Matt Peredery v. Chief Animal Welfare Inspector, 2022 ONACRB 26

Date: 2022-09-23

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

Between:

Matt Peredery

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Vice-Chair (Acting)

Appearances:

For the Appellant: Matt Peredery, Appellant Rejean Parisé, Counsel

For the Respondent: Deanna Exner, Counsel Nicole Driscoll, Regional Supervisor

Court Reporters: Barbara Pollard

Heard by videoconference: May 3-5, June 14 and 20, July 6 and 12, and August 9, 2022

OVERVIEW

1Inspector Erin Brûlé of Animal Welfare Services (AWS), for the respondent, inspected a farm owned by Matt Peredery, the appellant, located at 1433 Radar Road, in Hanmer, Ontario on February 10, 2022. The respondent subsequently issued compliance orders on February 11, 14 and 18, 2022 related to this inspection.

2On February 18, 2022 the respondent removed a number of animals (29 poultry, 5 ducks, and 4 rabbits) from the appellant’s farm for failure to comply with the February 11 and 14, 2022 compliance orders, and issued a Notice of Removal. A number of poultry and ducks still remain on the property, housed in at least one of the barns. These are the subject of the February 18, 2022 compliance order.

3On February 28, 2022 the appellant filed five appeals to the Animal Care Review Board (Board), appealing four compliance orders, and the notice of removal as follows:

1. February 11, 2022 compliance orders (CO) regarding the poultry and waterfowl, ordering continuous access to palatable water that won’t freeze, sanitary living conditions free of feces and debris, and clean, dry bedding of sufficient amounts;
2. February 11, 2022 CO regarding the rabbits, ordering compliance with cited sections of the NFACC Rabbit Code of Practice regarding housing, use of refinement, resting mat, lighting, and access to water that will not freeze, sanitary living conditions free of fecal buildup and debris, and clean, dry bedding;
3. February 14, 2022 CO regarding the rabbits, ordering compliance with section 1.4 of the NFACC Rabbit Code of Practice regarding maintaining ambient temperature to 10^oC – 25^oC;
4. February 18, 2022 CO regarding the poultry and waterfowl who were not removed (those in the barn), ordering provision of protection from the elements, including temperature; and
5. February 18, 2022 regarding the Notice of Removal (NOR) for 4 rabbits, 29 poultry and 5 waterfowl.

4The respondent then issued three Statements of Account to the appellant as follows:

1. $695.67 dated March 4, 2022 for four rabbits (SOA #1);
2. $1,643.25 dated March 11, 2022 for five call ducks (waterfowl) (SOA #2); and
3. $12,655.21 dated March 22, 2022 for the 29 poultry, and residual of boarding for the five call ducks incurred following SOA #2 was issued (SOA #3).

5The appellant filed appeals of the three Statement of Accounts with the Board on March 24, 2022.

6In a case conference held by the Board on March 15 and 25, 2022, it was determined that the appellant had failed to submit his appeals within the statutory deadlines described in s.38(1) for the COs and s.38(2) for the SOA of the [Provincial Animal Welfare Services Act, 2019]¹ (PAWS Act) as follows:

1. February 11 and 14, 2022 COs; and
2. SOA #1

7At the case conference, the Board determined that the appeals of the February 18, 2022 CO, and the SOA #2, and SOA #3 appeals were filed within the statutory deadlines and could proceed.

8On March 15, 2022, the appellant formally notified the respondent, through counsel in writing, that she had forfeited all the animals that had been removed. The parties agreed on a process for the appellant to forfeit her animals as of March 15, 2022. For this reason, the appeal of the February 18, 2022 Notice of Removal has no remedy, as the animals cannot be returned.

9A hearing of the appeals in this matter was commenced before the Board on May 3, 2022 and concluded on August 9, 2022, lasting eight days in total.

ISSUES IN DISPUTE

10The issues in dispute in this matter are:

1. Should the SOA #2 be confirmed, revoked, or varied?
2. Should the SOA #3 be confirmed, revoked, or varied?
3. Should the February 18, 2022 CO regarding the poultry and waterfowl (not removed) be confirmed, revoked, or modified?

RESULT

11SOA #2 in the amount of $1,643.24 is confirmed.

12SOA #3 is varied to $12,316.21.

13The February 18, 2022 CO regarding the poultry and waterfowl still remaining on the property, is confirmed.

THE INSPECTION – February 10, 2022

14On February 10, 2022 at approximately 9:30 a.m. Animal Welfare Inspector Brûlé attended the appellant’s property with Inspectors Alemany and Nelson. Inspector Brûlé’s testified that the attendance was made under the authority of a Probation Order under section 72 of the [Provincial Offences Act]², and under s. 24 of the PAWS Act.

15The Probation Order, dated February 3, 2021 (Exhibit 12) and signed by Justice J.D. Keast, ordered that for a period of two years from the date of the order the appellant was to permit,

…the animal welfare authorities to attend to inspect the animals and their conditions once every 6 months. They would be permitted to attend with such assistance required which may include a veterinarian. Mr. [sic] Peredery would be required to co-operate based on a pre-arranged inspection.

16When the appellant answered the door on February 10, 2022, she advised the Inspectors that they were to make an appointment with her lawyer for an inspection. She contacted her lawyer, who confirmed that the inspection had to be pre-arranged per the Probation Order.

17The Inspectors contacted Regional Supervisor Nicole Driscoll, who advised them to give the appellant some time to prepare herself before returning, thus giving notice. The Inspectors then advised the appellant that they would return at 10:30 a.m.

18The appellant’s position is that the inspection was not lawful as it was not in compliance with the Probation Order, and for that reason the evidence and compliance orders could not be used, and as the removal of the animals flows from the compliance orders, and the subsequent Statements of Account flows from the removal, these should all be dismissed.

19The appellant relied upon Cole v. The Queen³ to support its position. This decision relates to a search of a home beyond what the warrant authorized, that is a warrant to seize does not give police officers the right to enter and search. The appellant’s position was that her farm is her home and that the Inspectors were not allowed to conduct an inspection without pre-arranging an appointment. The appellant added that where the Inspectors did not have the authority to search the appellant’s premises, they cannot then use the information for prosecution, and that they should have “stepped back” as there was no urgency.

20The respondent reminded the Board that Inspector Brûlé described her authority to inspect the premises as being both the Probation Order and s. 24 of the PAWS Act, which provides an Inspector the authority to enter and inspect any place for the purpose of determining compliance with:

(c) the standards of care or administrative requirements or the reasonable and generally accepted practices of agricultural animal care, management or husbandry, if the animals are kept for,

(i) an entertainment, commercial, educational or charitable purpose.

21The appellant described the various activities conducted on her farm regarding poultry and waterfowl (hereinafter referred to as chickens and call ducks), including that she rescues birds and provides them sanctuary, that she provides occasional educational programs including butchering and baking the birds, and on animal husbandry, and that she sells poultry to hobbyists, and sells fertile hatching eggs across Canada.

22The respondent reminded the Board that the appellant can’t collaterally attack an order if there was no appeal; in this case there was no appeal of the compliance orders issued on February 11 and 14, 2022. She relied upon R. v Consolidated Maybrun Mines Ltd.⁴ for this position and noted that several decisions based on the Ontario Society of Protection of Cruelty to Animals Act,⁵ which preceded the PAWS Act, flow from it.

23I cannot comment on the Probation Order or the Provincial Offences Act; these are outside the jurisdiction of the Board. Nevertheless, I conclude that the Inspectors were acting in compliance with s. 24 of the PAWS Act. The Inspectors also complied with s. 25(3) of the PAWS Act, which provides that a warrantless entry shall only be made between the hours of 9:00 a.m. and 5:00 p.m. during a business day, or at any other time when the place is open to the public. They attempted to enter at 9:30 a.m., and returned at 10:30 a.m.

24I further note that the Inspectors did not attempt to enter the appellant’s dwelling, and that while her farm property includes the farmhouse where she resides, the entirety of the farm property is not a dwelling. While the appellant attempted to persuade me that it was, I find that while the PAWS Act does not define “dwelling”, the Merriam-Webster’s online dictionary defines it as – “a shelter (such as a house) in which people live”. I do not believe Inspector Brûlé’s entry to inspect the farm violated the appellant’s rights.

25As a result, I decline to exclude the evidence, based on Inspector Brûlé’s inspection powers under s. 24 and 25(3) of the PAWS Act.

ANALYSIS

26Under s. 38(9) of the PAWS Act, the Board may make one or more of the following findings (abbreviated list):

1. Confirm, revoke or modify an order made under s. 30;
2. Order than an animal removed under s. 31(1) be returned to the owner or custodian;
3. Confirm, revoke or vary a statement of account served under s. 35(1); and/or
4. Order that the whole or any part of the cost to the respondent of providing necessaries to an animal pursuant to its removal under s. 31(1) be paid by the owner or custodian of the animal to the Minister of Finance.

Onus of Proof

27The appellant bears the onus of proof in these appeals, meaning that the appellant is required to establish on a balance of probabilities that the February 18, 2022 compliance order should be revoked or modified and that the two Statements of Account issued on March 11 and 22, 2022 should be revoked or varied.

28At the hearing, the respondent was asked by the Board to present its evidence first. The respondent is required to show that the charges on the Statements of Accounts reflect the actual cost of necessaries provided to alleviate the distress of the animals removed, and that the compliance order is justified.

The Rabbits: February 11 and 14, 2022 Compliance Orders, February 18, 2022 Removal, and March 4, 2022 Statement of Account

29The appellant appealed the two COs dated February 11 and February 14, 2022 regarding the rabbits. She also appealed the February 18, 2022 removal of the rabbits (NOR), and SOA #1 issued on March 4, 2022 related to providing them necessaries to relieve their distress. Only the appeal of the NOR was submitted in time. However, as the only remedy that the Board can provide relative to the NOR is to return the rabbits, and the appellant forfeited them, this appeal is moot as the rabbits are not available for return.

Chickens and Call Ducks: February 11, 2022 Compliance Order, February 18, 2022 Removal, and March 11 and 22, 2022 Statements of Account

The February 11, 2022 Compliance Order and February 18, 2022 Notice of Removal

30While the February 11, 2022 CO is not on appeal, and the February 18, 2022 NOR has no remedy, I have considered them at the request of the appellant on the basis that they will have a bearing on the two SOAs if I find that the removal of the animals was not necessary.

31I find that the respondent removed the chickens and call ducks for failure to comply with the February 11, 2022 CO and on the basis of Dr. Robertson’s Certificate, in accordance with s. 31(1) of the PAWS Act which states the following:

The respondent may remove an animal from the place where it is and take possession of it to provide necessities 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 for believing that the animal is in distress and the owner or custodian is not present and can’t be found promptly; or

c) An order respecting the animal has been made under s. 30 and the order has not been complied with.

32The CO dated February 11, 2022 is described as “regarding all poultry and waterfowl of various breeds residing at the above address,” and ordered the following with a compliance deadline of February 18, 2022 at 9:00 a.m.:

1. Ensure animals have continuous access to clean, potable water that will not freeze in cold temperatures;
2. Provide animals with sanitary living conditions free of feces and debris; and
3. Provide animals with clean, dry bedding of sufficient amounts.

33On February 18, 2022, Inspector Brûlé conducted a re-inspection to check compliance with the CO. She removed the chickens and call ducks for failure to comply with the CO, and because Dr. Robertson advised her in writing that alleviating the animals’ distress necessitated their removal. She issued a NOR on February 18, 2022 for the poultry and waterfowl pursuant to s. 31 of the PAWS Act.

34The respondent argued that the Board could not consider collateral attacks on the CO because it was not under appeal. I agree with her. Despite this, the respondent provided an abundance of evidence regarding the grounds for issuing the February 11, 2022 CO and the February 18, 2022 NOR, and I feel it is incumbent on me to determine that the removal was justified before determining that the SOAs were for the purpose of providing necessities to relieve the birds of distress.

35Under s. 30(1) of the PAWS Act, the respondent may serve on the owner or custodian of an animal an order to take actions to relieve the animal of distress. Distress is defined in s. 1(1) of the PAWS Act as 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.

36Inspectors Brûlé and Alemany provided extensive evidence regarding the living conditions of the waterfowl and poultry including:

• The hutches and coops were not insulated, and were unheated;
• The floors of the hutches and coops were scantly covered with bedding;
• The bedding was stiff with the cold and dried up feces and urine;
• Water supplies were not heated, and in the cold temperatures (well below 0^oC in January and February 2022 as evidenced by Environment Canada reports) were frozen; and
• The water supplies were not clean.

37Inspector Brûlé described evidence that the chickens were affected by the conditions, including:

• At least one chicken was missing toes, likely lost due to frostbite;
• The combs of at least six roosters were damaged by frostbite;
• Many of the chickens had “bumble feet” in various stages. This is a painful condition caused by having open sores infected by bacteria, caused by the feces on the floors of the coops and hutches resulting in an inflammation of the feet;
• Feathers on the underside of chickens were caked with feces;
• Three chickens required emergency veterinary care, one of which was euthanized on the date of removal, and the other two treated and sent to the boarding facility;
• The attending veterinarian noted that one of the chickens examined had a poor weight condition; the inspectors noted three other birds in coops 1 and 2 had low body conditions; and
• One chicken was later taken to the veterinarian and euthanized.

38Inspector Brûlé testified that on February 18, 2022, the appellant had not complied with the CO issued on February 11, 2022, and that the temperatures had dropped significantly below 0^oC (-24^oC to – 17^oC, Environment Canada report). She observed birds showing signs of cold stress: the call ducks were ruffling their feathers, shaking and shivering; ice crystals were found in their feathers; the birds were lifting their feet; and the birds were frequently lying down.

39Inspector Brûlé contacted Dr. Robertson and had him examine the birds by video. He advised verbally and in writing that removal of the birds from the coops and hutches located outside was necessary to alleviate their distress.

40Dr. Robertson issued a Certificate of a Veterinarian advising the Removal of the Animals (“Certificate”) on February 18, 2022 after conducting a video examination with Inspector Brûlé. The Certificate states,

“I am advising that alleviating the distress of the animal(s) necessitates the removal of the animal from the place where it currently is pursuant to s. 31(1)(a) of the [PAWS Act].”

41In his testimony, Dr. Robertson referenced his Report dated March 10, 2022, which stated the following:

• A number of birds were housed in small outside enclosures. The enclosures did not have any additional insulation beyond the construction material, which provided some protection from the elements, but was drafty. The birds were noted to be huddled up and shivering;
• The water was frozen;
• The food provided was scant to absent in quantity;
• There was a scant amount of bedding present;
• The enclosure was heavily soiled with feces/urates; and
• There was a concern regarding foot health in a number of the birds, with at least one bird missing digits/part of a foot.

42Under s. 13(1) of the PAWS Act, every person who owns or has custody or care of an animal is to comply with the standards of care, which in the definitions section means a prescribed standard of care. Under s. 13(2) of the PAWS Act, the prescribed standards of care do not apply where an activity regarding agricultural animal care, management or husbandry is carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry.

43Dr. Robertson referenced the Chicken Code of Practice, as a “generally accepted practice of care” for the birds. He opined that chickens can be housed outside of their “thermoneutral zone” provided they have extra food, water, bedding and insulated housing to prevent cold stress and excessive loss of body condition, but that these chickens were not provided any of these extras.

44Dr. Robertson stated that he refers to the various Codes of Practice for a description of “proper care” for poultry. He noted that there is no Code of Practice for ducks, but that they have a similar but cooler thermoneutral zone and exhibit similar signs of cold stress as chickens do. He noted that the ducks removed from the outdoor hutches were not free moving as the ones in the barn were. This statement was refuted by the appellant’s evidence which was that they were allowed to move freely outside of their hutches.

45Dr. Robertson stated that while only four chickens were taken to the veterinarian, the lack of “proper care” can range from normal daily care to medical care. He stated that a lack of regular water, or clean bedding, for example is distress. He explained that the appellant’s understanding of distress being a need for medical intervention related more to “critical distress” than “distress.”

46Dr. Robertson testified that he visited the foster farms on March 21 and 22, 2022 and found the chicken’s feet had improved with treatment.

47In counsel for the appellant’s opening statement, he stated that most of the case is not that controversial on the facts, and that he wasn’t arguing the need for remedial steps. He argued however, that the standards of care described in s. 13 is a different lens than that in s. 31 (which enables an Inspector to remove animals in distress), and that the latter section requires determining if the animals were in distress.

48Counsel then referred to the appropriateness of the removal, which would reflect on the SOAs, and explained that for this reason counsel he had not cross-examined Inspector Brûlé regarding whether the fees were appropriate. Counsel led no evidence regarding the SOAs.

49Counsel agreed that some of the birds, particularly those in need of medical care, should have been removed, but that others should have been assessed to determine if they could have been provided necessities without removal. He added that the Act only permits removal of animals in a state of distress, not those at risk of future distress.

50In support of counsel for the appellant’s argument that the removal was not proper, counsel argued that the definition of distress is the “state of being.” He argued that there was no evidence that the chickens or call ducks:

• Were dehydrated;
• Lacked proper shelter, or that the quantity of bedding caused the animals’ distress;
• Lacked nutrition;
• Suffered from the cold, based on evidence from a veterinarian; and
• Not one duck required veterinarian treatment.

51The appellant argued that the diagnosis of “bumble feet” condition in one chicken is not a threshold for removal, and that the CO did not reference any requirements related to the cold.

52The appellant gave evidence explaining her treatment of the various medical conditions of the chickens and call ducks. She also explained that the feces in the hutch and coop bedding, was to provide warmth, and that it created an insulating layer when it freezes. She noted that she limits the amount of bedding to prevent leg mites.

53Dr. Robertson provided opinion evidence in an addendum to his report on April 19, 2022 that refuted the appellant’s testimony regarding her care of the chickens and call ducks stating the following (paraphrased):

• A combination of animal manure and bedding can function as a bedding pack which can have some insulation value between frozen ground and a recumbent animal, but that he did not consider it to be an improvement in environmental conditions for the birds because they perched;
• The very small amount of manure and bedding present in the cages, hutches and barn floor were insufficient to produce enough heat to meet the needs of the birds in the coops and hutches (chickens and call ducks), the rabbits and any other animals housed in the barn, and the animals subject to the February 18, 2022 order;
• The very cold temperatures, unheated structures, lack of proper composting technique and small volume of compostable material available would result in freezing of the materials with no active heat production;
• Withholding bedding from birds with suspected leg mites with the intent to freeze the mites to death is not a rational plan for treatment, as it ignores the primary population of mites within the skin of the chicken’s lower leg area. Infected birds should be isolated and treated by a farm veterinarian;
• Vitamins are not a primary treatment for any illness, and should only be used to address a specific vitamin deficiency. The bird diagnosed by the owner as having pneumonia is more appropriately treated with antibiotic therapy under a veterinarian’s direction;
• Homeopathic remedies like Arnica Montana 30C are an improper treatment for a bird with a suspected painful condition like frostbite.

54I find Dr. Robertson’s original, and addendum reports compelling, and accept his medical expertise to the opinion and practices of the appellant, who has some experience in farming but is not a professionally trained veterinarian.

55I have considered the evidence regarding the ongoing living conditions experienced by the chicken and call ducks, the lack of compliance with the February 11, 2022 CO, and find that on the balance of probabilities the removal of them on February 18, 2022 was in accordance with the PAWS Act. While Inspector Alemany testified that some improvements were noted in the coops since the February 10, 2022 inspection, the conditions were still unsanitary, and the water source remained unheated.

56I have considered the evidence that the living conditions within the hutches and coops were unsanitary, and accept that this was the cause of bumblefoot as diagnosed in one of the chickens examined by the attending veterinarian. I accept that while the remaining birds were not examined by the veterinarian, that the Inspector was sufficiently qualified to make comparisons of the diagnosed chicken with those who had not been examined, and conclude that many of the chickens had some stage of bumblefoot requiring treatment.

57I am satisfied with Dr. Robertson’s evidence regarding the need to remove the chickens and call ducks based on his video examination of the birds, their living conditions, his observations of their physical conditions (particularly frostbite), and his description of their needs when living outside their “thermoneutral zone.” Further, while the appellant testified that the temperature condition was not an issue on the February 11, 2022 CO, Dr. Robertson is not restricted by the CO in signing the Certificate recommending removal.

58I have reviewed the appellant’s arguments regarding s. 13 and s. 31 of the PAWS Act and the respondent’s comments about distress and critical distress being confused by the appellant. The definition of “critical distress,” relates to immediate intervention to prevent serious injury or to preserve life and could include medical intervention, whereas “distress” is defined as various needs not being satisfied (i.e., proper care, water, food, or shelter). Proper care, as Dr. Robertson testified, is described in s. 13 as the prescribed standard, or in farming situations, generally accepted practices, which may include published Codes of Practice.

59The appellant criticized the respondent for failing to negotiate other options to care for the birds before removing them, including exploring other locations on the farm for the birds to be moved where they might have been better protected from the elements. The mandate of AWS is animal welfare; they are not required to negotiate other options, particularly where an owner is uncooperative. I do not accept the appellant’s interpretation of the Act in this regard. The appellant is responsible under s. 13 of the PAWS Act to care for her animals in compliance with the standards of care and generally accepted practices of agricultural animal care. It was the appellant’s responsibility to comply with the standards, and the CO, and to find solutions to resolve issues regarding distress.

SOA #2 and SOA #3

60For the reasons that follow, I confirm SOA #2 in the amount of $1,643.25 for the boarding of five call ducks from their removal on February 18, 2022 until the appellant forfeited them on March 15, 2022.

61For the reasons that follow, I vary SOA #3 for the 29 chickens as follows:

Transportation Costs, including crate rental	$ 568.50
Boarding Costs	$10,909.14
Veterinary Costs	$ 838.57
Total Costs	$12,316.21

62Under s. 35(1) of the PAWS Act, where the respondent has provided an animal with necessaries to relieve its distress, the respondent 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).

63Inspector Brûlé issued SOA #2 on March 11, 2022 for the care of the five call ducks removed, in the amount of $1,643.24. The relevant excerpts of this SOA are as follows:

An animal welfare inspector has provided necessaries to five (5) call ducks of various age, sex and color removed from 1433 Radar Rd., Hanmer, Ontario to relieve the distress of the animal(s) as described below:

Boarding Costs: $1,643.25

64Inspector Brûlé issued SOA #3 on March 22, 2022 for the care of the twenty-nine chickens removed, in the amount of $12,655.21. The relevant excerpts of this Statement of Account are as follows:

An animal welfare inspector has provided necessaries to 29 poultry of various age, sex, breed and colour (two (2) euthanized in care) from 1433 Radar Rd., Hanmer, Ontario, to relieve the distress of the animal(s) as described below):

Transportation Costs, including crate rental	$ 508.50
Boarding Costs	$10,969.14
Veterinary Costs	$ 1,177.57
Total Costs	$12,655.21

65The respondent requested that the Board confirm SOA #2 in the amount of $1,643.25 and SOA #3 in the amount of $12,655.21. The appellant submitted that the two SOAs should be varied to $NIL

66Counsel for the appellant provided no argument against the two SOA except that if the Board found the removal to be tainted, then the two SOAs should be revoked.

Invoices for Boarding the 29 chickens and the 5 call ducks:

67Six invoices for boarding the call ducks and the poultry were entered as evidence during the hearing, the particulars of which are as follows:

Invoice	# birds	dates	# days boarding	Boarding rate	Sub-total
#112	28 chickens	Feb 18 – 24	6	$15	$2,520.00
	5 call ducks				$ 450.00
	Transportation to vet to pick up birds				$ 60.00
Footnotes: 6
#113	16 chickens	Feb 25 –28	4	$15	$ 960.00
	5 call ducks				$ 300.00
#1007	5 chickens	Feb 25-28	4	$15	$ 300.00
	7 chickens				$ 420.00
	3 bags of feed @ $21.00				$ 63.00
	HST 13%				$101.79
	TOTAL				$884.79
Footnotes: 7 8 9 The number of poultry reflected from Invoices #113 and #1007 add to 28.
#114	15 chickens	March 1-4	4	$15	$ 900.00
	5 call ducks				$ 300.00
Note that 1 chicken was euthanized on March 1, 2022
Invoice #1010	5 chickens	March 1-14	14	$15	$1,050.00
	7 chickens				1,470.00
	Sub-Total				$2,520.00
	HST 13%				$ 327.60
	TOTAL				$2,847.60
Footnote: 10 The number of poultry reflected from Invoices #114 and #1010 add to 27; one additional poultry was euthanized on March 1, 2022.
Invoice #10087	15 chickens	March 5 -15	11	$15	$2,475.00
	5 call ducks				$ 825.00
	Sub-Total				$3,300.00
	HST 13%				$ 429.00
	TOTAL				$3,729.00
Footnote: 11

68The information regarding the service providers was redacted on each of the invoices, and the respondent called no witnesses with firsthand knowledge of the invoices.

69The respondent led evidence that the care provided by the boarding facility included monitoring the chickens for signs of infection from the single chicken diagnosed by the attending veterinarian on February 18, 2022 with sinusitis, and daily foot soaks to care for “bumble feet” where the symptoms were the same as the single chicken examined by the attending veterinarian. Inspector Brûlé also testified that the birds were provided adequate protection from the cold including insulated and heated shelter, heating of the water, clean bedding, and food. She testified that there was a significant difference of the level of care that was provided by the boarding facilities versus the care provided by the appellant.

70Inspector Brûlé was the only witness who testified to the boarding invoices. She testified that the invoices included charges that the boarding charge of $15 per chicken and call duck per day is standard in her experience and, therefore, reasonable. She noted that boarding costs range up north between $10 - $50/day. She explained that one facility charged HST because it is a business, and that feed was charged additionally, but it reflected what would be paid in the feed store and the feed was transferred to the third facility when the birds were moved.

71The appellant’s counsel cross-examined Inspector Brûlé with regard to the length of time the chickens and call ducks were boarded. He questioned when the birds were no longer in distress, including how long the treatment for bumble feet for the chickens was required. The appellant’s counsel pointed out that other than the four chickens seen by the veterinarian, two of whom were euthanized, and the other two treated, no other chickens or call ducks had conditions that were evidence of distress. Inspector Brûlé responded that she could tell when they were no longer in distress and able to be returned.

72No evidence was led by the appellant that she had fully complied with the February 11, 2022 CO nor did she give any indication that she intended to improve the environmental conditions of the outdoor hutches and coops, or to provide means to ensure the water supplies would not freeze. It was the appellant’s responsibility to claim that the conditions identified by the Inspector as causing distress in the CO had been corrected.

73I find that the respondent proved on a balance of probabilities that the amount charged in SOA #2 being $1,643.25 for the boarding of the 5 call ducks from February 18 through March 11, 2022 was reasonable, for the following reasons:

• The length of boarding was based on the appellant’s continued failure to comply with the February 11, 2022 CO; and
• The boarding rate was not contested.

74I find that the respondent proved on a balance of probabilities that the amount charged in SOA #3 being $10,969.14 for the boarding of the chickens (initially 28, and finally 27) from February 18 through March 15, 2022 should be varied to $10,909.14. This varied amount is based upon removing the costs of transporting the chickens from the veterinarians which is discussed below. Otherwise, I find that the charges are reasonable, for the following reasons:

• The length of boarding was based on the appellant’s continued failure to comply with the February 11, 2022 CO;
• The chickens received ongoing treatment for bumble feet, and monitoring to ensure they were not infected by sinusitis from the one chicken being treated (and isolated from them); and
• The boarding rate was not contested.

Amounts for Transporting the chickens:

75Two invoices were entered as evidence regarding transporting the poultry during the hearing, the particulars of which are as follows:

Invoice #	Service	Rate	Totals
112	Travel to vet to pick up chickens (moved from boarding invoices)	$60	$60.00
1194	Crate rental – chicken transportation (10 crates) includes cleaning and disinfection fee	$5.00/crate	$50.00
	Trailering chickens on March 18th	$400.00	$400.00
	HST 13% on invoice #1194		$58.50
	TOTAL		$568.50

76The respondent led evidence that the trailering charge is typical for a livestock trailer. She further testified that the crates were industry standard crates for transporting birds, and that the individual charge of $5 per crate was normal. She noted that each group of birds was transported together within a crate.

77The appellant led no evidence regarding the transportation.

78As the transportation costs are uncontested, I vary them only to reflect the move of the transportation charge of $60 from the boarding charges.

Amounts for Veterinary charges:

79One invoice (#264213) was entered as evidence for veterinary charges during the hearing, the particulars of which are as follows:

Chicken #1	Feb 18, 2022	Emergency Fee	$100.00
	Feb. 18, 2022	Examination	$124.90
	Feb. 25, 2022	1 Onycin 1000	$29.90
	Sub-Total		$254.80
Chicken #23	Feb. 18, 2022	Emergency Fee	$100.00
	Feb. 18, 2022	Examination	$124.90
	Feb. 25, 2022	1 HBD High Potency Fine Grind 5 lbs	$ 61.60
	Sub-Total		$286.50
Chicken #24	Feb 18, 2022	Emergency Fee	$100.00
	Feb. 18, 2022	Examination	$124.90
	Feb. 18, 2022	Euthanasia-exotic	$ 75.50
	Sub-Total		$300.40
Unidentified chicken	March 1, 2022	Examination	$124.90
	March 1, 2022	Euthanasia	$75.50
	Sub-Total		$200.40
SUB-TOTAL (4 Chickens)			$1,042.10
HST (not on invoice) 13%			$ 135.47
TOTAL			$1,177.57

80For the reasons that follow, I:

• Find that the respondent proved on a balance of probabilities that the veterinary care in the amount of $838.57 included on SOA #3 was reasonable and is confirmed; and
• Vary the amount for emergency fees in the amount of $339.00 on SOA #3 to $NIL.

81Inspector Brûlé testified that three chickens were taken to the veterinarian by AWS on February 18, 2022, and that two chickens were later picked up by the boarding facility and hence the charge for transportation. She explained that the emergency fee for the three chickens was because they were taken after closing hours and a veterinarian had to be called in. She explained that the chickens taken in on March 1, 2022 was during normal clinic hours. Inspector Brûlé provided no evidence regarding why AWS was unable to take the chickens to the clinic while it was still open.

82I find that the respondent otherwise proved that the veterinary charges are reasonable for veterinarian services for the following reasons:

• The appellant did not dispute the fees charged.
• The appellant conceded that the chickens may have needed to be euthanized.

February 18, 2022 Compliance Order

83I confirm the compliance order issued on February 18, 2022 for the birds that were not removed on that date, and that remain in the barns.

84The compliance order dated February 18, 2022 is described as “regarding all poultry and waterfowl of various breeds residing at the above address,” and ordered the appellant to:

Ensure that the animals are provided with adequate and appropriate protection from the elements, including harmful temperatures and provide a heat source if necessary.

A compliance date of February 24, 2022 at 10:00 a.m. was prescribed.

94The compliance order dated February 18, 2022 is regarding the chickens and call ducks that were not removed on February 18, 2022. Inspector Brûlé testified that while the CO issued on February 11, 2022 applied to these birds as well, she determined their removal was not necessary because these animals were in a barn and had free access to seek food and water. She noted that they were in distress, but this could be relieved by compliance with the CO.

85Inspector Brûlé gave evidence that temperature on February 18, 2022 was -17C to -24C, and that the temperature inside the barn was -24.2^oC. She said she observed several chickens and call ducks in a pen shivering, and that they had only a thin layer of shavings on the floor as bedding and no water. She added that in another pen she observed another 14 call ducks who had outdoor access, but no food, unheated water that was frozen, the floor compacted with feces and no bedding. The call ducks were shivering.

86Inspector Alemany testified that she discussed the possibility of moving the call ducks from pen 2 in barn 1 into a different pen as they were showing signs associated with cold stress. She also testified that water dish in barn 1 was empty and was encased in a donut-shaped ring of ice. She saw the appellant fill the bowl and immediately a flock of about 30 birds swooped in to drink the water, indicating they had been without water for an extended period.

87Dr. Robertson expressed his opinion that the birds in the barn were at large, and could find water and food, and better bedding to deal with being kept out of their thermoneutral zone. He noted that the birds in the barn could forage for food, whereas those in close confinement could only access food and water provided.

88The appellant gave evidence that Barn #1 had an insulated wall, and that Barn #3 was insulated, and that she could have provided heat lamps if the birds were in need. The Inspectors testified that they were not aware that the barns were insulated and noted that the recorded temperatures inside the barn was -24.2^oC or colder than outside. They also testified to frozen water, and where the appellant added water to a dish, that it quickly became slushy. They noted that the birds showed signs of cold stress, but that they were able to move about freely and for this reason a CO was ordered to provide protection from the elements and a heat source where necessary.

89I have reviewed the evidence and find that on the balance of probabilities, the conditions in the barns are not sufficient to protect the birds from the cold, and that heat should be provided to keep them within their thermoneutral zone, and to keep the water from freezing. I therefore confirm the compliance order issued on February 18, 2022 for the birds that were not removed and that remain in the barns. In considering that the CO was issued to protect the birds from the winter elements, I will extend the compliance date to October 31, 2022 to allow the appellant time to make any necessary repairs to the barn exterior cladding to protect the birds, and to add heat sources where necessary to keep them within their thermoneutral zone.

ORDER

90Pursuant to the powers of the Board under s. 38(9) of the Act, I order that:

1. SOA #2 is confirmed in the amount of $1,643.24;
2. SOA #3 is varied as follows:

Transportation Costs, including crate rental	$ 568.50
Boarding Costs	$10,909.14
Veterinary Costs	$ 838.57
Total Costs	$12,316.21

3. The appellant shall pay the amount of $1,643.24 (SOA #2) and $12,316.21 (SOA #3) to the Minister of Finance.
4. The February 18, 2022 compliance order regarding the poultry and waterfowl remaining on the appellant’s property is confirmed. The compliance date is extended to October 31, 2022.

Released: September 23, 2022

__________________________

Susan Clarke, Vice Chair (Acting)

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, S.O. 2019, Chapter 13
2. 2R.S.O. 1990, c. P.33.
3. 3Cole v. The Queen, 1981 CanLii 11 (SCC)
4. 41996 CanLII 449 (ON CA)
5. 5R.S.O. 1990, c. O. 36. This Act was repealed on January 1, 2020.
6. 6Note that 1 chicken was euthanized on February 18th, so only 28 poultry were boarded.
7. 7Note that the two invoices are for separate facilities (different style of invoice).
8. 8Description of services reads “indoor boarding for chickens and rooster”.
9. 9“Monitoring condition as well as foot soaks daily”.
10. 10Description of services includes “monitoring conditions and foot soaks daily”.
11. 11Note – several minor mathematical discrepancies on invoice #10087. The above amounts are the corrected amounts