David Wise and Liisa Wise v. Chief Animal Welfare Inspector, 2020 CanLII 36665

Animal Care Review Board

Date: 2020-05-29

Appeal from an Order to the Owner or Custodian of Animal(s) dated April 20, 2020 made under s. 30(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 and Regulations thereto, as amended.

Between:

David Wise and Liisa Wise

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

PANEL: Luisa Ritacca, Presiding Member Lindsay Lake, Member

APPEARANCES:

For the Appellants: David Wise

For the Respondent: Michael Draper, Regional Supervisor, Animal Welfare Services

Heard via videoconference on: May 20, 2020

OVERVIEW

1David and Liisa Wise (the “appellants”), are the owners of dog named Dusty, a 16-year old yellow Labrador retriever.

2On April 20, 2020, animal welfare inspector Troy Reddington (“Inspector Reddington”) attended at the appellants’ home to investigate an anonymous complaint of possible animal neglect. After observing Dusty and forming reasonable grounds to believe that she was in distress, Inspector Reddington issued an Order to the appellants (the “Order”) under s. 30(1) of the Provincial Animal Welfare Services Act,¹ dated April 20, 2020. The Order required the appellants to take the following action by May 11, 2020:

(i) Have Dusty examined by a veterinarian with special attention to respiratory, weight management, and sores; and

(ii) Provide Inspector Reddington with documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken.

3The appellants did not have Dusty examined by a veterinarian as required by the Order. Instead, the appellants filed an appeal of the Order to the Animal Care Review Board (the “Board”) on the basis that Dusty was not in distress requiring an examination by a veterinarian. The matter proceeded to a videoconference hearing on May 20, 2020.

ISSUES TO BE DECIDED

4The following issues are before the Board on this appeal:

(i) Whether there were reasonable grounds to believe that Dusty was in distress on April 20, 2020?

(ii) Whether the action required by the Order was necessary to relieve Dusty of distress?

RESULT

5We find that the respondent, Animal Welfare Services (the “respondent”), has proven on a balance of probabilities that Inspector Reddington had reasonable grounds to believe that Dusty was in distress as defined by s. 1(1) of the Act, and as such had grounds to issue the Order to relieve Dusty of her distress on April 20, 2020. As a result, it is the decision and order of the Board that:

(i) Within 30 days of the release of this decision, the appellants shall have Dusty examined by a veterinarian; and

(ii) Within 7 days after the appellants have Dusty examined by a veterinarian, the appellants shall provide Inspector Reddington with documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken for Dusty.

ANALYSIS

6Section 30(1) of the Act permits an animal welfare inspector, who has reasonable grounds to believe that an animal is in distress, which includes being injured, sick, in pain or suffering,² to order the owner of an animal to take actions that are, in the opinion of the inspector, necessary to relieve the animal of its distress. Such actions include having an animal examined and treated by a veterinarian at the owner’s expense.³

7An owner may appeal an order made under s. 30 of the Act by an animal welfare inspector to the Board and, following a hearing, the Board may confirm, revoke or modify the order.⁴

Did Inspector Reddington Have Reasonable Grounds to believe Dusty was in Distress?

8We find that the respondent has proven on a balance of probabilities that Inspector Reddington had reasonable grounds to believe that Dusty was in distress on April 20, 2020.

9Inspector Reddington, an animal welfare inspector with over 10 years experience, testified at the hearing that he attended the appellants’ residence on April 20, 2020 to follow-up on an anonymous complaint about possible neglect of a dog. Inspector Reddington testified that he attended the appellant’s residence, which was located in a senior’s complex, in full uniform and identified himself to the appellants as an animal welfare inspector upon arrival. Inspector Reddington was greeted at the door by Mr. David Wise. Inspector Reddington explained the reason for his attendance to Mr. Wise and testified that Mr. Wise stated that he had no recollection of Dusty ever being to a veterinarian. Inspector Reddington then made the following observations of Dusty from approximately three metres away:

(i) Dusty was visibly overweight such that Inspector Reddington was unable to see Dusty’s shoulder, hip and rib definitions and she had fatty deposits on the base of her tail;

(ii) Dusty struggled to stand up and used her head momentum to reach an upright position on all four legs. Dusty also shifted her gait in an irregular pattern while walking;

(iii) When Dusty approached Inspector Reddington, she had a hacking, intermittent cough and shallow breathing; and

(iv) Dusty had two sores that Inspector Reddington described as warts on her forehead that were the size of dimes. Dusty also had two additional sores on her left leg around the elbow that Inspector Reddington described as the approximate size of a golf ball.

10Inspector Reddington explained that his observations of Dusty, which he confirmed during a second observation of Dusty before he left the appellant’s home on April 20, 2020 at Mr. Wise’s request, led him to form reasonable grounds to believe that Dusty was in distress. Inspector Reddington’s opinion was based on his uncertainty if Dusty was sick or in pain as a result of the sores on Dusty’s body and the possibility that they were cancerous; Dusty being overweight; Dusty struggling to stand; and possible respiratory problems due to Dusty’s shallow breathing.

11The respondent also relied upon the testimony of Dr. J. Bruce Robertson, a veterinarian with 26 years of experience, who was qualified at the hearing as an expert in veterinary medicine.

12Dr. Robertson initially testified that it was his opinion that Inspector Reddington had a good faith basis to require the appellants to have Dusty seen by a veterinarian. His initial opinion was based, however, solely upon the information provided to him by Inspector Reddington as Dr. Robertson had never examined Dusty. Based on the information received from Inspector Reddington, Dr. Robertson opined that Dusty was in distress due to her significantly compromised mobility and concerns over her respiratory difficulties. Dr. Robertson further testified that it was reasonable for Inspector Reddington to conclude that Dusty required an assessment by a veterinarian.

13Dr. Robertson also had the opportunity during the hearing to review a video of Dusty that was submitted as evidence by the appellants and was taken within a week of the hearing. After reviewing the video three times, Dr. Robertson provided his further additional opinion as follows:

(i) Dusty appeared to be obese with large fat deposits. This was not altogether uncommon for Labrador retrievers;

(ii) The sores on Dusty’s head looked to be wart masses that are not uncommon in aging dogs;

(iii) Dusty was panting in the video but, in fairness, she was out walking on a sunny day and Dr. Robertson was not certain of the outside temperature. Under such circumstances, it was normal for Dusty to be panting; and

(iv) Dusty is significantly lame. In his opinion, Dusty is suffering from osteoarthritis and is in discomfort. Dr. Robertson opined that Dusty was exhibiting signs of pain including a low grunt while navigating stairs and abnormal movement in her head and hind legs while walking.

14Dr. Robertson concluded that while he had some concerns and strong suspicions that Dusty had some medical problems based upon the information originally provided to him by Inspector Reddington, the appellant’s video confirmed his opinion that Dusty was in distress, was in pain and has significant medical issues. Moreover, Dr. Robertson concluded that the video also supported his opinion that Dusty should be examined by a veterinarian.

15In contrast to the respondent’s position, Mr. Wise submitted at the hearing that Inspector Reddington’s Order is unnecessary because Dusty is not in distress.

16Mr. Wise confirmed that he had not taken Dusty to be examined by a veterinarian since the Order was issued. Mr. Wise did, however, state that he had taken Dusty to a veterinarian within the past year or two due to a cough. At that time, Dusty was diagnosed with Kennel cough and Mr. Wise administered to her prescription medication. Mr. Wise also stated that Dusty regularly attended a veterinarian up to approximately three years ago because the appellants took Dusty to Florida with them for the winter months and, as such, she was required to be up to date on her shots. Mr. Wise adamantly disagreed that he told Inspector Reddington that Dusty had never been to a veterinarian.

17The bulk of Mr. Wise’s testimony demonstrated that Dusty is very important to him and his wife as Mr. Wise testified that his wife refers to Dusty as her best friend. Mr. Wise testified that he wanted to show the video of Dusty to demonstrate her abilities, such as navigating stairs and enjoying walks, given her age and to refute the notion that she was in any kind of distress. Mr. Wise attributed any difficulties that Dusty may have to her old age and maintained that Dusty would not be able to walk with him in the park every day for 30 minutes if she was in pain as alleged by the respondent.

18Mr. Wise submitted that Dusty is not in distress as defined by s. 1(1) of the Act. Mr. Wise was very concerned that the respondent is “second guessing” his position and requiring him to have Dusty examined by a veterinarian. Mr. Wise believed that he was in the best position to assess Dusty’s health as he and his wife have taken care of Dusty for the past 15 years. Mr. Wise submitted that if he felt that Dusty was in distress, then he would certainly take her to the veterinarian even though it is physically difficult for him to do so. Mr. Wise confirmed that he still has access to a vehicle and drives but noted that getting Dusty in and out of the car is challenging for him given his age.

19Despite his opinion that Dusty was not in distress, Mr. Wise conceded the following at the hearing:

(i) Dusty likely has some arthritis in her leg and occasionally limps. Other family members had recommended to Mr. Wise the option of Dusty taking glucosamine. Mr. Wise researched the medication and determined that he did not want to introduce it to Dusty at her age as her bowels and bladder were still functioning normally. Mr. Wise testified that he did not want to administer medication to Dusty that would be worse for her than the problem that it is intended to treat;

(ii) Dusty was overweight;

(iii) Dusty has difficulties rising to a standing position; and

(iv) A veterinarian would find that Dusty suffers from health problems if Mr. Wise took Dusty in for an examination.

20Based on all of the evidence before us, we find that the respondent has proven on a balance of probabilities that Inspector Reddington had reasonable grounds to believe that Dusty was in distress such that she was sick and in pain on April 20, 2020. In making this finding, we place more weight on the evidence of Dr. Robertson and his opinion that Dusty likely has osteoarthritis and is in discomfort given that Dusty was exhibiting signs of pain especially following his review of the appellant’s video of Dusty. While we have no doubt that the appellants deeply care for Dusty, the only reason that Mr. Wise provided as to why we should place more weight on his opinion of Dusty’s health over that of Dr. Robertson is because he and his wife have been Dusty’s owners for 15 years. Despite Mr. Wise’s good intentions, we place greater weight on Dr. Robertson’s opinion over that of Mr. Wise’s opinion as Dr. Robertson has been a veterinarian for over 26 years and was qualified as an expert at the hearing in veterinary medicine. As a result, we accept and agree with Dr. Robertson’s opinion and finding that it was reasonable for Inspector Reddington to believe that Dusty was in distress due to sickness and was in pain on April 20, 2020.

21In making our finding, we have no doubt that Mr. Wise has taken good care of Dusty over the years. We do not have concerns of abuse or intentional neglect. There was no evidence before us to support any such finding.

Was it reasonably necessary for Dusty to be examined by a veterinarian to relief her of her distress?

22We find that the respondent has proven on a balance of probabilities that it was, and continues to be, reasonably necessary for Dusty to be examined by a veterinarian to relief her of her distress.

23As part of his testimony, Dr. Robertson explained what an examination of Dusty would look like if he was Dusty’s treating veterinarian. Dr. Robertson explained that he would take a complete history, review the video if the appellants brought it in, complete a general physical exam which would include a multi-symptom examination and range of motion exercises to move and isolate each joint to check for arthritic changes and pain. The purpose of the examination would be to have a discussion with the appellants about options for further treatment or euthanasia given Dusty’s age. Dr. Robertson testified that given his presumptive diagnosis of osteoarthritis, and if the appellants wished to continue treatment, he would dispense anti-inflammatory medication and pain killers for Dusty’s pain, he would recommend blood work to ensure proper kidney function and possible x-rays of Dusty’s joints. Dr. Robertson would also provide dietary counselling to help Dusty reduce her weight and recommend additional blood work to check Dusty’s blood glucose levels for diabetes and thyroid issues.

24Dr. Robertson clarified his testimony and stated that an in-person examination of Dusty is required because despite his provisional diagnosis of osteoarthritis, Dusty could have other conditions that are not identifiable through a video. For example, Dr. Robertson testified that he is unable to determine if Dusty had any heart or lung issues from the video and that he would only be able to rule out these issues by using a stethoscope on Dusty. Dr. Robertson confirmed that a remote examination does not replace an in-person visit as an in-person visit can give further information to a veterinarian.

25Mr. Wise offered no further evidence on why an examination by a veterinarian was not reasonable to relief Dusty of her distress aside from his opinion that such a visit was unnecessary because he did not agree that Dusty was in distress.

26As we have explained above in paragraph [20], we place weight on Dr. Robertson’s opinion and find that it would be reasonable to have Dusty examined by a veterinarian. As Dr. Robertson explained, there are various diagnostic options and treatments available to be provided through the care of a veterinarian that could relieve Dusty of her of her pain and arthritic symptoms. As a result, we find that it was reasonably necessary for Inspector Reddington to order Dusty to be examined by a veterinarian to relief her of her distress on April 20, 2020 and that it continues to be reasonably necessary that Dusty be examined by a veterinarian.

Modification of the Order

27The Order required Dusty to be examined by a veterinarian and that the appellants provide Inspector Reddington with the documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken by May 11, 2020. Clearly, the compliance date passed even before the hearing in this matter.

28Moreover, we recognize that the Covid-19 restrictions may create additional barriers to the appellants in having Dusty examined by a veterinarian. As such, we are prepared to modify the Order pursuant to s. 38(9) of the Act and provide additional time for the appellants to comply.

DECISION AND ORDER

29For all of the reasons set out above, it is the decision and order of the Board that:

(i) Within 30 days of the release of this decision, the appellants shall have Dusty examined by a veterinarian; and

(ii) Within 7 days after the appellants have Dusty examined by a veterinarian, the appellants shall provide Inspector Reddington with documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken for Dusty.

Footnotes

1. 1S.O. 2019, c. 13 (the “Act”).
2. 2The Act, 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. The portion of the definition of “distress” that applies in this matter is injured, sick, in pain or suffering. There were no allegations against the appellants that they failed to provide Dusty with proper care, water, food or shelter or that Dusty was abused or neglected.
3. 3The Act, s. 30(1).
4. 4The Act, s. 38(1) and s. 38(9).