Appeal under s. 38(1)(2) of the Provincial Animal Welfare Services Act, 2019, SO, 2019, c.13
Between:
Jeannine Rhéaume
Appellant
And
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Stephanie Kepman, Member
Appearances:
For the Appellant: Self represented
For the Respondent: Nicole Driscoll Regional Supervisor, Animal Welfare Services
Interpreter: Isabelle Richard
Court Reporter: Barbara Pollard
Heard by videoconference: April 14, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
The appellant, Jeannine Rhéaume, is the owner of a dog named Choco in Hearst, Ontario. Choco is a small, domestic dog who is currently 14 years old.
On March 24, 2022, at 4:33 PM, Senior Investigator Erin Brûlé issued an Order to the Owner or the Custodian of Animals (“Compliance Order”) for Choco (“animal”), ordering that the appellant have the animal examined by a veterinarian with special attention to dental health, mobility and signs of neurological abnormalities. The Order required the appellant to obtain such treatment no later than March 25, 2022, by 10:00AM.
On March 25, 2022, at 10:21 AM, EB issued a Notice of Removal (“Removal Order”) for the animal, and it was removed from the appellant’s care by the respondent on the basis of non-compliance.
The appellant appealed the Compliance Order and the Notice of Removal in writing, in accordance with section 38(1)(2) the Provincial Animal Welfare Service Act, 2019 (the “Act”).
Since the appellant has not been served with a Statement of Account related to the animal’s care, this issue was not considered.
The issues on appeal were clarified by the appellant, and she stated that the dispute was related to the fairness of the Compliance Order and removal and submitted that the animal should be returned, and the order revoked or varied to allow her more time to make veterinary arrangements to address the animal’s alleged state of distress.
At the time of the hearing, the animal is still in the care of the respondent.
ISSUES
- The issues to be decided by the Board are:
a. Should the Board confirm, revoke or vary the Compliance Order of March 24, 2022, and/or the Removal Order of March 25, 2022?
b. Should the animal be returned to the appellant?
RESULT
I am satisfied that Senior Investigator Erin Brûlé (“EB”) had reasonable grounds to believe that on March 24, 2022, the animal was in distress and that she was acting within her authority to order that the animal receive veterinary treatment within one day pursuant to section 30(1) of the Act. I am further satisfied that this order was reasonable in the circumstances. Furthermore, I order the confirmation of both Orders and will not be varying or revoking them.
I am also satisfied that Senior Investigator Erin Brûlé had reasonable grounds to believe that on March 25, 2022, the animal in question had not received the required care ordered on March 24, 2022, and that the animal was in distress. I am satisfied that she was acting within her authority to remove the animal pursuant to section 31(1)(c) of the Act.
I find that the animal should not be returned to the appellant for the reasons outlined below.
POWERS OF THE BOARD AND THE LAW
Section 30(1) of the Act states that an animal inspector who has reasonable grounds to believe than an animal is in distress and who is able to promptly find the owner/custodian of the animal may order the owner/custodian to take action, in the opinion of the inspector, that is necessary to relieve the animal of its distress, including having the animal examined and treated by a veterinarian at the expense of the owner/custodian.
Section 30(3) of the Act states that the order shall specify the time for the above-mentioned action that the owner/custodian is required to take.
Section 30(4) of the Act states that every person served with an order under section 30 of the Act shall comply with in it in accordance with its terms until the order is modified, confirmed or revoked and shall comply with the order as modified or confirmed.
Section 30(2) of the Act state that the order shall be in writing, have printed or written the information from sections 38(1)(3) and (5) of the Act.
Section 31(1)(c) of the Act states that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress, if an order under section 30 has been made and not been complied with.
Distress is defined in s. 1(1) of the 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.”
Section 38(1) of the Act provides a right of appeal of an order for removal under section 31(1).
Section 38(9) of the Act gives this Board the authority, after a hearing, to:
a. Confirm, revoke or modify an order made under section 30;
b. Order that an animal removed under subsection 31(1) or (2), or that was taken into the Chief Animal Welfare Inspector’s care under subsection 31(6) or 44(8), be returned to the owner or custodian; and
c. Confirm, revoke or vary a statement of account served under s. 35(1).
- The respondent bears the burden of proving, on a balance of probabilities, that the removal of the animal was permitted under the Act.
PRELIMINARY ISSUE
Affidavit of Marie Rhéaume
After the respondent completed its examinations of its witness, it wished to enter an exhibit into evidence, an affidavit of Marie Rhéaume (“MR”), the appellant’s niece. However, I took issue with this request, as the appellant would not be afforded the opportunity to cross-examine MR. I asked for submissions from the parties.
The respondent submitted that MR’s affidavit did not provide information that went above or beyond the evidence already presented by its witnesses. However, it provided information regarding the complaint it had received regarding the appellant. The respondent stated that it did not feel that MR’s testimony was necessary to corroborate its position, but hoped to admit her affidavit, nonetheless.
The appellant also took issue with the fact that MR was not present as a witness and objected to its inclusion as evidence as she agreed with my concerns that she was not given an opportunity to cross-examine the witness.
After considering the submissions of the parties, I did not allow the affidavit into evidence, as it would be unfair to the appellant. In coming to this decision, I relied on section 10.1(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which allows parties at an oral or electronic hearing to call and examine a witness and conduct cross-examination of witnesses at the hearing reasonably required for a full and fair disclosure of all relevant issues. I also relied on the Board’s Common Rules of Practice and Procedure, October, 2017, (“Rules”) specifically Rule 9.2. Rule 9.2 states that a party shall disclose a list of witnesses whom the party may call to give evidence. In this case, the respondent identified at the Case Conference that MR would be testifying. However, as the respondent chose to rely on an affidavit from MR, the respondent did not allow the appellant to plan or determine if she required a cross-examination from MR or if this could be done in writing. Therefore, MR’s affidavit shall not be admitted into evidence.
EVIDENCE AND ANALYSIS
Respondent’s Evidence
Senior Investigator Erin Brûlé (“EB”) testified that she first became involved with the appellant and her animal on March 23, 2022, when a call came into her local dispatch centre. The call reported that the appellant’s animal was dealing with dental issues, potential infection and abscess on the animal’s face, mobility issues and low energy and the caller expressed concern for the animal.
Based on this call, EB attended the applicant’s home on March 24, 2022, with Inspector E. Jensen. EB testified that when she attended the appellant’s home, she offered the appellant services in either English or French and the appellant chose to proceed in English. EB stated that the appellant fully understood EB’s communications in English.
EB testified that when she first saw the animal walking in a hallway outside the appellant’s home, EB noted a “bad smell that smelled like rot”. EB also observed what she though was muscle wasting in the animal’s thigh, mobility concerns, unsteady walking, debris in the animal’s ears, and build up in his teeth which was blackened and appeared to be rotting. EB also commented on the fact that the animal had swelling on the side of its face which she believed to be an abscess, based on the pus and overwhelming odor coming from the animal’s mouth and that the animal was pacing in circles, which EB believed to be a symptom of a neurological issue.
EB believed that as a result of the animal’s health, the animal was suffering from a long-term infection and at risk of sepsis and death. EB contacted Veterinarian Dr. Carla Mascioli, on March 24, 2022, to discuss her observations regarding the animal. EB described her observations to Dr. Mascioli. EB also stated that she believed the animal needed urgent veterinary care due to its overall body condition and that she thought the animal had not received care “in a while”, as the appellant was unable to provide EB with the date of the animal’s last appointment. EB believed that the animal’s conditions had developed over several months or years due to the serious nature of the animal’s health.
EB stated that she and Dr. Mascioli discussed a “timeline” for the animal to receive this urgent veterinary care, while also providing the appellant a reasonable amount of time to address the urgent issues the animal was facing.
EB also testified that her concerns and observations were communicated to the appellant to make sure that the animal received the urgent care EB believed the animal required.
Based on this, EB served the appellant with the Compliance Order, which ordered the appellant to have the animal examined by a veterinarian no later than March 25, 2022, at 10:00 AM. Though EB was aware that this timeline did not provide the appellant with much time to obtain care for the animal, she submitted that based on her observations of the animal, it required urgent care as soon as possible. As the applicant lives in Hearst, Ontario, EB stated it would not be fair for her to be obliged to attend her veterinarian immediately, as it was nearly 5:00PM when the Compliance Order was issued.
However, since the Compliance Order was issued on a Thursday, EB expressed concerns for the animal receiving care after the weekend, as most veterinarian clinics are closed on weekends. EB stated that she believed the appellant had ample time to contact her local veterinarian in either Hearst or Kapuskasing to book an appointment and travel. Furthermore, EB expressed she did not think it would be appropriate to wait beyond March 25, 2022, as Dr. Mascioli supported removing the animal immediately based on EB’s finding of March 24, 2022. After some discussion, Dr. Mascioli agreed that giving the appellant until 10:00AM on March 25, 2022, would be more appropriate because of her location.
EB stated that when the appellant received the Compliance Order, she spoke of her financial constraints and that she believed the animal was well, did not require urgent veterinary care and was not in distress.
EB referred the Board to R. v. Ryder, 1997,1 a criminal matter before the Ontario Court of Justice in which an accused was charged with failing to provide suitable and adequate care for his animals. In this matter, the Court found that the argument that he could not afford to obtain veterinary care was not a defence to wilfully neglecting to provide suitable and adequate care. EB also submitted that the Act does not anywhere provide owners with a defence for failing to provide medical care for animals in distress due to financial constraints.
EB was also aware that the appellant could seek veterinary care for the animal in either Kapuskasing, which is approximately 1 hour away from the appellant’s home, or reach out to the veterinarian who visited Heart weekly. EB also stated that the Kapuskasing clinic was open twenty-four hours a day, as it operates as an emergency animal clinic. Based on this, EB submitted that the appellant could have contacted the clinic at any point from 5:00 PM on the 24th of March 2022 until 10:00 AM on the 25th of March 2022, to arrange care for the animal.
On March 25, 2022, EB, accompanied by Inspector Jensen and two members of the Ontario Provincial Police (“OPP”) visited the appellant’s home at approximately 10:00 AM to follow up on the Compliance Order. Upon speaking to the appellant, EB was informed that the appellant had contacted a veterinarian to seek care for the animal, but no appointment was made as the appellant lacked the financial means pay for the care. EB again observed the animal’s health issues including its odor and mobility issues. EB believed that the animal showed no signs of improvement and possible deterioration since she visited the day before.
As a result, EB removed the animal from the appellant’s home and issued the Notice of Removal to the Owner or Custodian of Animal at 10:21AM, as she believed the animal was still in distress. EB submitted that the animal needed immediate medical attention and that the only way to address this would be by removing the animal from the appellant’s home to obtain prompt veterinary care.
EB testified that the animal was then taken to the Timmins Humane Society Veterinary Clinic to be seen by Dr. Mascioli. EB took photos of the animal there, which showed extensive black debris in the animal’s ears, widespread black build-up on the animal’s teeth, swelling in the left side of the animal’s face, and blood and pus dripping out of the animal’s mouth. EB expressed that she believed the animal was in pain and suffering on March 24, 2022 and would continue to suffer had she not intervened.
Expert witness Dr. Mascioli confirmed that she first became aware of the animal on March 24, 2022, when EB contacted her regarding the animal’s mouth and possible neurological issues. Based on EB’s observations, Dr. Mascioli stated she would have preferred to assess the animal that same day, but based on EB’s comments regarding the appellant’s location, Dr. Mascioli felt it would be acceptable for the appellant to be given twenty-four hours to obtain care; she emphasized that EB’s observations of the animal related to the animal’s wide stance, circling and pacing could be signs of neurological symptoms such as a stroke or a septic embolite moving to the animal’s brain. Based on this, EB opined that the animal was in acute distress and needed to be removed from the appellant’s care.
Dr. Mascioli testified that she first examined the animal on March 25, 2022, at the Timmins Humane Society Veterinary Clinic immediately after its removal from the appellant. Dr. Mascioli stated that she could not stress enough how intense and overpowering the smell of rot and decay coming from the animal’s mouth was. She said this odor filled the room where she examined the animal. Dr. Mascioli also observed the animal had neurological issues, as its hind legs were spread, and it had bilateral, moderate ear infections, which may have caused the neurological issues.
Upon investigating the animal’s mouth, Dr. Mascioli observed what she described as the most severe case of periodontal issues in an animal she had ever seen, which she suspected contributed to the animal’s weight loss. Dr. Mascioli found pus in the animal’s mouth as a result of its periodontal issues.
Dr. Mascioli considered the animal’s quality of life as terrible and expressed that the appellant neglected the animal in allowing it to degrade to this state of health, and that the animal was in distress following its removal.
Dr. Mascioli opined that the removal of the animal was reasonable and required, based on its severe dental and neurological issues and that the only means to alleviate this distress was to bring the animal to receive veterinary care within twenty-four hours of EB’s observations.
Dr. Mascioli was aware that the appellant lived in Hearst and had financial constraints but stated that this reasoning was not a valid argument to neglect the animal; she explained that the appellant had years to address the animal’s dental issues and chose not to do so. She also believed that the appellant could have reached out to her support network or a community rescue group to obtain assistance.
Dr. Mascioli opined that the Compliance Order of March 24, 2022 was reasonable and that ideally, she would have liked to examine the animal even sooner than what was ordered. She felt that the animal required immediate medical attention due to being in distress for years. She clarified that though the animal’s neurological issues could have come on suddenly, its mouth issues were chronic, severe and had been neglected for several years. Dr. Mascioli stated that the animal’s mouth issues ought to have been noticed based on the abnormal, black debris in its mouth, excessive drool and overpowering smell.
After examining the animal, Dr. Mascioli proceeded with a treatment plan focusing on relieving the animal’s pain and infections so that it could eventually have oral surgery. After the animal was treated with antibiotics to address its ear infections, it underwent dental surgery on March 31, 2022, where eighteen of its teeth were removed due to rot and infection. Dr. Mascioli stated that the animal had already lost nineteen of its teeth over the years, which she opined was not normal and was due only to rot and infection. The animal now lives with 5 remaining teeth.
Dr. Mascioli took photos of the animal’s teeth on March 31, 2022, prior to dental surgery. The photos showed intense plaque build up on most if not all of the animal’s teeth. The photos also showed black rot on most of the animal’s teeth. Dr. Mascioli also presented a photo of the animal’s jaw, showing a hole in its jaw to the nasal cavity, due to chronic infection. Dr. Mascioli felt this hole put the animal at risk of having food from its mouth go into its nasal cavity and its lungs, which could lead to aspiration or pneumonia. Dr. Mascioli clarified that the animal was still taking antibiotics on the day of the hearing to address this.
Post-surgery, Dr. Mascioli confirmed that the animal is currently in foster care and regularly attends telemedicine consults, as the animal has required intensive, nearly daily care. Dr. Mascioli testified that the animal’s medical state has improved since she first examined it; she reported that the animal’s neurological symptoms have improved, and it no longer paces, and its ear infections had improved and were being resolved. The animal also had an improved appetite, and was being fed a special, soft food diet in light of his dental issues and surgery.
Dr. Mascioli expressed that the animal could continue living a long, comfortable life, so long as it was provided with the care it required. She stated that the animal’s issues, namely related to its teeth were entirely preventable and could have been addressed by taking the animal for a dental cleaning at its veterinarian.
In terms of the animal’s future treatment, Dr. Mascioli testified that the animal will require a second surgery with a veterinary speciality to build a mucosal flap and fix the hole in the animal’s jaw. However, she noted that the animal would require continued veterinary care in the future to ensure that his dental issues are addressed and cared for.
Dr. Mascioli expressed that had the animal not been removed from the appellant’s care, it would have continued its decline in health and probably had a painful death or would suffer to the point of becoming recumbent or so septic that it would become unresponsive and require euthanization.
Dr. Mascioli stated that that the animal could not be returned to the appellant as of the day of the hearing, because the animal was still in distress and receiving treatment. However, once the animal’s medical issues were fully resolved, the animal could be returned.
Appellant’s Evidence
The appellant provided a historical background for the animal coming into her care. She testified regarding her personal struggles and how she ended up living in Hearst.
The appellant agreed that she is the owner of the animal in dispute and did not contest the observations and evidence of the respondent. Instead, the focus of her appeal was the limited time she was provided by EB to obtain veterinary care for the animal. She submitted that as a result of supporting herself through Ontario Works (“OW”), she had difficulty getting the animal care and ought to have been given more time to do so. During the hearing, the appellant admitted that she would be unable to provide the proper care for the animal due to her limited financial means and would be forfeiting the animal.
The appellant was asked when the animal began experiencing dental issues, which she submitted occurred on May 12, 2015. She testified that she brought the animal and another animal, who subsequently died, to the veterinarian; the veterinarian found the subject animal needed a dental cleaning and estimated it would cost $600.00 per animal. The appellant submitted that since this amounted to her monthly OW payment, she could not afford it. She also took issue with the fact that her veterinarian refused to accept payment plans and required full payment upfront.
The appellant stated that after her 2015 veterinarian appointment, she tried to see if she could touch the animal’s mouth to wipe its mouth, but the animal refused and growled at the appellant. The appellant then gave the animal milk bones, as suggested by the veterinarian. She also was given a water additive to assist with dental care by her neighbour.
She stated that the last time she brought the animal for veterinary care was on October 2, 2018, to treat an in-grown nail. She testified that she had not returned for veterinary care because she had to babysit her grandson daily and had no extra money for such.
The appellant testified that on March 24, 2022, she was babysitting children across the hall from her home, when EB arrived at her door. She stated that she was aware of the reason for EB’s visit as soon as she saw her, as the appellant’s niece had previously expressed concern for the animal’s health and offered to take the appellant and her animal to the veterinary clinic.
When EB received the Compliance Order on March 24, 2022, she stated that she did not understand it because she was nervous about the children she was babysitting either locking her out or overhearing what was going on. The appellant submitted she chose to proceed in English to ensure that the French-speaking children did not fully understand.
However, upon cross-examination, the appellant clarified that she did not think about or fully understand the Compliance Order when she received it, as she was more concerned with caring for the above-mentioned children. However, after the appellant finished work and was given time to review the Compliance Order, she confirmed that she understood the document.
The appellant expressed that the Compliance Order was unfair because it did not afford the appellant sufficient time to obtain care for the animal. She submitted that she was babysitting until 5:20PM, and as many veterinary clinics close at 5:00 PM, she was unable to obtain care for the animal on March 24, 2022. She also took issue with EB refusing to return with the Compliance Order after 5:20PM, after the appellant was done work.
Instead, the appellant submitted that she should have been given until March 28, 2022, to seek medical care for the animal, as there were no veterinarians that she could visit within the time given by the respondent.
In terms of EB’s observations, the appellant stated she was aware of the smell in the animal’s mouth but did not feel it required veterinary care. She testified that the smell began during COVID and was noted by friends and family, who suggested she bring the animal to a veterinarian. However, the appellant said when she called her veterinarian, they required her to pay for her services up front, so she could not obtain them. As for getting help from family and friends, the appellant testified she could not nor had asked her family for financial help, as she already owed them money.
The appellant’s sister, Gisèle Chouinard (“GC”) was called as a witness for the appellant. She testified that she was aware of the smell emanating from the animal starting sometime around the beginning of the pandemic. She agreed that the smell was overwhelming and that the animal required emergency care. However, she added that due to COVID, it was difficult to obtain veterinary care, as veterinary clinics were asking for payment upfront. She confirmed that her sister experienced financial difficulties and that no one in their family would be able to lend the appellant money for the animal’s care. However, she also noted that the animal refused to allow its mouth to be touched.
I asked the appellant when she had anticipated taking the animal for care, had the animal not been subject to the Removal Order. She submitted that she had to wait until she was paid, on March 31, 2022, or 5 days later. She confirmed that she had not actually scheduled this appointment, as she wanted to get paid first and know how much money she actually had before doing so. The appellant submitted that she requested that EB send her copies of the animal’s diagnosis to obtain a second opinion regarding the animal’s health.
GC testified that on March 25, 2022, she came over to the appellant’s home at approximately 8:30 A.M. and was present when the appellant called her veterinarian between 9:00 and 10:00 AM. GC asked the appellant to put the veterinarian on speaker phone to assist the appellant with communication. GC said she and her sister were told that the veterinarian was unable to examine the animal before March 28th, 2022, in the afternoon. However, GC later clarified that had she or the appellant had the financial means, the animal could have been seen before March 28th, 2022. However, the appellant and GC were unable to afford the $100.00 veterinary fee before the animal’s appointment scheduled for March 28th, 2022.
GC stated that EB was provided with information regarding the animal’s veterinary appointment and asked that the appellant be allowed to keep in the animal in her care until then. GC explained that she would be paid on the 28th, which would provider her with the financial means to lend the appellant money to have the animal euthanized.
In terms of the removal of the animal, the appellant testified that she and GC were present on March 25, 2022, when EB returned with Inspector Jensen and two members of the OPP. She confirmed that she had not complied with the Compliance Order and contacted EB later that day to obtain follow-up information about the animal.
GC acknowledged that when the animal was removed, its health issues were serious due to his mouth condition. GC also denied that the appellant was aware of the animal’s neurological issues.
The appellant admitted that she was no longer able to care for the animal but expressed her wishes to see him before he dies or is adopted. She submitted that she was prepared to give up the animal but could not afford to pay the Statement of Account. I clarified for the appellant that since the Statement of Account was not before me, I could not address it.
However, during the hearing, I communicated to the appellant that the issue of the Statement of Account could be appealed to the Board when she received it.
I do, however, note that the inspector did not provide the appellant with the option of euthanasia, and I query whether it is reasonable to assume that any care provided beyond euthanasia should be borne by the appellant when she clearly cannot afford it. However, the appellant never communicated this position to EB during the issuance of the Compliance or Removal Order and did not try to negotiate such.
The appellant also expressed this concern. She submitted that had the respondent provided her with photos of the extent of the animal’s health issues prior to the hearing, she would have had the animal euthanized, as she was not aware of it. During the hearing, she conceded that she would be forfeiting her animal, as she was unable to provide the animal with the proper care it required.
The appellant also made submissions regarding her struggles to obtain information regarding support services available for animals and their care. She submitted that as she lived in the smaller town of Hearst, she lacked access to information regarding animal care, which she argued would have been available to her had she lived in a larger city, like Kapuskasing. She expressed that she had wished she had been provided the information regarding her local rescue, veterinarian, the Act, and foster care options for the animal. When probing this statement, the appellant testified that she felt comfortable using the internet, as she had taken a secretary course “a while ago.”
Should the Board confirm, revoke or vary the Order of Compliance of March 24, 2022 and/or the Order of Removal of March 25, 2022?
After considering the evidence presented by the parties on a balance of probabilities, I find that the Compliance Order of March 24 was warranted, as the animal was in distress. I also find that the timeline set by Senior Investigator Brûlé was reasonable due to the serious and urgent care the animal required.
My conclusion is based on the evidence presented by EB and Dr. Mascioli, which I accepted. As submitted by the respondent, EB’s observations and concerns about the health of the animal were confirmed by Dr. Mascioli and required immediate attention, which could not be delayed until the requested time of March 28, 2022. Had the animal’s care been delayed, based on a balance of probabilities, its distress would only have increased. However, this position had not been communicated to EB or the respondent prior to the hearing.
I also find that the removal of the animal on March 25, 2022, was warranted, as EB’s observations were that the animal required immediate medical care, and the appellant had failed to provide it with that care within the timeline set in the Compliance Order. Pursuant to s. 31(1)(c) of the Act, EB was authorized to remove the animal in such circumstances.
In terms of the respondent’s submissions regarding R. v. Ryder, 1997,2, I noted that the Act already provides an offences section, which the respondent chose not to pursue. Therefore, I found this position less persuasive, as criminal jurisprudence did not fit within the scope of this hearing.
Should the animal be returned to the appellant?
- Given that the appellant is no longer seeking the return of her animal and has forfeited it, I have no basis to order its return.
ORDER
For the reasons above, the Board orders as follows:
The appeal is denied and the Order of Compliance and Removal are confirmed, pursuant to sections 30(1) and 31(1) of the Act.
Released: May 18, 2022
Stephanie Kepman, Vice Chair