Tribunals Ontario
Animal Care Review Board
Tribunaux décisionnels Ontario Commission D’étude Des Soins Aux Animaux
Appeal under section 38(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c.13.
Between:
Amanda Steele Appellant
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Adjudicator: Marisa Victor, Member
Appearances:
For the Appellant: Stephen Gehl, Counsel
For the Respondent: Michael Draper, Agent for the respondent
Telephone hearing: January 15, February 23, 24, 25, March 2, 8, 12, 15, 19, 23, 2021
REASONS FOR DECISION AND ORDER
A. OVERVIEW
The appellant’s horse, Ferrari, was removed pursuant to s. 31(1)(c) of the Provincial Animal Welfare Services Act, 2019 (‘the Act’). Ferrari is a 21-year old female thoroughbred horse which has been owned by the appellant since 2007. At the time of removal, Ferrari was boarded at a commercial boarding facility.
On December 1, 2020, Inspector Austin (‘Insp. Austin’) of the Animal Welfare Services (AWS) issued a compliance order under s. 30(1) of the Act requiring the appellant to have Ferrari seen by a veterinarian by December 4, 2020 at 9 am (the ‘compliance order’). The order was made to alleviate the distress of Ferrari, primarily relating to lymphangitis in her back right leg which led to significant swelling and pain. The appellant did not appeal the compliance order to the Board.
On December 4, 2020, Insp. Austin conducted a compliance check. She then ordered Ferrari to be removed pursuant to s. 31(1)(c) of the Act due to non-compliance with the s. 30 compliance order (‘the removal order’).
An owner may appeal a s. 31 removal order to the Board under s. 38(1) of the Act. After a hearing, the powers of the Board on an appeal are limited to those set out under s. 38(9), namely that the Board may order that an animal removed under subsection 31(1) be returned to the owner or custodian.
Ms. Steele appealed the s. 31 removal of Ferrari to the Board and requested an order returning the horse to her.
B. ISSUES
The issue before the Board is whether the Board should order the return of Ferrari to the owner, the appellant, Ms. Steele.
In order to answer the issue above, the appellant argued that the Board must consider the following questions:
a. Was Ferrari in distress at the time of removal?
b. Was Ferrari’s distress was caused by the care given at the Ridgelawn Facility?
c. Should the s. 31(1)(c) removal order be revoked based on the actions of Insp. Austin?
d. Was the appellant entitled to a revocation of the removal order under sections 38(3) and/or s. 38(4) of the Act?
e. Are there grounds to return the horse, Ferrari, to the appellant?
C. RESULT
- Based on the evidence before me, the Board declines to issue an order requiring the return of Ferrari to the owner. In answer to the questions above, I find:
a. Ferrari was in distress at the time of removal;
b. The appellant is ultimately responsible for Ferrari’s care;
c. Insp. Austin’s actions in the removal of Ferrari were in accordance with s. 31 of the Act;
d. The appellant filed an appeal of an order and did not file an application pursuant to s. 38(3) and/or s. 38(4) and therefore she is not entitled to a revocation of the removal order or return of Ferrari under those provisions; and
e. The appellant has not shown that grounds exist for the return of Ferrari.
D. PRELIMINARY ISSUES
On the first day of the hearing, I asked whether the appellant was also appealing a statement of account , and if so, whether the appeal of the statement of account had been submitted within five days of receipt as required by s. 38(2) of the Act and s. 3 of O. Reg. 447/19. Although the parties stated that this was discussed as part of a confidential settlement discussion, I was advised that no agreement was reached at the case conference to include an appeal of the statement of costs in this appeal. I advised the parties that I did not have a written notice of appeal of the statement of account before me and confidential settlement discussions could not be disclosed to me. The appellant was advised that the five-day period for appealing the most recent statement of account had not yet expired. At the next hearing date, the appeal period for appealing the statement of account had expired and no appeal of the statement of account had been filed. As a result, I advised that I would not be hearing an appeal of the statement of account and the matter would proceed on the basis of an appeal of the s. 31 removal order only.
There were several other preliminary matters that were dealt with throughout the course of the hearing. On the first day of the hearing, after a short break during the in-chief testimony of Insp. Austin, the appellant returned to the telephone hearing and advised that she was no longer represented by counsel and required time to obtain new counsel. The hearing was adjourned and the Interim Order, dated January 22, 2021, was issued. At the next hearing date, the appellant was represented by the same counsel who continued to represent her for the rest of the hearing.
There were numerous adjournment requests throughout the hearing, all made by the appellant. The appellant was advised to follow the Rules of the Board,1 requiring her to provide three available dates within the next month with each adjournment request, but did not to do so. Multiple scheduling case conferences were held in order to schedule and re-schedule the hearing as a result of the appellant’s not providing her availability. The appellant claimed she was unable to provide her availability due to the nature her work which she claimed was confidential and top secret. I advised her on multiple occasions that I did not need to know the nature of her work, but I did need her availability. I also requested a letter from her employer advising as to whether or not she was available for the hearing. The appellant failed to provide any supporting employment documentation to support her claim that she was unavailable for certain hearing dates. The Board allowed some of the adjournments on the basis that increased flexibility was required during Covid-19.
One final adjournment was requested and granted as a result of the appellant advising her counsel that she was very sick. The appellant advised that she could obtain a doctor’s note, and I accepted that offer. No doctor’s note was ever filed.
E. LAW
Ms. Steele was served with an amended compliance order under Section 30 on December 1, 2020, requiring her to have her horse, Ferrari, seen by a veterinarian by December 4, 2020, by 9 am.
Section 30 of the Act grants the AWS the power to issue a compliance order regarding an animal:
30 (1) An animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.
(2) The order shall be in writing and shall have printed or written thereon the content of subsections 38 (1), (3) and (5).
(3) The order shall specify the time within which any action required by the order shall be performed.
(4) Every person who is served with an order under this section shall comply with it in accordance with its terms until such time as it may be modified, confirmed or revoked and shall thereafter comply with the order as modified or confirmed.
Ms. Steele did not have a veterinarian attend to Ferrari by the time required in the s. 30 compliance order. Insp. Austin removed Ferrari into the custody of the AWS on December 4, 2020, pursuant to s. 31 of the Act.
Section 31 of the Act grants the AWS the power to remove an animal:
31 (1) An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if…
(2) an order respecting the animal has been made under section 30 and the order has not been complied with.
- Section 38 of the Act sets out the powers of the Board on an appeal of a s. 31 order:
38 (1) An owner or custodian of an animal may appeal the following to the Board within five business days after receiving notice of them:
An order from an animal welfare inspector.
A decision by an animal welfare inspector to remove an animal from a place.
A decision to take an animal into the Chief Animal Welfare Inspector’s care.
After a hearing, under s. 38(9) the Board has the following power:
(9) After a hearing, the Board may do one or more of the following:
Confirm, revoke or modify an order made under section 30.
Order that an animal removed under subsection 31 (1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31 (6) or 44 (8), be returned to the owner or custodian.
(10) The Board may make an order under paragraph 2 of subsection (9) subject to compliance with a further order issued by the Board in the same terms as an order under section 30, which shall be deemed to have been made under section 30 for the purposes of this Act.
Onus of Proof
Ms. Steele submits that the respondent bears the onus in this case. This would mean that the respondent would bear the onus, presumably in the negative, to show that the Board should not order the return of the animal to the owner.
Ms. Steele provided me with several Board decisions that she argued considered this question.
In Gowland v Chief Animal Welfare Inspector 2021 ONACRB 2(‘Gowland’), the Board considered an appeal relating to the removal of seven cats. In paragraph 11, the decision states “The respondent bears the burden of proving, on a balance of probabilities, that the removal of the animals was permitted under the Act and that the Statement of Account should be confirmed.” In that case, the Member considered whether the entry of the Inspector into the Appellant’s home for the purpose of the removal of the animals was lawful.
I do not find Gowland persuasive in this case. Ms. Steele did not appear to challenge that Insp. Austin issued the removal order without authority. Instead, Ms. Steele argued that the removal order was unjustified on the basis of non-compliance as Ms. Steele had made an appointment for Ferrari on December 7, 2020 and Insp. Austin should have been flexible.
Ms. Steele also raised Brooke Rumm v. Chief Animal Welfare Inspector, 2021 ONACRB 3 (‘Rumm’).That case related to the removal of 18 adult dogs and 9 puppies. The case referred to is a reconsideration of a decision. Paragraph 9 states that the onus is on the party requesting a reconsideration to establish one or more of the grounds of reconsideration.
Rumm is not helpful in this case, either to the appellant or to me. The Rumm decision determined that the appellant bore the onus of proving that grounds existed for a reconsideration. Further, the case before me is the actual hearing, and not a reconsideration of a decision.
The respondent stated that the Board has ruled in the past that it bears the onus to show that its actions in issuing the removal order were in compliance with the Act. I agree, but this is not determinative of who bears the onus with regard to whether or not the animal should be returned to the owner.
This is Ms. Steele’s appeal of the removal order. Here an appeal means that the case is heard de novo by the Board. There is no deference to any earlier decision made by the respondent. Nevertheless, I find that on the plain reading of the Act, the onus is on the appellant to show that pursuant to s. 38(9)(2) of the Act, her horse should be returned to her as the owner. Therefore, appellant must show on a balance of probabilities, meaning that it is more likely than not, that Ferrari should be returned.
That being said, in cases where an appellant argues that the removal was not in compliance with the Act, the respondent must show that its actions were lawful. I make no finding that the lawfulness of the apprehension is ultimately determinative as to whether the appellant has met her onus to show that the horse should be returned to her. However, I agree that the evidence regarding the lawfulness of the removal may be relevant evidence in determining the result of the appeal. The powers of the Board on an appeal of a s. 31 removal are limited to determining whether the animal(s) should be returned to the owner, and not whether the order for removal should be confirmed, revoked, or modified. Those are different powers that the Board has under and appeal of a s. 30 compliance order. The compliance order was not appealed. I have not been provided with any binding case law from the courts that show that the Board has greater powers than those delineated in the Act.
F. BACKGROUND AND OVERVIEW
On November 23, 2020, the appellant contacted the AWS to complain about the care her horse, Ferrari, was receiving at the stable she was boarded at, a facility run by Janet Ott (the “Ridgelawn Facility”).
Insp. Austin then began her investigation into the care of Ferrari. She contacted the appellant on several occasions beginning on November 24, 2020. Insp. Austin visited the stable on November 27, 2020 and viewed Ferrari.
On November 30, 2020, Insp. Austin tried to serve a s. 30 order on the appellant requiring, among other things, that Ferrari be seen by a veterinarian. Insp. Austin served the initial compliance order by email but did not receive a confirmation of receipt.
On December 1, 2020, Insp. Austin issued a replacement s. 30 compliance order regarding Ferrari. This order required Ferrari to be seen by a veterinarian by Friday December 4, 2020 at 9 am. She served the order personally on Ms. Steele.
On December 3, 2020, Ms. Steele moved Ferrari to a new boarding facility run by Amanda Clayfield at 1911 Urbs Road (‘Run2You Facility’).
On December 4, 2020, at 9:42 a.m. Insp. Austin arrived at the Run2You Facility. Insp. Austin then made arrangements to have Ferrari removed and taken into the custody of the AWS. She was moved to the Whispering Hearts Horse Rescue, a boarding facility contracted by the AWS to care for horses (‘Whispering Hearts Facility’).
The appellant filed a Notice of Appeal pursuant to s. 38(1) of the Act on December 14, 2020. In the Notice of Appeal, Ms. Steele stated that Ferrari had been provided with food, clean water and turnout in an appropriate field when she was moved on December 3, 2020. She stated she had made arrangements for a veterinarian to see Ferrari on December 7, 2020. She requested the return of Ferrari.
G. WAS FERRARI IN DISTRESS AT THE TIME OF REMOVAL?
APPELLANT’S EVIDENCE
Amanda Steele
The appellant testified in support of her appeal. She testified that she is 35 years old and has owned horses since she was 12 years old. Ferrari is a thoroughbred female horse, a mare, born February 26, 2000. Ms. Steel purchased Ferrari on September 2007. Before Ferrari, the appellant owned Hercules, also a thoroughbred but a gelding, whom she owned from 1999 until he passed away in 2007.
Ms. Steele agreed that she was responsible for Ferrari’s care, but that she had always boarded her at a commercial facility, never more than 30 minutes from where she was living. Ms. Steele stated that she visits her horse as often as she can and has never let more than 2.5 weeks pass between visits.
January 2020 to July 2020
The appellant testified about the various boarding facilities Ferrari had been boarded at in 2020. At the start of 2020, Ferrari was boarded at facility called Pine Hollow. In cross-examination, Ms. Steele stated that the care Ferrari received there had been good for the preceding nine months. However, in April 2020, Ferrari had a tying-up episode, meaning she had severe cramping of the large muscles. Ms. Steele believed this episode was caused by Ferrari was not getting adequate exercise or turnout. Ms. Steele contacted AWS to make a complaint because she was not allowed on the property at the boarding facility in order to take care of Ferrari’s needs.
Then on May 1, 2020, Ferrari was moved to a facility in Puslinch (‘Puslinch Facility’). Ms. Steele testified that she was told by the Puslinch Facility on July 18, 2020 that Ferrari’s right hind leg was puffy and swollen. At the time, Amy Bennett of Bennett Equine was Ms. Steele’s veterinarian. Ms. Steele contacted Dr. Bennett, but she was not available to come see Ferrari. Ms. Steele then contacted an on-call emergency veterinarian. Ms. Steele testified that the emergency veterinarian refused to come out and assess Ferrari. As a result, Ms. Steele made a call to the AWS regarding Ferrari’s care. She also began proceedings against the emergency veterinarian through the Ontario Veterinary College (‘OVC’).
Ms. Steele testified that she finally was able to get a ride to the Puslinch Facility on July 21, 2020. Ferrari had a fever of 103 degrees and appeared depressed. There was a cut on her right rear leg. Ms. Steele stated that she was hysterical and called her veterinarian, then called the police and a tumultuous situation resulted. Ms. Steele was concerned that Ferrari had been given Banamine, a nonsteroidal anti-inflammatory drug (‘NSAID’), and that that drug did not sit well with Ferrari as she had previously suffered colic as a result of the drug.
In cross-examination, Ms. Steele confirmed that she since Ferrari’s initial injury in July 2020 she had not had a veterinarian attend on her own behalf to assess.
Ms. Steele also stated that she tried to get Ferrari out of the Puslinch Facility, where Ferrari had been from May to July, because the operator was deceptive and claimed Ms. Steele owed her money.
July 2020 to October 2020
- On July 27 or 28, 2020, Ferrari was moved to the Ridgelawn Facility run by Janet Ott. The appellant testified about the conditions of boarding she arranged with Ms. Ott including:
a. Outdoor turnout;
b. Brought into a stall at night;
c. Ms. Steele to provide high fat feed to Ms. Ott for daily feedings; and
d. Provide two feedings a day as Ms. Ott stated that they could not provide three a day.
Ms. Steele testified that from July 2020 to September 2020, Ferrari’s leg got better once she was on antibiotics and proper medication. Ms. Steele testified that Ferrari was doing better in August when the antibiotics were discontinued.
Ms. Steele testified that on September 16, 2020, Insp. Stratas of the AWS came out to see Ferrari as a result of a report to the AWS by Janet Ott regarding Ferrari’s wellbeing. Ms. Steele was not present for that visit. She received information that a veterinarian had examined Ferrari and, in relation to the lymphangitis in Ferrari’s back right leg, had recommended increased exercise, Previcox as needed, but no antibiotics. Ms. Steele was told by Insp. Stratas that she had no further concerns and that the AWS file would be closed.
In cross-examination, Ms. Steele confirmed again that she did not have a veterinarian inspect Ferrari on her own behalf. She testified that since the AWS veterinarian only prescribed Previcox “as needed” she did not continue it. Previcox requires a prescription and she had no veterinarian. Ms. Steele also stated that she was not going to keep Ferrari on Previcox. She stated she believes Previcox makes Ferrari feel ill. In re-direct questioning, Ms. Steele clarified that she could have obtained Previcox if she had wanted it.
November 2020
Ms. Steele testified that she was unhappy with the care Ferrari was receiving at the Ridgelawn Facility, particularly the feed she was receiving and the paddock she was being provided for turnout.
Ms. Steele testified that in November 2020, she visited the Ridgelawn Facility twice a week but needed a police escort to attend due to the volatile situation between she and Ms. Ott.
Ms. Steele testified that she had significant communication problems with Ms. Ott. Ms. Steele stated that she would write or text Ms. Ott but would not get a response. There were disputes about money, about Ferrari’s feed and the care of Ferrari. In cross-examination, Ms. Steele stated that to say she was unhappy with the situation with Ms. Ott was an understatement.
Ms. Steele stated that she visited Ferrari on November 3, 7, 15 and 19, 2020. Ms. Steele testified that when she visited, she treated Ferrari’s leg. She would wrap the leg and hand walk Ferrari. Ms. Steele testified that she would wrap the leg at night and then pay another horse boarder to unwrap the leg in the morning. Ms. Steele complained that that service should have been provided by the boarding stable. In cross-examination, Ms. Steele agreed that she wouldn’t necessarily know the effectiveness of the supportive wrapping treatment because she was not there to take it off.
On November 23, 2020, Ms. Steele contacted the AWS because she was concerned Ferrari was not being brought in in the evening. She stated that her complaints were that Ferrari:
a. Was not given shelter;
b. Had drastically lost weight;
c. Was not being given an adequate pasture for exercise and turnout; and
d. Had problems with her leg.
On November 24, 2020, Insp. Austin left Ms. Steele a voice message. Ms. Steele stated that she sent Insp. Austin photos including the photo of a red bucket showing 1/8 of an inch of water and noting the picture was taken in the evening after the facility was closed, indicating a lack of water overnight. Ms. Steele also sent photos of the round pen which she believed was in poor condition and was contributing to Ferrari’s leg problems because exercise and circulation can reduce swelling. Ms. Steele believed Ferrari was unable to properly exercise.
Ms. Steele testified that she did not provide Ferrari with antibiotics or NSAIDs because there was no need. Her leg was swollen but she did not have a fever. Ms. Steele maintained that Ferrari was not in pain, only stiff. Further her leg had no abrasions and was not hot to the touch.
With regard to Ferrari’s diet, Ms. Steele testified that she did not have her on a feed with protective or preventative agents because Ms. Ott refused to feed it to her horse. She also complained that the Purina bags of high fat feed she provided for Ferrari were missing as of November 15, 2020. She believed Ms. Ott had stolen the feed. Ms. Steele stated that Ferrari was starving and as a result she purchased a weight supplement to provide to Ferrari in her feed.
December 2020
Ms. Steele testified that she spoke to Insp. Austin on December 1, 2020 when the inspector came to her apartment. Ms. Steele stated that she understood she had until Friday, December 4, 2020 to have a veterinarian examine Ferrari. During that conversation, Ms. Steele confirmed that she had said she was out of Previcox and that Ferrari was not on any medication at the time. Ms. Steele also said that Ferrari’s lameness was a concern, but she blamed Ms. Ott for neglecting Ferrari. Ms. Steele said she would do her best to have Ferrari seen by a veterinarian by December 4, 2020.
Ms. Steele also testified that she contacted Insp. Austin on December 3, 2020 to advise that Ferrari was being moved to a different boarding facility, the Run2You Facility. Ms. Steele wanted to move Ferrari to get her away from the stress of the Ridgelawn Facility and because Ms. Steele was not getting assistance from AWS. Ms. Steele believed that the AWS had turned on her. Ms. Steele was getting assistance from her friend Jessica O’Brien in finding and moving Ferrari to the new boarding facility because Ms. Steele was struggling emotionally and mentally. Initially, she did not disclose the new location to Insp. Austin because she stated she did not know the address.
Ms. Steele testified that on the December 3, 2020, when Ferrari was being moved to the Run2You Facility, Ferrari was not lame. She also said that Ferrari’s condition was “horrible.” She qualified this by saying that the next day, Ferrari’s swelling was down 90% and that she was eating happily.
Ms. Steele stated that she asked Insp. Austin for an extension to the compliance deadline. She stated that her veterinarian had “fired her” because of the investigation she had launched at the OVC. She felt she was left high and dry without a veterinarian.
Ms. Steele testified that her attempts to get a veterinarian to examine Ferrari fell short. She and her friend Jessica O’Brien called six clinics. Ms. O’Brien called Troy Veterinarian clinic and they initially said they could come on Friday December 4, 2020. However, Ms. Steele stated that Troy Veterinarian clinic called Ms. O’Brien and said they had an emergency and could only come on Monday December 7, 2020. Ms. Steele testified that she tried her best but was unable to meet the “ridiculously short time frame” of the deadline in the order while also trying to find a new boarding stable. Ms. Steele stated that it was not “like she was neglecting her” she was trying to communicate with Ms. Ott, but now needed a police escort to visit her horse. In addition, Ms. Steele took the position that the lymphangitis could not be cured, that upkeep was what was required.
Ms. Steele introduced as evidence photos taken by Amanda Clayfield at the Run2You Facility on December 4, 2020 that she said showed Ferrari in the field where she was happy and doing well. She was told that Ferrari was bucking around and ate her food. She stated that the photo shows Ferrari is not depressed.
Ms. Steele also introduced Ferrari’s veterinary records up to 2018. In cross-examination, she agreed that records showed that Ferrari had suffered from rear right leg swelling in October 2016 and that she was treated with pain medication and antibiotics. This was followed by another veterinary visit in December 2016 where reports from the veterinarian indicated a concern Ferrari had recurrent lymphangitis.
Ferrari’s dental records were also introduced. Ms. Steele stated she had Ferrari’s teeth floated every year and had last been floated in early 2020. Ms. Steele stated that when she first purchased Ferrari, she was told by a veterinarian that Ferrari’s jaw was crooked, and she had the worst teeth ever seen. At times, Ms. Steele had Ferrari’s teeth floated every six months. Ms. Steele agreed that Ferrari grinds her teeth. In cross-examination, Ms. Steele agreed that she did not have Ferrari’s recent dental records in support of her testimony. Ms. Steele stated that she knew what quidding was but that she never observed Ferrari quidding, meaning that as she ate, food spilled out the sides of her mouth. She stated that Ferrari does not like wet cubes of food, and that was why she was spitting food out.
Ms. Steele testified that Ferrari had a club foot. In cross-examination she stated that Ferrari was last seen by a farrier at the Puslinch Facility in mid-July 2020. There, Ferrari’s hooves were trimmed without Ms. Steele’s approval and Ferrari was left extremely sore by the shortness of the trim. Ms. Steele stated that she tried to have a farrier come out to see Ferrari but that all the farriers she knew refused to go to the Ridgelawn Facility because Ms. Ott would not allow them on her property. In cross-examination, Ms. Steele stated that she did not know farrier records needed to be filed to support her case. She agreed she did not have any supportive records. She did acknowledge that Ferrari’s feet were due for a trim but that they were not in a deplorable or painful state. Ms. Steele also stated that having a trespassing order issued against her at the Ridgelawn Facility made it difficult for her to obtain a farrier. In re-direct, Ms. Steele added that Ferrari would have seen Ms. Clayfield’s regular farrier on December 7, 2020 at the Run2You Facility, had Ferrari not been removed.
Dr. Hazen, Veterinarian
- Dr. Hazen was called as a witness for the appellant. He is a retired veterinarian with 41 years’ experience. He is still licensed. He provided dental treatment to Ferrari one time, three years before the removal. He did not have his records to refer to but believed that Ferrari had a lot of issues which could be worked on gradually.
Patrick Smith, Friend
- Mr. Patrick Smith testified on behalf of the appellant. He testified that he is a casual friend as his girlfriend is friends with the appellant. He has a car and said that in November 2020 he lent his car to the appellant on a few occasions so she could visit her horse. He also gave Ms. Steele a ride on two occasions so that she could visit Ferrari in late November 2020 and early December 2020. He observed that Ferrari’s leg was swollen and she seemed depressed. Ferrari was also hungry when they brought her food, and she ate everything.
Jessica O’Brien, Friend
Jessica O’Brien also testified for the appellant. She has been a close friend of Ms. Steele for three years and has known Ferrari as long. Ms. O’Brien has worked with horses since she was five years old; riding, training and eventually working as an assistant barn manager.
Ms. O’Brien last saw Ferrari on December 3, 2020 when she helped moved Ferrari to a new stable, the Run2You Facility. Ms. O’Brien said she assisted Ms. Steele because Ms. Ott had said she was going to send Ferrari to the stockyards. On December 3, 2020, she observed Ferrari had a stiff hind leg, she was not stressed out or lame, and there were no issues getting her in the trailer, meaning that her back leg was not in bad enough shape to prevent her from boarding the trailer. Ferrari was given two flakes of hay,2 a scoop and a half of feed and water and that Ferrari ate everything. Ms. O’Brien stated that Ferrari was happy and content and had no issues eating.
Ms. O’Brien testified that after Ferrari had been transferred to the Run2You Facility, she received a text message from Amanda Clayfield stating that Ferrari had been turned out and was bucking and kicking and was happy.
Ms. O’Brien testified that she called Troy Veterinary Services and spoke to a receptionist about getting an appointment for Ferrari. The receptionist got back to her and said that due to emergencies they could only see Ferrari on Monday December 7, 2020.
In cross-examination, Ms. O’Brien stated that she had no direct knowledge of Ferrari’s lymphangitis and that all her information came from the appellant. Other than visiting Ferrari in or around February 2020, she only observed Ferrari one more time on December 3, 2020. Ms. O’Brien does not have a horse of her own, and has not had one for many years, due to an injury she sustained.
RESPONDENT’S EVIDENCE
Inspector Austin, AWS
Insp. Austin has been an inspector for the AWS since January 1, 2020. She stated she has 20 years’ experience with horses and owns two horses herself.
Insp. Austin’s investigation began on November 23, 2020, with a complaint from Ms. Steele regarding the boarding and care of her horse. From November 23, 2020 to December 4, 2020, Insp. Steele testified that she left various phone messages and had text messages back and forth with Ms. Steele. This included the receipt of photos taken of Ferrari showing her body condition, her leg and the conditions at the Ridgelawn Facility. Ms. Steele communicated that she was unhappy with Ferrari’s care and felt that her horse was being deprived of appropriate food and fresh water. She also believed that her horse was not receiving appropriate exercise as the paddock being used was too small.
On November 27, 2020, Insp. Austin visited the Ridgelawn Facility and met with Ms. Ott. Ms. Ott told Insp. Austin that Ferrari was previously the subject of an AWS warrant in September 2020. Ms. Ott told Insp. Austin that Ferrari was brought in every night. She also advised that Ms. Steele was to provide any medication. Ms. Ott told Insp. Austin that she was providing daily care. She was not sure when Ferrari had been seen by a veterinarian (other than the veterinarian contracted by the AWS in September 2020) or a farrier. She confirmed she was not providing Ferrari with any medication.
Ms. Ott showed Insp. Austin around the boarding facility. Insp. Austin observed a clean facility, and that Ferrari had a clean stall and fresh water. Insp. Austin also viewed the small and muddy condition of the paddock. Ferrari was shown to her and Insp. Austin observed swelling on her back right leg, visible ribs, and limping. Ferrari appeared bright, alert and responsive. Insp. Austin graded her body condition at a 3.5/4 out of a scale of 9.
On November 27, after the visit to the Ridgelawn Facility, Insp. Austin felt she had enough information to decide that there were reasonable grounds to believe that Ferrari was in distress.
On November 30, 2020, the AWS received a complaint from Ms. Ott that Ferrari was not on anti-inflammatories.
On November 30, 2020, Insp. Austin contacted Insp. Tracy Lapping, an expert in equine management, for her opinion as to how long to provide for a compliance date. Insp. Austin then drafted a s. 30 order requiring Ferrari to be seen by a veterinarian by December 3, 2020 and for the findings and recommendations to be followed. The order was sent by email. As Insp. Austin could not confirm that Ms. Steele received the email, she then amended the order to have a compliance date of December 4, 2020 and personally served the amended compliance order on Ms. Steele on December 1, 2020 by providing it to her at her residence. Insp. Austin testified that she went to Ms. Steele’s apartment and knocked on the door. Ms. Steele did not open the door as she said her sister was unwell. Ms. Steele identified herself and said that she understood the conditions of the order, and the repercussions if she did not comply.
Insp. Austin testified that on December 4, 2020, she spoke with the appellant. Ms. Steele said that she tried calling six veterinarians but could not get any to attend by the compliance date of December 4, 2020.
Insp. Austin testified that at first Ms. Steele said she could get a veterinarian to come on Monday, December 7, 2020. Later, Ms. Steele contradicted herself and said a veterinarian might come by later that day, but she did not have a confirmed appointment. Insp. Austin called three veterinarians named by Ms. Steele and confirmed none had appointments to see Ferrari.
Insp. Austin testified that Ms. Steele told her the following:
a. She had been “royally screwed” by veterinarians over the past months;
b. Her regular veterinarian had fired her, and Ferrari was not currently under veterinary care;
c. Ferrari was not currently on NSAIDs;
d. Ferrari was not in pain and had been cantering that day; and
e. She had tried calling six veterinarians and none would come out.
Insp. Austin advised Ms. Steele that as the owner, she was responsible for Ferrari’s care.
Insp. Austin said she felt uncomfortable leaving Ferrari until Monday to see a veterinarian. She noticed Ferrari appeared to be limping at a walking pace. There was no confirmation of a veterinary appointment. Given this, Insp. Austin considered it necessary to remove Ferrari to relieve her distress and to prevent unnecessary suffering.
Insp. Austin advised Ms. Steele that she would be served with a notice of removal and a statement of account. The Notice of Removal was dated December 4, 2020 at 12:28 pm.
Insp. Austin also testified about interactions with Ms. Ott, owner of the Ridgelawn Facility. Ms. Ott had contacted AWS on two occasions raising concerns regarding Ferrari’s care. These reports were in turn sent to Insp. Austin as dispatches or summaries of the phone conversations. Insp. Austin received emails of the dispatches and used them to start her investigation.
Insp. Austin testified that Ms. Ott’s concerns were:
a. Ferrari’s back right leg was swelling and there was no indication she was under the care of a veterinarian;
b. Ferrari’s boarding agreement provided for food and water but no additional wrapping of the leg or exercise; and
c. Ferrari’s leg was worsening, and the wrapping was pushing the swelling up her leg.
In cross-examination, Insp. Austin agreed that the lymphangitis in Ferrari’s leg was a chronic issue and that she was aware of the previous AWS investigation in September 2020. She said that a veterinarian employed by the AWS at that time had said that the horse was no longer in distress.
Insp. Austin agreed that it was the appellant who initially started this investigation due to her concerns over the care Ferrari was receiving at the Ridgelawn Facility and that Ms. Steele sent her a picture of an empty red bucket as evidence.
Insp. Austin also confirmed that Ms. Ott and Ms. Steele were having a serious dispute. Ms. Ott told Insp. Austin it had turned into a nightmare and that Ms. Steele had accused her of theft of feed. Further, Ms. Steele had reported Ms. Ott to the police and there was police involvement. Ms. Ott had also asked Ms. Steele to move Ferrari to a new barn by November 30, 2020. Insp. Austin also confirmed that Ms. Steele accused her of taking Ms. Ott’s side in the dispute and that she was out to get Ms. Steele. Insp. Austin disputed that she had taken a side.
Insp. Austin agreed that Ferrari’s body condition did not indicate distress but instead that she was slightly underweight. She agreed that the hooves were not overly long but could have been better and indicated that they had not been trimmed recently.
Insp. Austin also agreed that she did not know if Ferrari had been on pain medication for two months. She believed that Ferrari was not on medication based on her conversation with Ms. Steele. Further, on December 1, 2020, Insp. Austin was advised by Ms. Steele that she was out of Previcox and had not purchased more.
Insp. Austin also agreed that she visited Ferrari at the Run2You Facility on December 4, 2020 for the compliance check. She also brought another AWS inspector with her. Insp. Austin spoke with Amanda Clayfield at the Run2You Facility. Ms. Clayfield confirmed that Ferrari had a poultice put on her back right leg to try to decrease the swelling. Ms. Clayfield said they had Ferrari out walking around.
Insp. Austin confirmed that she did not feel comfortable leaving the horse until Monday to be seen by a veterinarian due to the pain Ferrari was in. She did not observe any reduction in swelling on December 4, 2020 as compared to her observations on November 27, 2020. She disputed that Ferrari was no longer in distress due to the change in boarding facility.
Dr. Tom McQueen, Veterinarian
Dr. Tom McQueen, veterinarian, was called as a witness on behalf of the respondent. He testified regarding his examination of Ferrari on December 7, 2020. He has practiced for 39 years primarily as a large animal practitioner.
Dr. McQueen examined Ferrari at the Whispering Hearts facility. He was the second veterinarian to examine Ferrari since the removal. In addition to a physical exam, he also had a routine fecal exam done which came back negative. He had admitting blood work done which was not dramatically abnormal, showing only low albumin protein which, he said was expected in emaciated horses.
With regard to Ferrari’s weight, Dr. McQueen found her to be in poor body condition, gaunt, and eating poorly over the weekend. He rated her as a 2 on a scale of 0-5. He stated that Ferrari had been quidding. He stated that her belly was tucked up. In cross-examination, Dr. McQueen attributed this condition to lack of food or not eating the food provided. He also agreed it could be from stress and anxiety. He stated that he did not know what food Ferrari was fed prior to her removal. The food plan she was given at the Whispering Hearts facility was developed following a consultation with a nutritionist from Purina in response to Ferrari’s diagnoses. The feed plan included good quality hay, sulpha cubes and increased oil. Dr. McQueen disagreed that the feed given to Ferrari was only for brood mares and fillies.
With regard to Ferrari’s back right leg, Dr. McQueen found it to be grossly swollen from the ankle to the hock. He diagnosed lymphangitis. Dr. McQueen stated that lymphangitis is an infection of the lymphatic circulation system in the legs. Once infected and damaged, the leg loses the ability to remove excess fluid causing the leg to swell. It can also become hot and painful. Without treatment, it can cause long term problems. Ferrari also had a fever line on the hoof of her back right leg indicating a high fever four or six months prior to the examination. In cross-examination, he agreed the fever line indicated a possible long-standing condition stemming from a fever prior to the date of examination. He declined to diagnose cellulitis, which he said was a different condition. He also stated that the lymphangitis condition could become chronic. He agreed that the horse’s leg would need to be wrapped periodically and that it was an easy treatment to apply. He could not say that wrapping as a treatment had not been given prior to Ferrari’s removal by the AWS. He agreed he had not seen Ferrari prior to his initial December 7, 2020 examination.
Dr. McQueen also found that Ferrari’s left front foot appeared to be a club foot, meaning it was too upright and appeared to have abnormal conformation. He stated that this condition was corrected by the farrier. In cross-examination, Dr. McQueen stated that at first he believed the front club foot could have been a birth defect, but because it was corrected quickly by the farrier and now appeared normal he considered it an issue of neglect and not a birth defect. He stated that the farrier would be in a better position to clarify whether the foot was a chronic condition or not.
Dr. McQueen inspected Ferrari’s mouth and found oral lesions. Her teeth required floating to file down the sharp ridges on the lateral sides of her mouth. In cross-examination, he denied that the oral ulcers, in this case, were caused by anti-inflammatory medication as the lesions coordinated with the sharp points on the teeth. He stated that most horses had routine dental care on a regular, on average annual, basis. He rejected the proposition that Ferrari’s jaw was crooked and that that was the source of her teeth problems, and not neglect.
Dr. McQueen also suspected that Ferrari was suffering from stomach ulcers. This condition was confirmed on December 18, 2020, by Dr. Sarah Shaw who examined Ferrari with a scope and diagnosed mild ulceration.3 Dr. McQueen testified that this condition was common in thoroughbreds under stress or those suffering from eating disorders. The clinical presentation can appear in several different ways including gaunt appearance, behavioral issues, and a sour look where the animal appears unhappy and painful all over. He concluded that Ferrari presented as a horse that could be suffering from stomach ulcers. In cross-examination, he stated that some pharmaceuticals, such as Banamine and other NSAIDs, can cause stomach upset. However, he clarified that this would be with chronic use and that short term use was typically very safe. He did not know whether Ferrari had been given Banamine or any other medicine previously as he was not aware of her medical history.
Dr. McQueen also found that Ferrari’s back muscles were tight, a sign of pain. Dr. McQueen testified that Ferrari was in pain from several conditions:
a. Oral ulcers in her mouth due to overgrown teeth;
b. Back right swollen leg; and
c. Suspected stomach ulcers.
- Dr. McQueen prescribed the following treatments:
a. Antibiotics and anti-inflammatories to treat lymphangitis;
b. Support wraps on the back hind rear leg to get fluid moving;
c. Dental floating to power file the sharp teeth;
d. Proper feed;
e. Diagnostics to investigate stomach ulcers; and
f. GastroGard4 orally for 30 days.
Dr. McQueen stated that he has examined Ferrari monthly. As of the date of his testimony (February 23, 2021), Ferrari had a body condition score of 3.5/5 which is ideal. In cross-examination, he clarified that he estimated the horse weighed about 1000 pounds at removal, which he considered unhealthy, and weighed around 1200 pounds by the date of his testimony, which he considered ideal. Dr. McQueen stated she is happy and well-adjusted and easy to deal with. The ulcers in her mouth have healed. She is also no longer on any medications. She is receiving dietary supplements, or nutraceuticals, in her food and increased oils to help with the inflammation in her leg, together with supportive wrapping. Dr. McQueen stated that Ferrari’s back rear leg was being wrapped on alternate days and receiving cold hosing of her leg on the off days. He stated she may need this treatment for the rest of her life as the condition was chronic. He stated that there was a huge change in her life so far and that any improvements in her condition now, if any, would be slow and incremental.
In cross-examination, Dr. McQueen disagreed that Ferrari could have been outside galloping around the day prior to her apprehension, given the conditions she was suffering from.
Dr. McQueen stated that the treatments provided were absolutely necessary. He testified that Ferrari had several painful conditions requiring treatment. The treatment he prescribed and was followed was a common treatment approach. He stated that the dental treatment, gastric ulcer treatment and farrier treatment were all necessary and in the best interest of Ferrari and meet the current professional standard of care. Dr. McQueen disagreed that a less potent antibiotic would have been prudent in Ferrari’s case given that there was no active leg infection.
Dr. Las, Veterinarian
Dr. Las, veterinarian, testified on behalf of the respondent. He has been a vet for 11 years. He has a mixed animal practice primarily focusing on horses and cattle. He examined Ferrari on December 4, 2020, the day she was removed, as he was the on-call veterinarian that day. He stated that Dr. McQueen was the regular veterinarian for the Whispering Hearts facility.
Dr. Las conducted a physical examination and found the following:
a. Swollen back right leg down to the hoof wall, leg sensitive to touch, mildly lame;
b. All hooves needing a trim;
c. Body condition a 4 out of 9, moderately thin;
d. Sharp teeth points needing floating; and
e. Suspected gastric ulcers.
Dr. Las had x-rays taken of Ferrari’s back right leg which ruled out a fracture. He provided the differential diagnosis of lymphangitis. He stated this usually beings with a cut that gets infected, fever, depression and then lameness. He stated there was no fever at the time of apprehension.
Dr. Las prescribed:
a. Banamine, an NSAID, for the rear leg;
b. GastroGard, to protect against stomach ulcers; and
c. IV antibiotics.
In cross-examination, Dr. Las confirmed he was the first veterinarian on the scene. His examination lasted 60 minutes. He confirmed that the lymphangitis was likely caused by a cut or abrasion two to four months prior to the removal. He did not agree that it could have been caused as far back as six months prior to the removal based on the fever line on the horse’s hoof.
Dr. Las also confirmed that although the teeth needed floating it was not as urgent as the other treatments required. Dr. Las triaged Ferrari’s conditions and considered the lymphangitis in the rear right leg to be the condition requiring the most urgent treatment. In cross-examination, he stated that Ferrari appeared to have no difficulty tolerating Banamine. He stated that any issues would have been apparent within three days, which was not the case with Ferrari. He also confirmed that he regularly prescribed GastroGard to prevent gastric ulcers when a horse was given NSAIDs. He stated that it was effective given that they did not see Ferrari’s ulcers progressing.
In cross-examination, Dr. Las stated that reports that Ferrari was galloping around the day before the removal were inconsistent with the presentation of the horse on December 4, 2020.
Dr. Las disputed that the x-rays of Ferrari’s rear leg were unnecessary as they were needed to rule out other possible concerns. He also disagreed with the proposition that wrapping Ferrari’s leg and exercise were enough for treatment of her condition at the time of removal. He did confirm that Ferrari’s leg was warm but not hot to the touch.
Dr. Las also stated the antibiotics he prescribed were appropriate and aggressive. He stated he treated Ferrari with antibiotics prior to the receipt of the blood work as blood work results require 24 hours. Given her acutely swollen leg, his professional opinion and clinical experience was to treat the leg right away. He considered it to be negligent to leave the horse to suffer for a few days. He stated he took an oath to prevent pain and suffering.
Brenda Thompson, Whispering Hearts Facility
Ms. Thompson is the owner of Whispering Hearing Horse Rescue Centre in Hagersville. The Whispering Hearts facility is a critical care center that is subcontracted to the AWS to take in seized horses. Ms. Thompson has operated the facility for 14 years and has cared for 400 horses since they opened. Her attending veterinarian is Dr. McQueen from Dunnville Veterinary clinic. When Dr. McQueen is not available, they use a different veterinarian from the clinic such as Dr. Las.
Ms. Thompson testified that each horse gets an individualized feed program, bedding and care treatment plan in accordance with the instructions of the attending veterinarian. Purina is the food of choice and they rely on feed recommendations from the nutritionists at Purina.
Ms. Thompson testified that she attended the Run2You Facility on December 4, 2020 with her husband in order to pick up Ferrari. On arrival, she observed Ferrari and saw that she was lethargic. She was told by the person at the barn that Ferrari did not eat her hay overnight. Her back right leg appeared swollen.
Ms. Thompson arranged for Dr. Las to see Ferrari at 2:30 pm that day. Medications were prescribed. Ms. Thompson administered the prescribed medication daily. Initially those medications were Banamine, administered by IV, and GastroGard for ulcers.
Ms. Thompson said that initially Ferrari was on free choice hay but ate very little. After a few days of GastroGard, she started increasing her hay and water intake. She also noticed that when Ferrari ate, the hay was balling in the corners of her mouth.
Ms. Thompson submitted a report on Ferrari’s feed plan and feed uptake. The feed plan was provided following a consultation with a Purina representative and recommended by Dr. McQueen. With regard to food intake, when Ferrari’s hay intake increased, her intake of water increased as well. GastroGard was reduced. On December 23, 2020, Ms. Thompson reported that Ferrari was now eating an average intake of food.
Ms. Thompson testified that Ferrari is now thriving. She is energetic and her eyes are brighter and her coat shining. Her belly is no longer tucked up. She goes out every day and trots around. Her appetite is good. The swelling on her rear right leg is minimal but it is wrapped according to veterinarian instructions. Ms. Thompson characterized Ferrari’s change as a drastic change in behaviour from when she was initially removed. She supported this evidence with a series of photos of Ferrari taken December 4, 2020 and December 23, 2020.
In cross-examination, Ms. Thompson stated that in her experience Ferrari could not have been galloping around on the day she was removed. She clarified that a horse in fear might gallop if spooked and that she would need to know more about the circumstances.
Analysis
I find that Ferrari was in distress at the time of her removal. The evidence before me establishes that Ferrari should have been seen by a veterinarian by the December 4, 2020 date as noted in the compliance order. Her removal based on a failure to comply with the compliance order was in accordance with the Act. This decision is based on several factors.
“Distress” is defined in the Act at s. 1(1) as 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.
Ms. Steele’s evidence was that Ferrari was in “horrible” shape on December 3, 2020. She testified that Ferrari was 90% improved by the next day simply by the fact that she had been moved to a new boarding facility. Her evidence that Ferrari was better consisted of a text message from Amanda Clayfield stating that Ferrari was bucking around and eating, and a photo of Ferrari in the field.
The respondent’s evidence consisted of the evidence of Insp. Austin’s observations, Dr. Las’s testimony regarding his examination of Ferrari on the day she was removed, and Dr. McQueen’s evidence from December 7, 2020.
Dr. Las noted numerous issues of varying seriousness including Ferrari’s swollen rear hind leg, oral ulcers and difficulty eating, suspected gastric ulcers and one front hoof in particular needing the services of a farrier. Dr. Las concluded Ferrari was in pain and in need of several treatments to alleviate her distress. Ms. Thompson testified as to Ferrari’s demeanor on the day of removal together with photos of Ferrari. Ms. Thompson contrasted this with Ferrari’s demeanor and more photos taken December 23, 2020. I accept the evidence that by late December 2020, Ferrari was a horse who was completely different as a result of her treatment and care.
Dr. McQueen examined Ferrari on December 7, 2020, and his conclusions concurred with Dr. Las. He ensured Ferrari’s dental work was done, a farrier was brought in to trim her feet, she was given a scope to confirm the gastric ulcers, and he continued treatment for her lymphangitis and changed her diet. Dr. McQueen’s evidence was challenged on cross-examination on the basis that he was over-treating Ferrari. I accept Dr. McQueen’s evidence that the treatments provided were necessary.
The totality of the respondent’s evidence regarding Ferrari’s condition on the date of removal was overwhelming in showing that Ferrari was in distress and in need of veterinary attention.
H. WAS FERRARI’S DISTRESS WAS CAUSED BY THE CARE GIVEN AT THE RIDGELAWN FACILITY?
Analysis
I find that Ms. Steele was ultimately responsible for Ferrari’s care.
Ms. Steele argues that Ridgelawn Facility was responsible for Ferrari’s condition. She bases this on her evidence that the relationship between Ms. Ott and herself was volatile to the point that Ms. Steele required a police presence to visit Ferrari. Ms. Steele claims that Ms. Ott did not provide Ferrari with the high fat feed she had purchased for her and did not give her adequate turnout.
The respondent showed through its cross-examination of the appellant that Ferrari had been suffering from lymphangitis since July 2020 when she was boarded at the Puslinch Facility. Further, Ferrari had had swollen leg issues dating back to 2016. Finally, Ms. Steele had not had a veterinarian attend Ferrari on her own behalf at any time between July and the removal in December 2020, the crucial time period for the resurgence of Ferrari’s lymphangitis and several AWS reports of concern for Ferrari’s well-being.
I find that Ms. Steele has not established on a balance of probabilities that Ms. Ott was responsible for Ferrari’s condition in December 2020. Ms. Steele did not show that Ms. Ott had the ultimate responsibility to Ferrari’s care. Her witnesses were of limited value and mostly had secondhand knowledge of the disputes between Ms. Steele and Ms. Ott.
Further, the veterinarians who inspected Ferrari determined that she had chronic lymphangitis of the right rear leg. Ms. Steele testified about an injury to Ferrari’s leg and fever in mid-July 2020 at the Puslinch Facility. Ms. Steele’s veterinarian in 2016 also noted a possible chronic case of lymphangitis in Ferrari. This was a long standing condition requiring care and treatment that pre-dated the July 27 or 28, 2020 move of Ferrari to the Ridgelawn Facility.
With regard to Ferrari’s teeth, the inspection showed that Ferrari was suffering from other issues including oral ulcers due to the need to have her teeth floated. Ms. Steele testified that Ferrari’s teeth were floated yearly but there was no evidence to support that. Further, she stated that she believed Ferrari had horrible teeth and needed care every six months. I find that Ferrari’s teeth had not been floated within at least the past six months, her teeth required care, and that lack of care contributed to Ferrari’s quidding and oral ulcers. Both of these issues contributed to Ferrari’s low weight. Again, these issues predate the move to the Ridgelawn Facility.
Finally, Ms. Steele admitted that Ferrari’s feet needed a trim. No farrier records were provided. Ms. Steele testified that Ms. Ott prevented Ms. Steele from hiring a farrier. I did not find this evidence convincing. Further, even if that was the case, Ms. Steele, as the owner, was ultimately responsible for Ferrari’s care, particularly in the case as was here where the boarding agreement covered the basics of care only and not responsibility for the treatment of medical issues.
I. SHOULD THE S. 31(1)(C) REMOVAL ORDER BE REVOKED BASED ON THE ACTIONS OF INSP. AUSTIN?
The appellant argued that the removal order was not justified and therefore was made in breach of the Act. The appellant argued that the order should therefore be revoked and in doing so it should be considered that the order was never issued. The appellant argued that this would also mean that the appellant would then not be required to pay any statement of account.
The respondent submitted that the removal had been done in accordance with the Act.
Analysis
No case law was provided to me that shows that the Board has the power to revoke a s. 31 removal order under appeal powers in s. 38(2). However, I do find that evidence regarding the lawfulness of the removal is relevant to the final determination as to whether the animal should be returned, and is therefore evidence I may consider.
A s. 30 order may be revoked if appealed pursuant to s. 38(1) of the Act. Ms. Steele did not challenge the s. 30 order issued December 1, 2020, requiring her to have Ferrari seen by a veterinarian by the compliance date of December 4, 2020 at 9 am.
Insp. Austin testified that she served the compliance order on Ms. Steele personally on December 1, 2020. Ms. Steele concurred in her testimony that she received the order that day and she understood that she had until December 4, 2020 at 9 am to have a veterinarian assess Ferrari.
The record is clear that by December 4, 2020 at 9 am, Ms. Steele had been unable to get a veterinarian to attend. This is supported by Ms. Steele’s own testimony. Despite what she stated were her best efforts, she was unable to secure an appointment as required.
I am satisfied that the appellant did not comply with the compliance order and that the evidence does not show an unlawful removal. This factor does not assist the appellant in showing that the horse should be returned to her.
J. WAS THE APPELLANT ENTITLED TO A REVOCATION OF THE REMOVAL ORDER UNDER SECTIONS 38(3) AND/OR S. 38(4) OF THE ACT?
In her closing submissions, Ms. Steele argued that Ferrari should be returned to her pursuant to s. 38(4) of the Act, namely that the conditions of Ferrari’s distress had ceased to exist.
Section 38(3) and s. 38(4) state under the hearing “application for revocation” that:
(3) An owner or custodian of an animal who receives an order from an animal welfare inspector may apply to the Board by notice in writing to have the order revoked if the animal has ceased to be in distress.
(4) An owner or custodian of an animal that has been taken into the Chief Animal Welfare Inspector’s care may apply to the Board by notice in writing to have the animal returned if the conditions that caused the animal to be kept in the Chief Animal Welfare Inspector’s care have ceased to exist.
The problem with this argument is that Ms. Steele did not file a written application for the revocation of an order or determination pursuant to s. 38(3) or s.38(4) respectively. Such an application would require her to acknowledge that Ferrari was in distress at the time of removal. Instead, she filed an appeal of the s. 31 compliance order under s. 38(1) of the Act on the basis that Ferrari was not in distress at the time of removal. It was on the basis of that appeal and the notice of appeal that the hearing proceeded.
I decline to order the return of Ferrari under on the basis of s. 38(3) or 38(4) as no application for revocation was filed by this appellant before the Board.
K. ARE THERE GROUNDS TO RETURN THE HORSE TO THE APPELLANT?
Appellant’s Evidence
Ms. Steele’s testified that Ferrari is no longer in distress and never was. She plans to continue to care for Ferrari. Her plan for Ferrari is to have her boarded at a safe facility, to register with Troy Veterinary Services and provide for her as she has done since 2007. Ms. Steele stated that in order to treat Ferrari’s lymphangitis, she will make sure Ferrari gets turnout, she will walk her two to three times a week and check on her more if needed.
Ms. Steele will continue with dental care. She stated that Ferrari will have her teeth floated every six months.
With regard to food, Ms. Steele disagrees with the current feeding program. She stated that Ferrari was being given too much fiber, she is being fed a feed that is for broodmares and explained that was why Ferrari had only gained a pitiful amount of weight while in the custody of the AWS. She added that Ferrari doesn’t like wet food. Ms. Steele stated she would not consent to any stipulations regarding Ferrari’s feed. Ms. Steele said she would consult with Purina to obtain a nutritional plan and would follow their recommendations. She does not have any concerns regarding gastric ulcers and believes that any ulcers Ferrari had were caused by the food and medicine being given at the Whispering Hearts Facility.
Ms. Steele testified that she had never had problems before this year and the two AWS investigations that occurred. She maintained that Ferrari had been locked in a stall and neglected at the Ridgelawn Facility and that that her care there was the cause of her problems.
Respondent’s Evidence
- The respondent acknowledges that Ms. Steele has cared for Ferrari since 2007. Further, Ms. Steele’s initial complaint to the AWS began the investigation into Ferrari’s care. The respondent noted that the appellant testified that she was terminated by three veterinarians and was unable to obtain urgent care for her horse. Further, the appellant did not provide documentary evidence of any recent veterinary care for Ferrari, including dental care. The respondent asked the Board to uphold the removal of Ferrari and allow the respondent to decide if Ferrari can be returned to Ms. Steele at a later date.
Analysis
Ms. Steele has owned Ferrari for fourteen years. The records she submitted showed that for many years, up to at least 2017, Ferrari had consistent veterinary and dental care.
Ms. Steele testified that over the last year, she had problems with everyone. She fell into a dispute with her regular veterinarian who she said, “fired her”. She launched a complaint about another veterinarian. She stated that veterinarians refused to come care for Ferrari. She had similar problems with boarding facilities. She moved Ferrari to four different commercial boarding facilities within the last year, each time due to significant problems because of apparent breakdowns in communication and relationships with the people running the boarding facility. Ferrari was the subject of two AWS investigations at two different boarding facilities. When the appellant was served with an order requiring her to obtain veterinary care for her horse, her best efforts were to have a friend assist her in calls to veterinarians. She had her friend, Ms. O’Brien, also find a new boarding facility. But she did not follow up herself with Troy Veterinary to try to explain the urgency of the situation. Yet by her own admission, on December 3, 2020, Ferrari was in horrible condition.
When asked about her plan for the future care of Ferrari, Ms. Steele was adamant that she disagreed with the feeding regime Ferrari was currently on and recommended both by Purina nutritionists and by a veterinarian. On that plan, the evidence shows that Ferrari had gained weight and had reached an ideal body condition score. The appellant’s blanket refusal to follow a feeding regime recommended by Purina, the same nutrionists she said she planned to use, gives me great pause.
Ms. Steele also disputed the use of pain medication or NSAIDs which were being used when needed to treat Ferrari’s chronic lymphangitis. Her evidence shows that in the past she did not obtain Previcox when it was prescribed as needed to treat Ferrari’s leg.
The appellant asked me to consider her history of horse ownership and that no complaints existed until 2020. I agree that this shows the appellant has the ability to care for Ferrari, and I hope, that if the Ministry returns Ferrari to the appellant at some point in the future, that she returns to her previous history of providing Ferrari with the care she needs. However, Ferrari was in distress at the time of removal as a result of multiple issues, she was in pain and in need of treatment. Ms. Steele was unable to provide adequate care and unwilling or unable to recognize the seriousness of Ferrari’s situation. I therefore find that she has not established that Ferrari should be returned to her.
I decline to order the return of Ferrari to Ms. Steele pursuant to s. 38(9). I also decline to make an order for the return of Ferrari based on a further compliance order as available under s. 38(10) of the Act as both parties declined to make submission on appropriate compliance orders.
ORDER:
- Pursuant to the powers of the Board under s. 38(9) of the Act, the Board declines to make an order for the return of the horse, Ferrari, to her owner, Amanda Steele.
Released: May 07, 2021
Marisa Victor, Member
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, October 2, 2017, as amended February 7, 2019 (“Rules”).
- A flake is a section of a bale of hay. A flake of hay will weigh on average several pounds.
- Dr. Shaw’s report was entered as an exhibit.
- GastroGard is an oral supplement that helps prevent and treat gastric ulcers.