ANIMAL CARE REVIEW BOARD

Safety, Licensing Appeals and Standards Division

COMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX

Division de la sécurité, des appels en matière de permis et des normes

Date: 2020-12-24

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Susan Swanson

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Facilitator: Luisa Ritacca, Member Animal Care Review Board

Appearances: For the appellant: Self Represented For the respondent: Connie Mallory, Supervisor, Animal Welfare Services

Held by teleconference: December 4 and 10, 2020

DECISION AND ORDER

OVERVIEW

1On October 29, 2020, the Provincial Animal Welfare Services removed two horses, two ponies and six chickens from the farm property of the appellant, Susan Swanson, pursuant to a notice of removal (the “removal order”) issued under section 31(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “Act”). The animals were removed following an inspection of the appellant’s property, which was conducted pursuant to a search warrant. The veterinarian present at the inspection issued a certificate advising the removal of the animals on the basis that they were in distress and in need of care.

2Ms. Swanson appealed the removal order. She asserts that the animals were not in “distress” and that she was not provided with an adequate opportunity to address the respondent’s concerns prior to the removal.

3Ms. Swanson received a number of additional orders on October 29th, in relation to other animals that remain in her care. Those orders were not the subject of this appeal. Similarly, the Statement of Account delivered by the respondent to Ms. Swanson on November 29th, 2020 was not the subject of this appeal.

ISSUES TO BE DECIDED

4The issues to be decided by the Board are as follows:

i) Whether the animals removed were in distress; and

ii) If so, whether the removal of the animals was necessary to relieve their distress.

RESULT

5For the reasons that follow, I find that the animals removed were in distress and that the removal of the two horses and two ponies was necessary to relieve their distress. I am not satisfied, however that the removal of the six chickens was necessary in the circumstances.

THE LAW

6Section 30(1) of the Act permits an animal welfare inspector to remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress¹ if a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal.

7An owner may appeal an order made under the Act by an animal welfare inspector to the Board and, following a hearing, the Board may confirm, revoke or modify the order.²

EVIDENCE AND ANALYSIS

Chronology of events leading to the removal order

8On June 15, 2020, Ms. Swanson was issued an inspection order in relation to her two horses, Vegas and Cody. Inspector Ridder attended Ms. Swanson’s farm and determined that as a result of their body conditions, Vegas and Cody were in need of veterinary care.

9Ms. Swanson took some steps to address the horses’ body condition, but on a follow-up visit to her farm, Inspector Baker, who had taken over the file from Inspector Ridder, identified the need for Ms. Swanson to have the horses’ hoofs properly trimmed. By inspection order dated July 24, 2020, Ms. Swanson was required to take the necessary steps to address Cody and Vegas’ overgrown hooves.

10Ms. Swanson testified that she made attempts to comply with the inspection order. She described attempting to trim one of the horse’s hooves herself, but that the horse could not be controlled. She described being injured by the horse while she was attempting to shave down its hind hoof.

11Further, Ms. Swanson explained that she had tried to give away Cody and Vegas, as she recognized that she was not able to properly care for them. Ms. Swanson testified that one potential owner never showed up at her farm and another did attend, but that they were not able to get the horse, Cody, into her trailer.

12Inspector Baker re-attended Ms. Swanson’s farm throughout the summer and early fall of 2020. Each time, Inspector Baker extended her inspection order to provide Ms. Swanson with additional time to address Cody and Vegas’ hoof care needs.

13Between July 10th and September 3rd, 2020, Inspector Baker engaged with Ms. Swanson both in person and over the phone to encourage her to obtain the necessary care for Vegas and Cody. During a discussion in August, Inspector Baker explained to Ms. Swanson that she needed to address the concerns raised in the inspection order and that if she was not financially capable of doing so, she should consider giving her animals away or having them euthanized.

14Inspector Baker continued to reach out to Ms. Swanson throughout the early fall. Ms. Swanson had been unable to obtain the necessary hoof care for her horses and had been unable to give them away.

15In a conversation sometime before September 3rd, 2020, Ms. Swanson advised Inspector Baker that one of the horses, Vegas, was no longer on the property and that Inspector Baker was no longer welcome to attend.

16On September 3rd, 2020, Inspector Baker called Ms. Swanson and asked if she could attend the property to speak with her about a second complaint received regarding the welfare of the animals in her barn. Up until that point, Inspector Baker had not had occasion to observe any of Ms. Swanson’s animals being housed in her barn.

17Ms. Swanson agreed to meet with Inspector Baker at the foot of her property on September 3rd. At that time, Inspector Baker told Ms. Swanson about the complaint received regarding the animals in her barn. Ms. Swanson advised that she felt harassed and became very emotional. Ms. Swanson acknowledged that she had a pony in the barn who was underweight and that a number of the pens needed to be cleaned of debris and manure.

18Inspector Baker testified that during this conversation she learned that in addition to the pony, Ms. Swanson had five goats, sheep, and poultry in the barn. Inspector Baker also noted that during her discussion with Ms. Swanson, she could see that Vegas was still on Ms. Swanson’s property, even though Ms. Swanson had told her that he was gone.

19Inspector Baker and Ms. Swanson agreed that Inspector Baker would re-attend to inspect the barn on September 14th. However, Inspector Baker testified that on September 14th, she received a call from Ms. Swanson advising that she was not feeling well and that she would need to reschedule the visit.

20Inspector Baker left a voice mail message to Ms. Swanson on September 15th and on October 7th attempting to reschedule the inspection. Ms. Swanson did not return Inspector Baker’s messages. Ms. Swanson testified that she was sick and unable to get back to Inspector Baker.

21Inspector Baker explained that because Ms. Swanson did not get back to her and because she had earlier told her that she could not attend on the property, she decided to take steps to obtain a search warrant.

22Inspector Baker executed the search of Ms. Swanson’s property, pursuant to the warrant she obtained, on October 29th, 2020. Inspector Baker attended the property with Dr. Bruce Robertson, a veterinarian with experience in forensic veterinary work, along with Animal Welfare Inspectors Giroux and Matson, and OPP Officer Kyle Hillier.

Execution of the Search Warrant

23Inspectors Baker and Giroux testified as to their observations during the execution of the search warrant on Ms. Swanson’s property. Inspector Baker explained that upon arriving at the property, she and the others knocked several times on Ms. Swanson’s door. No one answered and so they posted the search warrant on her door and proceeded to the barn.

24Upon entry into the barn, Inspector Baker observed two ponies, once of which was quite thin. She also observed chickens, ducks, goats, and sheep. Both Inspectors Baker and Giroux noted that there was a significant amount of manure build-up in the goat pen and in another empty stall.

25Inspector Baker explained that the ponies present in the barn had significant hoof overgrowth, which both she and Dr. Robertson described as “slipper feet.” Inspector Baker noted that the condition of the ponies’ hooves was similar to the condition of Cody and Vegas’ hooves.

26Inspector Baker noted that some of the chickens were housed in cages that appeared dirty, with no fresh water or bedding available. One chicken housed in a separate cage appeared to have a leg injury and was unable to walk normally.

27During their testimony, Dr. Robertson and Inspector Giroux confirmed Inspector Baker’s observations as to the state of Ms. Swanson’s barn and the animals housed therein.

28In her testimony, Ms. Swanson explained that she had not yet gone into the barn that morning prior to the execution of the search warrant. She did not have a chance to change any of the water, bedding or feed. She asserted that it is very difficult to keep fresh water available for her chickens at all times, as they tend to dirty the water very quickly. She also took issue with the suggestion that the chickens were being housed in small or dirty cages. Ms. Swanson explained that each morning, she would normally open the barn doors and windows so that her animals could roam free.

29Following the inspection, Dr. Robertson recommended that the two ponies found in the barn, the two horses the subject of the previous compliance orders, Cody and Vegas and six chickens be removed. Dr. Robertson explained that, in his view, the animals were in distress and in need of care, which it did not appear Ms. Swanson was able to provide. Dr. Robertson issued a Certificate of a Veterinarian recommending removal, pursuant to section 31 of the Act.

30With respect to one of the ponies found in the barn, Dr. Robertson explained that his primary concern was with the animals’ body condition, which Dr. Robertson scored as a 1 out of 9, where a score of 1 indicates emaciation. Once removed, Dr. Robertson also identified serious dental issues for one pony. In addition, Dr. Robertson concluded that both the ponies and the two horses removed were in need of urgent hoof care. Dr. Robertson explained that all four animals had significant overgrown hoofs, which he concluded was likely causing them discomfort and mobility issues. Dr. Robertson concluded that removal was necessary in part because Ms. Swanson had failed to address Cody and Vegas’ hoof issues which had been the subject of previous inspection orders.

31With respect to the chickens removed, Dr. Robertson stated that his primary concern was with the state of their housing, in that it appeared that the chickens were being housed in small, dirty cages. He observed that the chickens had no ability to change their environment, no good options for perching, and no flexibility in choosing their bedding. He said that the other poultry he saw in the barn seemed to be able to move freely around their environment. Dr. Robertson also observed parasitic damage on the chickens, including from lice and beak mites.

32One of the chickens removed was found in its own small cage away from the other poultry. Dr. Robertson noted that this chicken had a lame foot and was not able to move properly. Ms. Swanson explained that this chicken had been bitten by a rat and that she had previously treated it with injectable penicillin she purchased from her animal feed supplier.

33With respect to the chickens removed, Dr. Robertson acknowledged that he did not ask Ms. Swanson about whether they had free range of the barn during the day or whether she was able to house them in larger cages. He also acknowledged that his decision to recommend the removal of these six chickens and not any other poultry found on the property was in large part due to the fact that he believed they did not have free access to more space in the barn and on the property.

34Ultimately, the animals were removed from Ms. Swanson’s property without incident. Inspector Baker explained that they were taken to a safe farm, where they received care.

35The ponies’ and horses’ hoofs were treated by a farrier, Shawn Mack. Mr. Mack testified that in his view, the animals’ hooves were in need of urgent care. While he was not able to say how long it had been since the hooves had been properly trimmed, he estimated based on their condition that the ponies’ hooves had not been trimmed for several months, possibly years.

36In addition to the removal order, Ms. Swanson received other orders in connection to the animals that were not removed from her property. These orders were not before the Board, but Ms. Swanson and Inspector Baker indicated that as of the date of the hearing, the orders had been complied with.

37Inspector Baker provided the Board with a Statement of Account representing the costs incurred by Animal Services to the date of the hearing for the boarding and care of Ms. Swanson’s animals. As of December 4th, 2020, Animal Services has incurred $3627.41. As indicated above, Ms. Swanson has not appealed the Statement of Account,

Issue 1: Were the animals removed from Ms. Swanson’s property in distress?

38Dr. Robertson testified that in his opinion, the two horses, two ponies, and six chickens removed from Ms. Swanson’s care were in distress. Specifically, he noted that the ponies and horses were in need of hoof care and that one of the ponies was emaciated and had significant dental issues that needed to be addressed. He explained that in his view, the animals’ distress was as a result of Ms. Swanson’s inability and/or failure to provide them with the adequate and ongoing care they needed.

39I am satisfied based on Dr. Robertson’s opinion, as well as the testimony and photographic evidence presented by Inspector Baker and Inspector Giroux, that the two ponies and two horses were in distress at the time the decision was made to remove the animals from Ms. Swanson’s care. Each of these animals required, at a minimum, urgent hoof care, which it appears they had not received for several months.

40With respect to the chickens removed from the property, I accept Dr. Robertson’s opinion that they also appeared to be in distress. Again, the photographic evidence presented revealed that the chickens were living in confined cages, with what appeared to be limited opportunity to move around freely. I accept that the chickens removed were in “distress” as defined in the Act, as they appeared to be in need of proper shelter and water. Further, I accept that at least with respect to the lame chicken, it was in distress as it appeared in need of veterinary care.

Issue 2: Was the removal of the animals necessary to relieve their distress?

41Based on the evidence of the Inspectors and Dr. Robertson, I am satisfied that the removal of the ponies and horses was necessary to relieve their distress. Ms. Swanson had been ordered to address the hooves of Cody and Vegas but had been unable to do so by the time the search warrant was executed on October 29th. While I accept that Ms. Swanson took some steps to ameliorate the horses’ condition, including attempting to address their hooves, she conceded that she had not been able to do so even after Inspector Baker gave her ample time to do so.

42Having failed to properly address Cody and Vegas’ needs, it was appropriate and necessary for both the horses and the two ponies to be removed from Ms. Swanson’s care so that they could receive the care they needed. As Mr. Mack described, the animals required extensive hoof trimming, which they all received from Mr. Mack, within hours of being removed from the property.

43With respect to the chickens, while I accept that they were in distress, I am not satisfied that removal was necessary in the circumstances. Dr. Robertson did not inquire of Ms. Swanson whether the chickens had free range of the barn; whether they were permanently housed in their cages; and whether their water was regularly changed. Ms. Swanson made clear in her evidence that she had not had a chance to complete her morning chores prior to the execution of the search warrant. She explained that she would have changed the animals’ water and bedding and would have opened the doors and windows in the barn, making it easier for the animals to roam.

44Dr. Robertson acknowledged that he did not recommend the removal of all of the poultry in the barn and that he identified the six chickens that were removed based on his observations of their cage conditions. In the circumstances, I am not satisfied that removal was necessary to alleviate the chickens’ distress. Ms. Swanson was ordered to take steps with respect to several animals that were not removed, including sheep, goats, horses and other poultry. She should have been given the opportunity to address the concerns identified with respect to the chickens removed in much the same way. I am not satisfied that the condition of the chickens removed was demonstrably different than the condition of the other poultry and animals left behind.

45Similarly, there did not appear to be a need to remove the lame chicken on the date of removal. Ms. Swanson ought to have been given an opportunity to address its condition, before it was removed.

CONCLUSION and ORDER

46For the reasons set out above, I find that the removal order with respect to the two ponies and two horses was necessary to alleviate distress. I find that the removal of the chickens was not necessary.

47As such, the Board orders as follows:

i) The appeal of the removal order with respect to the two ponies and two horses is denied and the removal order confirmed.

ii) The appeal of the removal order with respect to the six chickens is allowed and that they be returned to the appellant.

Footnotes

1. 1Act, s. 1(1). “Distress” is defined in the Act as meaning the state of being (a) in need of proper care, water, food or shelter, (b) injured, sick, in pain or suffering, or (c) abused or subject to undue physical or psychological hardship, privation or neglect. There were no allegations against the appellant that she had abused any of the animals removed.
2. 2Act, s. 38(1) and s. 38(9).```