Tribunals Ontario
Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux
Appeal under s. 38 (1) and 38(2) of the Provincial Animal Welfare Services Act, R.S.O., 2019, c.13
Samara Flaro Appellant
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Adjudicator: Harriet Lewis, Member
Appearances:
For the Appellant: Adrian Touchette, Counsel For the Respondent: Adrien Iafrate, Counsel
Held by videoconference: December 13, 14, 15, 2021
BACKGROUND
1Samara Floro (the appellant), has appealed the removal on October 26, 2021, of eleven intact dogs, (2 males, 6 females and 3 puppies), 1 domestic kitten and 1 rabbit from her residential premises (the premises). The premises, in a small community in Northumberland County, Ontario, consists of a house and surrounding yard.
2The appellant admits to carrying on the business of breeding and selling dogs from the premises without a kennel licence.
3The removal was the culmination of dealings between the parties beginning in or around December 2019. These included a previous inspection under warrant, the issuance of several compliance orders and an earlier removal of another one of the appellant’s dogs. The inspection and removals that are the subject of this appeal were precipitated by a complaint by a neighbor who witnessed and video-recorded what appeared to be the appellant yelling at and beating a male golden retriever with a stick.
4On the morning of the animals’ removal, the appellant was not at home. Animal Welfare Services (AWS), led by Senior Investigator, Inspector Renee Baker, carried out an inspection in the appellant’s absence pursuant to a warrant, assisted by Inspector Lori Lamb and two Ontario Provincial Police officers. Dr. Bruce Robertson, a licensed veterinarian, attended the inspection by telephone. The animals were determined to be in distress necessitating their removal and Dr. Robertson issued a Certificate of Removal (the certificate).
5The animals were removed and relocated to the Kingston Humane Society where they were further assessed and were provided with necessaries to relieve their distress.
6The appellant did not return to the premises prior to the completion of the removal. A Notice of Removal under section 31(1) of the Provincial Animal Welfare Services Act, 2019 (the Act) was served by AWS on the absent appellant by leaving a copy of the removal notice in the premises.
7An initial Statement of Account (the first account) for $3,224.61 for the care and housing of the animals was served on the appellant on October 28, 2021. At the outset of the hearing, counsel for AWS advised the Board that a second Statement of Account, in the amount of $12,231.52 and dated November 19, 2021, (the second account), had been served on the appellant for the animals’ continued care. No additional appeal had been filed in respect to that account.
8During the course of the hearing the Board was advised that subsequent to the filing of the appeal but before this hearing, the Chief Animal Welfare Inspector had served notice on the appellant of his decision to keep all of the appellant’s animals in his care pursuant to s. 31(6) of the Act. As of the date of the hearing that decision had not been appealed.
9The appellant denies that the animals were in distress at the time of their removal. In her Notice of Appeal dated October 29, 2021, she asks for the return of the animals and the “rescinding of any bills associated with their care”.
10At the outset and at another point in the hearing each counsel raised some issues that had not been part of their filed materials. In the section immediately below, I have addressed those issues.
ANCILLARY ISSUES:
Forfeiture of the animals to the Crown:
11At the outset of the hearing of this matter, counsel for the AWS advised the Board that the appellant had been served with the second account but had not filed a second Notice of Appeal in respect thereto. The time for appealing the second account had since elapsed. He argued that because no payment had been made, nor had any agreement been made to extend the time for payment of the second account, the animals should be considered forfeited to the Crown pursuant to s. 35 (4) of the Act.
12No Notice of Motion was served or filed asking the Board to decide whether there had been a forfeiture of the animals at law, nor to cancel or adjourn the hearing.
13The appellant does not dispute the receipt of the second account, but submits that it was understood that further accounts would likely be forthcoming and that any and all were in dispute by virtue of her position that the animals were not in distress, that their removal was not warranted and therefore any accounts rendered for necessaries or care of the animals were invalid and should be revoked.
14The Notice of Appeal is clear in stating that the appellant asks for the “rescinding of any bills associated with their care”. That wording indicates an intention that her appeal encompass the second and any subsequent statements of account. Despite being asked to do so by respondent’s counsel, I declined to consider whether a forfeiture would result as a matter of law, if a new Notice of Appeal was not filed in respect to a further, unpaid account in these circumstances.
15The main issue in this matter is the validity of the removal of the animals for distress. The validity of both or any subsequent accounts depends on the Board’s decision on that issue. I proceeded with the hearing on that basis.
Was the warrant properly carried out in accordance with its terms?
16A further threshold issue was raised by counsel for the appellant during the cross-examination of Inspector Baker. The appellant maintained that the entry under warrant issued to Inspector Baker, Inspector Lamb, and Dr. Robertson was not carried out in accordance with its terms. That ground was not set out in the Notice of Appeal.
17The appellant took the position, and later argued, that because Dr. Robertson was not present in person at the entry under warrant, the entry was invalid and therefore the removal was invalid.
18The warrant included a paragraph which reads “The warrant is subject to the following additional conditions”’ Listed separately in that section are the words: ”veterinarian and other inspectors from Animal Welfare services”, “use of digital and/or videography”, “police officer(s) to attend”.
19It was not disputed that no veterinarian attended at the premises “in person” on the date of removal or that Dr. Robertson attended “virtually”.
20Inspector Baker testified that the “in person” presence of a veterinarian was not a requirement of the warrant and the words on the warrant did not mean that it was required. She said that she had asked for the inclusion of each of these items on the warrant to enable the un-named persons listed to enter the appellant’s home if needed and to authorize the collection of evidence by electronic means. She said that the additional language was intended to be permissive, not mandatory.
21It is not within the jurisdiction of this Board to determine the validity of a warrant. That is not to say that it is not within the Board’s jurisdiction to interpret the warrant’s terms. However, since I have no evidence or argument from either side as to the meaning of “conditions” in a warrant, the only basis on which I have considered this issue is the testimony of Inspector Baker as to what was intended by that language. I find both the witness and the explanation credible given the nature of the wording and the other evidence presented by the respondent about the entry. I therefore find that the entry authorized by the warrant was properly carried out.
ISSUES TO BE DECIDED
22The issues to be decided by the Board are as follows:
a. Were the animals in distress and in need of necessaries to relieve their distress at the time of their removal?
b. Can the animals be returned to the appellant?
c. Should the Board confirm, revoke, or vary the statement(s) of account of October 28 and November 19, 2021.
RESULT
23For the reasons which follow I find that the appellant’s animals were in distress and the removal of her eleven dogs, one kitten and one rabbit was necessary to provide the animals with necessaries to relieve their distress. The Statements of Account of October 26 and November 19, 2021 are confirmed. Based on the evidence before me I decline to order the return of the animals.
LAW
24Section 28 of the Act provides for an animal welfare inspector to enter and search a place with the consent of the owner (s.s.28(1)) or with a warrant, (s.-s. 28(2)) , if the inspector believes that there are reasonable grounds to believe “that an animal in distress is to be found there”.
25Section 31(1)(a) gives an animal welfare inspector the power to remove an animal in distress from a place for the “purposes of providing it with necessaries to relieve its distress” if, among other things, “a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal”.
26Distress is defined in s. 1(1) as “a 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. ” Ontario Regulation 444/19 addresses in some detail the basic standards of care for all animals kept in Ontario (s.3,) as well as for dogs that live outdoors (s. 4).
27Section 35 of the Act provides that when an animal is removed for distress and necessaries are provided to relieve that distress, the Chief Animal Welfare Inspector may “from time to time “ serve on the owner, accounts for the cost of the necessaries.
28Section 38(1) provides an owner with a right of appeal to the Board a decision of an animal inspector to remove an animal. Section 38(2) allows appeals of statements of account. Section 38(4) provides for an application to have an animal returned.
29Section 38(9) of the Act gives the Board authority after a hearing to order the return of an animal that has been removed (38(9) 2), and confirm, revoke or vary a statement of account. (38(9) 3).
30The respondent has the burden of showing that the animals were in distress and the appellant bears the onus of showing that the accounts should be revoked or varied.
EVIDENCE AND ANALYSIS
31The appellant testified, as did one of her friends, Mr. Anthony Samuels. She also filed as exhibits, photographs of the packages of the brands of food she said were provided to her animals, some veterinary receipts from 2019 and 2020, photographs taken of the dog toys available at her premises and several written character references.
32AWS called the two inspectors assigned to the case: Inspector Baker and Inspector Lamb; as well as the two veterinarians involved, Bruce Robertson DVM who issued the Certificate of Removal and Heather Melinyshyn, DVM, who examined the animals after their removal and relocation to the Kingston Humane Society. AWS also filed as exhibits, the warrant for entry to the premises, the certificate of removal, written reports from the veterinarians, inspectors will says and case notes, a video taken by a neighbour, numerous pictures of the animals and their conditions taken on the date of their removal and.one additional video.
33The parties agreed that witnesses would be excluded from the hearing until they had provided their evidence and I so ordered.
Were the animals in distress at the time of their removal?
The events leading up to the inspection and the validity of the veterinary certificate
34Inspector Baker and Inspector Lamb testified about the entry to the appellant’s premises, the examination of the animals and the creation and issuing by Dr. Robertson of the veterinarian’s certificate for removal. Dr. Robertson also testified to the examination of the animals prior to their removal and to issuing the Certificate of Removal.
35Inspector Baker was the lead AWS investigator in this matter. She has many years experience as an animal welfare officer including a wide variety of assignments during her thirteen years with the Ontario Society for Prevention of Cruelty to Animals (OSPCA) and two years with AWS in her current capacity.
36Inspector Lamb is a certified veterinary assistant and an experienced animal welfare officer, having been with the OSPCA for five years prior to joining AWS in March 2021. She has taught animal handling at St. Lawrence College. Since joining AWS, Inspector Lamb has been involved with the appellant and her animals.
37Dr. Bruce Robertson is a veterinarian with many years of experience both in veterinary practice and in forensic veterinary medicine. He is a recognized expert in shelter medicine and has testified in numerous animal welfare cases. His detailed credentials as an expert witness were tendered in evidence and accepted without question by the appellant.
38By way of background for the detailed evidence about the removal of the animals, Inspector Baker estimated that since December 2019, she has had approximately 25 conversations with the appellant and attended at the appellant’s premises approximately 20 times. She is aware that although the appellant is not a licenced breeder, she breeds and sells dogs, both golden retrievers and dachshunds, which are advertised for sale on social media.
39On one earlier occasion on which she had visited the premises she entered the house on a warrant when the appellant was present. At that time, she noticed several dogs housed inside in small travel crates. She was told by the appellant that they were being housed in that manner because the house was cleaned and prepared for sale.
40Investigator Baker has had multiple ongoing concerns about the appellant’s care and treatment of her dogs, including their physical condition and the poor standards in which they have been kept, including the need for proper spacing, bedding, and whelping areas and ongoing and emergency medical care. Inspector Baker also had concerns about some physical abuse. For example, she was aware that one of the appellant’s retrievers died after the appellant had pumped its stomach. Inspector Baker had issued multiple compliance orders with respect to these issues. Her concern culminated with receipt of a complaint from a neighbour of the appellant who alleged that she had witnessed the appellant abusing her animals The neighbour took a video of the appellant yelling at and apparently using a stick to strike one of her dogs (identified later as a male retriever, Marlow). That video was entered as an exhibit and confirmed the neighbour’s observations. Inspector Baker also testified that the same neighbour also reported seeing the appellant strike another dog in the face on different occasion in mid-October, not long before the removal.
41After the report of the October incident, and after reviewing the neighbour’s video and forwarding it to Dr. Robertson for his review, Inspector Baker applied for and obtained the October 25, 2021 warrant to inspect the appellant’s residence.
42The warrant provided authority for Inspectors Baker and Lamb and Dr. Robertson to enter the premises. I addition, it provided for the entry of “a veterinarian, other AWS inspectors and police officers”.
43On October 26, 2021 at 10:26 a.m., Inspector Baker attended the premises with Inspector Lamb and two OPP officers. As she described it, prior to entering the house, an officer knocked on the door. After calling the appellant’s name and hearing no response she, Inspector Lamb and one of the officers entered the building. The evidence of Inspector Baker and Inspector Lamb about the entry was consistent in all material respects.
44Before examining each animal in detail, the party did a “walkthrough” of the main floor to confirm that the appellant was not present and to assess the situation.
45Inspector Lamb testified that Dr. Robertson was aware of the execution of the warrant and was expecting to examine the appellant’s animals by video. After the initial walkthrough Inspector Baker placed a video call to Dr. Robertson. Although she did not reach him on that call, Dr. Robertson quickly called back. As the examination of the animals and the premises began, the video reception was so poor that Inspector Baker and Dr. Robertson decided to proceed with Dr. Robertson’s analysis of the condition of the animals by telephone (audio), only.
46In their testimony, as elaborated on below, Inspector Baker, Inspector Lamb and Dr. Robertson described the examination of each animal in detail. Photographs were taken showing the circumstances in which each animal was being kept. Some were in crates and some not. Inspector Lamb removed the crated animals to assess their condition and details of the condition of each animal were conveyed to Dr. Robertson, who asked questions and took notes of what was conveyed. Based on these descriptions and the video of Marlow taken by the neighbour, Dr. Robertson formed the opinion that all of the appellant’s animals were in various states and circumstances of distress and should be removed and relocated for the purpose of providing them with necessaries to relieve their distress. .
47Following the inspection, Inspector Baker drafted the veterinarians certificate authorizing removal and forwarded it to Dr. Robertson who signed it, scanned it, and returned it to her at 11:25 a.m. She created a removal order for the animals and prior to leaving the premises, left a copy of each on a table in the living room. The appellant had not yet returned to the premises.
48On cross examination Inspector Baker agreed that some of the animals were removed from the house to a vehicle shortly before receiving Dr. Robertson’s certificate. However, both she and Inspector Lamb confirmed that none were removed from the premises before the certificate was received. Investigator Lamb testified that because there were so many animals, she had had to contact another two inspectors just before noon, who came and assisted with the removal and transport of the animals to the Kingston Humane Society.
49Dr. Robertson was cross examined on the validity of his certificate particularly because he had not attended the removal in person, nor seen any of the animals by video on the date of removal. He explained that he had attended the premises on a previous inspection and was familiar with the animals and the outside of the premises. He also had reviewed the video of Marlow being struck by the appellant prior to the issuance of the warrant, and when shown it again during his testimony, he confirmed his assessment that the dog was being physically abused and was to be removed on the that basis.
50Dr. Robertson testified that it is now common practice for him and other veterinarians to engage in “telemedicine”. Since the COVID 19 pandemic the College of Veterinarians has approved its members doing examinations, making diagnoses, and dispensing medication based on both audio and video consultations. He has done so before and the practice is generally viewed as acceptable. His forensic practice now covers the whole province as he is often unable to attend in person in each instance.
51In this case, the information provided to him in respect to the condition of each animal was very detailed. Much of it was provided by Inspector Lamb in whose observations Dr. Robertson had complete confidence, having worked with her previously. He had had the opportunity to ask the inspectors questions and to make notes of their observations. Given the totality of the evidence as he heard it, he formed the opinion that the animals were in distress, that further compliance orders were not sufficient to alleviate the distress, and that the animals should be removed to alleviate their distress.
The inspection and condition of the animals
52Inspector Baker, Inspector Lamb and Dr. Robertson testified in detail about the circumstances and condition in which each of the animals was found in the premises. Dr. Melinyshyn the veterinarian for the Kingston Humane Society, examined them shortly after they arrived there after their removal. The animals were identified in some of the testimony by their given names, and in other cases, by examination order or file numbers. The photos taken of each of the animals at the premises and at the shelter were produced as exhibits in evidence. In summary, the evidence about their distress was as follows. (listed in order of their examination at the premises)
i. Animal #1: (Scarlett) 8-9 month old female retriever. Housed in a small travel carrier behind the front door, too small to be able to stand, turn or move. No bedding. Container floor and dog both wet and soaked in urine. No water in crate, emaciated condition.
ii. Animal #2: (Benson) Long haired male dachshund. Housed in a small cat carrier in the living room to the right of the front door. Carrier set on top of wire crate; no water, no bedding, dog soaked (possibly bathed) and shaking. Food but no water.
iii. Animal #3:(Paisley), Small red female dachshund in small cat carrier, piled on top of wire carrier, no room to turn, no bedding or water, small empty food dish noted, urine pooled in the bottom of carrier.
iv. Animal #4 (Justice), Blue dapple female dachshund in wire crate on which the previous two carriers were piled. No bedding, food, or water.
v. Animal #5: (Lily), Blue dapple female dachshund in second wire crate. Feces on the bottom, no bedding, food, or water.
vi. Animal #6 (Porche). Female retriever enclosed inside a narrow gated-off area next to a chest freezer. No room to lie down comfortably, no bedding, no water or food.
vii. Animal #7: (Skylar). Female retriever tied to the handle of the back door with approximately 3 feet of leash available for movement. Couldn’t lie down without collar pulling tight around her neck. Had been subject to a previous compliance order requiring a veterinarian “re-check”.
viii. Animal #8: Black Lionhead rabbit in a small cage, in a bedroom to the right of the kitchen, no hay or water dish. Small, empty, “hamster type” water bottle beside the carrier.
ix. Animal #9: Small domestic kitten in the bathroom. Poor air quality, (bad smell), no food or drinkable water, clean litter box.
x. Animal # 10: Male retriever, (Marlow). observed in video to have been beaten. Tied outside on a “makeshift chain” to a “Dogloo”. Area very muddy.
xi. Animals # 9, 10, 11: Three retriever puppies found in a dark basement. Not previously known to the AWS. No light switch found; no natural light observed. All in one very small crate, unable to move, covered in feces and urine, emaciated, no food or water. Ammonia in area tested between 20 and 30 parts per million.
53Inspector Lamb testified to the particular concern the inspectors felt at the circumstances and condition of the puppies. They discovered them when, almost as an afterthought, they checked the basement. Since they could not locate a light switch, they had to look through the basement using a flashlight. A description of the area in which the puppies were found included not only darkness and the strong presence of a toxic level of ammonia in the air, but also a three-foot pile of “urine soaked” newspapers near the basement steps. The puppies were fearful of leaving their crate and had to be carried out of the basement. When placed on the wet sidewalk outside, they were so thirsty that they attempted to lap up water from the sidewalk. Put into evidence as an exhibit was a video taken by the Inspector Lamb showing the puppies fervently lapping up the water she gave them shortly afterwards.
54The distressed state of the animals was confirmed by Dr. Melinyshyn, the attending veterinarian at the Kingston Humane Society. Dr. Melinyshyn was accepted as an expert witness. She had examined each of the animals and entered summaries of their examination into evidence. The animals’ medical charts identified them by number. She testified first to the state of each of the retrievers, then the dachshunds, then the kitten and rabbit. She said that most had a mild fever when they arrived at the shelter, attributable to infection or stress.
55The documentary evidence Dr. Melinyshyn provided was very detailed and included the results of blood and other tests as well as progress reports on the condition of the animals from the date of their arrival. On intake she found five of the dogs “emaciated “, (scoring a 1 on the Body Mass Index “BME”, where 9 is obese and 1 is emaciated), five “thin” (2 on the BME), and one, (Marlow) within the low “normal” range (3 on the BME). Blood tests showed that each had deficiencies that would indicate “prolonged starvation” or “malnutrition, including anemia”. Several had overgrown nails and some of the retrievers and the dachshunds had “bilateral carpal hyperextension”, (i.e. flexed wrists, h Dr. Robertson had said could be genetic, or result from malnutrition or poor housing with not enough movement). Most smelled strongly of urine or feces. One had obvious “urine scalding” on her ears. More than one had urine and feces in their fur and collar. At least one had feces in her teeth. All had some tartar build up which was unusual for the age of the younger dogs. One of them, (Skylar) was identified as being stressed which was detected from blood tests. She had a scar above her right eye and an abrasion on the top of her nose from what appeared to be an earlier injury. The dachshunds all had hair loss (some so severe it was diagnosed as “alopecia”) and some also had scabs on their skin. One retriever (Skylar) had a heart murmur, and another was identified as having poor bone formation, assessed as likely being due to a diet deficient in calcium. Most of the dogs, including Marlow needed their nails trimmed. The puppies were assessed as being “underdeveloped” for their age which was estimated at being between six and eight months.
56Each of the kitten and the rabbit were each determined to have a BME of 3, which Dr. Melinyshyn called “a less than ideal body score”.
The appellant’s evidence on the issue of distress and removal:
57The appellant does not believe any of the animals were in distress. She testified about the care of her animals. Her other witness, Mr. Anthony Samuels, provided both general testimony about the appellant’s care and affection for her animals, and specific testimony concerning the day of the animals’ removal.
58Mr. Samuels has known the appellant for approximately three years. He is employed at a premises two houses away from the appellant. Because he noticed that her dogs were friendly, he introduced himself and since then has gotten to know the appellant and her animals well. He said he does not recall having met anyone as devoted to their dogs as is the appellant. He is aware that she sells and breeds dogs, however he doesn’t consider her a “breeder” because she doesn’t have a breeding licence.
59Mr. Samuels testified that he purchased the dog “Skylar” (Animal #7), from the appellant for $1200 in July 2021, and that she was a puppy from one of the two litters of retrievers born to the appellant’s dogs that year. He brings Skylar to the appellant’s home each workday to allow her to be with her littermates. Although he and the appellant do not have more than a friendship, he estimated that he spends 10 hours a week at the appellant’s house.
60On the date of removal, Mr. Samuels agreed to drive the appellant to a nearby town to shop for dog food as he does every couple of weeks to help her out. He arrived at the appellant’s home that day some time prior to taking her shopping. He estimated that was around 11 a.m. and that they were gone for approximately an hour-and-a-half. He said that before they departed, he saw all the dogs that were housed on the main floor of the house. He did not recall seeing the rabbit or the kitten which were in a bedroom and the closed bathroom respectively. He also said that the appellant had “made sure” the animals had food and water before they left but had taken the dishes out of the crates before leaving the house. He confirmed that the appellant usually crates her animals when she does cleaning or goes out. He recalled that on the morning in question the crates were all clean and the animals all in good condition. He acknowledged that he had known there were three puppies and that they were housed in the basement because of a shortage of room on the main floor. He believes that they usually roam in an area the size of half of the basement or are outside each day. He had seen urine-soaked newspapers in the basement before but believed that they were usually put in garbage bags ready to go outside.
61When shown pictures of Skylar tethered to the door, he acknowledged that he had secured her there. He agreed that because of the length of her tether she wouldn’t be able to lie down in that circumstance but said he had tied her so she wouldn’t run around in the house when the appellant was not home.
62On cross examination it became apparent that Mr. Samuels had some difficulty remembering some of the events of the day in question and provided evidence that differed from that given in his “will say” statement. He did not recall having provided the will say statement until reminded by the appellant’s counsel. Both he and the appellant jokingly referred to his poor memory at some point in their testimony.
63The appellant testified on her own behalf and was the last witness. She admitted to having had several compliance orders in the past but believes that she has complied with all of them.
64She agrees that she has been breeding retrievers and selling the puppies of both retrievers and dachshunds through social media although she is not a licenced breeder and has not been able to obtain a kennel licence. She says that the money she has received from selling the animals has helped her financially as a supplement to her ODSP benefits, but after paying for the animals’ food and veterinary care, she makes little profit.
65She referred to the animals as her “babies” and her “family”. She stated that she has always loved animals and that she obtained a diploma as a veterinary technician in 2004 and had worked in wildlife rehabilitation in the past.
66Although she has owned and bred retrievers for some time, the dachshunds have belonged to someone else for most of the time they have been in her custody. Most of the money received for the dachshund puppies that she sold has gone to the woman who was their owner. She was unclear or inconsistent as to when she assumed ownership of the dachshunds. She said that the dogs were “skinny and bald” when she got them, but their condition has improved under her care.
67On the date of the removal, she was out of dog food and had arranged with Mr. Samuels to drive her to a nearby town to replenish her supply. She intended to be away from the premises for only 1 or 2 hours and felt that crating the dogs for that length of time was okay. She believes that she was gone for only about an hour and a half.
68On that morning it had been raining heavily. Prior to leaving, she let out each of the dogs for a short time before putting most in crates, (including the puppies) and securing the others. She did not want them to mess up the house in her absence. She stated that when she is home they are often loose in the house, and some even enjoyed cuddling with the rabbit which is also let out of its cage to roam.
69A great deal of evidence was given by the appellant in cross examination about the type and number of crates she had on the premises, how she got them, and when and for what purpose the animals were crated. She claimed that she had some number of large crates that were not in use but did not explain why they were not used instead of the smaller crates. She varied in her testimony as to the purpose of crating the animals, indicating in one instance that one or more of the dogs was not house trained or was being house trained; in other instances that the dogs were only crated when she was not home. She agreed at one point that the dachshunds were generally kept in their crates.
70The appellant explained that the two dogs that were found to be very wet, (Animals #1 and #2 named “Scarlett” and “Benson” respectively), were not soaked by urine but had been bathed before she left the house. Because she was in a rush, they were put in their crates before she had been able to completely dry them.
71She maintained that the puppies’ wet and dirty condition was not because of their confinement together in small crate full of urine and feces as the inspectors said, but because they had been let out earlier that morning and were returned to the crate in a muddy condition. She also maintained that there was a light in the basement as well as a window, and that the puppies were usually housed in a fenced off area in the basement, rather than enclosed together in the small crate. She explained that the pile of wet newspapers was the result of a flood in the basement that had occurred some time before, rather than being soaked with urine as AWS claims.
72By way of exhibits, the appellant produced photographs of the food she says she feeds to her dogs. She described the contents of the various brands and types and their value to the animals’ nutrition. Although no hay or grass for the rabbit was found in its crate, the appellant maintained that she provided fresh grass for the animal as well as scraps, fruit and seed mixes.
73The appellant denies that she has hit her dogs. She was shown and commented on the video taken by the neighbour and produced as an exhibit by the respondent. She agreed that in that instance she had been very angry with and yelled at Marlow. She said she was concerned that he may try to breed one of the female dogs that was also shown in the video and wanted to prevent his doing so. She maintained that her blows were directed at and hit the pile of wood behind Marlow and not at the dog himself.
74The appellant tendered some veterinary bills in evidence, most pertaining to initial examinations and vaccinations for puppies that she had sold. At least one was for veterinary services supplied to Heidi, a dog belonging to the appellant’s mother. The appellant maintained that she had spent close to $10,000 in the last year on veterinary bills for all of her animals, but that she was unable to locate the receipts for all of the services so did not provide them to her counsel.
Was there an appropriate alternative to removal of the animals?
75In the course of his cross examinations, counsel for the appellant sought evidence from the inspectors and Dr. Robertson to sustain an argument that the proper course of action in respect to the circumstances of the appellant’s animals, was to issue appropriate compliance orders under section 30(1) of the Act. None of them agreed and neither do I.
76In assessing some of the evidence, I have had to weigh the credibility of the inspectors and veterinarians against the evidence of the appellant and Mr. Samuels. In every material way I prefer the respondents’ testimony.
77Even assuming errors or bad faith on the part of the inspectors (which I do not), having heard and seen the evidence from Dr. Melinyshin as to the state of the animals on their arrival at the Kingston Humane Society, it is clear that all of the animals on the date of their removal, and for some time before, had been in need of proper care, water, food or shelter; were injured sick in pain or suffering, or had been abused or subject to undue physical or psychological hardship, privation or neglect.
78That said, because the physical condition of Marlow, the kitten and the rabbit was assessed within the normal range, their circumstance deserve additional comment.
79The video purporting to show that Marlow was struck by the appellant was shown during the hearing three or four times. It was taken on a phone and from a distance. However, having viewed it each of these times, it was clear to me that the appellant was angry and yelling at the animal. It was also apparent that the blows administered with a stick of some type were administered with force and appeared to land on Marlow’s hindquarters. The video showed the dog wincing at the blows. Based on my observations, as well as the testimony provided by the respondent’s witnesses, I find it more likely than not that it was the animal, rather than the adjacent pile of wood, (as the appellant claimed), that was struck with some force at least twice. Despite his acceptable physical condition, I therefore find that Marlow has been subject to undue physical or psychological hardship sufficient to constitute distress under the Act and necessitate his removal.
80The rabbit and kitten were both found to be thin, and in each case housed in less than sanitary conditions. The kitten was closed in a bathroom with poor air quality and no food or water. There was no hay or grass (a necessary food for rabbits), present for the rabbit and its cage was deemed to be inappropriately small. There was no water in the cage nor in the hamster type water bottle nearby. Both Dr. Robertson and Dr. Melinyshyn were of the opinion that the condition of all the animals met the threshold for distress. I therefore also find these two to have been in distress as defined by the Act and that they required removal to alleviate that distress.
The appellant’s character evidence
81Several notes were tendered as character references for the appellant, speaking of her love for her animals, her knowledge about animals and her care of them. They are as follows:
i. From the Asista Foundation, a Quebec organization that trains companion animals. Their note provided independent evidence of the appellant’s testimony that she has donated puppies to the organization in support of its work. The note also confirmed that the four donated puppies had come with veterinarian confirmation of their first vaccinations.
ii. From a neighbour who asserts that the appellant plays with her animals, feeds and waters them and loves them.
iii. From a friend who writes that she has turned to the appellant for pet care advice when her pet was unwell and has been happy with the advice given. That friend also attested to the cleanliness of the appellant’s house and yard and the belief that the appellant loves her animals “and would do anything to keep them”.
iv. Another friend has known the appellant since 2019 and has purchased a puppy from her. That individual expressed the belief that AWS has lied about the condition of the animals and by removing them, has caused the animals unnecessary stress. Her note speaks of the love and care given to every animal that comes into the appellant’s home. She also addresses the issue of there being no food or water present in the animals’ bowls at the time of inspection, noting all retrievers’ habit of eating and drinking everything that is put before them such that feeding needs to be timed and portions controlled.
v. Another note was provided by a woman described by the appellant as being her son’s girlfriend, and “being like a daughter to her”. She attests to the appellant’s love for her animals and expressed concern about the stress caused by their removal.
82I do not doubt that the appellant loves her animals. It is apparent however that she does not have the ability to care for them properly or the premises to either house so many as pets or to operate a breeding kennel. It is questionable as to whether her detailed attention to the food she has been providing is informed by knowledge of their real nutritional needs There was little evidence that they have been receiving necessary or proper veterinary care post their puppy vaccinations. Crating of some of the dogs, while understandable in the circumstances of having so many and all being either intact males or females, has in containers that are too small for the size and needs of the animals and has caused them both physical problems and ( in the case of the puppies), emotional distress.
83I therefore do not find that new compliance orders would be an appropriate alternative to the animals’ removal.
Have the animals ceased to be in distress?
84Dr. Melinyshyn’s testimony and documentation indicated that as of the date of the hearing, the animals had been vaccinated, gained weight and were being cared for. Most had been diagnosed with long standing or chronic problems, a few others (Marlow, the rabbit and kitten), not. The reports from the Kingston Humane Society that were provided in evidence show the treatments only up to the last week of October. I had no evidence of the state of each animal as of the hearing dates. However, most of the dogs were found to be suffering from chronic conditions that required ongoing medical care for some indeterminate length of time.
Should the animals be returned to the appellant?
85There was no evidence given by the appellant about the steps she had taken or would be taking to ensure that the circumstances that caused the animals’ distress no longer existed or would not recur should they be returned to her custody and control, notwithstanding that her counsel argued that she was willing to meet any conditions imposed in the form of compliance orders were her animals to be returned.
86In any event, the Chief Animal Welfare Officer has made the decision to keep the animals in his care. That decision has not been appealed. Although counsel for the appellant argued that to require separate appeals based on the same facts was onerous and unfair and would create a “never ending treadmill of notices and appeals”, no reason was given for the appellant’s failure to appeal that decision. Counsel for the respondent noted that if the appellant had appealed the custody order, that issue could have been joined with those in this appeal but since it was not appealed, it would be unfair for the Board to address it in the absence of any evidence or argument directed specifically to the matter by either of the parties. I agree with the respondent.
87Based on the extensive evidence of the animals’ distress noted above, the chronic nature of that distress, the absence a plan from the appellant for the future care of the animals, even if the animals had not been taken into the custody of the Chief Animal Welfare Inspector, I would not order the animals’ return. I note that it s.38(4) of the Act provides for an owner to make application to this Board to have the animal returned if “ the conditions that caused the animal to be kept in the Chief Animal Welfare Inspector’s care have ceased to exist”, and that option may still be open to the appellant.
Should the account(s) be confirmed, revoked or varied.
88The appellant has not challenged any item in either of the accounts.
89While the appellant noted in evidence that she is in receipt of Ontario Disability Benefits, she made no argument about being unable to pay the accounts or that paying them would result in financial hardship. She has therefore not met the onus of showing why the accounts should not be confirmed.
ORDER:
90For the reasons noted above, the Board orders as follows:
The decision to remove the appellant’s animals pursuant to s. 31(1) of the Act is confirmed.
The Statements of Account dated October 28 and November 2021 are confirmed.
Released: January 24, 2022
Harriet Lewis, Member