Tribunals ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’Étude des Soins aux Animaux

Date: 2022-01-17

Appeal under section 38 of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13

Between:

Yonglin Xu Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Member

Appearances:

For the Appellant: Frank Alfano, Paralegal

For the Respondent: Gavin Lee, Counsel

Date and place of hearing: December 16, 2021 by videoconference

REASONS FOR DECISION AND ORDER

OVERVIEW

1Yonglin Xu (the “appellant”) is appealing a decision of the Chief Animal Welfare Inspector (the “respondent”) to keep the appellant’s two dogs pursuant to section 31(6) of the Provincial Animal Welfare Services Act, 2019 (the “Act”).¹ The two dogs are Xin Xin and Wang Wang, a male and female dog respectively, both Great Pyranese/Husky-type. Both dogs were 4 months old at the time they were removed from the appellant.

2The dogs were initially removed by the respondent on October 20, 2021 under section 31(1)(a) of the Act following a determination made by a veterinarian that the dogs were in distress. In a hearing before the Animal Care Review Board (the “Board”) on November 17, 2021, the appellant advised that the removal of the dogs was not being contested and that the only issue in dispute was whether the dogs could be returned to him.

3On December 7, 2021 the respondent issued a Notice of Decision of the Chief Animal Welfare Inspector to Keep an Animal in the Chief Animal Welfare Inspector’s Care Pursuant to Section 31(6) of the Provincial Animal Welfare Services Act, 2019 (the “Notice of Decision”).

ISSUES TO BE DECIDED

4The issue to be decided by the Board is whether the Board should order that the two dogs taken into the Chief Animal Welfare Inspector’s care be returned to the owner.

RESULT

5For the reasons that follow, I decline to order the return of the animals to the owner.

BACKGROUND

6The appellant got his first dog on July 8, 2021 when it was 2 months old. In August he got a second dog.

7In August 2021, Animal Welfare Services (“AWS”) started received complaints from neighbours of the appellant that the dogs were being abused. Initially, on investigation, Inspector Ryan Withrow (the “Inspector”) could find no evidence of distress. Neighbours then videotaped interactions between the appellant and the dogs over a one month period and submitted these to AWS.

8AWS provided the videotaped interactions to Dr. Bruce Robertson who reviewed them and subsequently issued a Certificate of a Veterinarian Advising the Removal of Animals (the “Removal Certificate”) to the Inspector on October 19, 2021.

9On October 20, 2021, the Inspector issued a Notice of Removal to the Owner or Custodian of Animals (the “Notice of Removal”) pursuant to clause 31(1)(a) of the Act, where a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal. The Inspector then removed the appellant’s two dogs.

10On December 7, 2021, after viewing the same videotaped interactions, Michael Draper, AWS Regional Supervisor, the delegated Chief Animal Welfare Inspector, signed a Notice of Decision of the Chief Animal Welfare Inspector to Keep an Animal in the Chief Animal Welfare Inspector’s Care Pursuant to Section 31(6) of the Provincial Animal Welfare Services Act, 2019 (the “Notice of Decision”). The Notice of Decision stated that the Chief Animal Welfare Inspector had reasonable grounds to believe that Xin Xin and Wang Wang may be placed in distress if returned to the appellant.

EVIDENCE

Respondent’s Evidence and Submissions

11The respondent submitted its position that the dogs were removed because the appellant abused them, causing distress, and that the conditions leading to the dogs’ removal will persist if they are returned to the appellant.

12The respondent played ten videos dating from September 23, 2021 to October 19, 2021 (note that the audio aspect was not available). The videos were taken from a point across from the open garage door, and showed:

• Two dogs kept in a single crate in a garage;
• The appellant repeatedly hitting a dog with his open hand, and punching a dog, and subjecting it to backhand blows – on a number of occasions;
• The appellant repeatedly hitting a dog with the feed bowl – on a number of occasions;
• The appellant throwing water from the water bowl at the dogs;
• The appellant kicking a dog, both with and without force – on a number of occasions; and
• The dogs shying away from the appellant, and at other times flinching.

13The respondent played two audio tapes of interviews from neighbours dated November 18 and 19, 2021. The witnesses described a history of the appellant abusing the dogs, as observed from their windows facing the garage and during walks. They contacted AWS starting in August, and later in September they contacted both AWS and the police as they were concerned for the well-being of the dogs. One witness described meeting the dogs on a walk, and how their fur was raised, and they appeared skittish, which the witness thought indicated a level of fear. The witness noted that the intensity of the abuse and yelling escalated over time. He noted the abuse occurred frequently and over many months and was witnessed by several members of his household. I note that the witnesses were not qualified as experts, and that the opinions are those of laypersons.

14The respondent also sought to submit a third audio tape of the Inspector interviewing the appellant after the dogs had been removed and prior to the respondent’s decision to keep the animals in care. The audio tape was two hours in length and no transcript was provided. As the appellant was available to testify, I ruled that this audio recording would not be admitted.

15The respondent called Dr. Bruce Robertson as an expert witness. Dr. Robertson stated that he relied on the ten videos to make his decision to sign the Removal Certificate. He described both the audio and visual aspects of the videos, including the appellant’s physical abuse and the dogs’ submissive and distancing behaviours.

16Dr. Robertson stated that he didn’t observe anything in the dog’s behaviour that warranted the appellant’s conduct, and that the dogs’ reaction to the appellant hitting and kicking them, including backing away from the appellant and yelping was indicative of distress. He quoted clause (1)(c) of the Act’s definition of distress, as “the state of being abused or subject to undue physical or psychological hardship.”

17Dr. Robertson said that the age of the dogs when they were abused, between 8 weeks to 4 months, is a critical socialization stage where the interaction of dogs and people is important. He stressed that if the appellant consistently abused the dogs, they may assume this is the behaviour they might expect from the appellant and will generalize that expectation with him and have a fearful response if they are returned to the appellant.

18Under cross-examination, Dr. Robertson responded that he is not a behaviourist but has some post-graduate training in the field.

19The respondent called Mr. Michael Draper, AWS Regional Supervisor, and delegated authority as the Chief Animal Welfare Inspector. He was responsible for issuing the Notice of Decision after reviewing the evidence.

20Mr. Draper stated that:

• He relied on the evidence of the ten video recordings of the appellant with his dogs, the audio tapes of the interviews with the two witnesses, the audio tape of the appellant’s interview, Dr. Robertson’s report, and the AWS incident report to form his decision to issue the Notice of Decision.
• He felt that the appellant’s behaviour was not a rational method of treating or training dogs. There was no apparent cause for the discipline shown, and he characterized the behaviour as acts of abuse.
• The audiotaped interviews influenced his decision, as they indicated the appellant’s behaviour had occurred a number of times. The AWS incident report indicated that there were a number of reported incidents.
• He watched the lengthy interview of the appellant, who admitted to the acts but rationalized them as forms of discipline and for the purpose of protecting one dog from the other. He felt the appellant tried to justify his behaviour by maintaining that his training method was a normal method of training and punishment of dogs. He thought the appellant lacked remorse for how he had treated his dogs.

21Mr. Draper’s written Reasons for his Notice of Decision included that “due to the serious nature of the abuse, which is intentional infliction of pain to the dogs, and Mr. Xu’s admissions and belief this was normal, and that no effective monitoring exists to ensure Mr. Xu does not continue such behavior within his home, and the distress may continue posing a serious risk to the dogs, therefore my decision is that I am satisfied on reasonable and probable grounds that the dogs may be subject to similar abuse (distress) upon returning to Mr. Xu and should remain in the care of the Chief Animal Welfare Inspector.”

22Under cross-examination, Mr. Draper acknowledged that he had heard the appellant’s assurances that he would not continue to abuse his dogs and would engage a dog trainer, but that he balanced these with the appellant’s behaviour during the interview where he justified his treatment of the dogs. Mr. Draper also felt that the pattern of the appellant’s behaviour was relevant and that it continued from July through September, and there was a risk this could continue and that there is no way to monitor it.

23The respondent called Inspector Ryan Withrow to testify. Mr. Alfano agreed to adopt his will say. The facts include the following:

• He received a dispatch “ticket” on September 1, 2021 regarding puppies being crated in a garage and contacted Inspector Veats for briefing. This included information that she had previously attended the property for inspection and found no violations of the standards of care.
• He attended the property on September 3, 2021 and met with the appellant who led him to the garage where he observed two crated puppies. No welfare concerns were noted.
• On September 24, 2021 he received a dispatch from police regarding video evidence of dog abuse at the property. The Inspector received copies of the videos on September 30, 2021. New videos continued to be received directly from a complainant over the next three weeks. The Inspector provided brief descriptions of the videos that aligned with Dr. Robertson’s descriptions in his expert report.
• The Inspector sent the videos to Dr. Bruce Robertson on October 1, 2021 for his opinion and followed up on October 19, 2021. Dr. Robertson sent a signed Veterinarian Certificate to him.
• The Inspector contacted the appellant on October 19, 2021 to make an appointment for the next day. Within the hour the Inspector received a call from the complainant that the appellant could be overheard screaming and crying inside his garage, and that the complainant believed he was assaulting his dogs.
• The Inspector arrived at the appellant’s property on October 19 or 20th [timelines given aren’t clear], where he found the dogs tethered to the stair banister inside the house.
• The Inspector removed the dogs and took them for a veterinary assessment however no signs of physical concerns were found.

24The Inspector stated that since the removal of the dogs he conducted interviews with the complainants and with the appellant.

Appellant’s Evidence and Submissions

25The appellant did not contest the evidence submitted by AWS. He took the position that he thought his treatment of the dogs was proper based on a YouTube video which stated that he needed to dominate his dogs. His treatment was based on his interpretation of what he thought that meant. He has now hired a dog trainer to show him how to train his dogs properly.

26The appellant stated in his Notice of Appeal that he is willing to abide by monitoring or other conditions that might be imposed by the Board tied to the return of his animals.

27The appellant called Mr. Robert Steel, who runs a business that includes training for security dogs, police dogs, and pets. Mr. Steel described his background with handling dogs and gave a synopsis of his training theory. He has met with the appellant twice briefly and had a telephone conversation. He explained that he could not provide training as the appellant did not have the dogs in his possession, but that he had given the appellant some educational material and a multiple-choice test, which the appellant passed with a high score.

28Mr. Steel acknowledged that he had watched the videos and read the respondent’s disclosure and agreed that the appellant’s behaviour was unacceptable. In his opinion, the appellant did not know how to treat dogs.

29Mr. Steel interviewed the appellant to judge his character and determine if he was capable of understanding what was right or wrong in the care of dogs, and whether he could adopt structured training. He described the educational materials provided including nine basic elements including basic training, kennel management, grooming, first aid, training equipment, and transportation. If engaged to train the owner and his dogs, he proposes one session per week, working with one dog at a time for an indeterminate duration. He stated that the appellant shows a genuine desire to have his dogs back. He stressed the importance of training the handler and developing the handler/dog relationship.

30Under cross-examination, Mr. Steel responded that:

• He has experience training abused dogs. He added that in this capacity he carried out assessment of dogs to determine if they were suitable for police training. He is not a behaviourist.
• He had not met the appellant’s dogs and would have to see their behaviour reacting to the appellant.
• Part of the training has to do with the “5 Freedoms”:
  1. From hunger and thirst,
  2. From discomfort,
  3. From pain, injury and disease,
  4. From fear and distress, and
  5. From danger.
• His impression of the appellant was that he understood the 5 Freedoms and had made a mistake through his influences of online videos for training. He explained how some videos and books talk about the owner’s dominance as an alpha male and the use of negative reinforcement to obtain results. He acknowledged that most people intuitively understand appropriate behaviour, but not always.
• As he had not met the dogs, nor seen them with the appellant, it is only hypothetical whether the trainer/dog bond could be developed. He added that the bond can be developed with care and a great deal of interaction. He noted that if the dogs have been impacted to such an extent that they are fearful of the appellant, and that it will take more work to rectify this.

31On re-examination, Mr. Steel agreed that he was willing to provide progress reports to the Board if the appellant proceeds with training.

32In response to my questions, Mr. Steel replied:

• Certain extreme behaviours never leave a dog, giving an example of one case where a dog exhibited extreme fearfulness when a person with a physical appearance similar its abuser was present, saying this can’t always be corrected.
• His revises the training program if an exercise isn’t working.

33The appellant gave testimony explaining his concerns that the dogs will grow large and that the website he viewed said they needed to be trained hard. He expressed his frustrations that the dogs played with their water, spilling it, and that they defecated in their crate, and then ate it. He acknowledged that yelling and screaming at the dogs was wrong, and that he had done it to make them afraid of him as a dominance tactic.

34The appellant said he would agree to any conditions the Board might impose to allow the dogs to be returned to him. He would agree to inspections and would continue getting educated on training his dogs. He stated that he missed his dogs and playing with them.

35Under cross-examination, the appellant responded that:

• He got his training through YouTube videos which said he had to dominate the dogs. He screamed at them, hit them and kicked them because he wanted them to know what they did was wrong. He screamed at them at night to stop them from fighting because he didn’t want the neighbours to complain about the noise. He punched Xing Xing because he tried to take the other dog’s food. He also didn’t want them eating their feces. He will now keep them in separate crates.
• The puppies were not in distress when the Inspector visited as they were playing with him. The vet said the dogs weren’t injured.
• He tried to get a trainer for the dogs but was told they were too young for training, and to come back in a few months. He started training them on his own in August using YouTube videos. He now understands that in Canada he can’t give his dogs distress.
• He now understands that training requires him to use commands, and acceptable behaviour. For example, give only 15 minutes to eat food and then remove. After doing this for several days the dogs will learn to eat quickly. To control dogs eating feces, let the dogs out every 3 to 4 hours. He understands the crates are supposed to be “safe rooms” for the dogs, and they won’t defecate in them. He will now put the dogs in their safe rooms after play and talk with them and give rewards.
• He stressed that he and his wife miss the dogs. When asked how he feels about the circumstances he recited the 5 Freedoms and said in English the words have a lot of different meanings. When asked if he felt badly about the past, he responded no.

36In response to my questions, the appellant stated:

• These were his first dogs, and his family never had any dogs. He got the dogs because he was lonely at home during Covid.
• He keeps the dogs in the garage because the house is rented, and he doesn’t want them to damage it. He will keep the dogs in a crate in the basement during the winter.
• He will not hit or kick the dogs in the future if they do something he doesn’t like. He will limit their food and water to reduce them peeing or defecating in their crates.

LAW AND ANALYSIS

Law

37Section 31(1) of the Act states that an AWS inspector may remove an animal for the purpose of providing it with necessaries to relieve its distress.

38Clause 31(6)(b)(i) of the Act states the Chief Animal Welfare Inspector may decide to keep an animal that was removed under section 31(1) of the Act if s/he has reasonable grounds to believe the animal may be placed in distress if returned to the owner.

39Section 38(9) of the Act gives the Board powers to order that an animal removed under subsection 31(1) of the Act, or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31(6) be returned to the owner.

Analysis

40I find from the videos and the complainant’s observations that it is clear there was abuse –the appellant repeatedly hit and kicked the dogs and yelled at them over an extended period of time.

41I am persuaded by Dr. Robertson’s opinion that to return the dogs to the appellant could cause psychological distress. I note that Mr. Steel agreed with this opinion. The dogs suffered at the appellant’s hands, and even if he were to treat the dogs better in the future, they could experience psychological distress simply by being returned to him as they would recognize him as their abuser.

42Some credit is due to the appellant for taking the AWS concerns of distress seriously. He hired a trainer and took steps to educate himself. Despite this I am not confident that training will correct his treatment of the dogs. This is based on my understanding from Mr. Steel’s testimony that it is only hypothetical whether the trainer/dog bond could be developed and that a great deal of interaction is necessary to develop this bond. I heard little from the appellant to indicate that he has time for much interaction to develop trust, and that he keeps his dogs crated all day long because of his work.

43I heard the appellant’s testimony that his abuse of the dogs was based on his interpretation of a YouTube video on training dogs. He also noted that the trainer’s 5 Principles could have several meanings. The appellant was able to answer questions on Mr. Steel’s materials by rote but not through interpretation. Based on this, I am concerned that he may misinterpret any training he is given. I am not convinced that Mr. Steel’s weekly training sessions will be sufficient to ensure that the appellant can consistently and fully apply the training messages. If this occurs, he may abuse them again.

44I do not find that the appellant has an appreciation of cause and effect of dog behaviour, nor am I satisfied that he could draw from the training materials to problem solve. An example of this was his failure to appreciate that leaving dogs in the crate for the entire day without exercise could lead them to defecate in the crate, and that eating fecal matter was not an unnatural response. When asked about this, he acknowledged that perhaps he could withdraw food and water to reduce the urge. I find from this response that he lacks judgement and an intuitive comprehension of a dog’s needs.

45During my questioning of the appellant, he repeatedly expressed his frustration regarding the dogs defecating in their cage. I am concerned that the appellant’s abuse of his dogs may not be completely due to inappropriate training as rationalized by the appellant, but rather an emotional response born of frustration. If this is the case, I am not confident that training will address his lack of emotional control. I share Mr. Draper’s concern that monitoring the appellant’s behaviour toward his dogs may be more difficult now if the appellant attempts to hide his actions from his neighbours. I am further concerned that periodic inspections may not identify that the dogs are in distress, given that the physical examination following their removal failed to indicate signs of abuse.

46For the reasons given above, I agree with the respondent that there are reasonable grounds to believe that the dogs may be placed in distress if returned to their owner. I therefore decline to order their return.

ORDER

47Pursuant to the powers of the Board under section 38(9) of the Act, the Board declines to order the return of the two dogs, Xin Xin and Wang Wang, to the appellant.

Released: January 17, 2022

___________________________

Susan Clarke, Member

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, S.O. 2019, Chapter 13