Tribunals Ontario
Animal Care Review Board
Tribunaux décisionnels Ontario Commission D’étude Des Soins Aux Animaux
Date: 2021-08-10
Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13
Between:
Melanie Blais Appellant
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair Animal Care Review Board
Appearances:
For the Appellant: Self-represented
For the Respondent: Craig McManus, Regional Supervisor, Animal Welfare Services
Hearing by teleconference: June 14 and 23, 2021 and by written submissions
DECISION AND ORDER
OVERVIEW
1Melanie Blais (the “Appellant”) is appealing the removal of seven horses from her property on May 27, 2021 by Animal Welfare Service (“AWS”). The Notice of Removal was issued by AWS to Ms. Blais, her mother, Birgitt Seel, and to her sister Melissa Seel; each of whom own several of the horses (the “Removal Order”). On June 7, 2021, AWS issued three updated Statements of Account to the Appellant, Birgitt Seel and Melissa Seel as owners/custodians of the various horses. The Appellant denies that the horses were in distress on May 27, 2021 and also asserts that the removal was done improperly and without authority. The Appellant also disputes the Statements of Account.
2As the evidence made clear, the removal of the horses has been very upsetting for the Appellant. While much was in dispute in this hearing, the fact that the Appellant cares deeply for the horses was not disputed. Distress is a defined term. The horses were removed because the orders issued under s. 30 of the Provincial Animal Welfare Services Act, 2019 (the “Act”) had not been complied with.
ISSUES TO BE DECIDED
3The issues to be decided by the Board are as follows.
a. Was removal of the horses warranted due to noncompliance with the Orders issued and/or the horses’ distress, as defined by the Act?
b. Was the removal of the horses conducted properly and with proper authority?
c. Should the statements of account be confirmed, revoked or varied?
d. Should the horses be returned to the Appellant?
4For the reasons that follow, I find that the removal of the horses on May 27, 2021 was warranted and carried out properly pursuant to the Act. The Statements of Account are confirmed. I make no order for the return of the animals.
THE LAW
5Section 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.
6Section 30 of the Act grants the AWS the power to issue a compliance order regarding an animal if an AWS inspector has reasonable grounds to believe that an animal is in distress. They may order the owner or custodian of the animal to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, for example, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.
7Section 31(1)(c) permits an animal welfare inspector to remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if an order respecting the animal has been made under s. 30 of the Act and the order has not been complied with.
8Section 38(1) provides an owner or custodian with a right of appeal of a decision for removal by an animal welfare inspector and s. 38(2) provides the right of appeal of the statement of account.
9The Respondent bears the burden of proving on a balance of probabilities that the removal of the horses was permitted under the Act.
10Section 38(9) gives the Board authority, among other things, to order that an animal be returned to the owner and to confirm, revoke or vary a statement of account.
EVIDENCE AND ANALYSIS
Chronology of events leading to the Removal Order
11The context is important to the issues before me. In this decision I will only address the evidence and submissions relevant to my analysis of the issues to be decided. How the AWS inspectors perform their duties, or suggestions by the Appellant that the removal of the horses was a “money grab” are not issues for the Board to determine and will not be addressed in the decision.
12An AWS inspector (Inspector Alemany) first attended at the Appellant’s property on March 25, 2021, responding to a report that there was no shelter for the horses on the property. Inspector Alemany did not enter onto the property as a gate blocked her entry. She did leave a notice regarding the reason for her attendance, with her contact information.
13Inspector Alemany testified that she spoke to the Appellant by phone on March 30, 2021. In that conversation, the Appellant explained that there was a shelter for the horses but that it had come down in a windstorm. She also stated that she was planning on re-building the shelter and that the horses were regularly seen by a veterinarian and a farrier, for their hoof care. At this time, Inspector Alemany scheduled a visit to the property, on April 7, 2021.
14On April 7, 2021, Inspector Alemany observed eight horses – a bay coloured thoroughbred type horse, a black and white Clydesdale type horse, two miniature ponies, two Fjord type horses one of which was a 24 year old mare (identified as ‘Stella’), a 26 year old bay coloured mare (identified as ‘Nora’) and a nine month old ‘paint’ coloured horse (identified as ‘Porsha’ by the appellant and ‘Portia’ by the AWS inspectors) which was housed alone in a pen. The Appellant explained to Inspector Alemany that two of the horses, Stella and Nora, were suffering from Heaves and Cushing’s disease respectively, but that they were being treated. Inspector Alemany made observations about the body condition of the horses, noting as well that that their hooves were overgrown and their bedded areas and their shelter inadequate. As a result, she issued several Compliance Orders to the Appellant. Melissa Seel, the Appellant’s sister was also present during the inspection but Inspector Alemany did not speak to her.
15The Compliance Orders were as follows:
- All animals must be provided with adequate and appropriate three (3) sided, roofed shelter – completion date of April 16, 2021
- All animals must be provided with adequate hoof care and trimming by an experienced and knowledgeable farrier – completion date of May 5, 2021
- Ensure all animals have a dry, bedded resting and sleeping area that they always have access to – completion date of April 16, 2021
- Regarding the nine month old ‘paint’ mare, ensure that she has daily opportunity for turn out and adequate exercise – completion date of April 7, 2021
- Regarding Nora, have her examined by a veterinarian with special care to overall body condition and health and provide the AWS inspector with documentation from the veterinarian outlining the examination findings and treatment recommended and undertaken – completion date of April 14, 2021
- Regarding Stella, the Fjord type mare, have her examined by a veterinarian with special care to overall body condition and health and provide the AWS inspector with documentation from the veterinarian outlining the examination findings and treatment recommended and undertaken – completion date of April 14, 2021
16The Appellant testified that she explained to Inspector Alemany on April 7, 2021 that because of Nora’s age and the fact that she was suffering from Cushing’s disease, her intention was to ‘put her down’ to alleviate her suffering. However, she wanted to wait until the ground thawed so that she could be buried on the property. The Appellant also testified that while several Compliance Orders were issued, her understanding was that the two older horses were Inspector Alemany’s main concern. She also indicated to Inspector Alemany that she would have a veterinarian attend to examine Nora and Stella but she could not achieve that by the April 14, 2021 completion date on those orders. The Appellant did not appeal the Compliance Orders issued on April 7, 2021.
17On April 22, 2021, Inspector Alemany attended at the property again, this time also with Inspector Lapping. When they arrived, the Appellant was not present. The purpose of their visit was to determine whether there was compliance with the April 7, 2021 orders. Inspector Lapping also testified at the hearing and was qualified and accepted as an expert in equine care and welfare. Inspector Lapping’s observations, summarized, were as follows:
- There were seven horses in a paddock with no shelter. The ground was saturated with water and a significant accumulation of fecal matter. There was no straw or other bedding for the horses and a strong odour of ammonia was present
- Nora was noticeably thin on her examination. Stella, who had been identified as having Heaves did not appear to be struggling excessively though Inspector Lapping did determine that she needed some medical support as she was not breathing regularly
- All of the horses required hoof care. Their hooves were elongated and one of the miniature horse’s hooves were starting to curl upwards, causing difficulties with her balance and gait
- There was little or no dry resting area for the horses
- Regarding Porsha, her pen was small and she was pacing, appearing frustrated. The bedding in her stall was soiled and wet. There was no hay present. She was in need of hoof care
18Inspector Lapping made these observations before the Appellant’s arrival at the property. When she did arrive, the Appellant was very upset to see them and questioned their authority to be there. Inspector Lapping testified that she appreciated the Appellant’s concern as the Appellant had stated that she wanted advance notice of their attendance, which had not been given in this instance. However, Inspector Lapping advised the Appellant that they were inspecting for compliance as they were permitted to do under the Act (specifically pursuant to s. 24 of the Act). They confirmed with the Appellant that neither a veterinarian nor a farrier had attended to examine/treat the horses.
19Inspector Lapping stated that Nora’s body condition was of great concern on April 22, 2021. They indicated to the Appellant that they would be removing her on that day to ensure that she had the necessary medical care to relieve her distress. The Appellant became increasingly upset and as a result they decided not to remove Nora that day and left the property.
20On April 30, 2021, Inspector Lapping learned from a local veterinarian that Birgitt Seel, the Appellant’s mother, was the new owner of Stella and Nora. This was confirmed by the Appellant in telephone conversation on May 5, 2021. She told inspector Lapping that her mother had purchased them for $500. She also confirmed that neither the veterinarian nor the farrier had attended yet, but that efforts had been made to build a new shelter and that Porsha was being walked in hand to provide her with exercise. During this conversation, Inspector Lapping arranged with the appellant that she would attend at the property on May 6, 2021.
21On May 6, 2021, Inspector Lapping observed that Stella was having difficulty exhaling. Nora was very thin; most of her skeletal structure was visible to Inspector Lapping. She also observed symptoms that suggested that Nora was unable to swallow which likely resulted in her weight loss. She determined that the two horses needed medical care. Inspector Lapping testified that she also indicated to the appellant her continuing observations about the water and feces saturated footing where the horses were confined and the lack of a natural dry resting area for them, as well as the conditions in the pen where Porsha was located and Porsha’s elongated and overgrown hooves. It was also on this visit that the Appellant identified that two of the horses were owned by her sister Melissa Seel.
22On May 7, 2021, Inspector Lapping sent two replacement orders to the Appellant for Stella and Nora, to include Birgitte Seel as owner, with a completion date of May 11, 2021. In addition, she issued a replacement order to the Appellant regarding the conditions for Porsha with a completion date of May 11, 2021 and a replacement order for the Clydesdale and one of the miniature horses, which the Appellant stated were owned by Melissa Seel, also with a completion date of May 11,2021.
23On May 11,2021, Inspector Lapping emailed the Appellant inquiring about the status of the compliance including appointment dates for the farrier and veterinarian and requested contact information for the Appellant’s mother and sister.
24No further information was forthcoming from the Appellant and on May 27, 2021, AWS executed a warrant obtained under the Act. Four AWS inspectors and two OPP officers attended at the property. The compliance inspection did not go smoothly. Inspector Lapping’s observations were that little had changed. The horses’ footing was in wet soggy mud. Porsha was still pacing in her pen which contained fecal material and packed soiled bedding. Her hooves were overgrown and split. The horses’ hooves generally were still overgrown and some had curled upward. The bones were visible on Nora’s neck, her spine projected prominently and her ribs were visible. Stella was having difficulty breathing and her respiratory rate was elevated. Hay was present but there was minimal water available for the horses. The frame for the shelter was in place but there was no roof or sides.
Issue 1: Was removal of the horses warranted due to noncompliance with the Orders issued and/or the horses’ distress, as defined by the Act.
25As a result of the inspectors’ determination that the orders had not been complied with and that the horses were in ongoing distress, the decision was made to remove the horses. During the removal, the Appellant was arrested due to an alleged obstruction of the removal process. The Appellant was then transported to hospital due to the physical distress that she was experiencing. Because the Appellant was not present when the removal was completed, Inspector Alemany served the Removal Order on Birgitt Seel. She and Melissa Seel had arrived at the property while the horses were being loaded on the trailers for removal. The Removal Order had all three of their names listed and referred to all seven horses removed1.
26The evidence clearly shows that from the time that the orders were first issued on April 7,2021, to the removal on May 27, 2021, there had been little change in the horses’ living conditions or care. If anything, the passage of time exacerbated the conditions, in particular the health of Stella and Nora and the condition of the horses’ hooves’, and as a result, the horses’ distress. The Inspectors’ testimony, as well as the Appellant’s, reveal continuing communications between them and an effort to help facilitate compliance. I accept that the Appellant faced challenges, from the restrictions in place due to the COVID pandemic and indeed due to the wet weather conditions. I accept the Appellant’s evidence, and that of her mother and sister, that she was attempting to care for Stella and Nora by providing medications and supplements.
27Unfortunately, despite extensions to the completion dates, compliance was not achieved. Based on the evidence, I find that the removal was required to provide the horses with the necessaries to relieve their distress as the orders respecting the horses, made under s. 30 had not been complied with.
28In her closing submissions, the Appellant stated that the shelter has now been completed, the property has been excavated and ditches dug which will help prevent the soggy conditions, all with the help of family and friends. In addition, she has been cleaning the paddock and replanted grass seed there. I do commend the Appellant for taking these steps to improve the environmental conditions for the horses.
Issue 2: Was the removal of the horses conducted properly and with proper authority?
29As noted above, the Board does not have the authority to make determinations about how inspectors conduct their inspections. This issue addresses the Appellant’s challenge to the propriety of the orders given that she is not the owner of all of the horses. The Appellant, Birgitt and Melissa Seel each testified that the Compliance Orders were not served on the right persons; that it was not sufficient, and an abdication of responsibility by AWS inspectors that the orders were emailed to the Appellant, to be forwarded to both Melissa and Birgitt Seel.
30These assertions gloss over the fact that when the orders were first issued on April 7, 2021, there was no indication by the Appellant that she did not own all of the horses. It was not until May 5, 2021 that the Appellant advised Inspector Lapping that she had sold Stella and Nora to her mother and not until the May 6, 2021 attendance that she stated that two of the horses were owned by her sister Melissa. The Compliance Orders were re-issued immediately thereafter to include the names of Birgitt and Melissa Seel as owners and emailed to the Appellant. A request was made for their contact information, but that was not forthcoming.
31In her evidence, the Appellant stated that she did not provide care to the Melissa’s horses, and Melissa stated that she fed them twice a day. I note that she was present on April 22, 2021 when Inspector Alemany issued the orders, yet there was no suggestion then by either the Appellant or Ms. Seel that two of the horses were owned and cared for by Melissa Seel. Further, though the Appellant stated that Birgitt Seel became the sole provider to Nora and Stella when she sold them, in her testimony, Birgitt Seel stated that the Appellant had offered to trim Stella’s feet, and that she knew that Stella was on medication for her heaves and that Nora was on electrolytes, but no suggestion that she herself was providing the care to the two horses.
32On the facts before me, ownership is not determinative. Section 30 of the Act states that an owner or custodian of the animal may be ordered to take action to relieve an animal’s distress. Custodian is not defined in the Act, but its dictionary meaning2 is of a person that is responsible for protecting, caring for and maintaining something. The Appellant’s knowledge of the horses’ care, including for example Stella and Nora’s health issues and their nutritional and medicinal needs imply a person who cared for these animals. It was the Appellant who was starting to construct the shelter and the Appellant who communicated with the inspectors and other AWS personnel.
33What is persuasive is the evidence and submissions from the Appellant – there was a genuine and heartfelt plea for their return to her with statements such as “the horses are my world” and “these are my animals and I miss them immensely.” I find that the Appellant was the custodian of the horses. The Compliance Orders were properly served on her. Flowing from the noncompliance, the Removal Order was properly issued to all three women. It is noteworthy too that on the day of the removal, it was the Appellant who challenged the Inspectors; Birgitt and Melissa Seel had little or no interaction with the Inspectors upon their arrival. And it is Melanie Blais who has appealed the removal order.
34Based on the foregoing, I find that both the Compliance Orders were issued, and the removal carried out in compliance with the Act.
Issue 3: Should the Statements of Account be confirmed, revoked or varied?
35The only Statements of Account before me are those issued on June 7, 2021. The first was issued to the Appellant for three of the horses - Porsha, one miniature pony and one of the Fjord type horses- for a total of $1,656.62. The second statement of account was issued to the appellant and Melissa Seel for the Clydesdale and one of the miniature ponies in the amount of $1,228.16. The third statement of account was issued to the appellant and Birgitt Seel for Stella and Nora in the amount of $1,817.33.
36Inspector Lapping testified about her attendance at the foster farm where the horses were kept on May 31, 2021. Two farriers were present, and the horses’ hooves were trimmed. She testified that the horses, with adequate shelter, food and hydration appeared more alert though noted that for Stella and Nora, rehabilitation of their body condition would be a longer process.
37The Appellant bears the burden to show that the Statements of Account were unreasonable. The Appellant’s only assertion regarding the Statements of Account is that it is a “money grab.” Based on Inspector Lapping’s evidence, I am satisfied that the Statements of Account are reasonable, and they are confirmed.
Issue 4: The return of the horses - s. 38(9) 2 of the Act.
38The Appellant, as noted above, seeks to have the horses returned to her. The Respondent has made no specific submissions in that regard though in the case conference order and report dated June 8, 2021, the Respondent agreed that the animals are no longer in distress and was prepared to return them to the Appellant providing that the requirements for their housing and care as specified in the Compliance Order are met, and the costs incurred by the Respondent are paid.
39Absent clear and confirmed evidence about what measures have been taken, as outlined in the orders (though I note that the Appellant did provide some submissions, referenced at paragraph 28 above, on that point as well as a photograph which appears to depict the new shelter), I will not order the horses’ return pursuant to s. 38(9)2 of the Act. However, I urge the parties to work together to facilitate that return. As I stated at the outset of this decision, there is no dispute that the Appellant cares for the horses. I am satisfied on the evidence that she will work diligently to ensure their well being. This may require a further inspection by AWS to satisfy itself that specified requirements have been satisfied, which hopefully can occur without incident and with appropriate notice to the Appellant.
CONCLUSION
40For the reasons set out above, I find that the Removal Order was appropriate and that the Appellant is liable for the payment of the Statements of the Account.
ORDER
41Therefore, the Board orders as follows:
- The appeal of the Removal Order is dismissed; and
- The appeal of the Statements of Account is dismissed and the Accounts are confirmed.
Released: August 10, 2021
Patricia McQuaid, Vice-Chair