Appeal under s. 38(1)(2) of the Provincial Animal Welfare Services Act, 2019, SO, 2019, c.13
Between:
Ernie Michon
Appellant
And
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Stephanie Kepman, Member
Appearances:
For the Appellant: Self represented
For the Respondent: Connie Malory, Regional Supervisor, Animal Welfare Services
Interpreter: Linda Rochon (French)
Hearing by teleconference: June 7 & 10, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
The appellant, Ernie Michon, is the owner of several farm animals in North Cobalt, Ontario. The animals include a calf, two adult female pigs, seven juvenile piglets, one bull, three cows, a goat and three miniature ponies.
On May 6, 2021, a Notice of Removal was issued for a calf in the appellant’s care. On May 13, 2021, a statement of account was served in relation to the care of the calf (the “first statement of account”).
On May 13, 2021, the respondent issued another Notice of Removal for two adult, female pigs, seven juvenile piglets, one bull, three cows, a goat and three miniature ponies. The respondent sent the statement of account related to the care of these animals on May 26, 2021 (the “second statement of account”).
The appellant appealed the first statement of account in writing in accordance with section 38(1)(2) the Provincial Animal Welfare Service Act, 2019 (the “Act”). He did not appeal with second statement of account.
At the case conference on May 31, 2021, the parties agreed that the appeal could address both the first and second statement of accounts at the hearing scheduled for June 7, 2021, provided the appellant wrote to the Animal Care Review Board (the “Board”) to confirm that he is appealing the second statement of account in accordance with the Act.
At the time of the hearing, the animals are still in the care of the respondent.
Preliminary Issue
At the beginning of the hearing, I sought to clarify the issues in dispute before the Board. The respondent directed me to the fact that the appellant had failed to contact the Board prior to the hearing regarding the second statement of account. Based on this, she requested that we only address the issues related to the first statement of account, being related to the calf.
I asked the appellant if he had contacted the Board prior to the hearing, stating his intention to appeal the second statement of account. The appellant confirmed he had not.
Based on this, the Board will not address the issues related to the second statement of account, as section 38(2) of the Act requires an appeal to the Board to be made in writing, which the appellant has not done.
ISSUES
- The issues to be decided by the Board are:
a. Should the calf, removed on May 6, 2021, be returned to the owner?
b. Should the statements of account related to the calf be confirmed, revoked or varied?
RESULT
I am satisfied that Inspector Erin Brûlé had reasonable grounds to believe that on May 6, 2021, the calf in question was in distress and was acting within her authority to remove the calf pursuant to section 31(1) of the Act.
I find that the calf should not be returned to the appellant for the reasons outlined below.
I also find that the statements of account related to the calf, last updated on June 22, 2021, in the amount of $1,279.99 is reasonable and will not be reducing or varying it.
POWERS OF THE BOARD AND THE LAW
- Section 38(9) of the Act gives this Board the authority, after a hearing, to:
a. Confirm, revoke or modify an order made under section 30;
b. 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; and
c. Confirm, revoke or vary a statement of account served under s. 35(1).
Section 31(1)(a) of the Act states that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress, if a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates it’s removal.
Distress is defined in s. 1(1) of the Act as “the state of being (a) in need of proper care, water, food or shelter, (b) injured, sick, in pain or suffering, or (c) abused or subject to undue physical or psychological hardship, privation or neglect.”
Section 38(1) of the Act provides a right of appeal of an order for removal under s. 31(1). Section 38(2) allows for an appeal of a statement of account, which is served under 35(1) of the Act.
The respondent bears the burden of proving, on a balance of probabilities, that the removal of the calf was permitted under the Act and that the Statement of Account is reasonable.
EVIDENCE AND ANALYSIS
Respondent’s Evidence
Inspector Brûlé testified that she received an email from their dispatch centre regarding an anonymous report outlining concerns about the treatment of the appellant’s livestock.
Inspector Brûlé testified that she attended the appellant’s property on May 6, 2021 at approximately 12:22 pm. She looked through a garage window and saw the calf in question housed there. She testified that she observed that the straw, used for the calf’s bedding, was completely saturated with urine and that the calf was not confined to specific areas of the garage.
While inspecting other animals on the property, Inspector Brûlé saw two “new people”, meaning not the appellant, remove the calf from the garage. She said these people identified themselves as friends of the appellant and tried to bottle feed the calf.
Inspector Brûlé could see through the open door of the garage, where she could see that the calf’s bedding was saturated with liquid. She also noted that the garage smelled like gasoline.
Inspector Brûlé observed the calf walking loose on the property. She stated that she noticed the calf’s front knees were significantly swollen. She qualified the calf’s abilities as “being able to walk but was very stiff when moving”. She also observed that the fur on the calf’s abdomen was completely soaked with what she believed was urine.
Inspector Brûlé stated that she was concerned about the calf being confined to the garage and about its sanitary conditions. She also noted that the lack of confinement in the space presented a hazard to the calf, as there were tools and other objects in the garage. She also expressed concern about housing a calf on cement flooring.
Inspector Brûlé took several photographs on May 6, 2021, which were presented during the hearing. The photos appeared to depict the calf, with obvious swelling in its front knees and with a wet abdomen at the time.
Inspector Brûlé sent the photos to veterinarians Dr. Robertson and Dr. Gaw via text message. Inspector Brûlé was able to speak to Dr. Gaw at approximately 1:14 pm, while at the appellant’s property.
Dr. Gaw testified that she identified concerns related to the calf’s knees and that the calf had not received colostrum. Dr. Gaw explained that colostrum is the “first milk from a mother”. Normally, a calf requires colostrum for its immune system. Dr. Gaw also noted that it was vital for a calf to receive colostrum within twenty-four hours from birth, or a colostrum deficiency, characterized by swollen knees, could occur.
Inspector Brûlé was under the impression that the calf had a colostrum deficiency because its mother refused to nurse it. She also added that she believed that the appellant failed to provide the calf with colostrum based on her later conversations with the appellant.
Inspector Brûlé testified that she then had a video call with Dr. Robertson to show him the calf in real-time. As a result of this video call, Dr. Robertson issued a Certificate of a Veterinarian for the removal of the calf.
Inspector Brule then issued a Notice of Removal for the calf to the appellant. The calf was then taken to Dr. Gaw to be examined.
Dr. Gaw testified that examined the calf later that day. During her testimony, she referred to a report she had authored regarding her observations of the calf and its treatment at the veterinary.
She noted that when she originally saw the calf, it had a mild fever, swelling around his umbilicus or belly button, and some swelling in both of his carpi, or knees. Dr. Gaw also noted that the calf’s entire abdomen and front legs were wet and soaked through its fur.
Dr. Gaw stated that she was concerned about failure of passive transfer due to a colostrum deficiency. She elaborated by testifying that calves who are rejected by their mothers can receive colostrum from a vet, but it needed to be given within the first twenty-four hours of birth. Without this colostrum, Dr. Gaw stated that calves can be more prone to infection, such an umbilicus infection, as well as having bacteria enter their lungs or intestines. Dr. Gaw opined that the calf did not receive the colostrum needed, and as a result, the calf was suffering from infection in his umbilicus that spread to its joints, specifically the front knees.
Based on her observations, Dr. Gaw felt the calf did not need to be euthanized and that the calf could benefit from treatment. Dr. Gaw also opined that if the calf had not received treatment on May 6, 2021, the calf would have deteriorated due to disease.
Dr. Gaw testified that she prescribed an antibiotic to treat the calf’s joint issues and to address the inflammation in the calf’s knees. She also prescribed a painkiller to help with the inflammation of the calf’s knees, umbilicus and fever.
Dr. Gaw noted on May 6th that the calf could walk, but took small, little steps though the calf’s gait was normal.
Dr. Gaw was asked to describe the state of the calf’s umbilicus on her examination. She stated that it required iodine treatment in order to dry it up. She stated that an umbilicus must be dry, or it will be prone to infection. She opined that the wet umbilicus was caused by the appellant giving the calf inappropriate bedding, forcing the calf to sit in its own urine and as a result of not having enough bedding, the calf suffered a urine scald on his abdomen.
Dr. Gaw recommended ongoing treatment for the calf. The calf was transferred to a foster family close to Dr. Gaw, in the event that the calf needed further, emergency treatment.
On May 10th, Dr. Gaw observed that the calf’s fever had disappeared, his skin was less red, and that it was doing well with its foster family. The calf’s umbilicus and knees were still swollen, so she prescribed more medication for continued treatment of the calf’s umbilicus and swollen knees.
Dr. Gaw revaluated the calf on May 17, 2021. She noted that there was more swelling in the calf’s left, front knee. She was concerned there was pus building up in the joint.
After taking fluid from the calf’s knee via syringe, Dr. Gaw noted the calf seemed more comfortable and started moving around and playing more. The foster family caring for the calf agreed to continue with the treatments of Florfenicol and Meloxicam.
Dr. Gaw examined the calf again on May 17 and May 25, 2021. The calf’s swelling had improved by May 25th, which allowed the calf to be transferred to a foster family with lower boarding fees.
The respondent issued a statement of account to the appellant on May 13, and updated statements on May 26 and June 2, 2021. As of June 2, the updated Statement of Account was as follows:
$20/day x 22 days for boarding fees - $626.90
Veterinary costs - $560.98
Milk replacer & bottle - $92.11
TOTAL - $1,279.99
- Finally, Dr. Gaw stated that, in her opinion, given the condition of the calf on May 6, 2021, the calf was in distress and removal was warranted under the Act. As of the date of the hearing, she stated that the calf was still undergoing treatment and could not be released. She also opined that all fees associated with the calf’s care were necessary and reasonable.
Appellant’s Evidence
The appellant testified that he is the custodian of the calf which was born April 21, 2021. He testified that the weekend after it was born, the calf was visited by a veterinarian though he was not present for that visit because he was at work.
However, he stated that his tenant, Mr. Arnell Rockburn, told him the calf was well and that the veterinarian left two injections for the calf to receive. He was not able to specify what those injections were, other than “vitamins”. The appellant was unable to specify the name of the veterinarian or the date of the visit.
The appellant was not home on May 6, 2021, when the calf was removed from his care. When asked why the calf had a colostrum deficiency, the appellant said he didn’t have answer, but that no one told him there was something wrong with the calf. He stated that if the calf was that sick, the veterinarian who gave him the injections ought to have advised him.
He disputed the respondent’s position that the calf was in distress on May 6, 2021. He also disputed that the calf had a urine burn. He explained that the calf was “fine” on May 6, 2021 and was drinking its milk and had its head up. The appellant stated he had never noticed the urine burn or swollen knees on the calf.
The appellant took issue with the respondent not bringing the calf back to him once Dr. Gaw inspected it. Inspector Brûlé explained to the appellant that in order for the animal to be returned, he had to pay the statement of account when he contacted her after the calf was removed.
The appellant also took issue with the respondent “taking too long” to serve the Statement of Account on him, as he felt the May 13th account ought to have been served earlier. He also felt he should have been contacted by Dr. Gaw in order to decide on treatment for the calf.
The appellant took issue with the amount of the bill, stating it was very high. He continued by stating that he should not be responsible for the Statement of Account for the calf because it should never have been removed.
The appellant called his friend, Fleurette Doire, to testify. Ms. Doire stated that the appellant was “new” to farming and did not have experience with farm animals like the calf. Since Ms. Doire grew up on a farm, she offered to help the appellant.
She testified that the appellant informed her that the calf’s mother had rejected the calf when it was born. As a result, the appellant asked Ms. Doire for advice on caring for the calf. Ms. Doire testified that she told the appellant to speak to a veterinarian.
Ms. Doire echoed the appellant’s position that the calf was not in distress.
I will now address the issues, in light of the evidence set out above
Was the calf in distress on May 6, 2021?
After considering the evidence presented by the parties on a balance of probabilities, I find that the removal of the calf of May 6, 2021 was warranted, as the calf was in distress.
I base myself of the testimony of Dr. Gaw and Inspector Brûlé, which I accepted. Inspector Brûlé’s observations and concerns about the health of the calf were confirmed, first by Dr. Robertson and then, upon further examination, by Dr. Gaw. The calf required an extensive period of antibiotics to treat it’s diagnosed issues and is still receiving treatment.
Should the calf, removed on May 6, 2021, be returned to the owner?
- As stated above, the appellant takes the position that the calf should be returned to him because he maintains it was not in distress. The Act does not list any factors to be considered in relation to whether lawfully removed animals should be returned to their owners. In this appeal, I have considered the following1:
a. whether the conditions giving rise to the removal of the calf in the first place have been remedied;
b. whether the appellant has the ability and willingness to provide appropriate care for the calf in the future to prevent a recurrence of the conditions that led to their removal; and
c. whether the calf will be placed in distress if it is returned to the appellant.
The appellant has not provided any evidence that the housing or sanitary conditions of the calf have improved since it’s removal.
Instead, he maintains that the conditions he provided to the calf did not cause distress. He denied being aware of any of the health issues the calf faced, which is concerning as, based on the photos presented by the respondent, it was clear that the animal was in fact in distress on May 6, 2021.
With respect to the appellant’s ability and willingness to provide appropriate care for the calf in the future, I have significant concerns.
I note that the appellant stated multiple times that the calf was not in distress, despite being presented with medical evidence to the contrary, without taking responsibility and accountability regarding the care of this animal. As a result, I am concerned that the appellant will return the calf to its previous poor living conditions.
As demonstrated by Dr. Gaw, the appellant did not provide the calf with an appropriate place to live; the calf was not confined and therefore risked hurting itself, and was burned by its own urine from an inappropriate and insufficient bedding provided by the appellant.
Without the appellant willing to learn how to properly care for a calf in terms of its health needs, I am not satisfied that the conditions giving rise to the removal of the calf have been remedied.
For these reasons, I find that ordering the return of the calf to the appellant’s care will place it in distress, and I decline to return the calf to him.
Should the Statement of Account related to the calf be confirmed, revoked or varied?
The appellant requested that the veterinary portion of the Statement of Account be forgiven because the calf was healthy and did not require veterinary care.
Since I have found that the calf was in distress on May 6, 2021 and did require removal, I reject this argument.
The appellant did not provide any submission beyond this regarding the Statement of Account.
After considering the evidence presented by the parties, I find that the Statement of Account presented by the respondent was reasonable. Dr. Gaw was able to provide direct evidence that the calf has require ongoing boarding and treatment, due to the health issues it was experiencing. I confirm the Statement of Account presented by the respondent and find the appellant is responsible for paying this amount.
ORDER
For the reasons above, the Board orders as follows:
The appeal is denied and the removal of the is confirmed, pursuant to section 31(1) of the Act.
The appeal of the Statement of Account dated June 2, 2021 is dismissed and the Statement of Account is confirmed.
Released: July 09, 2021
Stephanie Kepman, Member
Footnotes
- Gowland v. Chief Animal Welfare Inspector 2021 ONACRB 2 at para 49.