ANIMAL CARE REVIEW BOARD

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-11-18

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

Between:

Brooke Rumm Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Harriet Lewis Member Animal Care Review Board

Appearances:

For the Appellant: James Lisowski, Counsel For the Respondent: Connie Mallory, Representative

Held by videoconference: October 29 and 30, 2020

OVERVIEW

1This in an appeal under Section 38(1) of the Provincial Animal Welfare Services Act 2019 (the PAWS Act), of the decision for the removal of animals made on August 14, 2020, by Daniel Pazder (Inspector Pazder), an Animal Welfare Inspector. Inspector Pazder removed 18 adult dogs and 9 puppies from the trailer home of the appellant Brooke Rumm, (Ms. Rumm), on the grounds that they were in distress. The dogs have been in the custody of the respondent since then and housed at the Kawartha Humane Society’s shelter.

2The animals are all small mix-breed dogs, described by Ms. Rumm as Jack Russells and Chihuahuas. The trailer from which they were removed is the home of Ms. Rumm, who currently has no fixed address.

3On the date of the removal, Ms. Rumm had parked her trailer in a lot adjacent to the Lindsay Ontario Courthouse, where she was to appear at 9:30 a.m. for her trial of an earlier Criminal Code charge of “failing to provide adequate food and water and care while having custody of a domestic animal”.

4When she went to the shelter on August 21, 2020, to visit the dogs, she was served by Inspector Pazder with a Statement of Account for their care. The account was updated as of October 30, 2020 and delivered at the hearing of this matter. The amount shown on that Statement of Account was $71,278.20.

5On August 21, 2020 Ms. Rumm was also charged under the Criminal Code with “cruelty to animals” and “willful neglect to provide suitable and adequate care for a dog”. She was released on bail with several conditions, including that she not “own, have custody or control of, or reside in the same residence as an animal or bird.”

6A Notice of Appeal of the removal of her dogs was filed by Ms. Rumm on August 28, 2020, asking that the dogs be returned to her and appealing the August Statement of Account on the basis that its is unreasonable.

ISSUES TO BE DECIDED

7The issues to be decided by the Board are as follows:

• Was the removal appropriate, that is, were the animals in distress at the time of removal?
• Should the animals be returned to Ms. Rumm?
• Is the Statement of Account of October 30, 2020 the one under appeal and is it reasonable?

RESULT

8For the reasons which follow, I find that the removal order was appropriate. I decline to order the return of the animals to Ms. Rumm. I find that the October 30, 2020 Statement of Account is appealed and that it should be reduced to reflect inconsistencies in the evidence.

LAW

9The PAWS Act, s. 28(1) allows an animal welfare inspector to enter and search a place with the consent of the occupier if the inspector believes on reasonable grounds that an “animal in distress” is to be found there.

10Section 31(1)(a) gives an animal welfare inspector the power to remove an animal in distress from a place for the “purposes of providing it with necessaries to relieve its distress” if, among other things, “a veterinarian has advised the inspector in writing that alleviating the animals distress necessitates its removal.”

11Distress is defined in s. 1(1) as “a 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.”

12Section 38(1) provides a right of appeal of a decision for removal by an animal welfare inspector and s.38 (2) allows an appeal of a statement of account.

13Section 38(9) gives this Board authority after a hearing to:

• order that an animal be returned to the owner and
• confirm, revoke or vary a statement of account served under ss. 35(1).

EVIDENCE AND ANALYSIS

The events leading to removal the of the animals:

14Inspector Pazder and Dr. Bruce Robertson DVM testified on behalf of the Respondent and Ms. Rumm provided testimony on her own behalf.

15At 9:30 a.m. on August 14, 2020, Ms. Rumm arrived at the Lindsay Ontario courthouse with her trailer for her trial on outstanding charges relating to her care of animals. Her animals were in the trailer. According to her evidence, when she left the trailer to go to the trial, she left two hatches and a window in the trailer open, and a fan running to provide a breeze because it was expected to be a hot day. She had 27 dogs and puppies in the trailer. She recalls that she left the 9 puppies in two crates with their mothers and left 9 other dogs loose. The remaining dogs were in crates.

16At sometime between 11 and 12 o’clock when court recessed, she went outside to tend to the animals. She was met by a police officer at the trailer who advised that the police had received a report of concern about the dogs in the trailer .Although Ms. Rumm believed that the dogs were fine, to placate the officer she opened the trailer door and a window and began taking each of the dogs out for a walk and a drink of water from a bowl which she filled and placed outside.

17At 12:30 p.m. an Assistant Crown Attorney at the courthouse contacted Inspector Pazder by telephone and expressed concerns about the welfare of the animals in the trailer, both because of the heat of the day and the strong animal odour coming from the trailer.

18Inspector Pazder is an experienced Animal Welfare Inspector who has worked in animal inspection and control since 2012: first as an agent with the Ontario Society for the Prevention of Cruelty to Animals, and since 2019 as an Animal Welfare Inspector appointed by the Chief Animal Inspector. In addition to his inspection training and years of experience, he is a registered veterinary technologist.

19When Inspector Pazder arrived at the Lindsay courthouse parking lot, Ms. Rumm was outside the courthouse walking a dog. He introduced himself to her and told her about the complaint that had been received. Ms. Rumm denied that there was a problem and immediately wanted to show Inspector Pazder her dogs. Inspector Pazder asked Ms. Rumm to sign a consent form and advised her of the parameters around seizure of the dogs if he were to find the dogs in distress. Ms. Rumm was reluctant to provide written consent, but she took the form and went into the court house to speak with her lawyer who was there for her trial. After receiving his advice, she told Inspector Pazder that she would sign the form but first wanted twenty minutes alone in the trailer with the animals. Ms. Rumm went into the trailer for some shorter time. When she came out of the trailer, she signed the consent, answered a COVID questionnaire and then accompanied Inspector Pazder into the trailer.

20Inspector Pazder said that while waiting outside the trailer he noticed a strong smell of animal urine. Prior to entering, he put on a facemask and sprayed his shoes with disinfectant. His testimony about his observations in the trailer was illustrated by a series of still photographs and a video he took while on a video call with Dr. Robertson. The photographs and the video were made exhibits in this proceeding.

21Inspector Pazder was in the trailer with Ms. Rumm for three or four minutes, during which time he observed the following:

• It was extremely noisy inside the trailer with dogs barking.
• Several dogs were loose, standing on furnishings and on the top of the cages and crates which were both on the floor and stacked on top of each other.
• He took temperature readings at various places on both sides of the trailer with a digital temperature gun. The temperature reading ranged from 30 to 34 degrees Celsius. He showed Ms. Rumm the 34-degree reading. The heat caused him to begin to sweat profusely.
• There was more than one dog in most of the containers with little or no room in the containers for the animals to stand up, move or stretch out without touching the container roofs or sides.
• There were no water bowls in the cages nor on the floor.
• Although there did not appear to be much urine or feces on the floor, the smell inside the trailer was so strong that he found it difficult to breathe. The animals themselves were smelly.

22Immediately on exiting the trailer, Inspector Pazder made a video call to Dr. Robertson, and showed him the contents of the trailer by moving his phone around the inside through the half open doorway. He and Dr. Robertson then discussed what they had observed. Dr. Robertson concurred that because of the obvious over-crowding, the reported high temperature and the general living conditions of the dogs, they were in distress and he agreed to issue a certificate to that effect for their removal. Immediately thereafter, Dr. Robertson completed a certificate and sent it to Inspector Pazder who advised Ms. Rumm and her lawyer of the decision to remove the dogs. By then it was early afternoon and Inspector Pazder recalled that the weather network had reported that the temperature forecast was 29 degrees Celsius with a humidex of 35.

23According to Inspector Pazder, the removal to the shelter went smoothly. Ms. Rumm fully cooperated with the relocation of the dogs by driving her trailer down the street to the Kawartha Humane Society building and assisting in sorting and settling the dogs in the shelter’s kennels. This took some time because of the number of dogs involved. At 3:15 p.m. that day Inspector Pazder served Ms. Rumm with the Notice of Removal of Animals.

Dr. Robertson’s examination of the dogs

24Dr. Bruce Robertson, testifying as an expert witness for the respondent, has practiced veterinary medicine in Ontario since 1994. His qualifications as an expert in veterinary medicine and a specialist in forensic and shelter medicine were not questioned by the appellant’s counsel. He has frequently testified before courts and tribunals on issues of animal care and shelter practice. I accept his evidence as that of an expert.

25Dr. Robertson recounted his observations of the dogs in the trailer, as seen in the video call with Inspector Pazder. While in similar cases he would have attended at the site in person, he was on that date completing a period of self- isolation due to the COVID pandemic. He was able to hear loud barking and clearly see the small space within the trailer, the overcrowding, the confinement of multiple animals in unsuitable containers, the thin body condition of the dogs and the urine staining on the feet of some of them. He confirmed that Inspector Pazder told him that the interior temperature of the trailer had been as high as 34 degrees notwithstanding that some vents and windows of the trailer had been opened by Ms. Rumm when she came out of the courthouse to tend to the dogs some time before.

26Dr. Robertson described the danger of the dogs overheating given the number of dogs that were present in the confined space of the trailer, which he compared to confinement in a motor vehicle. He recalled Inspector Pazder telling him of his respiratory distress after only a few minutes in the trailer. He stated that was likely caused by the ammonia and other vapours from dog urine and feces present in the air He also noted that there were no visible water bowls in the containers or elsewhere in the trailer.

27Based on his observations and the information received from Inspector Pazder, it was Dr. Robertson’s firm opinion that unsuitability of the dogs’ circumstances was “blatant” and that the dogs were in distress due to excess heat, poor air quality, overcrowding and generally unsanitary conditions. He did not hesitate to conclude that they should be removed from the trailer to alleviate the distress and for further assessment and care. He immediately prepared a certificate to that effect and sent it electronically to Inspector Pazder. The certificate was tendered as an exhibit in this proceeding.

28On August 18, 2020, when his isolation period had concluded, Dr. Robertson attended at the shelter and did a triage examination of the dogs. Some were poorly socialized and difficult to examine. The dogs had overgrown nails and urine staining on their feet, and were generally thin, but he was pleased to find no specific medical concerns. Thirteen of the dogs scored between 3 and 4 on a 9-point scale for weight, and several had underdeveloped hind legs likely due to insufficient exercise. The dogs were weighed by the shelter on August 14 on intake, on August 18 when Dr. Robertson attended to them, and again on September 4. The adult dogs showed an average weight gain of 17% during that time, indicating an improvement in body condition. The puppies had gained 75% of their weight, much of which Dr. Robertson attributed to growth rather than improvement in body condition.

Ms. Rumm’s evidence

29Ms. Rumm provided her evidence in an intelligent and articulate manner. Although there were times in her testimony where she could not recall dates or times, became confused or contradicted her evidence, she was clear on numerous details concerning her animals. It is very clear that she is devoted to them.

30Since January 2019 she has lived alone in a trailer with her animals. She made references to her history with animal care authorities by speaking of her presence in court on previous charges and the personality change of one of her animals which had been removed to a shelter and subsequently returned to her.

31Her testimony included a detailed description of her close relationship with her dogs, and particularly with the two older dogs which are the parents of most of the others. She admitted that her life in the trailer with the dogs was not ideal but maintains that she is able to take good care of her animals notwithstanding the admittedly crowded circumstances. She referred to spending time in the past year travelling in Western Canada with her trailer and the dogs, but recently has been spending time in Quebec and in camp grounds near Belleville, Ontario.

32She denied that her dogs were in distress and maintains that their removal was not justified. She doubted Inspector Pazder’s evidence that the temperature in the trailer was as high as 34 degrees at the time of the inspection. She believes that the open window and vents and the fan provided sufficient ventilation. She was wearing a sweater that day but did not find the inside of the trailer too hot. She said that both she and the dogs are most comfortable with an air temperature of between 80 and 84 degrees Fahrenheit and that she generally keeps her home heated to that temperature.

33She did not deny that there were no water bowls in the cages and crates. She noted that the dogs that were walked during the court break had the opportunity to drink from a water bowl which she put outside of the trailer. Not all were thirsty because she had mixed water in with the dogs’ kibble when she fed them early that morning.

34She described her routine while camping with the dogs, which included regular swims, fresh air and exercise.

35Over the spring and summer of 2020, as a result of complaints, she had had two visits from another local animal welfare inspector. Rather than remove the dogs, he had imposed conditions on her with respect to cleanup and disposal of animal waste. She had complied with those conditions.

36The redacted bank statement she provided in evidence showed expenditures for the premium dog and puppy food that she fed to the animals. She delivered her remaining 3 bags of the food to the shelter when the animals were removed.

37She also provided, as evidence, copies of rabies vaccination certificates for 14 dogs and distemper vaccination certificates for two of them. None of the dogs are spayed or neutered but Ms. Rumm indicated that she had intended to have that done when she could afford to and when her veterinarian was able to do the procedures.

38She admits that 27 animals are too many, relative her ability to look after them as she would like to do. She said that a more desirable number would be 20. She acknowledged that in 2019 she had only two dogs, had subsequently bought another, and that she bred the rest of the ones that were removed. She recounted that one of the current litters was a mistake: the result of an unplanned mating when a male dog escaped his crate.

39Ms. Rumm considers herself to be a dog breeder although she is not licensed as one. She said that she has sold dogs and puppies in the past and had intended to sell the current puppies or to give them away. She has also sold or given away other of her animals from time to time. She has delivered puppies to licensed breeders for sale on her behalf. She expressed the intention of limiting or ending her breeding program in the future by having all of the dogs she keeps, spayed or neutered.

Analysis

40Ms. Rumm ‘s life is centred on her dogs. She spends most of her time, attention and finances on maintaining them. However, it is clear from the evidence that her current living circumstances are unsuitable and unsafe for her animals and quite possibly for herself.

41Ms. Rumm’s counsel argued that given that none of the animals were ill, the more appropriate action would have been to issue a compliance order addressing the concerns. I do not agree. The pictorial and oral evidence is clear that the conditions in which the dogs were living were far from the accepted and expected standards for properly keeping animals. I find that the temperature in the trailer, the dogs’ confinement, the overcrowding, general poor sanitation and limited ability for movement was such that the animals were in distress and that their removal to relieve their distress was warranted.

Should the animals to be returned?

42Counsel for Ms. Rumm urged me to order the release of all or some of the dogs, to take effect when the terms of Ms. Rumm’s bail on her most recent criminal charges was modified to permit her custody of animals.

43There was no viable plan presented for Ms. Rumm’s future care of any dogs that might be released to her if or when her bail conditions may be lifted. In terms of altering her living circumstances, Ms. Rumm spoke only of her intention to get a new trailer for her and the dogs, to reduce her number of dogs to twenty from twenty-seven, and to have them all spayed or neutered. I do not find that a credible or suitable plan to ensure the animals’ wellbeing.

44Her proposed future living arrangement is not materially different from the one considered in this appeal and does not address any of the issues that led to the circumstances of this case.

45As to the submission that an order could be made in anticipation of the removal of bail conditions, I note that there was no evidence before me as to when any of the criminal charges against Ms. Rumm will be disposed of, or what penalty or restrictions would be imposed were she to be found guilty of all or some of those charges. Her current bail conditions do not allow her to have any animals, and I have no basis on which to make an order dependant on circumstances which may or may not arise in the future.

46Ms. Rumm did not provide any evidence that she had arranged with a third party to receive and shelter the animals should they be released by an order on this appeal nor did counsel make any submission to indicate that was to be arranged.

47I therefore decline to make an order for the release of the animals.

Is the Statement of Account dated October 30 reasonable?

48Ms. Rumm appeal states that the Statement of Account served on her on August 21 is unreasonable.

49That account, as well as an account October 30, 2020, were tendered and accepted in evidence. Each was issued pursuant to ss 35(4) of the Paws Act for the “necessaries provided to the dogs in care”. Each contained a statement informing the recipient of the right to appeal the account, and as is required, quoted s. 35(4) of the PAWS Act which notes that if the account is not paid in a timely way, the animals may be forfeited to the Crown.

50As the October 30 account is the most recent, I have considered it as representing the respondent’s claim for payment and consider it as having been appealed. The items noted on the accounts purport to reflect the amounts paid since the removal, for the care of the dogs. They include a daily amount for each of the dogs and the puppies and charges for bathing, deworming, vaccines and nail trimming as well as “miscellaneous charges”. The total claimed in that account is $71,278.00.

51No specific submissions were made by Ms. Rumm’s counsel in respect to the Statements of Account at the hearing. Notwithstanding, I have reviewed both accounts and comment as follows:

• The per diem boarding fees appear reasonable in the circumstances given the number of dogs which required accommodation and attention. However, the October 30 account refers to charges for “1 Litter x $25 per day x 56 days”, indicating a litter born to one of Ms. Rumm’s dogs after removal. Based on that number of days, the litter would have been born in early September and the mother would have been pregnant at the time of removal. Dr. Robertson did not comment on examining a pregnant female dog on August 18, nor to the later birth of a litter. Ms. Rumm did not comment on a pregnant dog nor did Inspector Pazder. comment on a pregnancy or a litter. If a dog had been pregnant or a litter born, in these circumstances I would have expected some testimony or evidence of those facts to have been provided. Since neither was the case, I conclude that the inclusion of an amount of $1,400 for care of a litter was in error and that amount should be deducted from the account.
• The bathing and trimming services provided for the dogs addressed the condition issues identified by Dr. Robertson who also confirmed that the vaccinations and worming were standard shelter practice. The account of August 21 shows these as totalling $430. but the final account indicates a charge of $1,475. This increase is not explained, but it is possible that some of the additional cost was for later vaccination of the puppies that were too young for vaccinations at the time of intake. It was not challenged, so I will allow it.
• An account from Dr. Robertson for evaluating eighteen dogs and nine puppies on August 18, 2020 in the amount of $1,120. including HST, was included with the Respondent’s materials. This charge did not appear as an item on the accounts of August 21 or October 30 and therefore I will not allow it. The item entitled “miscellaneous costs” on the October account is not explained and therefore not allowed. The earlier statement of August 21 showed miscellaneous costs for intake of $72.00 which I will allow.

52Given the foregoing adjustments, I find that an account of $69,295.00 for costs incurred is justified in the circumstances and that Ms. Rumm is responsible for the payment of that amount.

ORDER

53For the reasons set out above, the Board orders as follows:

1. The decision to remove the animals pursuant to s. 31(1) of the Act is confirmed.
2. The appeal of the Statement Account dated October 30, 2020, is dismissed, and the account is varied, to the amount of $69,295.00.
3. The appellant is required to make payment within 10 days as set out in the Statement of Account as varied.

Released: November 18, 2020

_______________________

Harriet Lewis Member