plan and was to be returned to the veterinarian on April 8th if the cat had not improved. There are legitimate reasons for concern about whether Ms. Parent would have complied with this plan. She had already ignored or dismissed parts of it. On the other hand, she acknowledged that her cat was dying. We will never know if Ms. Parent would have followed the veterinarian’s recommended plan. It is unknowable because the OSPCA removed her choice when they took her cat. The OSPCA acted prematurely in the removal.
[31]. Thirdly, there is the issue of how the OSPCA notified Ms. Parent of the euthanization of Little Sis. The cat was euthanized on April 8, 2016. However, Ms. Parent was not immediately told of the death of her cat. According to Mr. Toy, Senior Inspector for the OSPCA, the organization is under no legal obligation to notify owners of the fate of their animal. This is incorrect. As noted above, subsection 14(3) of the Act obliged the OSPCA to give written notification of the euthanization to Ms. Parent “forthwith”. Agent Baker testified that, given Ms. Parent’s hostility and belief in a conspiracy to kill her cat, she did not wish to return to Ms. Parent’s apartment with the news of the euthanization. Agent Baker attempted to contact Ms. Parent by telephone but the number she had been given was incorrect.
[32]. Not knowing that her cat had been euthanized, Ms. Parent appealed the Compliance Order and removal order to the Board on April 11, 2016 and specifically requested the return of Little Sis on April 14, 2016. It was not until a telephone case conference in this matter was held on April 25, 2016 that the OSPCA advised Ms. Parent of the euthanization of her cat.
[33]. We recognize that this was a difficult situation for the OSPCA. Ms. Parent was hostile, verbally abusive, and attempted to push a police officer out of her home. On the other hand, from Ms. Parent’s perspective, she had taken her cat to a veterinarian as required. She had no reason to believe that the OSPCA would arrive at her apartment on April 7th with a search warrant and accompanied by the police. It is reasonable to assume that, given her conviction of a conspiracy, it would have to have seemed to Ms. Parent that her nightmare had become reality. Ms. Parent attempted to explain but after Agent Baker spoke to someone at the veterinarian’s clinic, she was left feeling that Agent Baker was no longer listening to her. After the euthanization, the OSPCA made minimal efforts to advise Ms. Parent of the death of Little Sis, despite its notification obligations under the Act. Ms. Parent was left to appeal the removal in the expectation that her cat would be returned. The OSPCA by its inaction in notifying Ms. Parent of the euthanization and by its decision to tell her of the death of her cat, during a Board proceeding, caused Ms. Parent unnecessary pain.
[34]. In all the circumstances of this case, we conclude it is appropriate for the OSPCA to bear the costs of the care and euthanization of Little Sis. Concerning the care, Little Sis was given the kind of extensive, and expensive, care that Ms. Parent had previously refused. It is not appropriate that Ms. Parent should now have those costs imposed upon her. We also conclude that in all the circumstances of this case, the OSPCA should bear the costs of euthanization.
[35]. Finally, we note that the OSPCA did not provide evidence as to whether the costs they incurred were necessary or appropriate. That failure was not a factor in our decision concerning costs but we will require such evidence in future.
Part IV: Order
[36]. The Board directs, under the provisions of subsection 17(6)(d) of the Act, that none of the costs to the OSPCA for the care, treatment and euthanization of Little Sis will be borne by Ms. Parent.
ANIMAL CARE REVIEW BOARD
Laurie Sanford, Member
Santina Moccio, Member
Raymond Ramdayal, Member
Date of Issue: July 8, 2016