Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 25

Date: 2021-12-31

Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019

Between:

Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Lindsay Lake, Member

Appearances:

For the Appellant: Eric Gillespie, Counsel; John May, Counsel; Yasmeen Peer, Counsel; Kristian Ferreira, Articling Student

For the Respondent: Jason Kirsh, Counsel; Deanna Exner, Counsel; Padraic Ryan, Counsel; Waleed Malik, Counsel; Carol Drumm, Articling Student

Court Reporter: Barbara Pollard

Heard by videoconference: November 8-10, 15, 17-19, 22-24, 26 and December 1-3, 2021 with written reply closing submissions on December 8, 2021

Overview

1Thomas Pryde, Adrienne Spottiswood, and Georgeina Pierce (the “appellants”) operate a dog sledding and horse-riding business, Windrift Adventures Inc., out of two locations in Ontario. One location is in the Township of Oro-Medonte (“Moonstone”) and the other is in the Township of Severn (“Severn”).

2On February 25, 2021, Animal Welfare Services (“AWS”) served several orders (the “Compliance Orders”) on the appellants pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019 (the “Act”).¹ The Compliance Orders were issued following inspections conducted at the Moonstone and Severn properties on February 18 and 19, 2021. The Compliance Orders related to the length of the dogs’ tethers and the condition and size of the dog houses. The appellants appealed these orders to the Animal Care Review Board (the “Board”).

3On June 23, 2021, the Board released a Decision and Order² confirming the Compliance Orders in relation to the dogs, though the Board varied the Compliance Order relating to the size of the dog houses. The deadline to comply with the Compliance Orders was also amended to September 1, 2021.

4Both parties filed a request for reconsideration of the Board’s June 23, 2021 decision. The parties’ requests for reconsideration were denied on September 3, 2021.³

5The appellants also commenced a judicial review application of the Board’s June 23 and September 3, 2021 decisions to the Divisional Court. This application remains ongoing.

6Following an inspection at both properties on September 23, 2021, the Chief Animal Welfare Inspector (the “respondent”) removed all of the dogs from both the Moonstone and the Severn properties pursuant to s. 31(1) of the Act. Over 200 dogs were removed in total. The respondent subsequently decided to keep all of the dogs in its care pursuant to s.31(6) of the Act.

7The appellants have appealed to the Board the respondent’s decisions to remove the dogs and to keep the removed dogs in the respondent’s care.

Issues in Dispute

8The parties agreed that the following issues are to be decided:

(i) Did the appellants fail to comply with the Compliance Orders as amended by the Board’s June 23, 2021 Decision and Order?

(ii) Were each of the dogs at the Moonstone and Severn properties in distress on September 23, 2021 as defined in the Act?

(iii) If so, was the decision to remove each of the dogs from the Moonstone and Severn properties for the purpose of providing them with the necessaries to relieve their distress pursuant to s. 31(1) of the Act?

(iv) If so, did the respondent have reasonable grounds to believe that each of the dogs removed from the Moonstone and Severn properties may be placed in distress if they were returned to the appellants such that the decision to keep the dogs in care made under s. 31(6) was valid?

(v) Should the Board order that each of the dogs be returned to the appellants?

Result

9I find that that on September 23, 2021:

(i) The appellants agreed that they had not complied with the Compliance Orders as amended by the Board’s June 23, 2021 Decision and Order;

(ii) The four puppies at the Severn property were not in distress. As a result, neither the decision to remove these puppies nor to keep them in care by the respondent was in accordance with the Act. There is also no evidence before me that returning these four puppies to the appellants will cause them to be in distress or be exposed to an undue risk of distress. Therefore, the respondent shall return these four puppies to the appellants forthwith, but no later than two business days after the release of this decision; and

(iii) The seven puppies identified as dogs 112A-G on the log forms for the Moonstone property were in distress. However, the respondent shall return these puppies to the appellants forthwith, but no later than two business days after the release of this decision, as there is no evidence before me that returning these seven puppies to the appellants will cause them to be in distress or be exposed to an undue risk of distress.

10As to the remaining dogs at the Severn and Moonstone properties:

(i) I find that these dogs were in distress for various reasons as set out below on September 23, 2021;

(ii) I question whether the respondent’s decision to remove the dogs was for the purposes of proving necessaries in accordance with s. 31(1) of the Act but find it unnecessary to determine this issue as well the issue of whether the respondent’s decision to keep the dogs in care made under s. 31(6) was valid; and

(iii) I find that the dogs shall be returned to the appellants upon the issues relating to tether lengths and dog houses are remedied as set out in my order below.

11The appellants’ November 29, 2021 motion is dismissed in its entirety.

Analysis

The Compliance Orders

12On February 25, 2021, AWS served the Compliance Orders on the appellants. The Compliance Orders regarding the dogs at both the Moonstone and Severn properties as amended by the Board’s June 23, 2021 Decision and Order were identical. The appellants were required to ensure the following at both properties by September 1, 2021:

(a) That 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;

(b) That 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;

(c) That shelters are weatherproof and insulated; meaning R-4 insulation on the roof and a minimum of three inches of compressed straw to provide an R-4 insulation and bedding or weatherproof and insulated; meaning R-4 insulation on the roof and floor with adequate bedding on the floor;

(d) That the shelters must be large enough to allow the dog to enter, turn around, stand up, and lie down;

(e) That the size and design of the shelters must be adequate and appropriate for the dog; and

(f) That all dogs are provided with a chain length of no less than 3 metres. The chain must allow the dog to move safety and unrestricted except by its length and must allow the dog access to adequate and appropriate water and shelter.

13In closing submissions, counsel for the appellants agreed that the appellants had not complied with the Compliance Orders by September 23, 2021.

Distress of the Dogs on September 23, 2021

14Section 1(1) of the Act defines “distress” as meaning the state of being:

(i) In need of proper care, water, food, or shelter;

(ii) Injured, sick, in pain or suffering; or

(iii) Abused or subject to undue physical or psychological hardship, privation, or neglect.

15For the reasons that follow, I find that on September 23, 2021:

(i) The tethered dogs at the Moonstone and Severn properties were in distress as they did not have a tether length of three metres;

(ii) Regarding the dogs at the Severn property:

(a) The four untethered puppies housed in the puppy pen were not in distress; and

(b) The remaining untethered adult dogs were in distress as their dog houses were not insulated;

(iii) Regarding the dogs at the Moonstone property:

(a) The untethered puppies living in a pen together were in distress;

(b) The remaining untethered dogs were in distress as their dog houses were not insulated;

(c) The respondents failed to prove on a balance of probabilities that the dogs were in distress as a result of their dog houses being inadequate in size;

(d) Dogs identified by log numbers 28, 29, 48, 57, 70, 76 and 88 were in distress as they were not provided with an adequate and appropriate resting and sleeping area (i.e. there was no bedding in their dog houses). The respondent failed to prove on a balance of probabilities that the remainder of the dogs at the Moonstone property were in distress on this basis; and

(e) It is inferred by the appellants’ actions that they agreed that the following dog houses were not in a good state of repair due to leaks which were subsequently repaired after the dogs were removed from the property: 7-9, 11, 12, 15-30, 32, 33, 35-42, 44-87, 89, 91-102, 104, 105, 107, and 109-111. I also find that dog houses 6 and 43 were not in a good state of repair because they had sharps exposed on the inside. As a result, I find that the dogs associated with all of these houses were in distress because their shelters were not in a good state of repair. The remainder of the dog houses were noted by the respondent as being in a good state of repair such that the dogs associated with those houses were not in distress on this basis.

16The respondent submitted that the dogs were in distress as defined by the Act at both properties on September 23, 2021. To support its position, the respondent relied upon Vice Chair Victor’s finding in the Board’s June 23, 2021 Decision and Order that “proper care” included in the definition of distress cannot include care that falls below the minimum standards of care as defined in Ontario Regulation 444/19, “Standards of Care and Administrative Requirements” (the “Regulation”).⁴

17Section 3(5) of the Regulation requires that every animal is provided with an adequate and appropriate resting and sleeping area. Section 3(7)(a) also requires that where an animal is confined to a pen or other enclosed structure or area, that any structures and material in the pens/confinement area must be in a state of good repair.

18Section 4 of the Regulation sets out standards of care for dogs that live outdoors and states:

(1) Every dog that lives primarily outdoors must be provided with a structurally sound enclosure for its use at all times.

(2) The enclosure must be weather-proofed and insulated.

(3) The size and design of the enclosure must be adequate and appropriate for the dog.

(4) A chain, rope or similar restraining device used to tether a dog that lives primarily outdoors,

(a) must be at least three metres long;

(b) must allow the dog to move safely and unrestricted, except by its length; and

(c) must allow the dog to have access to adequate and appropriate water and shelter.

19In her June 23, 2021 Decision and Order, Vice Chair Victor found, among other things, that:

(i) The failure to provide a three metre tether as well as the dog houses being uninsulated and made of wood did not meet the requirements of s. 4 of the Regulation;⁵

(ii) The dog houses that did not allow the dog to stand up, turn around, and lay down comfortably were not adequate in size for the purposes of s. 4(3) of the Regulation;⁶

(iii) The dog houses that had wet bedding failed to provide an adequate and appropriate resting and sleeping area as required by s. 3(5) of the Regulation;⁷

(iv) The dog houses that had holes in their walls were neither weatherproof nor in a good state of repair as required by s. 3(7)(a) and s. 4(2) of the Regulation;⁸ and

(v) The dog houses that had exposed nails, broken roofs, or floors were neither structurally sound as set out in s. 4(1) nor in a good state of repair as required by s. 3(7)(a) of the Regulation.⁹

20Given that the standards of care as set out in the Regulation were not met, Vice Chair Victor found that this was not “proper care” and, therefore, the dogs at both the Moonstone and the Severn properties were in distress as defined in the Act.¹⁰ The respondents, therefore, submitted that the dogs continued to be in distress on September 23, 2021 because the standards of care were still not being met as the dogs continued to not have a three metre tether and their houses were uninsulated, had wet bedding, were not adequately sized, and were not in a good state of repair.

a) The Tether Lengths

21Although Ms. Spottiswood confirmed that on September 23, 2021, the tethers on the dogs at both properties were less than three metres in length, the appellants’ position was that the dogs were not in distress as a result of their tether lengths. To support their position, the appellants relied upon s. 67 of the Act which states:

In the event of a conflict between a provision of this Act or of a regulation made under this Act and of a municipal by-law pertaining to the welfare of or the prevention of cruelty to animals, the provision that affords the greater protection to animals shall prevail.

22The appellants’ position was that the municipal by-laws applicable to the two properties set out shorter tether length requirements and, therefore, were more protective for the dogs such that their standards of care should prevail over those required by the Regulation pursuant to s. 67. I disagree.

23Section 5.4 of By-law No. 2020-62, “Being a by-law for the licensing and regulating of dogs and kennels and for the control of dogs within the Township of Severn,” that applies to the Severn property states, “any person who has tethered an animal shall ensure that at all times the animal has unrestricted movement of a length not less than 2 metres (my emphasis added).”¹¹

24Section 9.4 of By-law No. 2011-176, “A By-law to regulate and license Dog Kennels within the Township of Oro-Medonte,” states:

Every person who owns and operates for the purposes of a Sled Dog Kennel shall abide by the Mush with P.R.I.D.E. (Providing Responsible Information on a Dog’s Environment) Guidelines and Kennel Conditions as set out in Section 4 of this By-law.¹²

25It is unclear to me whether s. 9.4 of By-law No. 2011-176 applies to the Moonstone property given that s. 9.1 of that By-law limits the maximum number of dogs permitted in any one licensed Sled Dog Kennel to 50 and there were more than 50 dogs at the Moonstone property on September 23, 2021. In any event, the Mush with P.R.I.D.E. Guidelines only recommend a tether length of 1.8 metres to allow dogs to touch noses and play with at least one other kennel mate but also be far enough to prevent chains from tangling.¹³

26On a plain reading of the by-laws, the Regulation, and s. 67 of the Act, I agree with the respondent that no conflict arises such that s. 67 of the Act is engaged. The leading authority on reconciling overlapping provincial statues and municipal by-laws is the Supreme Court of Canada’s decision in 14957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town).¹⁴ In that case, the majority of the court applied the impossibility of dual compliance test, taken from the federal-provincial context, to the provincial-municipal context. The court held that the impossibility of dual compliance test requires the following analysis:

(i) Does the municipal by-law deal with a similar subject matter as the provincial statue?

(ii) If so, does obeying one necessarily mean disobeying the other?¹⁵

27Therefore, it is only when both steps of the dual compliance test are answered in the positive that a municipal by-law is inconsistent, or in conflict, with a provincial statute. The Supreme Court was clear that, “the mere existence of provincial (or federal) legislation in a given field does not oust municipal prerogatives to regulate the subject matter.”¹⁶

28The respondent conceded that the by-laws and the Regulation deal with the same subject matter of providing standards of care for animals including sled dogs. I agree. Therefore, the first step of the dual compliance test is met.

29However, I find that the second stage of the dual compliance test is not met as complying with the Regulation’s requirement of a three metre tether length does not necessitate defiance of the two municipal by-laws. I agree with the respondent’s submission that By-law No. 2020-62, which applies to the Severn property, only provides a minimum tether length of two metres. Therefore, a three metre tether length as required by the Regulation would not be contrary to, or in defiance of, the Severn by-law.

30I also agree with the respondent that the Township of Oro-Medonte’s By-law No. 2011-176, if it applies to the Moonstone property, is not clear regarding required tether lengths. By-law No. 2011-176 states that the Mush with P.R.I.D.E. Guidelines shall be followed. However, the Mush with P.R.I.D.E. Guidelines require tether lengths long enough for dogs to touch noses and to play with at least one other kennel mate but far enough to prevent chains from tangling suggesting that a 1.8 metre tether would be sufficient to accomplish this. The Mush with P.R.I.D.E. Guidelines also do not establish a maximum tether length. Moreover, the tether lengths at the Moonstone property do not confirm to the Mush with P.R.I.D.E. Guidelines as measured by the appellants. For example, exhibit “A” to the Reply Affidavit of Adrienne Spottiswood #10 sworn November 29, 2021¹⁷ shows tether lengths ranging in excess of six feet up to eight feet, four inches. Therefore, I find that the appellants were not in compliance with the Mush with P.R.I.D.E. Guidelines at the Moonstone property and, even if they were, a three metre tether length would neither be contrary to the Mush with P.R.I.D.E. Guidelines nor to By-law No. 2011-176 if it allows dogs to touch noses and to play with at least one other kennel mate but far enough to prevent chains from tangling.

31Therefore, as there is no barrier to dual compliance in this matter with the two municipal by-laws and the Regulation in terms of the dogs’ tether lengths, I find that s. 67 of the Act is not engaged such that the provisions of the by-laws regarding tether lengths would prevail over the requirements set out in the Regulation.

32Moreover, I recognize the appellants’ evidence that the requirement of a three metre tether length may be harmful to the dogs for various reasons by way of affidavit evidence from Janece Rollet, an expert in canine behaviour with expertise in sled dogs,¹⁸ who, instead, advocated for a tether length of no more than 1.83 metres. Regardless of Ms. Rollet’s evidence, I am bound by the provisions of the Regulation and her proposed tether length of 1.83 metres does not meet the minimum standard of care as required.

33I find Vice Chair Victor’s June 23, 2021 Decision and Order persuasive and agree with her that if the standards of care as set out in the Regulation are not met, then such care is not proper for the purposes of the Act and, as a result, such improper care amounts to distress. On that basis, I find that the dogs’ tether lengths must be three metres in length for the tethered dogs to not be in distress. As Ms. Spottiswood confirmed that none of the tethers were three metres in length on September 23, 2021 at either property, I find that the dogs that were tethered at both the Moonstone and the Severn properties were in distress on September 23, 2021 as the standards of care required by the Regulation were not being met.

34Not all of the dogs at the two properties, however, were tethered on September 23, 2021. Therefore, I must now determine whether the untethered dogs were in distress on September 23, 2021 based on the dog houses’ size, amount and state of bedding, insulation, and state of repair.

b) The Untethered Dogs – Severn

35There were approximately 19 untethered dogs at the Severn property living in pens on September 23, 2021. I agree with the appellants, however, that there were significant issues regarding the respondent’s record keeping at the Severn property which included the measurements of the dogs and their shelters, the descriptions as to the state and amount of bedding, and observations of the general state of repair of the dog houses.

36Inspector Jeff Letson testified that he acted as the scribe at the Severn property on September 23, 2021 and also chalk-numbered the dog houses. Inspector Letson candidly testified that he used two numbers twice on the log forms (numbers 31 and 107) and believed that he had 114 log forms in total on the date of the inspection. Inspector Letson renumbered the log forms from numbers 107 to 114 on September 23, 2021 in an attempt to correct his double numbering error for log form number 107. He did not, however, notice that he had two log forms bearing number 31 until just days prior to the hearing. When the possibility was put to Inspector Letson in cross-examination of renumbering the log forms with the double number 31s to 31(a) and 31(b) to correct the second numbering error, he testified that he could not confirm that this change would fix the mistake on the log forms without looking further into the issue. Even more troubling was Inspector Letson’s testimony that he only chalked 114 dog houses on September 23, 2021 given that there were, unbeknownst to him, 115 log forms in total.

37Given that Inspector Letson was unable to explain the difference of having one more log form than dog houses such that this record keeping discrepancy could be reconciled, I place little to no weight on Inspector Letson’s log notes for the Severn property. As a result, I find that the respondent failed to prove on a balance of probabilities that the dog houses at the Severn property were not of adequate size, in a good state of repair, structurally sound, or lacked adequate sleeping area as required by the Regulation. Thus, I cannot conclude that the untethered dogs were in distress for those reasons on September 23, 2021.

38Nevertheless, there is no evidence before me that any of the dog houses on the Severn property were insulated on September 23, 2021 except for one structure in a puppy pen. The appellants submitted that given the warm weather on the date of the inspection, the animals were not in distress due to lack of insulation. The Regulation, however, does not state that the requirement for insulation is only required during certain periods of the year. Rather, it provides a blanket requirement that shelters are insulated without any temporal qualification. I also do not agree with the appellants that the dog houses were insulated simply as a result of their plywood construction. I agree with Vice Chair Victor and find that uninsulated wood housing does not comply with the intention of the Regulation which requires outdoor dogs to have an enclosure that is insulated. Given that I have found that “proper care” in the definition of distress in the Act cannot include a shelter that falls below the minimum standard of care set out in the Regulation, which includes the requirement to be insulated, I find that the untethered adult dogs at the Severn property were in distress on September 23, 2021.

39I find, however, that the four puppies housed in the puppy pen on the Severn property were not in distress on September 23, 2021 for the following reasons:

(i) Inspector Nicole Driscoll, the lead inspector of the Severn property inspection on September 23, 2021, testified that one of the two structures located in the puppy pen was insulated and in a good state of repair;

(ii) Inspector Driscoll also testified that the second structure was not in a good state of repair but provided no reasons for this finding in her testimony. As a result, I find that the respondent failed to prove on a balance of probabilities that the second structure was not in a good state of repair because I have no details to support such a determination;

(iii) There is no evidence upon which I place weight regarding the appropriate size of the insulated dog house for the puppies. Moreover, even if I am wrong about the weight attributable to the log notes, the height and length of the puppies were not measured such that a determination whether the insulated structure was adequate for the puppies could be made;

(iv) While the bedding in the insulated structure may not have been dry at the time of the September 23, 2021 inspection, I accept Ms. Spottiswood’s testimony that the bedding was wet from the dogs due to extreme wet weather conditions rather than due to leaks in the structure, which was observed to be insulated and in a good state of repair. I also accept Ms. Spottiswood’s evidence that there was no opportunity to inspect and change the bedding in the morning prior to the early start of the respondent’s inspection; and

(v) Although Inspector Driscoll testified that the four puppies were shivering which indicated to her that they were cold, I do not accept Inspector’s Driscoll’s testimony on this issue. Inspector Driscoll was not qualified as an expert for the hearing. The uncontradicted expert evidence that I do have before me from Dr. H. Joel Rumney, veterinarian, is that puppies shiver for a variety of reasons including being excited.¹⁹

40Therefore, I find that the untethered four puppies housed in the pen at the Severn property were not in distress on September 23, 2021. However, the remaining untethered adult dogs at the Severn property were in distress as a result of their houses not being insulated on September 23, 2021.

c) The Untethered Dogs – Moonstone

41At the Moonstone property, there were seven puppies living untethered in a pen together with two structures, one wooden and the other was a large plastic blue barrel. I find that these puppies were in distress on September 23, 2021 as the standards of care required by the Regulation were not being met regarding the structures as they were not in a good state of repair.

42The bodycam footage of Inspector Rachel Vandenkroonenberg, one of the inspectors present at the Moonstone property on September 23, 2021, showed her scraping green sludge build-up off the inside of the wooden structure in the puppy pen.²⁰ Therefore, I do not accept Ms. Spottiswood’s affidavit reply evidence that there was no green sludge on this structure²¹ as Inspector Vandenkroonenberg’s body cam footage clearly showed this evidence. Therefore, I find that the wooden structure inside the puppy pen at the Moonstone property was not in a good state of repair on September 23, 2021 and, as a result, fell below the minimum standard of care as required by s. 3(7)(a) of the Regulation. As I have found that “proper care” in the definition of distress in the Act cannot include a shelter that falls before the minimum standard of care set out in the Regulation, I find that the puppies at the Moonstone property were in distress on September 23, 2021.

43Similar to the Severn property, there is also no evidence before me that any of the dog houses on the Moonstone property were insulated on September 23, 2021. For the reasons set out above in paragraph [38], I find that the remaining untethered dogs at the Moonstone property were also in distress on September 23, 2021 as a result of their houses not being insulated as required by the Regulation.

d) The Dog Houses – Moonstone

44The respondent also submitted that the dogs were in distress at the Moonstone property on September 23, 2021 based on the dog houses not being adequate in size, the amount and state of the bedding, and not being in a state of good repair.

45I find that the respondent failed to prove on a balance of probabilities that the dog houses at the Moonstone property were not of adequate size for the dogs on September 23, 2021 for the following reasons:

(i) Unlike the respondent’s evidence in the appeal of the Compliance Orders before Vice Chair Victor where Dr. Bruce Robertson, veterinarian, testified that dog houses needed to be large enough so the dog can stand up, turn around, and lie down,²² no such evidence was led in this matter;

(ii) If I were to accept Dr. Robertson’s testimony regarding what constitutes an adequately sized dog house, I find that the respondent has failed to measure the dogs in a way that such a determination can be made. For instance, Dr. Roberston testified before Vice Chair Victor that the measurements needed to determine the adequacy of the size of the dog house included measuring the dog from the height of the highest point of the dog’s head to the ground when standing, and from the nose to the base of the dogs tail for its length.²³ Inspector Sam Collins who was responsible for measuring the dogs height and length at the Moonstone property on September 23, 2021, testified that he measured the dogs from their scapula to the ground to obtain dog heights, and from their scapula to the sacrum to obtain the dogs’ lengths. Simply put, the dogs’ head was not included in any measurements of the dogs which is contrary to Dr. Robertson’s previous testimony. When I asked why the measurements did not include the dogs’ heads, Inspector Collins had no answer for me. Therefore, without the dogs’ heads being included in the measurements of the dogs, I am unable to determine if the dog houses were of adequate size at the Moonstone property to allow the dogs to stand up, turn around, and lie down; and

(iii) I place little weight on the measurements taken of the dog houses by Inspector Vandenkroonenberg. Inspector Vandenkroonenberg testified that she used a Leica DISTO E7500i laser distance measuring device (the “Leica device”) to obtain the interior measurements of the dog houses at the Moonstone property. While Inspector Vandenkroonenberg testified that she tested the Leica device to ensure that it was in proper working order prior to the inspection on September 22, 2021, she did not test it after the inspection as recommended by the user manual. Moreover, Inspector Vandenkroonenberg testified that she was required to replace the batteries in the Leica device during the inspection at the Moonstone property. While she testified that she checked to ensure that it was working properly after replacing the batteries, it is unclear how this was completed given that she did so in her vehicle without any predetermined measurements to ensure the device’s accuracy.

46Regarding the respondent’s evidence of the amount of the bedding in the dog houses at the Moonstone property, I find:

(i) That the dogs identified on log numbers 28, 29, 48, 57, 70, 76 and 88 on were in distress on September 23, 2021. Each of the log forms for these dogs indicated that there was no bedding present in their houses. As such, I find that they were not provided with an adequate and appropriate resting and sleeping area as required by s. 3(5) of the Regulation; and

(ii) The remainder of the log forms provided no depth measurements of the bedding and only described the bedding amount as being minimal or extremely minimal. Section 3(5) of the Regulation only requires that animals be provided with “an adequate and appropriate resting and sleeping area.” There is no evidence before me that the “minimal” or “extremely minimal” amount of shavings present was inadequate or inappropriate for the purposes of the Regulation.

47I also find that the log forms for the following dog houses noted that they were in a good state of repair such that the dogs assigned to these houses were not in distress on this basis on September 23, 2021: 2, 3, 5, 10, 13, 14, 31, 34, 90 and 103.

48Moreover, I also find that the respondent has failed to prove on a balance of probabilities that the dog houses 1 and 108 were not in a good state of repair on September 23, 2021 as no reasons were provided on the log forms for this determination. Finally, the log form for dog house 4 is silent as to whether it is in a good state of repair and there is no further evidence that it was not in a good state of repair on September 23, 2021. As such, I also find the respondent has failed to prove on a balance of probabilities that dog house 4 was not in a good state of repair on September 23, 2021 such that the dog associated with this house was in distress for this reason on the inspection date.

49I do find, however, that the appellants agreed by their actions that the following dog houses at the Moonstone property were not in a good state of repair. In her Reply Affidavit #10 sworn November 29, 2021,²⁴ Ms. Spottiswood affirmed that the following houses were fully repaired of all leaks after hearing the respondent’s evidence at the hearing: 7-9, 11, 12, 15-30, 32, 33, 35-42, 44-87, 89, 91-102, 104, 105, 107, and 109-111. I also find that dog houses 6 and 43 were not in a good state of repair on September 23, 2021 because they had sharps exposed on the inside of the dog house. As a result, the dogs associated with these houses were also in distress on September 23, 2021 as a result of their care falling below the standards set out in the Regulation.

The Decisions to Remove the Dogs, to Keep them in Care, and the Return of the Dogs

50Section 31(1)(c) of the Act permits an animal welfare inspector to remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if an order respecting the animal has been made under s. 30 and the order has not been complied with. Therefore, whether a removal is justified under s. 31(1)(c) requires not only non-compliance with a s. 30 order, but also consideration of the purposes of the removal.

51Section 31(6) allows for animals to be kept in the care of the respondent that were removed under s. 31(1) of the Act if the respondent determines that keeping the animal in care is necessary to relieve the animal’s distress or that the respondent has reasonable grounds to believe that the animal may be placed in distress if returned to its owner or custodian.

52Given that I have found that the four puppies housed together in a pen at the Severn property were not in distress on September 23, 2021, I find that they should not have been removed.

53For the remaining dogs at the Moonstone and Severn properties, it is highly questionable whether the respondent’s decision to remove the dogs was for the purposes of proving necessaries in accordance with s. 31(1) of the Act given the evidence before me that was contemporaneous to when the decision to remove the dogs was made.

54For example, video evidence from September 23, 2021 of Inspector Brandon James and Inspector Driscoll verbally notifying Ms. Spottiswood and Mr. Pryde that the dogs were going to be removed from the Severn property showed the following:

(i) Inspector James stating, “Of all the dogs that we inspected, none of their chain lengths meet the three metre mark, okay. They are not insulated, so you are in non-compliance…Our inspection says that you are in non-compliance of [the] order. We will be removing the dogs today,” and, “You think what you want. You’re in non-compliance. The animals will be removed today;” and

(ii) Inspector Driscoll verbally informing Ms. Spottiswood and Mr. Pryde twice that the “order” still stands.²⁵

55An excerpt of Inspector James’ will say statement was also submitted as evidence for the hearing.²⁶ While not contemporaneous with the decision, Inspector James’ will say highly suggests that the decision to remove the dogs was solely based on non-compliance with the Compliance Orders. In his will say, Inspector James confirmed that after the inspection concluded at the Severn property, he informed Ms. Spottiswood and Mr. Pryde that the dogs would be removed due to their inspection revealing that they were in non-compliance with the Compliance Orders. Again, no information is provided regarding the necessaries and distress is not even mentioned by Inspector James in this excerpt.

56A selection of Inspector Vandenkroonenberg’s duty book notes were also submitted as evidence for the hearing.²⁷ In an entry at 12:45 p.m. on September 23, 2021, Inspector Vandenkroonenberg noted that Inspector Sara Munoz, Regional Supervisor with AWS and lead inspector at the Moonstone property on September 23, 2021, returned from her work vehicle after making some calls and advised that the dogs would be removed from the Moonstone property due to non-compliance. There is again neither mention of necessaries to be provided to the dogs in Inspector Vandenkroonenberg’s duty book note entry nor distress.

57Further, the two Notices of Removal to the Owner or Custodian of Animal(s) issued by AWS on September 23, 2021 stated:

(i) To Georgina Peirce, Thomas Pryde, and Adrienne Spottiswood for the Moonstone property notifying of its removal of 111 dogs of various breeds, age, sex, and colour as well as seven Husky-type puppies that were approximately eight weeks old. This Notice of Removal was dated September 23, 2021 at 4:35 p.m. and signed by Inspector Vandenkroonenberg;²⁸ and

(ii) To A. Spottiswood and Thomas Pryde for the Severn property notifying of its removal of 115 dogs of various ages, sex, and colour. This Notice of Removal was dated September 23, 2021 at 8:01 p.m. and was signed by Inspector James.²⁹

58Both of the Notices of Removal stated that the dogs were being removed “pursuant to section 31” of the Act and included the following clause:

Pursuant to subsection 35(1), if an animal welfare inspector has provided an animal with necessaries to relieve its distress or the Chief Animal Welfare Inspector has taken an animal into the Chief Animal Welfare Inspector's care, the Chief Animal Welfare Inspector may, from time to time, serve on the owner or custodian of the animal a statement of account respecting the cost of the necessaries.

59I do not agree with the respondent that simply referring to s. 31 of the Act in the Notices of Removal provides any information to the appellants of the necessaries to be provided to the dogs by the respondent. Removal of an animal from its owners and/or custodians is an extraordinary power conferred by the Act and, simply put, more is required than simply reciting the legislation to prove that the decision to remove the dogs was justified under the Act.

60Regardless of my position on whether the respondent’s decision to remove the dogs was for the purposes of proving necessaries in accordance with s. 31(1) such that the decision to keep to removed dogs complied with s. 31(6) of the Act, I do not need to make a determination on these issues as the Act does not require such findings for me to consider whether the dogs should be returned to the appellants.

61Section 38(9) is clear that the Board may, after a hearing, order that an animal removed under s. 31(1) or that was taken onto the respondent’s care under s. 31(6) be returned to the owner or custodian. Section 15(1) of the Act also states that no person shall cause an animal to be in distress. Further, s. 15(3) states that no person shall knowingly or recklessly cause an animal to be exposed to an undue risk of distress. Therefore, the overarching consideration of whether the dogs should be returned to the appellants is whether they would be returned to a situation of distress and not whether the respondent complied with s. 31(1) or s. 31(6) of the Act.

62As I have found that the four untethered puppies housed in a pen at the Severn property were not in distress on September 23, 2021 and that they should not have been removed, I order that the respondent return these four puppies to the appellants forthwith, but no later than two business days after the release of this decision.

63I also order that the seven puppies at the Moonstone property, identified in the log forms as dogs 112A-G, be returned to the appellants forthwith, but no later than two business days after the release of this decision. While I found that these puppies were in distress on September 23, 2021, there is no evidence before me that returning these four puppies to the appellants will cause them to be in distress or be exposed to an undue risk of distress. Ms. Spottiswood affirmed that they have cleaned the doghouse in the puppy pen thereby eliminating the cause of their distress.³⁰

64However, I find that ordering the return of the remainder of the dogs to the appellants at this time would be returning them into a situation of distress which is contrary not only to s. 15, but also to the entire scheme of the Act. Therefore, pursuant to my powers under s. 38(10) of the Act, the return of each of the remaining dogs shall be subject to the appellants being in compliance with the following:

(i) For each dog tethered at both properties, the tether length must be a minimum of three metres in length;

(ii) Each dog’s house must be insulated at both properties;

(iii) At the Moonstone property:

(a) Dog houses identified by log form numbers 28, 29, 48, 57, 70, 76 and 88, if a dog is to be sheltered in them, shall be provided with bedding such that they have an adequate and appropriate resting and sleeping area; and

(b) Dog houses 6 and 43 that have the sharps that are exposed on the inside of the dog houses must have the sharps removed.

65The appellants shall notify the respondent when compliance has been achieved for any particular dog or dogs. Upon receipt of such notice, the respondent shall return the particular dog or dogs within one week unless otherwise agreed.

66In terms of the costs of boarding the dogs until the date pending compliance, I make no determination of this issue. No issues relating to a statement of account were before me on this appeal.

67I also decline to order any further repairs to be made to the dog houses that the appellants agreed by their actions were not in a good state of repair at the Moonstone property because I accept Ms. Spottiswood’s evidence that repairs have been made to these dogs houses such that the leaking has been remedied. These repairs presumably have also remedied the wet bedding in the affected dog houses.

The Appellants’ Motion

68On November 29, 2021, the appellants filed a motion seeking the following Orders from the Board, that the respondent:

(i) Comply with the Order that the respondent provide disclosure of all documentation (written and visual) related to the housing and care of the dogs since the removal on September 23, 2021 and ongoing;

(ii) Continue to advise immediately of the death(s) of any dogs;

(iii) Be required to consult with the owners and/or custodians of any dog before it is neutered, spayed, euthanized, or receives medical treatment for any life-threatening condition(s); and

(iv) Be required to direct those persons having care and control of the dogs to utilize the correct name of each dog as disclosed by the appellants in their interactions with each dog.

69Having received and reviewed the appellants’ motion submissions and material, the appellants’ November 29, 2021 motion is dismissed in its entirety for the following reasons:

(i) I agree with the appellant that Member Friedland’s October 25, 2021 Reason for Decision and Order on the appellants’ motion for disclosure required the respondent to provide all documentation relating to any care any animal has received by a veterinarian or other specialist from September 23, 2021 to date and ongoing. However, rule 9.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”) only permits the Board to order any party to provide such further disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding. As my decision has now been rendered, any further disclosure would not be necessary for a full and satisfactory understanding of the issues in dispute;

(ii) While I understand that four dogs have either died or been euthanized since being removed and kept in the care of the respondent,³¹ the powers of the Board are limited to those set out in s. 38(9) of the Act and none of those provisions provide the authority to order the respondent to continue to advise of any death of a dog in its care;³² and

(iii) Similarly, s. 38(9) of the Act does not confer jurisdiction upon me to order the respondent to consult with the appellants before the respondent neuters, spays, euthanizes, or provides medical treatment for any life-threatening condition to the dogs or to order those persons having care and control of the dogs to utilize the correct name of each dog when interacting with each dog.

Order

70Pursuant to the powers of the Board under s. 38(9) and s. 38(10) of the Act, I order that:

(i) The respondent shall return the following puppies to the appellants forthwith, but no later than two business days after the release of this decision:

(a) The four puppies at the Severn property; and

(b) The seven puppies at the Moonstone property identified as dogs numbered 112A-G on the log forms.

(ii) The return of each of the remaining dogs shall be subject to the appellants being in compliance with the following:

(a) For each dog tethered at both properties, the tether length must be a minimum of three metres in length;

(b) Each dog’s house must be insulated at both properties;

(c) At the Moonstone property:

1. Dog houses identified by log form numbers 28, 29, 48, 57, 70, 76 and 88, if a dog is to be sheltered in them, shall be provided with bedding such that they have an adequate and appropriate resting and sleeping area; and

2. Dog houses 6 and 43 that have the sharps that are exposed on the inside of the dog houses must have the sharps removed.

(iii) The appellants shall notify the respondent when compliance has been achieved for any particular dog or dogs. Upon receipt of such notice, the respondent shall return the particular dog or dogs within one week unless otherwise agreed.

71The appellants’ November 29, 2021 motion is dismissed in its entirety.

Footnotes

1. 1S.O. 2019, c. 13.
2. 22021 ONACRB 12.
3. 32021 ONACRB 18 (Reconsideration Decision).
4. 4Supra note 2 at para. 39.
5. 5Ibid. at paras. 35 and 70.
6. 6Ibid. at para. 85.
7. 7Ibid. at paras. 58 and 71.
8. 8Ibid. at para. 83.
9. 9Ibid.
10. 10Ibid. at paras. 35, 38, 66, 69 and 71.
11. 11Exhibit 3, Compendium of the Appellants, tab 7.
12. 12Ibid.
13. 13Mush with P.R.I.D.E. Sled Dog Care Guidelines, Revision 4-2, Adopted 1 November 2021, cited in the Report of Janece Rollet dated April 7, 2021 at para. 7 and found online at: Microsoft Word - *Guidelines rev 4-2.docx (wsimg.com)
14. 142001 SCC 40 (“Spraytech”).
15. 15Ibid. at para. 38.
16. 16Ibid. at para. 39.
17. 17Exhibit 150.
18. 18Exhibit 17 (Report of Janece Rollet dated April 7, 2021).
19. 19Reply Affidavit of Dr. H. Joel Rumney #6, para. 3. The respondent objected to this portion of Dr. Rumney’s evidence on the basis that it was not proper reply evidence as it constituted case splitting and could have reasonably been anticipated such that Dr. Rumney should have addressed the dogs shivering in his initial hearing evidence. I disagree. The dogs shivering was not put to Dr. Rumney as he was not cross-examined by the respondent. He should have an opportunity as an expert veterinarian to provide information to the Board that it requires to make its decision and not be required to anticipate every piece of evidence that the respondent elected to raise during the hearing. This would place far too high of an onus on the appellants and likely could have been avoided by the respondents calling their evidence first as I stated in the hearing.
20. 20Exhibit 83.
21. 21Supra note 18.
22. 22Supra note 2 at para. 78.
23. 23Ibid.
24. 24Supra note 18.
25. 25Exhibit 101.
26. 26Supra note 26 (Exhibit “A” to the Affidavit of Ms. Spottiswood sworn October 11, 2021).
27. 27Exhibit 85.
28. 28Exhibit 12.
29. 29Exhibit 11.
30. 30Supra note 18, para. 7. The respondent objected to this portion of Ms. Spottiswood’s affidavit on the basis that it was not proper reply evidence as it constituted case splitting and could have reasonably been anticipated such that Ms. Spottiswood should have addressed the green sludge in her intial hearing evidence. I disagree. The green sludge was not put to Ms. Spottiswood in cross-examination and, as a result, it is appropriate that she have an opportunity to respond to this evdience. Again, the appellants should not be required to anticipate every piece of evidence that the respondent will raise during the hearing. This would place far too high of an onus on the appellants and, as stated above, likely could have been avoided by the respondents calling their evidence first. Therefore, the objection to this evdience is overuled.
31. 31Exhibit “A” to the affidavit of Adirenne Spottiswood #11 sowrn December 6, 2021.
32. 32Section 32(2) of the Act does require an animal welfare inspector who has caused an animal to be euthanized to immediately serve written notice on the owner or custodian of the animal.