Robert and Bonnie Ryder v. Chief Animal Welfare Inspector, 2022 CanLII 114446

Robert and Bonnie Ryder v. Chief Animal Welfare Inspector

Date: 2022-12-05

Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.

Between:

Robert and Bonnie Ryder Appellants

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Panel: Susan Clarke, Vice-Chair Peter Simmons, Member

For the Appellants: Robert and Bonnie Ryder, Self-represented For the Respondent: Hoursa Yazdi, Counsel; Michael Draper, Regional Supervisor Court Reporter: Kyle Climans

Heard By Videoconference: September 19-20, 2022, with written submissions submitted in advance

OVERVIEW

1Senior Investigator Christopher Chew (Chew) of Animal Welfare Services (AWS) inspected a farm operated by Robert and Bonnie Ryder, the Appellants, located at 9560 Iona Road, in Iona Station, Ontario on March 28, 2022.

2On March 30, 2022, AWS removed four horses from the Appellant’s farm based on the Appellant’s failure to comply with previous compliance orders issued on January 6, 2022 and a Certificate of a Veterinarian Advising the Removal or Euthanasia of Animal(s) issued by veterinarian Dr. Emily Zakrajsek, on March 29, 2022 (Certificate). A Notice of Removal regarding the four horses was issued by Chew on March 30, 2022 (NOR #1).

3On March 29, 2022, Chew issued twelve additional compliance orders to the Appellants, all with compliance dates of April 1, 2022 pertaining to veterinary care requirements, adequate food, water, shelter, hoof care, and property standard concerns which he deemed caused the horses to be in distress.

4On April 1, 2022, AWS removed the remaining seventeen horses from the Appellants’ property for failure to comply with the March 29, 2022 compliance orders. a Notice of Removal (NOR #2) for the seventeen horses was issued by Chew on April 1, 2022.

5On April 5 2022, the Appellants appealed the NORs issued on March 30, 2022 and April 1, 2022 for the twenty-one horses to the Animal Care Review Board (Board). The Appellants, however, did not appeal any of the compliance orders to the Board.

6After the removal, the horses were transported to Whispering Hearts Horse Rescue in Hagersville, Ontario where they received veterinarian care. Two of the horses were later transported to the Ontario Veterinary College (OVC) for additional medical care. One of these horses was subsequently euthanized. Six horses were identified as pregnant, and four colts have been born to date. One colt has died. At the time of the hearing, 20 horses and 3 colts remained in care.

7Under s. 2 of the Provincial Animal Welfare Services Act, 2019 (PAWS Act),¹ the Chief Animal Welfare Inspector (CAWI), the Respondent, delegated the powers and duties of the Respondent under sections 31(6) and (7) of the PAWS Act to Senior Investigator Tracy Lapping (Lapping) of AWS. On behalf of the Respondent, Lapping issued four Notices of Decisions to Keep an Animal in the Respondent’s Care (Decisions to Keep) to the Appellants. The information regarding the four Decisions to Keep and the Appellants’ appeals to the Board are summarized as follows:²

Decision to Keep Reference	Date of Decision to Keep	For the following horses	Date of Appellant’s Appeal received by the Board
#1	May 18, 2022 Served on May 24, 2022	20 horses seized on March 30 and April 1, 2022 (noting that one died after removal)	May 25, 2022
#2	July 13, 2022	Colt born to Stella	July 18, 2022
#3	August 16, 2022 Served on September 1, 2022	Colt born to Betty	September 7, 2022
#4	September 7, 2022 Served on September 13, 2022	Colt born to Hannah	September 13, 2022

8Chew later issued three Statements of Account (SOAs) for the care of the seized horses and their colts to the Appellants, the details of which and the dates of the appeals to the Board are as follows:

Statement of Account Reference	Date on SOA	Total Amount of SOA	For the following horses	Date of Appellants’ Appeal received by the Board
SOA #1	June 17, 2022 Served June 30, 2022	$10,131.72	Candy	July 7, 2022
SOA #2	June 20, 2022 Served June 30, 2022	$64,698.01	20 horses plus one colt	June 30, 2022
SOA #3	August 22, 2022 Served by hand September 1, 2022	$34,847.98	20 horses plus 3 colts	September 1, 2022

9Several Case Conferences were held in this matter and, ultimately, a hybrid hearing was ordered with written submissions, followed by cross-examination and closing arguments by videoconference. The videoconference portion of the hearing took place on September 19 and 20, 2022.

ISSUES IN DISPUTE

10The issues in dispute in this matter are:

1. Should the following animals be returned to the Appellants: i. 20 horses removed by AWS on March 30, 2022 and April 1, 2022 (Decision to Keep #1); ii. Colt born to Stella (Decision to Keep #2); iii. Colt born to Betty (Decision to Keep #3); and iv. Colt born to Hannah (Decision to Keep #4).

2. Should the following Statements of Accounts be confirmed, revoked, or varied: i. June 17, 2022 (SOA #1); ii. June 20, 2022 (SOA #2); and iii. August 22, 2022 (SOA #3).

RESULT

11For the reasons that follow:

1. The Board finds that the remaining 20 horses and 3 colts³ should not be returned to the Appellants.
2. SOA #1 is varied to $9,751.72;
3. SOA #2 is varied to $58,532.61;
4. SOA #3 is confirmed in the amount of $34,847.98; and
5. The Appellants are ordered to pay $103,132.31 to the Minister of Finance.

PRELIMINARY MATTERS

Exclusion of Evidence

12The Appellants filed a Notice of Motion on September 19, 2022, requesting an Order from the Board to exclude the following materials filed by the Respondent:

1. A 1997 decision of the Ontario Court of Justice decision in R v. Ryder;⁴
2. An affidavit of Jeremy Locke, who 18 years earlier was an AWS Inspector administering the Ontario Society for the Protection of Cruelty to Animals Act (OSPCA Act).⁵ Locke’s affidavit pertains to his involvement with the Appellants in 2002 where they were charged under the Criminal Code of Canada⁶ regarding care of horses;
3. A Letter of Disposition (undated) from the Ontario Ministry of Attorney General regarding a 2003 decision of R. v. Robert Ryder of the Ontario Court of Justice;⁷ and
4. Newspaper articles dated July 20, 2011 and July 26, 2013 regarding a legal proceeding in Kentucky, USA.

13The Appellants’ position was that the materials filed by the Respondent related to occurrences more than 20 years ago and are neither accurate nor relevant to the current matter. The Appellants also noted that the OSPCA Act is different from the PAWS Act, and that Bonnie Ryder was never charged under either Act.

14The Respondent’s position is that the documents are relevant as they speak to a pattern of behaviour by the Appellants specific to the horses in their care. They note that the Ontario cases are a matter of public record and, therefore, there is no prohibition to referencing them. The Respondent also noted that the facts in all the previous cases are almost identical to the facts of the present matter. They noted that the OSPCA Act did not have an option to keep animals in care, but that the PAWS Act does.

15The Appellants’ request to exclude the two Ontario decisions is denied. The decisions are relevant to this hearing as one of the Appellants is the same person in this matter, and the legal issues are similar. The Board chose, however, to give only limited weight to these past decisions.

16The Appellants’ request to exclude the newspaper articles is granted because they are regarding decisions from another jurisdiction in another country. There is no information provided regarding the law in that country nor is there sufficient evidence to establish relevance to this matter.

Cross-Examination by the Appellants

17The Appellants failed to provide the Respondent with a list of witnesses whom they wished to cross-examine by the deadline ordered in the July 21, 2022 Case Conference Report and Order.

18The Respondent’s position was that the Appellants had ample time to prepare for the hearing and that the Board’s direction in the July 21, 2022 Case Conference Report and Order was very clear regarding the process to be followed for this hearing. Additionally, the hearing process was later confirmed during the Motion hearing on September 6, 2022.

19The Respondent noted that the process set out in the July 21, 2022 Case Conference Report and Order was that examination-in-chief would proceed by way of written evidence and the videoconference portion of the hearing would be solely for oral cross-examination and re-examination. The Respondent added that the Appellants provided no notice of cross-examination and were not prepared to cross-examine any witnesses, as through their own admission, they had no questions prepared. The Respondent stated that to allow cross-examination at the hearing without notice would prejudice the Respondent, and that they had come prepared only to address preliminary matters and give closing submissions. Nevertheless, the Respondent offered to have Chew available on September 20, 2022 for cross-examination by the Appellants.

20The Appellants are self-represented and did not fully appreciate the hearing process agreed to at the July 14, 2022 Case Conference. Recognizing this, and without objection from the Respondent, the Board asked which witnesses of the Respondent the Appellants would like to cross-examine and for what purpose, if given the opportunity.

21The Appellants asked to cross-examine Jeremy Locke regarding his conduct during the 2002 criminal process, Chew regarding his conduct in 2022 when he attended the Appellants’ property, and Dr. Zakrajsek regarding her March 28, 2022 written report to AWS.

22In the end, the Appellants’ request to cross-examine the Respondent’s witnesses was denied because:

1. The Appellants did not advise the Respondent in writing of their intent to do so by the date ordered in the July 21, 2022 Case Conference Report and Order;
2. The areas that the Appellants wished to cross-examine Mr. Locke and Chew on were beyond the Board’s jurisdiction;
3. The Appellants had no cross-examination questions prepared; and
4. Dr. Zakrajsek had no advance notification of the hearing, and the Respondent expressed concern that she might not be available for cross-examination during the scheduled hearing based on other commitments.

The Appellants Calling Dr. Henderson as a Witness

23Dr. Stan Henderson, veterinarian, was present and had been subpoenaed as a witness by the Appellants. The Appellants had provided his name to the Board as a witness as required by the July 21, 2022 Case Conference Report and Order.

24On September 18, 2022, the Board received Dr. Henderson’s curriculum vitae and qualifications and a report regarding his emails to the Appellants’ previous counsel. These email correspondences, however, were ordered excluded by the Board in the Motion Order dated September 8, 2022.

25The Respondent submitted that the Appellants had not filed a Will Say statement for Dr. Henderson and that the only oral evidence to be heard at the videoconference portion of the hearing was cross-examination, not examination-in-chief. The Appellants also did not file a report from Dr. Henderson regarding his interactions with the Appellants’ horses even though the Board had provided an extension to the September 12, 2022 deadline to do so. Given all of these factors, the Respondent argued that it would be prejudiced if the Appellants were permitted to examine Dr. Henderson in chief as the Respondent had no time to prepare questions for cross-examination.

26The Board ordered that the Appellants were not permitted to call Dr. Henderson as a witness because the Appellants did not file a Will Say statement or a report by Dr. Henderson such that the Respondent would have been made aware of his anticipated evidence in advance of the hearing and be prepared to cross-examine him.

The Appellants Referencing Their Notices of Appeal

27In their closing arguments, the Appellants referenced information submitted with their Notices of Appeal (NOAs). The Respondent objected to these references as the NOAs were not listed or entered as exhibits by the Board.

28The Respondent’s request to disallow the Appellants to refer to information included in their NOAs was denied because:

1. The Respondent confirmed that it had received the NOAs and could have cross-examined the Appellants on this information;
2. The Board routinely marks NOAs as exhibits;
3. The Respondent’s own witness, Chew, referenced the NOAs in his affidavit; and
4. Section 15 of the Statutory Powers Procedures Act⁸ permits the Board to admit evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any oral testimony and any document or other thing that is relevant to the subject-matter of the proceeding. The information contained in the NOAs is relevant to the proceeding.

ANALYSIS

Onus of Proof

29In its closing submissions, the Respondent argued that the Appellants bear the burden of proving on a balance of probabilities that:

1. The horses removed on March 30, 2022 and April 1, 2022 and the colts born to the mares, all of whom were subsequently taken into the Respondent’s care, should be returned to the Appellants; and
2. The three Statements of Account dated June 17, June 20 and August 22, 2022 should be revoked or varied.

30The Respondent pointed out that this is the Appellants’ appeal, they are the moving party, and, therefore, they bear the burden. The Respondent further submitted that its position is supported in the PAWS Act by the use of the word “appeal,” demonstrating that the legislature intended the burden to be on the Appellants.

31In the alternative, the Respondent submitted that even if the initial burden of proof was on the Respondent, it had addressed this entirely.

32The Appellants did not address the issue of onus.

33The Board disagrees with the Respondent and finds that the Respondent bears the initial evidentiary burden to show that its decision to remove and keep the animals in its care meets the test for reasonable grounds captured in s. 31(6), and that the charges on the Statements of Accounts reflect the cost of necessaries provided to alleviate the distress of the animals removed. Once the initial evidentiary burden is met, the Appellants then bear the onus to establish on a balance of probabilities that the horses and colts should be returned to them; and that the three Statements of Account dated June 17, June 20 and August 22, 2022 should be varied or revoked, and on what basis.

The Notices of Removal dated March 30 and April 1, 2022 for 21 horses

34For the reasons that follow, the Board finds that the 21 horses that were removed from the Appellants’ property were done so in accordance with the PAWS Act.

35Under s. 31(1) of the PAWS Act, an animal welfare inspector may remove an animal from the place where it is and take possession of it for the purpose of providing it with necessaries to relieve its distress if:

a) A veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal; b) The inspector has inspected the animal and has reasonable grounds to believe that the animal is in distress and the owner isn’t present and can’t be found promptly; or c) An order respecting the animal has been made under s. 30 to relieve its distress, and the order has not been complied with.

36Distress is defined in s. 1(1) of the PAWS Act, as being:

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.

37The Respondent removed four horses from the Appellants’ farm on March 30, 2022, and seventeen horses on April 1, 2022, pursuant to sections 31(1)(a) and (c) of the PAWS Act.

38The Respondent supported its decision to remove the horses, giving an extensive list of evidence, including the following:

1. Chew’s affidavit, sworn August 3, 2022, described his inspections of the Appellants’ property and showed worsening living conditions for the horses and the Appellants’ failure to comply with compliance orders issued on January 6, 2022 and on March 29, 2022;
2. Photograph and video evidence of the Appellants’ property taken during inspections between November 21, 2021 and April 1, 2022 that showed dangerous and unsafe fencing to paddocks and stall boards, inadequate lighting in stalls, excessive and deep mud in paddocks, frozen drinking water in buckets;
3. Dr. Zakrajsek’s affidavit, sworn July 27, 2022, which detailed visits to the Appellants’ property on December 22, 2021, March 28, 2022, and April 1, 2022 during which she noted progressively worsening living conditions for the horses. These conditions included excessive mud, unclean stalls, poor lighting in the stalls, a lack of adequate food, potable water and shelter, the need for medical treatment for the horses, and inadequate hoof care; and
4. Dr. Zakrajsek’s March 28, 2022 report which detailed her observations from visits to the Appellants’ property, including the living quarters and conditions of the 21 horses and their body condition scores between 1 and 4 (out of 9), and her opinion that the horses were in distress.

39The Appellants’ position, that was supported by the contents of the NOAs and their testimony, was that:

1. The removal of horses on March 30, 2022 and April 1, 2022 was unnecessary and unjustified. In particular, they noted that seven horses with “adequate” body condition scores (4 or 5 out of 9) were removed. They stated that these seven horses were never in distress and were perfectly healthy;
2. Dr. Zakrajsek, the Respondent’s attending veterinarian, was inexperienced, and incorrect in assessing distress in the horses;
3. The horses were supplied with adequate water from four ponds, a stream, and two wells on the Appellants’ property;
4. Shelter can be either indoor or outdoor, provided there are blocks to wind and snow. The Appellants’ property has wind breaks provided by the back of the garage, the small shop, and a lean to, as well as natural wind breaks provided by the valley, a tree line, and bushes;
5. The horses had adequate and good quality hay provided from mid-September to end of April, and free-range grass over the summer;
6. The horse’s stalls are properly maintained (using top bedding technique), and the horses were adequately fed and watered;
7. The horse’s hooves were also properly maintained, as they are either trimmed naturally by moving about on the property or trimmed by the Appellants in the spring. The horses’ coats were maintained, allowing them to grow and act as a natural insulator in the winter, and the Appellants brushed them in the spring. Worming would have been conducted in the spring, which was interrupted by AWS when the horses were removed;
8. The weather was particularly bad in 2021, yielding rain which contributed to the mud. The subsurface clay that exists on the Appellants’ property prevented absorption of the excessive rainfall. The weather also interfered with tending to the horses. There had never previously been a complaint regarding mud on their property; and
9. The compliance orders issued on March 30, 2022 allowed only two days to construct four run-ins⁹ making it impossible to comply.

40The Appellants also reflected on Mr. Ryder’s convictions, explaining that the 1996 case was a result of the veterinarian’s refusal to treat their sick horses because they had an outstanding account, and that the horses were removed by the Humane Society because they were sick, noting that the horses were ultimately returned to them. The Appellants also testified that Mrs. Ryder had never been convicted.

41The Appellants also provided various documents to support their appeal, including:

1. A report from Bullseye Massage Therapy regarding care for “Squirty” in 2020;
2. A Will Say of Randy Small (hay provider) regarding amount of hay purchased and its quality and a photograph of the hay bales;
3. Photographs of windows in the barn where some of the horses were kept, to show that it was well lit;
4. Photographs of a newly constructed “run-in” and a new stall;
5. Laboratory results of horse feed samples from A & L Canada Laboratories (April 22, 2022); and
6. Various articles and documents regarding feed and hay.

42The Board finds that the twenty-one horses were removed in accordance with s. 31(1)(a) of the PAWS Act because Dr. Zakrajsek provided written certificates advising that removal of the horses was necessary for the purpose of relieving their distress. The Board also finds that the removal was in accordance with s. 31(1)(c) as the Appellants had not complied with all of the compliance orders issued on January 6, 2022 and on March 29, 2022. The non-compliance included makeshift versus permanent and substantial improvements to paddock fencing, that certain horses ordered to be seen by a veterinarian had not, and drinking water for horses was still visibly frozen and appeared unchanged.

Should any of the animals taken into the Respondent’s Care be returned to the Appellants?

43For the reasons that follow, and pursuant to the powers of the Board, the Board finds that the remaining 20 horses and 3 colts¹⁰ should not be returned to the Appellants.

44Under s. 31(6) of the PAWS Act, the CAWI may decide to keep an animal in its care that was removed under s. 31(1) if it determines doing so is necessary to relieve the animal’s distress, or it has reasonable grounds to believe that the animal may be placed in distress if returned to its owner.

45Subsequent to the removal, Lapping issued the following Notices of Decision to Keep because she believed that the animals may be placed in distress if returned to the Appellants:

1. May 18, 2022 for 20 horses;
2. July 13, 2022 for a colt born to Stella;
3. August 16, 2022 for a colt born to Betty; and
4. September 7, 2022 for a colt born to Hannah.

46Lapping testified that her Decisions to Keep were issued because the Appellants had not complied with prior compliance orders and because the Appellants are resistant to changes which would relieve the distress identified by the AWS Inspectors. Lapping also provided evidence that the Appellants failed to meet both the Code of Practice for the Care and Handling of Equines¹¹ (Equine Code of Practice) and the care provisions referenced in Ontario Regulation 444/19, “Standards of Care and Administrative Requirements” (Standards of Care).

47In her affidavit, Lapping also stated that despite Chew’s efforts to educate the Appellants, they provided water that was not potable, provided sparce or soiled bedding and unsanitary living conditions, allowed the horses’ coats to be soiled, provided no respite from deep, wet and muddy conditions, provided little opportunity for some horses to exercise, and repeatedly limited the horse’s food resources, resulting in deteriorating body condition of the horses to the point that they were thin or extremely emaciated. Lapping also gave evidence about the Appellants’ lack of judgement including denying the horses’ minimal care needs, and their willingness to contravene the PAWS Act and the Standards of Care regulation. Lapping concluded that as these conditions were observed to continue over several weeks, she was concerned that the horses were experiencing chronic distress. Lapping based her Decisions to Keep on extensive evidence filed in exhibits attached to her affidavit including, but not limited to:

1. Photographs of living conditions of the horses, from January 20, February 2, March 16, March 28, March 30, and April 1, 2022 inspections, showing: a) Dark and poorly maintained stalls, with inadequate space for the horses; b) Depth of mud in the paddock providing poor footing for the horses, and a lack of dry resting places outdoors; c) Poor body condition of the horses, and poorly maintained horse coats (showing manure tagging); d) Poor condition of water and hay, or limited access to hay; and e) Unsanitary living conditions.
2. Assessment of photographs identifying several standard of care concerns which would result in horses experiencing distress based on the definition of distress in the PAWS Act and several contraventions of sections 3(1), (5), (6), and (7) of the Standards of Care regulation;
3. Assessment of photographs noting several contraventions of the requirements and recommendations of the Equine Code of Practice;
4. Dr. Zakrajsek’s March 28, 2022 report in which she describes the deterioration of the horse’s health and continued issues with living conditions since her visit on December 22, 2022. The report also details the necessary steps required to return the horses to health, and the long term physical and mental debilitations as a result of the conditions the horses lived in at the Appellants’ property. In her report, Dr. Zakrajsek expressed her expert opinion that the horses were in distress and should be removed from the property. She also provided her opinion that the horses should not be returned to the Appellants’ care;
5. Dr. Zakrajsek’s medical notes based on her April 30, 2022 evaluation of the horses and their improvement over the month in care;
6. Chew’s affidavit concerning the Appellants’ property and the condition of horses including information regarding: a) An inspection of the Appellant’s property on March 28, 2022 during which he noted: unsanitary living conditions for the horses; limited access to water; decreased body condition scores; need for medical care; inadequate light in stalls; confinement of the horses; high mud on horses’ legs; and unkempt coats; and b) An inspection of the Appellant’s property following the removal of the horses indicating no evidence of improvement to the property conditions;
7. Duty book notes of AWS Inspectors Sparks, Austin, and Emberson describing their observations of the living conditions and horses body condition on March 30, 2022 and April 1, 2022;
8. March 31, 2022 and May 5, 2022 reports by Dr. McQueen, D.M.V. of Dunnville Veterinary Clinic, the veterinary on record for the rescue citing his concern for the horses’ chronic exposure to pain and distress, and opining that routine medical care has been neglected for these horses;
9. A farrier report by Katie Gaudet, of Russ and Katie’s Farrier Service, outlining her observations of the horses for whom she had provided services following their removal on April 1, 2022, including that the condition of the hooves being reflective of poor care and negligence of the horses, and that the majority of the horses will require ongoing corrective work;
10. The sworn affidavit of Brenda Thompson, president of Whispering Hearts Horse Rescue, dated August 3, 2022 and accompanying photographs of horses over a period of time following their removal, showing weight gain;
11. An April 12, 2022 Report by Dr. Diego Gomez, OVC veterinarian, regarding the treatment and ultimate euthanasia for the horse, Candy. Candy was euthanized due to a diagnosed septic infection, a perforated colon, and peritonitis; and
12. Mr. Ryder’s criminal convictions for offences of animal cruelty in 1997 and 2003 for horses in the Appellants’ care.

48Lapping also testified to her decision to keep the newly born colts in the Respondent’s care, stating that the mare and colt presented no medical or health related reasons to be weaned early and based upon concerns for the Appellants’ contraventions of the PAWS Act, the Standards of Care regulation, and the Equine Code of Practice, it was her opinion that the colts should remain in the Respondent’s care.

49The Appellants’ position, as set out in their four NOAs, was that:

1. They have had horses on their property for over 20 years;
2. That mud is a persistent problem on the property, and that the winter of 2021 was especially wet;
3. They had plans to construct or purchase appropriate shelters in all their pens and to transition from round hay bales to regular bales in June as part of their plan to comply with the compliance orders;
4. They were afforded only 2 days to comply with a March 30, 2022 compliance order to improve the shelter conditions for the horses. At that time, the ground was still frozen which prevented compliance and, as such, the Appellants’ position was that the compliance deadline was unreasonable;
5. Some of the horses had adequate body scores and were not in distress; and
6. The colts were not in distress and should not have been kept in the care of the Respondent.

50In weighing all the evidence and hearing the parties’ submissions, the Board finds that the Respondent’s arguments are compelling. The Respondent’s evidence highlights the Appellants’ ongoing neglect of the horses over an extended period of time which resulted in the distress to the horses. The level of care required to bring the horses back to health including intensive care also indicates that the horses were not receiving the basic standards of care for a very long time. The Board also places weight on Dr. Zakrajsek’s opinion that the horses will be placed into distress if returned to the Appellants.

51It is clear that the Appellants failed to comply with the PAWS Act, the Standards of Care regulation, and the Equine Code of Practice. This non-compliance led to ongoing distress for the horses as defined in the PAWS Act. Evidence documented over many months prior to the removal showed deteriorating conditions. Evidence after the removal of the horses showed marked improvement in the health of the horses while in the Respondent’s care. Therefore, the Board finds that Lapping had reasonable grounds to support her decision to keep the horses in the Respondent’s care based on her concern that they may be placed in distress if returned to the Appellants.

52The Board recognizes that the Appellants made some structural improvements to their property, but they were in no way sufficient to demonstrate a clear willingness or commitment to comply with the PAWS Act or the numerous compliance orders. Additionally, these improvements do not address the ongoing physical signs of distress of the horses – namely, the low body weight of the horses, the neglect of the horses’ hooves, and other medical issues. The Board has concerns that the Appellants took issue with much of the Respondent’s evidence, specifically the Appellants’ belief that the horses were at reasonable weights for their size and were not in distress. There is also compelling historical evidence that the Appellants cannot care for their horses, and that the horses would therefore be placed in distress if they were returned to them. For all these reasons, none of the horses removed or the colts born since the removal shall be returned to the Appellants.

Should the Statements of Account be confirmed, revoked, or varied?

53Section 35(1) of the PAWS Act states that where the Respondent has provided an animal with necessaries to relieve its distress, or the CAWI has taken an animal into its care, the CAWI may from time to time serve a statement of account on the owner or custodian respecting the cost of necessaries. Under s. 35(3), the owner or custodian is liable for the amount specified in the statement, or otherwise specified in an order issued by the Board under s. 38(9).

SOA #1, dated June 17, 2022

54SOA #1 was issued on June 17, 2022 to address necessaries provided to the horse Candy, as follows:

Item	Amount
Transportation Costs	$ 380.00
Boarding Costs	$ 60.00
Veterinary Costs	$ 9,691.72
Total Costs	$10,131.72

55For the reasons that follow, the Board varies SOA #1 to $9,751.72.

56Candy was removed from the Appellants’ farm on April 1, 2022 and boarded for two days after which she was transported to OVC on April 2, 2022. This is a distance of 190 kilometers for which the Respondent charged $2 per kilometer for a total of $380.00. She was treated by OVC until she was euthanized on April 12, 2022.

57The Appellants noted that both their own veterinarian, Dr. Henderson, and Chew were aware that they wanted to have Candy euthanized if her health ever declined. Dr. Henderson was already scheduled to attend their farm to check on the horses and, if he had recommended euthanizing Candy, the Appellants would have agreed and scheduled it. The Appellants suggested that Dr. Henderson’s fees for euthanizing Candy would be no more than $400, and another $500 to have her body removed. They offered $1,000 to settle this portion of SOA #1. The Appellants, however, provided no documentation to support their proposed costs associated with euthanizing Candy.

58While the Appellants provided evidence that they were willing to have Candy euthanized, making it clear that they were aware she was not well, the OVC treated her for approximately ten days before determining that euthanizing her was the most humane course of action pursuant to s. 32(1)(b) of the PAWS Act. The vast difference between what the Appellants were willing to pay to have Candy euthanized, and what the care for Candy eventually cost is explained by the ten days of treatment by OVC before determining that euthanasia was necessary. Therefore, the Board is satisfied that the costs summarized in SOA #1 are sufficiently substantiated for the necessary care, boarding, and veterinary treatment for Candy.

59However, the Board is not satisfied that the transportation cost is a necessary to relieve Candy of distress, as described in s. 35 of the PAWS Act. We agree with and adopt the reasoning provided for in the Board’s decision in Windrift Adventures Inc. et al. v Chief Animal Welfare Inspector¹² on this issue.

60For all of these reasons, the Board varies SOA #1 as follows, removing only the cost of transporting Candy to OVC:

Item	Amount
Transportation Costs	$ 0.00
Boarding Costs	$ 60.00
Veterinary Costs	$ 9,691.72
Total Costs	$ 9,751.72

SOA #2, dated June 20, 2022

61SOA #2 was issued on June 20, 2022 to address necessaries provided to the twenty-one horses seized and one foal born in May 2022, as follows:

Item	Amount
Transportation Costs	$ 6,165.40
Boarding Costs	$ 40,246.60
Veterinary Costs	$ 15,706.81
Animal Care Costs (Farrier costs, delouse, deworm)	$ 2,579.20
Total Costs	$ 64,698.0113

62For the reasons that follow, the Board varies SOA #2 to $58,532.61.

63The Respondent submitted an itemized account with invoice numbers that summarized the invoices for services provided by the following providers and included the supporting invoices in evidence:

1. Whispering Hearts Horse Rescue (boarding facility) ($1,350, $4,055.40, $7,743.40, $9,374.00, $16,800.00, and $9,871.80).
2. Talbot Road Veterinary Services ($7,682.37, $4,220.55);
3. Dunnville Veterinary Clinic ($553.32, $559.89, $239.05, $256.49, $239.05);
4. Ontario Veterinary Clinic, at University of Guelph ($1,492.80);
5. Ontario Equine Hospital ($870.10)

64In this matter, Dr. Zakrajsek was a consultant veterinarian to AWS when she accompanied Chew on his inspections on December 22, 2021, March 28, and April 1, 2022, and when she signed certificates authorizing removal of the 21 horses. She submitted invoices for her clinical services including examinations and laboratory work for each of the horses following their removal. Later invoices submitted include lab work sent out in May, and medical examinations in June.

65The invoices from Dunnville Veterinary Clinic (Dr. McQueen) included an intake assessment of the original four horses removed by AWS and various visits to treat the horses while in the Respondent’s care.

66The invoice from OVC does not provide a date or name of the horse treated. However, the Board is aware from the information provided by Whispering Hearts Horse Rescue that they transported the horse known as Parker on April 4, 2022 to OVC for treatment and brought him back on April 8, 2022.

67The initial invoices from Whispering Hearts Horse Rescue were for transporting the horses from St. Thomas to Hagersville where the facility is located. The March 30, 2022 transport of three horses required two trailers at $600 each plus staff assistance at $150 for a total of $1,350. A second invoice dated April 1, 2022 summarizes transportation of seventeen horses in six trailers for a total of $4,055.40. The Board notes that the transportation rates were charged at $2 per kilometer and charges for each truck varied based on the home address of the truck.

68The remaining invoices from Whispering Hearts Horse Rescue are for boarding the horses. The rates charged were $30 per horse for “daily critical care” and $35 for the mare and foal pairs. The invoices also included charges for transporting Parker to OVC for treatment and back as described above, for a total cost of $760 for two trips, and charges for ongoing farrier care.

69The invoice from the Ontario Equine Hospital is for services provided on April 13, 2022 and includes hospitalization, examination, and x-rays, but the horse, or horses, that received these services is/are not named.

70The Appellants stated that SOA #2 was grossly overpriced, arguing that the going rate for transportation of horses is $1.50 per kilometer. In their opinion, eight trailers for the removal of all the horses should therefore have been $2,400.00, a difference of $3,765.40.

71The Appellants further noted that boarding costs typically range from $350 to $700 per month per horse depending on location, but usually $400 to $450 per month. They propose that at $450 for one horse, a three-month total would be $1,350 and, therefore, that 20 horses should be $27,000 total, a difference of $13,246.60 from the SOA #2. The Appellants suggested that colts should not be charged boarding as they are kept with the mother and fed by her. The Appellants substantiated their position based on an online article titled: “How much does it Cost to Board Your Horse?”¹⁴

72The only evidence before the Board to support the Appellants’ position regarding boarding costs is one online article found with no description of whether the prices listed were in Canadian or American funds and lacking any description of the types of services provided. The cost quoted from the article was approximately $450 per horse per month, as opposed to that which AWS was charged of $900 per horse per month. Nevertheless, we place little weight on this evidence offered by the Appellants regarding reasonable boarding rates.

73The Board is satisfied that the costs summarized in SOA #2 support the necessary care, boarding, and veterinary attendance for the horses. The Board is not satisfied that the transportation costs are necessaries to relieve the horses of distress, as described in s. 35 of the PAWS Act. We agree with and adopt the reasoning provided for in the Board’s decision in Windrift Adventures Inc. et al. v Chief Animal Welfare Inspector¹⁵ on this issue.

74For all of these reasons, the Board varies SOA #2 as follows, removing only the cost of transporting the horses during their removal from the Appellants’ farm:

Item	Amount
Transportation Costs	$ 0.00
Boarding Costs	$ 40,246.60
Veterinary Costs	$ 15,706.81
Animal Care Costs (Farrier costs, delouse, deworm)	$ 2,579.20
Miscellaneous Costs
Total Costs	$ 58,532.61

SOA #3, dated August 22, 2022

75SOA #3 dated August 22, 2022, but not issued until September 1, 2022, addressed necessaries provided to twenty horses and three foals born while in the Respondent’s care and included amounts for boarding, veterinarian, and farrier costs for the horses, the total of which are as follows:

Item	Amount
Transportation Costs	$ 0.00
Boarding Costs	$ 34,020.00
Veterinary Costs	$ 92.27
Animal Care Costs (Farrier costs, delouse, deworm)	$ 395.50
Miscellaneous Costs (Unbilled from previous statement total)	$ 340.21
Total Costs	$ 34,847.98

76For the reasons that follow, the Board confirms SOA #3 in the amount of $34,847.98.

77The Respondent submitted that the costs set out on SOA #3 are reasonable and supported by invoices submitted as evidence from various service providers. They noted that the conditions of the horses required various degrees of care.

78The Appellants argued that by August 2022, there should be no horses still requiring critical care, and that the cost for stallions, fillies, and mares should average around $10 per horse per day, especially if they are put out to pasture. They added that any and all staff expenses, including stall cleaning and feeding, are always included in boarding fees. The Appellants requested that the boarding fees for the twenty stallions, fillies, and mares, calculated at $10 per day for 92 days, be charged to be no more than $18,400 total.

79The Appellants submitted that pregnant and lactating horses typically board around $15 per day per horse, and less if they are put out to pasture. The Appellants requested that the boarding fees for the seven lactating and pregnant mares, calculated at $15 per day for 92 days, be charged no more than $9,660 total.

80Based on its calculations the Appellants requested that the total boarding fees be reduced to $28,060.00.

81The Board finds SOA #3, and the supporting invoices, to be sufficiently detailed and reflective of the costs for horses requiring the level of care that is consistent with the veterinarian assessments and recommendations. The SOA #3 is confirmed in the total amount of $34,847.98.

ORDER

82Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:

1. Finds that the remaining 20 horses and 3 colts should not be returned to the Appellants.
2. Varies SOA #1 to $9,751.72;
3. Varies SOA #2 to $58,532.61;
4. Confirms SOA #3 in the amount of $34,847.98; and
5. Orders that the Appellants pay $103,132.31 to the Minister of Finance.

Footnotes

1. 1S.O. 2019, c. 13.
2. 2A 5th Decision to Keep concerning a colt “Georgie” born to “Tootsie” on May 17, 2022 was submitted with the Respondant’s Hearing Materials. This colt died after May 26, 2022. The Board has no record of this Decision to Keep being served, and there is no record of this Decision to Keep being appealed. It is not included or part of this decision.
3. 3One adult horse from the original 21 removed was euthanized, and one colt born after the removal of the orginal 21 has died; twenty adult horses and three colts are the subject of the combined appeals.
4. 4[1997] OJ No. 6361 (Ont. Ct. J. Prov. Div.).
5. 5R.S.O. 1990, c. O.36 (Repealed on January 1, 2020).
6. 6R.S.C. 1985, s. C-46.
7. 7Case citation unknown.
8. 8R.S.O. 1990, c. S.22.
9. 9A run-in is a free standing structure commonly used for equines and typically has a roof, 3 closed sides, and I open to the elements.
10. 10One adult horse from the original 21 removed was euthanized, and one colt born after the removal of the horses has died; twenty adult horses and three colts are the subject of the combined appeals.
11. 11Code of Practice for the Care and Handling of Equines, 2013, published by the National Farm Animal Care Council of Canada.
12. 12Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector, 2022 ONACRB 24, paragraph 38. We accept the rationale and decision, that transportation costs are not usually in themselves necessaries, but are for the purposes of providing necessaries.
13. 13Total between SOA and supporting invoices is consistent. Descrepancy in subtotals attributed to category allocation.
14. 14Online: https://equinehelper.com.
15. 15Supra note 8.