John Geddes v. Chief Animal Welfare Inspector, 2022 ONACRB 23

Date: 2022-08-09

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

Between:

John Geddes

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Mindy Caterina, Member

Appearances:

For the Appellant: Eric Gillespie, Counsel Natasha Pupulkas, Counsel Yasmeen Peer, Counsel

For the Respondent: Danielle Meuleman, Counsel, Susan Kim, Counsel

Court Reporters: Barbara Pollard Courtney Kelly

Heard by videoconference: June 8-10, 20-21, 28, 2022

REASONS FOR DECISION

A. OVERVIEW

1John Geddes (“the appellant”) and his family operate the Bervie Zoological Park (the “Zoo”) located on farmlands in Kincardine, Ontario. In addition to domestic animals, the Zoo houses a variety of exotic animals.

2Animal Welfare Services (“AWS”) inspected the Zoo on August 26, 2021, October 1, 2021, December 20, 2021, March 15, 2022, April 20, 2022, and April 29, 2022. The latter two AWS inspections were conducted pursuant to inspection warrants issued by the Ontario Court of Justice in accordance with sections 24(4) and 24(5) of the Act. The inspection warrants related to an area of the Zoo which the appellant had previously denied AWS entry to.

3On April 29, 2022, Animal Welfare Services (“AWS”) served the appellant with a Notice of Removal which listed the following animals (“the Listed Animals”) to be removed from The Zoo pursuant to s. 31(1)(a) of the Act:

i. 2 zebras

ii. 1 olive baboon

iii. 1 juvenile eland

iv. 1 juvenile nilgai

v. 4 macaws

vi. 3 peccary pigs

vii. 7 crested porcupines

viii. 12 domestic small-breed dogs

ix. 4 new guinea singing dogs

x. 4 ring-tailed lemurs

xi. 1 German shepherd type dog

xii. 3 adult elands

xiii. 2 adult nilgai

4All but one female adult nilgai and the three adult elands were removed by AWS on April 29, 2022.

5The Appellant appealed the decision to remove the animals to the Board.

B. ISSUES IN DISPUTE

6The parties agreed that the only issue to be decided at this hearing was:

i) Was The Notice of Removal issued in accordance with s. 31(1)(a) of the Act?

7In effect, the appellant ultimately argued that the respondent lacked sufficient admissible evidence to establish that it complied with the Act and that the process of issuing the Notice of Removal had been procedurally unfair.

8The parties differed on the issue of what remedy should be granted if I found the Notice of Removal was not issued in accordance with the Act.

9After this hearing began, the respondent issued Decisions to Keep in Care and Statements of Account related to this matter. The appellant has filed additional appeals regarding these items. The parties agreed to adjourn the hearing of the additional appeals pending the outcome of this matter.

C. RESULT

10I find that The Notice of Removal was issued in accordance with s. 31(1)(a) of the Act. A veterinarian advised the inspector in writing that alleviating the animal’s distress necessitated their removal. The inspector removed the animals from the Zoo for the purpose of providing them with necessaries to alleviate their distress, which was caused by inadequate ventilation, inadequate sanitary conditions, and inadequate resting and sleeping areas, all of which meet the definition of distress under s. 1(1) of the Act.

11As I found the Notice of Removal was issued in accordance with the Act, I did not consider the issue of remedy.

D. MOTION

12Several motions were filed in relation to this hearing; however, most were abandoned by the party which filed them. This decision addresses only the motions and issues that were still before me.

(a) Motion to preclude challenge to inspection warrants

13At the outset of the hearing, counsel for the appellant raised concerns regarding the warrants used to conduct inspections which led to the removal of animals, and subsequently confirmed he sought to challenge the inspection warrants. The respondent then filed a motion to preclude the appellant from challenging the inspection warrants issued by the Ontario Court of Justice which authorized the Zoo inspections conducted by AWS on April 20 and April 29, 2022 (the “Warrants”).

14After receiving both written and verbal submissions from the parties, I found that this Board does not have the jurisdiction to consider the validity of the Warrants. The appellant argued that he was not challenging the validity of the Warrants but was instead arguing that AWS inspectors acted illegally because they did not comply with the Act when applying for the Warrants. I do not accept there is a distinction – to find that AWS inspectors acted unlawfully in their application for the Warrants, I would necessarily be considering the validity of the Warrants. The inspection warrants were issued by the Ontario Court of Justice which, along with the Superior Court of Justice, has exclusive jurisdiction over the issuance of warrants pursuant to s. 24 of the Act. A challenge to the validity of a warrant, in a case where no application has been brought pursuant to the Charter of Rights and Freedoms¹ (the “Charter”), must be made in the forum in which the warrant was issued².

15I also found that the issue of whether AWS inspectors properly applied for the Warrants was beyond the scope of the issues the parties agreed were to be determined in this hearing. The respondent is prejudiced by the issue being raised for the first time at the outset of the hearing, after disclosure and witness statements have been prepared, and time estimates determined. This case is unlike Pryde, Spottiswood and Pierce v Chief Animal Welfare Inspector³ which the appellant relied on. In Pryde, the appellants served a notice of constitutional question in accordance with applicable rules and a hearing order noted that the parties agreed to raise Charter issues during the hearing. In this case, there was no such agreement and the Notice of Appeal, and its accompanying Schedule A, did not indicate that the appellant wanted to challenge the legality of AWS inspectors entering any place.

16Accordingly, I granted the Respondent’s motion and held that the appellant was precluded from challenging the Warrants before the Board.

E. EXPERT EVIDENCE ISSUE

(a) Overview and background

17The appellant challenged the admission of the evidence of Dr. Graham Crawshaw, the veterinarian, who attended the Zoo to assess the health and living conditions of animals on October 1, 2021, April 20, 2022, and April 29, 2022. On April 29, 2022, Dr. Crawshaw issued a Certificate of Veterinarian pursuant to s. 31(1)(a) of the Act, advising that alleviating the distress of the Listed Animals necessitated their removal from the Zoo.

18The appellant advised this Board that he was challenging the admission of Dr. Crawshaw’s evidence after Dr. Crawshaw’s evidence in chief had already been admitted, on consent, by way of written materials and testimony, wherein Dr. Crawshaw confirmed he understood his duty to provide fair, objective, and non-partisan evidence. Prior to cross-examination, the parties confirmed that they agreed Dr. Crawshaw was qualified to give evidence as an expert in veterinarian medicine with a specialty in zoo medicine.

(b) The objection

19The appellant’s cross-examination of Dr. Crawshaw began with questions about two singing dogs (the “Two Dogs”) removed from the Zoo pursuant to the Notice of Removal. The Two Dogs died in the care of the Toronto Zoo following anesthetized physical exams which took place weeks after their removal from the Zoo. Dr. Crawshaw testified that he was not very familiar with the matter though he had heard about it.

20During cross-examination, the appellant advised he had two areas of concern. First, the death of the Two Dogs could lead to criminal and Provincial Offences Act charges against Dr. Crawshaw. Second, Dr. Crawshaw contravened the Code of Ethics of the College of Veterinarians of Ontario (“the Code of Ethics”) because he had not collaborated with other veterinarians to ensure continuity of care for the Two Dogs when he participated in their removal from the Zoo. Counsel for the appellant advised that the morning prior to Dr. Crawshaw being called as a witness, his firm had retained two sets of independent legal counsel and met extensively with them to discuss these issues. He submitted that due to these two areas of concern, Dr. Crawshaw would be in a conflict of interest if he continued to testify as Dr. Crawshaw would risk incriminating himself.

21The appellant’s initial position was that he was not challenging the expertise of Dr. Crawshaw, but that he was only challenging the credibility of Dr. Crawshaw. After taking this position, the appellant filed a complaint about Dr. Crawshaw to the College of Veterinarians of Ontario. The appellant then took the position that Dr. Crawshaw could not be qualified as an expert because Dr. Crawshaw was in an untenable position as his testimony in this proceeding could incur professional liability. Citing the Supreme Court of Canada decision White Burgess Langille Inman v Abbott and Haliburton Co.⁴, the appellant submitted that he had a realistic concern regarding Dr. Crawshaw’s ability to comply with his duty to the court, such that it was the correct time to challenge the admissibility of Dr. Crawshaw’s evidence.

22The appellant relied on case law which confirmed that a trier of fact has an ongoing and residual discretion to exclude otherwise admissible expert evidence because its probative value is overborne by prejudicial effect. This was a point made in White Burgess, and in the leading case on expert evidence, R v Mohan⁵.

23The respondent submitted that the burden for proffering an objective, non-partisan, and fair expert had been met in accordance with White Burgess when Dr. Crawshaw’s evidence was admitted in chief. According to the respondent, any conflict of interest was created mid-way through Dr. Crawshaw’s testimony. She noted that Dr. Crawshaw was protected from having his testimony used against him by section 13 of the Charter, s. 14(1) of the Statutory Power and Procedures Act⁶, and s. 9 of the Ontario Evidence Act⁷. The respondent proposed that given the appellant’s current position, a voire dire should be held to inquire again into Dr. Crawshaw’s ability to comply with his expert duties.

(c) Ruling on the objection

24Considering all the unique factual circumstances of this case and the applicable law and principles, I advised the parties at the hearing that I would pose preliminary questions to Dr. Crawshaw to satisfy myself whether he was able to continue testifying. In making the decision to proceed in this manner, I gave special consideration to the following:

(i) The procedure of admitting Dr. Crawshaw’s evidence in chief primarily by way of written materials was based on the express consent between experienced counsel for the parties.

(ii) Counsel for the appellant advised this Board that he was alive to the issue of the Two Dogs and had sought advice regarding the issue prior to Dr. Crawshaw being called as a witness. After obtaining that advice, he agreed that Dr. Crawshaw was qualified to give expert evidence.

(iii) Counsel for the appellant initially took the position he was not challenging Dr. Crawshaw’s expertise but was only challenging his credibility, though his position then changed.

(iv) As the respondent submitted, Dr. Crawshaw was protected, by statute and by the Charter, from having his testimony at this hearing be used against him in subsequent proceedings.

(v) Dr. Crawshaw was being called to give evidence both as a factual witness and as an expert – he was being called to testify about what he observed at The Zoo, as well as to explain why he formed the opinion that alleviating the distress of animals necessitated their removal. His expertise was required to explain his factual evidence of what he did and why, as opposed to an expert who is called to testify about a present opinion regarding a piece of evidence.

25I was entitled to rely on the agreements and representations of counsel at the hearing and I had an obligation to ensure the proceeding was fair and efficient. Fairness encompasses efficiency in the sense that the appellant had had his animals removed and obtaining an outcome in the proceeding was extremely important to him. I advised the parties that if, after posing preliminary questions to Dr. Crawshaw, I found that he was able to continue, I would fulfill my gatekeeper role and continue to assess whether the weight given to his evidence should be reduced for any reason and/or whether his evidence should be excluded if it became more prejudicial than probative. I had a duty to balance all fairness concerns in the proceeding and after considering all the circumstances, I determined that this was the most appropriate way to proceed.

(d) Dr. Crawshaw was able to continue testifying

26When Dr. Crawshaw was recalled to testify, I asked him a series of questions to determine if he was able to continue to give fair, objective, and non-partisan testimony. Dr. Crawshaw testified that he would give evidence based on his previous observations and not on what had happened subsequently. He also testified that the Two Dogs were never in his care, that he had no current connection with the Toronto Zoo, and that though he had a past relationship with the Toronto Zoo, it would not affect his ability to be truthful and fair. Based on his answers, I was satisfied that Dr. Crawshaw was able to continue with his testimony.

F. EVIDENCE AND ANALYSIS

(a) Evidence of the Respondent

i) Senior Investigator Carly Atrooshi

27Senior Investigator Carly Atrooshi’s evidence in chief was admitted by way of written materials which she adopted. She first attended the Zoo on August 26, 2021, when she became concerned about the space and environment provided to various animals. On October 1, 2021, Senior Investigator Atrooshi attended The Zoo again with Dr. Crawshaw, who identified various issues. On October 6, 2021, a compliance order was issued to the appellant, who met its terms.

28On December 20, 2021, Senior Investigator Atrooshi conducted a compliance inspection of the Zoo and determined the appellant had addressed all necessary issues. Senior Investigator Atrooshi requested the appellant permit her to inspect the secondary winter barn (“the Small Barn”). The appellant declined.

29On April 20, 2022, Senior Investigator Atrooshi attended the Zoo with other inspectors and Dr. Crawshaw to conduct an inspection of its premises, including the Small Barn to which she was previously denied access. On this date, Senior Investigator Atrooshi had obtained an inspection warrant pursuant to s. 24(4) and 24(5) of the Act to obtain access to the Small Barn. On entering the Small Barn, Senior Investigator Atrooshi smelled a strong odour of urine and feces and saw that the aisle was covered in urine and feces. There were no fans for ventilation and no clean potable water for many of the animals. There was minimal natural light, and the artificial light was limited to three low-wattage lightbulbs, such that animals on the north side of the Small Barn (including ring-tailed lemurs, a baboon, and macaws) were in darkness. Zebras, kangaroos, a juvenile eland and nilgai, and adult elands were housed in small enclosures that provided inadequate space.

30Dr. Crawshaw advised Senior Investigator Atrooshi that in his opinion, animals in the Small Barn were in distress for reasons including poor ventilation, poor sanitary conditions, and the deteriorated nature of the facility.

31On April 29, 2022, Senior Investigator Atrooshi attended the Zoo with other inspectors and Dr. Crawshaw to determine if the animals in the Small Barn were living in the same conditions as her previous visit. She had an inspection warrant issued pursuant to s. 24(4) of the Act for this inspection. On entering the Small Barn, Senior Investigator Atrooshi’s observations included:

• it was difficult to breathe despite wearing a mask, because of the strong odour of ammonia and feces which burned her eyes;

• a thick white mold covered the ceiling near the porcupine enclosure;

• the bird cages housing the macaws were covered in dirt, dust, and feces, and one macaw used a metal bowl as a perch because it had no other perches in its cage;

• various dogs appeared dirty with matted fur and feces caked to their hind ends; and

• loose electrical cords hung overhead and parts of the ceiling near the kangaroos, macaws, and lemurs were caving in.

32Senior Investigator Atrooshi discussed how to alleviate the distress of the animals in the Small Barn with Dr. Crawshaw and Inspector Maryanne Pryer. They decided that certain animals could be moved to other areas of the Zoo which were appropriate for them. However, Dr. Crawshaw opined that the Listed Animals had to be removed from The Zoo to alleviate their distress. All Listed Animals were removed except for one female adult nilgai and three adult elands because the removal lasted into the night, and they could not be safely removed in the dark. The non-removed Listed Animals were placed outside of the Small Barn in enclosures with proper shelter and compliance orders were issued requiring they be provided potable water, clean bedding, and adequate light.

33In cross-examination, Senior Investigator Atrooshi was asked if she considered the cost of rehousing the Listed Animals as part of her decision to issue the Notice of Removal. Senior Investigator Atrooshi testified that she had, however, she had no recollection of any numbers regarding costs “off the top” of her head. Senior Investigator Atrooshi declined to provide any numbers or estimates because she could not recall the numbers as a lot had happened in the two months between the removal of animals and this hearing. Counsel for the appellant submitted that this exchange demonstrated Senior Investigator Atrooshi’s unreliability as a witness. I disagree. Senior Investigator Atrooshi testified carefully and on more than one occasion she sought clarification when questions posed were unclear. She provided precise answers, and on this occasion, I accept that she did not want to give unclear evidence by speculating about something she could not accurately recall.

ii) Dr. Graham Crawshaw

34Dr. Graham Crawshaw attended the Zoo to assess the health and living conditions of animals on October 1, 2021, April 20, 2022, and April 29, 2022. On April 29, 2022, he issued a Certificate of Veterinarian in relation to the Listed Animals which indicated his opinion was that alleviating the distress of the Listed Animals necessitated their removal from the Zoo.

35Dr. Crawshaw opined that on April 20, 2022, the Small Barn conditions were deficient including that it provided inadequate space, the sanitary conditions were poor with a buildup of urine and feces in animal enclosures, light and ventilation were limited, and the facility showed signs of deterioration. On that day, his observations included that he did not see any active fans for ventilation, multiple animal cages were dirty and dusty, a capybara was held in a dark pen with deteriorated walls that contained residual sharp edges, and the macaws had no suitable place to perch.

36Dr. Crawshaw reported that on April 29, 2022, when he again examined the animals in the Small Barn, he saw that three additional light bulbs had been added to a hallway. However, illumination remained insufficient. The air quality was poor and there was no ventilation except for limited ventilation when a door was opened. A strong smell of ammonia was present throughout and the hoofed animals were standing on a thick unclean bed. The lack of cleaning led to an accumulation of ammonia and other harmful waste products from urine and feces. Dust from dirt and open bags of cement powder further reduced the air quality.

37Due to inadequate space, the enclosures contained large accumulations of feces and Dr. Crawshaw saw no evidence that any pen had been appropriately cleaned or sanitized in the recent past. Dr. Crawshaw explained that lack of space can be offset by good environmental conditions, good hygiene, and enrichment items and programs – however this was not the case in the Small Barn. The facility was also old and showed serious signs of deterioration including mold growth, a falling down ceiling, leaking water pipes, open electrical cords, and broken pen walls. Though Dr. Crawshaw did not find any animals to be in “critical distress”⁸, he thought it likely that a number of them required veterinary care.

38Dr. Crawshaw further opined that while some of the Small Barn animal species could be relocated on the Zoo premises, others required removal to alleviate their distress because they could not be adequately accommodated on the premises. He facilitated and assisted with removing the Listed Animals, including chemically immobilizing the olive baboon for handling and relocation.

39The appellant submitted that Dr. Crawshaw was not credible because he refused to admit the Zoo animals were in his care. Dr. Crawshaw repeatedly testified that the Zoo animals were never in his care. He explained that his role was to assess the welfare of the Zoo animals and provide an independent opinion to AWS. The appellant submitted that the Zoo animals must have been in Dr. Crawshaw’s care for Dr. Crawshaw to make decisions about their care, such as the decision about their removal. The appellant further submitted that Dr. Crawshaw participated in the removal of animals, including the sedation of a baboon, which demonstrated that the animals were in his care.

40The appellant was essentially submitting, as he had in his motion to exclude Dr. Crawshaw’s evidence, that Dr. Crawshaw was in a conflict of interest because of the appellant’s allegations regarding the Two Dogs. The appellant argued that Dr. Crawshaw was incredibly testifying that the Listed Animals were never in his care to avoid implicating himself. However, the issue of the Zoo animals being “in Dr. Crawshaw’s care” arose in the context of questions, posed by counsel for the appellant, regarding whether Dr. Crawshaw contravened the Code of Ethics by not consulting with other veterinarians to ensure continuity of care for the Two Dogs. Dr. Crawshaw explained the Zoo animals were never “in his care” and that he did not have a veterinarian/client patient relationship with them, such that the Code of Ethics did not require him to consult with other veterinarians.

41Three qualified veterinarians testified at this hearing, yet the appellant never asked any of them what standards or rules apply for an animal to be considered “in the care” of a veterinarian. The appellant also never asked Dr. Crawshaw if sedating a baboon meant that the animal was “in his care” for the purposes of the Code of Ethics. According to the appellant, it was obvious the Zoo animals were in Dr. Crawshaw’s care because Dr. Crawshaw participated in the removal decision, assisted with the removal of animals, and sedated an animal.

42This aspect of Dr. Crawshaw’s testimony does not demonstrate that Dr. Crawshaw is not credible as the appellant’s counsel submitted. Dr. Crawshaw explained his view and his position, and I accept his testimony on these points. Furthermore, there was no evidence proffered regarding what the Ontario veterinarian standard is for an animal to be “in the care” of a veterinarian or about the parameters of the Code of Ethics regarding when any duties to consult with other veterinarians are triggered.

43The appellant also made submissions about a statement in Dr. Crawshaw’s report wherein he stated: “I have no qualms about stating that the conditions in the Small Barn to which the animals were subjected were the worst that I have ever experienced”. Counsel for the appellant, citing R v Sekhon⁹, submitted that this statement was inadmissible. I agree. It had minimal relevance or probative value to the issue to be determined and contained inherent prejudicial danger¹⁰, such that I did not rely on it.

44Counsel for the appellant further submitted that the statement demonstrated that Dr. Crawshaw was testifying as an advocate, rather than as an impartial expert. He submitted that Dr. Crawshaw’s advocacy was also demonstrated by a “rant” wherein Dr. Crawshaw speculated during his testimony about why it took ministerial (compliance) orders for the appellant to treat various animals.

45I did not view this speculation as a “rant”. It took place in the context of a series of questions about whether Dr. Crawshaw was aware the Two Dogs had been under the care of a veterinarian prior to April 29, 2022. It was suggested that Dr. Crawshaw must have known that Dr. Mike DeGroot, a veterinarian hired by the Zoo, present on April 29, 2022, was involved in the care of the Two Dogs, or at the very least that his clinic was. Dr. Crawshaw explained that he understood that Dr. DeGroot had not been to the Zoo in three years. When making the speculation, he was explaining that he was only aware of veterinarians providing care for the Zoo animals pursuant to compliance orders. Beyond that, he had no knowledge of the extent of care provided by Dr. DeGroot or his clinic to animals at The Zoo.

46On considering the nature of Dr. Crawshaw’s testimony, including the statement and speculation highlighted by counsel for the appellant, I do not find that it crossed the advocacy threshold. Impeccable impartiality or independence is not the standard for expert evidence – for example, employee experts involved in a prosecution will not necessarily be disqualified despite the risk of becoming advocates for the prosecution.¹¹ Each case is examined in its context. Here, the context included that Dr. Crawshaw performed a function anticipated by the Act: he examined the health and living conditions of animals in order to provide an opinion to AWS. Though the statement and speculation may have amounted to “touches of partisanship”, this is not a case which meets the bar for disqualifying Dr. Crawshaw as an expert¹². First, the statement has been excluded. Second, the speculation was brief and did not factor into the issue to be decided. Third, after considering the nature of the entirety of Dr. Crawshaw’s testimony, I did not find a basis to disqualify him as an expert or to exclude the entirety of his evidence for being prejudicial.

47There was no question that Dr. Crawshaw was eminently qualified to give the opinions he gave – this was conceded by the appellant who only took issue with Dr. Crawshaw’s ability to give independent, non-partisan, unbiased evidence.

iii) Inspector Maryanne Pryer

48The uncontested evidence of Inspector Maryanne Pryer was admitted on consent by way of a written will say. She attended the Zoo on April 20 and 29, 2022, and made observations inside the Small Barn. What she saw largely corroborated the evidence of Senior Inspector Atrooshi, including that many areas of the Small Barn were dark despite some new lights being added between her two visits, enclosures were too small for animals, and high ammonia levels caused her eyes to burn.

iv) Dr. J. Bruce Robertson

49On consent, the uncontested evidence of Dr. J. Bruce Robertson was admitted by way of a written report regarding his visit to the Zoo on April 29, 2022, and he was qualified as an expert veterinarian. On April 29, 2022, he attended the Zoo to assist AWS. In the Small Barn, he observed poor lighting, poor air quality with a distinct ammonia smell, and a general lack of sanitation. His evidence included that the ammonia levels of the Small Barn increased to 10 ppm just inside the entry, and to between 50 and 100 ppm in animal confinement areas. Dr. Robertson stated that ammonia negatively impacts the health of animals beginning from levels of 10 ppm which can cause eye and respiratory tract issues and immune dysfunction. He also stated that ammonia results from the bacterial breakdown of feces and urine and can be completely prevented with sanitation and cleaning combined with ventilation.

(b) Evidence of the Appellant

i) Dr. Mike DeGroot

50On consent, the in-chief evidence of Dr. Mike DeGroot was admitted by way of written reports, and he was qualified as an expert veterinarian. For 12 years, Dr. DeGroot had practiced with a 3-veterinarian clinic (“The Clinic”) which had provided services to The Zoo since 1988. Dr. DeGroot himself had provided services to The Zoo since 2018. On April 29, 2022, the day of the removal, the appellant requested Dr. DeGroot to attend the Zoo to observe conditions of the animals in the Small Barn. Prior to this date, he had not been to The Zoo since the summer of 2020.

51AWS permitted Dr. DeGroot to conduct a brief observation inside the Small Barn for 5-10 minutes. He testified that some lighting in the Small Barn was not as bright as it should have been and that some areas were dark and difficult to see in. He estimated there were approximately 50 animals in the Small Barn such that he did not have the time to do a proper assessment of them. The animals he visually observed were in good condition with no apparent illness or injuries. Dr. DeGroot noted the Small Barn appeared crowded, the eland pen had not been cleaned recently, and air near the eland pen smelled of ammonia. His overall impression was that the animals were well cared for, though the Small Barn was crowded and required upgrades as well as more cleaning.

ii) The appellant

52The uncontested evidence of the appellant was admitted on consent by way of a written affidavit with attached exhibits. The appellant described the daily routine for the Small Barn animals. It included most of the animals being taken outside to use the yards during which time they were fed, their bowls scrubbed, and water provided. During that time, two 9-foot doors to the Small Barn are opened to allow air flow and to move animals in and out. When temperatures outside were cold, the animals would be provided a heat source in their outdoor enclosures. The appellant explained that for six weeks following March 15, 2022, he and his family, the primary operators of The Zoo, contracted the Covid-19 virus and had to arrange for a family friend to assist them with The Zoo. As there were species of animals that could have contracted the virus, those who were ill aimed for minimal contact with animals to curb the spread of germs.

(c) Was the Notice of Removal issued in accordance with s. 31(1)(a) of the Act?

53I find that the Notice of Removal was issued in accordance with s. 31(1)(a) of the Act.

54Section 31(1)(a) of the Act states:

1. An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it necessaries to relieve its distress, if:

a) a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal.

55The Act defines “distress” as:

“distress” means the state of 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;

56Section 13 of the Act requires owner or custodians of animals to comply with standards of care, which are prescribed by the Lieutenant Governor in Council.

57Section 3 of Ontario Regulation 444/19 sets out the basic standards of care for animals. Those standards include that every animal must be provided with adequate and appropriate sanitary conditions, ventilation, and resting and sleeping areas.

58I find, on a balance of probabilities, that at a minimum the Small Barn animals had inadequate ventilation during their time spent resting and sleeping in the Small Barn when the barn doors were not open. The uncontested evidence of Dr. Robertson was that ammonia levels in the Small Barn reached between 50 and 100 ppm in the Small Barn animal enclosure areas, well above the level of 10 ppm, which is when ammonia levels begin to negatively impact the health of animals. The lack of adequate and appropriate ventilation amounts to “distress” under the Act.

59Additionally, I also find that the Small Barn animals were subject to inadequate sanitary conditions and inadequate resting and sleeping areas, both of which amount to “distress” under the Act. The evidence of both AWS inspectors and Dr. Crawshaw included descriptions of dust, accumulated feces, mold, loose electrical cords, and damaged ceiling areas. This was corroborated by Dr. DeGroot who opined that the Small Barn required upgrades and more cleaning. It could be that the Covid-19 virus suffered by the appellant and his family explained, in part, the Small Barn conditions. While I have sympathy for the appellant and his family, being unable to provide required standards of care for animals does not negate the fact of their distress on April 29, 2022.

60I also accept the evidence of Senior Investigator Atrooshi and Dr. Crawshaw, that the decision to remove animals was made for the purpose of providing them necessaries to alleviate their distress. Dr. Crawshaw then advised Senior Investigator Atrooshi, in writing as required by the Act, that alleviating the distress of the Listed Animals necessitated their removal from the place they were in.

61The appellant submitted that the Notice of Removal was issued unreasonably because the appellant had a clear history of complying with AWS orders, the health of animals was not at issue, and four of the Listed Animals were ultimately left to remain at the Zoo which suggests they did not require removal.

62In this case, conditions including the high ammonia levels and state of disrepair of the Small Barn caused the distress of the animals. Though Dr. Crawshaw determined that some Small Barn animals could be accommodated elsewhere at The Zoo, he opined that the Listed Animals could not be, such that they needed to be removed. This was not an unreasonable determination. Further, the four Listed Animals left to remain were subject to compliance orders as opposed to removal because of circumstances beyond the control of AWS. In these circumstances, the fact they were not removed does not establish that removing the other Listed Animals was so unreasonable that it somehow rendered the removal invalid.

63The appellant further submitted that I could not find that the decision to remove was reasonable because Senior Investigator Atrooshi could not recall details of how costs to rehouse the Listed Animals factored into her removal decision. The appellant submitted it left him in a position where he could not question or test a relevant factor of the removal decision. However, the appellant had the opportunity to explore this at the hearing and chose not to. For example, the appellant never asked Senior Investigator Atrooshi how, or to what extent, costs factored into the removal decision. He simply asked if they were a factor and then pressed Senior Investigator Atrooshi for numerical figures she could not recall. Furthermore, costs considerations are not part of the considerations mandated by s. 31(1)(a) of the Act. In these circumstances, the appellant was not deprived of his ability to challenge the Notice of Removal and I was not deprived of the evidence required to determine the issue at hand.

64The appellant also submitted that he was denied a fair process because he was not given appropriate notice about the removal of the animals or a chance to address any issues. The duty of procedural fairness encompasses the nature of the statutory scheme.¹³ In this case, the statutory scheme contemplates the removal of animals to alleviate their distress in defined circumstances. Though an owner or custodian of removed animals must be provided written notice of the removal of distressed animals, the Act does not require that the owner or custodian be given the opportunity to address issues prior to removal. Instead, an expedient appeals process is provided for under the Act to address challenges to animal removals by AWS. In this case, the appellant was provided with written notice of the removal as required by the Act, which did not amount to procedural unfairness in the context of the applicable statutory scheme.

65The appellant further submitted that pursuant to s. 31(1)(a) of the Act, a veterinarian must decide alone whether alleviating animals’ distress necessitates removal, and then an AWS inspector must decide alone whether to take the action to remove the animal. In this case, Dr. Crawshaw testified that there was a “joint decision” between him and AWS to remove the animals. The appellant submitted this rendered the removal decision invalid. However, when Dr. Crawshaw testified about the removal decision being “joint”, he specifically referenced the Certificate of a Veterinarian which he signed to provide written notice of his opinion to Senior Investigator Atrooshi. He explained that it was a “joint” decision because they both had to sign the paper certificate. Regardless, the Act does not mandate the complete separation of the veterinarian’s role from the AWS inspector’s role in the context of removing animals. The Act contemplates an AWS inspector obtaining a veterinarian’s opinion regarding removal and then grants AWS inspectors discretion regarding the removal decision.

66The appellant also submitted that the “joint decision” demonstrated that Dr. Crawshaw crossed the line from being an expert into a role akin to part of a prosecution team, such that his evidence ought to be excluded. In support of this submission, the appellant cited the case of Ontario (Natural Resources and Forestry) v South Bruce Peninsula (Town)¹⁴. In South Bruce Peninsula, Justice Lauwers explained, in a concurring opinion, that an expert’s involvement in an investigation, seen in many regulatory cases, is not necessarily disqualifying. It is only when involvement becomes so intense that the expert’s independence and impartiality is lost, that it can result in disqualification or limits on the expert’s evidence. Dr. Crawshaw’s testimony about the “joint decision”, wherein he referenced the certificate that he and Senior Investigator Atrooshi jointly signed, did not establish that he had become so partial to the matter before this Board that his evidence had to be disqualified.

67For these reasons, I find that The Notice of Removal was issued in accordance with s. 31(1)(a) of the Act.

G. ORDER

68For the reasons above, the Board orders as follows:

(i) The appeal is denied.

Footnotes

1. 1Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).
2. 2See Canada (Attorney General) v Lewry, 2012 FCA 125 at paras 17-20; Young v Toronto Police Services Board, 2018 HRTO 216 at para 15; and Pryde, Spottiswood, and Pierce v Chief Animal Welfare Inspector, 2021 ONACRB 31 at para 6.
3. 32021 ONACRB 12 [“Pryde”]
4. 42015 SCC 23 [“White Burgess”]
5. 51994 CanLII 80 (SCC), [1994] 2 SCR 9 [“Mohan”]
6. 6RSO 1990, c S.22.
7. 7RSO 1990, c E.23.
8. 8Section 1(1) of the Act defines “critical distress” as “distress that requires immediate intervention in order to prevent serious injury or to preserve life”.
9. 92014 SCC 15 [“Sekhon”].
10. 10Sekhon, ibid at paras 49-50.
11. 11Ontario (Natural Resources and Forestry) v South Bruce Peninsula (Town), 2022 ONCA 315 at paras 77, 79, 88-93 [South Bruce Peninsula”].
12. 12South Bruce Peninsula, ibid, at para 125.
13. 13Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 77 [“Vavilov”].
14. 14Supra note 11.```