Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019
Between:
Thomas Pryde, Adrienne Spottiswood & Georgeina Pierce
Appellants
and
Chief Animal Welfare Inspector
Respondent
REASONS FOR DECISION & ORDER Appellant’s Motion for an Inspection
Adjudicator: Jennifer Friedland
Appearances:
For the Appellant: Eric Gillespie, Counsel John May, Counsel Yasmeen Peer, Counsel Kristian Ferreira, Student-at-Law
For the Respondent: Jason Kirsh, Counsel Deanna Exner, Counsel Padraic Ryan, Counsel Waleed Malik, Counsel
Heard by videoconference: October 22, 2021
Overview
1The appellants run a dog sledding and horse-riding business out of two locations in Ontario, where the appellants’ families also reside. One is in Oro-Medonte (“Moonstone”) and the other is in the Township of Severn (“Severn”).
2On September 23, 2021 the Chief Animal Welfare Inspector (the respondent) removed all of the appellants’ dogs from both of the appellants’ properties pursuant to s. 31(1) of the Act. Over 200 dogs were removed in total. The respondent subsequently made a decision to keep all of the dogs in its care pursuant to s.31(6) of the Act. The appellants have appealed the respondent’s removal orders and decisions to keep and seek the return of their dogs. The appeals have been joined. The hearing had not commenced at the time this motion was heard. It will be proceeding before a different member.
3On this preliminary motion, the appellants request an Order allowing them to inspect each of the dogs that were removed by the respondent on September 23, 2021.
4The motion proceeded before me on October 22, 2021 by video. I am also the case management adjudicator on this file. The parties consented to my hearing this motion for an inspection.
5I also previously heard a motion brought by the appellants for disclosure. That relief was granted for reasons set out in my decision dated October 25, 2021. The background to this case was amply set out in that disclosure decision and need not be repeated here in detail.
6Suffice to say, the respondent removed the appellants’ more than 200 dogs from their two properties on September 23, 2021, ostensibly pursuant to s. 31(1) of the Act. This provision allows an inspector the discretion to remove an animal for the purpose of providing it with the necessaries to relieve its distress in certain circumstances including where there is an order made under s.30 that has not been complied with.
7In this case, the animals were taken from the appellants properties due to non-compliance with s.30 orders issued in February 2021 requiring that the tethers used to hold the dogs be at least 3 metres long as required under the regulations for outdoor dogs and for non-compliance with orders relating to insulation, size and repairs to the dog houses.
8The orders had been confirmed, with minor variations, by a decision of this Board released June 23, 2021, following an appeal. The compliance date was September 1, 2021. Both sides sought a reconsideration of the decision. By decision released September 4, 2021, both requests for reconsideration were denied. Less than three weeks later, the respondent executed a warrant on each property; inspected the dogs, their tethers, and the dog houses, then removed every dog from both properties for non-compliance with the s.30 orders.
9The appellants allege in their grounds of appeal that the removal of the dogs by the respondent has caused distress to the dogs and was a breach of the standards of care for animals that is set out in Ontario Regulation 444/19. The appellants have submitted multiple affidavits from various witnesses in support of this allegation.
10The respondent denies that it has caused the animals to be in distress and has, in any event, brought a motion seeking to dismiss the appellants’ grounds of appeal which allege that the respondents’ actions caused distress or critical distress to the animals. The respondent’s motion had not been heard by the time of the hearing of this motion for an inspection.
11Regardless of whether the current care of the dogs is found to be relevant at the hearing, the allegation that the respondent’s actions have caused the animals to be in distress cannot realistically be ignored at this stage of the proceedings as the appellants have been notified that three of their dogs have died in the respondent’s care.
12This brings some urgency to the appellant’s request for an inspection/examination of the dogs by their own veterinarian.
13The appellants were provided some information about the death of their dogs. The respondent is required under s. 32 (2) of the Act to provide notice to an owner if a dog in the care of the Chief Animal Welfare Inspector has been euthanized. As set out in my disclosure decision, the respondent had otherwise been refusing to provide the appellants with any information about the care their animals are receiving, including if they have even been examined by a veterinarian other than when the dogs became ill and had to be euthanized.
14Two of the dogs that are now deceased were siblings, according to the appellants. They were four years of age and were reportedly from champion European bloodlines. According to the appellants, both dogs were both in robust health prior to their removal.
15The preliminary information provided by the respondent is that both dogs had streptococcus zooepidemicus at the time they were euthanized. The information from the respondent is that this is a bacterium commonly found in equine populations and may have been present in the appellants’ canine population prior to the dogs’ removal (as the appellants also have horses).
16From the appellants’ evidence so far submitted in these proceedings, it does not appear that the respondent checked the health of any of the dogs prior to transporting them all at once to unknown facilities, possibly indoors, where at least two of the dogs have now died through the spread of this highly contagious and often fatal pathogen.
17Based on the recent information pertaining to the death of their dogs, the appellants requested at the start of this hearing that I make an order at this motion returning the dogs to the appellants’ care. I do not have the jurisdiction to do so absent a hearing at which the respondent would be entitled to call evidence and cross-examine the appellants’ witnesses among other procedural protections set out in s. 38(8) of the Act.1
18With respect to the appellants’ request to inspect all of the dogs, for the reasons give below, the appellants’ request is denied.
Law and Analysis
19The appellants submit that the Board has the power to order an inspection of the animals that were removed pursuant to Rule 9.3 (d) of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission (effective October 2, 2017, amended February 7, 2019) (the “Board’s Rules”).
20Rule 9.3 (d) provides as follows:
A party may seek an order from the Tribunal at any stage of the proceeding ordering a party to:
… (d) make available for inspection anything, subject to conditions established by the Tribunal, that the party will present as evidence at the hearing …
21The respondent submits that the Board has no jurisdiction to order an inspection of the dogs, as it does not intend to present the dogs as evidence at the hearing.
22The appellants, meanwhile, refer me to the fact that the respondent is relying on measurements taken of the dogs during the inspection that took place just prior to the removal of the animals. The appellants assert that they were not provided the opportunity to observe the inspectors closely when they took those measurements, much less double-check or take measurements of their own. They submit that they ought to be able to inspect the dogs in order to take their own measurements.
23The respondent maintains that its reliance on measurements of the dogs does not mean that it is presenting the dogs as evidence at the hearing such as to potentially be captured by Rule 9.3(d) which might allow for an inspection.
24With respect, the respondent is being too literal. If a party will be relying on a measurement at the hearing, the item measured will be evidence at the hearing.
25I therefore find that the Board does have jurisdiction to order the respondent to make the dogs available for inspection.
26However, for the reasons given below, I decline to do so in this case at this juncture.
27As the respondent points out, Rule 3.1 of the Board’s Rules requires that the Rules be “liberally interpreted and applied and may be waived, varied, or applied on the Tribunal’s own initiative, or at the request of a party, to:
…. (b) ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal…”
28I do not find that this principle would be served by allowing the appellants to inspect more than 200 dogs for the purpose of taking measurements.
29The appellants will be free to make submissions as to the weight that should be afforded the respondent’s measurements of the dogs given this ruling and assuming the evidence supports their claim that they were excluded from participating in the measurements during the inspection and prohibited by the inspectors from coming close enough to meaningfully observe the measurements taken by the respondent.
30In my view, the most compelling reason to grant the appellants’ request for an inspection has to do with the lack of information thus far provided to the appellants about what is happening with their dogs while in the respondent’s care. This is not to suggest that the respondent is not in fact providing appropriate care for the dogs, only that it has so far been silent as to what that care is. Were the respondent to continue to withhold information about the dog’s current health and housing – particularly in light of the concerns raised by the appellants about the potential stress caused to the dogs by the respondent’s actions and the death of three dogs while in the respondent’s care – I would find it reasonable to allow the appellants to examine the dogs for themselves.
31In this case, however, the respondent’s unwillingness to provide information about the care being provided to the appellants’ dogs will presumably be remedied through my Order for disclosure which requires the respondent to provide information about the housing and care of the animals since removal and ongoing. This is to include all information relating to any medical attention the animals have received or will receive in the future pending the outcome of the appeal.
Conclusion
32I find that the Board does have the jurisdiction pursuant to Rule 9.3(d) to order an inspection of the dogs by the appellants given that the respondent will be presenting evidence about their measurements and, presumably other details about the dogs, at the hearing.
33I acknowledge there is some unfairness to the appellants in not being allowed to conduct measurements for themselves of the dogs at this time. However they may make submissions as to the weight the respondent’s evidence should be afforded given this ruling. I find it would not be proportionate or efficient to order the examination of over 200 dogs for this purpose alone.
34On the surrounding issue of the alleged distress or critical distress being suffered by the dogs as a result of the removal, I decline to order an inspection on this basis. The respondent still has a motion pending seeking to strike the appellants’ grounds relating to whether the removal and the continuing decision to keep the dogs caused distress or critical distress to the animals. Moreover, I find that the current concerns – palpable as they are in light of three dogs now being dead in the respondent’s care – will presumably be assuaged by the disclosure that the respondent has been ordered to produce by my Order dated October 25, 2021.
35I remind the parties that s. 38(11) of the Act allows the Board to issue an order or use any of its other powers listed in s. 38(9) on consent without a hearing if the parties can come to some middle ground with respect to the care and concerns over these dogs. The parties are encouraged to continue discussions to determine whether that might be the most prudent way forward given the complexities and concerns raised by both parties on this appeal.
ORDER
36For the reasons given above, the appellants’ motion for an inspection of the dogs is dismissed.
Released: November 3, 2021
Jennifer Friedland, Member