Tribunals ontario Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’Étude des Soins aux Animaux

Date: 2021-09-22

Appeal under subsection 38(1) and (4) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Ginny Stokes Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Michael Draper, Regional Supervisor, Animal Welfare Services

Held by teleconference: August 13, 2021 and by written submissions

BACKGROUND

1Ginny Stokes (the “Appellant”) is appealing the removal of the family cat Simba from her property on July 28, 2021 by Animal Welfare Services (“AWS”). The Notice of Removal was issued by AWS to Ginny and Ali Stokes. The Appellant denies that Simba was in distress on July 28, 2021, and requests that their cat be immediately returned to their care where he is happy and comfortable.

ISSUES TO BE DECIDED

2The issues to be decided by the Animal Care Review Board (the “Board”) are as follows:

1. Was the animal in distress on the date of removal?
2. Did the Inspector have the authority to remove the animal?
3. Is the animal still in distress?
4. Should the animal be returned to the owner?
5. Was the removal of the animal conducted properly?

RESULT

3For the reasons that follow, I find that the removal of the cat, Simba, on July 28, 2021 was warranted pursuant to the Act. I make no order for the return of the animal.

EVIDENCE AND ANALYSIS

Appellant’s Evidence and Submissions

4The Appellant, assisted by her daughter Bridget Stokes, gave the following reasons for her appeal:

a. Simba is happy and comfortable at home, and he has not demonstrated signs of suffering in his home environment.

b. Throughout Simba’s illness he continued to eat, drink, play and act completely normal. Since receiving Simba’s diagnosis for Hemangiosarcoma in his paw, they have been caring for him by cleaning his paw, keeping him comfortable and providing pain management using Ginny Stokes’ extensive medical knowledge and experience as a nurse.

c. On June 14, 2021, Simba was brought to the Victoria Road Animal Hospital (“Victoria”) for pain management and redressing his bandage. Two veterinarians discussed the amputation of Simba’s paw or euthanasia as options for him but did not emphasize that a decision was needed immediately. The Appellant felt that based on Simba’s behaviour at home, neither option seemed necessary, and the veterinarians did not argue with this decision.

d. On July 28, 2021 Simba was taken back to Victoria for assistance with pain management and the redressing of his bandage. The attending veterinarian, Dr. Harris, told them that they had 24 hours to decide whether to amputate Simba’s paw or proceed with euthanasia. This was Dr. Harris’ first time examining Simba.

e. Dr. Harris contacted AWS, who showed up at the Appellant’s residence with members of Guelph Police Service approximately 5 hours later to remove Simba.

f. Simba was then taken to Campus Estates Animal Hospital (“Campus”). The Appellant and her daughters are concerned he is in a crate and an unfamiliar environment, instead of comfortably at home.

g. The Appellant questions whether Dr. Harris acted in Simba’s best interests, as they feel Simba has been under stress away from home. The family is devastated and extremely upset with how the situation was handled as these drastic measures were unnecessary, unreasonable, and insensitive.

Respondent’s Evidence and Submissions

5The Respondent submitted the following chronology of events leading to the Removal Order, and subsequent treatment of the animal. The chronology describes the history of AWS involvement with the Appellant, the findings and treatments of veterinarians from two separate clinics, the provision of a Certificate, and the involvement of the Appellant with a third clinic:

a. On July 28, 2021, AWS Inspector Gary Robillard (the “Inspector”) received a priority dispatch via email from the AWS call center, transferred by AWS Inspector Emma Nip. The dispatch was regarding a call from a veterinarian at Victoria who had treated the cat earlier that day. The cat was described as in severe pain with “carcoma” in one back leg with the leg bone exposed. The vet advised that the owner refused treatment.

b. Inspector Nip included notes in her email stating that she had called Victoria, and determined that the cat, Simba, had been receiving treatment for a swollen foot since March 2021. She advised that she spoke with Dr. Harris, the veterinarian who examined Simba on July 28, 2021. The owners had come in for a bandage change but based on the condition of the leg were advised that euthanasia or amputation were recommended, which they declined. When read the definition of critical distress from the Act, Dr. Harris agreed with Inspector Nip that Simba was in critical distress.

c. On the evening of July 28, 2021, the Inspector tried to reach Dr. Harris without success. He then called veterinarian Dr. Bruce Robertson regarding Dr. Harris’s assessment. Dr. Robertson concurred with the findings and completed a Certificate of Veterinarian Advising the Removal or Euthanasia of Animal(s) form (the “Certificate”). Dr. Robertson requested a copy of Simba’s medical records, which were transferred to him on July 29, 2021.

d. Shortly after receiving a copy of the Certificate, the Inspector attended the Appellant’s home, accompanied by police constables from Guelph Police Service. He spoke with the Appellant and explained that he was there because he had expert opinions from two veterinarians that her cat Simba was in critical distress. The Appellant agreed that her cat had been seen earlier that day by Dr. Harris, but disputed that Simba was in distress. She disputed that her cat was in pain, and that her plan was to provide him with palliative care. She refused to pay $2,700 for surgery and stated that the veterinarian was wrong in his assessment. The Inspector advised that he had a Certificate, and that he could remove the cat or that the Appellant could take the cat to the veterinarian immediately.

e. The Inspector served the Appellant with a Notice of Removal form and explained its purpose. The Appellant brought her cat to the Inspector and placed him in the Inspector’s carrier.

f. The Inspector took the cat to Campus and asked the staff to take whatever steps were necessary to relieve the cat’s distress and to inform him about treatment decisions.

g. On July 29, 2021, Dr. Katie Morin of Campus contacted the Inspector and advised that Dr. Nicky Brown had triaged the cat the previous evening, cleaning the wound and examining it. The cat’s paw was rebandaged and pain medication was administered. She explained that the tumor required further analysis and explained the process they recommended. The Inspector authorized the recommended tests.

h. On July 30, 2021, Campus contacted the Inspector with the results and recommendations for further tests.

i. On August 3, 2021, Dr. Tanya Hnatejko of Campus contacted the Inspector with the results of some of the lab tests, indicating that the cat had a “mast cell tumor.” The appropriateness of amputation was discussed, with Dr. Hnatejko recommending humane euthanasia. This recommendation was confirmed by email from Dr. Brown of Campus.

j. On August 4, 2021, the Inspector contacted Dr. Morin and informed her that the Appellant wished for a biopsy to be performed on her cat as she wished to proceed with amputation. Dr. Morin advised that euthanasia was more appropriate but would proceed with the owner’s decision.

k. On August 5, 2021, the Inspector had several communications by phone and email with the Appellant and Ali Stokes about the options for Simba’s care. Several of these related to the Appellant having found veterinarian Dr. T. Beckstead at Silvercreek Animal Hospital (“Silvercreek”), who was willing to perform an amputation on Simba. The Inspector contacted Silvercreek who confirmed only that a tentative consultation had been booked for August 9th and they had not seen Simba’s medical records. The Inspector then advised Ali Stokes that transferring Simba to Silvercreek would be possible provided a detailed plan of his care was provided and the Statement of Account for his care to date was paid prior to transfer. He also advised that the biopsy results would not be ready for 2-4 days according to Campus.

l. Later that day the Inspector received an email from Ali Stokes that their final decision regarding Simba would be based on the biopsy results. Their options would be amputation if the cancer had not spread, and euthanasia if it had spread. In either case, they wanted the procedure conducted by Silvercreek. The Inspector again contacted Silvercreek to discuss the case and responded to Ali Stokes advising next steps.

m. On the evening of August 8, 2021, Dr. Katie Morin of Campus called the Inspector and advised that the biopsy results showed chondrosarcoma with metastatic potential, likely in the bone. There was no evidence the cancer had spread, so both amputation and euthanasia were viable options. On the morning of August 9, 2021, Dr. Nickey Brown of Campus called the Inspector to review the biopsy results. The Inspector advised her of the family’s preference for Simba to be transferred to Silvercreek. Dr. Brown suggested that if amputation was chosen it should occur as soon as possible as Simba was starting to be bothered by his paw again.

n. On August 9, 2021, the Inspector then contacted the Appellant and left a voicemail message regarding the results of the biopsy and Dr. Brown’s recommendation. He repeated the next steps before Simba could be transferred to Silvercreek. He advised that if no decision was received by AWS by the end of day, AWS would make the decision. At 5:02 pm the Inspector called Campus to advise that he had not been contacted by the Appellant and had no details regarding Silvercreek’s plan for Simba’s treatment and post-op care yet and asked them to keep Simba comfortable. Later that evening he received a text message from the Appellant stating they would like to transfer Simba to Silvercreek for amputation. She proposed a payment plan with Campus. She questioned AWS’s claim that Simba’s treatment was urgent when there had been so many delays for tests, and that she had been correct in asserting initially that the cancer was localized to Simba’s paw. She questioned Simba being kept in a cage at Campus for 12 days and the associated costs.

o. On August 10, 2021 the Inspector contacted Silvercreek to confirm they had reviewed the medical records from Victoria and Campus, and that surgery had been booked for the amputation and asked for post-op care details and overnight plans. He was advised that they had not received the records and that an operation had not been booked, and post op care had not been prepared. The Inspector then contacted Campus and told them to proceed with Simba’s amputation. He later received a call from Dr. Marco Mazzocco of Campus asking if Simba was being transferred to Silvercreek. The Inspector confirmed that no arrangements had been made, and AWS were the legal custodians and as such were authorizing Campus to proceed with the amputation. He sent an email to Ali Stokes advising of the direction to Campus to amputate.

p. On August 11, 2021 the Inspector received a text from the Appellant asking if Simba had been transferred to Silvercreek, and that she had no idea what was happening and reminding him of the meeting [hearing] on August 13th. The Inspector responded saying that he had sent various emails to Ali Stokes and that the amputation had been completed.

q. Simba was now recovering comfortably in a medical foster home.

6The Respondent submitted copies of Inspector Nip’s Notes and email to AWS call center, photographs of Simba’s leg, Hospital records (Victoria), a Certificate of Veterinarian Advising the Removal or Euthanasia of Animals (the “Certificate”), Statements from Dr. Harris (Victoria) and Dr. Hnatejko (Campus), Cytology Results (Campus), email from Dr. Hnatejko (Campus) regarding prognosis and update, Invoice (Campus), and various emails between the Inspector and Ali Stokes.

Issue 1: Was the animal in distress on the date of removal?

7Section 1 of the Provincial Animal Welfare Services Act, 2019 (“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.”

8Section 1 of the Act defines critical distress as: “distress that requires immediate intervention in order to prevent serious injury or to preserve life”

9Dr. Paul Harris of Victoria testified that Simba was examined on July 28, 2021 and that he was sick (major sarcoma of distal left foot, and that the foot was unrecognizable because the sarcoma had overtaken it, and that the leg was necrotic and discharging). He stated that Simba was in a great deal of pain. He gave pain medication and antibiotics during the clinic visit and advised the owners that because of the advanced condition of Simba’s sarcoma, that euthanasia or amputation should be considered.

10Dr. Harris testified that the condition had existed since March 2021 but had rapidly deteriorated and this was the worst he had seen in his career. When questioned, he advised that palliative care was unacceptable. He stated that Simba’s condition was not life or death, but critical intervention was necessary to relieve his pain and suffering. Under cross-examination he said that he was surprised Simba’s condition was not septic which would lead to death.

11Dr. Bruce Robertson testified that he had been contacted by AWS on the evening of July 28, 2021 and provided a verbal description by the Inspector regarding the animal’s medical condition as described by the examining veterinarian. He explained that he formed his opinion based on this information, that the cat met the definition of distress and issued the Certificate.

12Dr. Robertson noted that he reviewed the medical records the next day and felt that they strengthened his opinion that the animal was in distress.

13Dr. Katie Morin of Campus testified that the animal was admitted to the clinic on the evening of July 28, 2021 by Dr. Nickey Brown. She confirmed that he had a very large soft tissue mass on his left hind foot encompassing his entire foot, and that it was hard for him to stand or walk. She noted that the foot was infected and smelled, and that initially Simba was made comfortable, given a sedative and had the mass flushed and cleaned and the foot rebandaged. Pain medication and antibiotics were administered.

14Dr. Morin described the various tests and findings, and that ultimately a full removal of the leg was undertaken. She summarized the findings of all the clinic veterinarians who had treated Simba, that if Simba was not to be euthanized, amputation was necessary if he was to live. She noted that for quality of life and longevity, amputation was not recommended if the disease had spread.

15Dr. Morin also testified that Simba’s condition met the definition of distress, specifically the injured and in pain parts. She noted that the foot could not have stayed as it was, and that palliative care would not be acceptable.

16The Appellant testified that she was aware that Simba had cancer in his paw, and that she chose palliative care rather than amputation, knowing that her cat’s foot was rotting. She believed that antibiotics wouldn’t help and that he only indicated he felt pain when they changed his bandages.

17The Appellant further testified that she gave Simba pain medication (Meloxicam) which was leftover medication from when Simba had a kidney problem. She cut the medication into smaller doses and administered every few days. She did not discuss this treatment with the veterinarian.

18Under cross-examination, the Appellant explained that she is a nurse and understands that rotting tissue does not heal on its own. When I questioned her as to whether Simba was in distress, the Appellant said that he was only in distress during bandage changes.

19In her closing argument, the Appellant stated that Simba was not in immediate distress on July 28, 2021 and that her family was not given adequate opportunity that day to make the decision to proceed with one of the proposed options of either humane euthanasia or amputation. She stressed that even up to the date he was removed, he continued to eat, drink, play and act completely normal.

20I agree with the Respondent that Simba was in distress on July 28, 2021. This was shown through the evidence of the veterinarians who found that Simba had an advanced case of sarcoma in his distal left foot, and that the foot was necrotic and discharging. Dr. Harris testified that Simba’s condition had deteriorated considerably since his examination the previous month, and that Simba was in a great deal of pain and that critical intervention was necessary to relieve his pain and suffering. Dr. Morin confirmed Simba’s condition from his admission on July 28, 2021. Both Victoria and Campus clinics provided Simba antibiotics and pain medication. While the Appellant denied that Simba was in distress, she testified that she took him to Victoria for his bandages to be changed because the changing was painful for him. She gave Simba medication, but only small amounts of leftover supplies that she had from a previous condition. In summary, distress is defined as “injured, sick, in pain or suffering”. I disagree with the Appellant’s position and point out that she acknowledged that he had cancer in his paw and that he was in pain.

21The Respondent testified that when questioned by Inspector Nip, Dr. Harris agreed with her that Simba was in critical distress when she read the definition to him over the phone on July 28, 2021. The Respondent further testified that when he attended the Appellant’s home, he explained that he had expert opinions from two veterinarians that Simba was in critical distress. In his testimony Dr Harris stated that Simba’s condition was “not life or death, but critical intervention was necessary to relieve his pain and suffering”. I find that I agree with the testimony of Dr. Harris that Simba was in distress, but that Simba was not in critical distress. None of the other veterinarian’s provided testimony otherwise.

Issue 2: Did the Inspector have the authority to remove the animal?

22Section 31(1)(c) of the Act grants the AWS the authority 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 a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal.

23The Respondent bears the burden of proving on the balance of probabilities that the removal of the cat was permitted under the Act.

24The Inspector was unable to reach the attending veterinarian, Dr. Harris on July 28th. He contacted Dr. Robertson by telephone and provided him the details of Simba’s condition based on Dr. Harris’s initial notification to AWS and Inspector Nip’s subsequent confirmation of Simba’s condition with him. Dr. Robertson issued the Certificate on the evening of July 28, 2021 and testified that he was able to confirm Simba’s condition when he received copies of the written records on July 29, 2021.

25The Inspector testified that when he arrived at the Appellant’s home on the evening of July 28, 2021, he advised her that he had a Certificate, and that he could remove the cat or that the Appellant could take the cat to the veterinarian immediately.

26As a result of veterinarian Dr. Robertson issuing the Certificate, and the Appellant’s repeated assertion on July 28, 2021 in her home that she did not believe her cat to be in distress and that she refused to pay the $2,700 for surgery and that the veterinarian was wrong in his assessment, the Inspector made the decision to remove Simba. He stated that he believed the Appellant would not take her cat back to the veterinarian, although she did not state this. He served the Notice of Removal on the Appellant before removing her cat.

27I find that the Inspector acted in accordance with section 31(1)(c) of the Act in removing the cat Simba from the Appellant’s home, based on the evidence that Dr. Robertson issued a Certificate authorizing removal to alleviate Simba’s distress.

Issue 3: Is the animal still in distress?

28Dr. Morin testified that after the radical amputation of Simba’s leg, he was eating and resting well, and that his behaviour was that of a very happy cat which is quite different than before the surgery.

29Dr. Morin also testified that tests taken of Simba indicated that the cancer had not spread beyond the amputated leg.

30Based on the uncontradicted evidence of Dr. Morin, I find that Simba is no longer in distress as the cancerous leg has been amputated and his behaviour is that of a happy cat. Simba is no longer sick, injured or in pain, and therefore is not suffering from distress as described in clause (b) of the definition “injured, sick, in pain or suffering”.

31However, I find that Simba does meet the definition of distress in clause (a), which includes being “in need of proper care”. Dr. Morin described the need for on-going post-operative care and treatment, and weight loss and training to walk on his remaining three legs so that Simba could see to his biological needs. I find this to be a continuing state of distress, because of the need for ongoing care and treatment.

Issue 4: Should the animal be returned to the owner?

32Section 38(9) gives the Board authority, among other things, to order that an animal be returned to the owner.

33I decline to order the return of Simba to the Appellant. Simba needs ongoing care and I do not believe the Appellant is able to adequately provide this care. I base my decision in the evidence I am relying on in the paragraphs that follow.

34Dr. Morin testified that Simba requires ongoing post-operative care and training to enable him to meet his biological needs. She described the need for incision site wound care and weight loss so that Simba can move properly and use the litter box. A check up in 14 days to remove the staples, followed by routine wellness visits and checking for any new lumps will be necessary.

35Evidence has been heard that the Appellant did not properly care for Simba during his illness, causing him to suffer. Dr. Harris testified that Simba’s condition on July 28, 2021 was the worst he had seen in his career. He further stated that Simba could have been cared for at home until his operation, but that he “couldn’t trust the owners to provide this care from home.”

36Throughout her testimony, the Appellant affirmed her belief that Simba had not been in distress even though she knew the condition of his foot. She self-administered medication left over from a previous medical condition, in amounts and with a regularity that would not have eased his pain.

37I appreciate that the Appellant is quite emotional about her attachment to Simba, however she has frequently expressed she is unable to pay for his care. The Appellant testified that at her last meeting with the Respondent, she had told him she couldn’t afford the cost of $8,000 to $10,000 for Simba’s treatment. In the hearing, she vacillated between saying she wanted Simba returned to her and saying she would give up her custodial rights to have Simba adopted and that she would forfeit her cat to the Ministry. When advised by the Respondent that if she wished to surrender or forfeit Simba, the hearing did not need to proceed and she would not be responsible for any further costs after the day of the hearing, but that she was responsible for costs to date, she said there was no point in forfeiture or surrender.

38In closing submissions, the Respondent noted the following points regarding the Appellant’s ability to properly care for Simba:

a. Under cross-examination, Ginny Stokes admitted that she wished Simba would die on his own, even when questioned if that included going septic and dying.

b. Under cross-examination, she indicated she did not seek adequate medical care for Simba, although required by law¹ which requires the owner or person having custody or control of an animal to provide adequate and appropriate medical attention.

c. That the Appellant was shown to have neglected Simba’s medical care and allowed Simba to be in substantial pain; and

d. That the Board should decline to order Simba’s return to his owners based on recent Board Decisions.²

39The Board notes that it is not bound by past Board Decisions.

Issue 5: Was the removal of the animal conducted properly?

40In her closing arguments, the Appellant made several points regarding her stressful interactions with Dr. Harris and the Inspector.

41I decline to comment on the conduct of Dr. Harris and of the Inspector. This is outside the jurisdiction of the Board. Complaints are addressed in Part III of the Act, and the Appellant may follow the process prescribed there.

ORDER

42Pursuant to the powers of the Board under s. 38(9) of the Act, the Board orders the appeal of the Removal Order dismissed and declines to make an order for the return of the cat, Simba, to the Appellant.

Footnotes

1. 1Section 3(2) of O. Regulation 444/19 under the Provincial Animal Welfare Services Act, 2019
2. 2Steele v. Chief Animal Welfare Inspector, 2021 ONACRB 10, 2021 ONACRB10, and Gowland v Chief Animal Welfare Inspector, 2021 ONACRB 2