Tribunals ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission d’étude des soins aux animaux

Date: 2021-06-24

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Anita Jackson

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

PANEL: Marisa Victor, Member Susan Clarke, Member

APPEARANCES:

For the Appellant: No one appearing

For the Respondent: Michael Draper, Agent

Heard in writing: June 1, 2021

REASONS FOR DECISION AND ORDER

A OVERVIEW

1On May 12, 2020, several orders were made by animal welfare inspectors in relation to horses owned by the appellant, which included the removal of 19 horses. Continuing until October 7, 2020, more orders were issued, and more horses removed (collectively the “Removal Orders”). From May 2020 until October 2020, a total of 89 horses were removed from the appellant. Ms. Jackson has appealed the Removal Orders together with the Statement of Account for the care of the horses.

2Some of those horses have since had foals, so the total number of horses at issue in this appeal now numbers 98 horses.

3The Statement of Account for the care of the horses as of April 20, 2021 was approximately $650,000.

B PROCEDURAL HISTORY

4The first case conference was held on May 26, 2020. At that time and for most of the procedural history, the appellant was represented by Donald Good, counsel.

5The hearing was initially scheduled to take place on June 3, 2020 in compliance with the prescribed timelines of the Provincial Animal Welfare Services Act, 2019 (the Act) but was adjourned on consent of the parties.

6A further hearing was scheduled for late November, with a disclosure deadline of November 2, 2020. The appellant did not meet the disclosure timelines and as a result, the hearing was adjourned again.

7A further case conference was held on December 7, 2020. At that case conference, the parties requested that the hearing take place in writing. The Board member set a detailed timeline for the written hearing together with deadlines for disclosure. The respondent had already substantially completed disclosure, the appellant had not. The appellant was ordered to complete her disclosure by January 29, 2021. Final submissions were due by March 8, 2021.

8The appellant did not provide disclosure. Other timelines were not met.

9On March 1, 2021, appellant’s counsel, Mr. Good, advised that due to ongoing personal issues he could not continue to represent the appellant. As a result, the hearing date of March 8, 2021, was cancelled to give the appellant time to find new counsel.

10A case conference was held on April 1, 2021. The parties confirmed that the matter would proceed by written hearing with a date of completion of May 31, 2021. Mr. Good attended on behalf of the appellant. He agreed that any new counsel had to be prepared to adhere to the timelines set by the Board, and in particular, the hearing’s completion by May 31, 2021, and he understood that no more adjournments of the hearing would be granted. Further, the appellant undertook to file a declaration of representative as soon as possible, and before the case conference resumption on April 13, 2021.

11At the case conference on April 13, 2021, Mr. Good advised that the appellant had not yet retained new counsel. Both parties agreed that the timeframes set out for various hearing events in the Board’s December 2020 Order were appropriate and affirmed that the May 31, 2021 date for completion of the written hearing should be maintained.

12Mr. Good did not formally remove himself from the record as appellant’s counsel. Nor did the Board receive any new declaration of representative from any new representative for the appellant. The appellant did not file any materials, disclosure, submissions or otherwise, in order to comply with the orders of the Board for the written hearing.

C ISSUES

13The issues before the Board are:

a. Whether the appeal has been abandoned;

b. Whether the horses were in distress at the time of their removal and whether they should be returned to the owner; and

c. Whether the Statement of Account should be confirmed, revoked or varied.

D RESULT

14Despite an extensive procedural history providing the appellant with every opportunity to take part in the appeal, the appellant failed to comply with any of the timelines for disclosure and provided no evidence or submission in support of her appeal. As a result, the appeal is deemed abandoned.

E ISSUE 1: WHETHER THE APPEAL HAS BEEN ABANDONED

15Section 38(1) and (2) of the Act provides a right of appeal of a decision for removal by an animal welfare inspector and of a statement of account, respectively.

16After a hearing, under s. 38(9) the Board has the authority, among other things, to order that an animal be returned to the owner and to confirm, revoke or vary a statement of account.

17Here, the appellant has provided no disclosure and no submissions to support her appeal. The Board went out of its way to provide her with extensive opportunity to take part in the hearing. Rule 3.4, which requires a notice of dismissal when a proceeding is deemed abandoned, does not apply in this circumstance given that the hearing was held. If the Rule does apply, given the exceptional nature of this case including the extensive procedural history, the amount of horses seized and the high value of the statement of costs, the rule is waived pursuant to Rule 3.1.

18Therefore, given that the appellant has not filed any evidence to meet her onus to prove that the horses should be returned, or the Statement of Account should be revoked or varied, we find that the appeal has been abandoned.

19Given our finding above we do not need to determine issues 2 and 3. Nevertheless, in the event we are mistaken, and due to the exceptional nature of this case, we have reviewed the respondent’s materials and satisfied ourselves in any event, that the evidence provided by the respondent shows that the animals were in distress at the time of their removal, that they should not be returned and that the Statement of Account should be confirmed as set out below.

F ISSUE 2: WHETHER THE HORSES WERE IN DISTRESS AT THE TIME OF THEIR REMOVAL AND WHETHER THEY SHOULD BE RETURNED

20We are satisfied, based on the respondent’s extensive evidence filed, that there were grounds for the removal of the animals on the basis that they were in distress as defined by the Act.

21Section 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.

22The respondent filed extensive evidence to support their submissions. This evidence included:

a. Various veterinary reports;

b. A will say for the Inspector (no cross-examination questions were received by the respondent from the appellant);

c. The April 20, 2021 statement of account totaling $652,690.27;

d. A three-page invoice summary detailing veterinary and other costs totaling $653,532.45 dated May 13, 2021;

e. An extensive horse inventory documenting the history and issues pertaining to each horse; and

f. A July 31, 2017 Ontario Court of Justice court order issued against the appellant pursuant to a conviction under the Ontario Prevention of Cruelty to Animals Act (the “Court Order”).

23The evidence filed supports the following determinations:

a. Many of the horses were in poor body condition and malnourished. The appellant lacked a nutrition program for the horses;

b. Many of the horses had a significant parasite condition and there was no parasite treatment or control;

c. The horses were described as feral or semi-feral and there was evidence of stallion aggression with no segregation of animals and poor fencing;

d. The Court Order required the appellant to develop a herd management plan which was not completed.

e. The Ministry removed suckling foals on emaciated mares due to body conditions of two out of nine or below. It was difficult to determine which foal belonged to which mare. Some mares were back in foal with a foal still at their side;

f. Many of the horses required hoof care and there was no or poor hoof care provided;

g. Many of the horses required dental care;

h. Several of the horses had untreated medical conditions including laceration injuries; and

i. Horses lacked appropriate/effective shelter and lacked sanitary living conditions.

24It is clear from the materials filed by the respondent that the horses met the definition of distress as set out in the Act at the time of their removal.

25The respondent’s position is that the horses should not be returned to the owner and the respondent should decide each horse’s future.

26Given the appellant has not submitted evidence to support her appeal, there is no evidence before us on which we could determine that the conditions that caused distress have ceased to exist. Therefore, we cannot order their return to the owner. We accept the respondent’s position that it may determine the fate of the horses.

G ISSUE 3: SHOULD THE STATEMENT OF ACCOUNT BE CONFIRMED, REVOKED OR VARIED?

27Regarding the Statement of Account, the appellant led no evidence to show that the costs were not fair or reasonable. The invoice summary shows an accounting of the costs which closely matches the Statement of Account. These costs were for veterinary care, boarding and associated care costs such as transportation and farrier costs. The discrepancy between the invoice summary and the Statement of Account relates to the dates of the documents and that costs continue to mount daily for the care of the 98 horses.

28We find that the overall cost of the care of 98 horses, for approximately a year, is reasonable under the circumstances given their poor health when they were removed and the fact that several of the mares were in foal at the time and the added costs for the care of the new foals.

ORDER:

29The appeal is dismissed as abandoned.