ANIMAL CARE REVIEW BOARD
FILE: 9682/ACRB
CASE NAME: Ashworth et al. 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
Randall and Rebecca Ashworth and Laika Fund for Street Dogs Appellants
-and-
Ontario Society for the Prevention of Cruelty to Animals Respondent
DECISION AND ORDER
ADJUDICATORS: Laurie Sanford, Vice-Chair, Presiding Member Louise Menard, Member
APPEARANCES: For the Appellants: Terrance Green, Counsel For the Respondent: Brian Shiller, Counsel
Heard in North Bay: August 24, 25 and 26, 2015 October 5, 6, 7, 8 and 9, 2015 November 9, 10, 11, 12 and 13, 2015 January 4, 5, 6, 7 and 8, 2016
Heard in Toronto: January 14, 2016
Part I: Overview
[1]. The Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”) removed 71 dogs from the farm of Mrs. Rebecca and Mr. Randall Ashworth. The dogs were in the care and custody of the Ashworths but almost half the dogs were owned by the Laika Fund for Street Dogs (the “Laika Fund”), an international not-for-profit rescue organization founded by the Ashworths. The OSPCA alleges that the dogs were in distress due to multiple environmental and health factors. The OSPCA submits that it was necessary to remove the dogs to relieve their distress.
[2]. The Ashworths and the Laika Fund appeal the removal of their dogs to the Animal Care Review Board (the “Board”). The Ashworths assert that the dogs were healthy and happy prior to the removal. Any dogs requiring veterinary care were either receiving it or there was a plan in place to provide it. In the Ashworths’ submission, any distress experienced by the dogs was caused by the actions or inactions of the OSPCA on the day of the removal and thereafter. The Ashworths and the Laika Fund want their dogs returned without cost or condition.
[3]. For the reasons given below, the Board finds that the dogs were in distress and that their removal was necessary. The underlying cause of the distress was the overcrowded conditions. This overcrowding contributed to the poor sanitation, elevated levels of contaminants and a high parasite presence in the living quarters of the dogs. Some dogs were also in distress due to social conditions within the pack and some dogs experienced distress due to a failure to provide adequate veterinary care. The Board orders the dogs to be returned to the Ashworths and to the Laika Fund, subject to the conditions and costs set out below.
Part II: Law
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”.
An animal may be in distress and be exempt from the general prohibition against that distress if it is under veterinary care. This exception is narrowly expressed. It applies to a person acting under the orders of a veterinarian but “only in respect of what the person does or does not do in following those orders”. Thus an animal may be under veterinary treatment for one source of distress yet be in distress from a second, unrelated cause. In such a case, the prohibition would apply to the second source of the distress.
Where the OSPCA believes an animal to be in distress, it has 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.
Compliance Orders may require action to relieve the distress or may require the animal to be examined and treated by a veterinarian. In this case, the OSPCA issued a number of Compliance Orders concerning various animals on the Ashworth farm. The OSPCA alleges that one of these orders, which required “an overall health assessment and environmental assessment by a veterinarian”, was not met. The Ashworths and their veterinarian contend that the order was satisfied.
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 two conditions relevant here are either that a veterinarian has examined the animal and advised the OSPCA that the “health and well-being of the animal necessitates its removal” or that a Compliance Order has not been met. The OSPCA alleges both these conditions exist.
The owner or custodian of the animal which has been removed under section 14 may appeal the removal to the Board. The Board then holds a hearing. The OSPCA must show that the removal of the animal was done in accordance with the Act. Following the hearing, the Board issues a decision and order. The Board may order that the animal be returned without condition or cost. Alternatively, the Board may set out conditions of the return of the animal. Those conditions, like Compliance Orders, may direct the owner or custodian to take such action as in the opinion of the Board may be necessary to relieve the animal of its distress or the condition may direct that the animal be examined and treated by a veterinarian. The Board may also order that all or part of the cost of the OSPCA’s providing food, care or treatment of the animal removed be paid by the owner or custodian.
Ontario Regulation 60/09 (the “Regulation”) sets out “basic” standards of care for all animals (the “Standards of Care”). Of relevance here are requirements that every animal be provided with “adequate and appropriate”:
Food and water
Medical care
Resting and sleeping area
Space to enable natural movement and exercise
Sanitary conditions, and
Ventilation.
Additionally, “every animal must be transported in a manner that ensures its physical safety and general welfare”.
Part III: Issues & Analysis
Were the dogs in distress on July 13, 2015?
The OSPCA removed 71 dogs from the Ashworths’ farm on July 13, 2015. One dog was euthanized after the removal. The OSPCA alleges that the dogs were in distress due to their physical environment, including what the OSPCA characterizes as overcrowding and poor sanitation. The OSPCA also cites the social conditions within the pack as a source of distress. Further, the OSPCA alleges that a number of the dogs were in distress due to a failure to provide adequate veterinary care.
Mr. and Mrs. Ashworth acknowledge that the number of dogs on their property was not ideal but they testified that the dogs were happy and healthy. This testimony was supported by the evidence of their veterinarian. Mr. and Mrs. Ashworth testified that any distress experienced by the dogs was caused either by the presence of the OSPCA on July 13, 2015 or by the actions or inactions of the OSPCA on that day and after.
Were the dogs in distress due to environmental factors?
Mr. and Mrs. Ashworth live in a two storey home of about 1600 square feet. Living with them are three of their adult children. There are three runs for the dogs outdoors but due to complaints by a neighbour the dogs spend much of their days and all of their nights in the house. The remaining 70 dogs are a variety of sizes and breeds. Approximately thirty of the dogs are street dogs rescued by the Laika Fund from Eastern Europe, the Middle East and Africa and brought to Canada for eventual adoption. Many of the street dogs were badly brutalized prior to their rescue. Some of the dogs are missing limbs or have limbs that do not function. Some suffer from neurological damage or disorders, including neurological incontinence. An unknown number of the dogs are not house trained. Within the house, the dogs occupy all but two of the rooms at night but spend their indoor time during the day on the main floor. There is a front room and porch reserved for smaller dogs. On July 13, 2015, three of the dogs were confined to crates when they were not in the runs. Two were in the house and the third was in a shed on the property.
Also in the house on July 13, 2015 were eight feral cats, several pet cats, an unknown number of birds and some turtles. On the farm were a variety of animals including horses and chickens.
The panel considered two aspects of the environment. First, we considered the physical environment. Were the dogs overcrowded or did they have adequate space? Was their living space sanitary? Next, we considered the social environment of the dogs. What were the living conditions within the pack? Did all dogs have access to sufficient food and water? We then considered whether all or any of these factors combined to put the dogs in a state of distress.
Were the dogs in distress due to their physical environment?
Two veterinarians inspected the Ashworths’ house and property with specific attention to the environment in which the dogs were housed. The first of these was Dr. Robert Porter, who has been the veterinarian to the Ashworths for approximately 25 years and the veterinarian for the Laika Fund since its inception in 2014. Dr. Porter is a veterinarian of over 25 years’ experience who runs a busy small companion animal clinic and who is also a partner in a local animal hospital. He was qualified as an expert in veterinary medicine.
Dr. Porter went to the Ashworths’ property on June 19, 2015 in response to a Compliance Order requiring an “overall health assessment and environmental assessment by a veterinarian”.
Dr. Porter inspected the property and the food supplied and reviewed the care and feeding protocol for the dogs with Mr. Ashworth. He spent approximately 20 minutes in the home viewing the dogs and their environment. Not all the dogs were inside the home at the time of his visit. Dr. Porter did not physically examine any of the dogs on that visit, although he had previously examined seven dogs pursuant to separate Compliance Orders. He concluded that the dogs were not in distress and were being cared for in accordance with the Standards of Care contained in the Regulation to the Act.
Concerning the question of whether there was overcrowding, Dr. Porter produced a report stating that “All animals are provided with adequate and appropriate resting and sleeping areas”. Dr. Porter also reported that “All animals are provided with adequate and appropriate space to enable the animals to move naturally and to exercise”. In his testimony, Dr. Porter said the dogs used the full house, not just the main floor and they all had enough space and they had a place with bedding. He noted that there were separate areas in the house reserved for the smaller dogs. He acknowledged that with the number of dogs “everything is multiplied” but he was of the opinion that it worked. He would not comment on whether there were too many dogs in the space. He was of the opinion that the Ashworths were not only managing but that the situation was working quite well for them.
Dr. Porter reported that the dogs were provided with adequate and appropriate sanitary conditions. He noted that “some ammonia odours are present due to the care of dogs with neurological disorders – based incontinence; Mr. Ashworth is addressing this minor condition”. Dr. Porter compared the ammonia odours to what one might expect to find in a nursing home.
During his cross-examination, Dr. Porter was shown photographs of the Ashworth home taken on July 13, 2015. Dr. Porter testified that he thought the house looked dirtier than it had on the day he was at the property but he acknowledged that if there were dogs that were muddy and dirty, then the house would be dirty too. At one point, in viewing the pictures, Dr. Porter shrugged and said that was spring in northern Ontario. Asked to explain, he said that spring came later and was muddier in northern Ontario than in other parts of the province. He testified that, by way of example, his two large dogs needed to be confined to the laundry room when they came in from the lake.
Responding to questions relating to visible grime on the walls of the house and coatings of hair and dirt on the dog crates, Dr. Porter testified that the Ashworths were doing “everything in their power to clean up the house and clean up the animals”.
Dr. Porter testified that the dogs were kept clean and sanitary. When asked about evidence of urine scalding on some of the dogs in the home, Dr. Porter testified that he could not comment as he had not physically examined any of the dogs on June 19th. However, he did offer the opinion that urine scalding observed after the dogs were transported from the Ashworths’ property to the local humane society could be explained by the fact that the dogs had been in transportation crates for hours.
On July 13, 2015, the OSPCA took swabs from at least three locations in the house. These were sent to the University of Guelph for analysis. The report stated that the swabs were “overgrown with contaminants”. Dr. Porter dismissed the results of this analysis as useless for diagnostic purposes. His testimony was that swabs taken from anywhere in the hearing room on the day of his testimony would show overgrown contaminants. He said that he would be more concerned if the swab came back clear. In his opinion, a bacteriologist was required to assess the results.
Following the removal of the animals, the OSPCA did fecal analyses of a sample of 20 of the dogs. Of these, 12 showed the presence of a spectrum of parasites. Dr. Porter testified that the Ashworths had a “very good parasite control protocol”. He questioned whether the OSPCA might be overstating the results and concluded that “having a very good bacterial control is acceptable”. Dr. Porter testified that every dog going into the North Bay Humane Society (“NBHS”), where the dogs were originally housed after leaving the Ashworths’ property, is treated for parasites.
According to Dr. Porter, the Ashworths were doing parasite control every three to six months and “that’s pretty good”. In Dr. Porter’s opinion, if there were parasites present, one would expect to see widespread diarrhea among the dogs and he saw no evidence of that.
Regarding photographs showing the presence of feces on the floors and collected in bags on a sideboard beside the kitchen on July 13th, Dr. Porter testified that the fecal matter was being cleaned up every morning. In his opinion, as long as the Ashworths were cleaning things up, then “it works for them”. If the dogs defecated in the night, then it was possible that some dogs would step in it, according to Dr. Porter, and that would not be surprising. He was of the opinion that every place needed to be evaluated on its own merits. When he factored in the care of the animals and his opinion that the animals were made clean, then conditions were “OK”.
The second veterinarian who visited the Ashworth property and assessed the environment was Dr. Gaelin O’Grady. Dr. O’Grady has been practising veterinarian medicine for over 15 years and one of the focal points of her practice is animal behaviour. She is a dog breeder and acts as a consultant in the design of dog kennels. Dr. O’Grady was qualified as an expert in veterinary medicine and animal behaviour. She was retained by the OSPCA to do an independent assessment of the overall health and environment of the dogs on July 13, 2015. She arrived at the farm around 8:00 in the morning and entered the home at approximately 8:30 together with some OSPCA agents, all in biohazard suits. Mr. Ashworth and his son, Mr. Michael (“Mike”) Ashworth were excluded from the home during her initial inspection. Not all of the dogs were in the house while Dr. O’Grady was there; some were in the side run and some on the front porch.
Most of Dr. O’Grady’s testimony about what she saw in the house related to the social conditions of the dogs and the concerns she had about the health of individual dogs. However, she did make some observations about the physical environment. Her testimony was in stark contrast to the evidence given by Dr. Porter.
Dr. O’Grady testified that she could smell feces and urine as she approached the house. She could also hear barking. Inside the house, she noted an area of flooring that had come up, revealing the wooden sub-flooring. This sub-flooring, she testified, would be impossible to clean or disinfect as the urine and feces would soak into the wood. She saw spots where the drywall had been chewed, which she testified also presented a permeable surface which prevented effective cleaning. Dr. O’Grady observed Mr. Mike Ashworth attempt to mop the floor with what she characterized as a dirty mop with feces on it. In her opinion, all he was doing was moving the feces around.
Dr. O’Grady said that there were high levels of ammonia in the house, caused by the breakdown of feces. She did not measure the ammonia levels but testified that it burned her skin and stung her eyes despite the fact that the windows were open.
Dr. O’Grady provided a written report which stated that most of the dogs on the porch had dried feces in their coats. Most of the water bowls did not contain potable water and many were upside down and, in her opinion, there were not enough water stations. The living room was soiled with urine and feces and there were bags of feces present. There were dogs with urine scalding.
She noted crates stacked two high around one room. Her written report states that none of the crates were clean; that there were dogs in some of the crates and those crates had urine and feces in them “to the point the dogs could not avoid standing or lying in the foul liquid”. In multiple rooms in the house she noted feces and urine pools on the floor.
On the question of overcrowding, Dr. O’Grady’s written report states:
There is not sufficient square footage to allow the dogs their own space. This restriction causes physical hardship and intense emotional stress and evidence of this stress can be observed by the frequent physical altercations, often involving more than one dog. In such small areas conflict is unavoidable and escape is impossible...The large number of dogs in this small space has created an unsafe environment for the dogs.
In the face of such contradictory conclusions, the panel considered both the credibility and the reliability of each veterinarian. We also considered whether the conditions in the Ashworth home might have changed so dramatically in the short time between June 19th and July 13th as to explain the wide variance between the evidence of the two veterinarians. Dr. Porter testified that the home looked dirtier in the pictures than when he inspected in June. He stood by his report prepared as a result of his June inspection but that does not rule out the possibility that the home became progressively dirtier as the summer wore on. We heard evidence from Mr. Mike Ashworth that small wading pools for the dogs’ use were out in the runs on July 13th and had been out over the weekend. Walls were not washed while the pools were out and this factor may go some way to explaining the different conclusions reached by the two veterinarians about the cleanliness of the house. It does not, however, fully explain the differences in their respective observations about the cleanliness of the dogs, the space available to them and the level of ammonia, feces and urine in the house.
We are satisfied that both Dr. Porter and Dr. O’Grady are competent professionals who genuinely believed that the evidence they gave was accurate and that their opinions were independent and unbiased. However, there were issues with the evidence of each of them that affect the reliability of their evidence and lessen the weight which we can give to their reported observations and opinions. While their overall credibility was not impeached, we conclude that, where there is directly conflicting evidence, we cannot prefer the evidence of one veterinarian over the other.
Dr. Porter testified with admiration about the Ashworths and the work they do through the Laika Fund. He testified that over 25 years of working with them, he has come to find them trustworthy and deeply caring of their dogs. He understands that they are often financially pressed to care for the dogs and he will occasionally wait, sometimes up to a year, for payment. He often deals with the Ashworths over the telephone and, in the case of a geriatric dog named Elsa, accepted their suggested palliative care without examining the dog. He kept no records of this telephone conversation. He is aware that the Ashworths frequently do their own veterinary work.
On cross-examination, Dr. Porter refused to acknowledge that some dogs were in dental pain despite photographic evidence of obvious abscesses and testimony, which will be discussed below, about dogs requiring multiple teeth extractions. He said that unless he physically examined the dog, he could not conclude that the dogs were in pain. He conceded that he had never performed any dentistry for the dogs. When asked whether particular dogs had special needs, he repeatedly answered that their needs were being met. Only occasionally would he acknowledge that the dogs in question did have special needs. When faced with evidence of a high parasite load in the home and multiple dogs with parasites, Dr. Porter did not address the issue directly. Rather, he testified that the Ashworths had what he considered to be a very good parasite control protocol and questioned whether the OSPCA was overstating the situation.
We conclude that Dr. Porter, particularly during cross-examination, became an advocate for the Ashworths and the work they do with the Laika Fund. As a result, his objectivity was undermined. This lessens the weight that we can give to Dr. Porter’s observations and opinions.
Dr. O’Grady tended to give her testimony in absolutes. For example, she testified that all of the dogs were dehydrated and that the dehydration alone was putting them in distress. On the evening of July 13, 2015 and overnight into the early hours of the next day, Dr. O’Grady performed a triage on 26 of the dogs. The purpose of the triage was to determine which of the dogs required immediate care, which required further assessment and which dogs were healthy.
Dr. O’Grady testified that no dog was perfectly healthy and re-iterated her opinion that all of the dogs she examined were dehydrated and that the dehydration alone was a source of distress. However, in reviewing her notes during cross-examination, Dr. O’Grady expressed surprise at how many of the dogs she examined she rated as “2% dehydrated”. She conceded that 2% dehydration would not, in itself, put a dog in distress. It was Dr. Porter’s evidence that 2% dehydration is what one would expect to see in a dog during the afternoon of a hot day, such as July 13th.
In another example of overstatement in her testimony, Dr. O’Grady reported that the dogs had to compete for food and water. She gave her opinion that competing for food and water would be a source of stress, particularly for the smaller dogs and those lower in the social hierarchy. There was photographic evidence of communal water bowls but no evidence of communal food bowls. Both Mr. Ashworth and Mr. Mike Ashworth testified that they fed the animals in small groups under direct supervision with each dog having its own bowl. For reasons which will be discussed below, we find Mr. Mike Ashworth in particular to be credible and we accept the testimony of Messrs. Ashworth on their feeding practices for the dogs. These overstatements of the evidence lessened the weight that we can give to the opinions of Dr. O’Grady.
There was other evidence relating to the physical environment of the dogs on July 13th. Four other witnesses who were present at the farm on July 13th testified about the living conditions of the dogs. Mr. Mike Ashworth and his father, who are the primary caregivers of the dogs, testified as did OSPCA Inspector Tracy Lapping and Inspector Nicole Driscoll, also of the OSPCA. There was also relevant evidence from the NBHS veterinarian, Dr. Nicole Holden, who examined the dogs after their removal on July 13th.
Mr. Mike Ashworth testified about the care and maintenance of the dogs. He was present throughout the time that the OSPCA was on the Ashworth farm on July 13th. We found Mr. Mike Ashworth to be a credible witness. He gave his testimony in a forthright manner and was candid on cross-examination, even when his evidence went against his interest. Mr. Mike Ashworth is 24 years old and lives with his parents and his twin sisters, who are also in their twenties. His sisters live and work out of their bedroom as freelance artists and are not directly involved in the care of the dogs. Mr. Mike Ashworth together with his father has the primary responsibility for the care and feeding of the dogs and of about 30 other animals on the farm, ranging from turtles and a quail to several horses. There is no outside help. Mr. Mike Ashworth spends about 12 hours each day caring for the animals. He is unpaid for this work but is content to do it. He has no training in animal husbandry apart from the lessons learned from his parents.
Mr. Mike Ashworth testified that when he was 18, the Ashworths had about a dozen dogs. He is not certain when the number of dogs began to increase but he recalls his father initially bringing dogs back from his overseas work assignments and the number of dogs in the home increasing steadily from then. The Ashworths had more than 70 dogs on their farm for about a year before the dogs were removed, according to his testimony.
Mr. Mike Ashworth said that when the dogs were not outside, most of them stayed on the main floor during the day. The main floor is larger than the second floor. The smaller dogs were kept separate in a small room at the front of the house. Two dogs and a cat stayed with him in his bedroom. At night, about 12 of the smaller dogs were in his parents’ bedroom. The small room used by these dogs during the day was reserved at night for dogs that were sick or needed to be isolated. The remaining dogs slept in about three-quarters of the main floor. There were about 24 crates and these were also used at night for some of the dogs. That left over 30 dogs to sleep on the floor in part of the main level of the house. It should be noted that this evidence contradicts Dr. Porter’s testimony that the dogs had the run of the full house. On this point, we prefer the testimony of Mr. Mike Ashworth.
Mr. Mike Ashworth testified about his typical day. In fact, his day might begin before daybreak. Sometimes during the night, he or someone else would go downstairs to collect any feces that had accumulated. The feces were placed in bags which were kept overnight in the house. In the morning, he and his father would let the dogs out into the runs and would collect any further feces that had accumulated. In the video taken on July 13th, bags of feces are shown on a sideboard beside the kitchen and on a cupboard in the same room. These were the accumulation of one night’s sanitation, according to Mr. Mike Ashworth. There was a greater than normal number of bags filled on the morning of July 13th and he believed this was because the Ashworths had recently changed brands of dog food. The bags of feces were ordinarily placed in a bin outside the house. The house was then cleaned. We heard testimony that the Ashworths add bleach or Pinesol to the wash water as a disinfectant. Fresh bedding was placed in the crates and the dirty bedding was taken to the basement laundry room to be laundered in the evening.
Over the weekend preceding July 13th, the weather had been warm so small wading pools had been set up in the runs to permit the dogs to splash. When these pools were out, the dogs would come back into the house wet and often muddy. When the dogs shook themselves, the dirt would be sprayed on the walls and floors. Only the floors would be cleaned while the pools were out; the walls would be cleaned when the pools were removed from the runs. The longest Mr. Mike Ashworth could remember wall cleaning being postponed was three days.
After the morning cleaning, the dogs were re-admitted to the house in groups for feeding. The 12 small dogs were fed as a group in the front of the house, with each dog having its own bowl. On July 13th, there were three dogs being kept in crates, two in the house and one in a shed. These dogs are fed in their crates. There is a back porch which was used as a feeding area for all the other dogs. These dogs were brought to the porch in groups of four to six so that Mr. Ashworth and Mr. Mike Ashworth could watch them. Each dog had its own food bowl. This testimony is slightly at odds with the testimony of Dr. Porter that each dog was fed individually. It also contradicts Dr. O’Grady’s observation that the dogs had to compete for food. We accept the evidence of Mr. Mike Ashworth about the feeding practices for the dogs.
After feeding, the dogs were placed in the runs in rotation. About 20 dogs at a time were admitted to each run. Only two sheltered runs were ordinarily used in the summer but all three runs were available in the winter. Over the day, each dog would be out in the run for about two hours in total. The three dogs in crates were released separately. There was no evidence as to how the runs were kept clean but Mr. Mike Ashworth stated that cleaning feces and urine inside the house went on all day as required. The feces from the daytime cleaning was accumulated in bags and put into the outside bin at night.
During the day, communal bowls of water were placed in each run and throughout the house. These were re-filled as required. There was an evening feeding which followed the same routine as the one in the morning. The Ashworths sometimes eat at the kitchen table, maneuvering around the dogs which sleep and play in that area. Both Mr. Mike Ashworth and his sisters sometimes take their meals in their rooms.
Mr. Mike Ashworth was shown photographs of the crates, some showing a build-up of dirt and hair on the mesh front. He testified that one of the crates was quite rusty but that dogs did not ordinarily brush up against it. He and his father regularly pressure wash the crates. When shown pictures of tops of the crates with a build-up of dirt, he testified that the crates were treated like the walls and not cleaned until the wading pools were removed from the dog runs. He stated that the crates would have been pressure washed when the pools were removed.
Mr. Mike Ashworth testified that he and his father had just let the dogs out and were starting to change the bedding and begin mopping when the OSPCA entered the house at 8:30 on the morning of July 13th. Mr. Ashworth also testified that the OSPCA interrupted their morning cleaning. The clear implication of this testimony is that if the OSPCA had arrived later in the day, the house would have been significantly cleaner.
Inspector Lapping was present at the Ashworth farm on July 13th. She testified that she could smell feces from the driveway, some 40 feet from the house. She could also hear the dogs “frantically” barking. On entering the house, she noted a strong odour of ammonia, feces and dogs. In places, the floor was sticky and in places her boots stuck to the floor. The walls were stained and discoloured to a level of about three feet up. The kitchen, including the appliances, was also stained and soiled. The shelves showed dust and dirt built up. There were cobwebs, which suggested to Inspector Lapping that the dirt levels were not merely the result of an interrupted morning cleaning. There was exposed wood and, in Inspector Lapping’s opinion, such wood would be difficult to clean and disinfect. If any dog were sick, in her opinion, the bacteria would accumulate in the open areas of flooring and could live in the wood.
Inspector Lapping was wearing an ammonia reader. When she first entered the house, the reading was four parts per million. When she entered the kitchen, she started to get a physical reaction to the ammonia even when she stood under the ceiling fan. As Inspector Lapping entered the area of the house where the dog crates were located, she noted a ceiling fan and two windows with fans. Her ammonia reader was activated and showed a reading of 14 parts per million. Her evidence was that ammonia levels start to become dangerous to health at about 20 parts per million but people get a physical reaction such as burning eyes below that level.
Inspector Driscoll headed the investigation on the Ashworth farm into the state of the animals generally and of the dogs in particular. She first visited the farm on May 20, 2015, arriving at 11:25 in the morning. She met Mr. Ashworth and went through the farm before going into the house. Mr. Mike Ashworth let between 30 and 40 dogs into the runs and then Mr. Ashworth took Inspector Driscoll inside. She noted a strong smell of ammonia, urine and feces. The atmosphere was noisy with dogs barking to the point where she could not carry on a conversation. Inspector Driscoll observed between 15 and 30 dogs in the house. She found it difficult to maneuver. Inspector Driscoll testified to seeing about five dogs in crates with no bedding or dirty bedding. The crates were dirty or dusty and showed no signs of having been cleaned recently. She saw urine and feces on the floors and in her opinion there was not a dry area for all the dogs to lie down when they wanted.
A third veterinarian also gave evidence relevant to assessing the physical environment of the dogs. Dr. Nicole Holden is a veterinarian who has been practising about three years. She works for the NBHS, where the dogs were taken after being removed from the Ashworths’ farm. She did some of the initial triage and she was responsible for the veterinary care of the over 40 dogs which remained in the care of the NBHS for approximately four months following their removal. Dr. Holden was qualified as an expert in veterinary medicine.
Dr. Holden produced a report which stated the following concerning the presence of parasites in the dogs:
Faecal analysis of a representative sample of dogs (20/45) of which 12 revealed a spectrum of parasites including hookworms (Ancylostoma caninum and/or Uncinaria stenocephala) and whipworms (Trichuris vulpis). Animals that are kept in close quarters and defaecate in common areas (poor sanitation) will often share parasites...Soil contaminated by whipworm eggs is contaminated for years. Once it is in the soil it will continue to spread and re-infect dogs.
Her report states that long-term hookworm or heavy whipworm can create serious disease, especially among puppies or compromised animals. As a result of her findings, Dr. Holden began a broad spectrum de-worming protocol involving three de-worming medications, administered consecutively every three to four weeks. She recommends ongoing de-worming on a quarterly basis. Dr. Porter questioned whether the OSPCA might have overstated these results. We find no evidence of this.
Dr. Holden testified that three swabs were taken in the home of Mr. and Mrs. Ashworth on July 13th. The swabs were sent to the University of Guelph for analysis. All three swabs were overgrown with contaminants. Dr. Holden testified that even in heavily trafficked areas, such as the door to the hearing room, the analysis should be able to separate the specific bacterial colonies. The fact that the swabs were overgrown, in Dr. Holden’s opinion, means that the swabs were sufficiently overgrown with bacteria that individual colonies could not be distinguished. In her opinion, these results suggest that the overall environment was likely overgrown with contaminants.
Dr. Holden’s evidence about how to interpret the results of the swab analysis contradicts that of Dr. Porter. Dr. Holden began her practice with Dr. Porter at his clinic. Dr. Porter testified that he had been a mentor for Dr. Holden and held her in high regard. Nevertheless, Dr. Porter suggested that Dr. Holden had exaggerated her evidence to support the position of the OSPCA in several respects. The implication of his evidence was that Dr. Holden’s testimony should be discounted. We have reviewed the aspects of Dr. Holden’s testimony that Dr. Porter seeks to challenge. We find that there was an instance in which Dr. Holden did exaggerate her evidence. This related to her findings during the triage which Dr. O’Grady and Dr. Holden performed on the dogs after their arrival at the NBHS. Dr. Holden’s written report, in summarizing the results of her own triage work, refers to the low body weight of the majority of the dogs she saw during the triage. In fact, a minority of the dogs had a low body weight. Dr. Holden tempered these findings when reporting on the combined results of the triage work that she and Dr. O’Grady performed and again during her testimony. While her original overstatement is a legitimate concern, we do not find that it undermines Dr. Holden’s overall credibility.
After considering the substance of each of Dr. Porter’s challenges to Dr. Holden’s evidence, we conclude that Dr. Porter’s concerns are either unfounded or insufficient to impeach Dr. Holden’s credibility. We find that Dr. Holden was a credible witness who gave her evidence in a straightforward and balanced way. Her opinions were objective and when she made a subjective observation, she identified it as such. Where there is a conflict between the evidence of Dr. Porter and Dr. Holden, we prefer the evidence of Dr. Holden.
On the issue of overcrowding, we have conflicting evidence of two veterinarians. Dr. Porter testified that there was adequate space and Dr. O’Grady testified that the dogs were overcrowded. Mr. Shiller, Counsel for the OSPCA, invited us in closing submissions to use our common sense to determine the issue. He suggested we imagine living with 10 dogs in our homes and then to increase that number to 70. We reviewed the video footage of the inside of the house taken around noon on July 13th. At that time, there appeared to be fewer than 30 dogs in the various rooms on the main floor. The rooms are visibly crowded and it would have been difficult for each dog to have a separate space to lie down. As a common sense matter, when there are 70 dogs in that space, there will be overcrowding. That is true even at night when 14 of the dogs, including the 12 smaller dogs, are upstairs and approximately 24 are confined to crates. One effect of this overcrowding is that any source of distress in the environment is magnified because the dogs cannot escape it.
Considering the question of whether the Ashworth home was sanitary, the issue is not whether Mr. Ashworth and Mr. Mike Ashworth were cleaning diligently. The issue is not, as Dr. Porter testified, whether the Ashworths were doing everything in their power to clean. The issue is whether the cleaning was effective to provide an environment for the dogs that was free from distress due to contaminants. Clearly, it was not. We accept Dr. Holden’s interpretation of the results of the swabs analyzed at the University of Guelph. We also reviewed the videos and photographs of the interior of the house on July 13th and noted the level of dirt on the walls and dog crates. We also saw feces on the floor in a number of the rooms. We heard testimony about urine on the floor. We note the evidence of Inspector Driscoll that there was feces and urine on the floor sometime after 11:25 on the morning of May 20th. We conclude that the presence of urine and feces on the floor on the morning of July 13th was not simply the result of the morning cleaning being interrupted. Rather, it was a chronic condition. We conclude that it is more probable than not that the overall environment in the home was overgrown with contaminants. This is consistent with the results of the fecal analysis which showed over half of the sample of dogs tested showed a spectrum of parasites, including two, hookworm and whipworm, which are potentially very serious.
The level of contaminants in the dogs’ living space and the presence of a high parasite load was a source of distress for the dogs. The overcrowding in the home exacerbated the distress as no dog could escape to an uncontaminated space or avoid having the parasites transmitted to them. Dr. Porter testified that he could confine his dogs to the laundry room when they were wet and dirty. The dogs at the Ashworth home could not be confined to a mud room: they lived on the whole main floor and had no segregated space to enable their cleaning.
Were the dogs in distress due to their social environment?
Concerning the behaviour of the pack, Dr. Porter testified that the Ashworths’ home and the associated runs provided a “remarkable” environment of socialization of the dogs and was notable for the lack of problems in the pack. He said, “The house is a unique situation and it works and it is surprising that it works so well”. Dr. Porter attributed this to Mr. Ashworth, primarily. He credited Mr. Ashworth with a special affinity for the injured and maimed dogs that the Laika Fund brings to Canada and praised Mr. Ashworth’s ability to socialize these often traumatized dogs.
Dr. Porter’s evidence was that it was remarkable given the size of the pack, that the Ashworths know each dog individually. Moreover, he testified, the Ashworths were able to determine what each dog needed and to group them accordingly to minimize problems. Dr. Porter was not sure he could have done as well. He also testified that the Ashworths maintained an individual feeding schedule for the dogs. This individual feeding, in his evidence, was important to avoid food dominance issues within the pack. While this evidence was modified by the testimony of Mr. Mike Ashworth, we accept that the dogs each had their own feeding bowl and that this together with feeding them in small groups would tend to avoid food dominance issues within the pack.
Dr. Porter saw the dogs together with Mr. Ashworth and, briefly, with Mr. Mike Ashworth during his assessment on June 19th. The presence of the Ashworths was important, in his opinion, to keep the dogs from becoming agitated. Dr. Porter was of the opinion that the results might have been different had he entered the house unaccompanied. As it was, Dr. Porter found the dogs “relaxed and comfortable”. They were excited to see him and not under stress, in his opinion. He testified that the dogs were “extremely well socialized”.
The picture painted by Dr. O’Grady’s evidence was dramatically different from that presented by Dr. Porter. Dr. O’Grady reviewed videos taken around noon on July 13th by the OSPCA. She noted dogs frozen in place and cowering under furniture. Dr. O’Grady testified that some dogs were showing defensive and fearful behaviour. While many of the dogs were wagging their tails and barking excitedly, she noted dogs in the side run that were “posturing” and fighting. She saw dogs with bite wounds that were healing.
Dr. O’Grady compared the social environment to being in prison with no one dog in charge. In her opinion, there were too many dogs for a pack and the fact that the dogs were of different sizes and breeds made the situation worse. Dr. O’Grady gave the example of hounds, which are bred to run in packs versus terriers, which are bred to kill. This pack had both. She testified that each dog should have its own food bowl and that, without such individual feeding, fights over food would be expected, with the dogs lower in the social hierarchy having to risk injury to get enough to eat. As noted above, we find there was, if not individual feeding, then feeding in small groups. Dr. O’Grady found insufficient water stations, causing dogs lower in the social order to have to risk a fight to get water. We accept Dr. O’Grady’s testimony on this point. Dr. O’Grady noted that weaker dogs would face problems sleeping if there were a constant threat of attack. Dogs which are lower in the hierarchy of the pack will tend to try to become invisible, either by freezing or hiding, in Dr. O’Grady’s testimony. In her opinion, the environment was a situation of constant stress for the weaker dogs.
Dr. O’Grady testified that most kennel operators restrict their runs to no more than two dogs at a time. Her testimony suggested that there was some leeway in this number but she testified that if more than 10 dogs were present in a run at once, there would be no chance of breaking up a fight. She also testified that in the wild, canine packs are much smaller than the pack at the Ashworths; wolves run in packs of up to ten, for example.
Dr. O’Grady was present when the dogs were loaded into crates for transport from the Ashworth farm. In her testimony, the dogs were happy to go into crates and almost all went to sleep within minutes. She compared their situation to a prison lock down. In the cages, there was no competition and nothing could “sneak up on them”. Dr. O’Grady was also at the NBHS that evening and performed triage on 26 of the dogs. Her testimony is that many of them were like different dogs when dealt with one by one. None of the dogs, even the aggressive ones, tried to hurt her and she did not need to muzzle any of them. A number of them were friendly and wagging their tails.
Both Dr. O’Grady and Dr. Holden testified that while dogs may feel pain in much the same way as humans do, they demonstrate pain and distress very differently. It is important for the survival of a dog, particularly in a pack, that they appear pain free. Thus, a dog will put on a happy front and will attempt to eat as long as it can.
On reviewing the videos taken on July 13th, we saw elements that supported the testimony of each of the veterinarians. From the driveway, the sound of dogs barking could be heard and this barking continued as a soundtrack through all the videos of the house. It seemed that the majority of the dogs were excited and barking, with many wagging their tails. There were also dogs in every room and in the visible run that were frozen in place or crouched under furniture. There were communal water bowls on the porch, some of which were overturned.
There was evidence of the behaviour of the dogs in the pack that came from non-veterinarians. As noted above, Inspector Driscoll first went to the Ashworths’ home on May 20, 2015. Mr. Ashworth took her through the house. Inspector Driscoll’s testimony was that she noted dogs sitting in corners, shivering and shaking. These observations were made while Mr. Ashworth was present and tend to support both the findings of Dr. O’Grady on July 13th and the evidence of the videos taken that day.
Inspector Lapping was in the house on July 13th acting as a scribe for Dr. O’Grady. Inspector Lapping characterized the pack as generally high energy. She noted about 10 dogs which she described as “low energy”. Her testimony was that packs tend to behave consistently so that the low energy dogs in a high energy environment were a sign of potential problems. She noted a dog which was inert. She feared it was dead. However, when the dog was touched, it sprang awake. Another dog crouched on a futon and at least one other was crouched under a couch not moving.
All three of the Ashworths who testified described their dogs as happy and healthy, with tails wagging and few problems within the pack. Mr. Ashworth gave extensive evidence of the method he uses to help often profoundly traumatized dogs which the Laika Fund rescues from streets, “kill centres” and the dog meat trade overseas. Initially many of the Laika Fund dogs have serious issues of trust. Many of them have been brutalized. Mr. Ashworth’s method of building trust is labour-intensive and time consuming. It involves extensive time spent in a one-on-one setting with the dog, gradually building trust. Stroking and cuddling the dog will take place once basic trust has been established. Then the dog will be introduced to the pack in stages, with the most sedate and best socialized of the dogs introduced first. Only when the dog has been socialized to his satisfaction will the Laika Fund dog be released for adoption. This eventual adoption is the goal of the rescue operation.
Mrs. Ashworth suggested that if the dogs were as poorly socialized as the OSPCA made out, then we could expect to see fight wounds, which she suggested were not there. In fact, there was evidence of fresh, healing or healed wounds on a number of dogs in the evidence of Dr. Porter, Dr. O’Grady and Dr. Holden. It is impossible to conclude from the evidence of healed wounds whether the wounds occurred while the dogs were with the Ashworths or had occurred earlier. Given that many of the dogs were street dogs, it is reasonable to assume that they had been in dog fights before coming to the Ashworth farm. Therefore, we considered only wounds that the various veterinarians considered fresh or healing.
Three of the 15 dogs that Dr. Porter treated prior to the intervention of the OSPCA had fresh fight wounds, two from being attacked by larger dogs, according to Dr. Porter’s notes. When Dr. O’Grady and Dr. Holden did their triage of the dogs on the evening of July 13th, they noted approximately seven dogs with fresh or healing wounds which they characterized as possible bite wounds.
During their triage, Dr. O’Grady and Dr. Holden also noted that some dogs appeared underweight. However, given the evidence of Mr. Mike Ashworth about the feeding routine for the animals, we conclude that food competition was unlikely to be the reason for low body weight.
We conclude that some of the dogs in the Ashworth home were under stress due to the dynamics of the pack. Again, the overcrowding of the pack exacerbated the stress as there was no escape possible. We accept the evidence of Dr. O’Grady that the overcrowding in itself was a source of distress for the dogs as there was no ability to retreat from the pack, even when fighting broke out. We found persuasive her testimony that the dogs calmed down when placed in individual crates.
The dogs were in environmental distress at the Ashworth farm on July 13th. This distress was caused by the unsanitary conditions in which the dogs were living, the contamination and the high parasite load in the pack. Some of the dogs were living in stress due to the dynamics and size of the pack. Overcrowding was both an independent source of distress and an exacerbating factor for other sources of stress.
Were the dogs in distress due to untreated medical conditions?
The OSPCA alleges that some of the Ashworth and Laika Fund dogs were in distress due to the failure by the Ashworths to provide them with adequate veterinary care. The OSPCA cites the findings of three veterinarians that there were dogs with moderate to severe dental issues and dogs with serious medical issues. Dr. O’Grady, who triaged a number of the dogs, gave evidence on these dental and medical issues as did Dr. Holden, who treated a number of the dogs. Also giving evidence was Dr. Melissa Gillard. Dr. Gillard is an associate veterinarian at a private clinic that treated a number of the dogs after their removal from the Ashworth farm. Dr. Gillard was qualified as an expert in veterinary medicine.
Considering first the dental issues, Mrs. Ashworth testified that their dogs would let them know if they were in discomfort. Mr. Ashworth would flake off plaque from their dogs’ teeth but if there were dental issues, they would take the dogs to the veterinarian. Mrs. Ashworth testified that they had a list of dogs with dental issues on July 13th. Some of these dogs were scheduled to see Dr. Porter. Mrs. Ashworth’s testimony was that they do not budget money for things like dental treatment. Dr. Porter was very generous in doing the work and giving them time to pay.
In cross-examination, Mrs. Ashworth clarified that there was no written list of the dogs needing dental care; she believed there were eight dogs requiring examination and two of these had been scheduled. Mr. Ashworth subsequently testified that they had to cancel appointments for dental examination as they had spent their money on veterinary care in response to Compliance Orders issued in May and June of 2015. Dr. Porter’s evidence was that he had never treated any of the dogs for dental issues.
Mrs. Ashworth also testified that the Laika Fund dogs were examined by veterinarians overseas and that none of those veterinarians had identified any dental issues. Mrs. Ashworth did not produce the reports of these examinations. She testified that the dogs were spayed or neutered, unspecified blood work was done and, in some cases, microchips were inserted. This work was done to qualify for a passport to bring the dogs to Canada. The passports were not produced. There is no evidence that an overall examination of the dogs was done by the overseas veterinarians. In any event, some of the Laika Fund dogs had been in the care of the Ashworths for months, some for years, without examination by a veterinarian licensed in Canada.
Dr. O’Grady, Dr. Holden and Dr. Gillard testified that over 15 dogs had moderate to severe dental disease. In many of these cases, multiple teeth were extracted to alleviate the dogs’ dental pain. It was Dr. Holden’s evidence that dogs experience dental pain much as humans do. She showed numerous photographs of visible abscesses, exposed roots and severe gingivitis and plaque build-up. Both she and Dr. O’Grady testified that severe dental infection can enter the blood stream of a dog. A number of the other dogs had mild to moderate dental disease and required less invasive treatment. We accept the evidence of these veterinarians on the issue of the dental health of the dogs.
We conclude that the Ashworths were aware that at least eight dogs required a dental examination and possible dental work. They lacked the financial resources to provide this dental care. We find that over 20% of the Ashworth and Laika Fund dogs were in distress due to moderate to severe dental disease. In many cases the dogs required multiple extractions to alleviate the pain.
Concerning medical care, Dr. Holden gave evidence about specific dogs which required medical intervention, in addition to the parasite control measures and the dental needs discussed above. Dr. Holden identified nine dogs that, in her opinion, had medical conditions requiring veterinary intervention at the time of their removal. Issues ranged from bacteria and build-up in the ears to entropion in the eyes, general malnourishment and in one case, an abscess on the side of the head. The Ashworths contested some of these results. In their opinion, some of the build-up in the dogs’ ears was simply wax. However, they produced no evidence to support this conclusion.
Extensive evidence was given by each of Dr. Porter, Dr. O’Grady and Dr. Holden about the “body condition” of each dog. The body condition is a short-hand assessment of the dog’s weight and musculature compared to a hypothetical standard for the breed. Body condition is rated on a scale of 1 to 5. A body condition score of 2.5 to 3.0 is considered normal. A score above 3 suggests the dog is overweight. A score below 2 suggests the dog is underweight. There is obviously a subjective component to the rating. Dr. Porter reviewed body condition scores he had made for several of the dogs he examined and compared them to the body condition scores for the same dogs as rated by the two other veterinarians. He noted discrepancies, which in some cases were marked. None of the veterinarians testifying used the body condition score as anything other than a high level indication that further examination of the dog might be warranted. We conclude that, with one exception, nothing turns on the discrepancies noted. That exception, the condition of the dog Amanda, will be discussed below.
The Ashworths and Dr. Porter contested the medical findings relied on by the OSPCA particularly in respect of four dogs: Elsa, Angel, Sam and Amanda. Elsa was an Ashworth family pet, an elderly German Shepherd-type dog. The Ashworths became aware that Elsa had cancer of her mammary gland. They spoke to Dr. Porter by phone and suggested using a pain relief medication they could obtain more cheaply in Europe. Dr. Porter did not examine Elsa but approved their treatment plan. Mrs. Ashworth testified that Elsa would tell them when it was time to euthanize her. Both Mr. and Mrs. Ashworth testified that Elsa was still going for walks and seemed to be enjoying a reasonable quality of life. Three days after Elsa was removed, on July 16, 2015, Dr. Holden ordered that Elsa be euthanized. Elsa had been steadily losing weight, appeared lethargic and was in obvious pain around the site of her tumour. The body was sent to the University of Guelph for a necropsy and the results were admitted as evidence.
The Ashworths contend that Elsa was put in distress on July 13th by the presence of multiple strangers in her home and during her transportation to the NBHS. Mr. Ashworth notes that there was no bedding in the transportation crate. Mr. and Mrs. Ashworth and Dr. Porter speculate that Elsa may have slipped and fallen in the crate, causing her pain and causing her condition to deteriorate. Dr. Porter testified that there are guidelines for humane transport of elderly dogs which require ample bedding. These guidelines were not produced in evidence. In Dr. Porter’s opinion, the stress of the day on Elsa might have triggered a number of the symptoms later observed, including vomiting and diarrhea. Dr. Porter was of the opinion that in older dogs, worn teeth are not necessarily a cause of pain. The wearing occurs over time and the root may die.
Dr. O’Grady noticed Elsa at the Ashworths’ farm on the morning of July 13th. Dr. O’Grady described her as having a mammary mass and bad teeth. Elsa was stiff and sore, exhausted and dehydrated, in Dr. O’Grady’s opinion, and showed “zero interest” in her surroundings or in the strangers present. On Dr. O’Grady’s recommendation, Elsa and one other dog were transported to the NBHS early, arriving around 3:00 p.m.
Dr. Holden examined Elsa on her arrival at the NBHS. She noted an abrasion on the mammary tumour. Dr. Holden did not rule out the possibility that Elsa may have slipped in her crate during transport but Dr. Holden testified that if this had occurred, she would have expected to see signs of bruising. The bruising might not have been evident on triage but might have been evident after several days. There was no evidence of bruising in the necropsy results.
Dr. Holden expressed the opinion that Elsa was in great pain on July 13th and her condition continued to deteriorate to the point where euthanization was required. She was in pain, in Dr. Holden’s opinion, due to the large cancerous mammary tumour. Additionally, most of her teeth were both worn and fractured with exposed pulp, a source of pain when inflamed. In Dr. Holden’s opinion, it would not have been possible to manage Elsa’s pain. Dr. Holden testified that the question of attempting to manage the pain of dogs with mammary tumours is controversial. Any palliative care plan would need to include three different types of pain control: an anti-inflammatory, an opiate and a general pain control medicine. In Dr. Holden’s opinion, the pain medicine given to Elsa by the Ashworths was inadequate. We accept the testimony of both Dr. O’Grady and Dr. Holden over that of Dr. Porter in regard to Elsa’s condition because both Dr. O’Grady and Dr. Holden had the advantage of examining Elsa. Dr. Holden, in treating Elsa, was also in a better position to speak to Elsa’s deterioration and the treatment options. We accept Dr. Holden’s conclusion that Elsa was in great pain and that the pain control being offered to her was inadequate.
Angel is a dog which came into the Ashworths’ care in March, 2015. She is apparently paralyzed in her hind legs and must drag herself around or use a wheelchair. She has urinary incontinence and, while she has some control over her bowels, she is unable to evacuate cleanly to avoid getting feces around her genitals and on her hind legs, which drag behind her. When Inspector Driscoll began her investigation on May 20th, she noted Angel dragging herself around by her front legs. She was being pushed over and stepped on by other dogs. When Mr. Ashworth put her into her wheelchair, Angel tried to nip him. Inspector Driscoll felt that Angel was in pain. Angel was one of seven dogs that the OSPCA ordered to be examined by a veterinarian.
Dr. Porter examined Angel on May 25th pursuant to a Compliance Order. His notes say that Angel appeared to have a severe spinal injury incurred prior to her rescue by the Laika Fund. He noted chafed paws from dragging her hind legs. Dr. Porter suggested that Angel needed a diaper, skin care for her paws and Zincofax for skin care and urine scalding. He noted that Mr. Ashworth had a cart for Angel and, in his opinion, was using it appropriately.
On July 13th, Dr. O’Grady noticed Angel on the porch in the morning. She noted that Angel was licking her hind legs, which appeared sore. She noted “obvious” wounds on both hind legs. Angel’s vulva was inflamed and red and there was apparent urine scalding. Inspector Lapping also observed Angel on the morning of July 13th. She noted open superficial urine scalding wounds. Angel is visible in the video of the front porch taken around noon on July 13th. She is not wearing a diaper nor is she in a wheelchair. She is seen dragging her hind legs. Angel was the second dog which Dr. O’Grady asked to be sent to the NBHS early. On arrival, Dr. Holden noted multiple abrasions and sores on Angel’s back legs and broken, worn nails. Some of the abrasions were deep enough to expose bone on the top of the foot. Her incontinence led to what Dr. Holden characterized as “extensive” urine scalding extending from her vulva and tail, going down her hind legs and into her abrasions. Dr. Holden said that urine scalding causes red, irritated skin that “looks and feels like a burn”. Dr. Holden also noted:
deep penetrating infection in all her wounds, and extending up her legs. Her feet were swollen and hot, and there were multiple tracts of draining pus. The infection in her hind limbs was so severe, it is my opinion, that surgical intervention (debridement, possible amputation), along with several weeks-months of antibiotic treatment and pain control would be required to return her to health.
Angel was sent by the NBHS to a 24-hour emergency care facility. She responded well to treatment and is now able to move about on grass or soft surfaces without her wheelchair.
Mr. Ashworth testified that Angel was responding well to Dr. Porter’s recommended treatment prior to July 13th. Her wounds had scabbed over and she was healing. In Mr. Ashworth’s opinion, the OSPCA put Angel into distress by permitting her to drag herself around on the rough pine porch, aggravating her recently healing abrasions. However, Dr. Holden testified that the deep penetrating wounds on Angel’s hind legs would not have manifested themselves in a few days; they would have developed over weeks. Both the testimony of Mr. Ashworth and Dr. Holden may be accurate. It is possible that the deep wounds were healing and were reopened on July 13th. It is relevant to note that Angel had been put on the porch by the Ashworths and had been left there without her diaper or her wheelchair. This raises the question of how well the Ashworths were following Dr. Porter’s recommendations. The OSPCA did not remove her from the porch until sometime between 1:00 and 2:00 p.m. Recalling that the OSPCA had taken control of the animals early that morning and that the Ashworths were asked to stay away from the porch, we find that although Angel was in distress when first seen on the morning of July 13th, her distress was exacerbated by the OSPCA not removing her from the porch earlier. We also note that Angel was under Dr. Porter’s care on July 13th. The consequences of this will be addressed below.
Sam was another of the dogs which the OSPCA asked to have examined by a veterinarian. After his examination, Dr. Porter noted that Sam had a very serious spinal injury which has led to mild urinary incontinence and “anal sphincter deficits” such that she can develop anal impaction unless she is manually assisted to evacuate her bowels. The Ashworths contend that the OSPCA did not do this, resulting in impacted anal glands after Sam was removed. This appears to be the case but it was not a cause of Sam’s distress on July 13th. The Ashworths also assert that Sam’s spinal injury was not causing her pain and that if she re-injured herself, it was the responsibility of the OSPCA. There is no evidence that Sam was re-injured in the care of the OSPCA. The evidence of Dr. Gillard, who treated Sam, was that the NBHS suspected that an old but unstable spinal fracture might be causing significant secondary damage and which might be a source of pain. Further treatments were recommended to improve Sam’s quality of life. We accept this evidence.
Amanda was another dog seen by Dr. Porter under OSPCA Compliance Orders. Amanda is a whippet cross and Dr. Porter rated her body condition as 2. The Ashworths felt that Amanda was too thin so they had her on a supplementary diet, which Dr. Porter approved. Dr. Porter saw Amanda again on July 3, 2015 due to a fever of unknown origin. Dr. Porter started Amanda on antibiotics and noted that she responded very quickly.
Dr. Holden rated Amanda a 1 on the body condition scale and considered her “emaciated”. Dr. Porter took issue with that rating, noting that Amanda was a whippet and her breed should have been considered. In fact, in Dr. Holden’s testimony, she described Amanda as “thin as any dog I’ve ever seen”, even taking into account her breed. We note that the Ashworths had previously expressed concern about Amanda’s low body weight. Therefore, Dr. Holden’s assessment does not seem unreasonable, particularly in light of the subjective nature of the body condition scoring. Dr. Holden also found that Amanda had moderate dental disease and was experiencing “copious discharge from both ear canals”. However, we also note that Amanda was under Dr. Porter’s care, a fact which will be addressed below.
Despite the specific objections raised by the Ashworths and Dr. Porter, we conclude that in addition to the environmental distress, a number of the dogs were in distress due to medical conditions. Over 20% were in distress due to moderate to severe dental disease and a smaller number were in distress due to untreated medical conditions. Some of the dogs identified by Dr. Holden as requiring veterinary care were in fact receiving it from Dr. Porter and the effect of this will be discussed below.
Were the dogs under veterinary care?
Dr. Porter testified that in his opinion two of the dogs, Angel and Amanda, were under his care as of July 13th. The condition and treatment of these dogs is discussed above. The Ashworths testified that a third dog was also under a veterinarian’s care and we accept this evidence. Hero is a dog which was injured in an automobile accident and brought by the Ashworths to their farm. A veterinarian had prescribed pain medicine, which Mr. Ashworth had been administering. Hero was being kept in a crate in a shed on the farm and was not in the house. Hero was examined by Dr. Porter on July 2nd and was given a parasiticide for heartworm. We have little evidence of the living conditions of Hero in the shed.
As discussed in the “Law” section above, when a dog is under veterinary care, that dog is exempt from the prohibition against putting an animal in distress to the extent that a person is acting under the veterinarian’s orders and as it relates to what the person does or does not do in following those orders. The fact that Angel and Amanda were under Dr. Porter’s care for the specific conditions noted above does not mean that they are exempt from the operation of the Act for all sources of distress. Angel and Amanda were in distress due to their physical environment, as were all the dogs in the Ashworth house. This is quite separate from the conditions for which Dr. Porter was treating them. Thus the Act applies to Angel and Amanda for the environmental distress and their removal under section 14 was in accordance with the Act. However, both Angel and Amanda are exempted from a finding of medical distress due to lack of veterinary care as they were under Dr. Porter’s care when removed.
Hero was removed with the other dogs. A fecal analysis found hookworm eggs, which Dr. O’Grady testified was sufficient to put Hero into distress. We accept her testimony on this point and conclude that Hero was exposed to the contaminated environment at the Ashworth property and contracted a parasite other than the one for which he was given a parasiticide. Thus, Hero’s removal was also in accordance with the Act.
Did the OSPCA cause or contribute to the distress of the dogs?
In addition to the specific dogs dealt with above, the Ashworths contend that the OSPCA put all their dogs in distress on July 13, 2015 by prohibiting Mr. Ashworth and Mr. Mike Ashworth from providing the dogs with food and, in the case of the dogs in crates, water for the full day. Mr. Ashworth testified that after the dogs were loaded into travel crates, without bedding, they had to wait for over an hour without water while the OSPCA completed their paperwork. Following that, there was a 45 minute trip to the NBHS. In Mr. Ashworth’s view, the combination of strangers entering the property and the restriction or denial of water on a hot summer day from 8:00 in the morning until 6:00 in the evening put the dogs in distress.
We heard from both Inspectors Driscoll and Lapping, both of whom were on the premises on July 13th. It appears that no one from the OSPCA was assigned responsibility for providing food or water to the dogs during the day, despite the fact that the OSPCA excluded Mr. Ashworth and Mr. Mike Ashworth from the house. It was only due to the efforts of Mr. Mike Ashworth to continue to provide water to the animals, despite the OSPCA warning him off, that the dogs had some hydration. However, he was not able to provide either food or water to the two dogs in the crates. Inspector Lapping in her testimony noted that Mr. Mike Ashworth resumed watering the dogs at about 9:00 in the morning and she commended him for his efforts. His actions were indeed commendable. Inspector Lapping testified that it is unusual for the caregivers of animals to assist during an OSPCA investigation in the way that Mr. Mike Ashworth did. Not only did he water the dogs, he also assisted by bringing them to Dr. O’Grady for examination and by getting them into transportation crates. This action on his part does not relieve the OSPCA of their responsibility to care for the animals once they have taken control. We urge the OSPCA in future to designate at least one member of their team to provide basic care of animals in situations where they are excluding the owners or custodians of the animals from performing that role. This is particularly important where there are a large number of animals present and the investigation and removal are expected to take more than a few hours.
There was evidence that the dogs were watered and fed on arrival at the NBHS. Dr. Holden testified that during her triage she found half the dogs were normally hydrated. It follows that half were dehydrated to varying degrees. Offsetting this, we note the testimony of Dr. O’Grady that on her initial examination of the dogs, at 8:30 in the morning, she found “all” of them to have been dehydrated. She subsequently modified that testimony and we accept her finding that some of the dogs were dehydrated at the outset of the OSPCA investigation on July 13th.
Inspector Lapping testified that it was possible that the dogs were excited because of the presence of strangers on the property. We note however that when Inspector Driscoll went into the house in May, she was accompanied by Mr. Ashworth. Despite his presence, she observed very similar conditions in the pack. We conclude there is no evidence that the mere presence of the OSPCA on July 13th caused the dogs distress.
We find that the lack of water was a source of stress for many of the dogs. Some of the dogs were dehydrated on arrival at the NBHS. It was only due to the efforts of Mr. Mike Ashworth that most of the dogs were not in distress due to lack of water over the course of the day. We find that although the actions or inaction of the OSPCA caused many of the dogs stress on July 13th, it was not the primary source of stress nor was it a chronic source of distress for the dogs.
We conclude that the dogs were in distress on July 13, 2015 when they were removed from the Ashworth farm by the OSPCA. The physical environment was the primary source of distress. The living quarters of the dogs were unsanitary and there was a high parasite load borne by the animals. The conditions in the home were overcrowded with the dogs having inadequate space to have a respite from the pack or to have a clean space in which to lay down. The social environment was also of concern. Approximately 10% of the dogs were showing signs of recent wounds from fighting and there were clear signs that some dogs were not coping with conditions in the pack. Over 20% of the dogs had moderate to severe dental disease and many of these required multiple dental extractions to relieve their pain. There were also untreated medical conditions in a smaller number of dogs that required veterinary intervention. These sources of distress were not caused by the OSPCA.
Was it necessary to remove the dogs to relieve their distress?
Under the Act, the OSPCA has a number of options to address the distress of an animal. Among other options, the OSPCA may issue a Compliance Order requiring specific action to be taken; it may order the action to take place on the premises, or it may remove the animals to provide care or treatment. The question is whether it was necessary to remove all of the dogs? Would it have been possible to address the conditions found in the Ashworth home in some other way?
We conclude that it was necessary for the OSPCA to remove all the dogs. If it had been simply a case of some dogs requiring veterinary care, the OSPCA could have issued a Compliance Order to address this. If it had been simply a case of some dogs obviously not coping with the conditions in the pack, it might have been possible to remove those dogs, although this option would have been more difficult to implement. The overcrowding might also have been addressed by removing some of the dogs. In this case, the unsanitary conditions, elevated contamination levels and the high parasite load affected all of the animals. It would not have been possible to adequately clean, disinfect and remove the parasites from the site with some of the dogs still present. We find that the health and well-being of the dogs necessitated their removal.
The OSPCA had a veterinary certificate from Dr. O’Grady as required under section 14 of the Act. The OSPCA also allege that the removal of the dogs was necessary because a Compliance Order issued on May 20, 2015 requiring an “overall health assessment and environmental assessment by a veterinarian” was not complied with. In view of our findings above that the physical environment necessitated the removal of the dogs and that the OSPCA had the requisite veterinary certificate, it is not necessary to determine this issue. However, for the sake of completeness, we note the following.
The OSPCA issued a range of Compliance Orders on May 20, 2015. All the orders were satisfied except for one, which required an overall health and environmental assessment. While the OSPCA alleges this Compliance Order was not met, the Ashworths and Dr. Porter disagree.
Dr. Porter testified that, in over 25 years of practice, he had never been called upon to do an overall health and environmental assessment. He contacted the OSPCA to ask for clarification of the order and Inspector Driscoll referred him to the Standards of Care in the Regulation which address basic standards of care for all animals. Dr. Porter had been a federal inspector of beef cattle for a number of years and he had been trained to complete inspections by adhering as closely as possible to the wording of the inspection questions. So, although his report merely stated that the standards of care had been met, he testified that he went further. He questioned Mr. Ashworth about the food and feeding regime and he inspected both the house and the runs and grounds of the farm. He did not understand the overall health assessment requirement to mean that he had to physically examine any of the dogs so he did not put his hands on any of them. He had previously examined seven specific dogs in response to other Compliance Orders by the OSPCA.
Inspector Driscoll expected that the overall health and environmental assessment would include a physical examination of at least a representative sample of the dogs. The OSPCA clarified their requirements but not until after Dr. Porter’s assessment was received.
Given that Dr. Porter had never done such an assessment in his busy practice, we conclude that it is an unusual request. When Dr. Porter requested clarification, the OSPCA ought to have been far more specific about their requirements. This was particularly important as such an overall assessment would have been expensive, requiring as it did, a house call by the veterinarian and a physical examination of a sample of the dogs.
Even within Dr. Porter’s understanding of an overall health and environmental assessment, we find that his assessment did not comply with the order. For example, he should have examined all the living quarters of the dogs. This includes the kitchen and the second floor. There was video and photographic evidence of dirt on the kitchen appliances on July 13th. When asked whether he had assessed the cleanliness of the stove, he seemed surprised and asked why he would. He should have looked at the stove, at least at its external cleanliness, because the dogs lived in the kitchen. Despite his testimony that the dogs lived in the whole house, he did not inspect any part of the house beyond the main floor. Nor did he see all of the dogs in the house at once before concluding that they had adequate space. In his inspection of the main floor, he does not note the exposed sub floor or the chewed drywall. These permeable surfaces could obviously not be sanitized. Mrs. Ashworth did testify that the subfloor was “sealed” but given the evidence of the OSPCA officers and of Dr. O’Grady, we accept that it was not an impermeable surface. Dr. Porter did not note or comment on the double stacking of the dog crates in the house.
Dr. Porter was offended by the dismissive way in which his report was treated by the OSPCA. Given that there was a genuine misunderstanding about the requirements of the Compliance Order, the OSPCA might have been more flexible. This would have been appropriate given the high cost of satisfying the Compliance Order. The OSPCA might have attempted to work with Dr. Porter and the Ashworths to find a way to meet the Compliance Order short of having Dr. Porter re-attend at the farm. Despite this, we conclude that the Compliance Order requiring an overall health and environmental assessment was not met.
Conduct of the OSPCA
- Mrs. Ashworth testified that the veterinarians, Dr. O’Grady and Dr. Holden, were “corrupt” and Dr. O’Grady “lied” on the stand. Various other accusations were made by Mr. and Mrs. Ashworth against Inspector Driscoll. We find no evidence of corruption on the part of any of the veterinarians and no suggestion that any veterinarian, including Dr. Porter, had any intention to deceive the Board or to lie under oath. On the contrary, we were impressed at how deeply all of the veterinarians testifying cared about the welfare and well-being of the dogs. Likewise, we find no evidence that Inspector Driscoll behaved improperly or conspired to remove the animals or constructed evidence favourable to such a result.
Conditions of Return
The dogs were in distress on July 13, 2015 and before they can be returned to the Ashworths or the Laika Fund conditions to alleviate that distress must be met. In closing submissions, the OSPCA proposed a number of conditions of return and requested that these conditions take the form of Compliance Orders. While neither the Ashworths nor the Laika Fund agreed to these conditions, neither did they contest them or propose any of their own. We have reviewed the OSPCA’s proposed conditions. We do not accept that all of the proposed conditions are necessary and some require modification based on the findings we have made. We are also adding conditions we conclude are necessary. Based on the evidence we heard and the findings we have made, we have developed conditions of return which are set out below.
The overcrowding in the Ashworth home was an important factor in the environmental distress for the dogs. It exacerbated the physical distress of the dogs and was an independent source of distress in the social environment. Both Mr. and Mrs. Ashworth acknowledge that there were too many dogs in the home and Mrs. Ashworth testified that they were taking steps to reduce the number. However, Mr. Mike Ashworth testified that there had been over 70 dogs in the home for about a year before they were removed. Efforts to reduce the size of the pack had obviously been unsuccessful.
Does the Board have the right to order the reduction in the number of dogs on the Ashworth property as a condition of return? Mr. Shiller, Counsel for the OSPCA, submits that the Board does not have that jurisdiction. We agree that the Board would not have the jurisdiction to order either the Ashworths or the Laika Fund to surrender their dogs to the OSPCA. The Act does not expressly provide that the Board may extinguish property rights in an animal. In the absence of such an express power, we conclude that the Board does not have this jurisdiction.
What is less clear is whether the Board has the jurisdiction to order the Laika Fund to find an alternate foster home for some or all of its dogs. We are of the view that if such a condition were necessary to relieve the distress of an animal, then the Board would have the jurisdiction to order it. The Laika Fund is unlike a typical dog owner. It exists for the purpose of bringing dogs out of intolerable circumstances and finding foster homes and, eventually, permanent adopted homes for them. The Ashworths may choose to foster a large number of the dogs but that does not mean they are the only choice for the Laika Fund. It is important to note that the Laika Fund already fosters its dogs with organizations, shelters and individuals other than the Ashworths, according to the testimony of Mrs. Ashworth.
In this unusual situation, we conclude that the Board would have the jurisdiction to direct the Laika Fund to foster its dogs elsewhere for some reasonable period of time or until certain conditions were met at the Ashworth home. The question remains whether such a condition is appropriate in this case. We conclude that it is not.
The Act does not impose limits on how many dogs can be on one property. The Act provides that the animals must not be put into distress, and that certain basic standards of care, including adequate and appropriate resting, sleeping and exercising areas must be provided. Given the overcrowding that existed on July 13th, either the number of dogs at the Ashworth property must be reduced, the space available for each dog must be increased or some combination of the two must occur. Within these general parameters, there are a variety of ways in which the overcrowding might be addressed. For example, we have the testimony of Dr. O’Grady that individual kennels for the dogs would ameliorate the overcrowding by giving each dog the ability to disengage from the pack at will. The space available for the dogs might be expanded, either within the Ashworth home or by the construction of all-weather kennels on the grounds. Alternatively, the number of dogs on the Ashworth property might be reduced and there are a variety of ways in which this might be accomplished. To be sustainable, we feel it is optimal for the Ashworths to determine the best way to eliminate the overcrowding. Having said that, it is clear that the dogs cannot be returned to the Ashworth house without the fact of overcrowding being adequately addressed. It will be a condition of return that the OSPCA must inspect the property prior to the return of any dogs. The inspection will be for the purpose of determining a variety of issues, one of which is whether the dogs would be in an overcrowded condition on their return.
The conditions of return must also address the environmental distress. These conditions, which are set out below, are designed to address the unsanitary conditions in the dogs’ living quarters, the levels of contamination and the high parasite load found within the pack. The conditions address the specific concerns of the OSPCA and of Dr. O’Grady about the environment and the sources of contamination within it. They also address Dr. O’Grady’s concerns about adequate sources of water.
We heard no evidence about how the outside runs were cleaned but it is reasonable to assume that given there was a high parasite count inside the house, there will be the presence of a spectrum of parasites in the runs. The fact that the whipworm parasite can survive in soil for years means that some decontamination must occur in the outside runs occupied by the dogs. We heard no evidence as to what decontamination activities are appropriate for the runs so the order refers to soil analysis to be done by an expert in the field with any veterinary recommendations to be followed. Alternatively, the Ashworths can relocate the runs for the dogs until the parasite content of the soil reaches acceptable levels.
We heard evidence from Dr. O’Grady that no more than 10 dogs should be in a run at any one time so that if fights break out, they can be contained. This limit seems appropriate and is incorporated into the order.
It seems clear from the evidence that many of the Laika Fund dogs have medical issues that require special care and attention. In future, the Laika Fund dogs must either be given an overall health assessment by a veterinarian licensed in Canada within nine months of their arrival in Canada or the Ashworths must maintain records of such overall health assessments conducted by veterinarians overseas. In any case, a Laika Fund dog remaining in the care of the Ashworths for longer than twelve months must be examined by a veterinarian licensed in Canada. The dogs with special needs must have these met. Two dogs in particular, Sam and Angel, will require ongoing care and regular veterinary examinations.
Costs
The OSPCA had incurred costs of $380,225.81 for veterinary care and boarding costs to January 8, 2016 and boarding costs continue to mount at the rate of $1,719.01 a day. The OSPCA has waived $33,525 in boarding costs due to a delay in commencing this hearing occasioned by its delay in disclosing documents to the Ashworths. Thus, the costs under consideration are those beginning August 24, 2015. The Ashworths did not contest the OSPCA statement of account.
The costs divide broadly into veterinary costs and boarding costs. Turning first to the question of veterinary fees, Dr. Porter suggested generally that the OSPCA may have performed non-urgent dental cleaning. He did however acknowledge that it is the treating veterinarian who should determine the need for cleaning and extractions. Based on the evidence we heard both from Dr. Holden and Dr. Gillard, we conclude that the OSPCA offered no more than the standard of care a conscientious owner would provide. The dental work ranged from cleaning for those dogs determined to be in need of routine dental care to more extensive work required for the over 20% of the dogs suffering moderate to severe dental disease. The OSPCA in their account note that Dr. O’Grady was paid for her triage work. The OSPCA, properly, is not charging for the examinations and assessments that Dr. O’Grady performed at the Ashworth farm on July 13th. The triage charge is appropriate. Given the sheer number of dogs involved and the concern about their medical condition, it was necessary to examine them all to determine which dogs needed priority treatment.
Some veterinary expenses were incurred for medical conditions that arose while the dogs were in the care of the OSPCA. This is to be expected given the number of dogs and the length of time they have been in the OSPCA care. There is no evidence that the OSPCA caused any of the medical issues. Mr. Green, Counsel for the Ashworths and the Laika Fund, submitted that an MRI performed on the dog Sam was unnecessary. Mr. Ashworth testified that Sam had a healed spinal injury which did not cause her pain while under the care of the Ashworths. Both Mr. and Mrs. Ashworths’ testimony was that if a new spinal injury occurred then that is the responsibility of the OSPCA. The specific case of Sam is discussed above. The NBHS detected what they believed was an unstable spinal fracture and proceeded to diagnosis and treat it. This is reasonable. There is no evidence that the OSPCA or the NBHS caused the dog Sam to incur a new spinal injury.
We reviewed the amount of the veterinary expenses that the OSPCA advise that they have incurred. The total is $93,480.17. This total is not supported by the level of documentation that we would expect. Veterinary invoices are provided for only a fraction of the expenses. Some expenses are summarized in spreadsheets prepared by the OSPCA and others are contained as line items in the daily boarding costs. Offsetting these deficiencies, we have the testimony of Dr. Holden and Dr. Gillard as to the work they performed and the evidence of an OSPCA official as to how the statement of account was prepared. Mr. Green was given an opportunity to cross-examine these witnesses. This was an adversarial process. All parties were represented by counsel. With the exception of Dr. Porter’s comments about the dental care provided and Mr. Green’s submissions about the MRI for the dog Sam, which are dealt with above, the Ashworths chose not to contest the quantum of the veterinary expenses.
In assessing the reasonableness of the veterinary costs, we note that the OSPCA has had the responsibility for the care and health of 70 dogs since July 13, 2015, a period of over six months. A significant proportion of the dogs had serious medical conditions and all required ongoing deworming. While the veterinary fees are insufficiently documented, we find that they are not so unreasonable as to demand our intervention. We conclude that the Ashworths and the Laika Fund are responsible for the veterinary fees incurred for their respective dogs.
The boarding costs that the OSPCA submit they have incurred amount to $284,838.96 as of January 8, 2016 and increase at a daily rate of $1,719.01 from January 9, 2016 to the date of payment. The boarding costs were appropriately documented and appear reasonable. The Ashworths did not contest the quantum of the boarding costs. Given the amount involved, we considered whether it might be appropriate to apportion the costs between the parties. We concluded that in all the circumstances of this case, the Ashworths and the Laika Fund should reimburse the OSPCA for the full amount of the boarding fees. Among the factors we considered in reaching this conclusion are the following.
There are two categories of dogs in this appeal; those owned by the Laika Fund and those owned by the Ashworths. Concerning the Laika Fund dogs, Mrs. Ashworth testified that before the dogs were removed on July 13th, she had eight dogs with prospective homes identified and people ready to adopt them. It was Mrs. Ashworth’s testimony that the OSPCA “blocked” the dogs from being adopted. She clarified her testimony to say that Inspector Driscoll was insisting on examining the dogs to be adopted to determine whether or not they were in distress. Mrs. Ashworth expressed her opinion that Inspector Driscoll was no more qualified than she was to determine whether or not a dog was in distress. Dr. Porter, in his evidence, also questioned Inspector Driscoll’s qualifications to make this determination. Inspector Driscoll in her notes, and in her testimony at the hearing, said that the Ashworths could have the dogs they wanted to place in adopted homes examined by a veterinarian prior to placement.
In email exchanges between Mrs. Ashworth and a senior OSPCA Inspector, the OSPCA official offered to accept the surrender of all or any of the Laika Fund dogs. Mrs. Ashworth had previously declined such an offer from Inspector Driscoll on the grounds that she had agreements in place with the local rescuers and donors which she could not honour if the dogs “disappear” into the Humane Society. These agreements were not produced at the hearing. Mrs. Ashworth advised Inspector Driscoll that “local rescues are different” and that she was working with a number of these as well as individual potential adopters. The OSPCA offered to permit the Ashworths to work with local rescue operations to foster the Laika Fund dogs on the same conditions that Inspector Driscoll had outlined for release of the animals for individual adoption. Inspector Driscoll was insisting on an examination of each animal before it went to adoption. This was because Inspector Driscoll had determined that the dogs were in distress and because the OSPCA felt its Compliance Order for an overall health assessment had not been met. Inspector Driscoll also required a photograph of each dog moving out; a full description of the dog, and the name, phone number and address of the rescue or adopter. Inspector Driscoll advised that once the dogs had been transferred, the OSPCA would follow up to ensure that the dogs “are all healthy and being treated”. Mrs. Ashworth objected to disclosing information about adoption placement. In her testimony at the hearing, she cited a “privacy policy” that the Laika Fund has in place. This privacy policy was not produced.
Inspector Driscoll is empowered under the Act to determine, on the basis of reasonable grounds for belief, whether or not an animal is in distress. The owner or custodian of the animal is free to appeal the determination but what is not at issue is an OSPCA Inspector’s right to make it. Inspector Driscoll had previously made the determination under section 13 of the Act that the dogs were in distress and issued certain Compliance Orders. One of these Compliance Orders was still outstanding; the requirement for an overall health and environmental assessment. The Ashworths were entitled under the Act to appeal the OSPCA’s determination that a Compliance Order had not been met.
They did not do so. While a Compliance Order is outstanding, the OSPCA is within its rights to insist that the terms of the Compliance Order follow each dog that is subject to the order. It was this determination by Inspector Driscoll that the dogs were in distress and that the Compliance Order was not met that gave rise to the conditions she placed on any proposed movement of the dogs.
Inspector Driscoll’s conditions for the release of the dogs were not in strict compliance with the Act. Rather than a determination that the dogs were “all healthy and being treated”, she ought to have explained that the determination would be that “the dogs are not in distress or are under veterinary care for the cause of the distress”. Does this deviation from the Act render the conditions unreasonable? In our view, it does not. In substance, the conditions sought by the OSPCA were reasonable. The Ashworths had the option to approach potential adopters and ask if they would comply with the OSPCA requirements. It was also open to the Ashworths to approach the rescue organizations with which they wished to work to request that they comply with the OSPCA’s terms and conditions. There is evidence that one rescue organization with which the Ashworths were working did speak with the OSPCA and did provide written veterinary reports. We conclude that the OSPCA did not block the movement of the Laika Fund dogs from the Ashworth farm. It was the Ashworths who refused to submit to reasonable terms and conditions and this prevented the dogs from leaving the farm until they were removed on July 13th. At any time after the removal, the Ashworths might have reversed their stance and worked with the OSPCA to place the Laika Fund dogs. We conclude that it is appropriate that the Laika Fund reimburse the OSPCA for the cost of boarding its dogs.
The second category of dogs is the group the Ashworths owned as pets. This category was fluid. Dogs brought in as Laika Fund dogs might become Ashworth pets if the Ashworths considered that they would be difficult to place in adoptive homes. Ashworth pets might be put up for adoption to make way for Laika Fund animals. Based on Mrs. Ashworth’s testimony, we find that 30 of the dogs were Laika Fund dogs, 32 were Ashworth pets and the remaining eight were of uncertain ownership. The dogs are identified by owner in Attachment 1 to this Order.
Unlike the Laika Fund dogs, the Ashworths’ dogs were personal pets. No one would reasonably expect the Ashworths to put any of their dogs up for adoption or surrender them pending an appeal of their removal. The issue is which of the Ashworths or the OSPCA ought to bear the costs of boarding the dogs during the hearing of the appeal. The Act contains provisions which are designed to promote an expeditious hearing and decision, especially in cases of animal removal. One purpose of this is to avoid the accretion of boarding costs. Unfortunately, in this case the goal was not met. The hearing commenced on August 24, 2015 and did not conclude until January 14, 2016, a passage of almost five months. Much of the delay was caused by scheduling delays.
For example, when the hearing adjourned on August 26th, Mr. Green was unable to continue until October. This was not the fault of the Ashworths but neither should the OSPCA be penalized for it. When the hearing could not be completed in the time allotted in October and again in November and January, further scheduling delays ensued. It is relevant to note that each time new hearing dates were chosen, counsel for the parties expressed confidence that the hearing could be completed within the allotted time. While some of the reasons the hearing could not be completed in days set out for it were unavoidable, some were the result of disorganization on the part of Counsel for the Ashworths and the Laika Fund. For example, photographs used in examination and cross-examination were not organized and video footage could not be located, resulting in delays. Repeated delays in disclosure occurred. For example, from the outset of the hearing, the OSPCA requested disclosure of any veterinary records. It was not until Dr. Porter was testifying that he revealed that he had such records but had not produced them because no one had asked him for them. Again, this is not the fault of the Ashworths but it is not appropriate that the OSPCA should bear the cost of these delays. Another cause for delay was Mr. Green’s insistence on introducing evidence that was not relevant to the issues we were called upon to decide. This evidence included a history of each dog and a review of how each dog was socialized. Mr. Green was cautioned that the evidence was irrelevant and would be given no weight. While it is not an issue of fault, we conclude that the greater responsibility for the delay in hearing this matter rests with the Ashworths and their Counsel. We conclude that the Ashworths should reimburse the OSPCA for the boarding costs incurred for their dogs.
- The OSPCA did not provide a breakdown of their statement of account between the costs incurred for the Laika Fund dogs and those attributable to the Ashworth dogs. As noted above, this is difficult to do. However, if the Ashworths wish such a breakdown, they are entitled to it. We propose an accounting for the dogs identified as Laika Fund dogs in Attachment 1. Costs for the dogs owned by the Ashworths and for the dogs for which the ownership is uncertain should be borne by the Ashworths as the people who had the care and custody of the dogs.
Conclusion
- The presence of over 70 dogs in the Ashworth house overpowered their ability to care for the dogs properly. It overpowered their ability to provide a sanitary living space, free from overgrown contaminants and a high parasite load. It overwhelmed their financial ability to provide veterinary care, even when they knew that over 10% of their dogs required a dental examination and might require veterinary intervention. The overcrowding and the unsanitary conditions put all the dogs in distress. Their removal was necessary to relieve this distress.
Order
The Board orders the 70 dogs owned by the Ashworths and the Laika Fund to be returned, subject to the following conditions:
Prior to the return of the dogs, the Ashworths and the Laika Fund shall address the overcrowding of the dogs by either increasing the space available to each dog, decreasing the number of dogs, or some combination of both. Any new space created by the Ashworths must meet all of the conditions set out below and must additionally provide adequate heat, shade and light.
All dogs must be provided with adequate access to water.
The following living conditions must be met:
a. All areas accessible to the dogs must be constructed of a material which is washable;
b. All cracks and crevices in any areas confining dogs must be sealed or covered to allow for thorough cleaning and disinfecting;
c. All areas that house the dogs must be cleaned and treated with a product recommended by a veterinarian for the control of parasites; and,
d. Adequate ventilation must be provided.
- Exterior enclosures or runs must be on soil that is free from the parasite whipworm. The Ashworths and the Laika Fund may either:
a. arrange for soil testing to be conducted by an expert in the field to determine whether the soil is free from whipworm. If whipworm eggs are found, the Ashworths must follow the recommendation of a veterinarian for their removal, or
b. the Ashworths and the Laika Fund may relocate exterior enclosures or runs until such time as, in the opinion of a veterinarian, the whipworm eggs should no longer be in the soil.
Exterior enclosures or runs must be of adequate and appropriate size to meet the Standards of Care set out in the Regulation. No more than 10 dogs should be in a run at any time.
All dogs must be provided with adequate and appropriate resting areas. These areas should allow each dog to disengage from the pack as and when they choose.
Before the dogs are returned, the conditions set out in paragraphs 1 through 6 must be met. The OSPCA shall inspect the Ashworths’ property before the dogs are returned to determine if these conditions have been satisfied. If they have not, then the OSPCA will continue to board the dogs at the expense of the Laika Fund and the Ashworths until the conditions are fulfilled. Any costs incurred by the OSPCA under this paragraph will be payable by the Ashworths or the Laika Fund monthly.
All dogs must be placed on a de-worming protocol involving quarterly treatments as recommended by a veterinarian. This de-worming protocol will include the ongoing cleaning and treatment of all areas that house the dogs with a product recommended by a veterinarian for the control of parasites.
All Laika Fund dogs must either be given a complete veterinary examination before coming to Canada or must be examined by a veterinarian licensed in Canada within nine months of their arrival in Canada. Any dog remaining in the care or custody of the Ashworths must be examined by a veterinarian licensed in Canada within 12 months of the Ashworths’ assuming care or custody of the dog.
The Ashworths will maintain sufficient veterinary records for each dog to permit the OSPCA to monitor compliance with paragraph 9 of this Order.
Two dogs identified with special needs, Angel and Sam, will be examined by a veterinarian at least once a year. Treatment recommendations will be followed.
These conditions will become a Compliance Order under section 13 of the Act and may be enforced accordingly.
The costs of the veterinary care provided to the dogs by the OSPCA from July 13, 2015 to the date of this Order are payable in the amount of $93,480.17 and shall be paid as follows:
a. The Laika Fund will pay all veterinary fees incurred by the OSPCA in respect of the dogs owned by it;
b. The Ashworths will pay all veterinary fees incurred by the OSPCA in respect of dogs owned by them; and
c. In those cases where the ownership of a dog is unclear or has changed since the dog entered the care and custody of the Ashworths, the Ashworths will pay all veterinary fees incurred by the OSPCA in respect of that dog.
- The costs of boarding and care provided by the OSPCA from August 24, 2015 to the date of payment are payable in the amount of $284,838.76 to January 8, 2016 and $1,719.01 per day from January 9, 2016 and shall be paid as follows:
a. The Laika Fund will pay all boarding and care costs for the dogs owned by it;
b. The Ashworths will pay all boarding and care costs for the dogs owned by them; and,
c. In those cases where the ownership of a dog is unclear or has changed since the dog entered the care and custody of the Ashworths, then the Ashworths will pay all boarding and care costs associated with that dog.
If the Laika Fund or the Ashworths wish an accounting of the veterinary and boarding and care costs to be separated by ownership, then the Ashworths may make that request in writing within 5 days of the date of the release of this Order.
If a request for separate accounting is made under paragraph 15 of this Order, then within 5 days of the request, the OSPCA will provide a statement of account for the dogs identified in Attachment 1 to this Order as Laika Fund dogs.
If a request for a separate accounting is made under paragraph 15 of this Order, then the provisions of section 15 of the Act will apply from the date the separate accounting is rendered under paragraph 16.
Laurie Sanford, Member Animal Care Review Board
Louise Menard, Member Animal Care Review Board
Released: March 1, 2016
Attachment 1 to Decision and Order in the matter of Rebecca and Randall Ashworth and the Laika Fund for Street Dogs and Ontario Society for the Prevention of Cruelty to Animals
Based on the testimony of Mrs. Ashworth, we find the dogs are owned as follows. The dogs are identified by number and name.
| Laika Fund Dogs | Ashworth Dogs | Ownership Uncertain |
|---|---|---|
| 4. Nina | 1. Alina | 6. Faith |
| 5. Solo | 2. Connie | 7. Samsam |
| 12. Teddy | 3. Abbey | 40. Skipper |
| 13. Betty | 8. Emily | 46. Nanai |
| 14. Mila | 9. Soren | 47. Mali |
| 18. Rupert | 10. Namakula | 57. Tattie |
| 19. Lollipop | 11. Old Man | 62. Razia |
| 23. Angel | 15. Cora | 70. Sabour |
| 24. Amanda | 16. Surri | |
| 29. Peca | 17. Sam | |
| 31. Hero | 20. Amina | |
| 35. Olivia | 21. London | |
| 36. Ruby | 22. Pupi | |
| 37. Fox | 25. Athena | |
| 39. Duchess | 27. Arjana | |
| 41. Diego | 28. Izzy | |
| 43. LouLou | 30. Maggie | |
| 44. Lajka | 32. Laika | |
| 45. Macy | 33. Sissy | |
| 48. Parker | 34. Lady | |
| 49. Gina | 38. Winnie | |
| 50. Masha | 42. Foxy | |
| 52. Sophia | 51. Tundra | |
| 58. Denise | 53. Mahtab | |
| 60. Dyani | 54. Sabria | |
| 61. Sheena | 55. Nyala | |
| 63. Tara | 56. LuLu | |
| 65. Henry | 59. Leah | |
| 66. Spot | 64. Somya | |
| 71. Robbi | 67. Isaac | |
| 68. Yolo | ||
| 69. Sagetica |