Dennis Epp v. Chief Animal Welfare Inspector, 2023 ONACRB 14609

Animal Care Review Board

Date: 2023-05-16

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

Between:

Dennis Epp Appellant

and

Chief Animal Welfare Inspector Respondent

Amended DECISION AND ORDER

Panel: Peter Simmons, Member

Appearances:

For the Appellants: Dennis Epp, Self-represented

For the Respondent: Nicole Pratt, Inspector, and Tracy Lapping, Regional Supervisor, Animal Welfare Services Amanda Landre, Counsel

Heard By Videoconference: March 20 and 21, 2023

OVERVIEW

1Inspector Olivia Roy and Regional Supervisor Tracy Lapping (“Lapping”) of Animal Welfare Services (the “AWS”) inspected Northern Exotics, a pet shop and animal sanctuary operated by Dennis Epp (the “appellant”), located at 9560 Iona Road, Sudbury, Ontario on November 18, 2022.

2The November 18, 2022, inspection included Dr. Graham Crawshaw (“Dr. Crawshaw”), a veterinarian, who was requested to accompany AWS inspectors to assess the health and living conditions of approximately 106 species of animals. Dr. Crawshaw prepared a report from the inspection and provided it to AWS on November 30, 2022.

3On February 8, 2023, Inspector Lapping issued a Compliance Order (the “Order”) on the appellant. The Order pertained to the following animals:

a. One button quail, b. One Nile monitor, c. Two ruffed lemurs, d. One crested porcupine, e. One African snapping turtle, f. Four felines: two savannah cats and two hybrid cats.

4The Order required several items to be complied with for the animals by the compliance date of February 28, 2023. The items included:

a. Provide adequate space to enable the animal to move naturally; b. Provide enrichment materials; c. Provide features and furnishings that facilitate natural movement and behaviour; d. Provide substrate that is safe and non-toxic to the animal; e. Provide one or more areas which are out of view from spectators;

5On February 14, 2023, the appellant appealed the Order to the Animal Care Review Board (the “Board”).

6On February 24, 2023, the Order was revoked by the AWS through a Notice of Revocation (the “NOR”) due to administrative inaccuracies, and a new Order was issued on the same day replacing the Order under appeal. The items and compliance date affecting the animals were the same.

7On February 28, 2023, Senior Investigator Nicole Pratt, and Regional Supervisor Vandenkroonenberg attended Northern Exotics to conduct a compliance check regarding the Order. They observed several items from the Order had not been addressed.

8On March 8, 2023, Inspector Pratt issued a Notice of Revocation (“NOR”) to the appellant excluding one of the animals from the Order, the button quail, because compliance had been met for that animal.

9On March 14, 2023, a Notice of Non-Compliance/Failure to Comply with Order letter was issued to the appellant noting several issues affecting the remaining animals to be corrected by April 3, 2023. It also noted that the February 24, 2023, Order with a compliance date of February 28, 2023, was still in non-compliance.

10The Board conducted Case Conferences with the parties on March 1 and 8, 2023. As the matter did not resolve, the appeal was referred to a hearing.

11The video conference hearing occurred March 20 and 21, 2023.

THE ISSUES

12The issues in dispute in this matter are:

1. Are the animals in the Order in distress?
2. Did the appellant comply with the Order in its entirety?
3. Should the Order be confirmed, revoked, or modified?

RESULT

13For the reasons which follow I find that:

a. The following remaining animals from the Order are in distress: the Nile monitor, the ruffled lemurs, the crested porcupine, the African snapping turtle, four felines (two savannah cats and two hybrid cats); b. The appellant has not addressed the items and deficiencies for the remaining animals in the Order; c. The Order is confirmed. The compliance date of all items in the Order is modified to 30 days following the release of this Order.

14“Distress” under the Act means the state of being¹:

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.

15Proper care includes care in compliance with the minimum standards prescribed by the Act and its Regulation.² It includes that every animal must be provided with the care necessary for its general welfare, that every animal must be provided with an adequate and appropriate resting and sleeping area, and that every animal must be provided with adequate and appropriate space to enable the animal to move naturally and to exercise.³

16The animals are captive wildlife whose standards for their care include that they be provided with adequate and appropriate care, facilities and services and that their enclosures faciliate and stimulate natural movement and behaviour, and that one or more areas be out of view of spectators.⁴

EVIDENCE AND ANALYSIS

Are the animals in distress?

17For the reasons that follow, I find that the Nile monitor, the ruffled lemurs, the crested porcupine, the African snapping turtle, and the four felines (two savannah cats and two hybrid cats) are in distress.

18The inspection report of November 18, 2022, prepared by Dr. Crawshaw found that the animals were generally in good care and living in well-maintained enclosures. However, the inspection report and compliance inspection found that the animals are living in spaces that are restrictive for their well-being, and they lacked stimulation and enrichment.

19The living spaces for these animals are small and inadequate for them to grow and move naturally. For example, the shelter for the crested porcupine is occupied by large cardboard boxes, which prevents the animal from roaming freely. The Nile monitor’s enclosure is too small for it to provide a natural hiding space for the animal to escape to.

20The animals do not have adequate enclosure space in which to exercise freely. The felines occupy stark enclosures one of which is poorly lit, and they lack adequate space for them to climb and exercise. The crested porcupine can only exercise when it is allowed out of its enclosure to roam the corridors of the facility, and the ruffed lemurs occupy a space of limited height and leaping width for primates of this size.

21The appellant and respondent agree that the animals in the Order have been occupying spaces too small for them for a period longer than is optimal. The Nile monitor, for example, has been kept in his enclosure since 2020. The African snapping turtle was received by the appellant some time prior to the pandemic (pre-2020), and the crested porcupine was taken in as a juvenile in 2018 and has been in the same enclosure since that time. Dr. Crawshaw indicated that the ruffed lemur enclosure is too small and that while it may be suitable for temporary quarantining, it is not for permanent living. He also referred to the crested porcupine enclose as a ‘closet’, and the two older felines were observed to be ‘bored’ partly due to their enclosure space having few enrichment features.

22The respondent argued that proper care as defined by O.Reg. 444/19 s.3 is not provided, and that the animals are in distress because they have suboptimal room to move and exercise, they lack adequate enrichment features such as toys and other textured surfaces, and the enclosures are not stimulating.

23The appellant disagrees that the animals are in distress. He argued that the African snapping turtle has grown since being in his care, and its health has improved. He also argued that his efforts to manage a feline allergy problem meant limiting toys in the enclosure to keep contagions to a minimum. The boxes in the crested porcupine enclosure, he argued, were to provide a more stimulating environment.

24I prefer the evidence from the respondent over the appellant in assessing proper care, and distress for the following reasons:

1. The respondent’s argument included reference to the defined standards for basic care and administrative requirements for all animals including the provision of adequate space, resting and sleeping areas, space to exercise, and those for captive wildlife including the provision of enclosed structures and surfaces that accommodate, facilitate and stimulate natural movement, and ensure natural growth.⁵
2. The respondent’s list of deficiencies included several items for the animals such as inadequate space for each, a lack of outdoor enclosures, no scheduled exercise for the ruffed lemurs, poor lighting and a strong smell of ammonia in the feline enclosure, inconsistent humidity for the Nile monitor, and insufficient social contact for the crested porcupine.
3. The respondent’s case law submission supports their argument that if the standards of care are not met then such care is not proper for the purposes of the Act, and as a result such improper care amounts to distress.⁶

25The appellant submitted that the animals were in generally good health and the enclosures were well maintained. The respondent submitted no evidence indicating that the animals were in ill health, or in dire need of veterinarian care because of their enclosures or other features that were deficient. As it relates to the respondent’s submitted case law (Kamstra v. CAWI and Wise v. CAWI)⁷ I do not find it relevant because veterinarian examinations were not part of the Order, and AWS Inspectors provided the appellant with information regarding veterinarian telehealth options.

26The appellant has the responsibility to comply with the Act and its Regulation.⁸ While the appellant is providing a facility with generally favourable conditions for the animals they are in distress because he is not meeting the test for the provision of proper care.⁹

Did the appellant comply with the Compliance Order in its entirety?

27I find that the appellant has not complied with all the items in the Order.

28The following table shows the status of the appellant’s compliance with the Order:

Species	Compliance Order Item	Date for compliance	Status at Mar. 21, 2023
Button Quail	1 – Areas out of view of spectators	Feb. 28, 2023	Complied (Order revoked)
Nile monitor	1 - Adequate space to move naturally 2 - Enrichment materials 3 - Features that stimulate natural movement 4 - Areas out of view from spectators, burrow/den area	Feb. 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Compliance date extended to Apr. 3, 2023	Outstanding Outstanding Outstanding Outstanding
Ruffed lemurs	1 - Adequate space 2 - Enrichment materials 3 - Hide boxes off ground/off view	May 01, 2023 Feb. 28, 2023 Feb. 28, 2023 Compliance date extended to Apr. 3, 2023	Outstanding Complied Complied
Crested porcupine	1 - Adequate space 2 - Enrichment materials 3 - Features to stimulate natural movement 4 – Six-inch substrate for digging 5 – Permanent structure for sleeping /away from public view	May 01, 2023 Feb. 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Apr. 3, 2023 Compliance date extended to Apr. 3, 2023	Outstanding Complied Complied Complied Complied
Felines (all)	1- Adequate space 2 - Enrichment materials 3 - Features to stimulate natural movement/behaviour 4 - Areas of out view of spectators 5 - Improvement sleeping area	Feb 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Compliance date extended to Apr. 3, 2023	Outstanding Outstanding Outstanding Complied Complied
Alligator snapping turtle	1 - Adequate space 2 - Enrichment materials 3 - Features to stimulate natural movement/behaviour	Feb. 28, 2023 Feb. 28, 2023 Feb. 28, 2023 Compliance date extended to Apr. 3, 2023	Complied (1) Complied Complied

(1) The respondent accepts the current tank size for the Alligator snapping turtle is adequate/ bare minimum. Additional water is required in the existing tank.

29The Order was issued on February 8, 2023, with a compliance date of February 28, 2023. The compliance check on February 28, 2023, and letter of non-compliance of March 14, 2023, indicate that several items had not been addressed by the compliance date of February 28, 2023.

30The appellant’s prompt attention to Order items such as enrichment features and providing areas for certain animals to be out of view of the spectators is acknowledged, as is the fact that the appellant provided a home for animals facing an uncertain future during the pandemic.

31The principal issue in the provision of proper care in this matter is adequate space. The appellant acknowledged that the animals are occupying spaces too small for them than is optimal over longer periods, and the respondent’s compliance check also confirmed the animal enclosures had not been increased or expanded.

Should the Order be confirmed, revoked, or modified?

32The Order compliance date is modified to 30 days from the issuance of this Order.

33The evidence along with the applicable sections of the Act and its Regulation show that certain basic standards of care including adequate space to move naturally and to exercise, and that the enclosures for the captive wildlife be of an adequate size to facilitate natural movement and behaviour are lacking for the animals. They are, therefore, in distress and action is required to improve their conditions so that the prescribed standards in the Regulation are satisfied, that proper care is provided, and the animals no longer be in distress.

34I was not persuaded by the appellant’s argument that the Order should be revoked. He is not providing the animals with adequate space to enable them to move naturally and to exercise which is required under the basic standards or care for all animals in the Regulation.¹⁰ However, the appellant provided a persuasive argument that outdoor enclosures in Sudbury, in May, are premature due to cold weather and would impose a risk to the animals. I find it reasonable to modify the Order to provide additional time to construct outdoor enclosures.

35The appellant indicated his intentions to address the space issue by relocating with a proposed date of November 2023. I am not persuaded that the appellant is capable of making a move that would satisfy the Order by that time as he submitted no evidence to substantiate his claim, such as purchased or leased property, schedules, or plans. As the Board has already determined that lack of adequate space causes distress in animals, this would prolong their distress by another six months, which is unacceptable.

ORDER

36Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I:

Confirm the items in the February 24, 2023 Order.

Modify the compliance date. Compliance with the Order shall be completed 30 days from the issuance of this Order.

Footnotes

1. 1Provincial Animal Welfare Services (PAWS) Act, 2019 S.O. 2019, c.13, S. 1(1)
2. 2Pryde v CAWI 2022 ONSC 6632
3. 3O.Reg. 444/19 s. 3, 5, 6
4. 4O. Reg. 444/19 s. 5, 6, 7
5. 5PAWS, 2019, S. 2019, c.13, paragraph 13, and O.Reg. 444/19 s. 3 (5), (6)
6. 6Pryde v. CAWI, 2022 ONSC 6632
7. 7Kamstra v CAWI 2020 ONACRB 10 and Wise v. CAWI 2020 ONACRB 3
8. 8Peredery v. CAWI 2022 ONACRB 26
9. 9O. Reg. 444/19 s.3 (3), (5), (6)
10. 10O. Reg. 444/19 s.3