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
Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13
Between:
Jessica Canivet
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Animal Care Review Board
Appearances:
For the Appellant: Self-represented
For the Respondent: Connie Mallory, Regional Supervisor, Animal Welfare Services
Hearing by teleconference: May 19 and 28, 2020, and by written submissions
DECISION AND ORDER
OVERVIEW
1On November 4, 2019, the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) removed 40 animals from the property of Jessica Canivet (the “appellant”) and Chris Montigny, pursuant to a notice of removal (the “removal order”) issued under s. 14(1) of the Ontario Society for the Prevention of Cruelty to Animals Act (“OSPCA Act”). The property is located at 775294 Bear Road in Savard Township. The animals removed were one duck, one ewe, two calves, five cows, one bull, 10 horses, and 20 chickens. The animals have been in the care and custody of the respondent since then. In January 2020, the organization responsible for the animals changed to Animal Welfare Services due to a change in legislation from the OSPCA Act to the Provincial Animal Welfare Services Act (the “Act”). An “order to keep” the animals was issued by the Ontario Court of Justice on February 25, 2020. Pursuant to that order, the animals were ordered to be detained in the custody of Animal Welfare Services.
2On April 17, 2020, Animal Welfare Services delivered two Statements of Account (the “Accounts”), pursuant to s. 35 of the Act, to the appellant in relation to the care of the animals, for the period of November 4, 2019 to April 17, 2020, totaling $60,625.13. The Accounts include costs for veterinary care, boarding, and animal care. Failure to pay the account can result in forfeiture to the Crown.
3Ms Canivet appealed the Accounts on May 5, 2020. She asserts that the animals were not in “distress”, a requirement for a removal order under the OSPCA Act which was the relevant legislation at the time of the removal. In her reasons for appeal, she also states that on the day of the removal, she told the “agents” that “said animals were relinquished to a new owner and were being moved because the vet had just been out and transportation was finally arranged. The agents would not listen nor would they look at the agreement between the new owner and myself.” Ms Canivet seeks to have the Accounts set aside and “the animals returned to their rightful owner that they were going to the day of the removal.”
4This hearing began as a teleconference hearing on May 19, 2020. On that day, two of the respondent’s witnesses gave evidence – Inspector Erin Brule and veterinarian Dr. Bruce Robertson. The hearing was scheduled to continue on May 28th for the testimony of two further witnesses for the respondent, veterinarian Dr. Amy Gaw and Inspector Tracy Lapping, to be followed by the appellant’s witness’ testimony.
5Unfortunately, on May 28th, the appellant was unable to connect to the teleconference due to cellular transmission issues in her area which is a community approximately 44 km south of Kirkland Lake. Due to this, and her personal circumstances, the appellant requested that the hearing continue in writing. That request was granted. The Board issued an order on June 2nd setting out a detailed schedule for delivery of witness statements, cross examination, as well as closing submissions. Closing submissions were completed on July 2nd.
6This hearing format was not without its problems. Some deadlines were missed. However, every effort was made to provide a fair and accessible hearing while also ensuring that the Board received all relevant evidence in order to allow it to make a final decision on the issues in this appeal. The Board provided flexibility both in terms of the questions posed to the witnesses in cross examination and the timing for submissions, given that neither party had legal representation. I note that the appellant expressed considerable concern about the respondent’s approach in terms of the manner of disclosure and adherence to timelines. While not perfectly timely, the respondent’s submissions were rarely more than a couple of hours past the deadline. At no time did I infer from the respondent’s imperfect compliance an intent to flout the Board’s rules or directions. I am satisfied, for example, that the appellant received all of the respondent’s disclosure before the first day of hearing, based on the submissions heard on that day. I do recognize that the appellant’s concerns flow from the circumstances in which she has found herself prior to and since November 4, 2019, and particularly in relation to her interactions with animal welfare officials.
ISSUES TO BE DECIDED
7The issues to be decided by the Board are as follows.
a. Was the removal order appropriate; that is, were the animals in distress?
b. Are the Accounts reasonable?
RESULT
8For the reasons that follow, I find that the removal order was appropriate for all animals but the duck, and the Accounts are reasonable. The appellant is required to make payment as set out in the Accounts, with the exception of the costs associated with the duck, which shall be deducted from the Accounts.
THE LAW
9The OSPCA Act sets out a legislative scheme that addresses the issue of the humane treatment of animals. It states that no one shall “cause an animal to be in distress.” Distress 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.” When the animal welfare authority believes an animal to be in distress, it can, under s. 14 of the OSPCA Act, remove the animals.
10Under s. 14, the removal must be for the purpose of providing the animal(s) with “food, care, or treatment to relieve its distress” and one of three conditions set out in s.14 must be met. The two conditions of s. 14 relevant on this appeal are either that (a) a veterinarian has examined the animal and advised the animal welfare authority that the “health and wellbeing of the animal necessitates its removal” or (c) that a compliance order has not been met.
11The owner or custodian of the animal that has been removed under s. 14 may appeal the removal to the Board. In this case, the removal order was not appealed. As noted above, only the Accounts are under appeal, but integral to the appeal is whether the removal of the animals was appropriate; that is, whether the animals were in distress.
EVIDENCE AND ANALYSIS
Chronology of events leading to the removal order
12This context is important to the issues before me. There is a past history that has likely affected both parties’ actions and perception of the other. The Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) and Ms. Canivet have had interactions over the past several years; most recently, in January 2019, Ms. Canivet and Mr. Montigny were found guilty of provincial animal welfare related offences and were prohibited from owning, caring or living with animals for five years. Neither Ms. Canivet nor Mr. Montigny attended the trial. They have appealed that finding and prohibition order.
13The events that resulted in the matters before the Board stemmed from complaints made in August 2019 to the OSPCA regarding animals on the appellant’s property. Then, on August 30th, two of the appellant’s horses escaped the property and were struck by passing motor vehicles and had to be put down as a result. On September 11, 2019, Inspector Brule received a search warrant and attended the appellant’s property with Inspector Lapping and two Ontario Provincial Police (OPP) officers. Inspector Brule issued six compliance orders that day to Ms. Canivet, Mr. Montigny and Deborah Haggart (Ms Canivet’s mother). Ms. Haggart owned several of the horses on the appellant’s property. The inspection order related to provision of adequate care, food and shelter for the animals as well as requiring veterinarian check-ups.
14Dr. Amy Gaw attended at the property on September 19th at the appellant’s request. At that time, Dr. Gaw provided an assessment of the horses, cows, and the sheep. She noted that all but one of the cows were in adequate condition, as was the sheep, but highlighted several areas of concern in relation to the horses. Inspector Brule attended at the property on September 20th and issued or modified four compliance orders. On September 24th, Inspector Brule attended and issued/modified 16 orders and attended again on October 1st when she issued or modified eight orders. On that date, based on her observations, she revoked the compliance order relating to shelter for the chickens. On October 9th, Inspector Brule’s attendance resulted in the issuance or modification of eight orders. A continuing concern reflected in these orders was the health management of the horses.
15On October 15th, the appellant told Dr. Gaw that she no longer had her permission to speak to Inspector Brule about the animals’ condition.
16On October 17th, Inspector Brule attended at the property with a search warrant. The intent was to look for the remains of a dead horse on the property and to check the condition of the other animals. She observed that the bedding was present in the chicken coop and nesting boxes were available. The horses’ hooves had been cared for and the hay sample was provided. In all, 20 orders were issued/modified/revoked on that date.
17On October 24th, Inspector Brule applied for an “Animal in Distress” warrant under s. 12(1) of the OSPCA Act, which was denied. The Justice of the Peace noted that several orders were in place which allowed the inspectors to go on site to determine if the appellant had complied with the orders. On October 25th, Inspector Brule attended again and modified 14 orders and issued two new ones. This was followed by another attendance by Inspector Brule on October 31st. On November 1st Inspector Brule issued 15 modified orders. On the same date, the appellant emailed Inspector Brule to say that the original orders had been complied with, that the veterinarian could supply a report to her, and that Inspector Brule was no longer allowed on the property. I do note that the appellant never appealed any of the compliance orders issued between September and November 1, 2019.
18On November 2nd, Inspector Brule received a telewarrant under s. 12(2) of the OSPCA Act allowing the OSPCA to enter the property to determine if any animal was in distress.
The Removal
19Inspectors Brule and Lapping, accompanied by several OPP officers and Dr. Bruce Robertson attended at the appellant’s property at approximately 9:15 am on November 4, 2019, as per the telewarrant. Dr. Robertson made observations of the chicken coop, noting that there was no food or water available, that the bedding was soiled, and that the nesting boxes were dirty. He noted that the duck appeared underweight as did the horses, cows, and the sheep. Based on his observations, his recommendation was that all animals be removed to alleviate their ongoing distress, based largely on his assessment of the inadequate environment in which the animals were living. The inspectors concluded that the compliance orders had not been satisfied, particularly in relation to those orders that required shelter and bedding for the animals. Arrangements were then made for the animals’ removal. Transportation of the animals was not completed until approximately 7 pm that day.
20In addition to the removal, further Provincial Offences Act charges were laid against the appellant, Mr. Montigny, and Ms. Haggart on November 8th. There was no evidence before me regarding the outcome of those charges. An “Order to Keep” the animals was issued by a justice of the peace on November 12, 2019 under s. 14 (1.1) of the OSPCA Act. By February 8, 2020, all animals were ready to be released by the respondent, but for one horse and one cow which were in late stages of pregnancy. It was anticipated that they too could be released once they gave birth. The animals were deemed to be in good health with an appropriate body condition score.
21Inspector Brule attended before the Justice of the Peace again on February 25, 2020. At that time, the Justice of the Peace declined to grant an order to return the animals given the outstanding provincial court matters and the prohibition order. The Order to Keep was renewed and expired on April 14, 2020, at which time the Accounts were delivered to the appellant.
22I note that the respondent takes the position in this hearing that none of the animals can be returned to the appellant, even if she were to pay the Accounts, given the current prohibition against owning or caring for animals. The respondent submits that it is not in the best interests of the animals to remain in the care of Animal Welfare Services for an indefinite period, and it is unfair that the appellant continues to incur costs associated with the care of the animals, given the prohibition order. Ms. Canivet is seeking to have the animals returned with no account payable to the person (Ashley White) whom she states was to take the animals on November 4, 2019.
Issue 1: Was the removal appropriate and in accordance with s. 14 of the OSPCA Act?
23As noted above, Dr. Robertson attended at the appellant’s property on November 4th. He testified that he was there to assist the animal welfare inspectors to determine if their orders had been complied with and to provide guidance regarding the general condition of the animals, their shelter and care, and whether they were in distress as per the OSPCA Act. After an assessment over a two-hour period, he issued a Certificate of Veterinarian under s. 14 of the OSPCA Act. The Certificate stated, with respect to all “cattle, horses, chickens, one duck, and one sheep” that it was his opinion that the “health and wellbeing of the animals necessitates removal of the animals to a proper place where the animals can be provided with food, care and/or treatment in order to relieve the animals from distress.’”
24The appellant in cross examination questioned Dr. Robertson’s qualifications. I accepted him as an expert. He has been licensed as a veterinarian since 1994. In the past nine years, he has focused his practice on veterinarian forensics, testifying before courts and tribunals on issues of animal care and providing guidance to animal welfare officials on enforcement under the legislations as well as guidance on shelter and general care for animals.
25In general, Dr. Robertson noted that the animals were of poor body weight. The horses, for example, had a body condition score of between 2 and 6, with a score of 5 indicating “moderate condition.” Three of the horses had no water and minimal hay available to them. The horses had no effective shelter from the weather. Adequate bedding for the animals was absent. Dr. Robertson stated that if shelter and bedding had been adequate and the issue was only the animals’ body condition, he would not have ordered their removal. What was of concern, and supportive of his determination that the animals were in distress, was the lack of shelter and protection for the animals with winter’s arrival, as well as the lack of good quality food. These were not issues, in his view, that could be alleviated by an owner in a timely manner. Dr. Robertson acknowledged that animals experience stress in the removal process, as highlighted by the appellant, but stated that the “distress” he noted existed prior to the actual removal on November 4th.
26In addition to Dr. Robertson, Dr. Gaw provided evidence. While she was not present on November 4th, she had recently provided veterinary care to the appellant’s animals, and on more than one visit. Her evidence was given considerable weight. She had been engaged by the appellant in the weeks prior to the removal and had the opportunity to assess and monitor the animals’ condition through that period. Her reports provide detailed and balanced information in relation to the animals. When she attended on September 19, 2019, she noted that the cows were in adequate condition, though at least one was of less than ideal body weight. At that time, the cows could take shelter from the trees in the paddock, but she noted that there was no formal building or lean-to provide shelter from the elements. Three of the horses were in adequate body condition, but seven were underweight and/or needed dental care, deworming, and access to good quality hay. She recommended that one of the horses, Taffy, be euthanized within the week due to her poor health and emaciated condition. Another horse, Essie, was suffering from pneumonia and required antibiotics. Dr. Gaw made several notes about the need for shelter for the animals given that winter weather would soon be arriving. By September 26th, adequate shelter had been built for two of the horses, Abby and Essie.
27On October 9th, Dr. Gaw attended again. She did some dentistry work on a couple of the horses but noted that some water buckets were empty and some of the horses were still underweight or losing weight. One of the horses, Luna, was pregnant and Dr. Gaw advised the appellant that if Luna was not provided with adequate shelter, bedding and nutrition, especially in the cold weather, she could die. Dr. Gaw recommended that Luna foal on another property.
28Dr. Gaw’s last visit to the property was on October 30th. At this time, some of the animals were slowly gaining weight. She made several observations at this visit. One of the cows was in the late stage of pregnancy and Dr. Gaw noted that she needed to be moved to warm dry shelter and not be permitted to calve in the mud. Dr. Gaw noted that some of the horse hay was of low protein content, some of their bedding was damp and stalls needed cleaning. At this point, Essie the horse had died and Dr. Gaw opined that her emaciated condition directly contributed to her death.
29Much of Dr. Gaw’s attention was focused on the horses. She did note on October 30th that some of the thin horses had started to gain weight, which was brought about by only by “general management initiatives”- mainly proper nutrition, dentistry, and internal parasite control. She stated that had the changes been initiated earlier, the horses would not be in the poor condition that they were in at that time. Dr. Gaw expressed concern about the thin horses not having shelter and how they would fare in the winter. She had earlier provided an October 31st deadline (the date by which they generally have snow in this area) for shelter to be provided to all of the thin horses and that was not being provided in time. She stated that she made her recommendation to the appellant not to make things difficult for the appellant but because that is what the horses needed; they needed shelter before it became too cold to aid in their weight gain before winter. Being exposed to cold, as Dr. Robertson also noted, puts the animals who are underweight at risk.
30The impact of Dr. Gaw’s evidence is that it supports, particularly in relation to the cows and horses, Dr. Robertson’s conclusion on November 4: the lack of adequate shelter and bedding for the animals, in the condition that they were in, even with a degree of weight gain in some, was a critical element in a finding of “distress.” Where the evidence is somewhat less compelling is in relation to the chickens and the duck. Dr. Robertson had no recall of the duck and though he noted the chickens were too thin, and the heat lamp for the chickens was, at that time, not plugged in, there was shelter for them. However, the bedding for the chickens was soiled and the nesting boxes were dirty. Dr. Robertson testified that the “environmental conditions” for all animals at the property, viewed broadly, resulted in the animals’ removal.
31Based on the evidence, I find that the removal of all of the animals, given the evidence of distress, with the exception of the duck, about which there is no specific evidence, was appropriate and met the conditions for removal set out in s, 14 of the OSPCA Act: the animals were in distress and compliance orders, especially in relation to shelter, had not been satisfied.
32Two of the appellant’s witnesses, Mr. Montigny and Hannah Veaudry (the appellant’s daughter), testified about the actions of the officers when the animals were removed and whether they provided the proper paperwork for the removal of the animals. Their recounting of events suggest that this was a stressful day for the appellant and her family, with an element of chaos in the removal of so many animals under emotional circumstances. However, this does not detract from the conclusion that the animals were in distress as found by Dr. Robertson and their removal was warranted under s. 14 of the OSPCA Act.
33Another key aspect of the appeal is Ms Canivet’s assertion that the animals should not have been removed by animal welfare services because they were being given to Ashley White, who has known the appellant for many years, but the inspectors would not listen to her nor would they look at her agreement with Ms. White. I do note that Dr. Gaw stated in her evidence that the she told the appellant that she either had to provide shelter for the animals or board them elsewhere so they could be properly sheltered. However, Inspector Brule testified that at no time did the appellant state that she was intending to relinquish the animals to someone else.
34As noted, there was no appeal of the removal order, so one cannot assess at this point whether the respondent, had it been given the opportunity to evaluate the suitability of an alternative shelter of the animals, would have taken the action it did, and in the context of the appeal of the Accounts, whether it needed to incur the costs that it did for the animals’ care. Ms. White gave evidence that she had been approached by the appellant to take her cows and her horses. She also stated that the appellant told her she had listed a couple of the horses for sale and that if Ms. White wanted to sell them, she could re-list them. Ms. White stated that she was intending to pick up the animals with her trailer on November 4th. However, she was running late that morning and when she spoke to the appellant on her way there, the appellant told her that the animal welfare services were stealing her animals. At that point, Ms. White returned home.
35I do not accept the evidence about alternate shelter arrangements having been made prior to the removal on November 4th, principally because of the inconsistency between the appellant’s assertions and Ms. White’s evidence. The appellant referred to an agreement between Ms White and herself that she tried to show to the inspectors, but Ms. White stated on cross examination that there was no agreement on paper; they shook on it. Ms. White stated in her evidence that the appellant had listed some animals for sale, yet there was no mention of that by the appellant herself. And there was no evidence given by Mr. Montigny, the appellant’s partner, about an agreement, written or otherwise, with Ms. White, nor of any potential sale. I do accept the evidence of Inspector Brule that there was no indication from the appellant that arrangements had been made for the animals to be moved elsewhere on November 4th.
Issue 2: Are the Accounts reasonable?
36The Accounts cover the period from November 4, 2019 through to April 17, 2020, totaling $60,625.13. The most significant portion is the boarding costs of approximately $43,000. Inspector Brule testified that the boarding costs for the horses and cattle are approximately $500 per animal per month. In addition to these costs, some of the animals incurred veterinarian costs such as dental treatment and care for the pregnant animals. Additional costs were incurred for minerals and supplements to assist the animals in their weight gain. The appellant did not lead any evidence to challenge the amounts claimed, though in submissions did question the need for some of the veterinarian examinations that were described in the detailed invoices provided to her.
37Based on the evidence before me, I find that the Accounts claimed were incurred as a result of the care of the animals following their removal and were reasonable and necessary, but for any costs related to the duck, which cost is to be itemized and deducted from the account.
Payment of the Accounts and return of the animals
38Inspector Brule testified that typically, upon payment of a statement of account, animals are returned to the owner. However, she stated that in this instance, return of the animals to the appellant is complicated because of the prohibition order. The respondent would need to be satisfied that the animals could be returned to an alternate approved shelter and not to the care and custody of the appellant or Mr. Montigny. I do note that it is not within my jurisdiction to decide on the impact, if any, of the appellant’s appeal on the prohibition order. However, the respondent will have to determine to whom the duck is to be returned if and when payment is made.
39The appellant submits that the animals should be returned to Ms. White at no cost. For the reasons set out in paragraph 34 above, I do not accept that submission. I am not persuaded by the evidence that the appellant had made arrangements to relinquish the animals to Ms. White on November 4th. However, if, upon payment of the accounts, Ms. White can satisfy the respondent that the animals can be properly sheltered and cared for at her property, they may consider the animals’ return to her care.
CONCLUSION
40For the reasons set out above, I find that the removal order was appropriate and that the appellant is liable for the payments of the Accounts. This is a result that may disappoint the appellant and may well reinforce her sense, as stated in her closing submissions, that no one is willing to look at her side, that she has been targeted in her local community, that the animal welfare inspectors are corrupt and have run roughshod over her rights. The appellant suggested during the course of the hearing that the animal welfare inspectors improperly exercised their authority in this matter. There was no evidence to support this suggestion; the inspectors were acting within their statutory authority. I found no evidence of malintent by the respondent. The respondent has a mandate under the legislation to ensure the protection and welfare of animals and was acting in accordance with that mandate on November 4, 2019. Nor did I find evidence of any intentional neglect or mistreatment by the appellant of her animals. Her submissions reflect the fact that the animals are important to her. But the evidence also indicated that despite efforts made to care for her many animals (and some progress was made under the direction of Dr. Gaw), the appellant appeared to lack the ability and resources necessary to provide the requisite shelter and care for the animals, resulting in their distress as defined by the OSPCA Act.
ORDER
41For the reasons set out above, the Board orders as follows:
The appeal of the Statements of Account is dismissed and the Accounts are confirmed.
The appellant is required to make payment as set out in the Statements of Account, after deduction of all costs associated with the care of the duck.
Released: August 13, 2020
Patricia McQuaid, Vice-Chair