ANIMAL CARE REVIEW BOARD

Tribunals Ontario

cOMMISSION D’ÉTUDE DES SOINS AUX ANIMAUX

Tribunaux décisionnels Ontario

Date: 2021-06-23

Appeal under subsection 38(1) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.

Between:

Thomas Pryde, Adrienne Spottiswood and Georgina Pierce

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

ADJUDICATOR: Marisa Victor, Member

APPEARANCES:

For the Appellant: Eric Gillespie, Counsel

Yasmeen Peer, Counsel

John May, Counsel

For the Respondent: Jason Kirsh, Counsel,

Nicholas Decock, Student-at-Law

Heard by videoconference: May 3, 4, 5, 6, 7, 12, 13, 17, 2021

REASONS FOR DECISION AND ORDER

A OVERVIEW

1The appellants are the owners of a dog sledding and horse-riding business in two Ontario locations: one in the Township of Oro-Medonte (Moonstone) and the other in the Township of Severn (Severn). Thomas Pryde, his wife Adrienne Spottiswood (Ms. Spottiswood), and their children live on the Severn property with their three children. Georgina Pierce is Thomas Pryde’s mother and she lives on the Moonstone property. All three are involved in dog sledding and jointly run Windrift Adventures, which offers dog sledding experiences and horseback riding to the public.

2The Animal Welfare Services (AWS) conducted an inspection of the Moonstone and Severn properties on February 18 and 19, 2021. The inspections were conducted under the AWS’s power to inspect for the purpose of determining compliance with standards of care where animals are kept for a commercial purpose. On February 25, 2021 the appellants were served with several orders (the Compliance Orders) under s. 30(1) of the Provincial Animal Welfare Services Act, 2019 (the Act). The Compliance Orders ordered certain measures to be taken for the care of approximately 240 sled dogs and 14 horses.

3The appellants appealed those Compliance Orders to the Animal Care Review Board (the Board).

B PRELIMINARY ISSUES

4The hearing began on March 18, 2021 before a different hearing adjudicator, Member Karpouzos. The issues raised at the start of the hearing were preliminary matters. The result of that first hearing date was a Case Management Order dated March 22, 2021. The Member considered a request for an adjournment, which was granted, and the appellant’s motion for revocation of the Compliance Orders, which the Member declined to hear.

5The hearing continued before Member Karpouzos on April 14, 15 and 16, 2021. The Member heard the appellant’s motion for recusal based on an alleged reasonable apprehension of bias, which was denied. The Member also heard argument regarding the appellant’s motion for revocation; however, the motion was later abandoned by the appellant in favour of arguing their position on that issue in the hearing proper. The Member also heard argument that she did not have jurisdiction to consider the appeal because the report of Dr. Rumney, veterinarian to the appellants, would not be contested by the respondents. The Member found she had jurisdiction to continue the hearing because the determination of distress is the ultimate determination that is to be made by the Board in this appeal.

6On May 4, 2021, I began the hearing of the substantive portions of the appeal. I determined that Member Karpouzos was not seized of the hearing proper as the motion decisions she made were preliminary in nature and clearly deferred evidence and submissions to the hearing proper as stated in the Case Management Orders she issued. The determination of whether a Member is seized of a matter is a legal determination; nevertheless, both parties also consented to proceeding before me.

7On May 6, 2021, after several days of the hearing before me, the appellant requested a “voir dire” which is a separate side hearing in this case to deal with a potential evidentiary issue. I heard argument and submissions; however, after a recess, the appellants requested that I not issue an order on the merits of the issues raised in the voir dire. Nevertheless, as a result of some of the submissions heard, I issued a confidentiality order covering the transcript of the voir dire. That confidentiality order was issued on May 11, 2021.

C ISSUES

8The question before the Board is whether the Compliance Orders should be confirmed, revoked or modified.

9Therefore, I must consider the following issues:

a. Issue 1: Whether the dogs at either the Moonstone and/or Severn properties in in distress at the time of the Compliance Orders on the basis of any of the following grounds:

• The length of the dogs’ chains;
• The dog houses’ insulation and bedding; and
• The size and state of repair of the dog houses.

b. Issue 2: Whether the horses at the Severn property in in distress at the time of the Compliance Orders on the basis of any of the following grounds:

• Horses shall have access to adequate shelter; and
• Horses shall have access to adequate bedding, lying and resting area.

c. Issue 3: Were the warrants issued in violation of the Act and the Charter.

D RESULT

10Based on the evidence before me, the sled dogs on both properties met the definition of distress under the Act as the dogs’ tether lengths and their shelters do not meet the minimum requirements of the Act and Regulation 444/19 (the Regulation).

11The Compliance Orders in relation to the dogs are confirmed, with the exception of the Compliance Order in relation to the size of the dog houses, which is varied.

12Based on the evidence before me, the horses were not in distress and the orders in relation to the horses are revoked.

13The warrants obtained were issued in compliance with the Act and no Charter violation was established, therefore no remedy is owed.

E THE COMPLIANCE ORDERS

14The Moonstone Compliance Orders required the following:

a. Order 1 in relation to “115 dogs of various breeds, age and sex”:

• Ensure all dogs have access to a shelter which has a minimum three inches of compressed straw to provide an R-4 insulation value and dry bedding. The straw is to be checked daily and replaced/replenished as needed to maintain the indicated amount and a dry resting area.
• Completion date: March 11, 2021.

b. Order 2 in relation to “115 dogs of various breeds, age and sex:”

• Ensure each dog being housed outside has access to a shelter which is in a state of good repair, provides adequate and appropriate protection from the elements, and is structurally sound.
• Completion date June 1, 2021.
• Plus additional conditions attached in a supplementary form as follows:
  • Ensure shelters are weatherproof and insulated: meaning R-4 insulation on the roof and a minimum of three inches of compressed straw to provide and R-4 insulation and bedding. OR, weatherproof and insulated; meaning R-4 insulation on the roof and floor with adequate bedding on the floor.
  • The shelter must be large enough to allow the dog to enter, turn around, stand up and lie down.
  • The size and design of the shelter must be adequate and appropriate for the dog: meaning four inches longer than the dog while lying down and four inches higher than the dog while standing up.
  • Ensure all dogs are provided with a chain length of no less than three meters. The chain must allow the dog to move safely and unrestricted except by its length and must allow the dog access to adequate and appropriate water and shelter.

15The Severn Compliance Orders required the following.

a. Order 1 in relation to “124 dogs of various breeds, age, and sex”:

• Ensure all dogs have access to a shelter which has a minimum three inches of compressed straw to provide an R-4 insulation value and dry bedding. The straw is to be checked daily and replaced/replenished as needed to maintain the indicated amount and a dry resting area.
• Completion date: March 11, 2021.

b. Order 2 in relation to “14 horses of various breeds, age, and sex:

• All horses must be provided with free choice access to salt or mineral
• The shelter currently available to the horses must be in good state of repair.

*Note: Order 2 was revoked prior to the hearing.

c. Order 3 in relation to “124 dogs of various breeds, age, and sex”:

• Ensure each dog being housed outside has access to a shelter which is in a state of good repair, provides adequate and appropriate protection from the elements, and is structurally sound.
• Completion date June 1, 2021.
• Plus additional conditions attached in a supplementary form as follows:
  • Ensure shelters are weatherproof and insulated: meaning R-4 insulation on the roof and a minimum of three inches of compressed straw to provide and R-4 insulation and bedding. OR, weatherproof and insulated; meaning R-4 insulation on the roof and floor with adequate bedding on the floor.
  • The shelter must be large enough to allow the dog to enter, turn around, stand up and lie down.
  • The size and design of the shelter must be adequate and appropriate for the dog: meaning four inches longer than the dog while lying down and four inches higher than the dog while standing up.
  • Ensure all dogs are provided with a chain length of no less than three meters. The chain must allow the dog to move safely and unrestricted except by its length and must allow the dog access to adequate and appropriate water and shelter.
• Regarding “14 horses of various breed, age and sex”:
  • Horses shall have access to adequate shelter (three-sided roofed structure) which provides enough space for al horses to access shelter at any one time. Space provided must be large enough for subordinate horses to access shelter safely.
  • Horses shall have access to adequate bedding, lying and resting area. Space provided as bedding, lying and resting area must be accessible by all horses at any one time.
  • Completion date June 1, 2021.

F LAW

16Section 1 of the Act defines distress as:

(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.

17Section 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.

18Section 38 of the Act sets out the powers of the Board on an appeal of a s. 30 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:

1. An order from an animal welfare inspector…

19After 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:

1. Confirm, revoke or modify an order made under section 30...

G ISSUE 1: WHETHER THE DOGS WERE IN DISTRESS

G.1 The length of the dogs’ tethers

Appellants’ Evidence and Submissions

20The appellants took the position that because the veterinarians who examined the animals found them to be generally in good health, that the animals could not therefore be in distress.

21Ms. Spottiswood testified on behalf of the appellants. She testified to her family’s history on the farms and their experience in the dog sledding industry. She supported her testimony with reference to the various sled dog codes of conduct, and photographs and videos of the appellants’ property that she took both during and after the inspection.

22Ms. Spottiswood stated that the appellants follow the standard of care for sled dogs as set out in MUSH with P.R.I.D.E.’s (Mush), an international sled dog organization, the Canadian Coalition for Sled Dogs, the British Columbia regulations with regard to sled dogs, and the kennel requirements for the Ontario Federation for Sleddogs Sports (OFSS). All the organizations support a tethering system that is at least 1.83 meters in length and swivels 360 degrees.

23Ms. Spottiswood testified that the dogs are housed in a pen or in a dog house with a tether. The dogs are not moved to a tether system until they are a year old. The tether or chain is attached to a post with a swivel. This gives the dog 180 degrees of movement around the central post. Each chain that is part of the tethering system is two meters in length. She testified this gives each dog a four meter diameter circle of space. She agreed none of the chains, except for on one dog, was three meters in length.

24Ms. Janece Rollet testified as an expert witness in canine behavior with expertise in sled dogs. She is a member of the Association of Pet Dog Trainers, studied canine behavior at Purdue University, and has trained over 12,000 dogs including sled dogs. For the last four years, she has also served as a reviewer for Mush programming and documentation.

25Mr. Rollet testified that all the European, Canadian and American sled dog codes that she works with strongly endorse the CRSP system of tethering – a central raised swivel post (CRSP). The minimum length of the tether in all the codes of conduct she referred to was 1.83 meters in length. She stated that the CRSP system effectively doubles the length of the tether.

26Ms. Rollet testified about the three meter tether requirement for outdoor dogs found in subsection 4(4)(a) of the Regulation. She stated it could be harmful depending on where the end of the chain was placed. With a central swivel a dog running full speed to the end of its tether is forced to move in a circle. This has less chance of injury occurring in comparison to coming to an abrupt stop at the end of the chain at full speed. In addition, because a husky-type dog can reach full speed after two strides, none of the sled dog organizations recommend a full three meter tether as that would allow the dog to reach full speed before hitting the end of the tether possibly causing an impact sufficient to cause serious injury or death.

27In cross-examination, Mr. Rollet agreed that she had not been to the appellants’ properties to make direct observations of their tethering systems. She also agreed that the Regulation states that an outdoor dog must have a tether of at least three meters and that this is the law in Ontario. She agreed that the Regulation is silent on whether it is appropriate to use the CRSP method. She also agreed that no sled dog code of conduct that she is aware of indicated a maximum length of tether, only a minimum of 1.83 meters, and that a larger dog may need a longer tether.

28In their submissions, the appellants argued that although the tether lengths were 1.83 meters in length, because of the tether system this equated to double that length. This argument is based on the measurement on the diameter of the circle with the post and swivel attachment at the center of the circle and the tether attached measuring the length of the radius of the circle. The appellants argued that because the CRSP system results in 360 degrees of movement and the dog can travel the length of the circumference, the tether system measured greater than the three meter requirement.

29The appellants conceded that, if I found the tether lengths to be less than the three meters required, I had no jurisdiction or authority to overrule or amend the Regulation.

Respondent’s Evidence and Submissions

30Inspector Sara Munoz testified for the respondent. She was involved in the two inspections of the appellants’ properties on February 18 and 19, 2021. On those days, her role was as scribe noting down observations of the examining veterinarian, Dr. Bruce Robertson, and those made by the other AWS inspectors present on those days: Inspector Brandon James, Inspector Nicole Driscoll, Inspector Rachel Vandenkroonenberg, and Inspector Alison Green.

31Inspector Munoz testified that one dog on the Moonstone property had a chain that was at least three meters long. None of the other tethered dogs had a tether length that met the three meter requirement in the Regulation.

32Inspector Vandenkroonenberg was the inspector in charge of actually taking the tether length measurements. She testified that none of the tethers came close to the three meter requirements, except for the one dog previously mentioned.

33Dr. Bruce Robertson, veterinarian, testified as an expert in veterinarian medicine. He stated that the tethers on the dogs were required to be three meters in length to meet the requirements of the Regulation.

34In closing submissions, the respondent argued that the legislation specifically refers to a three meter length and it is irrelevant that sled dog guidelines provide for a shorter tether length. Further, the Regulation does not refer to a circle of movement but only length of tether. Therefore, the diameter provided by the tether system is irrelevant as it relates to the length required by the Regulation.

Analysis

35I find that the tethering system did not meet the minimum requirements of the Regulation and therefore the dogs met the definition of distress in the Act when the inspections took place.

36The Act defines distress as in need of proper care, water, food of shelter. I accept that both veterinarians who examined the animals found them to be generally in good health. However, the main issues before me were the length of the dog’s tethers (the care of the dogs) and the several issues regarding the dogs’ shelters and the compliance with the required standards of care in the Regulation.

37The appellant relied on Pryor v. Ontario Society for the Prevention of Cruelty to Animals¹ for the proposition that distress cannot be speculative, constructive or future distress. In that case, three stallions were removed on the basis that they might not be provided turn out or exercise. The facts of this case are different. Here the issues relating to the possible distress of the dogs are current – Does the dog house lack insulation? Is the tether too short? Is the dog shelter in good state of repair? These are immediate issues that are not future or constructive in their nature.

38The Regulation clarifies that outdoor dogs require a chain or tether or tethering system that is at least three meters in length. Therefore, a finding that an outdoor dog does not have a three meter tether meets the definition of a dog in distress because it shows a current situation where the standards of care required are not being met. It is not a speculative or constructive finding of distress.

39The parties agreed that I am bound by the Regulation. The Regulation provides specific rules for the standard of care for animals in some circumstances. It specifically states that the minimum standard of care for dogs that live primarily outdoors requires that they have a chain, rope or similar retraining device used to tether a dog that is at least three meters long. Section 1 of the Act defines distress as in need of proper care. Proper care cannot include care that falls below the minimum standard of care as defined by the Regulation.

40I find that on a plain reading of the Regulation, the tethering system is required to have a length that is at least three meters long. The evidence before me, from both parties, was consistent that the length of the tether system on all dogs but one was less than three meters in length when measured from swivel to the attachment point on the dogs’ collars. The tethering system used by the appellants does not double the calculation of the length of the chain or tether such that it complies with the Regulation.

41I note that the appellants’ evidence that their tethering system was safe and humane was strongly supported by their expert witness Ms. Rollet. I also understand that sled dog codes of care around the world, including those in Canada, recommend using a 1.83 meter (or 6 feet) CRSP tethering system to allow for 360 degree movement. Unfortunately for the appellants, in Ontario, this does not meet the minimum standard of care as required by the Act and Regulation unless the tether is at least three meters in length, whether or not the CRSP tethering system is used.

G.2 The dog houses’ insulation and bedding

Appellants’ Evidence and Submissions

42Ms. Spottiswood testified that their dog houses do not contain insulation except for one or two which have insulation in the roof. Those few dog houses were acquired by the appellants and came with insulation. She stated that they use straw in the winter for insulation and wood chips in the summer. If a dog kicks out its straw then they remove the bedding. She agreed in cross-examination that none of the dog houses had three inches of compressed straw on the dates of the inspections.

43Ms. Spottiswood testified that the inspections were completed first thing in the morning and it was difficult to comment on whether or not the dogs had sufficient bedding as the dogs adjust their bedding throughout the night. The appellants submitted that they could not practically comply with the order because they use other bedding materials including wood chips or pellets.

44Mr. James Cunningham testified as an expert witness for the appellants with expertise in kennel management. Mr. Cunningham operated his own sled dog kennel for 18 years, has spent 18 years as a sled dog racing official and, currently volunteers as a kennel inspector for the OFSS.

45Mr. Cunningham submitted a report and testified in regard to the insulation of dog house requirement found in subsection 4(2) of the Regulation.

46He testified that the requirement of insulated dog houses is appropriate for sled dogs in the cool and damp months of the year. He also testified that even if the owners provide three inches of compressed straw as insulation and bedding, the dogs may kick it out of their dog houses as soon as it is placed there. This makes it a challenge for the appellants to comply with a Compliance Order that requires three inches of compressed straw at all times.

47Mr. Cunningham also stated that the Compliance Order does not allow the owners to adjust the bedding requirement to accommodate the preference of the dog or to accommodate changing weather. He also stated that wood used to build the dog houses has an insulation value.

48The appellants submitted that because wood itself has an insulation value, the dog houses meet the requirements of the Regulation. Further, the appellants submitted that there was no thought given to the possible requirement to rebuild over 100 dog houses at a time when wood prices have significantly increased due to conditions caused by the Covid-19 pandemic.

49The appellants also took issue with the R4 insulation requirement, which they said was based on a Google search by Dr. Robertson and subsequently the academic paper he found that supports that insulation value. They disputed the need for R4 insulation when the front of the dog house is a large hole that allows the free flow of air from outside to inside and vice versa. The appellants argue that none of the sled dog codes of conduct require insulated dog houses.

50The appellants also submitted that Dr. Robertson testified that the housing conditions of the dogs had improved since previous inspections in March of 2020. The appellants took that position that if the dogs were in distress previously then it was implausible that the veterinarian would leave the dogs in distress by failing to issue a compliance order. The appellants also challenged Dr. Robertson’s ability to make recommendations with regard to sled dogs when sled dogs are not his specialty.

51Finally, the appellants submitted that requiring an R4 insulation value, when none is required in the Regulation, is tantamount to asking the Board to re-write the Regulation and is outside its jurisdiction.

Respondent’s Evidence and Submissions

52Inspector Vandenkroonenberg testified regarding the observations she made of each dog house which was documented in the health logs (the “Health Logs”)² and photographed by Inspector Driscoll (the “Respondent’s Photographs”).³ Inspector Vandenkroonenberg testified that she made the majority of the observations that were recorded in the Health Logs. The Health Logs recorded descriptions of the dogs and dog house and any concerns. Some of the photos show the inside of the dog houses to show insulation and/or bedding or lack thereof.

53Inspector Vandenkroonenberg testified that there were various amounts of bedding found during the inspections. She stated that on physical inspection some of the bedding was wet or old and breaking down into dust. This was then noted in the Health Logs.

54Dr. Robertson also addressed the insulation of dog houses in his report and testimony. Dr Robertson explained that the Act and Regulation requires insulated dog houses for outdoor dogs, but that they do not provide any guidance regarding adequate levels of insulation such as specific insulation value requirements. Dr. Robertson said that the insulation of the dog house is dependent on the type of dog, noting that a densely coated breed such as a husky-type dog would require less insulation then a sparsely coated dog breed. In addition, very young or old dogs and dogs with abnormal body conditions would also have potentially different housing needs.

55Dr. Robertson opined that one must look at the purposes of insulation in animal housing to generate guidelines. He stated that insulation serves to slow the transfer of heat between the environment and the structure meaning that it slows the escape of heat in the winter and slows the movement of heat into the structure in the summer. Insulation also helps control condensation in the ceiling of animal housing.

56Dr. Robertson stated that insulation was as important in the summer as in the winter as husky-type dogs were at increased risk of hyperthermia due to increased high temperatures in the summer.

57Dr. Robertson testified that dog house roof structures and floors should be insulated to an R4 insulation value. The ceiling insulation would slow the transfer of radiant heat in the summer and cold in the winter. He stated that three inches of compressed straw would meet the requirement of an R4 insulation value and would reduce the need for structural insulation in the floor of the dog houses.

Analysis

58I find that the dog houses lacked sufficient insulation and bedding and therefore the Compliance Orders in relation to those two issues are confirmed.

59Ms. Spottiswood agreed that all but one or two of the dog houses did not contain insulation. She agreed that none contained three inches of compressed straw. Ms. Spottiswood testified that they use straw for bedding in the winter and wood chips in the summer and fall.

60The appellants’ evidence did not propose a different standard by which to determine if the insulation was adequate, only that either the wood walls were enough or some straw and/or wood chips would be adequate and that insulation was irrelevant in any event because there was a large doorway entrance to each of the houses. I found these submissions neither convincing nor responsive to the Act and its Regulation which requires proper shelter and insulation. The Regulation specifically requires that outdoor dogs must have an enclosure that is weather-proofed and insulated.

61The Respondent’s Photographs generally supported the Health Logs. With regard to insulation, the photographic evidence before me showed that some dog houses had some wood chips or straw bedding, but that it did not amount to three inches of compressed straw. Further, where there was some straw outside the dog houses, it was minimal and did not show that the dog had been provided with three inches of compressed straw but had kicked it out.

62With regard to bedding only and not insulation, there were certainly numerous photos of dog houses that contained bedding made of either straw or wood chips. Some of the photos did indicate inadequate bedding even if the houses had been insulated.⁴ In those photos, there appeared to be minimal bedding that could not cover the floor of the dog house. In many other cases, there was adequate bedding but not enough to satisfy the insulation requirements. Had the dog houses been made of insulated material, then in general, the number of dog houses lacking adequate bedding would have been minimal where the bedding was dry and sufficient to cover the floor of the dog house.

63I heard no evidence that changing the choice of bedding was a concern. I did hear evidence that the dogs tend to kick out from their dog houses that which they do not want. This is normal dog behaviour and indicates the dog’s bedding preference. With regard to bedding needs, it is expected that some dogs will prefer more bedding and others less and that this may also depend on their body condition and age.

64With regard to the evidence of the experts, where there was a conflict of opinion, I found the evidence of Dr. Robertson more persuasive than that of Mr. Cunningham with regard to the insulation of the dog houses.

65Mr. Cunningham agreed that the dogs required insulated houses. He opined that the dog houses required some insultation in the cool and damp months. However, he did not address that the Regulation requires insulated dog houses with no qualification that it only applies at certain times of the years. In that sense, his opinion conflicted with the basic minimums required by the Regulation. Finally, Mr. Cunningham did not view the dog houses of the appellants and could not provide an opinion on the actual houses that were subject to the Compliance Orders.

66Mr. Cunningham and the appellants took the position that the wood of the dog houses provides some R-value insulation and therefore the dog houses met the requirements of the Regulation without anything further. I do not agree with this interpretation of the Regulation. The argument that uninsulated wood walls on the dog house qualifies as insulation is also not supported by the Mush code of conduct which analyzes the positive and negative factors associated with “uninsulated wood or plywood houses.” Uninsulated wood or plywood houses accurately describes the majority of the dog houses on the appellants’ properties. Further, the Kennel Standards for the OFSS, for whom Mr. Cunningham does volunteer kennel inspections, requires that dog houses be constructed of a material that “can contain insulation” and that “bedding be provided that is clean and dry and sufficient for comfort and insulation.” Again, this implies something more than wood walls. I therefore do not accept that uninsulated wood housing complies with the intention of the Regulation when it states that outdoor dogs require an enclosure that is insulated.

67Dr. Robertson testified that the Regulation requires insulated dog houses. While the amount of insulation required is not stated, he opined that the appellants’ dog houses required R4 insulation in the roof and floor in order to counter the elements both in the winter, and in his opinion, as important for sled dogs, during the summer. He was cross-examined on his report, including with regard to the documents he considered in forming his opinion about the insulation requirements of dog houses. He acknowledged the authority of those works in his report and adopted those opinions; therefore those opinions became part of his evidence. I did not find that the cross-examination of Dr. Robertson was persuasive in undermining his opinion regarding the insulation level such that his opinion should not be relied on. Dr. Robertson provided his opinion that the requirement for insulation would be met with R4 insulation in the roof and three inches of compressed straw as floor insulation and bedding. I accept that opinion in this case based on the observations of Dr. Robertson of the actual dog houses, his research on the subject and his expertise in veterinary medicine.

68I cannot comment on what Dr. Robertson may have seen at a previous inspection in March 2020, and why no compliance orders were issued then. That is not something that is before me, nor is Dr. Robertson the individual who would issue compliance orders. That is not his role. That power is granted to the AWS under the Act.

69I reject the appellants’ submission that I am being called upon to make any policy determinations outside my jurisdiction. My decision is specific to the Compliance Orders before me, based on the available evidence before me and in compliance with the powers of the Board to confirm a Compliance Order. I find that the evidence before was clear that the dog houses did not have insulation and therefore they did not comply with the minimum standard of care for dogs living primarily outdoors as set out in the Regulation. There it states that such dogs require an enclosure that is weather-proofed and insulated. Section 1 of the Act defines distress as in need of proper shelter. Proper shelter cannot include shelter that falls below the minimum standard of care as defined by the Regulation.

70I accept the Compliance Order requirement that there be a minimum R4 insulation in the roof and floor of the dog houses. All parties accepted that the Regulation requires insulated dog houses. The other codes of conduct brought to my attention contain similar provisions that either require insulation or require that sled dogs be housed in dog houses that provide shelter from the elements and protection from excessive heat and cold.⁵ Dr. Robertson provided an opinion that R4 insulation in the roof and three inches of compressed straw would meet the needs of these sled dogs. I accept that expert opinion as a standard by which to determine the required amount of insulation, be it through straw or other material.

71With regard to bedding alone, I find that the evidence before me conflated the insulation and the bedding needs of the dogs particularly in terms of the amount of bedding required. The Health Logs indicated which dog houses had some bedding but did not indicate if that was sufficient to satisfy bedding only requirements. However, the Compliance Orders require three inches of compressed straw which would meet both the insulation needs of the dog house as well as the bedding needs. The Compliance Orders do offer an alternative option to three inches of compressed straw which is R4 insulation in the roof and floor and then some bedding. In that case, the amounts of bedding found in the majority of the houses would have been adequate. However, there was no evidence that this alternative option had been complied with. Finally, some of the bedding was noted to be wet. The requirement is that the dogs have a clean and dry bedding.

72In conclusion, the Compliance Orders requiring insulation and bedding are confirmed.

G.3 The size and state of repair of the dog houses

Appellants’ Evidence and Submissions

73Ms. Spottiswood testified that most of the dog houses were built by the appellants themselves and that the style of dog house had changed over the years. More recently-built dog houses contain a wind break. Ms. Spottiswood testified that some of the dog houses are built on top of a pole because the limestone ground was too hard to get a post in. Therefore a slab of concrete was poured, a pole installed, and the dog house built on top of the pole.

74Ms. Spottiswood testified that they check the dog houses on a regular basis for issues that need to be repaired. For example, if the roof needs to be repaired, then they do not rebuild the entire house but do fix the roof. She disagreed that some of the dog houses on top of poles were wobbly.

75Ms. Spottiswood was cross-examined on the size of the dog houses. She disagreed that some were too small and stated that all the dogs could go in forwards, turn around and lie down.

Respondent’s Evidence and Submissions

76Inspector Vandenkroonenberg testified regarding the observations of the dog houses including sharp objects (for example nails, screws protruding into the dog house), water damage, holes in the back or sides, missing floors, broken roofs and unsteady dog houses.⁶ Her observations were recorded in the Health Logs and photographed by Inspector Driscoll. Inspector Vandenkroonenberg testified that a dog house in a good state of repair is weather-proof and structurally sound.

77At the Severn property, Inspector Vandenkroonenberg found that of the 102 dog houses, 62 were in good repair. Of the 102 dog houses, she found that 53 were the appropriate size for the dog assigned to that dog house. On the Moonstone property, she found that of the 115 dog houses there, 84 were in a good state of repair. Of the 115 dog houses, she found that 36 were the appropriate size for the dog assigned to that dog house.

78Dr. Robertson’s expert report noted that the dog houses needed to be large enough so the dog could stand up, turn around and lie down. To add a measurement to that recommendation, Dr. Robertson’s opinion is that each dog house should be 4 inches (10 cm) longer than the measurement of a standing dog measured from nose to base of tail, 4 inches (10 cm) wider than the distance from the top of the head to the ground when standing, and 4 inches (10 cm) taller than the height of the highest point of the dog’s head when the dog is sitting or standing (whichever is higher). These measurements indicate the minimum heights, lengths and widths for the interior of the dog houses.

Analysis

79I find that overall, most of the dog houses were in a good state of repair. However, some were not and some were too small.⁷ As a result, the Compliance Orders with regard to the size and state of repair of the dogs houses shall be varied.

80The appellants cross-examined the Inspectors on issues with the intention of attacking their credibility. As a result, there was significant cross-examination on other issues. For example: did Inspector Driscoll fail to recognize bones in the snow in the photos as dog food; was Inspector James in a conflict of interest because the appellants have a civil action against the Ontario Society for the Prevention of Cruelty of Animals (the “OSPCA”) in which he is not a named as a party but the OSPCA was his employer; did Inspector Munoz fail to consult with the appellants about the orders; did Inspector Vandenkroonenberg attempt to attract a dog’s attention by offering it a handwarmer; did Inspector Driscoll incorrectly claim Dr. Rumney was unprofessional in his dealings with the AWS in her will say statement.

81I found these cross-examinations did not successfully undermine the credibility of the witnesses. This is an administrative tribunal and the evidence must be proved on a balance of probabilities, which means more likely than not. If I accept that Inspector Vandenkroonenberg showed a dog a hand warmer and should not have done so, does that mean that the measurements she took were incorrect? I found no reason to disbelieve her observations on the state of the dog houses as a result of her cross examination. Further, the Board has no role in overseeing the code of conduct of AWS Inspectors, that is not within our power and is dealt with by a different section of the Act.⁸ Inspector Munoz was under no obligation to consult with the appellants about the time requirements they needed to comply with the Compliance Orders; this does not invalidate the need for the Compliance Orders. The evidence before me did not establish that Inspector James was in a conflict of interest. Inspector Driscoll correctly identified dog bones as not fresh meat and not kibble. I found no reason to disbelieve the accuracy of her photos. Minor in accuracies were pointed out in cross-examination and the Inspectors accepted those revised observations. As a result, I find the Inspectors’ evidence was credible with regard to their recorded observations.

82The appellants also attempted to impeach Inspector Vandenkroonenberg’s evidence regarding the accuracy of her observations in their closing submissions by pointing out some possible inaccuracies in the logs and photographs. These photos and inconsistencies were not brought to the witnesses’ attention during her cross-examination. As a result, the witness was not given an opportunity to explain any possible inconsistencies. This violates the rule in Browne v Dunn,⁹ which holds that a party cannot rely on evidence that is contradictory to the testimony of a witness without first putting that contradictory evidence to the witness to give them the opportunity to respond. As a result, I put no weight on those submissions.

83Some of the dog houses had holes walls, some had exposed nails and others had broken roofs or floors. The appellants submitted that because the entrance to the dog houses was a large hole, small holes in the back or the sides of the dog houses were irrelevant. I disagree. Section 3 of the Regulation states under basic standards of care for all animals that enclosed structures must be in a good state of repair. The Regulation also require that the enclosure be weather-proofed. Holes in the walls other than the doorway mean that the dog house is not weather-proofed. Similarly, exposed nails and screws and broken roofs do not comply with the Regulations. Section 4 of the Regulation requires that outdoor dogs be given a structurally sound enclosure. It cannot be structurally sound if it is missing a floor or the roof is broken or if it is wobbly on its pole base.

84Dr. Robertson provided expert opinion evidence on appropriate measurements to ensure a dog could stand up, turn around and lay down in a dog house based on the dogs’ dimensions. The appellants challenged Dr. Robertson’s evidence on the basis that he spoke outside his area of expertise as he was not qualified as a sled dog expert. I disagree. Dr. Robertson was qualified as a veterinary expert. Dr. Robertson’s evidence on the size of the dog house and the good repair of the dog house did not require any expertise in sled dogs. I also note that the sled dog codes of conduct used similar language to Dr. Robertson in that they require the use of dog houses in good repair and large enough for the dog to stand up, turn around and lay down.

85I agree that the dogs must be able to stand up, turn around and lay down comfortably. However, I was not convinced that the majority of dog houses were too small. Nor was I convinced on a balance of probability that the measurements required by Dr. Robertson represented the standard requirements to comply with the Regulation. I find that Dr. Robertson’s suggestion was for a best practice given that the dog houses can also not be too large otherwise they would get too cold in the winter. While I don’t dispute the measurements might represent best practice, that is not the test before the Board.

86The Compliance Orders with regard to the size and state of repair of the dog houses shall be varied. The dog houses must be put in a good state of repair as stated in the Compliance Orders. The dogs must be able to stand up, turn around and lay down: however, the appellants are not required to comply with the four-inch measurements based on the size of the dog.

H ISSUE 2: WHETHER THE HORSES AT THE SEVERN PROPERTY WERE IN DISTRESS

H.1 The Validity of the Compliance Orders

87The 14 horses at the Severn property were subject to several Compliance Orders 2 and 3 as documented above in paragraph 15. These initial orders complied with s. 30 of the Act, which required the Compliance Orders to be issued in writing and have the appeal options printed on them as well. The appellants had appealed all the orders.

88At a later date, but prior to the start of the hearing, Compliance Order 2 relating only to the horses was revoked. Compliance Order 3, on its face, purported to relate to only the sled dogs; however, the supplementary page attached also had provisions relating to the horses and these lacked the appeal options.

89During the hearing, I asked the parties for submissions as to whether the supplementary page complied with the requirement of the Act as it did not include in it the required information regarding appeal options. The appellants’ position in response was that the Compliance Orders no longer complied with the Act. The respondent’s position was that Compliance Orders 1-3 combined to make one order and the revocation of part of the Compliance Order does not affect the other parts. Therefore, as one package they comply with the Act.

90The Compliance Orders were confusing. Compliance Order 2 was the only order that indicated on its face that it related to horses. That order was repealed. Compliance Order 3 only seemed to relate to dogs until halfway down an attached supplementary page. This could lead to confusion as to how to comply with the Compliance Orders.

91In addition, the supplementary page did not contain appeal provisions. Had the supplementary pages included the appeal provisions, the issue of the validity of the Compliance Orders would not have arisen. Nevertheless, the appeal provisions were provided as required by the Act to the appellants at the time of issuance of the Compliance Orders and the appellants acted upon those appeal provisions.

92I find that the later revocation of Compliance Order 2 did not render the remaining orders noncompliant with the provisions of the Act. Therefore, the Compliance Orders were not struck on that basis

H.2 Horses shall have access to adequate shelter

Appellants’ Evidence and Submissions

93Ms. Spottiswood testified that they have 14 horses, eight of which are used for providing riding experiences to their customers. She testified that the horses were regular ponies, large ponies, a thoroughbred cross, three draft crosses and one draft horse. She entered into evidence photos of her children in the paddock with the horses.

94Ms. Spottiswood testified that there is a significant amount of tree cover at the paddock. She stated that they follow the guidelines of the National Farm Animal Care Council (NFACC) and its Code of Practice for the Care and Handling of Equines (the Equine Guide). She stated that the outdoor paddock where the horses are kept have a significant number of trees around the perimeter which acts as the required shelter for the horses as stated in the Equine Guide. There is also a constructed three-sided shelter in the paddock, which can provide additional shelter. The appellants also have a barn nearby which they can use to shelter the horses in severe weather. There are five stalls in the barn and two large stalls and a lean-to. She testified that 10 horses could be sheltered in the barn and more if necessary. She also testified that the outdoor shelter in the paddock could accommodate four horses.

Respondent’s Evidence and Submissions

95Inspector Munoz agreed with the appellants’ position that the NFACC and the Equine Guide are the codes of practice related to horses that are followed across Canada.

96Inspector James testified that he did not feel the horses had adequate shelter pursuant to the Equine Guide because the shelter would only allow for two or three horses and those in the herd lower in the hierarchy would not have access.

97Dr. Robertson testified that on the day of the inspection the horses had no need for shelter. He stated that protection from the elements is the requirement of the legislation. He testified that the Equine Code required that the animals have natural or constructed shelter and that subordinate horses are not prevented from accessing shelter. He stated that the Equine Code provides requirements for pastures and for shelter.

98The respondent submitted that the Act requires that all the horses must have appropriate shelter and the shelter in the paddock was not adequate for all.

Analysis

99I find that there is adequate shelter for the horses.

100The evidence was uncontested before me that the horses were all in healthy condition and had access to a tree-lined paddock and a structure. On the day of the inspection, in the middle of February, they had no shelter requirements due to the weather.

101The appellants have complied with the requirements of the NAFCC. The NAFCC requires that horses have access to shelter, either natural or constructed, that protects them from the effects of extreme weather conditions. The photographic evidence before me showed a large paddock that was tree-lined. Trees provide natural shelter for horses. In addition, there was a large structure providing shelter for two to four horses at one time.

102Further, I accept the evidence of Ms. Spottiswood that in extreme weather, at least 10 of the horses could also be moved to the barn and the remaining four horses could shelter in the constructed shelter in the paddock if the trees did not provide enough protection.

103Dr. Robertson and Inspector James’ evidence focused on the possible shelter issues for a subordinate horse. However, if a subordinate horse is not allowed in the structure it can find shelter in the trees. I also note that there was no evidence before me of any particular horse that, as a result of being a subordinate horse, could not find shelter in the paddock, either natural or constructed. Similarly, there were concerns the trees would not provide adequate shelter for freezing rain (if not moved to the barn). Such evidence was speculative of possible distress and is not the test that is before me.¹⁰

104In conclusion, the order requiring more shelter for the horses is revoked.

H.3 Horses shall have access to adequate bedding, lying and resting area.

Appellants’ Evidence and Submissions

105Ms. Spottiswood testified that the appellants do not provide bedding for the horses as it is not required by the NFACC requirements for horses.

Respondent’s Evidence and Submissions

106Inspector Munoz testified that the day that the inspection took place, in February 2021, the paddock was covered in snow and there was no bedding area for the horses to lie down and rest.

107Inspector Driscoll testified that there was no bedding available within the paddock and that the ground of the constructed shelter was frozen and there was a buildup of manure. Therefore, there was no resting area for the horses to bed down.

108Dr. Robertson’s report simply stated that appropriate shelter and bedding should be provided in accordance with the Equine Guide.

Analysis

109I find that there is no requirement for bedding under the Equine Guide.

110I was unable to find a provision, and none was brought to my attention, that requires that the horses be provided with a bedding, lying and resting areas. The Equine Guide does require that the horses be provided with a mud-free, well-drained area on which to stand and lie down, however that was not what was ordered by the Compliance Orders.

111The evidence before me establishes that the appellants are complying with the minimum requirements of the Equine Guide and therefore the minimum standard of care as required by Act and Regulation. Therefore, the Compliance Order requiring that bedding be made available to the horses is revoked.

I ISSUE 3: WERE THE WARRANTS ISSUED IN VIOLATION OF THE ACT AND THE CHARTER

112On April 19, 2021, the appellants served Notice of a Constitutional Question to the Attorney General pursuant to Rule 11 of the Board Rules (the Charter Notice).¹¹

113The appellants advised that they intended to claim a remedy pursuant to section 8 and subsections 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms (the Charter).

114There were warrants dated January 27, 2021 and February 10, 2021 (the Warrants) and executed during the inspections of the Moonstone and Severn properties on February 18 and 19, 2021.

115The Charter Notice stated that the appellants intended to argue that in the search of the Moonstone and Severn properties pursuant to the Warrants were searches of dwellings and that the Warrants did not indicate that they applied to dwellings.

116A hearing order was issued on April 28, 2021. That hearing order notes that the appellants agreed to raise the issues raised in the Charter Notice during the hearing proper which began May 4, 2021 and make submissions at the termination of the hearing proper with respect to the same.

Appellant’s Submissions

117The appellants cross-examined all of the AWS Inspectors as to their actions with regard to the Warrants. Inspector James obtained the Warrants. The AWS Inspectors were all present during the inspection and none entered the appellants’ homes.

118The appellants submitted that section 24 of the Act authorizes the use of a warrant to inspect “any place.” Place is defined in s. 1 of the Act to include “any land, building, vehicle or vessel.” Section 24(1) allows an AWS inspector to inspect any place for the purpose of compliance with the standards of care or generally accepted practices of agricultural animal care, if the animals are kept for commercial purposes. Section 24(2) of the Act says that the warrant provisions of s. 24(1) do not authorize an AWS inspector to enter a place, or part of place, that is being used as a dwelling without a warrant unless the occupier of the dwelling consents to the entry. The appellants’ interpretation of the Act was that in order to inspect any place that has a dwelling on it, then there needed to be a valid warrant for the entire property including the dwelling.

119The appellants argued that if the Warrants were required to include authorization to enter dwellings, and these did not, then the use of those Warrants was in violation of the Charter and the evidence that flows from that Charter violation should be excluded.

120The appellants also took issue with the use of Warrants and suggested that the AWS should have instead proceeded by requesting consent to search the properties instead. The appellant stated that although they run a commercial operation, it is also their home and not all the animals are part of the business.

Respondent’s Submissions

121The respondent argued that the onus lies on the appellants to prove on a balance of probabilities that there was a Charter breach and that evidence flowing from that breach should not be admitted. The respondent submitted that the appellants did not make any submissions regarding whether of not a breach of the Charter had occurred and therefore the appellants had not discharged their burden.

122The respondent submitted that the Charter Notice stated that the premises that were searched included dwellings. The respondents noted that the Charter Notice did not raise that the law was unreasonable or that the manner of search was unreasonable. The respondent submits that at the hearing the appellants attempted to go behind the prior authorization of the Warrants by the Justice of the Peace at the Ontario Court of Justice (OCJ) and that this was not what was in their Charter Notice and a collateral attack on the powers of the OCJ.

123The respondent argued that the warrant provisions in the Act state that Inspectors cannot enter a place or part of a place being used as a dwelling without a warrant authorizing entering a dwelling. Since the lands and barn do not fall into this category, the respondent argued that the Warrants did not need to indicate the power to search a dwelling.

124The respondent submitted that s. 24 of the Act allows AWS inspectors to inspect a commercial operation to determine if it is in compliance with standards of care without a warrant. The AWS inspectors in this case took the additional step of obtaining a warrant in any event. Therefore, the inspections were authorized by the Act and authorized by the OCJ warrant. In the alternative, the respondent argued that the Board has no authority to invalidate an OCJ warrant.

125The respondent provided further submissions with regard to the test based on The Queen v Grant¹² for exclusion of evidence under s. 24(2) when there has been a breach of the Charter. Such a remedy must be based on the seriousness of the infringing state conduct, the impact on the accused and whether breach is fleeting or technical, society’s interest in the case on its merits and whether the admission of the evidence would bring the administration of justice into disrepute.

Analysis

126I find that there was no breach of the Charter.

127The onus to show a Charter breach is on the appellants. The appellants did not provide fulsome submissions on the full scope of the Charter concerns. The submissions I received were primarily from the respondent in response to the issues the appellants had said they would raise in their Notice of Appeal and Charter Notice. However, there is an onus on the respondent to establish that its actions in issuing the Compliance Orders were lawful under the Act. Therefore, I will provide my findings below based on the evidence and submissions I did receive on these issues.

128It was uncontested before me that the AWS inspectors obtained a warrant to search the two properties owned by the appellants and that those warrants did not include judicial authorization to search a dwelling.

129It was also uncontested that the AWS inspectors did not enter the dwellings of the appellants during their inspections. They did, however, inspect the lands, paddocks and the barns.

130Section 24(1) of the Act specifically allows AWS Inspectors to conduct a compliance check of a commercial entity in order to determine whether it is in compliance with the applicable standards of care. No warrant is required. Nevertheless, section 24(4) allows for AWS Inspectors to make an application for a warrant before a justice, without notice, for any reason under s. 24(1). The AWS inspectors took that extra step that is authorized under the Act and obtained prior judicial authorization for the inspection. The Warrants did not include a provision for the inspection of a dwelling. No dwelling was searched.

131I cannot find on the facts of this case that there was any breach of the Act. A warrant was not required but obtained in any event. Therefore, even if there had been a flaw in the warrant, prior judicial authorization was not needed. I also have no authority to invalidate the warrant issued by a Justice of the Peace of the OCJ in any event. As I said many times during the hearing, my powers are limited to those in the Act which allow me, under s, 38(9) only to confirm, revoke and amend an order issued under s. 30 of the Act.

132Based on the Charter Notice before me, the facts of the case and the evidence presented, the appellants have not met their onus to show that the Warrants were issued and/or the subsequent inspection was carried out in breach of the Charter. Because there was no unlawful search, s. 8 of the Charter is not engaged. As such I do not need to consider whether a remedy is owed.

J COSTS

133After the hearing, but prior to the issuance of this decision, the parties sought costs in the matter pursuant to the Rules.

134The parties will be provided with dates following the release of this decision by which to provide cost submissions, if any, to the Board.

ORDER:

135Pursuant to the powers of the Board under s. 38(9) of the Act, the Board orders that:

a. The Compliance Orders with relation to the dogs are confirmed, except for the Compliance Order relating to the size of the dog houses.

b. The Compliance Orders with relation to the size of the dog houses is varied. The dogs must be able to stand up, turn around and lie down. The requirement that the interior measurement of each dog house exceed by four inches the height, width and length of the individual dog’s measurement is removed.

c. The new date for compliance with the above orders is amended to September 1, 2021.

d. The Compliance Orders in relation to the horses are revoked.

Footnotes

1. 12015 CanLII 105971 [Pryor].
2. 2Exhibit 10
3. 3Exhibits 14 and 15
4. 4See Exhibit 14 photos: Telford set 1, photos 48; Telford set 3, photos 69, 97.
5. 5See BC Sled Dog Code of Practice, pg 28 housing system; BC Reg. 21/2012 Sled Dog Standards of Care Regulations s. 7; Mush with P.R.I.D.E. Sled Dog Guidance, “shelter”,
6. 6See Ex 14, Telford Line set 2, photo 49 – holes in back wall; Telford Line set 4, photo 52 – sharpes on wall; Telford line set 4, photo 53 – broken roof; Telford line set 4, photo 72 – wobbly dog house; Telford line set 1 photo 94 – water staining.
7. 7See for example Ex 14, telford Line set 1, photo 50 – dog appears too large for dog house; Telford Line set 4, photo 52 – sharpes on wall; Telford line set 4, photo 53 – broken roof.
8. 8See sections 5 – 12 of the Act.
9. 9(1893) 1893 CanLII 65 (FOREP), 6 R. 67, H.L. (House of Lords)
10. 10See Pryor at footnote 1.
11. 11Licence 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).
12. 122009 SCC 32