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: 2020-04-17

Appeal under section 17(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, Chapter O.36

Between:

Kimberley Anne Kamstra, Erin Kamstra and Carli Garrett Appellants

and

Animal Welfare Services Respondent

DECISION

Panel: Lyndra Griffith, Member

For the Appellant: Elizabeth Hewitson, Paralegal For the Respondent: Valerie Crystal, Counsel

Place & Date of Hearing: Thunder Bay, Ontario February 18-19 and 24, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1This is an appeal of a Notice of Removal (Removal Order) made by Animal Welfare Inspector Kamil Wierzbicki, Agent with the Ontario Society for the Prevention of Cruelty to Animals (OSPCA or Society) on December 13, 2019. The owners of the animals, Kimberley Anne Kamstra, Erin Kamstra and Carli Garrett (Appellants) appealed the Removal Order to the Animal Care and Review Board (Board) on December 18, 2019 under section 17(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, Chapter O.36 (Act).

2The animals subject to the Removal Order include five tortoises, three birds, four lizards and three dogs. The Animal Welfare Services (Respondent) issued the Removal Order on the basis of non-compliance with previous Orders and to relieve the animals’ distress. The first Orders were issued on March 27, 2019.

RESULT

3Having considered the evidence and submissions filed, the Board orders the return of one dog and two budgies as set out below.

ISSUES

4The Appellant raised a number of issues including whether the compliance Orders were valid, whether the animals were properly seized and whether the euthanasia of two dogs was lawful. The Board will only address these issues to the extent that the evidence and submissions are relevant to the two issues to be determined by the Board (listed below). The Board does not have the authority to determine whether or not the euthanasia of animals is lawful.¹

5The issues to be determined by the Board are:

1. Should an order be made for the return of the animals and, if so, on what terms; and
2. Should the Appellants be ordered to pay the Respondent the whole or any part of the costs of providing food, care or treatment to the animals pursuant to their removal?

6The Board will address both issues for each animal seized.

THE LAW

7Section 14 (1) (c) of the Act provide as follows:

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

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

The Powers of the Board on Appeal

8The Board’s powers on the request for the return of an animal are set out in section 17(6) of the Act, which provides as follows:

17 (6) After a hearing, or with the consent of the Society and the person who issued the notice under subsection (1) or (2), without a hearing, the Board may:

(b) respecting the removal of an animal under subsection 14(1), order that the animal be returned to the owner or custodian and may make an order in the same terms as an order may be made under subsection 13(1);

(d) order that the whole or any part of the cost to the Society of providing food, care or treatment to an animal pursuant to its removal under subsection 14 (1) be paid by the owner or custodian of the animal to the Society.

BACKGROUND

9The Appellant Kimberley Anne Kamstra and her husband, Robert Kamstra (the Kamstras) own Thunder Bay Reptiles, which is described as a wildlife rescue operating since 1997. The Kamstras took in old animals that people did not want anymore, attended shows with their animals, and bred some animals to help fund the animals they would bring in through the rescue.

10Animal Welfare Inspectors Kamil Wierzbicki and Jeremy Gardiner² (Inspectors) first attended the Kamstra’s home on March 27, 2019, after receiving anonymous complaints that their animals were not being properly cared for.

11During the inspection, the Inspectors found hundreds of animals in the home. The Inspectors observed the home to be unsanitary and cluttered with animal excrement throughout and many of the animals were found without any food or water. The Inspectors removed some of the animals under their authority in section 14(1) of the Act.

12Inspector Wierzbicki issued orders under s. 13(1) of the Act for the remaining animals in the home in order to alleviate all species from distress³. The Act defines distress as a 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. Among other things, the March 27, 2019 Orders required Mr. and Mrs. Kamstra to:

1. Have the entire dwelling cleaned to be free of clutter and debris in order to provide all species of animals with a healthy and safe environment;
2. Provide all necessary species with adequate light to promote wellbeing;
3. Provide ventilation that is adequate for all species; and
4. Provide adequate and appropriate food and water for all species of animals to promote general wellbeing.

13Between April and May 2019, Inspectors conducted compliance inspections of the Kamstra’s home. On December 13, 2019, Inspectors conducted a follow-up inspection. As a result of this inspection, a Removal Order was issued to Robert Kamstra and Kimberley Anne Kamstra for five tortoises, three birds, four lizards and three dogs due to non-compliance with previous Orders and to relieve their distress. All of the animals removed from the Kamstras’ home were later examined by veterinarians.

14Mrs. Kamstra’s daughter Erin Kamstra’s (Ms. Kamstra) dog Jesse was one of the dogs removed from the home. A family friend of the Kamstras, Carli Garett’s dog was also one of the dogs removed from the home as a result of the Removal Order. All three Appellants were present during the inspection on December 13, 2019.

ANALYSIS

1. Should an order be made for the return of the animals and, if so, on what terms?

i. Were the animals removed from the home in distress?

15All the animals in the Kamstras’ home were subject to Orders requiring, among other things, adequate and appropriate food and water for all species of animals to promote general well-being. The Appellants submit that based on the substantial improvements that they made in the home, the Inspectors erred in their judgment in determining the state of the house was non-compliant with previous Orders and they should not have removed any of the animals.

The Tortoises

The Respondent’s Evidence

16Animal Welfare Inspectors Wierzbicki and Gardiner both testified for the Respondent. On December 13, 2019, the Inspectors arrived at the Kamstras’ home at 9:54 am and conducted a search of the house. The Inspectors took photographs of the home and the animals’ living conditions and over 400 photographs were admitted into evidence⁴. The five tortoises were observed on December 13, 2019 by Inspectors Wierzbicki and Gardiner roaming throughout the home without any available food or water. On December 20, 2019, the tortoises were examined by veterinarian Dr. Alex Durfy. Dr. Durfy did not testify at the hearing however a report completed by Dr. Durfy was admitted into evidence by the Respondent on consent along with the written cross-examination admitted by the Appellants⁵.

17Dr. Durfy found the tortoises to have very thin body conditions, poor skin, very poor shell quality, upper respiratory tract infections, diarrhea, pale mucous membranes, conjunctivitis and foot sores. Dr. Durfy also found that the tortoises’ fecal samples contained parasites, some of which are potentially contagious to people. Dr. Durfy opined that the cause of these conditions was extremely poor husbandry for a prolonged period. Dr. Durfy noted in the report: “It is my opinion that extremely poor husbandry led to the conditions seen in all of these tortoises. As reptiles, a tortoise’s health depends on both its environment and nutrition. Lack of proper humidity and temperature control as well as poor hygiene and malnutrition causes major issues including the poor shell and skin quality, foot sores, and increased parasite burdens these tortoises have and lead to the secondary infections (shell rot, URIs) that they developed. The degree of shell abnormalities seen indicates that husbandry has been inadequate for a prolonged period; years….”

18In the written cross-examination, Dr. Durfy clarified that he has almost 9 years of experience with small animals including exotics, that he sees an average of 3-4 exotic animals per week and that he has only dealt with a few tortoises previously.

19Dr. Durfy was asked in his written cross-examination why it was his opinion that poor husbandry led to the conditions seen in all of the tortoises if he did not observe their habitat. Dr. Durfy replied “…The abnormalities and illnesses seen in the tortoises, especially when you consider that ALL of them are affected, are due to improper care, inappropriate diet, lighting humidity, temperature, hygiene, to name a few, are what causes issues in these species – poor husbandry”.

The Appellants’ Evidence

20Mrs. Kamstra testified that she had owned these tortoises for a couple of years. She testified that “they get their drinking water at night when we bath them.” She also stated that there was usually a small dish of water for them but she “just didn’t have it out that day”. She went on to further say that “they drink more at night when they are being bathed than during the day”.

21The Appellants submit that none of the veterinarians who examined the exotic animals and birds are experts or specialists with exotic animals or birds. It is the Appellants’ position that the veterinarians provided findings without proper testing or the appropriate medical care and attention from a person who could provide a specialized analysis of exotics. The Appellants’ maintain that the evidence provided regarding the veterinarians’ qualifications was insufficient because they did not provide a copy of their actual degrees and certifications. The Appellants noted that some veterinarians had experience with exotics or birds but did not advise of any certificates received in that area of practice and no Curriculum Vitae were provided to support their qualifications.

Discussion

22I find that the tortoises were not given any food or water on the morning of December 13, 2019. I do not find that Mrs. Kamstra’s explanation for why the tortoises no longer had any food or water was satisfactory or persuasive. It was 9:54 a.m. when the Inspectors arrived at the home and if the animals had not been fed or watered since the night before, they should have been provided with fresh food and water that morning prior to her leaving the house. I find the Inspectors’ testimony to be credible and persuasive. I am persuaded by Dr. Durfy’s observations and overall opinion that the tortoises were malnourished. Although Dr. Durfy is not an expert or specialist with exotics, I find that he has sufficient experience and training as a veterinarian with exotics to reach the opinions that he did.

23Based on the totality of the evidence, the Board finds that the tortoises were lacking food and water, malnourished and in poor health as a result of Mr. and Mrs. Kamstra’s poor animal husbandry and that the tortoises were in distress on December 13, 2019.

Lizards

The Respondent’s Evidence

24Inspector Wierzbecki testified that the Nile Monitor was observed on December 13, 2019 with very dirty drinking water and an empty food dish. As stated above, Dr. Durfy did not testify at the hearing however a report prepared February 12, 2020 based on his examination of the lizards removed from the home was entered into evidence⁶. Dr. Durfy found that the Nile Monitor had a normal but lean body condition. The tip of its tail was missing, and the wound was over a month old given the amount of healing that had occurred. Dr. Durfy also noted numerous scars on the Nile Monitor’s body from previous trauma but was unable to determine an exact cause or time period for when this occurred.

25Inspector Wierzbecki testified that two Blue-Tongued Skinks were observed without any food or water available to them on December 13, 2019. Inspector Wierzbecki testified they also did not have proper heat or lighting. Dr. Duffy opined in his report that “Poor husbandry led to at least some of the issues seen with the skinks. Improper shedding is due to inappropriate humidity, temperature and water availability…”

26Inspector Wierzbecki testified that on December 13, 2019, the Tegu was observed in an enclosure with improper lighting and access to water. Photographs were provided with the Tegu in its enclosure with a large container of water with very high walls making access difficult or impossible. Dr. Duffy found the Tegu to be severely underweight and that malnutrition was likely source of her poor body condition. Dr. Durfy opined that “Even if underlying disease is present, it takes a while for a healthy tegu to have lost that substantial of an amount of weight.”

27Inspector Wierbzbecki testified that that the four lizards were not examined immediately because their medical concerns were less urgent than those of the other exotics and due to the lack of availability of veterinarians with expertise in reptiles in Thunder Bay. They were examined by Dr. Durfy approximately 1.5 months after their removal.

The Appellants’ Evidence

28Mrs. Kamstra testified that she got the Nile Monitor, just before March 27, 2019. She alleged that the wound on the Nile Monitor was caused by the Inspectors during its removal as she was known to whip her tail all the time as they are naturally aggressive animals.

29Mrs. Kamstra testified that the Tegu usually had a large rock beside her water container to allow it access to the water but that the Tegu kept moving the rock. Mrs. Kamstra stated that in the photo provided of the Tegu shows her sleeping, and that she had fed her the day before, she gave her a mixture of cat food and egg. She stated that the Tegu normally sleeps, “she’s lazy and slow, the only time she perks up is when she is hungry” and that “Monitor lizards are really lazy like that”.

30As noted above, Mrs. Kamstra testified that she had not gotten around to feeding and watering the animals for the day and that they were fed and watered the night before.

Discussion

31The evidence that the lizards were not provided with fresh water or easy access to water is uncontested. A monitor lizard was also found deceased in its enclosure without clean water and without the Mrs. Kamstra being aware that it was deceased. I do not find Mrs. Kamstra’s explanation as to why the animals were not provided with water satisfactory. Furthermore, because the Tegu had a habit of moving the large rock that gave her access to the water, a more suitable water dish or dispenser should have been provided. I accept Dr. Durfy’s opinion that some of the lizards showed signs of malnutrition or improper shedding due to poor husbandry. As stated above, I find that Dr. Durfy has sufficient experience and training as a veterinarian with exotics to make the conclusions that he made. In light of the above, the Board finds that the lizards were in distress on December 13, 2019.

Birds

The Respondent’s Evidence

32Inspector Wierbzbecki testified that on December 13, 2019, he observed the African Grey Parrot in a dirty cage without water or appropriate food available. He testified that the side of the cage had a substantial accumulation of excrement and feathers. Photos of the conditions of the cage were entered into evidence⁷.

33On December 18, 2019, the parrot was examined by veterinarian Dr. Melanie Tallon and a report was completed on January 8, 2020. Dr. Tallon did not testify at the hearing but her report was admitted in to evidence⁸. Dr. Tallon found that the parrot had a very thin body condition and diarrhea. Dr. Tallon observed the following:

“Multiple primary feathers are missing from the wings, and the left wing has reduced range of extension from suspect tissue contracture. Tail feathers are dirty and tattered, and body coverage feathers have visible stress bars. Skin is dry and flaking, with scattered feather loss.”

Dr. Tallon opined that:

“…a wholly inappropriate diet (budgie seed), and extremely poor husbandry has caused Nezzy’s unhealthy condition. At this time, final results regarding the degree of severity that these imbalances have caused is under investigation. It is suspected that a calcium deficit is present, as well as possible hepatic disease (all diet and husbandry related). Liver disease can present in beak and feather abnormalities with parrot species. Additionally, large parrots undergoing emotional or mental stress, such as those confined in too small of a cage or lacking appropriate interaction, can develop behavior self-trauma and feather damaging habits. Given the degree of musculoskeletal and integumentary changes, Nezzy has been under inadequate conditions for months to years.”

34Inspector Wierbzbecki testified that on December 13, 2019, he observed two budgies without any water or adequate food available to them. The budgies were also examined by Dr. Tallon on January 20, 2020 and a report completed February 15, 2020 was entered in to evidence⁹. The budgies were found to have healthy body conditions but had mild respiratory issues.

35In the written cross-examination, Dr. Tallon stated that she had 16 years of experience with small animals including exotics. Her exotic experience includes Parrots, birds of prey, waterfowl and songbirds. She has treated, Cockatoos, Conures, Lorikeets, African Grey Parrots, Amazon Parrot, Parakeets, Cockatiels and Budgerigars. Dr. Tallon further clarified that there are currently no board certifications for avian or exotic species specialized veterinarians in Northwestern Ontario. Dr. Tallon stated that although she is not board certified, she is experienced with avian patients.

The Appellants’ Evidence

36Mrs. Kamstra testified that the African Grey Parrot, Willow, was cage aggressive and that she had not noticed any of the issues noted in Dr. Tallon’s report. Mrs. Kamstra testified that the feathers found in his cage were a result of molting and that she had not gotten around to watering the parrot or changing the budgies’ dirty water.

37As stated above, it is the Appellants position that the veterinarians who examined the exotic animals, including the birds, do not have the expertise or specialization required for a specialized analysis.

Discussion

38The evidence that the birds were not provided with fresh water is uncontested. I do not find Mrs. Kamstra’s explanation as to why the animals were not provided with water satisfactory. I accept Dr. Tallon’s opinion that extremely poor husbandry has caused the parrot’s unhealthy condition and that has been he had been under inadequate conditions for months to years. I find that Dr. Tallon has sufficient experience and training as a veterinarian with avian patients to make the conclusions that she made. In light of the above, the Board finds that the birds were in distress on December 13, 2019.

Dogs

The Respondent’s Evidence

39Inspectors Wierzbecki and Gardiner testified that on December 13, 2019, they observed a dog belonging to Ms. Kamstra in her bedroom with no food or water available. The Inspectors testified that the room was cluttered and provided photographs of the room with Jesse on the bed. Jesse was examined by veterinarian Dr. Randi Roberts, on December 18, 2019. Dr. Roberts did not testify at the hearing, but his report dated December 18, 2019 was admitted into evidence¹⁰. Dr. Roberts found that Jesse was stiff in the hind end but seemed to get around relatively well, with no pain observed in the back end. He had multiple lumps all over his body. He was overweight. He also had “severe dental disease; severe tartar throughout mouth with gingivitis and “multiple extractions likely needed.”

40Inspectors Wierzbecki and Gardiner testified that on December 13, 2019, they observed Mrs. Kamstra’s dog Rasco in the home without any food or water. They testified that Rasco followed them around the house and that when he was let outside in the backyard during the course of the investigation, he was observed eating snow for two to three minutes. The Inspectors made the assumption that he was dehydrated. The Inspectors also saw Rasco dripping urine throughout the house. Photographs were submitted showing Rasco eating snow and showing signs of incontinence¹¹. Dr. Roberts examined Rasco on December 18, 2019 and completed a report the same day. Dr. Roberts found him to be thin. He had lameness/pain in the hind end. His legs shook while standing. He was unable to support himself for long. Dr. Roberts suspected that Rasco had painful osteoarthritis. Rasco also had an infected ulcerated mass on his back, respiratory distress at rest and urine incontinence. Dr. Roberts estimated Rasco’s age to be 10 years.

41On December 18, 2019, Rasco was euthanized by the Respondent in accordance with s. 14(2) of the Act on the basis of Dr. Roberts’ determination that it was the most humane course of action due to his distress.

42Inspectors Wierzbecki and Gardiner testified that on December 13, 2019, they observed Leia, Carli Garrett’s dog in a kennel in the Kamstra’s basement without food or water. They testified that the kennel was clean. Officer Wierzbecki also testified that he observed Leia at the Kamstra’s home on March 27, 2019 and that he had seen her at another property owned by Mr. Kamstra’s mother during another inspection. Inspector Gardiner estimated that hundreds of animals were observed in the home on the March 27, 2019 inspection date and that it was not necessary, nor was it practical, to name each animal in the Orders. Leia was removed pursuant to the previous Orders dated March 27, 2019 providing that all species of animals in the home be provided appropriate food and water. Leia was also examined by Dr. Roberts on December 19, 2019 and a report was completed that same day. Dr. Roberts noted that he was unable to examine Leia without sedation as the dog was aggressive. Leia was described as a Pitbull of an unknown age. Leia was euthanized on the basis of Dr. Roberts’ determination that she was aggressive and a risk to public safety.

The Appellants’ Evidence

43Ms. Kamstra lives with her parents in the home. She testified that she was not present during the previous inspections, however, she was aware of the Orders given to her parents and she was present December 13, 2019 when the animals were removed.

44Ms. Kamstra testified that she did not observe Jesse to have dental concerns when he was in her care as she brushed his teeth every day. She stated that she did not give water to Jesse because she was not expected to be gone long. Ms. Kamstra testified that she was diagnosed with severe depression and that she relied on her dog Jesse as her emotional support. She stated that she regularly takes Jesse for walks and she is responsible for his care. Ms. Kamstra agreed that the house was not in a good state on March 27, 2019 but that the family had made numerous efforts to clean the house and be in compliance with the Orders. Ms. Kamstra could not recall the last time Jesse visited a veterinarian but when asked by the Board if he received his annual vaccinations she said “yes”. Ms. Kamstra stated that she would do anything for her dog and that he is not just her emotional support dog, he is her baby and her best friend.

45Mrs. Kamstra testified that she was coming home to bring Rasco to the veterinarian for his appointment that morning at 11:15 a.m. She testified that she would do community feeding and would feed all the dogs. She stated that it was not uncommon for Racso to drink the whole water container left for all of the dogs. She stated that Rasco had a habit of over drinking and she was feeding him twice a day. The veterinarian told her that there was nothing that could be done and that it was just his age. She stated that his urine would trickle here and there, and that he would walk and pee at the same time if he really had to go pee. He did not have problems walking and would jump on the furniture and everything.

46Mrs. Kamstra testified that Rasco was subject to an OSPCA Oder on September 27, 2019 when he was found wandering by the highway. Ms. Kamstra (who picked Rasco up at the shelter) was ordered to have him seen by a veterinarian due to his body condition, urinary incontinence and general welfare. Rasco was seen by a veterinarian on October 10, 2019 and November 5, 2019. According to the Crossroads Veterinary Clinic records, the veterinarian found that Rasco had many issues and recommended that, as a result of many different diagnoses, Rasco see a specialist for surgery of the spine or that he be given pain medication such as Gabapentin. The records note that that the “owner will monitor him for pain”. Mrs. Kamstra testified that Rasco was not in any pain. Mrs. Kamstra stated that what the veterinarian wrote in his report is inconsistent with what she was told. She further stated that Rasco was not in any pain until he was taken away on December 13, 2019.

47Ms. Garrett testified that she does not live at this Kamstra home but rather at the address of Mr. Kamstra’s mother. Ms. Garrett testified that she resides some of the time at Mr. and Mrs. Kamstra’s home but she does not live there. Ms. Garret was present for the inspections on March 27, May 9, May 10 and December 13, 2019 and she was aware of the Orders given to the Kamstras. She said that she became the owner of Leia at the end of May 2019 and had never received a complaint from the OSPCA or By-Law enforcement regarding Leia.

48Ms. Garrett, had placed her dog Leia in a kennel in the Kamstra’s basement while she attended a doctor’s appointment with Erin Ms. Kamstra on the morning of December 13, 2019. Ms. Garrett testified that she was only going to leave Leia in the kennel while she attended her doctor’s appointment. She stated that Leia had already eaten and that she did not provide her with any water because she was just over 1 years old and still a puppy and she did not want her to urinate in the kennel. Ms. Garrett testified that Leia was not aggressive, she was around children and she never worried about her around her son. Ms. Garrett testified that Leia was born at the Kamstras’ home. Leia was given away as a puppy and the previous owner gave her to Ms. Garrett in May 2019. When asked by the Board if she had ever taken Leia to the veterinarian, she said “no” but that “she was planning on taking her in the next few months”.

49It is the Appellants’ position that Inspectors Wierzbicki and Gardiner did not have the authority to seize Leia during the removal of the animals on December 13, 2019 because she did not live at the residence and Leia was not subject to any previous Orders.

Discussion

50The evidence that the dogs were not provided with fresh water is uncontested. I believe Ms. Kamstra’s evidence that she had not intended to leave Jesse in her room for long but I still find that he should have been provided with fresh water. Ms. Kamstra was aware that all animals in the home needed to be provided with appropriate food and water under the previous Orders.

51Mrs. Kamstra testified that she was coming home to bring Rasco to the veterinarian for his appointment that morning at 11:15 a.m. but did not provide any evidence to support this claim. I am not persuaded by Mrs. Kamstra’s explanation that she simply had not gotten around to giving the animals water that day. I found the Inspector’s testimony to be credible that Rosco was observed eating a lot of snow when given the opportunity and that he appeared to be dehydrated and in distress. I am persuaded by Dr. Robert’s observations of Rasco being in distress.

52I also believe the evidence of Ms. Garrett, that she did not intend to be gone from the Kamstras’ home long. That said, I find Ms. Garrett’s reasoning for why she did not give Leia any water unsatisfactory. I found that the Oder dated March 27, 2019 applied to Leia because she was left in the Kamstra’s home and therefore she was in their care, regardless of how long she was left. Ms. Garrett was aware or should have been aware that the Kamstras were subject to Orders that applied to all species in their home.

53The Board finds that all three dogs were in distress on December 13, 2019.

ii. Should the animals be returned to the Appellants?

54It is undisputed that all of the removed animals did not have any water available to them, some animals did not have any food or appropriate light and the home was unsanitary which was in contravention of the Order dated March 27, 2019. The animals were thus properly removed pursuant to s. 14(1)(c) of the Act for non-compliance with Orders under s. 13(1) of the Act.

The Respondent’s Evidence

55The Inspectors observed the Kamstras’ home on March 27, 2019 to be unsanitary and cluttered with animal excrement throughout. They stated that many aquatic animals were found in extremely dirty water, many animals were in dirty cages filled with excrement and many animals were without food and water.

56During this inspection, the Inspectors found hundreds of animals in the home, including various species of reptiles, rabbits, ferrets, birds, dogs, cats and a potbellied pig. Some of the animals were roaming free in the home and a duck was found in unsanitary conditions in the bathtub without any food or water.

57On March 27, 2019, many of the animals that were removed from the home required veterinary care to treat a variety of issues such as eye and mouth infections, shell rot, maggot infestations, internal parasites, and ulcers.

58The photographic evidence of the two Alligator Snapping Turtles show them in extremely dirty water with visible maggot infestation on their shells. During the inspection on March 27, 2019, the attending veterinarian, Dr. Roberts, determined that some of the animals had to be removed in order to relieve their distress and a Removal Order was issued. The animals removed at that time included one Cayman, two Alligator Snapping Turtles, one Carpet Python, one Red-eared Slider Turtle, six ferrets, three chicks, and nine rabbits including kits.

59On April 3, 2019, the Inspectors conducted a compliance check. The Inspectors testified that some progress had been made with respect to cleaning the house and providing food and water to the animals. The Inspectors testified that there were still some animals that were not receiving adequate care and that a lot of the animals were missing without any explanation as to their whereabouts. The Inspectors returned on April 18, 2019 to conduct another compliance check but were denied entry.

60On May 9, 2019, Inspector Wierzbicki returned and executed a warrant under section 12 of the Act. He found that the conditions of the home had deteriorated since April 3, 2019 and that again numerous animals were missing from the home. Animal excrement had built up in cages and was present on the floor. Many animals lacked food and water and Inspector Wierzbicki issued new Orders with compliance dates set for the following day.

61Inspector Wierzbicki conducted further compliance checks on May 10, 2019 and May 28, 2019. Improvements were made in the home and the conditions of the animals were found to be adequate.

62Since the first Order was given to Mr. and Mrs. Kamstra on March 27, 2019, Inspector Wierzbicki estimated that the following animals of various species were removed from the property without notifying OSPCA as to their whereabouts: 20 birds; 9 turtles; 9 lizards; 13 snakes; 1 potbellied pig; 2 tortoises; 2 dogs; 2 cats; 2 hedgehogs; 1 chinchilla; and 3 rabbits.

63On December 13, 2019, Inspectors Wierzbicki and Gardiner conducted a follow-up inspection to determine whether the Kamstras were still in compliance with the previous Orders. The inspectors found that once again the home was extremely unsanitary with excrement, garbage and debris throughout the home. There were elevated levels of ammonia in the air and a large majority of animals were found without food and water. Reptiles were found without adequate heat or light. A monitor lizard and snake were found deceased in their enclosures, no food or clean water was observed in those enclosures. As previously stated, as a result of this inspection, a Removal Order was issued to the Kamstras for five tortoises, three birds, four lizards and three dogs due to non-compliance with previous Orders and to relieve their distress. Inspector Wierzbicki testified that they left two cockatiels in the home because they had adequate food and water and were in a sanitary cage.

64The Respondent has serious concerns for the welfare of the removed animals if they were returned to the Kamstras’ home. It is the Respondent’s position that prolonged exposure to inadequate conditions has resulted in a variety of medical issues for the animals as confirmed in the veterinary reports. They submit that if these animals are returned to the Appellants and they are once again subjected to inadequate conditions, it is expected that their conditions will once again deteriorate. It is the Respondent’s position that the Appellants either do not comprehend or do not take responsibility for the effect that lack of adequate care has on the animals.

The Appellants’ Evidence

65Mrs. Kamstra agreed that on March 27, 2019, her house was not in good condition. She stated that her husband had criminal charges laid against him the previous year and this had a great impact on their entire family. The criminal matter concluded around March 2019 but their mental health had suffered and their lives became hectic and out of control. Mr. Kamstra was also involved in a collision that has left him unable to work. He had to attend physiotherapy which interfered with his ability to assist with the animals and he was unable to do certain chores due to mobility. As a result, Mrs. Kamstra suffered from depression and had difficulty functioning. She missed time from work and found herself unable to deal with her daily life.

66When asked by the Board why the water of the two Alligator Snapping Turtles found on March 27, 2019 was so dirty, Mrs. Kamstra stated that the turtles were in what she called “Burtation”, a form of hibernation. She said that during this process “you can’t’ touch them or feed them” as the Kamstras were hoping that the turtles would eventually breed. She explained that these turtles do not live in clean water but rather they live in murky water. When asked to clarify this whole process, Mrs. Kamstra said that she was not too sure and that her husband “did it all”.

67Mrs. Kamstra stated that she disagreed that things had deteriorated on May 9, 2019. She stated that they were feeding and watering the animals every day. With respect to why the animals did not have any water during the December 13, 2019 inspection, Mrs. Kamstra testified that the water and food bowls were empty because the animals had simply eaten and drank what was given to them the night before. She stated that she was going to water the animals but did not have a chance to do it because the Inspectors arrived first thing in the morning. She stated that she “just got paid so she was going to feed them”. Mrs. Kamstra also stated that she was on her way home to pick up her dog Rosco to bring him and her other dog Luna to their veterinarian appointment at 11:15 a.m.

68With respect to why the animals’ enclosures were so dirty, Mrs. Kamstra stated that “they were about to clean all the cages that day and didn’t get a chance because [the Inspectors] showed up at 9 am”. Mrs. Kamstra stated that the feces that was observed in the basement was from the dogs defecating that night. She stated she did not observe any feces prior to the inspection. She testified that on December 13, 2019, she was following the cleaning schedule that she had developed. The animals’ care plan included feeding and watering all of the animals every day, cleaning the upstairs cages on Mondays, cleaning the downstairs cages on Tuesdays, spot cleaning the cages on Fridays, doing laundry on Saturdays and tidying the house on Sundays. Mrs. Kamstra stated had she had cleaned the cages days prior to the inspection. Mrs. Kamstra further stated that “now she’s able to clean because she cut down her hours at work”.

69With regard to the deceased monitor lizard found in its enclosure, Mrs. Kamstra testified that she did not know that that it was deceased until the first day of the hearing. She stated that no one told her that it was deceased and that it was alive the day before when she fed them. When asked why the water in its enclosure was dirty, she said that she was not the one who watered him the day before.

70The Appellants request the return of Jesse the dog, and all of the exotic animals including four lizards, five tortoises, and three birds. It is the Appellants’ position that Mrs. Kamstra has taken serious steps to come into and remain in compliance with the Orders. She has full intention of continuing to remain in compliance and taking care of the animals in her care and those that are in the care of the OSPCA, if returned to her. Mrs. Kamstra says she is serious and hopes her commitment to her animals is evident. Mrs. Kamstra provided pictures to the Board taken inside her home the last week of December. She states that these photos show that they are doing what is asked of them. Mrs. Kamstra is hoping the Board takes her changes into consideration when making a determination on the return of her animals, including the return of Jesse.

Discussion

71Mrs. Kamstra provided photographs of her home taken in December, after the animals were removed, the Board however, has concerns as to Mrs. Kamstra’s ability to maintain the home if all of the animals were to be returned. Based on Mrs. Kamstra’ s evidence, she made many improvements to come in to compliance and she did not seem to think there was anything particularly wrong with the state of her home and the animals on December 13, 2019. She was of the view that they had simply been “caught with their pants down”.

72The photographic evidence is overwhelming and probative demonstrating that the animals that were removed were not being properly cared for and were in distress. The photographic evidence also shows that Mrs. Kamstra was in non-compliance with the previous Orders issued under s. 13 of the Act which required clean and adequate dwellings, appropriate ventilation, and access to food and water for the animals.

73Furthermore, deceased animals were found in their enclosures without Mrs. Kamstra knowing that these animals were deceased. The Board has concerns with the lack of insight the Appellants demonstrated towards the gravity of the situation with respect to the animals’ living conditions and lack of basic necessities such as clean drinking water.

74The Appellants have stated that mental health, physical health, legal issues and the lack of financial resources played an important role in letting their home environment get out of control. However, the Appellants did not provide any substantiating evidence. While sympathetic to those circumstances, the Board still has concerns about the exotic animals’ wellbeing if they were to be returned. The evidence before the Board is that the exotics, including the tortoises, lizards and parrot, require specialized care such as different types of light for basking and regulating body temperature, measures to monitor and control humidity levels in their environment and a species specific diet. The veterinarians that examined the exotic animals opined that extremely poor husbandry has caused the unhealthy condition of the tortoises and the African Grey Parrot and that poor husbandry led to at least some of the issues seen with the skinks. The Tegu was found to be severely underweight and malnutrition was likely the source of her poor body condition. These animals were in the Kamstras’ care for a significant period of time and their poor conditions did not happen overnight. Furthermore, Mrs. Kamstra did not lead any evidence as to how she was going to improve the care provided to the exotic animals given the numerous medical conditions noted by the veterinarians and observed by the Inspectors.

75With respect the to the domestic animals, the Board will be returning the dog Jesse to Erin Kamstra and the budgies to Kimberley Anne Kamstra. Ms. Kamstra described her daily routine with Jesse, which includes feeding, walking and grooming. The Board is satisfied that Ms. Kamstra will ensure that Jesse has fresh water at all times. Mrs. Kamstra’s animal care plan will be sufficient to properly care for the buggies now that there are less animals in the home. The budgies were also found to have healthy body conditions by the veterinarian who examined them. The Board no longer has any concern about these animal’s welfare and wellbeing if returned. The Board finds that these animals could be properly cared for by the Kamstras based on their established animal care plan and with the additional conditions imposed by the Board.

2. Should the Appellants be ordered to pay the Respondent the whole or any part of the costs of providing food, care or treatment to the animals pursuant to their removal?

The Respondent’s Evidence

76The Respondent states that it has incurred $37,392.70 in boarding and veterinary costs for the removed animals between December 13, 2020 and February 17, 2020¹². The Respondent is not requesting payment of costs incurred from the date of the hearing onward, nor is the Respondent requesting any costs for two dogs, Rasco and Leia.

77Jesse is being boarded at a cost of $50 per day for a total of $3,300 over 66 days. The exotic animals are being boarded with Sleeping Giant Exotics at a cost of $50 per day per reptile, $25 per day for the African grey, and $25 per day for the pair of budgies. Inspector Wierzbicki testified that the exotic animals were boarded with Sleeping Giant Exotics because that is the only facility in Thunder Bay and surrounding area with the ability to board and properly care for exotic species.

78The Respondent submits that the Appellants have not provided any evidence challenging the reasonableness of those costs or provided any documentation supporting a reduced ability to pay the costs of care. The Respondent further submits that it is undisputed that Mr. and Mrs. Kamstra own at least two properties and that many of the animals were owned for a family business and therefore the owners should bear the financial responsibility of the care required by the removal.

79The Respondent submits that $27,000 is an appropriate amount to order towards the $37,392.70 in costs of care incurred prior to hearing.

The Appellants’ Evidence

80The Appellants submit the OSPCA acted in bad faith when they removed the animals from the Kamstras’ home on December 13, 2019. They argue that there was considerable and substantial improvement in the home and that they ought not to have been found non-compliant. They submit that the Inspectors were negligent in making the determination to remove the animals thus incurring the unnecessary costs for the food, care and treatment of these animals. The Appellants further submit that the OSPCA failed to comply with the Act in euthanizing Rasco and Leia just like in the case of Parent v. Ontario Society for the Prevention of Cruelty to Animals, 2016 CanLII 101768 (ON ARCB).

Discussion

81The Appellants did not lead evidence with regard to their ability to pay the incurred cost of care for their animals. The Appellants also have not provided any evidence challenging the reasonableness of the costs of care of their animals. The costs listed by the Respondent appear to be reasonable. I do not find that the Inspectors acted in bad faith when they removed the animals from the home. Their findings were supported by viva voce, photographic and veterinary evidence. I am persuaded by the Inspectors’ evidence that they had reasonable grounds to believe that the animals were in distress when they were removed from the home and that the Kamstras’ were in non-compliance with the Order made March 27, 2019. In the absence of any evidence showing an inability to pay, the Board finds that $3,300 is reasonable for the cost of care for Jesse and $23,700 is reasonable for the remaining animals.

CONCLUSION

82All of the removed animals were found to be in distress on December 13, 2019. All of the removed animals did not have any water available to them, some animals did not have any food or appropriate light and the home was unsanitary which was in contravention of the Order dated March 27, 2019. The animals were thus properly removed pursuant to s. 14(1)(c) of the Act for non-compliance with orders under s. 13(1) of the Act.

83The Board finds that returning the exotic animals to the Kamstras would be inappropriate in the circumstances. For several months, the Kamstras were under Orders to maintain a certain standard of care for their animals and although they made some improvements, they ultimately could not maintain the appropriate standard of care required. Mrs. Kamstra did not lead any evidence as to how she was going to improve the care provided to the exotic animals given the numerous medical conditions noted by the veterinarians and observed by the Inspectors. The Board will only be returning Jesse to Erin Kamstra and the budgies to Kimberley Anne Kamstra. The Board no longer has any concern about these animal’s welfare and wellbeing if returned. The Board is satisfied that these animals could be properly cared for by the Kamstras based on their established animal care plan and with additional conditions imposed by the Board.

ORDER

84The Board orders:

1. The return of the dog Jesse to Erin Kamstra. Jesse must be examined by a veterinarian within 90 days of the date of this order to address the medical issues noted by Dr. Roberts. Jesse is to be treated based on the recommendations of the veterinarian. Jesse must be provided with an appropriate diet as well as clean water and a clean living environment at all times.
2. The return of the two budgies to Kimberley Anne Kamstra. The buggies must be provided with food, clean water and a clean living environment at all times. The budgies must be provided with an automatic water dispenser.
3. Erin Kamstra is to pay $3,300.00 for the cost for caring for Jesse.
4. Kimberley Anne Kamstra is to pay $23,700.00 for the cost of caring for the remaining animals.

Footnotes

1. 1Under s. 14(2)(b) of the Act, an inspector may euthanize an animal if a veterinarian has examined the animal and advised that it is the most humane course of action.
2. 2Inspectors Kamil Wierzbicki and Jeremy Gardiner were previously Agents with the OSPCA and are now Animal Welfare Inspectors under the Provincial Animal Welfare Services Act, 2019. Inspector Wierzbicki had been an Agent with the OSPCA since 2016 and Inspector Gardiner had worked as an OSPCA Agent since the 1990s.
3. 3Exhibit 1; Respondent’s Documents
4. 4Fourteen exhibits were entered into evidence the vast majority of the documentary evidence referred to during the hearing was contained in Exhibit 1; the Respondent’s Documents. Only a few pages from Exhibit 1 were objected to and the remainder of the evidence was entered on consent.
5. 5Exhibit 1; Respondent’s documents and Exhibit 3 Written Cross-Examination of the Veterinarians.
6. 6Exhibit 4; Report Re Lizards Feb 12, 2020 Highview Animal Clinic
7. 7Exhibit 1; Respondent’s Documents
8. 8Exhibit 1; Respondent’s Documents
9. 9Exhibit 5; Report re: budgies
10. 10Exhibit 1; Respondent’s Documents
11. 11Exhibit 1; Respondent’s Documents
12. 12Exhibit 7; Cost of Care Summary Kamstra et al. v. Animal Welfare Services